text:
    In re Wade R. BAGGETTE.
    No. 2009-B-1091.
    Supreme Court of Louisiana.
    Oct. 20, 2009.
    Rehearing Denied Nov. 18, 2009.

      Charles Bennett Plattsmier, Baton Rouge, Robert Samuel Kennedy, Jr., Shreveport, for applicant.
    Dimos, Brown, Erskine, Burkett & Garner, LLP, Cody Wayne Rials, Monroe, Donald R. Brown, Alexandria, for respondent.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

11 This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Wade R. Baggette, an attorney licensed to practice law in Louisiana.

UNDERLYING FACTS

The underlying facts of this matter are extremely complex. By way of background, Helen Smith Fuller (hereinafter referred to as “Helen”) died intestate in May 1976, survived by her daughter and only heir, Jo Anne Fuller (“Jo Anne”). Jo Anne administered some of the properties that had belonged to her mother but did not open her mother’s succession. Jo Anne, who had never been married and had no children, died intestate on January 20, 1984. She was survived by one maternal aunt, Elizabeth Smith Collins (“Mrs. Collins”), age 76, and two paternal aunts, Annie Mae Fuller Anderson (“Mrs. Anderson”), age 84, and Clara Fuller To-bin (“Mrs. Tobin”), age 87. Mrs. Anderson and Mrs. Tobin were also the great aunts of respondent’s wife. Mrs. Tobin died testate in August 1985. Her legatees consisted of respondent, his wife, and his wife’s parents.

\2Succession of Jo Anne Fuller

On January 25, 1984, five days after Jo Anne’s death, Mrs. Anderson and Mrs. Tobin retained respondent to represent them in connection with Jo Anne’s succession. Mrs. Anderson also granted respondent a general power of attorney to handle her affairs. On that same day, upon the nomination of Mrs. Anderson and Mrs. Tobin, respondent was appointed the provisional administrator of Jo Anne’s succession. He served in that capacity until October 31, 1984, at which time the maternal aunt, Mrs. Collins, was appointed ad-ministratrix.

Mrs. Anderson and Mrs. Tobin also nominated respondent to be the administrator of Helen’s succession. Respondent was appointed to that position in March 1984. Mrs. Collins thereafter petitioned for respondent’s removal, claiming that he was not qualified to serve as administrator under the Louisiana Code of Civil Procedure. This effort by Mrs. Collins was unsuccessful, and for a time Helen’s and Jo Anne’s successions proceeded in tandem with separate administrators.

In 1986, respondent petitioned the trial court for approval to sell all of the property of Helen’s succession at private sale. The sales price was $180,000, with respondent and his wife, his wife’s parents, and Mrs. Anderson named as buyers. Mrs. Collins opposed the sale. In early January 1990, the trial court ruled that the pro _]£uta sale would be permitted. Respondent, his wife, and in-laws were to receive a total of one-third of the property for $60,000. However, on January 12, 1990, before the sale could take place, this court consolidated the assets of Helen’s succession into Jo Anne’s succession. This action ended respondent’s tenure as administrator of Helen’s succession, and left Mrs. Collins as administratrix of the consolidated successions.

The administration of Jo Anne’s estate was complicated by tax problems. First, Jo Anne had failed to file income tax returns in the years prior to her death. On October 29, 1984, the IRS filed a proof of claim in Jo Anne’s succession showing that Jo Anne owed over $1 million in unpaid income taxes. On January 8, 1990, Mrs. Collins and respondent received a notice of levy from the IRS, seizing all the property of Jo Anne’s and Helen’s successions to satisfy the income tax obligation owed by Jo Anne. At that time, Jo Anne owed $1.65 million in unpaid income taxes, penalties, and interest.

^Furthermore, the succession was at odds with the IRS over estate taxes. On April 14, 1988, the IRS notified Mrs. Collins of a $4.45 million deficiency in the estate tax liability of the Estate of Jo Anne Fuller. The IRS had placed a much higher value on the estate property than had Mrs. Collins when she filed the estate tax return. The major asset in question was four promissory notes given to Jo Anne by an Arkansas physician, David Newbern. Although the estate ascribed a discounted value of $230,000 to the four “Newbern notes,” the face value of the notes was actually $4,910,000. It was the face value of the notes, plus other adjustments in the estate tax paid by Jo Anne’s succession, which formed the basis of the $4.45 million deficiency assessment.

At the same time, the Newbern notes were the subject of a lawsuit filed in February 1988 by respondent, his wife, his in-laws, and Mrs. Anderson against Mrs. Collins and her attorneys, the Shreveport law firm of Cary & Cary. The plaintiffs alleged that Mrs. Collins and her attorneys had allowed the Newbern notes to prescribe and breached other fiduciary duties as administratrix of Jo Anne’s succession. On April 20, 1988, an Arkansas court agreed that the Newbern notes were prescribed and were not furnished for consideration. On July 14, 1988, attorney John Luffey, Jr., the tax counsel for Jo Anne’s estate, filed a petition in the United States Tax Court contesting the estate tax deficiency. Among other contentions, Mr. Luffey asserted that no value should be given to the Newbern notes among the assets of the estate.

Notwithstanding the position taken by Mr. Luffey in the Tax Court, respondent counseled his client, Mrs. Anderson, against accepting the assets of Jo Anne’s |succession. Respondent told Mrs. Anderson that with interest and penalties, the estate tax liability was $8.5 million, far in excess of her interest in the estate. The ODC contends that respondent intentionally and artificially overstated the estate tax liability so that he could acquire the succession assets for himself at a fraction of their fair market value, and that there was not a significant risk that the IRS would ever assess $8.5 million in estate taxes.

Meanwhile, respondent was working to amicably resolve the issues with the IRS and Mrs. Collins. By January 1990, respondent had proposed that he purchase the assets of Jo Anne’s estate, but the IRS agent in charge of collecting the income taxes, Winfred Weldon, informed respondent that the IRS would not support his proposal unless the purchase price would fully pay the outstanding income taxes. However, Mr. Weldon explained, the payment of the income taxes would have a “very positive impact upon the estate taxes owed by Jo Anne Fuller,” as the payment in full of the income taxes “will negate most if not all, the estate taxes owing by both estates.”

On March 28, 1990, respondent and Mrs. Collins entered into a confidential settlement whereby Mrs. Collins agreed to sell respondent the entirety of the succession assets, on the condition that respondent assume liability for the payment of the taxes. With regard to the estate taxes, the settlement agreement provided that the claim “shall be settled as to the amount of the obligation by closing. IRS may not necessarily be paid any remaining estate tax at that time, because the new administration may elect to pay such remaining tax pursuant to the provisions of IRC | (i6166 or other relief provisions (including 6161). However, the obligation shall be determined and fixed by closing, so that it will be known to Buyer [respondent].” [Emphasis in original.] On April 16, 1990, respondent wrote a letter to Mrs. Collins’ attorney in which he stated, with regard to the estate tax, “We have that almost settled.”

On April 30, 1990, the closing of the sale of the succession assets by Mrs. Collins to respondent took place. Respondent paid Mrs. Collins the sum of $397,000 for her interest in the two successions, plus a $125,000 fee for her services as administra-trix. In order to finance the transaction with Mrs. Collins, and to pay the income and estate taxes owed to the IRS, respondent borrowed funds from, among other sources, his client, Mrs. Anderson. In March 1990, respondent transferred $600,000 from two bank accounts in Mrs. Anderson’s name to Auburn Corporation (“Auburn”), a closely-held corporation he created expressly for the purpose of acquiring the succession property. Respondent and his wife are the sole shareholders of Auburn. In consideration of the transfer of funds, respondent executed a $600,000 promissory note on behalf of Auburn in favor of Mrs. Anderson. The particulars of the transaction are not memorialized in any documents or memoran-da executed or acknowledged by Mrs. Anderson indicating her awareness or authorization of the “loan.” Moreover, respondent did not advise Mrs. Anderson to seek independent advice regarding the consequences of entering into a business transaction with her lawyer.

|7On May 2, 1990, respondent sent a report to Mr. Weldon in which he advised that he had obtained a commitment from the bank for the financing to pay the income taxes, and had “tentatively settled the estate tax with Gus Marcotte [the estate tax auditor], at least in principle. We know approximately what the final figure will be, so that I can plan my financing. I am relying on Gus as to the estate tax figure.”

Following the execution of the settlement documents with Mrs. Collins, respondent and Mrs. Collins filed a joint petition seeking the approval of the trial court to sell the succession assets to respondent or his designee, Auburn. The petition was granted. Respondent then paid the income taxes owed to the IRS, approximately $1.65 million, and completed the negotiations to resolve the estate tax claim.

In December 1990, the IRS acquiesced in Mr. Luffey’s contention that no value should be given to the Newbern notes among the assets of the estate, and a stipulation was filed in the Tax Court reducing the value of Jo Anne’s taxable estate by $4,910,000. In January 1993, the United States Tax Court formally accepted the stipulation of the parties. The effect of the stipulation was that no estate taxes were paid by Jo Anne’s succession; rather, the succession was actually due a refund of estate taxes in the amount of $172,328.22. The refund was paid to Auburn.

Once the assets of the successions were owned by Auburn free and clear of any tax liens, respondent transferred 70,000 shares of bank stock to himself and then transferred all of the remaining assets to his wife via a series of dations en paiement |sThe ODC alleges that these transactions were designed to place the property beyond the legal reach of heirs seeking to rescind the transfers; however, respondent denies this allegation. Rather, respondent suggested that he transferred the bank stock to himself in order that Auburn would not be considered a bank holding company, and that the transactions involving his wife were designed solely “to get the properties out of the corporation” in order that Auburn would not have to pay some $5,000 in annual franchise taxes.

