text:
    In re AMENDMENTS TO THE RULES REGULATING THE FLORIDA BAR-RULE 4-7.6, COMPUTER ACCESSED COMMUNICATIONS.
    No. SC08-1181.
    Supreme Court of Florida.
    Nov. 19, 2009.
    John F. Harkness, Jr., Executive Director, The Florida Bar, Tallahassee, FL, Jesse H. Diner, President, Fort Lauder-dale, FL, John G. White, III, Past President, The Florida Bar, West Palm Beach, FL, Charles Chobee Ebbets, Chair, Special Committee on Website Advertising Rules, Daytona Beach, FL, Elizabeth Clark Tarbert, Ethics Counsel, The Florida Bar, Tallahassee, FL, and Mary Ellen Bateman, Director, Legal Division DEUP, The Florida Bar, Tallahassee, FL, for Petitioner.
    Timothy P. Chinaris, Montgomery, AL, Responding with comments.
   PER CURIAM.

The Florida Bar petitioned the Court to consider proposed amendments to Rule Regulating the Florida Bar 4-7.6 (Computer-Accessed Communications). In an opinion issued on February 27, 2009, the Court declined to adopt the proposed amendments. The Florida Bar has filed a motion for rehearing. We grant the motion. The opinion issued on February 27, 2009, is hereby withdrawn, and this opinion is substituted in its place.

Rule 4-7.6 regulates computer-accessed attorney advertising such as websites, electronic mail, and other forms of computer-accessed communications. The Bar proposes amendments to subdivisions 4-7.6(a) (Definition); 4-7.6(b) (Internet Presence); 4-7.6(c) (Electronic Mail Communications); and 4-7.6(d) (Advertisements). The proposed amendments address changes in terminology and technology, take into account the methods the public uses to access computer advertising, recognize the vast flow of information through the Internet, and seek to provide a new approach to regulating computer-accessed attorney advertisements. The proposals are the result of dedicated study and vital debate by The Florida Bar’s Special Committee on Website Advertising Rules (Special Committee), the Advertising Task Force 2004 (Task Force), the Board of Governors’ Rules Committee, and the Board of Governors. The Court wishes to express its gratitude to The Florida Bar and its members who contributed to the development of these proposals.

On January 15, 2008, the proposals were published for comment in The Florida Bar News. In the notice, the Bar directed interested parties to file their comments directly with the Court. Thereafter, on February 26, 2008, the Bar filed the proposed amendments with the Court. The Court received only one comment. After considering the proposals and the comment, holding oral argument on January 6, 2009, and examining the Bar’s motion for rehearing, the Court adopts the proposed amendments as modified herein.

The history of regulating computer-accessed lawyer advertising is a study in contrasts. This is most likely due to the nature of website advertising, which is frequently changing and often challenging to categorize. Even so, the purpose of rule 4-7.6 is to protect consumers from misleading information, provide consumers with accurate and helpful information in the selection of a lawyer, and respect lawyers’ abilities to provide information about themselves to the public. In light of this purpose, the Court intends that websites be subject to all of the substantive advertising regulations applicable to other advertising media (except the filing requirement).

In contrast to the Court’s intention, the proposed amendments would have permitted lawyers to provide information through computer-accessed attorney advertising about the following, which are otherwise prohibited under the lawyer advertising rules: (1) statements that characterize the quality of legal services being offered; (2) information regarding past results; and (B) testimonials. At oral argument, the Court expressed concern regarding these proposed exceptions to the established advertising rules. Existing rule 4-7.2(c)(2) plainly states that a lawyer “shall not make statements describing or characterizing the quality of the lawyer’s services in advertisements.” Also, rule 4-7.2(c)(l)(F) clearly prohibits lawyers from making advertising communications that contain “any reference to past successes or results obtained.” Rule 4-7.2(c)(l)(J) prohibits a lawyer from using testimonials. Thus, when the Court previously declined to adopt the proposed amendments, the opinions stated that these established and substantive advertising rules, which protect the public, should apply to computer-accessed advertisements. For example, laudatory-type statements, such as “testimonials,” are extremely troubling because they have the most potential for abuse, as well as the most potential for further denigrating the justice system and the legal profession in the minds of the public. Further, it would be incongruous to propose a loosening of the advertising rules and the allowance of more self-laudatory statements (i.e., past results and testimonials), in a forum that the Bar admits it cannot adequately monitor or control.

In light of the Court’s opinions, the Bar proposed in the motion for rehearing that

[i]f this court intends that websites be subject to all of the substantive advertising regulations applicable to other advertising media (excepting the filing requirement), this court should amend rule 4-7.6(b) by striking the language referring to information “upon request” and adding language that websites are subject to the requirements set forth in rule 4-7.2.

As we intend for the substantive advertising rules to apply to website advertising and protect the public, we modify the proposal for subdivision (b) as suggested in the Bar’s motion for rehearing.

The remaining proposals address subdivisions (a), (c), and (d). These proposed amendments would update the terminology in existing subdivision (a) (Definition), (changing “homepages” and “World Wide Web” to “websites” or “Internet”). The proposal for subdivision (c) (Electronic Mail Communications) would clarify that email communications are subject to rules that regulate advertisements by traditional mail. The proposal for subdivision (d) would provide enhanced guidance by clearly stating that all other unsolicited Internet communications not specifically identified in rule 4-7.6 are governed by the advertising regulations set forth in rule 4-7.2. After considering the proposals and the Bar’s motion for rehearing, we adopt these three proposals.

Accordingly, the Court adopts the amendments to the Rules Regulating the Florida Bar as set forth in the appendix to this opinion. Deletions are indicated by struck-through type, and new language is indicated by underscoring. The comments are included for explanation and guidance only and are not adopted as an official part of the rules. The amendments shall become effective on January 1, 2010, at 12:01 a.m.

It is so ordered.

QUINCE, C.J., and PARIENTE, LEWIS, CANADY, POLSTON, and LABARGA, JJ., concur.

PERRY, J., did not participate.

APPENDIX

RULE 4-7.6 COMPUTER-ACCESSED COMMUNICATIONS

(a) Definition. For purposes of this sub-chapter, “computer-accessed communications” are defined as information regarding a lawyer’s or law firm’s services that is read, viewed, or heard directly through the use of a computer. Computer-accessed communications include, but are not limited to, Internet presences such as home pages-or — WoNd-Wide-Web-websites, unsolicited electronic mail communications, and information concerning a lawyer’s or law firm’s services that appears on World Wide Web Internet search engine screens and elsewhere.

(b) Internet Presence. All World Wide Web — websites and home-pages accessed via the Internet that are controlled or sponsored by a lawyer or law firm and that contain Information concerning the lawyer’s or law firm’s services:

(1) shall disclose all jurisdictions in which the lawyer or members of the law firm are licensed to practice law;

(2) shall disclose 1 or more bona fide office locations of the lawyer or law firm, in accordance with subdivision (a)(2) of rule 4-7.2; and

(3) are considered to be information provided- upon requestsubject to the requirements of rule 4-7.2.

(c) Electronic Mail Communications. A lawyer shall not send, or knowingly permit to be sent, on the lawyer’s behalf or on behalf of the lawyer’s firm or partner, an associate, or any other lawyer affiliated with the lawyer or the lawyer’s firm, an unsolicited electronic mail communication directly or indirectly to a prospective client for the purpose of obtaining professional employment unless:

(1) the requirements of rule 4-7.2 and subdivisions (b)(1), (b)(2)(A), (b)(2)(D), (b)(2)(E), (b)(2)(F), (b)(2)(G), (b)(2)(H), and (b) (2) (I)r-and — (b)(2)(-J) of rule 4-7.4 are met;

(2) the communication discloses 1 or more bona fide office locations of the lawyer or lawyers who will actually perform the services advertised, in accordance with subdivision (a)(2) of rule 4-7.2; and

(3) the subject line of the communication states--legal-advertisementbegins with “LEGAL ADVERTISEMENT.”

(d) Advertisements. All unsolicited computer-accessed communications concerning a lawyer’s or law firm’s services-, — other than those subject to subdivisions- (b) and (c)-of — this rule, not addressed by other provisions of this rule are subject to the requirements of rule 4-7.2.

Comment

Advances in telecommunications and computer technology allow lawyers to communicate with other lawyers, clients, prospective clients, and others in increasingly quicker and more efficient ways. Regardless of the particular technology used, however, a lawyer’s communications with prospective clients for the purpose of obtaining professional employment must meet standards designed to protect the public from false, deceptive, misleading, or confusing messages about lawyers or the legal system and to encourage the free flow of useful legal-related information to the public.

The — specific—regulations—that—govern computer-accessed communications differ according- to -the-■ -particular-variety- of communication-employed. — For example, — a ■lawyeFs-I-ntemet-web-site ■ is accessed by the viewer upon the viewer’s initiative and, accordingly, the standards governing- such-communications correspond to the rules applicable to information provided to a prospective — client—at—the—prospective client’s request.

In contrast, uUnsolicited electronic mail messages from lawyers to prospective clients are functionally comparable to direct mail communications and thus are governed by similar rules. Additionally, communications advertising or promoting a lawyer’s services that are posted on search engine screens or elsewhere by the lawyer, or at the lawyer’s behest, with the hope that they will be seen by prospective clients are simply a form of lawyer advertising and are treated as such by the rules.

