author:
JOHNSON, Chief Justice
     JOHNSON, WEIMER, J., Guidry, J., HUGHES, J., CRICHTON, J.,

text:
    IN RE: Judge Darryl A. DERBIGNY, Orleans Parish Criminal District Court, State of Louisiana
    No. 2016-O-0921
    Supreme Court of Louisiana.
    01/20/2017
    Rehearing Denied March 13, 2017

      OFFICE OF SPECIAL COUNSEL, Mary Frances Whitney, Kelly Tanner Blackwell, for Applicant.
    PHELPS DUNBAR, LLP, Harry Allan Rosenberg, STONE PIGMAN WALTHER WITTMANN, LLC, Phillip A. Witt-mann, Barry Weldon Ashe, Matthew Steven Almon, for Respondent.
    Kelly McNeil Legier, Commission Counsel.
   JOHNSON, Chief Justice

| iThis matter arises from a recommendation of the Judiciary Commission of Louisiana (“Commission”) that Judge Darryl Derbigny be publicly censured, ordered to reimburse the Orleans Parish Criminal District Court Judicial Expense Fund (“JEF”) the amount of $57,359.96, and ordered to reimburse and pay to the Commission, $8,150.24 in hard costs. The recommendation stems from Judge Der-bigny’s participation in the district court’s supplemental insurance program and charges that he accepted insurance coverage and' benefits beyond those allowed by law or available to all other court employees, the premiums for which were paid from the JEF. For the following reasons, we conclude the Office of Special Counsel (“OSC”) has failed to prove by clear and convincing evidence that Judge Derbigny’s participation in the district court’s supplemental insurance program rises to the level of sanctionable misconduct under either the Code of Judicial Conduct or Article Y, Section 25(C) of the Louisiana Constitution. However, we agree with the Commission that Judge Derbigny was not entitled to the benefits of any whole life insurance policies or the Exec-U-Care program under the plain language of La. R.S. 13:691. Because Judge Derbigny has already surrendered the cash value of the whole life policies to the JEF, we order him to reimburse the JEF $10,002.58, representing l athe out-of-pocket reimbursements paid to Judge Derbigny under the Exec-U-Care program. Lastly, we decline the Commission’s request to cast Judge Derbigny with hard costs incurred' by the Commission.

FACTS AND PROCEDURAL HISTORY

Judge Derbigny was elected to Section J of Orleans Parish Criminal District Court in 2003, and has served continuously since that time. The Commission began an investigation in January of 2012 following .the broadcast of a series of news reports by New Orleans television station WWL-TV. The reports concerned the longstanding practice of the judges of the Orleans Parish Criminal District Court receiving extra insurance coverage paid for by the Criminal Court’s JEF, beyond the standard medical insurance coverage available to all court employees at the employee’s own cost.

The Commission approved the filing of Formal Charge 0345 in March, of 2015, alleging that Judge Derbigny committed ethical misconduct by choosing and accepting insurance coverage and program benefits beyond those authorized by law or available to all other court employees, the premiums and other costs of which were paid with money from the JEF. The charge alleged Judge Derbigny’s acceptance and receipt of these benefits constitute supplemental income beyond what was permitted by law, and constituted- a failure to diligently 'discharge his administrative responsibilities and was a misuse of public funds. The Formal Charge further alleged that Judge Derbigny’s acceptance and receipt of these insurance coverages and program benefits resulted in multiple negative media reports 'concerning his court during a time when the court was experiencing budget problems 1¡¡and a negative Legislative Auditor’s report, bringing his court and the judiciary as a whole into disrepute. The Formal Charge alleged that Judge Derbigny’s conduct violated Canons 1 (a judge shall uphold the integrity and independence of the judiciary), 2A (a judge shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary), 2B (a judge shall not lend the prestige of judicial office to advance the private interest of the judge or others), arid 3B(1) (a judge shall diligently discharge the judge’s administrative responsibilities without bias or prejudice and maintain professional competence in judicial administration) of the Code of Judicial Conduct'. The Formal Charge alleged that Judge Derbigny engaged in willful misconduct relating to his official duty, engaged in willful and persistent failure to perform his duties, and engaged in persistent and public conduct prejudicial to the administration of justice that brought the judicial office into disrepute, in violation of La. Const, art. V, § 25(C).

A hearing officer was appointed and convened a hearing from September 21-23, 2015. Following the hearing, the Hearing Officer filed a report with the Commission containing proposed findings of fact and ■conclusions of law. Thereafter, the Commission established a briefing schedule and ordered Judge Derbigny to appear on February 26, 2016, for questioning by the Commissioners. |4We adopt many of the Commission’s Findings of Fact, summarized below.

From 2006 to 2011, the JEF made payments on policies covering Judge Der-bigny, including three long-term care policies, two life insurance policies, and a comprehensive policy covering a variety of specialized insurance categories, including term and universal life, critical illness, accidental death and dismemberment (AD & D), and cancer, heart, and ICU coverages. In addition, the |fipackage of supplemental insurance policies included “Exec-U-Care,” an insurance reimbursement program that reimbursed participants for co-payments or any other out-of-pocket health expenses not covered by traditional health insurance or the supplemental benefits program. Judge Derbigny held the Exec-U-Care policy from January 5, 2006 to April 4, 2012. Two of the life insurance policies held by Judge Der-bigny, Transamerica and Sun Life, had a cash surrender value. Upon cancellation of those policies, Judge Derbigny received checks representing the cash surrender value of both policies. He then endorsed both checks over to the JEF. The undisputed costs of these extra insurance coverages and program benefits relative to Judge Derbigny totaled $57,359.96, including $12,727.86 expended for the Exec-U-Care program.

The supplemental insurance program instituted by the judges of the Criminal District Court predated Judge Derbigny by at least twenty, and possibly thirty years. Judge James McKay, currently a judge of the Fourth Circuit Court of Appeal, was a judge at Criminal District Court from 1982 to approximately 1997. Judge McKay testified that the program began sometime in the late 1980’s or early 1990⅛. Although some parts of the supplemental insurance program have changed since the inception of the program, key elements have remained the same, including but not limited to the use of the JEF and the availability of policies not offered to other court employees. In 1994, the Commission conducted an investigation of Criminal District Court’s supplemental insurance program. In June 1994, then-Special | ^Counsel, Steven Scheckman, sent a subpoena requesting documents related to the program to the judges of Criminal District Court. He also requested a response about the legality of the program from the judges of Criminal District Court en banc. Robert Murphy, who is now a judge of the. Fifth Circuit Court of Appeal, represented the judges of Criminal District Court in connection with the Commission’s investigation of the supplemental insurance program. Mr. Murphy gave the judges “positive advice that what they were trying to accomplish was appropriate” and that “they were not going to run afoul of the Judiciary Commission for doing what they wanted to do.”

At the end of the Commission’s deliberations on the matter, Mr. Scheckman was directed to write a letter to Judge.Jerome Winsberg, then the chief judge of Criminal District Court. Mi;. Murphy, as the judges’ attorney, was provided a copy of the letter. The August 25, 1994, letter stated that the Commission “determined that there was no judicial misconduct involving the purchase of insurance for judges....” The letter further expressed the Commission’s concern that the practice of purchasing additional insurance “may violate the original intent of the judicial parity statute, R.S. 13:691...,” and stated that the matter would be referred to the Judicial Council for further deliberation. The letter also noted an issue of “serious” concern to the Commission—the existence of a cash surrender value for some of the policies. To address this concern, the Commission requested written verification the judges had eliminated policies with a cash surrender value.

The minutes of an August 1, 1994 en banc meeting of the Criminal Court judges reveal the following motions were made, seconded, and passed unanimously: that the cash value of any policy be directed to the JEF, and that all policies be transferred to the JEF as owner. On October 6, 1994, Mr. Scheckman wrote Mr. Murphy thanking him for his “recent submissions” and stating further that he would 17now be closing out his file. According to Mr. Scheckman’s testimony in the instant matter, the Commission would have made the decision to. close out the file and thus it was reasonable to conclude that the documents sent by Mr. Murphy had satisfied the Commission’s concerns.

Regarding the Commission’s referral to the Judicial Council, Mr. Scheckman testified that the Commission “didn’t consider it an ethical violation, .... It was a legitimate policy issue. ... And they wanted a resolution to that by the Judicial Council, which is, in effect, the policymaking arm of the Supreme Court ....” Based on his own personal knowledge, Mr. Scheckman testified that, despite the Commission’s referral, the Council did not address the policy questions posed. Dr. Hugh Collins, the former Judicial Administrator of the Supreme Court, could not remember if the Commission'referred the issue to the Judicial Council. Other witnesses also did not know whether- the Judicial Council had taken any action, including Robert Murphy, Judge Winsberg, Judge Calvin Johnson, and Judge McKay. Judge McKay stated that, had the Judicial Council acted on the issue, “the whole judiciary would have been made aware.”

Newly-elected judges at Criminal District Court were enrolled in the supplemental benefits program by the Judicial Administrator of Criminal District Court. Robert Kazik, the Judicial Administrator since 2006, testified that when the new judges “showed up, we gave them a packet and said fill this out, it’s your new-hire paperwork ... just like any other employee.” Mr. Kazik’s predecessor, Elizabeth Stogner, testified that she would enroll the judges in the supplemental benefits program, including dental, vision, life insurance, and Exec-U-Care. The Hearing Officer asked; Ms, Stogner whether all of the judges availed themselves of all available policies. Ms. Stogner replied that the judges signed up for “all policies” unless a particular judge was not eligible for a certain policy due to health reasons.

| «Judge Derbigny recalled signing up for insurance benefits when he joined the court in 2003, but he characterized it as perfunctory. He stated he was summoned to the Judicial Administrator’s Office:

where I was presented, in my vague recollection, with a packet of materials, that this is—sign here, sign there, these are all part of your benefits that you are the beneficiary as a result of your election, congratulations, sign off on the dotted line and go to work. ... It just seemed to me to be part of the process of signing on as a new employee of the court.

