text:
    In re August L. GOMEZ.
    No. 2009-B-2450.
    Supreme Court of Louisiana.
    March 5, 2010.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

hThis disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, August L. Gomez, an attorney licensed to practice law in Louisiana.

UNDERLYING FACTS AND PROCEDURAL HISTORY

The ODC filed two sets of formal charges against respondent. The first set of formal charges, 03-DB-041, was filed in July 2003. The second set of formal charges, 07-DB-050, was filed in September 2007.

Respondent failed to answer either set of 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 hearings were held, but the parties were given an opportunity to file with the hearing committees written arguments and documentary evidence on the issue of sanctions. Respondent filed nothing for either hearing committee’s consideration.

The two sets of formal charges were considered by separate hearing committees before being consolidated by order of the disciplinary board. The board subsequently filed in this court a single recommendation of discipline encompassing both sets of formal charges.

J20S-DB-0U

The King Matter

Sometime after March 31, 1998, Lordez Lewis King hired respondent to handle her employment discrimination claim. Beginning in June 1998, Ms. King paid respondent a total of $5,000 in fees and costs.

Also in June 1998, respondent filed suit in federal court on Ms. King’s behalf. However, the suit was dismissed in December 1999 after respondent failed to oppose the defendants’ motion for summary judgment and motion to dismiss. In January 2000, respondent filed a motion for an extension of time to file a motion for reconsideration, indicating he was unable to timely respond to the defendants’ motions because of his “serious medical, psychological and emotional concerns caused and/or aggravated by family problems, work-related and other stressful situations to be explained and documented as fully as possible.” The federal court denied his request but gave him an opportunity to refile the request with appropriate medical documentation (under seal) that would establish good cause to grant the extension. Nonetheless, respondent failed to file any supplemental pleadings or documentation.

During the course of the representation, respondent also failed to respond to Ms. King’s numerous telephone calls and failed to keep her informed of the status of her case. As a result, in October 2000, she filed a disciplinary complaint against him. On December 12, 2001, Ms. King obtained a judgment against respondent in Baton Rouge City Court in the amount of $5,000 (with a credit of $3,500) plus legal interest in the amount of $418.98 and costs in the amount of $155.

lain response to Ms. King’s disciplinary complaint, respondent indicated that, during the representation, he experienced a series of medical, personal, and office staff problems. He failed to provide the ODC with an accounting for the $5,000 and failed to respond to the ODC’s inquiry as to whether he had satisfied Ms. King’s judgment.

The ODC alleged that respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.1(a) (failure to provide competent representation to a client), 1.3 (failure to act with reasonable diligence and promptness in representing a client), 1.4 (failure to communicate with a client), 1.5(a) (charging an unreasonable fee), 1.5(f) (failure to account for or refund an unearned fee), 1.7(b) (A lawyer shall not represent a client if the representation may be materially limited by the lawyer’s responsibilities to another client, to a third person, or by the lawyer’s own interests), 1.16(a) (a lawyer shall not represent a client if the lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the client), 1.16(d) (obligations upon termination of the representation), 3.2 (failure to make reasonable efforts to expedite litigation), 3.3(a) (candor toward the tribunal), 3.4(c) (knowing disobedience of an obligation under the rules of a tribunal), 8.3(a) (failure to report professional misconduct), 8.4(a) (violation of the Rules of Professional Conduct), 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).

_|4Hearing Committee Report

As previously noted, respondent failed to file an answer to the formal charges in 03-DB-041, and consequently, the factual allegations contained therein were deemed admitted. After considering the ODC’s deemed admitted submission, the hearing committee determined that the factual allegations of the formal charges were deemed admitted and proven by clear and convincing evidence. The committee made the following factual findings: (1) respondent negligently or intentionally neglected a legal matter, (2) respondent intentionally failed to properly communicate with Ms. King regarding the status of her legal matter, (3) respondent intentionally failed to reveal his physical or mental incapacity to Ms. Eng, (4) respondent intentionally failed to account for funds received from Ms. Eng, and (5) respondent failed to properly cooperate in the ODC’s investigation of the complaint. Additionally, the committee found that respondent did not refund any of the $5,000 advanced by Ms. King. As such, Ms. King was required to file a lawsuit and obtain a judgment against respondent to recover the funds. As of May 2003, Ms. King reported that respondent still owed $573.98 on the judgment.

Based on these facts, the committee determined that respondent violated Rules 1.3, 1.4, 1.5(f), 1.16(a), 8.1(b) (knowing failure to respond to a lawful demand for information from a disciplinary authority), and 8.1(c) (failure to cooperate with the ODC in its investigation) of the Rules of Professional Conduct. The committee did not address whether respondent violated Rules 1.1(a), 1.5(a), 1.7(b), 1.16(d), 3.2, 3.3(a), 3.4(c), 8.3(a), 8.4(a), 8.4(c), and 8.4(d).

The committee determined that respondent caused substantial harm to Ms. King by depriving her of the opportunity to litigate her allegations of employment discrimination. He also caused harm to the legal profession by undermining the | ,spublic’s confidence in the profession. Relying on the ABA’s Standards for Imposing Lawyer Sanctions, the committee determined that the baseline sanction is suspension.

In aggravation, the committee recognized respondent’s prior disciplinary offenses and substantial experience in the practice of law (admitted 1987). The committee found no mitigating factors present, declining to consider respondent’s physical and emotional problems in mitigation because “respondent has failed and/or refused to provide sufficient medical information to permit a proper analysis.”

After further considering this court’s prior jurisprudence regarding similar misconduct, the committee recommended respondent be suspended from the practice of law for one year and one day.

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

07-DB-050

The Watkins Matter

In 2003, Evelyn Watkins hired respondent to assist her in the following matters:

1)A dispute with a mausoleum and funeral home over the mausoleum and casket provided for her husband, who died on September 8, 2003. Ms. Watkins gave respondent her original invoices, and he instructed her to withhold payment of $8,233.60 to the funeral home until he completed his investigation of the matter. Thereafter, respondent failed to contact the mausoleum or the funeral | r,home and failed to complete the matter. He also failed to return Ms. Watkins’ documents.

2) A dispute with a car repair company over a safety inspection and car repairs to Ms. Watkins car performed on October 17, 2003. Respondent’s sole action on Ms. Watkins’ behalf was a November 20, 2003 demand letter.

3) Anticipated foreclosure proceedings on property Ms. Watkins, along with her cousin, inherited from her deceased mother and aunt. In November 2003, respondent informed Ms. Watkins that he needed $13,000 from her as a show of good faith to prevent a sheriffs sale of the property. Accordingly, Ms. Watkins obtained a cashier’s check in that amount payable to respondent. Respondent assured Ms. Watkins that her $13,000 would be refunded upon settlement of her cousin’s workers’ compensation case, which respondent was also handling. Thereafter, respondent informed Ms. Watkins that he had negotiated a $22,500 payoff amount with the mortgage holder. Despite Ms. Watkins’ numerous requests, respondent failed to return her $13,000. Instead, in December 2003, he negotiated the check but failed to deposit the funds into his client trust account. He advised Ms. Watkins that the mortgage note was paid, informing her that he had divided the payoff amount equally between Ms. Watkins and her cousin. However, he did so without her knowledge or consent. Respondent failed to respond to Ms. Watkins’ numerous requests for an explanation and an accounting.

|7In January 2004, Ms. Watkins filed a disciplinary complaint against respondent. However, respondent failed to submit the required written response to the complaint.

The ODC alleged that respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.2(a) (scope of the representation), 1.3, 1.4, 1.15(a) (safekeeping property of a client or third person), 1.15(c) (when a lawyer is in possession of property in which both the lawyer and another person claim interests, the property shall be kept separate by the lawyer until there is an accounting and severance of their interests), 1.15(d) (A lawyer shall create and maintain an interest-bearing trust account for clients’ funds), 1.15(e) (safekeeping property of a client or third person), 8.1(c) (failure to cooperate with the ODC in its investigation), 8.4(a), and 8.4(c).

The Dear Matter

Dr. William Dear, of the Back & Neck Clinic of Louisiana, treated one of respondent’s personal injury clients from October 29, 1996 through January 14, 1997. On January 16, 1997, respondent received notice of Dr. Dear’s notice of health care provider privilege related to his client’s treatment. In October 1997, respondent settled his client’s personal injury claim for $2,000. Although he withheld funds from the settlement to pay Dr. Dear, respondent failed to forward the funds. As such, Dr. Dear added an additional $170.65 in interest and collection fees to the client’s $670 bill.

| Jn March 2004, Dr. Dear filed a disciplinary complaint against respondent. Despite being given two extensions of time to submit a written response to the complaint, respondent failed to respond. However, in April 2005, respondent informed the ODC’s investigator that his former office assistant had settled the client’s case and retained the funds without his knowledge.

