author: PER CURIAM

text:
    IN RE: Kenneth Todd WALLACE
    NO. 2017-B-0525
    Supreme Court of Louisiana.
    09/22/2017
   ATTORNEY DISCIPLINARY PROCEEDING

PER CURIAM

JjT’his disciplinary matter arises from formal charges filed by thé Office of Disciplinary Counsel (“ODC”) against respondent, Kenneth- Todd Wallace, an attorney licensed to practice law in Louisiana but currently on interim suspension pursuant to a joint petition filed by the parties in December 2015. In re: Wallace, 15-2305 (La. 1/8/16), 182 So.3d 941.

UNDERLYING FACTS

The following facts are not in dispute, having been stipulated to by the parties. By way of background,' respondent joined the law firm of Liskow & Lewis (“the firm”) as an associate attorney in 1998. After his promotion to shareholder in 2005, respondent served as the firm’s hiring partner and head of recruiting. He also chaired the firm’s diversity committee as the firm’s first minority recruiting and retention partner. In 2012, respondent was elected to the firm’s board of directors and served as the board’s junior director through April 2015.

As a member of the firm, respondent generally billed on an hourly basis but sometimes worked on cases on a contingency basis. The firm’s policy-set hourly billing targets for shareholders at 1,800 billable hours annually. These billing targets were one of several factors taken into consideration for annual salary increases, discretionary bonuses, and promotion within the firm.

|2In November 2015, the firm’s compensation committee noted that respondent’s “fee bill credit,” which is a measure of collections attributable to an attorney’s recorded billable time, seemed low. Therefore, the committee inquired into the status of certain files for which respondent had recorded significant billable time. This inquiry led to the discovery that, between 2012 and 2015, respondent had recorded billing entries on a contingency fee case that had been dismissed in October 2012. Because this particular case was an unsuccessful contingency fee matter, the falsely billed hours were not billed to the client or submitted to any court for approval. The committee found two other files containing entries that had not been billed to clients.

The firm presented these preliminary findings'to 'respondent on November 9, 2015. At that meeting, respondent acknowledged and apologized for his misconduct and assured the firm that his actions had not impacted any of the firm’s clients. Respondent informed the firm about other files in which he had recorded false' or inflated time or in which he created false receivables that were never billed to clients. With -.respondent’s - assistance, and cooperation, the firm conducted a full investigation in order to assess whether his conduct, had impacted any of the firm’s clients. Upon completion of the investigation, the firm confirmed that respondent’s conduct did not adversely impact any clients.

The firm identified seven files containing, in part, false entries or receivables. Regarding the contingency fee file that was dismissed in October 2012, the firm discovered false entries totaling 52.25 hours in 2012, false entries totaling 885 hours in 2013, false entries totaling 270 hours in 2014, and false entries totaling 376 hours in 2015. In three other cases, respondent recorded false and inflated entries totaling $91,544.50; he then prepared and reported the bills to the firm’s accounting office, but the bills were never sent to the clients. In three additional cases, respondent recorded .false and inflated entries that were written off without the preparation of [¡¡bills and were not billed to the clients. In total, respondent submitted 428 entries that the firm classified as “certainly false” and an additional 220 entries that the firm classified as “reasonably certain” to be “false or inflated.”

Between 2012 and 2014, respondent received merit bonuses totaling $85,000. The firm concluded that respondent would most likely have received ■ some or all of these merit bonuses even without the false inflation of his billable hours.

Respondent indicated he engaged in this misconduct because he was concerned that his accurate billable hours, when coupled with an insufficient book of business, were not commensurate with his leadership position in the firm. He denied that he engaged in-the misconduct out of a desire for discretionary bonuses or any other monetary gain.

On November 22, 2015, respondent voluntarily submitted his letter of resignation to the firm, effective November 30, 2015. He also voluntarily renounced his entire termination bonus, which totaled approximately $85,000, owed to'him for his share of the firm’s accounts receivable; The firm determined that this renunciation likely exceeded any losses the‘firm incurred as a result of respondent’s conduct.

Respondent self-reported his. misconduct to the ODC on November 25, 2015. The firm reported its findings to. the ODC on December 4, 2015.

DISCIPLINARY PROCEEDINGS

In March 2016, the ODC filed formal charges against respondent, alleging that his conduct violated Rules 8.4(a) (violation of the Rules of Professional Conduct) and 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation) of thé Rules of Professional Conduct. Respondent, through counsel, answered the formal charges and admitted his misconduct but asserted that numerous mitigating factors were present.

|4Prior to a formal hearing in this matter, respondent and the ODC filed a joint stipulation of facts, wherein respondent admitted to the facts as set forth above. Respondent also stipulated to violating the Rules of Professional'Conduct as alleged in the formal charges. The parties further stipulated to the presence of several aggravating and mitigating factors. In aggravation, they stipulated to a dishonest or selfish motive, a pattern of misconduct, and substantial experience in the practice of law (admitted 1998). In mitigation, they stipulated to the absence of a prior disciplinary record,‘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, character or reputation, and remorse.

