text:
    STATE of Louisiana v. Karen GETTRIDGE.
    No. 2013-OK-1261.
    Supreme Court of Louisiana.
    Jan. 10, 2014.
   PER CURIAM.

| Writ granted. The trial court’s ruling denying the defendant’s motion for ex-pungement is reinstated. La. R.S. 44:9 provides, in relevant part:

B. (1) Any person who has been arrested for the violation of a felony offense or who has been arrested for a violation of R.S. 14:34.2, R.S. 14:34.3, or R.S. 14:37 may make a written motion to the district court for the parish in which he was arrested for the expungement of the arrest record if:
(a) The district attorney declines to prosecute, or the prosecution has been instituted, and such proceedings have been finally disposed of by acquittal, dismissal, or sustaining a motion to quash; and
(b) The record of arrest and prosecution for the offense is without substantial probative value as a prior act for any subsequent prosecution.
(2) If, after a contradictory hearing with the district attorney and the arresting law enforcement agency, the court finds that the mover is entitled to the relief sought for the above reasons, it shall order all law enforcement agencies to expunge the record of the same in accordance herewith....

Emphasis added.

The court of appeal granted the defendant’s writ application, ruling that ex-pungement was appropriate owing to the use of the word “shall” in the statute. However, the plain language of La.R.S. 44:9(B)(2) gives discretion to the trial court to determine if the two conditions for granting a motion to expunge are satisfied. The|2inclusion of the word “shall” does not make the granting of the motion for ex-pungement automatic; rather, the trial court must find, after a contradictory hearing, that the two prerequisites are satisfied.

In the instant matter, the trial court found that while subsection (a) was met by virtue of the acquittal, subsection (b) regarding the record of the arrest and prosecutions’s lack of substantial probative value was not satisfied. Because the legislature wrote the two subsections con-junctively and not alternatively, a finding of both must be made. In detailed reasons, which included the defendant’s propensity for violence and an extensive criminal record, the trial court articulated why the latter was not achieved. We find no error in the denial of the defendant’s motion to expunge. Accordingly, we reinstate the trial court’s ruling.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    In re Larry E. PICHON.
    No. 2013-B-2686.
    Supreme Court of Louisiana.
    Jan. 10, 2014.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

| r Respondent and the Office of Disciplinary Counsel submitted a joint petition for consent discipline in which respondent admitted that during his representation of a client, he attempted to violate the Rules of Professional Conduct by requesting that the opposing party sign documents outside of his presence and return them to him to be notarized. Having reviewed the petition,

IT IS ORDERED that the Petition for Consent Discipline be accepted and that Larry E. Pichón, Louisiana Bar Roll number 19104, be publicly reprimanded.

IT IS FURTHER ORDERED that all costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.


text:
    In re Mark L. ROSS.
    No. 2013-B-2698.
    Supreme Court of Louisiana.
    Jan. 10, 2014.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

IjThe Office of Disciplinary Counsel (“ODC”) commenced an investigation into allegations that respondent commingled personal funds with client funds in his client trust account and allowed the account to become overdrawn. Prior to the filing of formal charges, respondent and the ODC submitted a joint petition for consent discipline, in which the parties stipulated that respondent has violated Rule 1.15 of the Rules of Professional Conduct. Having reviewed the petition,

IT IS ORDERED that the Petition for Consent Discipline be accepted and that Mark L. Ross, Louisiana Bar Roll number 11477, be suspended from the practice of law for a period of six months. This suspension shall be fully deferred, subject to respondent’s successful completion of a two-year period of supervised probation and attendance at the Louisiana State Bar Association’s Trust Accounting School. The probationary period shall commence from the date respondent, the ODC, and the probation monitor execute a formal probation plan. Any failure of respondent to comply with the conditions of probation, or any misconduct during the probationary period, may be grounds for making the deferred suspension executory, or imposing additional discipline, as appropriate.

IT IS FURTHER ORDERED that all costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.


author: CLARK, Justice,

text:
    STATE ex rel. Tyrone JONES v. STATE of Louisiana.
    No. 2013-KH-1389.
    Supreme Court of Louisiana.
    Jan. 10, 2014.
   CLARK, Justice,

with additional reasons for the denial.

The trial court was correct. See State v. Dick, 2006-2223 (La.1/26/07); 951 So.2d 124.


text:
    STATE ex rel. Preston RUSSELL v. STATE of Louisiana.
    No. 2013-KH-1390.
    Supreme Court of Louisiana.
    Jan. 10, 2014.
   CLARK, Justice,

with additional reasons for the denial.

The trial court was correct. See State v. Dick, 2006-2223 (La.1/26/07); 951 So.2d 124.


text:
    STATE ex rel. Alvin MEAD v. STATE of Louisiana.
    No. 2013-KH-1391.
    Supreme Court of Louisiana.
    Jan. 10, 2014.
   CLARK, Justice,

with additional reasons for the denial.

The trial court was correct. See State v. Dick, 2006-2223 (La.1/26/07); 951 So.2d 124.

JOHNSON, C.J., would grant.

WEIMER, J., would grant.


text:
    STATE ex rel. Alonzo W. FORD v. STATE of Louisiana.
    No. 2013-KH-1404.
    Supreme Court of Louisiana.
    Jan. 10, 2014.
   CLARK, Justice,

with additional reasons for the denial.

The trial court was correct. See State v. Dick, 2006-2223 (La.1/26/07); 951 So.2d 124.

JOHNSON, C.J., would grant.

WEIMER, J., would grant.


text:
    STATE ex rel. Michael BROWN v. STATE of Louisiana.
    No. 2013-KH-1432.
    Supreme Court of Louisiana.
    Jan. 10, 2014.
   CLARK, Justice,

with additional reasons for the denial.

The trial court was correct. See State v. Dick, 2006-2223 (La.1/26/07); 951 So.2d 124.

JOHNSON, C.J., would grant.

WEIMER, J., would grant.


text:
    STATE ex rel. Robert FLAGG v. STATE of Louisiana.
    No. 2013-KH-1439.
    Supreme Court of Louisiana.
    Jan. 10, 2014.
   CLARK, Justice,

with additional reasons for the denial.

The trial court was correct. See State v. Dick 2006-2223 (La.1/26/07); 951 So.2d 124.

JOHNSON, C.J., would grant.

WEIMER, J., would grant.


text:
    STATE ex rel. Lucious GORDON v. STATE of Louisiana.
    No. 2013-KH-1493.
    Supreme Court of Louisiana.
    Jan. 10, 2014.
   CLARK, Justice,

with additional reasons for the denial.

The trial court was correct. See State v. Dick, 2006-2223 (La.1/26/07); 951 So.2d 124.

JOHNSON, C.J., would grant.

WEIMER, J., would grant.


text:
    STATE ex rel. Darrell SMITH v. STATE of Louisiana.
    No. 2013-KH-1340.
    Supreme Court of Louisiana.
    Jan. 10, 2014.
   CLARK, Justice,

with additional reasons for the denial.

The trial court was correct. See State v. Dick, 2006-2223 (La.1/26/07); 951 So.2d 124.

JOHNSON, C.J., would grant.

WEIMER, J., would grant.


text:
    STATE ex rel. Robert WILLIAMS v. STATE of Louisiana.
    No. 2013-KH-1346.
    Supreme Court of Louisiana.
    Jan. 10, 2014.
   CLARK, Justice,

with additional reasons for the denial.

The trial court was correct. See State v. Dick, 2006-2223 (La.1/26/07); 951 So.2d 124.

JOHNSON, C.J., would grant.

WEIMER, J., would grant.


text:
    STATE ex rel. Rene BRADFORD v. STATE of Louisiana.
    No. 2013-KH-1254.
    Supreme Court of Louisiana.
    Jan. 10, 2014.
   CLARK, Justice,

with additional reasons for the denial.

The trial court was correct. See State v. Dick, 2006-2223 (La.1/26/07); 951 So.2d 124.

JOHNSON, C.J., would grant.

WEIMER, J., would grant.


text:
    STATE ex rel. Eric ROBINSON v. STATE of Louisiana.
    No. 2013-KH-0882.
    Supreme Court of Louisiana.
    Jan. 10, 2014.
   CLARK, Justice,

with additional reasons for the denial.