The ODC alleged that respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.8, 1.15(c), 5.3 (failure to properly supervise a non-lawyer assistant), 8.1(c), and 8.4(a).

The LeBlanc Matter

In May 2004, Gale LeBlanc filed a disciplinary complaint against respondent. Despite receiving notice of the complaint, respondent failed to submit a written response. In January 2005, the ODC’s investigator reminded respondent that he needed to submit a written response to the complaint. Nevertheless, respondent failed to submit the response.

The ODC alleged that respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 8.1(c), and 8.4(a).

Hearing Committee Report

As previously noted, respondent failed to file an answer to the formal charges in 07-DB-050, and consequently, the factual allegations contained therein were deemed admitted. After considering the ODC’s deemed admitted submission, the hearing committee determined that the factual allegations of the formal charges have been deemed admitted and proven by clear and convincing evidence. The committee stated that the evidence proves respondent converted Ms. Watkins’ funds, failed to |flcomplete Ms. Watkins’ legal matters, failed to protect Dr. Dear’s interest in settlement proceeds, failed to supervise a non-lawyer assistant, and failed to cooperate in the underlying investigations. The committee also found that the record establishes that respondent violated the Rules of Professional Conduct as alleged in the formal charges.

The committee determined that respondent knowingly and intentionally violated duties owed to his clients and the legal system. With respect to the harm caused by respondent’s conduct, the committee stated:

Ms. Watkins has been deprived of her funds and was delayed in the resolution of her legal matters; Back & Neck Clinic has not been paid for services rendered to Respondent’s client; Ms. Le-Blanc has not received a response to her complaint; and the Office of Disciplinary Counsel has expended its limited resources locating Respondent and seeking answers to the complaints filed against him.

The committee found the following factors in aggravation: prior disciplinary offenses, 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 the conduct, substantial experience in the practice of law, and indifference to making restitution. The committee found “no obvious mitigating factors for consideration.”

The committee further determined that the ABA’s Standards for Imposing Lawyer Sanctions and this court’s prior jurisprudence establish that disbarment is the baseline sanction for converting client funds. Noting that the record does not support a downward deviation from disbarment, the committee recommended that respondent be permanently disbarred.

|1(lNeither respondent nor the ODC filed an objection to the hearing committee’s recommendation.

Disciplinary Board Recommendation

After reviewing these consolidated matters, the disciplinary board determined the following:

With respect to 03-DB-041, the board found nothing in the record to suggest the deemed admitted facts as set forth in the formal charges are manifestly erroneous. Based on those facts, the board determined that respondent violated Rules 1.3, 1.4, and 1.5(f) of the Rules of Professional Conduct. The board further determined that respondent did not violate Rule 1.16(a) because it is incongruent to find respondent’s medical records are insufficient to establish the mitigating factor of mental or physical impairment but are sufficient to establish a rule violation involving his failure to withdraw from a representation due to an impairment. With respect to the other alleged rule violations, the board noted that the ODC did not object to the hearing committee’s failure to find violations of said rules; thus, the board determined that the ODC has dismissed those alleged rule violations.

With respect to 07-DB-050, the board again found nothing in the record to suggest the deemed admitted facts as set forth in the formal charges are manifestly erroneous. Based on those facts, the board determined that respondent violated Rules 1.2(a), 1.3,1.4,1.15(a), 5.3, 8.1(c), and 8.4(a) of the Rules of Professional Conduct. The board further determined that respondent did not violate Rules 1.15(c), 1.15(d), 1.15(e), and 8.4(c).

Based on the above findings, the board determined that respondent has neglected the legal matters of his clients and failed to communicate with them. He L,has failed to return an unearned fee to one client and mishandled $13,000 given to him by another client. He has also failed to properly supervise a non-lawyer assistant, resulting in the theft of client funds withheld to pay a third-party medical provider. Additionally, respondent failed to cooperate with the ODC in its investigations. However, the board noted that the record does not support the conclusion that respondent converted Ms. Watkins’ funds to his own use or converted the funds due Dr. Dear to his own use.

The board further determined that respondent knowingly violated duties owed to his clients, the legal system, and the legal profession. His conduct has resulted in actual serious injury to his clients and a third-party medical provider and has impaired the efficient operation of the disciplinary process. However, the board noted that, even though Ms. Watkins was deprived of her funds by respondent’s misapplication of her money, she derived a benefit from his payment to the mortgage holder. In light of the ABA’s Standards for Imposing Latvyer Sanctions, the board determined that disbarment is the baseline sanction.

In aggravation, the board found prior disciplinary offenses, a dishonest or selfish motive, a pattern of misconduct, multiple offenses, bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with rules or orders of the disciplinary agency, refusal to acknowledge the wrongful nature of the conduct, substantial experience in the practice of law, and indifference to making restitution. In mitigation, the board recognized respondent’s personal or emotional problems.

In determining an appropriate sanction, the board cited In re: Williams, 06-2578 (La.2/2/07), 947 So.2d 710, wherein this court disbarred an attorney who neglected legal matters, failed to communicate with clients, failed to protect a client’s interest upon termination of the representation, and failed to cooperate with the ODC 112in its investigations. The board determined that respondent’s lack of concern for the welfare of his clients and his failure to cooperate with the ODC, coupled with the presence of significant mitigating factors, support a sanction of disbarment.

Accordingly, the board recommended that respondent be disbarred. The board also recommended that respondent be ordered to make full restitution to Ms. King, Ms. Watkins, and Dr. Dear.

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: Dorman, 01-3058 (La.1/10/03), 838 So.2d 715.

| iaThe deemed admitted facts in this consolidated matter establish that respondent neglected legal matters, failed to communicate with clients, failed to account for or refund unearned fees, failed to promptly remit funds to a third-party medical provider, used client funds for an unauthorized purpose, failed to properly supervise a non-lawyer assistant, and failed to cooperate with the ODC in its investigations. Accordingly, he violated Rules 1.2(a), 1.3, 1.4, 1.5(f), 1.15(b) (failure to timely remit funds to a client or third person), 3.2, 5.3, 8.4(a), and 8.4(d) of the Rules of Professional Conduct.

Having found evidence of professional misconduct, we now turn to a determination of the appropriate sanction for respondent’s actions. In determining a sanction, we are mindful that disciplinary proceedings are designed to maintain high standards of conduct, protect the public, preserve the integrity of the profession, and deter future misconduct. Louisiana State Bar Ass’n v. Reis, 513 So.2d 1173 (La.1987). 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, the public, the legal system, and the legal profession. He acted knowingly and caused harm to his clients, a third-party medical provider, and the disciplinary system. According to the ABA’s Standards for Imposing Laiuyer Sanctions, the baseline sanction is in the range of a suspension to disbarment.

Numerous aggravating factors are present, including respondent’s prior disciplinary offenses, a pattern of misconduct, multiple offenses, bad faith obstruction |14of the disciplinary proceeding by intentionally failing to comply with rules or orders of the disciplinary agency, refusal to acknowledge the wrongful nature of the conduct, and substantial experience in the practice of law. The record supports the mitigating factors of personal or emotional problems and delay in the disciplinary proceedings.

Regarding respondent’s personal or emotional problems, respondent has admitted that he has suffered and continues to suffer with serious health issues, including heart problems, lymphoma, and depression. However, he also indicated that he does not believe these conditions prevent him from properly practicing law. Thereftxre, although we recognize respondent’s health problems as a mitigating factor, we do not give them significant weight in determining an appropriate sanction.

Turning to the issue of an appropriate sanction, we find that respondent’s conduct demonstrates a lack of concern for the welfare and wishes of his clients, particularly Ms. Watkins. He has also shown a serious disregard for his obligation to cooperate with the ODC. We considered similar misconduct in In re: Gines, 03-2827 (La.3/19/04), 869 So.2d 778. In Gines, the attorney engaged in a pattern of neglect of legal matters, failure to communicate with clients, and failure to account for fees. She also charged an excessive legal fee. As in the instant matter, numerous aggravating factors were present, and the attorney had personal or emotional problems in mitigation. For the misconduct in Gines, we imposed disbarment.

In light of the numerous aggravating factors present in this matter, we will adopt the disciplinary board’s recommendation and impose disbarment. We will also order respondent to make full restitution to his victims.

_|_^DECREE

Upon review of the findings and recommendations of the hearing committees and disciplinary board, and considering the record, it is ordered that August L. Gomez, Louisiana Bar Roll number 17957, be and he hereby is 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. It is further ordered that respondent shall pay full restitution to his victims. 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.

      . Ms. King claimed that respondent initially had her sign a contingency fee contract but refused to give her a copy of the contract. Months later, he asked her for three separate advance payments on his fee, totaling $5,000.