Formal Hearing

The hearing committee conducted a hearing in April 2016. The ODC introduced documentary evidence and called four witnesses to testify before the committee. Respondent introduced documentary evidence, including numerous character letters. He also testified on his own behalf and on cross-examination by the ODC.

Hearing Committee Report

After considering the evidence and testimony presented at the healing, the hearing committee accepted the joint stipulations agreed to by the parties. The committee also made additional factual findings as follows:

Respondent testified he engaged in misconduct due to his concerns that his accurate billable hours were not commensurate with his leadership position within the firm. As a member of the firm’s board of directors, respondent saw firsthand, and on a monthly basis, the extraordinary billable hours and business dollars 1 ¿generated by key leaders of the firm. When his practice began to decline, respondent gave in to his own internal pressures and began to submit false time on a dismissed contingency fee matter, and eventually other matters, in an effort to make himself look better on paper each month. The committee found respondent’s testimony to be credible.

Robert Angelico, the firm’s managing partner, testified he believes respondent’s motivation was his concern that his billable hours were not commensurate with his leadership position and not any desire for bonuses. Respondent expressed his anxiety about not having much of his own client base to James Brown, the chair of the firm’s commercial litigation section. Like Mr. Angelico, Mr. Brown did not believe a desire for bonus money was what, drove respondent to submit false billable hours.

Respondent received a discretionary bonus from the firm’s compensation committee for 2012, 2013, and 2014. Scott Perkins, the firm’s executive director, testified that even when he subtracted all potentially false time entries, respondent still met and exceeded his billing targets in each of these years. The testimony confirmed that respondent dedicated an extraordinary amount of hours annually during the relevant time period as a member of the firm’s board of directors, as board secretary, as chair of the diversity committee, as a member of the hiring committee, as a firm liaison to Judge Zainey’s homeless program, and as chair of a number of ad hoc committees appointed by the firm’s president. Mr. Brown testified that respondent’s extraordinary firm involvement and leadership was sufficient to warrant a merit bonus. He further confirmed that respondent’s extraordinary efforts in firm management alone would have merited him a bonus. While the testimony of Mr. Brown and Mr. Angelico supports the conclusion that respondent would have been eligible for merit bonuses, the testimony also supports the conclusion that not |Ball of the merit bonuses would have been paid to respondent had his hours been accurately recorded.

Based on these findings, the committee determined that respondent violated the Rules of Professional Conduct as alleged in the formal charges and stipulated to by the parties. The committee then determined respondent intentionally violated duties owed to the public and the legal profession. There is no evidence to indicate that any clients were harmed by respondent’s misconduct. However, his misconduct created significant potential harm to the firm. ‘The committee agreed with the aggravating and mitigating factors stipulated to by the parties. In further mitigation, the committee noted respondent also suffered the imposition of other sanctions and penalties as he endured the loss of his job, the loss of additional income because he was unable to secure other employment for several months, and the loss of several community leadership positions.

After further considering this court’s prior jurisprudence addressing similar misconduct, the committee recommended respondent be suspended from the practice of law for one year and one day, retroactive to January 8, 2016, the date of his interim suspension.

The ODC filed an objection to the committee’s recommendation, arguing that a suspension from the practice of law for thirty months appears appropriate.

Disciplinary Board 'Recommendation

After review, the disciplinary board determined that the hearing committee’s factual findings are supported by the record and are not manifestly erroneous. The board also determined that the committee correctly concluded respondent violated Rules 8.4(a) and 8.4(c) of the Rules of Professional Conduct as stipulated to by the parties.

|7The board determined respondent knowingly, if not intentionally, violated duties owed to the public and the legal profession. Respondent caused no actual harm to any clients, and the evidence indicates that the firm suffered little to no actual harm. After reviewing the ABA’s Standards for Imposing Lauryer Sanctions, the-board determined the applicable baseline sanction ranges from suspension to disbarment. The board adopted the aggravating and mitigating factors found by the committee.

After reviewing this court’s prior jurisprudence addressing similar misconduct, and determining that it would be purely punitive to require respondent to undergo the reinstatement process, the board recommended he be suspended from the practice of law for one year, retroactive to the date of his interim suspension. Two board members dissented and would recommend a period of suspension that would require respondent to apply for reinstatement.

. 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.

| «Respondent has stipulated that he engaged in professional misconduct by recording false and inflated billable hours. In doing so, respondent has violated the Rules of Professional Conduct as alleged in the formal charges and as set forth in the joint stipulation submitted by the parties. Therefore, the sole question presented for the court’s consideration is the appropriate sanction for this misconduct.

