text:
    STATE of Louisiana in the Interest of H.M.D. and J.J.W.
    No. 2009-CJ-2373.
    Supreme Court of Louisiana.
    Jan. 8, 2010.
   PER CURIAM.

| )On January 7, 2008, the State of Louisiana, through the Department of Social Services, Office of Community Services (“OCS”) filed a petition for termination of parental rights against J.D., seeking to terminate her parental rights to her two minor children, J.J.W. and H.M.D. J.D. and her counsel were served and appeared at a hearing on January 24, 2008 to answer the petition. At that time, the trial date was set for March 13, 2008.

After several continuances, the matter was set for trial on February 12, 2009. OCS served J.D. with notice of the trial on February 10, 2009. The trial commenced on February 12, 2009. J.D.’s court-appointed counsel appeared at trial, but J.D. did not. At that time, J.D.’s counsel orally moved for a continuance on the ground that J.D. did not receive proper notice of the hearing. Specifically, J.D.’s counsel stated J.D. was only served with notice of the hearing through domiciliary service two days before the hearing. The juvenile court denied the motion, and the case proceeded to trial. At the conclusion of trial, the juvenile court terminated J.D.’s parental rights.

J.D. appealed. She assigned several errors, including an argument that the juvenile court erred in denying her motion for continuance.

The court of appeal found merit to J.D.’s arguments regarding lack of proper notice and pretermitted her other assignments of error. Relying on La. Ch.Code art. 1021, the court of appeal reasoned that J.D. was entitled to notice five days before the termination hearing. Because J.D. received notice only two days before the hearing, | athe court of appeal concluded the juvenile court erred in denying her request for continuance. Accordingly, the court of appeal reversed the judgment of the juvenile court and remanded for further proceedings. OCS now seeks review of that judgment.

La. Ch.Code art. 1021 provides, “[i]f a parent against whom a proceeding is instituted resides within the state, service of citation shall be made either personally or by domiciliary service not less than five days prior to commencement of the hearing on the matter.” [emphasis added]. For purposes of the instant case, the dispute centers on the “hearing” to which La. Ch.Code art. 1021 refers. OCS takes the position that the hearing referred to by the article is the so-called “answer hearing,” at which the parent appears to answer the allegations in the petition for termination, and at which time the trial is set. By contrast, J.D. contends the article refers to all hearings conducted in connection with the termination proceeding, including the trial.

We believe OCS’s interpretation is correct. In this regard, we find it significant that La. Ch.Code art. 1021 refers to “service of citation.” It is well-settled that “proper citation is the foundation of all actions.” [emphasis added]. Naquin v. Titan Indemnity Co., 00-1585 at p. 8 (La.2/21/01), 779 So.2d 704, 710. Read in context, it is obvious that the “hearing” referred to by La. Ch.Code art. 1021 is the initial “answer hearing” at which the trial date is set. Because it is undisputed that J.D. and her attorney received proper notice of this initial hearing and appeared at the hearing where the trial date was set, we conclude the requirements of La. Ch. Code art. 1021 have been fully satisfied in this case. We see nothing in La. Ch.Code art. 1021 which requires that subsequent notices adhere to the rigorous mandates of that article. See State of Louisiana in the Interest of S.F., 01-702 at p. 13 (La. App. 5 Cir. 11/14/01), 802 So.2d 791, 797 (holding that La. Ch.Code art. 1022, the analogous article dealing with non-resident parents, applied only to the institution of the proceedings, and did not apply to the service of an amended petition for termination).

Under these circumstances, we find no abuse of discretion in the juvenile court’s ruling denying J.D.’s request for continuance. The court of appeal erred in reversing the judgment of the juvenile court on this ground. Accordingly, we will grant the writ, vacate the judgment of the court of appeal, and remand the case to the court of appeal to consider J.D.’s remaining assignments of error.

DECREE

For the reasons assigned, the writ is granted. The judgment of the court of appeal is vacated and set aside. The case is remanded to the court of appeal for consideration of the remaining assignments of error.

JOHNSON, J., dissents.

      . La. Ch.Code art. 1025.1 provides:
      Art. 1025.1. Appearance to answer petition
      A.The court shall require the parent to appear in person to answer the petition within fifteen days after the filing of the petition.
      B. The court may also permit the parent to consent to judgment in accordance with Article 1025.2 or execute a surrender for adoption in accordance with Article 1122.
      C. At the appearance the court may either convene immediately the pre-hearing conference required by Article 1025.4 or set a date for the conference.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    In re Francis C. BROUSSARD.
    No. 2009-B-1814.
    Supreme Court of Louisiana.
    Jan. 8, 2010.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

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

FORMAL CHARGES

In October 2005, the ODC filed two counts of formal charges against respondent, alleging the following:

Count I

In September 2002, Amber and Jeffrey Balsamo retained respondent to represent them due to personal injuries received by Mr. Balsamo as a result of an automobile accident. At the initial meeting with respondent, Mr. and Mrs. Balsamo signed an attorney-client contract. They also provided respondent with photographs, police reports, and medical information. Before this initial meeting concluded, respondent told Mr. and Mrs. Balsamo that he would be in touch with them. Despite numerous attempts by Mr. and Mrs. Balsamo to contact respondent, they were unable to communicate with him. Due to the lack of communication, Mr. and Mrs. Balsamo terminated respondent’s representation via certified mail on March 19, 2003. Mr. and Mrs. Balsamo then hired a new attorney, Norman Gordon, who discovered that the 12Balsamo’s lawsuit was not filed until the day before the prescription date. Respondent failed to include a loss of consortium claim on behalf of Mrs. Balsamo and their children. Further, respondent failed to take any steps to perfect service of the lawsuit on the out-of-state defendants under the Long Arm Statute, placing the Balsamo’s claim for damages in jeopardy. Mr. Gordon requested, in writing, a complete copy of his clients’ file from respondent on April 2, 2003. The copy of the file respondent provided did not include the documents and photographs Mr. and Mrs. Balsamo had given to respondent. Despite a second request to respondent by Mr. and Mrs. Balsamo for the file, these items were never returned to Mr. and Mrs. Balsamo. A review of the depositions taken of the parties in the companion federal court case prior to Mr. Gordon’s representation did not disclose any participation on the part of respondent.

The ODC alleged that respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.3 (failure to act with reasonable diligence and promptness in representing a client), 1.4 (failure to communicate with a client), 1.16(d) (obligations upon termination of the representation), and 3.2 (failure to make reasonable efforts to expedite litigation).

Count II

On October 10, 2003, Patsy McMorris retained respondent to represent her in a worker’s compensation matter. At the time she hired respondent, Ms. McMorris was already receiving worker’s compensation benefits arising out of injuries she received when she fell down stairs at work. With respect to the worker’s compensation matter, there is evidence that Ms. McMor-ris forwarded her medical |sbills to respondent, who in turn faxed the bills to the worker’s compensation claims adjuster. According to Ms. McMorris, however, the bills were faxed to the claims adjuster on February 26, 2004 referencing the wrong person, presumably another of respondent’s clients. Furthermore, Ms. McMor-ris complains that respondent failed to attend a scheduled meeting between the worker’s compensation nurse and Ms. McMorris’ physician.

Ms. McMorris also retained respondent in February 2004 to represent her in a claim for Social Security disability benefits. A pre-hearing order dated June 8, 2004 specifically states that it is the representative’s responsibility to ensure that the medical records are up to date and that all pertinent medical evidence has been submitted to the Office of Hearing and Appeals fourteen days prior to the date of the hearing. The hearing in Ms. McMorris’ matter was set for September 20, 2004. According to Ms. McMorris, however, respondent did not request her medical records from her treating physician, Dr. Burkett, until August 25, 2004, nor did he have evidence of her prescriptions prior to the hearing despite the fact that she provided this evidence to him one week prior to the hearing. On the day of the hearing, respondent did not have the information with him. After the hearing, Ms. McMor-ris sent a packet to the administrative law judge with all of her recent medical records and a letter explaining her disability. Ms. McMorris was ultimately awarded disability benefits. Ms. McMorris requested her Social Security file from respondent by letter dated November 3, 2004. Respondent informed her that if she wanted copies of the file, she should request it from the Social Security Administration office.

