text:
    IN RE: Adam Anthony ABDALLA
    NO. 2017-B-0453
    Supreme Court of Louisiana.
    October 18, 2017
    OFFICE OF DISCIPLINARY COUNSEL, Charles Bennett Plattsmier, Tammy Pruet Northrup; For Applicant
    Adam A. Abdalla ; SCHIFF, SCHECKMAN & WHITE, Leslie J. Schiff ; For Respondent
    ATTORNEY DISCIPLINARY PROCEEDING
   PER CURIAM

This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel ("ODC") against respondent, Adam Anthony Abdalla, an attorney licensed to practice law in Louisiana but currently on interim suspension pursuant to a joint petition filed by the parties in October 2014. In re: Abdalla , 14-2142 (La. 10/22/14), 149 So.3d 1222.

UNDERLYING FACTS

Respondent was formerly employed by the Lafayette law firm of Andrus, Boudreaux, Landry & Coussan (the "firm"). In September 2014, the ODC received a complaint alleging that respondent had converted funds from the firm. Specifically, the complaint alleged the following facts, to which the parties herein have stipulated:

1. Respondent wrote three unauthorized checks to himself out of the client escrow account. The checks were made payable to Orange Ocean, LLC, a single member LLC with respondent listed as the sole member, in the amounts of $5,125, $2,500, and $5,000. These funds were being held in escrow as part of a commercial transaction on behalf of a client.
2. Respondent wrote two unauthorized checks to himself out of the client escrow account. The checks were made payable to Abdalla Enterprises, LLC, a single member LLC with respondent listed as the sole member, in the amounts of $2,000 and $800. These funds were held in escrow pursuant to an Escrow Agreement, signed by respondent, which stated that the firm would be compensated $2,500 by the client for its services. Although fees were due to the firm, no checks were made payable to the firm.
3. Respondent wrote an unauthorized check to Belle Realty of Lafayette, LLC ("Belle") in the amount of $5,910.86 from the firm's operating account, an account on which he never had signing authority. Belle is a commercial real estate company owed by respondent's parents. Respondent claimed the check was for rent payable to Belle and written on behalf of a firm client, and that the firm would be reimbursed by the client through a corresponding invoice. Respondent never billed any client for the corresponding amount paid to Belle.
4. A client wrote a $1,000 check to "Adam-Boudreaux" as a retainer for legal services. Respondent endorsed the check and deposited it into his personal account. Respondent never tendered these funds to the firm, and the firm continued to provide legal services to the client.
5. Respondent created fraudulent invoices on fictitious firm letterhead for two clients for legal services rendered. One client paid respondent $11,500 by check made payable to respondent. Respondent never tendered these funds to the firm, and the firm continued to provide legal services to the client.
6. Respondent performed legal services for three clients, including formation of corporate entities and drafting of resolutions, and instructed the clients to pay him cash directly for those services. The clients paid respondent cash in the total amount of $1,250. Respondent never tendered these funds to the firm.
7. A client, Blanc Bridal, LLC, paid respondent in cash for legal services rendered through the firm. Respondent created a $3,500 invoice, which he then voided. The firm did not receive the funds for the legal work performed by respondent.
8. A client, Corey Devan Willis, paid respondent $500 in cash for legal services. Respondent marked a $500 invoice to Mr. Willis as paid in full, but he never turned over these funds to the firm.

DISCIPLINARY PROCEEDINGS

In September 2015, the ODC filed formal charges against respondent, alleging that his conduct as set forth above violated the following provisions of the Rules of Professional Conduct: Rules 8.4(a) (violation of the Rules of Professional Conduct), 8.4(b) (commission of a criminal act that reflects adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer), and 8.4(c) (conduct involving dishonesty, fraud, deceit, or misrepresentation).

Respondent answered the formal charges, admitting his misconduct and requesting a hearing in mitigation. He also pointed out that he had reimbursed the firm for all the funds he had converted, as well as the expenses incurred by the firm for attorney's fees and accounting costs.

Mitigation Hearing

The hearing committee conducted the mitigation hearing in July 2016. Prior to the hearing, the parties entered into a joint stipulation of facts. The joint stipulation included the parties' stipulations concerning the specific allegations of misconduct included in the formal charges, as set forth above, as well as the following additional stipulations:

1. Respondent has admitted taking the funds and has reimbursed the firm for all funds that he has converted that are known to the firm.
2. All funds were taken from the firm and none were taken from individual clients.
3. Respondent stole the money to support a drug habit as he routinely used hydrocodone and is addicted to same.
4. Respondent voluntarily enrolled in Palmetto Addiction Recovery Center for a ninety-day rehabilitation program after the complaint was filed with the ODC.
5. Respondent successfully completed the ninety-day program and enrolled in the Judges and Lawyers Assistance Program ("JLAP") after completing his treatment. Further, respondent entered into a five-year contract with JLAP.
6. There are no criminal charges pending against respondent.
7. Respondent's misconduct violates Rules 8.4(a), 8.4(b), and 8.4(c) of the Rules of Professional Conduct.
8. Respondent's actions harmed the firm, the public, and the legal profession.
9. The aggravating factors present in this matter include a pattern of misconduct and multiple offenses.
10. The mitigating factors present in this matter include the absence of a prior disciplinary record, personal or emotional problems, timely good faith effort to make restitution or to rectify the consequences of the misconduct, full and free disclosure to the disciplinary board or a cooperative attitude toward the proceedings, and remorse.

The ODC called no witnesses to testify at the hearing. Respondent testified on his own behalf and on cross-examination by the ODC. Respondent called the following witnesses to testify in person before the hearing committee: Joseph E. "Buddy" Stockwell, III, the Executive Director of JLAP; his wife, Stephanie Abdalla; Jay Weiss, M.D., the medical director of Palmetto Addiction Recovery Center; his lifelong friends Jacques Landry, Charles "Buck" Miciotto, James Bayard, and Michael Fenstermaker; and his sister, Alicia Abdalla Mouton.

Mr. Stockwell testified to respondent's participation in the JLAP program and his current sobriety. Dr. Weiss testified that respondent presented to Palmetto with a severe opioid addiction and a moderate use disorder related to Adderall. He testified that after working through withdrawal symptoms, respondent spent approximately three months at his facility, and, by all indications, was a successful patient who has maintained his sobriety since.

Respondent's longtime friends all testified to his good character. Respondent's wife testified to his character and his ongoing recovery process. Respondent's sister testified to the behavior she saw in her brother in the course of his addiction and how his life has changed in the recovery process.

In his own testimony, respondent explained that he graduated from law school in 2006 and immediately got a job with a law firm in Lafayette handling business transactions and loan closings. He made a lateral move to the firm in July 2012. In December 2012, respondent was experiencing back pain. He took some Percocet that he had left over after an earlier surgery on his hand, and although he had taken pain pills before, this time it "had a different effect on [him]" that he described as "euphoric." Soon, he began taking the Percocet more frequently, and then every day, and after a while he was purchasing Oxycontin on the street and taking five to seven pills a day.

Respondent admitted that he took money from the firm to support his drug habit. This occurred from November 2012 to sometime in 2014. In August 2014, the firm terminated respondent, apparently suspicious about the financial activity in his files. The firm hired a CPA to perform a forensic accounting and respondent eventually paid back all the money that was missing, approximately $39,000. In June 2015, after an intervention by family and friends, respondent went to Palmetto for inpatient treatment. He was diagnosed with opioid use disorder, severe; stimulant use disorder, moderate (relating to his use of Adderall for attention deficit disorder ); and opioid withdrawal. Respondent successfully completed the treatment program at Palmetto and signed a five-year JLAP agreement on September 15, 2015 that incorporated all of the discharge recommendations made by Palmetto. Respondent testified that he is currently in compliance with all of the requirements of his JLAP agreement. He is no longer taking Adderall and has no desire to use opioids. Respondent testified that in light of what he learned in treatment, he feels "pretty confident" that he can stay sober for the rest of his life.

Hearing Committee Report

After considering the testimony and evidence presented at the hearing, as well as the stipulations entered into by the parties, the hearing committee found that respondent knowingly and intentionally violated the Rules of Professional Conduct as charged in the formal charges. He violated duties owed to the legal system, to his firm, and to the profession. The applicable baseline sanction in this matter is disbarment.

Respondent's principal contention is that there should be a downward deviation from the baseline sanction because he suffered from a mental condition during the time of the misconduct. The committee acknowledged that respondent developed a severe opioid addiction in late 2012, at the age of 32. Prior to this time, he had no substance abuse problems or addiction problems, and he was respected for his character, integrity, and professional skills. He entered a recovery program at Palmetto in June 2015 and has been sober since that time. While addiction recovery is a "day by day" process, all of the evidence suggests that respondent has a high likelihood of maintaining his sobriety. His treatment at Palmetto was specifically focused on professionals returning to work, and through the JLAP program, he has on-demand access to high-quality treatment options. Respondent has the support of friends and family to help him, and he is well equipped with the tools needed to manage his sobriety moving forward. Though at the peak of his addiction he was consuming shockingly high doses of opioids, it did not appear to the committee that the specter of his prior addiction, if managed properly, presents a significant danger to the public or the profession.

Nevertheless, the committee concluded that the thefts committed by respondent were executed knowingly, over an extended period of time, and with significant planning and forethought. The first theft occurred in November 2012. The thefts continued through the spring of 2014, during which respondent stole a total of $39,085.86 in eleven separate acts. It was respondent's specific business and professional knowledge and skill that allowed him to commit these thefts and, for a time, conceal them from his employer and clients.