Examples of computer-accessed communications other than websites and electronic mail include pop-up advertisements and banner advertisements. As indicated by the rule, such advertisements must comply with rule 4-7.2.

This rule is not triggered merely because someone other than the lawyer gratuitously links to, or comments on, a lawyer’s Internet web site website.

      . We have jurisdiction. See art. V, § 15, Fla. Const.

      . Before submitting previous proposed amendments to the Court for consideration, see In re Amendments to the Rules Regulating the Florida Bar — Advertising, 971 So.2d 763 (Fla.2007), the Task Force originally concluded that websites are distinguished from general advertising because the typical viewer would not access a lawyer's website by accident, but would be searching for that lawyer, a lawyer with similar characteristics, or information regarding a specific legal topic. In contrast, the Board of Governors' Citizens Forum disagreed with the Task Force and concluded that attorney websites should be subject to the same general regulations as other forms of lawyer advertising. The Citizen’s Forum reasoned that for website advertising, the public should be provided with the same protections (from false and misleading attorney advertising) that are required for more traditional methods of advertising. Thereafter, the Board voted to continue regulating websites pursuant to the general advertising regulations, except for a few specified exceptions.
      Afterwards, through its study, the Special Committee determined that each substantive attorney advertising regulation should apply to attorney websites, and that websites should be subject to the same regulation as other forms of media, except that websites should be exempt from the requirement that advertisements must be filed with the Bar for review. However, in December 2006, the Board voted against adopting the Special Committee’s recommendation that all substantive lawyer advertising rules apply to lawyer websites.

      . In the previous opinion, the Court made suggestions to assist the Bar in regulating computer-accessed attorney advertising. In the Bar’s motion for rehearing, the Bar stated:
      The court's order made 2 suggestions regarding websites: 1) a 2 step process for lawyers to have information on a website that would qualify as information "upon request” of the prospective client; and 2) a requirement that lawyers certify that their websites comply with all advertising rules. During the course of its study, the bar considered both these options and determined not to recommend them to this court.

      . The comment to the rule regarding testimonials states that testimonials are prohibited, "whether from clients or anyone else, because they are inherently misleading to a person untrained in the law. Potential clients are likely to infer from the testimonial that the lawyer will reach similar results in future cases. Because the lawyer cannot directly make this assertion, the lawyer is not permitted to indirectly make that assertion through the use of testimonials." (Emphasis added.)
      Based on The Florida Bar's statements at oral argument regarding the term “testimonial,” the Court will refer, by separate letter, a request to the Bar that it study and define "testimonial” and report back to the Court.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    In re AMENDMENTS TO THE FLORIDA RULES OF TRAFFIC COURT.
    No. SC09-161.
    Supreme Court of Florida.
    Dec. 3, 2009.
    Rick Silverman, Chair, Traffic Court Rules Committee, Tampa, FL; John F. Harkness, Jr., Executive Director, and Ann Chittenden, Staff Liaison, The Florida Bar, Tallahassee, FL, for Petitioner.
    Mila K. Schwartzreich, Fort Lauderdale, FL, on behalf of Al Lamberti, Sheriff of Broward County; Joel Cantor, Hollywood, FL, on behalf of Broward County Police Chiefs Association; and Steven D. Rubin, Boca Raton, FL, Responding with Comments.
   PER CURIAM.

We have for consideration proposed rule amendments filed by the Traffic Court Rules Committee (Committee). We have jurisdiction. See art. V, § 2(a), Fla. Const.; Fla. R. Jud. Admin. 2.140(b).

BACKGROUND

The Committee filed its regular-cycle report of proposed amendments to the Florida Rules of Traffic Court. The Committee proposes amendments to rules 6.115 (DUI Program Coordination Trust Fund); 6.291 (Procedures on Withheld Adjudication in Driving While License Suspended; Costs and Enlargement of Time to Comply; Record of Convictions); 6.330 (Election to Attend Traffic School); 6.445 (Discovery: Infractions Only); 6.480 (Deferred Payment of Penalty Imposed); 6.600 (Failure to Appear or Pay Civil Penalty; Reinstatement of Driver License); and 6.630 (Civil Traffic Infraction Hearing Officer Program; Traffic Hearing Officers). The Board of Governors of The Florida Bar unanimously approved the proposed amendments.

Before filing the proposals with the Court, the Committee published the proposals for comments; no comments were received. The Court republished the proposals and two comments were filed. The Committee filed a response to the comments in which it stated that it “feels no need to respond substantively to the comments filed on the proposed rule amendments in this case.”

After initially considering the Committee’s proposals, the Court asked the Committee to file a supplemental report addressing whether any of the proposals currently before the Court require further amendments in light of recent legislation. The Committee filed a supplemental report that proposes that rule 6.115 be deleted in its entirety from the rules because the DUI Program Coordination Trust Fund was terminated on July 1, 2009. See ch. 2009-71, § 1, Laws of Fla.

AMENDMENTS

Having considered the Committee’s reports, the comments, and the Committee’s response, we amend the Rules of Traffic Court as explained below. Rule 6.115 is repealed, effective immediately. We adopt the proposed amendments to rules 6.291(a), 6.330(a), and 6.445. We adopt the proposed amendments to rule 6.480 with a minor modification. However, we decline to adopt the proposed amendments to rules 6.600 and 6.630.

The amendment to rule 6.291(a) (Costs) corrects statutory references in the rule. The amendment to rule 6.330(a) (Attendance at School) creates a uniform time period throughout the state within which a defendant can elect to attend driver improvement school. The amendment to rule 6.445 (Discovery: Infractions Only) requires a citing law enforcement officer to identify in the citation the type of electronic or mechanical speed measuring device used and the manufacturer’s serial number on the device.

We have revised the proposed amendment to rule 6.480 (Deferred Payment of Penalty Imposed) to require that upon a defendant’s or the official’s own motion, the defendant must be afforded no less than thirty days, rather than the proposed sixty days, before he or she is required to pay any penalty imposed.

We decline to adopt the proposed amendments to rules 6.600(b) (Appearance After Notice Sent) and 6.600(c) (Reinstatement of License). The Committee’s proposed amendments provide a defendant an opportunity to request a hearing. Under subdivision (c), the defendant must request a reinstatement hearing within twelve months of the alleged offense. The amendments also require the clerk to set the case for hearing under subdivisions (b) and (c). We conclude that the Committee’s proposed twelve-month period for allowing a defendant to request a reinstatement hearing is excessive. We also believe that the rule should not require the clerk to set the case for hearing as a result of a defendant’s request. It is both practical and desirable for the official to exercise discretion in determining whether a defendant’s request for a hearing has been made within a reasonable period and should be granted.

We also decline to adopt the proposed amendments to rule 6.630 (Civil Traffic Infraction Hearing Officer Program; Traffic Hearing Officers). The Committee proposes amendments to this rule that would give traffic hearing officers the authority to hear noncriminal boating infraction cases and would allow training on boating infractions to be included in the curriculum for traffic hearing officers. According to the Committee, the proposal includes statutory references that would cause uniform boating citations to be treated in the same manner as uniform traffic citations and conforms the rule to the current practice throughout the state. We are concerned that the proposal pertaining to boating infractions may be unnecessarily confusing to attorneys and the general public if the rules addressing both traffic and boating infractions are placed in rule 6.630. The Committee’s proposed amendments also would cause rule 6.630 to exceed the recognized scope of the Rules of Traffic Court. Rule 6.010(a) (Scope; Application) states: “These rules govern practice and procedure in any traffic case and specifically apply to practice and procedure in county courts and before civil infraction hearing officers.” Rule 6.630 is placed under Part IV (Traffic Infractions). Rule 6.010(c) (Scope; Part IV) clarifies as follows: “The rules under Part IV of these rules apply only to traffic infractions adjudicated in a court of the state, whether by a county court judge or civil traffic infraction hearing officer.” We also question whether rules relating to boating infractions should be included in the Rules of Traffic Court. Recently, we pointed out that boating offenses are not traffic offenses. See In re Standard Jury Instructions in Criminal Cases — Report No. 2008-08, 6 So.3d 574, 574 (Fla.2009) (renaming chapter 28, Traffic Offenses, of the Standard Jury Instructions “Transportation Offenses”; recognizing that chapter 28 previously was limited to vehicle-related offenses and that proposed new instructions relating to boating under the influence are not traffic offenses or vehicle-related). Therefore, we conclude that a better course to take is to refer the matter to both the Traffic Court Rules Committee and the Civil Procedure Rules Committee to consider whether a general rule pertaining to civil infraction hearing officers to preside over both traffic and boating infraction cases is warranted.

CONCLUSION

Accordingly, we amend the Florida Rules of Traffic Court as reflected in the appendix to this opinion. New language is indicated by underscoring; deletions are indicated by struck-through type. The committee notes are offered for explanation only and are not adopted as an official part of the rules. Other than the repeal of rule 6.115, which is effective immediately, the amendments shall become effective on January 1, 2010, at 12:01 a.m.

It is so ordered.

QUINCE, C.J., and PARIENTE, LEWIS, CANADY, POLSTON, LABARGA, and PERRY, JJ., concur.

