Petition for Writ of Certiorari — Pinkston v. Office of Disciplinary Counsel of Louisiana

03 810 DEC 0¢ 2003

No. gerice OF THE CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

IN RE:

DONALD O. PINKSTON,

Petitioner.

ON PETITION FOR WRIT OF CERTIORARI TO

THE SUPREME COURT OF LOUISIANA

PETITION FOR WRIT OF CERTIORARI

WILLIAM A. PorTEOUs, III

PORTEOUS, HAINKEL

AND JOHNSON, L.L.P.

704 Carondelet Street

New Orleans, Louisiana 70130

(504) 581-3838

Attorney for Petitioner.

December 4, 2003

Washington, 0.C. © THIEL PRESS © (202) 328-3286

Zt Af

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QUESTIONS PRESENTED

I. Must the Louisiana Attorney Disciplinary Rules and

Procedures which cover the disbarring of attorneys

comply with both procedural and substantive due

process?

IT.

1.

Are the notice requirements of procedural due

process infringed by application of permanent

disbarment and foreclosure of employment and

contractual relationship with lawyers rules where

permanent disbarment and employment pre-

clusion were not a penalty when Petitioner

wrongfully violated “the most fundamental duty

of an officer of the court” by making false state-

ments to a judge and concealing evidence from

the court which should have been revealed and

injuring clients through neglect of legal matters,

failure to account and to return unearned legal

fees?

. Does “fundamental fairness’? and ‘fair warning”’

require that the punishment of permanent dis-

barment and employment preclusion be known

at the time of wrongful conduct?

May Louisiana’s new Supreme Court Rules provid-

ing for a penalty of permanent disbarment and

employment preclusion be applied retroactively

without violating the constitutional prohibition

against state ex post facto laws?

(11)

LIST OF PARTIES

Counsel of record for Petitioner certifies that the fol-

lowing are parties and counsel who have an interest in the

outcome of this case.

Donald O. Pinkston, formerly an attorney at law of

New Orleans, Louisiana.

The Supreme Court of Louisiana, the legal entity hav-

ing plenary power over membership in the Bar of

Louisiana;

The Louisiana Attorney Disciplinary Board, a state-

wide agency established by the Supreme Court of

Louisiana to administer the lawyer discipline and dis-

ability system;

Charles P. Plattsmier, Chief Disciplinary Counsel,

Louisiana Attorney Disciplinary Board, Baton Rouge,

Louisiana, counsel with prosecutorial authority in this

cause;

William A. Porteous, III, of New Orleans, Louisiana,

Counsel for Petitioner.

RELATED PROCEEDING

A Petition for Writ of Certiorari has been filed in this

Court by Petitioners, Laudumiey and Mann, No. 03-460.

That petition involves some of the due process issues

asserted herein and the ex post facto claim. On Decem-

ber 1, 2003, the Court denied the Petition sought by

Laudumiey and Mann.

(111)

Page

TABLE OF CONTENTS

PEP ee re ee i

RE ee ll

sony sy bs bk sb h-ve'k ove oeeavan li

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ne ee Wg cw bau a nb» 044.6 ]

UPI SOPOURINGED 6g 6 vce eo eed G es oeesvccevens ]

Statutory Provisions Involved............... e000 2

OS re eee 2

Argument:

Reasons For Granting The Writ.................. 5

Part I — Question I Presented, Due Process:

Disciplinary Proceedings Against Law-

yers Should Accord Lawyers Under

Threat of Disbarment and Professional

Employment Preclusion Full Procedural

And Substantive Due Process ................ 8

1. The Notice Requirement of Procedural

Due Process Is Infringed by the Appli-

cation Of Louisiana’s New Permanent

Disbarment and Professional Employ-

ment Preclusion Rules to Petitioner

When Those Rules Were Not in Effect

At the Time of Petitioner’s Wrongful

Conduct and Petitioner Was Never Timely

Notified That the New Rules Applied

eo WO a ol ne O RK ae MKS Oe 9

2. Fundamental Fairness In A Proceeding

Involving Liberty and Property Is In-

corporated Within The Concept of Due

(wv)