Succession of Annie Mae Fuller Anderson

In February 1994, Mrs. Anderson died, and respondent’s wife, Nancy, was appointed executrix of the succession. Respondent served as counsel for the executrix. Soon after her appointment, Mrs. Baggette was discharged as executrix, and Mrs. Anderson’s nephew, James Roy Fuller, Jr., was appointed dative testamentary executor. In 1996, Mr. Fuller filed suit against respondent, his wife, and Auburn. Among other allegations, Mr. Fuller claimed that respondent defrauded Mrs. Anderson of her inheritance of one-third of the assets belonging to the successions of both Helen and Jo Anne. Mr. Fuller further alleged that respondent, as legal representative of the successions, illegally and fraudulently conveyed succession assets to Auburn for prices far below their fair market value, and | nthat in doing so, he breached his fiduciary duty to protect and preserve the succession assets. Mr. Fuller also asserted that respondent fomented years of litigation in the two successions and frustrated Mrs. Collins’ attempts to administer Jo Anne’s succession as part of a concerted scheme to gain control and ownership of the property belonging to Helen’s and Jo Anne’s successions.

In response to the petition, respondent filed the exceptions of prescription and peremption. Ultimately, the trial court granted the exception of prescription and dismissed all of Mr. Fuller’s claims against respondent in his capacity as administrator of Jo Anne’s succession, and all of Mr. Fuller’s claims against respondent in his capacity as administrator of Helen’s succession after January 12, 1990. However, the court of appeal reversed, finding that Mr. Fuller’s suit against respondent was timely.

The Fuller case was then set for trial. After several continuances of the matter, the suit settled in March 2007 when respondent agreed to pay $1.1 million to Mrs. Anderson’s heirs.

DISCIPLINARY PROCEEDINGS

In 2003, after the Second Circuit Court of Appeal issued its opinion in Fuller v. Baggette, the ODC initiated an investigation into respondent’s conduct in this matter. In August 2006, the ODC filed one count of formal charges against respondent. Although numerous rule violations are set forth in the formal charges, the focus of this proceeding is upon Rule 1.8(a) of the Rules of Professional Conduct, which at the time of the alleged misconduct provided:

A lawyer shall not enter into a business transaction with a client or knowingly acquire an ownership, possessory, | i0security or other pecuniary interest adverse to a client unless:
(1) The transaction and terms on which the lawyer acquires the interest are fair and reasonable to the client and are fully disclosed and transmitted in writing to the client in a manner which can be reasonably understood by the client;
(2) The client is given a reasonable opportunity to seek the advice of independent counsel in the transaction; and
(3) The client consents in writing thereto.

Following the filing of the formal charges, respondent, through counsel, filed a motion to stay the disciplinary proceedings pending the conclusion of the civil suit against him by Mr. Fuller. The ODC objected to the motion to stay. In November 2006, the hearing committee granted respondent’s motion and stayed the matter “until two weeks following the close of the trial” of the Fuller suit, or until March 15, 2007, whichever occurred earlier. The hearing committee further ordered that respondent would be required to file an answer to the formal charges at that time.

On April 11, 2007, following the settlement in Fuller, respondent filed an answer to the formal charges in which he denied any violation of the Rules of Professional Conduct. However, in his pre-hearing memorandum, respondent conceded that he “did not provide [Mrs. Anderson] a written document fully disclosing the terms on which the assets of the consolidated successions were being acquired and [Mrs. Collins’] interest was being purchased nor was [Mrs. Anderson’s] consent to these matters obtained in writing,” in violation of Rule 1.8(a).

Hearing Committee Report

This matter proceeded to a formal hearing on the merits. After considering the evidence and testimony presented at the hearing, the hearing committee found that the underlying facts are largely not in dispute. Rather, the differences of opinion between | nthe parties relate almost exclusively to respondent’s motive for undertaking the actions in question. The committee’s factual findings include the following:

1. On January 25, 1984, Mrs. Tobin and Mrs. Anderson retained respondent to represent them in Jo Anne’s succession. Both also executed general powers of attorney in favor of respondent. At the time these documents were executed and on numerous occasions thereafter, both Mrs. Tobin and Mrs. Anderson told respondent and his wife, Nancy Baggette, that they did not want any immovable property and bank stock owned in indivisión by members of the extended Fuller family to be sold to anyone outside the family.

2. Respondent was appointed as provisional administrator of Jo Anne’s succession and served in that capacity until October 31, 1984. The succession was extremely complex, having numerous assets of all kinds, including a large amount of immovable property, but also large debts, including both income and estate taxes owed to the federal government. Jo Anne had not paid income taxes during the last years of her life.

3. Respondent was also appointed administrator of Helen’s succession and administered the assets of that succession until the Louisiana Supreme Court consolidated Helen’s and Jo Anne’s successions on January 12, 1990.

4. On August 5, 1985, Mrs. Tobin died testate, naming respondent, Mrs. Bag-gette, and Mrs. Baggette’s parents, George and Eloise Wiggers, as universal legatees.

5. From November 1, 1984, when she qualified as administratrix, until her resignation on April 19, 1990, Mrs. Collins served as the representative of Jo Anne’s succession, and after the January 12, 1990 consolidation she also administered the assets of Helen’s succession.

1126. On March 4, 1987, while in the possession of Mrs. Collins’ attorneys, Cary & Cary in Shreveport, promissory notes having a face value of $4,910,000 signed by an Arkansas physician, Dr. Newbern, in favor of Jo Anne prescribed. The “Newbern notes” were discovered after Jo Anne’s death. Whether they ever had any value is debatable. Regardless, the IRS included them as a significant asset of Jo Anne’s estate.

7. On February 24, 1988, respondent, his wife, and in-laws and Mrs. Anderson sued Mrs. Collins and Cary & Cary for damages as a result of the prescribed Newbern notes.

8. On April 14, 1988, a statutory notice of deficiency in the amount of $4,445,222 was served on Mrs. Collins for estate taxes (plus interest) and attorney John Luffey was retained to file suit in Tax Court to contest this assessment.

9. The Fuller heirs, consisting of Mrs. Anderson, respondent, his wife, and in-laws, agreed to a pro rata purchase of the assets of Helen’s succession for a total sales price of $120,000, and the right was accorded Mrs. Collins to purchase her one-third of those assets for $60,000, the total sales price being $180,000. On January 3, 1990, after all legal delays and meeting all requirements, a judgment homologating the application for authority to make the pro rata sale to the heirs was rendered by a judge of the Fourth Judicial District Court.

10. All assets of both Helen’s and Jo Anne’s successions were seized on January 10, 1990 by the IRS for past-due income taxes plus interest and other assessments which eventually required payment of $1,711,881.18.

11. Cary & Cary, on behalf of Mrs. Collins, retained Arkansas counsel to sue Dr. Newbern on the prescribed notes in the Circuit Court of Pulaski County, ^Arkansas. This resulted in an adverse judgment decreeing the notes time barred and furnished for no consideration.

12. Shortly after the seizure of the assets of the consolidated successions, the IRS, through its agent in charge, Winfred Weldon, contacted respondent and Mrs. Collins’ new attorney, William Ledbetter, with demands for payment of the income tax obligation. Mr. Weldon informed Mr. Ledbetter and respondent that the IRS intended to sell all assets of the succession, and both respondent and Mrs. Collins were warned of their personal liability for paying debts in preference to the taxes owed.

13. Extensive negotiations among and between respondent and the other heirs of Mrs. Tobin, Mrs. Anderson, the IRS, and Mrs. Collins resulted in an agreement whereby the assets of the consolidated successions were sold to respondent or his designee on the condition that he personally assume the obligation of paying all debts, charges, fees and expenses of both successions due and/or necessary to complete administration of the consolidated successions, including all federal income and estate taxes.

14. The terms of this settlement were explained by Mr. Baggette to Mrs. Baggette, Mr. Wiggers, a sister-in-law, and Mrs. Anderson, but only Mrs. Baggette elected to participate in the purchase.

15. Pursuant to the agreement, Mrs. Collins and respondent filed a series of petitions seeking authority to sell the assets of the consolidated successions, the terms of the sale being fully set out as required by law. After due advertisement in all parishes where immovable property being sold was located, as well as in Ouachita Parish, in which the probate proceeding was pending, no opposition was filed and with the lapse of legal delays, judgment homologating the petitions was rendered by the probate court.

|1416. Meanwhile, as agreed, Mrs. Collins sold her interest in both successions to a corporation wholly owned by respondent and his wife and resigned as administratrix of Jo Anne’s succession. Mutual releases were given by Mrs. Collins on the one hand and Mrs. Anderson, respondent, Mrs. Baggette, respondent’s father-in-law and sister-in-law, on the other. Mrs. Collins was dismissed from the lawsuit and an indemnity and “hold harmless” clause in her favor was granted.

17. To obtain the funds needed for the settlement, the Baggettes borrowed $700,000 from Louisiana Bank, and Mrs. Baggette borrowed $600,000 from Mrs. Anderson, giving an interest bearing promissory note to her aunt. The obligation in principal and interest to Mrs. Anderson was fully paid on April 1,1993.

18. Respondent and his wife were very involved in the care of Mrs. Anderson and management of her affairs in her later years. After her death, there ensued a contest over two wills executed by Mrs. Anderson (a statutory will dated November 21, 1984 and an olographic will dated July 22, 1986), after which the olographic will was upheld and James Fuller, a nephew of Mrs. Anderson, was appointed executor of Mrs. Anderson’s estate by order dated June 3,1994.

19. In 1996, Mr. Fuller filed suit against respondent for breach of fiduciary duty. This suit was settled in 2007.

Based on these factual findings, the committee found that respondent violated Rule 1.8(a) by not providing Mrs. Anderson with a written document fully disclosing the terms in which the assets of the consolidated successions were being acquired and Mrs. Collins’ interest was being purchased, and not obtaining Mrs. Anderson’s consent to these matters in writing. The committee found an additional violation of 11fiRule 1.8(a) stemming from the $600,000 loan, but noted that no actual harm was done to Mrs. Anderson in connection with the loan.

