Appendix — Pinkston v. Office of Disciplinary Counsel of Louisiana

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

APPENDIX TO

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

é | Petitioner.

December 4, 2003 1ttorney for Petitioner

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

Va

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(7)

TABLE OF CONTENTS Li

Appendix A — Supreme Court of Louisiana,

Decision on Application for Rehearing dated

NE Ds co hs wee e ae on kes ee keen la ~

Appendix B — Donald O. Pinkston’s Petition

for Rehearing of June 2, 2008. .........5..25.5.. 3a

Appendix C — Response by The Office of Discip-

linary Counsel to The Respondent’s Petition

for Rehearing dated August 7, 2003............ l4a

Appendix D — Decision of the Supreme Court

of Louisiana Permanently Disbarring Don-

ald O. Pinkston issued May 20, 2003............ 27a

Appendix E — Excerpts from Rule XIX of the

Louisiana Supreme Court Rules Relative

To Lawyer Discipline As They Existed

FUME C0 AME 2, Dees 6 5 kos hoe eee RRR 45a

Appendix F — Excerpts from Rule XIX of the

Louisiana Supreme Court Rules relative

Lawyer Discipline After August 1, 2001

gS eS ee 47a

Appendix G — Excerpts from Letter of Sep-

tember 10, 2003, to Donald O. Pinkston

from Charles B. Plattsmier, Chief of Dis-

ciplinary Counsel of the Louisiana Attor-

ney Disciplinary Board advising Mr. Pink-

ston that pursuant to Supreme Court Rule

5.5(d) disciplinary orders issued after July

1, 2002 prohibited employment of disbar-

Se, a re. ere ee eee ee 53a

Appendix H — Excerpt from Louisiana Rules |

of Professional Conduct 5.5 Existing :

ok ee a Peer em rr rer re 55a

a

(12) Page

Appendix I — Excerpt from Louisiana Rules of

Professional Conduct 5.5 Effective July 1,

BOGE ss 0nen ee nee eee oe ee reer 56a

la

APPENDIX A

[FILED SEP 5 2003]

SUPREME COURT OF LOUISIANA

NO. 02-B-3251

c/w

NO, 02-B-3252

IN RE: DONALD O. PINKSTON

ON APPLICATION FOR REHEARING

PER CURIAM

Respondent, Donald O. Pinkston, seeks rehearing from

the judgment of this court permanently disbarring him

from the practice of law. Essentially, respondent claims

that he was denied procedural due process because the

Office of Disciplinary Counsel did not give him notice,

either in its formal charges or written briefs, that perman-

ent disbarment could be imposed in his case.!

The essence of procedural due process is that “notice

should be given to the attorney of the charges made and

opportunity afforded him for explanation and defense.”

In re: Ruffalo, 390 U.S. 544, 550 (1968) (quoting Ran-

1 Respondent also argues he was deprived of substantive due

process and application of the permanent disbarment rules to his

conduct would violate the prohibition against ex post facto laws.

Nearly identical arguments were discussed and rejected in this

court’s recent opinion in In re: Laudumiey and Mann, 03-0234

(La 6/27/03), _-- So.2d ___..

2a

dall v. Brigham, 7 Wall. 523 (1868)). It is undisputed

that respondent had full notice of the charges against

him. He participated in the formal hearing before the

hearing committee and presented mitigating evidence.

He was clearly aware that the charges against him were

serious, as demonstrated by the fact that both the hear-

ing committee and disciplinary board recommended dis-

barment.

Respondent filed an objection in this court to the

recommendation of disbarment, filed a written brief and

participated in oral argument. The thrust of respondent’s

argument in this court was that his misconduct was not

serious enough to warrant disbarment. Clearly, respond-

ent’s position that he should not be disbarred necessarily

encompassed the argument that he should not be per-

manently disbarred. As this court has recognized, per-

manent disbarment does not represent a new sanction

which did not previously exist; rather, it is simply a pro-

cedural change to the rule which recognizes a power the

court has always possessed. See In re: Laudumiey and

Mann, 03-0234 (La. 6/27/03), at p. 10, __ So.2d __

(‘‘[t] hus, it is clear the amendments to Supreme Court

Rule XIX, § 10(A) and § 24(A) do not represent a sub-

stantive change to the bar disciplinary rules, nor do they

result in the adoption of a new sanction which did not

previously exist. Rather, these amendments simply rep-

resent a procedural change to Supreme Court Rule XIX

in order to recognize a power this court has always

possessed’’), Therefore, we find respondent received ade-

quate procedural due process protection.

Accordingly, the application for rehearing is denied.

3a

APPENDIX B

[Filed JUN 2 2003]

IN THE SUPREME COURT

OF THE STATE OF LOUISIANA

NO. 02-B-3251

c/w

NO. 02-B-3252

IN RE: DONALD O. PINKSTON,

ATTORNEY DISCIPLINARY PROCEEDINGS

DONALD O. PINKSTON’S

PETITION FOR REHEARING

COMES NOW Donald O. Pinkston, respondent in the

above entitled and numbered proceedings who, pursuant

to Rule IX of the Supreme Court Rules, respectfully peti-

tions this Honorable Court for a hearing in this matter.

As grounds for this hearing, respondent shows that the

May 20, 2003 per curiam opinion of this Court, which

permanently disbarred him from the practice of law in

the State of Louisiana, violates respondent’s right to pro-

cedural due process of law under Article I, §2 of the

Louisiana Constitution (1974) and the Fourteenth

Amendment to the United States Constitution; it violates

respondent’s right to substantive due process of law

under Article I, §2 of the Louisiana Constitution (1974)

eo

4a

and the Fourteenth Amendment to the United States

Constitution; it violates respondent’s right to substantive

due process of law under Article I, §2 of the Louisiana

Constitution (1974) and the Fourteenth Amendment to

the United States Constitution; and it violates Article I,

§23 of the Louisiana Constitution (1974) and Article I,

Section 9, cl. 3 of the United States Constitution, in that

it constitutes an ex post facto application of the laws of

the State of Louisiana.’ In further support of this peti-

tion for rehearing, respondent shows:

1. On April 21, 1999, the Office of Disciplinary Coun-

sel filed formal charges in proceedings #99-DB-029, des-

cribed as the “Small matter” in the Court’s opinion. As

can be seen from the face of those pleadings, and as is

set forth in this Court’s opinion, all of the respondent’s

conduct in the Small matter occurred prior to Decem-

ber 31, 1998.

2. On June 12, 2000,” the Office of Disciplinary Coun-

sel filed formal charges in proceedings #00-DB-073,

described as the “McDonald, Isaac, Alston, Jones and

Motton matters” in the Court’s opinion. As can be seen

from the face of those pleadings, and as is set forth in

this Court’s opinion, all of respondent’s conduct in the

McDonald, Isaac, Alston, Jones and Motton matters

occurred prior to December 31, 1999.

3. Because hearings were conducted in both proceed-

ings,” pre-and post-hearing memoranda were submitted

IThe sanction of permanent disbarment was added to Rule

XIX, Section 10, by order of this Court dated July 19, 2001,

effective August 1, 2001.

2 The Court's opinion of May 20, 2003, erroneously gives the

filing date for this second set of charges as May, 2001. See Court’s

Opinion, p. 7.

3The two proceedings have never been formally consolidated,

although the Disciplinary Board issued only one opinion, addres-

sing both proceedings.

5a

by the parties in each instance. Significantly, in the pre-

hearing memorandum submitted by the Office of Discip-

linary Counsel in proceedings #99-DB-029, counsel stated

that the appropriate sanction was “disbarment.” The

sanction of permanent disbarment was neither raised, nor

sought.

In the post-hearing memorandum submitted by the

Office of Disciplinary Counsel on January 22nd, 2001, in

the same proceedings, counsel stated: “In keeping with

the stipulation of counsel for Pinkston, disbarment is the

only appropriate remedy.’ Again, the sanction of per-

manent disbarment was not raised, or sought.

4, In the pre-hearing memorandum submitted by the

Office of Disciplinary Counsel on August 29, 2000, in

proceedings #00-DB-073, counsel stated: ‘Disciplinary

Counsel suggests that the appropriate sanction is a

lengthy suspension.”

In the post-hearing memorandum submitted by the

Office of Disciplinary Counsel on November 30, 2000,

in these same proceedings, counsel stated: ‘‘Disciplinary

Counsel suggests that Respondent should be suspended

for a lengthy period of time. Considering the multiple

cases of misconduct and all the aggravating factors, a

lengthy suspension is appropriate to protect the public.”’

5. On March 7, 20001, Hearing Committee No. #24

issued its ‘Findings and Recommendation” in proceed-

ings #00-DB-073, in which the Committee stated: “It is

the Committee’s recommendation that Respondent be

4In his pre-hearing memorandum, counsel for Pinkston had

stated as follows: “The appropriate sanction for the charges

brought by the Office of Disciplinary Counsel is disbarment, if the

charges are proven by clear and convincing evidence. See In Re:

Ronald A. Welcker, 753 So.2d 177 (La. 2000).”

6a

suspended from the practice of law for thirty (30)

months and be required to file a petition for reinstate-

ment.”

6. On May 8, 2001, Hearing Committee No. #24

issued its ‘‘Findings and Recommendation”’ in proceed-

ings #99-DB-029, in which the Committee stated: “It is

the Committee’s recommendation that Respondent be

disbarred and that he be assessed all costs of these pro-

ceedings.”? Again, the sanction of permanent disbarment

was not mentioned.

7. Thereafter, arguments were held before the Louis-

iana Attorney Disciplinary Board on March 28, 2002.