After 2006, Judge Derbigny recalled being summoned to the Judicial Administrator’s Office to sign paperwork regarding additional policies. He acknowledged, that some of the supplemental insurance policies provided duplicative and overlapping coverage, but explained that once the situation was realized by the Judicial Administrator the judges took action and eliminated the duplicative policies. During his appearance before the Commission, Judge Derbigny reiterated that he completely relied on others to vet the legality and ethical propriety of the supplemental insurance benefits, including his predecessors in office, his colleagues, the insurance committee, and the chief judge.

In June 2011, the court received a public records request regarding the supplemental benefits program from a reporter at WWL-TV. Upon receiving the request, Judge Julian Parker, then the chief judge, requested that the judges retain counsel to examine the legality of the program’and to respond to the public.records request. The judges agreed and retained Mr. Normand Pizza. Although Mr. Pizza ultimately concluded the program was legal, the judges collectively decided to cancel their policies and to suspénd the filing of any claims in the Exec-U-Care program. Judge Derbig-ny’s cancellation letter, dated November 8, 2011, was | ^prepared by the court’s human relations specialist- and signed by Judge Derbigny:

The Commission found that Judge Der-bigny’s acceptance of this large number of supplemental benefits at no cost to himself was ethically improper and constituted a violation of the Code of Judicial Conduct and-the Louisiana Constitution. Specifically, the Commission found' that Judge Der-bigny violated Canons 1, 2A, and 3B(1) of the Code of Judicial Conduct. The Commission further concluded that Judge Der-bigny engaged in persistent and public conduct prejudicial to the administration of justice that brought the judicial office into disrepute, in violation of La. Const, art. V, § 25(C).-Judge Derbigny’s participation in the supplemental benefits program over-a period of at least five years -diverted thousands of dollars from the administration of justice, and generated negative publicity for the judicial office. However, the Commission also noted his conduct was signifi.cantly mitigated by the inaction of the Judicial Council and others who failed to properly advise ■ the Criminal District Court judges about the legality of the supplemental benefits program. Because there was no evidence presented that Judge Derbigny engaged in any intentional or willful conduct, the Commission did' not find that he engaged in willful misconduct relating to his official duty, or engaged in willful and persistent failure to perform his duties. Thus the Commission recommended that Judge Derbigny be publicly censured, ordered to reimburse JEF the amount of $57,359.96, hnand ordered to reimburse and pay to the Commission $8,150.24 in hard costs.

DISCUSSION

This court is vested with exclusive original jurisdiction in judicial disciplinary proceedings by La. Const, art. V, § 25(C). This court makes determinations of fact based on the evidence in the record and is not bound by, nor required to give any weight to, the findings and recommendations of the Judiciary Commission. In re Quirk, 97-1143 (La. 12/12/97), 705 So.2d 172, 176. In addition to the substantive grounds for disciplinary action listed in the Louisiana Constitution, this court, in accordance with its supervisory authority over all- lower courts, has adopted the Code of Judicial Conduct, which is binding on all judges and violations of the Canons contained therein may serve as a basis for the disciplinary action provided for by La. Const, art. V, § 25(C). Id. The standard of proof in judicial discipline cases is the clear and convincing standard. ■ In re Chaisson, 549 So.2d 259, 263 (La. 1989). Under this. standard, the level of proof must be more than a mere preponderance of the evidence but less than beyond a reasonable doubt. In re Huckaby, 95-0041 (La. 5/22/95), 656 So.2d 292, 296.

’ Having reviewed the record, we conclude the OSC failed to prove by clear and convincing evidence that Judge Der-bigny’s participation in the court’s supplemental insurance program rose to the level of sanctionable misconduct under either the Code of Judicial Conduct or Article V, § 25(C) of the Louisiana Constitution.

The Commission found the use of JEF funds to purchase long-term care, critical illness, accidental death and dismemberment, cancer/wellness/ICU/heart, I nand hospital select portion of the court’s supplemental benefits program was authorized by law and not in violation of La. R.S. 13:691, 42:851, or 13:1381.4. La. R.S. 13:691, the judicial parity statute, provides that a judge shall not "receive “any additional salary, compensation, emolument, or benefit” for his services as a judge, ... except “(3) Payment of premiums for health, medical, dental, and hospitalization .insurance programs contributions to which shall be at the same rate as those paid by other state employees.” The statute does not limit' a 'judge to receipt of benefits offered to. state employees. Rather, a judge may receive a payment of premiums for health, medical, dental, and hospitalization insurance programs, as long those payments are at the same rate as those paid by other state employees, without violating the statute. The Commission recognized, however, that La. R.S. 13:691 refers only to the health, medical, dental, and hospitalization portions of the supplemental insurance program. Thus, the Commission noted the statute does not explicitly authorize payments relative to life insurance or insurance reimbursement programs such as Exec-U-Care.

Additionally, the Commission concluded the supplemental benefits program did not violate La. R.S. 42:851. That statute would require the court to seek approval | i2from the Office of Group Benefits to contract for these supplemental benefits, but only if premiums are paid “in whole or in part with state funds.” Here, the premiums for the supplemental benefits program were paid by the JEF. These funds are not state funds within the meaning of La. R.S. 42:851, See Dejoie v. Medley, 08-2223 (La. 5/5/09), 9 So.3d 826.

The Commission also considered La. R.S. 13:1381.4, the statute authorizing the JEF, which prohibits the payment of salary from the fund to any judges of the court. However, the Commission found that because Section (D) of the statute uses the specific term “salary”- instead of the more general term “compensation,” it does not refer to the long-term care, critical illness, AD & D, cancer/wellness/ICU, or hospital select portions of the supplemental benefits program.

| ¡Despite these findings, the Commission found the OSC had proven by clear and convincing evidence that respondent violated Canons 1, 2A, and 3B(1). Although we agree with the Commission’s interpretation and application of the relevant statutes relative to the legal propriety of the supplemental insurance benefits under review in this case, we disagree with the Commission’s ultimate conclusion that the OSC proved a violation of the Code of Judicial Conduct by clear and convincing evidence.

Canon 1, entitled “A Judge Should Uphold the Integrity'and Independence of the Judiciary,” provides:

An independent and honorable judiciary is indispensable to justice in our society. A judge should participate in establishing, maintaining, and enforcing, and should personally observe, high standards of conduct so that the integrity and independence of the judiciary may be preserved. The provisions of this Code should be construed and applied to further that objective. As a necessary corollary, the judge must be protected in the exercise of judicial independence.

Part A of Canon 2 of the Code entitled, “A Judge Should Avoid Impropriety and , the Appearance of Impropriety in All Activities,” states:

A judge should respect and comply with the law and should act at all times in a manner that promotes public confidence ■in the integrity and impartiality of the judiciary. •

Part B of Canon 3 of the Code, entitled “Administrative Responsibilities,” provides in pertinent part in Paragraph (1):

A judge shall diligently discharge the judge’s administrative responsibilities without bias or prejudice and maintain professional competence in judicial administration. ...

We find the, OSC failed to prove that Judge Derbigny did not maintain professional competence in the administration of his court and did not uphold the integrity of his court under the facts of this case.

First, although the Commission cited to the “large number” of supplemental benefits accepted by Judge Derbigny, there is no prohibition or limitation in La. R.S. |1413:691(B) in either the number of policies or the costs of the supplemental insurance program, as long 'as those polices otherwise comply with the law. There is no showing by the OSC in this record that the insurance premiums attributed to Judge Derbigny exceeded those of any other judges or state employees. Similarly, there was nothing in the expense reports provided to the judges that would have caused Judge Derbigny or others to' question the benefits offered. Further, the record establishes that once the duplicative coverages were pointed out to him, Judge Derbig-ny took appropriate action to cancel the duplicative policie'S.

Additionally, while we agree with the Commission that the life insurance policies and expense reimbursement policies, such as-Exec-U-Care, are not specifically referenced in La. R.S. 13:691, we do not find clear and convincing evidence that Judge Derbigny failed to maintain professional competence in the administration of the court with regard to these policies. As the Commission and the Hearing Officer reiterated, the supplemental benefits program at issue preceded Judge Derbigny’s election to. the court by at least twenty years, and the History of that program was muddied at best. Based on the record and testimony, it is apparent that a multitude of elected judges have benefited from these same supplemental benefits over perhaps thirty years. There was no evidence that Judge Derbigny knew of potential irregularities or participated in the procurement of the policies. Pursuant to the 1994 letter from the Special Counsel to the judges of the court, life insurance policies with cash surrender'values should not have been obtained by the court, but the Commission agreed Judge. Derbigny would not have been aware of the. Commission’s prior admonition to the court. Instead, the record supports the Commission’s finding that new judges were presented with information about the supplemental benefits, including these life ' insurance policies, along with the regular group benefits, and that this presentation gave the appearance that the supplemental |1Rbenefits were a part of an overall benefits package given to every judge, and otherwise gave the indication to Judge Derbigny that the benefits were legal and fully vetted by his colleagues and predecessors.