      . Specifically, respondent stated that he has had five heart attacks, requiring one open-heart surgery. He also stated that his secretary and his paralegal both resigned and his investigator was killed in a car accident. Furthermore, his wife was required to relocate out of state for her job, and his son began to become increasingly defiant of authority and failed the ninth grade. His medical records also reveal his diagnosis and treatment of depression beginning in February 2000.

      . Respondent's prior disciplinary history consists of the following: a July 1994 admonition for failure to cooperate, a March 1995 admonition for failure to act with reasonable diligence, and a June 1995 admonition for failure to cooperate.

      . Ms. Watkins sued respondent and, in December 2007, obtained a judgment against him in the amount of $13,000, plus interest, attorney's fees, and court costs. At the trial, Ms. Watkins' cousin testified that he had agreed with Ms. Watkins that he would pay off the entire mortgage out of his workers’ compensation settlement money. Despite this agreement, Ms. Watkins’ cousin told respondent that Ms. Watkins was willing to pay half of the mortgage payoff. Under these circumstances, the judge found that “[i]t was incumbent on [respondent], as an attorney and also as the custodian of [Ms. Watkins'] funds, to use them as [Ms. Watkins] herself desired, and not as her cousin instructed."

      . In an interview with the ODC's investigator in October 2004, respondent stated that he failed to answer the complaint because he was battling severe depression and lymphoma, for which he was receiving aggressive chemotherapy.

      . This rule violation refers to the version of Rule 1.15(b) in effect at the time of respondent’s misconduct in the Dear matter.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    STATE of Louisiana v. Joseph TAYLOR.
    No. 2009-KK-2781.
    Supreme Court of Louisiana.
    March 12, 2010.
   PER CURIAM.

pOn the morning of May 24th, 2009 just prior to 5:00 a.m., Lieutenant Michael Mimms of the New Orleans Police Department responded to a call for police assistance at the Sandpiper Lounge on Louisiana Avenue. Upon arriving at the location, Lt. Mimms was flagged down by three individuals, Mr. McKinley Baptiste, Mr. Lemede, and a female companion of theirs. Mr. Baptiste informed Lt. Mimms that he and the female were standing outside of the Lounge close to the corner when they were robbed by two black males, one of whom he described as approximately five feet, ten inches tall and dressed in a black shirt with blue jeans, and the other he described as being shorter and dressed entirely in white. The female victim gave the same description of the perpetrators to Lt. Mimms. The two informed Lt. Mimms that the perpetrators had, at gunpoint, stolen a wallet from Mr. Baptiste, and the car keys and cell phone of the female, and had then driven off in a four-door vehicle, and that one of the perpetrators had subsequently gone into the Sandpiper Lounge following the incident. Lt. Mimms, accompanied by two other officers as well as Mr. Baptiste and Mr. Le-mede, entered the Sandpiper Lounge. Soon after entering, both Mr. Baptiste and Mr. Lemede identified the defendant Joseph Taylor as the taller perpetrator. The defendant, dressed in a white shirt on top of a black shirt and jeans |2was then arrested, handcuffed, and brought outside the club. Upon exiting, the female victim began to scream that she wanted her keys back from the defendant and attempted to attack him. A subsequent search of the defendant did not result in the discovery of the missing property of the victims.

The trial court granted the defendant’s motion to suppress the three witness identifications as unduly suggestive. The Court of Appeal reversed in part, finding the identifications by Mr. Baptiste and Mr. Lemede were not unduly suggestive, but finding that the identification by the female victim was suggestive because of the manner that the defendant was brought out of the Lounge when the identification was made.

We grant the State’s writ application and reverse the trial court’s suppression of the female victim’s identification of the defendant for the following reasons.

A defendant seeking to suppress an identification has a two-fold burden: the defendant must prove both that the identification itself was suggestive and that there was a likelihood of misidentification as a result of the identification procedure used. In determining whether an identification procedure is suggestive, the United States Supreme Court’s decision in Manson v. Brathwaite is instructive, and provides a five factor test: 1) the witness’s opportunity to view the defendant at the time the crime was committed; 2) the degree of attention paid by the witness during the commission of the crime; 3) the accuracy of any prior description; 4) the level of the witness’s certainty displayed at the time of the identification; and 5) the length of time elapsed between the crime and the identification.

|;iWith regards to the first factor of the witness’s opportunity to view the defendant at the time the crime was committed and the second factor of the degree of attention paid by the witness during the commission of the crime, the record reflects Lt. Mimm’s testimony at the motion to suppress to the effect that the female witness gave the same description of the perpetrators’ appearances as Mr. Baptiste and Mr. Lemede. Since the female victim’s description was the same, there is no reason to believe she did not get just as good a look at the perpetrators at the time of the crime as the male witnesses did, nor that she paid any less attention while being robbed than they did. Thus, these factors weigh in favor of permitting the subsequent identification’s introduction.

The third factor, that of the accuracy of the prior description, likewise weighs in favor of permitting the identification. The defendant was found inside of the Sandpiper Lounge with a black shirt and blue jeans on, and a white shirt on top of the black shirt. Similarities between the defendant’s appearance and the female victim’s description are strong enough to infer the possibility that the defendant put a white shirt on top of his black shirt in order to conceal his identity.

The fourth factor, the level of the witness’s certainty at the time of the identification, is not as clear as the other factors. Obviously the victim, at the time she screamed for the defendant to give her keys back and attempted to attack him, | Relieved he was a perpetrator in the crime. However, because one of the officers testified that she may have been intoxicated at the time and because the defendant was in handcuffs, we find this factor weighs in favor of suppressing the identification.

The last factor, that of the time elapsed between the crime and the identification, clearly weighs in favor of admitting the identification. The record reflects that video footage from the Lounge showed the defendant entering the Lounge at approximately 4:53 a.m., roughly eight minutes after the robbery in question occurred. Officer Walker, who arrived on the scene at 5:07 a.m., roughly five or six minutes following the defendant’s arrest, confirmed that when he arrived the defendant was already in the back of a police vehicle. With such a crisp time frame involved and capable of being deduced from the record, it appears the actual robbery occurred at 4:45 A.M., and the defendant was apprehended at roughly 5:01 A.M. No more than roughly sixteen minutes elapsed between the time of the robbery and the female victim’s identification.

Thus, four of the five factors at issue weigh in favor of admitting the identification, and ultimately allowing the trier of fact to make its determinations as to the defendant’s guilt.

The ruling of the trial court suppressing the identification of the defendant by the female victim is hereby reversed and this matter is remanded for proceedings not inconsistent with this opinion.

| ¿REVERSED AND REMANDED.

       Kimball, C.J., did not participate in the deliberation of this opinion.

      . One of the officers involved testified that the victims appeared to have been intoxicated.

      . State v. Prudholm, 446 So.2d 729, 738 (La.1984).

      . 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977).

      . Writ Appendix, Ex. F, p. 5 (“Q. Did the female give you a description of the alleged perpetrators? A. Same description.”).

      . In the subsequent investigation, Mr. Taylor in fact stated that when he had arrived at the front door to the Sandpiper Lounge, the security officer informed him that he could not come in with the black shirt he had on. He then returned to his vehicle nearby, and put a white shirt on over his black shirt so that he could be admitted into the Lounge. Writ Appendix, Ex. F, p. 15 (“A. He proceeded to the front door, the security officer told him that he couldn't come in with a black shirt on. He returned to his vehicle, put a white shirt over his black shirt so that he could be admitted ...”).

      .Writ. Appendix, Ex. F, p. 17 ("Detective Sisón told me that he did go into the lounge and view video tape and that the alleged suspect walked in at approximately 4:53 AM which was eight minutes after the armed robbery took place and that that's what he observed on video.”).

      . Writ Appendix, Ex. F, p. 21 (“Again, I think I arrived on the scene around 5:07 AM and it was, you know, five or six minutes after all this occurred within the second district.”); Writ Appendix, Ex. F, p. 15 (“Q. When you got on the scene, was he already in custody? A. That’s correct, He was in the back of one of the second district police cars.”).


text:
    In re Mark Steven SMITH.
    No. 2009-B-2523.
    Supreme Court of Louisiana.
    March 12, 2010.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

_JjThis disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Mark Steven Smith. For the reasons that follow, we accept the recommendation of the disciplinary board and permanently disbar respondent.

UNDERLYING FACTS AND PROCEDURAL HISTORY

Between 2003 through 2005, respondent served as director of the Louisiana Film Commission. In his capacity as director of the Commission, respondent was charged with the responsibility of approving budgets submitted to the State of Louisiana by film production companies.

On August 17, 2007, the United States Attorney for the Eastern District of Louisiana filed a bill of information alleging respondent engaged in a conspiracy to willfully allow and approve inflated budgets to be submitted to the state by a film production company in order to receive inflated state tax credits. The bill of information alleged respondent knowingly solicited bribes to influence his issuance of state tax credits.

