text:
    Tricia SCHIRO v. John M. FARRELL.
    No. 2014-C-0131.
    Supreme Court of Louisiana.
    March 21, 2014.
   In re Schiro, Trida; — Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. P, No. 652-954; to the Court of Appeal, Fifth Circuit, No. 13-CA-635.

Prior report: La.App., 131 So.3d 997

Denied.

HUGHES, J., would grant.

HUGHES, J.,

dissenting.

| iWith respect, I dissent and would grant the writ. When Mr. Farrell entered into a consent judgment on August 31, 2011 I believe he waived any objection to the numbering error and I would recognize the substance of said judgment over the procedural issue.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    In re Clarence T. NALLS, Jr.
    No. 2013-B-2873.
    Supreme Court of Louisiana.
    May 7, 2014.
    Rehearing Denied July 1, 2014.

      Office of Disciplinary Counsel, Charles Bennett Plattsmier, Chief Disciplinary Counsel, G. Fred Ours, Deputy Disciplinary Counsel, for Applicant.
    Clarence Theo Nalls, Jr., Schiff, Scheck-man & White, Julie Brown White, for Respondent.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

|! This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Clarence T. Nalls, Jr., an attorney licensed to practice law in Louisiana, but currently suspended from practice.

PRIOR DISCIPLINARY HISTORY

Before we address the current charges, we find it helpful to review respondent’s prior disciplinary history.

In 2006, respondent and the ODC filed a joint petition for consent discipline with this court, proposing that respondent be suspended from the practice of law for one year and one day, fully deferred, subject to his successful completion of a two-year period of probation with conditions, for filing and pursuing a frivolous lawsuit on behalf of a client. On April 17, 2006, we accepted the petition for consent discipline and imposed a fully deferred one year and one day suspension, subject to a two-year period of probation. Our opinion specifically provided that “[a]ny 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.” In re: Nalls, 06-0257 (La.4/17/06), 926 So.2d 491 (“Nalls I”) (emphasis added). Respondent’s probationary period commenced October 1, 2006.

^Subsequently, the ODC learned that between August 2007 and November 2007, respondent may have committed misconduct by failing to turn over an original will to the attorney for the named executor of the will. As a result, the ODC filed a motion and rule to revoke respondent’s probation.

The matter proceeded to a hearing before an adjudicative panel of the disciplinary board. Following the hearing, the board recommended that respondent’s probation be revoked and he be suspended from the practice of law for one year and one day. Upon review, we revoked respondent’s probation and ordered that “the previously deferred one year and one day suspension imposed in In re: Nalls, 06-0257 (La.4/17/06), 926 So.2d 491, is hereby made immediately executory.” In re: Nalls, 08-2409 (La.1/16/09), 998 So.2d 697 (“Nalls II”) (emphasis added). Respondent applied for rehearing from this judgment. We denied rehearing on March 13, 2009. In re: Nalls, 08-2409 (La.3/13/09), 5 So.3d 110. Respondent has not yet sought reinstatement from this suspension and, thus, remains suspended from the practice of law.

Against this backdrop, we now turn to a consideration of the misconduct at issue in the present proceeding.

UNDERLYING FACTS

Count I — The Unauthorized Practice of Law Matter

As discussed above, respondent’s suspension in Nalls II became effective on January 16, 2009. On this date, respondent was already representing Wade Garner in a criminal matter and had filed a Petition for Certiorari with the United States Supreme Court. Respondent continued to correspond with Mr. Garner about | ¡¡the status of his case until at least April 14, 2010. Respondent also did not provide Mr. Garner with his file or an accounting of insurance proceeds Mr. Garner had entrusted to him as his attorney.

Additionally, on February 23, 2009, over one month after his suspension became effective, respondent agreed to represent Linder Shields in a wrongful termination case and collected a $2,500 advance fee. Respondent did not inform Ms. Shields of his suspension from the practice of law. Instead, respondent informed her that other attorneys with whom he was associated would make court appearances for him on her behalf. On June 11, 2011, Ms. Shields called the Louisiana State Bar Association and learned that respondent was suspended from the practice of law.

Count II — The Gamer Matter

During respondent’s representation of Mr. Garner, Mr. Garner’s wife passed away. Subsequently, Mr. Garner received life insurance benefits from Prudential Insurance, which proceeds were paid in the form of a checking account with an initial balance of $38,000. Prudential Insurance provided blank checks to Mr. Garner so he could access the funds in the account.

Because Mr. Garner was incarcerated at the time, he gave respondent power of attorney, and the Prudential Insurance proceeds were sent to respondent for safekeeping. However, respondent did not maintain any records of his handling of the funds. Respondent wrote checks drawn on the Prudential checking account payable to cash as follows: check no. 102 for $12,775 on April 19, 2007; check no. 103 for $2,000 on May 10, 2007; check no. 104 for $2,000 on June 1, 2007; check no. 105 for $4,000 on June 19, 2007; and check no. 106 for $2,400 on August 27, 2007. Other than documentation for administrative services on May 8, 2007, which may account for some or all of the May 10, 2007 check, there was not |4proper documentation showing the purpose of the checks, and the cashed checks were not deposited into respondent’s client’s trust account. Because of the lack of documentation, the ODC’s auditor concluded that respondent converted between $12,405.34 and $13,105.34 of Mr. Garner’s insurance proceeds.

DISCIPLINARY PROCEEDINGS

In September 2012, the ODC filed formal charges against respondent, alleging that his conduct as set forth above violated the following provisions of the Rules of Professional Conduct: Rules 1.15(a) (safekeeping property of clients or third persons), 1.15(d) (failure to timely remit funds to a client or third person), 1.16(d) (obligations upon termination of the representation), 5.5(a) (engaging in the unauthorized practice of law), 8.4(b) (commission of a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer), and 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation). Additionally, the ODC alleged that respondent’s conduct violated Supreme Court Rule XIX, § 28(A)(1)(2) (maintaining clearly identified trust accounts in financial institutions).

Respondent answered the formal charges, essentially denying any misconduct. He also filed a motion to dismiss the formal charges based on his belief that there was not clear and convincing evidence of misconduct on his part. The hearing committee chair denied the motion, and the matter proceeded to a formal hearing on the merits.

Hearing Committee Report

After considering the evidence and testimony presented at the hearing, the hearing committee found that respondent did not cease the practice of law immediately upon receiving notification of the court’s January 16, 2009 order in \ ¿Nalls II. He also failed to inform Mr. Garner and Ms. Shields of his suspension and accepted advance attorney’s fees from Ms. Shields during his suspension.

Furthermore, respondent did not provide Mr. Garner with either a copy of his file or a proper accounting of his funds. For example, respondent did not account for the legal fees he charged Mr. Garner. Respondent also failed to maintain Mr. Garner’s funds in a client trust account or acceptable escrow account and did not properly maintain financial records of said funds.

Based on these facts, the committee determined that respondent violated Rules 1.15(d), 1.16(d), 5.5(a), and 8.4(c) of the Rules of Professional Conduct in Count I and Rules 1.15(a) and 1.15(d) in Count II. Additionally, the committee determined that respondent violated Supreme Court Rule XIX, § 28(A)(1)(2) in Count II. The committee did not address the alleged violations of Rules 8.4(b) and 8.4(c) with respect to Count II. The committee also determined that respondent negligently violated duties owed to his clients.

In aggravation, the committee found a prior disciplinary record, a pattern of misconduct, refusal to acknowledge the wrongful nature of the conduct, vulnerability of the victim, and substantial experience in the practice of law (admitted 1982). The committee found no mitigating factors present.

After finding that the facts of this case do not warrant disbarment, the committee recommended that respondent be suspended from the practice of law for three years.

Both respondent and the ODC filed objections to the hearing committee’s report and recommendation. Respondent argued that he should receive no discipline or, in the alternative, should receive no more than a public reprimand. The ODC argued that either disbarment or permanent disbarment is warranted.

_J^Disciplinary Board Recommendation

After review, the disciplinary board determined that the hearing committee’s factual findings do not appear to be manifestly erroneous, with a few exceptions related to the ODC’s audit of Mr. Garner’s insurance proceeds. Notably, based on the testimony and the documentary evidence, the board determined that the portion of the $88,000 in proceeds that could not be accounted for was $9,899.50, as opposed to the $12,405.34 to $13,105.34 found to be unaccounted for by the ODC’s auditor.