The trial court was correct. See State v. Dick, 2006-2223 (La.1/26/07); 951 So.2d 124.

JOHNSON, C.J., would grant.

WEIMER, J., would grant.


text:
    STATE ex rel. Rayvell FINCH v. STATE of Louisiana.
    No. 2013-KH-0923.
    Supreme Court of Louisiana.
    Jan. 10, 2014.
   CLARK, Justice,

with additional reasons for the denial.

The trial court was correct. See State v. Dick, 2006-2223 (La.1/26/07); 951 So.2d 124.

JOHNSON, C.J., would grant.

WEIMER, J., would grant.


author: PER CURIAM. JOHNSON, C.J. WEIMER, J.,

text:
    In re Bradley David MEYER.
    No. 2013-B-2410.
    Supreme Court of Louisiana.
    Jan. 17, 2014.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

| ,This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Bradley David Meyer, an attorney licensed to practice law in Louisiana, but currently ineligible to practice.

PROCEDURAL HISTORY

The ODC filed two sets of formal charges against respondent under disciplinary board docket numbers ll-DB-021 and ll-DB-114. Respondent failed to answer either set of formal charges. Accordingly, the factual allegations contained therein were deemed admitted and proven by clear and convincing evidence pursuant to Supreme Court Rule XIX, § 11(E)(3).

The matters were then considered by separate hearing committees. No formal hearings were held, but the parties were given an opportunity to file with the hearing committees written arguments and documentary evidence on the issue of sanctions. Respondent filed nothing for the hearing committee’s consideration in either matter.

Following their consideration by the hearing committees, the matters were consolidated by order of the disciplinary board. The board then filed in this court a single recommendation of discipline encompassing both sets of formal charges.

| .FORMAL CHARGES

ll-DB-021

The Washington Matter

In November 2008, Crandall Washington hired respondent to represent him in a criminal matter. Mr. Washington’s mother, Linda Washington, paid respondent $1,650 towards his $2,200 fee. Respondent met with Mr. Washington on November 19, 2008, February 5, 2009, and March 4, 2009. Mr. Washington entered a guilty plea at a March 4, 2009 hearing. The court clerk’s records indicate that respondent did not file any motions on Mr. Washington’s behalf.

In April 2009, Mr. Washington hired a new attorney, and respondent failed and/or refused to respond to numerous requests from the new attorney for the return of Mr. Washington’s file. Mr. Washington’s new attorney filed a motion to withdraw the guilty plea and a motion to suppress evidence, both of which were granted. Thereafter, the prosecutor dismissed and/or lessened the charges against Mr. Washington, and he received a lenient sentence.

In May 2009, Ms. Washington filed a disciplinary complaint against respondent. The complaint alleged that respondent failed to appear for scheduled court appearances, failed to provide competent representation, failed to respond to telephone calls regarding the status of the matter, and failed to return Mr. Washington’s file.

In October 2009, respondent provided the ODC with a sworn statement. He testified that he would submit documentation to show that he met with Mr. Washington several times, communicated regularly with him and his mother, and appeared for all scheduled court appearances. Respondent also testified that he consulted with two doctors regarding conducting tests to determine Mr. Washington’s competence level as there was an issue regarding his competence. Nevertheless, respondent chose not to have Mr. Washington undergo testing and, |3instead, advised Mr. Washington to plead guilty based on the presentence investigation.

The ODC alleged that respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.1(a) (failure to provide competent representation to a client), 1.8 (failure to act with reasonable diligence and promptness in representing a client), 1.4 (failure to communicate with a client), 1.14 (client with diminished capacity), 1.15 (safekeeping property of clients or third persons), 1.16(d) (obligations upon termination of the representation), 8.1(c) (failure to cooperate with the ODC in its investigation), and 8.4(a) (violation of the Rules of Professional Conduct).

The Jackson Matter

Shaude Jackson hired respondent to represent him in a criminal matter. In April 2010, Mr. Jackson filed a disciplinary complaint against respondent, alleging that respondent failed to abide by his decisions concerning the objectives of the representation. Mr. Jackson also alleged that respondent demanded payment for the return of Mr. Jackson’s file, which he needs in order to prepare a request for post-conviction relief. The ODC sent notice of the complaint to respondent’s primary bar registration address via certified mail, but the notice was returned marked unclaimed and unable to forward.

The ODC alleged that respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.15, 8.1(c), and 8.4(a).

The Taylor Matter

In February 2010, Thomas Taylor paid respondent $500 to handle his divorce. A few days later, Mr. Taylor returned to respondent’s office to review and sign the divorce petition. Thereafter, Mr. Taylor made numerous attempts to 14contact respondent but was unsuccessful. Mr. Taylor contacted the court clerk’s office in the parish where he resides, as well as court clerk’s offices in surrounding parishes, and learned that respondent had not filed the divorce petition on his behalf.

In September 2010, Mr. Taylor filed a disciplinary complaint against respondent. Among other things, Mr. Taylor claimed that, on a recent visit to respondent’s office, he learned respondent was no longer operating from that location. The ODC sent notice of the complaint to respondent’s primary and secondary bar registration addresses, but both notices were returned marked not deliverable as addressed and unable to forward.

The ODC alleged that respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.1(a), 1.3, 1.4, 1.5 (fee arrangements), 8.1(c), and 8.4(a).

The Butler Matter

In March 2010, Shenita Butler hired respondent to represent her brother in a criminal matter. Ms. Butler paid respondent $600 for the representation, but respondent failed to take any action on her brother’s behalf. In September 2010, Ms. Butler filed a disciplinary complaint against respondent. The ODC sent notice of the complaint to respondent’s primary bar registration address, but the notice was returned marked not deliverable as addressed and unable to forward.

The ODC alleged that respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.1(a), 1.3,1.4,1.5, 8.1(c), and 8.4(a).

|s The Brown Matter

In June 2010, Veronique Brown hired respondent to represent Abraham Jones in a criminal matter. Ms. Brown paid respondent a total of $1,000 in several installments. Thereafter, according to Ms. Brown, respondent ceased communication and failed to take any action in the matter.

In October 2010, Ms. Brown filed a disciplinary complaint against respondent. The ODC sent notice of the complaint to respondent’s primary and secondary bar registration addresses. The notice mailed to respondent’s primary address was returned marked not deliverable as addressed and unable to forward. The notice mailed to respondent’s secondary address was returned marked unclaimed.

The ODC alleged that respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.3,1.4,1.5, 8.1(c), and 8.4(a).

11-DB-1U

The McAllister Matter

In March 2010, Marcell McAllister hired respondent to represent him in three pending criminal matters. In December 2010, Mr. McAllister filed a disciplinary complaint against respondent, maintaining that respondent failed to appear for scheduled court dates, failed to respond to his requests for status updates, and failed to provide adequate representation.

Respondent failed to respond to the complaint, despite receiving notice of same via certified mail at least twice. His failure to respond necessitated the issuance of a subpoena to obtain his sworn statement. The subpoena also required respondent to produce a copy of Mr. McAllister’s file. While respondent did provide the sworn statement to the ODC, he failed to produce a copy of the file. | (¡Respondent told the ODC he would provide the file and other evidence to refute Mr. McAllister’s allegations no later than November 18, 2011. However, he failed to do so.

The ODC alleged that respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.1(a), 1.3, 1.4, 1.5(a) (charging an unreasonable fee), 1.16(d), 8.1(c), and 8.4(a).

DISCIPLINARY PROCEEDINGS:

Hearing Committee Reports

ll-DB-021

As previously indicated, respondent failed to answer the formal charges in ll-DB-021. Accordingly, the factual allegations were deemed admitted. After considering the ODC’s deemed admitted submission, the hearing committee made the following factual findings:

The undisputed facts establish that Respondent acted knowingly and intentionally causing actual harm to his clients. ODC effectively established a pattern of misconduct, bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with rules and orders of the disciplinary agency, multiple offenses, refusal to acknowledge wrongful nature of conduct, vulnerability of victim, and an indifference to making restitution all constituting violations of the duty owed to his clients, to the public, to the legal system, and to the profession.