On September 7, 2007, respondent entered a plea of guilty in the United States District Court for the Eastern District of Louisiana to one count each of bribery and | .¿conspiracy. In the factual basis accompanying the guilty plea, respondent admitted that he knowingly conspired to falsely inflate movie budgets so that a film production company could reap bigger state tax credits; in return, respondent accepted cash bribes totaling $67,500.

Upon receiving notice that respondent had pled guilty to the criminal charges, the ODC filed a motion to place respondent on interim suspension pursuant to Supreme Court Rule XIX, § 19. On October 3, 2007, this court suspended respondent from the practice of law on an interim basis. In re: Smith, 07-1845 (La.10/3/07), 965 So.2d 864.

Thereafter, the ODC filed one count of formal charges against respondent. The charges alleged respondent’s actions violated Rule 8.4(a)(b) and (c) of the Rules of Professional Conduct.

Respondent answered the formal charges. His answer stated, in its entirety, “[d]ue to my guilty plea to bribery and conspiracy in the United States District Court for the Eastern District of Louisiana, I hereby relinquish my Louisiana law license, and will not contest the Board’s formal charges.”

Based on respondent’s answer, the chair of the hearing committee determined that a formal hearing was not required. Accordingly, the chair issued an order providing that matter would proceed as a “deemed admitted” matter pursuant to |sSupreme Court Rule XIX, § 11(E)(3), The parties were given an opportunity to file written arguments and documentary evidence on the issue of sanctions, but respondent did not avail himself of this opportunity.

Hearing Committee Report

After considering the ODC’s deemed admitted submission, the hearing committee determined that the formal charges were deemed admitted and proven by clear and convincing evidence. Based on the deemed admitted facts and additional evidence presented by the ODC, the committee determined that respondent violated the following provisions of the Rules of Professional Conduct: Rules 8.4(a), 8.4(b), and 8.4(c).

Citing In re: Rome, 01-2942 (La.9/26/03), 856 So.2d 1167, the committee found that malfeasance by an attorney serving in a public office is serious misconduct. The committee determined that respondent’s conduct, as a lawyer and public official, was both intentional and extensive. Relying on the ABA’s Standards for Im~ posing Lawyer Sanctions, the committee concluded that disbarment is the baseline sanction.

The committee identified several aggravating factors: dishonest or selfish motive; pattern of misconduct; substantial experience in the practice of law (admitted 1994); and illegal conduct. In mitigation, the committee found the absence of a prior disciplinary record, and a cooperative attitude toward the proceedings.

After reviewing the jurisprudence, the committee concluded that respondent violated his duties as an attorney, and violated the public trust as a public servant, noting that “[bjribery is a particular insidious evil because it poisons the very foundation of that public trust.” The committee concluded that respondent’s “conviction involving fraud and bribery while he occupied a position of trust as aj^public official goes to the very heart of our system of justice.” Accordingly, the committee recommended that respondent be permanently disbarred. Neither respondent nor the ODC filed an objection to the hearing committee’s recommendation.

Disciplinary Board Recommendation

Procedurally, the disciplinary board determined that this case did not fall under the provisions of the “deemed-admitted rale,” Supreme Court Rule XIX, § 11(E)(3), because respondent filed a formal answer. Nonetheless, the board concluded that respondent essentially conceded that the issues of fact raised by the formal charges were not in dispute. Additionally, it noted that in his answer, respondent did not request an opportunity to present evidence in mitigation.

Turning to the merits, the board, determined that respondent, while serving as director of the Louisiana Film Commission, acted intentionally when he engaged in the crimes of conspiracy and bribery. It found respondent knowingly and willfully allowed and approved inflated budgets to be submitted to the state by a film production company. Thereafter, respondent caused to be issued inflated state tax credits based upon the fraudulent budgets submitted by the film production company. The board concluded that respondent violated duties owed to the public and the profession, and that the applicable baseline sanction is disbarment.

In aggravation, the board recognized the following factors: dishonest or selfish motive; pattern of misconduct; substantial experience in the practice of law; and illegal conduct. In mitigation, the board found the absence of a prior disciplinary record, but rejected the committee’s finding of cooperative attitude toward the proceeding.

|,In determining an appropriate sanction, the board found guidance in In re: Rome, 03-0744 (La.9/26/03), 856 So.2d 1167, and In re: Burks, 07-0637 (La.8/31/07), 964 So.2d 298, in which this court permanently disbarred attorneys who knowingly engaged in criminal conduct while serving in a governmental position. As in those cases, the board found respondent engaged in conduct amounting to malfeasance in office, and entered a plea of guilty to felonious criminal acts resulting from his misconduct in office. Accordingly, the board recommended that respondent be permanently disbarred.

Neither respondent nor the ODC filed an objection to the disciplinary board’s recommendation. Accordingly, the matter was presented to this court for entry of an oi’der of discipline pursuant to Supreme Court Rule XIX, § ll(G)(a).

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 i’ecord 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. In re: Sham 09-0207 (La.6/26/09), 16 So.3d 343.

Proeedurally, we agree with the disciplinary board’s conclusion that respondent’s answer prevents this case from falling within the scope of Supreme Court Rule XIX, § 11(E)(3), which allows the facts of the formal charges to be deemed admitted when the respondent does not answer. Nonetheless, respondent’s answer, in which he indicates he will not contest the formal charges and wishes to | ^relinquish his law license, represents an implicit acknowledgment of the correctness of the facts alleged in the formal charges.

Moreover, when the disciplinary proceedings involve an attorney who has been convicted of a serious crime, the conviction is conclusive evidence of guilt, and the sole issue presented is whether respondent’s crimes warrant discipline, and if so, the extent thereof. Supreme Court Rule XIX, § 19(E); In re: Meece, 08-2980 (La.4/13/09), 6 So.3d 751; In re: Boudreau, 02-0007 (La.4/12/02), 815 So.2d 76; Louisiana State Bar Ass’n v. Wilkinson, 562 So.2d 902 (La.1990).

The record contains evidence establishing that the federal court accepted respondent’s plea and adjudged respondent guilty of crimes arising from his activities while serving as director of the Louisiana Film Commission. The crimes of which respondent were convicted are felonies, which are considered to be serious crimes under Supreme Court Rule XIX, § 19(B). Based on this evidence, it is clear respondent’s conduct violates Rule 8.4, and therefore warrants discipline.

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. In re: Coffman, 09-1165 (La.9/25/09), 17 So.3d 934. 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. In re: Smith, 09-1141 (La.9/25/09), 17 So.3d 927.

It is well-settled that the baseline sanction for misconduct arising out of felony convictions involving bribery is disbarment. See, e.g., In re: Mithun, 00-3174 (La.1/5/01), 776 So.2d 426; In re: Hingle, 98-0774 (La.9/18/98), 717 So.2d 636; In re: Collins, 94-2251 (La.11/18/94), 645 So.2d 1131; Louisiana State Bar Ass’n v. Pitara, 462 So.2d 178 (La.1985). Numerous aggravating factors are present in |7this case, including dishonest or selfish motive, a pattern of misconduct, substantial experience in the practice of law, and illegal conduct. The sole mitigating factor we are able to discern from the record is respondent’s lack of a prior disciplinary record. Given the absence of any significant mitigating factors or extenuating circumstances, we see no reason to depart from the baseline sanction of disbarment.

Having found respondent should be disbarred, we now turn to the question of whether respondent’s misconduct is so egregious that he should be permanently prohibited from seeking readmission to the practice of law. In Appendix E to Supreme Court Rule XIX, we set forth guidelines illustrating the types of conduct which might warrant permanent disbarment. While these guidelines are not intended to bind this court in its decision-making process, they present useful information concerning the types of conduct the court might consider worthy of permanent disbarment. In re: Arbour, 09-1217 (La.10/2/09), 18 So.3d 747.

For purposes of the instant case, Guideline 7 is relevant. That guideline refers to “[mjalfeasance in office which results in a felony conviction, and which involves fraud.”

Respondent’s actions fall within the parameters of this guideline. Respondent misused his office as director of the Louisiana Film Commission to fraudulently inflate state tax credits in exchange for bribes. His actions resulted in federal felony charges, to which respondent has pled guilty.

This court has consistently held that an attorney occupying a position of public trust is held to a higher standard of conduct than an ordinary attorney. See In re: Fahrenholtz, 09-0748 (La.10/2/09), 18 So.3d 751; In re: Bankston, 01-2780 (La.3/8/02), 810 So.2d 1113; In re: Naccari, 97-1546 (La.12/19/97), 705 So.2d 734; In re: Huckaby, 96-2643 (La.5/20/97), 694 So.2d 906. By his actions, respondent has revealed he falls far short of this high ethical standard, and lacks the moral fitness to practice law in the State of Louisiana.

