author: PER CURIAM. CLARK, J.,

text:
    In re Charles R. JOINER.
    No. 2015-B-0959.
    Supreme Court of Louisiana.
    Dec. 8, 2015.

      Office of Disciplinary Counsel, Charles Bennett Platsmier, Robert Samuel Kennedy, Jr., for Applicant.
    Charles R. Joiner, Richard L. Fewell, Jr., APLC, Richard L. Fewell, Jr., for Respondent.
   PER CURIAM.

I,This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Charles R. Joiner, an attorney licensed to practice law in Louisiana.

UNDERLYING FACTS

In February 2008, the ODC received a disciplinary complaint filed by Larry and Jeri Lynn Carroll. Mr. Carroll had retained respondent to represent him in a claim for damages arising out of an automobile accident. When the claim was settled in June 2007, respondent withheld funds from the settlement proceeds to pay Mr. Carroll’s medical providers; however, according to the complaint, the Carrolls received collection notices months later indicating that the medical providers had not been paid.

In March 2008, respondent filed a response to the Carrolls’ complaint. He indicated that he was unaware of the problems the Carrolls were having with the medical providers, but that having been informed of such, his secretary conducted an investigation and learned the original checks issued in June 2007 had never been negotiated. Respondent further indicated that replacement checks were issued to the medical providers and that his secretary later confirmed with each medical provider that the replacement check had been received.

|2Two months later, in May 2008, after respondent was served with a subpoena in connection with the ODC’s investigation of the complaint filed by the Carrolls, respondent’s secretary, Lisa McBride, confessed that she had been embezzling money from him since 2003. She also acknowledged that she had deposited client funds into respondent’s operating account, including Mr. Carroll’s settlement funds. Respondent terminated Ms. McBride’s employment and reported her to the police. Although Ms. McBride was unsure exactly how much money she had taken from respondent over the years, she was able to obtain a loan from a relative and made restitution to respondent in the amount of $39,312.35. Respondent directed that these funds be disbursed as follows: 1) $9,700 to be deposited into his operating account, and 2) $10,000 to be deposited into his personal bank account. The remaining funds, $19,612.35, were deposited into respondent’s client trust account. At the time of these disbursements in mid-May 2008, respondent had not obtained any audit of either his operating or client trust accounts.

After depositing Ms. McBride’s funds, respondent retained his CPA, George Griggs, to audit his trust account for a five-year period. Respondent did not request that Mr. Griggs audit his operating account. On July 18, 2008, Mr. Griggs provided respondent with a report indicating that only three client settlements had not been fully disbursed as of that date, “as the funds were to be held awaiting Medicare payback figures.” Mr. Griggs’ report also indicated that the balance in the trust account, as of that date, should have been $22,330.96. Instead, after the deposit of Ms. McBride’s restitution check, the balance in the trust account was $19,612.35, which left a shortfall of $2,718.61. Upon learning of the shortfall from Mr. Griggs, respondent immediately deposited this amount into his trust account using his personal funds.

| sIn January 2009, respondent gave a sworn statement to the ODC in which he related how he had come to learn of Ms. McBride’s theft. He also testified that he had obtained records of both his client trust account and his operating account from his bank; however, he stated that he had not turned over all of these records to Mr. Griggs to complete an audit of the operating account because he had obtained the records primarily for the purpose of the criminal prosecution of Ms. McBride. Respondent also testified that he had not turned over the operating account records because “when all the bank records are in it may appear that I owe [Ms. McBride] money.”

During the January 2009 sworn statement the ODC requested that respondent provide all of his banking records for a five-year period. Respondent was cooperative in complying with the ODC’s request.

In January 2011, respondent gave a second sworn statement to the ODC. By this time, the ODC’s internal auditor had reviewed respondent’s bank records with a focus on the disbursements that were made in the personal injury cases handled by respondent during the 2008-2008 time frame. The auditor made particular note of the following cases:

1. Beatrice Reeves — Case settled in March 2003 for $75,000; the sum of $28,579.32 withheld from the settlement to pay Ms. Reeves’ medical providers.

2. William and Johnnie Thomas — Cases settled in March 2004 for a total of $19,634.75; a total of $9,133.75 withheld from the settlements to pay Mr. and Mrs. Thomas’ medical providers.

3. Syble Evans — Case settled in September 2007 for $15,000, with settlement funds initially deposited into respondent’s operating account; the sum of $10,015.50 withheld from the settlement to pay Ms. Evans’ medical providers.

|4In these cases, the auditor found that respondent still had client funds in his trust account, notwithstanding that the clients’ cases had been settled for many years. Asked about these cases during the 2011 sworn statement, respondent testified that these were. “Medicare cases” and that he believed Ms. McBride was “stealing the bulk of the money from” these funds. He testified that he had since “restored the entirety of what I was advised should’ve been held in there from the beginning,” but he acknowledged that he had not been in contact with Medicare to determine whether there would be any claim on the funds. At the urging of the ODC, respondent committed to doing so promptly, and to refund the funds to his clients if there was no claim by Medicare.

In April 2014, the ODC retained the services of CPA Jeffrey Aucoin to audit respondent’s trust and operating accounts. Mr. Aucoin reviewed respondent’s trust account bank statements for the years 2003 through 2008. He also audited respondent’s operating account for the years 2007 and 2008. His June 2, 2014 audit report of respondent’s trust account revealed that, on February 22, 2008 (the date of the filing of the complaint against respondent), the balance in the account should have been at least $34,217.09. Instead, the actual balance in the trust account on this date was $188.61. Four of respondent’s clients were impacted by the shortfall: Beatrice Reeves ($13,276.35), William and Johnnie Thomas ($9,133.75), Syble Evans ($9,870.14), and John Griggs ($1,936.85).

Respondent did not make Ms. Reeves whole until disbursing the remainder of her funds in .January 2011, November 2011, and June 2012. Respondent did not make Mr. and Mrs. Thomas whole until disbursing the remainder of their funds in December 2011. Respondent did not make Ms. Evans whole until disbursing the remainder of her funds in January 2011, May 2012, and June 2012. Mr. Griggs was not made whole until January 2011.

^DISCIPLINARY PROCEEDINGS

In November 2013, the ODC filed formal charges against respondent, alleging that his conduct as set forth above violated the following provisions of the Rules of Professional Conduct: Rules 1.15 (safekeeping property of clients or third persons), 5.3(a)(b) (failure to properly supervise a non-lawyer assistant), and 8.4(a) (violation of the Rules of Professional Conduct). Respondent, through counsel, answered the formal charges, essentially denying any misconduct. The matter then proceeded to a formal hearing conducted by the hearing committee in June 2014.

Hearing Committee Report

After considering the evidence and testimony presented at the hearing, the hearing committee found the ODC’s CPA, Jeffrey Aucoin, did a more thorough job of reviewing respondent’s trust account and operating account than respondent’s CPA, George Griggs, did in his audit. Accordingly, the committee assigned more weight to the testimony of Mr. Aucoin than to the testimony of Mr. Griggs.

The committee determined respondent proved he ultimately made his former clients (Beatrice Reeves, William and Johnnie Thomas, Syble Evans, and John Griggs) whole. However, it found the ODC proved by clear and convincing evidence that respondent did not make his clients whole from the money Ms. McBride paid as restitution for a period of three to four years (from February 2008 until 2011 or 2012).

Turning to a determination of rule violations, the committee noted that respondent testified he never personally reconciled his trust account from 2003 through 2008. He also did not personally review his trust account statements and |fileft all accounting of his trust account to Ms. McBride. The committee determined that respondent was negligent in not personally overseeing the reconciliation of his trust account bank statements and was negligent in not supervising Ms. McBride’s bookkeeping and disbursement of funds due to clients and third parties. These negligent acts facilitated Ms. McBride’s ability to embezzle funds. Thus, the committee found that respondent violated Rules 5.3(a)(b) and 8.4(a) of the Rules of Professional Conduct. The committee further found that respondent violated Rule 1.15 in two respects: by depositing Ms. McBride’s $9,700 check into his operating account and depositing Ms. McBride’s $10,000 check into his personal account, and by waiting until 2011 and 2012 to make his clients whole even though he received Ms. McBride’s restitution in 2008. Respondent failed to keep money due to clients separate from his own money, and his conversion of funds and lack of urgency in reimbursing the clients caused harm by depriving the clients of their funds for three to four years. However, the committee concluded that in both instances, respondent did not act knowingly because he did not know that either a client or third party had not been paid.

The committee then determined that respondent acted negligently and that the baseline sanction is a public reprimand according to the ABA’s Standards for Imposing Lawyer Sanctions. In aggravation, the committee found that respondent has substantial experience in the practice of law (admitted 1985). The committee also observed that respondent was negligent in delegating the duty of overseeing his trust account to Ms. McBride, he was negligent in not requiring that his trust account statements be reconciled between 2003 and 2008, and he was negligent in permitting Ms. McBride to have unsupervised access to his trust account. In mitigation, the committee found an absence of a prior disciplinary record and full and free disclosure to the disciplinary board and a cooperative attitude toward the proceedings. The committee also found in mitigation that respondent made his 17clients whole and that he had no intent to enrich himself at the expense of a client or third party.

Under these circumstances, the committee recommended that respondent be publicly reprimanded. The committee also recommended that respondent be placed on probation for two years, with the conditions that he personally review his trust account statements, reconcile the statements with his checkbook balance on a monthly basis, and report that he has done so monthly to the ODC or a member of the disciplinary board.

Both respondent and the ODC filed objections to the hearing committee’s report and recommendation. Respondent also objected to the cost statement, specifically objecting to the ODC’s costs associated with Mr. Aucoin’s audit report, which totaled $11,471.48. After reviewing the matter, the committee chair declined to impose these costs against respondent.

Disciplinary Board Recommendation

After review, the disciplinary board determined that the hearing committee’s factual findings are supported by the testimony and/or the documentary evidence.

The board then determined that respondent negligently violated duties owed to his clients, the legal system, and the legal profession. His conduct caused little actual harm but could have potentially caused serious harm. After considering the ABA’s Standards for Imposing Lawyer Sanctions, the board determined that the baseline sanction is a public reprimand.

