text:
    IN RE: Timmy James FONTENOT
    NO. 2018-B-1213
    Supreme Court of Louisiana.
    November 5, 2018
    ATTORNEY DISCIPLINARY PROCEEDING
   PER CURIAM

This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel ("ODC") against respondent, Timmy James Fontenot, a disbarred attorney.

PRIOR DISCIPLINARY HISTORY

Before we address the current charges, we find it helpful to review respondent's prior disciplinary history. Respondent was admitted to the practice of law in Louisiana in 1995.

In 2011, we considered a joint petition for consent discipline filed by respondent and the ODC wherein respondent acknowledged that he neglected a legal matter, failed to communicate with a client, charged an excessive fee, and made misrepresentations. We accepted the petition for consent discipline and suspended respondent from the practice of law for one year, fully deferred, subject to two years of supervised probation. In re: Fontenot , 11-0989 (La. 6/17/11), 63 So.3d 130 (" Fontenot I ").

In October 2015, the ODC filed formal charges against respondent, alleging that he settled a personal injury case for $52,500 without his clients' consent, forged his clients' signatures on the settlement documents, misled his clients as to the status of the case, failed to disburse the settlement proceeds to his clients for five years, failed to reduce the contingency fee agreement to writing, and made cash withdrawals from his client trust account. In November 2017, we disbarred respondent for this misconduct. In re: Fontenot , 17-1661 (La. 11/28/17), 230 So.3d 185 (" Fontenot II "). Respondent will not be eligible to apply for readmission to the practice of law until 2022.

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

FORMAL CHARGES

On January 7, 2013, respondent and attorney Marcus Fontenot entered into a contract to provide legal services to Evangeline Construction & Trucking, LLC ("the client") with respect to the BP oil spill. On January 9, 2013, respondent and Mr. Fontenot referred the matter to the Fayard & Honeycutt law firm ("the firm") with the client's permission and knowledge. The firm designated respondent as the lead attorney to communicate and assist with the client's contact data and information. With the help of respondent and Mr. Fontenot, the firm pursued a claim in the Deepwater Horizon Court Supervised Settlement Program on behalf of the client.

In April 2016, the firm received a settlement offer, which had been negotiated through the court-appointed neutrals' opt-out and exclusions confidential settlement program. Respondent presented the settlement offer to the client, and the client accepted the offer, signing the formal release on April 19, 2016. BP ratified the settlement offer on May 14, 2016.

The settlement funds were subsequently wired to the firm's trust account. The firm then prepared the final disbursement sheet, release, and dismissal of the client's action. On June 1, 2016, the funds were disbursed according to the final disbursement sheet. The client's portion of the settlement check was made payable directly to Evangeline Construction & Trucking, LLC. The client's settlement check, the disbursement sheet, and the check for attorney's fees were then forwarded to respondent. The firm's trust account records indicate that the checks cleared the account in June 2016.

On July 27, 2016, Mr. Fontenot called the firm to inquire about the status of the funding of the client's settlement. The firm informed Mr. Fontenot that it had sent $275,214.02 in client settlement funds along with all appropriate disbursement and settlement documents to respondent on June 1, 2016. Thereafter, the firm called the client and learned that respondent had issued the client a check for $200,214.02 instead of $275,214.02. The firm then learned respondent had forged the client's name on the back of the firm's trust account check made payable to the client and deposited the check into his trust account. The firm also learned that, when respondent issued the $200,214.02 check to the client, respondent had the client sign a handwritten receipt acknowledging it had received the settlement check.

On July 28, 2016, attorney Blayne Honeycutt, a partner at the firm, instructed respondent to disburse the entire $275,214.02 immediately to the client, and respondent agreed to do so. On July 29, 2016, respondent advised Mr. Honeycutt that he had disbursed all funds in accordance with the disbursement sheet. Respondent also sent the firm and Mr. Fontenot a copy of his trust account check number 1771 in the amount of $275,214.02, which contained a copy of the client's signed acknowledgement that it had received these funds.

However, the firm later learned that respondent had copied the client's handwritten acknowledgment of receipt of funds from the $200,214.02 check and transferred it to the copy of his trust account check number 1771 in the amount of $275,214.02. Respondent's trust account check number 1771 in the amount of $275,214.02 never cleared the bank because it was only written by respondent to convince the firm and Mr. Fontenot that he had paid the client the entire settlement amount when he had, in fact, not done so.

When confronted with these findings, respondent indicated that he had not paid the client the entire amount because he simply did not have all the money in his trust account. Upon learning of respondent's actions, the firm and/or Mr. Fontenot contacted the client and asked it not to deposit the $200,214.02 check. Then, on August 1, 2016, Mr. Honeycutt and Mr. Fontenot deposited $75,000 into respondent's trust account and had respondent direct the bank to issue a cashier's check to the client in the amount of $275,214.02.

The client has now received all funds owed to it. However, respondent has never explained the whereabouts of the $75,000.

In August 2016, the firm and Mr. Fontenot filed disciplinary complaints against respondent. Respondent failed to provide written responses to the complaints, despite receiving notice of them.

On October 26, 2016, the ODC's investigator went to respondent's office to serve him with a subpoena and subpoena duces tecum. Respondent was not present to be served. Thereafter, the investigator contacted respondent on his cell phone, and respondent agreed to accept service of the subpoena and subpoena duces tecum via e-mail. The investigator e-mailed respondent the subpoena and subpoena duces tecum on November 3, 2016 at 10:11 a.m. Respondent confirmed receipt of the subpoena and subpoena duces tecum via e-mail to the investigator at 1:47 p.m. on November 3, 2016.

The ODC heard nothing from respondent until November 21, 2016 when it received a fax from him indicating he just realized he had a scheduling conflict with the November 22, 2016 sworn statement date. Thereafter, respondent faxed a written response to the complaints, denying the allegations in the complaints and attaching copies of the cashier's check paid to the client on August 1, 2016 and the settlement disbursement sheet.

In addition to failing to appear for the sworn statement scheduled for November 22, 2016, respondent failed to provide the documents (a copy of the client's file and a copy of his trust account bank statements from January 1, 2016 to present) requested in the subpoena duces tecum. The ODC sent respondent correspondence on November 29, 2016, informing him that his sworn statement needed to be rescheduled and that he was required to provide the documents pursuant to the subpoena duces tecum. Respondent never responded to this letter and never provided the requested documents.

Thereafter, the ODC reset respondent's sworn statement and issued another subpoena and subpoena duces tecum for February 23, 2017. Despite being personally served with the subpoena and subpoena duces tecum, respondent failed to appear on February 23, 2017 or produce any documents pursuant to the subpoena duces tecum. Instead, the ODC had to issue a subpoena duces tecum to the bank where respondent's trust account was located to obtain the requested bank records.

DISCIPLINARY PROCEEDINGS

In April 2017, the ODC filed formal charges against respondent, alleging that his conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.3 (a lawyer shall act with reasonable diligence and promptness in representing a client), 1.4 (failure to communicate with a client), 8.1(a) (a lawyer shall not knowingly make a false statement of material fact in connection with a disciplinary matter), 8.1(c) (failure to cooperate with the ODC in its investigation), 8.4(a) (violation of the Rules of Professional Conduct), 8.4(b) (commission of a criminal act that reflects adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer), 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation), and 8.4(d) (engaging in conduct prejudicial to the administration of justice).

Respondent failed to answer the formal charges. Accordingly, the factual allegations contained therein were deemed admitted and proven by clear and convincing evidence pursuant to Supreme Court Rule XIX, § 11(E)(3). No formal hearing was held, but the parties were given an opportunity to file with the hearing committee written arguments and documentary evidence on the issue of sanctions. Respondent filed nothing for the hearing committee's consideration.