The committee determined that respondent violated the Rules of Professional Conduct as alleged in the formal charges. The committee then determined that the additional aggravating factor of a dishonest or selfish motive is present. While acknowledging respondent’s inexperience in the practice of law (admitted 2003) as a mitigating factor, the committee determined that his lack of |7experience “is by no means a sufficient mitigating factor to modify the recommendation of disbarment.”

Based on this reasoning, the committee recommended that respondent be permanently disbarred.

Neither respondent nor the ODC filed an objection to the hearing committee’s report and recommendation. The matter was then considered by the disciplinary board, which recommended that respondent be disbarred for the misconduct in ll-DB-021. The board’s report and recommendation was lodged in this court’s docket number 12-B-1131. Before we considered the matter, the ODC filed a motion to remand the matter to the board for consolidation with the formal charges in ll-DB-114. On July 11, 2012, we granted the motion and remanded the matter to the board. In re: Meyer, 12-1131 (La.7/11/12), 92 So.3d 339.

11-DB-1U

As previously indicated, respondent failed to answer the formal charges in ll-DB-021. Accordingly, the factual allegations were deemed admitted. After considering the ODC’s deemed admitted submission, the hearing committee determined that the deemed admitted facts are undisputed and accepted as true and correct. Based on these facts, the committee concluded that respondent violated the Rules of Professional Conduct as alleged in the formal charges.

The committee determined that respondent knowingly and intentionally violated duties owed to his client, the public, the legal system, and the legal profession. His conduct caused actual harm to his client. After reviewing the ABA’s Standards for Imposing Lawyer Sanctions, the committee determined that the baseline sanction is disbarment.

In aggravation, the committee found a dishonest or selfish motive, a pattern of misconduct, multiple offenses, bad faith obstruction of the disciplinary | ^proceeding by intentionally failing to comply with the rules or orders of the disciplinary agency, refusal to acknowledge the wrongful nature of the conduct, vulnerability of the victim, and an indifference to making restitution. The committee found that the only mitigating factor present is respondent’s inexperience in the practice of law.

Turning to the issue of an appropriate sanction, the committee noted that respondent accepted a fee from his client but failed to produce evidence of any action taken on his client’s behalf. Respondent also apparently abandoned his law practice, made no effort to inform his client that he was closing his office, made no effort to account for fees and/or return any unearned fees, and failed to cooperate with the ODC in its investigation. Under these circumstances, the committee recommended that respondent be disbarred. The committee also recommended that respondent provide his client with all file materials and .return the fee his client paid.

Neither respondent nor the ODC filed an objection to the disciplinary board’s report and recommendation.

Disciplinary Board Recommendation

ll-DB-021 & 11-DB-1U

After reviewing the consolidated matters, the disciplinary board made the following findings:

The factual allegations contained in ll-DB-021 were deemed admitted and have been conclusively established. However, the board declined to fully adopt the hearing committee’s findings regarding rule violations because several of the allegations of misconduct are not readily apparent from the deemed admitted facts and because the ODC failed to submit additional evidence sufficient to prove them.

|3In the Washington matter, the board determined that a violation of Rule 1.15 of the Rules of Professional Conduct, which requires an attorney to deliver to a client any property the client is entitled to receive, is not readily apparent from the deemed admitted facts or other evidence submitted by the ODC. Based on the record, the only demand made upon respondent was for the return of Mr. Washington’s file, which respondent knowingly and/or intentionally failed to do. However, this misconduct is appropriately addressed as a violation of Rule 1.16(d). The board adopted all other rule violations found by the committee in this matter.

Likewise, in the Jackson matter, the board determined that a violation of Rule 1.15 is not readily apparent from the deemed admitted facts or other evidence submitted by the ODC. Based on the record, there is no evidence that respondent failed to deliver any property to Mr. Jackson, other than his file, which establishes a violation of Rule 1.16(d). Even though this violation was not specifically alleged by the ODC in this matter, the board determined that the formal charges contain sufficient facts to put respondent on adequate notice of the likelihood that his conduct violated Rule 1.16(d). Therefore, in addition to finding that respondent violated Rules 8.1(c) and 8.4(a), the board also found that he violated Rule 1.16(d).

In the Taylor and Brown matters, the formal charges allege that respondent charged an unreasonable fee in violation of Rule 1.5 of the Rules of Professional Conduct. However, it is not readily apparent from the deemed admitted facts or other evidence submitted by the ODC that respondent charged an unreasonable fee in these matters. Instead, the board found that respondent’s conduct in these matters, as demonstrated by the deemed admitted facts, is more in line with a Rule 1.5(f)(5) violation for his failure to refund unearned fees.

The board also found that the factual allegations in ll-DB-114 were deemed admitted and have been conclusively established. Based on these facts, the board determined that the committee correctly applied the Rules of Professional Conduct, ^except that the board declined to find respondent charged an unreasonable fee in violation of Rule 1.5(a). Respondent indicated that he received only $800 or $900, all of which he claimed was earned. The record is void of an accounting or other evidence to demonstrate how the fees were actually earned. Thus, the board rejected the committee’s conclusion that respondent charged an unreasonable fee. However, the board found that respondent did violate Rules 1.3, 1.4, 1.16(d), 8.1(c), and 8.4(a).

The board determined that respondent knowingly and intentionally violated duties owed to his clients and the legal profession. His conduct caused actual harm to his clients and the legal profession. Citing the ABA’s Standards for Imposing Lawyer Sanctions, the board determined that the baseline sanction is disbarment.

In aggravation, the board found a dishonest or selfish motive, a pattern of misconduct, multiple offenses, bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with the rules or orders of the disciplinary agency, refusal to acknowledge the wrongful nature of the conduct, vulnerability of the victims, and indifference to making restitution. In mitigation, the board found the absence of a prior disciplinary record and inexperience in the practice of law.

After considering respondent’s conduct in light of the permanent disbarment guidelines set forth in Supreme Court Rule XIX, Appendix E, the board recommended that he be permanently disbarred. The board further recommended that respondent be ordered to return his clients’ files, provide full accountings and refunds of unearned fees, and make restitution to the clients whose funds he intentionally converted.

Neither respondent nor the ODC filed an objection to the disciplinary board’s report and recommendation.

InDISCUSSION

Bar disciplinary matters fall within the original jurisdiction of this court. La. Const, art. V, § 5(B). Consequently, we act as triers of fact and conduct an independent review of the record to determine whether the alleged misconduct has been proven by clear and convincing evidence. In re: Banks, 09-1212 (La.10/2/09), 18 So.3d 57.

In cases in which the lawyer does not answer the formal charges, the factual allegations of those charges are deemed admitted. Supreme Court Rule XIX, § 11(E)(3). Thus, the ODC bears no additional burden to prove the factual allegations contained in the formal charges after those charges have been deemed admitted. However, the language of § 11(E)(3) does not encompass legal conclusions that flow from the factual allegations. If the legal conclusion the ODC seeks to prove (i.e., a violation of a specific rule) is not readily apparent from the deemed admitted facts, additional evidence may need to be submitted in order to prove the legal conclusions that flow from the admitted factual allegations. In re: Donnan, 01-3058 (La.1/10/03), 838 So.2d 715.

The record in this deemed admitted matter indicates that respondent neglected his clients’ legal matters, failed to communicate with his clients, failed to refund unearned fees, and failed to return his clients’ files. Respondent also failed to cooperate with the ODC by failing to update his primary registration address with the Louisiana State Bar Association and by failing to produce a copy of a client’s file, despite promising to do so during his sworn statement. This conduct violates Rules 1.3, 1.4, 1.5(f)(5), 1.16(d), and 8.1(c) of the Rules of Professional Conduct.

Having found evidence of professional misconduct, we now turn to a determination of the appropriate sanction for respondent’s actions. In determining a sanction, we are mindful that disciplinary proceedings are designed to maintain | i2high standards of conduct, protect the public, preserve the integrity of the profession, and deter future misconduct. Louisiana State Bar Ass’n v. Reis, 513 So.2d 1173 (La.1987). The discipline to be imposed depends upon the facts of each case and the seriousness of the offenses involved considered in light of any aggravating and mitigating circumstances. Louisiana State Bar Ass’n v. Whittington 459 So.2d 520 (La.1984).

