author: PER CURIAM

text:
    IN RE: Salvador R. PERRICONE
    NO. 2018-B-1233
    Supreme Court of Louisiana.
    December 5, 2018 Rehearing Denied January 30, 2019
    Charles Bennett Plattsmier, for applicant.
    Kirk Raymond Granier, Salvador Robert Perricone, for respondent.
   PER CURIAM

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

UNDERLYING FACTS

The underlying facts of this case are largely undisputed. By way of background, respondent commenced employment as an Assistant United States Attorney ("AUSA") with the United States Attorney's Office for the Eastern District of Louisiana ("USAO") in 1991. At all times relevant to these proceedings, respondent was a Senior Litigation Counsel and the USAO's training officer.

During the times pertinent to these proceedings, a New Orleans newspaper, The Times-Picayune , maintained an Internet website identified as nola.com. The website typically permitted readers to post comments to news stories using pseudonyms and/or anonymous identities.

Beginning in or around November 2007 and continuing through March 14, 2012, respondent was a frequent poster of comments on a myriad of subjects on nola.com, including comments on cases which he and/or his colleagues at the USAO were assigned to prosecute. Of the more than 2,600 comments respondent posted, between one hundred and two hundred - less than one percent - related to matters being prosecuted in the USAO. None of the comments identified respondent by name or as an employee of the USAO. Rather, respondent posted on nola.com using at least five online identities: "campstblue," "legacyusa," "dramatis personae," "Henry L. Mencken1951," and "fed up."

Count I

In 2009, the FBI and the USAO commenced an investigation into allegations of corruption against various Jefferson Parish officials. In particular, investigations included allegations involving improper health insurance contracts between government entities and/or contractors and an insurance company owned by Tim Whitmer, the Jefferson Parish Chief Administrative Officer. Among the insurance contracts under investigation was one with River Birch, Inc., a privately held landfill company owned by Fred Heebe, whose company had been awarded a $160 million landfill contract with Jefferson Parish.

In February 2011, a federal grand jury indicted Henry Mouton, a former member of the Louisiana Wildlife and Fisheries Commission. The indictment charged that "co-conspirator A" paid Mr. Mouton more than $400,000 to use his influence with the Commission to force the closure of the Old Gentilly Landfill, which competed with River Birch. In June 2011, Mr. Mouton pleaded guilty to conspiracy.

An additional investigation alleged embezzlement by Dominick Fazzio, the chief financial officer for River Birch, and his brother-in-law, Mark Titus. Mr. Titus pleaded guilty and cooperated in the subsequent indictment of Mr. Fazzio for fraud and money laundering. Respondent was not on the prosecution team in that case, which was assigned to United States District Judge Ginger Berrigan in the Eastern District, but he did enroll for the limited purpose of disqualifying attorney Stephen London as Mr. Fazzio's trial counsel.

During the pendency of these investigations and prosecutions, respondent began commenting on nola.com using the pseudonym "Henry L. Mencken1951":

If Heebe had one firing synapse, he would go speak to Letten's posse and purge himself of this sordid episode and let them go after the council and public officials. Why prolong this pain...perhaps Queen Jennifer has something to say about that.[ ]
-December 18, 2011, 10:21 a.m.
Heebe comes from a long line of corruptors.
-September 3, 2011, 10:55 a.m.
Heebe's goose is cooked.
-September 4, 2011, 10:45 a.m.

As regards a nola.com story announcing the indictment of Mr. Mouton, respondent commented using his pseudonym "legacyusa," writing:

I read the indictment...there is no legitimate reason for this type of behavior in such a short period of time and for a limited purpose. GUILTY!!!
-February 26, 2011, 9:16 a.m.

As regards a nola.com article on the indictment of Mr. Fazzio, respondent posted a comment using his pseudonym "dramatis personae" and wrote:

Well, Mr. Fazzio, I hope you have room in your scrap book for your conviction and mug shot. London didn't too well with Archie Kaufman. You're next.[ ]
-August 5, 2011, 3:09 p.m.

Following Judge Berrigan's decision to disqualify Mr. Fazzio's attorney due to a conflict, Mr. Fazzio hired Arthur "Buddy" Lemann as his new attorney, as reported on nola.com. Respondent commented using "Henry L. Mencken1951," writing:

Looks like Fazzio got a lemon. That book you refer to Mr. Rioux is about all of his losses. The guy is a clown and Fazzio is going down.
-January 13, 2012, 10:36 p.m.

In another post following Judge Berrigan's disqualification order, respondent commented as "Henry L. Mencken1951" and wrote:

It's the right decision. Judges don't take this action lightly. There must be something going on we don't know about or the TP is too stupid (more likely) to understand. Please get to the bottom of this, PLEASE!!!
-January 5, 2012, 7:36 p.m.

Radio personality Garland Robinette was featured in an article in The Times-Picayune which reported that Mr. Heebe provided him a $250,000 interest-free loan allegedly in exchange for Mr. Robinette's on-air opposition to reopening the Old Gentilly Landfill rather than honoring the $160 million River Birch contract. Mr. Robinette had been notified that he was the subject of an investigation by the FBI and the USAO. Using "Henry L. Mencken1951," respondent wrote on nola.com:

Looks like he got another 250K to keep his mouth shut.
What a show!! WWL radio is dead!!!
-September 6, 2011, 10:13 a.m.
TRANSLATION: Heebe's attorney won't let me talk, lest I implicate his client. Additionally, I am New Orleans Royalty and I don't have to explain anything to anyone.
-September 7, 2011, 7:59 a.m.

Count II

Respondent prosecuted Mose Jefferson, the brother of Congressman William Jefferson, in a case in which he was indicted for bribing former Orleans Parish School Board president Ellenese Brooks-Simms. During the trial, respondent posted comments on nola.com about Mose Jefferson and his attorney, Mike Fawer, under the pseudonym "campstblue":

Fawer has screwed his client!!!! He revealed exactly what Mose needed on the board to get what Mose wanted.
Good job Mike!!!! You're just as arrogant as Ellenese ... and the jury knows it.
-August 15, 2009, 9:19 p.m.
They got the corrupted, now they have to get the corruptor.
-August 16, 2009, 7:41 p.m.

In a second indictment not personally prosecuted by respondent, Mose Jefferson, his sister Betty Jefferson, and Renee Gill Pratt were charged with sending funds to a Jefferson-controlled non-profit. William Jefferson was then pending trial on corruption charges in Virginia. Using the name "legacyusa," respondent posted:

The sad part of all this is that Bill is preventing his siblings from pleading guilty and cooperating, thus exposing them to more prison time. Additionally, local defense attorneys are just milking these cases for their own ego gratification and financial enrichment. Something is sick about our system.
-May 22, 2009, 9:40 p.m.

Count III

On September 4, 2005, six days after Hurricane Katrina struck New Orleans, a group of New Orleans police officers shot at unarmed civilians crossing the Danziger Bridge. Two persons were killed and four others were wounded. In July 2010, six officers were indicted in federal court for their roles in either the shooting or the ensuing alleged cover-up of the shooting. United States District Judge Kurt Engelhardt presided over the trial which commenced on June 22, 2011 and ended on August 5, 2011, when the jury returned guilty verdicts against all defendants. On April 4, 2012, Judge Engelhardt sentenced the defendants to terms of incarceration ranging from 6 to 65 years.

While respondent was not part of the prosecution team, he nevertheless posted comments on nola.com prior to and during the trial, including as the jury was deliberating. Posting as "dramatis personae," respondent stated:

I agree with [nola.com poster] Cauane. The same hurricane that hit Orleans Parish, hit Jefferson, St. Bernard, Plaquemine, and St. Tammany. Yet, the only police force to use deadly force throughout the city was the venerable NOPD. Perhaps we would be safer if the NOPD would leave next hurricans and let the National Guard assume all law enforcement duties. GUILTY AS CHARGED.
-August 3, 2011, 7:06 a.m.

Even prior to the trial, in response to an article regarding a rumored plea by a police officer co-defendant, respondent, posting as "legacyusa," warned:

Despite defense attorneys protestations to the contrary, It would be prudent for those involve to consider the track record of the US Attorney's Office. Letten's people are not to be trifled with.
-February 23, 2010, 6:17 p.m.

As regards police officer co-defendant Archie Kaufman, respondent wrote:

The cover up is always worse than the crime. Archie, your time is up.
-February 23, 2010, 10:44 p.m.

Following the publication of an article about a cooperating defendant and government witness, respondent as "legacyusa" wrote:

The Feds never forget....this officer is doing the right thing....wish the others would, then IT would be over.
-May 20, 2010, 10:41 p.m.

During the trial, respondent as "legacyusa" posted:

NONE of these guys should had have ever been given a badge. We should research how they got on the police department, who trained them, who supervised them and why were they ever been promoted. You put crap in B you get crap out!!!
-June 22, 2011, 8:19 a.m.