Although the transcript of those arguments has not been

made part of the record of these proceedings, under-

signed counsel avers that the sanction of permanent dis-

barment was neither sought, nor even mentioned by the

Office of Disciplinary Counsel.

8. On December 30, 2002 the Disciplinary Board

recommended that respondent be disbarred. Signifi-

cantly, at no place in its recommendation does the Dis-

ciplinary Board recommend the sanction of permanent

disbarment, or even suggest that it was available as a

sanction.

9. On April 4, 2003, the Office of Disciplinary Coun-

sel filed its brief in the instant proceeding. With regard

to proceedings 99-DB-029, Disciplinary Counsel wrote:

“It is respectfully submitted that both the hearing com-

mittee and the Disciplinary Board were correct and that

the respondent be disbarred from the practice of law and

cast with all costs associated with these proceedings.”

7a

(ODC Brief, p.13).° With regard to proceedings 00-DB-

073, Disciplinary Counsel wrote: ‘Therefore, based on

the foregoing reasons, it is respectfully submitted that the

Board’s recommendation of disbarment is appropriate to

protect the public as well as the profession.” (ODC Brief,

p.20). In sum, As of April 4, 2003, the sanction of per-

manent disbarment was not being sought by the Office

of Disciplinary Counsel.

10. Thereafter, oral argument was held in this matter.

Undersigned counsel avers on information and belief that

at argument, counsel for the Office of Disciplinary Coun-

sel contended, for the first time, that the sanction of per-

on disbarment was not only available, but approp-

riate.

11. On May 20, 2003, this Honorable Court issued its

per curiam opinion in these proceedings, in which it

imposed the sanction of permanent disbarment upon

respondent. In doing so, the Court wrote:

* * *Nonetheless, we find respondent’s conduct in

the Small matter is so egregious that ordinary dis-

barment would be inappropriate. According, we

now turn to a discussion of permanent disbarment.

The sanction of permanent disbarment is set forth

in the 2001 amendment to Supreme Court Rule

XIX, §10, and §24 (footnotes omitted). In our

commentary accompanying the amendment, we

stated in pertinent part:

In the public interest, the Court has amended

Louisiana Supreme Court Rule XIX to codify

5 Significantly, in its brief, the Office of Disciplinary Counsel

mentions the existence of the sanction (ODC Brief, p. 13), but

does not suggest that it is appropriate.

6 Respondent Donald O. Pinkston was acting pro se in all pre-

vious proceedings before this Court, including oral argument.

Sa a ee

8a

Permanent Disbarment as an available sanction

for attorney misconduct. While the Court has

always had the discretion to deny an application

for readmission after the requisite five (5)-year

waiting period after disbarment, an attorney who

is permanently disbarred under these circum-

stances will be prohibited from applying for read-

mission to the bar. These amendments reflect the

judgment of the Court that in some instances law-

yer misconduct may be so egregious as to warrant

a sanction of permanent disbarment based on the

facts of an individual case and in consideration of

the guidelines in Appendix E to the Rules of Law-

yer Disciplinary Enforcement.

In Appendix E, we set forth several guidelines

illustrating the type of cases which might warrant

permanent disbarment. We explained that these

guidelines were not intended to bind this court in

its decisionmaking, but to provide ‘useful informa-

tion to the public and to lawyers concerning the

types of conduct the Court might consider to be

worthy of permanent disbarment.”

Guideline 2 of Appendix E provides that an attor-

ney’s ‘‘{i]ntentional corruption of the judicial pro-

cess’”’ is a ground for permanent disbarment. Clearly,

respondent’s actions in the Small matter must be

considered an intentional corruption of the judicial

process.

As recently noted in Jn re: Morphis, 01-2803

(La. 12/4/02), _. So.2d __ , we do not impose

the sanction of permanent disbarment lightly.

Nonetheless, we are firmly convinced that we would

be remiss in our constitutional duty to regulate the

practice of law if we did not impose that sanction

here. By making false representations and conceal-

ing facts, respondent subverted the judicial process

to his own ends. He engaged in conduct that was

9a

calculated to frustrate the administration of justice.

This court cannot and will not condone such con-

duct by an attorney when high standards of honesty

are expected. See Loutstana State Bar Ass’n v. Hay-

lon, 250 La. 651, 198 So.2d 391, 392 (1967). Res-

pondent’s actions convincingly demonstrate that he

does not possess the requisite moral fitness to prac-

tice law in this state. He must be permanently dis-

barred (Footnote omitted).

Accordingly, we will permanently disbar respond-

ent from the practice of law in the State of Louis-

jana.

(Court’s Opinion, pp. 14-15).

12. As specified above, and as is more fully explained

below, the imposition of the sanction of permanent dis-

barment, without notice that the Court considered this

sanction to be available, without the opportunity to

brief, or fully argue the availability or applicability of the

sanction, and without a judicial determination of whether

it is legal to impose a sanction that did not exist at the

time of the conduct with which respondent was charged,

violates several of respondent’s constitutional rights.

The procedural due process issue

13. It is beyond dispute that the protections afforded

by the due process clauses of the Louisiana and United

States Constitutions apply to lawyer disciplinary pro-

ceedings. See, e.g., In re Ruffalo, 390 U.S. 544, 88°S.Ct.

1222 (1968); In the matter of Sealed Appellant, 194

F.3d 666 (5th Cir. 1999); and Louzsiana State Bar Asso-

ciation v. McGovern, 481 So.2d 574 (La. 1986). Such

due process necessarily includes both procedural due

process, and substantive due process.

eee

10a

At its most fundamental level, procedural due process

includes the right to notice, and the opportunity to be

heard, and to defend against the charges or allegations.

LSBA v. McGovern, supra. The notice component of

procedural due process comprises not only notices of

the charges, but also notice of the punishment that might

be imposed, particularly when a range of possible punish-

ments exists. See Lankford v. Idaho, 500 U.S. 107, 111

S.Ct. 1723 (1991); and BMW of North America, Inc., v.

Gore, 517 U.S. 559, 116 S.Ct. 1589, 1598 (1996) - “‘Ele-

mentary notions of fairness enshrined in our constitu-

tional 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”’ (footnote omitted).

The record in this proceeding is perfectly clear: res-

pondent Donald Pinkston had no notice whatsoever, until

the ‘‘middle’’ of oral argument, that the sanction or

punishment of permanent disbarment was “available”’

and being sought by the Office of Disciplinary Counsel.

This was, and is constitutionally inadequate notice.

Rehearing in this matter should be granted to modify

the sanction imposed upon respondent to disbarment,

with the right to petition for readmission.

The substantive due process issue

14. As cited above, the respondent in a lawyer discip-

linary proceeding also has the right to substantive due

process. While this right is intertwined with the right to

procedural due process, it has aspects that go beyond

it — such as the right to have constitutional claims heard

in the disciplinary proceeding. Middlesex County Ethics

Committee v. Garden State Bar Ass’n, 457 U.S. 423,

102 S.Ct. 2515 (1982). Because of the procedure that

lla

was used in this case, respondent was denied all oppor-

tunity to argue that the application of the sanction of

permanent disbarment violated the ex post facto clauses

of the Louisiana and United States Constitution. (See

infra).

Moreover, on a more basic level, respondent was

denied the right to conduct his.defense, and to make

decisions based upon the possibility of this sanction,

and was denied the right to present evidence bearing on

the sanction itself. The congruence between this pro-

ceeding and the capital proceeding described in Lankford

v. Idaho, supra, is nearly perfect, and the result should be

the same: the sanction imposed should be vacated.

The ex-post facto issue

15. The record in this matter demonstrates that all the

conduct in question occurred, and all the formal charges

were filed long before August 1, 2001, the date upon

which this Court’s amendment to Rule XIX, Section 10,

took effect. Thus, this case squarely presents the ques-

tion that was also squarely presented in Jn re Parker, 815

So.2d 794 (La. 2002), In re Gros, 815 So.2d 799 (La.

2002), and In re Patrick, 815 So.2d 804 (La. 2002):

whether the permanent disbarment rules can “‘operate

retroactively because to do so would deprive the respond-

ent-attorney of the right to seek readmission, a right

granted to him at the time of the underlying miscon-

duct.”’ Parker, supra, pp. 797-798.

The Court did not resolve the question in Parker:

Having considered the record of the instant pro-

ceeding in light of the well-presented arguments of

the amici and the ODC, we now conclude that we

need not resolve the issue of retroactivity of the

12a

permanent disbarment rules in the context of the

present facts.

Parker, supra, p. 798.

To the contrary, the Court expressly reversed it:

Our decision should not be interpreted as espous-

ing the position advanced by the amici in this case

that the date of the misconduct determines whether

the permanent disbarment rules should be applied.

As noted above, we expressly decline to resolve that

issue, and nothing in this opinion should be inter-

preted as passing on whether we could or could not

impose permanent disbarment under these facts.

Parker, supra, p. 798, fn. 7.

Research does not disclose any subsequent case in

which the Court has addressed the retroactivity question,

although it appears that the Court has been imposing the

sanction of permanent disbarment even when the mis-

conduct occurred prior to August 1, 2001. See, e.g.,

In re Condoll, 840 So.2d 502 (La. 2003); In re Morphis,

831 So.2d 934 (La. 2002); In re Elbert, 840 So.2d 494

(2002), and In re Hilburn, 840 So.2d 471 (La. 2002).

To put the matter concisely, it appears as though the

Court has decided the retroactivity question without

addressing it directly, and has decided it in a way that

permits the retroactive application of the rule.