We do not lightly impose the sanction of permanent disbarment. In re: Morphis, 01-2803 (La.12/4/02), 831 So.2d 934. Nonetheless, we are firmly convinced that we would be remiss in our constitutional duty to regulate the practice of law if we did not impose that sanction under the egregious facts of this case. Accordingly, we will accept the recommendation of the disciplinary board and permanently disbar respondent.

DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, it is ordered that the name of Mark Steven Smith, Louisiana Bar Roll number 22867, be stricken from the roll of attorneys, and that his license to practice law in the State of Louisiana 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. All costs and expenses in the matter are assessed against respondent in accordance with Page 11 of 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.

       Chief Justice Kimball not participating in the opinion.

      . Rule 8.4 provides, in pertinent part:
      It is professional misconduct for a lawyer to:

        (a) Violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another;
      (b) Commit a criminal act especially one that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects;
      (c)Engage in conduct involving dishonesty, fraud, deceit or misrepresentation.


text:
    In re Thomas Habersham SETZE.
    No. 2009-B-2503.
    Supreme Court of Louisiana.
    March 12, 2010.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

| ,This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Thomas Habersham Setze, an attorney licensed to practice law in Louisiana but currently ineligible to practice.

UNDERLYING FACTS AND PROCEDURAL HISTORY

In August 2002, the ODC filed the first of four sets of formal charges against respondent in 02-DB-076. Respondent answered the formal charges, requesting that they be dismissed because discipline, in the form of an admonition, had already been imposed for the underlying misconduct. In April 2005, a second set of formal charges was filed in 05-DB-047. Respondent answered the formal charges, denying the alleged misconduct. The two matters were then consolidated by order of the hearing committee chair before proceeding to a formal hearing on the merits conducted by the hearing committee in May and June 2006.

12The third set of formal charges, 06-DB-064, was filed in October 2006; and the fourth set of formal charges, 08-DB-044, was filed in May 2008. Respondent failed to answer these two sets of 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). Each matter was considered by a separate hearing committee. No formal hearings were held, but the parties were given an opportunity to file with the hearing committees written arguments and documentary evidence on the issue of sanctions. Respondent filed nothing for either hearing committee’s consideration.

Thereafter, the four sets of formal charges were consolidated by order of the disciplinary board. The board subsequently filed in this court a single recommendation of discipline encompassing all four sets of formal charges.

02-DB-079

Counts I & II-The Dyer Matter

On March 9, 2000, Pamela Dyer hired the Law Offices of Ossie Brown to handle her bankruptcy matter. Respondent, a contract attorney at Ossie Brown, was assigned to represent her. Ms. Dyer paid Ossie Brown $250 on March 9, 2000. Her home was scheduled to be sold at a sheriffs sale on March 22, 2000. Ms. Dyer paid Ossie Brown an additional $250 on April 10, 2000, after the sheriffs sale took place, and respondent did not file her bankruptcy petition until April 12, 2000.

Thereafter, respondent neglected Ms. Dyer’s bankruptcy matter. Specifically, he failed to appear for several meetings of creditors, failed to timely file bankruptcy laschedules, failed to timely pay filing fees, and failed to appear at scheduled court dates.

On June 16, 2000, respondent refunded $450 to Ms. Dyer by providing said funds to attorney Martin Schott, the bankruptcy trustee. On August 9, 2000, United States Bankruptcy Judge Louis Phillips sanctioned respondent by ordering him to pay Ms. Dyer $50 within ten days. However, respondent failed to pay her the $50 as ordered.

Accordingly, Judge Phillips ordered respondent to show cause on September 1, 2000 why he should not be held in contempt of court and further sanctioned. Respondent failed to appear. Respondent again failed to appear on September 22, 2000, and Judge Phillips issued a warrant for his arrest.

On September 29, 2000, respondent voluntarily appeared’ in response to the arrest warrant. At that time, Judge Phillips found him in contempt of court and further sanctioned him as follows: 1) Judge Phillips ordered him to pay an additional $250 to Ms. Dyer by October 2, 2000, and 2) Judge Phillips ordered him to pay $500 to the clerk of court by October 5, 2000. Respondent complied with both orders. Thereafter, he voluntarily agreed to never again practice in bankruptcy court, in lieu of the court instituting formal proceedings to prohibit his future practice in the court.

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), 3.4(c) (knowing disobedience of an obligation under the rules of a tribunal), 8.4(a) (violation of the Rules of Professional Conduct), and 8.4(d) (engaging in conduct prejudicial to the administration of justice).

|„ 05-DB-047

The Markey Matter

In February 2001, John and Shirley Markey appeared in Baton Rouge City Court regarding a lawsuit filed against them by Sears, Roebuck and Co. based on a disputed credit card balance. Respondent happened to be in the courtroom during the Markeys’ appearance and became acquainted with them. When the Markeys left the courtroom, respondent offered to represent them. Thereafter, the Markeys went to respondent’s law office, where they signed a contingency fee contract to have respondent handle a separate claim against Sears based on the Fair Debt Collection Practices Act.

On June 1, 2001, respondent sued Sears on the Markeys’ behalf in federal court. Soon thereafter, respondent informed the Markeys that Sears offered to settle the dispute for $1,000. The Markeys refused the offer and advised respondent of their desire to go to court.

In September 2001, Sears filed a motion to dismiss, and respondent filed an opposition a month later. In April 2002, the judge ordered the parties to file supplemental briefs addressing whether the Mar-keys’ claim had prescribed. Respondent was granted an extension of time to file his brief but, nonetheless, failed to submit a supplemental brief on the Markeys’ behalf. On September 23, 2002, the judge dismissed the Markeys’ case against Sears based on prescription.

In May 2003, Ms. Markey signed a statement releasing respondent from the representation and acknowledging her responsibility to seek other counsel. | .-Respondent failed to notify the Markeys that their case was dismissed. The Mar-keys only learned of the dismissal on June 10, 2003 when they called the court to inquire if a court date had been set in their case.

In August 2003, the Markeys filed a disciplinary complaint against respondent. Respondent did not fully cooperate with the ODC’s investigation of the complaint, necessitating the issuance of a subpoena to obtain his sworn statement, which he provided in December 2003. During the sworn statement, respondent admitted that he was not competent to handle the Markeys’ legal matter.

The ODC alleged that respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.1(a) (failure to provide competent representation to a client), 1.3,1.4, 8.1(c) (failure to cooperate with the ODC in its investigation), 8.4(a), 8.4(d), and 8.4(g) (failure to cooperate with the ODC in its investigation).

Formal Hearing

As previously indicated, respondent answered the formal charges in 02-DB-076 and 05-DB-047, and the matters were consolidated before proceeding to a formal hearing on the merits. Respondent appeared at the hearing and was represented by attorney Hilton McManus. The ODC was represented by Deputy Disciplinary Counsel Shana Broussard. Both respondent and the ODC introduced documentary evidence. The ODC called Judge Phillips, Mr. Schott, Ms. Dyer, and Mr. Markey |Kto testify before the committee. Respondent testified on his own behalf and on cross-examination by the ODC, but he called no other witnesses to testify before the committee.

During his testimony, respondent asserted that he never met with Ms. Dyer in March 2000. Instead, he claimed that he first met with her in April 2000. At the April meeting, Ms. Dyer informed him her house had already been sold at a sheriffs sale, and his understanding of the law was that the sale could be rescinded through a bankruptcy proceeding. However, he informed Ms. Dyer “within the first month or so” that the bankruptcy would not stop the sale of her house because it had already occurred. Respondent admitted that he failed to appear for scheduled creditors meetings and court dates, stating that he was busy working on a murder case, which he considered more important than Ms. Dyer’s case, and was not paying attention to his mail. He also admitted that he had never handled a bankruptcy before Ms. Dyer’s. When Judge Phillips ordered him to pay Ms. Dyer, he claimed she would not return his telephone calls, so he was unable to give her the money. He eventually gave the money to the bankruptcy court to give to Ms. Dyer. He disagreed that the only reason Ms. Dyer wanted to file bankruptcy was to stop the foreclosure. In fact, with the assistance of another attorney, he was able to get some of Ms. Dyer’s other debts discharged. Finally, he expressed remorse in taking Ms. Dyer’s case and in missing court dates.

With respect to the Markeys, respondent asserted that he only spoke to Mrs. Markey at the courthouse, who asked him if he was a lawyer and what she should do about their case. They discussed the Mar-keys’ case, and respondent told her to make an appointment at his office if they wanted to discuss it further, which the Markeys did. At that time, he had never handled a claim based on the Fair Debt 17Coliection Practices Act. When them case was dismissed, he claimed that he told the Markeys about the dismissal and that they could appeal it. However, he admitted that he had no documentary evidence to support this claim. He also admitted that he failed to respond in writing to the ODC’s request for information regarding the Markeys’ disciplinary complaint. Finally, he expressed remorse in not getting the Markeys to accept the $1,000 offer and not documenting all the his actions.