Based on these findings, the board determined that respondent violated Rules 1.15(d), 1.16(d), 5.5(a), and 8.4(c) of the Rules of Professional Conduct in Count I. In Count II, the board determined that respondent violated Rule 1.15(a) but not Rules 1.15(d), 8.4(b), or 8.4(c). The board also determined that respondent violated Supreme Court Rule XIX, § 28(A)(1)(2).

The board further determined that respondent knowingly, if not intentionally, violated duties owed to his clients and the legal profession. Respondent caused serious harm to Mr. Garner by failing to account for approximately $10,000 of his funds. Respondent also harmed Ms. Shields in that his failure to disclose his suspension from the practice of law appears to have contributed to a delay, if not neglect, of her legal matter. Furthermore, respondent harmed the legal profession by continuing to represent himself as an attorney authorized to practice law after his suspension. Relying on the ABA’s Standards for Imposing Lawyer Sanctions, the board determined that the baseline sanction is disbarment.

In aggravation, the board found the following factors: a prior disciplinary record, a dishonest or selfish motive (with respect to the unauthorized practice of law), a pattern of misconduct, refusal to acknowledge the wrongful nature of the 17conduct, vulnerability of the victim, and substantial experience in the practice of law. The board found no mitigating factors present.

After considering this court’s prior jurisprudence addressing similar misconduct, as well as the permanent disbarment guidelines set forth in Supreme Court Rule XIX, Appendix E, the board recommended that respondent be disbarred. The board also recommended that respondent provide an accounting and restitution to Mr. Garner.

Both respondent and the ODC filed objections to the disciplinary board’s recommendation. Accordingly, the case was docketed for oral argument pursuant to Supreme Court Rule XIX, § 11(G)(1)(b).

DISCUSSION

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. While we are not bound in any way by the findings and recommendations of the hearing committee and disciplinary board, we have held the manifest error standard is applicable to the committee’s factual findings. See In re: Caulfield, 96-1401 (La.11/25/96), 683 So.2d 714; In re: Pardue, 93-2865 (La.3/11/94), 633 So.2d 150.

The record of this matter indicates that respondent engaged in the unauthorized practice of law following his suspension, failed to inform Mr. Garner and Ms. Shields of his suspension, collected a fee from Ms. Shields following his suspension, failed to provide Mr. Garner with a copy of his file upon request, and failed to properly manage and account for Mr. Garner’s funds. Given this | Rmisconduct, respondent violated the Rules of Professional Conduct and Supreme Court Rule XIX, § 28(A)(1)(2) as found by the disciplinary board.

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 high 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).

We find respondent knowingly, if not intentionally, violated duties owed to his clients and the legal profession. As an attorney with substantial experience in the practice of law, respondent should have known that his conduct was improper, especially with respect to his failure to notify his clients and opposing counsel of his suspension and his mishandling of Mr. Garner’s insurance proceeds. Furthermore, respondent caused substantial harm to Mr. Garner in that he is unable to account for almost $10,000 of Mr. Garner’s funds. He also caused harm to the legal profession and potential harm to Ms. Shields. Under the circumstances, we find the applicable baseline sanction in this matter is disbarment.

The record supports the following aggravating factors: a prior disciplinary record, a pattern of misconduct, refusal to acknowledge the wrongful nature of the conduct, vulnerability of the victim, and substantial experience in the practice of law. There are no mitigating factors present.

Turning to the issue of an appropriate sanction, the most serious misconduct relates to respondent’s unauthorized practice of law. In this area, our jurisprudence focuses on the attorney’s state of mind. When the authorized practice of law is the |9result of negligence, we generally impose a suspension. For example, in In re: Jackson, 02-3062 (La.4/9/03), 843 So.2d 1079, a suspended attorney sat in on two depositions and did not inform the other parties that he was suspended from the practice of law. During one of the depositions, the suspended attorney asked several questions of the deponent. For this misconduct, we imposed a two-year suspension with all but one year and one day deferred.

However, when an attorney intentionally engages in the unauthorized practice of law with clear disregard of the authority of this court, we have consistently found such a violation warrants a sanction of disbarment or permanent disbarment. For example, in In re: Lindsay, 07-1813, p. 4 (La.3/7/08), 976 So.2d 1261, 1263, we stated:

It is well settled that the unauthorized practice of law by a suspended or disbarred attorney is very serious misconduct. In re: Jackson, 02-3062 (La.4/9/03), 843 So.2d 1079. In general, when the attorney has manifested a conscious intent to flout the authority of this court by practicing after being prohibited from doing so, we have not hesitated to impose disbarment. See, e.g., In re: Jones, 99-1036 (La.10/19/99), 747 So.2d 1081 (attorney disbarred for engaging in the unauthorized practice of law on four occasions, after being suspended in the past for similar misconduct). [Emphasis added.]

In the instant case, respondent suggests he acted in good faith because he believed this court’s judgment suspending him in Nalls II was not final due to the pendency of his rehearing application. However, as noted previously, the clear language of our judgment in Nalls II, as well as the provisions of Supreme Court Rule XIX, § 26(E), make it clear the January 16, 2009 judgment suspending respondent’s license to practice law took effect immediately and was not subject to suspension during the rehearing delays.

| inMoreover, even assuming respondent believed the court’s judgment was not final in January 2009, we find respondent acted imprudently in accepting a $2,500 advance fee in February 2009 without advising his client there was a likelihood he would not be able to complete the representation. Respondent further sought to mislead his client in an apparent attempt to cover up his suspension by advising her other attorneys would appear in court on her behalf. These actions reveal respondent acted with deceit and placed his own interests ahead of the client’s best interests. Under these circumstances, we conclude respondent knowingly and willfully attempted to practice law in disregard of this court’s order of suspension. Disbarment is the appropriate sanction for such misconduct.

We further agree with the board that respondent mishandled Mr. Garner’s funds. Having found respondent’s unauthorized practice of law warrants disbarment, we will not impose a separate sanction for this misconduct; however, we will order respondent to render an accounting and make full restitution to Mr. Garner.

Accordingly, we will accept the board’s recommendation and disbar respondent. We will further order respondent to provide an accounting to Mr. Garner and make full restitution, as appropriate.

DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, briefs, and oral argument, it is ordered that Clarence T. Nalls, Jr., Louisiana Bar Roll number 1500, be and he hereby is disbarred. His name shall be stricken from the roll of attorneys and his license to practice law in the State of Louisiana shall be revoked. It is further ordered that respondent provide an accounting to Wade Garner and make full restitution, as appropriate. All costs and expenses in the matter are assessed |n 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.

      . Although respondent sought a rehearing, this rehearing application did not prevent his suspension from becoming effective in light of our order making the suspension effective immediately. See Supreme Rule XIX, § 26(E) (providing that court orders imposing discipline “are effective in accordance with La. C.C.P. Art. 2167, unless otherwise ordered.") [Emphasis added.]

      . See footnote 1, supra.


author: PER CURIAM. CLARK, J.,

text:
    In re Elizabeth Ashley BRUNET-ROBERT.
    No. 2013-B-2929.
    Supreme Court of Louisiana.
    May 7, 2014.

      Office of Disciplinary Counsel, Charles Bennett Plattsmier, Chief Disciplinary Counsel, James William Standley, IV, Assistant Disciplinary Counsel, for Applicant.
    Elizabeth Ashley Brunet-Robert, Henry Howard Lemoine, Jr., Pineville, for Respondent.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

11 This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Elizabeth Ashley Brunet-Robert, an attorney licensed to practice law in Louisiana but currently on interim suspension for threat of harm to the public. In re: Brunet-Robert, 09-2476 (La.11/18/09), 21 So.3d 933.

UNDERLYING FACTS

The underlying facts of this matter are not in dispute, having been stipulated to by the parties. The stipulations may be summarized as follows:

On January 31, 2006, respondent was arrested in St. Landry Parish and found to be in possession of methamphetamine. On September 1, 2009, respondent represented to the 27th Judicial District Court that she was entering into the district attorney’s diversionary program. The matter was then continued without date.

During the month of November 2008, respondent issued sixteen checks drawn on her brother’s checking account without his authorization or consent. These checks totaled approximately $2,000.