P

Process of Law as Understood In This ee

Nation and Dictates That The Punish-

ment of Permanent Disbarment and

Professional Employment Preclusion

Be Known At The Time of the Offense

So As To Satisfy ‘Fair Warning” and

Provide Substantive Due Process............ 11

Part II — Question II Presented, Ex Post Facto..... 13

Because Lawyer Disciplinary Proceedings

Are Quasi-Criminal, They Cannot Increase

Punishment Ex Post Facto Without Vio-

lating The U.S. Constitution, Article I,

gi BS Brrr a ern ea ae ree ee 13

OO Te TCL Tee ECT CT EET ETE TPE ee 17

TABLE OF AUTHORITIES

Cases:

Application of Gault, 387 U.S. 1, 33 (1967)......... 12

Application of Griffiths, 413 U.S. 717, 722-27

bs eS ree rr er rer Te ere ree eT 11

BMW of North America, Inc. v. Gore, 517 U.S.

oo Me ek ee ee Seer eee ee $, 12

Board of Regents of State Colleges v. Roth, 408

Rh ORG; Bee CEPT? 6 no Si oan e eae sees ee wis 1]

Calder v. Bull, 3 U.S. 386, 390, 3 Dall. 386

ky eer Rrra ree are ee en rem tere 15, 16

California Department of Corrections v. Mor-

ales, $14 U.S. 499, 506 (1995)... 2. cee cave nas 13

Conn v. Gabbert, 526 U.S. 286, 291-92 (1999)....... 1]

—

(v)

Cases, continued: Page

Dobbert v. Florida, 432 U.S. 282, 297-98

CEPT oe ks dans aX ee Eee 11, 14

Fletcher v. Peck, 10 U.S. 87, 6 Cranch 87

‘21 iL! a ee eres eanee eater 15

Garner v. Jones, 529 U.S. 244 (2000).......... eer

In re: Ashy, 1998-0662 (La. 12/1/98), 721

oe | er ere ree er eee mre 15

In re: Estiverne, 1999-0949 (La. 9/24/99), 741

ee . rer ee eres er re re 15

In re: Ruffalo, 390 U.S. 544 (1968)........ 8,9, 10, 12

In re: Taylor, 2000-2392 (La. 10/13/00), 770

Bo. 26 BSG oc cs scares ceceene eben te eeees sees 15

In re: Vaughn, 2000-1892 (La. 10/27/00), 772

|: re rrr ere ee er ty ce 15

Johnson v. United States, 529 U.S. 694

+. errr rr ees ey er 16

Lankford v. Idaho, 500 U.S. 110 (1991)........-. 8,12

Lynce v. Mathis, 519 U.S. 433 (1997)... 2... +e seen 16

Meyer v. Nebraska, 262 U.S. 390, 399 (1923)........ 11

Middlesex County Ethics Committee v. Garden

State Bar Ass’n., 457 U.S. 423 (1982)........,-.. 8

Palko v. Connecticut, 302 U.S. 319, 325

(Lt) eee eeeeereee re eyo er yr 12

Schware v. Board of Bar Examiners of New Mex-

ico, 353 U.S. 232 (1957). 2... cece cccccesescces 11

Snyder v. Commonwealth of Massachusetts,

291 U.S. 97, 105 (1934)... cece vee esnsensess 1]

(vi)

Cases, continued: Page

State v. Jordan, 440 So.2d 716, 718 (La. 1983)..... 16

Weaver v. Graham, 450 U.S. 24, 29 (1981)......... 16

Treatises and Commentaries:

1 Blackstone, Commentaries on the Law of Eng-

sushi aat uli] DETER OTT CT eT ee 14

Pomtramst Papers, Mo. 44, 00.6 cc ccssnnccvetovsess 14

1 Kent, Commentaries on American Law, 382

cass bcd cehewes sak eens ee 15

Radin, Handbook of Roman Law, 475 (1927)....... 14

Schwartz, Commentaries of the Constitution of

the United States, Part III, Rights of the

Person, Chapter 151, Section 392 (1968)......... 14

Story, Commentaries on the Constitution of the

United States, Section 1367 (1833) ............. 14

Constitutional Provisions:

4.5. Comet. art. £, $10, Comment To oc een cus passim

Ce Peet wet YL. ks wade kee tebe 6, 11

eS. Comet, ammee. RIV o6. 405 6506 sk isle ae « ++ «passim

PETITION FOR WRIT OF CERTIORARI

Donald O. Pinkston, Petitioner, hereby petitions the

Court to issue a writ of certiorari to review the judgment

and opinion of the Supreme Court of Louisiana in

Attorney Disciplinary Proceedings wherein Petitioner

was permanently disbarred and permanently enjoined

from employment by or contractual relationships with

any Louisiana lawyer. After application for a rehearing,

the final decree of the Supreme Court of Louisiana was

entered September 5, 2003.