In aggravation, the board found a pattern of misconduct by respondent (in failing to supervise Ms. McBride and in failing to reconcile his trust account) and substantial experience in the practice of law. In mitigation, the board found the absence of a prior disciplinary record, the absence of a dishonest or selfish motive, |sand full and free disclosure to the disciplinary board and a cooperative attitude toward the proceedings.

After considering this court’s prior jurisprudence addressing similar misconduct, a majority of the board recommended that respondent be suspended from the practice of law for thirty days, fully deferred, subject to a one-year period of probation, during which he should be required to attend the Louisiana State Bar Association’s Trust Accounting School and undergo quarterly trust account audits performed by an ODC-approved CPA who will report the findings to the ODC. Additionally, the board recommended that respondent be assessed with all costs and expenses of these proceedings, except the costs associated with Mr. Aucoin’s audit and audit report.

One board member dissented and would recommend a public reprimand and a two-year period of probation, as recommended by the hearing committee.

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

DISCUSSION

Bar disciplinary matters fall within our original jurisdiction. 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.

|flThe hearing committee made a factual finding that respondent’s negligent supervision of his non-lawyer assistant facilitated her embezzlement of client funds. Thus, the committee found respondent’s actions violated Rule 5.3(b), which provides that a “lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the person’s conduct is compatible with the professional obligations of the lawyer,” as well as Rule 1.15, which requires the lawyer to safeguard client funds.

This finding is supported by the record and is consistent with our jurisprudence. We have long recognized that a lawyer’s duty to safeguard client funds includes :-the duty to supervise nonlawyer assistants who have access to client funds.

A seminal case addressing this issue is Louisiana State Bar Ass’n v. Keys, 567 So.2d 588 (La.1990). In Keys, the lawyer was representing a succession and established a checking account for succession funds. Without the lawyer’s knowledge, his secretary removed funds from the succession account and transferred them to an operating account. Upon learning of the withdrawals, the lawyer reimbursed the funds prior to the filing of the complaint. In our opinion, we agreed that the lawyer was unaware of his secretary’s actions. Nonetheless, citing DR 9-102 (the predecessor provision to Rule 1.15), we found the lawyer was negligent in failing to establish adequate procedures for handling client funds:

While respondent did not know of the misuse of the funds in the present case at a time when the consequences could have been avoided, his negligence in failing to establish adequate procedures for handling the client’s funds resulted in the commingling of the client’s funds with those of the attorney and the use of the client’s funds for the attorney’s personal purposes. Perhaps an attorney may blindly trust an employee with his own funds, but the attorney who undertakes to handle a client’s funds has the duty to take reasonable steps to safeguard the funds. Here, respondent’s duty under DR 9-102 to safeguard the funds of a client included the duty of reasonable supervision of | inthe nonlawyer employee who actually handled the funds. Respondent failed to instruct his employee on the concept of escrow accounts and failed to check periodically the handling of the funds held in escrow. Respondent’s supervisory failures over a long period of time created a fertile environment for his employee’s misuse of the funds.

Id. at 592 [emphasis added].

The reasoning of Keys is particularly appropriate under the facts of the case at bar. Although respondent may have been victimized by his assistant’s improper actions, the ethical rules and jurisprudence of this court impose an overarching duty on the lawyer to safeguard the funds of the lawyer’s clients. As in Keys, respondent’s failure to supervise his assistant created a fertile environment for her embezzlement. Respondent’s actions clearly constitute negligent violations of Rule 5.3 and Rule 1.15.

In the prior negligent supervision cases which have been presented to this court, the lawyer typically made prompt and complete restitution to his clients upon learning of the nonlawyer’s improper actions. In. such cases, we have imposed minimal sanctions. For example, in In re: Caver, 632 So.2d 1157 (La.1994), we publicly reprimanded a lawyer who failed to properly supervise his non-lawyer assistants, noting that he “promptly made not only full restitution, but also compensated his client for any consequential inconvenience ...”

In the case at bar, respondent ultimately made full restitution to his clients. However, we must determine whether he did so in a prompt and reasonable manner consistent with his ethical obligations, as resolution of this issue will impact our determination of the appropriate sanction in this case.

The record reveals respondent became aware of Ms. McBride’s embezzlement in early 2008. On May 19, 2008, Ms. McBride paid respondent a total of $39,312.35 as restitution for her actions. This payment consisted of three checks: (1) a check made payable to respondent in the sum of $19,612.35, which |nwas deposited into respondent’s trust account; (2) a check made payable to respondent for $9,700, which was deposited into his operating account or regular account; and (3) a check made payable to respondent in the sum of $10,000, which was deposited into his personal account when he gave the check to his wife.

Respondent suggests he acted reasonably in failing to deposit two of these checks into his trust account because, at the time, he did not believe that either a client or third party had not been paid. Nonetheless, the record reveals that at the time respondent deposited these checks, he had not yet performed a complete audit of his accounts for the purposes of determining whether any payments remained to be made to his clients or any third parties. In particular, respondent failed to provide his CPA with his operating account records for auditing purposes, despite learning from Ms. McBride that some client settlement funds were deposited into the account. Because of his failure to provide these records to his CPA, the audit done by his CPA failed to identify the $9,870.14 that should have been in the trust account from Ms. Evans’ settlement. In a January 2009 sworn statement to the ODC, respondent indicated he did not provide those records to his CPA because he believed they would show Ms. McBride paid him too much in restitution, and he would owe her money. This statement suggests respondent placed his own interests above those of his clients.

Subsequent audits indicated that as of 2008, respondent should have held funds in trust for four clients: (1) Ms. Reeves ($13,-276.35); (2) Mr. Thomas ($9,133.75); (3) Ms. Evans ($9,870.14); and (4) Mr. Griggs ($1,936.85). Respondent ultimately did not make these clients whole until 2011 or 2012, approximately three or four years after he first received the funds from Ms. McBride.

Under these circumstances, we conclude respondent’s negligent supervision of his nonlawyer assistant was coupled with a willful indifference toward his | ^obligation to make prompt restitution to remedy the consequences of his negligence. We conclude such conduct warrants an actual period of suspension. Accordingly, we will suspend respondent from the practice of law for thirty days, followed by a one-year period of probation, during which he shall be required to attend the Louisiana State Bar Association’s Trust Accounting School and undergo quarterly trust account audits under the conditions set forth in the disciplinary board’s recommendation. We will further impose all costs of these proceedings against respondent.

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 Charles R, Joiner, Louisiana Bar Roll number 16989, be and he hereby is suspended from the practice of law for thirty days. Following completion of the suspension, respondent shall be subject to a one-year period of supervised probation, during which he shall be required to attend the Louisiana State Bar Association’s Trust Accounting School • and undergo quarterly trust account audits under the conditions set forth in the disciplinary board’s recommendation. All costs and expenses in this matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.

CLARK, Justice, concurring in part and dissenting in part.

CLARK, J.,

concurring in part and dissenting in part.

hi concur with the majority in that respondent was negligent in his supervision of his nonlawyer assistant and, thus, subject to some discipline, but disagree with the majority’s conclusion that he showed a willful indifference toward his obligation to make prompt restitution to his clients and third parties. I agree with the Hearing Committee, which serves as the eyes and ears of this Court, which found that respondent did not act knowingly in failing to make earlier restitution, because he did not know that either a client or third party had not been paid until such was revealed by a subsequent audit. For these reasons, I agree with the committee’s recommendation that the maximum discipline should be a public reprimand with probation.

Further, I disagree with the majority’s allocation to respondent the entire cost of the subsequent audit and audit report. These additional costs were in part necessitated by a change in the ODC’s internal auditor, which was beyond respondent’s control.

      . John Griggs is not related to respondent's CPA George Griggs.

      . The committee also noted there was no evidence indicating that the medical providers for the Carrolls (who had hied the original disciplinary complaint against respondent) had not been paid.

      . We decline to adopt that portion of the board’s recommendation which did not assess the costs of the Aucoin audit and audit report against respondent. Respondent’s actions necessitated the preparation of this audit and audit report; therefore, we find it appropriate to assess these costs against him.


source: Caselaw Access Project

author:
HUGHES, J
     JOHNSON, C.J.,

license: Public Domain

text:
    William Henry SHANE v. The PARISH OF JEFFERSON, State of Louisiana, and The Jefferson Parish Economic Development Commission.
    No. 2014-C-2225.
    Supreme Court of Louisiana.
    Dec. 8, 2015.

      Fishman Haygood Phelps Walmsley Willis & Swanson, Loretta Gallaher Mince, Alysson Leigh Mills, for Applicant

      Aaron & Gianna PLC, William David Aaron, Jr., DeWayne L. Williams, Jefferson Parish Attorney’s Office, Kenneth Banjamin Krobert, Schonekas, Evans, McGoey & McEachin, LLC, Kyle Schone-kas, Patrick Shaw McGoey, Andrea Vieau Timpa, for Respondent.
   HUGHES, J

11 This case presents the issue of whether the email communications of an employee of a public agency, via the public agency’s email system, on private political matters with private individuals, are subject to disclosure under Louisiana’s Public Records Law, LSA-R.S. 44:1 et seq., when those emails have been referenced in audits of the public agency. Upon a balancing of the public and private interests discussed hereinafter, we conclude that constitutional rights of privacy and association asserted by the plaintiff/private email correspondent are adequately protected by the release of the emails with redaction of all references to the private individuals, as ordered by the district court. Therefore, we reverse the appellate court decision and reinstate the district court decision.

J^FACTS AND PROCEDURAL HISTORY

William Henry Shane, a private citizen, exchanged emails related to political matters in 2010 with Lucien Gunter, who was then the Executive Director of the Jefferson Parish Economic Development Commission (“JEDCO”). Both men were also members of two private nonprofit organizations, the Jefferson Business Council ( JBC ) and the Committee for a Better Jefferson (“CBJ”), which were organizations comprised of local businesspersons who sought to improve the economic well-being and quality of life in Jefferson Parish. In addition, Mr. Gunter and Mr. Shane were members of the Jefferson Community Foundation (“JCF”), a public charity administering donations for the educational, cultural, and charitable benefit of Jefferson Parish citizens. The emails at issue were exchanged, during 2010, between Mr. Gunter (via his JEDCO email address), Mr. Shane, and other members of these organizations.