For the mitigating factor of mental disability to be applicable, Standard 9.32(i) of the ABA's Standards for Imposing Lawyer Sanctions provides that respondent must prove by clear and convincing evidence that his chemical dependency caused the misconduct. The committee found that here, respondent did not present sufficient evidence to show direct causation between his chemical dependency and his misconduct. Although some friends and family testified that respondent was a different man during his addiction, and not someone who would be expected to steal under normal circumstances, respondent did not present expert testimony that his disability was the cause of the misconduct. Though he may have used the money taken to support his addiction, that fact is not necessarily proof that the addiction caused his misconduct. Respondent knew what he was doing was wrong and he used various sophisticated methods to accomplish his criminal acts over an extended period. His repeated and deliberate actions during this time "belie his contention that his misconduct was an aberration." See In re: Stoller , 04-2758 (La. 5/24/05), 902 So.2d 981.

The committee concluded:

Respondent has been cooperative with the disciplinary process, proactive in his recovery, and seems to be on the right track for getting his life straight. However, given the severity of his misconduct, ... those action[s] are not sufficient to justify a downward deviation from the baseline sanction of disbarment.

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

Respondent objected to the hearing committee's report. He asserted that the committee erred in finding that he did not present sufficient evidence to show a causal connection between his chemical dependency and his misconduct. He also objected to the sanction recommended by the committee.

Disciplinary Board Recommendation

The parties stipulated to the facts regarding the underlying misconduct, and respondent stipulated that he violated the Rules of Professional Conduct as charged in the formal charges. The disciplinary board accepted these stipulations.

By writing unauthorized checks out of firm accounts, creating fraudulent and fictitious invoices, and directing firm clients to pay him personally, respondent knowingly and intentionally violated duties owed to the legal system, the legal profession, and the public. Respondent stipulated that his actions harmed the public, the firm, and the legal profession. No clients were harmed as a result of respondent's conduct, as his theft involved his firm's money and not any client funds. The baseline sanction for respondent's misconduct is disbarment.

The parties stipulated to the following aggravating factors: a pattern of misconduct and multiple offenses. The board also recognized the additional aggravating factors of a dishonest or selfish motive and illegal conduct. The parties stipulated to the following mitigating factors: the absence of a prior disciplinary record, personal or emotional problems, timely good faith effort to make restitution or to rectify the consequences of the misconduct, full and free disclosure to the disciplinary board or a cooperative attitude toward the proceedings, and remorse.

In addition, respondent challenges the committee's conclusion that the evidence was not sufficient to prove a causal connection between his misconduct and his chemical dependency. n its brief to the board, the ODC acknowledged that expert evidence of a causal connection was presented at the hearing. The board accepted this stipulation, and found the committee erred in its determination that respondent did not prove the mitigating factor of mental disability. Nevertheless, the weight to be given to this factor depends upon whether the addiction was the sole, principal, or a substantial contributing cause of the misconduct, and here the record testimony was not specific enough for that distinction to be made. Furthermore, there was evidence of other financial issues that could have contributed to the misconduct, as well as evidence that the first act of misconduct occurred before the addiction became full blown. But, even assuming "very great weight" should be given to the addiction as a mitigating factor, the board agreed with the committee that the aggravating factors carry as much weight as the mitigating factors and that a downward deviation from the baseline sanction of disbarment is not warranted.

For various forms of theft from law firms, the court has imposed sanctions ranging from a three-year suspension to permanent disbarment. See In re: Kelly , 98-0368 (La. 6/5/98), 713 So.2d 458 (three-year suspension imposed upon a lawyer who converted approximately $80,000 in funds belonging to his law firm; significant mitigating factors present); In re: Bernstein , 07-1049 (La. 10/16/07), 966 So.2d 537 (while a partner in two law firms, the lawyer created "off the books" billing statements and collected fees from clients for legal services totaling approximately $30,000 which he then converted to his own use; disbarment imposed); In re: Sharp , 09-0207 (La. 6/26/09), 16 So.3d 343 (disbarment for lawyer's conversion of $50,000 in attorney's fees and expenses due to his law firm upon settlement of a personal injury matter); In re: Pearson , 12-0940 (La. 10/16/12), 100 So.3d 313 (lawyer converted $133,000 belonging to his law firm and improperly used the firm's credit card for personal expenses; disbarment imposed);

In re: Mitchell , 13-2688 (La. 5/7/14), 145 So.3d 305 (lawyer permanently disbarred for submitting hundreds of false expense reimbursement requests to his law firm, which in turn charged the expenses to its client). Here, while respondent's misconduct appears to be most similar to that in Kelly , the board found that under the circumstances, a three-year suspension is unduly lenient. First, as in Kelly , the scale of respondent's theft from his law firm was significant-he stole nearly $40,000 over a long period of time until he was caught. Second, respondent perpetrated the theft by sophisticated and deliberate means, including creating fraudulent invoices, which is similar to the misconduct in Bernstein . Third, respondent delayed nine months in seeking treatment for his addiction. He was fired in August 2014 and consented to interim suspension in October 2014 but did not enter treatment at Palmetto until June 2015. Respondent's apparent reluctance to seek treatment for his addiction, at least initially, was a concern to the board and resulted in a shorter period of proven sobriety on which to rely. Fourth, and most significant, the first theft from the firm occurred in November 2012. However, respondent testified that the pain pills did not have a different, pleasurable effect on him until the end of December 2012, suggesting that the first act of misconduct predates full blown addiction.

Based upon these facts, the board found that a downward deviation from the baseline sanction is not warranted, and recommended that respondent be disbarred.

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

DISCUSSION

Bar disciplinary matters fall within the original jurisdiction of this court. La. Const. art. V, § 5 (B). Consequently, we act as triers of fact and conduct an independent review of the record to determine whether the alleged misconduct has been proven by clear and convincing evidence. In re: Banks , 09-1212 (La. 10/2/09), 18 So.3d 57. While we are not bound in any way by the findings and recommendations of the hearing committee and disciplinary board, we have held the manifest error standard is applicable to the committee's factual findings. See In re: Caulfield , 96-1401 (La. 11/25/96), 683 So.2d 714 ; In re: Pardue , 93-2865 (La. 3/11/94), 633 So.2d 150.

Respondent converted at least $39,085.86 from his law firm. The funds were taken in eleven separate acts committed by respondent over a period of approximately eighteen months, and involved writing unauthorized checks out of firm accounts, creating fraudulent and fictitious invoices, and directing firm clients to pay him personally. Respondent has stipulated to this misconduct and to his violation of Rules 8.4(a), 8.4(b), and 8.4(c) of the Rules of Professional Conduct. Therefore, the sole issue to be decided by this court is the appropriate measure of discipline to be imposed.

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

There is no dispute that the applicable baseline sanction in this matter is disbarment. There is likewise no dispute that the aggravating and mitigating factors found by the disciplinary board are supported by the record. Rather, respondent takes issue only with the board's assessment of the weight to be assigned to the mitigating factors-particularly his addiction-in relation to the aggravating factors.

We agree with the board's analysis in this regard. While respondent did offer evidence of a causal connection between his addiction and the misconduct, the weight to be given to this mitigating factor depends upon the extent to which the addiction contributed to the misconduct, and that determination cannot be made from the record before the court. Moreover, respondent admitted that he first converted funds from his law firm before he became addicted to Oxycontin. Nevertheless, even assuming that "very great weight" is assigned to respondent's addiction as a mitigating factor, we agree with the board that the aggravating factors carry as much weight as the mitigating factors and that a downward deviation from the baseline sanction of disbarment is not warranted.

We would be remiss if we did not acknowledge the positive steps respondent has taken which have helped him greatly personally and which will be to his advantage if he reapplies for admission in the future. However, the conduct warrants disbarment.

Based on this reasoning, we will adopt the disciplinary board's recommendation and disbar respondent, retroactive to the date of his interim suspension.

DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, briefs, and oral argument, it is ordered that Adam Anthony Abdalla, Louisiana Bar Roll number 30370, be and he hereby is disbarred, retroactive to October 22, 2014, the date of his interim suspension. His name shall be stricken from the roll of attorneys and his license to practice law in the State of Louisiana shall be revoked. 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.

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

CRICHTON, J., dissents and assigns reasons

I respectfully dissent from the Court's decision to impose disbarment in this matter, as I find the sanction unduly harsh. In my view, respondent is entitled to a downward departure from the baseline sanction of disbarment, and I would impose a three-year full suspension with no time deferred.

The evidence before this Court supports the fact that respondent has a serious opioid addiction, and he continues his long road to recovery to this day. The majority concludes that respondent's addiction was not "full blown" until December 2012, and therefore respondent failed to prove his first act of conversion in November 2012, was caused by his addiction. I do not find that a mere month between respondent's first act of conversion (in November) and the time that the drugs started to have a "different effect" on him (in December) is sufficient to negate a connection between the two.