On December 17, 2008, respondent sold an oxycodone tablet to an undercover police officer in Evangeline Parish for $40 in cash. Respondent was arrested and charged with distribution of a Schedule II controlled dangerous [gsubstance. On October 21, 2009, respondent pleaded guilty to a reduced charge of possession of a Schedule II controlled dangerous substance. She was sentenced to serve four years at hard labor, with three and a half years suspended, and placed on four years active supervised probation.

On April 1, 2009, respondent was arrested in St. Landry Parish and charged with being a principal to monetary instrument abuse and a principal to theft in the amount of $700. This incident involved the cashing of four checks in the name of respondent’s father without his authorization or consent.

On January 5, 2009, February 25, 2009, and October 15, 2009, respondent was found in contempt for failing to appear in court in Evangeline Parish.

DISCIPLINARY PROCEEDINGS

In April 2011, the ODC filed formal charges against respondent, alleging that her conduct as set forth above violated the following provisions of the Rules of Professional Conduct: Rules 8.4(b) (commission of a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer), 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation), and 8.4(d) (engaging in conduct prejudicial to the administration of justice). Respondent and the ODC subsequently entered into a joint stipulation of facts, in which respondent stipulated to the facts as alleged by the ODC and admitted that she violated the Rules of Professional Conduct as charged. This matter then proceeded to a hearing in mitigation.

Hearing Committee Report

After considering the evidence and testimony presented at the hearing, the hearing committee accepted the joint stipulation of facts and rule violations filed by the parties. The committee determined that respondent acted intentionally with | ^respect to the stipulated violations of Rules 8.4(b), 8.4(c), and 8.4(d) of the Rules of Professional Conduct.

In aggravation, the committee found multiple offenses and illegal conduct, including that involving the use of controlled substances. Although respondent claims that she no longer uses any type of illegal or illicit drugs and has been sober since 2009, she does not participate in the Lawyers Assistance Program (“LAP”) because she continues to use prescribed controlled substances (including hydrocodone and Xanax) to treat Crohn’s disease, an autoimmune-related inflammatory disease from which she suffers. As such, there is no monitoring verification of her claim of sobriety. Furthermore, controlled prescription medications have significant side effects, including sedation and impaired cognitive and executive function, all of which are incompatible with an attorney’s fiduciary responsibilities. Although she has been in three different treatment centers, witnesses offered conflicting evidence as to her successful completion of a drug rehabilitation program. Respondent does not attend AA or NA at this time. All but one witness agreed that she needed a more complete rehabilitation before resuming the practice of law.

In mitigation, the committee found the absence of a prior disciplinary record. The committee also pointed out that respondent’s violations did not arise out of an attorney-client relationship and that she has not engaged in the active practice of law. She has made full restitution of all checks written on her brother’s bank account and has attempted substance abuse rehabilitation. She has fully cooperated with the disciplinary board and has demonstrated severe remorse for her misconduct.

14After reviewing the jurisprudence, the aggravating and mitigating factors, the case law, and in particular, respondent’s demeanor at the hearing, the committee recommended respondent be suspended from the practice of law for three years, retroactive to the date of her interim suspension, followed by probation. The committee also recommended she be assessed with the costs and expenses of this matter.

The ODC filed an objection to the leniency of the sanction recommended by the hearing committee.

Disciplinary Board Recommendation

After review, the disciplinary board determined that the hearing committee’s findings of fact do not appear to be manifestly erroneous, as they are supported by the joint stipulation of the parties. The board likewise determined that the committee correctly applied the Rules of Professional Conduct.

The board determined respondent knowingly violated duties owed to the public, the legal system, and the legal profession by engaging in criminal activity and by failing to appear in court on several occasions, which resulted in her being held in contempt. She acted knowingly, if not intentionally, and caused actual injury by her misconduct. Although her misconduct occurred outside the practice of law and did not involve any clients, she engaged in serious criminal misconduct. Citing the ABA’s Standards for Imposing Lawyer Sanctions, the board determined the applicable baseline sanction in this matter is disbarment.

|sIn aggravation, the board found the following factors: a dishonest or selfish motive, a pattern of misconduct, multiple offenses, and illegal conduct, including that involving the use of controlled substances. In mitigation, the board found the following factors: absence of a prior disciplinary record, personal or emotional problems, timely good faith effort to make restitution or to rectify the consequences of the misconduct, full and free disclosure to the disciplinary board and a cooperative attitude toward the proceedings, imposition of other penalties or sanctions, and remorse.

Turning to the issue of an appropriate sanction, the board determined respondent’s actions can be attributed to her severe depression combined with the adverse effects of drug abuse. While these factors do not excuse her misconduct, they justify a downward deviation from the baseline sanction of disbarment.

Considering the prior jurisprudence of this court, the board recommended respondent be suspended from the practice of law for three years, retroactive to the date of her interim suspension. The board also expressed a sincere hope that respondent will seek adequate treatment by successfully completing an inpatient substance abuse rehabilitation program and entering into a monitoring contract with LAP before applying for reinstatement to the practice of law. The board further recommended she be assessed with the costs and expenses of this matter.

The ODC filed an objection to the disciplinary board’s recommendation. Accordingly, the case was docketed for oral argument pursuant to Supreme Court Rule XIX, § 11(G)(1)(b).

^DISCUSSION

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. While we are not bound in any way by the findings and recommendations of the hearing committee and disciplinary board, we have held the manifest error standard is applicable to the committee’s factual findings. See In re: Caulfield, 96-1401 (La.11/25/96), 683 So.2d 714; In re: Pardue, 93-2865 (La.3/11/94), 633 So.2d 150.

Considering the stipulations of the parties and the factual findings of the hearing committee, we find the ODC has established the violations of the Rules of Professional Conduct as set forth in the formal charges. 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 high 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’s criminal conduct, including possession of a controlled dangerous substance, is serious in nature and warrants a baseline sanction of disbarment. See, e.g., In re: Alexander, 10-0950 (La.6/25/10), 37 So.3d 999 (attorney disbarred based on conviction of distribution of controlled dangerous substances). Nonetheless, in recommending a downward deviation from this |7baseline sanction, both the hearing committee and disciplinary board placed emphasis on respondent’s substance abuse problems as a mitigating factor.

We have long recognized that an attorney’s substance abuse is not a defense to a charge of professional misconduct, but may be considered in mitigation. In the seminal case of Louisiana State Bar Ass’n v. Longenecker, 538 So.2d 156, 163 (La.1988), we stated:

The most difficult consideration involving penalty, as pointed out by the Bar Association, is the weight to be given to respondent’s alcoholism during the pertinent period of practice and to his subsequent rehabilitation. While voluntary intoxication is not a defense to charges of professional misconduct, the fact of alcoholism may be an appropriate consideration in determining the mental state of the attorney and the culpability for commission of fraudulent acts. This consideration is particularly appropriate as a factor in mitigation when the attorney has subsequently undertaken to rehabilitate himself and has been continu-ingly successful in recovering from the disease of alcoholism, especially if the clients did not sustain substantial harm.

Mindful of these principles, we agree with the board that respondent’s misconduct can be largely attributed to her chemical dependency. As a result, a downward deviation from the baseline sanction of disbarment to a three-year suspension is appropriate.

Nonetheless, we caution respondent that we will not consider any application for reinstatement unless and until she demonstrates a full and sustained commitment to recovery. While respondent has apparently made some tentative efforts toward rehabilitation, the evidence in the record indicates she has failed to avail herself of a full treatment program or enter into a formal recovery agreement with LAP.

In particular, we call respondent’s attention to Supreme Court Rule XIX, § 24(E)(3), which states:

I «If the lawyer was suffering under a physical or mental disability or infirmity at the time of suspension or disbarment, including alcohol or other drug abuse, the disability or infirmity has been removed. Where alcohol or other drug abuse was a causative factor in the lawyer’s misconduct, the lawyer shall not be reinstated or readmitted unless:
(a) the lawyer has pursued appropriate rehabilitative treatment;
(b) the lawyer has abstained from the use of alcohol or other drugs for at least one year; and
(c) the lawyer is likely to continue to abstain from alcohol or other drugs.

Should respondent decide to seek reinstatement in the future, she will be required to show compliance with each subsection of Rule XIX, § 24(E)(3) before being allowed to return to the practice of law. In any event, and regardless of respondent’s future intention to resume the practice of law, we strongly encourage her to avail herself of the resources of LAP so that she may experience recovery from chemical dependency and return to a healthy and productive life.

DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, briefs, and oral argument, it is ordered that Elizabeth Ashley Brunet-Robert, Louisiana Bar Roll number 28879, be and she hereby is suspended from the practice of law for three years, retroactive to November 18, 2009, the date of her interim suspension. 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.

CLARK, Justice, dissents and assigns reasons.

CLARK, J.,

dissenting.

Iiln Louisiana State Bar Ass’n v. Lon-geneclcer, 538 So.2d 156, 163 (La.1988), as quoted by the majority, we said that an attorney’s substance abuse may be considered in mitigation. I agree with the disciplinary board that respondent’s chemical dependency is not a mitigating factor in this case. Respondent continues to use drugs for her Crohn’s disease, she has not completed a drug rehabilitation program, and as long as she continues to use controlled substances regularly, her recovery cannot be monitored by the LAP.

Respondent not only used illicit drugs, she sold them, and she stole from her brother and father. She committed twenty acts of forgery. Respondent’s reprehensible conduct calls for a baseline sanction of disbarment. How can this Court claim to be maintaining high standards of conduct, protecting the public, preserving the integrity of the profession, and deterring future misconduct, if it allows a drug dealer and thief to remain a member of the bar?

Believing that disbarment is the appropriate sanction, I dissent.

      . The committee cited In re: Blanche, 12-0552 (La.6/22/12), 90 So.3d 1034 (attorney suspended for three years for conduct including criminal charges of creating and operating a laboratory used to manufacture a controlled dangerous substance, possession of methamphetamine, and driving while intoxicated), and In re: Martin, 04-0170 (La.12/1/04), 888 So.2d 178 (attorney suspended for three years based on criminal charges resulting from the discharge of a firearm during a domestic disturbance while the attorney was intoxicated).

      . The board declined to accept respondent's contention that her chemical dependency is a mitigating factor. The board reasoned that respondent is still using controlled substances for her Crohn’s disease, and she has not successfully completed a drug rehabilitation program. As long as she continues to use controlled substances on a regular basis, respondent’s rehabilitation or recovery cannot be monitored by LAP.

      . We later granted rehearing in Longenecker to modify the sanction imposed, but the rehearing did not affect the reasoning of our opinion on original hearing.


author: PER CURIAM. KNOLL, J.,

text:
    In re Sean Daniel ALFORTISH.
    No. 2013-B-2424.
    Supreme Court of Louisiana.
    May 7, 2014.

      Office of Disciplinary Counsel, Charles Bennett Plattsmier, Chief Disciplinary Counsel, G. Fred Ours, Deputy Disciplinary Counsel, for Applicant.
    Sean Daniel Alfortish, Schiff, Scheck-man & White, Leslie J. Schiff, Julie Brown White, for Respondent.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

| ,This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Sean Daniel Alfortish, an attorney licensed to practice law in Louisiana but currently on interim suspension based upon his conviction of a serious crime. In re: Alfortish, 11-2190 (La.10/19/11), 72 So.3d 850.

UNDERLYING FACTS

Respondent was admitted to the practice of law in Louisiana in 1998. After admission, respondent maintained a private law practice. He also served as a magistrate judge in Kenner.

In March 2005, respondent was elected as president of the Louisiana Horsemen’s Benevolent and Protective Association 1993, Inc. (hereinafter referred to as the “HBPA” or the “association”), a non-profit corporation recognized by law as the representative of horse owners and trainers in the State of Louisiana. In March 2008, respondent was reelected to a second term as HBPA president. He served in that capacity until November 2010, when he was indicted by a federal grand jury in the Eastern District of Louisiana on twenty-nine counts of conspiracy and fraud charges relating to the HBPA.

In August 2011, respondent pleaded guilty to one felony count of conspiracy to commit mail, wire, healthcare, and identification document fraud; the remaining 12counts of the indictment were dismissed pursuant to a plea agreement with the Government. In the factual basis accompanying the guilty plea, respondent admitted that he and others conspired to rig the outcome of the March 2008 HBPA elections. An object of the conspiracy was to reelect respondent as HBPA president and to elect his favored candidates as members of the association’s board of directors. In order to accomplish the object of the conspiracy, respondent and his co-conspirators prepared and cast falsified election ballots. Following the counting of the ballots, respondent was declared to be the winner of the election for president, and likewise, all of respondent’s candidates for the HBPA board of directors were elected. When these election results were subsequently challenged pursuant to the HBPA bylaws, respondent presided over the hearing held in the matter, knowing that he had participated in mailing falsified ballots, and directed others to do so.

Another object of the conspiracy was to defraud the Horsemen’s Medical Benefits Trust, which received statutorily dedicated funds out of horse racing proceeds to operate a medical benefit plan for Louisiana horsemen. Respondent admitted in the factual basis that he systematically diverted funds from the trust for his own benefit under the pretense of paying administrative expenses, when in fact most of the expenses had nothing to do with the administration of medical claims.

|sIn February 2012, respondent was sentenced to serve 46 months in a federal penitentiary, followed by a three-year period of supervised release. Respondent was also ordered to pay $105,141 in restitution to the HBPA. The restitution obligation has been satisfied.

DISCIPLINARY PROCEEDINGS

In November 2011, the ODC filed one count of formal charges against respondent, alleging that his conduct as set forth above violated Rules 8.4(b) (commission of a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer) and 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation) of the Rules of Professional Conduct. Respondent answered the formal charges and admitted his conviction, but requested a hearing in mitigation. The disciplinary proceeding was then stayed pending respondent’s sentencing.

Following sentencing, the stay was lifted and this matter was set for a hearing before the hearing committee. Respondent filed a pre-hearing memorandum in which he acknowledged that his misconduct warranted ordinary disbarment; however, he argued that he should be permitted to apply for readmission to the practice of law in the future. In its pre-hearing memorandum, the ODC argued that respondent has engaged in criminal conduct involving insurance fraud, thereby warranting consideration of the sanction of permanent disbarment under Guideline 6 of the permanent disbarment guidelines set forth in Supreme Court Rule XIX, Appendix E.

_[4Formal Hearing

After several continuances of this matter, the formal hearing was conducted by the hearing committee in March 2013. The ODC introduced documentary evidence pertaining to respondent’s criminal conviction and then rested.

Respondent testified on his own behalf before the committee. Respondent also called several character witnesses to testify in person, and introduced copies of 38 supporting letters and e-mails submitted to the federal court in connection with his sentencing.

In his testimony before the committee, respondent explained that he is not a “thief,” nor is he a dishonest person. Respondent acknowledged that he is bound by the factual basis of his guilty plea but also indicated that the factual basis does not express a true picture of his conduct. Respondent testified that he regrets his actions, particularly because of their effect on his family, friends, and the legal profession. Respondent concluded by urging the committee not to recommend permanent disbarment for “this one isolated incident that seems to follow me like a black cloud throughout my life.”

Hearing Committee Report

After considering the testimony and evidence presented at the hearing, the hearing committee made the following factual findings:

lain 2012, respondent pleaded guilty to a single felony count of conspiracy to commit mail, wire, identity document, and healthcare fraud. The factual basis of the plea establishes that respondent “entered into a conspiracy to rig the outcome” of the March 2008 HBPA elections. At the time of the election, respondent was the incumbent president of the association, and a dispute had arisen within the board of directors as to respondent’s management of the HBPA. In furtherance of the conspiracy, respondent (and others at his direction) traveled out of state and mailed fraudulent ballots from those locations so that the ballots would bear postmarks appropriate to the residences of the supposed voters. At least some of the expenses relating to the conspiracy were charged to and paid from the HBPA’s administrative account.

Additionally, during his tenure as president, respondent used HBPA funds for personal expenses, including travel and gifts. A portion of these expenses were billed to the HBPA’s Medical Benefits Trust, which was supposed to be used exclusively to pay medical benefits to jockeys and other industry personnel who were beneficiaries of the trust.

In pleading guilty to the criminal charge, respondent specifically admitted that he was guilty of the allegations against him. He also admitted that the factual basis supporting the charge was accurate.