OPINIONS BELOW

The opinion of the Supreme Court of Louisiana,

which is reproduced in Appendix D commencing at page

27a, is officially reported at 2002-B-3251, 2002-B-

3252 (La. 5/20/03), 852 So.2d 966, rehearing denied.

The opinion denying a rehearing by the Supreme Court

of Louisiana is reproduced in Appendix A and is offi-

cially reported at 2002-B-3251, 2002-B-3252 (La. 9/5/-

03). (App. A, p. la).

JURISDICTIONAL GROUNDS

The decision of the Supreme Court of Louisiana was

entered on May 20, 2003 (App. D, p. 27a). Petitioner

applied for a rehearing and that rehearing was denied in

an opinion of the Louisiana Supreme Court dated Sep-

tember 5, 2003 (App. A, p. la). This court has juris-

diction to review the decision of the Supreme Court of

Louisiana on writ of certiorari pursuant to 28 U.S.C.

Section 1257.

9 a

STATUTORY PROVISIONS INVOLVED

U.S. Const. art. I, Sec. 10, Clause 1, which states in

pertinent part that “No state shall... pass any... ex

post facto law.”

U.S. Const. amend. XIV, Sec. 1, which states in per-

tinent part that “No State shall . . . deprive any person

of life, liberty, or property, without due process of

law.”

Louisiana Supreme Court Rule XIX, relative to Lawyer

Discipline after August 1, 2001 (App. F, p. 47a).

Louisiana Rules of Professional Conduct 5.5, Effect-

ive July 1, 2002. (App. I, p. 56a).

STATEMENT OF THE CASE

Petitioner, a black, criminal defense attorney, was found

to have engaged in professional misconduct during the

years 1995, 1996, 1997 and 1998. Petitioner’s wrongful

conduct is outlined in Appendix D, pp. 28a-34a. The most

serious violation of Petitioner involved making false state-

ments to a judge and concealing from a judge evidence

which should have been revealed. (App. D, pp. 28a-

30a). This conduct resulted in the filing of formal

charges against Petitioner in April 1999. (App. D, p.

34a). Petitioner was also charged with injuring his clients

through neglect of legal matters, failure to account and

failure to return unearned legal fees with formal charges

being brought in May 2001 as to these matters. (App.

D, p. 34a).

Prior to August 1, 2001, the Louisiana Supreme Court

allowed disbarred lawyers to apply for readmission to the

Bar after being disbarred for five years (App. E, Section

24, pp. 45a-46a). Subsequent to August 1, 2001 the

3

Louisiana Supreme Court embraced two kinds of disbar-

ment: disbarment and permanent disbarment. (App. F

with Commentary, pp. 47a-52a). The Supreme Court

of Louisiana issued Guidelines indicating what conduct

it believed might warrant Permanent Disbarment. (App.

F, pp. 51, 52). All of these changes were effective

August 1, 2001.

Prior to July 1, 2002, a disbarred lawyer in Louisiana

might work as a paralegal, office administrator, legal

researcher or clerk. Many disbarred lawyers did so.

There was no prohibition against a disbarred lawyer

working in some capacity with lawyers. On July 1, 2002,

the Supreme Court of Louisiana changed Rule 5.5 of the

Louisiana Rules of Professional Conduct to preclude a

lawyer from engaging a disbarred lawyer in any capacity.

(Compare Appendices H and I on the subject of Unauth-

orized Praceice of Law). (App. 55a and 56a).

The result is that since August 1, 2001 a lawyer who

has been permanently disbarred has no option, as for-

merly, to apply for readmission after 5 years of disbar-

ment. Since July 1, 2002, any disbarred Louisiana

lawyer is foreclosed from having any kind of engagement

with a Louisiana lawyer. The result is professional

death. Formerly a lawyer who had been disbarred might

seek readmission and might work for or contract with

another lawyer during his time of disbarment.