Even assuming respondent did fail to make the necessary link between his addiction and his misconduct, I find the majority inappropriately disregards the mitigating factors in this case. This Court has long held that "[t]he discipline to be imposed depends upon the facts of each case and the seriousness of the offense(s) involved, considered in light of any aggravating and mitigating circumstances." Louisiana State Bar Ass'n v. Reis , 513 So.2d 1173, 1178 (La. 1987), citing Louisiana State Bar Ass'n v. Bosworth , 481 So.2d 567 (La. 1986). Respondent's misconduct in this case is serious, as he converted almost $40,000 from his law firm to satisfy his drug addiction. However, not only has respondent made full restitution of every dollar of that amount (to his firm, as no funds were converted from any individual clients), he has willingly agreed to and so far fully complied with a five-year JLAP agreement. Respondent also spent three months in an in-patient substance abuse program, and while his recovery is far from over, he has consistently maintained his sobriety since leaving the program. The record also reflects that respondent has been fully cooperative with the disciplinary investigation since his interim suspension three years ago, and has not faced any criminal charges. Importantly, it appears that even if respondent had done nothing to mitigate his circumstances here, the Court would still have imposed disbarment. This fact alone represents the importance of mitigating circumstances in cases such as these.

I further find the majority's comparison and contrast of this case to In re: Kelly, 98-0368 (La. 6/5/98), 713 So.2d 458, curious, where the majority notes there were "significant mitigating factors" in Kelly . This Court found in Kelly that, despite a conversion of funds of twice the amount as respondent here ($80,000) from his firm, respondent in Kelly was entitled to a downward departure from the baseline sanction of disbarment due to respondent's "mental condition" of depression, triggered by a bitter divorce and chemical dependency. The Kelly court concluded:

The baseline sanction for conversion is disbarment. Nonetheless, we recognize there are several mitigating factors in this case, including respondent's mental condition at the time of the conversion, his lack of any prior disciplinary record, his acknowledgment of the wrongful nature of his actions, his cooperation in the disciplinary investigation and his prompt payment of full restitution. Additionally, while we do not minimize the seriousness of respondent's conduct, we note that his actions did not cause harm to any clients, and that several of his law partners (the victims of respondent's misconduct) testified in favor of a more lenient sanction. Considering all these factors, we conclude the appropriate sanction for respondent's misconduct is a three-year suspension from the practice of law.

Kelly, supra , at 461 (internal citation omitted).

In my view, the majority finds distinctions without differences between Kelly and respondent here, as the mitigating factors in the case before us today do not appear much different from those outlined in Kelly . Addiction is no different than any other disease, including depression, a fact the majority appears to have declined to consider.

For the above-stated reasons, I would depart downward from the baseline sanction of disbarment, and impose a full three-year suspension with no time deferred.

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

      The stipulation does not indicate the amount of funds paid to respondent by the second client.

      The original stipulation was to the effect that respondent's drug of choice was hydrocodone; however, the evidence at the hearing established and the parties agreed that the drug was actually Oxycontin.

      Prior to the hearing, respondent listed four additional family members as witnesses. In lieu of cumulative testimony, those witnesses did not testify at the hearing, and the parties stipulated that the testimony they would have given would be consistent with that of respondent's friends and family members who had already testified.

      Respondent and his wife used their savings to repay some of these funds and borrowed the remainder from his parents and his sister. He testified that he has agreed to repay his family for the sums they loaned to him.

      Respondent testified that he delayed in seeking treatment after he was fired in August 2014 because his wife was three months pregnant at the time, and because he thought he could kick his substance abuse problem on his own. However, he also testified that he continued using Oxycontin until June 2015, when he was admitted to Palmetto.

      With the exception of a single-page discharge letter from Dr. Weiss, the records of respondent's treatment at Palmetto were not submitted into evidence at the hearing.

      Specifically, respondent must prove four factors under ABA Standard 9.32(i):
      (1) there is medical evidence that the respondent is affected by a chemical dependency or mental disability ;
      (2) the chemical dependency or mental disability caused the misconduct;
      (3) the respondent's recovery from the chemical dependency or mental disability is demonstrated by a meaningful and sustained period of successful rehabilitation; and
      (4) the recovery arrested the misconduct and recurrence of that misconduct is unlikely.
      The commentary to Standard 9.32 emphasizes the "careful analysis" that is required in considering issues of mental disability offered as mitigating factors in disciplinary proceedings, and that "direct causation between the disability" and the misconduct must be established. The commentary further discusses the weight to be assigned to this factor, indicating that "the greatest weight" should be assigned when the disability is the sole cause of the offense. If the disability is the principal cause of the offense, it should be given "very great weight"; if it is a substantial contributing cause of the offense, it should be given "great weight." In all other cases in which the disability is considered as mitigating, the commentary indicates it should be given "little weight."

      Dr. Weiss testified that he "blame[d] the drugs" for respondent's "bad behavior" in his law firm and opined that such conduct "is unlikely to recur if [respondent] stays off the drugs."

      Regarding the four factors of ABA Standard 9.32(i), the board found that (1) respondent's opioid addiction was established by the testimony of Dr. Weiss and by stipulation; (2) the testimony of Dr. Weiss, along with the testimony of respondent's family and friends, established a causal connection between respondent's chemical dependency and his misconduct; (3) respondent's enrollment in JLAP, completion of a ninety-day treatment program, and continued sobriety since June 2015 demonstrate a meaningful and sustained period of successful rehabilitation; and (4) Dr. Weiss and Mr. Stockwell felt positive about respondent's continued recovery.

      Every disciplinary case is fact-specific, and this Court has previously imposed lighter sanctions with which I have strongly disagreed. See In re: Stacy Lynn Morris , 17-0526 (La. 5/19/17), 219 So.3d 1064 (Crichton, J., dissenting from the Court's suspension of respondent for conversion of client funds, and would impose disbarment); In re: Edward Bissau Mendy , 16-0456 (La. 10/19/16), 217 So.3d 260 (Crichton, J., dissenting from the Court's disbarment of respondent for conversion of client funds, and would impose permanent disbarment); In re: Southall , 14-2441 (La. 3/17/15), 165 So.3d 894 (Crichton, J., concurring in part and dissenting in part from the Court's suspension of respondent for conversion of client funds, and would disbar respondent).

      The hearing committee in Kelly noted the following specific mitigating factors:
      (1) personal and financial problems which contributed to his depression and impaired his behavior; (2) restitution; (3) lack of criminal prosecution; (4) the misappropriation involved his law firm, rather than clients; (5) lack of prior disciplinary record; (6) full and free disclosure to the disciplinary board; and (7) remorsefulness. Based on these factors, the committee recommended respondent be suspended from the practice of law for a period of one year and one day, followed by two years of supervised probation subject to certain conditions.
      Id. at 460.


source: Caselaw Access Project

author: GUIDRY, Justice WEIMER, J., dissenting. Id. , McDonald, J., concurring. CLARK, Justice, dissenting

license: Public Domain

text:
    Philip SHELTON v. Nancy PAVON
    No. 2017-CC-0482
    Supreme Court of Louisiana.
    October 18, 2017
    HOWARD & REED, D. Douglas Howard, Jr., Jonathan Charles Pedersen ; For Applicant-Plaintiff.
    Hon. Charles Roben Jones ; FRANK J. D'AMICO JR., APLC, Charles Philip Ciaccio ; For Respondeut-Defendant.
   GUIDRY, Justice

We granted the writ application to determine whether the court of appeal erred in reversing the trial court's ruling granting the plaintiff's special motion to strike defendant's reconventional demand for defamation, pursuant to La. Code Civ. Pro. art. 971, the so-called anti-SLAPP statute, where the appellate court found that plaintiff's petition did not involve a "public issue." For the reasons expressed below, we find the court of appeal was correct in reversing the trial court's ruling. We hold that La. Code Civ. Pro. art. 971(F)(1)(a), which states that "[a]ny written or oral statement or writing made before a legislative, executive, or judicial body" is an "[a]ct in furtherance of a person's right of petition or free speech ... in connection with a public issue," must nonetheless satisfy the requirement of La. Code Civ. Pro. art. 971(A)(1), that such statements be made "in connection with a public issue...."

FACTS AND PROCEDURAL HISTORY

Philip Shelton, M.D. (hereinafter "Dr. Shelton") married Judith Shelton (hereinafter "Mrs. Shelton") in 2001. During their marriage, the couple each owned a life insurance policy that named the other as the beneficiary. At some point, Mrs. Shelton was diagnosed with cirrhosis of the liver and Hepatorenal Syndrome (rapid deterioration of kidneys) as a result of alcoholism. In July 2011, Mrs. Shelton was admitted to Ochsner Baptist Medical Center for treatment and was soon discharged to Woldenberg Village, an inpatient assisted living facility. Mrs. Shelton died on December 31, 2011, at the age of 64.

After Mrs. Shelton's death, Dr. Shelton learned that, in July 2011, she had changed her beneficiary to her personal assistant/paralegal/friend, Nancy Pavon. In November 2013, Dr. Shelton filed a Petition to Nullify Change of Beneficiary. He alleged Mrs. Shelton had lacked the capacity to execute a change of beneficiary form due to her poor health, including dementia, confusion, disorientation, and personality changes. Alternatively, he alleged Mrs. Shelton's signature on the change of beneficiary form was a forgery or had been obtained through undue influence by Ms. Pavon.

In response, Ms. Pavon filed an answer and reconventional demand alleging Dr. Shelton's petition constituted defamation per se . In response, Dr. Shelton filed a Special Motion to Strike pursuant to La. Code Civ. Pro. art. 971. Ms. Pavon opposed the motion to strike, arguing that it should be dismissed as a matter of law because Dr. Shelton's petition to nullify did not involve a public issue. She also argued that a motion to strike was not the proper mechanism to dismiss her defamation claim.