Also during the trial, respondent as "dramatis personae" denigrated the testimony given by one of the defendants:

Where is Madison's gun? Come on officer, tell us. You shot because you wanted to be part of something, you thought, was bigger than you. You let your ego control your emotions. You wanted to be viewed as a big man among the other officers. That's the creed of the NOPD and I hope the jury ignores your lame explanation and renders justice for Mr. Madison. To do less, is to sanction any cop who decides it is in his best interest to put a load of buckshot in the back of a disabled american in broad daylight.
-July 28, 2011, 8:16 a.m.

While the jury deliberated, respondent as "dramatis personae" stated:

I don't think the jury will leave the dead and wounded on the bridge.
-August 4, 2011, 5:53 p.m.

When respondent's online commenting was discovered and reported to Judge Engelhardt, an investigation ensued. Following the investigation, Judge Engelhardt reversed the convictions of the Danziger Bridge defendants and granted their motions for new trial, citing "grotesque prosecutorial misconduct," including respondent's online commenting as well as other instances of prosecutorial misconduct by the USAO, by members of the Department of Justice, and by federal law enforcement. In finding defendants were denied due process, Judge Engelhardt stated:

[I]t is difficult to conceive, much less accept, that this time-honored constitutional procedure successfully withstood an attack of the ferocity seen here, a campaign extending back to the commencement of the DOJ's active investigation of this case in 2008, and continuing through the acceptance of related plea agreements, the indictment, and the trial itself. To conclude that such misconduct was only a little unfair, but not enough to be harmful, turns the fundamental principle of due process on its head.

Judge Engelhardt clearly found the conduct of Perricone to be intentional. Judge Engelhardt found Perricone "viewed posting of highly-opinionated comments as a 'public service.' " The district court also found that the fact that the government's actions, including Perricone's actions, were conducted anonymously made "it all the more egregious, and forces the Court, the defendants, and the public into an indecent game of 'catch-me-if-you-can.' "

The Department of Justice appealed Judge Engelhardt's decision, and on August 18, 2015, the United States Fifth Circuit Court of Appeals affirmed the order and remanded the case for a new trial. In so doing, the court noted that the government acknowledged "significant, repeated misconduct by Perricone," and explained:

The government concedes Perricone "intentionally committed professional misconduct" violating (a) federal regulations restricting extrajudicial statements by DOJ personnel relating to civil and criminal proceedings, (b) DOJ policies and (c) court and state bar rules of professional conduct. The government acknowledges that besides his postings in this case, Perricone posted "thousands" of anonymous comments on various topics over the course of several years.

Following this ruling, Judge Engelhardt accepted a plea deal brokered by defense lawyers and the Department of Justice, which called for the Danziger Bridge defendants to plead guilty to significantly lesser offenses in exchange for substantially reduced prison sentences ranging from 3 to 12 years.

DISCIPLINARY PROCEEDINGS

In April 2017, the ODC filed formal charges against respondent. The ODC alleged that because respondent's client (the Department of Justice and the USAO) forbid extrajudicial statements by an AUSA such as those set forth in the formal charges, respondent placed his own interests above those of his client, in violation of Rule 1.7(a)(2) of the Rules of Professional Conduct. The ODC further alleged that respondent made extrajudicial statements about the guilt or innocence of defendants and/or others under investigation or prosecution that had a substantial likelihood of materially prejudicing an adjudicative proceeding, in violation of Rule 3.6, and of heightening public condemnation of the accused, in violation of Rule 3.8(f); that respondent's conduct was prejudicial to the administration of justice, in violation of Rule 8.4(d); and that respondent violated or attempted to violate the Rules of Professional Conduct, or did so through another, in violation of Rule 8.4(a).

Respondent answered the formal charges and admitted the factual allegations therein, including all of the quoted posts on nola.com. He stated that he made the anonymous online comments to relieve stress, not for the purpose of influencing the outcome of a defendant's trial. He further stated that his anonymous comments did not identify him as an AUSA, and as such, he did not intend, nor did he reasonably expect, that his conduct would influence the outcome of a trial, prejudice the fairness of any subsequent legal proceeding, or otherwise prejudice the administration of justice. Accordingly, respondent denied violating the Rules of Professional Conduct.

Hearing Committee Report

Prior to a hearing in the matter, respondent and the ODC filed into the record a stipulation that respondent violated Rules 3.6, 3.8(f), 8.4(a), 8.4(d) of the Rules of Professional Conduct. Respondent reserved his right to present evidence of his mental intent as regards those violations, and all other factors under Supreme Court Rule XIX, § 10(C).

A hearing in mitigation was conducted. Respondent presented the testimony of various character witnesses. Additionally, respondent called Dr. Ron Cambias, his treating psychologist since May 2016. Dr. Cambias testified that respondent suffered from complex post-traumatic stress disorder ("PTSD") triggered by numerous situations in which respondent, who was formerly employed as a police officer and FBI agent, had witnessed the gruesome deaths of others and had, himself, been threatened with physical harm, including gunfire. Dr. Cambias opined that respondent's online postings were the result of his PTSD.

At the conclusion of the hearing, the committee rendered its report. The committee explained that respondent testified he thought his blogging activities would help him to deal with the stress of his work as an AUSA, although he acknowledged that it actually exacerbated his stress and anxiety. The committee also discussed the expert testimony of Dr. Cambias. After reviewing this evidence, the committee found credible respondent's testimony that he was under a great deal of stress at work, especially in the period following Hurricane Katrina, when public corruption being investigated by the USAO was rampant. However, the committee noted it was "skeptical" of Dr. Cambias' diagnosis of PTSD and its causative role in respondent's blogging, but recognized no countervailing opinion testimony was offered.

The committee accepted respondent's stipulations that his actions violated Rules 3.6, 3.8(f), 8.4(a), and 8.4(d). The committee found that respondent also violated Rule 1.7(a)(2) by placing his own interests, i.e. , his need to "vent" about the criminal cases being prosecuted by the USAO, above the interests of that office, his client, in having those cases proceed unimpeded.

The committee determined that respondent violated duties owed to his client, the public, the legal system, and the profession, and found he acted knowingly. The mistrial granted in the Danziger Bridge case was certainly an actual, serious injury, as was the harm done by respondent to the post-Katrina recovery in New Orleans. Considering the ABA's Standards for Imposing Lawyer Sanctions , the committee determined the applicable baseline sanction is suspension.

In aggravation, the committee found the following factors: a selfish (but not dishonest) motive, a pattern of misconduct, multiple offenses, and substantial experience in the practice of law (admitted 1979). In mitigation, the committee recognized that at the time of respondent's misconduct, there were no regulations, rules, or guidelines regarding anonymous Internet postings. Other mitigating factors are the absence of a prior disciplinary record, absence of a dishonest motive, personal or emotional problems, full and free disclosure and a cooperative attitude toward the disciplinary proceedings, character and reputation, imposition of other penalties or sanctions, and remorse.

Considering all of these factors, especially the absence of any guidelines or other authority in the 2007-2012 time period during which respondent's anonymous, online postings occurred, and the longstanding harm respondent's actions caused to the USAO, a majority of the committee recommended respondent be suspended from the practice of law for two years, with one year deferred. One member of the committee would have recommend that the entire suspension be deferred.

Disciplinary Board Recommendation

After reviewing this matter, the disciplinary board determined that the hearing committee's factual findings are not manifestly erroneous, and that the committee correctly found respondent violated the Rules of Professional Conduct, both as stipulated ( Rules 3.6, 3.8(f), 8.4(a), and 8.4(d) ) and as additionally found by the committee ( Rule 1.7(a)(2) ).

The board determined that respondent violated duties owed to his client (the USAO), the public, the legal system, and the profession. He acted knowingly and intentionally. For example, although his online comments materially prejudiced the Danziger Bridge case, respondent did not intend that particular outcome. Thus, his conduct with regard to Rule 3.6 was knowing. However, his conduct with regard to Rule 3.8(f) was intentional, as there is clear evidence that respondent intended to heighten public condemnation of various individuals being investigated or prosecuted by the USAO. As recounted in the formal charges, respondent's comments speculated on the guilt of various individuals subject to prosecution or investigation and cast these individuals in a very negative light. Respondent claims he did this only to relieve the stress he was under caused by his undiagnosed PTSD. However, respondent also testified that he engaged in "arguments" with other online commenters that were not related to matters being investigated or prosecuted by the USAO, such as LSU football. The board did not find it credible that while respondent was attempting to influence other commenters regarding benign topics like LSU football, he was not attempting to influence others with his comments about the guilt of various individuals subject to investigation or prosecution. Rather, the board found that respondent intended to heighten public condemnation of the individuals referenced in the formal charges with his online comments.

The board found the actual harm and potential for harm caused by respondent's misconduct is significant. Among other things, it found respondent's misconduct was a significant factor B although not the sole factor B that led Judge Engelhardt to grant a new trial in the Danziger Bridge case. It also noted respondent's online commenting received significant media attention. These actions harmed the perception of the legal profession and tarnished the reputation of the USAO. The publicity that respondent's conduct received diminished the public's faith in the legal system. Additionally, his actions caused delay and additional expenses in several pending proceedings.