With regard to the term life insurance policies and the Exec-U-Care program, the Commission cited testimony in the record that the supplemental insurance program it had investigated in 1994 was substantially similar to the supplemental insurance program in which Judge Der-bigny participated between 2006 and 2011. Although the OSC argues the record is hot clear that these policies were'included in the program in effect in 1994, we find sufficient evidence in the record to conclude otherwise. Bryan Wagner, an independent insurance agent, testified that he sold numerous insurance policies to the Criminal District Court judges beginning in the early 1990’s, including group life insurance policies. He also recalled selling the judges the Exec-U-Care program beginning in 2006, although he could not recall whether other medical reimbursement polices, such as Exec-U-Care, were in effect prior to 2006. Robert Eazik, the Judicial Administrator of Criminal District Court since 2006, also testified regarding his knowledge of the- supplemental benefits program. Mr. Kazik has been employed at Criminal District Court for more than 26 years and testified the supplemental policies, including an Exec-U-Care type policy, came into existence in the early 1990’s. Elizabeth Stogner, Judicial Administrator of the Criminal District Court from 2000 to 2006, testified she enrolled the judges'.in these policies, includ-. ing Exec-U-Care, during her term as Judicial Administrator, although she could not recall when the court approved the supplemental policies. Former Criminal District Court Judge McKay testified the supplemental insurance program went into effect in the late 1980’s or early 1990’s and Exec-U-Care was part of .the supplemental insurance program in 1994 (when the program was investigated by the Judiciary Commission). Judge Camille Buras, elected' as- a Criminal ■District [1flCourt judge in 1998, testified she was aware the judges before her had the same supplemental benefits, including Exec-U-Care. Finally, Steve Scheckman, Special Counsel for the Judiciary Commission from 1994 to 2008, testified- that the supplemental insurance program in 1994 included substantially the same policies offered by the program under review in this matter. He further testified the benefits program in 1994 included the same type of .expense reimbursement policy providing the same coverage as the Exec-U-Care policy, although he was not sure if it was called “Exec-U-Care.”

The Judiciary Commission in 1994 determined there was no judicial misconduct relative to the payment for these supplemental benefits for the judges. The only differentiation was with regard to life insurance policies with cash surrender values. We are hard-pressed to discern the reasoning behind the Commission’s current reversal of its view in 1994 that the judges had not engaged in any judicial misconduct by participating in the supplemental benefits program, but that Judge Derbigny, who was elected to the bench in 2003, has committed judicial misconduct by participating in substantially the same supplemental benefits program. There is no dispute that JEF funds are no longer used to pay for the judges’ supplemental insurance policies. And, going forward, our ruling makes clear that a judge’s acceptance of these particular benefits would not be authorized by La. R.S. 13:691. However, based on the particular facts of this case, we decline to find Judge Derbigny’s acceptance of these benefits in the past to be an ethical violation. The record clearly establishes that the supplemental benefits program investigated in 1994 included both life insurance policies and a medical expense reimbursement program, such as the Exec-U-Care program. The OSC found no misconduct relative to term life insurance policies or the Exec-U-Care benefits, and singled out only life insurance polices with cash surrender values as an item of concern. Judge Derbigny’s Inactions, viewed in light of the OSC’s prior investigation and findings, do not constitute ethical misconduct.

Furthermore, although a judge cannot simply rely on others, such as his judicial predecessors or his administrative staff, to have vetted the insurance policies he was offered, we do not find that Judge Derbig-ny “wholly abdicated his ethical responsibilities” with regard to. the supplemental insurance benefits at issue. The Commission found that Judge Derbigny violated the Code of Judicial Conduct and the Louisiana Constitution by his “over reliance” on his predecessors and court administrative personal. However, the record contains, no indication that Judge Derbigny was ever put on notice prior to 2011 that the supplemental benefits program was legally or .ethically improper. The prograpa that Judge Derbigny joined in 2003 had been in place for at least 20 years. Even if he had made his own inquiry into the propriety of the criminal court’s supplemental insurance benefits program, he would have found no indication of disapproval of the program by the Commission (other, than the cash value policies), the Judicial Council, or any other authority. The record shows that following its investigation of the- program in 1994, neither the OSC nor the -Commission addressed the issue of the criminal court’s supplemental insurance program again until 2011, when it commenced the instant proceedings. The OSC has not made a showing that Judge Derbigny knew or should have known that his participation in the criminal court’s supplemental benefits program was not both legal and ethically permissible. The Commission agreed with Judge Derbigny that his level of culpability in this matter is greatly diminished by his lack of guidance from the judicial branch and by the actions of his predecessors. Under the particular circumstances of this case, especially the scope and convoluted history of the criminal court’s supplemental benefits program—a history the Commission itself recognized as “complicated,” along with the Commission’s shifting viewpoints on 11sthe propriety of parts of the program, we conclude the OSC failed to show that Judge Derbigny’s conduct rose to the level of a violation of the Code of Judicial Conduct or that he violated La. Const, art. V, § 25(C) by engaging in persistent and public conduct prejudicial to the administration of justice that brings the judicial office into disrepute.

Nevertheless, while we do not find that Judge Derbigny’s conduct rose to the level of a violation of the Code of Judicial Conduct, we ultimately agree with the Commission that La. R.S. 13:691(B) by its very language does not reference life insurance policies or the type of reimbursement program offered under the Exec-U-Care program. While Judge Derbigny argues that the Exec-U-Care program was a medical benefits program, we agree with the Commission that the program was not “insurance,” but was instead a program to reimburse participants for out-of-pocket medical and dental expenses. Accordingly, we order Judge Derbigny to reimburse the JEF $10,002.58 in out-of-pocket reimbursements to Judge Derbigny. Because the Commission in 1994 found no judicial misconduct for participating in such a program, we decline to cast Judge Derbigny for the premiums and administrative fees paid to Exec-U-Care.

CONCLUSION

In sum, we conclude the Office of Special Counsel has failed to prove by clear and convincing evidence that Judge Der-bigny’s participation in the criminal district court’s supplemental insurance program rose to the level of sanctionable misconduct under either the Code of Judicial Conduct or Article V, § 25(C) of the Louisiana Constitution. However, we find the plain language of La. R.S. 13:691 does not reference either life insurance or a reimbursement program as provided by the | ^Exec-U-Care policy, and thus such policies were not authorized by law. Judge Derbigny has surrendered to the JEF the cash value of the whole life insurance policies. Accordingly, we order him to reimburse the JEF $10,002.58, representing the out-of-pocket reimbursements paid to Judge Derbigny under the Exec-U-Care program. Because we find no sanctionable misconduct on the part of Judge Derbig-ny, we decline the Commission’s request to cast Judge Derbigny with hard costs incurred by the Commission.

DECREE

For the reasons assigned, it is ordered that Judge Darryl A. Derbigny reimburse the Criminal Court Judicial Expense Fund $10,002.58.

JOHNSON,

Chief Justice, additionally concurs

hi write separately in this matter to reiterate that our decision necessarily takes into account the convoluted and established history of the supplemental benefits program in Criminal District Court. In finding Judge Derbigny committed ethical misconduct, one of my dissenting colleagues fails to appreciate the relevance of this history by discounting the standard and accepted practice of the court providing such benefits for its judges.

As set forth in detail in the majority opinion, this longstanding supplemental benefits program existed for thirty years, long before Judge Derbigny was elected. The Judiciary Commission investigated the judges’ participation in this program in 1994, following which the program was not declared illegal or improper and the Commission declined to impose any discipline. Despite these facts, one of the dissenters declares that Judge Derbigny “must now account for his own role” in the system and suggests Judge Derbigny should be sanctioned. In my view, to demonize this one particular judge when scores of other judges have participated and benefitted from the same program over thirty years is patently unfair.

For the reasons explained in the majority program, I find Judge Derbigny’s actions did not rise to the level of sanctiona-ble misconduct.

WEIMER, J.,

concurring in part and dissenting in part.

h This entire matter is disappointing on many levels-beginning with the implementation of the supplemental benefits program, through the Judiciary Commission evaluation of the judges’ participation in the program in 1994, and ending with the lack of contemporary follow-up by the then Judicial Council at the time the program was initially uncovered. The presiding hearing officer, retired Judge Ward Fonte-not, referred to this matter as having a “somewhat troubling” history. The current Judiciary Commission described the program as creating the public impression of the “pilfering [of] court funds” at the expense of the public. Judiciary Commission’s Findings of Fact, Conclusions of Law, and Recommendation of Discipline, Case No. 0345, p. 38.

laPublic officials are elected to serve, not to be served by taking advantage of the public fisc. Those who created the so-called employee benefits system for the Orleans Parish Criminal Court are not presently before this court. However, Judge Derbig-ny, who was lured into the system as a new judge, must now account for his own role. Whether others who may or may not be more culpable than Judge Derbigny will be brought before this court is for the Judiciary Commission to decide. See La. Const. art. V, § 25(C); see also Small v. Guste, 383 So.2d 1011, 1013 (La. 1980) (ruling that this court’s disciplinary authority over judges may be initiated “solely by exercise of this Court’s exclusive original jurisdiction on Judiciary Commission recommendation.”). Obviously, each matter must be decided on its own facts.

Judge Derbigny’s role, initially, like that of virtually every employee new to a job, involved the mere signing of benefits forms presented to him. In his initial role, Judge Derbigny no doubt perfunctorily relied on those who preceded him and those responsible for administration of the benefits system. Robert Kazik, the Judicial Administrator since 2006, testified when the new judges “showed up, we gave them a packet and said fill this out, it’s your new-hire paperwork ... just like any other employee.” Mr. Kazik’s predecessor, Elizabeth Stogner, testified she would enroll the judges in the supplemental benefits program, including dental, vision, life insurance, and Exec-U-Care. When asked whether all of the judges availed themselves of all available policies, Ms. Stogner replied that the judges signed up for “all policies” unless a particular judge was not eligible for a certain policy for health reasons.

However, Judge Derbigny continued to add and accept suppleméntal benefits throughout his tenure on the bench 'until 2011, which was proximate in time to an ¡¡¡audit of the benefits system conducted by the Louisiana Legislative Auditor. A majority of this court now finds that Judge Derbigny committed no judicial misconduct in his continued utilization of the benefits system. I respectfully disagree.

There were several types of insurance policies that Judge Derbigny obtained. Some were whole life insurance policies, with a cash surrender value, which were essentially the same policies as those.investigated by the Judiciary Commission in 1994 and found at that time .to have been inconsistent with La. R.S. 13:691. The mar jority does not find misconduct in Judge Derbigny’s continued procurement of the whole life policies, essentially because the Judiciary Commission found no judicial misconduct in 1994 for procuring whole life policies. At the time, the Judiciary Commission explained that, while it found no judicial misconduct, the practice of buying whole life insurance policies “may violate the original intent of the judicial salary parity statute, La. R.S. 13:691.” See August 25, 1994 letter of the Office of Special Counsel for the Judiciary Commission (p. 3971 of the record of these proceedings).

