Opposition Brief — Pinkston v. Office of Disciplinary Counsel of Louisiana

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a [ Supreme Court, US. |

; ion JAN 5 - 2004

No. 03-810

—OPEICE OF THE CLERK

In The

Supreme Court of the Anited States

DONALD O. PINKSTON,

Petitioner,

versus

OFFICE OF DISCIPLINARY COUNSEL OF LOUISIANA,

Respondent.

€

On Petition For Writ Of Certiorari

To The Supreme Court Of Louisiana

OPPOSITION TO PETITION

FOR A WRIT OF CERTIORARI

RICHARD P. IEYOUB

Attorney General

State of Louisiana

ROBERT E. HARROUN, III

Deputy Attorney General

ANDRE CHARLES CASTAING*

Assistant Attorney General

Louisiana Department of Justice

Litigation Division

1885 N. 3rd St. — Third Floor

P. O. Box 94005

Baton Rouge, LA 70804-9005

Telephone: (225) 326-6300

Fax: (225) 326-6495

Counsel for Respondent,

Office of the Disciplinary Counsel

* Counsel of Record

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 242-2831

IT.

QUESTIONS PRESENTED

Must the Louisiana Attorney Disciplinary rules and

Procedures which cover the disbarring of attorneys

comply with both procedural and substantive due

process? 3

Are the notice requirements of procedural due

process infringed by application of permanent dis-

barment and foreclosure of employment and

contractual relationship with lawyers’ rules where

permanent disbarment and employment preclu-

sion were not a penalty when Petitioner wrong-

fully violated “the most fundamental duty of an

officer of the court” by making false statements to

a judge and concealing evidence from the court

which should have been revealed and injuring cli-

ents 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, providing

for a penalty of permanent disbarment and employ-

ment preclusion, be applied retroactively without vio-

lating the constitutional prohibition against state ex

post facto laws?

PARTIES

The parties in this Court and the court below are as

follows:

Petitioner: Donald O. Pinkston was the respondent

before the Louisiana Attorney Disciplinary Board and in

the Supreme Court of Louisiana.

Respondent: The Office of the Disciplinary Counsel

prosecuted the petitioner before the Louisiana Attorney

Disciplinary Board and in the Supreme Court of Louisi-

ana.

ili

TABLE OF CONTENTS

| Page

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STATEMENT OF THE CASEBL...........cccccosseccssssossssooees 2

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B. Facts and Procedural History ......................4. 2

REASONS FOR DENYING THE WRIT.................... 2

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A. Retroactive application of the permanent

disbarment rule to his conduct................ 3

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II. FORMER LAWYER PINKSTON’S EX POST

FACTO CHALLENGE DOES NOT MERIT

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III. FORMER LAWYER PINKSTON’S CHAL-

LENGES TO THE SPECIFIC SANCTION

OF PERMANENT DISBARMENT ARE NOT

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IV. FORMER LAWYER PINKSTON DID NOT

RAISE HIS “EMPLOYMENT PRECLU-

SION” CLAIMS IN THE LOUISIANA SU-

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TABLE OF CONTENTS -— Continued

Page

APPENDIX

Louisiana Attorney Disciplinary Board Rec-

ommendation to the Louisiana Supreme Court,

Nos. 99-DB-029 and 00-DB-073 (12/30/2002)...App. 1

Recommendation of Hearing Committee, No.

SOTFIPIE (GRO). cissceverccsvescvncvessvetesaesssensses App. 27

TABLE OF AUTHORITIES

Page

CASES

A. FEDERAL

Anderson v. Green, 513 U.S. 557, 115 S.Ct. 1059,

BO Ke Se A hacienda 10

Bryan v. U.S., 524 U.S. 184, 118 S.Ct. 1939, 141

Si. ST CREE Gihsicsissids omnes 4

Hortonville Joint School Dist. No. 1 v. Hortonville

Educ. Ass’n, 426 U.S. 482, 96 S.Ct. 2308, 49

Rp BUS siictinsstinacihtekcedenaaeaie 3, 7, 8,9

In re: Ruffalo, 390 U.S. 544, 88 S.Ct. 1222, 20

ph Fe aren Ren or i rer 4

Ratzlaf v. U.S., 510 U.S. 135, 114 S.Ct. 655, 126

is, Ble ee he CO cohciecisinaitenckcvindcvensanseancanaoes 4

Reno v. Catholic Social Services, Inc., 509 U.S. 43,

113 S.Ct. 2485, 125 L.Ed.2d 38 (1999)................ccscsccveee 10

Rogers v. Tennessee, 5382 U.S. 451, 121 S.Ct. 1693,

360 5.25 Oe rt GRO) x tiicsinntieccininaeaees 8

Stogner v. California, ___ U.S. ___, 123 S.Ct. 2446,

RED Sneek Ie OE (I isin sanicicabidtnstaaeentenn iaceteneiaanan 7

TRW Inc. v. Andrews, 534 U.S. 19, 122 S.Ct. 441,

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B. LOUISIANA

In re Laudumiey, 2003-0234 (La. 6/27/03), 849

So.2d 515, cert. denied, ___ U.S. __, 124 S.Ct. |

eee Ss ge | nnn 3, 5,8

————)

In re Pinkston, 2002-3251 (La. 5/20/03, rehearing

denied 9/5/03), 852 So.2d 96G..............ssesssesssssssesesees 4,7,9

TABLE OF AUTHORITIES — Continued

Page

CONSTITUTION, STATUTES, AND RULES

U.S. Constitution, Art. I, §10, cl. 1 (Ex Post Facto

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OPPOSITION TO PETITION

FOR A WRIT OF CERTIORARI

This court should deny the former lawyer Pinkston’s

petition for a writ of certiorari. The Louisiana Supreme

Court permanently disbarred Mr. Pinkston for a variety of

professional misconduct, including subverting the judicial

process by manipulating a client’s criminal sentencing,

neglecting legal matters, failing to promptly provide

accountings, and failing to return unearned fees to his

clients.

Pinkston’s petition does not assert that the Louisiana

Supreme Court’s decision conflicts with any decisions of

this court, of a federal court of appeals, or of the highest

court of another state. This case does not raise any federal

issues of broad applicability. In fact, most of the former

lawyers’ claims effect only a small group of Louisiana

lawyers who committed significant violations of Louisi-

ana’s attorney disciplinary rules (“disciplinary rules”) in a

narrow time frame.

JURISDICTION

The respondent agrees that this Court has jurisdiction

under 28 U.S.C. §1257 to review the 20 May 2008 ruling of

the Supreme Court of Louisiana and that court’s 5 No-

vember 2003 denial of Pinkston’s application for rehear-

ing.

STATEMENT OF THE CASE

A. Parties.

The petitioner (“former lawyer”) is Donald O.

Pinkston.

The respondent is the Office of the Disciplinary

Counsel of the Louisiana Attorney Disciplinary Board.

B. Facts and Procedural History.

The statement of this case and its procedural history

are fully and clearly set out in the Louisiana Supreme

Court’s 20 May 2003 opinion reproduced at Petitioner’s

Appendix D. -

REASONS FOR DENYING THE WRIT

I. DUE PROCESS.

Former lawyer Pinkston’s due process challenges to

his disbarment do not merit this court’s attention. The

Louisiana Supreme Court’s decision does not conflict with

any decision of this Court, of a federal court of appeals, or

of the highest court of another State.’ His due process

challenges do not present important questions of federal

law.’ Instead, his claims lack arguable merit and ask this

court to overturn the Louisiana Supreme Court’s interpre-

tation of Louisiana law.

* Supreme Court Rule 10‘b) & (c).

* Supreme Court Rule 10(c).

acai

DAKAR Aa nates aicnd Weta 4h ani hagoe las sec eens

A. Retroactive application of the permanent

disbarment rule to his conduct.

Former lawyer Pinkston asserts that the Louisiana

Supreme Court violated his 14th Amendment due process

rights by applying a “new” permanent disbarment rule to

him. He asserts that he had no notice at the time he

committed his misconduct that he might face permanent

disbarment.

First, Pinkston’s argument lacks merit because

permanent disbarment is not a “new” possible sanction.

The possible sanctions available to the Louisiana Supreme

Court in attorney disciplinary cases are a matter of Lou-

isiana law. This court is bound to accept the interpretation

of Louisiana law by the Supreme Court of Louisiana (the

highest court of the State).’ The Louisiana Supreme Court

has expressly held that permanent disbarment is not a

“new” sanction:*

Given this court’s absolute discretion over read-

mission, it is beyond dispute that this court has

always had the unfettered authority to refuse re-

admission to disbarred attorneys, including the

right to do so on a permanent basis.

Thus, it is clear the amendments to Supreme

Court Rule-XIX, § 10(A) and § 24(A) do not rep-

resent a substantive change to the bar discipli-

nary rules, nor do they result in the adoption of a

* Hortonville Joint School Dist. No. 1 v. Hortonville Educ. Ass'n,

426 U.S. 482, 488, 96 S.Ct. 2308, 2312, 49 L.Ed.2d 1 (1976).

* App. A, p. 12a; In re Laudumiey, 2003-0234, p. 10 (La. 6/27/03),

849 So.2d 515, 522, cert. denied, __ U.S.___, 124 S.Ct.___,___ L.Ed.2d

___ (12/1/2003).

Le AT aE aE a a SE RD SR” a SSR TCSP

new sanction which did not previously exist.

Rather, these amendments simply represent a

procedural change to Supreme Court Rule XIX in

order to recognize a power this court has always

possessed.

The Louisiana Supreme Court repeated that holding in its

denial of Pinkston’s petition for rehearing:

As this court has recognized, permanent disbar-

ment does not represent a new sanction which

did not previously exist; rather, it is simply a

procedural change to the rule which recognizes a

power the court has always possessed.