In determining the' 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).

The record supports a finding that respondent intentionally violated duties owed to the public and the legal'profession. His actions had the potential to cause significant harm, however, there is no evidence that any client harm actually occurred. Likewise, it appears little or no actual harm was suffered by respondent’s law firm. The record supports the aggravating and mitigating factors as stipulated to by the parties.-

Turning to the issue of an appropriate sanction, we find that respondent’s conduct involved a long and repetitive pattern of dishonesty. As such, the lengthy thirty-month suspension sought by the ODC is clearly appropriate. However, there are significant mitigating circumstances present, including respondent’s voluntary resignation from the firm and his renunciation of his entire termination bonus. These factors, coupled with the lack of harm to respondent’s clients and the firm, justify the deferral of all but twelve months of the suspension.

| .Accordingly, under the circumstances of this ease, we will suspend respondent from the practice of law for thirty months, with all but twelve months deferred, retroactive to January 8, 2016, the daté of respondent’s interim suspension.

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 Kenneth Todd Wallace, Louisiana Bar Roll number 25920, be and he hereby is suspended from the practice of law for a period of thirty months, with all but twelve months deferred. This suspension shall .be retroactive to January 8, 2016, the date of respondent’s interim suspension. All costs and expenses in the mat-, ter 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.


source: Caselaw Access Project

author: PER CURIAM CRICHTON, J.,

license: Public Domain

text:
    IN RE: Janinne Latrell GILBERT
    NO. 2017-B-0524
    Supreme Court of Louisiana.
    09/22/2017
   ATTORNEY DISCIPLINARY PROCEEDING

PER CURIAM

|! This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Janinne Latrell Gilbert, a disbarred attorney.

PRIOR DISCIPLINARY HISTORY

Before we address the current matter, we find it helpful to review respondent’s prior disciplinary history. Respondent was admitted to the practice of law in -Louisiana in 2006. In 2016, we disbarred respondent for neglecting legal matters, failing to communicate with clients, failing to account for or refund unearned fees, failing to properly withdraw from a representation, engaging in dishonest conduct, and failing to cooperate with the ODC in its investigations. In re: Gilbert, 16-0044 (La. 3/4/16), 185 So.3d 734 (“Gilbert /”). The misconduct at issue in Gilbert I occurred between 2010 and.2014.

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

UNDERLYING FACTS AND PROCEDURAL HISTORY

The ODC filed two sets of formal charges against respondent under disciplinary board docket numbers 15-DB-060 and 16-DB-044. Respondent was ^served with both sets of formal charges via certified mail but failed to answer. 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). No formal hearing was 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. The formal charges were considered by separate hearing committees, and then consolidated by order of the disciplinary board in October 2016. The board filed in this court a single recommendation of discipline encompassing both sets of formal charges.

15-DB-060

In February 2015, Denton Auzenne retained respondent to institute a filiation proceeding, for which he paid respondent a $2,000 deposit. Mr. Auzenne advised that time was of the essence, to which respondent indicated that a petition for filiation would be' filed within one week of her receipt of DNA results. After the DNA test was completed on March 10, 2015, Mr. Auzenne attempted to contact respondent. He was initially not successful in reaching her, but respondent finally replied, at which time she indicated that the petition would be filed by March 16, 2015.

However, respondent did not file the petition and Mr. Auzenne immediately had to hire another attorney to do the work. Mr. Auzenne contacted respondent to terminate the representation and to request an accounting and a refund of any unearned fees. In reply, respondent told Mr. Auzenne that she had filed the petition but admitted that she failed to submit the necessary filing fee.

After hearing nothing more from respondent, Mr. Auzenne sent respondent a written request for an accounting, the filiation paperwork, and a refund of unearned fees. The certified mail was received on April 16, 2015, but respondent did not | arespond and did not comply with these requests. Furthermore, there is no indication that the unearned .and/or disputed fees were ever deposited into respondent’s trust account. According to the clerk’s office, there is no record of the petition being filed by respondent on Mr. Auz-enne’s behalf, either with or without the filing fee.

In July 2015, Mr. Auzenne filed a complaint against respondent with the ODC. The ODC sent notice of the complaint to three of respondent’s known addresses via certified mail. Although the return receipt card indicates delivery on August 14, 2015, respondent failed to provide a response to the complaint.

The ODC alleged that respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.3 (failure to act with reasonable diligence and promptness in representing a client), 1.4(a) (failure to communicate with a client), 1.5(a) (charging an unreasonable fee), 1.5(f)(3) (an advance deposit against future fees must be placed in the lawyer’s trust account), 1.5(f)(5) (failure to refund an unearned fee), 1.16(d) (obligations upon termination of the representation), 8.1(b) (knowing failure to respond to a lawful demand for information from a disciplinary authority), 8.1(c) (failure to cooperate with the ODC in its investigation), 8.4(a) (violation of the Rules of Professional Conduct), and 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation).