At the time charges were brought against Petitioner

Pinkston there was no Permanent Disbarment Rule and

Professional Employment Preclusion Rule. Through-

out the proceedings examining Petitioner’s conduct, the

Disciplinary Counsel never sought ‘‘Permanent Disbar-

ment;” the only thing mentioned was “‘Disbarment.”’

a a Ee,

Louisiana employs a three tiered system of investiga-

tion and punishment of wrongful conduct. There is a

hearing before a fact finding body known as a Hearing

Committee. This is followed by an intermediate appel-

late review before a panel of the Louisiana Disciplinary

Board. Final review is before the Supreme Court which

is the ultimate fact finder and has original jurisdiction

in matters of Bar discipline. (App. D, p. 39a). The

Louisiana Supreme Court accords facts found by the

bodies below a respect through the manifest error rule.

(App. D, p. 39a).

The first time Permanent Disbarment was mentioned

in Petitioner’s case was in oral argument in the Supreme

Court of Louisiana which occurred between April 4,

2003 and the permanent disbarment decision of May 20,

2003. (App. B, p. 7a, App. C, pp. 16a-17a).

Until final argument in the Louisiana Supreme Court

in April 2003, no permanent disbarment had been sug-

gested. Louisiana Disciplinary Counsel had filed charges

seeking disbarment and after amendment of the Discip-

linary Rules in 2001 never amended the relief sought to

embrace permanent disbarment. In addition to the

charges, Disciplinary Counsel wrote at least seven briefs

in the matter and never sought permanent disbarment.

(App. B, pp. 4a-7a). No hearing committee or Disciplin-

ary Board recommended permanent disbarment as a

sanction. (App. B, p. 6a and App. D, pp. 35a-38a).

The first written mention of permanent disbarment

as a sanction for Petitioner’s conduct was in the opinion-

of the Louisiana Supreme Court of May 20, 2003.

Petitioner sought a rehearing in the Supreme Court of

Louisiana of its May 20, 2003 decision alleging viola-

tions of due process of law and the ex post facto pro-

hibition by virtue of applying the permanent disbarment

5

rule to Petitioner when his actions had occurred before

the permanent disbarment sanction and that punishment

had never been sought in any proceedings prior to oral

argument in the Supreme Court of Louisiana just prior

to the May 2003 decision of that court (App. B, p. 7a).

The Supreme Court of Louisiana denied rehearing and

indicated that the imposition of the permanent disbar-

ment rules was procedural and not substantive and there-

fore was not violative of due process or ex post facto

prohibitions. (App. A, pp. la-2a).

Following the denial of a rehearing on September 5,

2003, Disciplinary Counsel advised Petitioner that the

Supreme Court had issued an order of July 1, 2002

amending the Rules of Professional Conduct prohibit-

ing any kind of legal employment or engagement of dis-

barred lawyers by Louisiana lawyers. (App. G, pp. 53a-

54a and App. I, p. 56a).

From the decision of the Supreme Court of Louisiana

imposing permanent disbarment upon Petitioner and the

prohibition of any allied legal employment of Petitioner,

Petitioner brings this application for a writ of certiorari

to the Court.

ARGUMENT

REASONS FOR GRANTING THE WRIT

Lawyer discipline is on the ascendancy in the United

States. The plenary power of courts to control those

who may appear before them must accommodate and

respect the constitutional rights of lawyers subject to

discipline. Clearly, the lawyer is entitled to procedural

due process. Where the right to practice a profession is

at issue, more than procedural due processes is required.

6

Public perception of the lawyer as motivated by

unprincipled greed without any anchor in or dedication™

to helping others in an ethical way has led the Bar and

the supreme courts of the states to vigorous prosecu-

tion of lawyer wrongdoing. This movement of the last

decade in Louisiana has taken the form of vigorous

enforcement of the Rules of Professional Conduct by

zealous prosecution and harsh judgment in the Supreme

Court of Louisiana. Petitioner is a Louisiana recently

permanently disbarred lawyer.

As part of its effort to improve the Bar, the Louisiana

Supreme Court also enjoined other lawyers from employ-

ing or contracting with disbarred lawyers. (App. I, p.

56a). Thus any use of his knowledge or skills is now fore-

closed to a disbarred lawyer.