On August 22, 2004, Ms. McMorris was involved in an automobile accident, and she retained respondent to represent her in that matter. Although respondent apparently agreed to pay for Ms. McMorris’ CT scan, when she appeared at the |4hospitaI for the test, she was told that respondent had refused to pay for it. Apparently, the hospital employee announced that Ms. McMorris could wait until the check arrived for payment of the test. Ms. McMorris complains that she was humiliated by respondent’s failure to properly handle this matter and that she left the hospital crying.

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

DISCIPLINARY PROCEEDINGS

The formal charges were served upon respondent by certified mail in October 2005. Respondent filed an answer to the formal charges denying any misconduct, and he supplemented his answer with an “Additional Response to Charges” in which he briefly elaborated on his position regarding the allegations. The matter was then set for a hearing in February 2006. The hearing was reset and continued on several occasions, and in October 2008, respondent and the ODC informed the hearing committee that they wished to submit this matter on stipulations and briefs. On December 2, 2008, the parties filed a joint stipulation agreeing to the facts as set forth in the formal charges. Respondent also stipulated that he violated the Rules of Professional Conduct as charged. The parties further stipulated to the introduction of exhibits, stipulated to the applicable aggravating and mitigating factors, and stipulated that the appropriate sanction in this case is a six-month suspension, fully deferred, subject to a one-year period of supervised probation with conditions. Accordingly, no hearing was held, and the matter was submitted to the hearing committee on the stipulations and documentary evidence only. By letter dated December 10, 2008, respondent confirmed his agreement “with the stipulations, | .^exhibits and recommended punishment,” and presented facts and argument in mitigation.

Heating Committee Report

After considering the joint stipulations of the parties, the hearing committee agreed that respondent violated the Rules of Professional Conduct as cited. However, the committee expressed concern that respondent has been the subject of disciplinary proceedings on two prior occasions. The prior discipline includes an admonition by the disciplinary board in 1998 for engaging in improper financial transactions with his client and a fully deferred six-month suspension, subject to a one-year period of supervised probation with conditions, imposed by this court in In re: Broussard, 02-1670 (La.9/30/02), 827 So.2d 1133 (“Broussard 7”). The committee noted that respondent was still within his period of supervised probation in connection with Broussard I when at least some of the actions or non-actions complained of in Count I of the instant formal charges took place. The committee further noted that the proposed discipline stipulated to by the ODC and respondent in this matter was no different than that received in Broussard I. Although the complainants in this matter were not significantly injured by respondent’s rule violations, the committee felt that the pattern of conduct demonstrated by respondent required a more significant penalty |fithan that suggested in the joint stipulation. Moreover, none of the cases cited by the ODC in the joint stipulation of proposed discipline resulted in a fully deferred suspension.

Based on this reasoning, the committee declined to adopt the discipline proposed by the parties. Rather, the committee recommended that respondent be suspended from the practice of law for one year and one day, fully deferred, subject to a one-year period of supervised probation governed by the following conditions:

1. Respondent shall refrain from violating any Rules of Professional Conduct;

2. Respondent shall remain current with all obligations, including his bar dues, disciplinary assessments, and continuing legal education requirements;

3. Respondent shall attend a session of the Ethics School offered by the Louisiana State Bar Association’s Practice Assistance and Improvement Committee;

4. A probation monitor shall be appointed to periodically monitor respondent’s case load for conflicts of interest, as well as his compliance with all of the conditions of his probation; and

5. Respondent shall pay all costs associated with these proceedings.

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

Disciplinary Board Recommendation

After review, the disciplinary board noted that the hearing committee made very few independent factual findings outside of the joint stipulation, which is essentially a verbatim recitation of the formal charges and which the committee adopted as its summary of the events in this case. The board found that although the stipulations are generally supported by the record, there are several factual errors and 17a few stipulations that require additional clarification. The board corrected these errors and clarified the stipulations in its report.

After a de novo review of the record, the board agreed that respondent violated Rules 1.3,1.4,1.16(d), and 3.2 in Count I of the formal charges, as stipulated. However, in Count II, the board found only that respondent violated Rule 1.16(d) by failing to return Ms. McMorris’ Social Security file. The board did not agree that respondent violated Rule 1.3, despite his stipulation. In Count II, the ODC alleged that respondent did not send recent medical records from Dr. Burkett to the administrative law judge until after Ms. McMorris’ hearing held on September 20, 2004. While this is correct, respondent requested and received medical records from Ms. McMorris’ other doctors in June 2004, pri- or to the hearing. Respondent forwarded these records to the ALJ via letters dated July 7 and 17, 2004. The records in question related to treatment Ms. McMorris received for her back and neck problems and a broken wrist, which was the reason she applied for Social Security disability benefits. On the other hand, it appears that Dr. Burkett treated Ms. McMorris for heart problems. The ruling of the ALJ granting Social Security benefits to Ms. McMorris specifically stated that the benefits were being granted because of her neck, back, and wrist problems. Respondent sent all of the pertinent medical documents regarding these problems to the ALJ well in advance of the hearing.

Second, with regard to the incident involving the CT scan, respondent claimed that he sent his secretary to the hospital with a check to pay for the test, but by the time the secretary arrived, Ms. McMorris had left. According to the attorney-client contract signed by Ms. McMorris, respondent had no obligation to pay for medical treatment; he had simply agreed to pay for the CT scan as a courtesy. Finding respondent is not responsible for the rudeness of the hospital staff, the board | ^concluded that respondent did not violate Rule 1.3 in Count II of the formal charges. Rather, it appears he handled Ms. McMor-ris’ legal matters with competence and diligence until she terminated his services.

Based on these findings, the board determined that respondent violated duties owed to his clients and the legal system. With regard to returning the files of Mr. Balsamo and Ms. McMorris, respondent’s conduct appears to be negligent. With regard to the delay he caused in the Balsa-mo matter, his conduct appears to be at least knowing. He caused moderate actual harm to Mr. Balsamo by failing to serve the defendants, which led to the dismissal of the lawsuit without prejudice. Although the lawsuit was reinstated, the dismissal caused an undue delay. With regard to Ms. McMorris, the board found that respondent did not cause any actual injury, reasoning that even if Ms. McMorris has not received a copy of her Social Security file, her Social Security disability proceeding had been concluded in her favor at the time she requested her file. Relying on the ABA’s Standards for Imposing Lawyer Sanctions, the board determined that the baseline sanction is suspension.

The board found the following aggravating factors present: prior disciplinary offenses, multiple offenses, and substantial experience in the practice of law (admitted 1986). The board determined that the mitigating factors present are: absence of a dishonest or selfish motive, remorse, and delay in the disciplinary proceeding.

Turning to the issue of an appropriate sanction, the board considered In re: Brown, 07-0995 (La.10/17/07), 967 So.2d 482, and In re: Jackson, 02-2764 (La.4/9/03), 842 So.2d 359. In Brown, the respondent represented clients in a personal injury matter. After filing the petition in October 1997, Mr. Brown failed to ensure that the defendants were properly served. Eventually, the defendants were served in ^February 2003. They filed a motion to dismiss, but it was never heard because of difficulty in serving Mr. Brown with the motion. The court found that Mr. Brown did not have a dishonest or selfish motive and that there was little actual harm to the clients. Under the totality of the circumstances, the court observed that the matter would probably have been more appropriately considered “in a civil malpractice action rather than a disciplinary proceeding.” However, because there were violations of the Rules of Professional Conduct proven by clear and convincing evidence, and considering that Mr. Brown had a prior disciplinary offense, the court concluded that a public reprimand was appropriate.

In Jackson, the respondent failed to file suit on behalf of a client before the prescriptive period expired, in violation of Rules 1.3 and 1.4. Mr. Jackson had a prior admonition involving similar misconduct. The court found that Mr. Jackson’s conduct caused actual injury to his client because the client lost his right to assert his claims. However, the court noted, as in Brown, that although “an isolated instance of such harm might be ordinarily addressed in a legal malpractice action rather than by disciplinary proceeding,” the fact that Mr. Jackson had previously been admonished for similar misconduct necessitated the imposition of discipline, specifically a six-month suspension with three months deferred.

The board suggested that the instant matter falls in between Brown and Jackson. As in those cases, respondent’s neglect caused his client’s legal matter to be dismissed. However, unlike those two cases, Mr. Balsamo did not lose his cause of action entirely. Rather, his lawsuit was reinstated. Contrary to Brown and Jackson, respondent has a more significant disciplinary history. Even though his prior offenses were for misconduct that is not similar to the misconduct in this case, it is significant that he served a one-year period of supervised probation, which was [ inintended to ensure that he made corrections in his law practice so that he did not engage in additional rule violations.