In June of 2012, the results of an audit on JEDCO operations were released by outside auditing company Postlethwaite & Netterville, which noted that there had been some “de minimis use” of JEDCO’s email systems by “certain JEDCO employees” to engage in “political campaign activities” during 2010.

Thereafter, the results of an internal audit were released by Jefferson Parish auditor Tommy Fikes, in August of 2012, which also addressed Mr. Gunter’s use of his JEDCO email for private purposes, along with other alleged improprieties related to Mr. Gunter’s employment as JED-CO’s Executive Director. Mr. Fikes’ report noted the fact that the Postlethwaite & Netterville audit report referenced de minimis use of JEDCO’s email system for political activities; however, the Fikes | ¡¡report focused on Mi*. Gunter’s “significant political activity related to the 2010 Jefferson Parish School Board Election” and concluded that the use of Mr. Gunter’s “public time” for his political activity should be reviewed by the JEDCO Board of Commissioners for any violation of the Louisiana Code of Ethics, particularly LSA-R.S. 42:1116(B).

Subsequently, on October 26, 2012, The Times-Picayune reporter Drew Broach transmitted a public records request, via email, to JEDCO seeking to inspect the following:

(1) All “political” emails that were so deemed during or as a result of JED-CO’s annual audit for 2011. This should include emails composed and sent in 2010.
(2) All correspondence between JEDCO and the Jefferson Parish attorney’s office, or other attorneys, relating to the JEDCO executive director’s residency requirement.

Thereafter, on November 8, 2012, Mr. Broach submitted a “revised and restated” public records request to JEDCO, requesting release of the following:

all emails that were referenced by Post-lethwaite & Netterville ^professional accounting corporation on Page 51 of the JEDCO’s Financial Statements and Schedules for the year ending Dec. 31, 2011, said report bearing a release date of June 6, 2012. I specifically refer to this language from said report: “During the course of our audit procedures for the year ended December 31, 2011, we were made aware of certain JEDCO employees that were engaged in political campaign activities during the year ended December 31, 2010. We observed de minim[is] use of JEDCO’s email system to engage in these activities.”

JEDCO’s then-public records custodian, Cynthia Grows, denied the public records request, stating that the emails at issue were not subject to disclosure because they were “purely personal in nature” and had “no relation to the public business of JEDCO,” and, even if considered public records, they were exempted from disclosure under LSA-Const. Art. I, Sec, 5’s right to privacy. .

Mr. Broach .again modified his public records request, on November 21, 2012, to ask that the emails be released after, redaction to mask the identities of senders or recipients who were not JEDCO employees. Ms. Grows again.denied the request “for the same reasons given” in her earlier denial.

On December 20, 2012, The Times-Picayune and Drew Broach submitted a public records request to Jefferson Parish, seeking release of the emails previously sought in the ■ November 8, 2012 public records request submitted to JEDCO. Jefferson Parish (having obtained ■ the emails for purposes of the internal audit by Mr. Fikes) concluded that the emgils were public records and announced its-intent to make the records available for public inspection on February 1, 2013.

Mr. Shane then filed suit for declaratory and injunctive relief, on February 1, 2013, against Jefferson Parish and JEDCO, seeking to prevent the disclosure of the email correspondence with Mr. Gunter,' asserting a right of privacy under LSA-Const. Art. I, Sec. 5 (“Every person shall be secure in his person, property, communications, houses, papers, and effects against unreasonable searches, seizures, or invasions of privacy.”). A temporary restraining order was immediately issued by the district court, enjoining the defendants from “permitting [(¡inspection and/or copying of any • and all emails between [Mr. Shane] and any other members of [JBC, OBJ, and/or JCF], including but not limited to Lucien Gunter, by The Times-Picayune and/or The Advocate.”

Jefferson Parish responded, admitting that it did announce its intent to make the emails available to the requesting parties and further alleging that “JEDCO employees were aware that they were using government time, talent and resources to further their political activities, and thus had no expectation of privacy.”

JEDCO responded, stating that the plaintiff was “entitled to an injunction against the Parish of Jefferson.” JEDCO further, alleged that its current public records custodian, Dottie Stephenson, concurred in the prior denial of.the media’s public records request by its prior public records custodian, Cynthia Grows. JED-CO also asserted that the media’s sole remedy, upon denial of its request, was, pursuant to LSA-R.S. 44:35, to institute suit against its custodian for the issuance of a writ of mandamus or for injunctive or declaratory relief. JEDCO alleged that the media failed to avail themselves of the sole remedy available under LSA-R.S. 44:35 and, instead, “attempted to circumvent the custodian (JEDCO) and made a public records request on Jefferson Parish, who is not the custodian of the electronic correspondence in question.” JEDCO alleged that its designated records custodian (previously, Ms. Grows; currently, Ms. Stephenson) was the only person authorized to release the emails at issue under the Public Records Law.

An intervention was filed by The Times-Picayune, L.L.C. and Drew Broach (hereinafter, “media-intervenors”) to assert the public’s right of access and to oppose the plaintiffs request for an injunction. In his answer and affirmative defenses to the intervention, Mr. Shane further alleged that release of the emails |fiwould violate LSA-Const. Art. I, Sec. 7 (“No law shall curtail or restrain the freedom of speech or of the press. Every person may speak, write, and publish his sentiments on any subject, but is responsible for abuse of that freedom.”) and LSA-Const. Art. I, Sec. 9 (“No law shall impair the right of any person to assemble peaceably or to petition government for a redress of grievances.”).

Judgment was thereafter rendered by the district court, on March 1, 2013, granting Mr. Shane’s request for injunctive relief, in part. Because the emails had been used by JEDCO’s external auditor and by Jefferson Parish’s internal auditor, in reviewing the business affairs of JEDCO, the district court concluded that the emails were public records. However, the district court further reasoned that, since Mr. Shane was entitled to assert constitutional rights of privacy and association, as a private citizen, relative to the emails, a balancing of the various interests required that the emails should be redacted prior to release as public records. The district court ordered Jefferson Parish to redact the emails requested in the media’s public records request and then to allow inspection. Further, the district court ruled that the redaction should include the identities of all persons reasonably believed to have been private citizens, and not public employees, at the time the emails were written. The redactions, as to the private citizens, were to include names, addresses, email addresses, phone numbers, and places of employment, within the sender, recipient, address, and body sections of the emails, as well as within any attachments to the emails. The names of the employees of JEDCO, elected officials, and political candidates, who had qualified for the office, were not ordered redacted.

The appellate court reversed the district court decision and granted the plaintiff injunctive relief. See Shane v. Parish of Jefferson, 13-0590 (La.App. 5 Cir. 9/24/14), 150 So.3d 406. In so ruling, the appellate court held that, based on the facts in this case, the emails in question were “purely” private and not subject |7to the Public Records Law.

The media-intervenors sought review of the appellate court decision, and this court granted a writ of certiorari. See Shane v. Parish of Jefferson, 14-2225 (La.2/6/15), 157 So.3d 1137.

LAW AND ANALYSIS

Standing of Plaintiff and JEDCO

As an initial matter, we address the media-intervenors’ contention that “Shane and JEDCO lack standing to challenge whether Jefferson Parish is a custodian of Gunter’s emails.... ”

Louisiana Code of Civil Procedure Article 1872 states:

A person interested under a deed, will, written contract or other writing constituting a contract, or whose rights, status, or other legal relations are affected by a statute, municipal ordinance, contract or franchise, may have determined any question of construction or validity arising under the instrument, statute, ordinance, contract, or franchise and obtain a declaration of rights, status, or other legal relations thereunder. [Emphasis added.]

Clearly, LSA-C.C.P. art. 1872 provides a cause of action to a person affected by a statute for a court to determine what construction is to be applied to the statute and the person’s rights under the statute, when there is a present, justiciable controversy. See Church Point Wholesale Bev erage Co. v. Tarver, 614 So.2d 697, 701 (La.1993).

Because Mr. Shane is a “person” “whose rights ... are affected by a statute” (i.e., LSA-R.S.44:1(A)(2)(a)’s definition of a “public record”), he is entitled to “have determined any question of construction ... arising under the ... statute” (i.e., Jefferson Parish’s determination that the emails are public records subject to disclosure under the Public Records Law, LSA-R.S. 44:1 et seq.) and to “obtain a declaration of rights, status, or other legal relations thereunder.”

Mr. Shane alleged that the emails at issue involved private political matters and were sent between himself, Mr. Gunter, and members of private associations to Iswhich they belonged. Mr. Shane further alleged that he was entitled to declaratory relief, ruling that the emails are not public records, that Jefferson Parish is not a custodian of the emails, and that because of his rights of privacy and association the emails are exempt from disclosure under the Public Records Law.

We find no merit in the media-interve-nors’ contention that Mr. Shane lacks standing to challenge Jefferson Parish’s determination that the emails are public records. Further, the media-intervenors’ contention is inappropriately applied to JEDCO, since JEDCO is merely a defendant in this case, not a petitioner.

Motion to Strike

The plaintiff has also filed with this court a motion to strike the relators/me-dia-intervenors’ April 2, 2015 reply brief, contending that a “reply” brief was not authorized either by leave of this court or by this court’s rules, citing La. Sup.Ct. Rules, Rule VII, § 11.1, which provides that “[supplemental briefs on the merits, or briefs in support of or in opposition to motions, may be filed at any time. However, a brief filed without leave after the matter is argued or submitted may not be considered.” The plaintiff asserts that “supplemental” briefs should be directed to only the citation of supplemental authorities and were not intended to include “reply” briefs containing only rebuttal arguments, as submitted by relators herein.

We find no merit in the plaintiffs interpretation of this court’s rules. See La. Sup.Ct. Rules, Rule VII, § 11.2 (directing that “[if] pertinent and significant authorities come to a party’s attention after all original and reply briefs have been filed— or after oral argument but before decision — a party may promptly advise the clerk by letter .... ” (emphasis added)). The filing of a reply brief was intended to be included within the purview of “[supplemental briefs on the merits,” as stated in this court’s Rule VII, § 11.1.

| ⅞Louisiana Public Records Law

No person shall be denied the right to observe the deliberations of public bodies and examine public documents, except in cases established by law. LSA-Const. Art. XII, Sec. 3.