Hearing Committee Report

After considering the ODC's deemed admitted submission, the hearing committee made factual findings consistent with the deemed admitted factual allegations set forth in the formal charges. The committee additionally found that the record demonstrates respondent's failure to act with reasonable diligence and promptness in his representation of the client during the disbursement of the settlement proceeds. The client's settlement check was sent to respondent on or about June 1, 2016. However, the client did not receive all of the proceeds from the settlement until August 1, 2016, and then only after Mr. Honeycutt and Mr. Fontenot intervened to pay the $75,000 taken by respondent. Equally clear to the committee was respondent's failure to keep the client reasonably informed about the status of the settlement disbursement. Respondent's disbursement to the client of only $200,214.02 of the $275,214.02 due to the client and the client's handwritten acknowledgement of receipt of the lesser amount as the settlement of its claim demonstrate respondent's less than candid and honest representations to the client. Closely tied to respondent's violation of Rule 1.4 are his violations of Rules 8.1(a), Rule 8.4(b), Rule 8.4(c), and Rule 8.4(d). According to the committee, after learning that respondent had issued the client a check for $200,214.02 instead of $275,214.02, the firm discovered that respondent forged the client's signature on the firm's trust account check. Respondent then deposited the firm's check into his own trust account. When respondent's skullduggery was discovered, and he was instructed to disburse the settlement funds immediately, he agreed to do so. However, it is clear from the record that he had little intent, if any, to return the $75,000 and make a complete payout of all of the client's settlement proceeds. To assuage the firm's suspicions, respondent copied the client's handwritten acknowledgment of receipt of funds from the $200,214.02 check and transposed that acknowledgment to check number 1771 from his trust account in the amount of $275,214.02 before sending a copy of the check to the firm. Check number 1771 never cleared the bank, and the committee found it was only written to convince Mr. Honeycutt and Mr. Fontenot that respondent had done as instructed. The committee also found that respondent converted the $75,000 owed to the client, failed to disclose where the money went, and failed to repay Mr. Honeycutt and Mr. Fontenot the $75,000 the two paid the client to effect full payment of the settlement proceeds. The committee then found that respondent placed his self-interest above his client's interests. The forgery of the client's signature on its settlement check and the confection of false documents intended to hide respondent's conversion of the client's settlement proceeds is clearly prejudicial to the administration of justice. Furthermore, respondent clearly failed in his duty to fully cooperate with the ODC in its investigation into this matter. The clear and convincing evidence allows no validity to any claim of mistake on respondent's part. Moreover, the ODC has not been able to obtain respondent's sworn statement. Although required by subpoena to produce specified documents, respondent also failed to provide the ODC with a complete copy of the client's file, including all financial records relating to the client's representation and has failed to produce his trust account statements for January 1, 2016 to the present.

Based on these facts, the committee determined respondent violated the Rules of Professional Conduct as alleged in the formal charges. The committee then determined respondent intentionally violated duties owed to the client, the public, the legal system, and the legal profession. The committee also determined the baseline sanction is disbarment based upon the ABA's Standards for Imposing Lawyer Sanctions , as well as the sanction guidelines for misconduct involving conversion of client funds set forth in Louisiana State Bar Ass'n v. Hinrichs , 486 So.2d 116 (La. 1986), which provides in pertinent part:

In a typical case of disbarment for violation of DR 9-102, one or more of the following elements are usually present: the lawyer acts in bad faith and intends a result inconsistent with his client's interest; the lawyer commits forgery or other fraudulent acts in connection with the violation; the magnitude or the duration of the deprivation is extensive; the magnitude of the damage or risk of damage, expense and inconvenience caused the client is great; the lawyer either fails to make full restitution or does so tardily after extended pressure of disciplinary or legal proceedings.

In aggravation, the committee found the following: a prior disciplinary record, a dishonest or selfish motive, a pattern of misconduct, bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with rules or orders of the disciplinary board, submission of false evidence, false statements, or other deceptive practices during the disciplinary process, substantial experience in the practice of law, and indifference to making restitution. The committee found no mitigating factors present.

Turning to the issue of an appropriate sanction, the committee considered this court's prior jurisprudence addressing similar misconduct and the permanent disbarment guidelines set forth in Supreme Court Rule XIX, Appendix E. Although the committee determined none of the permanent disbarment guidelines were applicable, it noted the court has previously permanently disbarred attorneys whose conduct did not fall within the guidelines but was so egregious and without moral moorings that permanent disbarment was necessary to protect the public and maintain the high standards of the legal profession. See In re: Richard , 14-1684 (La. 10/3/14), 148 So.3d 923, and In re: Smith , 11-2007 (La. 12/2/11), 75 So.3d 902.

In light of the above, the committee recommended respondent be permanently disbarred. The committee further recommended respondent be ordered to make full restitution to Mr. Honeycutt and Mr. Fontenot.

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

Disciplinary Board Recommendation

After noting that the factual allegations in the formal charges are deemed admitted and proven, the disciplinary board determined the hearing committee's factual findings are supported by the deemed admitted facts and by the evidence submitted in support thereof. Based on those facts, the board agreed with the committee that respondent violated the Rules of Professional Conduct as charged.

The board then determined respondent violated duties owed to the client, the public, and the legal profession. He acted knowingly and intentionally and has not yet accounted for, much less repaid, the $75,000 paid by Mr. Honeycutt and Mr. Fontenot to effect full payment of the settlement proceeds to the client. The board agreed with the committee that the baseline sanction is disbarment. The board also agreed with the committee's determination of aggravating factors. In additional aggravation, the board found illegal conduct. Lastly, the board agreed with the committee that the record supports no mitigating factors.

After further considering respondent's conduct in light of the permanent disbarment guidelines, the board recommended respondent be permanently disbarred. The board further recommended that respondent be ordered to pay full restitution to Mr. Honeycutt and Mr. Fontenot.

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

DISCUSSION

Bar disciplinary matters fall within the original jurisdiction of this court. La. Const. art. V, § 5 (B). Consequently, we act as triers of fact and conduct an independent review of the record to determine whether the alleged misconduct has been proven by clear and convincing evidence. In re: Banks , 09-1212 (La. 10/2/09), 18 So.3d 57.

In cases in which the lawyer does not answer the formal charges, the factual allegations of those charges are deemed admitted. Supreme Court Rule XIX, § 11(E)(3). Thus, the ODC bears no additional burden to prove the factual allegations contained in the formal charges after those charges have been deemed admitted. However, the language of § 11(E)(3) does not encompass legal conclusions that flow from the factual allegations. If the legal conclusion the ODC seeks to prove (i.e., a violation of a specific rule) is not readily apparent from the deemed admitted facts, additional evidence may need to be submitted in order to prove the legal conclusions that flow from the admitted factual allegations. In re: Donnan , 01-3058 (La. 1/10/03), 838 So.2d 715.

The record in this deemed admitted matter supports a finding that respondent forged his client's signature on a settlement check, converted $75,000 in client funds, misled his client and his co-counsel about the conversion, fabricated documents to conceal the conversion, failed to account for or make restitution of the converted funds, and failed to cooperate with the ODC in its investigation, including lying to the ODC in his written response to the disciplinary complaint. Respondent's misconduct is a clear violation of the Rules of Professional Conduct as alleged in the formal charges.

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

In acting as he did, respondent intentionally violated duties owed to his client, the public (his co-counsel), the legal system, and the legal profession. His conduct caused actual harm, first to the client and then to his co-counsel, who have yet to be repaid the $75,000 they gave him to cover the funds he converted to his own use. We agree with the hearing committee and the disciplinary board that the baseline sanction for this type of intentional misconduct is disbarment.

Aggravating factors include a prior disciplinary record, a dishonest or selfish motive, bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with the rules or orders of the disciplinary agency, submission of false evidence, false statements, or other deceptive practices during the disciplinary process, substantial experience in the practice of law, indifference to making restitution, and illegal conduct. The record does not support any aggravating factors.

Given that the baseline sanction is disbarment and that numerous aggravating factors are present, we considered respondent's conduct in light of the permanent disbarment guidelines set forth in Supreme Court Rule XIX, Appendix E. While the facts suggest respondent's misconduct falls under Guideline 1 (repeated or multiple instances of intentional conversion of client funds with substantial harm) and Guideline 9 (instances of serious attorney misconduct or conviction of a serious crime when the misconduct or conviction is preceded by suspension or disbarment for prior instances of serious attorney misconduct or conviction of a serious crime) of the permanent disbarment guidelines, after a careful review, we find the facts of this matter do not fit squarely within either of those guidelines. Because this matter addresses a single conversion of funds from a single client and not repeated or multiple instances of conversion, Guideline 1 does not apply. Likewise, Guideline 9 does not apply because the instant misconduct occurred prior to respondent's 2017 disbarment in Fontenot II .

Nevertheless, we note that the permanent disbarment guidelines are not intended to bind us in our decision-making, and we have imposed permanent disbarment in similar cases. For example, in In re: Smith , 11-2007 (La. 12/2/11), 75 So.3d 902, we permanently disbarred an already disbarred attorney who practiced law while ineligible to do so, settled his client's claim without her knowledge or consent, converted the settlement funds to his own use, and failed to cooperate with the ODC in its investigation. Although we noted that Guidelines 1 and 9 of the permanent disbarment guidelines did not apply in Smith for the same reasons they do not apply here, we, nevertheless, imposed permanent disbarment.