After a hearing and taking the matter under advisement, the trial court granted Dr. Shelton's special motion to strike. The trial court reasoned that, under La. Code Civ. Pro. art. 971(A)(1), the moving party must first satisfy the burden of proof that the "cause of action against [the moving party] arise [s] from any act of that person in furtherance of his right of petition or free speech under the United States or Louisiana Constitution in connection with a public issue...." Thus, the trial court noted it must first consider whether Dr. Shelton's action, that is, the petition to nullify change of beneficiary, arises from an act in the exercise of his right of petition or free speech in connection with a public issue. The trial court concluded Dr. Shelton's petition fell into the category of such "acts" as defined in La. Code Civ. Pro. art. 971(F)(1)(a), because it is a "written ... statement or writing made before a ... judicial proceeding." The trial court then noted that pursuant to Article 971(A)(1) the burden shifted to the non-mover, Ms. Pavon, to show a probability of success on her claim for defamation. The trial court ultimately concluded she could not. The trial court then awarded attorney fees to Dr. Shelton as the prevailing party on the motion, pursuant to La. Code Civ. Pro. art. 971(B).

Ms. Pavon sought review in the court of appeal, which ultimately reversed the trial court's ruling. The court of appeal observed that the trial court was correct in first determining whether Dr. Shelton's petition to nullify the change of beneficiary constituted an act in furtherance of his right to petition in connection with a public issue. However, the court of appeal disagreed with the trial court's conclusion that Dr. Shelton met his prima facie burden under Article 971. The court of appeal found the language of Article 971(F)(1)(a) was ambiguous because it was susceptible to different meanings. Relying on the Fifth Circuit's decision in Yount v. Handshoe , 14-919 (La. App. 5 Cir. 5/28/15), 171 So.3d 381, writ denied , 15-2302 (La. 2/19/16), 187 So.3d 462, the court of appeal held that, in light of the legislative history, relevant case law, and the statutory language as a whole, La. Code Civ. Pro. art. 971(F)(l)(a) requires the statements made in a judicial proceeding be made in connection with a public issue. Shelton v. Pavon , 16-0758 (La. App. 4 Cir. 2/15/17), 212 So.3d 603. The court of appeal concluded Dr. Shelton's petition was not an exercise of his right of petition in connection with a public issue.

Dr. Shelton sought writs in this court, asserting the Fourth Circuit's decision was in conflict with rulings from the First, Second, and Third Circuits. He cited, among others, Gibbs v. Elliott , 12-2121 (La. App. 1 Cir. 9/13/13), 186 So.3d 667 ; Jones v. Delta Fuel Co. , 48885 (La. App. 2 Cir. 05/28/14), 141 So.3d 352 ; and Jeansonne v. Roy , 13-741 (La. App. 3 Cir. 3/5/14), 156 So.3d 134, 142, reversed in part , 14-0729 (La. 6/30/14), 147 So.3d 1116 ), all of which held that pleadings filed into the record of a judicial proceeding fall within the definition of "[a]n act in furtherance of the person's right of petition or free speech" as contemplated by Article 971(F)(1)(a). We granted Dr. Shelton's writ application to resolve a conflict in the circuits. Shelton v. Pavon , 17-0482 (La. 2/15/17), 212 So.3d 603.

LAW and DISCUSSION

Resolving this conflict requires us to interpret Article 971, and so we begin with the language of the statute itself. M.J. Farms, Ltd. v. Exxon Mobil Corp. , 07-2371 (La. 7/1/08), 998 So.2d 16, 27 ). "When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature." La. Civ. Code art. 9. "When the language of the law is susceptible of different meanings, it must be interpreted as having the meaning that best conforms to the purpose of the law." La. Civ. Code art. 10. Generally, words are given their prevailing meaning, but "when the words of a law are ambiguous, their meaning must be sought by examining the context in which they occur and the text of the law as a whole." La. Civ. Code arts. 11 and 12.

Louisiana Code of Civil Procedure Article 971 provides in pertinent part:

A. (1) A cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States or Louisiana Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established a probability of success on the claim.
(2) In making its determination, the court shall consider the pleadings and supporting and opposing affidavits stating the facts upon which the liability or defense is based.
(3) If the court determines that the plaintiff has established a probability of success on the claim, that determination shall be admissible in evidence at any later stage of the proceeding.
B. In any action subject to Paragraph A of this Article, a prevailing party on a special motion to strike shall be awarded reasonable attorney fees and costs.
* * *
C. All discovery proceedings in the action shall be stayed upon the filing of a notice of motion made pursuant to this Article. The stay of discovery shall remain in effect until notice of entry of the order ruling on the motion. Notwithstanding the provisions of this Paragraph, the court, on noticed motion and for good cause shown, may order that specified discovery be conducted.
* * *
F. As used in this Article, the following terms shall have the meanings ascribed to them below, unless the context clearly indicates otherwise:
(1) "Act in furtherance of a person's right of petition or free speech under the United States or Louisiana Constitution in connection with a public issue" includes but is not limited to:
(a) Any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law.
(b) Any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official body authorized by law.
(c) Any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest.
(d) Any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.

Our appellate courts interpret this statute as requiring a two-part, burden-shifting analysis, which the trial court had in fact performed. See, e.g. , Thomas v. City of Monroe Louisiana, 36,526 (La. App. 2 Cir. 12/18/02), 833 So.2d 1282 ; Aymond v. Dupree, 05-1248 (La. App. 3 Cir. 4/12/06), 928 So.2d 721. In cases where right of petition and free speech activities form the basis of the claims, the mover must first establish that the cause of action against him arises from an act by him in the exercise of his right of petition or free speech under the United States or Louisiana Constitution in connection with a public issue. La. Civ. Code Pro. art. 971(A)(1) ; Yount v. Handshoe , 14-919, pp. 6-7, 171 So.3d at 385-86 ; Thinkstream, Inc. v. Rubin, 06-1595 p. 9 (La. App. 1 Cir. 09/26/07), 971 So.2d 1092, 1100, writ denied, 07-2113 (La. 1/7/08), 973 So.2d 730. If the mover makes a prima facie showing that his comments were constitutionally protected and in connection with a public issue, the burden shifts to the plaintiff to demonstrate a probability of success on the claim. Id. In cases where more than one claim is alleged in the petition, the courts examine the probability of success of each claim individually. Darden v. Smith, 03-1144 p. 8 (La. App. 3 Cir. 06/30/04), 879 So.2d 390, 397, writ denied , 04-1955 (La 11/15/04), 887 So.2d 480 ; Melius v. Keiffer, 07-0189 p. 5 (La. App. 4 Cir. 03/12/08), 980 So.2d 167, 172, writ not considered , 08-1039 (La. 8/29/08), 989 So.2d 90. If the plaintiff can demonstrate a probability of success on any of his claims, then the special motion to strike must fail. Darden, supra.

Dr. Shelton contends the court of appeal's ruling departs from the rules of statutory interpretation, citing La. Civ. Code art. 10, because it does not conform to the purpose of the law. In his view, Article 971(F)(1) sets forth specific examples of what the legislature meant by an "act in furtherance of a person's right of petition or free speech under the United States or Louisiana Constitution in connection with a public issue," expressly providing that such acts include:

(a) Any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law.
(b) Any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official body authorized by law.

Applying the article's plain and unambiguous language to this case, and adhering to the legislature's express intent in La. Acts 1999, No. 734, § 2 that Article 971 be broadly construed, Dr. Shelton argues his Petition to Nullify Change of Beneficiary and his allegations of forgery and undue influence on the part of Ms. Pavon constitute written statements before a judicial proceeding as defined in Article 971(F)(1)(a). He contends Ms. Pavon's defamation claim against him thus arises from the allegations set forth in his petition, and, therefore, Ms. Pavon's defamation claim is subject to a special motion to strike under Article 971. However, he claims the court of appeal's opinion rewrites the law, because the court concluded that La. Code Civ. Pro. art. 971(F)(l)(a) requires the statements made in a judicial proceeding be made in connection with a public issue. Dr. Shelton asserts this interpretation effects a change in the law.

Ms. Pavon supports the ruling of the Fourth Circuit below, which properly resorted to this court's rules of statutory interpretation after determining the language of La. Code Civ. Pro. art. 971 is ambiguous and its application leads to absurd consequences. Ms. Pavon asserts the lower court correctly found that Article 971 (F)(1)(a) was ambiguous, that reading it broadly to apply to any act in furtherance of one's right of petition leads to absurd results, and that it was therefore superseded by the operative clause of Article 971, namely subparagraph 971(A)(1), which mandates that the act in furtherance of the person's right of petition or free speech must be made in connection with a public issue. She also points out that the Fifth Circuit in Yount similarly held that Article 971(F)(1)(b) was ambiguous and leads to absurd consequences and was therefore subject to the operative clause of Article 971(A)(1).

The parties have correctly noted that Article 971(F)(1)(a) defines an act in furtherance of a person's right of petition or free speech under the United States or Louisiana Constitution in connection with a public issue as "[a]ny written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law." As observed by the Fourth and Fifth Circuits, though the latter with regard to Article 971(F)(1)(b), this language can be read to provide that a special motion to strike will apply to any issue brought before a judicial proceeding, because it was made in furtherance of the person's right of petition. On the other hand, Article 971(F)(1)(a) may as easily be interpreted to mean that a special motion to strike will apply only to statements or writings before a judicial proceeding in connection with a public issue . Clearly there is ambiguity in this language given that all five of our circuit courts have reviewed and interpreted this language, with two circuits adopting the latter view, and three circuits adopting the former.