Due process, substantive and procedural, has always

protected the citizen from unfair exercise of power by

government. Courts are the great protector of the rights

of citizens in their contests with governmental authority.

The greatest malfactors are entitled to the protection of

substantive and procedural due process and the prohibi-

tion against ex post facto laws. Where the lawyer is

involved courts should be vigilant in the protection of

the lawyer-citizen in his contest with those who con-

trol membership in the legal profession. Courts in regu-

lating lawyers subject to their power, no less than all

government, should be controlled by substantive and

procedural due process.

This case involves a punishment of misconduct by a

lawyer. After the time of the misconduct and com-

mencement of the prosecution, Louisiana amended its

disciplinary rules to provide for two categories of disbar-

red lawyers. The two classifications of disbarred lawyers

are: the disbarred and the permanently disbarred. The

former could and still can apply for readmission as pre-

Ft

<=

7

viously; the latter were enjoined from ever seeking read-

mission; this was new. (App. F, pp. 47a-52a). (The sanc-

tion of permanent disbarment was added to Rule XIX,

Section 10, by order of the Louisiana Supreme Court

dated July 19, 2001, effective August 1, 2001. (App. F,

p. 52a).

The Louisiana Supreme Court characterizes its rule

changes as procedural. (App. A, p. 2a). This cannot be

correct. Prior to August 2001, a lawyer could reapply

for admission to the Bar after five years. Prior to July

2002, a disbarred lawyer could work as a paralegal or an

administrator. The rule changes are substantive from the

viewpoint of the lawyer who has lost the privilege of

reapplying for admisson to the Bar and cannot use his

skill in any remunerative capactiy. The matter is analo-

gous to a situation where a convicted criminal sees the

privilege of applying for a pardon or parole abolished.

The new Louisiana disbarment rules implicate due pro-

cess and ex post facto issues which are of substantial

importance to the public and the Bar.

In the broadest thinking, this cause involves the

plenary power of a court to control its Bar as opposed to

the rights of citizen lawyers to practice a profession with

the protection of full due process of law. This is impor-

tant to the courts and the Bar.

8

PART I

Question I Presented, Due Process

DISCIPLINARY PROCEEDINGS AGAINST LAWYERS

SHOULD ACCORD LAWYERS UNDER THREAT OF DIS-

BARMENT FULL PROCEDURAL AND SUBSTANTIVE

DUE PROCESS.

This Court visited the lawyer discipline due process

issue in 1968 in In re: Ruffalo, 390 U.S. 544 (1968)

holding that a lawyer involved in disciplinary proceedings

was enmeshed in matters which were ‘‘quasi criminal”’

and therefore entitled to procedural due process, notice

and an opportunity to be heard. In 1982, the Court

recognized that a lawyer had a right to have constitutional

issues heard in a disciplinary proceeding. Middlesex

County Ethics Committee v. Garden State Bar Ass’n.,

457 U.S. 423 (1982).

This petition on behalf of a disbarred lawyer asks the

Court to address the further questions of whether the

lawyer involved in disciplinary proceedings is entitled to

both substantive and procedural due process.

Permanent disbarment with employment preclusion is

a kind of professional death sentence. Where the

sanction is so high, the lawyer should know from the

time of the offense forward. what the possible sanction

may be. Lankford v. Idaho, 500 U.S. 110 (1991). Not

only must there be notice of the charges, but notice of

the punishment as well, especially where a range of pun-

ishments might be at issue. ‘Elementary notions of

fairness enshrined in our constitutional jurisprudence

dictate that a person receive fair notice not only of the

conduct that will subject him to punishment, but also of

the severity of the penalty that a State may impose.”

BMW of North America, Inc. v. Gore, 517 U.S. 559, 574

(1996).

9

1.The Notice Requirement of Procedural Due

Process Is Infringed by the Application of Louis-

iana’s New Permanent Disbarment and Employ-

ment Preclusions Rules to Petitioner When Those

Rules Were Not in Effect at the Time of Peti-

tioner’s Wrongful Conduct and Only in Final

Argument to The Louisiana Supreme Court Was

Permanent Disbarment First Mentioned.

The Court in In re: Ruffalo, supra, stated:

Disbarment, designed to protect the public, is a

punishment or penalty imposed on the lawyer.