Hearing Committee Report

After considering the testimony and evidence presented at the hearing, the hearing committee found that respondent presented no evidence to refute the facts alleged in the formal charges. Specifically, the committee made the following factual findings:

In the Dyer matter, the committee found that Ms. Dyer hired respondent to handle her bankruptcy. Respondent failed to provide the bankruptcy court with necessary schedules for Ms. Dyer’s case to proceed. He failed to attend scheduled creditors meetings and failed to appear in response to show cause orders. He also failed to timely pay Ms. Dyer, as ordered by the bankruptcy court. Additionally, he filed the wrong type of bankruptcy petition and failed to inform Ms. Dyer that her house could not be saved through the bankruptcy. Furthermore, he failed to timely obtain assistance from another attorney in handling Ms. Dyer’s bankruptcy case. Respondent’s overall behavior in handling Ms. Dyer’s case, especially ignoring his duties to her due to his involvement in a murder case, and his dealings with the ODC have been prejudicial to the administration of justice.

In the Markey matter, the committee found that respondent failed to make court appearances on the Markeys’ behalf and failed to adequately research unfair debt | Rcollection claims. He also failed to have the Markeys approve the federal lawsuit or provide them with a copy of same. Additionally, he failed to inform them that them case had prescribed. Respondent’s behavior, specifically his lack of communication and becoming angry and hanging up on Mr. Markey, and his dealings with the ODC have been prejudicial to the administration of justice.

Based on these facts, the committee determined that respondent violated Rules 1.3, 1.4, 8.4(c), 8.4(a), and 8.4(d) of the Rules of Professional Conduct in the Dyer matter. With respect to the Markey matter, the committee found that respondent violated Rules 1.1(a), 1.3, 1.4, 8.1(c), 8.4(a), 8.4(d), and 8.4(g).

The committee further determined that respondent violated duties owed to his clients, the public, the legal system, and the legal profession. His conduct ranged from knowing to intentional, causing injury and serious injury to his clients and the legal system. Based on the ABA’s Standards for Imposing Laiwyer Sanctions, the committee determined' that the baseline sanction is suspension.

The committee considered the following aggravating factors: a dishonest or selfish motive, a pattern of misconduct, bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with the rules or orders of the disciplinary agency. In mitigation, the committee found the absence of a prior disciplinary record and inexperience in the practice of law (admitted 1998).

Under these circumstances, the committee recommended that respondent be suspended from the practice of law for six months, followed by two years of probation.

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

U06-DB-064

Counts I & II — The Allen Matter

In February 2001, David Allen hired respondent to handle his personal injury matter. Thereafter, Mr. Allen was incarcerated, and communication between the two became difficult. Nonetheless, in January 2002, respondent filed a lawsuit on Mr. Allen’s behalf to preserve his claim.

In July 2003, respondent and Mr. Allen reestablished communication, and respondent sent Mr. Allen a letter, advising Mr. Allen to seek any needed medical treatment at the prison and requesting that he complete and return a medical authorization form. Mr. Allen promptly complied and, additionally, requested a status update and copies of all pleadings filed on his behalf. Respondent failed to respond to this and numerous other requests. He did not communicate with Mr. Allen again until after Mr. Allen filed a disciplinary complaint against him in February 2005.

Respondent failed to respond to Mr. Allen’s disciplinary complaint, necessitating the issuance of a subpoena to obtain his sworn statement. Following the sworn statement, respondent failed to respond to a June 2005 supplemental request for information, necessitating the issuance a second subpoena.

The ODC alleged that respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.4, 8.1(c), and 8.4(a).

Hearing Committee Report

As previously indicated, respondent failed to file an answer to the formal charges in 06-DB-064, and consequently, the factual allegations contained therein were deemed admitted. After considering the ODC’s deemed admitted submission, |10the hearing committee determined that the factual allegations of the formal charges have been admitted and proven by clear and convincing evidence. Based on these facts, the committee determined that respondent violated the Rules of Professional Conduct as charged.

The committee further determined that respondent knowingly, if not intentionally, violated duties owed to his client and the legal profession. He displayed a disregard for the welfare of his clients, the legal profession, and the legal system. Relying on the ABA’s Standards for Imposing Lawyer Sanctions, the committee determined that the baseline sanction is suspension. The committee did not address the subject of aggravating factors but did find a lack of mitigating factors.

After considering this court’s prior jurisprudence involving similar misconduct, the committee recommended that respondent be suspended from the practice of law for six months, fully deferred.

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

08-DB-0U

Count I — The Stears Matter

Timothy Stears hired respondent to handle his medical malpractice claim. Thereafter, respondent failed to keep Mr. Stears informed of the status of the matter, failed to adequately research the matter, and failed to provide Mr. Stears with adequate representation. Respondent later informed him that the medical review board found no negligence on the part of his treating physician. Mr. Stears advised respondent that he wanted to appeal the decision.

^J^Over the next two years, respondent performed no additional work on the case. Consequently, Mr. Stears requested a copy of his file. Several months later, a representative from Ossie Brown informed Mr. Stears that respondent was no longer employed there. Mr. Stears retrieved his file from Ossie Brown, but many of his documents were missing.

The ODC alleged that respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.3, 1.4, 1.15(a) (safekeeping property of clients or third persons), 1.16(d) (obligations upon termination of a representation), 3.2 (failure to make reasonable efforts to expedite litigation), and 8.4(a).

Count II — The Norman Matter

In June 2004, Bjoern Norman hired respondent to handle his personal injury matter. After having a related shoulder surgery in June 2006, Mr. Norman forwarded his medical bills to respondent and requested a status update. Respondent failed to respond to Mr. Norman’s numerous letters and messages regarding the status. Eventually, respondent advised Mr. Norman that he had entered into negotiations with the opposing party’s insurer.

In September 2006, a representative from Ossie Brown informed Mr. Stears that respondent was no longer employed there. The representative also informed him that the information in his file revealed respondent had never located the opposing party. The information further indicated that respondent had not started negotiations with the insurer.

The ODC alleged that respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.3, 1.4, 1.16(d), 3.2, 8.4(a), and 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation).

_±gCount III — The Anderson Matter

In 2000, Bradley Anderson hired respondent to handle a wrongful death action. In 2006, a representative from Ossie Brown informed Mr. Anderson that respondent was no longer employed there. The representative also informed him that a hearing on a motion for summary judgment was scheduled in his case. Mr. Anderson made several attempts to contact respondent by telephone and mail, to no avail. Consequently, he appeared at the hearing pro se.

The ODC alleged that respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.3,1.4,1.16(d), 3.2, and 8.4(a).

Count IV — The Failure to Cooperate Matter

In September 2006, Mr. Stears, Mr. Norman, and Mr. Anderson all filed disciplinary complaints against respondent. Respondent was personally served with copies of the complaints, and his attorney of record, Hilton McManus, received copies via facsimile. Neither respondent nor Mr. McManus submitted responses to any of the complaints.

The ODC alleged that respondent’s conduct violated Rule 8.1(c) of the Rules of Professional Conduct.

Hearing Committee Report

As previously indicated, respondent failed to file an answer to the formal charges in 08-DB-044, and consequently, the factual allegations contained therein were deemed admitted. After considering the ODC’s deemed admitted submission, | iathe hearing committee determined that the formal charges were deemed admitted and proven by clear and convincing evidence. Based on the deemed admitted facts, the committee determined that respondent violated Rules 1.3, 1.4, 1.15(a), 1.16(d), 3.2, 8.1(c), and 8.4(a) of the Rules of Professional Conduct. The committee did not address whether respondent violated Rule 8.4(c).

The committee further determined that respondent “knowingly and intentionally abandoned his law practice without communicating with his clients and protecting their interests, all to the detriment of the public, the profession, and the legal system.” The committee also determined that “[sjuspension is generally warranted for violations such as those at hand.” The committee did not address the subject of aggravating factors but found the absence of a prior disciplinary record as a mitigating factor.

After considering this court’s prior jurisprudence involving similar misconduct, the committee recommended that respondent be suspended from the practice of law for one year and one day.