I accept Judge Derbigny’s representations that he was unaware of the Judiciary Commission’s opinion from 1994. However, his unawareness of the 1994 opinion does not relieve Judge Derbigny from knowing the law. Citizens without training in the law are not excused from not knowing the law. See La. C.C. art. 5 (“No one may avail himself of ignorance of the law.”). Judge Derbigny is a judicial officer and has extensive training in the law. Other court employees who were not judges could not obtain the- whole life insurance policies on the same favorable payment terms as did Judge Derbigny. Moreover, Judge Derbig-ny could have eventually personally bene-fitted from policies paid for with public funds'when the policies Lreaehed a maturity date -or were surrendered. His conduct in obtaining the whole life insurance policies, therefore, violated La. R.S. 13:691(A) and (B)(3). Such a violation of statutory law by a judge, in the course of his official duties, amounts to' ethical misconduct. See In re Lemoine, 96-2116, p. 2 (La. 4/4/97), 692 So.2d 358, 359 (on reh’g).

A similar analysis applies to the other so-called employee benefits at issue, inasmuch as they were not authorized by statute. The majority of this court concedes that the Exec-U-Care program is not insurance authorized by La. R.S. 13:691 and, consequently, the majority “order[s] Judge Derbigny to reimburse the JEF $10,002.58 in out-of-pocket reimbursements to Judge Derbigny.” In re Derbigny, 16-0921, (La. 1/20/17), 219 So.Sd 1041, 1052.

As the Judiciary Commission correctly indicates, the Exec-U-Care product “is not insurance. .., Under the Exec-U-Care program, ... the Criminal Court [Judicial Expense Fund] paid not only for premiums on Judge Derbigny’s behalf but also paid for the actual amounts Judge Derbigny was reimbursed” for out-of-pocket expenses such as medical co-pays. Judiciary Commission’s Findings of Fact, Conclusions of Law, and Recommendation of Discipline, Case No. 0345, p. 31 n.42'. True insurance involves a risk to the underwriter, but this was nothing more than a Uruse—masquerading as insurance—to reimburse the judges’ out-of-pocket expenses not covered by the judges’ true insurance coverages. Furthermore, because .the Exec-U-Care program charged “administrative fees” for paying Judge Derbigny’s out-of-pocket expenses, the Judicial Expense Fund was actually paying more than if it had paid Judge Derbigny’s expenses directly. This program was not available to other court employees who were not judges.

Given the manner in which La. R.S. 13:691 addresses benefits to judges, it has been described in this litigation as “the judicial salary parity statute.” In that regard, the statute prohibits judges from receiving benefits not made available to other employees and requires judges to pay the same as non-judges for the benefits judges receive. See La. R.S, 13:691(A) and (B)(3). The Exec-U-Care program violated both principles. Because Judge Der-bigny violated statutory law in accessing the Exec-U-Care program, he has committed ethical misconduct. See In re Lemoine, 96-2116 at 2, 692 So.2d at 359 (on rehg).

In ' my view, ' the determination that Judge Derbigny violated statutory law, but did not engage in ethical misconduct departs from the well-established proposition that a judge’s significant violation of statutory law in the course of his official duties amounts to ethical misconduct (see id.), as well as the jurisdictional | ^principles enshrined in the Louisiana Constitution. This matter is solely before this court because the Judiciary Commission has, recommended that Judge Derbig-ny be disciplined for misconduct. See La. Const, art. V, § 25(C) (“On recommendation of the judiciary commission, the supreme court may censure, suspend ,.., remove from office, or retire involuntarily a judge for willful misconduct relating to his official duty, willful and persistent failure to perform his duty, persistent and public conduct prejudicial to the administration of justice .... ”). Once there is a finding, of no ethical, misconduct, in my view, there is no jurisdiction under. La. Const, art. V, § 25(C), and the court is powerless to order reimbursement to the Judicial Expense Fund. See Id.; compare In re Granier, 04-3031, p. 4 (La. 6/29/05), 906 So.2d 417, 420. Cited by the majority to support the proposition that this court may order reimbursement, in In re Granier this court publicly censured a judge for ethical misconduct and “further ordered that [the] Judge ... reimburse the Judicial Expense Fund of the 29th Judicial District Court $2,321.78.” In re Granier, 04-3031 at 4, 906 So.2d at 420 (emphasis added). Stated simply, in the absence of ethical misconduct, there can be no order of reimbursement because, in the absence of ethical violation, this court lacks jurisdiction to impose an order of restitution. Yet, full reimbursement to the public fisc is absolutely necessary in this matter.

Ordering reimbursement for the sake of making the public fisc whole is only one reason why it is so important to properly evaluate ethical misconduct on the part of Judge Derbigny. It is well-established that the primary purpose of the Code of Judicial Conduct is the protection of the public rather than to simply discipline judges. In re Best, 15-2096, p. 15 (La. 6/29/16), 195 So.3d 460, 468 (citing In re Marullo, 96-2222, p. 6 (La. 4/8/97), 692 So.2d 1019, 1023). A significant matter of public concern is the protection of the- public fisc, as indicated by La. R.S. 13:691. See n.3, supra, quoting from La. R.S. 13:691(A) and (B)(3).

The Office, of Special Counsel (the OSC), in my view, has clearly and convincingly established that Judge Derbigny violated La. R.S. 13:691 regarding other so-called employee benefits as found by the Judiciary Commission. The record reflects that other court employees, who were not judges, could not access the supplemental insurance policies in the same large quantities and, hence, did not have benefits paid “at the same rate” as did Judge Der-bigny. See La. R.S. 13:691(A) and (B)(3). The opinion tacitly concedes Judge Der-bigny did not comply with the requirement for parity of benefits with non-judges set forth in La. R.S. 13:691, inasmuch as it finds Judge Derbigny selected supplemental insurance policies that were “duplica-tive.” In re Derbigny, 16-0921, 219 So.3d at 1046. A recognition that Judge Derbig-ny accessed duplicative coverage undermines finding that the OSC has made no showing tlqat the insurance premiums attributed to Judge Derbigny exceeded those of any other judges or state employees. Under La. R.S. 13:691(A) and (B)(3), the questions to be answered are whether Judge Derbigny accessed benefits lawfully available to others and whether he accessed benefits at the same costs as non-judges. Because he accessed benefits that were “duplicative,” Judge Derbigny accessed benefits that were not lawfully available to others, or to himself; therefore, the costs for those benefits exceeded what others lawfully could impose on the public fisc.

Relatedly, I find the burden of proof placed on the OSC regarding the supplemental insurances is confounding, if not insurmountable. It should not be the task of the OSC to ascertain whether other employees, judges or non-judges, are | ^unlawfully selecting more benefits than they are entitled to select. Implicit in finding there was “no showing” regarding others’ selection of benefits is that if anyone else is selecting unauthorized or “duplica-tive” coverage, then no one has committed misconduct. Once the OSC established that Judge Derbigny was in violation of statutory law regarding insurance, it became his burden to establish any justification for taking advantage of the multiple policies.

This matter does not involve a failure by the Judiciary Commission to sustain its burden of proof. The most salient and relevant facts are not at issue. Rather this matter involves a determination of what law is to be applied to the facts and a determination of the appropriate sanction and amount of restitution. Those determinations are wholly within this court’s jurisdiction.

Before discussing the appropriate sanction, I sum up my views on the conduct at issue and on the consequences for that conduct. I agree with the majority that Judge Derbigny should reimburse the Judicial Expense Fund for the out-of-pocket reimbursements under the Exec-U-Care program. However, I find that accessing the program was itself a violation of La. R.S. 13:691, and amounted to ethical misconduct. I would, therefore, require Judge Derbigny to also reimburse the Judicial Expense Fund for the amount spent for Judge Derbigny to participate in the Exec-U-Care program, which is the amount of reimbursement found by the Judiciary Commission. Furthermore, I would remand to the Judiciary Commission for a determination of the premiums paid by the Judicial Expense Fund for supplemental insurance policies that were in excess of what is permitted by La. R.S. 13:691, and I would order Judge Derbigny to refund the premiums paid on unauthorized policies. I would exclude from that litany of policies those that Judge 'Derbig-ny accessed when |9he initially became a judge, except regarding any life insurance policies which are not authorized by La. R.S. 13:691.

Turning then to the sanction, I note that Judge Derbigny has previously received an admonishment from the Judiciary Commission for the late filing of a campaign finance report and the late payment of the related $2,500 fine. While I accept Judge Derbigny’s representation that he was unaware he was committing any misconduct in the present case, his lack of intent to commit misconduct is no excuse. See, e.g., In re Justice of the Peace Alfonso, 07-0120, p. 7 (La. 5/22/07), 957 So.2d 121, 125 (“An act need not be intentional to support judicial discipline.”). Finding some similarity between the conduct for which Judge Derbigny was previously admonished and the present misconduct—inasmuch as then and now Judge Derbigny has failed to fully inform- himself and to responsibly discharge the administrative requirements attendant with holding judicial office—I believe that some period of actual suspension from judicial office is appropriate for these repetitive instances of misconduct. See, e.g., In re Free, 14-1828, p. 23 (La. 12/9/14), 158 So.3d 771, 784-85 (prior judicial discipline was appropriate to consider when imposing a suspension). At a bare minimum, the sanction of public censure recommended by the Judiciary Commission should be imposed.

I also agree with the Judiciary Commission’s evaluation of mitigating factors. As summarized by the majority, Judge Der-bigny’s “conduct was significantly mitigated by the inaction of the Judicial [Counsel] and others who failed to properly advise the Criminal District Court judges about the legality of the supplemental benefits program.” In re Derbigny, 16-0921, 219 So.3d at 1047. Moreover, “[t]he Commission agreed with Judge Derbigny that his level of culpability ... is greatly diminished by his lack of guidance from the judicial branch and by the actions of his 11(lpredecessors.” Id., 16-0921 at 16. I reiterate, however, that these are mitigating, not exculpatory factors.