When respondent engaged in the instant misconduct, the ODC had already filed formal charges against him Fontenot II . Despite having received notice that his conduct addressed in Fontenot II was problematic, respondent engaged in the instant similar conduct by forging the client's signature on the client's settlement check and failing to disburse $75,000 of the client's funds to the client. Under these circumstances, it is highly likely respondent will continue to engage in this type of misconduct in the future if given the opportunity. Therefore, we find permanent disbarment is warranted in order to protect the public and maintain the high standards of the legal profession.

Accordingly, we will accept the board's recommendation and permanently disbar respondent. We will further order respondent to pay full restitution, with legal interest, to Mr. Honeycutt and Mr. Fontenot.

DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, it is ordered that Timmy James Fontenot, Louisiana Bar Roll number 23738, be and he hereby is permanently disbarred. His name shall be stricken from the roll of attorneys and his license to practice law in the State of Louisiana shall be revoked. Pursuant to Supreme Court Rule XIX, § 24(A), it is further ordered that respondent be permanently prohibited from being readmitted to the practice of law in this state. It is further ordered that respondent pay full restitution, with legal interest, to Blayne Honeycutt and Marcus Fontenot. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court's judgment until paid.

      The record does not indicate whether respondent and Marcus Fontenot are related.

      This entire process is confidential by order of the federal court (MDL No. 2179, Rec. Doc. No. 15718). The ODC filed a motion to be relieved of the restrictions of the protective order in the BP litigation case (MDL No. 2179, Rec. Doc. No. 22394), and the ODC's motion was granted by order dated April 4, 2017 (MDL No. 2179, Rec. Doc. No. 22550).


source: Caselaw Access Project

author: PER CURIAM

license: Public Domain

text:
    IN RE: Linda Louise STADLER
    NO. 2018-B-1212
    Supreme Court of Louisiana.
    November 5, 2018
    ATTORNEY DISCIPLINARY PROCEEDING
   PER CURIAM

This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel ("ODC") against respondent, Linda Louise Stadler, an attorney licensed to practice law in Louisiana.

UNDERLYING FACTS

In December 2002, respondent was arrested in Slidell, Louisiana and charged with driving while intoxicated ("DWI") and improper lane usage. In August 2003, she pleaded guilty to both charges and was placed on a one-year period of supervised probation with conditions. Respondent completed all conditions of her probation, and her probation was terminated on February 13, 2004. This matter was later expunged from respondent's record.

Twelve years later, in August 2014, respondent was again arrested in Slidell and charged with DWI. Two weeks later, she pleaded guilty as charged and was placed on a two-year period of supervised probation with conditions, including completion of a substance abuse program. Respondent completed all conditions of her probation, and her probation was terminated on November 16, 2015.

Following the 2014 incident, respondent contacted the Judges and Lawyers Assistance Program ("JLAP") for assistance. On January 21, 2015, respondent underwent a psychological evaluation conducted by Jamie Landry, Ph.D. Dr. Landry diagnosed respondent with mild alcohol use disorder, in early remission, and recommended six weekly individual therapy sessions addressing substance use and abuse. Respondent successfully completed the sessions. On December 10, 2015, JLAP informed the ODC that it had no further recommendations for respondent. JLAP did not require or recommend that respondent enter into a recovery agreement or that she be subject to supervision or screening of any kind.

DISCIPLINARY PROCEEDINGS

In March 2016, the ODC filed formal charges against respondent, alleging that her conduct, as set forth above, violated Rules 8.4(a) (violation of the Rules of Professional Conduct) and 8.4(b) (commission of a criminal act that reflects adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer) of the Rules of Professional Conduct. In her answer, respondent admitted to "all material facts alleged in the formal charges." She also admitted to violating the Rules of Professional Conduct as charged and requested a hearing in mitigation.

Hearing Committee Report

Following the mitigation hearing, the hearing committee reviewed the evidence and testimony, noting that respondent called three character witnesses to testify. In addition to the three character witnesses, respondent, her therapist, and JLAP's executive director also testified. The committee indicated respondent testified that, after her 2002 arrest, she did not consume alcohol until the day of her 2014 arrest. She has not consumed any alcohol since her 2014 arrest and described herself as a non-drinker. The committee then indicated respondent's therapist, Chastity Young, testified that respondent is not experiencing an active substance abuse problem. Instead, Ms. Young described respondent as a binge drinker, one who over-indulges once she starts drinking. She also did not think it was likely respondent would relapse. Finally, the committee indicated Buddy Stockwell, JLAP's executive director, testified that respondent called him soon after the 2014 arrest, seeking help. He described her as conscientious, concerned, open, and honest about the events leading to her arrest, and he felt she was "crushed" by her conduct. Mr. Stockwell also testified that he had no concerns about respondent's fitness to practice law and that she no longer needed the assistance of JLAP.

Based on this testimony and the other evidence presented at the hearing, the committee found respondent does not have an ongoing alcohol problem that needs treatment. The committee also found that respondent is not dishonest and has made a good faith effort to rectify her conduct. The committee further noted that respondent was cooperative with the ODC and JLAP, has good character and a good reputation, and has exhibited remorse. Finally, the committee found that respondent understands her conduct reflects negatively on the legal profession.

Although the committee did not specifically find any rule violations, the committee did determine that respondent violated duties owed to the public and the legal profession. The committee also determined respondent acted knowingly and intentionally in driving while intoxicated and caused actual harm to the legal profession. After considering the ABA's Standards for Imposing Lawyer Sanctions , the committee determined the baseline sanction is suspension. The committee then found the following mitigating factors present: the absence of a prior disciplinary record, timely good faith effort to rectify the consequences of the misconduct, a cooperative attitude toward the proceedings, remorse, and full cooperation and compliance with JLAP.

After further considering this court's prior jurisprudence addressing similar misconduct, and emphasizing the fact that respondent has not been found to be an alcoholic in need of a JLAP recovery agreement, the committee recommended she be suspended from the practice of law for twelve months, fully deferred.

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

Disciplinary Board Recommendation

After review, the disciplinary board determined that the hearing committee's factual findings do not appear to be manifestly erroneous and are supported by the record. The board then noted that the committee did not expressly find any rule violations but also noted that respondent admitted to all facts and rule violations alleged. Because there was no dispute that respondent twice pleaded guilty to DWI, the board determined respondent violated Rules 8.4(a) and 8.4(b) of the Rules of Professional Conduct as charged.

The board then determined respondent knowingly and intentionally violated duties owed to the public and the legal profession, causing potential harm to the public and actual harm to the legal profession. After considering the ABA's Standards for Imposing Lawyer Sanctions , the board determined the baseline sanction is suspension.

In aggravation, the board found substantial experience in the practice of law (admitted 1996) and illegal conduct, including that involving the use of controlled substances. In mitigation, the board found the following: the absence of a prior disciplinary record, the absence of a dishonest or selfish motive, full and free disclosure to the disciplinary board and a cooperative attitude toward the proceedings, character or reputation, imposition of other penalties or sanctions, and remorse. Additionally, in mitigation, the board noted that respondent fully cooperated with JLAP.

After further considering this court's prior jurisprudence addressing similar misconduct, and emphasizing the mitigating factors present, the board recommended respondent be suspended from the practice of law for six months, fully deferred, subject to two years of probation. One board member dissented and would recommend the formal charges be dismissed.

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

DISCUSSION

Bar disciplinary matters fall within the original jurisdiction of this court. La. Const. art. V, § 5 (B). Consequently, we act as triers of fact and conduct an independent review of the record to determine whether the alleged misconduct has been proven by clear and convincing evidence. In re: 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.

The record of this matter supports a finding that respondent twice pleaded guilty to DWI. This misconduct amounts to a violation of Rules 8.4(a) and 8.4(b) of the Rules of Professional Conduct, as admitted by respondent.

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

Respondent violated duties owed to the public and the legal profession. Her conduct was knowing and intentional and caused potential harm to the public and actual harm to the legal profession. The baseline sanction for this type of misconduct is suspension. The record supports the aggravating and mitigating factors found by the disciplinary board.

A JLAP-approved evaluator diagnosed respondent with mild alcohol use disorder, in early remission, and recommended six weekly individual therapy sessions addressing substance use and abuse, which she successfully completed. JLAP, believing respondent no longer needed its assistance, did not require or recommend that she enter into a recovery agreement or that she be subject to supervision or screening of any kind. The record supports a finding that respondent sought treatment for her mild alcohol abuse and has demonstrated a meaningful period of recovery. By all accounts, respondent's recovery has made a recurrence of her misconduct unlikely.

This court's prior jurisprudence addressing attorneys in similar circumstances indicates that a fully deferred suspension, subject to a period of probation, is the appropriate sanction here. Accordingly, we will adopt the board's recommendation and suspend respondent from the practice of law for six months, fully deferred, subject to two years of probation.

DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, it is ordered that Linda Louise Stadler, Louisiana Bar Roll number 24654, be and she hereby is suspended from the practice of law for a period of six months. It is further ordered that this suspension shall be deferred in its entirety and that respondent shall be placed on probation for a period of two years. The probationary period shall commence from the date respondent and the ODC execute a formal probation plan. Any failure of respondent to comply with the conditions of probation, or any misconduct during the probationary period, may be grounds for making the deferred suspension executory, or imposing additional discipline, as appropriate. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court's judgment until paid.


text:
    IN RE: Bradley O. HICKS
    NO. 2018-B-1211
    Supreme Court of Louisiana.
    November 5, 2018
    ATTORNEY DISCIPLINARY PROCEEDING
   PER CURIAM

This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel ("ODC") against respondent, Bradley O. Hicks, an attorney licensed to practice law in Louisiana, but currently ineligible to practice.

FORMAL CHARGES

The Petree Matter

In June 2011, respondent was appointed as Timothy Petree's public defender. Respondent did not meet with Mr. Petree to discuss the status, facts, and strategy of his case prior to his arraignment, at which he pleaded guilty. On June 23, 2015, Mr. Petree sent respondent correspondence in which he requested a copy of his discovery. Respondent failed to respond to Mr. Petree's request.

Despite receiving notice on January 7, 2016 of Mr. Petree's disciplinary complaint against him, respondent failed to provide a response to the ODC. Thereafter, respondent was twice served with subpoenas to provide a sworn statement to the ODC. He appeared for neither the sworn statement scheduled for August 30, 2016 nor the sworn statement scheduled for March 8, 2017.

The ODC alleged that respondent's conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.3 (failure to act with reasonable diligence and promptness in representing a client), 1.4 (failure to communicate with a client), 8.1(c) (failure to cooperate with the ODC in its investigation), and 8.4(a) (violation of the Rules of Professional Conduct).

The Irons Matter

In October 2015, Zachary Irons hired respondent to represent him in a child custody matter. Mr. Irons paid respondent $1,000 towards a fee of $1,800, and he and respondent agreed that he would pay the balance in $100 installments. Thereafter, respondent stopped communicating with Mr. Irons and failed to file any pleadings on his behalf. After several unsuccessful attempts to contact respondent, Mr. Irons requested a refund of the fee paid. Respondent failed to provide the refund.

The ODC attempted to provide respondent with notice of Mr. Irons' disciplinary complaint against him but was unsuccessful. Thereafter, respondent was twice served with subpoenas to provide a sworn statement to the ODC. He appeared for neither the sworn statement scheduled for August 30, 2016 nor the sworn statement scheduled for March 8, 2017.

The ODC alleged that respondent's conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.3, 1.4, 1.5 (fee arrangements), 1.16(b)(5) (a lawyer may withdraw from representing a client if the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer's services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled), 1.16(c) (a lawyer must comply with applicable law requiring notice to or permission of a tribunal when terminating a representation), 1.16(d) (obligations upon termination of the representation), 8.1(c), and 8.4(a).

The Coleman Matter

In October 2014, Reda Coleman and her siblings hired respondent to handle their parents' succession, paying respondent $1,200. Respondent filed the judgment of possession on March 27, 2015 but failed to sign it. As a result of this and other errors, the judgment was rejected. Ms. Coleman and her siblings had to hire new counsel to complete the succession. Ms. Coleman unsuccessfully attempted to communicate with respondent about a refund of the unearned fee.

Despite receiving notice on November 4, 2016 of Ms. Coleman's disciplinary complaint against him, respondent failed to provide a response to the ODC. Thereafter, respondent was twice served with subpoenas to provide a sworn statement to the ODC. He appeared for neither the sworn statement scheduled for August 30, 2016 nor the sworn statement scheduled for March 8, 2017.

The ODC alleged that respondent's conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.3, 1.4, 1.5, and 8.1(c).

The Hughes Matter

In January 2015, Audriana Hughes hired respondent to expunge her felony record, paying him $1,200. The last time Ms. Hughes communicated with respondent was in August 2015 when respondent requested her address so he could send her documents. Ms. Hughes never received the documents or any other information from respondent. She then contacted the court and learned respondent had not filed anything on her behalf.

The ODC's investigator hand-delivered notice of Ms. Hughes' disciplinary complaint against respondent to him on February 17, 2017. Nevertheless, respondent failed to respond to the complaint.

The ODC alleged that respondent's conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.3, 1.4, 1.5, 1.16(b)(5), 1.16(c), 1.16(d), 8.1(c), and 8.4(a).

DISCIPLINARY PROCEEDING

The ODC filed the aforementioned formal charges against respondent in May 2017. Respondent failed to answer the formal charges. Accordingly, the factual allegations contained therein were deemed admitted and proven by clear and convincing evidence pursuant to Supreme Court Rule XIX, § 11(E)(3). No formal hearing was held, but the parties were given an opportunity to file with the hearing committee written arguments and documentary evidence on the issue of sanctions. Respondent filed nothing for the hearing committee's consideration.

Hearing Committee Report

After considering the ODC's deemed admitted submission, the hearing committee found that the factual allegations set forth in the formal charges were deemed admitted. Based on those facts, the committee determined respondent violated the Rules of Professional Conduct as alleged.

The committee then determined respondent knowingly violated duties owed to his clients and the legal profession. His misconduct caused actual and potential harm to his clients. After considering the ABA's Standards for Imposing Lawyer Sanctions , the committee determined the baseline sanction is suspension.

In aggravation, the committee found a dishonest or selfish motive, a pattern of misconduct, multiple offenses, substantial experience in the practice of law (admitted 1995), and indifference to making restitution. In mitigation, the committee found only the absence of a prior disciplinary record.

In light of the above findings and after reviewing this court's prior jurisprudence addressing similar misconduct, the committee recommended respondent be suspended from the practice of law for two years. The committee further recommended respondent be required to make restitution as follows: $1,000 to Mr. Irons, $1,200 to Ms. Coleman and her siblings, and $1,200 to Ms. Hughes.

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

Disciplinary Board Recommendation

After review, the disciplinary board noted that the factual allegations in the formal charges were deemed admitted and proven. As such, the board found that the hearing committee's factual findings are supported by the deemed admitted facts and the evidence submitted in support thereof. Based on those facts, the board determined respondent violated the Rules of Professional Conduct as alleged, with one exception. Rule 1.16(b)(5) provides that an attorney may withdraw from a representation, after giving reasonable warning, if the client fails to fulfill an obligation to the attorney. The board determined there is no evidence indicating a client failed to fulfill an obligation to respondent; thus, the board found the ODC failed to prove a violation of this rule.

Like the committee, the board determined respondent knowingly violated duties owed to his clients and the legal profession. In addition to finding respondent's misconduct damaged the legal profession, the board found that his misconduct caused actual and potential harm to his clients. Also like the committee, the board determined the baseline sanction is suspension based upon the ABA's

Standards for Imposing Lawyer Sanctions .

In aggravation, the board found a pattern of misconduct, multiple offenses, bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with the rules or orders of the disciplinary agency, vulnerability of the victims, substantial experience in the practice of law, and indifference to making restitution. The board agreed with the committee that the sole mitigating factor is the absence of a prior disciplinary record.

Turning to the issue of an appropriate sanction, the board found guidance from the cases of In re: Gray , 14-2085 (La. 3/17/15), 166 So.3d 969, and In re: Lewis, 08-2293 (La. 1/21/09), 1 So.3d 444. In Gray , an attorney neglected four legal matters, failed to communicate with those clients, failed to return his clients' files upon request, failed to refund unearned fees to two clients, and failed to cooperate with the ODC in its investigations. For this misconduct, the court suspended the attorney from the practice of law for two years and ordered the attorney to participate in the fee dispute resolution program with two clients. In Lewis, an attorney neglected three legal matters, failed to communicate with his clients, failed to account for funds received from the clients or on their behalf, failed to properly withdraw from the cases upon relocating out of state, and failed to cooperate with the ODC in its investigation. For this misconduct, the court suspended the attorney from the practice of law for two years and ordered the attorney to render accountings and make restitution of any unearned fees.

In light of the above, the board recommended respondent be suspended from the practice of law for two years. The board also recommended respondent be required to make restitution as set forth in the committee's report and, additionally, provide Mr. Petree with a copy of his entire file.

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

DISCUSSION

Bar disciplinary matters fall within the original jurisdiction of this court. La. Const. art. V, § 5 (B). Consequently, we act as triers of fact and conduct an independent review of the record to determine whether the alleged misconduct has been proven by clear and convincing evidence. In re: Banks , 09-1212 (La. 10/2/09), 18 So.3d 57.