This is plain constitutional error. Under any number

of U.S. Supreme Court decisions, see, e.g., Miller v. Flor-

ida, 482 U.S. 423, 107 S.Ct. 2446 (1987), and any num-

ber of decisions of this Court, see, e.g., State v. Loyd,

689 So.2d 1321 (La. 1997), the retroactive application of

any increased penalty violates the ex post facto clauses of

the U.S. and Louisiana Constitutions.’ Given that the

7 Although lawyer disciplinary proceedings are only “quasi-

criminal” in nature, there should be little doubt that the prohibi-

[footnote continued]

13a

penalty of permanent disbarment is manifestly a more

severe penalty that disbarment with the right to apply for

readmission, with its concomitant possibility of readmis-

sion, the opinion in this matter should be vacated.

CONCLUSION

Wherefore, respondent Donaid 0. Pinkston respect-

fully moves this Court for the entry of an order granting

rehearing in this matter, and thereafter, for the entry of

an order vacating the sanction of permanent disbarment,

and imposing the sanction of disbarment, with the right

to apply for readmission after five (5) years.

Respectfully submitted, this 2nd day of June, 2003.

/s/ Herbert V. Larson, Jr.

HERBERT V. LARSON, JR.

700 Camp Street

New Orleans, Louisiana 70130

(504) 528-9500

Louisiana Bar No. 6952

Attorney for Respondent

Donald O. Pinkston

[Certificate of Service Omitted In Printing]

tion against ex post facto law$ is applicable to the penalties im-

posed in such proceedings. Moreover, even if such proceedings

are treated as purely civil in nature, Article 6 of the Louisiana

Civil Code would require the prospective application of the amend-

ment permitting permament disbarment.

l4a

APPENDIX C

SUPREME COURT OF LOUISIANA

IN RE: DONALD O. PINKSTON

DOCKET NO: 2002-B-3251

C/W 2002-B-3252

RESPONSE BY

THE OFFICE OF DISCIPLINARY COUNSEL TO

THE RESPONDENT’S PETITION FOR REHEARING

LOUISIANA ATTORNEY DISCIPLINARY BOARD

DOCKET NO: 99-DB-029

OFFICE OF DISCIPLINARY COUNSEL

CHARLES B. PLATTSMIER, #11021

Chief Disciplinary Counsel

4000 S. Sherwood Forest Boulevard

Suite 607

Baton Rouge, Louisiana 70816

(225) 293-3900

15a

SUPREME COURT OF LOUISIANA

IN RE: DONALD O. PINKSTON

(Bar Roll No: 17429)

DOCKET NUMBER: 2002-B-3251

c/w 2002-B-3252

RESPONSE BY

THE OFFICE OF DISCIPLINARY COUNSEL TO

THE RESPONDENT’S

PETITION FOR REHEARING

MAY IT PLEASE THE COURT:

PROCEDURAL HISTORY

The first set of formal charges filed against the Res-

pondent which involved the Dwayne Small matter were

filed in April, 1999. The disciplinary hearing on those

formal charges was held on December 14, 2000. In his

pre-hearing memorandum, the Respondent indicated that

he would not be calling any witnesses to testify at the

hearing and acknowledged that disbarment would be the

only appropriate sanction if the charges were proven by

clear and convincing evidence.

In May, 2001, the Hearing Committee issued its recom-

mendation finding that all of the allegations of fact set

forth by the Office of Disciplinary Counsel had been

proven by clear and convincing evidence. The Hearing

Committee recommended that the Respondent be dis-

Pa Nee NNT PDO GAS einai AEN,

16a

barred. The matter was scheduled for board panel argu-

~ ment thereafter.

While this matter was pending both before the Hearing

Committee and the Disciplinary Board, the Louisiana

State Bar Association through its House of Delegates

voted to recommend to the Louisiana Supreme Court

that it amend its rules to expressly provide for the sanc-

tion of ‘permanent disbarment’. Subsequent thereto, a

Supreme Court committee was organized to evaluate the

LSBA recommendation and report back to the Court.

Thereafter, and effective August 1, 2001, the Louisiana

Supreme Court amended sections of Rule XIX to ex-

pressly provide for its pre-existing authority to perman-

ently disbar an attorney from the practice of law. Hence,

the Supreme Court’s order came after the Hearing Com-

mittee recommendation, but long before the Disciplinary

Board panel arguments in these proceedings.

On December 30, 2002, the Disciplinary Board ren-

dered its recommendations to the Louisiana Supreme

Court once again recommending that the Respondent be

disbarred from the practice of law. Shortly after the

Disciplinary Board’s recommendations were lodged with

this Court, the Respondent filed an objection to the

Board’s recommendation and the matter was scheduled

for briefing and argument.

The Respondent chose to represent himself before the

Court during oral argument. During the course of oral

argument, the Office of Disciplinary Counsel was spe-

cifically asked by a member of the Court whether or not

the type of misconduct engaged in by the Respondent

(particularly the Small matter) would meet the criteria

for consideration of permanent disbarment. In response

to the Supreme Court members’ questions, the Office

of Disciplinary Counsel asserted that the Respondent’s

action certainly appeared consistent with Guideline 2

found in Appendix E to Rule XIX, ‘Intentional Corrup-

tion of the Judicial Process”.

In due course, this Honorable Court issued its decision

permanently disbarring the Respondent from the practice

of law. On June 2, 2003, the Respondent, Donald O.

Pinkston asked for a rehearing on the issue of sanction.

~~

LAW AND ARGUMENT

The Respondent’s request for rehearing appears to

have been filed on or about June 2, 2003 and prior to

this Court’s decision in the consolidated cases of In

Re: Laudumiey and In Re: Mann decided on June 27,

9003. The decision in that consolidated disciplinary

matter, coupled with the Court’s prior decision in the

matter of In Re: Nicholas Morphis, appears to be dis-

positive of most ‘f not all of the objections raised by the

Respondent.

The Respondent’s request for rehearing asserts that

permanently disbarring him from the practice of law

falls outside the authority of this Court because the

conduct for which he stands assused took place before

the effective date of the amendment to Rule XIX; that

he did not receive notice of the Office of Disciplinary

Counsel’s intent to seek permanent disbarment prior to

the Court’s final decision; and that application of the

amendments to Rule XIX which provided for perman-

ent disbarment amount ot an ex post facto law.

At the outset it is important for this Court to recall

what the Office of Disciplinary Counsel believes to be an

important factor. Donald Pinkston chose not testify

in his own disciplinary hearing; Donald Pinkston chose

not to call a single witness in his defense nor in mitiga-

tion.

18a

Indeed, Donald Pinkston conceded prior to his dis-

ciplinary hearing that if the Office of Disciplinary Coun-

sel was able to carry its burden by clear and convincing

evidence, he deserved to be disbarred. Now that the

sanction of permanent disbarment has been visited upon

him, Mr. Pinkston claims that he might well have pre-

sented a defense or perhaps mitigation had he known that

the disbarment that he faced was a permanent one rather

than one which would afford him an opportunity to

apply for readmission. Most respectfully it is suggested

that the argument is entirely unpersuasive.

It strains one’s sense of reason to believe that had

Mr. Pinkston a defense to the formal charges he would

not have produced it at a hearing where admittedly the

Office of Disciplinary Counsel was seeking disbarment.

Indeed, even if Donald Pinkston were not in a position

to contest the underlying factual allegations against him,

one would certainly have expected Mr. Pinkston to have

presented some form of mitigation, anything. In this

instance, he did neither. It hardly gains Mr. Pinkston

any credibility to now suggest, after the fact, that if only

he had known permanent disbarment was option he

would have defended himself and presented evidence in

mitigation. Having presented those opportunities, he

chose not to do so. He should not now be allowed to

profit from a tactical decision which he apparently now

regrets.

In the matter of Jn Re: Nicholas Morphis, 831 So.2d

934 (La. 2002), the Respondent was interimly suspended

by the Supreme Court following an Office of Disciplinary

Counsel request that he be suspended to protect the pub-

lic. See In Re: Morphis, 701 So.2d 1324 (La. 1997).

Formal charges were filed against Morphis in 1999 anda

hearing committee later recommended that the Respond-

19a

ent be disbarred from the practice of law. The Disciplin-

ary Board concurred in the hearing committee’s recom-

mendation and urged that the respondent be disbarred

and ordered to make payment of full restitution to all of

his victims. The Supreme Court received the Disciplinary

Board’s recommendation on October 18, 2001, nearly

2% momths after it amended Louisiana Supreme Court

Rule XIX to expressly provide for permanent disbarment.

When neither the Respondent nor the Office of Discip-

linary Counsel objected to the Disciplinary Board’s rec-

ommendation of disbarment, the Court on its own

motion ordered the case docketed for oral argument and

the parties were directed to address whether the sanction

of permanent disbarment was appropriate.

After receiving briefs and argument, the Court ren-

dered its decision wherein it once again recognized that a

disbarred attorney has no absolute right to seek readmis-

sion after the passage of five years, and under the Court’s

plenary constitutional authority to regulate the practice

of law, the Court has on occasion extended the minimum

period for readmission from disbarment. Noting that

Morphis’ conduct met at least one of the illustrative

guidelines set forth in Appendix E to Rule XIX, the Sup-

reme Court concluded that it would be remiss in its con-

stitutional obligation to regulate the practice of law if

permanent disbarment was not imposed against Morphis.

Later the issue was more directly presented to the

Court in Laudumtey and Mann, 2003-B-0234 (6/27/-

2003), 2003 WL 21480392 (La. 2003) decided by the

Court on June 27, 2003. In deciding the so called retro:

active application of “permanent disbarment”’ the Court

specifically addressed whether or not the sanction of per-

manent disbarment” may be applied to conduct which

occurred prior to the August 1, 2001 effective date of the

relevant amendments. As the Supreme Court made clear,

20a

August 1, 2001 effective date of the relevant amend-

ments. As the Supreme Court made clear, the amend-

ments of Supreme Court Rule XIX, Sections 10 and

24:

“. . do not redefine the respondent’s conduct,

which remains controlled by the Rules of Profes-

sional Conduct in effect at the time of their offense.