Based on this reasoning, the cases cited, and the absence of any serious actual harm in this matter, the board concluded that the deferred one year and one day suspension recommended by the hearing committee is too harsh, and that the sanction to which the ODC and respondent consented appears suitable. Accordingly, the board recommended that respondent be suspended from the practice of law for six months, fully deferred, subject to a one-year period of supervised probation governed by the same conditions as set forth by the committee. One board member dissented from the recommendation, stating that he did “not feel there was manifest error made by the hearing committee.”

Although neither respondent nor the ODC filed an objection to the board’s recommendation, on November 23, 2009, we ordered briefing addressing the issue of an appropriate sanction. Both parties filed briefs in response to the court’s order.

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: Quaid, 94-1316 (La.11/30/94), 646 So.2d 343; Louisiana State Bar Ass’n v. Boutall, 597 So.2d 444 (La.1992). While we are not bound in any way by the findings and recommendations of the hearing committee and disciplinary board, we have held the manifest error standard is applicable to the committee’s factual findings. See In re Caulfield, 96-1401 (La.11/25/96), 683 So.2d 714; In re: Pardue, 93-2865 (La.3/11/94), 633 So.2d 150.

| nBased upon the evidence in the record, the disciplinary board found that respondent failed to communicate with Mr. Balsa-mo, neglected his legal matter (resulting in the dismissal of his suit), and failed to release the files of Mr. Balsamo and Ms. McMorris upon request, in violation of Rules 1.3, 1.4, 1.16(d), and 3.2 of the Rules of Professional Conduct. The baseline sanction for this conduct, which was knowing in part and negligent in part, is a period of suspension.

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

The aggravating factors present are pri- or disciplinary offenses, multiple offenses, a pattern of misconduct, and substantial experience in the practice of law (admitted 1986). The mitigating factors present are absence of a dishonest or selfish motive, a cooperative attitude toward the disciplinary proceeding, remorse, and delay in the disciplinary proceeding.

Considering the circumstances, the board recommended that the sanction agreed to by the parties, a fully deferred six-month suspension with probation, be approved. However, the hearing committee felt that this sanction was too lenient, considering that the discipline imposed in Broussard I was a fully deferred six-month suspension with probation. We tend to agree with the hearing committee, as we are |12concerned that even after an admonition and a fully deferred suspension respondent has continued to fail in fulfilling his responsibilities as a lawyer. However, unlike the hearing committee, we do not believe that a longer period of fully deferred suspension is adequate. Rather, we find it is necessary to impose an actual period of suspension in order to impress upon respondent the importance of his duties and responsibilities to his clients.

Accordingly, we will reject the disciplinary board’s recommendation and suspend respondent from the practice of law for one year and one day, with all but thirty days deferred, followed by a one-year period of supervised probation governed by the conditions recommended by the hearing committee. 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 portion of the suspension execu-tory, or imposing additional discipline, as appropriate.

DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record and the briefs filed by the parties, it is ordered that Francis C. Broussard, Louisiana Bar Roll number 17259, be and he hereby is suspended from the practice of law for a period of one year and one day. All but thirty days of this suspension shall be deferred, subject to respondent’s successful completion of a one-year period of supervised probation governed by the conditions enumerated by the hearing committee. 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 1^making the deferred portion of the suspension executory, or imposing additional discipline, as appropriate. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.

      . Actually, the retainer agreement in the record reflects that it is signed only by Mr. Balsa-mo.

      . In fact, in October 2003, the petition filed by respondent on October 3, 2002 was dismissed without prejudice for failure to serve the defendants timely. The suit was thereafter reinstated.

      . It is unclear why the matter proceeded in this fashion, rather than pursuant to a petition for consent discipline filed in this court in accordance with the provisions of Supreme Court Rule XIX, § 20.

      . In Broussard I, respondent consented to discipline for engaging in conduct constituting a conflict of interest and for failing to disburse settlement proceeds to a client for more than one year, during which time the balance of his trust account dropped below the amount held on the client's behalf.

      .As the disciplinary board subsequently noted in its report, the committee's finding in this regard is in error. Respondent represented Mr. Balsamo from September 26, 2002 to March 19, 2003, while he was on probation in connection with Broussard I from June 9, 2004 to August 15, 2005. However, respondent was still on probation in connection with Broussard I during the time that he failed to return Ms. McMorris' Social Security file in Count II of the instant formal charges.


text:
    In re Paul J. McMAHON, III.
    No. 2010-B-0029.
    Supreme Court of Louisiana.
    Jan. 12, 2010.
   ORDER

Considering the Petition for Interim Suspension for Threat of Harm filed by the Office of Disciplinary Counsel,

IT IS ORDERED that respondent, Paul J. McMahon, III, Louisiana Bar Roll number 14209, be and he hereby is suspended from the practice of law on an interim basis pursuant to Supreme Court Rule XIX, § 19.2, pending further orders of this court.

IT IS FURTHER ORDERED that the Office of Disciplinary Counsel may seek the appointment of a trustee(s) to protect the interests of respondent’s clients pursuant to the provisions of Supreme Court Rule XIX, § 27, if appropriate.

Pursuant to Supreme Court Rule XIX, § 26(E), this order is effective immediately-

/s/ Bernette J. Johnson

Justice, Supreme Court of Louisiana

CLARK, J.,

votes to deny the petition for interim suspension for threat of harm and would instead order respondent to show cause, before a hearing committee panel appointed by the board, why the court should not issue an immediate interim suspension.


text:
    In re Harry J. BOYER, Jr.
    No. 2009-B-1740.
    Supreme Court of Louisiana.
    Jan. 22, 2010.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

11 This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Harry J. Boyer, Jr., an attorney licensed to practice law in Louisiana but currently on interim suspension for threat of harm to the public. In re: Boyer, 09-1735 (La.7/29/09), 13 So.3d 1126.

FORMAL CHARGES

Count■ I

In April 2005, Thomas Kronenberger retained respondent to represent his brother-in-law, Kenneth Helmstetter, in a criminal matter. On May 4, 2005, Mr. Kronenberger paid respondent $2,500 of a $5,000 flat fee, which payment respondent’s contract improperly characterized as non-refundable. On May 13, 2005, respondent was discharged from the representation of Mr. Helmstetter. Respondent improperly attempted to account for the flat fee on an hourly basis even though no hourly fee basis was agreed upon, and the advanced funds were not handled as an advanced hourly fee. Respondent failed to properly account for the earned portion, and failed to refund the unearned portion, of the fee paid by Mr. Kronenber-ger. Respondent also failed to place the disputed portion of the advanced fee into a trust |2account and failed to suggest a means for prompt resolution of the fee dispute such as mediation or arbitration.

The ODC alleged that respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.5(f) (payment of fees in advance of services), 1.15(e) (when in the course of representation a lawyer is in possession of property in which two or more persons claim interests, the property shall be kept separate until the dispute is resolved), 1.16(d) (obligations upon termination of the representation), and 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation).

Count II

In December 2003, Raynell Rankin retained respondent to represent her in a criminal case. Respondent was paid an advanced flat fee of $500 for the representation. Respondent appeared in court with Ms. Rankin through June 16, 2005, but thereafter, he abandoned his client and failed to communicate with her. Respondent also failed to account for the advanced fee.

The ODC alleged that respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.3 (a lawyer shall act with reasonable diligence and promptness in representing a client), 1.4 (failure to communicate with a client), 1.5(f), and 1.16(d).

Count III

In May 2005, Melissa Meyers and Betty Meyers retained respondent to handle the appeal of Kim Meyers’ criminal conviction. Respondent was paid an advanced flat fee of $500 for the representation; however, he did not file an appeal and failed |sto communicate with his client. Respondent also failed to account for the advanced fee, and failed to refund the unearned fee.

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

Count IV

In August 2005, respondent enrolled as counsel of record for Judy Ann Marie in a criminal case. Respondent failed to appear in court for the trial of Ms. Marie’s case on the following dates: April 7, 2006; May 11, 2006; August 14, 2006; and September 18, 2006. Attachments were issued for respondent’s arrest following the May, August, and September court dates, and in September, the court also ordered counsel appointed to represent respondent’s client.

The ODC alleged that respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.3 and 3.4(c) (knowing disobedience of an obligation under the rules of a tribunal).