In cases in which the lawyer does not answer the formal charges, the factual allegations of those charges are deemed admitted. Supreme Court Rule XIX, § 11(E)(3). Thus, the ODC bears no additional burden to prove the factual allegations contained in the formal charges after those charges have been deemed admitted. However, the language of § 11(E)(3) does not encompass legal conclusions that flow from the factual allegations. If the legal conclusion the ODC seeks to prove (i.e., a violation of a specific rule) is not readily apparent from the deemed admitted facts, additional evidence may need to be submitted in order to prove the legal conclusions that flow from the admitted factual allegations. In re: Donnan , 01-3058 (La. 1/10/03), 838 So.2d 715.

The evidence in the record of this deemed admitted matter supports a finding that respondent neglected legal matters, failed to communicate with his clients, failed to refund unearned fees, and failed to cooperate with the ODC in its investigations. As such, he has violated the Rules of Professional Conduct as determined by the disciplinary board.

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

Respondent violated duties owed to his clients and the legal profession. He acted knowingly and caused actual and potential harm. The applicable baseline sanction in this matter is suspension.

Aggravating factors include a pattern of misconduct, multiple offenses, bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with the rules or orders of the disciplinary agency, vulnerability of the victims, substantial experience in the practice of law, and indifference to making restitution. The sole mitigating factor is the absence of a prior disciplinary record.

In light of the aggravating factors and the case law cited by the board, we will adopt the board's recommendation and suspend respondent from the practice of law for two years. We further order respondent to provide Mr. Petree with a copy of his entire file and to make restitution, with legal interest, as follows: $1,000 to Mr. Irons, $1,200 to Ms. Coleman and her siblings, and $1,200 to Ms. Hughes.

DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, it is ordered that Bradley O. Hicks, Louisiana Bar Roll number 23777, be and he hereby is suspended from the practice of law for two years. It is further ordered that respondent shall provide Timothy Petree with a copy of his entire file and shall make restitution, with legal interest, as follows: $1,000 to Zachary Irons, $1,200 to Reda Coleman and her siblings, and $1,200 to Audriana Hughes. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court's judgment until paid.

      Respondent was admitted to the practice of law in Louisiana in 1995. On June 3, 2016, respondent was declared ineligible to practice law for failing to comply with mandatory continuing legal education requirements. Soon thereafter, he was also declared ineligible to practice law for failing to pay bar dues and the disciplinary assessment.


text:
    IN RE: Tracey Michel FAVORITE
    NO. 2018-B-1078
    Supreme Court of Louisiana.
    November 5, 2018
   PER CURIAM

This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel ("ODC") against respondent, Tracey Michel Favorite, an attorney licensed to practice law in Louisiana.

UNDERLYING FACTS

Count I

In November 2014, respondent submitted a rental application for a townhouse owned by Brett Morris. Respondent requested immediate occupancy and completed the lease agreement on November 22, 2014. The terms of the lease required an initial payment, including a deposit, a pro-rated sum for November, and rent for December. Respondent provided Mr. Morris with temporary check drawn on a North Carolina bank in the amount of $3,575. Mr. Morris attempted to deposit the check, but it was returned for insufficient funds.

After Mr. Morris notified respondent of the issue, she offered him an explanation for the NSF check and then advised that she would give him a second check. Mr. Morris, who normally requires a cashier's check after a tenant presents an NSF check, accepted a second temporary check from respondent because she said she had recently relocated and that she was a lawyer employed with a law firm. The second check also was returned for insufficient funds.

Despite her assurances that money was forthcoming, respondent did not pay Mr. Morris for her use of the townhouse. Mr. Morris advised respondent that he would start the eviction process and contact the Jefferson Parish District Attorney's Office. He then posted an eviction notice on the townhouse door and called the district attorney's office. Respondent vacated the premises in late December.

Criminal charges arising from the issuance of the worthless checks are pending against respondent. In November 2014, she was charged with issuing worthless checks, a felony, in violation of La. R.S. 14:71. The docket summary reflects that respondent failed to appear on several occasions. Attachments were issued in March 2015, May 2015, and July 2015.

Respondent received notice of the disciplinary complaint on June 2, 2016. Three months later, she provided the ODC with a brief initial response and indicated therein that she would be supplementing her response. She did not. During her sworn statement, respondent provided explanations for the attachments and offered that she would "take care of all that as soon as possible." According to the online database for Jefferson Parish, a third attachment remains outstanding.

The ODC alleged that respondent's conduct violated the following provisions of the Rules of Professional Conduct: Rules 8.4(a) (violation of the Rules of Professional Conduct), 8.4(b) (commission of a criminal act that reflects adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer), 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation), and 8.4(d) (engaging in conduct prejudicial to the administration of justice).

Count II

In December 2015, respondent hired attorney Jasmine White as an associate. On February 12, 2016, respondent issued a $2,110.96 check to Ms. White and a $1,500 check to Devon Coleman, a third-party vendor. Both checks were written on respondent's Chase Bank account. After Mr. Coleman deposited his check, he was advised that the check had been issued on a closed account. Upon learning of this, Ms. White did not deposit her check. Respondent instructed Ms. White to destroy the check, but she did not.

On February 25, 2016, respondent issued a $4,542.67 check to Ms. White. The check, which was written on respondent's Bank of America account, was returned for insufficient funds. Ms. White notified respondent of the returned check. The next day, respondent terminated Ms. White. Respondent maintains that she did not issue Ms. White a worthless check.

The ODC alleged that respondent's conduct violated the following provisions of the Rules of Professional Conduct: Rules 8.4(a) and 8.4(c).

Count III

In December 2015, respondent hired Alicia Wiley as her office manager. On February 12, 2016, respondent issued payroll checks from her personal checking account to Ms. Wiley and to other employees. Respondent then advised Ms. Wiley that she would be notified after arrangements were made with her bank so employees could cash their checks. Later that same day, respondent advised employees not to cash the checks because it was "bad practice" to issue payroll checks from a personal account. The employees were then asked to destroy the checks. Ms. Wiley subsequently learned from Mr. Coleman (Count II) that her check, drawn on Chase Bank, was issued on a closed account. On February 25, 2016, respondent issued a $2,985.12 check to Ms. Wiley from her Bank of America account. The check was returned for insufficient funds.

During her sworn statement, respondent advised the ODC that the Chase Bank account was closed in the spring of 2016, but she then expressed uncertainty as to when the account was closed. Respondent agreed to provide the ODC with that information, but failed to do as promised. Respondent stated that if she did in fact write checks on a closed account, it would have been "by mistake."

The ODC alleged that respondent's conduct violated the following provisions of the Rules of Professional Conduct: Rules 8.4(a) and 8.4(c).

Count IV

On December 1, 2015, respondent and Jasmine White (Count II) visited DKI Office Furniture to select office furniture and other items. The selected items were to be delivered to respondent's law office the following day. Payment was to be made at delivery.

Upon delivery, respondent presented a $3,940.95 check, representing the amount of the invoice. The check, dated December 3, 2015, was drawn on a Homeland Federal Credit Union account in the name of Terry Williams, respondent's mother. The check, presumably signed by Ms. Williams, was returned as having been written on a closed account. The bank advised DKI that the account was closed prior to the date on which the check was written.

Repeated efforts to recover the amount due were unsuccessful. In early 2016, respondent promised that she would issue a new check to DKI, but she failed to do so.

DKI has not recovered any of the furniture or other items delivered to respondent.

The Jefferson Parish District Attorney's office filed felony charges against Terry Williams for issuing worthless checks, in violation of La. R.S. 14:71. DKI received from the district attorney's office a total of $400 in restitution in the form of cashier's checks; however, no further payments were forthcoming. On the advice of counsel, DKI did not cash the four $100 cashier's checks.

In August 2016, DKI filed a complaint against respondent with the ODC. During its investigation of the complaint, the ODC discovered that respondent is the defendant in a proceeding to evict her from her law office. On November 5, 2015, respondent signed a lease for office space at 650 Poydras Center. The lease called for the payment of a $1,576.75 security deposit and the prepayment of one month of rent in the amount of $1,576.75. A $3,253.50 temporary check, dated October 30, 2015, was issued from Woodforest National Bank, in the handwritten name of Tracey M. Favorite, Attorney at Law, but was returned for insufficient funds. A temporary replacement check, dated December 16, 2017, was issued from Regions Bank, in the handwritten name of "Favorite Law Group," but was also returned as the account was blocked/ frozen. The lawsuit also alleges that respondent approved $17,613.70 in tenant improvements, which was $5,482 in excess of the $12,131.70 allowance provided. Poydras Center received no money from respondent for rent or other costs associated with the lease. A judgment of eviction was signed on January 3, 2017.