APPENDIX

RULE 6,115, DUI PROGRAM COOB-

(a)Monthly Assessments. — Each DUI program-approved by-the-DUI-Programs Direc-tor-is-required-to-remit-monthly-the assessments collected- pursuant to -section 25,387-,-Florida Statutes,-to- the- DU-I-Programs Director of the supreme court on a form provided by the supreme court.

(b) -Records- and-Accounts. Each certified DUI program shall cause records and accounts to be kept in accordance with procedures - prescribed- -by- -the — supreme court. — Such-records-and-accounts will be subjeet-to audit by the designated representative of the supreme court,

(c) Collection-of — Trust Fund, Each DUI-program ---shall-collect-the-trust-fund in-aceordance-wifh the plan attached hereto,

(d) Plan for Implementation of DUI Programs — Coordination—Trust—Fund, Pursuant to section 25.387⅛ Florida Statutes, the-supreme- court adopts the following plan for the implementation of the DUI -Programs Coordination -Trust Fund-.-

(1)-All- DUI-programs- in • the State of Florida-shall-nssess-$-lQ-agafnst-every-indi-v-idual-enroll-ing — in-a-BU-I- course at the time ■ of - -the enrollment, -including ■ -those w-ho — transfer to or from a program in another -state..Federal-military employees)-their--dependents,--and--retired-military personnel — who-attend—a--federal—military DUI program shall be subject to the assessment, — I-n-addition, effective-Qetober 1, 1986, second and third offenders evaluated for eligibility for restricted licenses pu-r-suant-to-seGtion-322^74-(-2-)(b-)-, — Florida Statutes^ shall be assessed $10 upon enrollment in the program and upon each subsequent-ann-iversar-y-date-of — suoh^en-rollment-for-the -duration- of- -the-restricted license period. — For-administrative—convenience-,■-the-D-UI-program-may-establish-an-annual-ramittance date for submission of-the-assessment-fee-as-long-as — neither the DUI Trust Fund Commission collections -nor - the client is detrimentally-affected,

(2) In no case shall the assessment be waived.-

(3) -Each.program — shall—-remit—on—a monthly-basis- ■ the-assessment-collected.The remittance- shall--be -received by-the supreme court-within-3Q-days-following- the last-day-of-the-month-in--which-the-assessment-was-collected- — The-remlttance -shall be in the form of a check or money order payable to the State of Florida-and-be-sent with a form-entitled “DUI Programs Coordination — Trust—F-und-Remittance of.$10 Additional-Assessment.” — This- form shall be subject to the approval of the DUI Program Trust Fund Commission:-

(4) Each DUI progr-am-shall-cause records and accounts to-be-kept-that- show the collection of each assessment-and that will be subject to audit-by-the-supreme court. The records-of-the-assessments shall be in a form specified by the supreme-court. This form shall be subject to the approval of-the DUI Program Trust Fund Commis-

(5) Each program shall be-responsible for all costs,-if any, incurred through com-plianee-with-the requirements of the fund.

(6) — Each DUI program may request an increase in the fee charged -for-enrollment in the DU-I-eour-se to cover the assessment. The DUI Programs-Coordination Office shall-determine whether a -change in the fee-is-appropriate.

ffl-Monies-collected by the-fund shall be used-by the DUI Programs-Coordination Office to pay for staff-salaries, travel, and other expenses-related to the functioning of the office. — The fund also will-be used to pay for programs in which the director’s office engages, including, but not limited to, interstate reciprocity, training, certification, monitoring, and technical assistance- — The-supreme court may assess the ■fund for reasonable-costs for the administration of the-fund.

(8) The DUI Program Trust Fund Commission shall be the administrator of the ■fund-.

Committee Notes

19S8^Amendment, — The offense of driving — while intoxicated was-abolished by statute, — thereby -making references — to DWI schools inappropriate; title of position coordinating such program has simi-iarly-been-changed.

The-forms (Appendixes Ar-and B) have been-removed from the rules-because their possibly frequent need for amendments does-not seem to be of sufficient importance to invoke the-amendatory rule process of the court. — Under- the proposed amendment any changes could be made by the court-appointed-Trust Fand-Commis-

The--function of administering the trust fend-is-also placed with the-Trust Fund Commission.

1990 Amendment. — Present wording of ■this rule has created-considerable accounting - inconvenience -to — Florida’s DUI/Substance Abuse Schools-due to the hundreds of — -varied anniversary-dates-that result frona-the-intake of thousands-of-defendants applying fer-reinstatement of driving privileges under — Florida’s Multiple Offender DUI Rellcensing- Law. The proposed rule would provide-for-a-more convenient and economical-annual remittance date for submission of — assessment fees to the DUI Trust Commission.

RULE 6.291. PROCEDURES ON WITHHELD ADJUDICATION IN DRIVING WHILE LICENSE SUSPENDED; COSTS AND ENLARGEMENT OF TIME TO COMPLY; RECORD OF CONVICTIONS

(a) Costs. When a defendant charged with a criminal offense elects to exercise the option of receiving a withheld adjudication under section 318.14(10), Florida Statutes, law enforcement education assessments under section 948.25, Florida Statutes, and victims-of-crimes compensation costs and surcharges pursuant tounder sections 960.20 and--960^5938.03 and 938.04, Florida Statutes, shaflmust be assessed, in addition to the court costs assessed by section 318.14(10), Florida Statutes.

(b)-(d) [No change]

Committee Notes

[No change]

RULE 6.330. ELECTION TO ATTEND TRAFFIC SCHOOL

(a) Attendance at School. Unless a mandatory hearing is required, or the defendant appears at a hearing before an official, a defendant may elect to attend a driver improvement school pursuant to section 318.14(9), Florida Statutes, within 30 days of receiving a citation or, if a hearing was requested, at any time before trial. Attendance at a driver improvement school shall not operate to waive the law enforcement education assessments under section 943.25, Florida Statutes. Any defendant electing to attend driver improvement school under section 318.14(9), Florida Statutes, will receive a withheld adjudication and not be assessed points.

(b) [No change]

Committee Notes

2009 Amendment. The rule change in subdivision (a) was necessary to create a uniform time period throughout the state by which a clerk must allow a defendant to elect to attend a driver improvement school.

RULE 6.445. DISCOVERY: INFRACTIONS ONLY

If an electronic or mechanical speed measuring device is used by the citing officer, the type of device and the manufacturer’s serial number must be included in the body of the citation. If any relevant supporting documentation regarding the electronic or mechanical speed measuring-such-device-ased-b-y-the-eiting-offieei — ⅛-⅛ saidthe officer’s possession at the time of trial, the defendant or defendant’s attorney shall be entitled to review saidthat documentation immediately before that trial.

Committee Notes

2009 Amendment. This amendment is based on the fact that currently to the committee’s knowledge there are 5 different measuring devices or types: Radar, Laser, Pace Car, Vascar, and airplane with stopwatch. It is believed that identifying the type of measuring device is not unduly burdensome to the state and it is necessary in the preparation of a defense. Withholding this information until the time of trial unduly prejudices the defense. This amendment is also forward-looking in that as new measuring devices appear, they can be effectively used as long as they are disclosed.

RULE 6.480. DEFERRED PAYMENT OF PENALTY IMPOSED

(a) Procedure. On motion of the defendant or on the official’s own motion, an official maymust allow a reasonable amount of time, no less than 30 days, before requiring the payment of any penalty imposed. If payment is not made after such extension or further extensions, such action will be considered a failure to comply for purposes of section 318.15, Florida Statutes.

(b) [No change]

Committee Notes

2009 Amendment. Too often, defendants, represented by counsel and exercising use of Traffic Court Rule 6.340 (Waiver of Appearance), will resolve a case and be forced to make payment immediately, within 5 or 10 days. This type of sanction does not allow for the defendant to be notified by counsel in a reasonable amount of time. The amendment relieves the defendant from this undue hardship.

      . The rule defines “official” as “any state judge or traffic hearing officer authorized by law to preside over a court or at a hearing adjudicating traffic infractions.” Fla. R. Traf. Ct. 6.040(f).


author:
VICTORY, J.
     JOHNSON, Justice,

text:
    Michael T. GREEN v. AUTO CLUB GROUP INSURANCE COMPANY and Mary J. Plangger.
    No. 2008-CC-2868.
    Supreme Court of Louisiana.
    Oct. 28, 2009.

      Bendana & Carlton, Wayne Hunter Carlton, Jr., New Orleans, for applicant.
    Adams & Reese, Gregory Fortier Roue-hell, New Orleans, Donovan & Lawler, Metairie, Paul Michael Donovan, for respondent.
   VICTORY, J.

|, At issue in this direct action lawsuit, brought against a nonresident tortfeasor and her foreign liability insurer, is whether venue is proper in the parish of plaintiffs domicile. If suit was filed in the proper venue, then plaintiffs suit has not prescribed. For the reasons that follow, we find that venue is proper in the parish of plaintiffs domicile under the provisions of La. C.C.P. art. 42(5), and that therefore, prescription was interrupted under La. C.C. art. 3462. Accordingly, we reverse the judgment of the court of appeal and reinstate the decision of the trial court denying defendants’ Exceptions of Improper Venue and Prescription.