Based on these factual findings, the committee determined that respondent violated Rules 8.4(b) and 8.4(c) of the Rules of Professional Conduct. His actions involved the fraudulent taking of money from the HBPA healthcare trust, and engaging in a scheme to fix his own reelection as president of the HBPA. This conduct reflects adversely on respondent’s honesty, trustworthiness, and fitness as a lawyer.

Respondent intentionally violated duties owed to the public and to the profession, causing actual harm to the HBPA. The committee found the following ^aggravating factors are present: a prior disciplinary record, a dishonest or selfish motive, refusal to acknowledge the wrongful nature of the conduct, and substantial experience in the practice of law (admitted 1993). In mitigation, the committee recognized the following: a cooperative attitude toward the proceedings and character or reputation. The committee found the payment of restitution to be neither an aggravating nor mitigating factor, reasoning that the restitution was not paid by respondent, but rather by the insurer for the HBPA.

The committee concluded that respondent engaged in a fraudulent scheme to steal the HBPA election. He also paid the expenses of the scheme by using money set aside by the association to pay employee healthcare expenses. These actions directly resulted in harm to the legal profession, as it was well known within the community that respondent is a lawyer. Under these circumstances, the impact of respondent’s criminal conduct is not minimized by the applicable mitigating factors. Accordingly, the committee recommended that respondent be permanently disbarred.

Neither respondent nor the ODC filed an objection to the hearing committee’s report and recommendation. However, in his brief to the disciplinary board, respondent argued that his misconduct “can only by the furthest stretch of the imagination be considered insurance fraud,” and in any event is not so egregious as to warrant permanent disbarment.

| tDisciplinary Board Recommendation

After review, the disciplinary board determined that the hearing committee’s factual findings are supported by the record and are consistent with the factual basis underlying respondent’s conviction. Based on these facts, the board determined that respondent violated the Rules of Professional Conduct as alleged in the formal charges.

The board adopted the committee’s findings with respect to duties violated, respondent’s mental state, and the harm caused. The board determined that the applicable baseline sanction is disbarment. The board found the following aggravating factors are present: a prior disciplinary record, a dishonest or selfish motive, refusal to acknowledge the wrongful nature of the conduct, substantial experience in the practice of law, and illegal conduct. In mitigation, the board recognized the following: a cooperative attitude toward the proceedings, character or reputation, and imposition of other penalties or sanctions.

Turning to the sanction issue, the board acknowledged that the conduct underlying respondent’s criminal conviction does not fall squarely within the scope of the permanent disbarment guidelines, particularly Guideline 6, pertaining to insurance fraud. Nevertheless, the board noted that this fact does not preclude the imposition of permanent disbarment in appropriate cases. See, e.g., In re: Bradley, 11-0254 (La.4/25/11), 62 So.3d 52 (permanent disbarment imposed upon a lawyer who conspired to bribe a state official to fraudulently obtain tax credits for a co-conspirator’s film company). Considering respondent’s extensive scheme to secure his reelection as the HBPA president, and given the significant harm caused to the HBPA by respondent’s conduct, the board found that permanent disbarment is appropriate, regardless of the applicability of “a particular guideline found in the guidelines for permanent disbarment.”

|sBased on this reasoning, the board recommended that respondent be permanently disbarred.

Respondent filed an objection to the disciplinary board’s recommendation. Accordingly, the case was docketed for oral argument pursuant to Supreme Court Rule XIX, § 11(G)(1)(b).

DISCUSSION

When disciplinary proceedings involve an attorney who has been convicted of a crime, the conviction is conclusive evidence of guilt and the sole issue presented is whether respondent’s crimes warrant discipline, and if so, the extent thereof. Supreme Court Rule XIX, § 19(E); In re: Boudreau, 02-0007 (La.4/12/02), 815 So.2d 76; Louisiana State Bar Ass’n v. Wilkinson, 562 So.2d 902 (La.1990). The discipline to be imposed in a given case depends upon the seriousness of the offense, the circumstances of the offense, and the extent of the aggravating and mitigating circumstances. Louisiana State Bar Ass’n v. Perez, 550 So.2d 188 (La.1989).

In the instant case, respondent was convicted of conspiracy to commit mail, wire, healthcare, and identification document fraud. This crime is a felony under federal law and clearly warrants serious discipline. Indeed, respondent concedes the appropriate sanction for such misconduct is disbarment. Therefore, the sole question presented for our consideration is whether respondent’s conduct is so egregious that he should be permanently prohibited from applying for readmission to the bar.

|flWe have long recognized that “[hjigh standards of honesty and righteousness have been erected for those engaged in the legal profession ...” Louisiana State Bar Ass’n v. Haylon, 250 La. 651, 198 So.2d 391, 392 (1967). Historically, disbarment was the harshest sanction available for attorneys who breached this high standard of conduct. While disbarment results in the attorney being stricken from the bar rolls, the attorney has the ability to apply for readmission five years after the effective date of disbarment, although the decision to readmit the attorney rests in this court’s sole discretion. Effective August 1, 2001, in the exercise of our constitutional authority to regulate the practice of law, we adopted amendments to Supreme Court Rule XIX, § 10 and § 24 to provide for the sanction of permanent disbarment. In our commentary accompanying the amendment, we explained, “The amendments reflect the judgement of the Court that in some instances lawyer misconduct may be so egregious as to warrant a sanction of permanent disbarment based on the facts of an individual case ...”

Our jurisprudence has made it clear we do not impose permanent disbarment lightly. In re: Morphis, 01-2803 (La.12/4/02), 831 So.2d 934. Rather, permanent disbarment is reserved for those cases where the attorney’s conduct convincingly demonstrates that he or she does not possess the requisite moral fitness to practice law in this state. In re: Petal, 10-0080 (La.3/26/10), 30 So.3d 728; In re: Muhammad, 08-2769 (La.3/4/09), 3 So.3d 458. We have not hesitated to permanently disbar attorneys who have committed serious crimes reflecting on their honesty and integrity. In re: Bradley, 11-0254 (La.4/25/11), 62 So.3d 52; In re: Edwards, 04-0290 (La.7/2/04), 879 So.2d 718; In re: Kirchberg, 03-0957 (La.9/26/03), 856 So.2d 1162.

In the factual basis accompanying his guilty plea, respondent admitted that he and others conspired to rig the outcome of the March 2008 HBPA elections by preparing and casting falsified election ballots. Respondent further admitted in the | infactual basis that he systematically diverted funds from a medical trust for his own benefit under the pretense of paying administrative expenses, when in fact most of the expenses had nothing to do with the administration of medical claims. Clearly, such conduct reveals a fundamental lack of honesty and integrity.

In addition, we find it significant that respondent, as a former magistrate judge and an officer of the HBPA, occupied a position of public trust. We have recognized that an attorney in a position of public trust is held to even a higher standard of conduct than an ordinary attorney. In re: Naccari, 97-1546 (La.12/19/97), 705 So.2d 734; In re: Huckaby, 96-2643 (La.5/20/97), 694 So.2d 906. By his fraudulent actions, which received significant coverage in local media, respondent harmed the public’s perception of the legal profession in this state.

In summary, we conclude respondent’s actions clearly and convincingly demonstrate that he lacks the fundamental moral fitness to practice law in this state. In light of the glaring lack of honesty and integrity revealed by respondent’s conduct, we can conceive of no circumstances under which we would ever allow him to be readmitted to the practice of law in Louisiana. He must be permanently disbarred.

DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, briefs, and oral argument, it is ordered that the name of Sean Daniel Al-fortish, Louisiana Bar Roll number 22227, 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. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, |nwith legal interest to commence thirty days from the date of finality of this court’s judgment until paid.

KNOLL, Justice, dissents for reasons assigned.

KNOLL, J.,

dissenting.

hi dissent from the majority and would not impose permanent disbarment.

      . During respondent's first term as president, certain members of the HBPA board of directors had challenged his management of the finances of the association. Indeed, in early 2008, one member of the board sued respondent and the HBPA to require the production of information about the organization’s finances. Respondent therefore sought to replace these directors with board members who would be less likely to question his activities.