Hearing Committee Report

After considering the ODC’s deemed admitted submission in 15-DB-060, the hearing committee determined that the factual allegations' of the formal charges were deemed .admitted and proven by clear and convincing evidence. The committee also determined respondent knowingly and intentionally violated the Rules of Professional Conduct as alleged in the formal charges. Based on the ABA’s \ Standards for Imposing Lawyer Sanctions, the committee determined the baseline sanction is disbarment.

Considering the deemed admitted facts of this case, the committee recommended respondent be permanently disbarred. The committee also recommended respondent be ordered to provide restitution in the amount of $2,000 to Mr. Auzenne and/or to the Louisiana State Bar Association’s Client Assistance Fund. Finally, the committee recommended respondent be assessed with the costs and expenses of this proceeding.

Neither respondent nor the ODC filed an objection to the hearing committee’s report and recommendation.

16-DB-044

On‘March 4, 2016, this court disbarred respondent in Gilbert I and mailed notice of the judgment to respondent at her primary, secondary, and preferred addresses. On March 28, 2016, respondent appeared before Gale J. LuQuette, a hearing officer for the 15th Judicial District Court, Parish of Vermilion, for the pujóse of a conference in the matter of Angeles v. Angeles. Respondent appeared as counsel for the plaintiff and the matter proceeded to a hearing.

■ The ODC alleged that respondent’s conduct violated the following ■ provisions of the Rules of Professional Conduct: Rules 5.5(a) (engaging- in the unauthorized practice of law), 8.4(a), and 8.4(d) (engaging in conduct prejudicial to the administration of justice).

Hearing Committee Report

After considering the ODO’s deemed admitted submission in 16-DB-044, the committee determined respondent violated the Rules of Professional Conduct as alleged in the formal charges. Respondent knowingly appeared in court after ^receiving notice of her disbarment. Notice had been mailed by the clerk of the Supreme Court to respondent’s last known address, which is the same address to which formal charges in this matter were mailed and received by respondent. It is also the same'address from which respondent mailed her' response to the complaint. Although respondent indicated in her response that she “had no idea” she could not practice law when she appeared before the hearing officer, the committee rejected respondent’s defense, stating that it was “not convinced that she had not been fully placed on notice of her. ineligibility to practice.”

Considering respondent’s misconduct in light of the permanent disbarment guidelines and the prior jurisprudence of this court, the committee recommended respondent be permanently disbarred. The committee also recommended respondent be assessed with all costs and expenses of this proceeding.

Neither respondent nor the ODC filed an objection to the hearing committee’s report and recommendation.

. Disciplinary Board Recommendation

15-DB-060 and 16-DB-044

'After reviewing these consolidated matters, the disciplinary board determined the factual allegations of the'formal charges are deemed admitted and proven by clear and convincing evidence. The board also determined that each committee correctly applied the Rules of .Professional Conduct, with two exceptions regarding 15-DB-060. The board declined to find a violation of Rule 1.5(a),. reasoning that there is. no evidence or factual allegation that the fee charged by respondent and paid by Mr, Auzenne was unreasonable. The board also declined to find a violation of Rule 1.5(f)(3), reasoning that a lack of evidence to show that a fee was handled appropriately does not necessarily mean the fee was handled inappropriately.

InThe board determined respondent knowingly, if not intentionally, violated duties owed to her client, the legal system, and the legal profession. She caused actual harm to her client by failing to', return unearned fees. She created the potential for serious harm to the underlying proceeding and to her client by engaging in the unauthorized practice of law. She caused the ODC to expend additional resources by failing to cooperate in the disciplinary investigation. Based on the ABA’s Standards for Imposing Lawyer Sanctions, the board determined the applicable baseline sanction is disbarment.

In aggravation, the board found a prior disciplinary record, multiple offenses,’ bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with the rules or orders of the' disciplinary agency, vulnerability of the victims, and indifference to making restitution. The board found no mitigating factors are present.

After further considering this court’s prior jurisprudence addressing similar misconduct, the board recommended a five-year extension of the time period in which respondent can apply for readmisr sion to the bar. The board also recommended respondent be ordered to provide an accounting and a refund, as necessary, to Mr. Auzenne. The board further recommended -respondent be assessed with the costs and expenses .of this proceeding. Two board members dissented and would recommend permanent disbarment.

The ODC filed an objection to the disciplinary board’s recommended sanction as being unduly lenient. Accordingly, the case was docketed for oral argument pursuant to Supreme Court Rule XIX, § 11(G)(1)(b). Respondent did not appear for oral argument, nor did she file a brief in this court.