The legislature, by enacting the “Public Records Law” (LSA-R.S. 44:1 et seq.), sought to guarantee, in the most expansive and unrestricted way possible, the right of the public to inspect and reproduce those records which the laws deem to be public. There was no intent on the part of the legislature to qualify, in any way, the right of access. See Landis v. Moreau, 00-1157 (La.2/21/01), 779 So.2d 691, 694-95.

The legislature has recognized that it is essential to the operation of a democratic government that the people be made aware of all exceptions, exemptions, and limitations to the laws pertaining to public records. LSA-R.S. 44:4.1(A). In order to foster the people’s awareness, the legislature declared that all exceptions, exemptions, and limitations to the laws pertaining to public records shall be provided for in the Public Records Law or the Constitution of Louisiana. Id. Any exception, exemption, and limitation to the laws pertaining to public records not provided for in the Public Records Law or in the Constitution of Louisiana has no effect. Id. Thus, access to public records can be denied only when the Public Records Law or the Constitution specifically and unequivocally provide otherwise. See DeSalvo v. State, 624 So.2d 897, 902 (La.1993), cert. denied, 510 U.S. 1117, 114 S.Ct. 1067, 127 L.Ed.2d 386 (1994).

As with Article XII, Section 3, the Public Records Law should be construed liberally in favor of free and unrestricted access to public documents. Landis v. Moreau, 779 So.2d at 695; Title Research Corporation v. Rausch, 450 So.2d 933, 937 (La.1984). Whenever there is doubt as to whether the public has the right of access to certain records, the doubt must be resolved in favor of the hopublic’s right to see; to allow otherwise would be an improper and arbitrary restriction on the public’s constitutional rights. In re Matter Under Investigation, 07-1853 (La.7/1/09), 15 So.3d 972, 989; Capital City Press v. East Baton Rouge Parish Metropolitan Council, 96-1979 (La.7/1/97), 696 So.2d 562, 564; Title Research Corporation v. Rausch, 450 So.2d at 936.

Any person of the age of majority may inspect, copy, or reproduce any public record or may obtain a copy or reproduction of any “public record” in accordance with the provisions of the Public Records Law, except as otherwise provided by law. See LSA-R.S. 44:31(B). Pursuant to LSA-R.S. 44:l(A)(2)(a), “public records” encompass, “except as otherwise provided in [the Public Records Law] or the Constitution of Louisiana,” the following:

All books, records, writings, accounts, letters and letter books, maps, drawings, photographs, cards, tapes, recordings, memoranda, and papers, and all copies, duplicates, photographs, including microfilm, or other reproductions thereof, or any other documentary materials, regardless of physical form or characteristics, including information contained in electronic data processing equipment, having been used, being in use, or prepared, possessed, or retained for use in the conduct, transaction, or performance of any business, transaction, work, duty, or function which was conducted, transacted, or performed by or under the authority of the constitution or laws of this state, or by or under the authority of any ordinance, regulation, mandate, or order of any public body[] or concerning the receipt or payment of any money received or paid by or under the authority of the constitution or the laws of this state....

This definition expressly includes all “letters ... regardless of physical form ..., including information contained in electronic data processing equipment,” which are “used ... in the ... performance of any ... work, duty, or function ... performed by or under the- authority of the ... laws of this state ... or order of any public body.” Clearly “electronic mail,” or “email,” falls within the definition of |n“letters,” despite generally lacking a physical form and though usually stored in an electronic format, and, if used in the performance of any work, duty, or function of a public body, under the authority of state or local law, should be deemed a “public record.”

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. LSA-C.C. art. 9. See also LSA-R.S. 1:4. It is presumed that every word, sentence, or provision in a law was intended to serve some useful purpose, that some effect is to be given to each such provision, and that no unnecessary words or provisions were employed. Guillory v. Pelican Real Estate, Inc., 14-1539 (La.3/17/15), 165 So.3d 875, 877 (per curiam); Sultana Corporation v. Jewelers Mutual Insurance Company, 03-0360 (La.12/3/03), 860 So.2d 1112, 1119. As a result, courts are bound, if possible, to give effect to all parts of a statute and to construe no sentence, clause, or word as meaningless and surplusage if a construction giving force to, and preserving, all words can legitimately be found. Guillory v. Pelican Real Estate, Inc., 165 So.3d at 877; Watkins v. Exxon Mobil Corporation, 13-1545 (La.5/7/14), 145 So.3d 237, 243. A statute must be applied and interpreted in a manner that is logical and consistent with the presumed purpose and intent of the legislature. Watkins v. Exxon Mobil Corporation, 145 So.3d at 243. Finally, it is presumed that the legislature acts with full knowledge of well-settled principles of statutory construction. Id.; Sultana Corporation v. Jewelers Mutual Insurance Company, 860 So.2d at 1119.

Louisiana’s Public Records Law contains a broad definition of “public | ^records.” Copeland v. Copeland, 07-0177 (La.10/16/07), 966 So.2d 1040, 1043. Application of this broad definition to the facts of the instant case, produces the result adopted by the district court on the issue of the inclusiveness of the term “public records.” With respect to JEDCO, the emails at issue were used in its regular business, transactions, work, duties, or functions, since the emails were used in the performance of the external audit of JEDCO’s operations by Postlethwaite & Netterville. With respect to Jefferson Parish, the emails were used in its Jefferson Parish Council-ordered audit of JED-CO, performed by internal auditor Tommy Fikes. Thus, the district court concluded, resolving all doubt in favor of the public’s right to see, that the emails were public records, while the appellate court concluded that the emails were “purely” private communications and did not fall within the definition of “public records.”

Our review of the Public Records Law, particularly the definition of “public records,” the laws specifically applicable to JEDCO, and the evidence submitted in this matter, lead us to conclude that the district court was correct in determining that the use of these emails in the Post-lethwaite & Netterville and the Jefferson Parish audits resulted in the emails falling within the definition of “public records,” as defined in 44:1(A)(2)(a).

Pursuant to LSA-R.S. 34:2023, JEDCO is entitled to “exercise all powers of a political subdivision necessary or convenient for the carrying out of its objects and purposes.... ” Further, JEDCO is expressly authorized, by LSA-R.S. 11334:2022(B), to “contract for ... financial ... and other professional services necessary or expedient in the conduct of its affairs.” Moreover, JEDCO is required by LSA-R.S. 34:2032(B) (“The financial records of the district shall be audited pursuant to R.S. 24:513.”) to obtain an audit of its financial records.

As stated in the June 6, 2012 Postleth-waite & Netterville audit report, the financial report issued in conjunction with the audit “is designed to provide taxpayers, customers, and creditors with a general overview of JEDCO’s finances and to show JEDCO’s accountability for the money it receives.” In addition, the Postlethwaite & Netterville report stated: “As part of obtaining reasonable assurance about whether JEDCO’s financial statements are free of material misstatement, we performed tests of its compliance with certain provisions of laws, regulations, contracts and grant agreements, noncompliance with which could have a direct and material effect on the determination of financial statement amounts.” The report further stated: “We noted certain matters that we reported to management of JEDCO ... identified in our audit [and] described in the accompanying schedule of findings and questioned costs.” The emails at issue in the instant case were listed in the Post-lethwaite & Netterville audit report, in the “Schedule of Findings and Questioned Costs,” under Item (2), “Findings Relating to the Financial Statement Reported in accordance with Government Auditing Standard,” stating in pertinent part:

Condition: During the course of our audit procedures for the year ended December 31, 2011, we were made aware of certain JEDCO employees that were engaged in political campaign activities during the year ended December 31, 2010. We observed the de minimis use of JEDCO’s email system to engage in these activities.
Criteria: Louisiana R.S. 18:1465 [] provides that no public funds shall |ube used to urge any elector to vote for or against any candidate or proposition, or be appropriated to a candidate or political organization.
Effect: JEDCO is not in compliance with the requirements as described in Louisiana R.S. 18:1465.
Cause: JEDCO employees were not aware that the de minimis use of email as described above was not in compliance with Louisiana R.S. 18:1465.
Recommendation: We recommend that the Board review its policies and procedures with regard to political activities of employees and make changes as needed to the policies and procedures.

The Jefferson Parish internal audit of JEDCO was authorized by Resolution No. 117985, passed by the Jefferson Parish Council, on December 7, 2011, stating, in pertinent part:

... [TJhis Council hereby requests the Internal Auditor to audit in 2012 all agencies which do not fall under the jurisdiction of the Jefferson Parish government but which regularly receive funds from Jefferson Parish, to ascertain whether or not such funds are being used as intended and in accordance with applicable parish and state laws.
... [T]he audits requested should include, but not be limited to, reviews of credit card usage, payroll and payments to third parties.
... [T]he agencies to be reviewed in accordance with this request include ... JEDCO....

In the Jefferson Parish internal audit report, the following was stated in a section entitled “Executive Director’s Political Activity”:

FINDING: Postlethwaite & Netterville, in their JEDCO financial statement audit for the year ended December 31, 2011 also noted that “certain JEDCO employees ... were engaged in political campaign activities during the year ended December 31, 2010.” P&N noted “de minimis” use of JEDCO’s email system to engage in these activities.
Internal Audit noted in the documentation provided that the Executive Director was involved in significant political activity related to the |1fi20l0 Jefferson Parish School Board Election. His political activities included use of his position as Executive Director to organize the solicitation of fundraising for candidates, endorse specific candidates, and direct distribution of funds to candidates. It appears that he spent a significant amount of public time in this political activity. He also utilized the resources of his Executive Assistant in this
RECOMMENDATION: The Louisiana Code of Governmental Ethics, under R.S. 42:1116(B) states “No public servant shall use the authority of his office or position!,] directly or indirectly, in a manner intended to compel or coerce any person or other public servant to engage in political activity. For the purposes of this Subsection, political activity means an effort to support or oppose the election of a candidate for political office in an election. This Subsection shall not be construed to limit the authority authorized by law, statute, ordinance, or legislative rule in carrying out official duties.”
The JEDCO Board of Commissioners should review the above finding and determine if the Executive Director violated this code and take action as deemed appropriate. This issue also should possibly be presented to the Louisiana Board of Ethics for an opinion.