      . HBPA members were entitled to vote for the officers and directors of the association, but the association’s bylaws required that in order to be counted as valid, an election ballot had to be enclosed in an envelope bearing the Social Security number of an HBPA member and the ballot had to be received by the HBPA's accountants via the United States mail. At respondent's direction, his co-conspirators falsified ballots from eligible voters who were unlikely to vote in the election and used the voters’ Social Security numbers to make the ballots appear legitimate; they then flew to various cities in Ohio, Kentucky, Texas, and Florida to mail the ballots so each would bear a U.S. postmark appropriate to the residence of the supposed "voter." The costs of such travel were paid from an HBPA administrative account.

      . The restitution amount includes $42,016 in expenses improperly allocated to the Medical Benefits Trust; $33,304 in expenses related to the rigging of the 2008 HBPA election and the subsequent challenge to the election; $4,821 paid to a private investigator to follow an HBPA employee during the criminal investigation; and $25,000 paid to respondent as a concealed reimbursement for the amount he paid to settle a sexual harassment claim against him.

      . Respondent was incarcerated on the date of the hearing and thus did not attend in person; however, he did participate by telephone. He also participated in the disciplinary board panel arguments by telephone and through counsel. Respondent had been released from federal prison by the date this court heard oral argument, and he appeared personally for arguments, along with his counsel.

      . For example, respondent testified that at all times the amounts transferred from the Medical Benefits Trust to the HBPA were kept on the books as a loan owed by HBPA to the trust pursuant to a longstanding practice that predated his term as president. He also argued that the ODC’s claim of insurance fraud should be rejected because the HBPA’s books had been audited by accounting firms who found no wrongdoing. The hearing committee accepted this testimony as a proffer, but ultimately declined to give it any weight in mitigation.

      . Respondent’s prior disciplinary record consists of an admonition in 2010 for failing to properly handle legal fees he was obligated to share with co-counsel. Although respondent did violate the Rules of Professional Conduct in that matter, the committee noted that there was no suggestion he had wrongfully taken any of the money. Therefore, the committee gave little weight to the aggravating factor of prior discipline.

      . Respondent asserts in his brief to this court that the committee erred in finding that restitution should not be considered as a mitigating factor. According to respondent, he filed suit against the HBPA and its accountants for failing to advise him that paying the association’s bills with money from the medical benefits trust was illegal. The suit was settled by the HBPA's insurer; however, rather than paying the settlement to respondent, who would then send a restitution check to the HBPA, the insurer agreed to send the funds directly to the HBPA in satisfaction of respondent’s restitution obligation.

      . On the morning of oral argument, respondent filed a motion to remand the case to the hearing committee for a new hearing. In support, respondent argues he was hampered in the presentation of his case due to his incarceration at the time of the original hearing. He seeks a remand in order to present additional evidence. We find no basis for a remand. Although we acknowledge respondent was incarcerated at the time of the hearing, he was allowed to participate by telephone and had a full opportunity to present mitigating evidence. Accordingly, the motion to remand is denied.


text:
    In re CONFIDENTIAL PARTY.
    No. 2014-OB-1437.
    Supreme Court of Louisiana.
    July 18, 2014.
   ORDER

h Considering the Petition for Transfer to Active Status filed by respondent, and the response thereto filed by the Office of Disciplinary Counsel,

IT IS ORDERED that the petition for transfer to active status be and hereby is denied. Pending further order of this court, respondent shall remain on disability inactive status pursuant to Supreme Court Rule XIX, § 22(D).

FOR THE COURT:

/s/ Jeannette Theriot Knoll Justice, Supreme Court of Louisiana


text:
    Lloyd RICHARD v. Sheriff Willy J. MARTIN, Jr., et al.
    No. 2013-CP-3001.
    Supreme Court of Louisiana.
    April 17, 2014.
   In re Richard, Lloyd; — Plaintiff; Applying for Reconsideration of this Court’s action dated February 28, 2014, Parish of St. James, 23rd Judicial District Court Div. B, No. 33,437; to the Court of Appeal, Fifth Circuit, No. 13-C-651.

Denied.


text:
    STATE of Louisiana v. Rene ZUNIGA.
    No. 2014-KK-1275.
    Supreme Court of Louisiana.
    June 30, 2014.
   In re Zuniga, Rene; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Tangipahoa, 21st Judicial District Court Div. C, No. 1200207; to the Court of Appeal, First Circuit, No. 2014 KW 0153.

Denied.


text:
    STATE of Louisiana v. Brandon Lee SULLIVAN.
    No. 2014-KK-1303.
    Supreme Court of Louisiana.
    July 3, 2014.
   In re Sullivan, Brandon Lee; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Calcasieu, 14th Judicial District Court Div. E, No. 28744-12, 266475-13, 5327-14; to the Court of Appeal, Third Circuit, No. KW 14-00556.

Denied.


text:
    ST. JAMES BEHAVIORAL HEALTH HOSPITAL, INC., Lance E. Bullock, M.D., Ramakongara, M.D., and Wendell B. Smith v. Gopinath GOPALAM, Sevenhills Healthcare, LLC and Apollo Management Consultants, LLC.
    No. 2014-CC-1339.
    Supreme Court of Louisiana.
    July 7, 2014.
   In re Apollo Management Consultants, LLC; Gopinath Gopalam, et al.; Seven-hills Healthcare, LLC; — Defendant(s); Applying For Supervisory and/or Remedial Writs, Parish of Ascension, 23rd Judicial District Court Div. A, No. 103,146; to the Court of Appeal, First Circuit, No. 2014 CW 0808.

Stay denied. Writ denied.


text:
    STATE of Louisiana v. Alvin JAMES.
    No. 2014-KK-1432.
    Supreme Court of Louisiana.
    July 7, 2014.
   In re State of Louisiana; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. J, No. 518-444; to the Court of Appeal, Fourth Circuit, No. 2014-K-0535.

Stay denied; writ denied.


text:
    Louis GENUSA, Jr. v. ASBESTOS CORPORATION LTD, et al.
    No. 2014-CC-1463.
    Supreme Court of Louisiana.
    July 9, 2014.
   In re Liberty Mutual Insurance Company; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of W. Baton Rouge, 18th Judicial District Court Div. D, No. 1040837; to the Court of Appeal, First Circuit, No. 2014 CW 0969.

Stay denied. Writ denied.


text:
    Baltazar ORTIZ v. MEADWESTVACO CORPORATION, et al.
    No. 2014-CC-1308.
    Supreme Court of Louisiana.
    July 9, 2014.
   In re MeadWestvaco Corporation, et al.; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Beauregard, 36th Judicial District Court Div. B, No. C-2009-0278; to the Court of Appeal, Third Circuit, No. CW 14-00510.

Denied.

KNOLL, J., would grant with order reinstating the District Court’s judgment.


text:
    Olivia BAILEY, et al. v. EXXON MOBIL CORPORATION, et al.
    No. 2014-CC-1388.
    Supreme Court of Louisiana.
    July 11, 2014.
   In re Bailey, Olivia et al.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. F, No. 670-803; to the Court of Appeal, Fifth Circuit, No. 14-C-282.

Stay denied; writ denied.


text:
    Baltazar ORTIZ v. MEADWESTVACO CORPORATION, et al.
    No. 2014-CD-0947.
    Supreme Court of Louisiana.
    July 14, 2014.
   In re National Union Fire Insurance Company; — Third Party; Applying For Supervisory and/or Remedial Writs, Parish of Beauregard, 36th Judicial District Court Div. B, No. 2009-0278.

Moot. See 14-CC-1308.


text:
    Danny R. ODELL v. Billie Kellerhuis ODELL.
    No. 2014-CJ-1436.
    Supreme Court of Louisiana.
    July 15, 2014.
   In re Applying For Writ of Certiorari and/or Review, Parish of Vermilion, 15th Judicial District Court Div. H, No. 92135; to the Court of Appeal, Third Circuit, No. 14-250.

Denied.


text:
    STATE of Louisiana v. James S. TYLER, III.
    No. 2014-KP-1473.
    Supreme Court of Louisiana.
    July 15, 2014.
   In re Tyler III, James S.; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. 3, No. 175,282.

Denied.


text:
    STATE of Louisiana v. Larry VAIL and Curtis Every.
    No. 2014-KK-1503.
    Supreme Court of Louisiana.
    July 15, 2014.
   In re State of Louisiana; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. D, No. 520-167; to the Court of Appeal, Fourth Circuit, No. 2014-K-0659.

