source: Caselaw Access Project

author:
PER CURIAM
     JOHNSON, J., GUIDRY, Justice, JONES, Justice Pro Tempore,

license: Public Domain

text:
    In re C. Hunter KING.
    No. 2009-B-1560.
    Supreme Court of Louisiana.
    Jan. 8, 2010.
    Rehearing Denied April 5, 2010.

      Charles Bennett Plattsmier, Baton Rouge, for applicant.
    Leake & Andersson, LLP, Jeffrey Matthew Burg, New Orleans, Dane S. Ciolino, LLC, Dane S. Ciolino, for respondent.
   | ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM

This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Craig Hunter King, an attorney licensed to practice law in Louisiana but currently on interim suspension based upon his conviction of a serious crime.

UNDERLYING FACTS

On November 15, 1999, respondent assumed the office of district judge for Division “M” of the Civil District Court for the Parish of Orleans. While serving as judge, respondent personally solicited campaign contributions and required his court staff to campaign on his behalf or risk the loss of their employment. When this misconduct was brought to the attention of the Judiciary Commission by his former court reporter, respondent falsely denied the accusations and so testified under oath in a sworn statement. On October 21, 2003, we removed respondent from judicial office for his campaign-related misconduct and for lying about it to the Judiciary Commission. In re: King, 03-1412 (La.10/21/03), 857 So.2d 432 (“King I”). We did not reserve to the ODC the right to institute lawyer disciplinary proceedings against respondent in accordance with Supreme Court Rule XIX, § 6(B).

|2Thereafter, in March 2004, the Orleans Parish District Attorney’s Office filed a two-count bill of information charging respondent with perjury and public salary extortion. On May 18, 2007, respondent accepted a plea agreement and pled guilty to one felony count of conspiracy to commit public payroll fraud (by permitting, allowing, or encouraging his staff to participate in campaign activities on court time). The perjury charge was dismissed. In accordance with the agreement, the trial court deferred the imposition of respondent’s sentence for six months and placed him on inactive probation for that period of time, all pursuant to the provisions of La. Code Grim. P. art. 893.

Following respondent’s guilty plea, on June 26, 2007, we placed respondent on interim suspension based upon his conviction of a serious crime. We further ordered that necessary disciplinary proceedings be instituted pursuant to Rule XIX, §§ 11 and 19. In re: King, 07-1079 (La.6/26/07), 958 So.2d 1172.

On December 3, 2007, following the conclusion of respondent’s probationary period, the trial court set aside his criminal conviction pursuant to La.Code Crim. P. art. 893(E)(2). The trial court also expunged the record of his conviction pursuant to La. R.S. 44:9. Respondent subsequently argued to this court that based upon the trial court’s orders, his interim suspension should be dissolved and he should be reinstated to the practice of law. We denied respondent’s petition. In re: King, 08-0255 (La.3/7/08), 983 So.2d 1246.

DISCIPLINARY PROCEEDINGS

In February 2008, the ODC filed one count of formal charges against respondent, alleging that his conduct as set forth above violated Rules 8.4(a) (violation of the Rules of Professional Conduct), 8.4(b) (commission of a criminal pact, especially one that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects), 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) of the Rules of Professional Conduct. Respondent answered the formal charges and asserted that the ODC lacks jurisdiction to proceed in this matter.

Hearing Committee Report

The hearing committee conducted a formal hearing on the merits. Following the hearing, the committee filed its report with the disciplinary board. In a split recommendation, two members of the committee rejected respondent’s jurisdictional argument and recommended that the sanction of permanent disbarment be imposed. The lawyer member of the committee dissented, agreeing with respondent that the ODC lacks jurisdiction in this matter.

After considering the evidence and testimony presented at the hearing, the majority of the committee made the following findings:

Respondent freely admitted that he inappropriately used his staff in campaign activities while on the trial court, and that he pled guilty to conspiracy to commit public payroll fraud, a felony. Respondent denied that he committed perjury, but on cross-examination, he conceded that he was not honest during his testimony under oath before the Judiciary Commission. The committee concluded this conduct violated the Rules of Professional Conduct as charged in the formal charges. The committee determined that respondent intentionally attempted to deceive the Judiciary Commission’s Office of Special Counsel. He violated duties owed to the |4public and the legal system, causing serious harm to the administration of justice. The baseline sanction for respondent’s misconduct is disbarment.

The committee found the following aggravating factors apply: a dishonest or selfish motive, a pattern of misconduct, multiple offenses, refusal to acknowledge the wrongful nature of the conduct, vulnerability of the victim, and substantial experience in the practice of law (admitted 1990). In mitigation, the committee found the following factors: absence of a prior disciplinary record, character or reputation, imposition of other penalties or sanctions, and remorse. The committee also observed in mitigation that respondent was inexperienced as a judge when the campaign fundraising events took place, although he was not inexperienced as a lawyer when he gave false statements under oath.

Considering respondent’s misconduct in light of the permanent disbarment guidelines and the prior jurisprudence of this court, the majority of the committee recommended that respondent be permanently disbarred.

The lawyer member of the hearing committee dissented, on the ground that the ODC lacks jurisdiction to prosecute this matter. Alternatively, if jurisdiction does exist, the dissenting member of the committee would recommend that respondent be suspended from the practice of law for eighteen months, retroactive to June 26, 2007, the date of his interim suspension.

Respondent filed an objection to the hearing committee’s report.

Disciplinary Board Recommendation

With one member dissenting, the disciplinary board agreed at the outset that the ODC has jurisdiction to prosecute respondent. The board found that the hearing committee’s factual findings are not manifestly erroneous, and that respondent | ^violated the Rules of Professional Conduct as charged. Respondent violated Rule 8.4(b) by abusing the powers of his judicial office and by lying under oath. These criminal acts reflect adversely on his honesty, trustworthiness, or fitness as a lawyer. Respondent violated Rule 8.4(c) by lying under bath and by engaging in conspiracy to commit public payroll fraud. Respondent engaged in conduct prejudicial to the administration of justice by conducting improper and prohibited campaign activities as a judge, and by lying under oath at his sworn statement during the Judiciary Commission proceedings. This conduct violated -Rule 8.4(d). Finally, by violating the foregoing rules, respondent violated Rule 8.4(a).

The board determined that respondent violated duties owed to the public and the legal system. His conduct was intentional, and caused serious harm. The board accepted the aggravating and mitigating factors found by the committee, and in addition, found as an aggravating factor that respondent engaged in illegal conduct. Considering all these factors, the board recommended that respondent be permanently disbarred.

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

DISCUSSION

Initially, we must address respondent’s assertion that the ODC lacks jurisdiction to institute lawyer disciplinary proceedings against him because we did not reserve the agency’s right to do so in King I. We find respondent’s argument faulty, as this proceeding is based upon a criminal conviction and not upon judicial misconduct.

16Supreme Court Rule XIX, § 6(B) refers to the misconduct which was the subject of the judicial disciplinary proceedings, stating, “[tjhis jurisdiction of the agency should not be exercised if the misconduct was the subject of a judicial disciplinary proceeding in which there has been a final determination by the court, unless the court reserved to the agency the right to pursue lawyer discipline in accordance with this subsection.” [Emphasis added.] However, the instant proceeding is not based on the misconduct which was the subject of King I. Rather, it is based on respondent’s conviction of a serious crime pursuant to Supreme Court Rule XIX, § 19. Because this conviction occurred long after respondent had been removed from office, it follows the conviction cannot be the “misconduct” which was the subject of the judicial disciplinary proceeding. Consequently, there is no impediment to the filing of formal charges by the ODC.

These formal charges are based upon respondent’s plea of guilty to the crime of conspiracy to commit public payroll fraud, a violation of La. R.S. 14:138. In an attorney disciplinary proceeding based on the lawyer’s criminal conviction, the issue of his guilt may not be reliti-gated. Because the lawyer’s conviction, whether based on adjudication or guilty plea, is tantamount to a finding of his guilt beyond a reasonable doubt, the clear and convincing standard of proof that applies to disciplinary proceedings has already been satisfied. In re: Bankston, 01-2780 (La.3/8/02), 810 So.2d 1113; Louisiana State Bar Ass’n v. Wilkinson, 562 So.2d 902 (La.1990). In this type of proceeding, the sole issue to be determined is whether the crime warrants discipline, and if so, the extent thereof. Supreme Court Rule XIX, § 19(E); In re: Boudreau, 02-0007 (La.4/12/02), 815 So.2d 76.