In aggravation, the board found the following factors: a selfish motive, a pattern of misconduct, multiple offenses, and substantial experience in the practice of law. In mitigation, the board found the absence of a prior disciplinary record, absence of a dishonest motive, personal or emotional problems, full and free disclosure and a cooperative attitude toward the disciplinary proceedings, character and reputation, imposition of other penalties or sanctions, and remorse.

However, the board specifically rejected respondent's argument that the hearing committee should have recognized the mitigating factor of mental disability due to his PTSD diagnosis. Citing ABA Standard 9.32(i) and In re: Stoller , 04-2758 (La. 5/24/05), 902 So.2d 981, the board found respondent failed to prove his PTSD caused the misconduct. It pointed out Dr. Cambias testified that someone with PTSD can operate at a high level and that respondent knew right from wrong. Thus, there does not appear to be clear and convincing evidence supporting the causation element. Based on the foregoing, the board concluded that the committee's determination that mental disability is not a mitigating factor appears to be reasonable and not erroneous.

Turning to the issue of an appropriate sanction, the board noted that there is no disciplinary case law in Louisiana discussing inappropriate extrajudicial statements by a prosecutor. However, the board took guidance from In re: McCool , 15-0284 (La. 6/30/15), 172 So.3d 1058, in which an attorney was disbarred for launching a lengthy social media campaign to affect the outcome of a case she was handling. The board found that the extensive scope of respondent's misconduct and the significant actual and potential harm it caused justifies a sanction on par with that imposed in McCool .

Based on this reasoning, the board recommended respondent be disbarred. The board also recommended that respondent be assessed with the costs and expenses of the proceeding.

One board member dissented as to the sanction, finding that disbarment is not warranted and that a two- to three-year suspension is appropriate for respondent's misconduct.

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

DISCUSSION

The underlying facts of this matter are not in dispute. It suffices to say that beginning in November 2007 and continuing through mid-March 2012, respondent, under various pseudonyms, frequently posted comments on an online site. Although these comments concerned a myriad of subjects, some pertained to cases which he and/or his colleagues at the USAO were assigned to prosecute. When discovered, respondent's actions caused serious, actual harm in the River Birch and Danziger Bridge cases and, most profoundly, to the reputation of the USAO. There was a potential for harm in the Jefferson and Gill-Pratt cases.

Respondent stipulated that his conduct violated Rules 3.6, 3.8(f), 8.4(a), and 8.4(d) of the Rules of Professional Conduct. He did not admit to the violation of Rule 1.7(a)(2) alleged in the formal charges, but that rule violation was found by both the hearing committee and the disciplinary board, and respondent did not lodge an objection in this court to said finding. Accordingly, like the underlying facts, the rule violations in this matter are not in dispute.

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).

Here, respondent violated duties owed to his client, the public, the legal system, and the profession. Respondent acted knowingly in that he knew his online postings were forbidden; however, he did not make the posts with the specific intent to harm the outcome of the various criminal proceedings. Respondent acted intentionally in that he intended his posts would have the effect of heightening public condemnation of the individuals referenced in the formal charges.

Standard 5.22 of the ABA's Standards for Imposing Lawyer Sanctions provides that suspension is generally appropriate when a lawyer in an official or governmental position knowingly fails to follow proper procedures or rules, and causes injury or potential injury to a party or to the integrity of the legal process. Considering this standard, the applicable baseline sanction in this matter is suspension.

In aggravation, the following factors apply: a selfish motive, a pattern of misconduct, multiple offenses, and substantial experience in the practice of law. In mitigation, the following factors apply: absence of a prior disciplinary record, absence of a dishonest motive, personal or emotional problems, full and free disclosure and a cooperative attitude toward the disciplinary proceedings, character and reputation, imposition of other penalties or sanctions, and remorse.

Respondent's arguments in this court center almost entirely on whether we should recognize the mitigating factor of mental disability due to his diagnosis of complex PTSD. In In re: Stoller , 04-2758 (La. 5/24/05), 902 So.2d 981, we cited four criteria which must be met for respondents to properly assert chemical dependency or mental disability as a mitigating factor: (1) there is medical evidence that the respondent is affected by a chemical dependency or mental disability ; (2) the chemical dependency or mental disability caused the misconduct; (3) the respondent's recovery from the chemical dependency or mental disability is demonstrated by a meaningful and sustained period of successful rehabilitation; and (4) the recovery arrested the misconduct and recurrence of that misconduct is unlikely. The ABA commentary indicates that in considering issues of chemical dependency or mental disability offered as mitigating factors in disciplinary proceedings, the "greatest weight" should be assigned when the disability is the sole cause of the offense.

As noted by the board, the focus of the inquiry in the instant case is on the second factor - namely, whether respondent's PTSD caused the misconduct at issue. Based on our review of the record, we find no clear and convincing support for the conclusion that respondent's mental condition had any causative effect on his misconduct. Respondent's psychologist testified that someone with PTSD can operate at a high level and that respondent knew right from wrong. This testimony is corroborated by respondent's own admission that even before his conduct was discovered, he knew he should not be engaged in posting extrajudicial comments. When asked why he engaged in commenting in a prohibited way, respondent candidly admitted that he was angry over public corruption and he vented this anger in the caustic criticism leveled against all who, in his judgment, warranted accountability, even though he knew this was improper.

Respondent's own testimony reveals he was aware that he should not post these comments, yet he decided to do so anyway. Clearly, any mental disability from which respondent suffered did not prevent him from knowing his actions were wrong. Under these circumstances, we find absolutely no support for the conclusion that respondent has proven his mental condition caused the misconduct. Accordingly, we decline to consider his mental disability in mitigation.

In formulating an appropriate sanction, we acknowledge the situation presented in this case is res novo in our jurisprudence, and our prior case law provides little useful guidance. However, we begin from the well-settled proposition that public officials (and prosecutors in particular) are held to a higher standard than ordinary attorneys. In re: Griffing , 17-0874 (La. 10/18/17), 236 So.3d 1213. Respondent was clearly in an important position of public trust. His actions betrayed that trust and caused actual harm to pending prosecutions. Once discovered, his conduct tarnished the reputation of the USAO and brought the entire legal profession into disrepute.

In this age of social media, it is important for all attorneys to bear in mind that "[t]he vigorous advocacy we demand of the legal profession is accepted because it takes place under the neutral, dispassionate control of the judicial system." Gentile v. State Bar of Nevada , 501 U.S. 1030, 1058, 111 S.Ct. 2720, 115 L.Ed.2d 888 (1991). As the Court in Gentile wisely explained, "[a] profession which takes just pride in these traditions may consider them disserved if lawyers use their skills and insight to make untested allegations in the press instead of in the courtroom." Id.

Respondent's conscious decision to vent his anger by posting caustic, extrajudicial comments about pending cases strikes at the heart of the neutral dispassionate control which is the foundation of our system. Our decision today must send a strong message to respondent and to all the members of the bar that a lawyer's ethical obligations are not diminished by the mask of anonymity provided by the Internet.

In summary, considering respondent's position of public trust as a prosecutor, his knowing and intentional decision to post these comments despite his acknowledgment that it was improper to do so, and the serious harm respondent's conduct has caused both to individual litigants and to the legal profession as a whole, we must conclude he has failed to comply with the high ethical standards we require of lawyers who are granted the privilege to practice law in this state. The only appropriate sanction under these facts is disbarment.

DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, the briefs, and oral argument, it is ordered that Salvador R. Perricone, Louisiana Bar Roll number 10515, 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. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court's judgment until paid.

CRICHTON, J., additionally concurs and assigns reasons

I agree with the per curiam in all respects, and in particular, that respondent has failed to prove by clear and convincing evidence that Post Traumatic Stress Disorder was the cause for his misconduct.

I write separately to note that this case highlights the difference between disbarment and permanent disbarment in attorney disciplinary proceedings. Respondent took a voluntary absence from the practice of law during the pendency of these proceedings (approximately five years), in lieu of receiving an interim suspension. However, as the per curiam discusses in footnote 10, absent a formal interim suspension, La. Supreme Court Rule XIX does not provide authority for respondent to receive credit for self-imposed absence from the profession. Had respondent agreed to interim suspension at the outset and received disbarment upon conclusion of formal disciplinary proceedings, respondent would be legally entitled to file a petition for reinstatement much sooner than under the present circumstances. In other words, the sanction of disbarment imposed at this point in respondent's profession, at the age of 67, is arguably akin to permanent disbarment and essentially a legal profession death sentence. Whether respondent would ever be readmitted - even conditionally readmitted - is a question for another day, but the sanction of disbarment now precludes any consideration of it for five years from the date of this opinion.

      Retired Judge Gay Gaskins, assigned as Justice Ad Hoc, sitting for Guidry, J., recused; Retired Judge Hillary Crain, assigned as Justice Ad Hoc, sitting for Weimer, J., recused.

      All nola.com comments cited in this memorandum are set forth precisely as they were posted by respondent, without corrections of typographical errors, spelling, grammar, or punctuation.

      "Jennifer" is Mr. Heebe's wife, Jennifer Sneed, who was a member of the Jefferson Parish Council when the River Birch contract was approved.

      Mr. London also represented NOPD officer Archie Kaufman in the Danziger Bridge trial. See Count III.