Denied.


text:
    STATE of Louisiana v. Pepper MANUEL.
    No. 2014-KK-1531.
    Supreme Court of Louisiana.
    July 16, 2014.
   In re Manuel, Pepper; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Terrebonne, 32nd Judicial District Court Div. B, No. 663,537; to the Court of Appeal, First Circuit, No. 2014 KW 0621.

Denied. State v. Eberhardt, 13-2306 (La.7/1/14); 145 So.3d 377, 2014 WL 2949307.


text:
    Corey PITTMAN v. Jemal BARKER and Sidney Gautreaux.
    No. 2014-CC-1348.
    Supreme Court of Louisiana.
    July 17, 2014.
   In re Gautreaux, Sidney; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. F, No. C587-593; to the Court of Appeal, First Circuit, No. 2014 CW 0057.

Stay denied; writ denied.

GUIDRY, J., would grant and reverse the trial court, finding the defendant failed to exhaust his administrative remedies.


author: HUGHES, J.,

text:
    Mark S. LANDRY v. Amy Airhart LANDRY.
    No. 2014-CJ-1284.
    Supreme Court of Louisiana.
    July 17, 2014.
   In re Landry, Amy Airhart; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. J, No. 716-376; to the Court of Appeal, Fifth Circuit, No. 14-C-357.

Denied.

JOHNSON, C.J., would grant.

HUGHES, J.,

I would grant the writ.

For a young well-adjusted child a change in environment can be an opportunity. I changed schools in the middle of the second grade without apparent harm. And to be able to attend school three blocks from one’s residence is an advantage for the child not to be lightly overlooked.


text:
    Patricia Thweatt LEE, et al. v. CCC HOLDINGS, LLC, et al.
    No. 2014-CC-1507.
    Supreme Court of Louisiana.
    July 18, 2014.
   In re Brossette, Victor P.; Lee, Patricia Thweatt et al.; Succession of Ingram A. Lee; — Plaintiff(s); Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. L, No. 2012-11674; to the Court of Appeal, Fourth Circuit, No. 2014-C-0712.

Denied.


text:
    Blaine BREAUX, et al v. Stephen RODRIGUE, et al.
    No. 2014-CC-1525.
    Supreme Court of Louisiana.
    July 25, 2014.
   In re Great West Casualty Company; J.H. Walker Inc.; Rodrigue, Stephen;— Defendant(s); Applying For Supervisory and/or Remedial Writs, Parish of Lafayette, 15th Judicial District Court Div. B, No. C-20104377; to the Court of Appeal, Third Circuit, No. CW 14-00289.

Denied.

GUIDRY, J., would grant.


text:
    STATE of Louisiana v. Marshall J. RICHARDSON.
    No. 2014-KK-1433.
    Supreme Court of Louisiana.
    July 29, 2014.
   In re State of Louisiana; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. A, No. 519-052; to the Court of Appeal, Fourth Circuit, No. 2014-K-0563.

Writ granted. The ruling of the trial court granting the defendant’s motion to suppress is reversed and defendant’s motion is hereby denied. Case remanded to the trial court.

JOHNSON, C.J., would deny.


text:
    STATE of Louisiana v. Joseph PAYNE.
    No. 2014-KK-1361.
    Supreme Court of Louisiana.
    July 29, 2014.
   In re Payne, Joseph; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. H, No. 517-123; to the Court of Appeal, Fourth Circuit, No. 2014-K-0465.

Denied.


text:
    Allen SIMPSON v. LOUISIANA DEPARTMENT OF SAFETY AND CORRECTIONS.
    No. 2013-CI-1973.
    Supreme Court of Louisiana.
    July 31, 2014.
   In re Simpson, Allen.; — Plaintiff; Applying for Reconsideration of this Court’s action dated March 21, 2014, Parish of e. Baton Rouge, 19th Judicial District Court Div. M, No. 605347; to the Court of Appeal, First Circuit, No. 2013-CW-0816.

Reconsideration denied.


text:
    STATE ex rel. Kevin ALEXANDER v. STATE of Louisiana.
    No. 2013-KH-1981.
    Supreme Court of Louisiana.
    July 31, 2014.
   In re Kevin Alexander; — Plaintiff; Applying for Reconsideration of this Court’s action dated March 21, 2014, Parish of St. John, 40th Judicial District Court Div. B, No. 11-107; to the Court of Appeal, Fifth Circuit, No. 12-KA-836.

Reconsideration denied.


text:
    STATE ex rel. Samuel Lynn SPEED v. STATE of Louisiana.
    No. 2013-KH-2233.
    Supreme Court of Louisiana.
    July 31, 2014.
   In re Speed, Samuel Lynn; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. B, Nos. 249,735, 230,-897; to the Court of Appeal, Second Circuit, No. 48,732-KH.

Reconsideration denied.


text:
    STATE ex rel. Devangalo Deon GRAHAM v. STATE of Louisiana.
    No. 13-KH-2249.
    Supreme Court of Louisiana.
    July 31, 2014.
   In re Graham, Devangalo Deon; — Plaintiff; Applying for Reconsideration of this Court’s action dated April 25, 2014, Parish of Desoto, 42nd Judicial District Court Div. A, No. 03-9236; to the Court of Appeal, Second Circuit, No. 48,731-KH.

Reconsideration denied.


author:
CRAIN, J.
      WHIPPLE, C.J.,

text:
    SUCCESSION OF GEORGE MATTHEWS. Succession of George Matthews.
    Nos. 2013 CA 1325, 2013 CA 1326.
    Court of Appeal of Louisiana, First Circuit.
    May 2, 2014.
    Juan W. Pickett, Houma, Louisiana, for Appellants, Melvin Poindexter, Will Coleman, Jr., and Herman Coleman.
    Allen J. Myles, Plaquemine, Louisiana, for Appellants, Earl Brown, James Brown, Jr., et al.
    Fred L. Herman, Thomas J. Barbera, Mayra L. Scheuermann, New Orleans, Louisiana, for Appellants, Kenney Maryland, Judy Maryland, Gauche, Michael Maryland, Randolph, Rollins, Kernall Maryland, and Donald Maryland.
    Tregg C. Wilson, Baton Rouge, Louisiana, for Appellees, Lionel Matthews, et al.
    Ronald R. Johnson, Baton Rouge, Louisiana, for Appellees, Luegnia Matthews Davis, Viola, Matthews Spears, Cora Matthews, Bradford a/k/a Mary McCoy, Matthews, James Matthews, Jr., Geraldine Matthews, Henry E. Matthews, and William McKinley Matthews.
    Before WHIPPLE, C.J., WELCH, and CRAIN, JJ.
   CRAIN, J.

[«¡This is an appeal of a judgment sustaining an exception of peremption and dismissing the inheritance claims of alleged descendants claiming to be heirs of the decedent’s children who were born outside of marriage. We affirm.

FACTS

George Matthews died in 1930. More than seventy years later, alleged descendants came forward and filed pleadings into his succession proceedings seeking recognition as heirs of George Matthews. The alleged descendants generally contend that George Matthews fathered sixteen children born outside of marriage and that they descend from those children.

The administrator of George Matthews’ succession filed an exception of peremption asserting that the alleged descendants’ claims were perempted because they failed to bring a timely filiation action to establish their relationship to George Matthews. The trial court determined that the alleged descendants’ claims were subject to the peremptive period set forth in Louisiana Civil Code article 209, before it was replaced by Louisiana Civil Code article 197. Since none of the alleged descendants instituted a filiation action prior to the expiration of the grace period established for those affected by the enactment of the peremptive period, the trial court concluded that their claims had been extinguished by peremption and the alleged descendants had no legal status as hems to the succession of George Matthews. The alleged descendants now appeal the judgment sustaining the exception and dismissing their claims as heirs.

DISCUSSION

14When George Matthews died in 1930, Louisiana law classified children conceived and born out of marriage as illegitimate children. La. Civ.Code art. 180 (1870). Article 919 of Louisiana’s Civil Code of 1870 was in effect at that time and permitted illegitimate children to participate in the successions of their fathers only if they had been duly acknowledged by their father and he left no descendants, ascendants, collateral relations, or surviving wife. In all other cases, illegitimate children were permitted only to bring an action against their father or his heirs for alimony. La. Civ.Code art. 919 (1870). In Succession of Brown, 388 So.2d 1151 (La.1980), the Louisiana Supreme Court declared that Article 919 was unconstitutional “in that it unreasonably discriminated against illegitimate children by denying them the same inheritance rights in the successions of their fathers, under any circumstances, as [were] enjoyed by their legitimate counterparts.” Harlaux v. Harlaux, 426 So.2d 602, 604 (La.1983).