The committee further found that respondent did not breach his fiduciary duty as a succession representative in purchasing property belonging to Jo Anne’s succession. At the time of the purchase respondent and his wife were heirs by representation as legatees of Mrs. Tobin, and as such were specifically allowed by the Louisiana Code of Civil Procedure to acquire the property of Jo Anne’s succession. Additionally, the committee found that the acquisition was motivated by the heirs’ insistence that the property not be sold outside the family, and the “very real threat of the unpaid taxes which were due on the succession property.” The committee specifically concluded that “the threat to the estate by the Internal Revenue Service was real and not something ‘trumped up’ by Respondent. ... The ODC presented no | mproof that Respondent planned the outcome or somehow knew the estate tax liability would disappear and the succession .property would greatly increase in value.”

The committee found that the applicable baseline sanction for respondent’s misconduct is suspension. In aggravation, the committee found the following factors: vulnerability of the victim and substantial experience in the practice of law (admitted 1981). The committee found the following mitigating factors: absence of a prior disciplinary record, absence of a dishonest or selfish motive, and personal or emotional problems. The committee also noted in mitigation that respondent has “admitted the technical violations of [Rule] 1.8(a) discussed above.”

Considering all these circumstances, the committee recommended that respondent be suspended from the practice of law for eighteen months, with six months deferred, followed by a six-month period of probation.

Both respondent and the ODC objected to various aspects of the hearing committee’s report and recommended sanction. Respondent took issue with the hearing committee’s failure to find several mitigating factors which he maintained apply in this case and argued that the sanction recommended by the committee is too harsh. Respondent suggested that the appropriate discipline is a fully deferred period of suspension, subject to probation. The ODC objected to the committee’s factual findings and legal conclusions and argued that the appropriate sanction in this case is disbarment.

Disciplinary Board Recommendation

After review, the disciplinary board found that the hearing committee’s factual findings are manifestly erroneous in several respects. In particular, the committee | l7found that to obtain the funds needed for the settlement, the Baggettes borrowed $700,000 from the bank and Mrs. Baggette borrowed $600,000 from Mrs. Amderson, giving an interest bearing promissory note to her aunt. The board found the committee failed to point out that initially Auburn, not Mrs. Baggette, borrowed the money from Mrs. Anderson. Auburn was the closely-held corporation of respondent and Mrs. Baggette. Three days after the initial note was executed by respondent on behalf of Auburn, the note was paid in full and then Mrs. Baggette executed a $600,000 promissory note in favor of Mrs. Anderson for the loan.

The board agreed with the committee that respondent violated Rule 1.8(a) of the Rules of Professional Conduct. Respondent violated this rule when he, through Auburn, acquired Mrs. Anderson’s interest in the consolidated succession assets without transmitting the terms of the sale to Mrs. Anderson in writing and without giving her reasonable opportunity to seek the advice of independent counsel. He also failed to obtain Mrs. Anderson’s written consent to the transaction. He further violated the rule when he, through Auburn, borrowed $600,000 from Mrs. Anderson to purchase the assets of the consolidated estate while representing her in Jo Anne’s succession. He again failed to comply with the requirements of the rule by failing to memorialize the terms and conditions of the loan agreement in writing, by failing to advise her to seek the advice of independent counsel and by failing to have her consent to the terms of the agreement in writing. Interestingly, as to the loan, respondent could not testify with certainty that he had actually discussed the terms of the loan with Mrs. Anderson. He instead suggested that his wife had handled the negotiations with Mrs. Anderson, who was ninety years old at the time.

In its brief to the board, the ODC argued that the committee erred by finding that the Code of Civil Procedure articles dealing with successions dispensed with respondent’s obligation to comply with the Rules of Professional Conduct governing | ^business transactions with a client and that his violation of Rule 1.8(a) was only a technical one. The board agreed with the ODC, reasoning that while La.Code Civ. P. arts. 3194 and 3195 allow for an heir to purchase assets of the succession while also functioning as the representative of the succession, the committee failed to fully account for the fact that during this time respondent also represented Mrs. Anderson in Jo Anne’s succession. As such, the dictates of Rule 1.8(a) were very much in effect, and respondent’s failure to follow the requirements of the rule when entering into the sale of the assets of the consolidated estates to Auburn, and when entering into a promissory note agreement with Mrs. Anderson through Auburn, resulted in a serious violation of the Rules of Professional Conduct — not just a “technical” violation as described by the hearing committee.

The ODC also argued that the committee erred in finding that respondent possessed no dishonest or selfish motive in purchasing his client’s interest in the succession. This issue focuses on whether respondent knew, at the time of Auburn’s purchase of the assets of the consolidated estates, that the $8.5 million estate tax lien would be eliminated by the payment of the $1.65 million income tax liability. Although the committee found the ODC failed to prove its contention that the $8.5 million estate tax lien was illusory, the board found the ODC produced clear and convincing evidence that respondent did not believe, at the time of the sale, that the $8.5 million estate tax was actually going to be imposed by the IRS.

The board determined that respondent violated duties owed to his client, Mrs. Anderson. Respondent’s conduct was knowing and intentional. The amount of actual injury was substantial. Mrs. Anderson’s heirs were required to sue respondent and others to obtain their portion of Mrs. Anderson’s succession rights that were sold to Auburn. The board determined that the baseline sanction for this misconduct is | |9disbarment, citing Standard 4.31 of the ABA’s Standards for Imposing Lawyer Sanctions,

The board found the following aggravating factors apply: a dishonest or selfish motive, vulnerability of the victim, and substantial experience in the practice of law. In mitigation, the board recognized the following factors: absence of a prior disciplinary record and personal or emotional problems (family dispute over estate property).

Finding that respondent disregarded his professional obligations to Mrs. Anderson and caused great harm to her heirs, the board recommended that respondent be 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

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 12pis 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.

Respondent has admitted his violation of Rule 1.8(a) of the Rules of Professional Conduct. Therefore, the only issue we must resolve is the appropriate sanction in this case. In considering that issue, we are mindful that disciplinary proceedings are designed to maintain high standards of conduct, protect the public, preserve the integrity of the profession, and deter future misconduct. Louisiana State Bar Ass’n v. Reis, 513 So.2d 1173 (La.1987). The discipline to be imposed depends upon the facts of each case and the seriousness of the offenses involved considered in light of any aggravating and mitigating circumstances. Louisiana State Bar Ass’n v. Whittington, 459 So.2d 520 (La.1984).

Respondent violated Rule 1.8(a) in two respects: first, he borrowed $600,000 from his elderly client, Mrs. Anderson, without disclosing the terms of the transaction to her in writing (or at all, for that matter), without giving her a reasonable opportunity to seek the advice of independent counsel, and without obtaining her written consent to the transaction. Second, at the time that respondent entered into an agreement to purchase Mrs. Anderson’s interest in Helen’s and Jo Anne’s successions, he did not disclose the terms of the transaction to her in writing, did not give her a reasonable opportunity to seek the advice of independent counsel, and did not obtain her written consent to the transaction. These are not mere “technical” violations of Rule 1.8(a), as found by the hearing committee. More disturbingly, the record supports a finding that respondent acted intentionally and with a dishonest motive. The documentary evidence suggests that at the time respondent purchased his client’s interest in the successions, he did not believe that the $8.5 million estate tax would actually be imposed by the IRS. In fact, Jo Anne’s succession eventually |21collected a refund of the estate taxes it had already paid. By this time, however, respondent’s closely-held corporation, Auburn, already owned the succession assets.

We agree with the board that under these facts, the applicable baseline sanction is disbarment. The aggravating factors present are a dishonest or selfish motive, vulnerability of the victim, and substantial experience in the practice of law (admitted 1981). In mitigation, respondent has no prior disciplinary record. Both the hearing committee and the board credited respondent with personal and emotional problems, and the board specifically identified that these were due to his family dispute over the estate property. As respondent’s own actions were a contributing factor in that dispute, we give this no weight in mitigation.

Under all the circumstances, no downward deviation from the baseline sanction is warranted in this case. Accordingly, we will accept the board’s recommendation and disbar respondent.

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 Wade R. Baggette, Louisiana Bar Roll number 2652, be and he hereby is disbarred. His name shall be stricken from the roll of attorneys and his license to practice law in the State of Louisiana shall be revoked. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.

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

      . The aunts were entitled to inherit a one-third interest each in Jo Anne's estate, the assets of which consisted of securities, personal movables, and immovable property located in seven parishes in north Louisiana.

      . Respondent subsequently submitted a bill to Jo Anne’s succession for $170,000 in fees covering the nine months that he served as provisional administrator. He was ultimately awarded $27,000 for his services as administrator, plus $510 representing attorney's fees for services rendered after the conclusion of his duties as provisional administrator. See

        Succession of Fuller, 501 So.2d 1017 (La.App. 2nd Cir.), writ denied, 504 So.2d 881 (La.1987).

      . See Succession of Fuller, 480 So.2d 754 (La.App. 2nd Cir. 1985) (on rehearing), writ granted, 482 So.2d 619 (La.1986).

      . Respondent testified that he "had pretty well cleaned up" Helen's succession, paid all the taxes and debts and was ready to put the heirs in possession, but he did not want to put the property into Jo Anne's succession because he believed Mrs. Collins had administered Jo Anne’s estate into insolvency. Therefore, respondent believed "it would be better to try to arrange a pro rata sale to the heirs."

      . In an earlier ruling, the trial court acknowledged that respondent’s proposal to sell all of the succession assets for $180,000 might seem "shocking” when considered in light of a previous pleading in which respondent indicated that the same property had a value of over $600,000. Nevertheless, the tidal court observed that Mrs. Collins, who opposed the sale, had not introduced any evidence of the actual fair market value of the property or of the existence of a willing third-party purchaser. Moreover, the trial court stated that it was convinced further administration of the succession would be detrimental to its successors, and that it believed the sale would bring about an earlier conclusion to the administration.