However, respondents contend that the amendments

have the effect of increasing the penalty they may

receive for their misconduct.

The fallacy in respondents’ argument is that nothing

in the amendments to Supreme Court Rule XIX,

Sections 10 and 24 alter the penalties a lawyer may

receive for professional misconduct. Both prior to

and after the amendment, the most serious sanction

a lawyer may receive under Rule XIX is the sanction

of disbarment. The only change effected by the

amendments relates to the ability of a disbarred

attorney to seek readmission. However, respondents

maintain that the elimination of this ‘“‘right’’ to seek

readmission exposes them to greater sanction than

they could have received at the time of their miscon-

duct.

Respondents have pointed to no constitutional auth-

ority or jurisprudence from which this court would

indicate a disbarred attorney has a “right” to seek

readmission to the bar of this state. The five year

minimum period for seeking readmission, as set

forth in Supreme Court Rule XIX, Section 24, is a

rule of procedure that does not vest any substantive

right in the attorney. The procedural nature of the

rule is illustrated by our decision in Jn Re: White,

00-2732 (La. 4/25/01), 791 So.2d 602, and Louwis-

tana State Bar Ass’n. vs. Krasnoff, 502 So.2d 1018

(La. 1987), in which we held that the minimum per-

iod for applying for readmission may be extended

2la

or otherwise modified at our discretion. Thus, is

clear that our rules create no substantive right to

seek readmission.”’

Thereafter, the Supreme Court made clear in the Laud-

umiey and Mann decision that its amendments to Rule

XIX, Sections 10 and 24 did not represent substantive

changes to the substantive bar discipline rules nor did

those changes result in the adoption of a new sanction

which did not previously exist. The Court made clear,

“Given this court’s absolute discretion over readmission,

it is beyond dispute that this court has always had the

unfettered authority to refuse readmission to-disbarred

attorneys, including the right to do so on a permanent

basis.”’

Finally, the Court concluded that the amendments to

Supreme Court Rule XIX, Sections 10 and 24 did not

create a new penalty. ‘‘Accordingly, we conclude there

is no merit to Respondent’s argument that these amend-

ments constitute prohibited ex post facto laws.”

THE NOTICE ISSUE

The single issue raised by the Respondent which argu-

ably has not been explicitly addressed by this Court is

what can best be described as the “notice issue”. In

essence, the Respondent suggests that notice of the sanc-

tion sought by the Office of Disciplinary Counsel or to be

imposed by the Court is a fundamental part of due pro-

cess which he has been denied. The Respondent’s theory,

while novel, is unavailing.

At the outset it is once again important to emphasize

the timeline which has previously been set out herein-

above, Within ninety days of the Hearing Committee

opinion and recommendation, this Court amended Rule

ee eee

>

—

7

22a

XIX, Section 10 and 24, and published Appendix E

which included Guideline 2 listing as a potential consid-

eration for permanent disbarment an attorney’s corrup-

tion of the judicial process, the precise conduct found to

have been engaged in by the Respondent in connection

with the Dwayne Small matter. Further, it is undeniable

that the Respondent acknowledged to both the Hearing

Committee and the Board that if the factual allegations

brought against him were proven by clear and convincing

evidence that the appropriate sanction was disbarment.

That he faced banishment from the practice of law must

be (and has been) conceded by the Respondent. The

Office of Disciplinary Counsel has always sought Res-

pondent’s disbarment; the Respondent acknowledged

that disbarment is appropriate for proven misconduct as

alleged; and the Supreme Court’s order imposes disbar-

ment. Clearly, the Respondent had notice from the out-

set and throughout these proceedings that he faced dis-

barment.

The sole issue is whether the Respondent was entitled

to a formal statement from either the Office of Dis-

ciplinary Counsel or the Court that his discipline might

include a permanent ban on his filing an application for

readmission. Clearly, he is not.

The Respondent does not now, not has he ever sug-

gested that the formal charges failed to put him on notice

of the facts and conduct that he has been accused of en-

gaging in. Nor does the Respondent suggest that he was

not fairly informed of the nature of the charges against

him to permit him to prepare a defense. Lastly, the

Respondent does not (nor could he) suggest that the sub-

stantive rules violated were not fully in force and in

effect at the time his actions occurred.

oe SS ee aa

[OSE RR SSS oS cee

23a

In the matter of In Re: Ruffalo, 390 U.S. 544, 88

S.Ct. 1222, 20 L.Ed. 2nd 117 (1968), the United States

Supreme Court concluded that under the due process

clause, a finding of misconduct cannot be predicated

upon evidence introduced at a disciplinary hearing if the

lawyer had no prior notice of the charge. The formal

charges need not even specify the precise rule of profes-

sional conduct that is alleged to have been violated.

Phelps vs. Kansas Supreme Court, 662 F.2d 649 (10th

Cir. 1981).

The Office of Disciplinary Counsel was able to locate

no case law which would suggest that notice of the sanc-

tion to be imposed in a lawyer disciplinary hearing matter

rises to the level of protections afforded under the due

process clause. Indeed, at least one case with some strik-

ing similarities appears to hold to the contrary.

In the case of Dixon vs. State Bar of California, 32

Cal.3rd 728, 653 P.2d 321, 187 Cal. Rptr. 30 (Cal.

1982), the respondent claimed that prior to the hearing

of his disciplinary case, he had not been advised by the

California Bar Counsel of the discipline being sought.

The Supreme Court of California held that notice was

required only of the charges against him, not the sanction

being sought. In what the California Court seemed to

suggest was the most serious count of misconduct, the

respondent:

“. . . knowingly filed false statements with the

court, seeking to deceive the judge with regard to

the client’s financial condition;”

The similarities to the case at bar are indeed striking.

This Court has held for decades that it has the sole and

exclusive jurisdiction, authority and discretion to regulate

the practice of law including the discipline to be imposed,

: SS spiteeeniie

24a

and whether to permit reinstatement or readmission.

Neither the recommendation of hearing committees or

the Disciplinary Board nor the suggestion by the Office

of Disciplinary Counsel of the type of sanction sought,

are in any way binding upon the Court. Indeed, little

would be gained by trying to catalog the numerous cases

where the Court has imposed discipline (both more oner-

ous and less so) than that recommended or sought by the

Office of Disciplinary Counsel.

Nothing in Supreme Court Rule XIX or in the juris-

prudence of this state suggests or supports that a respond-

ent must receive notice of the severity of sanction sought

to be imposed. Every lawyer must be held to know that

a violation of the Rules of Professional Conduct holds the

potential for the imposition of sanctions including an

expulsion from the profession. Nothing more or less has

occurred in this case.

The true crux of the Respondent’s argument lies in his

assertion that he had no notice that the Court’s decision

might preclude his ability to file an application for

readmission at some later date. This Court’s decision in

the case of Laudumiey and Mann slams shut the basic

underpinnings of the Respondent’s theory in that regard.

Once again, the Court in those cases made clear in un-

equivocal language, that Louisiana has never created a

‘substantive right” to seek readmission. Therefore, elim-

ination of the procedural ability to file an application for

readmission did not and could not deprive the Respond-

ent of a “‘substantive right” which this Court has held

does not exist.

With or without this Court’s amendment to Rule XIX,

the Respondent knew or certainly should have known

that, ‘“‘given this court’s absolute discretion over read-

mission, it is beyond dispute that this court has always

25a

had the unfettered authority to refuse readmission to

disbarred attorneys, including the right to do so ona per-

manent basis.”

In essence, the Respondent now seeks an extension of

his opportunity to brief and orally- argue his sanction.

Clearly, predicated upon the questions which were posed

to both the Office of Disciplinary Counsel and the Res-

pondent during oral argument, Donald O. Pinkston was

given the opportunity to request a sanction which would

have left open for him the opportunity to file for read-

mission at a later date. Given the often conflicting and

often incredulous statements made by the Respondent to

the Court during oral argument, it is not surprising that

this Court was neither moved nor persuaded by his pleas.

His lack of success should not form a basis for this

Court’s grant of rehearing.

CONCLUSION

The Respondent Donald Pinkston was ordered perman-

ently disbarred by a unanimous Court opinion issued May

20, 2003. On June 2, 2003, Mr. Pinkston sought a re-

hearing on several grounds, most of which were the sub-

ject of a subsequent decision by this Court in the matter

of Laudumiey and Mann. It is respectfully submitted

that the constitutional arguments advanced by the Res-

pondent, having previously been addressed by the Sup-

reme Court, form an insufficient basis for the Respond-

ent’s request for rehearing. Additionally, the Respondent

should not now be heard to complain about the penalty

which has been imposed upon him when he was provided

with every opportunity to testify and present factual

evidence in opposition to the formal charges and/or in

mitigation. Mr. Pinkston should not today be permitted

to profit for a tactical decision which he made prior to

26a

his disciplinary hearing. The Respondent’s request for

rehearing should be denied.