Count V

In June 2006, Clifton Thibodeaux, Jr. retained respondent to represent him in a criminal case. Respondent was paid $1,500 of a $5,000 advanced flat fee for the representation; however, respondent failed to appear in court with Mr. Thibo-deaux for his July 19, 2006 arraignment. Respondent also failed to appear at Mr. Thibodeaux’s September 8, 2006 pre-trial conference, and Mr. Thibodeaux had to obtain new counsel who enrolled on October 31, 2006. Respondent failed to account for the advanced fee, and failed to refund the unearned advanced fee.

|4The ODC alleged that respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.3,1.5(f), 1.16(d), and 8.4(c).

Count VI

In November 2006, respondent was personally served with the complaints filed against him in the Rankin, Meyers, Marie, and Thibodeaux matters, siupra. Respondent failed to respond to the complaints.

The ODC alleged that respondent’s conduct violated Rule 8.1(c) (failure to cooperate with the ODC in its investigation) of the Rules of Professional Conduct.

Count VII

Respondent represented Deborah Fabre in a personal injury case that settled in May 2007. On May 4, 2007, the Travelers Indemnity Company issued a settlement check in the amount of $13,862.88 made payable to Ms. Fabre and respondent. On May 29, 2007, respondent issued a check to Ms. Fabre in the amount of $10,354.88 for her portion of the settlement proceeds. This check was returned NSF. Ms. Fabre notified respondent that the check had been returned, but he failed to make the check good and failed to promptly remit the funds to his client.

The ODC alleged that respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.15 (safekeeping property of clients or third persons), 8.4(b) (commission of a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer), and 8.4(c).

15Count VIII

In February 2007, Catherine Washington retained respondent to represent her son in a criminal matter. Ms. Washington paid respondent an advanced flat fee of $700, and he informed her that if he could not get her son released from jail, he would refund all the money she had paid. Respondent ultimately did not obtain the release of Ms. Washington’s son from jail, but he did not refund the unearned fee.

The ODC alleged that respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.5(f), 1.16(d), and 8.4(c).

DISCIPLINARY PROCEEDINGS

In June 2008, the ODC filed eight counts of formal charges against respondent, as set forth above. Respondent failed to answer or otherwise reply to 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 committee’s consideration.

Hearing Committee Report

After considering the ODC’s deemed admitted submission, the hearing committee found that respondent failed to properly account for and refund unearned fees, neglected legal matters, failed to communicate with clients, abandoned his clients, knowingly failed to respond to multiple demands for information from a disciplinary authority, failed to cooperate with the ODC, converted client funds, and |(iwrote an NSF check to a client, all as charged in the formal charges. Relying on the ABA’s Standards for Imposing Lawyer Sanctions, the committee determined that the applicable baseline sanction in this matter is suspension.

In aggravation, the committee found multiple offenses, bad faith obstruction of the disciplinary proceeding by intentionally failing to cooperate with the rules or orders of the disciplinary agency, and substantial experience in the practice of law (admitted 1986). In mitigation, the committee acknowledged that respondent has no prior disciplinary record.

Under these circumstances, the committee recommended that respondent be suspended from the practice of law for three years.

The ODC filed an objection to the leniency of the sanction recommended by the hearing committee.

Disciplinary Board Recommendation

After review, the disciplinary board found that the hearing committee’s factual findings are supported by the factual allegations asserted in the formal charges, which are deemed admitted, and/or by the documentary evidence submitted in support of the allegations. The board also found that respondent violated the Rules of Professional Conduct as alleged in the formal charges.

The board determined that respondent knowingly and intentionally violated duties owed to his clients, the public, the legal system, and the legal profession. He caused serious actual harm to his clients in several ways. He left criminal defendants unrepresented in court, which prolonged their criminal proceedings. He failed to return unearned fees to his clients, which caused an additional expense for those who had to retain other counsel to complete their matters. He also converted a substantial ^amount of client money in the Fabre matter. The board determined that the baseline sanction for this misconduct is disbarment.

As aggravating factors, the board found a dishonest or selfish motive, a pattern of misconduct, multiple offenses, bad faith obstruction of the disciplinary proceeding by intentionally failing to cooperate with the rules or orders of the disciplinary agency, vulnerability of the victims, and substantial experience in the practice of law. The board determined that the only mitigating factor present is the absence of a prior disciplinary record.

Considering respondent’s misconduct in light of the permanent disbarment guidelines and the prior jurisprudence of this court, the board recommended that respondent be permanently disbarred. The board further recommended that respondent be ordered to provide an accounting and restitution to his victims, repay the Louisiana State Bar Association’s Client Protection Fund as necessary, and pay the costs and expenses of this proceeding.

Although neither respondent nor the ODC filed an objection to the board’s recommendation, on November 18, 2009, we ordered briefing addressing the issue of an appropriate sanction. Both parties filed briefs in response to the court’s order. In addition, respondent has filed a motion asking that the deemed admitted order issued previously by the hearing committee be vacated and that the matter be remanded for a hearing on the merits.

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 Lbeen proven by clear and convincing evidence. In re: Quaid, 94-1316 (La.11/30/94), 646 So.2d 343; Louisiana State Bar Ass’n v. Boutall, 597 So.2d 444 (La.1992).

Prior to discussing the merits, we will first address the motion filed by respondent in which he requests that the deemed admitted order be vacated and that this matter be remanded for a hearing. Respondent premises his motion upon the fact that he did not receive service of the formal charges or of the various pleadings and notices in this case.

We have generally given a very liberal interpretation to the provisions for setting aside deemed admitted orders, especially when there is evidence that the respondent-attorney has made a good faith effort to present a response. See, e.g., In re: Gardner, 98-1476 (La.10/9/98), 719 So.2d 400; In re: Tosh, 98-2152 (La.10/9/98), 719 So.2d 396. Nonetheless, deemed admitted orders have not been set aside in cases where the failure to respond timely is attributable to the respondent-attorney’s own actions or inactions. See, e.g., In re: Morphis, 01-2803 (La.12/4/02), 831 So.2d 934.

In the instant case, the record reflects that service of the formal charges was properly attempted at respondent’s primary registration statement address. Pursuant to Supreme Court Rule XIX, § 8(C), respondent is mandated to keep this information current and to “file with the Louisiana State Bar Association any change in the information previously submitted within thirty days of the change.” The rule further placed respondent on notice that “[sjervice or proof of attempted service at the lawyer’s primary registration statement address shall constitute adequate notice.”

In his motion and accompanying affidavit, respondent candidly admits that he vacated the office where his primary registration address was located and “neglected to update his primary registration address.” Therefore, by respondent’s own 19admission, his failure to receive proper notice of the formal charges was due to his own actions and inactions. Accordingly, we see no basis to disturb the order deeming the allegations of the formal charges admitted and therefore deny respondent’s motion.

Turning to the merits, Supreme Court Rule XIX, § 11(E)(3) provides that in cases in which the lawyer does not answer the formal charges, the factual allegations of those charges are deemed admitted. 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 deemed admitted facts clearly support a finding that respondent neglected his clients’ legal matters, failed to communicate with his clients, failed to refund unearned legal fees, wrote an NSF check to a client in the amount of $10,354.88, and failed to cooperate with the ODC. Based on these facts, we agree that he violated the Rules of Professional Conduct as alleged in the formal charges.

Considered in their totality, the facts indicate respondent essentially abandoned his law practice, thereby causing both actual and potential harm to his clients. Standard 4.41 of the ABA’s Standards for Imposing Lawyer Sanctions provides that disbarment is generally appropriate when a lawyer abandons his practice and causes | inserious or potentially serious injury to a client. See also In re: Poimer, 01-1116, 01-1118 (La.6/29/01), 791 So.2d 94. Additionally, respondent’s conversion of client funds in the Fabre matter warrants a baseline sanction of disbarment. See Standard 4.11 of the ABA’s Standards for Imposing Lawyer Sanctions (explaining that disbarment is “generally appropriate when a lawyer knowingly converts client property and causes injury or potential injury to a client”). In light of these standards, it is clear the baseline sanction for respondent’s misconduct is disbarment.

Numerous aggravating factors are supported by the record: a dishonest or selfish motive, a pattern of misconduct, multiple offenses, bad faith obstruction of the disciplinary proceeding by intentionally failing to cooperate with the rules or orders of the disciplinary agency, vulnerability of the victims, and substantial experience in the practice of law. The sole mitigating factor we are able to discern from the record is respondent’s lack of a prior disciplinary record.