FACTS AND PROCEDURAL HISTORY

On December 13, 2006, Michael Green (“Green”) filed suit in Orleans Parish, the parish of his domicile, against defendants, Mary Plangger (“Plangger”), a nonresident tortfeasor, and her liability insurer, Auto Club Group Insurance Company (“Auto Club”), a foreign insurance company not authorized to do business in Louisiana, seeking damages for personal injuries allegedly sustained as a result of an automobile accident that occurred on December 16, 2005, in St. John the Baptist | ¡¿Parish. Green requested service of process on the defendants pursuant to the Long Arm Statute, La. R.S. 13:3201(A)(3), via certified mail. Auto Club was served on January 5, 2007, but service was not perfected on Plangger until July 12, 2007. Defendants filed Exceptions of Improper Venue and Prescription, arguing that venue was only proper in the parish where the accident occurred or East Baton Rouge Parish under the provisions of the Direct Action Statute, La. R.S. 22:1269, and that because venue was improper in Orleans Parish and service was not perfected on defendants within the prescriptive period, the suit had prescribed under La. C.C.P. art. 3462.

The trial court denied defendants’ Exceptions of Improper Venue and Prescription and the court of appeal denied defendants’ writ application. Green v. Auto Club Group Ins. Co., 07-1468 (La.App. 4 Cir. 2/20/08). This Court granted defendants’ writ application and remanded the case to the court of appeal for briefing, argument, and opinion. Green v. Auto Club Group Ins. Co., 08-0614 (La.5/2/08), 979 So.2d 1273. On remand, the Fourth Circuit reversed the judgment of the trial court, finding that venue was only proper under the Direct Action Statute in St. John the Baptist Parish or East Baton Rouge Parish, and that therefore, the suit had prescribed pursuant to La. C.C. art. 3462 because it was not filed in either of those parishes. Green v. Auto Club Group Ins. Co., 07-C1468 (La.App. 4 Cir. 10/1/08), 994 So.2d 701. We granted the plaintiffs writ application. Green v. Auto Club Group Ins. Co., 08-2868 (La.2/12/09), 2 So.3d 432.

DISCUSSION

“Venue means the parish where an action or proceeding may properly be brought and tried under the rules regulating the subject.” La. C.C.P. art. 41. The Direct Action Statute grants a procedural right of action against an insurer where the plaintiff has a substantive cause of action against the insured. Hood v. Cotter, 08-215 (La.12/2/08), 5 So.3d 819; Cacamo v. Liberty Mutual Ins. Co., 99-3479 (La.6/30/00), 764 So.2d 41, 43; Descant v. Administrators of Tulane Educational Fund, 93-3098 (La.7/5/94), 639 So.2d 246. The Direct Action Statute “was enacted to give special rights to tort victims, not to insureds with contract claims against a defendant.” Cacamo, supra at 43. In the absence of the Direct Action Statute, a plaintiff would have no right of action against an alleged tortfeasor’s liability insurer because the obligation between the plaintiff and the alleged tortfeasor is delic-tual in nature, and plaintiff has no contractual relationship with the tortfeasor’s insurer. Because the Direct Action Statute provides the sole procedural right of action against the insurer in this ease, the Direct Action Statute provides “the rules regulating the subject,” and venue may only be determined according to that statute’s venue provision.

14Venue under the Direct Action Statute is provided in La. R.S. 22:1269, in pertinent part, as follows:

The injured person or his or her survivors or heirs mentioned in Subsection A, at their option, shall have a right of direct action against the insurer within the terms and limits of the policy; and, such action may be brought against the insurer alone, or against both the insured and insurer jointly and in solido, in the parish in which the accident or injury occurred or in the parish in which an action could be brought against either the insured or the insurer under the general rules of venue prescribed by Code of Civil Procedure Art. 12 only. (Emphasis added).

Thus, the first alternative under La. R.S. 22:1269 is the parish where the accident or injury occurred, which is St. John Parish. The second alternative is any parish in which the action could be brought against either the insured or the insured under the general venue rules of La. C.C.P. art. 42 only. For the reasons stated below, venue was proper in the parish of plaintiffs domicile pursuant to La. C.C.P. art. 42.

La. C.C.P. art. 42(5) provides:

A foreign corporation or a foreign limited liability company not licensed to do business in the state, or a nonresident who has not appointed an agent for the service of process in the manner provided by law, other than a foreign or alien insurer, shall be brought in the parish of the plaintiffs domicile or in a parish where the process may be, and subsequently is, served on the defendant. (Emphasis added.)

La. C.C.P. art. 42(6) provides:

A nonresident, other than a foreign corporation or a foreign or alien insurer, who has appointed an agent for the service of process in the manner provided by law, shall be brought in the parish of the designated post office address of an agent for the service of process. (Emphasis added.)

The court of appeal found that La. C.C.P. art. 42(5), which would allow venue in the parish of plaintiffs domicile, does not apply because the insured in this case appointed an agent for service of process by virtue of La. R.S. 13:3474. La. R.S. | ¡¿3:3474 provides that the acceptance by nonresidents of the privileges of driving a car in Louisiana “shall be deemed equivalent to an appointment by such non-resident of the secretary of state of Louisiana ... to be his true and lawful attorney for service of process ...” Thus, the court of appeal held, La. C.C.P. art. 42(6) applies, which only allows the suit to be brought in the parish of the agent for service of process, in this case East Baton Rouge Parish.

We disagree. A nonresident driver for whom the secretary of state has been statutorily appointed for service of process is not a nonresident “who has appointed an agent for the service of process in the manner provided by law ...” under La. C.C.P. art. 42(6). The Official Revision Comments make this clear: “[p]aragraph (6) does not apply to a nonresident for whom, by operation of law, the secretary of state is made the agent for service of process, for in such a case the nonresident has not ‘appointed’ an agent.” La. C.C.P. art. 42, Official Revision Comment (d) (1960). Because the insured in this case did not “appoint” an agent for service of process, La. C.C.P. art. 42(5) applies and allows suit to be brought against the insured in the parish of plaintiffs domicile, which it was in this case. Pursuant to La. R.S. 22:1269, suit can be brought where venue is proper for either the insurer or the insured under La. C.C.P. art. 42 only; therefore, as venue was proper for the insured, it was also proper for the insurer. Under La. C.C. art. 3462, because this suit was filed in the proper venue, prescription was interrupted. Therefore, the trial court was correct in denying defendants’ Exceptions of Improper Venue and Prescription.

DECREE

For the reasons stated herein, the judgment of the court of appeal is reversed, the trial court judgment denying defendants’ Exceptions of Improper Venue and | ¡¿Prescription is reinstated, and the case is remanded to the trial court for further proceedings.

REVERSED AND REMANDED; TRIAL COURT JUDGMENT REINSTATED.

JOHNSON, J., concurs and assigns reasons.

JOHNSON, Justice,

concurs in the result:

LI agree with the majority that the defendants’ Exceptions of Improper Venue and Prescription must be denied. Michael T. Green (Green) filed this tort suit in Orleans Parish, the Parish of his domicile, on December 13, 2006, against defendants, Mary Plangger, (Plangger) a nonresident tortfeasor, and her liability insurer, Auto Club Group Insurance Company (Auto Club), a foreign insurance company not authorized to do business in Louisiana. The automobile accident occurred on December 16, 2005 in St. John the Baptist Parish. Green requested service of process on the defendants pursuant to the Long Arm Statute, via certified mail.

It is well established that the filing of suit in a court of competent jurisdiction and proper venue interrupts the prescriptive period. In addition, service of citation must be requested within 90 days of filing suit.

La. C.C.P. art. 1201(C) provides:

Service of the citation shall be requested on all named defendants within 90 days of commencement of the action. When a supplemental or amended petition is filed naming any additional defendant, service of citation must be ^requested within 90 days of its filing.

La. C.C. art. 3463 provides:

An interruption of prescription resulting from the filing of a suit in a competent court and in the proper venue or from service of process within the prescriptive period, continues as long as the suit is pending....

In the instant case, Green filed suit on December 13, 2006, and made a valid request for service on the defendants via the Long Arm Statute, within 90 days of filing suit. Green argued, in the courts below, and in this court, that prescription was interrupted by the filing of suit in a proper venue on December 13, 2006, and the timely request for service. In his application for writ of certiorari to this Court, Green argued:

It is the contention of the plaintiff that the provisions of CCP Art. 42(5) are immaterial since CCP Art. 73 and LA R.S. 13:3203 are exceptions to CCP Art. 42, and unequivocably grant him the right to proceed against all defendants in his parish of domicile.

The majority concludes that “the Direct Action Statute provides the sole procedural right of action against the insurer in this case.” In my view, neither statutory authority, nor jurisprudence, supports the position that the Direct Action Statute is the exclusive procedural vehicle for this plaintiffs action. The Direct Action Statute does allow a direct right of action, by third persons, against a foreign insurer, and is the correct procedural vehicle when the foreign insurer is the sole defendant. The distinction in this case, is that Green sued the tortfeasor and her liability insurer jointly, and served both using the Louisiana Long Arm Statute. Green was legally permitted to sue the tortfeasor and the tortfeasor’s liability insurer as joint and solidary obligors, pursuant to La. C.C.P. art. 73. La. C.C.P. art. 73 was amended in 1989 to provide that an action against solidary or joint obligors:

may be brought in a parish of proper venue, under La. |3C.C.P. art. 42 only ... provided that an action for recovery of damages for an offense or quasi-offense ... may be brought in the parish where the plaintiff is domiciled if the parish of plaintiffs domicile would be a parish of proper venue against any defendant under either La. C.C.P. art. 76 or R.S. 13:3203.