I am not at all pressed to discern the reason for the Commission’s reversal of its position in 1994. The Commission clearly determined that its 1994 opinion “that the judges had not engaged in any judicial misconduct by participating in the supplemental benefits program” was wrong and has presently corrected its stance. Even then, the Judiciary Commission “expressed its strong concern that this practice. [of accessing the Criminal District Court Judicial Expense Fund] may violate the original intent of the judicial salary parity statute.” Thus, confronted in the present with misconduct that is significantly mitigated by a lack of administrative guidance, but is also aggravated by being related to Judge Derbigny’s prior misconduct in administrative matters, I conclude that the suspension which should be imposed should be brief in duration.

As a final detail, I note that Louisiana Supreme Court Rule XXIII, § 22 provides for the recovery of costs incurred. Because it is Judge Derbigny’s misconduct which provoked these extensive proceedings, and because the judicial salary parity statute violated here is intended to protect the public fisc, I would require Judge Derbigr ny to pay the costs of the proceedings.

Accordingly, I respectfully concur • in part and dissent in part.

Guidry, J.,

dissents and assigns reasons.

hi respectfully dissent because in my view the record shows by clear and convincing evidence that Respondent committed ethical misconduct in accepting multiple supplemental benefits in violation of La..Rev. Stat. 13:691A and B(3). The sheer number of policies he accepted, along with their high cost, some with cash surrender values, and others with duplicative coverages, should have put Respondent on notice to investigate the propriety of the court’s supplemental benefits program. Despite Respondent’s reliance on the actions of other members of his court, as well as the complicated history of the supplemental benefits program, Respondent could have and should have discovered for himself that the language of the statute is clear that life insurance, especially those with a cash surrender value, and the reimbursement program known-as Exec-U-Care were not permissible expenditures of the Orleans Criminal District Court Judicial Expense Fund. Thus, Respondent failed to maintain professional competence in the judicial administration of his court in violation of the Code of Judicial Conduct, Canon 3B(1) and violated La. Const, art. V, Sect. 25(C), because he engaged in persistent and' public conduct prejudicial to the administration of justice that brought his judicial office into disrepute. I would accept the Commission’s recommendation and impose a public censuré on Respondent for his misconduct.

CLARK, J., concurs in the result.

HUGHES, J.,

dissenting.

|! There have been many failures illustrated by this case. It is unfortunate that Judge Derbigny, at least at this point in time, should alone bear the brunt of these failures. Yet the facts cannot be changed. I would issue a public reprimand and order restitution.

CRICHTON, J.,

concurring in part and dissenting in part:

|,I concur in the plurality opinion’s finding that there has been nó' violation of the Code of Judicial Conduct in this case, and therefore, no sanction against Judge Derbigny is warranted. However, because this Court finds no ethical violation, I dissent from the plurality’s conclusion that Judge Derbigny must reimburse the Judicial Expense Fund for the out-of-pocket reimbursements paid to him under the Exec-U-Care program. As Justice Weimer points out in his dissent, and with which I agree, this Court is divested of jurisdiction under La. Const, art. V, § 25(C) once there is a finding of no ethical misconduct, and consequently, the Court lacks authority to order reimbursement.

In bringing ' forma! Charges against Judge Derbigny in this case, the Judiciary Coihmission reversed the view it had held since 1994, previously'" having determined there was no judicial misconduct involving the purchase of insurance by the Orleans Parish Criminal District Court Judges. In so doing, the Judiciary Commission has now abruptly declared that by engaging in the routine administrative practices of Criminal District Court, Judge Derbigny engaged in persistent and public conduct prejudicial to the administration of justice. As the plurality thoroughly explains, we disagree.

1 ¡Although the Commission may have found a violation by clear and convincing evidence, in my view, ’ the Commission seems to have placed little weight on the 20- to 30-year roútine practice of the Criminal District Court and its seemingly perfunctory administrative procedures. Not only did the Conlmission seem to overlook the historical practices of Criminal District Court, it also mistakenly placed little emphasis -on the 1994 opinion of the Judiciary -Commission (that .¡there was no judicial misconduct involving the purchase of insurance for the judges); the 1994 legal opinion of the judges’ counsel, Robert Murphy; the complete inaction of the policy-making arm of the Louisiana Supreme Court, the Judicial Council; and the 2011 legal opinion of the judges’ counsel, Normand Pizza (who also concluded the program was not an ethical violation). Moreover, while intent (whether specific or general) is noticeably not an element of a Code of Judicial Conduct violation, this Court' must still examine Judge.Derbigny1,s actions in light of the unique historical factors listed above. In doing so, I cannot under any circumstance conclude any violation of the Canons was proven by clear and convincing evidence (a considerably higher standard than that required in civil proceedings) in this case.

The implication by one of my dissenting colleagues that a majority of this Court is shirking its duty to .protect the public is troubling. Clearly, it is a sacred tenor repeatedly recognized by this Court that the primary purpose of the Code of Judicial Conduct is to protect the public rather than to discipline a judge. In re Marullo, 96-2222, p. 6 (La. 4/8/97), 692 So.2d 1019, 1023. And, furthermore, this Court ’does not shy away from imposing discipline when the charge^ are, indeed, | ¡¡proven by clear and convincing evidencé The impli-catión by one of the dissenters in this case that we show leniency to judges who, by clear and convincing evidence, are proven to have violated the Judicial Canons is patently false and, in my opinion, borders on outrageous.

This Court is constitutionally vested with exclusive original jurisdiction in judicial disciplinary proceedings, an obligation we do not take lightly. We are also duty-bound to apply the appropriate burden of proof to the facts and evidence of each case without influence of public clamor or fear of criticism. While I likely would have taken a different course of action from that taken by Judge Derbigny and his Criminal District Court colleagues, I note such an observation is irrelevant in objectively determining whether a Canon violation has been proven by clear and convincing evidence. In my view, the Commission and one dissenting justice have incorrectly characterized the evidence presented in this case to be merely mitigation which, according to them, should only be considered after finding an actual ethical violation. While that principle stands true, it is also correct that the unique hisforical background evidence is relevant and directly bears on whether the prosecution

has sustained its burden of proof as to the allegations of misconduct. |4As a result, I believe-the evidence in the record before us results in a very unclear and unconvincing set of allegations. As the plurality opinion implicitly concludes, we do not reach the sanction mitigation phase because the alleged violations were not proven by clear and convincing evidence.

The Judiciary Commission has now spoken, reversing its original 1994 opinion, and this Court does not disagree with the Commission’s change of - course. Again, noting the Court’s inherent and plenary authority over lawyer and judicial discipline matters and in accord with traditional notions of due process, I believe that prospectively, all judges are now placed on notice that any insurance or retirement-related benefits not specifically authorized by statute should not be paid for by parish or state funds. In sum, .by recognizing the twin objectives of protecting the public, which includes our public fisc, and according our elected judges basic due process, we achieve justice deserved.

       Knoll, J„ retired, participated in this decision which was argued prior to her retirement.

      . An audit report issued by the Louisiana Legislative Auditor in November 2012 concluded in part that the judges of the Criminal District Court had improperly used public funds to provide themselves with supplemental and additional insurance benefits contrary to law.

      . La. Const, art. V, § 25(C) provides: "On recommendation of the judiciary commission, the supreme court may censure, suspend with or without salary, remove from office, or retire involuntarily a judge for willful misconduct relating to his official duty, willful and persistent failure to perform his duty, persistent and public conduct prejudicial to the administration of justice that brings the judi’cial office into disrepute, conduct while in .office which would constitute a felony,' or conviction of a felony. On recommendation of the judiciary commission, the supreme court may disqualify a judge from exercising any judicial function, without loss of salary, during pendency of proceedings in the supreme court. On recommendation of the judiciary commission, the supreme court may retire involuntarily a judge for disability that seriously interferes with the performance of his duties and that is or is likely to become permanent. The supreme court shall make rules implementing this Section and providing for confidentiality and privilege of commission proceedings.”

      . Records maintained by Criminal District Court covering the period prior to 2006 were destroyed in Hurricane Katrina; therefore, only the 2006 to 2011 time frame is at issue here.

      . Long-Term Care policies

        • Conseco/Washington National, January 1, 2006 to October 17, 2011

      • Transamerica GB-5001024, April 29, 2010 to October 4, 2011

      • Transamerica GB-5001042, January 17, 2006 to October 4,2011

        Life Insurance policies

      • Mutual of Omaha, June 1, 2007 to Octobers, 2011

      • Sun Life, March 5, 2010 to October 3, 2011

      • Transamerica OR-166 (term life), January 5, 2009 to November 29, 2011 • Transamerica OR-166 (universal life), November 30, 2009 to October 25, 2011

        Critical Illness policies

      • Transamerica OR-166, January 26, 2006 to November 25, 2008

      • Transamerica OR-166, November 30, 2009 to November 29, 2011

        AD & D policies

      • Mutual of Omaha, June 1, 2007 to October 3,2011

      • Transamerica OR-166, January 26, 2006 to November 29,2011

        CancerlWellness/ICUlHeart policy

      • Transamerica OR-166, January 26, 2006 to November 29, 2011

        Hospital Select policy

      • Transamerica OR-166, January 26, 2006 to November 29, 2011

        .The cash surrender value of the Trans-america Life policy was $97.39; the cash surrender value of the Sun Life policy was $6,314.76.

      . Judge Derbigny did not cancel Exec-U-Care until April 2012; however, the Commission made no finding that Judge Derbigny made any claim under this program after November 2011.

      . The Commission did not find a violation of Canon 2B, as there was no evidence presented that Judge Derbigny used the prestige of his judicial office to receive supplemental benefits.