^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.

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: Dorman, 01-3058 (La. 1/10/03), 838 So.2d 715.

The record in this deemed admitted matter supports a finding that respondent neglected a legal matter, failed to communicate with a client, failed to account for or refund an unearned fee, failed to properly withdraw from a representation, engaged in the unauthorized practice of law, engaged in dishonest conduct, and failed to cooperate with the ODC in its investigation. Based on these facts, respondent has violated Rules 1.3, 1.4(a), 1.5(f)(5), 1.16(d), 5.5(a), 8.1(b), 8.1(c), 8.4(a), 8.4(c), and 8.4(d) 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 high standards of conduct, protect the public, preserve the integrity of the profession, Rand 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, 469 So.2d 520 (La. 1984).

We find that respondent knowingly, if not intentionally, violated duties owed to her client, the legal system, and the legal profession, causing actual and potential harm. Based on the ÁBA’s Standards for Imposing Lauyyer Sanctions, the baseline sanction is disbarment. The aggravating factors found by the disciplinary board are supported by the record. There are no mitigating factors present.'

In their reports, the hearing committees concluded that respondent’s offenses are so egregious that she should be permanently prohibited from applying for readmission to the bar. The disciplinary board, on the other hand, felt that it was sufficient to simply extend for five years the period which must elapse before respondent may seek readmission.

We agree with the hearing committees that respondent’s conduct warrants permanent disbarment. She failed to respect the authority of this court by practicing law after being prohibited from doing so. She appeared in court and held herself out as an attorney after she .received notice of her disbarment. Such conduct falls under Guideline 8 of the permanent disbarment guidelines.

Guideline 9 of the permanent disbarment guidelines is also applicable. That guideline provides that permanent disbarment may be appropriate for instances of serious attorney misconduct which are preceded by suspension or disbarment for prior instances of serious attorney misconduct (defined as any misconduct which has resulted in a suspension of more than one year). Respondent’s current misconduct, taken as a whole, is serious attorney misconduct and was preceded by her disbarment in Gilbert I.

| aRespondent’s long history of misconduct clearly demonstrates that she lacks the fitness to engage in the practice of law in this state. In the face of this indisputable evidence of a fundamental lack of moral character and fitness, we can conceive of no circumstance under which we would ever grant readmission to respondent. Therefore, she must be permanently disbarred.

DECREE

Upon review of the findings and recommendations of the hearing committees and disciplinary board, and considering the record, the brief filed by the ODC, and oral argument, it is ordered that Janinne Latrell Gilbert, Louisiana Bar Roll number 30249, be and she hereby is permanently disbarred. Her name shall be stricken from the roll of attorneys and her license to practice law in the State of Louisiana shall 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 pay restitution of $2,000 plus legal interest to Denton Auz-enne and/or to the Louisiana State Bar Association’s Client Assistance Fund, as appropriate. 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.

CRICHTON, J.,

additionally concurs and assigns reasons:

hi agree with this Court’s decision to permanently disbar Respondent. This Court’s per curiam exhaustively described the stunning facts underlying this case. I write separately because one aspect merits spotlighting — Respondent’s utter failure to participate in the disciplinary matter, including Respondent’s failure to cooperate with the disciplinary agency, file briefs, and appear before this Court for oral argument. As I have noted before, I believe such a lack of respect for the profession can support the sanction of permanent disbarment. See, e.g., In re Fahrenholtz, 2017-0261, p. 2 (La. 4/7/17), 215 So.3d 204, 209-10 (Crichton, J., dissenting and would impose permanent disbarment) (“[R]e-spondent blatantly refused to cooperate with ODC in violation of Rule 8.4(a), both in this case and [a previous case] .... [I]t is difficult to imagine how respondent could have been any more uncooperative.”); In re Mendy, 2016-0456, p. 11 (La. 10/19/16), 217 So.3d 260, 266 (Crichton, J., dissenting and would impose permanent disbarment) (“Respondent’s evident lack of interest in defending these serious charges against him, coupled with his past sanctions, has no place in this noble profession.”).


text:
    STATE of Louisiana v. William SERIGNE & Lionel Serigne
    No. 2016-K-1034
    Supreme Court of Louisiana.
    12/06/2017
    Rehearing Denied January 30, 2018
   ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, FOURTH CIRCUIT, PARISH OF ST. BERNARD

PER CURIAM

Lin 2009, 39-year-old D.A. accused her cousins William and Lionel Sergine of sexually abusing her when she was a child. Other family members, B.M. and M:S., also came forward to accuse William Se-rigne of sexually abusing them. Because of these accusations, Lionel was indicted for the aggravated rape of D.A. committed before 1981. William was' separately indicted for the aggravated rape of D.A. based on an allegation of “oral sexual intercourse” committed in or after 1981, sexual battery of B.M., and aggravated incest of his daughter, M.S. -