When a petition for damages is filed against a non-resident pursuant to the provisions of La. R.S. 13:3201, venue is controlled by the provisions of La. R.S. 13:3203, which authorizes a suit against a non-resident to be brought in the parish of plaintiffs domicile, or any parish of proper venue. A plaintiff may utilize the provisions in La. C.C.P. art. 73 to file suit against all defendants who are solidary obligors with the non-resident defendant, in the parish of plaintiffs domicile. Boeck v. Performance Toyota of Louisiana, Inc., 562 So.2d 458 (La.App. 5th Cir.1990).

       Traylor, J., retired. Justice Traylor retired after oral argument and did not participate in the deliberation of this case following his date of retirement, May 31, 2009.

      .La. R.S. 13:3201 provides:
      Personal jurisdiction over nonresidents
      A. A court may exercise personal jurisdiction over a nonresident, who acts directly or by an agent, as to a cause of action arising from any one of the following activities performed by the nonresident:

      (3) Causing injury or damage by an offense or quasi offense committed through an act or omission in this state.

      . The Direct Action Statute was renumbered from La. R.S. 22:655 to La. R.S. 22:1269 by Acts 2008, No. 415, § 1, effective January 1, 2009.

      . La. C.C. art. 3462 provides:
      Prescription is interrupted when the owner commences action against the possessor, or when the obligee commences action against the obligor, in a court of competent jurisdiction and venue. If action is commenced in an incompetent court, or in an improper venue, prescription is interrupted only as to a defendant served by process within the prescriptive period.

      . The addition of the word “only” in the Direct Action Statute was intended to make clear that the venue exceptions in La. C.C.P. arts. 71-85 did not apply. See discussion in Cacamo, supra at 46 and Boatwright v. Metropolitan Life Ins. Co., 95-2525 (La.App. 4 Cir. 3/27/96), 671 So.2d 553, writ denied, 96-1327 (La.6/28/96), 675 So.2d 1130.


author: JOHNSON, Justice

text:
    STATE of Louisiana v. Tyrone WELLS.
    No. 2009-KK-2595.
    Supreme Court of Louisiana.
    Dec. 3, 2009.
    KIMBALL, C.J., and WEIMER, J„ would grant rehearing.
    JOHNSON, J., would grant rehearing and assigns reasons.
   JOHNSON, Justice

would grant the rehearing and reinstate the trial court’s ruling for the following reasons:

| [Defendant, Tyrone Wells, is charged with the July 11, 2003, first degree murder of Jose Vasquez. The State filed two motions in limine seeking to introduce into evidence a recorded telephone conversation between the defendant and an unidentified female. The conversation referenced a tattoo on the defendant’s head. When asked by the female what the tattoo stated, the defendant declined to say over the phone, but stated that “[fit’s something related like, similar to like my charge.” The tattoo at issue is the word “assassin.” The State sought to establish the admissibility of the conversation as an admission of a party opponent and as impeachment evidence.

The trial court ruled that the conversation was inadmissable as impeachment evidence because the State failed to lay a proper foundation by connecting the ^defendant’s tattoo to the crime at issue. Further, the trial court ruled that the conversation was inadmissible as an admission of a party opponent because the phone conversation was not relevant, and even if it was relevant, its probative value was outweighed by its danger of unfair prejudice. Additionally, the trial court ruled that the conversation was impermissible character evidence. The Fourth Circuit Court of Appeal denied the State’s writ application. However, this Court granted the State’s writ application, finding the conversation to be admissible.

In my view, the State has not related the tattoo to the charged crime, and it is therefore irrelevant. The issue the jury must decide is whether the defendant killed the victim in the course of a robbery. The fact that he has a tattoo of the word “assassin” on his skull is irrelevant, especially when the State has presented no evidence of any connection between the tattoo and the murder. While a tattoo may generally be relevant for purposes of identification, the State, in its writ application, concedes that the tattoo did not exist at the time of the murder, and was obtained since the defendant has been incarcerated. Thus, it clearly cannot be used as an element of identification. Furthermore, even if the tattoo was somehow relevant, any probative value would be outweighed by the danger of unfair prejudice. La. C.E. art. 403 provides that “[although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by consideration of undue dely, or waste of time.”

The State’s action in seeking to introduce the phone conversation is an attempt to introduce impermissible character evidence. La. C.E. art. 404(A) provides that “[ejvidence of a person’s character or a trait of his character, such as a moral quality, is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion.” Here, there is no doubt that the State simply wants to put the |,.¡evidence of the tattoo in front of the jury in an attempt to show that the defendant is a bad person, or has a violent personality and acted in conformity therewith. Such evidence is prohibited by La. C.E. art. 404(A).

Additionally, I do not find that the conversation was an admission against interest. My review of the recorded conversation demonstrates that the defendant merely stated that the tattoo could be similar or related to his charge.

Furthermore, the issue of the tattoo has previously been before this Court. In State v. Tyrone Wells, 09-KK-2324, this Court denied the State’s writ application wherein the State sought review of the lower court’s rulings which rejected the State’s attempts to shave the defendant’s head and photograph that “assassin” tattoo. While the State argued that it simply wanted to collect evidence for investigation, the trial court noted that collecting this evidence would leave the Defendant with a shaved head, viewable by the jury, regardless of any rulings on admissibility. Moreover, it was clear from the trial court’s per curiam in the previous matter that the State, knowing that it could not obtain the trial court’s approval to collect this evidence, tried to obtain the evidence through a magistrate’s order, without the trial court’s knowledge. Such actions demonstrate the great lengths that the State has gone through to get the evidence of the “assassin” tattoo before the jury. The current writ application is yet another attempt to have the evidence of the tattoo deemed admissible, and to relitigate the issue of the admissibility.

We review these evidentiary matters under an abuse of discretion standard. I find that the trial court did not abuse its discretion in ruling that the recorded conversation was inadmissible. The existence of the defendant’s tattoo has not been shown to have any connection with the charged crime. The State should not be allowed to present to the jury evidence of the existence of this tattoo simply to show Uthat the defendant is a bad person. The trial judge’s reasons for judgment reflect his careful consideration of these issues, and should not be disturbed by this Court.

      . The defendant was not served with a copy of the State's writ application, and thus filed his opposition subsequent to this Court granting the State's writ. Thus, this Court has treated the defendant’s opposition as a motion for rehearing.


text:
    In re Jelpi P. PICOU, Jr.
    No. 2009-B-2594.
    Supreme Court of Louisiana.
    Dec. 9, 2009.
   ORDER

Considering the Joint Petition for Interim Suspension filed by respondent, Jelpi P. Picou, Jr., and the Office of Disciplinary Counsel,

IT IS ORDERED that Jelpi P. Picou, Jr., Louisiana Bar Roll number 18746, be and he hereby is suspended from the practice of law on an interim basis pursuant to Supreme Court Rule XIX, § 19.3, pending further orders of this court. Pursuant to Supreme Court Rule XIX, § 26(E), this order is effective immediately.

/s/ Greg G. Guidry Justice, Supreme Court of Louisiana


text:
    In re Chambolyn Caryette TERRANCE.
    No. 2006-OB-2424.
    Supreme Court of Louisiana.
    Dec. 16, 2009.
   ORDER

Considering the “Termination of Conditional Admission” filed by the Office of Disciplinary Counsel,

IT IS ORDERED that the probationary period imposed by this court in In re: Terrance, 06-2424 (La.10/12/06), 939 So.2d 1199, be and hereby is terminated, as the court finds petitioner has successfully complied with all terms of probation.

/s/ Catherine D. Kimball Justice, Supreme Court of Louisiana


text:
    In re Ravindra KANWAL.
    No. 2009-B-2192.
    Supreme Court of Louisiana.
    Dec. 18, 2009.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

| pursuant to Supreme Court Rule XIX, § 21(A), the Office of Disciplinary Counsel (“ODC”) filed this reciprocal discipline proceeding against respondent, Ravindra Kanwal, an attorney licensed to practice law in the States of Louisiana and Colorado, based upon discipline imposed by the Supreme Court of Colorado.

UNDERLYING FACTS AND PROCEDURAL HISTORY

Between 1999 and June 2009, respondent engaged in the practice of immigration law, filing in excess of 4,700 applications or petitions seeking immigration benefits for clients. However, respondent himself was illegally present in the United States during this time, as he did not have lawful immigration status and did not have authorization for employment in this country from U.S. immigration authorities. Respondent was disciplined by the United States Department of Justice Executive Office of Immigration Review on July 8, 2009. On July 21, 2009, the Supreme Court of Colorado suspended respondent from the practice of law in that state for one year and one day, subject to the following special condition of reinstatement:

Respondent cannot file for reinstatement until he receives an order from the United States Government giving him permanent lawful immigration status and he has current authorization for employment issued by USCIS and DHS. If the employment authorization granted to Respondent, if any, is time limited, then Respondent must provide to the 12People, a copy of his application for extension of employment authorization.