Respondent violated duties owed to his clients and the legal profession, resulting in actual harm to his clients. His conduct was both knowing and intentional. The applicable baseline sanction in this matter is disbarment.

Aggravating factors include a pattern of misconduct, multiple offenses, bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with the rules or orders of the disciplinary agency, and vulnerability of the victims. The only mitigating factor present is the absence of a prior disciplinary record.

In its report, the disciplinary board concluded that respondent’s offenses are so egregious that he should be permanently prohibited from applying for readmission to the bar. We agree.

Respondent failed to refund unearned fees paid by his clients, effectively converting those funds to his own use. As such, respondent’s conduct amounts to repeated or multiple instances of intentional conversion of client funds with substantial harm, as required by Guideline 1 of the permanent disbarment guidelines set forth in Supreme Court Rule XIX, Appendix E. Respondent’s conduct demonstrates a disregard for his clients and for his duties as an attorney. In order to protect the public and maintain the high standards of the legal profession in this state, we find respondent should not be allowed the opportunity to return to the practice of law in the future.

1 ^Accordingly, we will adopt the board’s recommendation and permanently disbar respondent. We will also order respondent to make restitution to his victims.

DECREE

Upon review of the findings and recommendations of the hearing committees and disciplinary board, and considering the record, it is ordered that the name of Bradley David Meyer, Louisiana Bar Roll number 28393, be stricken from the roll of attorneys and that his license to practice law in the State of Louisiana be revoked. Pursuant to Supreme Court Rule XIX, § 24(A), it is further ordered that respondent be permanently prohibited from being readmitted to the practice of law in this state. It is further ordered that respondent shall make restitution to his victims. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.

JOHNSON, C.J., dissents from discipline ordered.

WEIMER, J., dissents and assigns reasons.

HUGHES, J., dissents for the reasons assigned by WEIMER, J.

JOHNSON, C.J.

dissents.

|,I respectfully dissent from the discipline ordered. Jurisprudence involving similar misconduct indicates that an appropriate sanction in this matter ranges from a three-year suspension to disbarment. Thus, I would order briefing to determine whether the sanction recommended by the disciplinary board is appropriate in this case.

WEIMER, J.,

dissenting.

| j While in no way condoning the actions of the respondent, I would order briefing to determine whether the sanction recommended by the disciplinary board is appropriate.

      . Respondent is currently ineligible to practice law for failing to pay bar dues and the disciplinary assessment, failing to meet mandatory continuing legal education requirements, and failing to file his trust account disclosure statement.


text:
    Maria R. GANOZA v. STATE of Louisiana, et al.
    No. 2013-CC-2395.
    Supreme Court of Louisiana.
    Jan. 10, 2014.
   In re Ganoza, Maria R.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. C, No. 2012-05083; to the Court of Appeal, Fourth Circuit, No. 2012-C-1125.

Denied.

HUGHES, J., would grant.


text:
    STATE of Louisiana v. Darvin M. HAWTHORNE.
    No. 2013-KO-1621.
    Supreme Court of Louisiana.
    Jan. 27, 2014.
   In re Hawthorne, Darvin M.; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. J, No. 494-563; to the Court of Appeal, Fourth Circuit, No. 2012-KA-1406.

Denied.


text:
    STATE of Louisiana v. Patrick D. JAMES.
    No. 2013-K-1630.
    Supreme Court of Louisiana.
    Jan. 27, 2014.
   In re James, Patrick D.; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of St. Tammany, 22nd Judicial District Court Div. H, No. 518531; to the Court of Appeal, First Circuit, No. 2012 KA 1785.

Denied.


text:
    STATE ex rel. Tyrone JONES v. STATE of Louisiana.
    No. 2013-KH-1634.
    Supreme Court of Louisiana.
    Jan. 27, 2014.
   In re Jones, Tyrone; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Divs. I, H, Nos. 361-760, 362-681; to the Court of Appeal, Fourth Circuit, No. 2013-K-0826.

Denied. See State ex rel. Brown v. State, 03-2568, (La.3/26/04), 870 So.2d 976; State ex rel. Degreat v. State, 98-0690 (La.7/2/98), 724 So.2d 205; State ex rel. Fleury v. State, 93-2898 (La.10/13/95), 661 So.2d 488.


text:
    STATE ex rel. David TRIMBLE v. STATE of Louisiana.
    No. 2013-KH-1635.
    Supreme Court of Louisiana.
    Jan. 27, 2014.
   In re Trimble, David; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Iberia, 16th Judicial District Court Div. A, No. 06-CR-402; to the Court of Appeal, Third Circuit, No. KH 12-01175.

Denied.


text:
    STATE ex rel. Leon Joseph DUFFY v. STATE of Louisiana.
    No. 2013-KH-1636.
    Supreme Court of Louisiana.
    Jan. 27, 2014.
   In re Duffy, Leon Joseph; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Lafayette, 15th Judicial District Court Div. L, No. 07CR117476; to the Court of Appeal, Third Circuit, No. KH 13-00029.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.


text:
    STATE of Louisiana v. Eric Paul McCLAIN.
    No. 2013-KO-1637.
    Supreme Court of Louisiana.
    Jan. 27, 2014.
   In re McClain, Eric Paul; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of St. Mary, 16th Judicial District Court Div. H, No. 2009-179874; to the Court of Appeal, First Circuit, No. 2012 KA 1766.

Denied.


text:
    STATE ex rel. John E. SPELLMAN v. STATE of Louisiana.
    No. 2013-KH-1638.
    Supreme Court of Louisiana.
    Jan. 27, 2014.
   In re Spellman, John E.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. L, No. 13-1210; to the Court of Appeal, Fifth Circuit, No. 13-K-337.

Denied. Moot.


text:
    STATE of Louisiana v. Thomas Kirk GATON.
    No. 2013-K-1642.
    Supreme Court of Louisiana.
    Jan. 27, 2014.
   In re Gaton, Thomas Kirk; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Vermilion, 15th Judicial District Court Div. G, No. 48267; to the Court of Appeal, Third Circuit, No. 13-30.

Denied.

HUGHES, J., would grant.


text:
    STATE ex rel. Preston G. DEMOUCHETTE, Jr. v. STATE of Louisiana.
    No. 2013-KH-1649.
    Supreme Court of Louisiana.
    Jan. 27, 2014.
   In re Demouchette Jr., Preston G.;— Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Acadia, 15th Judicial District Court Div. I, No. 31,681; to the Court of Appeal, Third Circuit, No. KH 13-00131.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; State v. Parker, 98-0256 (La.5/8/98), 711 So.2d 694; La.C.Cr.P. art. 930.3; State ex rel Melinie v. State, 93-1380 (La.1/12/96), 665 So.2d 1172.


text:
    STATE ex rel. Kevin TRAINOR v. STATE of Louisiana.
    No. 2013-KH-1650.
    Supreme Court of Louisiana.
    Jan. 27, 2014.
   In re Trainor, Kevin; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. K, No. 444-753; to the Court of Appeal, Fourth Circuit, No. 2013-K-0796.

Denied. Repetitive. La.C.Cr.P. art. 930.4(A).


text:
    STATE ex rel. Glenn Carson OSBORNE v. STATE of Louisiana.
    No. 2013-KH-1651.
    Supreme Court of Louisiana.
    Jan. 27, 2014.
   In re Osborne, Glenn Carson; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Winn, 8th Judicial District Court, No. 32,622; to the Court of Appeal, Second Circuit, No. 48,549-KH.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.


text:
    STATE ex rel. Terry DAVIS, Jr. v. STATE of Louisiana.
    No. 2013-KH-1652.
    Supreme Court of Louisiana.
    Jan. 27, 2014.
   In re David, Jr., Terry; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Acadia, 15th Judicial District Court Div. J, No. 67,808; to the Court of Appeal, Third Circuit, No. KH 13-00244.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.