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

Disciplináis Board Recommendation

02-DB-076 & 05-DB-0U7 & 06-DB-06U & 08-DB-0U

After reviewing these consolidated matters, the disciplinary board made the following findings:

With respect to the Dyer and Markey matters, the board found nothing in the record to suggest the hearing committee’s findings of fact are manifestly erroneous. Additionally, the board found that respondent commenced representing Ms. Dyer | |4prior to the sheriffs sale of her house. As such, Ms. Dyer suffered serious injury as a result of respondent’s failure to timely file her bankruptcy petition. Based on these facts, the board found that respondent violated Rules 1.3, 1.4, 3.4(c), 8.4(a), and 8.4(d) of the Rules of Professional Conduct in the Dyer matter. The board also found that respondent violated Rules 1.1(a), 1.3, 1.4, 8.1(c), 8.4(a), and 8.4(g) in the Markey matter. The board did not address whether respondent violated Rule 8.4(d) in the Markey matter.

With respect to the Allen matter, the board found nothing in the record to suggest that the deemed admitted facts as set forth in the formal charges are manifestly erroneous. Based on these facts, the board found that respondent violated Rules 1.4, 8.1(c), and 8.4(a) of the Rules of Professional Conduct.

With respect to the Stears, Norman, Anderson, and failure to cooperate matters, the board found nothing in the record to suggest that the deemed admitted facts as set forth in the formal charges are manifestly erroneous. Based on these facts, the board found that respondent violated Rules 1.3, 1.4, 1.15(a), 1.16(d), 3.2, and 8.4(a) of the Rules of Professional Conduct in the Stears matter. The board found that respondent violated Rules 1.3, 1.4, 1.16(d), 3.2, 8.4(a), and 8.4(c) in the Norman matter. The board found that respondent violated Rules 1.3, 1.4, 1.16(d), and 8.4(a) in the Anderson matter, but he did not violate Rule 3.2 in this matter. Finally, the board found that respondent violated Rule 8.1(c) in the failure to cooperate matter.

The board determined that respondent knowingly violated duties owed to his clients, the legal system, and the legal profession. His conduct caused actual harm to his clients. Ms. Dyer, in particular, suffered serious harm, while Mr. Norman and Mr. Anderson’s claims may have prescribed. Respondent also harmed the legal system and the legal profession. After reviewing the ABA’s Standards for Imposing \ ^Lawyer Sanctions, the board determined that the baseline sanction is “a significant period of suspension.”

The board found the following aggravating factors present: 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, and vulnerability of the victim (Ms. Dyer). The board also found the following mitigating factors present: absence of a prior disciplinary record, inexperience in the practice of law (the Dyer matter), delay in the disciplinary proceedings, and imposition of other penalties or sanctions (the Dyer matter).

In determining an appropriate sanction, the board stated,

the record does not contain any evidence that Respondent has been guilty of mishandling client funds. Certainly, he has abdicated his duties to his clients, the legal system, and the profession by abandoning his practice without taking any measures to protect the interests of his clients. Nevertheless, the jurisprudence of the Court indicates that a lengthy suspension and not disbarment is the appropriate sanction in this matter.

After considering all the factors present in this consolidated matter, the board recommended that respondent be suspended from the practice of law for three years.

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 consolidated matter reveals that respondent failed to provide competent representation to his clients, neglected several legal matters, failed to communicate with several clients, abandoned his law practice without protecting his clients’ interests, disobeyed court orders, engaged in conduct prejudicial to the administration of justice, engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation, and failed to cooperate with the ODC in numerous investigations. Respondent has violated the Rules of Professional Conduct as alleged in the formal charges, with one exception. As found by the board, the record does not support a finding that respondent violated Rule 3.2 in the Anderson matter.

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 Stale 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 acted knowingly and, in some instances, intentionally. He violated duties owed to his clients, the legal system, and the legal profession, causing actual harm. Based on the ABA’s Standards for 11 -¡Imposing Lawyer Sanctions, the baseline sanction is in the range of a lengthy suspension to disbarment.

In addition to the aggravating factors found by the board, we find the aggravating factor of refusal to acknowledge the wrongful nature of the conduct is also present. We further agree with the board’s analysis of the factors in mitigation.

Turning to the issue of an appropriate sanction, the misconduct in this matter is similar to the misconduct that occurred in In re: Brown, 04-1119 (La.1/14/05), 892 So.2d 1. In Brown, the attorney neglected the legal matters of five clients, failed to communicate with clients, failed to return unearned legal fees owed to two clients, failed to safeguard one client’s property, and failed to cooperate with the ODC, causing actual injury to his clients. We found that the attorney “demonstrated in a convincing fashion that he has no regard for the welfare of his clients or for his professional obligations” and imposed a three-year suspension. A similar sanction is warranted in the instant matter. However, given that respondent has no prior discipline and has paid the sanctions imposed by Judge Phillips in the Dyer matter, an upward deviation to disbarment is unnecessary.

Accordingly, we will adopt the disciplinary board’s recommendation and suspend respondent from the practice of law for three years.

DECREE

Upon review of the findings and recommendations of the hearing committees and disciplinary board, and considering the record, it is ordered that Thomas Habers-ham Setze, Louisiana Bar Roll number 25498, be and he hereby is suspended from the practice of law for three years. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, Lswith legal interest to commence thirty days from the date of finality of this court’s judgment until paid.

       Chief Justice Kimball not participating in the opinion.

      . Respondent has been ineligible to practice law since July 24, 2008 for failing to comply with mandatory continuing legal education requirements. He has also been ineligible since October 2, 2008 for failing to file his trust account statement. Additionally, he has been ineligible since September 9, 2009 for failing to pay his bar dues and the disciplin-aiy assessment.

      . The adjudicative committee of the disciplinary board did not approve the admonition. However, the ODC failed to informed respondent of the adjudicative committee’s decision prior to filing formal charges against him.

      . Respondent Bled a Chapter 7 bankruptcy petitioner instead of a Chapter 13 bankruptcy petition, which could have been utilized to restructure her house note since she had a job.

      . The Markeys did not hire respondent to defend them in Sears' lawsuit against them. Nonetheless, on July 27, 2001, respondent filed, an answer and reconventional demand in the case on their behalf.

      . At the formal hearing of this matter, Mr. Markey testified that, after he refused the settlement offer, respondent got angry and hung up on him. He also indicated that was the last time he heard from respondent.

      . Mr. Markey testified that the court clerk’s office informed him the case was dismissed because respondent never followed through with the paperwork.

      .Ms. Dyer testified that she first met with respondent on March 9, 2000 at Ossie Brown. She explained to respondent that she needed a bankruptcy attorney to stop the foreclosure on her house. Respondent agreed to handle the matter and assured her he could save her house, but he filed the bankruptcy petitioner after her house had already been sold at a sheriff's sale. Thereafter, he failed to appear at court appearances on her behalf and failed to file the bankruptcy schedules. She eventually received a discharge in bankruptcy but was not able to save her house. She also eventually received a full refund of the fees she paid to Ossie Brown,

      . In September 2009, Mr. McManus filed a motion to withdraw as respondent's attorney of record due to respondent's failure to communicate with him. The disciplinary board granted the motion on September 23, 2009.


text:
    STATE of Louisiana v. Christopher WEATHERSBY.
    No. 2009-KK-2407.
    Supreme Court of Louisiana.
    March 12, 2010.
   PER CURIAM.

| finding the lower courts erred in ordering the State to produce the victims’ and witnesses’ audiotape statements, the names of its witnesses, and the witnesses for a hearing on the motion to suppress identification, we grant this writ to reverse the judgments of the lower courts.

Defendant, Christopher Weathersby, is charged by bill of indictment with one count of second-degree murder and three counts of attempted second-degree murder arising from a shooting that occurred on March 1, 2009. During the investigation of the shooting, New Orleans Police Department officers elicited tape-recorded statements from the three surviving victims and four witnesses on the scene. The officers also conducted photographic lineups. Defendant filed a motion to suppress the identifications made incident to these lineups.

Prior to the commencement of the hearing on the motion, the State provided defendant with a redacted police report, a redacted supplement police report, and redacted transcripts of the seven audiotape statements. At the outset of the hearing, defendant objected to the redacted discovery provided by the State, specifically the redaction of the statements and names of witnesses from the police report. Defendant also sought to subpoena the witnesses, who made the identification of defendant.

|2The district court sustained defendant’s objection, ordering the State produce the non-redacted audiotape statements of the victims and witnesses and the names of its witnesses, and allowing defendant to subpoena witnesses for the motion hearing. The Court of Appeal denied writs, finding no abuse of discretion.

Firstly, except as specifically provided by law, a defendant in Louisiana is not entitled to statements by witnesses made to the district attorney or to agents of the State. La.Code Crim. Proc. art. 723. However, the defendant may not be denied exculpatory statements made by a witness other than the defendant, provided the statement is material and relevant to the issue of guilt or punishment. La.Code Crim Proc. art. 718. A district coui't may determine whether such statements are subject to discovery under the provisions of Article 718 through an in camera inspection. La.Code Crim. Proc. arts. 718 & 723.