Second, Pinkston’s citation to In re: Ruffalo® is mis-

placed. Ruffalo held that an attorney is entitled to notice

of the charges against him prior to the disciplinary hear-

ing.’ Pinkston does not claim that he was not provided

notice of the specific charges of misconduct brought

against him. Instead, he aileges that he was entitled to

specific notice of the potential penalties he faced.

Ignorance of the law is no excuse.* If ignorance of the

law generally is no defense to a criminal charge,’ igno-

rance of the potential penalty in an attorney disciplinary

case is even less of an excuse. The Louisiana Supreme

* App. A, p. 2a; In re Pinkston, 2002-3251 (La. 9/5/03) (denial of

rehearing), 852 So.2d 966, 976.

* 390 U.S. 544, 88 S.Ct. 1222, 20 L.Ed.2d 117 (1968).

” 390 U.S. at 550, 88 S.Ct. at 1226.

* Bryan v. U.S., 524 U.S. 184, 195, 118 S.Ct. 1939, 1947, 141

L.Ed.2d 197 (1998).

* Ratzlaf v. U.S., 510 U.S. 135, 149, 114 S.Ct. 655, 663, 126 L.Ed.2d

615 (1994).

Court’s new permanent disbarment procedures became

effective on 1 August 2001.” This was 8 months prior to

the 28 March 2002 Disciplinary Board hearing concerning

the charges against Pinkston” and even longer before the

Louisiana Supreme Court oral argument. Accordingly,

Pinkston had adequate notice during the disciplinary

proceedings of the potential sanctions he faced.

B. Fair warning.

Next, Pinkston alleges that permanent disbarment

violated his 14th Amendment due process rights because

he did not have “fair warning” at the time he committed

his misconduct that he could be permanently disbarred.

As with his retroactivity argument, this argument is

foreclosed by the fact that permanent disbarment is not “a

new sanction which did not previously exist”” but, instead,

is a power the Louisiana Supreme Court “has always

possessed”.”

Additionally, Pinkston admits that at the time he

committed his misconduct, Louisiana’s rules expressly

provided that he could be disbarred with only a hope of

discretionary readmission after 5 years. It is somewhat

disingenuous for him to argue that had he only been

aware that he could be permanently disbarred without the

hope of discretionary readmission, he would not have

In re: Laudumiey, p. 7, 849 So.2d at 520.

” Opposition, App. A, p. 3a.

* Petition, App. A, p. 2a.

subverted the judicial process by manipulating his client

Small’s criminal sentencing or engaged in any of the other

professional misconduct involved in this case.

Accordingly, this issue does not merit this court’s

attention.

II. FORMER LAWYER PINKSTON’S EX POST

FACTO CHALLENGE DOES NOT MERIT

THIS COURT’S ATTENTION.

Former lawyer Pinkston’s ex post facto challenge to his

disbarment does not merit this court’s attention. The

Louisiana Supreme Court’s decision does not conflict with

any decision of this Court, of a federal court of appeals, or

of the highest court of another State.“ His ex post facto

challenge is not an important question of federal law”

because it does not have broad applicability. Rather, his

challenge addresses only the severity of his sanction:

permanent disbarment as opposed to disbarment with the

ability to apply for discretionary readmission after 5 years.

Pinkston’s ex post facto claim applies only to the small

number of Louisiana lawyers who committed serious

misconduct prior to 1 August 2001. Further, his challenge

lacks arguable merit.

First, the former lawyer correctly notes that the Ex

Post Facto Clause” prohibits a state from enacting a “law

that aggravates a crime, or makes it greater than it was,

“ Supreme Court Rule 10(b) & (c).

’* Supreme Court Rule 10(c).

* U.S. Constitution, Art. I, §10, cl. 1.

when committed”. However, he fails to recognize that this

rule does not apply to his case because permanent disbar-

ment is not a “new” sanction.

As stated above, the possible sanctions available to

the Louisiana Supreme Court in attorney disciplinary

cases is a matter of Louisiana law and this court is bound

to accept the Supreme Court of Louisiana’s interpretation

of Louisiana law.” In rejecting Pinkston’s ex post facto

argument, the Louisiana Supreme Court expressly held

that permanent disbarment is not a “new” sanction:”

As this court has recognized, permanent disbar-

ment does not represent a new sanction which

did not previously exist; rather, it is simply a

procedural 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 __ (“[tjhus, it is clear the

amendments to Supreme Court Rule XIX, § 10(A)

and §24(A) do not represent a substantive

change to the bar disciplinary rules, nor do they

result in the adoption of a new sanction which

did not previously exist. Rather, these amend-

ments simply represent a procedural change to

Supreme Court Rule XIX in order to recognize a

power this court has always possessed”).

” Stogner v. California, ___ U.S. ___, ___, 123 S.Ct. 2446, 2450, 156

L.Ed.2d 544 (2003), citing Calder v. Bull, 3 U.S. (3 Dall.) 386, 390, 1

L.Ed. 648 (1798).

* Hortonville, 426 U.S. at 488, 96 S.Ct. at 2312.

* App. A, p. 2a; In re Pinkston, p. 2 (on rehearing), 852 So.2d at

976.

Contrary to Pinkston’s claim that permanent disbarment

is a “new” potential punishment, — Supreme Court of

Louisiana has always had that power:”

Given this courts 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.

Pinkston’s ex post facto argument asks this court to re-

verse the Louisiana Supreme Court’s interpretation of

Louisiana law that held the court “has always possessed”

the power to permanently disbar a Louisiana lawyer. To do

so would require this court to reverse its Hortonville

decision, to displace a state’s highest court as the ultimate

interpreter of state law, and instead to install this court as

the ultimate interpreter of state law. The former lawyer

cites no authority for such a tectonic shift in bedrock

federalism principles.

Second, Pinkston’s “fair warning” claim is misplaced.

This court held in Rogers v. Tennessee” that the “fair

warning” concept is rooted in the Due Process Clause, not

the Ex Post Facto Clause.

Third, the record contradicts Pinkston’s “fair warning”

claim. He apparently concedes that the Louisiana Su-

preme Court has always had the power to create the

sanction of permanent disbarment, but argues that the

* In re: Laudumiey, p. 10, 849 So.2d at 522.

* 532 U.S. 451, 459, 121 S.Ct. 1693, 1699, 149 L.Ed.2d 697 (2001).

court did not exercise that power until after his miscon-

duct occurred:”

The fact that the Louisiana Supreme Court had

the power [to create the sanction of permanent dis-

barment] does not alter the ex post facto issue. A

legislature has the power to increase the punish-

ment for a crime at any time. The issue is retro-

activity to the offense.

But the record reflects that permanent disbarment was

not a newly created sanction:”

As this court has recognized, permanent disbar-

ment does not represent a new sanction which

did not previously exist;

The issue is not, as Pinkston asserts, that the Supreme

Court of Louisiana merely possessed the power to create

that new sanction. The court found, as a matter of Louisi-

ana law, that permanent disbarment was not a new

sanction at all. As noted above, this court is bound to

accept the interpretation of Louisiana law by the Supreme

Court of Louisiana.”

Fourth, the former lawyer’s argument is somewhat

incredible. He asserts that the threat of permanent dis-

barment somehow would have deterred him from his

serious legal misconduct — including his intentional

corruption of the judicial process in the Small sentencing

” Petition, pp. 13-14.

* App. A, p. 2a; In re Pinkston, p. 2 (on rehearing), 852 So.2d at

976. a

* Hortonville, 426 U.S. at 488, 96 S.Ct. at 2312.

matter — when the threat of disbarment for at least 5

years with only a hope of discretionary readmission failed

to deter him.

Accordingly, former lawyer Pinkston fails to show that

this court should exercise its discretion and hear his ex

post facto challenge to his disbarment.

Ill. FORMER LAWYER PINKSTON’S' CHAL-

LENGES TO THE SPECIFIC SANCTION OF

PERMANENT DISBARMENT ARE NOT RIPE.

The majority of former lawyer Pinkston’s claims relate

to the sanction of permanent disbarment. He admits that

the Louisiana Supreme Court could have disbarred him.

However, he asserts that he should have the opportunity

to apply for readmission after 5 years. These claims are

not ripe for review.

Ripeness “is peculiarly a question of timing’.” No one

knows what the future may bring. The former lawyer’s

claim will be ripe only if he seeks readmission 5 years

from now, if he is otherwise eligible for readmission, and if

the Louisiana Supreme Court denies his application based

on the permanent disbarment rule. At that time there will

be a sharply focused case and controversy based upon an

actual implementation of his permanent disbarment.”

** Anderson v. Green, 513 U.S. 557, 559, 115 S.Ct. 1059, 1060, 130

L.Ed.2d 1050 (1995).

*° Reno v. Catholic Social Services, Inc., 509 U.S. 43, 60, 113 S.Ct.

2485, 2497, 125 L.Ed.2d 38 (1993) (an alien’s challenges to new INS

regulations are not ripe until the alien’s application for a change in

status is denied based upon the new regulations).

As a result, former lawyer Pinkston’s claims concern-

ing his sanction are not yet ripe at this time.

IV. FORMER LAWYER PINKSTON DID NOT

RAISE HIS “EMPLOYMENT PRECLUSION”

CLAIMS IN THE LOUISIANA SUPREME

COURT.

In Pinkston’s first question presented, he challenges

Louisiana’s employment preclusion rule on due process

grounds. In his second question presented, former lawyer

Pinkston challenges that rule on ex post facto grounds.

This court should not grant a writ on the employment

preclusion issue.

First, Pinkston’s writ application does not develop his

ex post facto issue. He mentions employment preclusion in

the questions presented and again (in passing) in the

introductory section of his “Reasons for Granting the

Writ’.” While Pinkston mentions employment preclusion

in his discussion of the due process issues, he does not

mention the employment preclusion rule in his discussion

of the ex post facto issues.” That discussion is exclusively

devoted to his ex post facto challenge to his permanent

disbarment. i

Second, this court will not reach issues that the

petitioner did not raise or brief below.” A petitioner

” Petition, p. 6. ~

* Petition, pp. 8-13.