HUGHES, J., would grant.


text:
    STATE ex rel. Sherman BURTON v. STATE of Louisiana.
    No. 2013-KH-1660.
    Supreme Court of Louisiana.
    Jan. 27, 2014.
   In re Burton, Sherman; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. L, No. 407-530; to the Court of Appeal, Fourth Circuit, No. 2013-K-0733.

Denied.


text:
    STATE ex rel. Johnnie CAUSEY v. STATE of Louisiana.
    No. 2013-KH-1664.
    Supreme Court of Louisiana.
    Jan. 27, 2014.
   In re Causey, Johnnie; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. I, No. 488-121; to the Court of Appeal, Fourth Circuit, No. 2013-K-0735.

Denied.

HUGHES, J., would grant.


text:
    STATE ex rel. Ronald BROOKS v. STATE of Louisiana.
    No. 2013-KH-1666.
    Supreme Court of Louisiana.
    Jan. 27, 2014.
   In re Brooks, Ronald; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. I, No. 390-582; to the Court of Appeal, Fourth Circuit, No. 2013-K-0721.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.


text:
    STATE ex rel. Joseph WIGGINS v. STATE of Louisiana.
    No. 2013-KH-1667.
    Supreme Court of Louisiana.
    Jan. 27, 2014.
   In re Wiggins, Joseph; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. L, No. 86-494; to the Court of Appeal, Fifth Circuit, No. 13-KH-442.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.


text:
    STATE ex rel. Donald Ray WALTON, Jr. v. STATE of Louisiana.
    No. 2013-OK-1672.
    Supreme Court of Louisiana.
    Jan. 27, 2014.
   In re Walton Jr., Donald Ray; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. G, No. 01-95-0722; to the Court of Appeal, First Circuit, No. 2013-KW-0827.

Denied.


text:
    STATE ex rel. Johnny L. JONES v. STATE of Louisiana.
    No. 2013-KH-1673.
    Supreme Court of Louisiana.
    Jan. 27, 2014.
   In re Jones, Johnny L.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Allen, 33rd Judicial District Court Div. A, No. 2013-F-0353; to the Court of Appeal, Third Circuit, No. KH 13-00367.

Denied.


text:
    STATE ex rel. Matthew Wayne MORGAN v. STATE of Louisiana.
    No. 2013-KH-1674.
    Supreme Court of Louisiana.
    Jan. 27, 2014.
   In re Morgan, Matthew Wayne; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Rapides, 9th Judicial District Court Div. E, No. 246165; to the Court of Appeal, Third Circuit, No. KH 13-00034.

Denied.


text:
    STATE ex rel. Marvin COBB v. STATE of Louisiana.
    No. 2013-KH-1675.
    Supreme Court of Louisiana.
    Jan. 27, 2014.
   In re Cobb, Marvin; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. F, No. 257742; to the Court of Appeal, First Circuit, No. 2013 KW 0689.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.


text:
    STATE ex rel. Juventino MUNOZ v. STATE of Louisiana.
    No. 2013-KH-1678.
    Supreme Court of Louisiana.
    Jan. 27, 2014.
   In re Munoz, Juventino; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. M, No. 93-6645; to the Court of Appeal, Fifth Circuit, No. 13-KH-464.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.


text:
    STATE ex rel. Atanacio GUERRERO, Jr. v. STATE of Louisiana.
    No. 2013-KH-1688.
    Supreme Court of Louisiana.
    Jan. 27, 2014.
   In re Guerrero, Jr., Atanacio; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of St. Mary, 16th Judicial District Court Div. C, No. 2009-178706; to the Court of Appeal, First Circuit, No. 2010 KA 0345.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.


text:
    STATE ex rel. Christopher LORMAND v. STATE of Louisiana.
    No. 2013-KH-1689.
    Supreme Court of Louisiana.
    Jan. 27, 2014.
   In re Lormand, Christopher; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Lafayette, 15th Judicial District Court Div. A, Nos. 120612, 124756; to the Court of Appeal, Third Circuit, No. KH 13-00045.

Denied.


text:
    STATE ex rel. Roy JACKSON v. STATE of Louisiana.
    No. 2013-KH-1698.
    Supreme Court of Louisiana.
    Jan. 27, 2014.
   In re Jackson, Roy; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Avoyelles, 12th Judicial District Court Div. B, No. 162069; to the Court of Appeal, Third Circuit, No. KH 12-01407.

Denied.


text:
    Alfred WATTS and Rosa Lee Watts v. GEORGIA-PACIFIC CORP. (Individually and as Successor to Bestwall Gypsum Company); Metropolitan Life Insurance Company; Foster Wheeler Energy Corporation; Minnesota Mining and Manufacturing Company (a/k/a “3M”); North American Refractories Company; General Refractories Company; Harbison-Walker Refractories Company (Formerly a Division of Indresco Inc.); Uniroyal, Inc. (Successor to U.S. Rubber Company); the McCarty Corporation; Rapid American Corporation, et al.
    No. 2013-C-2442.
    Supreme Court of Louisiana.
    Jan. 27, 2014.
   In re Hebert Brothers Engineers Inc.;— Defendant; Applying For Writ of Certio-rari and/or Review, Parish of Iberville, 18th Judicial District Court Div. A, No. 55,941; to the Court of Appeal, First Circuit, No. 2012 CA 0620.

Denied.

VICTORY, GUIDRY and CLARK, JJ., would grant.


text:
    Alfred WATTS and Rosa Lee Watts v. GEORGIA-PACIFIC CORP. (Individually and as Successor to Bestwall Gypsum Company); Metropolitan Life Insurance Company; Foster Wheeler Energy Corporation; Minnesota Mining and Manufacturing Company (a/k/a “3M”); North American Refractories Company; General Refractories Company; Harbison-Walker Refractories Company (Formerly a Division of Indresco Inc.); Uniroyal, Inc. (Successor to U.S. Rubber Company); the McCarty Corporation; Rapid American Corporation, et al.
    No. 2013-C-2444.
    Supreme Court of Louisiana.
    Jan. 27, 2014.
   In re Watts, Alfred et al.; Watts, Rosa Lee; — Plaintiffs); Applying For Writ of Certiorari and/or Review, Parish of Iber-ville, 18th Judicial District Court Div. A, No. 55,941; to the Court of Appeal, First Circuit, No. 2012 CA 0620.

Denied.


text:
    HARDIN COMPOUNDING PHARMACY, LLC v. PROGRESSIVE BANK, et al.
    No. 2013-C-2517.
    Supreme Court of Louisiana.
    Jan. 27, 2014.
   In re Hardin Compounding Pharmacy, LLC;—Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of Oua-chita, 4th Judicial District Court Div. K, No. 2011-2747; to the Court of Appeal, Second Circuit, No. 48,397-CA.

Denied.


text:
    Mark SAVOY v. Adam T. PERRY, M.D.
    No. 2013-CP-2545.
    Supreme Court of Louisiana.
    Jan. 27, 2014.
   In re Savoy, Mark; — Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of Lafayette, 15th Judicial District Court Div. J, No. 20110700; to the Court of Appeal, Third Circuit, No. 13-416.

Denied.


text:
    Roberto LLOPIS, D.D.S. v. The LOUISIANA STATE BOARD OF DENTISTRY, et al.
    No. 2013-C-2556.
    Supreme Court of Louisiana.
    Jan. 27, 2014.
   In re Llopis D.D.S., Roberto; — Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. A, No. 11-9564; to the Court of Appeal, Fourth Circuit, No. 2012-CA-1286.

Denied.


text:
    STATE Of Louisiana v. Malcolm MARCEAUX.
    No. 2013-KK-2557.
    Supreme Court of Louisiana.
    Jan. 27, 2014.
   In re Marceaux, Malcolm; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Vermilion, 15th Judicial District Court Div. C, No. 54640; to the Court of Appeal, Third Circuit, No. KW 13-00661.

Denied.


text:
    STATE of Louisiana v. Lorrie A. ANDERSON.
    No. 2013-KK-2569.
    Supreme Court of Louisiana.
    Jan. 27, 2014.
   In re Anderson, Lorrie A.; — Defendant; Applying For Supervisory and/or Remedíal Writs, Parish of Lafayette, 15th Judicial District Court Div. K, No. OP-648; to the Court of Appeal, Third Circuit, No. KW-13-00974.