Conspiracy to commit public payroll fraud, which is a felony under Louisiana law, is clearly a serious crime that warrants discipline by this court. The fact that ) 7respondent’s conviction was subsequently set aside under La. Code Crim. P. art. 893 or expunged under La. R.S. 44:9 does not preclude the use of that conviction for bar disciplinary purposes. See In re: Edwards, 99-1825 (La.7/2/99), 747 So.2d 6; In re: Yarno, 98-0442 (La.5/29/98), 713 So.2d 451; Louisiana State Bar Ass’n v. Porterfield,, 550 So.2d 584 (La.1989). Therefore, the only remaining issue is the appropriate sanction for respondent’s misconduct. The resolution of that issue depends upon the seriousness of the offense, the circumstances of the offense, and the extent of the aggravating and mitigating circumstances. Louisiana State Bar Ass’n v. Perez, 550 So.2d 188 (La.1989).

The crime of public payroll fraud is defined as follows:

A. Public payroll fraud is committed when:
(1) Any person shall knowingly receive any payment or compensation, or knowingly permit his name to be carried on any employment list or payroll for any payment or compensation from the state, for services not actually rendered by himself, or for services grossly inadequate for the payment or compensation received or to be received according to such employment list or payroll; or
(2) Any public officer or public employee shall carry, cause to be carried, or permit to be carried, directly or indirectly, upon the employment list or payroll of his office, the name of any person as employee, or shall pay any employee, with knowledge that such employee is receiving payment or compensation for services not actually rendered by said employee or for services grossly inadequate for such payment or compensation.

In the factual basis for his guilty plea, respondent admitted that he “initiated, and/or directed his staff members to assist in campaigning, fundraising, or soliciting campaign contributions | ^during” court time, and “thus, staff members who agreed and participated in the campaigning, fundraising, or soliciting campaign contributions while on court time, received payment or compensation for services not rendered to” the court.

Under Standard 5.11(a) of the ABA’s Standards for Imposing Lawyer Sanctions, disbarment is generally appropriate when a lawyer engages in serious criminal conduct, a necessary element of which includes fraud. Likewise, under Standard 5.11(b), disbarment is generally appropriate when a lawyer engages in intentional conduct involving dishonesty, fraud, deceit, or misrepresentation that seriously adversely reflects on the lawyer’s fitness to practice. Even more fitting is Standard 5.21, which provides as follows:

Disbarment is generally appropriate when a lawyer in an official or governmental position knowingly misuses the position with the intent to obtain a significant benefit or advantage for himself or another, or with the intent to cause serious or potentially serious injury to a party or to the integrity of the legal process.

In this case, respondent, while a district judge, knowingly and intentionally misused his office with the intent to obtain a significant benefit for himself. In particular, he misused his court staff for his personal benefit in order to retire his judicial campaign debt, which he testified was “more debt than I had ever experienced in my life.” Under Standard 5.21, therefore, we find the applicable baseline standard in this matter is disbarment.

The record supports the following aggravating factors: a dishonest or selfish motive, a pattern of misconduct, multiple offenses, and substantial experience in the practice of law (admitted 1990). The record supports the following mitigating factors: absence of a prior disciplinary record, character or reputation, and imposition of other penalties or sanctions.

13Under the facts of this case, we find no reason to deviate downward from the applicable baseline sanction. Accordingly, respondent shall be disbarred.

DECREE

Upon review of the findings and recommendations of the hearing committee and the disciplinary board, and considering the record, briefs, and oral argument, it is ordered that Craig Hunter King, Louisiana Bar Roll number 19945, be and he hereby is disbarred, retroactive to June 26, 2007, the date of his interim suspension. His name shall be stricken from the roll of attorneys and his license to practice law in the State of Louisiana shall be revoked. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.

JOHNSON and VICTORY, JJ., dissent and assign reasons.

KNOLL, J., concurs in result.

GUIDRY, J., concurs and assigns additional reasons.

JONES, J. Pro Tem., dissents and assigns reasons.

JOHNSON, J.,

dissents, and assigns reasons:

Li respectfully dissent. I would lift the interim suspension and impose no further discipline in this case.

On October 21, 2003, this Court removed Craig Hunter King from judicial office for campaign related misconduct. In that decree, this Court did not reserve to the Office of Disciplinary Counsel the right to institute lawyer disciplinary proceedings against Respondent, pursuant to Supreme Court Rule XIX, § 6(B) which provides in pertinent part:

... If a judge is removed from office or retired involuntarily by the court, the lawyer disciplinary agency should only exercise jurisdiction in the event the court reserves to the agency the right to pursue lawyer discipline in the final decree of the court in which the judge is removed from office, or retired involuntarily.

On May 18, 2007, Respondent pled guilty to conspiracy to commit public payroll fraud by permitting or encouraging his staff to participate in campaign activities on court time, and received a suspended six month sentence. Following the entry of the guilty plea, on June 26, 2007, the Office of Disciplinary Counsel obtained an order from this Court placing Respondent on interim suspension. On December 3, 2007, after completion of the six month period of probation imposed by the District Court, Respondent’s conviction was “set aside and the prosecution dismissed,” and his |2criminal record was expunged.

On February 1, 2008, Respondent applied for dissolution of his interim suspension and reinstatement to the practice of law, based on the fact that he was acquitted by expungement of all criminal charges previously lodged against him, or alternatively, that an order be issued dissolving the interim suspension and reinstating him to the full practice of law pursuant to Supreme Court Rule XIX, § 19 which provides:

D. Automatic Reinstatement from Interim Suspension upon Reversal of Conviction.

An attorney will be reinstated immediately on the reversal of his conviction for a serious crime that has resulted in his suspension, but the reinstatement will not terminate any disciplinary proceedings then pending against the attorney.

The Office of Disciplinary Counsel opposed the automatic reinstatement, and instead filed formal charges against Respondent premised upon the previously adjudicated misconduct, despite the prohibition of Supreme Court Rule XIX, § 6(B) that precludes pursuit of lawyer discipline when not specifically reserved in a final decree, and despite the fact that Respondent’s conviction had been legally expunged.

The majority couches its current ruling in terms of finding a violation of Rule [38.4 of the Louisiana Rules of Professional Conduct, and in doing so, ignores the fact that this violation is based on the very same misconduct for which Respondent has already been disciplined by removal from his judicial office. This Court’s decree disregards the legal result of ex-pungement, the principles of double jeopardy, and the specific language of Supreme Court Rule XIX, § 6(B).

This Court has disregarded its own jurisprudence with regard to conditional pleas pursuant to La. R.S. 40:983. In Louisiana State Bar Association v. Reis, 518 So.2d 1173 (La.1987), Reis entered a conditional plea after being charged under Section LSA-R.S. 40:967(C) with possession of cocaine. Upon completion of his probationary period, the district court entered an order under the terms of the statute dismissing the proceedings against him. This Court held the dismissal of the prosecution in the district court was “tantamount to an acquittal” and could not be used to form the basis of disciplinary charges such as illegal conduct, moral turpitude, or conduct adversely reflecting on his fitness to practice law.

This Court has handed down an excessively harsh discipline to a former member of the judiciary, who has not been the subject of previous disciplinary charges, and who, at the time of the misconduct, was a relatively inexperienced judge. An examination of our jurisprudence shows that disbarment is not the appropriate discipline for the charged misconduct. There are many examples where this court has showed leniency following an attorney’s felony conviction and has imposed a period of suspension, rather than disbarment. In re Steinhardt, 04-0011 (La.9/9/04), 883 So.2d 404, the respondent attorney who was arrested in Texas, driving a vehicle with over eight pounds of marijuana stored in the trunk. Although charged with a felony in Texas, Ms. Steinhardt was allowed to pled to a lesser charge, and sentenced to two years probation. Despite the comparatively light sentence she received for this |4 criminal conduct, this Court imposed only a three year suspension from the practice of law with two of the three years deferred. Likewise, In re Vaughn, 97-1862 (La.9/19/97), 701 So.2d 145, the respondent attorney was suspended from the practice of law for a period of three years based on his federal felony conviction for three counts of mail fraud. Similarly, in In re Cleveland, 06-1745 (La.7/13/06), 933 So.2d 793, the respondent attorney was suspended from the practice of law for three years based upon his federal felony conviction for tax conspiracy and aiding and abetting the filing of a false tax return. Additionally, former Insurance Commissioner Jim Brown was suspended from the practice of law for three years based upon his federal conviction for making false statements to federal investigators. In re Brown, 990 So.2d 1279 (La.2008). In all of the above cited cases involving felony criminal convictions, the respondent lawyers were given a period of suspension, rather than disbarment.