Ultimately, pursuant to our duty to resolve such impasses, we agree that a reading of the statute to apply to any issue made before a judicial proceeding, without a requirement that it be connected to a public issue, can lead to absurd results. As the Yount court explained with regard to La. Code Civ. Pro. art. 971(F)(1)(b), which is analogous, under such an interpretation "any cause of action arising from any written or oral statement made in connection with any kind of government activity or proceeding would be subject to special motions to strike regardless of whether or not the statements were made in connection with a public issue." Yount , 14-919, p. 8, 171 So.3d at 387. Interpreting subsection (F)(1)(b), the Yount court concluded that "any party could defame or invade the privacy of a person involved in a divorce proceeding, traffic violation, child custody dispute, marriage, mortgage registration, passport application, or driver's license renewal and be immunized from legal repercussions of damage to others through the use of an extraordinary procedural remedy." Id. , 14-919, p. 8-9, 171 So.3d at 387. That same logic applies to subsection (F)(1)(a), as the court below found.

We nevertheless acknowledge the views of the other circuits. The First Circuit in Gibbs v. Elliott , for example, found that the plain language of Article 971(F)(1)(a) and (b) provides that an act "in connection with a public issue" includes by definition "[a]ny written ... statement or writing made before a ... judicial proceeding" or "made in connection with an issue under consideration or review by a ... judicial body." Gibbs, 12-2121, p. 6, 186 So.3d at 672. In Gibbs , a plaintiff's defamation suit was dismissed pursuant to a special motion to strike under La. Code Civ. Pro. art. 971. The defamation suit in Gibbs was based on allegations made against Gibbs in a succession matter, wherein it was alleged that Gibbs had engaged in efforts to transfer assets for purposes of evading judgment creditors. In dismissing Gibbs's claim, the First Circuit reviewed the assignment of error that the Article 971 special motion to strike should have been denied because the alleged defamatory statements did not arise out of a matter of public significance, but rather was related to a dispute between private parties. The First Circuit court declined to interpret the provisions of La. Code Civ. Pro. art. 971(F)(1)(a) and (b) as requiring statements made before a judicial proceeding or in connection with an issue under consideration or review by a judicial body must also be related to matters "in connection with a public issue." Ibid.

The First Circuit recently upheld its view, disagreeing with the Fifth Circuit's holding in Yount. See Aloise v. Capital Management Consultants, Inc. , 16-1174 (La. App. 1 Cir. 4/12/17), 2017 WL 1378223. The Aloise court disagreed with Yount that, unless the provisions of Article 971(F)(1)(a) and (b) were interpreted as requiring statements made in judicial proceedings to also be made in connection with a public issue, any party could defame the privacy of a person in a variety of situations. In the Aloise court's view, Article 971 was enacted by the legislature as a procedural right to be used in the early stages of litigation to screen out meritless claims bought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for redress of grievances. 16-1174, p. 8, citing Thinkstream, 971 So.2d at 1100.

There is some support for that view in the language of Article 971(A), which limits the special motion to strike only to a "cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech...." Defamation suits, when filed against a petitioner who has alleged fraud or the like, as in this case, clearly seem to fall within the rubric of suits intended to chill the litigant's right of free speech and right to petition for redress of grievances. As the concurring judge in Aloise pointed out: " Articles 971(F)(1)(a) and (b) statutorily define a protected act to include statements made before a judicial proceeding or in connection with an issue under consideration by a judicial body-that is, statements made during the course of litigation or in connection with an issue under consideration in litigation. So, it appears that the right to litigate is in itself a matter of public concern." Aloise, supra , McDonald, J., concurring.

Given the competing viewpoints among our lower courts as to how to interpret the plain language of the statute, it is no surprise that there is similarly a divergence of views on what the legislature intended. As La. Civ. Code art. 10 instructs, when the language of the law is susceptible to different meanings, we must interpret the law as having the meaning that best conforms to the purpose of the law.

The Yount court examined the history of Article 971, which evolved from Louisiana's Anti-SLAPP statute:

Code of Civil Procedure Article 971 is Louisiana's Anti-SLAPP statute. 'SLAPP' is an acronym for Strategic Lawsuit Against Public Participation, a term first coined by Professors George W. Pring and Penelope Canan to describe generally meritless suits brought by large private interests to deter common citizens from exercising their constitutional right to petition or to punish them for doing so. Pring, SLAPPs: Strategic Lawsuits Against Public Participation, 7 Pace Envtl. L.Rev. 3 (1989). Courts have difficulty identifying these suits which masquerade as ordinary lawsuits, most often in the form of defamation or a business tort. Id. SLAPP suits consist of a civil complaint or counterclaim (for monetary damages and/or injunction) filed against non-governmental individuals and/or groups because of their communications to a government body, or the electorate on an issue of some public interest or concern. Id. Typical examples of SLAPP suits include cases brought by 1) police, teachers, and other public officials and employees against their critics; 2) landlords against tenants reporting problems to the city health inspectors; 3) businesses against consumers reporting problems with their products or services; and 4) by dumps, toxic waste incinerators, bars, and other less-than-attractive enterprises against their NIMBY ("Not-In-My-BackYard") homeowner opponents. Id. At their heart, SLAPP suits threaten a citizen's right to petition because the mere filing of the suit limits public participation in the political process.
In response to the growing prevalence of such suits and recognizing that traditional legal remedies such as abuse of process or malicious prosecution claims and motions for summary judgment were inadequate tools to ameliorate the problem, states enacted legislation creating the special motion to strike. This extraordinary procedural remedy limits discovery, dismisses meritless claims quickly, and awards attorney's fees to the prevailing party. California was the first state to adopt an anti-SLAPP statute in 1992, followed by many other states, including Louisiana in 1999 with Act 734.

Yount , pp. 9-10, 171 So.3d at 387-88 (footnotes omitted).

The legislature expressly stated its intent behind Article 971 : "The legislature finds and declares that there has been a disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for redress of grievances. The legislature finds and declares that it is in the public interest to encourage continued participation in matters of public significance, and this participation should not be chilled through abuse of judicial process. To this end, it is the intention of the legislature that the Article enacted pursuant to this Act shall be construed broadly."

1999 La. Acts 734, § 2. The legislature thus expressed its desire to encourage participation in matters of public significance, which suggests Article 971 is intended to protect statements made in connection with public rather than private issues under consideration by a government body. The Yount court resourcefully collected and reviewed Louisiana cases to demonstrate the types of issues that would be protected under the special procedures of Article 971, noting that suits involving private disputes between private parties have generally been found to fall outside the ambit of Article 971. Yount , pp. 11-12, 171 So.3d at 388-89.

Having completed our review, and giving due respect to our colleagues on the appellate courts, we must conclude that La. Code Civ. Pro. art. 97l(F)(l)(a) applies to any written or oral statement made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law, so long as it is made "in connection with a public issue." In Connick v. Myers , 461 U.S. 138, 146, 103 S.Ct. 1684, 1690, 75 L.Ed.2d 708 (1983), the United States Supreme Court described speech on matters of public concern as speech "relating to any matter of political, social, or other concern to the community."

With regard to the merits of the dispute before us, the court of appeal correctly found that Dr. Shelton's petition to nullify a change in beneficiary to his wife's life insurance policy is a private dispute involving private parties, and not a matter of public concern or significance. Therefore, Dr. Shelton did not satisfy his initial burden of demonstrating that his petition is an act in furtherance of his right of petition "in connection with a public issue" as required by Article 971(A)(1).

Finally, the court of appeal in this case awarded reasonable attorney fees and costs to Ms. Pavon as the prevailing party pursuant to La. Code Civ. Pro. art. 971(B), to be determined by the trial court on remand. Dr. Shelton asserts in this court that the court of appeal erred in awarding Ms. Pavon attorney fees and costs as the prevailing party under La. Code Civ. Pro. art. 971(B), citing this court's decision in Jeansonne v. Roy , 14-0729 (La. 6/30/14), 147 So.3d 1116, and arguing the trial court had properly granted his special motion to strike. Ms. Pavon distinguishes Jeansonne , arguing this court reversed the award of attorney fees in Jeansonne because the appellate court itself had fixed the amount rather than remanding the matter to the district court for it to determine reasonable attorney fees and costs.

We do not find Jeansonne necessarily instructive on this issue. There, the plaintiff sued an attorney and a funeral home alleging the attorney, by misleading the court, had improperly orchestrated an exhumation of the plaintiff's daughter for an autopsy. The trial court sustained the defendant attorney's exception of no cause of action, but denied the defendant attorney's Article 971 special motion to strike the allegations against him and accompanying request for attorney fees. The court of appeal affirmed the trial court's ruling sustaining the exception of no cause of action, but reversed the trial court's denial of the special motion to strike and awarded attorney fees in the amount $2500. This court denied the plaintiff's writ application, but granted the application in part to reverse the award of attorney fees, stating the court of appeal had erred in awarding attorney fees pursuant to Article 971. Because the Jeansonne court did not explain the basis of its ruling, we find it of little value as to whether attorney fees in the instant case were properly awarded by the court of appeal, to be determined on remand by the trial court.

In the instant case, Dr. Shelton filed a special motion to strike Ms. Pavon's allegations against him; the trial court granted Dr. Shelton's motion and awarded him attorney fees and costs. The appellate court reversed that ruling, finding that Dr. Shelton had not met his initial burden of proof because the statements in question were not made in furtherance of his right to petition in connection with a public issue. Shelton v. Pavon , 16-0758, p. 11, 212 So.3d at 611 Other than citing Jeansonne and arguing that he should have prevailed, Dr. Shelton makes no other argument in his brief regarding attorney fees and costs. Accordingly, we decline to review the matter further. Because Ms. Pavon was ultimately "a prevailing party" on the Article 971 special motion to strike, we find the court of appeal correctly awarded her reasonable attorney fees and costs, to be determined by the trial court on remand. See Yount , p. 14, 171 So.3d at 390.