After receiving the Colorado order of discipline, the ODC filed a motion to initiate reciprocal discipline in Louisiana, pursuant to Supreme Court Rule XIX, § 21. Attached to the petition was a certified copy of the order of the Supreme Court of Colorado. On October 8, 2009, we rendered an order giving respondent thirty days to raise any claim, predicated upon the grounds set forth in Supreme Court Rule XIX, § 21(D), that the imposition of identical discipline in Louisiana would be unwarranted and the reasons for that claim. Respondent failed to file any response in this court.

DISCUSSION

The standard for imposition of discipline on a reciprocal basis is set forth in Supreme Court Rule XIX, § 21(D), which provides:

D. Discipline to be Imposed. Upon the expiration of thirty days from service of the notice pursuant to the provisions of paragraph B, this court shall impose the identical discipline or disability inactive status unless disciplinary counsel or the lawyer demonstrates, or this court finds that it clearly appears upon the face of the record from which the discipline is predicated, that:
(1) The procedure was so lacking in notice or opportunity to be heard as to constitute a deprivation of due process; or
(2) Based on the record created by the jurisdiction that imposed the discipline, there was such infirmity of proof establishing the misconduct as to give rise to the clear conviction that the court could not, consistent with its duty, accept as final the conclusion on that subject; or
(3) The imposition of the same discipline by the court would result in grave injustice or be offensive to the public policy of the jurisdiction; or |s(4) The misconduct established warrants substantially different discipline in this state; or
(5) The reason for the original transfer to disability inactive status no longer exists.

In determining the appropriate measure of reciprocal discipline, we are not required to impose the same sanction as that imposed by the state in which the misconduct occurred. Nevertheless, only under extraordinary circumstances should there be a significant variance from the sanction imposed by the other jurisdiction. In re: Aulston, 05-1546 (La.1/13/06), 918 So.2d 461.

Applying the factors set forth in Supreme Court Rule XIX, § 21(D), we see no reason to deviate from the sanction imposed by the Supreme Court of Colorado. Although we may well have imposed greater discipline if this misconduct had occurred in Louisiana, we find it appropriate to defer to the determination made by Colorado, with which we share authority over respondent. See, e.g., In re Zdravkovich, 831 A.2d 964, 968-69 (D.C.2003) (“there is merit in according deference, for its own sake, to the actions of other jurisdictions with respect to the attorneys over whom we share supervisory authority”). Accordingly, we will impose reciprocal discipline of a one year and one day suspension pursuant to Supreme Court Rule XIX, § 21.

DECREE

Considering the motion for reciprocal discipline filed by the Office of Disciplinary Counsel and the record filed herein, it is ordered that Ravindra Kanwal, Louisiana Bar Roll number 18972, be suspended from the practice of law for a period of one year and one day.


author: PER CURIAM. WEIMER,

text:
    In re Richard FISHER.
    No. 2009-B-1607.
    Supreme Court of Louisiana.
    Dec. 18, 2009.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

|; This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Richard Fisher, an attorney licensed to practice law in Louisiana.

UNDERLYING FACTS

Respondent was declared ineligible to practice law between October 31, 2005 and September 14, 2006 for failure to pay his bar dues and the disciplinary assessment. Nevertheless, on November 29, 2005, respondent accepted $300 to represent Mrs. Dorothy Samuel in a bankruptcy matter.

DISCIPLINARY PROCEEDINGS

In November 2007, the ODC filed one count of formal charges against respondent, alleging that his conduct in the Samuel matter violated Rule 5.5(a) (engaging in the unauthorized practice of law) of the Rules of Professional Conduct. Respondent answered the formal charges and admitted his misconduct. He also requested a hearing in mitigation, which was conducted by the hearing committee in June 2008.

| zHearing Committee Report

Considering respondent’s admission that he violated Rule 5.5(a) of the Rules of Professional Conduct, the hearing committee determined that the only task before it was to determine the aggravating and mitigating circumstances. In aggravation, the committee found that respondent has a history of neglecting to pay his bar dues and comply with the mandatory continuing legal education (“MCLE”) requirements, which it noted was “troubling.” The committee also found that respondent has pri- or disciplinary offenses as follows: 1) a January 1995 admonition for practicing law while ineligible to do so; 2) a January 1995 admonition for failing to cooperate with the ODC in an investigation; 3) a June 1995 admonition for neglecting a bankruptcy matter, failing to communicate with a client, and failing to refund an unearned fee; and 4) a February 2000 admonition for neglecting a divorce matter and failing to communicate with a client.

With respect to mitigating factors, the committee found that respondent lacked a dishonest or selfish motive. Rather, the committee found that respondent “had poor business sense and managerial skills” and did not act intentionally or with the intent to cause harm. The committee also found that respondent suffered personal problems as the result of “drastic changes in the bankruptcy law” which took effect in October 2005. Finally, the committee credited respondent’s cooperation in the disciplinary | .^proceeding, observed that he appeared remorseful and was in the process of hiring a manager to work in his law office, and noted that he has a good reputation in the community in which he practices.

The committee determined that respondent knowingly violated a duty owed to the legal profession and caused a “relatively small” amount of actual harm. Based on the ABA’s Standards for Imposing Lawyer Sanctions, the committee determined that the applicable baseline sanction is suspension. The committee also cited In re: Withers, 99-2951 (La.11/19/99), 747 So.2d 514, in which this court accepted a petition for consent discipline and imposed a six-month suspension, followed by eighteen months of supervised probation with conditions, upon an attorney who practiced law while ineligible to do so, became involved in a “highly improper relationship” with a client, and failed to cooperate with the ODC.

In light of the numerous mitigating factors present, the committee recommended that respondent be suspended from the practice of law for six months, fully deferred, subject to two years of supervised probation with conditions.

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

Disciplinary Board Recommendation

After reviewing this matter, the disciplinary board determined that the hearing committee’s factual findings are not manifestly erroneous. The board specifically noted that respondent’s ineligibility history spans many years. Based on these findings, the board agreed that respondent violated Rule 5.5(a) of the Rules of Professional Conduct.

| „The board agreed with the committee that respondent knowingly violated a duty owed to the legal profession. The board also found respondent violated a duty owed to his client, Mrs. Samuel, in that he accepted her bankruptcy matter while he was ineligible to practice law and failed to properly handle the bankruptcy matter, which delayed her bankruptcy for at least five months. Respondent also did not refund Mrs. Samuel’s fee until June 2006, some seven months after he accepted the representation and after Mrs. Samuel filed her complaint with the ODC. In acting as he did, respondent harmed Mrs. Samuel and the legal profession. The board agreed with the committee that the baseline sanction is suspension.

The board adopted the aggravating and mitigating factors found by the committee and also found that the aggravating factor of substantial experience in the practice of law (admitted 1982) is present.

The board felt that this matter is very similar to the case of In re: Jones, 98-0207 (La.3/27/98), 708 So.2d 413, in which this court imposed a one year and one day suspension, with six months deferred, followed by one year of probation, upon an attorney who practiced law while ineligible. However, the board noted that Mr. Jones was charged with two instances of practicing law while ineligible and had numerous aggravating factors, including prior discipline for similar misconduct, while respondent was only charged with one instance of practicing law while ineligible and has numerous mitigating factors. Therefore, the board felt that a less severe sanction was warranted for respondent than was imposed in Jones.

Under these circumstances, the board recommended that respondent be suspended from the practice of law for six months, fully deferred, subject to one year of probation and the condition that he remain current on his bar dues, disciplinary | Sassessment, and MCLE requirements. The board also recommended that all costs and expenses assessed to respondent be waived.

Although neither respondent nor the ODC filed an objection to the board’s recommendation, on October 27, 2009, this court ordered briefing addressing the issue of an appropriate sanction. The court further instructed the parties to address the issue of the waiver of costs recommended by the board. The ODC filed a brief in response to the court’s order. However, respondent failed to file a brief.

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: Quaid, 94-1316 (La.11/30/94), 646 So.2d 343; Louisiana State Bar Ass’n v. Boutall, 597 So.2d 444 (La.1992). 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 admitted that he represented Mrs. Samuel at a point in time when he was not eligible to practice law for failure to comply with his professional obligations. Respondent stipulated that this conduct violated Rule 5.5(a) of the Rules of Professional Conduct. Accordingly, the only issue before us is a determination of the appropriate sanction for the misconduct.

| (iIn considering that issue, 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 that respondent knowingly violated a duty owed to his client and to the legal profession, causing actual harm. The applicable baseline sanction is suspension.

The record supports the following aggravating factors: prior disciplinary offenses, a pattern of misconduct, vulnerability of the victim, and substantial experience in the practice of law (admitted 1982). In mitigation, we find the following: absence of a dishonest or selfish motive, a cooperative attitude toward the disciplinary proceedings, character and reputation, and remorse.

In In re: Hardy, 03-0443 (La.5/2/03), 848 So.2d 511, we held that the baseline sanction for engaging in the practice of law while ineligible to do so is generally a one year and one day suspension from the practice of law. In In re: Jones, 98-0207 (La.3/27/98), 708 So.2d 413, we suspended the respondent for one year and one day, with six months deferred, followed by one year of probation, for practicing law on two occasions while he was ineligible for failing to comply with his professional obligations. Like the instant respondent, Mr. Jones had prior discipline, substantial experience in the practice of law, and his victims were vulnerable. However, unlike the instant case, there were no mitigating factors identified in Jones. Additionally, Mr. Jones was charged with two instances of practicing law while ineligible while the |7respondent in the instant case was only charged with one instance of practicing law while ineligible.