Denied.

HUGHES, J., would grant the writ.


text:
    John H. VAGELOS, Theodore H. Vagelos and Citibank, N.A., et al. v. Kim ABRAMSON, Neil Abramson and Phelps Dunbar, LLP.
    No. 2013-C-2574.
    Supreme Court of Louisiana.
    Jan. 27, 2014.
   In re Citibank N.A.; Vagelos, John H. et al.; Vagelos, Theodore H.; — Plaintiff(s); Applying For Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. G, No. 2011-2996; to the Court of Appeal, Fourth Circuit, No. 2012-CA-1235.

Denied.

HUGHES, J., would grant.


text:
    Michael P. TYLER, et al. v. Joseph DEJEAN, et al.
    No. 2013-C-2586.
    Supreme Court of Louisiana.
    Jan. 27, 2014.
   In re America First Insurance Company; Peerless Insurance Company; — Defendants); Applying For Writ of Certiorari and/or Review, Parish of St. Landry, 27th Judicial District Court Div. C, No. 09-C-3884; to the Court of Appeal, Third Circuit, No. 12-1421.

Denied.


text:
    Tyrone ROY v. The SUCCESSION OF Wilfrid Clayton ROY through its Executor, Karen BROUSSARD.
    No. 2013-CC-2585.
    Supreme Court of Louisiana.
    Jan. 27, 2014.
   In re Roy, Tyrone; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Avoyelles, 12th Judicial District Court Div. A, No. 2012-8640-A; to the Court of Appeal, Third Circuit, No. CW 13-00806.

Denied.


text:
    Glenn J. DUHE, Sr., et al. v. Anesha LINDSEY, et al.
    No. 2013-CC-2514.
    Supreme Court of Louisiana.
    Jan. 27, 2014.
   In re Progressive Paloverde Insurance Co.; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. C, No. 09-10540; to the Court of Appeal, Fourth Circuit, No. 2013-C-1119.

Granted. The judgment of the district court denying the exception of prescription is vacated. The case is remanded to the district court to make a determination as to whether plaintiffs’ October 4, 2012 petition naming Progressive Paloverde Ins. Co. as a defendant relates back to the September 12, 2012 petition naming Progressive Security Ins. Co. as a defendant. See Ray v. Alexandria Mall, 434 So.2d 1083 (La.1983). The district court should then reconsider the exception of prescription in light of its finding on this issue.

JOHNSON, C.J., and WEIMER and HUGHES, JJ., would deny.


text:
    PAMPLEMOUSSIER, L.L.C. v. Sheldon L. POCHE, Jr., Jana Mauroner Poche, Robert B. McNabb, CRA, APAC, Regions Bank, City of Baton Rouge/Parish of East Baton Rouge, Louisiana Department of Labor, Louisiana Department of Revenue, and the United States Department of Treasury-Internal Revenue Service.
    No. 2013-C-2432.
    Supreme Court of Louisiana.
    Jan. 27, 2014.
   In re Poche Jr., Sheldon L.; Poche, Jana Mauroner; — Defendant(s); Applying For Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. J, No. 586,593; to the Court of Appeal, First Circuit, No. 2012 CA 1829.

Not considered; not timely filed. Although Columbus Day is a legal holiday pursuant to La. R.S. 1:55(A)(1), it is not one of the specific enumerated holidays which are listed as legal holidays in La. R.S. 1:55(E)(3) for purposes of the calculation of time delays under La.Code Civ. P. art. 5059.


author: DREW, J.

text:
    Rebecca Leeann RAMSEY, Plaintiff-Appellee v. Edgar MORALES, Defendant-Appellant. Edgar Morales and Rebecca Morales, Plaintiff-Appellant v. Rebecca Leeann Ramsey, Defendant-Appellee. State of Louisiana in the Interest of H.L.M. and I.R.M.
    Nos. 48,765-CA, 48,766-CA, 48,767-JAC.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 20, 2013.
    Charles R. Joiner, for Appellant, Edgar Morales.
    A. Shawn Alford, Farmerville, for Ap-pellee, Rebecca Leeann Ramsey.
    Penya Marzula Moses-Fields, for Appel-lee State of Louisiana, Dept, of Children and Family Services.
    Angela Michelle Smith, for Appellees H.L.M. and I.R.M.
    Before DREW, MOORE and GARRETT, JJ.
   DREW, J.

|! Edgar Morales appeals a judgment awarding primary domiciliary custody of his twin daughters to their mother, Rebecca Leeann Ramsey. Having thoroughly reviewed these consolidated records, we find no abuse of discretion below, and we affirm.

BACKGROUND

In 2008, at the age of 18, Leeann Ramsey and her significant other, Kayla Bennett, moved into the home of Edgar and Rebecca Morales. At some point, Edgar and his wife asked Leeann and Kayla if they would have a baby for them.

Edgar, who is 10 years older than Leeann, began a sexual relationship with her that resulted in Leeann becoming pregnant with twins.

In April of 2009, Leeann entered into a written agreement which provided that she was having the baby for the Morales-es, with whom the baby would live, and that the Moraleses would make all decisions about the child, though Leeann could see the baby at any time by giving notice. The twins were born in October of 2009.

On August 18, 2011, when the twins were 22 months old, Leeann filed a petition for custody. Later that month, the Moraleses filed a separate suit, with a rule for custody and a proffered ex parte order for temporary custody. Days later, the trial court issued an instanter order placing custody of the twins with the Department of Family Services (“DFS”), which accounts for the third record.

12As often happens when instanter orders grant custody to DFS, the parties quickly reached agreement as to an interim order designating a one-week rotation of physical custody of the twins. The trial court recalled the instanter order and approved the weekly rotation of physical custody between Leeann and Edgar, pending a decision on custody and visitation.

TRIAL

A hotly contested trial was held on five dates between March and September of 2012. Rebecca Morales was ultimately dismissed as a party.

In a ruling rendered November 2, 2012, the trial court noted that each parent had at times displayed behavior which put his or her own interest ahead of the twins’ best interests. The court also noted that it could not find clear and convincing evidence justifying an award of sole custody. While each party had made accusations against the other, the court found most of the accusations to be inconsequential or moot. The court recognized that the parties were willing to address their problems.

After considering the factors listed in La. C.C. art. 184, the court ^acknowledged that the determination of custody was a close call. The trial court was particularly impressed by the stability and geographical nearness of Leeann’s family, which would afford her a network of assistance with the children. In addition, Leeann’s work hours were more flexible than Edgar’s.

The trial court designated Leeann as the domiciliary parent, which is the sole issue in this appeal.

We annex hereto and adopt in toto the trial court’s ruling relative to its domiciliary assignment. The document is thorough, well-organized, and an incisive model of clarity. This court expresses its appreciation for a job well done.

EDGAR’S ARGUMENT ON APPEAL

Edgar argues that the trial court was manifestly erroneous by not fully considering the evidence or properly applying it to certain factors (1, 4, 12) under Art. 134.

Factor 1: Love, affection, and other emotional ties between the parties and the children

The trial court found that both parents loved the twins and were involved in their upbringing.

Edgar argues that the evidence shows:

|4« a strong emotional tie between Edgar and his children and a lack of emotional connection between Leeann and the twins;
• Leeann contracted away her parental rights while the twins were still in her womb, and she held herself out as their aunt and not their mother;
• Leeann saw the twins only once a month after they were born and even those visits were not maternal visits;
• he cared for the twins from the time they were born until the issuance of the instanter order in August of 2011; and
• the twins were not meaningfully in Leeann’s care until October of 2011.

Leeann responds that Jessica Byrd, a social worker assigned to the twins, testified that the twins had a hard time separating from both Edgar and Leeann. Carol Jung, a friend of both parents, testified that the twins love both parents.

Factor 4: Length of time in a stable, adequate environment, and the desirability of maintaining continuity of same

The trial court concluded that the existing temporary custody arrangement had not been damaging to the twins and had worked well.