      United States v. Bowen , 969 F.Supp.2d 546 (E.D. La. 2013).

      969 F.Supp.2d at 617.

      Id. at 619-20.

      Id. at 626.

      United States v. Bowen , 799 F.3d 336 (5th Cir. 2015).

      Id. at 350.

      The committee acknowledged that respondent's postings were not the sole cause of the mistrial, and that it would be speculative to consider whether the mistrial would have been granted absent the other contributing causes.

      Extrajudicial commentary was addressed in both the guidelines of the Justice Department and the Rules of Professional Conduct, but nothing addressed anonymous Internet commentary. Both respondent and former United States Attorney Jim Letten testified that they were unaware of any such guidelines in the critical 2007-2012 time period.

      Although the hearing committee had recognized in mitigation that there were no regulations, rules, or guidelines regarding anonymous Internet postings at the time of respondent's misconduct, the board rejected this as a mitigating factor. The board reasoned that first, this is not a mitigating factor recognized by the ABA Standards, and second, respondent should not benefit from the lack of a specific policy or rule prohibiting otherwise unethical misconduct.

      At this point in its report the board speculated whether respondent and First AUSA Jan Mann "were aware of each other's other online commenting as it was occurring," despite its express acknowledgment that "this issue was not discussed at length at the hearing or in pleadings." The board concluded, based upon a discussion of the issue in Judge Engelhardt's order, that "collusion" between respondent and Ms. Mann "undermines Respondent's claim that his online commentary was something he did to relieve the stress caused by his undiagnosed PTSD." The issue of "collusion" between respondent and Ms. Mann is not at issue in this matter and therefore it was highly inappropriate for the board to engage in such speculation.

      Respondent suggested that he should be entitled to credit for the time he has spent away from the practice of law on a "voluntary" basis. Absent a formal interim suspension, there is no authority in Rule XIX for making discipline retroactive, and we decline to do so here. The period for seeking readmission from respondent's disbarment shall commence from the finality of our judgment in this case.

      Appendix E of Rule XIX provides the Guidelines for disbarment, and under Supreme Court Rule XIX, § 24(A), permanent disbarment prohibits an attorney from ever being readmitted to the practice of law in this state. Regular disbarment allows an attorney to petition for readmission five years after the effective date of disbarment.

      Rule XIX, § 24(A) states that a lawyer who has been placed on interim suspension and is then disbarred for the same misconduct that was the ground for the interim suspension may petition for readmission at the expiration of five years from the effective date of the interim suspension. This rule also states that when a lawyer is placed on interim suspension and is then suspended for the same misconduct that was the ground for the interim suspension, at the court's discretion, the term of the suspension may be applied retroactively to the date of the interim suspension. This Court has historically chosen to exercise our discretion in order to make suspensions run retroactive to the date of prior interim suspensions. See, e.g., In re: Lacobee , 03-2010 (La.2/20/04), 866 So.2d 237 ; In re: Gaudin , 00-2966 (La.5/4/01), 785 So.2d 763 ; In re: Ferrouillet , 99-3434 (La.6/30/00), 764 So.2d 948 ; In re: Edwards , 99-1783 (La.12/17/99), 752 So.2d 801 ; In re: Sterling , 08-2399 (La.1/30/09), 2 So.3d 408.


source: Caselaw Access Project

author: WEIMER, Justice

license: Public Domain

text:
    Elizabeth WEBB v. Daniel Andrew WEBB
    No. 2018-C-0320
    Supreme Court of Louisiana.
    December 5, 2018 Rehearing Denied January 30, 2019
    Deborah A. Villio ' , for applicant.
    Jennifer Carter deBlanc, Frank Peter Tranchina, Jr., Mark J. Mansfield, Amy Connaughton Cowley, for respondent.
   WEIMER, Justice

This case concerns a post-divorce community property partition. The former husband, Daniel Webb, filed a claim for reimbursement and for the classification of a promissory note of $250,000 as a community obligation. The promissory note corresponds to a loan secured by a mortgage on the family home. Mr. Webb contended that Mrs. Webb owed reimbursement for loan payments and that the loan should be considered a community obligation because he borrowed the money to pay community debts.

This loan has a pernicious history. Mr. Webb, who is an attorney licensed to practice law in Louisiana, admitted that he caused a forged signature for Mrs. Webb to be placed on the loan documents and that he concealed the existence of the loan and the mortgage on the family home from Mrs. Webb.

Mr. Webb's forgery was eventually discovered, and formal attorney disciplinary charges were brought against him. In the ensuing disciplinary proceedings, Mr. Webb admitted his misconduct, but represented to this court that he was taking "sole financial responsibility" and "full responsibility" for the loan and was otherwise committed to "making right" what he had done. Mr. Webb consented to being professionally disciplined by this court, but he prayed for leniency, citing his "[t]imely good faith effort to rectify consequences of misconduct." This court responded to Mr. Webb's petition for consent discipline by imposing a fully-deferred six-month suspension.

Shortly after this court's disciplinary order was issued, Mr. Webb returned to the district court where the community property partition was pending. There, Mr. Webb claimed that, although he personally incurred the $250,000 debt, responsibility for the loan should be an obligation shared by both Mr. and Mrs. Webb, rather than solely by Mr. Webb.

The district court rejected Mr. Webb's claim, finding that Mr. Webb's representations to this court in his attorney discipline case amounted to a judicial confession that he alone was responsible for the debt. Mr. Webb appealed, and the appellate court ruled in his favor by classifying the loan as a community obligation and ordering Mrs. Webb to personally reimburse Mr. Webb for loan payments he made after the community property regime was terminated.

Mrs. Webb sought this court's review of the appellate court's ruling. We granted certiorari to determine whether Mr. Webb's representations to this court in his attorney disciplinary case precluded him from shifting any financial responsibility for the loan to Mrs. Webb or to the Webbs' former community property. Finding that Mr. Webb represented to this court in his disciplinary case that Mrs. Webb would suffer no financial harm from his fraudulent loan for which he took "full responsibility," we further find the doctrine of judicial estoppel is appropriate for analyzing these unique circumstances. Applying the doctrine of judicial estoppel, which serves to prevent a party from manipulating the court system, we hold that, in the community property litigation, Mr. Webb cannot shift to the position of a creditor as to Mrs. Webb or to the Webbs' former community property for his fraudulent loan-a position which is contrary to the position of "sole financial responsibility" for the loan that he previously expressed to this court.

FACTUAL AND PROCEDURAL BACKGROUND

The facts of this matter and a prior disciplinary proceeding are intertwined. Accordingly, we begin our review of the record there.

On December 12, 2011, while an attorney licensed to practice law in this state, Mr. Webb executed a loan for $250,000. It is presently undisputed that the proceeds of the loan were used for purposes that would be considered community debts, such as tax liabilities and a payment on their daughter's wedding reception.

To secure the loan, Mr. Webb executed a home equity mortgage on the family home. He obtained the loan and mortgaged the family home without Mrs. Webb's knowledge. More to the point, Mr. Webb actively concealed all of this from Mrs. Webb, going so far as to arrange for Mrs. Webb's signature to be forged on the mortgage documents and causing that forgery to be notarized. Mr. Webb also indicated on the loan documents that correspondences regarding the loan should be sent to his law office. However, the lending bank apparently overlooked Mr. Webb's efforts to change the correspondence address and, about a month after Mr. Webb obtained the loan, the bank mailed copies of the documents to the Webb family home. Mrs. Webb opened the mail from the bank and discovered the existence of the $250,000 loan, the mortgage on the family home, and observed that her signature had been forged on the mortgage documents.

Mrs. Webb confronted Mr. Webb about the mortgage documents. Mr. Webb admitted to forging Mrs. Webb's signature and also informed her of the existence of an unsecured loan of $120,000 and lines of credit of $50,000 and $75,000 of which Mrs. Webb was previously unaware. In the wake of these revelations, Mrs. Webb filed for divorce and a community property partition, and also filed an attorney misconduct complaint with the Office of Disciplinary Counsel (ODC).

The ODC opened an investigation into the allegations that Mr. Webb had forged the mortgage documents. Through counsel, Mr. Webb admitted Mrs. Webb's allegations were "essentially correct." In this written response dated July 12, 2012, Mr. Webb explained that he asked his secretary to sign Mrs. Webb's name on the mortgage and presented the forged document to his law partner for notarization. Mr. Webb agreed with Mrs. Webb's characterization that he forged the mortgage because Mrs. Webb would not have agreed to the loan. Mr. Webb characterized his actions as a one time "lapse in judgment" which he "deeply and sincerely regrets." Mr. Webb committed to "make it right." He elaborated: "As to 'making it right,' Mr. Webb has been actively working with the lender to renegotiate the loan, cancel the home equity mortgage, and to remove his wife from any possible personal exposure associated with the underlying loan." Mr. Webb further indicated that he "has been making the payments on the note" and reiterated that: "once again he accepts full responsibility for it." Mr. Webb also acknowledged that "he faces some level of discipline as a result of his actions," and he expressed a desire to explore consent discipline.