In the present case, the district court ordered the production of the statements because it believed the tapes fell within the purview of Article 718 because “[t]he identification of the defendant is the crux of the defense” and “[n]ot providing the testimony of the witnesses who were present at the shooting would cripple defense counsel’s ability to defend its client” and because it believed the tapes were material evidence and discoverable under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). We find the district court abused its discretion in ordering the production of the audiotape statements without first conducting an in camera review to ensure these tapes were material and relevant and, therefore, subject to discovery under Articles 718 and 723 and Brady.

Secondly, “[t]he prosecutor’s witness list generally is not discoverable in the absence of extraordinary circumstances.” State v. Jackson, 608 So.2d 949, 957 (La.1992). Only when there is a “determination that there exist peculiar and distinctive ^reasons why fundamental fairness dictates discovery” is such material discoverable. State v. Washington, 411 So.2d 451, 451 (La.1982).

In the present case, the district court believed defendant made a showing of particular and distinctive circumstances that warranted the disclosure of the witnesses’ names “as the police report was redacted to the point of mutilation and no useful information could be discerned. All material information such as the location of the crime scene, the officers’ names, the witnesses’ names, and the locations of the crime scene photographs have been redacted from the report.” Because the district court believed there was no other way for defendant to obtain the witnesses’ names, the district court ordered the State to provide them. We find, however, nothing in this record that would support the district court’s conclusion.

Simply stating “this is a murder case” and defendant should “have the benefit of eyewitnesses who can articulate who were the aggressors” does not constitute a peculiar distinctive reason why fundamental fairness dictates discovery of the names of these witnesses. This is especially so given the State’s and this Court’s concern for the witnesses’ safety. Therefore, we find the district court abused its discretion in ordering the production of the names of the State’s witnesses.

Finally, a defendant’s constitutionally guaranteed right to confront witnesses and to have compulsory process for obtaining them is only secured at trial and not during a pre-trial hearing. State v. Harris, 08-2117 (La.12/19/08), 998 So.2d 55. Moreover, to suppress an identification, a defendant must prove the identification procedure was suggestive and there was a substantial likelihood of misidentifi-cation as a result of the identification procedure. State v. Brown, 03-0897, pp. 18-19 (La.4/12/05), 907 So.2d 1, 16.

In ordering the production of witnesses, the district court found:

|4Ultimately, the function of a motion to suppress is to avoid delays during trial, to prevent jury contamination by excluding evidence which they cannot hear, and to save the state the expense of an unnecessary trial. That is what the Court seeks to do by allowing defense counsel to subpoena the witnesses involved in the identification procedure for the hearing on the motion to suppress. It has been asserted that the state has in excess of 18 photographic line ups which will be presented to the jury during trial. Not only is this highly unusual, but this also is very likely to cause confusion to the jury. The Court will need to rule on the admissibility of each line up individually and the procedure used during each line up. Although the state cannot be forced to call witnesses in a preliminary hearing, they may not prevent them from speaking with defense counsel. State v. Hammler, 312 So.2d 306 (La.1975). The Court believes that in this case the only way the Court may come to any reasonable verdict on the motion to suppress identification, would be to hear from the witnesses who were provided with in excess of 18 photographic line ups.

Given defendant’s right to confrontation is not implicated here and defendant’s failure to establish there was a substantial likelihood of misidentification as a result of the identification procedure used, we find the district court abused its discretion in ordering the production of witnesses at the pre-trial suppression hearing when their testimony is not necessary for a judicial determination of the motion.

Accordingly, the judgments of the lower courts are reversed, vacated, and set aside, and this case is remanded to the district court for further proceedings.

REVERSED and REMANDED.

       Kimball, C.J., did not participate in the deliberation of this opinion.


author: PER CURIAM

text:
    In re Oliver W. JOHNSON, III.
    No. 2009-B-2742.
    Supreme Court of Louisiana.
    March 12, 2010.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM

| [Pursuant to Supreme Court Rule XIX, § 21, the Office of Disciplinary Counsel (“ODC”) filed this reciprocal discipline proceeding against respondent, Oliver W. Johnson, III, an attorney licensed to practice law in the States of Louisiana and South Carolina, based upon discipline imposed by the Supreme Court of South Carolina.

UNDERLYING FACTS AND PROCEDURAL HISTORY

On November 9, 2009, the Supreme Court of South Carolina issued an order disbarring respondent from the practice of law based on evidence of his misconduct, including: the misappropriation of a portion of a $700,000 settlement fund; failure to properly disperse funds from a conser-vatorship account; failure to properly deliver estate settlement funds that were to be used for litigation purposes; failure to represent clients diligently and communicate with them, failure to pay a court reporter, an expert witness, and a final fee dispute award; failure to cooperate with the disciplinary agency’s investigation; the incurrence of numerous tax liens and orders related to his child support arrearag-es; and pleading guilty to tax evasion, and to assault and battery. In re Johnson, 385 S.C. 501, 685 S.E.2d 610 (2009).

1 {.After receiving the South Carolina disbarment judgment, the ODC filed a petition to initiate reciprocal discipline in Louisiana, pursuant to Supreme Court Rule XIX, § 21. Attached to the petition was a certified copy of the order of the Supreme Court of South Carolina. On December 22, 2009, we rendered an order giving respondent thirty days to raise any claim, predicated upon the grounds set forth in Supreme Court Rule XIX, § 21(D), that the imposition of identical discipline in Louisiana would be unwarranted, and the reasons for that claim. Respondent failed to file any response in this court.

DISCUSSION

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

Discipline to be Imposed. Upon the expiration of thirty days from service of the notice pursuant to the provisions of paragraph B, this court shall impose the identical discipline or disability inactive status unless disciplinary counsel or the lawyer demonstrates, or this court finds that it clearly appears upon the face of the record from which the discipline is predicated, that:
(1) The procedure was so lacking in notice or opportunity to be heard as to constitute a deprivation of due process; or
(2) Based on the record created by the jurisdiction that imposed the discipline, there was such infirmity of proof establishing the misconduct as to give rise to the clear conviction that the court could not, consistent with its duty, accept as final the conclusion on that subject; or
(3) The imposition of the same discipline by the court would result in grave injustice or be offensive to the public policy of the jurisdiction; or |⅞(4) The misconduct established warrants substantially different discipline in this state; or
(5) The reason for the original transfer to disability inactive status no longer exists.

In the instant ease, respondent has made no showing of infirmities in the South Carolina proceeding, nor do we discern any from our review of the record. Furthermore, we find no extraordinary circumstances which warrant deviation from the sanction imposed by the Supreme Court of South Carolina. We have held that “only under extraordinary circumstances should there be a significant variance from the sanction imposed by the other jurisdiction.” In re: Aulston, 05-1546 (La.1/13/06), 918 So.2d 461. Considering that we share authority over respondent with South Carolina, we will defer to that state’s determination of discipline. See, e.g., In re Zdravkovich, 831 A.2d 964, 968-69 (D.C.2003) (“there is merit in according deference, for its own sake, to the actions of other jurisdictions with respect to the attorneys over whom we share supervisory authority”). Accordingly, we will impose reciprocal discipline of disbarment pursuant to Supreme Court Rule XIX, § 21.

DECREE

Considering the motion for reciprocal discipline filed by the Office of Disciplinary Counsel and the record filed herein, it is ordered that Oliver W. Johnson, III, Louisiana Bar Roll number 18624, be and he hereby is 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.

       Chief Justice Kimball not participating in the opinion.


text:
    In re Melanie Smith DALEY.
    No. 2010-B-0081.
    Supreme Court of Louisiana.
    March 12, 2010.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

| ¡The Office of Disciplinary Counsel (“ODC”) commenced an investigation into allegations that respondent practiced law while ineligible, failed to act with reasonable diligence and promptness in representing a client, and failed to communicate with a client. Prior to the filing of formal charges, respondent and the ODC submitted a joint petition for consent discipline. Having reviewed the petition,

IT IS ORDERED that the Petition for Consent Discipline be accepted, and that Melanie Smith Daley, Louisiana Bar Roll number 27883, be suspended from the practice of law in Louisiana for a period of one year. This suspension shall be fully deferred, subject to two years of supervised probation with the following conditions:

1. Respondent must attend and successfully complete the Louisiana Bar Association’s Ethics School program.
2. Respondent must obtain assistance from the Louisiana State Bar Association Practice Assistance Counsel and Gilsbar in establishing formal office procedures.
3. Respondent must pay all costs associated with Ethics School and obtaining assistance from Gilsbar.
4. Respondent must pay all costs and expenses of the disciplinary proceedings.

LIT IS FURTHER ORDERED that any violation of these conditions or any additional misconduct during the probationary period may be grounds for making the deferred portion of the suspension ex-ecutory, or imposing additional discipline, as appropriate.

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

       Chief Justice Kimball not participating in this opinion.