      . The total amount expended by the JEF on supplemental benefits for Juc}ge Derbigny was . $57,359.96,.broken down as follows:
      • Conseco/Washington National: $5,566.29
      • Transamerica GB-5001024: $2,821.72
      • Transamerica GB-5001042: $10,222.36
      • Mutual of Omaha: $1,656,00
      • Sun Life: $8,277.57
      • Transamerica OR-166: $16,088.16
      • , Exec-U-Care: $12,727,86, which; consisted of $10,002.58 in out-of-pocket reimbursements to-Judge Derbigny, $1,625.00 in premiums, and $1,100.28 in administrative fees.

      . La. R.S. 42:851 provides in pertinent part as follows:
      A. The state of Louisiana, through the Office of Group Benefits and each of its governmental and administrative subdivisions, departments, or agencies of the executive, legislative, or judicial branches, ... are authorized to:
      (1) Procure private contracts of insurance covering their respective employees, officials, and department heads, or any class or classes thereof, and the dependents of such employees, officials, or department heads under a policy or policies of group health, accident, accidental death and dismemberment, and hospital, surgical, or medical expense benefits. ...
      B. Each such private contract or self-funded program, the premiums of which are paid in whole or in part with state funds, shall be approved by the Office of Group Benefits, except that any city or parish school board may enter into such private contract or' self-funded program without approval. The employee or retiree eligibility provided in such private contract or self-funded program must be identical to the eligibility provided in the Office of Group Benefits programs.

      . La. R.S. 13:1381.4 provides:
      A. (1) In all criminal cases over which the Criminal District Court for Orleans Parish has original, appellate, supervisory, or concurrent jurisdiction, including traffic violations other than parking, there shall be taxed as costs against every defendant who is convicted after trial or plea of guilty or nolo contendere or who forfeits his bond the sum of five dollars, which shall be in addition to all other fines, costs, or forfeitures lawfully imposed and which shall be transmitted to the judicial administrator of the Criminal District Court for Orleans Parish for further disposition in accordance herewith.
      (2) In addition to all other fines, costs, or forfeitures lawfully imposed by this Section or any other provision, the court may impose an additional cost against any defendant who has been finally convicted of a misdemeanor, excluding traffic violations, or a felony. The additional costs authorized in this Paragraph shall not exceed five hundred dollars in the case of a misdemeanor nor exceed two thousand five hundred dollars in the case of a felony. All such sums collected shall be transmitted to the judicial administrator for further disposition in accordance herewith,
      B. The judicial administrator of the Criminal District Court for Orleans Parish shall place all sums collected or received under this Section in a separate account to be designated as the judicial expense fund for the Criminal District Court for Orleans Parish. The judges of the court shall cause to be conducted annually an audit of the fund and the books and accounts relating thereto and shall file the same with the office of the legislative auditor where it shall be available for public inspection.
      C. The judicial expense fund is established and may be used for any purpose connected with, incidental to, or related to the proper administration or function of the court or the office of the judges thereof and is in addition to any and all other funds, salaries, expenses, or other monies that are provided, authorized, or established by law.
      D. No salary shall be paid from the judicial expense fund to any judges of the court.

      . See In re Granier, 04-3031 (La. 6/29/05), 906 So.2d 417, 420.

      . The [Judiciary] Commission consists of nine members ...: one court of appeal judge and two district judges ...; two attorneys admitted to the practice of law for at least ten years and one attorney admitted to the practice of law for at least three but not more than ten years ...; and three citizens, not lawyers, judges or public officials

      http://www.lasc.org/la_judiciaLentities/ judiciary_commission.asp (last visited 12/12/16). Under La. Const, art. V, § 25(C), the Judiciary Commission initiates procedures for judicial discipline by recommendation to the Louisiana Supreme Court. In a typical case, the Judiciary Commission makes such recommendations after initiating investigations, hearings, and making its own factual and legal determinations. See generally JCL Rules VI, VII, VIII, and XI(C)(3)(b).

      . "[T]he Judicial Council serves as a research arm for the Supreme Court. It often acts as a resource center where ideas for simplifying and expediting judicial procedures and/or correcting shortcomings in the system are studied.” http://www.Iasc.org/la_iudiciaL entities/iudiciaLcouncil.asp (last visited 12/12/16).

      '. The referenced provisions of La. R.S. 13:691(A) and (B)(3) prohibit judges from receiving "any additional salary, compensation, emolument, or benefit” not authorized by law, and prohibit judges from benefitting from any "[pjayment of premiums for ... insurance programs” unless the payment is "at the same rate as those paid by other state employees.”

      . In In re Lemoine, 96-2116 at 2, 692 So.2d at 359, this court ruled that a failure to re-cuse, when statutory grounds exist, was sanc-tionable misconduct. The court explained: A judge’s clear violation of a statute is misconduct, because it is a judge violating the law, and such disobedience or disrespect for the law, which his very oath commands that he .support, constitutes "willful misconduct relating to his official duty,” under Art. V, § 25(C) of the Constitution. Such a statutory violation would also constitute an ethical breach under Canon 2 of the Code of Judicial Conduct.

      . The statute could also be referred to as a limitation on judicial compensation and benefits, in my view.

      . As stated by the majority, "it is clear that acceptance of these particular benefits' is not authorized by La. R.S. 13:691." In re Derbigny, 16-0921, 219 So.3d at 1051, Although the majority limits this finding "going forward,” the language of the statute has not changed. Further, in a 1994 letter, the OSC advised that the Judiciary Commission "expressed its serious concern” that the purchase of any insurance through the judicial expense fund "may violate the original intent of the judicial salary parity statute, R.S. 13:691,” (Emphasis added.) The letter advised that life insurance with “cash surrender values” be "eliminated.” Thus, the/ "serious concern” raised by the Judiciary Commission was not limited to cash surrender policies. See record of these proceedings atp. 3971.

      . See In re Derbigny, 16-0921, 219 So.3d at 1048 n.10,

      . Commendably, in changing its course, the Commission has publicly taken the stance that it previously erred, and has staked a claim to the adage, that "two wrongs don’t •make a right.”

      . Whether my analysis, which concurs with the determination of the Judiciary Commission that discipline and restitution are warranted, or the alternative analysis, which absolves the judge of discipline and the obligation to reimburse the public fisc, is the "troubling” or "patently false” or "border[ing] on outrageous” analysis will ultimately be judged by those who evaluate these respective opinions in light of the record facts.
      Similarly, others can evaluate whether my analysis, or the analysis which departs from the Judiciary Commission's recommendation and does not sanction this judge on these facts, is "patently unfair,”

      . "When a fragmented Court decides a casé and no single rationale explaining the result enjoys the assent of five Justices, the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.” Maries v. United States, 430 U.S. 188, 193, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977) (internal quotations omitted)..

      . The dissenting justice states this Court places an “insurmountable burden of proof” on the Office of Special Counsel regarding the supplemental insurance. I respectfully disagree, as the Commission in 1994 concluded there was no ethical violation. Without a subsequent pronouncement by the Judiciary Commission or this Court during the span- of time since 1994,1 am confounded by the lack of due process and how the burden of proof • can possibly be met.

      . This Court has removed judges in cases when the most serious conduct is proven by clear and- convincing evidence. See, e.g., In re Benge, 09-1617 (La. 11/6/09), 24 So.3d 822, reh'g den., 11/23/09 (judge removed from office for failing to decide a case on the evidence and testimony presented at trial); In re Jefferson, 99-1313 (La. 1/19/00), 753 So.2d 181, reh'g den., 2/18/00 (judge removed from office for reckless and bad faith handling of contempt proceedings, unauthorized practice of law, and failure to cooperate with supernumerary judge); In re Johnson, 96-1866 (La. 11/25/96), 683 So.2d 1196, reh’g den. 12/13/96 (judge removed from office for continuation and management of business providing pay telephone service to inmates under contract with sheriff after he became .a judge); In re Huckaby, 95-0041, (La. 5/22/95), 656 So.2d 292 (judge removed from office for failing to file federal income taxes).
      This Court has also suspended or publicly censured judges when appropriate. See, e.g., In re Best, 15-2096 (La. 6/29/16), 195 So.3d 460 (judge suspended without pay for fifteen days for mishandling of a hearing to terminate probation); In re Free, 2016-0434 (La. 6/29/16), 199 So. 3d 571 (judge suspended without pay for one year for making ex parte comments about a pending case to a district attorney and the victims’ families; improperly holding a defendant in contempt of court; and making inappropriate comments towards domestically abused women); In re Sims, 2014-2515 (La. 3/17/15), 159 So.3d 1040 (judge suspended for thirty days without pay for improperly holding prosecutor in contempt and impermissibly dismissing fifteen criminal cases); In re Whitaker, 463 So.2d 1291 (La. 2/25/85) (judge suspended without pay for one year for smoking marijuana, associating with users and sellers of illegal drugs and with prostitutes, and association with an individual’ against whom criminal charges were pending).


source: Caselaw Access Project

author:
PER CURIAM
     WEIMER, J., CRICHTON, J.,

license: Public Domain

text:
    Larry F. MITCHELL v. STATE of Louisiana, DEPARTMENT of TRANSPORTATION and DEVELOPMENT, et al.
    No. 2016-C-1097
    Supreme Court of Louisiana.
    01/25/2017
    Rehearing Denied March 13, 2017
    Sarah Catherine Leary; Tommy J. Adkins; Anthony J. Bruscato, for Applicant.
    HUDSON, POTTS & BERNSTEIN, LLP, Jan Peter Christiansen; MAYER, SMITH & ROBERTS, LLP, Frank Knox Carroll, for Respondent.
   PER CURIAM

hWe granted plaintiffs application for a writ of certiorari in this case on October 12, 2016. After receiving briefing from the parties, hearing oral arguments, and reviewing the record, we conclude the judgment below does not require the exercise of this Court’s supervisory authority. Accordingly, we recall our order of October 12, 2016, as improvidently granted, and we deny plaintiffs writ application.

WEIMER, Justice, dissents from the recall of the writ and assigns reasons.