On August 11, 2016, an ODC investigator visited the Poydras address in an attempt to serve respondent with a subpoena to appear for a sworn statement. When it appeared that no one was in the office, the investigator left her business card in the door asking respondent to contact her. Respondent finally submitted her initial response to the disciplinary complaint on September 8, 2016, but she did not respond to the ODC's requests for a supplemental response.

The ODC alleged that respondent's conduct violated the following provisions of the Rules of Professional Conduct: Rules 8.4(a) and 8.4(c).

Count V

On January 13, 2016, respondent purchased items from Comeaux Furniture and Appliance Store. According to the itemized sale invoice, respondent purchased $8,005.01 worth of home furnishings, which were delivered on January 15, 2016 to the Josephine Loft apartments in New Orleans.

Comeaux had allowed respondent to purchase the items on "Take Home Layaway," which required a 25% deposit and a balance payoff in three equal payments of $2,001.25. Respondent provided Comeaux with four checks written on her Chase Bank account, as follows:

1. Check number 8085, dated 01/13/2016, in the amount of $2,001.26
2. Check number 8086, dated 02/19/2016, in the amount of $2,001.25
3. Check number 8087, dated 03/18/2016, in the amount of $2,001.25
4. Check number 8088, dated 04/06/2016, in the amount of $2,001.25.

According to bank records, check number 8085 was returned marked "Refer to Maker," and check number 8086 was returned marked "Closed Account." Check numbers 8087 and 8088 were likewise issued on a closed account.

On September 20, 2016, respondent was charged with issuing worthless checks, a felony, in violation of La. R.S. 14:71. The docket summary reflects that numerous arraignments have been continued due to the State's inability to locate respondent and that the State is attempting to obtain service on respondent in North Carolina.

In her response to the disciplinary complaint, respondent offers that the first check to Comeaux did not clear because the bank had placed a hold on her checking account after she "made a scratch out" on her deposit slip, which is considered an alteration. Respondent indicated that she could not correct the problem because Comeaux refused to allow her to change the checking account from which future payments would be drafted. Respondent indicated that she was told by Comeaux that she would have to "wait for the collection agency."

Employees of Comeaux informed the ODC that the company would not have accepted another personal check from respondent after her first check was returned unpaid; however, cash or a cashier's check would have been accepted. The company provided information to the ODC detailing its efforts to collect from respondent and provided a call log and copies of written correspondence. Comeaux received no money from respondent, and the furniture has not been recovered.

The ODC alleged that respondent's conduct violated the following provisions of the Rules of Professional Conduct: Rules 8.4(a), 8.4(b), 8.4(c), and 8.4(d).

DISCIPLINARY PROCEEDINGS

In March 2017, the ODC filed formal charges against respondent, as set forth above. Respondent initially failed to answer the formal charges, and the factual allegations contained therein were deemed admitted and proven by clear and convincing evidence pursuant to Supreme Court Rule XIX, § 11(E)(3). In July 2017, respondent filed a motion to recall the deemed admitted order and filed an answer to the formal charges, generally denying all allegations. Respondent's motion was granted and the deemed admitted order was vacated. The matter then proceeded to a formal hearing on the merits.

Hearing Committee Report

After considering the testimony and evidence presented at the hearing, the hearing committee made factual findings that are generally consistent with the underlying facts set forth above and made the following additional findings:

The ODC's witnesses and documentary evidence introduced at the hearing were credible. Between 2015 and 2017, respondent engaged in a pattern of issuing worthless checks, but made little effort to pay her debts. She showed no remorse for her worthless checks history that had occurred over a period approaching three years.

Based on these facts, the committee determined respondent violated the Rules of Professional Conduct as alleged in the formal charges.

After considering the ABA's Standards for Imposing Lawyer Sanctions , the committee found the following aggravating factors are present: a dishonest or selfish motive, a pattern of misconduct, multiple offenses, and refusal to acknowledge the wrongful nature of conduct.

After further considering respondent's misconduct in light of this court's prior jurisprudence addressing similar misconduct, the committee recommended respondent be disbarred.

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

Disciplinary Board Recommendation

After review, the disciplinary board found that the hearing committee's factual findings are supported by the record, with one exception. The evidence shows that she issued multiple worthless checks between 2014 and 2016, rather than from 2015 and 2017, as found by the committee. Based on these facts, the board determined respondent violated the Rules of Professional Conduct as charged.

The board determined respondent violated duties owed to the public, the legal system, and the legal profession. She acted knowingly and intentionally by issuing multiple worthless checks over a three-year period, using worthless checks to pay for office furniture and for law firm employee wages, and failing to appear in criminal court, remaining a fugitive. Her misconduct caused actual harm to her employees, members of the public, and the legal profession. Much of the harm she caused has not been rectified. After considering the ABA's Standards for Imposing Lawyer Sanctions , the board determined the baseline sanction is disbarment.

The board found the following aggravating factors are present: a dishonest or selfish motive, a pattern of misconduct, multiple offenses, bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with the rules or orders of the disciplinary agency, refusal to acknowledge the wrongful nature of conduct, and indifference to making restitution. The sole mitigating factor found by the board is inexperience in the practice of law (admitted 2013).

After further considering this court's prior jurisprudence addressing similar misconduct, the board recommended respondent be disbarred. The board also recommended she be ordered to pay full restitution for any losses caused by her actions, to the extent restitution has not been made. The board further recommended respondent be assessed with the costs and expenses of this proceeding.

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

DISCUSSION

Bar disciplinary matters fall within the original jurisdiction of this court. La. Const. art. V, § 5 (B). Consequently, we act as triers of fact and conduct an independent review of the record to determine whether the alleged misconduct has been proven by clear and convincing evidence. In re: 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.

The record of this matter supports a finding that respondent engaged in a pattern of issuing worthless checks over a three-year period and presented a check drawn on a closed account in the name of her mother to pay for office furniture. This conduct amounts to a violation of the Rules of Professional Conduct as charged.

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

The record supports a finding that respondent knowingly, if not intentionally, violated duties owed to the public, the legal system, and the legal profession, causing actual harm. The baseline sanction for this type of misconduct is disbarment. The record supports the aggravating and mitigating factors found by the board.

The recommendation of disbarment is supported by several cases, which were cited by the board. See, e.g., In re: Lash , 97-0327 (La. 4/4/97), 691 So.2d 674 (attorney disbarred for four counts stemming from his criminal conviction for issuing worthless checks and theft); In re: Basile , 98-0900 (La. 5/29/98), 714 So.2d 687 (attorney disbarred for attempting to purchase merchandise with a stolen check; charges of prostitution and felony theft were pending against the lawyer in another jurisdiction, and she was later arrested for purchasing merchandise through the fraudulent use of her father's credit card); and In re: Coffman , 09-1165 (La. 9/25/09), 17 So.3d 934 (attorney disbarred for writing a $150,000 check on his client trust account, knowing the funds were not in the account and/or the account was closed, and failing to cooperate with the ODC in its investigation).

Considering this jurisprudence and the aggravating factors present in this case, we agree that disbarment is the appropriate sanction.

Accordingly, we will adopt the disciplinary board's recommendation and impose disbarment. We will also order respondent to make restitution to her victims.

DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, it is ordered that Tracey M. Favorite, Louisiana Bar Roll number 34921, be and she hereby is disbarred. Her name shall be stricken from the roll of attorneys and her license to practice law in the State of Louisiana shall be revoked. It is further ordered that respondent shall make full restitution to her victims subject of the formal charges. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court's judgment until paid.

      Although respondent has no record of imposition of formal discipline, in 2015, respondent agreed to enter into a diversion program prior to formal charges being filed against her by the ODC based on her purportedly failing to promptly pay a health care provider from settlement proceeds.


author: PER CURIAM:

text:
    STATE of Louisiana v. Gordon JOHNSON
    No. 2018-KK-1284
    Supreme Court of Louisiana.
    November 1, 2018
    Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. J, No. 513-910: to the Court of Appeal, Fourth Circuit, No. 2018-K-0481
    ON SUPERVISORY WRITS TO THE CRIMINAL DISTRICT COURT, PARISH OF ORLEANS
   PER CURIAM:

Writ granted. In 2015, the district court found that defendant, charged with possession of a firearm by a convicted felon, La.R.S. 14:95.1, and aggravated assault with a firearm, La.R.S. 14:37.4, was incompetent to stand trial and that his capacity could not be restored in the foreseeable future. In 2017, after defendant was charged with two counts of aggravated battery, La.R.S. 14:34, defendant was found competent to proceed (although the charges were eventually dismissed for reasons unrelated to defendant's capacity). Based on that competency determination, the state filed a motion pursuant to La.C.Cr.P. art. 649 to resume the proceedings against defendant for possession of a firearm by a convicted felon and aggravated assault with a firearm. The district court denied the motion because it previously found defendant could not regain capacity with regard to those charges (because of memory loss resulting from a traumatic brain injury ), although he was competent to be tried on the more recent charges.