In anticipation of Succession of Brown, and again the year after the decision was rendered, the Louisiana Legislature amended Louisiana Civil Code articles 208 and 209 on filiation. See Kathryn Venturatos Lorio, 10 Louisiana Civil Law Treatise, Successions and Donations § 3:5 (2013). A child who did not enjoy legitimate filiation or who had not been filiated by his parent was required to institute a civil proceeding to prove filiation within one year of the death of the alleged parent, or within nineteen years of the child’s birth, whichever occurred | ¿first. La. Civ. Code art. 209. Those time limitations are peremptive. Matherne v. Broussard, 06-0838 (La.App. 1 Cir. 2/14/07), 959 So.2d 975, 980. The enacting legislation provided a grace period in which those who would otherwise be barred could bring their filiation action. If no such proceeding was timely instituted, the legislation specified that filiation could not thereafter be established. 1980 La. Acts No. 549; 1981 La. Acts No. 720. That grace period expired on September 12, 1982. See Succession of Herndon, 45,146 (La.App. 2 Cir. 4/28/10), 36 So.3d 434, 437, writ denied, 10-1208 (La.9/17/10), 45 So.3d 1051. The Louisiana Supreme Court interpreted Act 720 of 1981 as it amended Article 209 to mean that unacknowledged illegitimate children had until September 11, 1982, to file a filiation action in order to take advantage of the retroactive application of Succession of Brown. Succession of Clivens, 426 So.2d 585, 589 (1982) (on rehearing); Succession of Hawkins, 429 So.2d 194, 197 (La.App. 1 Cir.), writ denied, 434 So.2d 1098 (La.1983).

It is undisputed that the claims of George Matthews’ illegitimate children and their heirs would have been barred under Article 209 when that article was enacted; therefore, they were required to bring a filiation action within the provided grace period. Because no filiation action was timely instituted, the trial court found the alleged descendants’ claims to be barred.

On appeal, the alleged descendants argue that the peremptive periods of Article 209 and the corresponding grace period either do not apply to them or should be extended based on principles of equity. They argue that their ancestors’ rights to inherit from George Matthews as his illegitimate children were not recognized until after his death, therefore, Article 209’s peremptive periods should not apply. We find no merit to this argument. The legislature’s intent that Article |fi209 would apply to such claims is evident by the enactment of the grace period, which not only provides a time period during which one who could not previously establish filiation could do so, but also satisfied the interest of stability of land titles by avoiding subjecting other heirs to such suits indefinitely. See Succession of Herndon, 36 So.3d at 438; Katherine Shaw Spaht, Developments in the Law, 1980-81-Persons, 42 La.L.Rev. 403, 412 (1982). Article 209 and the grace period have been held to apply in factual situations similar to those in this case. See Succession of Herndon, 36 So.3d at 438; In re Succession of Young, 98-1073 (La.App. 1 Cir. 5/14/99), 732 So.2d 833, 838, writ denied, 99-1764 (La.10/1/99), 748 So.2d 446; Matter of Thomas, 450 So.2d 1048, 1049 (La.App. 1 Cir.1984), writ denied, 457 So.2d 1192 (1984); Lee v. Succession of Chapman, 463 So.2d 896 (La.App. 2 Cir.1985). Moreover, in reviewing similar arguments, this court has found no constitutional infirmity, either on due process grounds or equal protection basis, with the grace period. In re Succession of Young, 732 So.2d at 838.

After a law is promulgated, each person is charged with knowledge of it. See La. Civ.Code art. 5; In re Succession of Young, 732 So.2d at 836. No one may avail himself of ignorance of the law. La. Civ.Code art. 5. Therefore, all of George Matthews’ living illegitimate children or their descendants were charged with notice of Article 209 and the grace period and that they could not establish filiation to George Matthews after September 12, 1982. Since no filiation action was brought within the grace period, filiation to George Matthews may not thereafter be established. 1981 La. Acts No. 720; see also In re Succession of Young, 732 So.2d at 835; Matter of Thomas, 450 So.2d at 1049.

The alleged descendants argue that no immovable property of George Matthews’ estate has been partitioned or sold to third parties; therefore, the grace period should be extended based upon the facts of this particular case. However, |7the legislature did not limit the applicability of the grace period to cases in which the estate had been partitioned or sold. The rules of statutory construction require the law to be applied as written if the law is clear and unambiguous and does not lead to absurd consequences. See La. Civ.Code art. 9; accord Successions of Watkins, 431 So.2d 25, 27 (La.App. 1 Cir.1983).

The trial court correctly held that the alleged descendants’ claims are perempted and dismissed their inheritance claims. The alleged descendants have advanced several arguments both to the trial court and this court that relate to a 1972 judgment of possession rendered in the succession proceedings of George Matthews and Frances Taylor, which recognized certain other individuals as heirs. The trial court specified that its ruling was premised on its determination that the alleged descendants’ claims were perempted and not on the effect of the 1972 judgment. We find no error in that determination. The alleged descendants’ claims are perempted because filiation actions were not timely asserted. The 1972 judgment has no bearing on that conclusion.

CONCLUSION

For the foregoing reasons, the judgment of the trial court is affirmed. Costs of this appeal are assessed equally to the appellants.

AFFIRMED.

WHIPPLE, C.J., concurs for reasons assigned.

WHIPPLE, C.J.,

concurring.

| ^though the result reached by the trial court, and affirmed by the majority, is legally correct, it is also woefully unfair. As the facts of this case demonstrate, application of the short legislative “grace period” in a case such as this one, i.e., where no immovable property of the estate has been partitioned or sold, serves no purpose whatsoever in furtherance of the purported goal of ensuring “stability of land title.” In my view, these stated purposes are not served by shutting out this group of heirs. However, we are required to apply the law as given, and we have done so herein. Thus, I concur in the result, which I agree is legally correct.

      .The appellants are: 1) Descendants of alleged illegitimate children of George Matthews and Maria Owen (namely, Earl Brown and James Brown, Jr., et al.); 2) Descendants of Castina Matthews Poindexter, an alleged illegitimate child of George Matthews and Sally Ellis (namely, Kenney Maryland, Judy Maryland Gauche, Michael Maryland, Randolph Rollins, Kernall Maryland, and Donald Maryland); and 3) Descendants of alleged illegitimate children of George Matthews and Sally Ellis (namely, Melvin Poindexter, Will Coleman, Jr., and Herman Coleman).

      . Louisiana law no longer classifies children as legitimate or illegitimate. See 2004 La. Acts No. 26.

      . The Louisiana Supreme Court later clarified that Succession of Brown would be retroactively applied only to January 1, 1975, the effective date of the Louisiana Constitution of 1974. Harlaux, 426 So.2d at 604; Succession of Clivens, 426 So.2d 585 (La.1982) (on rehearing). The administrator of George Matthews’ succession argued during these proceedings that the alleged descendants have no cause of action because George Matthews died prior to January 1, 1975; therefore, their inheritance claims are governed by the law in existence at the time of the decedent’s death. See Succession of Clivens, 426 So.2d at 600-601. In response, the alleged descendants argued that they do state a cause of action because George Matthews’ estate has remained under administration, citing Reed v. Campbell, 476 U.S. 852, 106 S.Ct. 2234, 90 L.Ed.2d 858 (1986). See also Sudwischer v. Estate of Hoffpauir, 589 So.2d 474, 475-76 (La.1991) (finding that an inheritance claim was timely, when made while the decedent’s estate was under administration). This issue is not raised in this appeal, and given our determination that the claims are perempted, we address it no further.

      . The second grace period provided in Act 720 replaced the first one provided in Act 549 and gave unacknowledged illegitimates an additional year, or until September 12, 1982, to file filiation actions. Talbert v. Scott, 451 So.2d 1304, 1305 (La.App. 1 Cir.1984).

      . The 1972 judgment of possession is the subject of other claims in the succession proceedings brought by alleged descendants of George Matthews’ siblings and alleged descendants of George Matthews and Frances Taylor. The exception of peremption does not concern these two groups.