Edgar argues that:

• the continuity to be considered should not be limited to the start of litigation but should go back to the birth of the children;
• he cared for the twins from birth until the issuance of the instanter order; and
• the court did not find that he had provided an inadequate or unstable environment for the twins.

Leeann responds that:

• it is insignificant that the twins lived with Edgar for their first two years because she was also living there;
• Edgar has not provided the twins with a stable environment, in that he | ¡¡moved from Monroe to Calhoun to Columbia and then to Grayson during the first two years of the lives of the twins;
• he now lives in a small mobile home in Columbia within 2.5 miles of 17 registered sex offenders;
• Rebecca has an arrest record relating to traffic matters and bad checks; and
• Edgar is an illegal alien.

Factor 12: Care for and rearing of the children previously exercised by each party

Social worker Byrd testified that Edgar told her that Leeann helped care for the twins. The record also preponderates that Leeann may have been afraid to take the twins with her when she returned to her parents in 2011 because of the bogus written agreement and because of threats from Rebecca Morales. She sued to obtain custody within a few days of returning to be with her parents.

The Other Nine Factors

The remaining factors of Art. 134 either favor Leeann or are inconclusive. These appear to have played no part in the trial court’s decision.

OUR ANALYSIS

These parents are flawed, as are we all. Doubtless each litigant regrets certain actions taken in the past.

Our duty in this appeal is to decide whether it was manifestly erroneous or clearly wrong to designate Leeann as the domiciliary parent. We cannot make that finding on these consolidated records.

The trial court found this case to be close. We agree, and it is 1 fiprobable that had the trial court ruled the other way, we would be constrained to affirm that judgment. As it is, we affirm the judgment below.

DECREE

At the cost of Edgar Morales, the judgment is AFFIRMED.

APPENDIX

REBECCA LEEANN RAMSEY

VERSUS NO. C.D. 44,649 consolidated with C.D. 44,656 & JD 7168

EDGAR MORALES

THIRD JUDICIAL DISTRICT COURT

STATE OF LOUISIANA

PARISH OF UNION

Filed November 2, 2012 [illegible signature] Clerk

|,RULING

A. REBECCA LEEANN RAMSEY (hereinafter referred to as “Miss Ramsey”, filed a Petition for Custody on August 18, 2011.

B. EDGAR MORALES and REBECCA MORALES (hereinafter referred to as “Mr. Morales and/or Mrs. Morales” as appropriate) filed a Rule for Custody and Ex parte Order for Temporary Custody on August 23, 2011.

C. By Order of this Court of August 24, 2011, C.D. # 44,656 was re-assigned to Division C, as C.D. # 44,-649 had been previously and the cases consolidated for trial.

D. The Trial of this matter was initially begun on the 5th day of March, 2012. For reasons pertaining to scheduling, as reflected in the transcripts, the matter was recessed and concluded on multiple dates as follows, to-wit:

March 5, 2012

April 30, 2012

July 2, 2012

August 27, 2012

September 7, 2012

E. Oral arguments were had, before the Court, on the 4th day of October, 2012. After hearing the arguments the Court took the matter under advisement so as to issue a written ruling which the Court now delivers.

F. Mrs. Morales, by stipulation of the parties immediately prior to closing arguments, was dismissed as a party to this litigation.

I ¡¿aw

The paramount consideration in any determination of child custody is the best interest of the child. Evans v. Lungrin, 97-0541 (La.2/6/98), 708 So.2d 731; Hoskins v. Hoskins, 36,031 (La.App.2d Cir.4/5/02), 814 So.2d 773; Masters v. Masters, 33,438 (La.App.2d Cir.4/5/00), 756 So.2d 1196, writ denied, 01-3096 (La.12/7/01), 803 So.2d 975. La. C.C. art. 134 provides a non-exclusive list of factors which the trial court may consider with all other relevant factors for the determination of the best interest of the child. La. C.C. art. 131, provides, “The court shall consider all relevant factors in determining the best interest of the child. Such factors may include:

I. The love, affection and other emotional ties between each party and the child.
II. The capacity and disposition of each party to give the child love, affection and spiritual guidance and to continue the education and rearing of the child, clothing, medical care, and other material needs.
III. The length of time the child has lived in a stable, adequate environment, and the desirability of maintaining continuity of that environment.
IV. The permanence, as a family unit, of the existing or proposed custodial home or homes.
V. The moral fitness of each party, insofar as it affects the welfare of the child.
VI. The mental and physical health of each party.
VII. The home, school, and community history of the child.
VIII. The reasonable preference of the child, if the court deems the child to be of sufficient age to express a preference.
IX. The willingness and ability of each party to facilitate and encourage a close and continuing relationship between the child and the other party.
X. The distance between the respective residences of the parries.
XI. The responsibility for the care and rearing of the child previously exercised by each party.”

The consideration of all relevant factors under Article 131 should be followed in actions to change custody, as well as in those to fix custody initially. The court is not bound to make a mechanical evaluation of all the statutory factors listed in La. C.C. art. 131, but should decide each case on its own facts in light of those factors. The court is not bound to give more weight to one factor over another; and, when determining the best interest of the child, the factors must be weighted and balanced in view of the evidence presented. Hos-kins, supra. Moreover, the factors are not exclusive, but are provided as a guide to the court, and the relative weight given to each factor is left to the discretion of the trial court. Id.

This Court has evaluated the current situation in light of a number of cases including, but not limited to those cited by respective counsel.

| .¡According to an examination of the relevant case law, this Court is compelled to believe that focusing on just one element, under La. C.C. art. 131 to the exclusion of others is frowned upon by our appellate Courts, regardless of what a Court’s personal preferences may be.

Each parent has exhibited behavior which periodically puts their respective self-interests above that of their children.

This Court cannot find under La.CC. art. 132 and 13k, “that custody in one parent is shown by clear and convincing evidence to serve the best interest of the child,” necessary for a sole custody award. Each' parent is burdened by limitations and neither has been totally beyond reproach in his or her conduct as concerns the issues at bar.

The allegations made by each side, toward the other, have been extraordinarily salacious and detailed. However, as acknowledged in closing arguments by both counsel, most, if not all of the purported sexual and other related ‘moral fitness’ issues took place prior to the birth of the children.

Therefore, as concerns La.C.C. Art. 134(6), this Court bears in mind the admonitions of our higher courts and their instructions relative thereto, which this Court is obligated to follow, to-wit:

“Factor (6) of this Article has been amended in order to state what is believed to be the the better rule on the much-litigated issue addressed by it. Its predecessor, factor (f) of Civil Code Article 131(C)(2) (1992), read simply “(t)he moral fitness of the parties involved.” The language added here brings the statutory provision into line with the fundamental principle that the purpose of every custody award is to secure the best interest of the child, not to regulate the behavior of his parents. Stephenson v. Stephenson, 404 So.2d 963 (La.1981) (upholding award of custody to wife whose past adulterous behavior was not shown to have had any detrimental effect on the children); Cleeton v. Cleeton, 383 So.2d 1231 (La.1980) (same). See also Monsour v. Monsour, 347 So.2d 203 (La.1977) (same: primary consideration was welfare of child, not past misconduct of custodian.) But see Bagents v. Bagents, 419 So.2d 460 (La.1982) (upholding change of custody from mother who had lived in open concubinage in the custodial home). The rule embodied in this Article should apply not only to past misconduct, as in the cases just cited, but also to continuing immorality that does not harm the child. See Rollins v. Rollins, 521 So.2d 647 (La.App. 1st Cir.1988), writ denied, 522 So.2d 573 (La.1988) (joint custody not modified where there was no showing that mother’s discrete illicit relationship had detrimental effect on child); Montgomery v. Marcantel, 592 [591] So.2d 1272 (La.App. 3d Cir.1991) (change of custody to sole custody in wife due to father’s living in concubinage reversed in absence of evidence of detrimental effect on child); Peters v. Peters, 449 So.2d 1272 [1372] (La.App. 2d Cir.1984) (upholding judgment refusing to take child from custody of mother who was living in concubinage with man she planned to marry); Peyton v. Peyton, 457 So.2d 321 (La.App. 2d Cir.1984) (upholding equal joint custody award where both parents were engaged in discrete sexual relationships that had no adverse effect upon the child.)” comments to La.C.C.Art. 134.(6).