Respectfully submitted,

OFFICE OF DISCIPLINARY COUNSEL

BY: /s/ Charles B. Plattsmier

CHARLES B. PLATTSMIER, #11021

Chief Disciplinary Counsel

4000 S. Sherwood Forest Boulevard, Suite 607

Baton Rouge, Louisiana 70816

(225) 293-3900

[Certificate of Service Omitted in Printing]

27a

APPENDIX D

[Filed MAY 20 2003]

SUPREME COURT OF LOUISIANA

NO. 02-B-3251

| c/w

NO. 02-B-3252

IN RE: DONALD O. PINKSTON

ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM

This disciplinary proceeding involves six counts of mis-

conduct! stemming from two sets of formal charges filed

by the Office of Disciplinary Counsel (“ODC”’) against

respondent, Donald O. Pinkston, an attorney licensed to

practice law in Louisiana but currently suspended from

the practice of law for conduct unrelated to the instant

proceedings.

IThe matter originally involved a total of eight counts.

Two of the counts were dismissed by the hearing committee, based

on a finding that the ODC failed to prove these charges by clear

and convincing evidence. The ODC has not objected to this find-

ing; accordingly, these counts will not be addressed further.

28a

UNDERLYING FACTS

Small Matter

In 1993, Dwayne Small, respondent’s stepson, pled

guilty to manslaughter pursuant to a plea agreement in

Orleans Parish Criminal District Court, Section “C,”

Mr. Small was sentenced to twenty-one years in prison

and began serving his sentence. In 1995, respondent

enrolled as counsel of record for Mr. Small and filed a

Motion to Correct an Excessive Sentence alleging the

court erred in failing to apply the sentencing guidelines

to Mr. Small’s plea agreement, which when applied would

warrant imposition of a shorter sentence. The district

attorney’s office filed an objection to respondent’s mo-

tion urging it was illegal to amend a sentence imposed at

hard labor after a criminal defendant started serving his

time. Additionally, he asserted there was no law man-

dating the application of sentencing guidelines to plea

agreements.

At a hearing conducted on June 25, 1996 by Judge

Ike Spears, who was sitting ad hoc in Section “‘C,”’ res-

pondent alleged on numerous occasions that he had per-

sonally spoken with the district attorney and was assured

the State of Louisiana would not object to his motion.

Based on respondent’s representations, Judge Spears

reduced Mr. Small’s sentence from twenty-one years to

twelve years, but stayed the effect of the order to enable

the State to file writs.

Days later, the district attorney’s office filed a motion

seeking reconsideration of the sentence reduction. Judge

Spears kept the stay in place and again continued hear-

ings of the State’s motion to permit respondent an

opportunity to confirm his purported agreement with the

district attorney’s office. When respondent was unable to

— en

29a

do so, Judge Spears granted the State’s motion to recon-

sider and reinstated Mr. Small’s original twenty-one year

sentence.

Prior to a scheduled status conference, Judge Sharon

Hunter was elected to fill the vacancy in Section “C,”’

and the matter passed to her. In November 1996, she

held the status conference and determined the matter was

closed, The docket entry reflected: ‘‘the status hearing

cons:dered held and satisfied.”

Thereafter, respondent filed a “Motion to Correct an

Illegal Minute Entry” in Mr. Small’s case. For unex-

plained reasons, that motion appeared on the docket of

Section “G,” Presided over by Judge Julian Parker.”

At the hearing on the motion, respondent represented to

Judge Parker that an administrative error had taken place

since Judge Spears had imposed a twelve-year sentence

on Mr. Small when the actual sentence should have been

nine years. Based on the representations made by res-

pondent, Judge Parker vacated the -— sentence and

resentenced Mr. Small to nine years.” As a result, Mr.

2In a subsequent hearing, respondent stated the case was

remanded to Section “G” by Judge Hunter who recused herself

from the matter. However, at another hearing, respondent pro-

fessed to be unaware as to why the case appeared on the docket

in Section ‘“‘G.”” He stated: ‘‘Your Honor, I have no idea. I have

no connections with this building. I have no connections with

Judge Hunter. I have no connections with the court. All I know is

that the case was on the docket, I received a subpoena, I showed

up.”’ Later, in oral argument before this court, respondent indi-

cated that he had not received a subpoena in the case, but was in

Section “G” on an unrelated matter when the case was called.

3 judge Parker was apparently unaware of Judge Spears’

earlier judgment reinstating the original sentence of twenty-one

years. In subsequent appellate proceedings, Judge Parker explained

the minute entry reflecting Judge Spears’ reversal of the June 25,

1996 ruling and reinstating the sentence of twenty-one years was

“missing” from the record when he acted on the case.

PA ORL eee ee eT meen NS Oe a ae

30a

Small was entitled to an immediate release from prison.

Subsequently, Judge Parker reviewed the complete

record and learned Judge Spears had in fact reinstated the

twenty-one year sentence. Judge Parker advised the par-

ties it was not his intent to re-sentence Mr. Small; rather,

he believed, based on what he characterized as ‘‘erron-

eous and misleading representations” from respondent,

that he was merely correcting an administrative error of

Judge Spears. Accordingly, Judge Parker rescinded his

earlier ruling and reinstated Mr. Small’s original sentence

of twenty-one years. He ordered respondent to turn Mr.

Small back into the custody of the State of Louisiana.

The ODC later conducted an investigation into res-

pondent’s activity in the Small matter.

McDonald Matter

In May 1996, Kenneth McDonald retained respondent

for $3,500 to assist him in his criminal matter pending in

the United States District Court for Eastern District of

Louisiana. There was no written contract of employment

between the parties. At the time, Mr. McDonald was

already represented by New Orleans criminal defense

attorney Frank DeSalvo. Nonetheless, Mr. McDonald

wanted respondent to pursue the scheduling of an expedi-

tious bond hearing and negotiate a plea agreement more

favorable than that obtained by Mr. DeSalvo.

Subsequently, respondent met with Mr. McDonald

on a few occasions and spoke on one or more times with

the Assistant U.S. Attorney assigned to the case.* Ulti-

4 ur. DeSalvo wrote to the ODC that, to his knowledge, res-

pondent had contacted on one occasion the U.S. Attorney, who

advised that he would not discuss or negotiate the matter because

respondent was not counsel of record. According to Mr. De-

Salvo, respondent had essentially no part in the criminal matter.

3la

mately, Mr. McDonald did not get a bond hearing and he

pled guilty relative to an agreement negotiated by Mr.

DeSalvo.

On February 28, 1997, Mr. McDonald filed a com-

plaint with the ODC advising that respondent failed to

take any action to pursue his legal matter and refused to

return the unearned legal fee, despite repeated requests.

Contrary to his testimony at the formal hearing, respond-

ent denied he was retained as counsel in the matter since

Mr. McDonald was already represented by Mr. DeSalvo.

Later, respondent erroneously stated he was retained

after Mr. McDonald had already pled guilty and that

respondent’s role was ‘‘would be to counsel and assist

[Mr. McDonald] in calculating the guidelines and search-

ing in the calculation and appealing his sentence if

necessary.”

Isaac Matter

In February 1997, Ammie McCrainey Isaac retained

respondent for $5,000 to represent her son, Emanuel

Isaac, in criminal appellate proceedings. Following a

multiple bill hearing, Mr. Isaac was sentenced to twenty

years for manslaughter. Respondent filed a timely

notice of appeal. Almost one year and one-half after he

was retained, respondent wrote to Ms. Isaac stating the

appeal was filed on January 26, 1998. However, while

the appeal record in the case was lodged with the court of

appeal, the transcript of the hearing and sentencing on

the multiple bill were not included. Finding these trans-

scripts to be “essential” for appellate review, the court

of appeal ordered respondent five times between January

and May 1998 to “take necessary steps to have [the]

transcript prepared and forwarded to the Clerk of this

Court.” After the record was ultimately supplemented,

oe ete ce mmm cp ae

32a

the court of appeal had to order respondent on three

occasions between June and November 1998 to file his

assignments of error and brief. Although respondent

was granted numerous extensions of time to submit

such, he failed to timely comply with the court’s orders.

When respondent finally complied with the court’s order

on November 2, 1998, the brief relative to the appeal of

the trial and sentencing in Mr. Isaac’s homicide case con-

sisted of one assignment of error in a three-page brief.

Subsequently, respondent was suspended from prac-

tice of law on unrelated charges in Jn re: Pinkston, 98-

1926 (La. 12/1/98), 728 So.2d 381. As a result, Ms.

Isaac retained other counsel, who filed a supplememental

brief and completed the appellate representation. She

asked that respondent provide an accounting and return

the unearned fee, but he failed to do so.

Alston Matter

In early 1997, Felishia Alston, a California resident,

filed a complaint against respondent alleging she retained

respondent for $8,000 to represent Dalshawn Boson in

criminal proceedings pending in Orleans Parish Criminal

District Court. She contended respondent neglected the

legal matter, failed to communicate with his client and

withdrew from the representation prior to completing the

matter, as well as refused to account for or return the

unearned portionof the fee. Ultimately, the parties sub-

mitted to alternative fee dispute arbitration through the

Louisiana State Bar Association. On November 17, 1998,

the appointed arbitrator rendered a written decision find-

ing respondent incompetently and negligently handled

the criminal matter, as well as failed to communicate

with his client. She concluded respondent owed Ms.

Alson $3,000 of the advanced fee. Subsequently, when

33a

respondent neglected to pay any portion of the owed fee,

Ms. Alston had to retain counsel to file a civil action

against respondent. Ms. Alston obtained a judgment

against respondent, but respondent failed to satisfy the

judgment.

Jones Matter

On December 11, 1998, this court rendered an order

in In re: Pinkston, 98-1926 (La. 12/11/98), 728 So.2d

381, suspending respondent from the practice of law for

a period of two years. After this court denied respond-

ent’s application for rehearing (making the suspension

a final judgment), respondent accepted payment of

$1,000 from Hilda Jones for the criminal representation

of her son. Subsequently, Ms. Jones learned of respond-

ent’s suspension from practice when he failed to appear

for a court hearing in her son’s case. Respondent refused

to refund the fee until August 1999, when prompted by

Ms. Jones’ filing of a disciplinary complaint with the

ODC.