The district court erred to the extent it did not appoint a new sanity commission before ruling and instead relied on its previous determination that defendant's capacity could not be restored in the foreseeable future. Based on the district court's previous determination that defendant's capacity was unlikely to be restored in the foreseeable future, there is reasonable ground to doubt defendant's mental capacity to proceed now. See generally La.C.Cr.P. art. 643. However, the state filed its motion to resume the proceedings based on defendant's regained competency within the time afforded by La.C.Cr.P. art. 648(B)(3). Therefore, the district court should have appointed a new sanity commission in accordance with La.C.Cr.P. art. 644 and determined whether defendant has regained his capacity. Accordingly, we grant the application to reverse the district court's ruling, and we remand to the district court with instructions to appoint a sanity commission and determine whether defendant's capacity has been restored or he remains unable to assist counsel with regard to the present charges. If he remains incompetent with regard to these charges, and in light of his subsequent arrest for other violent offenses, the district court should also determine whether, in accordance with La.C.Cr.P. art. 648(B)(3), to remand defendant to custody of the Louisiana Department of Health, which may institute civil commitment proceedings.

REVERSED AND REMANDED


text:
    STATE EX REL. Sean Frederick SMALL v. STATE of Louisiana
    No. 2017-KH-1355
    Supreme Court of Louisiana.
    November 5, 2018
    ON SUPERVISORY WRITS TO THE FIRST JUDICIAL DISTRICT COURT, PARISH OF CADDO
   PER CURIAM:

Denied. Relator does not identify an illegal term in his sentence, and therefore, his filing is properly construed as an application for post-conviction relief. See State v. Parker , 98-0256 (La. 5/8/98), 711 So.2d 694. As such, it is subject to the time limitation set forth in La.C.Cr.P. art. 930.8. Relator's application was not timely filed in the district court, and he fails to carry his burden to show that an exception applies. La.C.Cr.P. art. 930.8 ; State ex rel. Glover v. State , 93-2330 (La. 9/5/95), 660 So.2d 1189.

Relator has now fully litigated two applications for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the Legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator's claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.

CRICHTON, J., recused.


text:
    STATE EX REL. Earl BELL v. STATE of Louisiana
    No. 2017-KH-1174
    Supreme Court of Louisiana.
    November 5, 2018
    ON SUPERVISORY WRITS TO THE CRIMINAL DISTRICT COURT, PARISH OF ORLEANS
   PER CURIAM:

Denied. Relator does not identify an illegal term in his sentence, and therefore, his filing is properly construed as an application for post-conviction relief. See State v. Parker , 98-0256 (La. 5/8/98), 711 So.2d 694. As such, it is subject to the time limitation set forth in La.C.Cr.P. art. 930.8. Relator's application was not timely filed in the district court, and he fails to carry his burden to show that an exception applies. La.C.Cr.P. art. 930.8 ; State ex rel. Glover v. State , 93-2330 (La. 9/5/95), 660 So.2d 1189. In addition, relator's sentencing claim is not cognizable on collateral review. La.C.Cr.P. art. 930.3 ; State ex rel. Melinie v. State , 93-1380 (La. 1/12/96), 665 So.2d 1172 ; see also State v. Cotton , 09-2397 (La. 10/15/10), 45 So.3d 1030. The application is also repetitive. La.C.Cr.P. art. 930.4.

Relator has now fully litigated his application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the Legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator's claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.


text:
    STATE of Louisiana v. Mickey J. COMEAUX
    No. 17-KP-1056
    Supreme Court of Louisiana.
    November 5, 2018
    ON SUPERVISORY WRITS TO THE 23rd JUDICIAL DISTRICT COURT, PARISH OF ASCENSION
   PER CURIAM:

Denied. Relator's unconditional guilty plea knowingly and voluntarily waived all non-jurisdictional defects in the proceedings leading up to the guilty plea and precludes review of such defects either by appeal or post-conviction relief. See State v. McKinney , 406 So.2d 160, 161 (La. 1981) ; State v. Crosby , 338 So.2d 584, 586 (La. 1976). As to his remaining claim, relator fails to show a double jeopardy violation.

Relator has now fully litigated his application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Realtor's claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.


text:
    STATE of Louisiana v. Robert DeWayne GRANT
    No. 2018-KH-1619
    Supreme Court of Louisiana.
    November 5, 2018
    ON SUPERVISORY WRITS TO THE FIRST JUDICIAL DISTRICT COURT, PARISH OF CADDO
   PER CURIAM:

Denied. The application was not timely filed in the district court, and relator fails to carry his burden to show that an exception applies. La.C.Cr.P. art. 930.8 ; State ex rel. Glover v. State , 93-2330 (La. 9/5/95), 660 So.2d 1189.

Relator has now fully litigated several applications for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a second or successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator's claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.


text:
    STATE EX REL. Francis WINCHESTER v. STATE of Louisiana
    No. 2018-KH-0005
    Supreme Court of Louisiana.
    November 5, 2018
    ON SUPERVISORY WRITS TO THE SIXTEENTH JUDICIAL DISTRICT COURT, PARISH OF ST. MARY
   PER CURIAM:

Denied. Relator does not identify an illegal term in his sentence, and therefore, his filing is properly construed as an application for post-conviction relief. See State v. Parker , 98-0256 (La. 5/8/98), 711 So.2d 694. As such, it is subject to the time limitation set forth in La.C.Cr.P. art. 930.8. Relator's application was not timely filed in the district court, and he fails to carry his burden to show that an exception applies. La.C.Cr.P. art. 930.8 ; State ex rel. Glover v. State , 93-2330 (La. 9/5/95), 660 So.2d 1189.

Relator has now fully litigated his application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a second or successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator's claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.

WEIMER, J., recused.


text:
    IN RE: Durward D. CASTEEL
    NO. 2018-B-1745
    Supreme Court of Louisiana.
    November 5, 2018
    ORDER
   Considering the Joint Petition for Interim Suspension filed by respondent, Durward D. Casteel, and the Office of Disciplinary Counsel,

IT IS ORDERED that Durward D. Casteel, Louisiana Bar Roll number 18830, be and he hereby is suspended from the practice of law on an interim basis pursuant to Supreme Court Rule XIX, § 19.3, pending further orders of this court. Pursuant to Supreme Court Rule XIX, § 26(E), this order is effective immediately.


text:
    Markus D. LANIEUX v. STATE of Louisiana
    No. 2018-KH-1410
    Supreme Court of Louisiana.
    November 5, 2018
    ON SUPERVISORY WRITS TO THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON
   PER CURIAM:

Denied. Relator does not identify an illegal term in his sentence, and therefore, his filing is properly construed as an application for post-conviction relief. See State v. Parker , 98-0256 (La. 5/8/98), 711 So.2d 694. As such, it is subject to the time limitation set forth in La.C.Cr.P. art. 930.8. Relator's application was not timely filed in the district court, and he fails to carry his burden to show that an exception applies. La.C.Cr.P. art. 930.8 ; State ex rel. Glover v. State , 93-2330 (La. 9/5/95), 660 So.2d 1189. In addition, relator's sentencing claim is not cognizable on collateral review. La.C.Cr.P. art. 930.3 ;

State ex rel. Melinie v. State , 93-1380 (La. 1/12/96), 665 So.2d 1172 ; see also State v. Cotton , 09-2397 (La. 10/15/10), 45 So.3d 1030.

Relator has now fully litigated several applications for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a second or successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator's claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.


text:
    STATE EX REL. Jeffery A. BROUSSARD, Jr. v. STATE of Louisiana
    No. 2017-KH-1884
    Supreme Court of Louisiana.
    November 5, 2018
    ON SUPERVISORY WRITS TO THE FOURTH JUDICIAL DISTRICT COURT, PARISH OF MOREHOUSE
   PER CURIAM:

Denied. Relator fails to show that he received ineffective assistance of counsel under the standard of Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). As to his remaining claims, relator fails to satisfy his post-conviction burden of proof. La.C.Cr.P. art. 930.2.