      . In luis answer to the complaint filed in this matter, respondent freely admitted that the proposed sale "was most likely a bargain sale,” although under the circumstances he denied that his conduct constituted a conflict of interest. Rather, he suggested his plan was "creative, original and well-intentioned” and-was designed with "the objective of getting around the insolvent Succession of Jo Anne Fuller and putting at least some properly of the Fuller Estates into the hands of the heirs, even if they had to buy it, which they all agreed to do.... The $180,000 proceeds of the sale, less legal and administrative fees, would have been distributed by me to the Succession of Jo Anne Fuller.”

      . Succession of Fuller, 556 So.2d 47 (La.1990).

      .The IRS did not immediately move to liquidate the assets of the estate to collect the income taxes, but soon threatened to do so when the parties could not negotiate a settlement to pay the taxes in full. Respondent contends that he simply could not abide by this fate as the Fullers have an "unwritten family rule” against selling their property outside the family unless all the family members consent. He suggests that this was the motivation for his conduct in this matter.

      . The 1985 estate tax return filed by Mrs. Collins showed that the gross estate was worth $5,788,737 and that $644,097 was owed in estate taxes.

      . Anderson v. Collins, No. 88-628 on the docket of the 4th Judicial District Court for the Parish of Ouachita.

      . Mr. Weldon later explained that any income taxes paid by the succession would become a credit against the estate taxes due.

      . Respondent also agreed to dismiss all claims brought against Mrs. Collins in the Anderson case. The confidential settlement agreement obliged Mrs. Collins to resign as the administratrix of Jo Anne's succession and to support respondent's application to be the successor administrator.

      . The public records indicate that the sales price was $30,000, divided equally between the two successions. The true consideration paid by respondent to Mrs. Collins is reflected in an unrecorded counter letter executed by the parties on April 16, 1990.

      . Respondent testified that he owns a 55% share in Auburn, and his wife owns the remaining 45% share.

      . Respondent testified that this note was executed “in error,'' and that it had always been intended that the loan would be made by his wife. He testified that the loan by Auburn was paid in full within several days and replaced with a promissory note from his wife to Mrs. Anderson.

      . The documents transferring the estate properties to respondent were recorded in the probate record but were not filed in the conveyance records until five years later. Respondent testified that there was a delay because he "didn't see any purpose in filing them in the conveyance records” when they were first executed.

      . Following these transfers, Mrs. Baggette transferred the assets to two revocable trusts in her name. Respondent is the beneficiary of one trust; his son is the beneficiary of the other. Respondent testified that he set up the trusts purely as a "management device.”

      . Respondent has since sold the bank stock for $5.5 million.

      . Mrs. Anderson had executed a statutory will prepared by respondent in 1984, naming respondent as succession attorney and executor and his wife as alternate executrix. The will provided a total of $11,600 for memorials at two universities and for small legacies to certain nieces, nephews, great-nieces, and great-nephews, with the remainder of Mrs. Anderson's estate to six named universal legatees: respondent and his wife, respondent's in-laws, and two of Mrs. Anderson's nephews. However, in 1986, and unbeknownst to respondent, Mrs. Anderson executed an olo-graphic will revoking all prior wills and giving her entire estate to all of her nieces and nephews in equal portions. Respondent and his wife attempted to challenge the olographic will on grounds of undue influence, but they were not successful.

        . See Succession of Anderson, 26,947 (La. App. 2nd Cir.5/10/95), 656 So.2d 42, writ denied, 95-1789 (La.10/27/95), 662 So.2d 3.

      . James Roy Fuller, Jr., Executor of the Succession of Annie Mae Fuller Anderson v. Wade R. Baggette, Sr., et al., No. 96-2561 on the docket of the 4th Judicial District Court.

      . Fuller v. Baggette, 36,952 (La.App. 2nd Cir.5/6/03), 847 So.2d 26, writ denied, 03-2076 (La.11/7/03), 857 So.2d 498.

      . See La.Code Civ. P. arts. 3194 and 3195, which provide in pertinent part as follows:
      Art. 3194. Contracts between succession representative and succession prohibited; penalties for'failure to comply
      A succession representative cannot in his personal capacity or as representative of any other person make any contracts with the succession of which he is a representative. He cannot acquire any property of the succession, or interest therein, personally or by means of third persons, except as provided in Article 3195....
      s}s ⅝ s[c
      Art. 3195. Contracts between succession representative and succession; exceptions The provisions of Article 3194 shall not apply when a testament provides otherwise or to a succession representative who is:
      (1) The surviving spouse of the deceased;
      (2) A partner of the deceased, with respect to the assets and business of the partnership;
      (3) A co-owner with the deceased, with respect to the property owned in common;
      (4) An heir or legatee of the deceased; or
      (5) A mortgage creditor or holder of a vendor's privilege, with respect to property subject to the mortgage or privilege.

      . The committee observed that respondent is "[ujnder significant stress due to family issues,” but it did not elaborate further.

      . Standard 4.31 provides that disbarment is generally appropriate when a lawyer, without the informed consent of his client, engages in the representation of the client knowing that the lawyer's interests are adverse to the client's with the intent to benefit the lawyer or another, and causes serious or potentially serious injury to the client.


source: Caselaw Access Project

author:
PER CURIAM.
     WEIMER, J.,

license: Public Domain

text:
    Evangeline PORTER, Howard Bardell, Jr. and Thomas Porter v. Harry LEE, in his Capacity as Sheriff of the Parish of Jefferson, The State of Louisiana and Leo Mitchell.
    No. 2009-CC-420.
    Supreme Court of Louisiana.
    Oct. 30, 2009.
    James D. Caldwell, Attorney General, Michael Courtney Keller, Phyllis E. Glazer, John Emory Sudderth, Assistant Attorneys General, for applicant.
    Martiny & Associates, LLC, Daniel Rault Martiny, Metairie; Stanga & Mus-tian, PLC, William Roy Mustian, III, Me-tairie, for respondent.
   PER CURIAM.

11After certiorari was granted on the State’s application, we determined the evidence relied upon by the State was not properly made a part of the record. Thus, we are not able to properly consider this case. Accordingly, we recall our order granting certiorari and deny the State’s application.

WRIT RECALLED. APPLICATION DENIED. CASE REMANDED FOR FURTHER PROCEEDINGS.

WEIMER, J., dissents and assigns reasons.

WEIMER, J.,

dissents.

hi respectfully dissent from the majority’s decision to recall the writ. It is clear from the record that the State failed to properly introduce certain evidence to support its motion for summary judgment. However, having granted the writ, I would resolve this case on the merits based upon the record before this court.

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


author: WEIMER, Justice.

text:
    STATE of Louisiana v. Tyrone JEFFERSON.
    No. 2008-KA-2204.
    Supreme Court of Louisiana.
    Dec. 1, 2009.

      James D. Caldwell, Attorney General, Leon A. Cannizzaro, Jr., District Attorney, Graham L. Bosworth, Andrew Pickett, Robert Louis Freeman, Jr., Donna R. An-drieu, Assistant District Attorneys, for appellant.
    Orleans Public Defenders, Joshua A. Perry, Chaz Prentice Arnett, Stephen I. Singer, for appellee.
    Katharine Murphy Schwartzmann, Jay Rorty, and Scott Michelman, for American Civil Liberties Union Foundation and ACLU Foundation of Louisiana, amicus curiae.
   WEIMER, Justice.

11 This matter arises from a challenge to the constitutionality of Louisiana’s possession of marijuana, second offense, law. This case is before us on direct appeal from a judgment declaring LSA-R.S. 40:966(E)(2) unconstitutional on grounds that the statute improperly allows the State to use a prior misdemeanor conviction of possession of marijuana, first offense, obtained in a proceeding in which there was no right to trial by jury, to increase the statutory maximum penalty available for a second offense possession of marijuana. The district court found that the State’s use of the nonjury misdemean- or predicate to increase the maximum sentence for a second offense marijuana conviction violates the Sixth and Fourteenth Amendments to the United States Constitution, as interpreted by the United States Supreme Court in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and this court in State v. Brown, 03-2788 (La.7/6/04), 879 So.2d 1276.

After reviewing the statute, the jurisprudence, and the constitutional provisions at issue, we find, contrary to the conclusion of the district court, that LSA-R.S. 40:966(E)(2) does not suffer from a constitutional infirmity. For the reasons set forth, we find that the Sixth and Fourteenth Amendments, as construed in 12Apprendi and Brown, do not preclude the sentence-enhancing use of a prior valid, fair, and reliable conviction of a misdemeanor, obtained against an adult, where the misdemeanor proceeding included all the constitutional protections applicable to such proceedings, even though these protections do not include the right to trial by jury. Accordingly, we reverse the judgment of the district court granting the defendant’s motion to quash and declaring LSA-R.S. 40:966(E)(2) unconstitutional, and remand for further proceedings.

BACKGROUND FACTS AND PROCEDURAL HISTORY

Because the underlying facts of this case are not relevant to the resolution of the legal issue presented in this appeal, the history of this proceeding can be briefly summarized.

By bill of information dated March 14, 2008, the defendant, Tyrone Jefferson, was charged with possession of marijuana, second offense, a violation of LSA-R.S. 40:966(E)(2). A previous conviction for possession of marijuana, first offense, in Case Number 444-057-K of the Orleans Parish Criminal District Court was alleged in the charging document. The defendant entered a plea of not guilty.

On May 12, 2008, the defendant filed a motion to quash the bill of information, alleging that LSA-R.S. 40:966(E)(2) is unconstitutional because it provides increased penalties for recidivist offenders on the basis of a prior misdemeanor conviction [^obtained without the right to a jury trial, in violation of Apprendi, supra, and Brown, supra. Following a hearing, the district court granted the motion to quash the bill of information and declared LSA-R.S. 40:966(E)(2) to be unconstitutional. In addition, the district court barred the State from prosecuting the defendant on any charge carrying a penalty beyond the statutory maximum for possession of marijuana, first offense.

The State appealed the district court judgment to this court, which has jurisdiction over this appeal pursuant to La. Const, art. V, § 5(D).