CONCLUSION

In my view, disbarment in this case is excessively harsh, and without precedent.

VICTORY, ¿.,

dissenting.

_JjMy office wrote King I for the Court. In the opinion, the Court deliberately chose not to reserve the right to institute lawyer disciplinary proceedings against King with the Office of Disciplinary Counsel. Although Louisiana Supreme Court XIX Section 6(B) does not deprive the ODC of the right to institute lawyer disciplinary proceedings under these circumstances, it does say the agency “should” not do so.

Further, I do not agree with the majority’s reasoning that King is now only being disciplined for the conviction of a crime after King I was rendered. In King I the conduct for which he was removed from office was described in great detail and part of that conduct constituted the crime for which he was convicted. Therefore, under all of these circumstances, I would lift the interim suspension and not discipline King any further.

GUIDRY, Justice,

concurs and assigns additional reasons.

U respectfully concur in the majority’s opinion imposing disbarment. I write separately to set forth my view on the issue raised by the respondent regarding the appropriate jurisdiction of this court and the disciplinary agency. I disagree with the respondent’s argument that he cannot be disciplined as a lawyer for misconduct considered by the court in his judicial discipline proceeding simply because the court did not specifically reserve to the disciplinary agency a right to pursue lawyer discipline against the respondent.

As the majority notes, Supreme Court Rule XIX, § 6(B) regarding former judges refers to the misconduct that was the subject of the judicial discipline proceeding, stating “[t]his jurisdiction of the agency should not be exercised if the misconduct was the subject of a judicial disciplinary proceeding in which there has been a final determination by the court, unless the court reserved to the agency the right to pursue lawyer discipline in accordance with this subsection.” It is significant that our rule uses the permissive limitation “should not be exercised” rather than the mandatory prohibition “shall not be exercised.” In my view, the rule does not present a complete jurisdictional bar to lawyer discipline of a former judge; instead, it sets forth the policy of this court that nonetheless yields to the disciplinary agency some measure of discretion in deciding whether to pursue lawyer discipline in the absence of a specific reservation to that effect by the court in the judicial discipline | ^proceeding. In other words, as a matter of policy, while the disciplinary agency ordinarily declines to pursue lawyer discipline charges in the absence of a reservation of rights, the agency is not divested of jurisdiction to consider such charges should it wish to do so. This is particularly appropriate in cases where additional facts (such as subsequent criminal charges) develop after the court has rendered its decision of judicial discipline.

Furthermore, if we were to view Supreme Court Rule XIX, § 6(B) as jurisdictional in nature, such an interpretation could run afoul of La. Const, art. V, § 25(D), which provides:

Other Disciplinary Action. Action against a judge under this Section shall not preclude disciplinary action against him concerning his license to practice law.

By using the mandatory term “shall,” our constitution makes it clear that imposition of discipline upon a judge does not preclude a lawyer disciplinary action against him. Thus, I do not interpret Supreme Court Rule XIX, § 6(B) as creating — in the absence of a reservation of rights to the disciplinary agency — an across-the-board jurisdictional impediment to the imposition of lawyer discipline upon a removed judge.

JONES, Justice Pro Tempore,

dissenting.

| , Although the Court did not reserve to the office of Disciplinary Counsel the right to institute lawyer disciplinary proceedings against respondent in King I, I find that the ODC had the discretion to do so. That is particularly true where, as here, a subsequent conviction of a felony, based on the same underlying conduct, follows removal of a judge.

Clearly, the ODC moved against Respondent in the present manner due to the criminal conviction following removal. However, the district judge deferred imposition and execution of a sentence under C.Cr.P. Art. 893 and place respondent on inactive probation for six months; he, thereafter, set aside the conviction and expunged the record.

Accordingly, Respondent does not now stand convicted of any crime and may be considered to have no criminal record. In my view, the fact that imposition and execution of a sentence was deferred, a short inactive probationary period was imposed, and the record was expunged, should be considered as an additional strong mitigating factor, supporting a downward departure from the baseline sanction of disbarment.

On these facts, I find that a suspension of three years, retroactive to the date of Respondent’s interim suspension, June 26, 2007, is appropriate. Disbarment, in light of the aggravating and mitigating factors in this case, is unduly harsh and is not a result required by any prior decision of this Court.

Accordingly, I respectfully dissent.

       Judge Benjamin Jones, of the Fourth Judicial District Court, assigned as Justice Pro Tem-pore, participating in the decision.

      . In re: King, 03-1412 (La. 10/21/03), 857 So.2d 432 (King I).

        . LSA-R.S. 40:983 then provided, in pertinent part, that:
      Whenever any person who has not previously been convicted of any offense under this part pleads guilty to or is convicted of having violated R.S. 40:966 C, 40:967 C, 40:968 C, 40:969 C, 40:970 C of this part, and when it appears that the best interests of the public and of the defendant will be served, the court may, without entering a judgment of guilt and with the consent of such person, defer further proceedings and place him on probation upon such reasonable terms and conditions as may be required.
      Discharge and dismissal under this section shall be without court adjudication of guilt and shall not be deemed a conviction for purposes of disqualifications or disabilities imposed by law upon conviction of a crime, including the additional penalties imposed for second or subsequent convictions under R.S. 40:982.


author: WEIMER, J.,

text:
    STATE of Louisiana, v. Michael ANDERSON.
    No. 2010-KK-292.
    Supreme Court of Louisiana.
    Feb. 6, 2010.
   In re Anderson, Michael; — defendant; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. B, No. 472-217; to the Court of Appeal, Fourth Circuit, No. 2010-K-0170.

Stay denied; writ denied.

JOHNSON, J., would grant the stay and writ, and assigns reasons.

WEIMER, J.,

concurs in part and dissents in part. I concur in the denial of the requested stay, but dissent from the denial of the defendant’s writ application. I would grant that application and order the trial court to conduct an in camera inspection to determine if there is additional undisclosed Brady material in the District Attorney’s file.

JOHNSON, J. would grant the writ application for the following reasons.

Given the serious nature of both the alleged misconduct of the State and the gravity of the sentence imposed, I would grant the defendant’s writ application, and order the trial court to conduct an in camera inspection of the District Attorney’s file to determine whether it contains additional undisclosed Brady material.

Clearly, there is no “work product” exception for Brady material in either federal or state law. The accused has a constitutional right to exculpatory material that supersedes state legislative statutory privilege. Considering the recently disclosed evidence of the sole eyewitness’ visual impairments, I would grant a stay to allow the defendant his right to compulsory process in order to develop his claims in support of his motion for New Trial. Where a “witness may labor under a deficiency,” the defense should be afforded some latitude” in exploring the deficiency in order to satisfy the Sixth Amendment.

      . Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

      . State v. Robinson, 817 So.2d 1131, 1137 (La.2002).


text:
    In re William H. SIBLEY.
    No. 2010-OB-0668.
    Supreme Court of Louisiana.
    April 20, 2010.
   ORDER

On March 12, 2010, respondent pled guilty in the United States District Court for the Southern District of Texas to one count of conspiracy to launder monetary instruments. Respondent now seeks to permanently resign from the practice of law in lieu of discipline. The Office of Disciplinary Counsel (“ODC”) has concurred in respondent’s petition.

Having considered the Petition for Permanent Resignation from the Practice of Law filed by William Hugh Sibley, Louisiana Bar Roll number 12057, and the concurrence thereto filed by the ODC,

IT IS ORDERED that the request of William Hugh Sibley for permanent resignation in lieu of discipline be and is hereby granted, pursuant to Supreme Court Rule XIX, § 20.1 and Rule 5.5 of the Rules of Professional Conduct.