CONCLUSION

After reviewing the applicable law, we hold that La. Code Civ. Pro. art. 971(F)(1)(a), which states that "[a]ny written or oral statement or writing made before a legislative, executive, or judicial body" is an "[a]ct in furtherance of a person's right of petition or free speech ... in connection with a public issue," must nonetheless satisfy the requirement of La. Code Civ. Pro. art. 971(A)(1), that such statements be made "in connection with a public issue...." We therefore conclude the court of appeal was correct in reversing the trial court's ruling granting Dr. Shelton's special motion to strike, and in awarding reasonable attorney fees and costs to Ms. Pavon as the prevailing party, to be determined by the trial court on remand. Accordingly, the judgment of the court of appeal is affirmed.

AFFIRMED

WEIMER, J., dissenting.

Because I find that the language of La. C.C.P. art. 971 is clear and unambiguous, and its application does not lead to absurd consequences, I respectfully dissent.

The issue presented in this case is whether a defendant, moving specially under La. C.C.P. art. 971 to strike a plaintiff's demand for defamation, arising out of a written statement made in a judicial proceeding, must additionally demonstrate that the statement concerned an issue of public significance. The majority answers this question in the affirmative. I disagree, believing the conclusion is supported neither by the plain language of the article, the rules of statutory construction, nor the expressed intent of the legislature.

Plain Language

As the majority acknowledges, the interpretation of a legislative enactment begins with the language of the statute itself. Shelton v. Pavon , 17-0482, op. at ---- (La. 10/18/17); Duckworth v. Louisiana Farm Bureau Mutual Ins. Co. , 11-2835, p. 12 (11/2/12), 125 So.3d 1057, 1064.

In this case, the language of La. C.C.P. art. 971 is strikingly clear. It encompasses the plaintiff's claim for defamation arising out of written statements made in a judicial proceeding without any separate "public issue" requirement.

Louisiana C.C.P. art. 971(A) makes subject to the special motion to strike "[a] cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States or Louisiana Constitution in connection with a public issue." For purposes of this provision, an " '[a]ct in furtherance of a person's right of petition or free speech under the United States or Louisiana Constitution in connection with a public issue,' " is defined to include "[a]ny written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law." La. C.C. P. art. 971 (F)(1)(a) (emphasis supplied). Thus, plainly read, La. C.C.P. art. 971 encompasses a cause of action against a person arising from any statement made in a judicial proceeding. I find there is nothing ambiguous about this language. Apart from noting there is a split among the courts of appeal as to the proper interpretation of the code article, no authority, legal or grammatical, is provided for the conclusion that the language of La. C.C.P. art. 971(F)(1)(a) is ambiguous. Quite the opposite: the finding of ambiguity results solely from the decision of some courts to insert qualifying language not present in La. C.C.P. art. 971(F)(1)(a) -the phrase "in connection with a public issue"-to otherwise clear and straightforward language.

Perhaps recognizing the thin thread upon which the finding of ambiguity rests, the conclusion reached in the opinion is that a literal reading of the codal provision "can lead to absurd results" because its application could extend beyond matters of "public significance" into purely private concerns. Shelton , op. at ----. However, the legislative response to this objection is found in the plain language of the provision itself: pursuant to La. C.C.P. art. 971(F)(1) and (1)(a), any written or oral statement or writing made before or in connection with a judicial proceeding is by definition an "[a]ct in furtherance of a person's right of petition or free speech under the United States or Louisiana Constitution in connection with a public issue ." (Emphasis added). As noted by Judge McDonald in his concurrence in Aloise v. Capital Mgmt. Consultants, Inc. , 16-1174, p. 1 (La.App. 1 Cir. 4/12/17), 2017 WL 1378223, unpub'd., and quoted by the majority:

Article 971(F)(1)(a) and (b) statutorily define a protected act to include statements made before a judicial proceeding or in connection with an issue under consideration by a judicial body-that is, statements made during the course of litigation or in connection with an issue under consideration in litigation. So, it appears that the right to litigate is in itself a matter of public concern.

Id. , McDonald, J., concurring.

In other words, the language of La. C.C.P. art. 971(F)(1)(a) and (b), reflects a clear choice by the legislature in these two provisions to define a "public issue" in terms of setting or context rather than content. Thus, under La. C.C.P. art. 971(F)(1)(a), it is the setting-in this case, a judicial proceeding-that makes the issue a public one. There is no additional requirement that the statement relate to an issue of public significance.

This is, incidentally, consistent with, and reflects the legislature recognizing the special protection that has been afforded statements made in the course of judicial proceedings. That protection is embodied in the qualified privilege that exists in Louisiana with respect to such speech. It is also reflective of a legislative recognition that any matter pending before the judiciary possesses some measure of "public significance" owing to the public nature of judicial proceedings.

Thus, a plain reading of the language of La. C.C.P. art. 971(F)(1)(a) demonstrates that the article does not limit its application to the content or context of statements made in the course of judicial proceedings, but applies to any statement.

Rules of Statutory Construction

My conclusion in this regard is buttressed by the rules of statutory construction. Louisiana C.C.P. art. 971(F)(1) lists four protected acts that are included within the definition of an "[a]ct in furtherance of a person's right of petition or free speech under the United States or Louisiana Constitution in connection with a public issue." In addition to the acts protected under La. C.C.P. art. 971(F)(1)(a) and (b), protection is extended under La. C.C.P. art. 971(F)(1)(c) and (d) to:

(c) Any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest.
(d) Any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest. [Emphasis added.]

Clauses (c) and (d) of La. C.C.P. art. 971(F)(1) include an express "issue of public interest" limitation that is not present in either clause (a) or (b). Certainly, had the legislature intended the "issue of public interest" limitation to apply to clauses (a) and (b) of the article, the legislature knew how to include such a limitation. However, the legislature did not include such a limitation.

If the legislative intent, as expressed in 1999 La. Acts 734, § 2, was to impose a separate and additional "public issue" requirement to motions brought under all four clauses of La. C.C.P. art. 971(F)(1), then no purpose would be served by the legislature's specification in clauses (c) and (d) that the protected acts must be "in connection with an issue of public interest."

It is a cardinal rule of statutory interpretation that, because it is presumed every word, sentence, or provision in a law was intended to serve some useful purpose, some effect is to be given to each such provision, and no unnecessary words or provisions were employed by the legislature. See Moss v. State , 05-1963, p. 15 (La. 4/4/06), 925 So.2d 1185, 1196. Thus, courts are bound, if possible, to give effect to all parts of a law and to construe no sentence, clause or word as meaningless or surplusage if a construction giving force to, and preserving, all words can legitimately be found. See Id. A contrary interpretation in this case is at odds with this rule of statutory construction, as it renders the phrase "in connection with an issue of public interest" in La. C.C.P. art. 971(F)(1)(c) and (d) meaningless and mere surplusage. Believing that the legislature included the phrase in clauses (c) and (d) for some definite purpose, I cannot support an interpretation that would render that phrase meaningless when there is a reasonable interpretation of the language that would give it meaning. Nor do I believe that it is necessary or appropriate to embark on such a course in order to honor the legislative intent.

Legislative Intent

The Act that created La. C.C.P. art. 971 contains an express declaration of legislative intent. The pertinent provision in that statement of intent recites: "[I]t is the intention of the legislature that the Article enacted pursuant to this Act shall be construed broadly." 1999 La. Acts 734, § 2. The interpretation offered in the majority opinion has the opposite effect, narrowing the application of the article by requiring proof of an additional element: that statements made in a judicial proceeding must be made in connection with a "public issue." However, as discussed above, there is no support for this narrow construction in the plain language of the article.

Nevertheless, the declaration is made that the broad construction directed by the legislature would produce an "absurd" result because "any party could defame or invade the privacy of a person involved in a divorce proceeding, traffic violation, child custody dispute, marriage, mortgage registration, passport application, or driver's licence renewal and be immunized from legal repercussions of damage to others through the use of an extraordinary procedural remedy." Shelton , op. at ---- (quoting Yount v. Handshoe , 14-0919, pp. 8-9 (La.App. 5 Cir. 5/28/15), 171 So.3d 381, 387, writ denied, 15-2302 (La. 2/19/16), 187 So.3d 462. With all due respect, I cannot agree with this declaration.

Louisiana C.C.P. art. 971"was enacted as a procedural device to be used in the early stages of litigation to screen out meritless claims brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for redress of grievances." Thinkstream, Inc. v. Rubin , 06-1595, p. 9 (La.App. 1 Cir. 9/26/07), 971 So.2d 1092, 1100. Rather than immunize a person from the legal repercussions of statements defaming or invading the privacy of another, its application requires a two-part burden-shifting analysis: "the mover must first establish that the cause of action against him arises from an act ... in exercise of his right of petition or free speech ... in connection with a public issue. If this burden is met, the burden then shifts to the plaintiff to demonstrate a probability of success on the claim." Id.