He. is accordingly entitled to procedural due ‘pro-

cess, which includes fair notice of the charge. 390

U.S. at 550.

In Ruffalo, the Respondent was not provided with

notice of the charge which led to his disbarment until

after he and another witness had already testified at the

disciplinary hearing. The Court found that this consti-

tuted a procedural due process violation.

If the sanction of employment preclusion and per-

manent disbarment is applied retroactively, the Petitioner

is deprived of due process in that he did not have ade-

quate notice of these potential sanctions at the time of

his alleged offense.

The U.S. Supreme Court in Ruffalo held:

[Lawyer disciplinary proceedings] are adversary

proceedings of a quasi criminal nature. The charge

must be known before the proceedings commence.

They become a trap when, after they are underway,

the charges are amended on the basis of testimony

of the accused. He can then be given no opportun-

ity to expunge the earlier statements and start

afresh.

* * *

10

This absence of fair notice as to the reach of the

grievance procedure and the precise nature of the

charges deprived petitioner of procedural due

process. 390 U.S. at 551 [Citations omitted.]

Similarly, if the Petitioner, Pinkston, had notice of the

reach of the grievance procedure at the time he acted

wrongfully with respect to a court and to his clients, he

might not have acted as he did. Punishment is a deter-

rent. Had Petitioner Pinkston known that the Guide-

lines (App. F, pp. 51a-52a) would be applied in his case

he could have presented evidence relative to them. The

Guidelines were not in existence at the time of his wrong-

ful conduct and his earliest hearings. Petitioner was never

notified that permanent disbarment would be a possible

sanction until final argument. No permanent disbarment

was ever sought until oral arguments in the Supreme

Court of Louisiana. Mr. Pinkston and Mr. Ruffalo have

much in common. After joining issue, they were both

confronted with a changed landscape. In Mr. Pinkston’s

case, it came in final arguments in the Supreme Court

with the suggestion for the first time of permanent dis-

barment.

Therefore, as a result of procedural due process con-

siderations, the sanction of permanent disbarment and

employment preclusion should only be applied pros-

pectively and not retroactively to the time of the offense.

The new rules should not have been applied to offenses

occurring and prosecutions commenced prior in time to

the new rules.

11

2. Fundamental Fairness In A Proceeding Involving

Liberty and Property Is Incorporated Within The

Concept of Due Process of Law as Understood In

This Nation And Dictates That The Punishment

of Permanent Disbarment and Professional Em-

ployment Preclusion Be Known At The Time of

the Offense So As To Satisfy ‘‘Fair Warning” As

A Requirement of Substantive Due Process.

The United States through Article V and Amendment

XIV of the Constitution is committed to requiring due

process. Where a government not only terminates present

employment but forecloses an entire occupational field,

that action must comport with full due process of law.

A citizen of this nation has a liberty and property interest

in following a trade or occupation. Conn v. Gabbert,

526 U.S. 286, 291-92 (1999); Application of Griffiths,

413 U.S. 717, 722-27 (1973); Board of Regents of State

Colleges v. Roth, 408 U.S. 564, 572 (1972); Schware v.

Board of Bar Examiners of New Mexico, 353 U.S. 232

(1957); Meyer v. Nebraska, 262 U.S. 390, 399 (1923).

The Louisiana Rule change as to employment of a dis-

barred lawyer came long after Mr. Pinkston’s offenses

and prosecution. The Rule change about permanent dis-

barment likewise came after Mr. Pinkston’s offenses and

prosecution.

‘“‘Fair warning” is an essential rule in all matters that

involve criminal conduct. Dobbert v. Florida, 432 U.S.

282, 297-98 (1977). Justice: Cardozo thought that:

“[T]he Fourteenth Amendment proscribed certain

state procedures, not because proscription was spelled

out in one of the Bill of Rights but because the matter

offends some principle of justice so rooted in the tradi-

tions and conscience of our people as to be ranked as

fundamental.” Snyder v. Commonwealth of Massachu-

12

setts, 291 U.S. 97, 105 (1934). Indeed, the idea of “fair

warning” is “implicit in the concept of ordered ‘lib-

erty,’ Palko v. Connecticut, 302 U.S. 319, 325 (1937).

Incorporation of fundamental ideas implicit in the con-

cept of ordered liberty is an ongoing process.