IT IS FURTHER ORDERED that William Hugh Sibley shall be permanently prohibited from practicing law in Louisiana or in any other jurisdiction in which he is admitted to the practice of law; shall be permanently prohibited from seeking readmission to the practice of law in this state or in any other jurisdiction in which he is admitted; and shall be permanently prohibited from seeking admission to the practice of law in any jurisdiction.

/s/ John L. Weimer Justice, Supreme Court of Louisiana


author: PER CURIAM.

text:
    In re Donald G. CAVE.
    No. 2010-B-0692.
    Supreme Court of Louisiana.
    April 23, 2010.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

The Office of Disciplinary Counsel (“ODC”) commenced an investigation into allegations that respondent commingled client funds with law firm funds held in a trust account. Prior to the filing of formal charges, respondent and the ODC submitted a joint petition for consent discipline, in which the parties stipulated respondent has violated Rule 1.15 of the Rules of Professional Conduct. Having reviewed the petition,

IT IS ORDERED that the Petition for Consent Discipline be accepted and that Donald G. Cave, Louisiana Bar Roll number 4073, be suspended from the practice of law for a period of six months, fully-deferred, followed by a two-year period of supervised probation governed by the terms and conditions set forth in the Petition for Consent Discipline. The probationary period shall commence from the date respondent, the ODC, and the probation monitor execute a formal probation plan. Any failure of respondent to comply with the conditions of probation, or any misconduct during the probationary period, may be grounds for making the deferred suspension executory, or imposing additional discipline, as appropriate.

IT IS FURTHER ORDERED 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 the opinion.


text:
    In re Kenneth A. BACK.
    No. 2009-B-2636.
    Supreme Court of Louisiana.
    April 23, 2010.
   1,ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

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

FORMAL CHARGES

Count I — The Bourque Matter

In February 2003, Darrel and Carolyn Bourque hired respondent to handle the succession of Darrel’s father. Shortly thereafter, the Bourques hired respondent to handle the succession of Darrel’s stepmother. Darrel was executor of both estates.

Respondent repeatedly failed to communicate with Darrel. He also failed to provide the opposing counsel with discovery responses and failed to arrange for real estate appraisals. Consequently, the real estate was sold below market value, and Darrel was sued on a lesion claim. Respondent informed the Bourques he would 12represent them in the lesion claim but never performed any work on the matter. Ultimately, the Bourques had to hire another attorney to represent Darrel.

In July 2007, Carolyn filed a disciplinary complaint against respondent, who failed to respond to the complaint in writing. Accordingly, the ODC issued a subpoena to obtain his sworn statement. During the December 2007 sworn statement, respondent admitted he did not diligently handle the successions. He did, however, obtain a judgment of possession in the first succession. He also admitted he failed to communicate with Darrel. The ODC requested that respondent provide it with written documentation regarding the status of the second succession. Respondent failed to provide the documentation, despite numerous requests to do so.

The ODC alleged 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(a) (failure to communicate with a client), and 8.1(c) (failure to cooperate with the ODC in its investigation).

Count II — The Benoit Matter

In 2005, Steven Benoit hired respondent to represent him in an ongoing defamation lawsuit, paying him a $1,500 deposit. The defendant filed a motion for summary judgment, but respondent failed to file a response to the motion. However, he did appear for the hearing on the motion. After the court granted the defendant’s motion for summary judgment, respondent failed to inform Mr. Benoit of the summary judgment and failed to appeal the judgment on Mr. Benoit’s behalf. Mr. Be-noit made numerous attempts to contact respondent during the representation, but respondent failed to return his phone calls.

lain September 2007, Mr. Benoit filed a disciplinary complaint against respondent, who failed to respond to the complaint in writing. Accordingly, the ODC issued a subpoena to obtain his sworn statement. During the December 2007 sworn statement, respondent admitted he did not inform Mr. Benoit of the status of his case. The ODC requested that respondent provide it with a copy of the summary judgment hearing transcript, a complete accounting of his time spent on the matter, and a copy of any correspondence to Mr. Benoit. Respondent failed to provide the documentation, despite numerous requests to do so.

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

DISCIPLINARY PROCEEDINGS

In October 2008, the ODC filed two counts of formal charges against respondent. Respondent failed to answer the formal charges. Accordingly, the factual allegations contained therein were deemed admitted and proven by clear and convincing evidence pursuant to Supreme Court Rule XIX, § 11(E)(3). No formal hearing was held, but the parties were given an opportunity to file with the hearing committee written arguments and documentary evidence on the issue of sanctions. Respondent filed nothing for the hearing committee’s consideration.

Hearing Committee Report

After considering the ODC’s deemed admitted submission, the hearing committee made numerous factual findings, including the following:

146. In a December 13, 2007 sworn statement, respondent admitted he did not diligently handle the successions in the Bourque matter and failed to communicate with the executor.
8. In a December 13, 2007 sworn statement, respondent admitted he had not informed Mr. Benoit of the status of his case.
18. The clear and convincing evidence establishes respondent knowingly and intentionally violated Rules 1.3, 1.4(a), and 8.1(c) of the Rules of Professional Conduct.
19. In sum, the committee found clear and convincing evidence to establish respondent has knowingly, intentionally, and repeatedly violated the Rules of Professional Conduct, as alleged in the formal charges.

Based on these findings, the committee determined respondent neglected legal matters, failed to communicate with his clients, and failed to cooperate with the ODC in its investigation of the complaints filed against him. Respondent knowingly and intentionally violated duties owed to his clients, the legal system, and the legal profession. He caused harm to his clients, the ODC, and others. After examining the ABA’s Standards for Imposing Latuyer Sanctions, the committee determined the baseline sanction is suspension.

The committee 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, vulnerability of the victim, and substantial experience in the practice of law (admitted 1985). In mitigation, the committee found that respondent has no prior disciplinary record.

| ñAfter also considering this court’s prior jurisprudence involving 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.

Disciplinary Board Recommendation

After review, the disciplinary board determined the hearing committee’s factual findings are supported by the factual allegations in the formal charges, which are deemed admitted, and/or by the documentary evidence submitted by the ODC in support of those allegations. The board also found the factual allegations have been deemed admitted and proven by clear and convincing evidence. The board determined the committee correctly concluded that respondent violated the Rules of Professional Conduct as alleged in the formal charges.

The board further determined respondent violated duties owed to his clients, the legal system, and the legal profession. His conduct was negligent and knowing. He caused substantial and potentially seri: ous harm'. The board agreed with the committee that the baseline sanction is suspension. The board also adopted the aggravating and mitigating factors found by the committee.

After also considering this court’s prior jurisprudence involving similar misconduct, the board recommended respondent be suspended from the practice of law for one year and one day. The board further recommended respondent be ordered to make restitution in the Bourque matter.

One board member dissented in part and would recommend an eighteen-month suspension “for the serious misconduct [respondent] committed in the handling of his |ficlients’ cases, and for the serious failure to cooperate with ODC in the investigation of two matters.”

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

DISCUSSION

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

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

The record of this deemed admitted matter indicates respondent neglected three legal matters, failed to communicate with two clients, and failed to cooperate with the ODC in its investigations. Based on these facts, it is clear respondent has violated the Rules of Professional Conduct as charged.

|7Having 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 knowingly violated duties owed to his clients, the legal system, and the legal profession. His actions caused actual harm to his clients, and his failure to cooperate caused harm to the disciplinary system. The ABA’s Standards for Imposing Lawyer Sanctions establish suspension as the baseline sanction for such misconduct.

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

Turning to the issue of an appropriate sanction, we find the jurisprudence supports a suspension from the practice of law for one year and one day in cases involving similar misconduct. For example, in In re: Engum, 09-1619 (La.10/28/09), 21 So.3d 926, an attorney neglected legal matters, failed to communicate with clients, failed to timely account for or refund unearned fees, and failed to fully cooperate with the ODC in its investigations. For this misconduct, we suspended the | ^attorney from the practice of law for one year and one day. The disciplinary board’s recommendation in the instant case is consistent with our holding in Engum.

Accordingly, we will adopt the disciplinary board’s recommendation and suspend respondent from the practice of law for one year and one day, thereby necessitating he make a formal application for reinstatement at the conclusion of his suspension. Additionally, we will order respondent to make restitution to the Bo-urques.

DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, it is ordered that Kenneth A. Back, Louisiana Bar Roll number 16796, be and he hereby is suspended from the practice of law for one year and one day. It is further ordered that respondent make restitution to Darrel and Carolyn Bourque. 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 the opinion.

      .Respondent has been ineligible to practice law since July 2008 for failing to comply with mandatory continuing legal education requirements. He is also ineligible for failing to pay bar dues and the disciplinary assessment, and for failing to file his trust account disclosure form.

      . According to the disciplinary complaint, respondent charged a total of $8,000 to handle the succession of Darrel’s father.

      . According to the disciplinary complaint, respondent charged a total of $1,800 to handle the succession of Darrel's stepmother.


text:
    STATE of Louisiana v. Kenneth SINGLETON.
    No. 2009-KP-1269.
    Supreme Court of Louisiana.
    April 23, 2010.
   PER CURIAM.

1, Granted. The trial court may have erred in 2007 by setting aside relator’s guilty plea entered in 1995, but the state did not seek review of that ruling, which has now long since become final. Compare State v. Jarrow, 04-0483 (La. 9/24/04 (La.9/24/04), 882 So.2d 1160 (“Relator’s filing below, properly considered as an application for post-conviction relief was untimely by a matter of 23 years and should not have been considered on the merits by the district court.”). It further appears that the state affirmatively acquiesced in that ruling by dismissing the prosecution several months after the court made its ruling. The district court was therefore not free to ignore the effect of that 2007 judgment in denying relator’s motion to vacate his habitual offender adjudication and sentence in 2009, on grounds that the prior conviction rendering him a second offender had been vacated and the prosecution dismissed. To the extent that relator’s habitual offender sentence exceeds the maximum penalty the trial court could have imposed for the underlying offense |2without enhancement of sentence under La.R.S. 15:529.1, relator’s application is in the nature of a motion to set aside an illegal sentence as a matter of La.C.Cr.P. art. 882, which permits correction of a sentence in excess of what the law provides “at any time.” See State ex rel. Johnson v. Day, 92-0122 (La.5/13/94), 687 So.2d 102.

The ruling below is therefore vacated and this case is remanded to the district court for reconsideration of relator’s application consistent with the views expressed herein.

VICTORY and CLARK, JJ., would deny with reasons.

CLARK, J., would deny.

hThe application is untimely and not cognizable on collateral review. La. C.Cr.P. art 930.8; State ex rel Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; La.C.Cr.P. art 930.3; State ex rel. Melinie v. State, 93-1380 (La.1/12/96), 665 So.2d 1172.

      . Kimball, C.J., not participating.


text:
    In re Kevin Patrick MONAHAN.
    No. 2010-OB-0725.
    Supreme Court of Louisiana.
    April 27, 2010.
   ORDER

The Office of Disciplinary Counsel (“ODC”) has filed two sets of formal charges against respondent and is conducting an investigation into four new complaints lodged against him. In addition, the ODC has received information indicating that respondent was charged by federal prosecutors with illegal possession of marijuana and Oxycodone. Respondent now seeks to permanently resign from the practice of law in lieu of discipline. The ODC has concurred in respondent’s petition.

Having considered the Petition for Permanent Resignation from the Practice of Law filed by Kevin Patrick Monahan, Louisiana Bar Roll number 1978, and the concurrence thereto filed by the ODC,

IT IS ORDERED that the request of Kevin Patrick Monahan for permanent resignation in lieu of discipline be and is hereby granted, pursuant to Supreme Court Rule XIX, § 20.1 and Rule 5.5 of the Rules of Professional Conduct.

IT IS FURTHER ORDERED that Kevin Patrick Monahan shall be permanently prohibited from practicing law in Louisiana or in any other jurisdiction in which he is admitted to the practice of law; shall be permanently prohibited from seeking readmission to the practice of law in this state or in any other jurisdiction in which he is admitted; and shall be permanently prohibited from seeking admission to the practice of law in any jurisdiction.

/s/ Marcus R. Clark Justice, Supreme Court of Louisiana


text:
    In re Jelpi P. PICOU, Jr.
    No. 2010-OB-0713.
    Supreme Court of Louisiana.
    April 27, 2010.
   ORDER

In February 2010, respondent pled guilty to five counts of theft. He now seeks to permanently resign from the practice of law in lieu of discipline. The Office of Disciplinary Counsel (“ODC”) has concurred in respondent’s petition.

Having considered the Petition for Permanent Resignation from the Practice of Law filed by Jelpi P. Picou, Jr., Louisiana Bar Roll number 18746, and the concurrence thereto filed by the ODC,

IT IS ORDERED that the request of Jelpi P. Picou, Jr. for permanent resignation in lieu of discipline be and is hereby granted, pursuant to Supreme Court Rule XIX, § 20.1 and Rule 5.5 of the Rules of Professional Conduct.

IT IS FURTHER ORDERED that Jel-pi P. Picou, Jr. shall be permanently prohibited from practicing law in Louisiana or in any other jurisdiction in which he is admitted to the practice of law; shall be permanently prohibited from seeking readmission to the practice of law in this state or in any other jurisdiction in which he is admitted; and shall be permanently prohibited from seeking admission to the practice of law in any jurisdiction.

/s/ Jeffrey P. Victory Justice, Supreme Court of Louisiana


text:
    STATE of Louisiana v. Allen COLEMAN.
    No. 2010-KK-963.
    Supreme Court of Louisiana.
    April 27, 2010.
   ORDER

Writ granted in part, otherwise denied. The defendant is to be immediately released from custody per the bond for $15,000 previously posted. The Orleans Public Defender is ordered not to attempt to represent the defendant. Having failed to show he is indigent, the defendant must proceed without counsel unless he hires one. The contempt ruling of the commissioner is reversed. The failure to hire counsel under the circumstances presented does not constitute contempt of the court.

/s/ Jeffrey P. Victory Justice, Supreme Court of Louisiana

KIMBALL, C.J., did not participate in the deliberation of this decision.


text:
    In re George S. BOURGEOIS, Jr.
    No. 2010-OB-0983.
    Supreme Court of Louisiana.
    April 30, 2010.
   ORDER

Considering the Petition for Transfer to Disability Inactive Status filed by the Office of Disciplinary Counsel,

IT IS ORDERED that George S. Bourgeois, Jr., Louisiana Bar Roll number 16821, be and he hereby is transferred to disability inactive status.

IT IS FURTHER ORDERED that pursuant to Supreme Court Rule XIX, § 27, Leslie J. Schiff, Stephen M. Morrow, and Francis A. Olivier, III are hereby appointed to conduct an inventory of respondent’s files and to take action as appropriate to protect the interests of respondent’s clients.

Pursuant to Supreme Court Rule XIX, § 26(E), this order shall be effective immediately.

/s/ John L. Weimer Justice, Supreme Court of Louisiana


text:
    STATE of Louisiana v. Janis WALDER.
    No. 2009-K-2224.
    Supreme Court of Louisiana.
    April 30, 2010.
   PER CURIAM.

11 Granted. The decision of the court of appeal is reversed insofar as it vacated the amount of restitution to various aggrieved parties ordered by the trial court as a condition of defendant’s probation following her conviction on 123 counts of cruelty to animals in violation of La. R.S. 14:102.1, and directed the court to reopen the restitution hearing for purposes of determining “the amount of expenses incurred from the date of the seizure of the animals in question to the date of the transfer of ownership of the animals to the parish.” State v. Walder, 09-0716, p. 11 (La.App. 1st Cir.9/11/09) (unpub’d)(Whipple, J., dissenting).

A majority on the court of appeal panel found that R.S. 14:102.2, “the only statute fully authorizing the type of expenses involved in this case, clearly contemplates continued ownership of the seized animals.” Walder, 09-0716 at 10. However, we agree with the dissenting views of Judge Whipple that defendant’s |2execution of an agreement with parish authorities only six days after seizure of the animals, by which she explicitly transferred the sole ownership and control of the animals to the parish, which then assumed responsibility for their welfare and care pending disposition, did not limit the discretion of the trial judge to impose, as a condition of probation following conviction, restitution “to the aggrieved party for damage or loss caused” by the offense. La.C.Cr.P. art. 895(A)(7). In the case of the crime of cruelty to animals, a trial court may order forfeiture of the animal following defendant’s conviction, and it may also order “the payment of any reasonable or additional costs incurred in the boarding or veterinary treatment of any seized animal prior to its disposition, whether or not a bond was posted by the defendant.” La. R.S. 14:102.2(D). Disposition entails not the formal transfer of ownership to the state or parish authorities, whether by agreement or by forfeiture, but the “sale, adoption, or euthanasia” of the animal. La. R.S. 14:102.2(C). In the present case, as Judge Whipple observed, the costs assessed against defendant “were incurred solely as a result of the defendant’s criminal acts and were incurred directly in fulfillment of the state’s statutory duties to appoint a veterinarian or other suitable custodian to provide the mandated care and boarding until final disposition.” Walder, 09-0716 at 4 (Whipple, J., dissenting).