® Petition, pp. 13-17.

*® TRW Inc. v. Andrews, 534 U.S. 19, 34, 122 S.Ct. 441, 451, 151

L.Ed.2d 339 (2001).

seeking review of a state court judgment must identify in

his writ application where in the state court proceedings

he raised the federal issues presented to this court for

review.”

Pinkston’s writ application does not show where he

raised his employment preclusion challenges in the Lou-

isiana Supreme Court. He does not raise the issues in his

Petition for Rehearing in the Louisiana Supreme Court.”

Pinkston did not submit his original Louisiana Supreme

Court brief in his Appendix to his writ application, so this

court cannot determine if he raised the issues in that

document. The Louisiana Supreme Court did not address

the employment preclusion issues in either its original

decision or in its denial of Pinkston’s application for

rehearing. Accordingly, Pinkston has not properly pre-

served these issues for review.

* Supreme Court Rule 14.1(g)(i).

* Petition, Appendix B, p. 3a.

CONCLUSION

This Court should deny Pinkston’s petition for a writ

of certiorari to the Supreme Court of Louisiana.

Respectfully submitted,

RICHARD P. IEYOUB

Attorney General

State of Louisiana

ROBERT E. HARROUN, III

Deputy Attorney General

ANDRE CHARLES CASTAING*

Assistant Attorney General

Louisiana Department of Justice

Litigation Division

1885 N. 3rd St. — Third Floor

P. O. Box 94005

Baton Rouge, LA 70804-9005

Telephone: (225) 326-6300

Fax: (225) 326-6495 -

Counsel for Respondent,

Office of the Disciplinary Counsel

* Counsel of Record

App. 1

APPENDIX A

PINKSTON, DONALD O.

99-DB-029, 00-DB-073 (12/30/2002)

LOUISIANA ATTORNEY DISCIPLINARY BOARD

IN RE: DONALD O. PINKSTON

NUMBERS 99-DB-029 AND 00-DB-073

RECOMMENDATION TO THE LOUISIANA SUPREME

COURT

This is a disciplinary proceeding based upon the filing

of formal charges against the Respondent, Donald O.

Pinkston, by the Office of Disciplinary Counsel (“ODC”).

For the reasons stated below, the Disciplinary Board

recommends that the Respondent be disbarred from the

practice of law.

PROCEDURAL HISTORY

Case Number 99-DB-02

Formal charges, consisting of one count, were filed

against the Respondent, Donald O. Pinkston, on April 21,

1999. These charges allege that the Respondent violated

Rules of Professional Conduct 1.2 (counseling or encourag-

ing a client to engage in conduct that the lawyer knows is

criminal or fraudulent); 3.3(a)(1) (knowingly making false

statements of material fact or law to a tribunal); 3.3(a)(2)

(knowingly failing to disclose that which a lawyer is

required by law to reveal); 3.3(a)(4) (knowingly offering

evidence that the lawyer knows to be false); 8.4(c) (engag-

ing in conduct involving dishonesty, fraud, deceit, or

misrepresentation); 8.4(a) (violating or attempting to

App. 2

violate the Rules of Professional Conduct); 8.4(d) (engag-

ing in conduct that is prejudicial to the administration of

justice). The Respondent filed an answer to the formal

charges on June 2, 1999, denying that his conduct consti-

tuted violations of the Rules of Professional Conduct as

charged.

ODC filed its Pre-Hearing Memorandum on December

4, 2000. The Respondent filed his Pre-Hearing Memoran-

dum on December 11, 2000. The hearing in this matter

was held before Hearing Committee Number Twenty-Four

on December 14, 2000. ODC filed its Post-Hearing Memo-

randum on January 24, 2001, and the Respondent filed his

Post-Hearing Memorandum on April 6, 2001. The hearing

committee issued its report on May 9, 2001, recommend-

ing that the Respondent be disbarred from the practice of

law.

Case Number 00-DB-073

Formal charges, consisting of seven counts, were filed

against the Respondent on June 12, 2000. These charges

allege that the Respondent violated Rules of Professional

Conduct 1.3 (failure to act with diligence), 1.4 (lack of

communication), 1.5 (failure to properly handle a fee

dispute by promptly returning unearned portion of fee),

1.15 (failure to provide an accounting), 1.16(d) (failure to

return advance payment of fee that has not been earned),

5.5 (unauthorized practice of law), 8.1(a) (knowingly make

a false statement of material fact in a disciplinary matter),

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

(engaging in conduct involving dishonest, fraud, deceit or

misrepresentation) and 8.4(d) (engaging in conduct that is

App. 3

prejudicial to the administration of justice). The Respon-

dent answered these charges on July 5, 2000, denying the

allegations.

ODC filed its Pre-Hearing Memorandum in this

matter on September 6, 2000. The Respondent did not file

a Pre-Hearing Memorandum. The hearing before Hearing

Committee Number Twenty-Four was held on September

14, 2000. ODC filed its Post-Hearing Memorandum on

November 30, 2000. The Respondent also filed his Post-

Hearing Memorandum on November 30, 2000. The hear-

ing committee issued its report on March 8, 2001, recom-

mending that the Respondent be suspended from the

practice of law for thirty months and that he be required

to file a petition for reinstatement. The committee also

recommended that the Respondent be required to pay

restitution to several individuals and that he be assessed

with the costs of the disciplinary proceedings.

After several continuances, oral argument for case

number 99-DB-029 and case number 00-DB-073 was held

before Panel C of the Disciplinary Board on March 28,

2002. Chief Disciplinary Counsel Charles B. Plattsmier

appeared on behalf of ODC. The Respondent and his

counsel, Herbert V. Larson, Jr., also appeared.

1 Although neither party filed a motion to consolidate these cases,

in the interest of judicial economy, the Board set the cases for oral

argument on the same date and issues the instant recommendation

addressing both matters.

App. 4

THE FORMAL CHARGES

The formal charges in case number 99-DB-029 read,

in pertinent part, as follows:

COUNT I

Donald O. Pinkston undertook the representa-

tion of Dwayne Small in connection with post-

conviction relief efforts. Dwayne Small is the

Respondent’s stepson, the child of his wife from a

prior union. Defendant Small pled guilty to man-

slaughter and was sentenced to 21 years in

prison. Five years later the Respondent was en-

gaged by Dwayne Small to assist him in getting

his sentence “corrected.” A motion to correct the

sentence was filed and presented to then Judge

Ad Hoc Ike Spears on June 15, 1996. Based upon

certain representations made to the Court by

Pinkston, Small’s sentence was reduced to 12

years at hard labor. The State objected to the

sentence reduction and filed a Motion for Recon-

sideration. Judge Spears eventually granted the

State’s Motion for Reconsideration and rein-

stated the original sentence to 21 years at hard

labor. Neither the State nor the defendant

sought supervisory relief. The defendant did,

however, seek to have the matter brought before

Section C (previously Ad Hoc Judge Ike Spears’

division) and by minute entry Judge Hunter de-

termined that the matter was satisfied and the

case was closed.

For reasons which are unclear but which may

have involved manipulation of the Court’s docket

by the clerk’s minute clerk, the Dwayne Small

matter was placed on the March 21, 1997 docket of

Judge Julian Parker, Division G. The Respondent

appeared in Court on that day and represented to

mnctines

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App. 5

Judge Parker that Judge Hunter had recused

herself when in fact Judge Hunter had never

recused herself. The Court accepted Pinkston’s

oral representation to the Court and therefore

entertained Donald Pinkston’s Motion to Correct

an Excessive Sentence indicating that Judge Ike

Spears had previously misspoken in June of 1996 —

when he reduced the sentence to 12 years rather

than to 9 years as had been originally contem-

plated. The Respondent specifically failed to ad-

vise the Court that Judge Spears had rescinded

his earlier order and had reinstated the 21 year

jail term.

The Court accepted Pinkston’s word and directed

that an amended minute entry be sent to the De-

partment of Corrections whereby a sentence of

nine years was imposed resulting in the immedi-

ate release from custody of the defendant,

Dwayne Small.

Thereafter, upon being alerted by the D.A.’s Of-

fice that they objected to this entry of sentence,

Judge Parker investigated the matter and de-

termined that the full facts had not been ex-

plained by Pinkston and _ that certain

misrepresentations had been made to the Court.

Judge Parker went on to note that the October

14, 1996 entry of Judge Spears reversing his ear-

lier reduction of sentence and reinstating the 21

years hard labor sentence was missing from the

record. The error was detected by the Depart-

ment of Corrections and the District Attorney's

Office and the defendant, Dwayne Small, was

then reapprehended, the record corrected, and he

was resentenced to serve his 21 years in jail. The

minute clerk working for Judge Julian Parker at

the time, Delwin Davis, has since been discharged

App. 6

= by Judge Parker. The respondent’s conduct con-

stitutes counseling or encouraging a client to en-

gage in conduct that the lawyer knows is

criminal or fraudulent in violation of Rule 1.2(c);

knowingly making false statements of material

fact or law to a tribunal in violation of Rule

3.3(a)(1); knowingly failing to disclose that which

he is required by law to reveal in violation of

3.3(a)(2); knowingly offering evidence that the

lawyer knows to be false in violation of Rule

3.3(a)(4); engaging in conduct involving dishon-

esty, fraud, deceit, or misrepresentation in viola-

tion of Rule 8.4(c); violating or attempting to

violate the Rules of Professional Conduct in vio-

lation of Rule 8.4(a); and engaging in conduct

that is prejudicial to the administration of justice

in violation of Rule 8.4(d).

The formal charges in case number 00-DB-073 read,

in pertinent part, as follows:

COUNT I

Respondent was paid $3,500.00 by Irene McDow-

ell to assist in Kevin McDonald’s criminal case.