HUGHES, Justice, dissents for the reasons assigned by Crichton, J.

CRICHTON, Justice, dissents and assigns reasons.

WEIMER, J.,

dissenting.

It Like Justice Crichton’s view, and as a matter of prudent court practice, I disagree with recalling the writ. I have previously explained:

In the past, I have voted to recall writs, but I have come to the conclusion this is a poor practice. See State v. Crandell, 05-1060 (La. 3/10/06), 924 So.2d 122 (Weimer, J., dissenting: “[A]f-ter having granted the writ, the unique facts and circumstances of this case dictate that we should resolve this matter on the merits.”). As a more recent example of my view, see Davis v. Prescott, 13-0669 (La. 11/5/13), 130 So.3d 849, 851 (Weimer, J., dissenting: “I respectfully dissent from the majority’s decision to recall the writ. Having granted the writ, I would resolve this case on the merits based on the issues and the record before this court.”).

George v. Dugas, 16-0710, p. 2 n.1 (La. 11/7/16), 203 So.3d 1043, 1043 n.1 (Weimer, J., dissenting).

Regarding the merits, I agree with the appellate court’s analysis related to the liability determination. Particularly, I agree that the testimony of the plaintiffs expert was “scientifically underwhelming” (Mitchell v. State, Dep’t of Transp. & Dev., 50,432, p. 14 (La.App. 2 Cir. 3/23/16), 193 So.3d 152, 161, reh’g denied (5/12/16), writ granted, 16-1097 (La. 10/12/16), 207 So.3d 1061); thus, his testimony lacked credibility. I would affirm the decision of the court of appeal on liability.

Accordingly, I respectfully dissent.

Hughes, J., dissents for the reasons assigned by Crichton, J.

CRICHTON, J.,

dissents and assigns reasons:

_JiThis Court granted the writ, received briefing from the parties, and heard oral arguments; but now a majority of the Court has voted to recall our order as “improvidently granted.” I dissent. “At this juncture the case should be decided on its merits.” McGrail v. Lee, 2002-1496, p. 1 (La. 4/9/03), 874 So.2d 66 (Calogero, C.J., dissenting from a writ recall). In its place is a recall that reflects poorly on our effort to “ensure adequate consideration of each case and make decisions,based on legally relevant factors, thereby affording every litigant the full benefit of the judicial process.” La. Sup. Ct. General Administrative Rules, § 10, Performance Standard 2.1 (emphasis added).

In this tort suit, a tree on the defendant’s property fell and struck the plaintiffs vehicle, and as a result the plaintiff sustained both property damage and personal injury. Approximately one week before the trial date, the defendant—who previously agreed to appear for the jury trial by live audio-video—informed lathe plaintiff that she would no longer be available. In response, the plaintiff filed a motion to exclude or limit the trial court from admitting the discovery deposition of the defendant. Finding the defendant to be unavailable, the trial court ruled that the deposition was admissible. Although the Court of Appeal disagreed that defendant’s showing of unavailability was sufficient, it held that this trial court ruling was. harmless error. Mitchell v. State, Dep’t of Transp. & Dev., 60,432, p. 20-21 (La.App. 2 Cir. 3/23/16), 193 So.3d 152, 164.

First, I believe that to deprive a party of the ability to cross-examine a party witness—particularly before a jury of his or her peers—can be prejudicial. This strikes me as especially important where the plaintiffs. claim requires proving that the defendant “knew or, in the exercise of reasonable care, should have known of the ruin, vice, or defect” that caused the plaintiffs injury. See La. C.C. art. 2317.1. But regardless of how I ultimately would have analyzed this case for harmless error, the recall means.that this issue is no longer before the Court.

Further, the plaintiff alleged that he relied on the defendant’s misrepresentations that she would be available. Although deposition testimony is admissible if a witness is unavailable, see La. Code Civ. P. art. 1460, a party is not unavailable if there is “no showing in-the record to indicate they made any effort, much less a diligent and good faith effort, to obtain his presence at trial.” Driscoll v. Stucker, 2004-0589, p.24 (La. 1/19/05), 893 So.2d 32, 50 (finding no error in the trial court’s exclusion of hearsay testimony); see also La. Code Evid. art. 804. Given the allegations of misrepresentations, I question the adequacy of the defendant’s showing. But at the very least, whether this was deliberate professional misconduct or a strategically engineered maneuver, we should have ad-, dressed what I view as an ill-practice.

| .^Although “[tjhere exists no rule for determining when a writ, which has been granted, should be recalled,” George v. Dugas, 2016-0710, p.2, n. 1 (La. 11/7/16), 203 So.3d 1043, 1044 (Weimer & Crichton, JJ., dissenting from a writ recall), I believe recalling a writ should be rare. And it-was certainly not justified here. At this juncture, we have unnecessarily lost the opportunity to bring the full benefit of the judicial process to address important legal, ethical, and professionalism issues.

       Judge James T. Genovese, assigned as Justice ad hoc, sitting for Knoll, J. for oral argument. He now sits as an elected Justice at the time this opinion is rendered.

      . See also State v. Davis, 2006-1984, p. 1 (La. 6/29/07), 958 So.2d 1175 (Calogero, C.J., dissenting) ("I dissent from the action of the court in recalling the writ as improvidently granted. The defendant's pro se writ application was granted, the case briefed, and oral arguments made by the defendant pro se and the district attorney. At this juncture, the case should be decided on the merits.”); Yarnell Ice Cream. Co. v. Allen, 2000-1520, p. 1 (La. 1/17/01), 777 So.2d 472, 473 (Calogero, C.J., dissenting) (“Clearly, we were not required to exercise our supervisory jurisdiction in this case. We had the discretion to deny the application by this claimant who I must concede is not a most deserving civil claimant. But we did grant the writ to resolve a couple of fairly important legatissues.”).


author: CRICHTON, J.,

text:
    IN RE Jason NAPOLI
    No. 2017-KK-0503
    Supreme Court of Louisiana.
    05/19/2017
   CRICHTON, J.,

additionally concurs assigns reasons:

hi agree with the Court’s decision, to deny this writ application but write separately to emphasize that this silly drama undermines serious business—the efficient administration .of criminal justice. This writ application concerns an assistant district attorney (“ADA”), who sent unprompted, and inappropriate text messages to a trial judge on Criminal District Court. The ADA complained to the trial judge, requesting she stop speaking negatively about the ADA to his colleagues. But even though the trial judge ordered the ADA to stop texting her court-issued cellphone, the ADA defiantly continued to do so, which I believe to be sufficient grounds for a finding of direct contempt of court. See generally La. C.Cr.P. art. 21(A)(5); see also Rules of Prof. Conduct R. 3.5(d) (stating a lawyer shall not “engage in conduct intended to disrupt a. tribunal.”). Further, the trial judge’s alleged conduct—including on one occasion referring to the District Attorney and ADA as “Satan” and “Lucifer”—is, to-say the least, problematic. See Code of .Judicial Conduct Canon 2 (providing that a judge “shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary”). This reality-show behavior has no place in our criminal justice system, which should be less burdened by unprofessional actors and more supported by lawyers who uphold their oath to serve the people of Louisiana. See La. Lawyer’s Oath, available at https://www.lsba.org/ Members/LawyersOath.aspx (“I will maintain the respect due to courts of justice and judicial officers.”).


author: PER CURIAM

text:
    IN RE: Anna C. SIMMONS
    NO. 2017-B-0621
    Supreme Court of Louisiana.
    05/19/2017
   ATTORNEY DISCIPLINARY PROCEEDING

PER CURIAM

liThe Office of Disciplinary Counsel (“ODC”) commenced an investigation into allegations that respondent mishandled her client trust account by commingling client funds with her personal funds. Prior to the filing of formal charges, respondent and the ODC submitted a joint petition for consent discipline in which respondent admitted that her conduct violated Rule 1.15(a) of the Rules of Professional Conduct. Having reviewed the petition,

IT IS ORDERED that the Petition for Consent Discipline be accepted and that Anna C. Simmons, Louisiana Bar Roll number 17375, be 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 two-year period of supervised probation governed by the conditions set forth in the petition for consent discipline. The probationary period shall commence from the date respondent, the probation monitor, and the ODC execute a formal probation plan. Any failure of respondent to comply with the conditions of probation, or any misconduct during the probationary period, may be grounds for making the deferred suspension executory, or imposing additional discipline, as appropriate.

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


author:
      PER CURIAM
      CRICHTON, J.,

text:
    IN RE: Stacy Lynn MORRIS
    NO. 2017-B-0526
    Supreme Court of Louisiana.
    05/19/2017
   PER CURIAM

| ^his disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Stacy Lynn Morris, an attorney licensed to practice law in Louisiana, but currently suspended from practice.

PRIOR DISCIPLINARY HISTORY

Before we address the current charges, we find it helpful to review respondent’s prior disciplinary history. Respondent was originally admitted to the practice of law in Louisiana in 2000. In 2014, we suspended respondent from the practice of law for a period of three yéars for conduct occurring from 2004 through 2008. Her misconduct included neglect of á legal matter, failure to communicate with a client, commingling and conversion of client funds, sharing fees with a nonlawyer, and failure to cooperate with the ODC in its investigation. In re: Morris, 14-1067 (La. 10/15/14), 149 So.3d 229 (“Morris I").

Against this backdrop, we now turn to a consideration of thé misconduct at issue in the instant proceeding, which occurred long after the misconduct at issue in Morris I.

| .UNDERLYING FACTS AND PROCEDURAL HISTORY

In July 2012, James Conant retained respondent to represent him in a personal injury matter stemming from an automobile accident. Following the accident, Mr. Conant sought medical treatment at Hardy Chiropractic Center (“HCC”). Respondent sent HCC a letter guaranteeing that payment for medical services would be withheld from any- future settlement.