We therefore reinstate the restitution order originally entered by the court on April 28, 2005, crediting defendant with $14,876 following sale of the horses, as reaffirmed by the court in its order of February 5, 2009.

      . Kimball, C.J., Hot participating.


text:
    In re Robert C. BASINGER.
    No. 2010-OB-0627.
    Supreme Court of Louisiana.
    May 4, 2010.
   ORDER

Considering the application of petitioner, Robert C. Basinger,

IT IS ORDERED that petitioner’s application be and hereby is denied at this time. Upon satisfactorily passing the bar examination, petitioner may apply to this court for the appointment of a commissioner in accordance with Supreme Court Rule XVII, § 9, to take evidence and report to this court as to whether petitioner has the appropriate character and fitness to be admitted to the bar and allowed to practice law in the State of Louisiana.

/s/ Marcus R. Clark Justice, Supreme Court of Louisiana


text:
    STATE of Louisiana, Appellant, v. Ronnie BROWN, Appellee.
    No. 45,138-KW.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 15, 2009.
    Jonathan M. Stewart, District Attorney, Douglas Leon Stokes, Jr., Assistant District Attorney, for Appellant.
    Darrell Robert Avery, Jonesboro, for Appellee.
    Before WILLIAMS, PEATROSS and DREW, JJ.
   |, WRIT GRANTED; REVERSED AND REMANDED.

The search, occurring on January 5, 2009, is legal, at least on this record.

First, Arizona v. Gant, — U.S. -, 129 S.Ct. 1710, 173 L.Ed.2d 485 (4/21/09), may or may not be applicable to searches already conducted as the date of the decision. Gant has admittedly now restricted New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981), for criminal searches occurring after the date of the opinion. In this writ application, however, it is of no moment, because the testimony at the motion to suppress establishes that on January 5, 2009, Deputy Shultz’s vehicular search complied with the later requirements of Gant, because the arres-tee (Ronnie Brown):

1. Had just been arrested;
2. Was still near the 18-wheeler; and
3. Was not shackled until after the discovery of the drugs.

Second, the law until April 21, 2009, (the date of the Gant opinion) was exactly as the deputy told the defendant. On January 5, 2009, it is crystal-clear that the passenger compartment could be searched incident to the arrest of a vehicular occupant, so long as the arrestee was still relatively near the vehicle, and had just recently been in the vehicle, as per Thornton v. United States, 541 U.S. 615, 124 S.Ct. 2127, 158 L.Ed.2d 905 (2004), though the USSC gave us in Thornton no guidelines as to how far was too far, nor how long was too long. In State v. Canezaro, 957 So.2d 136 (La.2007), a vehicular search incident to arrest was approved by the La. Supreme Court (18.5 months before the search of R. Brown’s 18-wheeler cab and 22 months before Gant) when, at the moment of the search incident to arrest, the two defendants were arrested, shackled, and locked in the police car at the scene, as per Belton.

Third, the deputy testified that he received a second consent — and he was the only witness at the motion to suppress. The defendant did not seek to controvert his second consent by testifying for the limited purpose of the motion to suppress. Therefore, nothing in this sparse record refutes the validity of the second consent. The record may be fuller on appeal, in case of a conviction.

Fourth, if what the deputy said (about his legal right to search without consent) turns out not to have been the law on January 5, 2009, he was still in good faith [as per United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984) ] to say what the law allowed at the time (nobody knew or could have known what Gant was going to later hold), thus his securing of consent was valid, being obtained in good faith.

Fifth, the declaration by the defendant as to a firearm being in the cab presented a potential safety concern when leaving the vehicle in a parking lot with public access. The officer was objectively reasonable in removing the weapon to protect the public. See State v. White, 1 So.3d 439 (La.1/21/09).

The court is aggrieved to some extent that the state’s application was not in strict compliance with U.R.C.A. 4-4. Further, with a trial date of October 19, and the writ application not being filed until October 14, the applicant should have requested expedited consideration.

The ruling of the trial court, granting the motion to suppress, is reversed, and the case is remanded for further proceedings.

WILLIAMS, J., dissents.


author: PEATROSS, J. BROWN, Chief Judge,

text:
    Willie Faye FOX, Plaintiff-Appellant, v. REYNOLDS INDUSTRIAL CONTRACTORS, Defendant-Appellee.
    Nos. 44,938-WCA, 44,939-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 27, 2010.
    Rehearing Denied Feb. 25, 2010.

      Fischer & Associates by Mark K. Man-no, Shreveport, for Appellant.
    Snellings, Breard, Sartor, Inabnett & Trascher, L.L.P. by Donald J. Anzelmo, Monroe, for Appellees, Reynolds Industrial Contractors & LUBA Casualty Insurance Co.
    Before BROWN, PEATROSS & MOORE, JJ.
   PEATROSS, J.

| Claimant, Willie Faye Fox, appeals the judgment of the workers’ compensation judge finding that her claim for workers’ compensation benefits was barred by res judicata and dismissing her claim with prejudice. For the reasons stated herein, we affirm in part, reverse in part and remand.

FACTS

On January 26,1996, Ms. Fox was working as a secretary for Defendant, Reynolds Industrial Contractors (“Reynolds”), when a hammer fell on her foot causing injury as she was moving boxes on which the hammer was resting. As a result of her injury, Ms. Fox received temporary total disability benefits through November 1, 1997, and then supplemental earnings benefits (“SEBs”) through September 30, 2001. On November 26, 2001, Reynolds filed a disputed claim under La. R.S. 23:1208 seeking forfeiture of any further benefits for alleged false statements and misrepresentations made by Ms. Fox in furtherance of a claim for benefits. On October 3, 2002, Ms. Fox filed a disputed claim for compensation seeking reinstatement of wage and medical benefits, docket # 01-08640. In addition, Ms. Fox also sought penalties and attorney fees. The disputed claims were consolidated and heard on July 30, 2003. Two years later, the workers’ compensation judge (“WCJ”) ordered forfeiture of any further benefits after September 30, 2001, due to fraud on the part of Ms. Fox and further denied Ms. Fox’s claim for penalties and attorney fees.

On appeal, this court reversed that portion of the judgment forfeiting benefits, awarded Ms. Fox SEBs of $150 per week for a period of six weeks and affirmed the denial of penalties and attorney fees. Reynolds Industrial Contractors v. Fox, 41,051 (La.App.2d Cir.6/28/06), 935 So.2d 783 (“Reynolds I”). No medicals were awarded by this court. Id.

After discussing the merits of the fraud determination in Reynolds I, not relevant herein, we explained the injury sustained by Ms. Fox. Dr. Kathleen Majors of Pain Management Consultants began treating Ms. Fox in February 1999 and diagnosed her injury as Reflexive Sympathetic Dystrophy (“RSD”). Dr. Majors was deposed in 2003 for purposes of the first disputed claim for compensation. A review of the unopposed medical testimony of Dr. Majors establishes that Ms. Fox experienced pain, swelling and difficulty walking on her right foot. According to Dr. Majors’ deposition testimony, these symptoms would sometimes improve, but the pain would “wax and wane” long after the injury would seem to have healed.

Regarding this court’s determination in Reynolds I that the award to Ms. Fox would be limited in duration to six weeks, this court explained:

Dr. Majors’ deposition [of 2003] clearly establishes Fox’s ability to return to light duty sedentary employment with a minor foot restriction, initially at a part-time level for a four to six week period. Fox’s questionable credibility and the lack of proof of her inability to work full-time after the six week term precludes any additional award of benefits after the six week period. On this record, we therefore find that Fox has only established an inability to earn 90% of her pre-accident wages for a six week period.