Indeed, by letter dated July 27, 2012, Mr. Webb submitted to the ODC an extensive proposal for consent discipline. Just as before, when describing the fraudulent loan, Mr. Webb "accepts responsibility for it." When urging that mitigating factors justified a public reprimand, Mr. Webb added: "Further, neither his wife nor any financial institution has suffered any financial loss as a result of his conduct.... While he cannot undo what he did, he can and does acknowledge his conduct, accept responsibility for it, and express his deep remorse." When proposing probation as an alternative, Mr. Webb referenced his first admissions to the ODC and stated: "As noted in our letter dated July 12, 2012, Mr. Webb has taken measures to cancel the home equity mortgage in question and to accept sole financial responsibility for the loan amount."

During the course of the ODC's investigation, the ODC obtained a request for extension to file federal income taxes submitted on behalf of Mr. and Mrs. Webb, but Mrs. Webb's signature was also forged on that document. Mr. Webb admitted to the ODC that he was responsible for that forgery as well. Mr. Webb contended that, just as he was afraid to tell his wife about the need for the $250,000 loan, he "feared his wife's reaction when he learned in October, 2011, that their tax bill for the year 2010 would be higher than expected." The fraudulent loan, Mr. Webb explained, was in part used to pay the 2010 tax liability, and "there have been no issues raised regarding the tax return itself." To ODC's inquiry whether Mr. Webb had forged any other documents, Mr. Webb "advise[d] he [was] not aware of any other documents containing a signature purporting to be that of Mrs. Webb which he knows to be false."

The ODC apparently determined it had ascertained the full scope of Mr. Webb's misconduct, and reached an agreement with Mr. Webb to submit a joint petition for consent discipline to this court. All of the foregoing representations by Mr. Webb were among the exhibits to the "Joint Petition for Consent Discipline Pursuant to Rule XIX, § 20" submitted by ODC and personally signed by Mr. Webb. Moreover, the Joint Petition described that "[a]ll relevant facts ... are set forth in the Joint Stipulation of Facts accompanying this petition, and more fully reflected in the exhibits submitted herewith." (Emphasis added.)

This court accepted the petition for consent discipline on December 6, 2013, and issued to Mr. Webb a six-month suspension, but that suspension was fully deferred. In re Webb , 13-2583 (La. 12/06/13), 129 So.3d 526.

Several weeks later, on December 30, 2013, Mr. Webb filed a motion for summary judgment in the community property case, seeking to characterize the fraudulent loan, not as his sole obligation to repay, but an obligation for which the community was responsible. Alternatively, Mr. Webb claimed that if the obligation to repay the loan was solely his, he was owed reimbursement for using the loan proceeds for community debts. The trial court deferred ruling on these issues until a trial on the merits. However, on February 14, 2014, the trial court issued a partial summary judgment in favor of Mrs. Webb, finding that she was not bound by the mortgage on the ground that she did not consent to the loan, but the trial court made no ruling as to whether Mrs. Webb had any liability on the underlying debt.

After a trial, the trial court issued a community property partition judgment, which denied Mr. Webb's reimbursement claims for the fraudulent loan and found that loan to be Mr. Webb's separate obligation. The trial court's ruling stated "that First NBC Account ... debt ... in the amount of $244,356.92 is the separate debt of Daniel Webb. Accordingly, Daniel Webb shall assume full responsibility for the above described debt and remove the liability that it may have to Elizabeth Webb personally."

In written reasons for judgment, the trial court explained:

La. C.C. art. 1853 provides that "[a] judicial confession is a declaration made by a party in a judicial proceeding. That confession constitutes full proof against the party who made it. A judicial confession is indivisible and it may be revoked only on the ground of error of fact." In the Louisiana Supreme Court disciplinary proceedings against him, Mr. Webb through his counsel made declarations which establish that he assumed the First NBC loan as his separate obligation.
The Joint Stipulation filed in the Louisiana Supreme Court disciplinary proceedings against Mr. Webb states that he has taken appropriate steps to try and have the mortgage transferred into his name alone. The Louisiana Supreme Court found as a mitigating factor Mr. Webb's "good faith effort to rectify the consequences of his conduct." The Court finds that the First NBC loan is a separate obligation of Daniel Webb in the amount of $244,356.92.

Mr. Webb filed a motion for new trial on this issue. The trial court denied Mr. Webb's motion. Mr. Webb then appealed.

The appellate court reversed the trial court's judgment allocating the fraudulent loan as Mr. Webb's separate obligation. The appellate court ruled that "although obtained through fraudulent means," the $250,000 loan "is a community obligation." Webb v. Webb , 16-567, p. 19 (La.App. 5 Cir. 1/24/18), 238 So.3d 566, 580. Having found the fraudulent loan was a community obligation, the appellate court also ruled Mrs. Webb must reimburse Mr. Webb one half of the $21,216.64 that Mr. Webb paid toward the loan after the Webbs' community property regime was terminated.

This court granted Mrs. Webb's request for review of the correctness of the appellate court's ruling, which characterized the fraudulent loan as a community property obligation and ordered Mrs. Webb to reimburse half of Mr. Webb's post-termination payments toward the loan. Webb v. Webb , 18-0320 (La. 4/27/18), 247 So.3d 113.

LAW AND ANALYSIS

When, as here, former spouses do not reach a voluntary partition, an action to partition property following the termination of the community property regime is governed by La. R.S. 9:2801. In pertinent part, the partitioning court is governed by the following statutory procedure:

The court shall allocate or assign to the respective spouses all of the community assets and liabilities. In allocating assets and liabilities, the court may divide a particular asset or liability equally or unequally or may allocate it in its entirety to one of the spouses. The court shall consider the nature and source of the asset or liability, the economic condition of each spouse, and any other circumstances that the court deems relevant. As between the spouses, the allocation of a liability to a spouse obligates that spouse to extinguish that liability. The allocation in no way affects the rights of creditors.

La. R.S. 9:2801(A)(4)(c).

It is well-established that the partitioning court is granted much discretion under La. R.S. 9:2801 in allocating assets and liabilities. See, e.g., Hoover v. Hoover , 10-1245, p. 3 (La.App. 1 Cir. 3/17/11), 62 So.3d 765, 767 ; McDaniel v. McDaniel , 35,833, p. 5 (La.App. 2 Cir. 4/3/02), 813 So.2d 1232, 1235 ; Keenan v. Keenan , 15-828, p. 5 (La.App. 3 Cir. 2/3/16), 186 So.3d 289, 295 ; Robeaux v. Robeaux , 13-0404, p. 4 (La.App. 4 Cir. 11/6/13), 129 So.3d 659, 664 ; Goines v. Goines , 09-994, p. 4 (La.App. 5 Cir. 3/9/11), 62 So.3d 193, 198. However, "[q]uestions of law are reviewed de novo , without deference to the legal conclusions of the tribunals below." Snider v. Louisiana Med. Mut. Ins. Co. , 13-0579, p. 6 (La. 12/10/13), 130 So.3d 922, 928.

Here, relying on Kaufmann v. Corp. Realty, Inc. , 99-1104 (La.App. 5 Cir. 4/12/00), 759 So.2d 969, 974, the appellate court reasoned that because Mr. Webb's statements in his disciplinary case were made in a separate proceeding, they are "extrajudicial confessions or admissions." The appellate court further drew from Kaufma n n , explaining that statements in a separate proceeding:

are evidence, but they do not create conclusive presumptions or operate as an estoppel against the party making them. The only instance where an extrajudicial confession will operate as an estoppel against the party making it is if the party claiming the benefit of the estoppel was deceived by the admission or relied on it to his prejudice.

Webb , 16-567 at 16, 238 So.3d at 578 (quoting Kaufman n , 759 So.2d at 974 ).

The appellate court then disagreed with the trial court, which found Mr. Webb's statements in his disciplinary case about taking "full responsibility" for the fraudulent loan to be judicial confessions under La. C.C. art. 1853. Turning to the principles it drew from Kaufma n n , the appellate court acknowledged Mr. Webb's statements in the disciplinary case "can be considered as probative evidence in any subsequent proceeding. Nevertheless, while the statements can be considered, they cannot change the classification of the underlying debt unless, essentially, Mrs. Webb can prove that she relied on those statements." Webb , 16-567 at 16-17, 238 So.3d at 578.

The appellate court's reliance on Kaufma n n as a framework for resolving this case is misplaced for two reasons. First, the appellate court overlooked that the larger question in Kaufma n n was not simply whether "judicial confessions" had been proven, but whether "the principle of judicial estoppel is ... applicable." Kaufman n , 99-1104 at 10, 759 So.2d at 975 (emphasis added). Second, the appellate court overlooked more recent and more authoritative pronouncements on judicial estoppel.