More recently, we considered similar misconduct in In re: Oldenburg, 09-0991 (La.10/16/09), 19 So.3d 455. In that case, the attorney attended a CLE course which provided him with the total mandatory continuing legal education credits required for 2002. However, his check for payment of the seminar was returned NSF because of insufficient funds in his account. Because of his non-payment, in June 2004, Mr. Oldenburg was declared ineligible to practice law for failing to comply with MCLE requirements in 2002. In October 2005, shortly after learning of his ineligibility, Mr. Oldenburg made full payment for the 2002 CLE course and reinstatement fees, and he was reinstated to the practice of law. However, in the interim, he was retained to represent a client in a child custody case. In July 2005, Mr. Oldenburg appeared in court on behalf of the client.

We observed that Mr. Oldenburg had a history of “past failures to comply with his professional obligations,” and in light of that fact, we declined to “excuse his misconduct in this matter as a simple oversight.” We suspended Mr. Oldenburg from the practice of law for six months, with all but thirty days deferred, followed by a two-year period of probation with conditions.

We find the instant case falls in between Jones and Oldenburg. From 1992 to 2008, respondent has been ineligible to practice law on no less than eleven separate occasions. He also has a prior disciplinary record involving the practice of law while ineligible. Both of these factors, but particularly the latter, make respondent’s conduct more serious than Mr. Oldenburg’s. However, respondent has several mitigating factors in his favor which the respondent in Jones did not have. There is compelling testimony in this record of respondent’s good character and reputation in |sthe legal community in which he practices. Respondent also expressed his remorse for his misconduct, which the committee found was not motivated by any evil intent. Considering these mitigating factors, respondent should not receive the full measure of the six-month actual suspension that was imposed in Jones.

Accordingly, we will assess the baseline sanction at one year, deferring all but ninety days in light of the mitigating factors present, subject to a one-year period of supervised probation governed by the conditions recommended by the board.

DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record and the brief filed by the ODC, it is ordered that Richard Fisher, Louisiana Bar Roll number 1360, be and he hereby is suspended from the practice of law for one year, with all but ninety days deferred, followed by a one-year period of supervised probation governed by the conditions recommended by the disciplinary board. The probationary period shall commence from the date respondent, the ODC, and the probation monitor execute a formal probation plan. Any failure of respondent to comply with the conditions of probation, or any misconduct during the probationary period, may be grounds for making the deferred portion of the suspension execu-tory, or imposing additional discipline, 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.

WEIMER, J., concurs in part and dissents in part and assigns reasons.

WEIMER,

concurring in part, dissenting in part.

| VWhile I agree that a period of suspension is appropriate, I believe a shorter period of actual suspension would adequately discipline the respondent.

      . Respondent did not refund the fee Mrs. Samuel paid until June 2006, two months after she filed a complaint with the ODC.

      . Respondent has been declared ineligible to practice law on the following occasions:
      January 1, 1992 — November 28, 1994 Failure to pay disciplinary assessment
      January 8, 1993 — October 31, 1995 Failure to comply with MCLE requirements
      September 6, 1995 — October 20, 1995 Failure to pay bar dues
      September 2, 1997 — December 31, 1997 Failure to pay bar dues
      September 4, 1998 — July 13, 1999 Failure to pay bar dues and disciplinary assessment
      September 4, 2001 — October 10, 2003 Failure to pay bar dues and disciplinary assessment
      September 7, 2004 — November 22, 2004 Failure to pay bar dues and disciplinary assessment
      October 31, 2005 — September 14, 2006 Failure to pay bar dues and disciplinary assessment
      July 27, 2006 — September 14, 2006 Failure to comply with MCLE requirements
      October 8, 2007 — October 22, 2007 Failure to pay bar dues and disciplinary assessment
      January 31, 2008 — March 6, 2008 Failure to file a trust account disclosure statement

      . Nothing in the record indicates that respondent requested a waiver of costs, or the reason the board recommended such a waiver.

      . In its recommendation, the board waived the assessment of costs and expenses against respondent without explanation. We find no justification for this portion of the recommendation, and accordingly, we will impose costs against respondent, as is customary, pursuant to Supreme Court Rule XIX, § 10.1. Should respondent wish to contest the assessment of costs at a later date, he may do so in accordance with the applicable provisions of Supreme Court Rule XIX and the procedural rules of the disciplinary board.


text:
    STATE of Louisiana v. Lawson A. WILDER III.
    No. 2009-KK-2322.
    Supreme Court of Louisiana.
    Dec. 18, 2009.
   PER CURIAM.

| defendant, charged with driving while intoxicated first offense, filed a motion to suppress “all oral and/or recorded and/or written inculpatory statements made by Defendant” as well as “[a]ny and all physical items seized from Defendant” and “results of any test of Defendant for intoxication.” The State filed an objection to the motion to suppress and filed a motion for specificity asserting the defendant should be denied a hearing on his motion to suppress. Alternatively, the State argued defendant should be ordered to amend his motion and specify what he seeks to suppress and the reasons suppression of evidence is warranted. The trial court ruled in favor of the State granting the objection and ordering defendant to amend his motion to conform with LSA-C.Cr.P. article 703(E)(1).

Defendant sought review of that ruling. The court of appeal granted the writ application and reversed the trial court decision. The court of appeal, relying on State v. Rogers, 476 So.2d 942 (La.App. 2 Cir.1985), found “the Motion to Suppress |2was adequately set out.” In Rogers, the court concluded that defendant’s objection to the use of the inculpato-ry statement alleged all facts necessary to entitle him to an evidentiary hearing at which the state bears the burden to establish beyond a reasonable doubt that the inculpatory statement was free and voluntary. Likewise, the court found that an allegation that physical evidence was seized without a warrant was legally sufficient to entitle defendant to a hearing under LSA-C.Cr.P. art. 703(E). The appellate court found State v. Richey, 258 La. 1094, 249 So.2d 143 (1971), distinguishable in that the motions to suppress in Richey were extremely broad and vague. The defendant in Richey sought to suppress “any evidence, testimonial or physical, including any statements, etc. in the hands of the law enforcement or the District Attorney ... obtained in violation of [defendant’s] constitutional and statutory rights.” Richey, 258 La. at 1110, 249 So.2d at 149.

The State filed for supervisory review with this court arguing that State v. Richey is controlling and that defendant’s motion to suppress does not comply with the requirements of LSA-C.Cr.P. art. 703(E).

A trial court is afforded great discretion when ruling on a motion to suppress, and its ruling will not be disturbed absent abuse of that discretion. State v. Lee, 05-2098, p. 15 (La.1/16/08), 976 So.2d 109, 122, cert. denied, — U.S. -, 129 S.Ct. 143, 172 L.Ed.2d 39; State v. Vessell, 450 So.2d 938, 943 (La.1984). The trial court found defendant’s “Motion to Suppress makes general allegations referring to certain constitutional amendments that were allegedly violated, but fails to give any specific facts or details.” We note defendant’s motion to suppress was extremely broad and general, lacking any specificity as to the facts of this particular case. We find the trial court did not abuse its discretion in determining defendant pled insufficient facts to warrant a hearing on his motion to suppress. The State’s writ application is granted; |sthe ruling of the trial court ordering defendant to amend his motion to suppress to conform with Article 703(E)(1) is reinstated.

WRIT GRANTED. TRIAL COURT ORDER REINSTATED.

      . LSA-C.Cr.P. art. 703(E)(1) provides:
      An evidentiary hearing on a motion to suppress shall be held only when the defendant alleges facts that would require the granting of relief. The state may file an answer to the motion. The defendant may testify in support of a motion to suppress without being subject to examination on other matters. The defendant’s testimony cannot be used by the state except for the purpose of attacking the credibility of the defendant’s testimony at the trial on the merits.


text:
    In re James SPRUEL, Jr.
    No. 2009-B-1824.
    Supreme Court of Louisiana.
    Dec. 18, 2009.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

| xThis disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, James Spruel, Jr., an attorney licensed to practice law in Louisiana.

UNDERLYING FACTS

The underlying facts of this matter are not in dispute, having been admitted by respondent.

Katrina Simmons Joseph retained respondent to handle her personal injury matter. In September 2005, respondent settled Ms. Joseph’s case and withheld funds to pay $2,790 in medical expenses due to Chiropractic USA. However, on December 8, 2006, the bill remained unpaid. Ms. Joseph called respondent’s office several times regarding the unpaid bill, but respondent did not respond to her calls.

In February 2007, Ms. Joseph filed a disciplinary complaint against respondent. In response to the complaint, respondent acknowledged that he failed to promptly disburse the settlement funds to Chiropractic USA and failed to safeguard those funds. However, he did not provide an explanation to either Ms. Joseph or the ODC for his failure to timely pay the bill. On March 27, 2007, respondent issued a check from his office account in the amount of $2,790 to pay Chiropractic USA.

| .DISCIPLINARY PROCEEDINGS

In 2008, the ODC filed one count of formal charges against respondent, alleging that his 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 (failure to communicate with a client), 1.15(a) (safekeeping property of clients and third persons), 1.15(d) (failure to timely remit funds to a client or third person), 8.4(a) (violation of the Rules of Professional Conduct), and 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation).