Because the hiring of, and providing records to, Postlethwaite & Netterville by JEDCO was in compliance with state law (see LSA-R.S. 34:2022(B); LSA-R.S. 34:2023), which mandated the audit (see LSA-R.S. 34:2032(B)), the materials used in the Postlethwaite & Netterville audit, including the emails at issue herein, were used as a part of JEDCO’s business, work, duties, or functions, which were conducted, transacted, or performed “by or under the authority of the ... laws of this state.... ” Further, since the Jefferson Parish internal audit was conducted pursuant to Jefferson Parish Council Resolution No. 117985 (12/7/11), under its authority to “control ... the functions, management, affairs, operation, and administration of JEDCO” pursuant to state law (see LSA-R.S. 34:2021(B)), and included the use of the emails at issue herein, the emails were used as a part of the Jefferson Parish government’s work, duties, or functions, which were conducted, transacted, or performed “by or under the authority of the ... laws of this state ... or order of any public body....” Therefore, we agree with the district court that 116the definition of “public records,” contained in LSA-R.S. 44.1(A)(2)(a) of the Public Records Law, clearly and unambiguously encompasses the emails at issue in this case, and the law should be applied as written.

However, the plaintiff argued, and the appellate court agreed, that the use of private email correspondence by a public entity should not turn the private communication into a public record. On this point, the appellate court held that “the determination of a public record is based on a content-driven analysis. Here, the content of the e-mails had nothing to do with the business of JEDCO and are not public records.” See Shane v. Parish of Jefferson, 150 So.3d at 414. In this statement of the law, the appellate court erred.

“Content” is not an element of the definition of “public records” set forth in LSA-R.S. 44:1(A)(2)(a). In order to be a “public record,” pursuant to LSA-R.S. 44:1(A)(2)(a), the items listed therein need only have been “used, being in use, or prepared, possessed, or retained for use in the conduct, transaction, or performance of any business, transaction, work, duty, or function which was conducted, transacted, or performed by or under the authority of the constitution or laws of this state, or by or under the authority of any ordinance, regulation, mandate, or order of any public body or concerning the receipt or payment of any money received or paid by or under the authority of the constitution or the laws of this state.” “Content” only becomes relevant after an item, listed in LSA-R.S. 44:1(A)(2)(a) and sought to be inspected as a public record, has been determined to meet the definition of “public record” and if the issue is raised as to whether an exception, exemption, or limitation, under the Louisiana Constitution or in the Public Records Law (see LSA-R.S. 44:4.1(A)), supersedes the right of the public to inspect the record. We reverse the appellate court decision insofar as it held that 117“the determination of a public record is based on a content-driven analysis.”

Moreover, the assertion that the use of private email correspondence by a public entity should not turn the private communication into a public record overlooks the fact that public entities must regularly use private information in the entities’ performance of their business, transactions, work, duties, or functions (e.g., the Department of Revenue uses taxpayers’ private financial data; the Department of Education, colleges, and local school boards use private student data; the Department of Children and Family Services must utilize private family information; the Department of Health and Hospitals and local health units use private patient medical records; etc.). Obviously, the legislature anticipated that the records of private individuals would often be used by public entities in the conduct of their respective business, work, duties, or functions, thus falling within the broad definition of “public records”; otherwise, it would have been unnecessary for the legislature to enact extensive statutory exceptions to the public’s right to inspect “public records?’ Hence, we must conclude that the use by a public entity of an individual’s private in: formation, data, or records may result in that information, data, or records becom: ing a public record; notwithstanding, such records may be subject to one of the many exceptions set forth either in the Louisiana Constitution or the Public Records Law! See LSA-R.S. 44:4.1 (“[T]he legislature declares that all exceptions, exemptions, and limitations to the laws pertaining to public records shall be provided for in this Chapter or the Constitution of Louisiana... The legislature further recognizes that there exist exceptions, exemptions, and limitations to the laws pertaining to public records throughout the revised statutes and codes of this state. Therefore, the following |1sexceptions, exemptions, and limitations are hereby continued in effect by incorporation into this Chapter by citation .... ”).

Since the plaintiff herein asserted that both his constitutional rights of privacy and of' association (pursuant to LSA-Const. Art. I, Sec. 5; LSA-Const. Art. I, Sec. 7; and LSA-Const. Art. I, Sec. 9) would be violated by the release of the email communications at issue, as the emails addressed only private political matters, the district court ultimately balanced the plaintiffs constitutional interests against the public’s right to inspect public documents and concluded that all the identifying information of Mr. Gunter’s private email correspondents should be redacted before release of the public records, citing Angelo Iafrate Construction, L.L.C. v. State, Department of Transportation and Development, 03-0892 (La.App. 1 Cir. 5/14/04), 879 So.2d 250, writ denied, 04-1442 (La.9/24/04), 882 So.2d 1131 (wherein the redaction of the identifying information of the employees of a private company working on a public contract was found sufficient to protect the workers’ rights when payroll information was sought under a public records request). The appellate court ruled that redaction would be insufficient to protect the plaintiffs privacy interests. We next examine the correctness of these rulings.

Right of Privacy and Right of Association

Article I, Section 5, of the Louisiana Constitution states: “Every person shall be secure in his person, property, communications, houses, papers, and ef~ fects against unreasonable searches, seizures, or invasions of privacy.”

The right to privacy in Louisiana has been described as the right to be “let alone” and to be free from unnecessary public scrutiny. Capital City Press v. East Baton Rouge Parish Metropolitan Council, 696 So.2d at 566; DeSalvo v. State, 624 So.2d at 901. The right of privacy protects varied interests from invasion; among the interests protected is the individual’s right to be free from unreasonable intrusion into his seclusion, solitude, or into his private affairs. Capital City Press v. East Baton Rouge Parish Metropolitan Council, 696 So.2d at 566.

However, the right to privacy, like other personal rights, may be lost in many ways, by express or implied waiver, consent, or by a course of conduct that prevents its assertion. Id. The right is not absolute; it is qualified by the rights of others. Id. The right of privacy is also limited by society’s right to be informed about legitimate subjects of public interest (e.g., individuals involved in civil litigation may be compelled to give evidence, which tends to embarrass them or to produce documents of a confidential nature, and a debtor’s right of privacy is subject to the creditor’s right to take reasonable steps to collect his debt). Copeland v. Copeland, 966 So.2d at 1046; Capital City Press v. East Baton Rouge Parish Metropolitan Council, 696 So.2d at 566; Plaquemines Parish Commission Council v. Delta Development Company, Inc., 472 So.2d 560, 567 (La.1985).

Article I, Section 5, of the Constitution applies only where one has a reasonable expectation of privacy in the matter sought to be protected. The test for determining whether one has a reasonable expectation of privacy, which is constitutionally protected, is not only whether the person had an actual or subjective expectation of privacy, but also whether that expectation is of a type that society at large is prepared to recognize as being reasonable. Capital City Press v. East Baton Rouge Parish Metropolitan Council, 696 So.2d at 566.

The freedom of association protected by the First and Fourteenth Amendments of the U.S. Constitution is also guaranteed by Article I, Sections 7 and 9 of the Louisiana Constitution of 1974. Louisiana Republican Party v. Foster, 96-0314 (La.5/21/96), 674 So.2d 225, 229. The fundamental right of freedom of association protected by these constitutional provisions includes the | fright of persons to engage in partisan political organizations. Id. Because the right of association would be hollow without a corollary right of self-governance, there must be a right not only to form political associations but to organize and direct them in the way that will make them most effective. Id. (citing Eu v. San Francisco County Democratic Central Committee, 489 U.S. 214, 109 S.Ct. 1013, 103 L.Ed.2d 271 (1989)).

It has long been recognized that the compelled disclosure of affiliation with groups engaged in advocacy may constitute a restraint on freedom of association; there is a vital relationship between freedom to associate and privacy in one’s associations. See National Association for Advancement of Colored People v. State of Alabama ex rel. Patterson, 357 U.S. 449, 462, 78 S.Ct. 1163, 1171-72, 2 L.Ed.2d 1488 (1958). Inviolability of privacy in group association may in many circumstances be indispensable to the preservation of freedom of association, particularly where a group espouses dissident beliefs. Id.

A significant encroachment upon associational freedom cannot be justified upon a mere showing of a legitimate state interest; for even when pursuing a legitimate interest, a state may not choose means that unnecessarily restrict constitutionally protected liberty. Kusper v. Pontikes, 414 U.S. 51, 58-59, 94 S.Ct. 303, 308, 38 L.Ed.2d 260 (1973). If the state has open to it a less drastic way of satisfying its legitimate interests, it may not choose a legislative scheme that broadly stifles the exercise of fundamental personal liberties. Id.

When competing constitutional interests are asserted, these interests must be balanced on a case by case basis. See Copeland v. Copeland, 966 So.2d at 1046-47; Plaquemines Parish Commission Council v. Delta Development Company, Inc., 472 So.2d at 568; Jaubert v. Crowley Post-Signal, Inc., 375 So.2d 1386, 1389 (La.1979).

Mr. Shane has raised his constitutional rights of privacy and association in this suit to enjoin the release of email correspondence between himself and other members of the private associations named herein. Mr. Shane contends that the emails in question contain ideas, strategies, and opinions concerning political advocacy, among members of the private associations, which the associations’ members intended to be private. Mr. Shane asserts that the disclosure of the association members’ internal deliberations and planning would eliminate all associational privacy and have a chilling effect.

These rights must be balanced against the right of the public to inspect public records. The media-intervenors assert that the public has a right to know about the activity of public employees who are suspected of wrongdoing. In this case, the media-intervenors contend the emails evidence misuse of public office by former JEDCO Executive Director Lucien Gun-ter, who they alleged was engaging in unlawful political activity. Further, the media-intervenors assert that Mr. Gunter “sent and received emails on his official government email account intended to influence the 2010 Jefferson Parish School Board election,” despite Louisiana law forbidding a public servant from “lending the imprimatur of his office ‘to support or oppose the election of a candidate for political office,’ ” citing LSA-R.S. 18:1465 and LSA-R.S. 42:1116(B).