Considering the misconduct in light of the aggravating and mitigating factors, we see no reason to deviate from the baseline sanction of disbarment. Accordingly, we will disbar respondent. Additionally, we will order him to render a full accounting to his clients and make complete restitution to them.

|nDECREE

Upon review of the findings and recommendations of the hearing committee and the disciplinary board, and considering the record and the briefs filed by the parties, it is ordered that Harry J. Boyer, Jr., Louisiana Bar Roll number 17477, be and he hereby is disbarred, retroactive to July 29, 2009, 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. It is further ordered that respondent shall provide accountings to all persons encompassed in the formal charges, and make full restitution of any unearned legal fees or other sums owed to such persons. 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.

       Weimer, J., recused.

      . In brief to this court, respondent represents that he has repaid Ms. Fabre $5,000 toward the amount of the NSF check.

      . In addition, the ODC, in its response to respondent's motion, points out that even after respondent became aware of the disciplinary board’s recommendation in late August or early September of 2009, he waited an additional two months (until November 19, 2009) to take any action.

      . The disciplinary board recommended that respondent be permanently disbarred. However, based upon our review of the record as well as the supplemental briefing of the parties, we are not convinced that the requirements of guideline 1 of the permanent disbarment guidelines, which suggests that permanent disbarment may be warranted in cases involving "repeated or multiple instances of intentional conversion of client funds with substantial harm," is applicable under the facts of this case. Although any instance of conversion is serious misconduct, it is well settled that we do not impose permanent disbarment lightly. Rather, permanent disbarment is reserved for those cases where the respondent’s conduct convincingly demonstrates that he does not possess the requisite moral fitness to practice law in this state. See, e.g., In re: Muhammad, 08-2769 (La.3/4/09), 3 So.3d 458. Based on the record before us, we do not believe respondent’s conduct rises to this level.


text:
    In re Wayne G. CRESAP.
    No. 2009-OB-2674.
    Supreme Court of Louisiana.
    Jan. 22, 2010.
   ORDER

On October 1, 2009, respondent pled guilty in the United States District Court for the Eastern District of Louisiana to conspiracy to commit wire fraud. 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 Voluntary Permanent Resignation from the Practice of Law filed by Wayne G. Cresap, Louisiana Bar Roll number 4597, and the concurrence thereto filed by the ODC,

IT IS ORDERED that the request of Wayne G. Cresap 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 Wayne G. Cresap 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/ Greg G. Guidry

Justice, Supreme Court of Louisiana


author: PER CURIAM. JOHNSON, J.,

text:
    In re Andrea NATHAN.
    No. 2009-OB-0721.
    Supreme Court of Louisiana.
    Jan. 22, 2010.
   ON APPLICATION FOR ADMISSION TO THE BAR

PER CURIAM.

| iAfter having conditionally failed the Louisiana Bar Examination, petitioner, Andrea Nathan, submitted an application to take the exam on a second occasion. Attached to the application was an affidavit executed by petitioner and purportedly signed before a notary public, attesting that petitioner’s responses had not changed from her prior application and that her “answers to each question continue to be complete, true and unchanged, ...” However, the Committee on Bar Admissions (“Committee”) subsequently learned that petitioner had forged the notary’s signature on the affidavit. The Committee then denied petitioner permission to sit for the bar exam on character and fitness grounds, citing the forged affidavit.

On petitioner’s application, we granted her permission to sit for the bar exam, with the condition that upon her successful completion of the exam, she apply to the court for the appointment of a commissioner to take character and fitness evidence. In re: Nathan, 07-0221 (La.2/2/07), 949 So.2d 402.

Petitioner thereafter successfully passed the essay portion of the bar exam and applied for a commissioner. We then remanded this matter to the Committee on Bar Admissions Panel on Character and Fitness to conduct an investigation and appointed a commissioner to take character and fitness evidence.

During the character and fitness hearing, the commissioner received documentary evidence and heard the testimony of petitioner and a member of the _|j}Committee’s staff. Following the proceedings, the commissioner filed her report with this court, recommending that petitioner be denied admission to the practice of law. Petitioner did not object to that recommendation.

The evidence presented during the hearing reflects that petitioner went to the Committee’s office in Metairie to file her bar application by hand on December 15, 2006, the last day for filing applications for the February 2007 bar exam. At that time, the Committee’s staff informed petitioner that her application was not properly completed and notarized. Petitioner was told that she could return later in the day with the completed application. When petitioner retened to the Committee’s office, her application had been “notarized” by a Baton Rouge attorney. However, the document did not bear a notary seal or bar roll number, and the signature of the notary appeared to be quite similar to that of petitioner’s. Skeptical that the notary’s signature was authentic, the Committee contacted the attorney, who denied notarizing the application for petitioner. The attorney subsequently gave a sworn statement confirming this information under oath.

Under the circumstances, there can be no doubt that petitioner has demonstrated a lack of candor which reflects adversely on her character and fitness. Petitioner knowingly forged the notary’s signature on her bar application. This fact was not disputed by petitioner; rather, she attempted to explain her dishonest conduct as a momentary lapse in judgment because of the stress she was under at the time. Petitioner’s conduct is fundamentally inconsistent with a lawyer’s duties of truth and honesty. We therefore conclude petitioner has failed to meet her burden of proving that she has “good moral character” to be admitted to the Louisiana State Bar Association. See Supreme Court Rule XVII, § 5(D).

1 ^Accordingly, it is ordered that the application for admission be and hereby is denied. In accordance with Supreme Court Rule XVII, § 9(D)(13), petitioner may not reapply for admission until one year has passed from the date of this judgment.

ADMISSION DENIED.

JOHNSON, J., dissents with reasons.

JOHNSON, J.,

dissents and assigns reasons.

| [The evidence in this matter indicated that the Petitioner, Andrea O. Nathan, has never had any disciplinary problems at the schools she attended — UNO for one semester, Nicholas State University, LSU Law School for one semester, LSU paralegal studies, and Southern University Law Center. She has had no problems with any of her employers — various attorneys including a bankruptcy trustee, for whom she worked as a paralegal. She has an absolutely clean criminal record. A number of letters admitted into evidence attest to her good character. During her years of schooling and in the workforce, she has had a long and admirable record of dedication to helping the less fortunate. The Commissioner, who heard this case, noted that the Petitioner has continued a record of good works.

I can only conclude that the Petitioner’s conduct herein was a complete aberration and would grant her conditional admission, with a probation period of two (2) years, and fifteen Mandatory Continuing Legal Education hours in ethics and professionalism.


text:
    STATE of Louisiana v. Calvin DUNCAN.
    No. 2008-KP-2244.
    Supreme Court of Louisiana.
    Jan. 22, 2010.
   PER CURIAM.

| [Writ granted in part; case remanded. The district court’s judgment denying relator’s post-conviction application as time barred under art. 930.8(A) is vacated and the district court is directed to hold an evidentiary hearing only as it relates to relator’s recent discovery of a police report authored by Lieutenant Roy Reed and the alleged suppression by the state of evidence relating to possible criminal activity of witness, Detective Loren Peterson. Unless the state establishes that events not under its control have prejudiced its ability to “respond to, negate, or rebut” the newly discovered evidence, see La. C.Cr.P. art. 930.8(B), the district court is instructed to consider whether the state’s failure to disclose the material undermines confidence in the outcome of the trial in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) and its progeny. In addition, although relator apparently failed to raise this issue in the district court in conjunction with his application and “[t]he general rule is that appellate courts will not consider issues raised for the first time,” Segura v. Frank, 93-1271 (La.1/14/94), 630 So.2d 714, 725, in the interest of judicial economy, the district court is also instructed to determine whether an arrest warrant, signed by Detective Demma of the New Orleans Police Department, which listed the race and gender of the victim, constitutes newly discovered evidence which requires consideration on the merits as “facts ... not known to the petitioner or his attorney” under La.C.Cr.P. art. 930.8(A)(1). In all other respects, relator’s application is denied.

VICTORY and KNOLL, JJ., would deny.


text:
    In re John Jewell PACE.
    No. 2009-B-2618.
    Supreme Court of Louisiana.
    Jan. 22, 2010.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

The Office of Disciplinary Counsel (“ODC”) commenced an investigation into allegations that respondent possessed and used illegal drugs. Prior to the institution of formal charges, respondent and the ODC submitted a joint petition for consent discipline, in which the parties stipulated that respondent has violated Rules 8.4(a) and 8.4(b) of the Rules of Professional Conduct. Having reviewed the petition,

IT IS ORDERED that the Petition for Consent Discipline be accepted and that John Jewell Pace, Louisiana Bar Roll number 1115, be suspended from the practice of law for one year and one day, retroactive to May 16, 2008, the date of his interim suspension.