Mr. Conant’s case settled in November 2013. Respondent disbursed the settlement funds to her client in December 2013, and although she withheld $2,161 for medical expenses, she did not pay this amount to HCC, in effect making Mr. Conant personally responsible for the charges. In March 2015, HCC filed a complaint against respondent with the ODC. The complaint was sent to respondent via certified mail at her bar registration address and three other addresses; however, she did not respond,

DISCIPLINARY PROCEEDINGS

In November 2015, the ODC filed one count of formal charges against respondent, alleging that her conduct violated Rules 1.15 (safekeeping property of clients or third persons) and 8.1(c) (failure to cooperate with the ODC in its investigation) of the Rules of Professional Conduct. Respondent answered the formal charges and denied any misconduct. Respondent also indicated that she never received notice of the original complaint.

Formal Hearing

The matter proceeded to a formal hearing, which was conducted by the hearing committee in March 2016. During the hearing, respondent stipulated to | sthe formal charges. She testified that her failure to pay HOC was an oversight because the client had been paid and it was office procedure to disburse all funds at the same time. Respondent also testified that she did not receive any correspondence from HOC notifying her that funds were owed. Respondent admitted that she did not reconcile her trust account and did not know how to reconcile her trust account.

In mitigation, respondent . introduced medical documents and testified that she suffered from numerous medical conditions. Respondent also testified that she had to cope with the incarceration of her son and the death of her “God sister.”

Hearing Committee Report

After considering the record and the evidence presented at the hearing, the hearing committee adopted the factual allegations of the formal charges, as stipulated to by respondent, as its factual findings. The committee also made the following additional findings:

Respondent stated that she did not receive the initial complaint; however, she did file a general denial, which indicates that she had at least received notice of the formal charges.

HOC sent a series of letters to respondent indicating the amounts that were due; and so, even after being made aware that funds were owed, respondent failed to make payment.

The record shows that respondent suffers from numerous medical conditions, which appear to be controlled with medications; however, these health issues, as well as losing her “Gód sister,” do not excuse her actions.

|4Based on these findings, the committee determined respondent violated Rules 1.15, 8.1(c), and 1.15(f) (a lawyer shall subject all client trust accounts to a reconciliation process) of the Rules of Professional Conduct.

After considering the ABA’s Standards for Imposing Lawyer Sanctions, the committee determined the applicable, baseline sanction is disbarment. In aggravation, the committee found a prior disciplinary record. The committee found that no mitigating factors are present.

Considering the foregoing circumstances, the committee recommended respondent be disbarred.

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

Disciplinary Board Recommendation

After review, the. disciplinary board found that the hearing committee’s -factual findings are not manifestly erroneous. The board noted that respondent stipulated to the formal charges. The board also found that respondent violated the Rules of Professional Conduct as alleged in the formal charges. The board declined to find a violation of Rule 1.15(f), noting that this violation and the facts related to such a violation were not alleged in the formal charges. Moreover, at the time of the misconduct, the provision requiring quarterly reconciliations of a trust account had not yet been enacted.

The board determined respondent knowingly violated duties owed to her client and the legal profession. She had a duty to notify the client or third party of her receipt of funds belonging to them and to deliver those funds promptly. Respondent caused potential injury to her client, from whom the medical provider could seek payment. Respondent’s failure to cooperate ip the ODC’s investigation caused needless delay and expenditure of the ODC’s limit-' ed resources. After ^considering the ABA’s Standards for Imposing Lawyer Sanctions, the board determined the applicable baseline sanction is suspension.

After further considering respondent’s misconduct in light of this court’s prior jurisprudence addressing similar misconduct, a majority of the board recommended respondent be suspended from the practice of law for three years, to run consecutively to her prior suspension in Morris I. The board also recommended respondent be required to make full restitution to Mr. Conant or HCC, as appropriate, and further recommended respondent be assessed with the costs and expenses of this matter. Two board-members dissented.

Neither respondent nor the ODC' filed an objection to the disciplinary board’s report and 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: 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 commit*-te.e 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 admitted that she failed to remit settlement funds to a third-party medical provider..In light of this admission, respondent has violated the Rules of Professional Conduct as alleged in the formal charges.

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

Respondent knowingly violated duties owed to her client and the legal profession, causing potential and actual harm. The baseline sanction for this type of misconduct is suspension. The aggravating factor of a prior disciplinary record is supported by the record. There are no mitigating factors present.

. In recommending a sanction, the board relied upon the case of In re: Graham, 02-2789 (La. 1/31/03), 841 So.2d 707. In Graham, the court imposed a three-year suspension upon an attorney who failed to remit funds to third-party medical providers, converted those funds, and failed to cooperate with the ODC in its investigation. The attorney had not-provided restitution to the medical providers and no mitigating factors were present. In determining the appropriate sanction, the court cited Louisiana State Bar Ass’n v. Hinrichs, 486 So.2d 116 (La. 1986), which sets forth guidelines for imposing discipline in a conversion case:-

In a typical case of disbarment for violation of DR 9-102 [now Rule 1.15], one or more of-the following elements are usually present: the lawyer acts in bad faith and intends a result inconsistent with his client’s interest; the lawyer commits forgery or other fraudulent acts in connection with the violation; the magnitude or the duration of the deprivation is extensive;, the magnitude of the damage or risk of damage, expense and inconvenience caused the client is great; the lawyer either fails, to make full restitution or does so tardily after extended pressure of disciplinary or legal proceedings.
A three year suspension from practice typically results in cases involving similar but less aggravated factors. In such cases the lawyer is guilty of at least a high degree of |7negligence in causing his client’s funds to be withdrawn or retained in violation of the disciplinary rule. He usually does not commit other fraudulent acts in connection therewith. The attorney usually benefits from the infraction but, in contrast with disbarment cases, the client may not be greatly harmed or exposed to great risk of harm. The attorney fully reimburses or pays his client the funds due without the necessity of extensive disciplinary or legal proceedings.
A suspension from practice of eighteen months or two years will typically result where the facts are appropriate for a three-year suspension, except that there are significant mitigating circumstances; or where the facts are appropriate for a one-year suspension, except that there are significant aggravating circumstances.
A suspension from practice of one year or less will typically result where the negligence in withdrawing or retaining client funds is not gross or of a high degree. No other fraudulent acts are committed in connection with the violation of the disciplinary rule. There is no serious harm or threat of harm to the client. Full restitution is made promptly, usually before any legal proceeding or disciplinary complaint is made.
Hinrichs, 486 So.2d at 122-123 (citations omitted).

The record in this case supports a finding that respondent failed to pay the third-party medical provider and retained for her own use the funds she had received for that purpose. It appears from the record that these funds have not yet been repaid. The magnitude of the damage, risk, expense, and inconvenience to the client is not insignificant, however, there is no evidence of bad faith, fraud, or a dishonest motive. Given such facts, this case falls on the higher end of the Hinrichs range.

Considering the jurisprudence cited by the board, as well as the absence of any objection by the ODC to the disciplinary board’s report, we will accept the board’s recommendation and suspend respondent from the practice of law for three years, to run consecutively to her prior suspension in Morris I. We further order respondent to make full restitution of $2,161, plus legal interest, to Mr. Conant or HCC, as appropriate.

1 «DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, it is ordered that Stacy L. Morris, Louisiana Bar Roll number 27018, be and she hereby is suspended from the practice of law for three years. This suspension shall run consecutively to the suspension imposed in In re: Morris, 14-1067 (La. 10/15/14), 149 So.3d 229. It is further ordered that respondent shall make restitution of $2,161, plus legal interest, to James Conant or Hardy Chiropractic Center, 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., dissents and assigns reasons.

CRICHTON, J.,

dissents and assigns reasons:

IH respectfully dissent from the majority’s imposition of a three-year suspension in this matter, as I find the discipline too lenient. In my view, respondent’s most recent violations of the Rules of Professional Conduct, along with her previous misconduct, constitute a pattern of reckless and indifferent behavior, and she has proven herself an embarrassment to the legal profession. Consequently, I would impose the sanction of disbarment. ■

      . Given the timing of respondent’s new misconduct, the approach of Louisiana State Bar Ass'n v. Chatelain, 573 So.2d 470 (La. 1991), is not applicable to this matter. In Chatelain, the court held that when the underlying misconduct occurs within the same time period as the misconduct forming the basis of a previously imposed sanction, the discipline imposed in the subsequent proceeding should be determined as if both proceedings were before the court simultaneously.

      . No formal written stipulation was presented by the parties; however, the transcript of the hearing reflects that respondent indeed stipulated to the formal charges.


author: PER CURIAM:

text:
    STATE EX REL. Alvin HARVEY v. STATE of Louisiana
    No. 2017-KH-0614
    Supreme Court of Louisiana.
    05/19/2017
   PER CURIAM:

I,WRIT NOT CONSIDERED. Untimely filed pursuant to La.S.Ct.R. X § 5.

Relator has now exhausted his right to obtain post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a second or successive application only under the narrow circumstances provided in La. C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the Legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator has filed an application for post-conviction relief in the district court, and the district court’s ruling denying relief is now final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.


text:
    STATE EX REL. Christopher BUCKENBERGER v. STATE of Louisiana
    No. 2017-KH-0610
    Supreme Court of Louisiana.
    05/19/2017
   PER CURIAM:

|⅜WRIT NOT CONSIDERED. Petitioner has not demonstrated that he sought review in the court(s) below before filing in this Court nor shown the “extraordinary circumstances” that would justify bypassing that level of review. La.S.Ct.R. X § 5(b).


text:
    STATE EX REL. Brittany Lynne MARTIN v. STATE of Louisiana
    No. 2016-KH-2160
    Supreme Court of Louisiana.
    05/19/2017
   PER CURIAM:

11 WRIT NOT CONSIDERED. Untimely filed pursuant to La.S.Ct.R. X § 5.

Relator has now exhausted his right to obtain post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a second or successive application only under the narrow circumstances provided in La. C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the Legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator has filed an application for post-conviction relief in the district .court, and the district court’s ruling denying relief is now final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.