Where liberty and property legally are protected,

wrongful conduct and the penalty for wrongful conduct

are twined in any rule or statute. This exists because of

the requirement of a “fair warning.” It is part of our

concept of “ordered liberty.”” To denounce conduct

and change the penalty after the conduct and then

enforce the change is to abandon that concept of “ord-

ered liberty,”’ which is fundamental and protected by due

process in this nation.

“Fair warning’ embraces notice of punishment.

Lankford v. Idaho, supra; BMW of North America uv.

Gore, supra. The proceedings herein were quasi-criminal

and Petitioner is entitled to the protections of substantive

and procedural due process of law protected in the Fed-

eral constitution. Jn re: Ruffalo, supra; Application of

Gault, 387 U.S. 1, 33 (1967).

- Heightened Due Process

Courts have always had plenary power over the Bar in

matters of discipline. Never have the citizen’s full con-

stitutional protections against governmental action been

part of Bar discipline. Fhe accused lawyer has never had

the protection of separation of powers, checks and bal-

ances and resort to an independent judiciary. His sole

reliance has had to be the integrity of the judiciary with

its inherent “‘self-restraint’”’ in the exercise of judicial

power. In these times of increased public and judicial

13

scrutiny of lawyer conduct, a heightened sense of due

process substantive as well as procedural should pro-

tect the lawyer.

\

PART II

Question II Presented, Ex Post Facto

BECAUSE LAWYER DISCIPLINARY PROCEEDINGS ARE

QUASI-CRIMINAL, THEY CANNOT INCREASE PUNISH.

MENT EX POST FACTO WITHOUT VIOLATING THE

U.S. CONSTITUTION, ARTICLE I, § 10, CLAUSE 1.

“The focus of ex post facto inquiry is . .. whether any

such change . . . increases the penalty by which a crime is

punishable.” California Department of Corrections v.

Morales, 514 U.S. 499, 506 (1995); Garner v. Jones, 529

U.S. 244 (2000).

The Louisiana Supreme Court indicated that because

it always had the power to disbar attorneys permanently,

the change of the rule on five year application for read-

mission to a rule of permanent disbarment in certain

egregious cases was a procedural change only. (App.

A, p. 2a). This is a Frankfurter procedural/substantive or

substantive/procedural conundrum. The conclusion

remains that when Petitioner’s actions occurred and

opened him to the possibility of disbarment he would

have been permitted to apply for readmission after five

years disbarment with the Louisiana Supreme Court hav-

ing discretion to allow readmission to the Bar. He could

also have worked as a legal administrator or paralegal or

law clerk. The fact that the Louisiana Supreme Court

had the power does not alter the ex post facto issue. A

legislature has the power to increase the punishment

14

for a crime at any time. The issue is retroactivity to the

offense.

The language changes in the disbarment rule effective

August 1, 2001 after Petitioner’s offense and prosecu-

tion are set forth in the opinion of the Supreme Court of

Louisiana. (App. D, p. 42a, fns. 7 and 8).

By abolishing the privilege of applying for readmission

after five years, the disbarred Petitioner faces a change in

the rules which reflects an increase in the penalty by

which his crime is punished. Petitioner can never apply

for readmission. When Petitioner was found to have

wrongfully acted, if disbarred he could apply for readmis-

sion after five years. That is now foreclosed. At the

time of his actions, Petitioner had not been wamed by

effective new rules that he might be permanently dis-

barred.

~

“Fair Warning”’ is the basis of the American commit-

ment to the ex post facto prohibition. Dobbert v. Flor-

ida, 432 U.S. 282, 297-98 (1977). The commitment to a

‘“‘fair warning” is rooted in Western and American polit-

ical and legal thought, Story, Commentaries on the Con-

stitution of the United States, Section 1367 (1833).

Retroactivity was condemned by the Corpus Juris of

Justinian and the canon law and is the root of the phrase

“Nulla Poena Sine Lege.’’ Schwartz, Commentaries on

the Constitution of the United States, Part III, Rights of

the Person, Chapter 151, Section 392 (1968). Schwartz

cites Radin, Handbook of Roman Law, 475 (1927), and

1 Blackstone, Commentaries on the Law of England, 46

(1765).

In Federalist Papers, No. 44, Madison declares that ex

post facto laws “are conirary to the first principles of the

social compact and in every principle of sound legislation.”’