DISCUSSION

Louisiana defines the offense of possession of marijuana, and provides for its punishment, in LSA-R.S. 40:966, which states in relevant part:

C. Possession. It is unlawful for any person knowingly or intentionally to possess a controlled dangerous substance classified in Schedule I unless such substance was obtained directly, or pursuant to a valid prescription or order, from a practitioner or as provided in R.S. 40:978, while acting in the course of his professional practice, or except as otherwise authorized by this Part....
E. Possession of marijuana. (1) Except as provided in Subsections E and F of this Section, on a first conviction for violation of Subsection C of this Section with regard to marijuana, tetrahydrocannabinol or chemical derivatives thereof, the offender shall be fined not more than five hundred dollars, imprisoned in the parish jail for not more than six months, or both.
(2) Except as provided in Subsection F or G of this Section, on a second conviction for violation of Subsection C of this Section with regard to marijuana, tetrahydrocannabinol or chemical derivatives thereof, the offender shall be fined not more than two thousand dollars, imprisoned with or without hard labor for not more than five years, or both.

|4Pursuant to this statutory scheme, a first offense marijuana possession is a misdemeanor, punishable by a fine of not more than five hundred dollars, imprisonment in parish jail for not more" than six months, or both. A second offense marijuana possession is a felony, punishable by a fine of not more than two thousand dollars, imprisonment with or without hard labor for not more than five years, or both.

For purposes of the present appeal, the significance of this distinction lies in the fact that the right to a jury trial does not attach to a charge of first offense marijuana possession. Based on LSA-C.Cr.P. art. 779, the right to a jury trial for a misdemeanor charge attaches only if the misdemeanor is punishable by a fine in excess of one thousand dollars or imprisonment for more than six months.

In his motion to quash before the district court, and again, before this court, the defendant argues that both the Sixth and Fourteenth Amendments forbid the State from using a predicate conviction for possession of marijuana, first offense, to enhance a charge of possession of marijuana pursuant to LSA-R.S. 40:966(E)(2) because that predicate conviction did not afford the defendant the right to trial by jury. To support this argument, defendant relies on a series of United States Supreme Court decisions, beginning with Apprendi, supra, which establish an adult criminal defendant’s general right, under the Sixth and Fourteenth Amendments, to a jury finding beyond a reasonable doubt of any fact used to increase the sentence for a felony conviction beyond the maximum term permitted by conviction of the charged |soffense alone. See, e.g., United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005); Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004); Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). In addition, defendant relies on a decision from this court, State v. Brown, supra, which draws upon Apprendi to resolve the narrow question of whether juvenile adjudications can be used to enhance a sentence under Louisiana’s Habitual Offender Law, LSA-R.S. 15:529.1.

In Apprendi, the Supreme Court held that “[ojther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Apprendi, 530 U.S. at 490, 120 S.Ct. at 2362-2363.

Before this court, the State, like the defendant, focuses upon the language in Apprendi, but uses its holding to argue that the decision is no bar to the statute at issue here, since the exception for prior convictions carved out by the Supreme Court in Apprendi does not distinguish between felony and misdemeanor convictions. Further, the State argues that even if Apprendi applies, the statute at issue is still constitutional because pursuant to LSA-R.S. 40:966(E)(2), the fact of a prior conviction is an element of the offense which must be included in the indictment or information and found by the jury beyond a reasonable doubt.

As framed by the State, then, the issue presented in this case is whether a misdemeanor conviction obtained without a right to trial by jury falls within Ap-prendi’s exception for “prior convictions.” To understand that exception and its implications for the constitutionality of Louisiana’s second offense possession of marijuana law, it is necessary to examine Apprendi and the context in which its “prior conviction” exception arises.

|nThe “prior conviction” exception of Ap-prendi arises primarily from the Supreme Court’s decision in Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). In that case, an indictment charged the defendant with a violation of 8 U.S.C. § 1326, which penalized deported aliens for reentry into the country and increased the maximum punishment if the prior deportation arose from the alien’s conviction of one or more aggravated felonies. Under subsection (a) of the federal statute, the crime was de~ fined and the punishment of a fíne or imprisonment for not more than two years, or both was imposed; under subsection (b), an alien whose deportation occurred subsequent to a conviction of an aggravated felony was subject to a fine or imprisonment for not more than 20 years, or both. The indictment charging defendant did not allege that he had been deported pursuant to an earlier conviction of an aggravated felony.

The defendant subsequently entered a plea of guilty, admitting that he had been deported, that he had later unlawfully returned to the United States, and that the earlier deportation had occurred pursuant to three earlier convictions for aggravated felonies. At his sentencing hearing, the defendant argued that because an indictment must set forth all the elements of a crime, and his indictment had not mentioned his earlier aggravated felony convictions, he could not be sentenced to more than two years imprisonment, the maximum punishment allowed for an offender without an earlier conviction. The federal district court rejected this argument and imposed a sentence of 85 months imprisonment, a sentence within the federal sentencing guideline range after considering the prior aggravated felony convictions. The federal appellate court affirmed, and the Supreme Court granted certiorari. Almendarez-Torres, 523 U.S. at 227-228, 118 S.Ct. at 1222-1223.

|7Before the Supreme Court, the defendant argued that the Constitution required the treatment of his prior convictions as an element of the current criminal offense, which must be charged in the indictment and proved to a jury beyond a reasonable doubt. The Supreme Court disagreed, noting that the subject matter of subsection (b) of the statute is recidivism, or prior commission of a serious crime, “as typical a sentencing factor as one might imagine.” Id., 523 U.S. at 230,118 S.Ct. at 1224. In fact, the Court described recidivism as “a traditional, if not the most traditional, basis for a sentencing court’s increasing an offender’s sentence.” Id., 523 U.S. at 243, 118 S.Ct. at 1230. Ultimately, the Court refused to adopt a blanket rule treating recidivism as an element of an offense, thereby requiring that it be charged in the indictment and proved to a jury beyond a reasonable doubt. Instead, the Supreme Court found that subsection (b) of the federal statute set forth a sentencing factor, and not a separate criminal offense. Id., 523 U.S. at 235, 118 S.Ct. at 1226.

Almendarez-Torres was followed shortly by Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999). In Jones, the Supreme Court addressed the question of whether the federal carjacking statute, 18 U.S.C. § 2119, defined three distinct crimes or created a single crime with a choice of three maximum penalties, two of them dependent on sentencing factors exempt from the requirement of charge and jury verdict. At the time of the offense in Jones, the federal carjacking statute defined the crime and, in subsection (1), set forth a punishment of fine or imprisonment for not more than 15 years, or both. Subsection (2) of the statute set forth a punishment of fine or imprisonment for not more than 25 years or both, if serious bodily injury resulted during the commission of the offense. Subsection (3) set forth a punishment of fine or imprisonment for any number of years up to life imprisonment, or both, if death resulted during the commission of the |soffense. Id., 526 U.S. at 230, 119 S.Ct. at 1218. Before the Supreme Court, the government contended that the statute described a single offense, subject to “sentencing enhancements” that need not be separately charged and could be imposed solely by a judge. The defendant argued that the statute established three separate offenses, each with its own requirement of charging notice and jury trial. The Supreme Court agreed with the defendant, concluding that the statute established three separate offenses by the specification of three distinct elements, each of which must be charged by indictment, proven beyond a reasonable doubt, and submitted to a jury for its verdict. Jones, 526 U.S. at 252, 119 S.Ct. at 1228.

In its analysis of the Sixth Amendment concerns presented by the case, the Supreme Court acknowledged that Almenda-rez-Torres had recently held that sentence-enhancing prior convictions do not require charging notice and proof beyond a reasonable doubt to a jury. Jones, 526 U.S. at 248, 119 S.Ct. at 1226-1227. This holding, the Court explained:

[Rjested in substantial part on the tradition of regarding recidivism as a sentencing factor, not as an element to be set out in the indictment. The Court’s repeated emphasis on the distinctive significance of recidivism leaves no question that the Court [in Almendarez-T ar-res ] regarded that fact as potentially distinguishable for constitutional purposes from other facts that might extend the range of possible sentencing.

Jones, 526 U.S. at 249, 119 S.Ct. at 1227. In describing the reasoning behind the distinction, the Supreme Court stated:

One basis for that possible constitutional distinctiveness is not hard to see: unlike virtually any other consideration used to enlarge the possible penalty for an offense, and certainly unlike the factor before us in this case, a prior conviction must itself have been established through procedures satisfying the fair notice, reasonable doubt, and jury trial guarantees.

Id., 526 U.S. at 249,199 S.Ct. at 1227.

| <tJones was soon followed by the Supreme Court’s decision in Apprendi, supra, in which the high court squarely held that except for the fact of a prior conviction, the Constitution requires any fact which authorizes a penalty beyond the prescribed statutory maximum for the charged offense to be separately alleged in the charging document and proved to a jury beyond a reasonable doubt. Appren-di, 530 U.S. at 490, 120 S.Ct. at 2362-2363. Apprendi addressed a New Jersey statutory scheme that specified the maximum sentence for the offense of possession of a firearm for an unlawful purpose, but provided additional punishment if the trial court found, by a preponderance of the evidence, that the unlawful purpose was to intimidate an individual or group because of race, color, gender, handicap, religion, sexual orientation or ethnicity.

In Apprendi, the Court rejected New Jersey’s attempt to defend the statutory scheme by relying upon Almendarez-Tor-res, explaining that Almendarez-Torres was confined to recidivism as a sentencing fact. In doing so, the Court reiterated Almendarez-Torres’s emphasis on recidivism as a “traditional, if not the most traditional, basis” for imposition of increased punishment by sentencing courts, and repeated its observation in Jones that the evidence of defendant Almendarez-Torres’s recidivism consisted of prior convictions of criminal conduct obtained in proceedings which themselves afforded substantial constitutional protections. Ap-prendi, 530 U.S. at 488, 120 S.Ct. at 2361-2362.