Although LSA-R.S. 18:1465 prohibits public funds being “used to urge any elector to vote for or against any candidate or proposition, or be appropriated to a candidate or political organization,” no evidence was submitted at the hearing on this matter to establish that any public funds had been expended as a result of the de minimis email activity of JEDCO’s employees, as referenced in the June 6, 2012 Postlethwaite & Netterville audit report. No JEDCO, Jefferson Parish, other I ^governmental employee, or auditor was called to testify, although the affidavits of two JEDCO employees were submitted into evidence.

In his affidavit, former JEDCO Executive Director Lucien Gunter stated that he was the executive director of JEDCO from December 2005 through December 2012, and, during that time, JEDCO never endorsed a candidate for public office or made political contributions. He was previously the executive director for the JBC, which is comprised of Jefferson Parish business executives and focuses on strategies for the economic growth of the parish. While JBC does not engage in endorsing or contributing to political candidates, Mr. Gunter stated that JBC does encourage its members to take an active role in the Jefferson Parish elective process. Mr. Gunter stated that he was also a member of the CBJ, a private association of business owners, which endorses candidates for public office and raises funds to publish its endorsements. Mr. Gunter stated that the emails at issue consisted only of private correspondence with his close friends, met through his more than twenty years of participation in the JBC or CBJ; and, the emails were in no way related to JEDCO business. Mr. Gunter averred that, during his tenure at JEDCO, there was no written policy prohibiting employees from using JEDCO email for private matters, and his policy was that private use was permissible so long as it was minimal and did not interfere with JEDCO responsibilities. Mr. Gunter further declared that at no time did he use “JEDCO dollars” for any political campaign expenditures.

The affidavit of Dottie Stephenson, Deputy Director of JEDCO, was also submitted into evidence. Ms. Stephenson stated that she was JEDCO’s records custodian. Ms. Stephenson described JEDCO as an independent, but complimentary, arm of the Jefferson Parish government, having as its main objective the attraction, growth, and creation of new business opportunities in the parish, through the retention and creation of quality jobs, entrepreneurship, and | ^investment in the parish. Ms. Stephenson further stated that in 2010, JEDCO did not have a written policy prohibiting the use by employees of JEDCO email accounts for personal or private business. She also averred that JEDCO does not endorse, or make contributions to, political candidates or engage in political fund-raising.

A 2009 JEDCO employee handbook was also submitted into evidence and, on the issue of agency communications systems use, stated in pertinent part:

Personal Telephone Use
It is important to keep our telephone lines free for client calls. Although the occasional use of JEDCO’s telephones for a personal emergency may be necessary, routine personal calls are discouraged.
Electronic Mail and Voice Mail Monitoring
We recognize your need to be able to communicate efficiently with fellow employees and clients. Therefore we have installed internal electronic mail (e-mail) and voice mail systems to facilitate the transmittal of business-related information within the organization and with our clients
The e-mail and voice mail systems are intended for business use only. The use of the organization’s e-mail and/or voice mail systems to solicit fellow employees or distribute non job-related information to fellow employees is strictly prohibited.
For business purposes, management reserves the right to enter, search and/or monitor the organization’s private e-mail and voice mail systems and the files/transmission of any employee without advance notice and consistent with applicable state and federal laws. Employees should expect that communications that they send and receive by the organization’s private e-mail and voice mail systems will be disclosed to management. Employees should not assume that communications that they send and receive by JEDCO’s private e-mail and voice mail systems are private or confidential. [Emphasis added.]

Based on this written policy, JEDCO employees were informed that private use of JEDCO’s email system was limited; however, there was no express statement within the JEDCO employee handbook that all private use was \9Aprohibited. Further, even though the handbook language informed employees that email could be reviewed by JEDCO “management,” there was no indication that email would be subject to outside or public inspection.

JEDCO Board of Commissioners Chairman James Garvey’s written response to the Jefferson Parish audit report was admitted into evidence. In that response, Mr. Garvey stated that “given the fact that JEDCO receives anywhere from 175,000 to 200,000 emails per year, the email activity that occurred should be considered to be de minimis.” Mr. Garvey also stated that Mr. Gunter’s participation in the email correspondence was “as a ‘private citizen’ and/or as an advisor to several private business entities and coalitions that had formed to push for school board reforms and not from the position or authority of his office (Le., his position as JEDCO Executive Director).” Mr. Garvey further indicated that, with respect to Mr. Gun-ter’s administrative assistant, Mr. Gunter did ask her to read or draft responses to his private email “on occasion,” believing that her performing “a de minimis amount of personal activities would not be a problem,” and Mr. Gunter did not “coerce or threaten” his administrative assistant to perform the work or to become actively involved in any political campaign.

This court has conducted an in camera inspection of the specified emails, which were submitted into evidence in the district court as a sealed exhibit. Of the 104 emails in evidence, sent via the JEDCO email system between June 21, 2010 and October 12, 2010, 53 were sent by JEDCO employees: 46 emails were sent by Lucien Gunter, including several emails to Penny Weeks, Mr. Gunter’s administrative assistant, asking her to print out attached documents, and the remainder to his private association co-members; 5 emails were sent by Ms. Weeks to forward Mr. Gun-ter’s emails to others; and 2 emails were sent by JEDCO marketing employees to forward newspaper articles to Mr. Gunter. The remaining 51 emails were received by Mr. Gunter from his private association co-members. 12SCertainly 104 out of hundreds of thousands of emails sent each year within the JEDCO email system could be considered de minimis. Further, neither the number of times that Mr. Gun-ter had his administrative assistant, Ms. Weeks, forward or print out an email (a total of 7 times), nor the tenor of the email he sent to Ms. Weeks could be considered compulsory or coercive, within the meaning of LSA-R.S. 42:1116(B).

Our review also reveals that the content of the emails consisted of the discussion of private political matters of the private associations, which had nothing to do with JEDCO operations. Therefore, we find no manifest error in the district court’s factual findings to that effect or the district court’s finding that the plaintiff considered his communications with his private association co-members to have been private.

Nevertheless, we conclude that upon balancing the public’s right to inspect the emails at issue against the plaintiffs constitutional rights of freedom to associate and privacy in one’s associations, we conclude, as did the district court, that, under the particular facts of this case, the latter may be adequately protected by redaction. Accordingly, we conclude that the email at issue may be disclosed in connection with the media-intervenors’ public records request in this case, subject to redaction as ordered by the district court.

Custodian for Purposes of the Public Records Law

The final issue to be resolved is whether both Jefferson Parish and JED-CO | Mare custodians of the records at issue in this case. Both Jefferson Parish and the media contend that Jefferson Parish is a “custodian,” which must respond to a public records request seeking access to the email records, for purposes of the Public Records Law. Contrarily, Mr. Shane and JEDCO contend, in essence, that since the email records were created by a JED-CO employee JEDCO is the Public Records Law “custodian” of the records.

The word “custodian” is defined by LSA-R.S. 44:1 as “the public official or head of any public body having custody or control of a public record, or a representative specifically authorized by him to respond to requests to inspect any such public records.” Further, LSA-R.S. 44:31 (A) states: “Providing access to public records is a responsibility and duty of the appointive or elective office of a custodian and his employees.” (Emphasis added.)

While the word “custody” may incorporate both an aspect of physical possession and of legal control, since LSA-R.S. 44:1 explicitly defines a public records custodian as a public official who has “custody” or “control” of a public record, it is clear that “custody” under this statute may be a mere physical possession, for purposes of determining who may be a custodian of a public record. This conclusion is supported by the fact that it is not only original records that meet the definition of “public records,” rather, pursuant to LSA-R.S. 44:l(A)(2)(a), “public records” also include “all copies, duplicates, photographs, including microfilm, or other reproductions.”

Our construction of public records custodian — to include not only the original custodian, but also subsequent public officials who have obtained custody | g7of either the original public record or a copy, duplicate, photograph, microfilm, or other reproduction of the public record — is consistent with the legislative goal of the Public Records Law, as stated in Landis v. Moreau, 779 So.2d at 694-95, to resolve all doubt in favor of the public’s expansive and unrestricted right to access to public records. Consequently, since both JEDCO and Jefferson Parish have custody of the public records at issue in this case, both agencies meet the definition of “custodian” with respect to these records.

^CONCLUSION

For these reasons, we conclude that the LSA-R.S. 44:l(A)(2)(a) definition of “public records,” for purposes of the Public Records Law, may encompass email sent on a public employee’s government email system, even though the content of the email ostensibly related only to private matters, when that email has been used in the performance of any work, duty, or function of a public body, under the authority of state or local law, unless an exception, exemption, or limitation, under the Louisiana Constitution or in the Public Records Law applies to prevent public disclosure of the record. Further, a “custodian” of a public record may be a public official having either custody (i.e., physical possession) or control of a public record.

DECREE

Accordingly, we reverse the appellate court decision, and we reinstate the district court decision. We remand this matter to the district court for further proceedings consistent with the foregoing.

REVERSED AND REMANDED.

JOHNSON, Chief Justice, additionally concurs and assigns reasons.

KNOLL, Justice, additionally concurs for reasons assigned by C.J. JOHNSON.

CRICHTON, Justice, additionally concurs for reasons assigned by C.J. JOHNSON.