That the threshold showing of an act in furtherance of the right to petition or free speech in connection with a public issue, as defined in La. C.C.P. art. 971(F)(1)(a) and (b), encompasses a broad range of situations does not mean the application of clear and unambiguous language produces absurd consequences. Indeed, it is not absurd to conclude (as the legislature obviously did) that judicial proceedings, which are open to the public, present matters of public significance and are deserving of protection from efforts to chill the right to petition or free speech in connection therewith, or that it is appropriate, in light of the qualified privilege that exists with regard to statements made in judicial proceedings, to allow the protection that extends to such statements to be recognized at an early stage of the proceedings.

Parenthetically, it is worth noting that California was the first state to adopt an anti-SLAPP statute and the Louisiana and California statutes are "virtually identical." Yount , 14-0919 at 10 and n.4, 171 So.3d at 387 and n.4. ("Examination of the statutes shows that when adopted, the Louisiana and California statutes matched word for word with only the State name changed.") When the same question of statutory construction presented herein was raised in California, its supreme court concluded, in an opinion rendered prior to the enactment of La.C.C.P. art. 971, that "a defendant moving to strike a cause of action arising from a statement made before, or in connection with an issue under consideration by, a legally authorized official proceeding [the equivalent of La. C.C.P. art. 971(F)(1)(b) ] need not separately demonstrate that the statement concerned an issue of public significance."

Briggs v Eden Council for Hope & Opport unity , 19 Cal.4th 1106, 81 Cal.Rptr.2d 471, 969 P.2d 564, 575 (1999). A similar interpretation of "virtually identical" language in the Louisiana article can hardly be said to produce absurd consequences.

In our civil law system, in which legislation is supreme, we must be careful not to prematurely declare a result absurd when there is a reasonable construction of the language that can avoid such a conclusion. Although La. C.C. art. 9 enables the judiciary to abandon statutory language in instances in which an absurd result would ensue from a literal application of the words, the judiciary should be hesitant to alter the legislative will by doing so.

In this case, the clear and unambiguous language of La. C.C.P. art. 971, the rules of statutory construction, and the declared legislative intent all support the conclusion that a defendant moving to strike a cause of action arising from a statement made in a judicial proceeding need not separately demonstrate that the statement concerned a public issue. Therefore, I respectfully dissent from the opinion to the contrary.

CLARK, Justice, dissenting

I dissent for the reasons given by Justice Weimer.

Hughes, J., dissents with reasons.

I respectfully dissent and would reinstate the judgment of the trial court, who in my opinion handled this matter exactly right. The Legislature was very specific in writing the law and in my opinion addresses this situation perfectly. The law allows the weeding out of frivolous claims or those interposed to delay or intimidate, and does not lead to absurd consequences.

CRICHTON, J., additionally concurs and assigns reasons.

I agree with the majority's interpretation of La. C.C.P. article 971. I write separately to make clear that, in my view, this outcome is consistent with the intent of the legislature to make this procedure an extraordinary remedy. See La. C.C.P. art. 971 Ann., Acts 1999, No. 734, § 2 ("The legislature finds and declares that it is in the public interest to encourage continued participation in matters of public significance , and that this participation should not be chilled through abuse of the judicial process.") (emphasis added). In the event the legislature intended otherwise, it may of course amend the article to make clear that any pleading before a judicial proceeding is, by definition, a "public issue" pursuant to C.C.P. art. 971(F)(a).

      A writ application is currently pending in this court: Aloise v. Capital Management Consultants, Inc. , No. 2017-C-0784, filed on May 12, 2017.

      The federal district court has recently agreed with Yount's reasoning in Schmidt v. Cal-Dive International, Inc., 183 F.Supp.3d 784 (W.D. La. 2016).

      Although, technically, this matter involves a plaintiff-in-reconvention and a defendant-in-reconvention, for simplification, we use plaintiff and defendant.

      "Statements made in the course of a judicial proceeding are subject to a qualified privilege if the statements are material to the proceeding, and are made with probable cause and without malice." Costello v. Hardy , 03-1146, p. 16 n.13 (La. 1/21/04), 864 So.2d 129, 142 n.13 (citing Freeman v. Cooper , 414 So.2d 355 (La. 1982) ).

      La. C.C.P. art. 971(F)(1)(a) and (b) protect, by contrast:
      (a) Any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law.
      (b) Any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official body authorized by law.

      But see, e.g., Felis v. Downs Rachlin Martin PLLC , 200 Vt. 465, 133 A.3d 836, 851-54 (2015), in which the Vermont Supreme Court declined to follow Briggs and reached a different conclusion with respect to the statutory analysis.

      While ordinarily a finding that the defendant met his initial burden of demonstrating that the cause of action against him arises from an act in exercise of his right of petition or free speech in connection with a public issue would require an evaluation of the affidavits submitted by the plaintiff to determine whether those affidavits demonstrate a probability of success on the merits, because of the majority's resolution of this case on grounds that defendant did not meet his initial burden under La.C.C.P. art. 971, and my dissent from that conclusion, I find it unnecessary to evaluate the affidavits for purposes of this dissent.


author: PER CURIAM

text:
    IN RE: Andres Humberto AGUILAR
    NO. 2017-B-1116
    Supreme Court of Louisiana.
    December 6, 2017
    ATTORNEY DISCIPLINARY PROCEEDING
   PER CURIAM

This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel ("ODC") against respondent, Andres Humberto Aguilar, an attorney licensed to practice law in Louisiana but currently on interim suspension pursuant to a joint petition of the parties filed in July 2017. In re: Aguilar , 17-1320 (La. 8/2/17), 222 So.3d 706.

UNDERLYING FACTS

The Charbonneau Matter

The following facts are not in dispute, having been stipulated to by the parties.

In February 2013, respondent was hired through the Pro Bono Project to handle Shawn Charbonneau's divorce. In July 2014, Mr. Charbonneau checked the court records and discovered that respondent had not filed any pleadings on his behalf.

Soon thereafter, Mr. Charbonneau filed a disciplinary complaint against respondent. The ODC sent respondent notice of the complaint via certified mail. All letters sent to respondent were returned unclaimed. The ODC attempted to contact respondent via telephone and e-mail, but respondent failed to respond to these attempts.

Respondent relocated to Texas but failed to update his address with the Louisiana State Bar Association ("LSBA"). The ODC was able to serve respondent with a copy of the complaint at his new address in Texas on February 7, 2015.

The Grant Matter

The following facts are not in dispute, having been stipulated to by the parties.

Kelly Grant was injured in an automobile accident, and Terry Williams hired respondent to handle the personal injury case on Ms. Grant's behalf. Respondent paid Mr. Williams $500 in cash for the referral of Ms. Grant and another client. Ms. Grant met respondent for an initial consultation at a café in Shreveport. Once Ms. Grant completed medical treatment for her injuries, respondent failed to communicate with her about the status of her case; he failed to answer her telephone calls and did not place any telephone calls to her.

In April 2014, Ms. Grant filed a disciplinary complaint against respondent. The ODC sent respondent notice of the complaint via certified mail. All letters sent to respondent were returned unclaimed. The ODC attempted to contact respondent via telephone and e-mail, but respondent failed to respond to these attempts.

Respondent relocated to Texas but failed to update his address with the LSBA. The ODC was able to serve respondent with a copy of the complaint at his new address in Texas on February 7, 2015.

DISCIPLINARY PROCEEDINGS

In December 2015, the ODC filed formal charges against respondent. In June 2016, the ODC filed amended formal charges against respondent. In the formal charges and amended formal charges, the ODC alleged that respondent's conduct, as set forth above, violated the following provisions of the Rules of Professional Conduct: Rules 1.3 (failure to act with reasonable diligence and promptness in representing a client), 1.4 (failure to communicate with a client), 1.16 (declining or terminating representation), 7.4(a) (solicitation), 8.1(c) (failure to cooperate with the ODC in its investigation), 8.4(a) (violation of the Rules of Professional Conduct), 8.4(b) (commission of a criminal act that reflects adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer), and 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation).

Respondent, through counsel, answered the formal charges. He did not file an answer to the amended formal charges. However, prior to a formal hearing in this matter, respondent and the ODC filed a joint stipulation of facts, wherein respondent admitted to the facts as set forth above. The parties further stipulated that the mitigating factor of inexperience in the practice of law (admitted 2011) is present.

Formal Hearing

The hearing committee conducted a hearing in July 2016. Both respondent and the ODC introduced documentary evidence. Respondent called one witness to testify before the committee. He also testified on his own behalf and on cross-examination by the ODC.

RESPONDENT'S TESTIMONY

Respondent testified that his first job out of law school was with the Blanchard Walker law firm in Shreveport. When he first started there, he did really well. After a time, he could no longer get his work done, and he was fired from Blanchard Walker. He then decided to be a solo practitioner.

Regarding Mr. Charbonneau's legal matter, respondent testified that he told Mr. Charbonneau he was ready to file the divorce pleadings but needed a pauper affidavit from Mr. Charbonneau first so they could file without paying court costs.

He denied telling Mr. Charbonneau that he had filed the divorce pleadings.

Regarding the Grant matter, respondent testified that an attorney friend of his knew Mr. Williams and introduced respondent to Mr. Williams, who indicated he worked at ChiroCare. Mr. Williams referred Ms. Grant's case to him along with another potential client's case. Respondent did not end up taking the other potential client's case. Respondent met with Ms. Grant once and then did not do anything more on the case. Ms. Grant called him a few times, but he did not return those calls.