Respondent did little or no work and failed to ac-

count for any earned portion and has failed to re-

fund any of the unearned portion in violation of

Rules 1.3, 1.4,1.5,1.15,1.16(d) and 8.4(a)(c) of the

Rules of Professional Conduct.

COUNT II

Respondent was paid by Ammie Isaac to handle

a criminal matter for Emanuel Isaac. Respondent

failed to complete the work, failed to account for

any earned portion of the fee and failed to return

the unearned portion of the fee, in violation of

Rules 1.3 and 1.16 of the Rules of Professional

Conduct.

App. 7

COUNT III

Respondent was paid by David Singleton to han-

dle a criminal matter. Respondent failed to com-

plete the work, failed to account for any earned

portion of the fee and failed to return the un-

earned portion of the fee, in violation of Rules

1.3, 1.4 and 1.16 of the Rules of Professional

Conduct.

COUNT IV

Respondent agreed to participate in the Louisi-

ana State Bar Association Alternative Dispute

Resolution Program. The arbitrator awarded Re-

spondent’s client $3,000.00, which reflected the

unearned portion of Respondent’s fees. Respon-

dent has failed to refund this amount and Re-

spondent is in violation of Rules 8.1(a) [and]

8.4(a)(c)(d) of the Rules of Professional Conduct.

COUNT V

Respondent was paid by Charles Martin to han-

dle a criminal matter in Mississippi. Respondent

is not licensed to practice law in Mississippi and

did not file the necessary paperwork to appear

pro hac vice in Mississippi and was therefore

practicing in a state where he is not licensed in

violation of Rule 5.5 of the Rules of Professional

Conduct.

COUNT VI

Respondent was paid by Hilda Jones to handle a

criminal matter for Keith Jones. Upon suspen-

sion from the practice of law, Respondent failed

to account for any earned portion of the fee and

to promptly refund the unearned fee to Mrs.

Jones in violation of Rule 1.16 of the Rules of

Professional Conduct.

App. 8

COUNT VII

Respondent was paid $2,300.00 by Agnes Motton

and Zina Nunnery to handle a post conviction

matter for Frank Motton. Respondent did not

complete the work and failed to account for any

earned portion and refused to refund the un-

earned portion in violation of Rules 1.3, 1.4, 1.5

[and] 1.16 of the Rules of Professional Conduct.

THE HEARING COMMITTEES’ REPORTS

Case Number 99-DB-029

The hearing committee made the following factual

findings in this matter:

“Dwayne Small was a defendant in Orleans Par-

ish Criminal District Court, charged with the

commission of a homicide. It was on the docket of

Judge Jerome Winsberg, Section “C.” As part of a

plea bargain, the District Attorney’s Office re-

duced the charge to manslaughter in exchange

for a guilty plea and a sentence of 21 years.

Small was represented by Ernest Caulfield. The

plea was accepted, a 2l-year sentence was im-

posed by Judge Winsberg, and Small began serv-

ing his sentence in or about 1992.

Dwayne Small is the stepson of the Respondent.

In 1995, Respondent enrolled as Counsel of rec-

ord for Mr. Small and filed, on Small’s behalf, a

“Motion to Correct Excessive Sentence,” which

was scheduled for hearing in February of 1996.

Before the motion was heard, Judge Winsberg

retired, effective January 1996, and the Louisi-

ana Supreme Court appointed Ike Spears to sit

as Judge Pro Tempore in Section “C” pending a

new election.

App. 9

At the February 1996 hearing, Respondent ar-

gued that the “Sentencing Guidelines Grid” re-

quired a shorter sentence for Small’s crime.

Judge Spears reset the matter for March 1996,

and in the interim the District Attorney’s Office

filed memorandum in opposition to the Motion to

Reduce Excessive Sentence. In his testimony be-

fore the Committee, Judge Spears acknowledged

that he did not believe the Respondent’s argu-

ments for a sentence reduction had sufficient

merit to withstand appellate review, but he was

willing to entertain the motion because Respon-

dent assured him that the District Attorney,

Harry Connick, or someone within Mr. Connick’s

office, had agreed not to oppose the motion. The

Assistant District Attorney assigned to the case,

Maurice Landrieu, who as testified before the

Committee, could not confirm such an agree-

ment. Judge Spears postponed the hearing of the

motion several times to afford Respondent an op-

portunity to confirm the purported agreement

not to oppose the motion, but Respondent was

unable to do so.

On June 25, 1996, Judge Spears ruled on the mo-

tion and reduced Dwayne Small’s sentence from

21 to 12 years, but stayed the effect of the order

to enable the State to file writs. On July 2, 1996,

Mr. Landrieu filed a motion seeing reconsidera-

tion of the sentence reduction. Judge Spears kept

the stay in place and again continued hearings of

the State’s motion to permit Respondent an op-

portunity to confirm his purported agreement

with the District Attorney’s Office. Finally, on

October 4, 1996, with Respondent present, Judge

Spears granted the State’s motion to reconsider

and reinstated Dwayne Small’s original 21 year

sentence. At the request of the Respondent,

App. 10

Judge Spears scheduled a status conference on

the matter for November 1996.

Before that status conference, Sharon Hunter

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

the matter passed to her. On November 15, 1996,

she held a status conference, and the docket re-

flects that, “the status hearing considered held

and satisfied,” which in her deposition testimony

the Judge said meant “nothing else was to be

had.” (Hunter Deposition, pg. 10). Small re-

mained in prison. i

For unexplained reasons, Dwayne Small’s case

appeared on the docket of Judge Julian Parker,

Section “G”, on March 21, 1997. On that day, Re-

spondent represented to Court that “I have had

an opportunity to discuss the matter with the |

Assistant District Attorney and pursuant to the

conference that we held, I understand that a cor-

rected minute entry needs to be sent to the De-

partment of Corrections in the matter. We

request the court to order a corrected minute en-

try be entered.” (ODC Exhibit 8). Respondent

represented to the court that Judge Spears had

imposed a 12 year sentence on Dwayne Small,

but that an error had been made and that the ac-

tual sentence should have been 9 years. Judge

Parker reduced Small’s sentence to 9 years.

Small was released from prison.

Citizens in the community learned of Small’s re-

lease and raised their concerns with the District ?

Attorney’s Office. Maurice Landrieu asked Judge |

Parker to convene a hearing to review the cir-

cumstances of the release. A hearing was held on

October 8, 1997, and Judge Parker asked Respon-

dent how and why the case was transferred to his

Court from Section “C.” Respondent replied, “It

App. 11

was remanded to Section G by Judge Hunter.

She recused herself.” (ODC Exhibit 11). In a sub-

sequent hearing on the same subject, how the

matter got into Section “G,” Respondent an-

swered, “Your Honor, I have no idea. I have no

connections with this building. I have no connec-

tions 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.”

(ODC Exhibit 13). In a subsequent hearing be-

fore Judge Parker on this same issue, Mr. Lan-

drieu informed the court that Judge Spears had

reversed his reduction of the sentence and re-

stored the original sentence of 21 years. Mr.

Pinkston responded, “That’s not true.” (ODC Ex-

hibit 19).

Judge Parker revoked his reduction of Small’s

sentence, and Respondent applied for writs to the

Fourth Circuit Court of Appeal. That court re-

quested a Per Curiam from Judge Parker ex-

plaining the situation, and in that statement the

Judge declared that his court had been “misled”

by Respondent as to what sentence Judge Spears

had actually imposed on Small, and by Respon-

dent’s representation that Judge Hunter had

recused herself. (ODC Exhibit 21). In her deposi-

tion, Judge Hunter testified that she had not

recused herself from the Dwayne Small case.

Each of the Assistant District Attorneys present

in Judge Parker’s court on the day that Respon-

dent first brought the Dwayne Small matter be-

fore the Judge state that Respondent had no

conference with them on the matter.”

In a subsequent section of its report, the hearing commit-

tee made the additional findings of fact:

App. 12

1. Judge Ike Spears, sitting Pro Tempore in

Section “C,” reversed his earlier reduction of ;

sentence of Dwayne Small and, on October 4, :

1996, reinstated Mr. Small’s 21-year sen-

tence. ;

2. Judge Sharon Hunter, Judge in Section “C,”

did not recuse herself from consideration of 3

Dwayne Small’s case. The matter was

marked closed on the docket of Section “C.”

Judge Hunter did not allot the case to Sec-

tion “G.”

3. Respondent misrepresented to Judge Parker

(a) that Judge Sharon Hunter had recused

herself when she had not; (b) that Judge ‘

Spears had reduced Dwayne Small’s sen-

tence to 12 years when in fact the Court had |

reinstated the 21 year sentence; and (c) that ;

the minute entry by Judge Spears was erro-

neous and should be corrected to further re- H

duce Dwayne Small’s sentence to 9 years

when there is no indication that Judge

Spears ever intended to reduce Small’s sen-

tence to 9 years (and Mr. Spears testified

that he never reduced the sentence to 9 i

years). Hearing Tr., pp. 86-91).

1. As a result of the misrepresentations by

Respondent to the Court, Judge Parker

signed a “corrected” minute entry that

resulted in the temporary release of Dwayne

Small from prison.

2. The testimony of Maurice Landrieu, Ike

Spears, Judge Sharon K. Hunter, and Judge

Julian Parker is credible with respect to the

foregoing.

App. 13

3. While no direct evidence establishes how the

Dwayne Small case was moved onto Judge

Parker’s docket, both Judge Parker and

Judge Hunter stated that they did not re-

quest or consent to the transfer. (ODC Ex-

hibit 21; Hunter Deposition, page 193). If

Respondent did not improperly cause the

transfer, he nevertheless took advantage of

it.