After the trial court denied the state’s motion to try. the defendants together, the state convened a second grand jury and obtained a new indictment. Lionel was in-dieted for the aggravated rape of D.A., committed between .the years of 1976 and 1983, in which William was alleged to have jointly participated, William was, indicted for two counts of the aggravated rape of D.A., committed between the years of 1981 and 1983, in which Lionel was alleged to have jointly participated in one count. William was also indicted for the sexual battery of B.M. and aggravated incest of M.S. The co-defendants' motions to sever their trials were denied and the matter proceeded to a bench trial.

After the victim testified, the co-defendants re-urged their motions to, sever, Land moved for a mistrial, on the basis that the victim's testimony did not support the allegation that the co-defendants jointly participated in raping her. The codefen-dants also asked the trial court to perform an in camera review of the victim’s grand jury testimony. The trial court denied the motions and declined to review the grand jury testimony.

The trial court found Lionel guilty as charged of aggravated rape and William guilty of forcible rape, not guilty of a second count of aggravated rape, and guilty of sexual battery and aggravated incest. The court sentenced Lionel to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence, and sentenced William to a total of 40 years imprisonment at hard labor without benefit of parole, probation,- or suspension of sentence.

The court of appeal panel vacated the convictions and sentences. State v. Serigne, 14-0379 (La. App. 4 Cir. 5/2/16), 193 So.3d 297. The court of appeal first noted that Lionel was indicted for an aggravated rape alleged to have occurred between 1976 and 1983, which span included a time when La.R.S. 14:42 provided a penalty of death for aggravated rape. Citing, inter alia, State v. Holmes, 263 La. 685, 269 So.2d 207 (1972), the court found as an error patent that, because ’ Lionel’s offense was classified as capital during at least part of the time alleged in the indictment, the procedural safeguards for capital trials applied and therefore a unanimous 12-person jury was necessary. Because Lionel was found guilty in a bench trial rather than by a unanimous 12-person jury, the court of appeal vacated his conviction and sentence. Because the court of appeal vacated Lionel’s Isconviction and sentence in errors patent review, it did not consider his four assignments of error.

Regarding William, the court of appeal first found the evidence sufficient to support the convictions before then finding that his trial was misjoined to Lionel’s. The court noted that no evidence was presented at trial in support of the allegation that Lionel and William jointly participated in a rape, which allegation was the justification for trying them together. After hearing oral argument, the court of appeal obtained the grand jury transcript and found there was also no evidence presented to the grand jury that would support the state’s allegation of joint participation in a rape. The court of appeal then found that the state withheld the grand jury transcript from the codefendants in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and Giglio v. United States, 405 U.S. 150, 153-54, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), because it contained evidence William did not rape D.A. and William and Lionel did not jointly rape D.A. Therefore, the court of appeal ordered that William receive a new trial and pretermitted consideration of all remaining assignments of error. ‘

The court of appeal erred in applying State v. Holmes to find that Lionel was indicted for an offense classified as capital and therefore unable to waive a jury trial. In Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), the Supreme Court held in a single-paragraph per curiam that the manner in .which the death penalty was imposed and carried out in Georgia and Texas constituted cruel and unusual punishment in violation of the Eighth Amendment. Five justices concurred individually' and at length in the judgment, disagreeing in many aspects j4(such as their understanding of the history and meaning of the Cruel and Unusual Punishments Clause), but four justices appeared to agree in one regard: statutory schemes that give unbridled discretion to the jury to determine if the death penalty will be applied are so arbitrary as to violate the Eighth Amendment. See Furman, 408 U.S. at 253, 92 S.Ct. at 2734 (Douglas, J., concurring) (“[W]e deal with a system of law and of justice that leaves to the uncontrolled discretion of judges or juries the determination whether defendants committing these crimes should die or be imprisoned. Under these laws' no standards govern the selection of the penalty. People live or die, dependent on the whim of one man or of 12.”); id., 408 U.S. at 294-95, 92 S.Ct. at .2754-55 (Brennan, J., concurring) (“[Jjuries ,,. make the decision whether to impose, a death sentence wholly unguided by standards governing that decision”); id., 408 U.S. at 310, 92 S.Ct. at 2763 (Stewart, J., concurring) (“I simply conclude that the Eighth and Fourteenth Amendments cannot tolerate the infliction of a sentence of death under legal systems that permit this unique penalty to be so wantonly and 'so freakishly imposed.”); id., 408 U.S. at 314, 92 S.Ct. at 2764-65 (White, J., concurring) (“[The] recurring practice of delegating sentencing authority to the jury and the fact that a jury, in its own discretion and without violating its trust or any statutory policy, may refuse to impose the death penalty no matter what the circumstances of the' crime [violates the Eighth Amendment]”).