As the Supreme Court noted: “Because Almendarez-Torres had admitted the three earlier convictions for aggravated felonies — all of which had been entered pursuant to proceedings with substantial procedural safeguards of their own — no question concerning the right to a jury trial or the standard of proof that would apply to a contested issue of fact was before the Court.” Apprendi, 530 U.S. at 488, 120 hpS.Ct. at 2361. In other words, the Court concluded, “[b]oth the certainty that procedural safeguards attached to any ‘fact’ of prior conviction, and the reality that Almendarez-Torres did not challenge the accuracy of that ‘fact’ in his case, mitigated the due process and Sixth Amendment concerns otherwise implicated in allowing a judge to determine a ‘fact’ increasing punishment beyond the maximum of the statutory range.” Apprendi, 530 U.S. at 488, 120 S.Ct. at 2362.

Finally, the Supreme Court distinguished Almendarez-Torres from the precise factual situation presented in Appren-di:

The reasons supporting an exception from the general rule for the statute construed in [Almendarez-Torres ] do not apply to the New Jersey statute [at issue in Apprendi ]. Whereas recidivism ‘does not relate to the commission of the offense’ itself, New Jersey’s biased purpose inquiry goes precisely to what happened in the ‘commission of the offense.’ Moreover, there is a vast difference between accepting the validity of a prior judgment of conviction entered in a proceeding in which the defendant had the right to a jury trial and the right to require the prosecutor to prove guilt beyond a reasonable doubt, and allowing the judge to find the required fact under a lesser standard of proof.

Apprendi, 530 U.S. at 496, 120 S.Ct. at 2366 (citations omitted).

In the present case, the defendant draws upon the above-quoted language in Apprendi to argue that under Apprendi, the defendant’s recidivism may enhance a current sentence only insofar as that recidivism, or prior criminal behavior, is found true by a jury in the current proceeding, or was already found true in a prior proceeding wherein the defendant had procedural protections that included the right to a jury trial. In other words, defendant argues (and the district court apparently agreed) that Apprendi requires that the jury trial right — along with the right to charging notice and the right to proof beyond a reasonable doubt — must attach at some point to the determination of any fact about an adult offense, or offender, that | t increases the maximum punishment for the offense beyond the prescribed statutory range. We do not read Apprendi so broadly.

As revealed above, Apprendi’s “prior conviction” exception is based on two considerations: (1) the historical role of recidivism in sentencing decisions; and (2) the procedural safeguards attached to a prior conviction. Prior nonjury misdemeanor convictions substantially satisfy all the reasons set forth in Almendarez-Torres Jones and Apprendi as to why prior convictions may be employed to increase the maximum punishment for a subsequent offense without the need for jury findings in the later case. Like pri- or felony convictions, misdemeanor convictions do not involve facts about the current offense that were withheld from a jury in the current case, but instead concern the defendant’s recidivism — i.e., his or her status as a repeat offender — a basis upon which courts traditionally have imposed harsher sentences. Apprendi, 530 U.S. at 488, 120 S.Ct. at 2361-2362 (the prior conviction exception is based upon the premise, approved in Almenda-rez-Torres, that recidivism is a traditional, if not the most traditional, basis for a sentencing court’s increasing an offender’s sentence). Moreover, the prior criminal misconduct establishing this recidivism was previously and reliably adjudicated in proceedings that included all the procedural protections the U.S. Constitution requires for such proceedings, ie., the right to notice, to counsel, to confront and cross-examine witnesses, to the privilege against self-incrimination, and to adjudication based on proof beyond a reasonable doubt. State v. Jones, 404 So.2d 1192, 1197 (La.1981) (Dennis, J., Dixon, C.J., and Calogero, J., additionally concurring); La. Const, art. I, §§ 13, 16. In fact, a defendant in a misdemeanor prosecution involving a petty crime is entitled to all the procedural protections available to a defendant in a felony prosecution, with the exception of the right to a jury trial, which the U.S. Supreme Court has determined is not essential to fair and reliable fact finding in a misdemeanor case involving a petty or non-serious crime. Duncan v. Louisiana, 391 U.S. 145, 158, 88 S.Ct. 1444, 1452, 20 L.Ed.2d 491 (1968) (“[W]e hold no constitutional doubts about the practices, common in both federal and state courts, of accepting waivers of jury trial and prosecuting petty crimes without extending a right to jury trial.”).

Nevertheless, the defendant relies on passages from Almendarez-Torres, Jones, and Apprendi to argue that the right to a jury trial in proceedings leading to the prior conviction is essential to permitting its use for later enhancement under the “prior conviction” exception. In particular, defendant relies on the language in Jones explaining that one reason for the constitutional distinctiveness of prior convictions is that “a prior conviction must have been established through procedures satisfying the fair notice, reasonable doubt, and jury trial guarantees,” Jones, 526 U.S. at 249, 119 S.Ct. at 1227, to argue that the jury trial right is an indispensable part of a fundamental triumvirate of procedural protections intended to guarantee the reliability of criminal convictions and one of the procedural safeguards necessary under Apprendi for a prior conviction to be exempt from its rule.

We do not read the cited language from Almendarez-Torres, Jones, and Apprendi as prohibiting the use of prior convictions to authorize an increased sentence in a later case unless the prior conviction specifically included the right to a jury trial. To the contrary, neither Jones nor Ap-prendi was directly concerned with 11 ode riding the circumstances under which prior adjudications of criminal conduct may be used to enhance the maximum sentence for a subsequent adult offense. Further, nothing in Jones, Apprendi, or even Almendarez-Torres stated or implied that a prior criminal conviction forming the basis of a recidivism sentencing factor in a criminal proceeding must always have been obtained in a proceeding that included, in particular, the right to jury trial. In distinguishing Almendarez-Toms and explaining its premise, Jones and Apprendi cited a group of procedural rights and safeguards that make prior adult felony convictions fair and reliable evidence of previous criminal misconduct, but they did not state that each and every one of these guarantees, or any one of them in particular, is essential to the availability of a prior criminal conviction to furnish such proof.

Our examination of the Apprendi line of cases convinces us that reliability, assured through proceedings that included all the procedural protections the Constitution requires for those proceedings, is the sine qua non for use of prior convictions to enhance a sentence under the “prior conviction” exception, and not the right to a jury trial. Indeed, it makes little sense to conclude, under Apprendi, that a judgment of criminality which the Sixth and Fourteenth Amendments deem fair and reliable enough, when rendered, to impose criminal penalties upon a defendant is nonetheless constitutionally inadequate for later use to establish the defendant’s recidivism.

Our conclusion in this regard is buttressed when one considers the rationale behind the prior conviction exception. Ap-prendi sets limits on judicial factfinding. | uSee, Blakely, 542 U.S. at 303-304, 124 5.Ct. at 2537 (emphasis in original) (For Apprendi purposes, “the relevant ‘statutory maximum’ is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without additional findings.”) A judge has to find no more additional facts when the defendant’s prior conviction is for a misdemeanor than when it is for a felony. Moreover, under Louisiana’s statutory scheme, the relevant sentencing “fact” is the defendant’s prior conviction of first offense possession of marijuana, a “fact” which is charged in the bill of information and which must be found by the jury beyond a reasonable doubt.

To accept the defendant’s argument that a prior felony conviction may be used as a sentence enhancer, but not a nonjury misdemeanor conviction, this court would have to ignore the presumption of regularity attaching to a final judgment, LSA-R.S. 15:432, a presumption “deeply rooted” in the jurisprudence, even when the question is waiver of constitutional rights. Parke v. Raley, 506 U.S. 20, 113 S.Ct. 517, 121 L.Ed.2d 391 (1992). Further, it would require this court to take a step that the Supreme Court has refused to take despite its recognition that the right to a jury in trials involving serious crimes is fundamental to the criminal justice system — a conclusion that verdicts rendered by judges are less reliable than verdicts rendered by juries and, therefore, cannot serve as a basis for turning a petty crime into a felony. Duncan, 391 U.S. at 158, 88 S.Ct. at 1452 (“We would not assert, however, that every criminal trial — or any particular trial — held before a judge alone is unfair or that a defendant may never be as fairly treated by a judge as he would be by a jury.”). | ^Implicit in the Supreme Court decisions holding that a juiy trial is not required in petty crimes or offenses, however, is the premise that this particular safeguard is not constitutionally essential to a fair and reliable adjudication in such cases.

Defendant argues nonetheless that, whether the prior conviction is for a misdemeanor or a felony, the continued viability of the prior conviction exception arising from Almendarez-Torres is highly questionable. In support of this position, defendant directs this court’s attention to the concurring opinions of Justice Thomas in Apprendi, and Shepard v. United States, 544 U.S. 13, 27, 125 S.Ct. 1254, 1264, 161 L.Ed.2d 205 (2005) (Thomas, J. concurring), which suggest that a majority of the Supreme Court is now of the opinion that Almendarez-Torres was incorrectly decided. However, despite opportunities to do so, the Supreme Court has not revisited its ruling in Almendarez-Toms. We must conclude that its holding remains valid. Other jurisdictions to consider the question support the conclusion, that we reach today, that misdemeanor convictions fall within the Apprendi prior conviction exception, despite the lack of a jury trial in such proceedings. See, State v. Pecora, 181 Vt. 627, 928 A.2d 479 (2007); People v. Huber, 139 P.3d 628 (Colo.2006); People v. Palmer, 142 Cal.App. 724, 47 Cal.Rptr.3d 864 (2006); State v. Aleman, 210 Ariz. 232, 109 P.3d 571 (Ct.App.2005); Goldsberry v. State, 821 N.E.2d 447 (Ind.Ct.App.2005).

In its most recent examination of the Apprendi rule, the Supreme Court explained:

The rule’s animating principle is the preservation of the jury’s historic role as a bulwark between the State and the accused at the trial for an alleged offense. See Apprendi 530 U.S., at 477, 120 S.Ct. 2348, 147 L.Ed.2d 435. Guided by that principle, our opinions make clear that the Sixth 11fiAmendment does not countenance legislative encroachment on the jury’s traditional domain. See id, at 497, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435. We accordingly considered whether the finding of a particular fact was understood as within “the domain of the jury ... by those who framed the Bill of Rights.” Harris v. United States, 536 U.S. 545, 557, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002) (plurality opinion). In undertaking this inquiry, we remain cognizant that administration of a discrete criminal justice system is among the basic sovereign prerogatives States retain. See, e.g., Patterson v. New York, 432 U.S. 197, 201, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977).