Id. Our review of the deposition testimony of Dr. Majors supports a limitation of the award in Reynolds I to six weeks. Dr. Majors related her opinion that Ms. Fox would always be limited to sedentary work and that it was her recommendation that she begin part-time, four to six hours per day, |swith her foot propped up approximately six inches while she worked. Dr. Majors then reiterated a notation from her report that she would then reevaluate Ms. Fox’s work restrictions after a four to six-week period. In this regard, the majority in Reynolds I pointed out, in footnote six of the opinion, that “Fox is not barred from seeking a modification of this award for prospective benefits due to any relevant change in her condition,” citing La. R.S. 28:1310.8, infra, and Jackson v. Iberia Parish Government, 98-1810 (La.4/16/99), 732 So.2d 517.

On July 12, 2007, through new counsel, Ms. Fox filed a second disputed claim for compensation under a new docket number, # 07-05431, based on the same injury. In response, Reynolds filed peremptory exceptions of prescription and res judicata, which were heard on April 18, 2008. In support of its exception of res judicata, Reynolds argued that (1) the denial of medical benefits by this court was clearly res judicata and (2) this court’s award of six weeks of SEBs had become a final judgment as no writs were taken to the supreme court. It further asserted that the elements of res judicata based on La. R.S. 13:4231 were satisfied and that all issues and claims contained in the second dispute were identical to those raised in the prior disputed claim for compensation previously adjudicated. In addition, Reynolds focused on the unfavorable credibility determination of the majority regarding Ms. Fox’s testimony in Reynolds I, arguing that this court’s limitation of benefits to six weeks was, in fact, a denial of any other benefits for this injury.

|4Ms. Fox countered by arguing that, historically, res judicata has not been applied in the workers’ compensation setting and alternatively asserted that the current claim was not identical to the prior claim from 2001 because she was now seeking medical and indemnity benefits (plus attorney fees and penalties) for a different time period of disability, i.e., benefits for continuing disability after the date of trial in 2003. In addition, in her memorandum opposing the exceptions, Ms. Fox relied heavily on this court’s statement in footnote six of Reynolds I, supra, wherein the court mentions the right of a claimant to modification of an award under La. R.S. 23:1310.8, which provides as follows:

A. (1) The power and jurisdiction of the workers’ compensation judge over each case shall be continuing and he may, upon application by a party and after a contradictory hearing, make such modifications or changes with respect to former findings or orders relating thereto if, in his opinion, it may be justified, including the right to require physical examinations as provided for in R.S. 23:1123; however, upon petition filed by the employer or insurance carrier and the injured employee or other person entitled to compensation under the Worker’s Compensation Act, a workers’ compensation judge shall have jurisdiction to consider the proposition of whether or not a final settlement may be had between the parties presenting such petition, subject to the provisions of law relating to settlements in workers’ compensation cases.
(2) The workers’ compensation judge may have a full hearing on the petition, and take testimony of physicians and others relating to the permanency or probable permanency of the injury, and take such other testimony relevant to the subject matter of such petition as the workers’ compensation judge may require. The workers’ compensation judge may consider such petition and dismiss the same without a hearing if in his judgment the same shall not be set for a hearing.
(3) The expenses of such hearing or investigation, including necessary medical examinations, shall be paid by the employer or insurance carrier, and such expenses may be included in the Rfinal award. If the workers’ compensation judge decides it is in the best interest of both parties to said petition that a final award be made, a decision shall be rendered accordingly and the workers’ compensation judge may make an award that shall be final as to the rights of all parties to said petition and thereafter the workers’ compensation judge shall have no jurisdiction over any claim for the injury or any results arising from same. If the workers’ compensation judge should decide the case should not be finally settled at the time of the hearing, the petition shall be dismissed without prejudice to either party, and the workers’ compensation judge shall have the same jurisdiction over the matter as if said petition had not been filed.
B. Upon the application of any party in interest, on the yround of a chanye in conditions, the workers’ compensation judye may, atter a contradictory heariny, review any award, and, on such review, may make an award ending, diminishing, or increasing the compensation previously awarded, subject to the maximum or minimum provided in the Workers’ Compensation Act, and shall state his conclusions of fact and rulings of law, and the director shall immediately send to the parties a copy of the award.
C. This Section shall not apply to the calculation of the monthly benefit amount pursuant to R.S. 23:1221(3).
D. A petition to modify a judgment awarding benefits shall be subject to the prescriptive limitations established in R.S. 23:1209.
E. A judgment denying benefits is res judicata after the claimant has exhausted his rights of appeal.
F. An award of temporary total disability benefits may be modified by the filing of a motion for modification with the same court that awarded the benefits and under the same caption and docket number without the necessity of filing a new dispute and appearing at a mediation conference. The court shall expedite the hearing on the modification proceedings in accordance with the procedure established in R.S. 23:1124(B). (Emphasis added.)

The WCJ took the exceptions under advisement and trial in the matter was set for July 8, 2008. In the interim, on June 24, 2008, counsel for Ms. Fox deposed Dr. Majors a second time. Dr. Majors testified that RMS. Fox’s condition had remained “unchanged” from the time of the previous deposition in 2003, but that Ms. Fox continued to be on sedentary work restrictions and in pain management therapy due to her continued disability resulting from the 1996 work-related injury. Dr. Majors testified that “[Ms. Fox] still takes pretty much the same medication” and that “her condition basically is unchanged.” Dr. Majors agreed, however, that it was “a change” from her previous testimony that the extent of Ms. Fox’s disability had now increased to more than five years as opposed to the initial six-week restrictive period. She further testified that it her opinion at the time of this second deposition was that the restrictions to sedentary work would be permanent in nature.

In her pre-trial brief, Ms. Fox then cited Dr. Majors’ 2008 deposition testimony (which had not yet been filed in the record), in support of her argument that she was entitled to a modification of the six-week award of this court in Reynolds I due to a change in condition under section 1310.8. She asserted that the duration of her incapacity was now deemed to be permanent as opposed to the six-week trial period initially recommended by Dr. Majors and which formed the basis for the award in Reynolds I. Soon thereafter, Ms. Fox filed a motion to consolidate the two suit records (# 01-08640, Reynolds I, and # 07-05431, the current suit) and trial was ultimately reset for August 5, 2008. On that date, the WCJ granted the motion to consolidate and sustained the exception of res judicata. The WCJ did not 17rule on the exception of prescription, finding it moot in light of his ruling that the claim was barred by res judicata. Immediately following the oral ruling, the June 2008 deposition of Dr. Majors was admitted into evidence, unopposed, as an attachment to Ms. Fox’s motion to consolidate.

Ms. Fox now appeals the judgment sustaining the exception of res judicata relying on the language in footnote six of Reynolds I and the testimony of Dr. Majors regarding the extension of the duration of her disability.

DISCUSSION

The party who urges the exception of res judicata bears the burden of proving its essential elements by a preponderance of the evidence. If there is any doubt as to its applicability, the exception must be overruled. Hines v. Smith, 44,-285 (La.App.2d Cir.8/12/09), 16 So.3d 1234, writ denied, 09-2001 (La.12/11/09), 23 So.3d 922. The standard of review of a ruling sustaining an exception of res judi-cata is manifest error when the exception is raised prior to the case being submitted and evidence is received from both parties. Id., citing State ex rel. Murphy v. Haren, 42,098 (La.App.2d Cir.5/16/07), 957 So.2d 869, unit denied, 07-1285 (La.9/21/07), 964 So.2d 345; Floyd v. City of Bossier City, 38,187 (La.App.2d Cir.3/5/04), 867 So.2d 993.

Medical Benefits

A valid and final judgment is conclusive between the same parties except on appeal or other direct review. Johnson v. Fresenius Medical Care, 43,-952 (La.App.2d Cir.2/4/09), 4 So.3d 187. A judgment in favor of either party is conclusive in any subsequent action between them with respect to any issue actually litigated and determined. La. R.S. 13:4231. A judgment denying benefits is res judicata after the claimant has exhausted his rights of appeal. La. R.S. 23:1310.8(E). Under La. R.S. 23:1310.8(B), a claimant cannot seek modification of an adverse judgment denying benefits because the statutory language requires a prior award of compensation. Johnson v. Fresenius Medical Care, supra, citing Matthews v. Farley Industries, 95-1387 (La.2/28/96), 668 So.2d 1144. Accordingly, we find that the judgment of this court in Reynolds I, from which appeal rights have been exhausted, precludes the current claim for medical benefits under the doctrine of res judicata. See Gardache v. City of New Orleans Police Dept., 07-2496 (La.3/24/08), 977 So.2d 891.