Respondent answered the formal charges and admitted the factual allegations as described above. However, he requested that the charges be dismissed, arguing that his conduct was negligent and that significant mitigating factors are present.

Heaving Committee Report

This matter proceeded to a formal hearing on the merits. After considering the evidence and testimony presented at the hearing, the hearing committee made the following factual findings:

Since January 1990, respondent has been employed by the Calcasieu Parish District Attorney’s Office. Since December 1994, his primary responsibility with respect to that employment is serving as general counsel to the Calcasieu Parish School Board. He also maintains a small private law practice as time permits.

Respondent settled Ms. Joseph’s personal injury matter around mid-September 2005 for approximately $8,800, an amount to which Ms. Joseph agreed. Respondent withheld $2,790 from the settlement to pay Chiropractic USA, and Ms. Joseph agreed to this also. Respondent hoped to negotiate a reduced bill, believing he could save |sMs. Joseph twenty to twenty-five percent. Ms. Joseph’s portion of the settlement was disbursed to her by check on September 21, 2005.

Hurricane Rita struck Southwest Louisiana on September 24, 2005. In the days between the disbursement of settlement funds to Ms. Joseph and Rita’s landfall, respondent and his family prepared their home for the hurricane and made plans to evacuate. Respondent also dealt with additional responsibilities to help the school board prepare for Rita. Furthermore, respondent’s 19-year-old son, a college student in Nacogdoches, Texas, was admitted to the hospital with a serious medical condition.

Respondent and his family evacuated to Nacogdoches and stayed with their son until his condition stabilized. They then traveled to Baton Rouge, where they stayed with respondent’s daughter in her small apartment. When they returned to Lake Charles, they dealt with repairs to their storm-damaged home. Stress levels within respondent’s family remained abnormally high for a significant period of time following Rita.

After Rita, respondent was absorbed with issues involving the school board and its attempt to return to normalcy. The school board’s recovery was slow, and it did not return to normal until the fall of 2007. During the recovery period, respondent experienced an unusually high level of stress and worked very long hours. He was, as his wife described, “bogged down.”

Meanwhile, Ms. Joseph’s Chiropractic USA bill remained unpaid. The funds withheld from Ms. Joseph’s settlement to pay the bill were never segregated from respondent’s office account. For seven months after disbursement of the settlement funds, the balance of respondent’s office account fell below the amount withheld to pay the bill.

14Only after Ms. Joseph filed a disciplinary complaint did respondent realize the bill remained unpaid. Ms. Joseph wanted respondent to send the amount of the unpaid bill directly to her. However, because the funds rightfully belonged to Chiropractic USA, respondent paid the full amount of the bill directly to Chiropractic USA. He tried to notify Ms. Joseph of the payment, leaving a message on her answering machine that included an apology.

Respondent admitted that he never felt he had a reason to segregate clients’ funds from his own. He also admitted that he never had a trust account. He further admitted that his office account balance fell below the amount owed to Chiropractic USA, candidly stating that he spent more money than he should have and did not safeguard Ms. Joseph’s funds. Finally, he admitted to using her funds for other purposes. However, respondent now maintains a client trust account, which he opened in 2008.

Based on these facts, the committee determined that respondent violated Rules 1.3, 1.15(a), and 1.15(d). The committee found no evidence that respondent violated Rule 1.4 because Ms. Joseph failed to testify at the hearing; thus, no evidence was presented to substantiate her claim that respondent did not return her telephone calls. The committee also found no evidence that respondent violated Rules 8.4(a) or 8.4(c) because his misconduct resulted from negligence, not from dishonesty, fraud, deceit, or misrepresentation.

The committee determined that respondent negligently violated duties owed to Ms. Joseph, causing her potential harm. The committee further determined that the baseline sanction is in the range of a public reprimand to suspension based on the ABA’s Standards for Imposing Lawyer Sanctions.

IfiThe committee found the following aggravating factors present: prior disciplinary offenses and substantial experience in the practice of law (admitted 1979). Additionally, the committee noted that respondent’s failure to maintain a client trust account and segregate client funds existed for many years prior to this matter. The committee also noted the delay in payment to Chiropractic USA caused Ms. Joseph to lose the opportunity to negotiate a reduced bill. In mitigation, the committee found personal or emotional problems, full and free disclosure to the disciplinary board and a cooperative attitude toward the proceedings, character or reputation, and remorse. Additionally, the committee noted that the evidence showed respondent immediately paid Chiropractic USA’s bill as soon as he learned of it.

After considering case law involving similar misconduct, the committee recommended that respondent be suspended from the practice of law for six months, fully deferred, subject to one year of supervised probation and completion of Trust Accounting School.

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

Disciplinary Board Recommendation

After review, the disciplinary board adopted the hearing committee’s findings that respondent violated Rules 1.3, 1.15(a), and 1.15(d) of the Rules of Professional Conduct. Specifically, the board found that respondent failed to pay Chiropractic | (iUSA after settling Ms. Joseph’s case and failed to safeguard those funds because he did not have a client trust account. The board also agreed that the allegation regarding respondent’s failure to communicate with Ms. Joseph was not proven.

Based on these findings, the board determined that respondent negligently violated duties owed to his client and the public. He caused potential harm to Ms. Joseph. After considering the ABA’s Standards for Imposing Lawyer Sanctions, the board determined that the baseline sanction is suspension.

In aggravation, the board found prior disciplinary offenses and substantial experience in the practice of law. In mitigation, the board found 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, and character or reputation.

Turning to the issue of an appropriate sanction, the board noted that this court has deferred a significant portion of the suspension in cases involving failure to remit funds to third-party medical providers. In support, the board cited In re: Fontenot, 04-0079 (La.5/25/04), 874 So.2d 817 (nine-month suspension, with all but three months deferred, followed by an eighteen-month period of supervised probation with conditions), and In re: Alex, 02-1289 (La.1/14/03), 835 So.2d 455 (fully deferred thirteen-month suspension, subject to a two-year period of probation).

Further noting that this matter involves one instance of failing to promptly pay a third-party medical provider from a client’s settlement, the board recommended that respondent be suspended from the practice of law for six months, fully deferred, subject to one year of supervised probation and completion of Trust Accounting School.

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

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: Quaid, 94-1316 (La.11/30/94), 646 So.2d 343; Louisiana State Bar Ass’n v. Boutall, 597 So.2d 444 (La.1992). 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.

In this matter, respondent failed to promptly remit $2,790 to a third-party medical provider and commingled and converted those funds to his own use by placing them in his office account, not a client trust account, and using them for other purposes. Respondent also admitted the factual allegation in the formal charges regarding his failure to return his client’s phone calls about the medical bill. Based on these facts, respondent violated Rules 1.3, 1.4, 1.15(a), 1.15(d), and 8.4(a) 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, and deter future misconduct. Louisiana State Bar Ass’n v. Reis, 513 So.2d 1173 (La.1987).g 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).

Both the hearing committee and the disciplinary board found respondent acted negligently. The record supports this finding. He violated duties owed to his clients and the public. His conduct caused potential harm to his client and actual harm to Chiropractic USA in depriving the medical provider of funds for an extended period of time. The ABA’s Standards for Imposing Latoyer Sanctions establishes suspension as the baseline sanction.

Aggravating factors consist of prior disciplinary offenses and substantial experience in the practice of law. There are numerous mitigating factors, including personal or emotional problems, full and free disclosure to the disciplinary board and a cooperative attitude toward the proceedings, character or reputation, and remorse.

Considering all these circumstances, we find the sanction recommended by the disciplinary board is appropriate. Accordingly, we will suspend respondent from the practice of law for six months, fully deferred, subject to a one-year period of supervised probation. During the period of probation, respondent shall enroll in and attend the Trust Accounting School offered by the Louisiana State Bar Association’s Practice Assistance and Improvement Committee.

DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, it is ordered that James Spruel, Jr., | gLouisiana Bar Roll number 12352, be and he hereby is suspended from the practice of law for a period of six months. This suspension shall be deferred in its entirety, subject to respondent’s successful completion of a one-year period of supervised probation governed by the conditions set forth in this opinion. The probationary period shall commence from the date respondent, the ODC, and the probation monitor execute a formal probation plan. Any failure of respondent to comply with the conditions of probation, or any misconduct during the probationary period, may be grounds for making the deferred suspension executory, or imposing additional discipline, as appropriate. 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.

      . The ODC’s investigator made numerous attempts to serve Ms. Joseph with a subpoena to testify at the hearing; however, those efforts were unsuccessful.

      . In July 1997, respondent was admonished by the disciplinary board for violating Rule 1.5 (fee arrangements) of the Rules of Professional Conduct. In November 2003, respondent was admonished, conditioned upon his successful completion of Ethics School, for neglecting a legal matter in violation of Rule 1.3 of the Rules of Professional Conduct.

      .The committee cited In re: Broussard, 02-1670 (La.9/30/02), 827 So.2d 1133, wherein an attorney failed to disburse client funds for over a year, commingled and converted client funds, and engaged in a conflict of interest. Based on that misconduct, this court accepted a petition for consent discipline imposing upon the attorney a fully deferred six-month suspension, subject to one year of supervised probation with conditions.

      . Respondent’s misconduct in not timely paying Chiropractic USA was directly caused by his personal problems and his additional school board duties following Hurricane Rita.