Oregon v. Ice, 555 U.S. -, 129 S.Ct. 711, 717, 172 L.Ed.2d 517 (2009). In determining whether Apprendi should be extended to situations not previously considered, the Supreme Court noted that the “twin considerations — historical practice and respect for state sovereignty” must be balanced. Id. In this case, those considerations weigh in favor of a conclusion that Apprendi should not be construed to bar the use of nonjury misdemeanor convictions to authorize an increased sentence in a later proceeding.

As the Supreme Court has made clear, recidivism as a sentencing factor is not a matter within the traditional domain of the jury. Almendarez-Torres, 523 U.S. at 243, 118 S.Ct. at 1230 (describing recidivism as “a traditional, if not the most traditional, basis for a sentencing court’s increasing an offender’s sentence.”). The Louisiana legislature, on the other hand, has seen fit to address the problem of repeat drug possession offenses by enacting a recidivism statute that imposes enhanced penalties for each subsequent offense. Consistent with traditional recidivist statutes, the increased penalty for a subsequent offense does not re-punish a defendant for the first offense, but rather punishes with greater severity the last offense committed by the defendant. United States v. Rodriguez, 553 U.S. 1783, 128 S.Ct. 1783, 1789, 170 L.Ed.2d 719 (2008) (“When a defendant is given a higher sentence under a recidivism statute — or for that matter, when a sentencing judge, under a guidelines regime or a [17discretionary sentencing system, increases a sentence based on the defendant’s criminal history — 100% of the punishment is for the offense of conviction. None is for the prior convictions or the defendant’s ‘status as a recidivist.’ The sentence ‘is a stiffened penalty for the latest crime, which is considered to be an aggravated offense because [it is] a repetitive one.’ Gryger v. Burke, 334 U.S. 728, 732, 68 S.Ct. 1256, 92 L.Ed. 1683 (1948).”). It is within the particular province of the State to define recidivism and declare its consequences.

In light of the above, we find, contrary to the conclusions of the district court, that the Sixth and Fourteenth Amendments, as construed in Apprendi and its progeny, do not preclude the sentence-enhancing use, against an adult, of a prior valid, fair and reliable conviction of a misdemeanor, obtained as an adult, where the misdemeanor proceeding included all the constitutional protections applicable to such proceedings, even though these protections do not include the right to a jury trial.

We also find, contrary to the argument of defendant, that a different conclusion is not mandated by our decision in Brown, supra. In Brown, this court addressed a discrete question: whether enhancing the sentence of an adult on the basis of a prior juvenile adjudication is contrary to Ap-prendi.

In resolving the question, this court noted that after Apprendi, courts confronted with the question of whether a juvenile adjudication falls within the Apprendi exception for “prior convictions” have been divided on the issue, resulting in “two reasonable schools of thought.” Brown, OS-2788 at 13, 879 So.2d at 1285. In determining which of the two avenues Louisiana should follow, the Court examined “recent jurisprudence concerning the juvenile justice system and scholarly works addressing this issue,” Brown, 03-2788 at 14, 879 So.2d at 1285, in order to determine, just as we do in this case with respect to nonjury misdemeanors, whether | ^juvenile adjudications in Louisiana are sufficiently reliable, even without a jury trial, to justify the consequences of their use as criminal sentence enhancements and therefore fall within Apprendi’s prior conviction exception. The Court focused on “ ‘the unique nature of the juvenile system ... manifested in its non-criminal or ‘civil’ nature, its focus on rehabilitation and individual treatment rather than retribution, and the state’s role as parens patriae in managing the welfare of the juvenile in state custody.’ ” Brown, 03-2788 at 15-16, 879 So.2d at 1286 (quoting In re C.B., 97-2783, p. 10 (La.3/4/98), 708 So.2d 391, 396-397). The court noted that, based on the Supreme Court’s reasoning in McKeiver v. Pennsylvania, 403 U.S. 528, 91 S.Ct. 1976, 29 L.Ed.2d 647 (1971), it had previously determined that due process and fundamental fairness do not require that a juvenile be granted the right to trial by jury, even though the Louisiana constitution guarantees that right in certain criminal prosecutions. Brown, 03-2788 at 16, 879 So.2d at 1287. The Court cited to MeKeiver’s determination that the Sixth Amendment does not apply in juvenile adjudications because the juvenile proceedings is not a “criminal prosecution” within the reach of the Sixth Amendment as justification for this holding. Id. While the Court in Brown went on to acknowledge that certain changes in the juvenile system had “blurred the distinction between adult and juvenile proceedings,” it nevertheless reaffirmed the determination that due process does not afford a juvenile the right to a jury trial in a delinquency proceeding, due to the fact that “there remains a great disparity in the severity of penalties faced by a juvenile charged with delinquency and an adult defendant charged with the same crime.” Brown, 03-2788 at 18, 879 So.2d at 1288 (quoting State in the Interest of D.J., 01-2149, p. 10 (La.5/14/02), 817 So.2d 26, 33).

119Ultimately, the court in Brown reasoned that “because juveniles do not have a right to a jury trial in these [juvenile. adjudicatory] proceedings, juvenile adjudications cannot be used to enhance adult felony convictions pursuant to La. Rev. Stat. 15:529.1.” Brown, 03-2788 at 18, 879 So.2d at 1288. However, and most significantly for this case, the Couit went on to explain why juvenile adjudications are sufficiently reliable, even without a jury trial, to support dispositions within the juvenile justice system, but not to support enhanced sentencing for adults. Id. The reasoning of the court in this regard is significant because it did not, as argued by defendant, rest solely on the lack of a jury trial. To the contrary, the court noted that “[u]nder the guise of parens patriae, juvenile courts emphasize treatment, supervision, and control rather than punishment,” and that “[t]he hallmark of special juvenile procedures is their non-criminal nature.” Brown, 03-2788 at 19, 879 So.2d at 1288. Stated simply, the court found that “there is a difference between a ‘prior conviction’ and a prior juvenile adjudication.” Brown, 03-2788 at 20, 879 So.2d at 1289. This difference is not found exclusively in the lack of a jury trial. Rather, the court emphasized:

A juvenile adjudication is not a conviction of any crime. Therefore, this adjudication should not be counted as a “pri- or conviction” for Apprendi purposes. The determination that a jury trial was not constitutionally required in juvenile adjudications was predicated upon the non-criminal treatment of the adjudicated juvenile delinquent. It would be incongruous and illogical to allow the noncriminal adjudication of a juvenile delinquent to serve as a criminal sentencing enhancer. To equate this adjudication with a conviction as a predicate offense for purposes of the Habitual Offender Law would subvert the civil trappings of the juvenile adjudication to an extent to make it fundamentally unfair and thus, violative of due process.

Brown, 03-2788 at 20-21, 879 So.2d at 1289 (citations omitted).

Clearly, the court’s holding in Brown rested not on the singular fact of the lack of a jury trial in juvenile adjudications, but on the fundamental differences in purpose 1aiand goals between the juvenile justice system and the criminal justice system. Contrary to defendant’s argument, there are differences between a nonjury misdemeanor conviction and a juvenile adjudication proceeding other than the fact that, in Louisiana, neither has the right to trial by jury. The primary distinction, as pointed out in Brown, is that a juvenile adjudication is not a conviction of any crime. By contrast, a misdemeanor conviction is a conviction of a crime, although a lesser grade of criminal conduct than a felony. Defendant’s protestations to the contrary, the court’s holding in Brown that juvenile adjudications do not fall within the prior conviction exception of Apprendi cannot be used to bootstrap nonjury misdemeanor criminal convictions into a similar constitutional position.

CONCLUSION

In the final analysis, we find that Louisiana’s statutory scheme of increased punishment for recidivist marijuana possession is in line with the constitutional principles of Apprendi and its progeny, and does not conflict with our ruling in Brown, which is limited to juvenile adjudications and the unique nature of the juvenile justice system. More specifically, we find that the Sixth and Fourteenth Amendments, as construed in Apprendi and Brown, do not preclude the sentence-enhancing use, against an adult, of a prior valid, fair, and reliable conviction of a misdemeanor, obtained as an adult, where the misdemeanor proceeding included all the constitutional protections applicable to such proceedings, even though these protections do not include the right to trial by jury. Louisiana’s statutory scheme satisfies the requirement of due process because under the Sixth and Fourteenth Amendments, states are allowed the presumption that in petty crimes and offenses, trial judges are capable of reliable fact finding.

121 Accordingly, we reverse the judgment of the district court granting the defendant’s motion to quash and declaring LSA-R.S. 40:966(E)(2) unconstitutional, and remand for further proceedings.

REVERSED AND REMANDED.

      . Judge Benjamin Jones, of the Fourth Judicial District, assigned as Justice Pro Tempore, participating in the decision.

      . The maximum penalty for first offense possession of marijuana is a fine of not more than five hundred dollars, imprisonment in the parish jail for not more than six months, or both. The maximum penalty for second offense possession of marijuana is a fine of not more than two thousand dollars, imprisonment with or without hard labor for not more than five years, or both. LSA-R.S. 40:966(E).

      . La. Const, art. V, § 5(D) provides this court with appellate jurisdiction when "a law or ordinance has been declared unconstitutional.”

      . LSA-C.Cr.P. art. 779 provides:
      A. A defendant charged with a misdemeanor in which the punishment, as set forth in the statute defining the offense, may be a fine in excess of one thousand dollars or imprisonment for more than six months shall be tried by a jury of six jurors, all of whom must concur to render a verdict.
      B. The defendant charged with any other misdemeanor shall be tried by the court without a jury.