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


text:
    Susan ORILLION, Individually and As Administratrix of the Succession of Gerald Orillion v. Brett CRAWFORD, Secretary Department of Revenue & Taxation, State of Louisiana.
    No. 2005-CA-0559.
    Court of Appeal of Louisiana, First Circuit.
    May 7, 2007.
   On Application for Rehearing filed 09/12/2006

Rehearing: We grant the appellant’s application for rehearing for the limited purpose of amending the conclusion of our decision rendered September 1, 2006, in the above numbered and entitled matter to read as follows:

“CONCLUSION

For the above and foregoing reasons, we reverse both the decision of the trial court and the Board, and remand this case to the Board to reverse and annul the Department’s assessment of income taxes against the Orillions in the amount of $1,865.07 for 1994 and $3,150.23 for 1995. Appeal costs in the amount of $673.38 are assessed against the Department. REVERSED AND REMANDED.”

/s/ James E. Kuhn

James E. Kuhn

/s/ John M. Guidry

John M. Guidry

/s/ John T. Pettigrew

John T. Pettigrew

/s/ Robert D. Downing

Robert D. Downing

/s/ Jefferson D. Hughes

Jefferson D. Hughes


author: LOLLEY, J.

text:
    Bobby Ray REYNOLDS, Plaintiff-Appellant v. LOUISIANA PLASTIC, and/or Louisiana Plastic Converting Corporation, and/or Louisiana Plastic Industries, Inc., Frank Weeks, Richard Fewell, Sheriff of Ouachita Parish and Deputy Linda Hale, Defendants-Appellees.
    No. 44,803-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 28, 2009.
    Rehearing Denied Dec. 3, 2009.

      F. Hodge O’Neal, Monroe, for Appellant.
    Pettiette, Armond, Dunkelman, Wood-ley, Byrd & Cromwell By Donald J. Armand, Jr. Stephen Michael Cooper, Shreveport, for Appellees.
    Before STEWART, PEATROSS and LOLLEY, JJ.
   LOLLEY, J.

hln this workers’ compensation case, plaintiff, Bobby Ray Reynolds, appeals a motion for summary judgment granted by the Fourth Judicial District Court, Parish of Ouachita, State of Louisiana, in favor of defendant(s), Louisiana Plastic, Louisiana Plastic Converting Corp., Louisiana Plastic Holding Co., and/or Louisiana Plastic Industries, Inc. (collectively “LP”). For the following reasons, we affirm.

FACTS

Bobby Ray Reynolds, a work-release inmate from the Ouachita Parish Correction Center, worked at the LP facility in West Monroe, Louisiana. On June 12, 2005, Reynolds collapsed from a heat stroke while working at the facility. On June 7, 2006, Reynolds sued LP, Frank Weeks, Richard Fewell, Sheriff of Ouachita Parish, and Deputy Linda Hale. This court granted writs and dismissed Sheriff Richard Fewell and Deputy Linda Hale after the trial court denied them motions for summary judgment. LP filed a separate motion for summary judgment which the trial court granted. Reynolds now appeals LP’s summary judgment.

LAW AND DISCUSSION

Reynolds contends that there was a delay of up to 40 minutes in calling for medical assistance and that caused him to suffer “profound injuries.” Further, Reynolds argues that this delay was an intentional act, and that trial court erred in granting the summary judgment. In the alternative, Reynolds argues that given that he was an inmate, LP did not establish its right to immunity from ordinary negligence. Specifically, Reynolds argues that LP did not establish that an inmate was eligible for 12workers’ compensation in accordance with La. R.S. 23:1032(A). Finally, Reynolds questions whether the trial court had subject matter jurisdiction over the instant action.

Subject Matter Jurisdiction

The district courts are vested with original jurisdiction over all civil and criminal matters unless the Constitution provides otherwise or except as provided by law for administrative agency determinations in worker’s compensation matters. La. Const. Art. V, Sec. 16. State district courts, as courts of general jurisdiction in all civil and criminal matters, are considered to have such jurisdiction unless specifically denied it. In other words, a claim for relief, even one which generally relates to worker’s compensation, remains within the jurisdiction of the district court unless, by a specific provision in the worker’s compensation act, the Louisiana Legislature has granted hearing officers the authority to adjudicate the claim or has designated the claim as a worker’s compensation matter. Williams v. Midwest Employers Cas. Co., 28,118 (La.App. 2d Cir.02/28/96), 669 So.2d 616, writ denied, 1996-0820 (La.05/17/96), 673 So.2d 610. In the instant case, the issue raised is whether workers’ compensation is the exclusive remedy for Reynolds. Here, there is no question that a motion for summary judgment asserted in district court is the appropriate venue to address the issues of immunity from tort liability. See Rogers v. Louisiana Dept. of Corrections, 43,000 (La.App. 2d Cir.04/30/08), 982 So.2d 252, writ denied, 2008-1178 (La.09/19/08), 992 So.2d 931.

^Standard of Review

Having established that the trial court had subject matter jurisdiction over the instant matter, this court’s standard of review for the grant or denial of a motion for summary judgment is de novo. Jones v. Estate of Santiago, 2003-1424 (La.04/14/04), 870 So.2d 1002. Appellate courts review summary judgments de novo under the same criteria that govern a trial court’s consideration of whether or not a summary judgment is appropriate: (1) whether there exists a genuine issue of material fact and (2) whether or not the mover is entitled to judgment as a matter of law. Id. A motion for summary judgment is properly granted only if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B). A genuine issue is a triable issue on which reasonable persons could disagree. Jones, supra.

In a motion for summary judgment, the burden of proof is on the movant. La. C.C.P. art. 966(C)(2). The movant’s burden does not require him to negate all essential elements of the adverse party’s claim; but, rather, the burden on the mov-ant at summary judgment is to demonstrate an absence of factual support for one or more elements essential to the adverse party’s claim. Then, if the non-movant fails to produce sufficient factual support to show he can meet his evidentia-ry burden at trial, there is no genuine issue of material fact. Id.

| ¿Employee Status

First, we address whether Reynolds was an “employee” eligible to receive workers’ compensation despite his status as an inmate. In determining whether an employment relationship exists, the jurisprudence of this state has uniformly held that the most important element to be considered is the right of control and supervision over an individual. Clinton v. Reigel By-Products, Inc., 42,497 (La.App. 2d Cir.09/19/07), 965 So.2d 1006; Fuller v. United States Aircraft Insurance Group, 530 So.2d 1282 (La.App. 2d Cir.1988), writ denied, 534 So.2d 444 (La.1988), cert. denied, 490 U.S. 1046, 109 S.Ct. 1954, 104 L.Ed.2d 424 (1989). Factors to be considered in assessing the right of control are the selection and engagement of the worker, the payment of wages and the power of control and dismissal. Clinton, supra.

In the instant case, Reynolds’ rate of pay and number of hours were controlled by LP. LP instructed Reynolds how to do his job and he was supervised by LP employees. Reynolds was also informed of LP’s policies and procedures. Reynolds does not dispute these findings. Furthermore, the record indicates that an Employers Work Release Agreement was executed between LP and the Sheriffs office which identified Reynolds as an employee of LP. Louisiana R.S. 15:711 authorizes the work release program for certain inmates and specifies that it is to be administered by the sheriff of the parish where the inmate is housed. In Clinton, we addressed an analogous situation and found that with a valid work release agreement, inmates were accurately considered employees of their private employers.

|5Notably, Reynolds receives workers’ compensation benefits as a result of the incident which, in short, presupposes that he is an employee of LP and therefore we find that Reynolds has acquiesced to this status.

Summary Judgment

In light of our findings that Reynolds was an employee of LP, we next inquire as to whether, based on the record, summary judgment was appropriate. For personal injuries sustained in the course and scope of employment, an employee is generally not allowed to recover tort damages against his employer and any coworkers. La. R.S. 23:1032(A); Evans v. Bossier Parish School Board, 39,718 (La.App. 2d Cir.05/11/05), 903 So.2d 600. This immunity from tort actions, however, does not apply when the employee’s injuries are as the result of an intentional act. La. R.S. 23:1032(B).