Motton Matter

In 1995, Agnes Motton and Zina Nunnery rétained

respondent for $2,300 to represent Frank Motton in

post-conviction criminal proceedings pending in Orleans

Parish Criminal District Court. Mr. Motton had been con-

victed of first degree murder and sentenced to life in

prison. Respondent filed an application for post-convic-

tion relief raising a claim of newly-discovered evidence.

According to court records, the matter was scheduled

- for an evidentiary hearing, but was rescheduled on three

occasions for various reasons. After March 1996, res-

pondent failed to take any action in the case, nor did he

refund his unearned fee, despite repeated requests.

2B" 5, Gla NA SARS meinen yea a eee, gumamarpeeaaaameamas

34a

In January 1998, Ms. Motton and Ms. Nunnery filed a

complaint with the ODC advising of respondent’s neglect

of a legal matter, failure to communicate and failure to

return the unearned fee. While respondent filed a res-

ponse denying any misconduct on his part, he conceded

he neglected to complete the legal matter due to his

suspension in Jn re: Pinkston, 98-1926 (La. 12/11/98), ~

798 So.2d 381, and agreed he owed a refund of some

portion of the fee.

DISCIPLINARY PROCEEDINGS

Formal Charges

After investigation, the ODC filed two separate sets of

formal charges against respondent. The first set, filed in

April 1999, involved the Small matter and alleged viola-

tions of Rules 1.2(c) (counsel or encourage a client to

engage in conduct that the lawyer knows is criminal or

fraudulent), 3.3(a)(1) (false statement of material fact or

law to a tribunal), 3.3(a)(2) (conceal that which attorney

is required by law to reveal), 3.3(a)(4) (offer evidence

known to be false), 8.4(a) (violating the Rules of Pro-

fessional Conduct), 8.4(c) (engaging in conduct involving

deceit, dishonesty, fraud, or misrepresentation) and

8.4(d) (engaging in conduct prejudicial to the adminis-

tration of justice) of the Rules of Professional Conduct.

In May 2001, the ODC filed a second set of charges,

involving the McDonald, Isaac, Alston, Jones and Motton

matters. These charges alleged Rules 1.3 (lack of dili-

gence), 1.4 (failure to communicate), 1.5 (failure to

refund client funds), 1.15(b) (failure to promptly ac-

count for and deliver funds or property owed to a client

or third party), 1.16(d) (failure to protect client interests

upon termination of representation), 5.5(a) (unauthor-

EEMACOGaNAA Sesenaie cena ee TEN

35a

ixed practice of law), 8.1(a) (knowingly make a false

statement of material fact in connection with a discip-

linary matter or bar admission matter or application),

8.4(a) (violating the Rules of Professional Conduct),

8.4(c) (engaging in conduct involving deceit, dishonesty,

fraud, or misrepresentation) and 8.4(d) (engaging in con-

duct prejudicial to the administration of justice) of the

Rules of Professional Conduct.

Respondent filed answers to both sets of formal

charges. Separate hearings were conducted before dif-

ferent hearing committees.

Recommendations of the Hearing Committees

With regard to the Small matter, the hearing commit-

tee concluded respondent made several misrepresenta-

tions to Judge Parker, specifically, that Judge Hunter had

recused herself, Judge Spears had reduced Mr. Small’s

sentence to twelve years when the twenty-one year sen-

tence had been reinstated, and that the minute entry by

Judge Spears was erroneous and should be corrected to

further reduce Mr. Small’s sentence to nine years. The

hearing committee noted the misrepresentations resulted

in the temporary release of Mr. Small from prison. Fur-

ther, the committee found, while it was not clear whether

respondent improperly caused the transfer to Judge

Parker’s section, respondent “nevertheless took advantage

of it” to obtain the illegal release of his stepson.

Based on these conclusions, the hearing committee

found respondent violated Rules 3.3(a)(1) (false state-

ment of material fact or law to a tribunal), 3.3(a)(2)

(conceal that which attorney is required by law to

reveal), 3.3(a)(4) (offer evidence known to be false),

8.4(a) (violating the Rules of Professional Conduct),

8.4(c) (engaging in conduct involving deceit, dishon-

in aL

eee, ose

36a

esty, fraud, or misrepresentation) and 8.4(d) (engaging

in conduct prejudicial to the administration of jus-

tice) of the Rules of Professional Conduct.

The committee recognized respondent’s cooperation

in the disciplinary proceedings as a mitigating factor.

As aggravating factors, the committee identified respond-

ent’s prior disciplinary record? and substantial experience

in the practice of law. Applying these factors to the base-

line sanction of disbarment, the committee concluded

disbarment is appropriate under the facts.

A separate hearing committee heard the McDonald,

Isaac, Alston, Jones and Motton matters. This commit-

tee found as follows:

In the McDonald matter, the committee concluded

respondent violated Rule 1.5(f)(6) by failing to refund

client funds, as he led Mr. McDonald to reasonably

believe that, for $3,500 he would successfully obtain a

bond hearing or favorable sentencing, which respondent

failed to do.

In the Isaac matter, the committee found respondent

failed to diligently pursue Mr. Isaac’s appeal and failed to

adequately communicate with his client, in violation of

Rule 1.3.

In the Alston matter, the committee determined res-

pondent engaged in conduct prejudicial to the adminis-

In. In re: Pinkston, 98-1926 (La. 12/11/98), 728 So.2d

381, respondent was suspended from the practice of law for a per-

iod of two years for failure to maintain clients’ funds in trust and

failure to pay a third party medical provider over a period of sev-

eral years. Respondent has not sought readmission. Additionally,

respondent was admonished on four prior occasions between 1994

and 1995 for failing to respond to disciplinary complaints. Fin-

ally, in 1997, respondent was reprimanded for misleading clients,

failing to return unearned fees and commingling of client funds.

ee . ae

37a

tration of justice in violation of Rule 8.4(d) when he

failed to satisfy his $3,000 obligation owed to Ms. Als-

ton.

In the Jones matter, the committee concluded res-

pondent violated Rule 1.5(f)(6) when he failed to refund

the $1,000 retainer fee paid by Ms. Jones in connection

with her son’s criminal matter at the time he was sus-

pended from the practice of law.

In the Motton matter, the committee found violations

of Rules 1.3 (lack of diligence) and 1.5(f)(6) (failure to

refund client funds) based on respondent’s admission that

there were several hearing continuances over a period of

several years on Mr. Motton’s writs for habeas corpus

and that he did not earn the entirety of the fee paid.

While the committee stated there was evidence that res-

pondent did not fully communicate with his clients, the

committee neglected to find a violation of Rules 1.4

(failure to communicate) and 1.16(d) (failure to pro-

tect client interests at termination of representation).

As aggravating factors, the committeed notes respond-

ent’s prior disciplinary record, pattern of misconduct and

substantial experience in the practice of law. The sole

mitigating factor was respondent’s cooperation in the

disciplinary proceedings. Applying these factors to the

baseline sanction of suspension, the committee recom-

mended a thirty-month suspension and payment of res-

titution to Mr. McDonald, Mr. Isaac, Ms. Alston, Ms.

Motton and Ms. Nunnery.

Recommendation of the Disciplinary Board

With minor modifications, the disciplinary board

accepted the factual findings of the hearing commit-

38a

tees.° The board found respondent knowingly and

intentionally violated duties owed to his clients, the pub-

lic, the legal system and the profession. As to the Small

matter, the board stated the actual injury to the legal sys-

tem and the public was present in that respondent mis-

represented the true status of Mr. Small’s sentence to the

court ‘‘fand Mr. Small, a violent criminal, was released

from prison years before his scheduled release date.”’ As

to the remaining client matters subject of the instant pro-

ceedings, the board stated actual injury resulted from

respondent’s neglect of legal matters, failure to provide

accountings and return unearned fees to his clients.

The board adopted the mitigating and aggravating fac-

tors cited by the committees, as well as found respond-

ent’s substantial experience in the practice of law should

have been considered as an aggravating factor. Finding

respondent’s actions show his lack of regard for his

clients and for his professional obligations as a member of

the bar, the board recommended that respondent be dis-

barred from the practice of law. It further ordered res-

pondent to make restitution to his victims.

®The board found minor errors regarding the committee’s

findings relative to the McDonald, Isaac and Motton matters. As

to the McDonald matter, the board concluded the commmittee

erred in failing to find a violation of Rule 8.4(a) (violating the

Rules of Professional Conduct), although it admitted this finding

added little, if anything, to the sanction imposed. As to the Isaac

matter, the board determined the committee erred in finding vio-

lations of Rule 1.4 and 1.5(f)(6) since respondent was not charged

with a violation of these rules, but found the committee erred in

failing to find a violation of Rule 1.16(f) (failure to protect client

interests at termination of representation) as respondent did not

notify Ms. Isaac of his suspension, surrender her property and re-

fund any unearned fees. Lastly, as to the Motton matter, the

board pointed out that, although there was evidence respondent

did not adequately communicate with his clients, the committee

neglected to find a violation of Rule 1.4 (failure to communi-

cate).

39a

Respondent filed an objection to the disciplinary

board’s recommendation. Accordingly, the matter was

docketed for briefing and argument in accordance with

Supreme Court Rule XIX, §11(G).