Specifically, this court has unanimously observed that "judicial estoppel [is] an equitable doctrine designed to protect the integrity of the judicial process by prohibiting parties from deliberately changing positions according to the exigencies of the moment." Miller v. Conagra, Inc. , 08-0021, p. 9 (La. 9/8/08), 991 So.2d 445, 452 (citing New Hampshire v. Maine , 532 U.S. 742, 749-50, 121 S.Ct. 1808, 149 L.Ed.2d 968 (2001) ). In Miller , a livestock producer omitted potential lawsuit claims as an asset from the livestock producer's earlier bankruptcy case. After gaining a bankruptcy discharge, the livestock producer litigated claims stemming from a breach of contract that occurred before the livestock producer had filed for bankruptcy protection. The livestock producer obtained a trial court judgment of over two million dollars. This court granted the defendant's writ application to review whether the livestock producer's claims should have been barred by the doctrine of judicial estoppel because the livestock producer shifted his litigation positions by asserting in his bankruptcy case that he had no potential lawsuit assets, but later urging the defendant was liable for a pre-bankruptcy breach of contract. In that context, this court observed there are three elements for establishing judicial estoppel: "(1) the party's position must be clearly inconsistent with a previous one, (2) the court must have accepted the previous position, and (3) the non-disclosure of an asset must not have been inadvertent." Id. at 453.

Before turning to the application of those elements in this case, some procedural points bear mention. In Miller , we remarked that "the defense of judicial estoppel should be raised in a timely filed answer." Miller , 08-0021 at 9, 991 So.2d at 452. However, the remark just quoted about pleading judicial estoppel in an answer is inapposite to the procedural posture of this action for partitioning community property, which was incidental to the main action of a divorce. See La. C.C. art. 105. As permitted by Article 105, Mrs. Webb prayed for a partition in her petition for divorce. [Rec. p. 8] Mr. Webb's response included filing a motion for summary judgment, seeking to have the fraudulent loan characterized as a community debt when the court would later partition the community property.

In her opposition to Mr. Webb's motion, Mrs. Webb urged that summary judgment should be denied because Mr. Webb had taken inconsistent litigation positions regarding the responsibility for the loan. Specifically, Mrs. Webb contended, "before the Supreme Court Dan Webb represented that the underlying debt was his separate debt, but before this Court Dan Webb now represents that the underlying debt should be a community debt." The trial court denied Mr. Webb's motion, explaining that "based on Mr. Webb's representations to the Louisiana Supreme Court regarding his intent to accept full responsibility for the FNBC loan, the Court finds that genuine issues of material fact exists as to whether this loan is a community obligation or Mr. Webb's separate obligation."

With the denial of Mr. Webb's motion to characterize the fraudulent loan as a community debt, that issue was submitted as part of a community property partition trial. A major portion of Mrs. Webb's trial strategy was geared toward showing Mr. Webb had taken shifting, and inconsistent, litigation positions. The record from this court's attorney disciplinary proceedings for Mr. Webb was admitted into evidence at the community partition trial, during which the parties greatly debated the significance of Mr. Webb's representations to this court. As Mrs. Webb summarized in her post-trial memorandum:

Regardless of the legal semantics engaged at trial by Mr. Webb, an attorney, no interpretation can be inferred by "full responsibility" and "sole responsibility" other than that to the Supreme Court Mr. Webb assumed the obligation as his separate debt. Any attempts now to classify the underlying debt to the fraudulent mortgage as a community obligation is inconsistent with "full responsibility" and "sole responsibility" as it would have a negative monetary effect on Mrs. Webb resulting in a reduction in her share of the community, contrary to what was represented to the Supreme Court by or on behalf of Mr. Webb in order to mitigate his discipline.

Accordingly, we find the record reflects that ample information was adduced at trial for us to determine whether the doctrine of judicial estoppel should apply. Parenthetically, we also note that this court could apply judicial estoppel as the legal predicate for the peremptory exception of no right of action, an exception which this court is permitted to raise sua sponte , with or without a full trial. See La. C.C.P. art. 927(B) ("the failure to disclose a cause of action or a right or interest in the plaintiff to institute the suit, or discharge in bankruptcy, may be noticed by either the trial or appellate court on its own motion.").

Having established that the procedural groundwork has been laid for the doctrine of judicial estoppel in this case, but has not been fully considered by the lower courts, we turn to the applicability of each element of judicial estoppel de novo . See Evans v. Lungrin , 97-0541, p. 7 (La. 2/6/98), 708 So.2d 731, 735.

Whether Litigation Positions are Inconsistent

The first element for applying judicial estoppel, as noted above, is that "the party's position must be clearly inconsistent with a previous one." Miller , 08-0021 at 9, 991 So.2d at 452. In the instant case, Mr. Webb has taken the position that he is entitled to claim from Mrs. Webb reimbursement for half the amount of loan payments after the community property regime was terminated and that the liability for the loan itself is a community obligation-all to the detriment of Mrs. Webb's interest in the community's assets. The question thus becomes whether Mr. Webb, in his attorney disciplinary case, represented otherwise, i.e. , that Mrs. Webb would not suffer detrimental financial consequences from Mr. Webb's fraudulent loan.

Earlier, we observed in the record of the disciplinary case several instances where Mr. Webb told this court he took "full responsibility" for the loan. At the risk of stating the obvious, Mr. Webb did not represent to this court that he was only willing to take "half responsibility," which is essentially his position toward his fraudulent loan in the present case.

However, in his brief in the instant case, Mr. Webb points to a stipulation submitted to this court and claims that it is tantamount to putting this court on notice that he might later seek half of the loan balance from Mrs. Webb and/or from the community property in which Mrs. Webb held an interest. The stipulation stated:

The Respondent [Mr. Webb] has since verified that the home equity mortgage was obtained solely for the purpose of paying community debts incurred prior to the filing of the divorce petition and this was a private transaction that did not involve the submission of any documents to a court of law. The Respondent has further verified that he has taken appropriate steps to try and have the mortgage transferred into his name, alone; even though he maintains that the underlying debts were incurred for the benefit of the community. The final determination of these property issues remains pending in the 24th Judicial District Court at the present time. The Respondent maintains no harm to Mrs. Webb resulted from his actions. [Emphasis added.]

Mr. Webb points to the underlined language in support of his argument that he reserved the right to later seek to have the loan declared a community obligation. However, and setting aside for a moment the context of other stipulations, the sentence immediately preceding the underlined sentence defeats Mr. Webb's present argument. In the preceding sentence, Mr. Webb describes his efforts to transfer a loan that was fraudulently made in the name of both Mr. and Mrs. Webb, "into his name alone," and avers that he took these efforts "even though he maintains the underlying debts were incurred for the benefit of the community."

To parse the meaning of these two sentences, we note that the first sentence describes actions Mr. Webb is undertaking to rectify his fraud. The second sentence, which is the underlined sentence above, does not describe any action or even any intent on Mr. Webb's part. In an attorney disciplinary case, in which the attorney's actions usually speak louder than words, it is a relatively straightforward matter for us to interpret the sentence containing Mr. Webb's actions as the focal point of his stipulated position, and to construe the sentence that follows (which we have underlined) as merely containing context and providing information. To restate these representations, we find Mr. Webb undertook responsibility for the fraudulent loan (the action sentence), even though the trial court had yet to impose any separate responsibility upon him (the underlined sentence).

Although we read Mr. Webb's stipulation quoted above as taking sole responsibility for the loan, when that stipulation is read in the context of Mr. Webb's other stipulations, that conclusion is all the more compelling. Each instance where Mr. Webb indicated to the ODC he was undertaking "full responsibility" and "sole financial responsibility" for the fraudulent loan and demonstrating a commitment to "make it right," was submitted as a stipulation of fact to this court: "All relevant facts pertaining to this matter are set forth in the Joint Stipulation of Facts accompanying this petition, and more fully reflected in the exhibits submitted herewith." (Joint Petition for Consent Discipline Pursuant to Rule XIX, § 20). Mr. Webb personally signed this representation.

One of Mr. Webb's stipulations is especially noteworthy. When urging that mitigating factors justified leniency toward him, Mr. Webb stipulated: "Further, neither his wife nor any financial institution has suffered any financial loss as a result of his conduct.... While he cannot undo what he did, he can and does acknowledge his conduct, accept responsibility for it, and express his deep remorse."

The importance of the stipulation just quoted stems from Mr. Webb indicating-there and elsewhere-the bank will suffer no loss from his fraud because he has committed to paying the loan. However, it is significant that in this stipulation Mr. Webb is placing his wife on par with the bank as not suffering any financial loss from the loan. That representation can only be true if Mr. Webb is representing to this court that she truly will bear no responsibility. While Mr. Webb indicates in his brief that the community already owed money which was paid from the fraudulent loan and, hence, he tacitly suggests his fraud was a financial benefit for the community, Mr. Webb's present position is inconsistent with his prior representation to this court in his disciplinary case that he "express[es] his deep remorse" for the fraud.

In sum, we find inconsistent positions have been taken regarding the fraudulent loan. In the attorney disciplinary case, it was represented to this court that Mr. Webb took "sole financial responsibility" and "full responsibility" for the loan and, like the bank, Mrs. Webb would suffer no financial detriment from the loan. However, in the community property partition, it was represented he was taking only half responsibility for the loan.