      . With the exception of Almendarez-Torres, where the issue of penalty enhancement was based on recidivism in the form of prior felony convictions, the penalty enhancement at issue before the Supreme Court in the Appren-di line of cases was a fact involving the present conviction, found by the trial judge, upon a lesser burden of proof than beyond a reasonable doubt. In Jones, for example, the penalty-enhancing “fact” was a finding of "serious bodily injury” related to the crime at issue, found by the trial judge to exist by a preponderance of the evidence. Jones, 526 U.S. at 231, 119 S.Ct. at 1218. In Apprendi, the penalty-enhancing “fact” was the defendant's racially biased purpose in committing the crime, found by the trial judge by a preponderance of the evidence. Apprendi, 530 U.S. at 470-471, 120 S.Ct. at 2352.

      . In fact, in Nichols v. United States, 511 U.S. 738, 114 S.Ct. 1921, 128 L.Ed.2d 745 (1994), albeit a decision preceding Apprendi, the Supreme Court held that, consistent with the Sixth and Fourteenth Amendments, a prior constitutionally valid uncounseled misdemeanor conviction is also valid when used to enhance punishment at a subsequent conviction. Tins, despite the fact that the prior proceeding did not include all the safeguards required for felony trials.

      . While it is arguable, as the State contends, that the fact that the prior misdemeanor conviction must be submitted to and found by a jury beyond a reasonable doubt takes the Louisiana statute outside the literal rule of Ap-prendi, we do not base our decision in this case solely on this argument, but on a consideration of the principles underlying Apprendi and the implications of those principles for the Louisiana statutory scheme.

      . Apprendi, 530 U.S. at 520, 120 S.Ct. at 2379 (Thomas, J. concurring)


author: PER CURIAM.

text:
    In re Lon E. ROBERSON.
    No. 2009-B-1741.
    Supreme Court of Louisiana.
    Jan. 8, 2010.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

| ]This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Lon E. Roberson, an attorney licensed to practice law in Louisiana.

UNDERLYING FACTS

From 1997 through 2002, the Louisiana Medical Clinic (“Clinic”) provided medical care to twenty-two of respondent’s clients. In thirteen instances, respondent provided a written letter of guarantee to the Clinic, assuring that he would pay its medical bill upon settlement of the client’s case.

In March 2002, Timothy Sonnier, the owner of the Clinic, filed a disciplinary complaint alleging that respondent settled cases and did not remit payments to the Clinic as promised. As of April 2002, the Clinic had not received payments for medical treatment of respondent’s clients totaling $25,693.

In response to the complaint, the ODC requested settlement information from respondent on each of the clients Mr. Sonnier identified. Respondent submitted a partial response but did not provide any financial information. He informed the ODC that his client files were in disarray and that he was unable to determine the status of some of the matters listed in Mr. Sonnier’s complaint. Respondent averred that some matters were not yet settled and that some matters were completed with proper ^disbursement of funds. In other matters, respondent averred that he could not find the file or sufficient information.

With respect to four matters, respondent provided documentary evidence that these claims had been settled. However, in one matter, he produced no documentation that he disbursed the settlement funds. In another matter, he withheld money from the settlement to pay the Clinic and produced a copy of a check drawn on his business account payable to the Clinic, though he could not confirm the check was delivered to or negotiated by the Clinic. In the third matter, the settlement disbursement statement did not reflect that respondent withheld funds to pay the Clinic, and he produced no documentation that he disbursed the settlement funds. In the last matter, the settlement disbursement statement indicated that respondent withheld funds to pay the Clinic, but he produced no documentation that he disbursed the settlement funds.

Following the filing of the disciplinary complaint, respondent simply paid Mr. Sonnier the total amount he requested, $24,702, from his administrative account. Respondent made these payments between June 2002 and January 2003.

DISCIPLINARY PROCEEDINGS

In 2008, the ODC filed one count of formal charges against respondent, alleging that his conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.15(a) (safekeeping property of clients and third persons), 1.15(d) (failure to timely remit funds to a client or third person), and 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation). Respondent answered the formal charges and denied any misconduct.

|sThis matter then proceeded to a formal hearing on the merits. During the hearing, respondent admitted that, in some cases, he did not timely remit funds to the Clinic. He also admitted to taking some of the funds due to the Clinic out of his trust account and placing them into his administrative account to pay for office expenses because he had “some financial problems in my office.” He acknowledged that this practice was improper. He estimated that he improperly used “several thousands of dollars” but stated that he replaced the funds in his trust account.

Hearing Committee Report

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

Respondent guaranteed payment for the medical services for the clients in question in Mr. Sonnier’s complaint. Respondent acknowledged that he did not keep the required financial records and could not determine the accuracy of Mr. Sonnier’s claims. Respondent resolved the outstanding debts to Mr. Sonnier’s satisfaction and put a new accounting arrangement into place. Respondent “may have” failed to remit funds to the Clinic, but the ODC did not prove there was a failure to remit funds or a failure to disburse settlement funds properly. Both respondent and Mr. Sonnier’s records are in such poor condition and the business arrangement so informal as to render proof of a failure to remit and proof of financial misdeeds virtually impossible. Further, respondent “may have” converted third-party funds to his own use and benefit. Respondent also failed to maintain records of receipts and disbursements on behalf of his clients and could not provide accountings for client and third-party funds. However, respondent did not act knowingly or intentionally; rather, he was “simply very unsophisticated in his record-keeping and disbursements.”

14Under these circumstances, the committee recommended that respondent be publicly reprimanded and be placed on supervised probation for twelve months with the following conditions: (1) he respond to all reasonable requests of his probation monitor with an emphasis on law office practice and finances and (2) he enroll in and attend one full day of Ethics School administered by the Louisiana State Bar Association (“LSBA”).

Neither respondent nor the ODC filed an objection to the hearing committee’s recommendation. However, in its brief to the disciplinary board, the ODC suggested that the committee’s “findings and conclusions are deficient, internally inconsistent, and at odds with the evidence adduced at the hearing.”

Disciplinary Board Recommendation

After review, the disciplinary board determined that two of the hearing committee’s factual findings were clear and are not manifestly erroneous. First, respondent failed to properly maintain the financial records in his clients’ files. Second, respondent’s conduct was the result of negligence, rather than intentional and/or dishonest conduct. However, the committee’s findings that respondent “may have” failed to remit funds to a third party and “may have” converted funds are unclear. The board determined that, if these findings suggest that respondent did not fail to remit and did not convert funds, they are manifestly erroneous. The board agreed with the committee that there is little direct evidence that respondent converted funds owed to the Clinic. However, the board determined that there is ample circumstantial evidence that respondent failed to remit funds owed to the Clinic and converted client and/or third-party funds to his own use.

| sBased on these findings, the board found that respondent violated Rules 1.15(a) and 1.15(d) of the Rules of Professional Conduct. The board determined that respondent knowingly and negligently violated duties owed to his clients by failing to properly maintain their records and by failing to pay their medical bills. None of respondent’s clients were harmed, but there was the potential for harm to his clients. Respondent caused a moderate amount of actual harm to the Clinic but made full restitution in a relatively short period of time. His failure to pay the Clinic was the result of negligence and poor office management. Relying on the ABA’s Standards for Imposing Lawyer Sanctions, the board determined that suspension is the baseline sanction.

In aggravation, the board found only substantial experience in the practice of law (admitted 1978). The board found the following mitigating factors present: absence of a prior disciplinary record, absence of a dishonest or selfish motive, timely good faith effort to make restitution, full and free disclosure to the disciplinary board and a cooperative attitude toward the proceedings, and delay in the disciplinary proceedings.

After considering this court’s prior jurisprudence and determining that respondent’s conduct appears to be the result of poor office management rather than a selfish or dishonest motive, the board recommended that respondent be suspended from the practice of law for three months. The board also recommended that the suspension be fully deferred, subject to two years of probation with the following conditions:

1) Respondent shall maintain his trust account in accordance with the Rules of Professional Conduct;

R2) Respondent shall retain, at his expense, a CPA to audit his trust and operating accounts on a semi-annual basis and direct the CPA to provide a semi-annual report to the ODC;

3) Respondent shall attend the LSBA’s Ethics School and Trust Accounting School during the period of probation; and

4) Any violation of these conditions or other misconduct during the probationary period shall be grounds for making the deferred suspension executory.

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.

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.

The record reflects that respondent failed to keep complete financial records of the cases he handled, commingled client and third-party funds with his own funds, failed to timely remit funds due to a third-party medical provider, and converted client |7and third-party funds to his own use. Accordingly, respondent violated Rules 1.15(a) and 1.15(d) of the Rules of Professional Conduct.

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

Respondent negligently failed to timely remit funds to the medical provider but knowingly converted client and third-party funds when he used trust account funds to pay for office expenses. He violated duties owed to his clients, the public, and the legal profession. His conduct caused actual harm to the medical provider and potential hai'm to his clients. The ABA’s Standards for Imposing Lawyer Sanctions establishes suspension as the baseline sanction.

The record supports the aggravating and mitigating factors found by the disciplinary board. Notably, respondent has no prior disciplinary record and promptly made restitution to the medical provider. Furthermore, it appears that respondent’s conduct was largely caused by poor law office management rather than a dishonest or selfish motive.

Nevertheless, considering the circumstances of respondent’s misconduct, in particular his knowing conversion of client and third-party funds to pay his office expenses, we find that a fully deferred suspension is too lenient. Accordingly, we lijwill suspend respondent from the practice of law for one year and one day, with all but three months deferred, followed by a two-year period of supervised probation governed by the conditions recommended by the disciplinary board. 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 executory, 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 Lon E. Roberson, Louisiana Bar Roll number 11308, be and he hereby is suspended from the practice of law for a period of one year and one day. AH but three months of this suspension shall be deferred, subject to respondent’s successful completion of a two-year period of supervised probation governed by the conditions enumerated by the disciplinary board. 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 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.

JOHNSON, J., dissents.