JOHNSON, C.J.,

additionally concurs and assigns reasons.

|H agree with the majority opinion in its conclusion that the e-mails in question are public records within the meaning of the Louisiana Public Records Act, and should be released to the public, once redacted. A brief discussion of public records law helps us to further understand this issue. E-mail communications are treated in the same manner as paper records under the public records law in Louisiana. See City of Pineville v. Aymond, 2008-0040 (La.App. 3 Cir. 4/30/08), 982 So.2d 292. The Louisiana Attorney General has opined that “e-mails of a purely personal nature received or transmitted by a public employee which have no relation to any function of a public office are not ‘public records’ as described by the Public Records Act.” La. Att’y Gen. Op. No. 10-0272 (April 13, 2011). Jurisprudence in various states across the country is consistent that personal e-mails which are not related to a public official’s work are not subject to the Public Records law. According to the Florida Supreme Court, personal e-mail communications do not fall within the definition of public records subject to disclosure by virtue of their placement on a government owned computer system. State v. City of Clearwater, 863 So.2d 149, 154 (Fla.2003). Likewise, the | ¡Arizona Supreme Court has held that the state’s inclusion of e-mail in its open records law does not encompass documents of a purely private or personal nature. Instead, “only those documents having a ‘substantial nexus’ with a government agency’s activities qualify as public records.” Griffis v. Pinal Cnty., 215 Ariz. 1, 4, 156 P.3d 418, 421 (2007). Under that analysis, e-mail of a personal nature, such as grocery lists or email messages between family members regarding dinner plans, is not subject to disclosure under the public records law.

It is undisputed that Mr. Gunter’s emails concerned his personal fundraising efforts for candidates involved in the 2010 Jefferson Parish School Board election. E-mails of this nature have no reasonable connection to the business of JEDCO, and would not reasonably be considered public records of JEDCO. Notwithstanding this, the majority opinion correctly reasons that Mr. Gunter’s e-mails were “used to perform a function conducted by order of a public body” in accordance with La.Rev. Stat. Ann. 44:1(A)(2)(a). Namely, the records were used by Jefferson Parish to conduct its governmental audit of JEDCO. As no exception or exemption exists within the Public Records Act to shield the emails from disclosure, the majority opinion then appropriately considers Plaintiffs First Amendment privacy and associational interests, which he argues should prevent the e-mails from being disclosed.

On the contrary, I believe the public’s right to discover what public employees are doing during the workday, in the workplace, using resources procured by public funds, is paramount and trumps Plaintiffs individual interests in this case. While Mr. Shane, a private citizen, may reasonably assert an expectation of privacy in email communications expressing his personal political affiliations, Mr. Gunter, by virtue of his position as a public official, may not. The evidence in the record is clear that Mr. Gunter improperly used his position and public resources to engage in political activity which he had reason to know was | ^prohibited. In fact, Mr. Gun-ter resigned from his post as Executive Director of JEDCO as a result of this unethical conduct. I believe that the redaction ordered by the district court strikes the appropriate balance between Mr. Shane’s privacy and associational interests and the public’s compelling interest in preserving transparent, ethical government dealings.

       Retired Judge Hillary J. Crain, assigned as Justice ad hoc, sitting for Justice Greg G. Guidry, recused.

      . JEDCO was created by LSA-R.S. 34:2021(A) as a "special parish district,” originally designated as the "Jefferson Parish Economic Development and Port District,” having the power “to acquire, construct, improve, maintain, and operate projects” and "to provide such additional parish services within the district as may be required by the Jefferson Parish Council.” JEDCO was further declared to be "a body politic and political subdivision of the state of Louisiana” by LSA-R.S. 34:2021(A).

        . Mr. Fikes’ report also pointed out the following additional irregularities related to Mr. Gunter’s JEDCO employment: (1) although JEDCO’s executive director is required by Jefferson Parish ordinance to be a resident of Jefferson Parish, Mr. Gunter’s proof of residence was a lease agreement on a local apartment, and he had admitted that he had obtained the lease to satisfy the residency requirement, that he had not spent any nights in the apartment, and that he lived with his wife in their St. Tammany Parish home (on which he had a homestead exemption and where he was registered to vote); (2) although Jefferson Parish policy provided only for reimbursement of out-of-town travel-related meals and JEDCO had no specific policy allowing for the reimbursement of in-town meals for employees or their guests, Mr. Gun-ter had been reimbursed by JEDCO for in-town meals for himself and his guests, from January 1, 2010 through May 31, 2012, in the amount of $11,041.10, and Mr. Gunter had set up a charge account at Andrea’s Restaurant in JEDCO’s name to charge meals there; (3) although JEDCO had no policy relative to car allowances and a car allowance received by a Jefferson Parish employee ordinarily covered mileage, parking, tolls, insurance, and maintenance on the use of a personal vehicle, Mr. Gunter received a $750 monthly car allowance and obtained additional reimbursements from JEDCO for mileage, parking, and tolls, from January 2010 through May 2012, totaling $1,211.53; also, Mr. Gun-ter obtained his monthly car allowance from JEDCO, via reimbursement request, when the car allowance amounts should have been reported on his W-2 forms as additional income; (4) although the bills of other executive employees, who were provided cellular phones by JEDCO, were paid by JEDCO directly to the cellular provider, Mr. Gunter received reimbursement for his personal cellular phone bills, at his "base” monthly rate of $80 for a "family talk” plan, under which two of his family members also had cellular service at a rate of $9.99 per month (for which no reimbursement was sought), and all three of the Gunter family phones shared the available minutes on the plan; and (5) Mr. Gunter’s December 15, 2009 pay increase was not properly documented, in the auditor’s opinion, since it was approved via unsigned emails, rather than by original signed documents.

      . See LSA-R.S, 44;35(B) C'[T]he court has jurisdiction to enjoin the custodian from withholding records or to issue a writ of mandamus ordering the production of any records improperly withheld from the person seeking disclosure. The court shall determine the matter de novo and the burden is on the custodian to sustain his action.”).

      . The phrase "public body” means "any branch, department, office, agency, board, commission, district, governing authority, political subdivision, or any committee, subcommittee, advisory board, or task force thereof, any other instrumentality of state, parish, or municipal government, including a public or quasi-public nonprofit corporation designated as an entity to perform a governmental or proprietary function, or an affiliate of a housing authority.” LSA-R.S. 44:1(A)(1).

      . See LSA-R.S. 1:3 (“Words and phrases shall be read with their context and shall be construed according to the common and approved usage of the language.... ”). “Letter” is defined as: "A dispatch or epistle; a written or printed message; a communication in writing from one person to another at a distance....” Black’s Law Dictionary 813 (5th ed.1979).

      . This court has previously noted that a literal reading of the definition of “public records” would expose "virtually all of this Court’s papers, including law clerk memoranda, draft opinions, and the most sensitive of our internal documents to public inspection.” See Bester v. Louisiana Supreme Court Committee on Bar Admissions, 00-1360 (La.2/21/01), 779 So.2d 715, 719 n. 2 (wherein we recognized that "an additional, limited exception to public disclosure exists for documents we determine should remain confidential, in situations where we are exercising our inherent authority as the head of a separate and independent branch of state government,” since "[i]n exercising its sovereign rulemaking authority, a state supreme court occupies the same position as that of the state legislature.... Thus, when we exercise our inherent rulemaking authority regarding bar admissions, we occupy a position not unlike that of the Legislature, and our decisions concerning the disclosure or non-disclosure of documents within our exclusive purview falls within the 'except' provision of Article XII, § 3 of the Constitution.”).

      . Louisiana Revised Statute 18:1465 provides:
      A. No public funds shall be used to urge any elector to vote for or against any candidate or proposition, or be appropriated to a candidate or political organization. This provision shall not prohibit the use of public funds for dissemination of factual information relative to a proposition appearing on an election ballot.
      B. Whoever violates any provision of this Section shall be fined not more than one thousand dollars or be imprisoned, with or without hard labor, for not more than two years, or both.

      . The Jefferson Parish Council was given control over, and responsibility for, the functions, management, affairs, operation, and administration of JEDCO and the right to exercise such powers as are necessary to govern such functions, management, affairs, operation, and administration, by LSA-R.S. 34:2021(B).

      . See also LSA-R.S. 44:4(6) ("This Chapter [the Public Records Law] shall not apply ... [t]o any records, writings, accounts, letters, letter books, photographs, or copies or memo-randa thereof in the custody or control of the legislative auditor, or to the actual working papers of the internal auditor of a municipality until the audit is complete, unless otherwise provided.”).

      . See LSA-R.S. 44:1(A)(2)(b), (B); LSA-R.S. 44:2; LSA-R.S. 44:3; LSA-R.S, 44:3,1; LSA-R.S. 44:3.2; LSA-R.S. 44:3.3; LSA-R.S. 44:4; LSA-R.S. 44:4.1(B), (C); LSA-R.S. 44:5; LSA-R.S, 44:10; LSA-R.S. 44:11; LSA-R.S. 44:12: LSA-R.S. 44:13: LSA-R.S. 44:Í5; LSA-R.S. 44:16; LSA-R.S. 44:17; LSA-R.S. 44:18; LSA-R.S. 44:19; LSA-R.S. 44:20; LSA-R.S. 44:21; LSA-R.S. 44:21.1; LSA-R.S. 44:22; LSA-R.S. 44:23; LSA-R.S. 44:23.1.

      . It is immaterial whether the beliefs sought to be advanced by association pertain to political, economic, religious, or cultural matters; state action that may have the effect of curtailing the freedom to associate is subject to the closest scrutiny. National Association for Advancement of Colored People v. State of Alabama ex rel. Patterson, 357 U.S. 449, 460-61, 78 S.Ct. 1163, 1171, 2 L.Ed.2d 1488 (1958).

      . See Tebbe v. Louisiana Commission on Ethics for Public Employees, 540 So.2d 270 (La. 1989) (reversing a decision of the Commission on Ethics for Public Employees, which had found a violation of the state ethics code arising out of a vocational school director's use of a subordinate instructor and his secretary to type papers needed for his master’s degree).

      .We note that the proposed redactions contained in "Jefferson Parish Exhibit ‘A’ with redactions " were insufficient and not in compliance with the district court directions, which we uphold herein, stating that the re-dactions should encompass the identities of all persons reasonably believed to have been private citizens, and not public employees, at the time the emails were written, and should include names, addresses, email addresses, phone numbers, and places of employment, within the sender, recipient, address, and body sections of the emails, as well as within any attachments to the emails.

      . See Black's Law Dictionary 347 (5th ed.1979) (including within the definition of "custody” the “the idea of the thing being within the immediate personal care and control of the person to whose custody it is subjected ..

      . We are obliged to apply the definition of "custodian” as written by the Louisiana Legislature; if the legislature had intended to restrict the public's right of access to public documents only through a public official who had both custody and control, the legislature would have so stated in LSA-R.S. 44:1.