Indemnity Benefits

The claim for indemnity benefits is a more difficult question. Section 1310.8(B) expressly provides for the right of a party to seek modification of a compensation award on the grounds of a change in condition. In Jackson v. Iberia Parish, supra, the supreme court explained that “the modification statute is to be liberally construed in favor of the claimant, and ... through |9it, the Legislature did not intend that a judgment determining the extent of a claimant’s disability be res judicata. ...” In that case, the supreme court held that Jackson’s claim to modify a previous compensation award was not barred by res judicata even where that judgment had determined that Jackson’s disability had ceased prior to trial and where the judgment had been satisfied. Following a thorough review of the jurisprudence leading up to its decision in Jackson, the supreme court explained:

Moreover, inherent in the concept of res judicata is the principle that a party had the opportunity to raise a claim in the first adjudication, but failed to do so. Indeed, the issue of Jackson’s disability at the time of trial was amply litigated. Jackson’s original judgment fixed the duration of his disability at the date of its rendition and is therefore res judica-ta as to that time. However, the cause of action for modification of the prior award requires litigation of Jackson’s present disability status and its relation to the prior work-related injury, and that cause of action did not exist at the time of the first adjudication. Consequently, since the issue of Jackson’s present disability neither existed nor was litigated in the original trial, Jackson’s petition for modification cannot be barred by res judicata.
Additionally, we have previously recognized that the principles of res judicata “are not ironclad, but must be applied to accomplish justice in the light of public policy.” Consequently, when determining whether Jackson’s present petition for modification is barred by the exception of res judicata such a determination must be made with the recognition that the Legislature, through LSA-R.S. 23:1310.8 B, has taken affirmative steps to provide claimants with a cause of action to modify a prior award of compensation due to an alleged change in condition. The policy behind this decision was recognized in Harris [Harris v. Southern Carbon Co., 189 La. 992, 181 So. 469 (1938) ], supra: “In short, medical science in certain cases cannot state exactly what is the extent or duration of disability or incapacity, and if the judgment erroneously awards either too much or not enough compensation, the Legislature afforded the aggrieved party an opportunity ... to have the error corrected.” Applying these principles to accomplish justice in light of the policy inherent in the Legislature’s decision to enact LSA-R.S. 23:1310.8 B, we find that Jackson’s petition for | inmodification is not barred by res judicata. Whether Jackson can carry his burden of proving a change in condition at trial on the merits, however, is an issue that is not before us, and we therefore make no determination in that regard. (Internal citations omitted.)

In the present case, this court rendered judgment awarding Ms. Fox compensation benefits in the amount of $150 per week for a period of six weeks. We note that this court concurred with the WCJ’s finding that Ms. Fox lacked credibility as to the extent of her then current condition and disability. This court’s award was based in part on that credibility determination and on the testimony of Dr. Majors, who opined that Ms. Fox could return to work on a part-time basis performing sedentary work for a trial period of four to six weeks. Dr. Majors testified that she would then reevaluate Ms. Fox to determine her work capabilities.

At the hearing on the exception of res judicata, counsel for Ms. Fox argued to the WCJ that Ms. Fox was seeking benefits for “anything arising the day after the trial was over in 2003.” Counsel also noted that “[tjhere’s no record on what [Ms. Fox’s] medical condition was the week after trial in the middle of 2003.” We find that this request for modification is of the type contemplated by section 1310.8, as noted in footnote six of Reynolds I. We, therefore, hold that Ms. Fox’s claim for compensation benefits for the period of time after trial of her first claim and subsequent to satisfaction of the six-week compensation award, or, stated another way, her request to modify the prior compensation award of this court grounded on an alleged change of condition, is not barred by res judicata. Rather, it is this statutory right to which this court referred in footnote six of Reynolds I and under \u Jackson, supra. Accordingly, we find that the WCJ was clearly wrong in sustaining the exception of res judicata. Significantly, however, as in Jackson, our review in the case sub judice is limited to the propriety of the ruling on res judicata. We make no determination of whether or not Ms. Fox could carry her burden of proving a change in condition based on an extended duration of disability at a trial on the merits, should the case proceed.

Prescription

As previously stated, the WCJ did not rule on Reynolds’ exception of prescription in light of its ruling that the action was barred by res judicata. Accordingly, we remand the matter back to the Office of Workers’ Compensation to determine whether or not the modification claim of Ms. Fox is prescribed.

CONCLUSION

For the foregoing reasons, the judgment of the WCJ sustaining Reynolds Industrial Contractors’ exception of res judicata is affirmed as to the claim of Willie Faye Fox for modification of medical expense benefits. The judgment sustaining the exception of res judicata is reversed as to Ms. Fox’s claim for modification of indemnity benefits. The matter is remanded for consideration of the exception of prescription as it relates to the claim for indemnity benefits. Costs are assessed equally to the parties.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED.

BROWN, C.J., concurs in part and dissents in part with written reasons.

BROWN, Chief Judge,

concurring and dissenting.

I,The WCJ dismissed all claims based on res judicata. The majority opinion reverses the WCJ’s ruling as to indemnity benefits; however, with little or no explanation, the majority found that res judica-ta barred recovery of any medical benefits. I disagree with this court’s affirmation of the dismissal of the medical benefits claim. In Reynolds # 1 this court’s opinion did not specifically deny medical benefits, nor did it mention past or future medical costs, except to note that all medical expenses had been paid up to the time that defendant filed to terminate indemnity benefits due to fraud. In fact, this court stated in Reynolds # 1 that “Fox is not barred from seeking a modification of this award for prospective benefits due to any relevant change in her condition.”

In Jackson v. Iberia Parish, supra at 524-25, as quoted by the majority, the supreme court wrote:

Additionally, we have previously recognized that the principles of res judicata “are not ironclad, but must be applied to accomplish justice in the light of public policy.” Consequently, when determining whether Jackson’s present petition for modification is barred by the exception of res judicata such a determination must be made with the recognition that the Legislature, through LSA-R.S. 23:1310.8 B, has taken affirmative steps to provide claimants with a cause of action to modify a prior award of compensation due to an alleged change in condition.

In that case, Jackson filed a third claim, styled “A Motion to Modify,” alleging that his medical condition had worsened to the point where surgery was necessary to prevent irreparable nerve damage. As stated, the supreme court refused to apply res judicata to bar Jackson’s new claim for medical and indemnity benefits. Similarly, in the case presently before us, I find that |2because Fox alleges a change in her condition, as well as additional medical expenses, her claim for both indemnity and medical benefits should not be barred by res judicata.

APPLICATION FOR REHEARING

Before BROWN, GASKINS, PEATROSS, MOORE & LOLLEY, JJ.

Rehearing denied.

BROWN, C.J., would grant rehearing.

      . At this juncture, we note that, while Ms. Fox filed a second disputed claim for compensation benefits rather than a motion or request for modification of the prior compensation award as provided in section 1310.8, courts have traditionally treated second suit filings such as this as requests for modification. See Matherne v. Gold Crest Cleaners, Inc., 486 So.2d 943 (La.App. 1st Cir.1986).

      . It is unclear from the record whether or not the WCJ considered the testimony in Dr. Majors' second (2008) deposition in ruling on the exception of res judicata. The deposition had not yet been conducted at the time of the hearing on the exceptions in April 2008, and there is no reference thereto in the WCJ’s oral reasons for judgment on the exceptions which were given at the conclusion of the August 5, 2008 hearing on the motion to consolidate. Furthermore, as stated, the deposition was entered into evidence as an attachment to the motion to consolidate on August 5, 2008, after tire WCJ gave his oral reasons. The transcript of the August 5, 2008 hearing on the motion to consolidate and ruling on the exception of res judicata indicates that there was some previous "off the record” discussion among counsel and the WCJ regarding the 2008 deposition of Dr. Majors; however, since it was not in evidence prior to the WCJ ruling, we will not consider the testimony of Dr. Majors in the 2008 deposition in reviewing the judgment sustaining the exception of res judicata.