Whether This Court Accepted the Previous Position

Mrs. Webb contends that a fully deferred suspension was a lenient sanction for Mr. Webb's misconduct, which involved a forgery of loan and tax documents. Mrs. Webb points to harsher sanctions in other attorney misconduct cases to demonstrate that this court accepted Mr. Webb's "full responsibility" and "sole financial responsibility" for the loan as a reason for fully deferring suspension, which allowed Mr. Webb to continue to practice law during his suspension.

We find it neither necessary nor helpful to compare Mr. Webb's sanction to other cases at this juncture. Every case is unique, and such a comparison is more appropriate when imposing discipline in consent cases. See La. Sup. Ct. Rule XIX, § 20(B) (requiring petitions for consent discipline to be accompanied by a memorandum that inter alia addresses "prior jurisprudence which establishes a similar range of sanctions for similar misconduct."). Suffice it to say that when we indicated in our order of discipline for Mr. Webb that we both "reviewed" and "accepted" Mr. Webb's petition, we meant what we said. As required by Sup. Ct. Rule XIX, § 20(A), Mr. Webb's stipulations of fact were included with his petition, which was filed jointly with the ODC. As described in the petition, the stipulations of fact extended to Mr. Webb's correspondences with the ODC, which were submitted as exhibits to the petition. By operation of Rule XIX, § 20(E), once we accepted Mr. Webb's joint petition, "the entire record," including Mr. Webb's stipulations, which were confidential until that point, "bec[a]me public." In contrast, if we had rejected Mr. Webb's joint petition, his petition along with his stipulations would have remained confidential pursuant to La. Sup. Ct. Rule XIX, § 20(F) ("The joint motion shall remain sealed and shall not be disclosed or made available for use in any other proceeding except upon order of the Court."). Thus, our acceptance of Mr. Webb's stipulations allowed the present and very public debate as to their significance, a debate which would never have occurred if we had rejected Mr. Webb's stipulations.

To recap our review of the second element of judicial estoppel, as part of his petition for consent discipline, Mr. Webb made numerous stipulations regarding his "full responsibility" and "sole financial responsibility" for the fraudulent loan. As indicated in our ruling, we "reviewed" and "accepted" those stipulations and thereby intended for Mr. Webb to honor them.

Whether the Prior Position was Inadvertent

In Miller , we addressed the significance of non-disclosure of potential litigation as an asset in a bankruptcy case. Miller , 08-0021 at 9, 991 So.2d at 452. Reviewing other bankruptcy cases dealing with non-disclosure of potential litigation assets, we identified as a third element of judicial estoppel that the litigant's non-disclosure was not inadvertent. Id. Even though the instant case does not deal with bankruptcy, for thoroughness of analysis, we address the inadvertence element.

Given that the instant case concerns affirmative representations (rather than omissions examined in the bankruptcy jurisprudence), and that Mr. Webb's representations were numerous, were made with advice of counsel and Mr. Webb himself is also an attorney, we find there is no question that Mr. Webb's representations in the disciplinary case were not inadvertent, but intentional.

Application of Judicial Estoppel

Although we have found all elements met, that does not end our inquiry. In Miller , we observed: "We are reminded of the Supreme Court's caution against reducing judicial estoppel to a general formulation or principle, as well as the Court's recognition that specific factual contexts may give rise to additional considerations." Miller , 08-0021 at 11, 991 So.2d at 453 (citing New Hampshire , 532 U.S. at 750-51, 121 S.Ct. 1808 ). "In fact, the New Hampshire Court ultimately looked to equity to resolve its judicial estoppel question." Id.

In Miller , all three elements for applying judicial estoppel were met, but we found "the equities in this case weigh against applying judicial estoppel." Id. Specifically, the equities dissuading us from applying judicial estoppel were harms to third-parties: "[I]t is clear that Miller's creditors will be harmed if we bar Miller's claim." Id. , 08-0021 at 12, 991 So.2d at 454.

In the instant case, the equities weigh in favor of estopping Mr. Webb's claims for reimbursement and characterization of his fraudulent loan as a community property obligation. Unlike Miller , there are no third parties impacted by estopping Mr. Webb's claim. Significantly, because the instant case involves a judicial partition of community property under La. R.S. 9:2801(A)(4)(c), that statute itself invites equitable considerations: "The court shall consider the nature and source of the asset or liability, the economic condition of each spouse, and any other circumstances that the court deems relevant." (Emphasis added.) See also Hare v. Hodgins , 586 So.2d 118, 127 (La. 1991) ("In fact, La. R.S. 9:2801, which was enacted subsequent to Sims [v. Sims , 358 So.2d 919 (La. 1978) ] affords the partitioning tribunal a great deal of flexibility and clearly implies that the goals of equality and equity require that no one method should be used to the exclusion of other apportionment techniques.").

In this case, the following equitable concerns loom large. The doctrine of judicial estoppel "is designed to protect the integrity of the judicial process by prohibiting parties from deliberately changing positions according to the exigencies of the moment." Miller , 08-0021 at 9, 991 So.2d at 452 (citing New Hampshire , 532 U.S. at 749-50, 121 S.Ct. 1808 ). Recalling that Mr. Webb's misconduct consisted of forging a mortgage document that would be inscribed in the public records, we find it all the more important to hold him to his prior representations of making amends by accepting "sole financial responsibility" and "full responsibility" for his misconduct. Mr. Webb is trained in the law, and a significant purpose of any attorney discipline case is to reinforce the expectation that the attorney will conform to "high standards of conduct." See Louisiana State Bar Ass'n v. Reis , 513 So.2d 1173, 1177 (La. 1987). To allow Mr. Webb to now retreat from his representations in a case in which he petitioned for lenient discipline and to shift positions in the community property case, would amount to a "perversion of the judicial process" and "playing fast and loose with the courts." Ghassemi v. Ghassemi , 11-1771, pp. 6-7 (La.App. 1 Cir. 6/8/12), 103 So.3d 401, 405 (citing Lowman v. Merrick , 06-0921 (La.App. 1 Cir. 3/23/07), 960 So.2d 84, 92 ). The doctrine of judicial estoppel exists to prevent such injustices.

CONCLUSION

Faced with the unusual facts of this case, the lower courts did not identify the legal construct best suited for the proper analysis. The trial court focused on whether Mr. Webb's statements in his attorney disciplinary case amounted to judicial confessions under La. C.C. art. 1853, which primarily deals with the evidentiary value of a litigant's prior positions, inasmuch as Article 1853 indicates that a judicial confession "constitutes full proof against the party who made it." The appellate court also examined this case through the lens of La. C.C. art. 1853, but relied on an earlier appellate decision, Kaufma n n , which alluded to the larger question of whether judicial estoppel applied, but which predated the current views of this court and of the United States Supreme Court on judicial estoppel.

With its emphasis on protecting the courts from manipulation, the doctrine of judicial estoppel is appropriate for resolving this case. Mr. Webb represented to this court in his disciplinary proceeding that he took "sole financial responsibility" and "full responsibility" for his fraudulent loan, but in the present community property case, he essentially changed his position to accept only "half responsibility." Applying the doctrine of judicial estoppel, we hold Mr. Webb to the "sole financial responsibility" and "full responsibility" position he expressed to this court, and rule that he is estopped from having his fraudulent loan characterized as a community property obligation or otherwise being a creditor relative to Mrs. Webb, or to the community for the loan proceeds and/or for any loan payments he has made.

Although this is the first instance in which this court has applied judicial estoppel based on an attorney disciplinary case, nothing in this opinion should be construed as an expansion of that doctrine. This case required an examination of what this court intended when accepting a petition for consent discipline and, although we ultimately agree with the district court that Mr. Webb is accountable for his representations to this court, this court is uniquely positioned to interpret its own intent when imposing attorney discipline. We are mindful that unscrupulous litigants may attempt to use the attorney disciplinary system to gain a litigation advantage. Rule 8.4(g) of the Rules of Professional Conduct prohibit attorneys from bringing ethical complaints solely to gain a litigation advantage, and thereby serves as one protection against using the attorney disciplinary system as a litigation tactic. We affirm that principle here, while at the same time noting that it was not breached here. Rather, this case turns on Mr. Webb's statements, which he must own and which could foreseeably have been made in another litigation context outside the attorney disciplinary system, such as a civil fraud action. Setting aside all the nuances of the three-factor legal test, our application of judicial estoppel simply enforces Mr. Webb's ownership of his prior statements to this court even after those statements no longer suit an outcome he desires.

DECREE

The appellate court's ruling that Mr. Webb's fraudulent loan is a community obligation and that Mrs. Webb owes reimbursement for prior payments is hereby reversed. The trial court's ruling, which denied Mr. Webb's reimbursement claims for the fraudulent loan and found that loan to be Mr. Webb's separate obligation, is hereby reinstated. Other aspects of the lower courts' rulings are not presently before this court and we express no view on them.

REVERSED IN PART; TRIAL COURT RULING REINSTATED.

Hughes, J., dissents and would affirm the court of appeal.

GUIDRY, J., concurs in the result.