In cases that, followed Furman, this court grappled with the implications of a constitutionally unenforceable death penalty that had not yet been repealed or replaced by the legislature. For .example, in State v. Flood, 263 La. 700, 269 So.2d 212 (1972), the court found that murder remained classified as a capital offense for purpose of determining whether an accused is entitled to bail. The court stated:

[W]e conclude that Furman v. Georgia does not destroy the system of | r,classification of crimes in Louisiana. Murder is still a crime, and, when our legislature last acted with respect to it, murder was, as it has ever been, a Capital crime. The crime remains unchanged; only the penalty has been changed. True, the penalty is what made murder a capital offense, and it is not actually a capital offense in Louisiana today.- But the Nature of thd offense has' not changed — only the punishment.
Because the system of classifying certain serious offenses as capital, and then providing the procedural structure for the administration of criminal justice based on that classification is so fundamental in the organization of our crimi-' nal statutes, we find it preferable to make no change in the interpretation of the constitutional provisions concerning bail. Those offenses classified as capital before Furman v. Georgia are still classified as capital offenses, and those charged with an offense punishable by death before Furman v. Georgia are not entitled to bail where the proof is evident or the presumption great.

Flood, 263 La. at 705-66, 269 So.2d at 214.

Likewise, in State v. Holmes (decided on the same day as Flood), the court found that murder remains classified as a capital case, although it could not be punished as such under Furman, and therefore must be tried before a unanimous, sequestered 12-person jury. Dicta suggests Flood and Holmes were decided against the backdrop of a belief that the Eighth Amendment problem identified in Furman could be readily remedied by a legislative switch to a mandatory death penalty. That belief did not prove correct. In response to Furman, Louisiana, along with 21 other states, eliminated the jury’s role in sentencing in a capital prosecution entirely by making the imposition of the death penalty mandatory. See John W. Poulos, The Supreme Court, Capital Punishment and the Substantive Criminal | «Law: The Rise and Fall of Mandatory Capital Punishment, 28 Ariz. L. Rev. 143, 201-02 (1986). As noted above (see n.l), Louisiana’s mandatory death penalty for first degree murder was then declared unconstitutional in Roberts v. Louisiana.

Thus, Flood and Holmes arose in a particularly unusual and volatile era of developing death penalty jurisprudence and associated legislative responses. Subsequently, however, in State v. Schrader, 518 So.2d 1024 (La. 1988), this court rejected prior jurisprudence under which a defendant, who could not have been sentenced to death due to the constitutional infirmities of the statutes in place at the time of the homicide, would have nonetheless been entitled to the protections afforded the accused in a capital case (including a sequestered jury) because the homicide prosecution retained for procedural purposes its capital classification. The court held:

We now hold, despite its long lineage, the jurisprudential presumption of prejudice for “capital cases” does not apply to a “capital case” where the defendant never faced the prospect of the death penalty and where counsel failed to press the point in the trial court, or object to the lack of sequestration. In the absence of actual prejudice, this right to sequestration is waived.

Schrader, 518 So.2d at 1037. Although the co-defendants argue Schrader should be narrowly construed as applying only to jury sequestration (and not any other procedural protections afforded a capital defendant), nothing in that opinion, which acknowledged Flood and Holmes, suggests the analysis should be so confined. Instead, we find Schrader more broadly rejected the prior “capital classification” jurisprudence, and that it.applies equally to Lionel Serigne here. Lionel, who 17never faced the prospect of the death penalty, validly waived his right to a jury trial and never challenged that waiver until the court of appeal raised this issue as an error patent. Therefore, we reinstate his conviction and sentence. However, for the reasons below, we remand to the district court rather than the court of appeal. After further district court proceedings, as described below, Lionel may seek review in the court of appeal of his pretermitted assignments of error.

As noted above, the court of appeal obtained a transcript of the grand jury proceedings after hearing oral argument and determined the transcript contained Brady material, although a Brady claim had not been presented to the trial court first and ruled upon below. William claimed on appeal the trial court erred in denying his motion to sever and erred in denying his request for a new trial based on prejudicial joinder. By intertwining the joinder and Brady issues so closely, the court of appeal relied on evidence the trial court did not consider, i.e. the grand jury transcript, in determining whether the trial court erred in declining to sever the trials.

Code of Criminal Procedure art. 494 provides:

Two or more defendants may be charged in the same indictment or information if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses. Such defendants may be charged in- one or more counts together or separately and all of the defendants need not be charged in each count.