In Bazley v. Tortorich, 397 So.2d 475 (La.1981), the Louisiana Supreme Court determined that an act is considered intentional whenever it is shown that the defendant either “consciously desired” the physical results of his conduct or was “substantially certain” that those physical results would follow from his actions. However, the supreme court also explained that “believing that someone may, or even probably will, eventually get hurt if a workplace practice is continued does not rise to the level of an intentional act, but instead falls within the range of negligent acts that are covered by workers’ compensation.” Reeves v. Structural Preservation Systems, 1998-1795 (La.03/12/99), 731 So.2d 208, 212. Furthermore, gross negligence is insufficient for the intentional act exception. Id.

1 fiWhile we empathize with Reynolds’ health issues, nothing in the record supports Reynolds’ claim that the perceived delay to treat him was intentional. At the very least, the record reveals that several people acted on the information that Reynolds had collapsed: two phone calls were placed to 9-1-1; another call was placed to an LP manager; a call to the Sheriffs Department was made; and, several coworkers stayed with Reynolds waiting for help to arrive. Even if a delay in calling medical assistance had occurred, it certainly did not rise to the degree of gross negligence, nor was it “substantially certain” Reynolds would suffer subsequent health issues. As LP pointed out, Reynolds was the first inmate in the work-release program to have a heat stroke at the facility. We find that the evidence does not support Reynolds’ claim that LP management’s action (or alleged lack thereof) was intentional or that the results were consciously desired. Reynolds fails to produce sufficient factual support to show that he can meet his evidentiary burden at trial and therefore there is no genuine issue of material fact.

CONCLUSION

For the foregoing reasons, we affirm the trial court’s grant of summary judgment in favor of LP. Costs of this appeal are to be borne by Bobby Ray Reynolds.

AFFIRMED.

APPLICATION FOR REHEARING

Before BROWN, WILLIAMS, STEWART, PEATROSS and LOLLEY, JJ.

Rehearing denied.


author: BROWN, Chief Judge. CARAWAY, J.,

text:
    STATE of Louisiana, Plaintiff-Applicant v. A.D.A., Defendant-Respondent.
    No. 44,791-JWC.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 28, 2009.
    Rehearing Denied Nov. 19, 2009.
    Charles Scott, District Attorney, for Applicant.
    Brian H. Barber, Edwin L. Blewer, III, Assistant District Attorneys, Peter R. Flowers, Shreveport, for Respondent.
    Before BROWN, GASKINS, and CARAWAY, JJ. '
   BROWN, Chief Judge.

liThe State of Louisiana (through the Caddo Parish District Attorney) filed an application for supervisory writ seeking review of a ruling of the juvenile court denying a motion to transfer the case to the district court for prosecution of the juvenile, A.D.A., as an adult. For the foregoing reasons, we reverse and remand for transfer to the district court.

Facts

A.D.A., born April 13,1994, was charged with first degree murder by petition and affidavit filed with the juvenile court on April 15, 2009. On April 21, 2009, the state filed a motion to transfer the juvenile’s case to district court where he could be tried as an adult pursuant to La. Ch. C. art. 857. At the request of the state, the juvenile was evaluated by a psychologist who testified at the hearing on the motion to transfer held on May 21, 2009. At the conclusion of the hearing, the trial court considered the evidence in light of the factors enumerated in La. Ch. C. art. 862 and concluded that the state had failed to meet its burden justifying transfer to district court. Subsequently, the state filed a supervisory writ and this court stayed adjudication pending determination of the writ.

On April 9, 2009, A.D.A. was at the home of his aunt, Wanda Adams Tucker. During the evening, Wanda’s husband Victor, the victim, got into an argument with A.D.A. and asked him to leave the home. When A.D.A. refused to do so, Victor called 911 to report a disorderly person, but by the time the police arrived, A.D.A. had left the home. A.D.A. later returned to his aunt’s house, pounded on the door, and demanded entry while threatening Victor. As Victor was calling 911, A.D.A. kicked in the door, 12entered the home and shot Victor in the chest. A.D.A. subsequently left his aunt’s house. Both Wanda and her daughter Shantasia observed the shooting, and within a short time A.D.A. was apprehended at his mother’s home.

The hearing on the motion to transfer the juvenile’s case to district court was held on May 21, 2009. Witnesses included Dr. Pamela McPherson, appointed by the court to evaluate A.D.A., and two employees of the Office of Juvenile Justice Services, Christy Martin and Kim Scott. Dr. McPherson also prepared a report detailing her evaluation of A.D.A. A.DA.’s social and family history are partially documented in Dr. McPherson’s report.

At the time of this incident, A.D.A. was a 14-year-old (four days shy of his 15th birthday) boy living with his mother and Uncle Kenny in the Ingleside area of Shreveport, Louisiana. A.D.A.’s uncle suffers from a seizure disorder and mental retardation. A.D.A. attended regular classes at Bethune Middle School but had received special education services in the past. The report also indicates that A.D.A. has a history of juvenile justice involvement and includes diagnoses of mild mental retardation, ADHD, cannabis abuse, and a childhood onset conduct disorder, solitary aggressive type.

Beginning at eight years of age, A.D.A. began receiving mental health services as a result of academic and behavioral difficulties. He was diagnosed with ADHD and treated with medication with limited success. A.D.A.’s first run-in with the juvenile justice system came in March 2005 | ¡¡when he was adjudicated a delinquent. While he and his mother spent the following year and a half regularly participating in anger management classes and therapy, A.D.A. continued to defy authority at home and at school and repeatedly violated the conditions of his probation by smoking marijuana, receiving school suspension and disregarding curfew. In March of 2006, A.D.A. was admitted into Brentwood Behavioral Health Hospital after burning his Uncle Kenny’s hand and threatening him with a knife. While there he was diagnosed with impulse control disorder, bipolar disorder, ADHD, conduct disorder, cannabis abuse, personality disorder and antisocial passive-aggressive compulsive features.

Having exhausted the resources of Cad-do Parish, A.D.A. was transferred to the Office of Juvenile Justice Services which placed him in the Joy Home for Boys. A psychological evaluation performed upon his transfer diagnosed a conduct disorder, ADHD, marijuana abuse and mild mental retardation. A.D.A. remained at Joy Home for four months until his removal in February 2007 at the request of the facility’s staff. Specifically, the staff complained of A.D.A.’s treatment of staff and peers, defiance, verbal and physical aggressiveness and noncompliance with treatment and program goals.

A.D.A. was then placed at Hope Youth Ranch where he received special education services and reportedly thrived. His grades improved and he successfully passed the LEAP test allowing promotion to the 5th grade. In the fall of 2007 he returned home and was enrolled in Bethune Middle School. Once enrolled, A.D.A. began engaging in disturbing criminal and |,[disruptive behavior ranging from disobedience to stealing and possessing weapons. Eventually he was taken back into custody after stealing a BB gun from Dick’s Sporting Goods store in March 2008. A.D.A. was returned to the Hope Youth Ranch, but this time did not thrive in the program, incurring two additional property damage charges before his transfer to the Ware Juvenile Detention Center on October 28, 2008. One month later A.D.A. was placed in various foster homes through the LA Mentor program. After his case was reviewed by Judge Paul Young, A.D.A. was allowed to return to his mother’s home on March 2, 2009.

With respect to the present incident, A.D.A. admitted that on the evening of April 9, 2009, he had been at his Aunt Wanda’s home with two friends when her husband, Victor, chased him and his friends out of the home and tried to hit them. Victor also allegedly threatened to kill A.D.A. A.D.A. got mad and admitted that he was not doing as he was told. Eventually, Uncle Vic called the police and A.D.A. left. He went to retrieve a gun he had bought a week earlier from a “crack head” and which he had placed in some bushes to hide from his mother. A.D.A. returned to Aunt Wanda’s home with the gun where he intended to shoot his uncle in the arm “to let him know not to mess with [him].” A.D.A. banged on the door and proceeded to argue with his uncle. Despite the pleas of his aunt and friends, A.D.A. fatally shot his uncle.

At the conclusion of the report, Dr. McPherson indicates her belief that there is a “substantial opportunity for [A.D.A.]’s rehabilitation within |Bthe juvenile justice system.” Dr. McPherson reiterated this conclusion at the hearing on the motion to transfer.

Specifically, when asked about why she believed that rehabilitation was possible when the juvenile justice system had obviously failed to have that effect in its earlier dealings with A.D.A., the doctor cited the services available at the Swanson Youth Home. While she admitted that she had not reviewed any information from the Office of Juvenile Justice Services regarding the programs available at Swanson, Dr. McPherson indicated familiarity with several youths who had been successfully treated there and claimed to have spoken to the developer of the Swanson’s mental health program, Dr. Steven Phillipi.