As stated hereinabove, the paramount consideration in any determination of custody is the best interest of the child. La. CC art. 131; Evans v. Lungrin, 97-0541 (La.2/6/98), 708 So.2d 731. La. CC Art. 134 sets forth the factors that shall be considered in determining the best interest of a child for custody issues.

FACTS AND REASONING

The Court has reviewed all exhibits introduced, the suit record and listened to all testimony offered. The Court also was able to observe the demeanor of the witnesses. Pursuant thereto, the Court makes the following findings of fact.

The evidence and arguments presented to this Court sought to address a majority of the factors set forth in La. C.C. art. 134. Miss Ramsey and Mr. Morales both indicate their love for the children and there was no evidence that either is better suited to give the child love affection, spiritual guidance, or to continue with the rearing and education of the minor children. Both parties have the capacity to provide the minor child with food, clothing, medical care and other material needs.

There was no evidence presented to indicate that either party was morally unfit, insofar as the welfare of the minor children are affected and in light of the aforementioned comments to La.C.CArt. 134(6).

There was no testimony that either party is currently unwilling to facilitate or encourage a close and continuing relationship between the minor children and the other party, nor was there any testimony as to any preference of the minor children.

The testimony that was presented as to the remaining factors to be considered by the Court include the following, to-wit:

The existing temporary custody arraignment has not been toxic and the evidence reflects it has worked rather well.

It is generally agreed that each party loves the children and is currently involved in the upbringing.

As is often the case, each party offered a list of accusations against the other, but, unless otherwise noted, this Court believes them to be mainly inconsequential or moot.

Mr. Morales has no close family that permanently reside in this area. According to counsel for Miss Ramsey, it may very well be that he may relocate again as he has previously or leave this country altogether. However, that is not where the burden lies. The Court is not allowed to speculate on such.

Gray v. Gray, 65 So.3d 1247 (La.7/1/11) was particularly instructive to this Court, even if not dispositive of the specific contested matters at bar. The Louisiana Supreme court, in the body of its ruling and in footnotes, reminds us, that our purposes here are neither to punish nor reward parents, but rather to seek the children’s best interest Relative inconvenience, however transient, cannot overcome our obligation to the children, law and evidence.

1. Miss Ramsey and Mr. Morales are not and were never married.
2. Mr. Morales and Mrs. Morales are married and were so at all time pertinent to this litigation.
3. Miss Ramsey and Mr. Morales entered into an extra-marital relationship resulting in Miss Ramsey becoming pregnant.
4. Subsequently, two children, twins were born, namely: [redacted], date of birth: October 21, 2009 and, [redacted], date of birth: October 21, 2009.
5. Mr. Morales is employed full time in a ‘tree service’ which is owned by his spouse. Mrs. Morales also works as manager of this tree service which she owns.
6. Mr. Morales came to this country illegally. His exact current immigration status seems to be of some dispute, but the Court finds that the evidence preponderates that he is still here illegally. The evidence did certainly preponderate that he has yet to obtain full legal status in the United States of America.
7. Miss Ramsey was born and raised in northern Union Parish, Louisiana and although she has temporarily resided elsewhere, she is now living with her parents in the Laran community of northern Union Parish, Louisiana. Her family’s ties to Union Parish are lengthy and strong.
8. Miss Ramsey became pregnant while she, Mr. and Mrs. Morales and others were essentially residing under the same roof.
9. The children are generally healthy and being treated by competent physicians for the health problems which they do have.
10. Mr. and Mrs. Morales now live in Caldwell Parish, Louisiana.
| (¡11. There is much that is disputed as concerns the various salacious allegations being tossed about by the parties against one another. What the parties seem to agree on is that most, if not all of these allegations occurred prior to the birth of the children.
12. Miss. Ramsey, while younger, was in an adulterous relationship with Mr. Morales.
18. The evidence represents that Miss Ramsey was at least transiently in a lesbian relationship with another young woman.
14. Miss Ramsey testified and the other testimony supports her contention that she is no longer in a lesbian relationship and no longer desires one.
15. According to the version of events accepted as true, Mrs. Morales at least tacitly condoned the relationship of her husband and Miss Ramsey, if she did not outright encourage it.

Considering the totality of the evidence and the law, the Court awards joint custody of the minor children to the parties and designates Miss Ramsey as the primary custodial or domiciliary parent. This is a close call, but the stability of the maternal family tips the scales in her favor. Miss Ramsey is to have custody for approximately 55% of the time. Each appears to be willing to address their problems as noted herein. Additionally, Miss Ramsey has more flexible job hours and a stable supportive family who have participated in helping her with the children. When the Court considers the factors in Civil Code Article 134, this is the more appropriate custody determination.

The Court also orders the parties to adopt a joint custody plan implementing the above and with standard provisions incorporating inter alia, the following:

1. No overnight guests of opposite sex to whom the parties are not related.
2. No consuming illicit drugs or excess alcohol when having the children.
8. Provide for regular telephone and email communication time with whomever is the non-custodial parent at that time.
4. A plan for how to share information when the other party has.the child.
5. Regular counseling for all parties to address communication and other issues for at least one year from the date of this judgment.
|76. Attending Children in the Middle within 90 days of this judgment.

At all times during this trial, Miss Ramsey had the assistance of an interpreter who was accepted by the Court as expert in interpreting the language in which she was tendered. The interpreter has provided a copy, received post-trial of a statement for her services. This has been provided to all counsel.

Normal procedure to tax an expert or attorney fee as costs would be to prove up the matter during the trial or in a separate post-trial hearing for that specific purpose.

In this case, the interpreter has asked for little, if any remuneration for time spent outside of the actual trial in the courtroom. This has been subject to the scrutiny and observation of the Court.

Therefore, for the purposes of equity and economy, the Court feels that it would present an unjust burden on all parties to have to appear at an additional hearing solely for the purpose of establishing the fee for the interpreter. Such a hearing would necessitate an additional appearance of the interpreter and thus further increase the costs.

The Court hereby taxes as cost hereof the interpreter’s fee as submitted, to be apportioned as are the other costs as provided elsewhere herein.

For purposes of this ruling, all eviden-tiary objections are to be considered disposed of in a manner so as to have allowed the evidence for the review of the Court.

Counsel for Mrs. Ramsey will prepare a judgment in accord herewith.

This matter is refixed on the docket for presentation of judgment and post-ruling conference at 9:00 a.m. December 3, 2012. Costs of Court are cast equally between the parries.

The Clerk of Court shall notify and provide a copy hereof to both attorneys of record.

/s/ Jay B. McCallum JAY B. McCALLUM JUDGE, THIRD JUDICIAL DISTRICT COURT

      . The agreement was clearly not drafted by an attorney and lacks any apparent legal efficacy.

      . In all, three separate suits were initiated in August of 2011.

      . Art. 134. Factors in determining child's best interest.
      The court shall consider all relevant factors in determining the best interest of the child. Such factors may include:
      (1) The love, affection, and other emotional ties between each party and the child.
      (2) The capacity and disposition of each party to give the child love, affection, and spiritual guidance and to continue the education and rearing of the child.
      (3) The capacity and disposition of each party to provide the child with food, clothing, medical care, and other material needs.
      (4) The length of time the child has lived in a stable, adequate environment, and the desirability of maintaining continuity of that environment.
      (5) The permanence, as a family unit, of the existing or proposed custodial home or homes.
      (6) The moral fitness of each party, insofar as it affects the welfare of the child.
      (7) The mental and physical health of each party.
      (8) The home, school, and community history of the child.
      (9) The reasonable preference of the child, if the court deems the child to be of sufficient age to express a preference.
      (10) The willingness and ability of each party to facilitate and encourage a close and continuing relationship between the child and the other party.
      (11) The distance between the respective residences of the parties.
      (12) The responsibility for the care and rearing of the child previously exercised by each party.

      . The joint custody agreement prepared by the court affords Edgar approximately 45% of the time with the children.

      . We have made a change on page 5 of the 7-page document, by blacking out the names of the children involved in this litigation.