The trial court is vested with broad discretion in determining whether to grant a motion to sever, and its determination should be upheld in the absence of an abuse of that discretion. State v. Brooks, 88-1420 (La. 1/30/89), 541 So.2d 801, 804-05. In the present case, the state alleged in its second indictment that William. and ^Lionel jointly participated in the aggravated rape of D.A. Based on this allegation, and with no contrary information before it, the trial court did not abuse its discretion in denying the various motions to sever before trial.

At trial, however, the testimony did not support the. allegation of joint participation, and the co-defendants sought a new trial on that basis. To obtain a new trial for misjoinder, it is necessary for a defendant to show prejudice. See La. C.Cr.P. art. 851(2), (4); cf. La,C.Cr.P. art. 495.1. The court of appeal discussed the prejudice William suffered only in the context of the analysis of the possible Brady violation. See Serigne, 14-0379, pp. 31-32, 193 So.3d at 319. Review is further hampered by the absence of the grand jury transcript from the appellate record. Under the unusual circumstances presented here, faced with a record inadequate to evaluate this issue, and mindful of the constitutional prohibition against appellate factfinding in a criminal matter, La. Const. Art. 6, § 5(C), we remand to the district court to determine whether the grand jury testimony contains undisclosed Brady material warranting new trials for Lionel and William in accordance with Giglio v. United States, 405 U.S. 150, 154, 92 S.Ct. 763, 766, 31 L.Ed.2d 104 (1972) and United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985). Thereafter, Lionel and William can seek review in the court of appeal with regard to any unfavorable ruling by the district court. William can also seek review of his claim of prejudicial misjoinder as well as any pretermitted assignments of error.

For the fóregoing reasons, we reverse the court of appeal’s determination in errors patent review that Lionel Serigne’s conviction and sentence must be set | flaside because he was unable to validly waive "a jury trial. Wé reinstate Lionel’s conviction and sentence. In addition, we reverse the court of appeal’s determination that William Serigne is entitled to a new trial based on a Brady violation, which issue was never passed on by the trial court, and we reinstate his convictions and sentences. However, we also remand to the district court for further proceedings to determine if Lionel and William are entitled to new trials based on undisclosed Brady material in the grand jury testimony. Thereafter, Lionel and William may appeal any unfavorable determination by the district court on remand as well as seek appellate review of any previously pretermitted assignments of error. In addition, we preserve William’s claim of prejudicial misjoinder for appellate review after further proceedings in the district court.

REVERSED AND REMANDED

      . In Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976), the U.S. Supreme Court found that Louisiana's mandatory death penalty for first degree murder violated the Eighth Amendment. In Selman v. Louisiana, 428 U.S. 906, 96 S.Ct. 3214, 49 L.Ed.2d 1212 (1976), the U.S. Supreme Court found that a mandatory sentence of death for aggravated rape violated the Eighth Amendment for the reasons expressed in Roberts.. In response to Selman, the legislature amended La.R.S. 14:42 to provide a penalty of life imprisonment without parole eligibility for aggravated rape. 1977 La. Acts 343 (eff. September 8, 1977),

      , The grand jury testimony is not included in the appellate record submitted to this court to review.

      . There was no Brady claim assigned as error and the court of appeal reached this issue sua sponte after it obtained the grand jury transcript.

      . See, e.g. Holmes, 263 La. at 691, 269 So.2d at 209 (emphasis added):
      However, it was not the legislature, but the United States Supreme Court that has held the Imposition and Execution of the death sentence, as now applicable in our State, to be violative of the United States Constitution. No presumption arises that any other provision of Louisiana law has been affected by the United States Supreme Court, except those having to do with the Imposition and Execution of death sentence. Nor, indeed, has the United States Supreme Court eliminated the possibility that the Louisiana legislature might enact statutes which could constitutionally impose the death sentence, when the sentence is mandatory and cannot be applied in a discriminatory manner.

      . In addition, even accepting for the sake of argument the viability of the capital classification jurisprudence after Schrader, the parties and the court below neglect to address State v. Louviere, 00-2085 (La. 9/4/02), 833 So.2d 885, in which this Court held:
      [N]othing in Art. I, § 17 requires the jury to decide all phases of the trial ... we find the relevant limitation embodied in Art. I, § 17 is that of all the components of a trial, from indictment to sentence, only the issue of the ultimate penalty of death is strictly required to be put before the jury.

        Louviere, 00-2085, 833 So.2d at 893.

      . Unlike present law, see R.S. 14:42(A)(5), the statute defining the offense during the perti- ■ nent period did not include multiple, joint perpetrators among the aggravating factors that elevated the grade of the offense. That aggravating factor was first added by 1984 La. Acts. 579. Therefore, the allegation of joint participation in the indictment, while not necessary as an element of the offense, was likely included to obtain a joint trial of the co-defendants.