4. There was conflicting testimony as to

whether an assistant district attorney was

present when Judge Parker, on March 21,

1997, ordered Small’s sentence reduced, but

this issue was not material to the Commit-

tee’s findings or recommendations.

The hearing committee found that ODC had proven by

clear and convincing evidence violations of Rules of Pro-

fessional Conduct 3.3(a)(1), 3.3(a)(2), 3.3(a)(4), 8.4(a),

8.4(c) and 8.4(d). The committee did not find a violation of

Rule 1.2(c). The committee determined that the primary

ageravating factors were Respondent’s prior discipline’

and his substantial experience in the practice of law. In

mitigation, the committee found that the Respondent had

cooperated with the disciplinary process. The committee

recommended that the Respondent be disbarred, relying

? Respondent’s prior discipline includes a previous two-year

suspension for failure to maintain clients’ funds in trust and failure to

promptly pay medical providers See In re Pinkston, 98-1926 (12/11/98);

728 So.2d 381. Respondent has never been reinstated since the

completion of that suspension. Respondent also received a reprimand in

1997 for misleading clients, failure to return an unearned fee, and

commingling funds, and four admonitions between 1994 and 1995 for

failure to cooperate by not filing written answers to complaints.

App. 14

on Standards 6.11 and 7.1 of the ABA Standards for

Imposing Lawyer Sanctions. The committee also noted

that in the Respondent’s pre-hearing memorandum he

stipulated that “[t]he appropriate sanction for both

charges brought by the Office of Disciplinary Counsel is

disbarment, if the charges are proven by clear and con- :

vincing evidence.”

Case Number 00-DB-073 3

The hearing committee made the following factual deter-

minations and findings of rule violations in connection

with this matter:

1. Count I: The committee found that while

the Respondent may not have explicitly

promised a specific result to Mr. McDonald,

he reasonably believed that, for $3,500, Re-

spondent would successfully obtain a bond

hearing or favorable sentencing. The Re-

spondent failed to do so. The committee

found that the Respondent violated Rule

1.5(f)(6). The committee found no violations

of Rules 1.3, 1.4, 1.15, 1.16(d) or 8.4(a)(c).

2. Count II: The committee found that the Re-

spondent failed to diligently pursue Mr.

Isaac’s appeal and failed to communicate

adequately with his client or Ms. Isaac about

the status of the case. The committee found

that the Respondent appeared in court on

Mr. Isaac’s behalf on at least two occasions,

and that he did ultimately file an appeal

brief on his client’s behalf. The committee

found that Respondent violated Rule 1.3, and

though he was not formally charged with the

App. 15

following, Rules 1.4 and 1.5(f)(6). The com-

mittee found no violation of Rule 1.16.

Count III: The committee determined that

the evidence showed that the Respondent

spoke on one occasion to the trial judge about

a reduction of Mr. Singleton’s sentence and

spoke several times to Mr. Singleton’s wife

about the issue. He also spoke with Mr. Sin-

gleton several times about the matter and

obtained Mr. Singleton’s medical records in

order to make a case for a sentence reduction

or a transfer for his client. The committee

found that the Respondent did not violate

Rules 1.3, 1.4 and 1.16(d).

Count IV: The committee determined that

the Respondent agreed to participate in the

LSBA’s Alternative [Fee] Dispute Resolution

Program and was ordered to pay $3,000 to a

former client, Ms. Alston. He paid $1,000 of

this amount, but failed to pay the rest of the

amount due. The committee found that the

Respondent violated Rules 8.4(a) and 8.4(d)

in connection with this count. Violations of

Rules 8.1(a) and 8.4(c) were not found.

Count V: The committee found that the Re-

spondent took the steps necessary to file the

required documents with the Mississippi Cir-

cuit Court. Respondent appeared in court on

two occasions, but his Mississippi co-counsel

attended the hearing in which the client, Mr.

Martin, entered a guilty plea to the charge of

murder. Mr. Martin filed complaints with the

Mississippi and Louisiana disciplinary au-

thorities, alleging that the Respondent was

not authorized to practice law in Mississippi.

The Mississippi Bar Association, hearing the

App. 16

same charges, found “no conduct of said at-

torney which would warrant any action un-

der the disciplinary rules governing lawyers

practicing in this state.” The committee

found that the Respondent did not violate

Rules 5.5 or Rule 8.1(a). (A violation of Rule

8.1(a) was alleged in ODC’s post-hearing

memorandum).

6. Count VI: The committee found that the

Respondent accepted payment from Ms.

Jones on February 16, 1999 to handle a

criminal matter for her son. He was subse-

quently suspended and failed to refund the

$1,000 to Ms. Jones until August of 1999, af-

ter a disciplinary complaint was filed. The

committee found that the Respondent vio- |

lated Rule 1.16(d). t

7. Count VII: The committee determined that

the Respondent was retained in 1995 to rep-

resent Frank Motton. He was paid $2,300 by

Agnes Motton and Zina Nunnery for his ser-

vices. Over the next three years, he filed

three writs of habeas corpus to have Mr.

Motton brought to the district court for a

hearing on Motton’s application, but each

time the matter was continued. Respondent

admits that he did not earn the entirety of

his fee. The committee also noted that “there

is no credible evidence that the Respondent

did communicate fully with its clients.” The

committee found that the Respondent vio-

lated Rules 1.3 and 1.5(f)(6). The committee

did not find violations of Rules 1.4 and

1.16(d), however.

The committee relied upon Standards 4.12 and 4.42 of

the ABA Standards for Imposing Lawyer Sanctions and

App. 17

determined that the appropriate baseline sanction was

suspension. The committee found the following aggravat-

ing factors to be present: prior discipline and pattern of

misconduct. The sole mitigating factor found by the

committee was cooperative attitude towards disciplinary

proceedings. The committee also found that the Respon-

dent owed restitution to Mr. McDonald, Ms. Isaac, Ms.

Alston, Ms. Motton and Ms. Nunnery.

ANALYSIS

I. Standard of Review

The powers and duties of the Disciplinary Board are

defined in Section 2 of the Louisiana Supreme Court Rule

XIX, Rules for Lawyer Disciplinary Enforcement. Subsec-

tion (G)(2)(a) states that the Board is “to perform appellate

review functions, consisting of review of the findings of

fact, conclusions of law, and recommendations of hearing

committees with respect to formal charges.... and pre-

pare and forward to the court its own findings, if any, and

recommendations.”

Inasmuch as the Board is serving in an appellate capacity,

the standard of review applied to findings of fact is that of

“manifest error.” Arceneaux v. Domingue, 365 So. 2d 1330

(La.1978); Rosell v. ESCO, 549 So. 2d 840 (La. 1989). The

Board conducts a de novo review of the hearing commit-

tee’s application of the Rules of Professional Conduct. Jn re

Hill, 90-DB-004.

Case Number 99-DB-029

A review of the record in this matter reveals that the

committee’s findings of fact are not manifestly erroneous,

ee a aaa

App. 18

and the Board adopts the committee’s findings. Further,

the committee’s application of the Rules of Professional

Conduct is proper.

Case Number 00-DB-073

In this matter, the committee’s findings of fact are not

manifestly erroneous, and the Board adopts the commit-

tee’s findings. The Board further notes as to Counts I and

IV that at the oral argument. held in this matter, the

Respondent indicated that he had refunded 50% (or

$1,750) of the fee paid to him by Mr. McDonald and the

entire $3,000 which the LSBA Alternative Dispute Resolu-

tion Program had awarded to Ms. Alston. As to the com-

mittee’s application of the Rules of Professional Conduct,

the Board finds that the following errors are present:

1. CountI: A violation of Rule 8.4(a) (violating

the Rules of Professional Conduct) should

also be added to the violations present, al-

though this violation adds little, if anything,

to the sanction imposed.

2. Count II: The violations of Rules 1.4 and

1.5(f)(6) were not charged and will not be

adopted by the Board. See LSBA v. Keys,

567 So.2d 588 (La. 1990) citing LSBA uv.

McGovern, 481 So.2d 574 (La. 1986) (due

process prohibits sanctioning an attorney for

unrelated misconduct revealed by the evi-

dence in the disciplinary proceeding when

the attorney has not been notified that the

uncharged violations would be considered as

disciplinary offenses or that he should be

prepared to present a defense as to that mis-

conduct). Along with a violation of Rule 1.3, a

violation of Rule 1.16(d) is also present. The

App. 19

Respondent did not properly terminate his

representation with Mr. Isaac upon Respon-

dent’s suspension from the practice of law,

which would include giving reasonable notice

to the client, surrendering papers and prop-

erty to which the client is entitled and re-

funding any advance payment of unearned

fees.

3. Count VII: The hearing committee erred in

failing to find a violation of Rule 1.4. Al-

though the committee noted that “there is no

credible evidence that the Respondent did

communicate fully with its clients,” it failed

to find this rule violation. Mrs. Agnes Motton

testified at the hearing that during the Re-

spondent’s representation of Frank Motton,

the Respondent never wrote to her or called

her to inform her of what was happening

with the case. He never called her to make

an appointment to come in to see him. She

testified that she called him on one occasion

to ask him the status of Frank’s case. Re-

spondent told her to bring some money with

her, so she took a $100.00 money order and

met with him. At that time, he told her that

“Frank had a good case, and it was looking

good, but at the meantime it was not active

with the court.” She did not get a letter from

the Respondent concerning his suspension,

and to her knowledge, her son did not ever

receive a letter about Respondent’s suspen-

sion. Hearing Tr., pp. 179-80; 188.

The Board finds that the hearing committee’s applica-

tion of the Rules of Professional Conduct in Counts III

through VI are correct. The Board also finds that the

ageravating factor of substantial experience in the practice

App. 20

of law should be added to the aggravating factors cited by

the committee.