DISCUSSION

Bar disciplinary matters come within the original juris-

diction of this court. La. Const. art. V, §5(B). Conse-

quently, we act as triers of fact and conduct an inde-

pendent review of the record to determine whether the

alleged misconduct has been proven by clear and convinc-

ing evidence. In re: Quaid, 94-1316 (La. 11/30/94),

646 So.2d 343, 348; Loutstana State Bar Ass’n v. Boutall,

597 So.2d 444, 445 (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 commit-

tee’s factual findings. See Jn 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 supports the hearing committees’ findings

that the charges against respondent have been proven by

clear and convincing evidence.

In the Small matter, the only logical conclusion to be

drawn from the evidence is that respondent intentionally

and deliberately misrepresented the facts to the court in

an effort to obtain a more lenient sentence for Mr. Small.

Respondent initially represented to Judge Spears that the

district attorney’s office had agreed not to oppose the

motion to reduce Mr. Small’s sentence, when in fact it

should have been obvious to respondent that no such

agreement had been made by the district attorney’s

office. Based on respondent’s false representations,

:

ye

40a

Judge Spears reduced Mr. Small’s sentence. After Judge

Spears reinstated Mr. Small’s sentence, the case myster-

iously appeared on Judge Parker’s docket in another sec-

tion of court. Respondent has offered no cogent explan-

ation of how the case ended up in that section. At one

point, he indicated that the transfer was based on the

recusal of a judge; at another time, he indicated the case

simply appeared on the docket to his surprise, and he

was fortuitously in that section of court at the time the

case was Called. In any event, respondent represented to

Judge Parker that he was simply asking to correct an

administrative error in a minute entry, which would

result in Mr. Small being sentenced to nine years. At no

time did respondent call Judge Parker’s attention to the

fact that Judge Spears had reinstated Mr. Small’s sen-

tence to twenty-one years. Based entirely on respond-

ent’s representations, which Judge Parker later character-

ized as “erroneous and misleading,” Mr. Small’s sentence

was reduced to nine years, entitling him to an immed-

iate release.

Although respondent adamantly asserts he had no

improper motives in this matter, he offers no evidence in

support of his contentions. Rather, he simply asks this

court to disbelieve every witness who testified in these

proceedings, including the trial judges and a represen-

tative of the district attorney’s office, who were found to

be credible by the hearng committee. We are not pre-

pared to disregard to findings of fact made by the hear-

ing committee. Accordingly, we find the charges in the

Small matter are proven by clear and convincing evi-

dence.

In the remaining matters, the record clearly demon-

strates respondent neglected legal matters, failed to

promptly provide accountings and failed to return un-

4la

sole issue presented for our consideration is the approp-

riate sanction for respondent’s actions, In determining

a sanction, we are mindful that disciplinary Proceedings

are designed to maintain high standards of conduct, pro-

tect the public, preserve the integrity of the profession,

and deter future misconduct, Louisiana State Bar Ass’n

In the Small matter, respondent’s conduct unques-

tionable violates Rule 3.3, in that he made false state-

ments to a court and concealed evidence from the court

which he should have revealed. Such practices “violate

6.11, the baseline sanction for violations of Rule 3.3 is

disbarment, Nonetheless, we find respondent’s conduct

ment would be inappropriate. Accordingly, we now

turn to a discussion of permanent disbarment.

The sanction of permanent disbarment is set forth

in the 200] amendment to Supreme Court Rule XIX,

42a

§10’ and §24.8 In our commentary accompanying the

amendment, we stated, in pertinent part:

In the public interest, the Court has amended Louis-

iana Supreme Court Rule XIX to codify Permanent

Disbarment as an available sanction for attorney

misconduct. While the Court has always had the dis-

cretion to deny an application for readmission after

the requisite five (5)-year waiting period after dis-

barment, an attorney who is permanently disbarred

under these circumstances will be prohibited from

applying for readmission to the bar. These amend-

ments reflect the judgment of the Court that in

some instances lawyer misconduct may be so egreg-

ious as to warrant a sanction of permanent disbar-

ment based on the facts of an individual case and in

’ Supreme Court Rule XIX, §10(A) was amended to add the

highlighted language:

(1) Disbarment by the court. In any order or judgment of

the court in which a lawyer is disbarred, the court retains the

discretion to permanently disbar the lawyer and permanently

prohibit any such lawyer from being readmitted to the

practice of law.

8 Supreme Court Rule XIX, § 24(A) was amended to add the

highlighted language:

A disbarred lawyer or a suspended lawyer who has served

a suspension period of more than one year, exclusive of any

waivers or periods of deferral, shall be reinstated or read-

mitted only upon order of the court. . . . No lawyer may

petition for readmission until five years after the effective

date of disbarment. A lawyer who has been placed on

interim suspension and is then disbarred for the same mis-

conduct that was the ground for the interim suspension may

petition for readmission at the expiration of five years from

the time of the effective date of the interim suspension. The

court retains the discretion, in accordance with Section LOA

of this rule, to permanently disbar a lawyer and permanently

prohibit any such lawyer from being readmitted to the prac-

tice of law.

43a

consideration of the guidelines in Appendix E to the

Rules of Lawyer Disciplinary Enforcement.

In Appendix E, we set forth several guidelines illus-

trating the type of cases which might warrant permanent

disbarment. We explained that these guidelines were not

intended to bind this court in its decisionmaking, but to

provide “useful information to the public and to lawyers

concerning the types of conduct the Court might con-

sider to be worthy of permanent disbarment.”

Guideline 2 of Appendix E provides that an attor-

ney’s “[i] ntentional corruption of the judicial process”’

is a ground for permanent disbarment. Clearly, respond-

ent’s actions in the Small matter must be considered an

intentional corruption of the judicial process.

As recently noted in Jn re: Morphis, 01-2803 (La.

12/4/02), __. So.2d ___ , we do not impose the sanction

of permanent disbarment lightly. Noretheless, we are

firmly convinced that we wouid be rerniss in our consti-

tutional duty to regulate the practice ox law if we did not

impose that sanction here. By making false representa-

tions and concealing facts, respondent subverted the judi-

cial process to his own ends. He engaged in conduct

that was calculated to frustrate the administration of

justice. This court cannot and will not condone such

conduct by an attorney when high standards of honesty

are expected. See Louisiana State Bar Ass’n v. Haylon,

250 La. 651, 198 So.2d 391, 392 (1967). Respondent’s

actions convincingly demonstrate that he does not pos-

sess the requisite moral fitness to practice law in this

state. He must be permanently disbarred.?

> Having determined that respondent must be permanently

disbarred for his conduct in the Small matter, we need not address

the appropriate sanction for the other counts of misconduct,

although respondent’s actions in these matters only reinforces our

view that he lacks the moral fitness to practice law.

44a

Accordingly, we will permanently disbar respondent

from the practice of law in the State of Louisiana.

DECREE

Upon review of the findings and recommendations

of the hearing committees and disciplinary board, and

considering the record, it is ordered that the name of

Donald O. Pinkston, Louisiana Bar Roll No. 17429, be

stricken from the roll of attorneys and that his license

to practice law in the State of Louisiana be revoked.

Pursuant to Supreme Court Rule XIX, §24(A), it is

further ordered that respondent be permanently pro-

hibited from being readmitted to the practice of law in

this state. All costs and expenses in the matter are

assessed against respondent in accordance with Sup-

reme Court Rule XIX, §10.1, with legal interest to com-

mence thirty days from the date of finality of this court’s

judgment until paid.

45a

APPENDIX E

EXCERPTS FROM

RULE XIX OF THE LOUISIANA SUPREME COURT

RULES RELATIVE TO LAWYER DISCIPLINE

AS THEY EXISTED PRIOR TO AUGUST 1, 2001

Section 1. Authority of the Court.

Under the authority of Article V, Section 5(A) and

(B) of the Louisiana Constitutionof 1974 and the inher-

ent power of this court, it is ordered that Article XV

of the Articles of Incorporation of the Louisiana State

Bar Association be vacated and repealed, and the fol-

lowing Rules for Lawyer Disciplinary Enforcement be

and are hereby adopted.

Section 10. Sanctions.

A. Types of Sanctions. Misconduct shall be grounds

for one or more of the following sanctions:

(1) Disbarment by the court.

* * *

Section 24. Reinstatement and Readmission

A. Generally. A disbarred lawyer or a suspended law-

yer who has served a suspension period of more than

one year, exclusive of any waivers or periods of def-

erral, shall be reinstated or readmitted only upon order

of the court. No lawyer may petition for reinstatement

until six months before the period of suspension has

expired. No lawyer may petition for readmission until

five years after the effective date of disbarment. A

i i ata me area

46a

lawyer who has been placed on interim suspension and is

then disbarred for the same misconduct that was the

ground for the interim suspension may petition for read-

mission at the expiration of five years from the time of

the effective date of the interim suspension.

* * *

47a

APPENDIX F

EXCERPTS FROM RULE XIX OF

THE LOUISIANA SUPREME COURT RULES

RELATIVE TO LAWYER DISCIPLINE

AFTER AUGUST 1, 2001

WITH COMMENTARY

* * *

Section 1. Authority of the Court.

Under the authority of Article V, Section 5(a) and

(B) of the Louisiana Constitution of 1974 and the inher-

ent power of this court, it is ordered that Article XV

of the Articles of Incorporation of the Louisiana State

Bar Association be vacated and repealed, and the fol-

lowing Rules for Lawyer Disciplinary Enforcement be

and are hereby adopted.

Section 10. Sanctions.

A. Types of Sanctions. Misconduct shall be grounds

for one or more of the following sanctions:

(1) Disbarment by the court. In any order or

judgment of the court in which a lawyer is disbarred,

the court retains the discretion to permanently disbar

the lawyer and permanently prohibit any such law-

yer from being readmitted to the practice of law.