He declares that the prohibition is part of the “spirit”

15

and scope of our “fundamental charters.” Prohibition of

ex post facto laws was needed to erect “additional

fences’”” against “dangers.” | Madison describes these

fences as part of a constitutional barrier in favor of per-

sonal security and private rights. Calder v. Bull, 3 U.S.

386, 390, 3 Dall. 386 (1798), declared that ex post facto

laws included laws which aggravated a crime and made it

greater than it was when committed or changed the pun-

ishment and inflicted a greater punishment than the law

annexed to the crime when committed.

Afterwards, in Fletcher v. Peck, 10 U.S. 87, 6 Cranch

87 (1810), it was held that ex post facto laws included

those laws which rendered an act punishable in a man-

ner in which it was not punishable when committed.

See also, 1 Kent, Commentaries on American Law, 382

(1826). It can be seen from this thinking that the pro-

hibition extends not only to making criminal, conduct

which at the time it was conducted was not punishable,

but also to increasing of punishment after the commis-

sion of the crime.

The Louisiana Supreme Court has many times set

forth the rule that while lawyer disciplinary proceedings

are primarily for the protection of the public, they are

also punishment of the defaulting lawyer. In re:

Vaughan, 2000-1892 (La. 10/27/00), 772 So.2d 87; In

re: Taylor, 2000-2392 (La. 10/13/00), 770 So.2d $35;

In re: Estiverne, 1999-0949 (La. 9/24/99), 741 So.2d

649; In re: Ashy, 1998-0662 (La. 12/1/98), 721 So.2d

859. Disciplinary proceedings involve punishment.

All criminal laws exist for the protection of the public

and part of the protection for the public is punishment

of the offender. In this case, the amendment to Louis-

iana Supreme Court Rule XIX was passed after the date

of Petitioner’s offenses, it relates to the offenses and their

16

punishment and alters the situation of the accused Peti-

tioner to his disadvantage. The permanently disbarred

Petitioner may never apply for readmission or seek

employment in a law office. That was not the rule when

he committed his offenses. See also, State v. Jordan, 440

So.2d 716, 718 (La. 1983), rehearing denied (1987);

Weaver v. Graham, 450 U.S. 24, 29 (1981).

Johnson v. United States, 529 U.S. 694 (2000) in-

volved an ex post facto challenge to a federal statute

which authorized a district court to impose an addi-

tional term of supervised release upon violation of the

initial release conditions. The Court noted that the ex

post facto law question is whether a party is made worse

off by the application of the new law. In this case, it is

clear that Pinkston, who lost the option of applying

for readmission is ‘worse off”. Petitioner is “‘worse

off’? even though his conduct occurred prior to August

1, 2001 when the Rule changed.

Lynce v. Mathis, 519 U.S. 433 (1997) involved a post

conviction Florida statute which cancelled a prisoner’s

release credits which had been awarded to alleviate

prison overcrowding. The Court held that this violated

the ex post facto prohibition because it ‘‘must disad-

vantage the offender affected by it.” /d. at 896, citing

Weaver v. Graham, supra. Indeed, the Court relies upon

the fundamental viability of Calder v. Bull, supra.

The right of Petitioner to seek readmission after five

years is analogous to a prisoner seeking parole after serv-

ing a portion of his sentence. Changing the right to

seek parole after serving a portion of the sentence offends

ex post facto precepts. The prisoner is entitled to the

benefit of the parole statute in effect at the time of his

offense where parole is discretionary. In this case, Peti-

tioner is like the prisoner seeking parole; he should be

eee

Pe ee Ce ee ee ree

17

allowed to come to the Supreme Court of Louisiana after

five years and seek readmission and the court in its dis-

cretion might grant or deny the readmission application.

CONCLUSION

For the various reasons set forth above, this petition

for writ of certiorari should be granted and/or the cause

remanded to the Supreme Court of Louisiana with

instructions.

Respectfully submitted,

WILLIAM A. PorTEous, III

PORTEOUS, HAINKEL

AND JOHNSON, L.L.P.

704 Carondelet Street

New Orleans, Louisiana 70130

(504) 581-3838

Fax: (504) 581-4069

Bar No. 10600

Attorney for Petitioner,

Donald O. Pinkston.

December 4, 2003