II. Application of Factors —

Used in Imposing Sanctions

Louisiana Supreme Court Rule XIX, Section 10(C)

states that in imposing a sanction after a finding of lawyer

misconduct, the Court or Board shall consider the follow-

ing factors:

1. whether the lawyer has violated a duty owed

to a client, to the public, to the legal system,

or to the profession;

2. whether the lawyer acted intentionally,

knowingly, or negligently;

3. the amount of actual or potential injury

caused by the lawyer’s misconduct; and

4. the existence of any aggravating or mitigat-

ing factors.

Here, the Respondent has violated duties owed to his

clients, the public, the legal system and the profession. His

conduct was knowing and intentional. In case number 99-

DB-029, actual injury to the legal system and the public

was present in that the Respondent misrepresented the

true status of Dwayne Small’s sentence to the court, and

Mr. Small, a violent criminal, was released from prison

years before his scheduled release date. In case number

00-DB-073, actual injury again is present. In several

instances, the Respondent failed to provide accountings to

his clients or to promptly return (or return at all) un-

earned fees, delayed his clients legal matters, and failed to

promptly refund fees to his former client, Ms. Alston, as

App. 21

instructed by the LSBA’s Alternative Dispute Resolution

Program.

The Board will adopt the aggravating factors found by

the committees including prior discipline, substantial

experience in the practice of law, and pattern of miscon-

duct. The sole mitigating factor found by the committees

was cooperative attitude toward the disciplinary proceed-

ings. The Board finds that this mitigating factor is sup-

ported by the record and also will adopt it.

III. The Appropriate Sanction

Considering the misconduct present in both cases,

disbarment is the appropriate sanction. Under Standard

6.11, “disbarment is generally appropriate when a lawyer,

with the intent to deceive the court, makes a false state-

ment, submits a false document, or improperly withholds

material information, and causes serious or potentially

serious injury to a party, or causes a significant or poten-

tially significant adverse effect on the legal proceeding.”

Under Standard 4.61, “disbarment is generally appropri-

ate when a lawyer knowingly deceives a client with the

intent to benefit the lawyer or another, and causes serious

injury or potentially serious injury to a client.” Standard

7.1 states that “disbarment is generally appropriate when

a lawyer knowingly engages in conduct that is a violation

of a duty owed as a professional with the intent to obtain a

benefit for the lawyer or another, and caused serious or

potentially serious injury to a client, the public, or the

legal system.” In case number 99-DB-029, the respondent

made a false statement and withheld material information

to Judge Parker in connection with the Small matter. His

misconduct in 00-DB-073 reveals a pattern of deception of

App. 22

clients (i.e., promising favorable results which never

materialize) and resulting fee disputes. Finally, his failure

to honor his agreement to pay Ms. Alston the amount

awarded to her in the LSBA Fee Dispute Program is a

violation of his duty owed as a professional, which caused

monetary injury to her.

Initially, the Board notes that case law indicates that,

taken alone, the sanction for the Respondent’s misrepre-

sentation to the court carries a heavy sanction. In In re

Soileau, 99-B-0441 (La. 6/18/99); 737 So.2d 23, formal

charges were filed against the respondent, a former city

court judge, based upon his criminal conviction for three

misdemeanor hunting offenses of the Migratory Bird

Treaty Act, failure to report his misconduct, and his

misstatements of facts pertaining to his previous criminal

record during his federal sentencing hearing. Jd. at 25.

The Court later determined that the respondent’s misrep-

resentation to the federal magistrate judge was proven by

clear and convincing evidence. A suspension from the

practice of law for two years, with one year deferred,

followed by a two-year period of probation was imposed by

the Court. Id. at 27.

Likewise, in LSBA v. Harrington, 585 So.2d 514 (La.

1990), the Court imposed a nine month suspension for a

lawyer’s misconduct involving two instances of making

false statements, one involving misleading opposing

counsel and the court, two instances of unduly embarrass-

ing, delaying or burdening a third person, and one in-

stance of improper ex parte coiimunication with a judge.

In Soileau and Harrington, the harm which resulted

following the respondents’ misrepresentations to the courts

was not as serious as that seen in the matter at hand. Here,

App. 23

a violent criminal, Dwayne Small, was released from

prison years before his scheduled date of release because

of the misrepresentations made by the Respondent to

Judge Parker.

Cases which involve the other types of misconduct in

which the Respondent engaged in this matter include In re

Brass, 00-0180 (La. 2/18/00); 752 So.2d i61, In re Welcker,

99-3239 (La. 1/14/00); 753 So.2d 177, and In re Cohen, 00-

1476 (La. 9/15/00); 769 So.2d 531. In Brass, the Office of

Disciplinary Counsel filed formal charges consisting of two

counts of unethical misconduct. The first count alleged

that Brass failed to take any action after being retained to

handle a criminal matter. The second count alleged that

Brass represented to a client that, for the payment of

$15,000, Brass could have criminal charges dismissed.

Brass initially filed a response denying the misconduct,

but later filed a consent discipline petition admitting to

the misconduct. The consent discipline proposed that

Brass be suspended from the practice of law for a period of

one year. Ultimately, the Court rejected this petition. Jd.

at 161-63.

After dismissal of the consent discipline petition, ODC

filed a second set of formal charges alleging that on three

occasions Brass failed to pursue a legal matter and then

misrepresented to the clients the actual disposition of the

matter. Brass also failed to refund any unearned fees in

these matters. Brass filed a second consent discipline

petition admitting the misconduct in both sets of formal

charges and proposing that he be disbarred from the

practice of law. The Court agreed and disbarred Mr. Brass.

Id. at 162-64.

App. 24

In Welcker, two sets of formal charges were filed

against the respondent alleging a total of eighteen counts

misconduct, including lack of diligence, failure to commu-

nicate, failure to protect the property of a client or third

person, failure to supervise the conduct of a non-lawyer,

commission of criminal acts, engaging in conduct prejudi-

cial to the administration of justice, engaging in conduct

involving dishonesty, fraud, deceit, or misrepresentacion,

and failure to cooperate with ODC. Id. at 177-80. After

formal charges were filed, Welcker filed a petition for

consent discipline, admitting to most of the misconduct.

The Court, after noting that Welcker had twice been

disbarred for commingling and conversion of funds, ex-

tended the minimum period for readmission for an addi-

tional five years from the date of finality of this judgment.

Id. at 180-81.

Finally, in Cohen, the Supreme Court held that

disbarment was warranted for the respondent’s miscon-

duct which included numerous instances of neglect of

client matters, failure to communicate with clients, failure

to provide an accounting or return unearned fees and

practicing law during periods of ineligibility. Jd. at 531-34.

The Court recognized that numerous aggravating factors

were present, including prior discipline, pattern of mis-

conduct, multiple offenses, obstruction of the disciplinary

process, vulnerability of victims, lack of remorse, and

indifference to making restitution. Jd. at 535. The Court

noted that the “sheer number of complaints against the

respondent demonstrates in a convincing fashion that he

has a complete lack of regard for the welfare of his clients

and his professional obligations as a member of the bar of

this state.” Id.

App. 25

Like the respondents in Brass, Welcker and Cohen,

Mr. Pinkston has neglected his clients’ legal matters,

failed to communicate with his clients, and failed to render

accountings or promptly return unearned fees. He has

made false statements to the court, as did the respondents

in Soileau’ and Harrington. His actions show his lack of

regard for his clients and for his professional obligations

as a member of the bar. The Board will adopt the recom-

mendation of the hearing committee and recommend to

the Court that the Respondent be disbarred. The Board

will also recommend that the Respondent be ordered to

make restitution to the aggrieved parties.

RECOMMENDATION

Based on the above, the Disciplinary Board adopts the

report of the hearing committee in 99-DB-029 and modi-

fies the report of the hearing committee in 00-DB-073 as

noted above concerning the rule violations found in Counts

- I through III. The Board recommends that the Respon-

dent, Donald O. Pinkston, be disbarred from the practice

of law. The Board further recommends that the Respon-

dent be ordered to make restitution to Mr. McDonald, Ms.

Isaac, Ms. Motton and Ms. Nunnery and that he provide

proof of previous restitution to made to Ms. Alston ($3,000)

and Mr. McDonald ($1,750) upon submitting his applica-

tion for readmission. The Board further recommends that

the Respondent be assessed with all costs and expenses of

these proceedings.

App. 26

LOUISIANA ATTORNEY DISCIPLINARY BOARD

JUDY Y. BARRASSO

JOHN G. BECKWITH, SR.

REGINALD BROWN, SR.

WANDA A. DAVIS

DAVID R. FROHN

JAMES L. PATE

JACK O. WHITEHEAD, JR.

BY:

ROBERT E. LEAKE, JR.

FOR THE ADJUDICATIVE COMMITTEE

PETER T. DAZZIO — Not Participating.

App. 27

APPENDIX B

PINKSTON, DONALD O.

99-DB-029 (05/09/01)

RECOMMENDATION OF HEARING COMMITTEE

IN RE: DONALD O. PINKSTON

NO. 99-DB-029

REPORT OF HEARING COMMITTEE #24

I. PROCEDURAL HISTORY

Formal charges were filed on April 21, 1999. Respon-

dent filed an answer to the charges on June 2, 1999, and

the matter was assigned to Disciplinary Committee No.

#24. Pre-hearing memoranda were filed by Disciplinary

Counsel on December 4, 2000, and by Respondent on

December 11, 2000.

A hearing was held on December 14, 2000. Present

were Herbert V. Larson, Jr., representing Respondent, and

Charles B. Plattsmier, Chief Disciplinary Counsel. Mr.

Larson waived the appearance of Respondent. The parties

stipulated to the admissibility of ODC Exhibits 1 through

27, and respondent’s Exhibit 1, and these were admitted.

During the course of the hearing, ODC Exhibits 28 and 29

were admitted without objection. _

At the conclusion of the hearing the matter was held

open for (1) the receipt of the transcripts of the depositions

of Judge Sharon Hunter, which was received on January

14, 2001 and (2) post-hearing memoranda which were filed

by Disciplinary Counsel on January 24, 2001, and by

Respondent on April 6, 2001.