Contrary to this assessment, two members of the Office of Juvenile Justice Services, Christy Martin and Kim Scott, testified that there are no programs available within the system that have not previously been provided to A.D.A. and that the net effect of those services was a failure at rehabilitation. The testimony indicated that the Office of Juvenile Justice evaluates juveniles and selects services based upon those evaluations to ensure that programs are tailored to the needs of each juvenile. Further, as A.D.A. has been provided services by the Office of Juvenile Justice numerous times, some programs have been offered to him multiple times without any corresponding reduction in his lawless behavior.

| Jfhe trial court noted that A.D.A.’s age, maturity and sophistication weighed in favor of transfer. Specifically, the court did not believe that A.D.A. suffered mild mental retardation after observing his participation in court proceedings, and considering the fact that he had passed the LEAP exam. The court also found that the seriousness of the crime, the calculated shooting of an unarmed human being, weighed in favor of transfer.

The trial court found that past efforts at rehabilitation had been unsuccessful and refused to attribute this failure to the lack of appropriate academic accommodations being made whenever the child returned to the school system. Lastly, the trial court found that there was no evidence that the child’s behavior was related to his alleged retardation or his impulsivity. Weighing against all this, however, the trial court considered the evidence regarding the services which would be available upon A.D.A.’s placement at Swanson. The trial court noted that the evidence showed that Swanson could handle children who have committed murder and who suffer from the same mental health disorders as A.D.A. More importantly, the court noted that A.D.A. had not previously been placed or treated at Swanson and thus its programs could not be said to have failed.

At the conclusion of the hearing, Judge Young reviewed the evidence and law and determined that the state had failed to show that there was no substantial opportunity for rehabilitation and, as a result, denied the transfer. His oral opinion rested upon the report and testimony of Dr. McPherson, and he concluded that as A.D.A. has never been placed in a secure setting, he should be given this opportunity for rehabilitation prior to facing criminal charges in adult court.

17The state argues that this conclusion was an abuse of discretion because Dr. McPherson’s opinion about the possibility of rehabilitation was, by her own admission, a reference to ADA’s ability to advance academically “with reasoning ability” and “emotional regulation” to a point more closely resembling his chronological age, the medical definition of rehabilitation, and not a reference to A.D.A.’s potential for recidivism, the legal definition of rehabilitation. The state further avers that Dr. McPherson’s opinion referenced only a “possibility” of rehabilitation, which is less than the statutory requirement of a “substantial opportunity for rehabilitation.”

Discussion

Louisiana Children’s Code Article 857 authorizes the juvenile court to conduct a hearing to consider whether to transfer a child, 14 years of age or older, to district court for prosecution when a delinquency petition is filed alleging that the child has committed one of several enumerated offenses, including first and second degree murder. The factors to be considered in adjudicating such a motion are set forth in La. Ch. C. art. 862, which provides, in part:

A. In order for a motion to transfer a child to be granted, the burden shall be upon the state to prove all of the following:
(1) Probable cause exists that the child meets the requirements of Article 857.
(2) By clear and convincing proof, there is no substantial opportunity for the child’s rehabilitation through fácil-ities available to the court, based upon the following criteria:
(a) The age, maturity, both mental and physical, and sophistication of the child.
ls(b) The nature and seriousness of the alleged offense to the community and whether the protection of the community requires transfer.
(c) The child’s prior acts of delinquency, if any, and their nature and seriousness.
(d) Past efforts at rehabilitation and treatment, if any, and the child’s response.
(e) Whether the child’s behavior might be related to physical or mental problems.
(f) Techniques, programs, personnel, and facilities available to the juvenile court which might be competent to deal with the child’s particular problems.

The determination of whether a youth is amenable to rehabilitation is a matter within the sound discretion of the juvenile court which has the opportunity to hear the evidence and observe the juvenile. However, this discretion is limited in that it must reflect consideration of the factors outlined in Article 862. See State v. Davis, 32,379 (La.App. 2d Cir.09/22/99), 749 So.2d 701. Further, these factors should be evaluated consistently with our legislative scheme, which since 1979 has not favored noncriminal treatment of juveniles. State v. Perique, 439 So.2d 1060 (La.1983).

In its brief, the state relies upon this court’s holding in State v. Davis, supra, and our holding in that matter is instructive. See also State v. Havis, 03-2490 (La.04/30/04), 874 So.2d 153, citing State v. Davis. The Dams case involved a similar set of circumstances: a 14-year-old juvenile defendant with several prior adjudications of delinquency facing charges which included attempted first degree murder. The juvenile was transferred |<|to district court, pled guilty, and later appealed his sentence, arguing that his transfer was unconstitutional. We affirmed his conviction and sentence.

In the matter sub judice, a contradictory hearing was held on May, 21, 2009, to determine whether A.D.A. should be transferred to criminal court. The probable cause hearing was also held at this time. The state presented its evidence, and defense stipulated that there is probable cause in this matter. Thus, the second prong of La. Ch. C. art. 862 requiring the state to prove that there is no substantial probability for rehabilitation presents the only bar to A.D.A.’s transfer to district court.

It is clear from the record, and Judge Young’s decision, that the juvenile possessed the age and mental sophistication to understand his actions and their consequences. The juvenile was almost 15 years old. He had been processed through the juvenile justice system many times. Thus, he had the requisite mental sophistication to understand the charges against him. A.D.A.’s statements regarding the defense of self-defense support this conclusion. We do not find that any mental deficiencies were sufficiently profound to prevent this knowledge and understanding.

Further, A.D.A. is charged with first degree murder. There is no more serious charge justifying protection for the community at large. Additionally, a review of the juvenile’s criminal record lists at least nine prior adjudications of delinquency. He has perpetrated several violent crimes against persons. Thus it appears that his criminal behavior is escalating.

Further, as stated by the witnesses from the Office of Juvenile Justice, A.D.A. has been offered every relevant service. In fact, he has been offered |insome of the services several times. There are no new programs to offer him. Further, the individuals from the Office of Juvenile Justice are more familiar with this juvenile’s case, history, and the range of services he has been provided. These individuals saw no reason to believe that A.D.A. could be rehabilitated. Although Dr. McPherson found otherwise, it is clear from the record that she failed to assess the legally relevant issue, recidivism.

Our statutes and jurisprudence do not require the implementation of every conceivable treatment methodology. It is sufficient that rehabilitation services have been offered in the past, and those services have failed to rehabilitate A.D.A. In this matter, the state presented sufficient evidence to prove by clear and convincing evidence that there is no substantial opportunity for A.D.A.’s rehabilitation. Accordingly, we find that the juvenile court abused its discretion and hereby reverse its determination in this matter.

Conclusion

For the foregoing reasons, the decision of the juvenile court is REVERSED. This matter is remanded for transfer to district court.

CARAWAY, J., dissents with written reasons.

CARAWAY, J.,

dissenting.

hi respectfully dissent. Dr. McPherson’s expert testimony did address the opportunity for the child’s rehabilitation which is the factor at issue under La. Ch. C. art. 862. Indicating that Article 862 was not followed, the majority determines that Dr. McPherson “failed to assess the legally relevant issue” of recidivism. Article 862 speaks only in terms of the “opportunity for the child’s rehabilitation,” and any review of that opportunity would necessarily involve consideration of recidivism. As the only mental health expert to testify, Dr. McPherson’s testimony cannot be discarded by this twist of the legal standard. Moreover, any reliance on this court’s ruling in Davis overlooks the important distinction of that case. In Davis, the juvenile court employed its discretion and transferred the youth to the district court for prosecution. That same discretion is now rejected by the majority. Thus, there is no legal deficiency in the analysis employed by Dr. McPherson, no contrary expert opinion by the state, and no abuse of the juvenile court’s discretion.

CARAWAY, J., dissents with written reasons.

APPLICATION FOR REHEARING

Before BROWN, GASKINS, CARAWAY, PEATROSS and MOORE, JJ.

Rehearing denied.

CARAWAY, J., would grant rehearing.

      . According to Dr. McPherson’s testimony the Swanson Facility offers services in a secure environment.

      . It should be noted that although Dr. Phillipi developed the program originally utilized by Swanson, it is unclear whether he still maintains any association with, or oversight of, the program at Swanson.