Relator has now fully litigated his application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a second or successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator's claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.


text:
    STATE EX REL. Brandon MOORE v. STATE of Louisiana
    No. 2017-KH-1581
    Supreme Court of Louisiana.
    November 5, 2018
    ON SUPERVISORY WRITS TO THE CRIMINAL DISTRICT COURT, PARISH OF ORLEANS
   PER CURIAM:

Denied. The application was not timely filed in the district court, and relator fails to carry his burden to show that an exception applies. La.C.Cr.P. art. 930.8 ; State ex rel. Glover v. State , 93-2330 (La. 9/5/95), 660 So.2d 1189.

Relator has now fully litigated his application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a second or successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator's claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.


text:
    STATE EX REL. Phil Anthony DEES v. STATE of Louisiana
    No. 2017-KH-1438
    Supreme Court of Louisiana.
    November 5, 2018
    ON SUPERVISORY WRITS TO THE NINETEENTH JUDICIAL DISTRICT COURT, PARISH OF EAST BATON ROUGE
   PER CURIAM:

Denied. Relator fails to show that he was denied the effective assistance of counsel during plea negotiations under the standard of Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). As to his remaining claim, relator's guilty plea waived all non-jurisdictional defects in the proceedings leading to his conviction. State v. Crosby , 338 So.2d 584, 586 (La. 1976).

Relator has now fully litigated his application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the Legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator's claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.


text:
    STATE EX REL. Glen WELCH v. STATE of Louisiana
    No. 2017-KH-1403
    Supreme Court of Louisiana.
    November 5, 2018
    ON SUPERVISORY WRITS TO THE NINETEENTH, JUDICIAL DISTRICT COURT, PARISH OF EAST BATON ROUGE
   PER CURIAM:

Denied. The application was not timely filed in the district court, and relator fails to carry his burden to show that an exception applies. La.C.Cr.P. art. 930.8 ; State ex rel. Glover v. State , 93-2330 (La. 9/5/95), 660 So.2d 1189.

Relator has now fully litigated his application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the Legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator's claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.


text:
    STATE EX REL. Bryan COLE v. STATE of Louisiana
    No. 2017-KH-1353
    Supreme Court of Louisiana.
    November 5, 2018
    ON SUPERVISORY WRITS TO THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON
   PER CURIAM:

Denied. The application was not timely filed in the district court, and relator fails to carry his burden to show that an exception applies. La.C.Cr.P. art. 930.8 ; State ex rel. Glover v. State , 93-2330 (La. 9/5/95), 660 So.2d 1189. The application is also repetitive. La.C.Cr.P. art. 930.4.

Relator has now fully litigated two applications for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the Legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator's claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.


text:
    STATE EX REL. Jeremy RICARD v. STATE of Louisiana
    No. 2017-KH-1350
    Supreme Court of Louisiana.
    November 5, 2018
    ON SUPERVISORY WRITS TO THE NINETEENTH JUDICIAL DISTRICT COURT, PARISH OF EAST BATON ROUGE
   PER CURIAM:

Denied. The application was not timely filed in the district court, and relator fails to carry his burden to show that an exception applies. La.C.Cr.P. art. 930.8 ; State ex rel. Glover v. State , 93-2330 (La. 9/5/95), 660 So.2d 1189. The application is also repetitive. La.C.Cr.P. art. 930.4.

Relator has now fully litigated his application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the Legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator's claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.


text:
    STATE EX REL. Deangilo L. WHITE v. STATE of Louisiana
    No. 2017-KH-1349
    Supreme Court of Louisiana.
    November 5, 2018
    ON SUPERVISORY WRITS TO THE FIRST JUDICIAL DISTRICT COURT, PARISH OF CADDO
   PER CURIAM:

Denied. Relator fails to show that he received ineffective assistance of counsel under the standard of Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

Relator has now fully litigated his application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the Legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator's claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.


text:
    STATE EX REL. Ross S. MCCAA v. STATE of Louisiana
    No. 2017-KH-1335
    Supreme Court of Louisiana.
    November 5, 2018
    ON SUPERVISORY WRITS TO THE SIXTEENTH JUDICIAL DISTRICT COURT, PARISH OF ST. MARTIN
   PER CURIAM:

Denied. The application was not timely filed in the district court, and relator fails to carry his burden to show that an exception applies. La.C.Cr.P. art. 930.8 ; State ex rel. Glover v. State , 93-2330 (La. 9/5/95), 660 So.2d 1189.

Relator has now fully litigated his application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the Legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator's claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.


text:
    STATE EX REL. Ahmed Rashad MORNING v. STATE of Louisiana
    No. 2017-KH-1262
    Supreme Court of Louisiana.
    November 5, 2018
    ON SUPERVISORY WRITS TO THE TWENTY-SIXTH JUDICIAL DISTRICT COURT, PARISH OF BOSSIER
   PER CURIAM:

Denied. Relator fails to show that he received ineffective assistance of counsel under the standard of Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). As to his remaining claims, relator fails to satisfy his post-conviction burden of proof. La.C.Cr.P. art. 930.2.

Relator has now fully litigated his application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the Legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator's claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.


text:
    STATE EX REL. Joseph Anton CHEHARDY, Jr. v. STATE of Louisiana
    No. 2017-KH-0729
    Supreme Court of Louisiana.
    November 5, 2018
    ON SUPERVISORY WRITS TO THE NINTH JUDICIAL DISTRICT COURT, PARISH OF RAPIDES
   PER CURIAM:

Denied. Relator fails to show that he received ineffective assistance of counsel under the standard of Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The application is also repetitive. La.C.Cr.P. art. 930.4.

Relator has now fully litigated his application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a second or successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator's claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.


text:
    Frank RABORN v. Jeffrey R. ALBEA, M.D., et al.
    NO. 2018-CC-1132
    Supreme Court of Louisiana.
    November 5, 2018
   PER CURIAM

Granted. Considering the unique circumstances presented, it is ordered that the trial judge be recused. The case is remanded to the district court for random re-allotment of the case to another judge.

I dissent from the per curiam ordering the recusal of Judge Kelley in this matter. The recusal motion filed by plaintiff was referred to Judge R. Michael Caldwell, who conducted a thorough evidentiary hearing and correctly concluded there was no basis for the recusal of Judge Kelley. There has been zero evidence of any actual bias or prejudice on the part of Judge Kelley, and the trial court did not err in denying the motion. As this Court has stated consistently:

Recusation of judges is a serious and important legal procedure....In each possible recusal situation, there is a countervailing consideration which militates in favor of a judge's not recusing himself, or being recused; that is, that the judge has an obligation, part of his sworn duty as a judge to hear and decide cases properly brought before him. He is not at liberty, nor does he have the right, to take himself out of the case and burden another judge with his responsibility without good and legal cause.
In re Lemoine , 96-2116 (La. 1/14/97), 686 So.2d 837, 839-40.

In my view, there is no legal cause to recuse the trial judge in this matter and, accordingly, I dissent from the per curiam.


text:
    HUNTSMAN INTERNATIONAL, LLC and Rubicon, LLC v. PRAXAIR, INC.
    No. 2018-CC-1532
    Supreme Court of Louisiana.
    November 5, 2018
    ON SUPERVISORY WRITS TO THE CIVIL DISTRICT COURT FOR THE PARISH OF ORLEANS
   PER CURIAM

Writ granted. Considering the unique circumstances presented, it is ordered that the trial judge be recused. The case is remanded to the district court for random re-allotment of the case to another judge.

WEIMER, J., would grant and docket

CRICHTON, J., would deny.


author: HUGHES, J., would grant.

text:
    IN RE: Appeal of the DECISION OF the DISCIPLINARY BOARD NO. 17-PDB-127
    NO. 2018-OB-1361
    Supreme Court of Louisiana.
    November 5, 2018
    Leave to appeal denied.
   HUGHES, J., would grant.


text:
    STATE of Louisiana v. Raymond CASADAY
    NO. 2018-KO-0700
    Supreme Court of Louisiana.
    November 5, 2018
    Denied.


text:
    Forrest P. WALL, M.D., F.A.C.S. v. Gregory W. BRYAN, DPM, Michelle R. Ritter, M.D., R. Blair Drummond, DPM, Janna Cruey-Roark and Ambulatory Surgery Center of Louisiana, L.L.C.
    NO. 2018-C-1280
    Supreme Court of Louisiana.
    November 5, 2018
    Denied.


text:
    Theresa P. GRANIER and Linda Pace v. NAVIGATOR SPECIALTY INSURANCE COMPANY and Alvarez Construction Company
    NO. 2018-C-1337
    Supreme Court of Louisiana.
    November 5, 2018
    Denied.