App. 28

A. BRIEF FACTUAL SETTING

Dwayne Small was a defendant in Orleans Parish

Criminal District Court, charged with the commission of a

homicide. It was on the docket of Judge Jerome Winsberg,

Section “C”. As part of a plea bargain, the District Attor-

ney’s Office reduced the charge to manslaughter in ex-

change for a guilty plea and a sentence of 21 years. Small

was represented by Ernest Caulfield. The plea was ac-

cepted, a 21-year sentence was imposed by Judge Wins-

berg, and Small began serving his sentence in or about

1992.

Dwayne Small is the stepson of the Respondent. In

1995, Respondent enrolled as counsel of record for Mr.

Small and filed, on Small’s behalf, a “Motion to Correct

Excessive Sentence,” which was scheduled for hearing in

February of 1996. Before the motion was heard, Judge

Winsberg retired, effective January 1996, and the Louisi-

ana Supreme Court appointed Ike Spears to sit as Judge

Pro Tempore in Section “C” pending a new election.

At the February 1996 hearing, Respondent argued

that the “Sentencing Guidelines Grid” required a shorter

sentence for Small’s crime. Judge Spears reset the matter

for March 1996, and in the interim the District Attorney’s

office filed a memorandum in opposition to the Motion to

Reduce Excessive Sentence. In his testimony before the

Committee, Judge Spears acknowledged that he did not

believe the Respondent’s arguments for a sentence reduc-

tion had sufficient merit to withstand appellate review,

but he was willing to entertain the motion because Re-

spondent assured him that the District Attorney, Harry

Connick, or someone within Mr. Connick’s office, had

agreed not to oppose the motion. The Assistant District

App. 29

Attorney assigned to the case, Maurice Landrieu, who also

testified before the Committee, could not confirm such an

agreement. Judge Spears postponed the hearing of the

motion several times to afford Respondent an opportunity

to confirm the purported agreement not to oppose the

motion, but Respondent was unable to do so.

On June 25, 1996, Judge Spears ruled on the motion

and reduced Dwayne Small’s sentence from 21 years to 12

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

to file writs. On July 2, 1996, Mr. Landrieu 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 oppor-

tunity to confirm his purported agreement with the

District Attorney’s office. Finally, On October 4, 1996, with

Respondent present, Judge Spears granted the State’s

motion to reconsider and reinstated Dwayne Small’s

original 21 year sentence. At the request of Respondent,

Judge Spears scheduled a status conference on the matter

for November 1996.

Before that status conference, Sharon Hunter was

elected to fill the vacancy in Section “C”, and the matter

passed to her. On November 15, 1996, she held a status

conference, and the docket reflects that, “the status

hearing considered held and satisfied,” which in her

deposition testimony the Judge said meant “nothing else

was to be had.” (Hunter Deposition, page 10). Small

remained in prison.

For unexplained reasons, Dwayne Small’s case ap-

peared on the docket of Judge Julian Parker, Section “G”,

on March 21, 1997. On that day Respondent represented

to the Court that, “I have had an opportunity to discuss

App. 30

this matter with the Assistant District Attorney and

pursuant to the conference that we held, I understand that

a corrected minute entry needs to be sent to the Depart-

ment of Corrections in this matter. We request the court to

order a corrected minute entry be entered.” (ODC Exhibit

8). Respondent represented to the court that Judge Spears

had imposed a 12 year sentence on Dwayne Small, but

that an error had been made and that the actual sentence

should have been 9 years. Judge Parker reduced Small’s

sentence to 9 years. Small was released from prison.

Citizens in the community learned of Small’s release

and raised their concerns with the District Attorney’s

office. Maurice Landrieu asked Judge Parker to convene a

hearing to review the circumstances of the release. A

hearing was held on October 8, 1997, and Judge Parker

asked Respondent how and why the case was transferred

to his Court from Section “C”. Respondent replied, “It was

remanded to Section G by Judge Hunter. She recused

herself.” (ODC Exhibit 11). In a subsequent hearing on the

same subject, how the matter got into Section “G”, Re-

spondent answered, “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.” (ODC Exhibit 13). In a subse-

quent hearing before Judge Parker on this same issue, Mr.

Landrieu informed the court that Judge Spears had

reversed his reduction of the sentence and restored the

original sentence of 21 years. Mr. Pinkston responded,

“That’s not true.” (ODC Exhibit 19).

Judge Parker revoked his reduction of Small’s sen-

tence, and Respondent applied for writs to the Fourth

Circuit Court of Appeal. That court requested a Per

App. 31

Curiam from Judge Parker explaining the situation, and

in that statement the Judge declared that his court had

been “misled” by Respondent as to what sentence Judge

Spears had actually imposed on Small; and by Respon-

dent’s representation that Judge Hunter had recused

herself. (ODC Exhibit 21). In her deposition, Judge Hunter

testified that she had not recused herself from the Dwayne

Small case.

Each of the Assistant District Attorneys present in

Judge Parker’s court on the day that Respondent first

brought the Dwayne Small matter before the Judge state

that Respondent held no conference with them on the

matter.

B. RULES ALLEGEDLY VIOLATED

Respondents conduct allegedly violated Rules of

Professional Conduct 1.2(c), 3.3(aX1), 3.3(a)(2), 3.3(aX4),

8.4(c) and 8.4(a).

C. FACTUAL AND EVIDENTIARY FINDINGS

The Committee finds that the facts set forth in the

preceding Section A are correct, and in addition specifi-

cally finds that:

1) Judge Ike Spears, sitting Pro tempore in Section

“C”, reversed his earlier reduction of the sentence of

Dwayne Small and, on October 4, 1996, reinstated Mr.

Small’s original 21-year sentence.

2) Judge Sharon Hunter, Judge in Section “C”, did

not recuse herself from consideration of the Dwayne

Small’s case. The matter was marked closed on the docket

App. 32

of Section “C”. Judge Hunter did not allot the case to

Section “G”.

3) Respondent misrepresented to Judge Parker (a)

that Judge Sharon Hunter had recused herself when she

had not, (b) that Judge Spears had reduced Dwayne

Small’s sentence to 12 years when in fact the Court had

reinstated the original 21 year sentence, and (c) that the

minute entry by Judge Spears was erroneous and should

be corrected to further reduce Dwayne Small’s sentence to

9 years when there is no indication that Judge Spears ever

intended to reduce Small’s sentence to 9 years (and Mr.

Spears testified that he never reduced the sentence to 9

years. Hearing Transcript, pages 86-91).

4) Asa result of the misrepresentations by Respon-

dent to the Court, Judge Parker signed a “corrected”

minute entry that resulted in the temporary release of

Dwayne Small from prison.

5) The testimony of Maurice Landrieu, Ike Spears,

Judge Sharon K. Hunter, and Judge Julian Parker is

credible with respect to the foregoing.

6) While no direct evidence establishes how the

Dwayne Small case was moved onto Judge Parker’s

docket, both Judge Parker and Judge Hunter stated that

they did not request or consent to the transfer. (ODC

Exhibit 21; Hunter Deposition, page 13). If Respondent did

not improperly cause the transfer, he nevertheless took

advantage of it.

7) There was conflicting testimony as to whether an

assistant district attorney was present when Judge

Parker, on March 21, 1997, ordered Small’s sentence

App. 33

reduced, but this issue was not material to the Commit-

tee’s findings or recommendations.

D. DETERMINATION OF RULES VIOLATED

Respondent’s conduct violated Rules of Professional

Conduct 3.3(a)(1), 3.3(a)(2), 3.3(a)(4), 8.4(a), 8.4(c), and

8.4(d).

II. BASELINE SANCTION

The baseline discipline is disbarment (Standards,

Rule 6.11 and 7.1). Additionally, in the Pre-Hearing

Memorandum Submitted on Behalf of Respondent Donald

O. Pinkston, it is stipulated that: “The appropriate sanc-

tion for the charges brought by the Office of Disciplinary

Counsel is disbarmdnt, if the charges are proven by clear

and convincing evidence. See In Re: Ronald A. Welker, 753

So.2d 177 (La. 2000)”.

III. AGGRAVATING AND MITIGATING FACTORS

The primary aggravating factors are Respondent's

prior discipline (a two-year suspension) and his substan-

tial experience in the practice of law. The Committee finds,

in mitigation, that Respondent has cooperated with the

Office of Disciplinary Counsel and with the Disciplinary

Board in these proceedings. Both Mr. Larson and Mr.

Plattsmier conducted themselves in a highly professional

manner.

App. 34

IV. RECOMMENDATION

It is the Committee’s recommendation that Respon-

dent be disbarred and that he be assessed all costs of these

proceedings.

New Orleans, Louisiana, this 8th day of May, 2001.

HEARING COMMITTEE #24

ANTHONY P. DUNBAR, Chair

JOAN M. VOGEL

RICHARD P. LEMMLER, JR.

App. 35

APPENDIX C

PINKSTON, DONALD O.

00-DB-073 (03/08/01)

RECOMMENDATION OF HEARING COMMITTEE

IN RE: DONALD O. PINKSTON

NO. 00-DB-073

REPORT OF HEARING COMMITTEE #24

I. PROCEDURAL HISTORY

Formal charges were filed on June 12, 2000. Respon-

dent filed an answer to the charges on July 5, 2000, and

the matter was assigned to Disciplinary Committee No.

#24. Pre-hearing memoranda were filed by Disciplinary

Counsel on September 6, 2000, and by Respondent on

September 14, 2000.