CRICHTON, J., concurs in the result and assigns reasons:

I agree with the plurality's reversal of the court of appeal and reinstatement of the trial court's ruling. I also concur with its analysis of Mr. Webb's statements made during his disciplinary proceeding and ultimate conclusion that Mr. Webb represented in that proceeding that Mrs. Webb would not suffer any personal liability or financial responsibility for Mr. Webb's fraudulent loan. However, I disagree with the remainder of the opinion's reasoning and its expansion, in my view, of the common law doctrine of judicial estoppel in Louisiana.

Despite claiming that "nothing in this opinion should be construed as an expansion of [judicial estoppel doctrine]", the test proposed by the plurality would expand the narrow version of that doctrine that had been previously accepted in Louisiana law. While perhaps seemingly innocuous in the application to the current facts, the plurality's interpretation of judicial estoppel would be a significant departure from this Court's historical position that "the common law doctrine of judicial estoppel does not apply in Louisiana." Doyle v. State Farm (Mut.) Ins. Co. , 414 So. 2d 763, 765 (La. 1982) (citing Do rn ak v. Lafayette General Hospital , 399 So. 2d 168 (La. 1981) ; Ugulano v. Allstate Insurance Company , 367 So. 2d 6 (La. 1978) ).

The plurality relies on one case where this Court nevertheless recognized and applied a special version of common law judicial estoppel in matters involving bankruptcy proceedings. Miller v. Conagra, Inc. , 08-0021 (La. 9/8/08), 991 So. 2d 445 (citing In re: Superior Crewboats, Inc. , 374 F.3d 330, 335 (5th Cir. 2004) ). To appreciate the significance of the plurality's application of Miller to the case at hand, it is important to understand that Miller itself was an adaptation of the general principals of federal judicial estoppel to be applied specifically to matters involving representations made in prior bankruptcy proceedings.

In a "typical" scenario, the judicial estoppel factors set forth by the Supreme Court of the United States in New Hampshire v. Maine , cited by Miller , include:

First, a party's later position must be "clearly inconsistent" with its earlier position. Second, courts regularly inquire whether the party has succeeded in persuading a court to accept that party's earlier position, so that judicial acceptance of an inconsistent position in a later proceeding would create "the perception that either the first or the second court was misled," Absent success in a prior proceeding, a party's later inconsistent position introduces no "risk of inconsistent court determinations," and thus poses little threat to judicial integrity. A third consideration is whether the party seeking to assert an inconsistent position would derive an unfair advantage or impose an unfair detriment on the opposing party if not estopped.

New Hampshire v. Maine , 532 U.S. 742, 750-51, 121 S.Ct. 1808, 1815, 149 L.Ed.2d 968 (2001) (citations omitted) (emphasis added). This Court in Miller , following guidance of the U.S. Fifth Circuit Court of Appeal, adopted the first two elements of judicial estoppel set forth in New Hampshire v. Maine but changed the third factor to require that "the non-disclosure of an asset must not have been inadvertent". Miller , 991 So. 2d at 452.

Since the case at hand does not involve statements made by Mr. Webb in prior bankruptcy proceedings, by relying on Miller the plurality is forced to again adapt the third element of the test to require that the estopped litigant have made representations that "were not inadvertent, but intentional." This new test proposed by the plurality would not only adopt the common law doctrine of judicial estoppel outside of the context of bankruptcy, which is in and of itself an expansion of that doctrine's application in Louisiana, but also would apply to a much larger cast of cases in which the litigant makes prior statements "intentionally."

If this Court desires to recognize the common law doctrine of judicial estoppel to the extent the plurality suggests, adaptation of Miller would be a particularly curious means of doing so. Assuming adoption of judicial estoppel doctrine is prudent, it might be more prudent to adopt the U.S. Supreme Court's test set forth therefore in New Hampshire v. Maine and not to create a new test that is in essence an adaptation of the U.S. Fifth Circuit's adaptation of common law judicial estoppel doctrine. The plurality does not explain its reasons for doing otherwise, and I am unable to conceive of any.

This Court has previously recognized that, while not accepted generally, the common law concept of judicial estoppel is most closely mirrored in Louisiana by the estoppel afforded judicial confessions pursuant to La. C.C. art. 1853. Mitchell v. Bertolla , 340 So. 2d 287, 289 (La. 1976). Even in the context of extra-judicial confessions, estoppel has been used by Louisiana courts where another party to a suit has detrimentally relied on an extra-judicial confessions of the estopped litigant. See Alexis v. Metropolitan Life Ins. Co. , 604 So. 2d 581 (La. 1992) ("The party who has made such an admission in a previous suit is not barred from denying the facts contained in that admission in a subsequent suit, unless the adverse party has been prejudiced by his reliance upon that admission .") (emphasis added).

I agree with the Court of Appeal's analysis finding that Mr. Webb's statements in his disciplinary proceeding are not judicial confessions but instead extra-judicial confessions upon which Mrs. Webb did not rely. Like the plurality, I believe that it is important to "enforce[ ] Mr. Webb's ownership of his prior statements to this court even after those statements no longer suit an outcome he desires" despite the fact that the current law regarding extra-judicial confessions does not so provide. Webb v. Webb , 18-0320, p. 20 (La. 12/05/18), --- So. 3d ----. Although this Court has previously permitted only one exception to a litigant's allowance under Louisiana law to change his stance from prior extra-judicial confessions, I would adopt an additional exception: that attorney-litigants be barred from denying the facts contained in an admission made in attorney disciplinary matters before this Court in a subsequent suit.

It is well-established in our jurisprudence that the purposes of disciplinary proceedings are 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 we ultimately impose 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 testimony of the attorney subject to disciplinary proceedings is often critical to making these determinations, and the ability of this Court to "preserve the integrity of the profession" relies on the truthfulness and candor of the attorney. As such, even though extra-judicial confessions ordinarily do not bar litigants from denying admissions made in prior suits where reliance is absent, in my view an exception is warranted to protect the integrity of disciplinary proceedings. Mr. Webb's attempt to manipulate the disciplinary process to his advantage certainly illustrates this heightened need.

It is incumbent on this Court not only to consider the impact of our decisions on the facts before us but also to make every reasonable effort to ensure that the legal principles we espouse are not overbroad such that they have unforeseen and undesired effects. The distinction between the adaptation of common law judicial estoppel proposed by the plurality and the limited exception to the preclusive effect of extra-judicial confessions I propose herein admittedly have equal application to the facts at hand. Nevertheless, I cannot embrace the plurality's reasoning, as it would unnecessarily and significantly expand an area of the law that this Court has historically hesitated to recognize.

GENOVESE, J., concurs in part, dissents in part, and assigns reasons.

In this matter, we are called upon to determine whether certain statements made by a party in connection with a lawyer disciplinary proceeding are binding on that party in parallel community property litigation. I find the district court failed to consider the evidence presented in this case under the proper standard and that this error interdicted the lowers courts' judgments.

My first disagreement with the majority opinion is its application of the common law doctrine of judicial estoppel under the facts in this case. Notwithstanding the case of Miller v. Conagra, Inc. , 08-0021 (La. 9/8/08), 991 So.2d 445, (citing In re: Superior Crewboats, Inc. , 374 F.3d 330, 335 (5th Cir. 2004) ), a bankruptcy proceeding (which is not the case herein), our jurisprudence has historically found that "the common law doctrine of judicial estoppel does not apply in Louisiana." Doyle v. State Farm (Mut.) Ins. Co. , 414 So.2d 763, 765 (La. 1982). Thus, I find this Court's opinion relying on the common law doctrine of judicial estoppel misplaced.

Next, the district court characterized the relevant statements made by the husband during the disciplinary proceedings as a "judicial confession." I find the district court to be in error in this regard. "A judicial confession is a declaration made by a party in a judicial proceeding...." La. Civ. Code art. 1853. The jurisprudence has strictly and narrowly construed La. Civ. Code art. 1853. Disciplinary proceedings are "neither civil nor criminal but are sui generis ." Louisiana Supreme Court Rule XIX, § 18(A); In re Raspanti , 08-0954, p. 8 (La. 3/17/09), 8 So.3d 526, 532, cert. denied , 558 U.S 991, 130 S.Ct. 495, 175 L.Ed.2d 347 (2009). Thus, a disciplinary proceeding cannot be deemed a judicial proceeding, and the husband's statements in said disciplinary proceeding cannot be deemed a judicial confession, thereby making La. Civ. Code art. 1853 inapplicable to the facts in this case. Consequently, the district court erred in relying on La. Civ. Code art. 1853 and in finding the husband's statements in the disciplinary proceeding to be a judicial confession.

Finally, because the district court erroneously relied on the judicial confession provisions of La. Civ. Code art. 1853, it did not give proper consideration to the evidence herein under the standard applicable to extra-judicial confessions, nor were the parties able to make a full record on this issue. I find this error interdicted the district court's factual findings with regard to the legal characterization of the FNBC loan. Thus, I concur in the majority opinion's reversal of the court of appeal, but dissent to its doing so on the grounds of judicial estoppel. Accordingly, I find it necessary to vacate the judgments of the lower courts and remand the case to the district court for a new hearing on the characterization of the FNBC loan with the application of the correct legal standard.

      Mrs. Webb answered the appeal. The issues raised in her answer are not presently before this court.