      . We do not find the cited case of State ex rel. Wogan v. Clements, 192 So. 126 (La.App. Orl.Cir.1939), affirmed, 194 La. 812, 195 So. 1 (1940), to be authoritative, as it merely held that the government auditor in that case had not taken custody or possession of the public records at issue. In State ex rel. Wogan, the auditor had accessed the public records within the office of the Commissioner of Conservation (no records were removed from the Conservation department office and the Conservation department employees continued to have access to the records when needed); therefore, only the Commissioner of Conservation was found to have had custody of the records for purposes of a public records request.


author: PER CURIAM.

text:
    In re COMMITTEE ON BAR ADMISSIONS CFN-52.
    No. 2014-BA-2452.
    Supreme Court of Louisiana.
    Dec. 8, 2015.
    Dane S. Ciolino, for Applicant.
    Committee on Bar Admissions, Monique Rene Drake, for Respondent.
   BAR ADMISSIONS PROCEEDING

PER CURIAM.

WEIMER, Justice, additionally concurs.

| petitioner successfully passed the Louisiana Bar Examination. However, the Committee on Bar Admissions (“Committee”) advised petitioner that it was unable to certify him for admission to the bar on character and fitness grounds relating to his failure to disclose three arrests on his law school application.

Petitioner then applied to this court for admission to the practice of law. We remanded the matter to the Committee on Bar Admissions Panel on Character and Fitness to conduct an investigation and appointed a commissioner to take character and fitness evidence. Following the proceedings, the commissioner filed his report with this court, recommending petitioner be admitted to the practice of law. The Committee objected to that recommendation, and oral argument was conducted before this court pursuant to Supreme Court Rule XVII, § 9(D)(11).

After reviewing the evidence and considering the law, we conclude petitioner is eligible to be conditionally admitted to the practice of law in Louisiana, subject to a probationary period of one year. Should petitioner commit any misconduct during the period of probation, his conditional right to practice may be terminated or he may be subjected to other discipline pursuant to the Rules for Lawyer Disciplinary Enforcement.

CONDITIONAL ADMISSION GRANTED.


text:
    In re: Barry S. RANSHI.
    No. 2015-OB-2145.
    Supreme Court of Louisiana.
    Jan. 15, 2016.
   ON APPLICATION FOR READMISSION

PER CURIAM.

|, This proceeding arises out of an application for readmission to the practice of law filed by petitioner, Barry S. Ranshi, an attorney whpse conditional admission to the practice of law in Louisiana was revoked May 13, 2014.

UNDERLYING FACTS AND PROCEDURAL HISTORY

Petitioner disclosed two DWI arrests on his application to take the Louisiana bar examination. In addition, the reported findings of an evaluation by the Lawyers Assistance Program (“LAP”) indicated the need for an intensive outpatient treatment program and ongoing monitoring by LAP as a result of petitioner’s history of alcohol abuse. In 2011, we conditionally admitted petitioner to the practice of law, subject to a period of probation coinciding with the remainder of his LAP agreement, which he entered into on October 21, 2009. On May 13, 2014, we revoked petitioner’s conditional admission after he violated the terms of his LAP contract by testing positive for alcohol use while under monitoring of that program. In re: Ranshi, 14-0767 (La.5/13/14), 139 So.3d 989.

Petitioner subsequently filed an application for readmission with the disciplinary board, alleging he has complied with the readmission criteria set forth in Supreme Court Rule XIX, § 24(E). The Office of Disciplinary Counsel (“ODC”) filed a notice concurring in petitioner’s readmission. Accordingly, the | ¿matter was referred to the disciplinary board’s adjudicative committee chair, who approved petitioner’s petition for readmission and recommended the petition be granted.

After considering the record in its entirety, we will adopt the adjudicative committee chair’s recommendation and readmit petitioner to the practice of law. Petitioner voluntarily admitted himself to Palmetto Addiction Recovery Center for inpatient treatment from June 2, 2014 through August 18, 2014. He continues treatment through aftercare counseling with a social worker and through quarterly follow-up care at Palmetto. He is currently considered to be in sustained full remission from alcohol dependence and safe to practice law. Petitioner also signed a new five-year LAP agreement on September 9, 2014, and LAP’S executive director indicates petitioner has remained compliant with the terms and conditions of the agreement since that time. Finally, in the conditional readmission concurrence filed by petitioner and the ODC, petitioner agreed that his readmission to the practice of law should be subject to the following conditions:

1. Petitioner will execute a new five-year LAP agreement;
2. The period of petitioner’s conditional readmission will coincide with the period of petitioner’s new LAP agreement;
3. Petitioner will be responsible for ensuring that monthly reports of his progress and participation in LAP are forwarded to the ODC;
4. Petitioner will authorize LAP’s executive director to provide the ODC with (a) quarterly reports on petitioner’s compliance with his LAP agreement, and (b) a final report and recommendation regarding petitioner’s compliance and the need for his continued participation in LAP; and
5. Petitioner will cooperate with LAP and the ODC and shall comply with any and all requirements imposed upon him by LAP or the ODC.

^Accordingly, we will readmit petitioner to the practice of law, subject to the conditions set forth above. In light of petitioner’s past conduct, we take this opportunity to caution him that, in the future, we will expect nothing less than scrupulous adherence to the requirements of his LAP agreement. The ODC shall monitor petitioner’s compliance with his LAP agreement and notify this court of any violation, which may be grounds for immediately transferring petitioner to disability inactive status, or placing him on interim suspension, as appropriate.

DECREE

Upon review of the recommendation of the disciplinary board’s adjudicative committee chair, and considering the record, it is ordered that Barry S. Ranshi, Louisiana Bar Roll number 33493, be immediately readmitted to the practice of law in Louisiana, subject to the conditions set forth in this opinion. All costs of these proceedings are assessed against petitioner.


text:
    STATE of Louisiana v. Jake HAMILTON.
    No. 2015-KK-1810.
    Supreme Court of Louisiana.
    Jan. 18, 2016.
   On Supervisory Writs to the Criminal District Court, Parish of Orleans.

PER CURIAM.

Writ granted in part. The district court’s reasons for judgment suggest the court erroneously believed that only prior crimes which demonstrate modus operan-di are admissible. Whatever the court’s reasons, however, La. C.E. art. 404(B) governs the admissibility of other crimes evidence.

The state filed a Priewr notice of intent to introduce evidence of two prior instances of defendant’s guilty pleas to attempted possession of a firearm: once with a revolver and once with an assault rifle. The state seeks to use evidence of these prior crimes in aid of its prosecution for the charge of possession of a firearm by a felon in violation of La. R.S. 14:95.1, and for the charge of aggravated assault with a firearm in violation of La. R.S. 14:37.4. The state’s Priewr notice indicates its intent to use the convictions to aid the state in proving the defendant’s “intent to possess a firearm, his knowledge of the legal disability created by his predicate felony conviction for possession of cocaine, and the absence of any mistake or accident as to such disability.”

The district court ruled the state could use the prior handgun crime in prosecuting the charge of felon in possession of a firearm. However, the district court excluded the prior assault rifle crime for prosecuting the charge of felon in possession of a firearm. For the prosecution of aggravated assault with a firearm, the district court excluded both the prior assault rifle and handgun crimes.

For the present charge of possession of a firearm by a felon, the state’s intended reasons for .using the prior assault rifle crime are consistent with La. C.E. art. 404(B), inasmuch as that section allows use of other crimes evidence to show “intent,” “knowledge,” and “absence of mistake or accident.” Under the unique facts of this case, in which no firearm was found on the defendant at the time of his arrest, each of these purposes is presumably an issue for trial. See, e.g., State v. Roman, 00-1705, p. 5 (La.12/07/01), 802 So.2d 1281, 1284 (indicating that when the defendant was charged with violating La. R.S. 14:95.1, but was found without a gun at time of arrest, the defendant’s claim that he merely brandished a mock gun is a “viable” defense). Thus, the district court abused its discretion in failing to consider the probative value of defendant’s conviction for attempted assault rifle possession in aid of the state’s prosecution for possession of a firearm by a felon.

For the present charge of aggravated assault with a firearm, the district court indicated an unfair prejudice would result in admitting evidence of the assault rifle conviction because the weapon there and the alleged weapon here were “dissimilar.” We see no abuse of discretion in that ruling. See State v. Altenberger, 13-2518, p. 9 (La.4/11/14), 139 So.3d 510, 516 (noting that a district court’s “ruling on the admissibility of the additional other crimes evidence will not be disturbed absent an abuse of discretion.”).

However, from all that appears, the district court made no finding of unfair prejudice regarding the handgun conviction. We again note that no handgun was recovered on the defendant when he was arrested after the alleged assault with a weapon. Moreover, the defendant’s present trial strategy is geared to showing the state cannot carry its burden of proving the defendant actually had a firearm when he broke into the victims’ apartment. Accordingly, the state purports to show intent and absence of mistake. Just as for the charge of being a felon in possession of a firearm, the state’s intended showing is probative to the defendant’s culpability for the charge of aggravated assault with a firearm. See Roman, 00-1705, p. 5, 802 So.2d at 1284.

Moreover, as this court ruled, other crimes evidence is admissible if “[t]he probative value of the evidence ... outweigh[s] its prejudicial effect of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or waste of time.” State v. Henderson, 12-2422, p. 2 (La.1/4/13), 107 So.3d 566, 567-568. Except as earlier noted for using the prior assault riñe conviction in the present prosecution of aggravated assault with a firearm, there has been no finding by the district court that the defendant’s prior firearm convictions would result in unfair prejudice. We hold likewise, and further find no likelihood of “confusion of the issues, or misleading the jury, or by considerations of undue delay, or waste of time.” Id.

We reverse the district court’s exclusion of the prior assault rifle crime for the prosecution of the charge of being a felon in possession of a firearm. We also reverse the district court’s exclusion of the handgun crime for the prosecution of aggravated assault with a firearm. We remand this matter for further proceedings consistent with this opinion.

REVERSED IN PART; REMANDED.

JOHNSON, C.J., would deny the writ.

HUGHES, J., would deny the writ.

      . See generally State v. Prieur, 277 So.2d 126 (1973).