When Mr. Williams first referred the cases to respondent, there was no discussion about respondent paying Mr. Williams for the referrals. However, about a week later, Mr. Williams called respondent and said that respondent owed him $500 for the referrals. Mr. Williams' request was so unexpected that respondent "panicked a little bit and froze up." He then met Mr. Williams in a McDonald's parking lot and paid him $500 in cash. However, it was never part of his business plan as a solo practitioner to pay for referrals.

Respondent also indicated that he knew he was receiving certified mail notices and telephone calls from the ODC between July 2014 and February 2015, but he did not know what they were about. At the time, he had a lot of responsibilities he was not taking care of. He was not able to bring himself to take care of them because he had built up a "wall of distractions."

About two months after starting his solo practice, respondent got a job with TestMasters teaching the LSAT prep course. He is still currently employed by TestMasters and lived in Texas from the summer of 2013 until April 2016 before moving back to Shreveport.

When he was fired from Blanchard Walker in 2013, respondent went to a psychiatrist. He was diagnosed with ADHD and prescribed Concerta. This medication turned out to be counter-productive because respondent actually suffers from obsessive compulsive disorder ("OCD"). Respondent was taking Concerta while he was representing Mr. Charbonneau and Ms. Grant. He has since stopped taking Concerta and now sees a therapist once a week as treatment for OCD. Respondent also plans to see a psychiatrist for treatment with medication.

CLAUDIA HARRIS' TESTIMONY

Ms. Harris, a licensed social worker, testified that she diagnosed respondent with OCD and has been treating him for same since May 2016. She described OCD as an anxiety-driven disorder that is characterized by obsessions, which are thoughts that are related to uncertainty, and compulsions, which are behaviors that may address those anxious thoughts. Respondent's compulsive behavior is avoidance. She believes medication will help respondent and encouraged him to see a psychiatrist. However, she is working with him to limit his distractions, live with his uncertainty, and to tolerate his anxiety through cognitive behavioral therapy. She also testified that respondent's OCD does not make him unable to perform the duties of an attorney.

Hearing Committee Report

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

In the Charbonneau matter, respondent communicated to Mr. Charbonneau in June 2014 that he had filed the divorce petition. However, a review of the court records reflected that respondent had not filed any paperwork for the divorce. Additionally, the evidence shows that respondent failed to communicate with Mr. Charbonneau. In the Grant matter, the stipulated facts and testimony revealed that respondent obtained a personal injury case through a "runner" to whom he paid a $500 referral fee. Respondent met with Ms. Grant, and the client sought medical treatment at ChiroCare. Once Ms. Grant completed the treatment, respondent failed to communicate with her regarding the status of the case and ceased answering telephone calls from both Ms. Grant and ChiroCare. Based on these facts, the committee determined that respondent violated the Rules of Professional Conduct as alleged in the formal charges and amended formal charges.

The committee determined that respondent knowingly violated duties owed to his clients, the public, the legal system, and the legal profession. Respondent's conduct caused actual harm to his clients; Mr. Charbonneau's divorce petition was never filed, and Ms. Grant's personal injury claim prescribed. His conduct in failing to complete a matter he accepted through the Pro Bono Project and his interaction with a "runner" for personal injury matters were betrayals of the public's trust in the legal system. After considering the ABA's Standards for Imposing Lawyer Sanctions , the committee determined the baseline sanction is suspension.

In aggravation, the committee found the following: a dishonest or selfish motive, a pattern of misconduct, multiple offenses, bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with the rules or orders of the disciplinary agency, vulnerability of the victim, and indifference to making restitution. In mitigation, the committee found the absence of a prior disciplinary record, personal or emotional problems (respondent suffers from OCD), inexperience in the practice of law, and remorse.

In light of the above findings, the committee recommended respondent be suspended from the practice of law for one year, with all but nine months deferred, subject to the following conditions: (1) he make any restitution deemed necessary, (2) he continue counseling and/or therapy for OCD, and (3) he attend ten additional continuing legal education hours in the area of law office management.

Both respondent and the ODC filed objections to the committee's recommendation. Respondent argued that the sanction is too harsh, while the ODC argued that the sanction is too lenient.

Disciplinary Board Recommendation

After review, the disciplinary board determined that the hearing committee's factual findings are supported by the record and are not manifestly erroneous. According to the board, respondent neglected his clients' legal matters and failed to communicate with them. He admitted to paying a runner $500 for two personal injury clients, one of whom was Ms. Grant, solicited following an automobile accident. Respondent agreed to represent Ms. Grant and signed a contingency fee agreement with her. Thereafter, he did little work on Ms. Grant's legal matter. After Ms. Grant completed treatment at ChiroCare, the healthcare provider to which the runner had referred her, respondent did not communicate with Ms. Grant and allowed her claim to prescribe. He did not provide Ms. Grant with information pertaining to his malpractice coverage or carrier or otherwise make restitution to her. While the record fails to establish with any certainty the value of Ms. Grant's claim (if any) and raises questions about her medical treatment because it was directed by the runner, the board found that respondent must make restitution to Ms. Grant as appropriate. Furthermore, respondent initially failed to cooperate with the ODC in its investigation of the disciplinary complaints. However, once he was served with the formal charges, he filed a response, made himself available to be deposed by the ODC, entered into a joint stipulation with the ODC, and has otherwise been cooperative. Based on these facts, the board determined that the committee correctly concluded respondent violated Rules 1.3, 1.4, 1.16, 7.4(a), 8.1(c), 8.4(a), 8.4(b) and 8.4(c) of the Rules of Professional Conduct.

The board determined respondent knowingly violated duties owed to his clients, the public, and the legal profession. His conduct caused actual harm. After considering the ABA's Standards for Imposing Lawyer Sanctions , the board determined the baseline sanction ranges from suspension to disbarment. The board agreed with the aggravating and mitigating factors found by the committee.

After reviewing this court's prior jurisprudence addressing similar misconduct, the board recommended respondent be suspended from the practice of law for one year, with all but nine months deferred, followed by two years of probation, with the following conditions: (1) respondent shall attend ten additional hours of continuing legal education in law office management, (2) he shall sign a contract with the Judges and Lawyers Assistance Program ("JLAP") relative to his continued counseling and/or therapy, and (3) he shall make restitution as appropriate.

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

DISCUSSION

Bar disciplinary matters fall within the original jurisdiction of this court. La. Const. art. V, § 5 (B). Consequently, we act as triers of fact and conduct an independent review of the record to determine whether the alleged misconduct has been proven by clear and convincing evidence. In re: Banks , 09-1212 (La. 10/2/09), 18 So.3d 57. While we are not bound in any way by the findings and recommendations of the hearing committee and disciplinary board, we have held the manifest error standard is applicable to the committee's factual findings. See In re: Caulfield , 96-1401 (La. 11/25/96), 683 So.2d 714 ; In re: Pardue , 93-2865 (La. 3/11/94), 633 So.2d 150.

Respondent neglected two legal matters, failed to communicate with two clients, paid for two case referrals, and failed to cooperate with the ODC in two investigations. In doing so, respondent has violated the Rules of Professional Conduct as charged in the formal charges and amended formal charges.

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

The record supports a finding that respondent knowingly violated duties owed to his clients, the public, and the legal profession. His actions caused actual harm. The baseline sanction in this matter is suspension. The aggravating and mitigating factors found by the committee and adopted by the board are supported by the record.

Turning to the issue of an appropriate sanction, we find guidance from the cases of In re: Goff , 02-1899 (La. 1/28/03), 837 So.2d 1201, and In re: Christenberry , 13-2461 (La. 1/27/14), 132 So.3d 388. In Goff , an attorney facilitated a runner-based solicitation scheme; however, the attorney maintained that she was an unwitting participant. For this misconduct, we suspended the attorney from the practice of law for nine months, with six months deferred. In Christenberry , an attorney neglected two legal matters, failed to communicate with a client, failed to timely refund unearned fees to a client, and failed to cooperate with the ODC in an investigation. For this misconduct, we suspended the attorney from the practice of law for one year and one day, with all but three months deferred, followed by two years of supervised probation.

Based on this jurisprudence, we find the appropriate sanction for respondent's misconduct is a suspension from the practice of law for a period of one year and one day. However, mindful of the mitigating factors, we will defer all but nine months of this sanction. Following completion of the active portion of his suspension, respondent shall be placed on probation for two years, subject to the conditions recommended by the board, as follows: (1) respondent shall attend ten additional hours of continuing legal education in law office management, (2) he shall sign a contract with JLAP relative to his continued counseling and/or therapy, and (3) he shall make restitution as appropriate.

DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, briefs, and oral argument, it is ordered that Andres Humberto Aguilar, Louisiana Bar Roll number 34176, be and he hereby is suspended from the practice of law for a period of one year and one day, with all but nine months deferred. This suspension shall be retroactive to August 2, 2017, the date of respondent's interim suspension. Following the active portion of the suspension, respondent shall be placed on unsupervised probation for two years, subject to the conditions set forth in this opinion. The probationary period shall commence from the date respondent 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 portion of the suspension executory, or imposing additional discipline, as appropriate. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court's judgment until paid.

      Respondent saw Elizabeth F. Kieff, MD, a psychiatrist in Chicago, Illinois on July 27, 2016. Dr. Kieff confirmed respondent's OCD diagnosis, stating that, "[h]e, like many individuals with OCD, has the propensity to engage in compulsions, avoidance and distraction as means to self-soothe and manage the anxiety associated with distressing obsessions ("intrusive thoughts"). This has meant at times avoiding responsibilities that, at other moments in his life, he has been able to manage." She indicated that she is working with him to find local providers for both therapy and psychiatry.