* * x

48a

Commentary of the Court to accompany Order

dated July 19, 2001 amending Rule XIX

In the public interest, the Court has amended Louis-

iana Supreme Court Rule XIX to codify Permanent

Disbarment as an available sanction for attorney mis-

conduct. While the Court has always had the discretion

to deny an application for readmission after the requisite

five (5)-year waiting period after disbarment, an attorney

who is permanently disbarred under these circumstances

will be prohibited from applying for readmission to the

bar. The amendments reflect the judgement of the Court

that in some instances lawyer misconduct may be so

egregious as to warrant a sanction of permanent disbar-

ment based on the facts of an individual case and in con-

sideration of the guidelines set forth in Appendix E to

the Rules of Lawyer Disciplinary Enforcement. The

amendments are substantially similar to the recommenda-

tions of the Office of Disciplinary Counsel and the House

of Delegates of the Louisiana State Bar Association.

In adopting these amendments to Rule XIX, the

Court has carefully considered the differences between

the sanctions of disbarment and suspension, which dif-

ferences are both substantive and significant. A _ sus-

pended lawyer remains a lawyer during the period of

suspension, retains a license to practice, but cannot

practice law during the term of the suspension. However,

one who has been disbarred loses his license to practice

law. A suspension is imposed for a limited time, cur-

rently a maximum of three (3) years. An attorney who

has been disbarred but not declared to be “permanently”

disbarred under these amendments may apply for

readmission after a period of five (5) years. The grant-

ing of readmission is within the sole discretion of the

Court and is based upon the strict criteria enumerated in

49a

Rule XIX, Section 24(E). Unless such readmission is

petitioned for and is granted, a disbarment is effectively

permanent.

The amendments we now adopt recognize that there

are some types of misconduct that are so serious that

where the sanction of disbarment is imposed, an appli-

cation for readmission will not be considered.

—

KIMBALL, Justice, concurring in part and dissenting

in part

I concur in part and dissent in part from this court’s

Order, dated July 19, 2001, which amends the Rules for

Lawyer Disciplinary Enforcement to provide for perman-

ent disbarment. Prior to this amendment, there was no

provision in the Rules allowing this court to perman-

ently disbar an attorney. Rather, a “disbarred”? lawyer

could petition the court for readmission to the practice

of law after five years. The amendment retains this pro-

cedure, but allows the court, in its discretion, to effect-

ively override this provision and impose ‘permanent dis-

barment,” whereby attorney is permanently prohib-

ited from being readmitted to the practice of law. While

I commend the majority for initiating a type of disbar-

ment that is permanent in nature, in my view, the Rules

should not provide for different categories of disbarment.

Although the sanction of disbarment under the Rules

has always provided that an attorney can be readmitted

after five years, the term “disbarment” imparts a notion

of permanency to the public and leads the public to

believe that such sanction is permanently imposed. I

believe that ‘‘disbarment” with the option for readmit-

tance in five years is essentially a suspension and, there-

ee Fe tn tet tn an amram lesenetineyeansentntinyrmssantsiec

50a

fore, misleads the public as to the ramifications of the

sanction. The current rule still obfuscates the reality

that attorneys who are “disbarred” will none-the-less

be able to apply for readmission in five years. In my

opinion, the public would be better served if this court

were to increase the time an attorney guilty of miscon-

duct may be suspended! and provide that all disbar-

ments are permanent. I believe that suspension should

be used in those cases where it is believed an attorney

may be used in those cases where it is believed an attor-

ney may be successfully rehabilitated and able to resume

the practice of law, and I would reserve the sanction of

disbarment, which by its very terms conveys an idea of

permanency, for situations involving the most egregious

misconduct.

Section 24. Reinstatement and Readmission.

A. Generally. A disbarred lawyer or a suspended

lawyer who has served a suspension period of more

than one year, exclusive of any waivers or periods of

deferral, shall be reinstated or readmitted only upon

order of the court. No lawyer may petition for rein-

statement until six months before the period of sus-

pension has expired. No lawyer may petition for read-

mission until five years after the effective date of dis-

barment. A lawyer who has been placed on interim sus-

pension and is then disbarred for the same misconduct

that was the ground for the interim suspension may

petition for readmission at the expiration of five years

from the time of the effective date of the interim sus-

1Currently, the court may fix a period of suspension not in ex-

cess of three years as a sanction for misconduct. Supreme Court

Rule XIX §10(A)(2).

tee

5la

pension. The court retains the discretion, in accordance

with Section 10A of this rule, to permanently disbar a

lawyer and permanently prohibit any such lawyer from

being readmitted to the practice of law. 7

* * *

APPENDIX E. GUIDELINES DEPICTING CONDUCT

WHICH MIGHT WARRANT PERMANETN DISBAR.

MENT, SUGGESTED BY THE COMMITTEE TO

STUDY PERMANENT DISBARMENT

The following guidelines illustrate the types of con-

duct which might warrant permanent disbarment.

These guidelines are not intended to bind the Supreme

Court of Louisiana in its decision making. It is hoped

that these guidelines provide useful information to the

public and to lawyers concerning the types of conduct

the Court might consider to be worthy of permanent

disbarment.

GUIDELINE 1. Repeated or multiple instances of

intentional conversion of client funds with

substantial harm.

GUIDELINE 2. Intentional corruption of the judicial

process, including but not limited to bribery,

perjury, and subornation of perjury.

GUIDELINE 3. An intentional homicide conviction.

GUIDELINE 4. Sexual misconduct which results in

a felony criminal conviction, such as rape or

child molestation.

GUIDELINE 5. Conviction of a felony involving phy-

sical coercion or substantial damage to person

or property, including but not limited to armed

robbery, arson, or kidnapping.

52a

GUIDELINE 6. Insurance fraud, including but not lim-

ited to staged accidents or widespread runner-

based solicitation.

GUIDELINE 7. Malfeasance in office which results in

a felony conviction, and which involves fraud.

GUIDELINE 8. Following notice, engaging in the un-

authorized practice of law subsequent to

resigning from the Bar Association, or during

the period of time in which the lawyer is sus-

pended from the practice of law or disbarred.

GUIDELINE 9. Instances of serious attorney miscon-

duct or conviction of a serious crime, when the

misconduct or conviction is preceded by sus-

pension or disbarment for prior instances of

serious attorney. misconduct or conviction of

a serious crime. Serious crime is defined in

Rule XIX, Section 19. Serious attorney mis-

conduct is defined for purposes of these guide-

lines as any misconduct which results in a

suspension of more than one year.

Approved by Supreme Court July i9, 2001, effective Aug. 1,

2001.

53a

APPENDIX G

EXCERPTS FROM LETTER OF SEPTEMBER 10, 2003,

TO DONALD O. PINKSTON FROM CHARLES B.

PLATTSMIER, CHIEF OF DISCIPLINARY COUNSEL

OF THE LOUISIANA ATTORNEY DISCIPLINARY

BOARD ADVISING MR. PINKSTON THAT

PURSUANT TO SUPREME COURT RULE 5.5(d) DIS-

CIPLINARY ORDERS ISSUED AFTER

JULY 1, 2002 PROHIBITED

EMPLOYMENT OF DISBARRED LAWYERS.

[Filed SEP 23 2003]

‘ [SEAL]

LOUISIANA ATTORNEY DISCIPLINARY BOARD

Office Of The Disciplinary Counsel

4000 S. Sherwood Forest Blvd.

Suite 607

Baton Route, Louisiana 70816

(225) 293-3900 © 1-800-326-8022 e

FAX (225) 293-3300

September 10, 2003

CERTIFIED MAIL: RETURN RECEIPT

REQUESTED: 7196 9979 7490 0005 1689

Mr. Donald O. Pinkston

Suite 712, 4948 Chief Menteur Highway

New Orleans, LA 70126-3730

RE: Section 26 Requirement

Dear Mr. Pinkston:

54a

By order of the Louisiana Supreme Court dated Sep-

tember 5, 2003, in Disciplinary Proceeding No. 2002-

B-3251 and 2002-B-3252, you were permanently dis-

barred.

As to discipline orders issued after July 1, 2002, the

Supreme Court of Louisiana instituted Rule 5.5(d) which

prohibits employment of disbarred attorneys, and re-

quires registration for suspended attorneys.

* ok

Sincerely,

/s/ Charles B. Plattsmier

CHARLES B. PLATTSMIER

Chief Disciplinary Counsel

55a

APPENDIX H

EXCERPT FROM

LOUISIANA RULES OF PROFESSIONAL CON DUCT

5.5 EXISTING PRIOR TO JULY 1, 2002

Rule 5.5. Unauthorized practice of law.

A lawyer shall not:

(a) Practice law in a jurisdiction where doing so vio-

lates the regulation of the legal profession in that juris-

diction; or

(b) Assist a person who is not a member of the bar in

the performance of activity that constitutes the unau th-

orized practice of law.

56a

APPENDIX I

EXCERPT FROM

LOUISIANA RULES OF PROFESSIONAL CONDUCT

5.5 EFFECTIVE JULY 1, 2002

Rule 5.5. Unauthorized practice of law.

A lawyer shall not:

(c) employ, contract with as a consultant, engage as

an independent contractor, or otherwise join in any

other capacity, in connection with the practice of law,

any person the attorney knows or reasonably should

know is a disbarred attorney, during the period of dis-

barment; or

2002 Amendment — Date Effective and Application

Part 1 of a Supreme Court Order dated April 4, 2002

amends Rule 5.5 of the Louisiana Rules of Professional

Conduct. Part 2 of the Order provides:

“This rule shall become effective on July 1, 2002,

and shall apply to all lawyers who are suspended or dis-

barred by any Order, Judgment, or Decree of the Court

which becomes final after the effective date.”

ar