A hearing was held on September 14, 2000. Present

were Respondent and his counsel, Herbert V. Larson, Jr.,

and Mimi T. Nguyen, Deputy Disciplinary Counsel. The

parties stipulated to the admissibility of ODC Exhibits 1

through 40, and these were admitted. During the course of

the hearing, Respondent’s exhibits, marked D-1 though D-

8, and ODC Exhibits 41 through 44, were admitted with-

out objection. ODC Exhibit 45 was ruled inadmissible, and

it was proffered by Deputy Disciplinary Counsel.

At the conclusion of the hearing the matter was held

open for (1) the receipt of the transcripts of the depositions

of Charles Martin, Kevin McDonald, David Singleton, and

Robert Evans, which were received on October 17, 2000,

(2) certain documents that Respondent said during the

course of the hearing he wished to submit, which were

App. 36

received on October 17 and 18, 2000, and (3) post-hearing

memoranda which were filed by Disciplinary Counsel on

November 30, 2000, and by Respondent on December 1,

2000.

COUNT ONE:

KENNETH McDONALD

A. BRIEF FACTUAL SETTING

Mr. McDonald, represented by Frank DeSalvo in a

Federal criminal matter, paid Respondent $3,500.00 for

representation. There was no written contract between

them. Respondent maintained that the gist of his employ-

ment was to attempt to negotiate a favorable plea ar-

rangement or sentence; Mr. McDonald maintained that

Respondent was retained to arrange an expeditious bond

hearing, obtain a favorable sentence, and, if no plea

agreement were reached, to handle McDonald’s appeal.

Respondent met with McDonald several times in jail and

testified that he spoke several times with an Assistant

U.S. Attorney. Mr. McDonald did not get a bond hearing, a

sentence he deemed favorable, or get help with his appeal.

Respondent has not rendered an accounting for his ser-

vices; he maintains he was retained on a “flat fee” basis.

Mr. McDonald demanded a refund of unearned fees, but

Respondent failed to deliver a refund or place any portion

of the fee in trust.

B. RULES ALLEGEDLY VIOLATED

Respondents conduct allegedly violated Rules of

Professional Conduct 1.3, 1.4, 1.5(f)(6), 1.15, 1.16(d), and

8.4.

App. 37

C. FACTUAL AND EVIDENTIARY FINDINGS

Without a written engagement, it is difficult to deter-

mine what Respondent was engaged to do, but the com-

mittee finds credible Mr. McDonald’s deposition testimony

that he retained respondent to use his influence with the

U.S. Attorney to get a bond hearing set and, failing that, to

work out a favorable sentence, and, failing that, to handle

the matter on appeal. (Deposition, pages 5-7). We find that

Respondent spent some time on this case, though the exact

amount cannot be determined from the testimony, the

evidence, or Respondent’s records, and that he was unsuc-

cessful in obtaining any results for Mr. McDonald. Based

upon the testimony of Respondent and Mr. McDonald, we

conclude that, while Respondent may not have explicitly

promised a specific result, Mr. McDonald reasonably

believed that, for $3,500.00, Respondent would success-

fully obtain a bond hearing or favorable sentencing, and

that Respondent failed to do so.

D. DETERMINATION OF RULES VIOLATED

Respondent’s conduct violated Rule 1.5(f)(6).

COUNT TWO:

AMMIE ISAAC/EMMANUEL ISAAC

A. BRIEF FACTUAL SETTING

Mr. Isaac’s mother retained Respondent to represent

her son, post-conviction, in State court at his sentencing

hearing and to handle his appeal. There was no written

contract betweea them. She claims to have paid Respon-

dent $5,000.00, and he states he received $3,000.00.

Respondent filed and argued a motion for a new trial and

appeared at the sentencing hearing, but thereafter failed

App. 38

to communicate consistently with Ms. Isaac or her son.

Over the next year and a half, Respondent was granted

numerous extensions of time by the Court of Appeal to

produce a trial transcript and to file his appeal brief, but

he failed to file the brief until shortly after the disciplinary

complaint was filed. A month later, Respondent was

suspended from the practice of law on other charges, and

Ms. Isaac hired a new attorney to take over the appeal.

Respondent has not rendered an accounting for his ser-

vices; he maintains he was retained on a “flat fee” basis.

Ms. Isaac demanded a refund of unearned fees, but Re-

spondent failed to deliver a refund or place any portion of

the fee in trust.

B. RULES ALLEGEDLY VIOLATED

Respondent’s conduct allegedly violated Rules of

Professional Conduct 1.3 and 1.16(d).

C. FACTUAL AND EVIDENTIARY FINDINGS

Based upon the receipts introduced into evidence, the

Committee finds that Respondent was paid $3,000.00 to

represent Mr. Isaac. We find that Respondent was re-

tained in or about March of 1997. We find that the record

was lodged with the Court of Appeal on January 28, 1998

and that respondent’s brief was filed in November 1998

(ODC Exhibit #11). We find that Respondent failed dili-

gently to pursue Mr. Isaac’s appeal and failed to communi-

cate adequately with his client or Ms. Isaac about the

status of the case. We find that he appeared in court on

Mr. Isaac’s behalf on at least two occasions, and that he .

did ultimately file an appeal brief on his client’s behalf.

icinieeentennminmeimanniaiimaiaed

App. 39

D. DETERMINATION OF RULES VIOLATED

Respondent’s conduct violated Rule 1.3 and, though he

was not formally charged with the following, Rules 1.4 and

1.5(f)(6)-

COUNT E:

DAVID SINGLETON

A. BRIEF FACTUAL SETTING

The son of Mr. Singleton paid Respondent $1,500.00 to

attempt to secure a sentence reduction on behalf of his

father, who had been incarcerated for 25 years. There was

no written contract between them. Mr. Singleton testified

in his deposition that Respondent did not guarantee

success. (Deposition, page 7). Respondent accepted seven

or eight collect calls from Mr. Singleton over the following

two years and obtained copies of Mr. Singleton’s medical

records in order to make a case for a sentence reduction of

a transfer for his client. (A copy of those records is in-

cluded in Respondent’s post-hearing submission). Respon-

dent testified that he spoke on one occasion to the trial

judge about the matter, and spoke with. Mr. Singleton’s

wife on several occasions. Mr. Singleton has demanded a

partial refund of the fees paid to Respondent.

B. RULES ALLEGEDLY VIOLATED

Respondents conduct allegedly violated Rules of

Professional Conduct 1.3, 1.4, and 1.1 6(d).

C. FACTUALAND EVIDENTIARY FINDINGS

The Committee finds that the facts set forth in Section

I above are correct.

App. 40

D. DETERMINATION OF RULES VIOLATED

The Committee finds no clear and convincing evidence

that Respondent violated any ethical rule.

COUNT FOUR:

FELISIA N. ALSTON

A. BRIEF FACTUAL SETTING

There is no dispute that respondent agreed to partici-

pate in the Louisiana State Bar Association Alternative

Dispute Resolution Program and was ordered to pay

$3,000.00 to a former client. Respondent testified that he

has paid $1,000.00 of this amount, and there is no evi-

dence to the contrary. Respondent has failed to pay the

rest of the amount due.

B. RULES ALLEGEDLY VIOLATED

Respondents conduct allegedly violated Rules of

Professional Conduct 8.1(a), 8.4(a)(c)and (d).

C. FACTUAL AND EVIDENTIARY FINDINGS

The Committee finds that the facts set forth in Section

I above are correct.

D. DETERMINATION OF RULES VIOLATED

Respondent’s conduct violated Rules 8.4(a) and (d).

COUNT FIVE:

CHARLES MARTIN

A. BRIEF FACTUAL SETTING

Mr. Martin, charged in Mississippi with murder, asked

Respondent to represent him in the matter. Respondent

App. 41

contacted Robert Evans, a part-time public defender in

Jefferson County, Mississippi, who had been appointed to

defend Mr. Martin, and made arrangements for Respon-

dent to enroll as co-counsel. Advised by Evans of the rules

for appearing Pro Hac Vice in Mississippi, Respondent

testified that he took the steps necessary to file the re-

quired documents with the Mississippi Circuit Court.

Respondent did appear in Mississippi court on two occa-

sions, but Mr. Evans, and not Respondent, attended the

hearing at which Mr. Martin entered a guilty plea. Mr.

Martin subsequently filed complaints with both the

Louisiana and Mississippi Bar Associations, alleging that

Respondent was not authorized to practice law in Missis-

sippi. The Mississippi Bar Association, hearing these same

charges, found “no conduct of said attorney which would

warrant any action under the disciplinary rules governing

lawyers practicing in this state.” (ODC Exhibit #19).

B. RULES ALLEGEDLY VIOLATED

Respondent’s conduct allegedly violated Rule of

Professional Conduct 5.5 (In addition, a violation of Rule

8.1(a) is alleged in Disciplinary Counsel’s Post-Hearing

Memorandum.)

C. FACTUAL AND EVIDENTIARY FINDINGS

The Committee finds that the facts set forth in Section

I above are correct.

D. DETERMINATION OF RULES VIOLATED

The Committee finds no clear and convincing evidence

that Respondent violated any ethical rule.

App. 42

COUNT SIX:

HILDA JONES

A. BRIEF FACTUAL SETTING

Mrs. Jones retained Respondent to handle a criminal

matter for her son and paid Respondent $1,000.00 on

February 16, 1999. She also paid $1,200.00 to Melvin

Winins the same day. (ODC Exhibit #36). Respondent

says, “Mr. Winins is an investigator I have frequently used

in the past.” (ODC Exhibit #38). Respondent denied he

received any portion of the $1,200.00 paid to Mr. Winins.

Ms. Jones apparently understood that Winins was not a

lawyer, but her confusion on this issue is obvious. (ODC

Exhibit #40). On the day he received his check, or the next

day, Respondent learned that his petition for a rehearing

in the Louisiana Supreme Court had been denied, and

that he was suspended from the practice of law. Respon-

dent did not immediately return the $1,000.00 to Ms.

Jones, though he testified that at his request another

lawyer did go to court on the son’s behalf. In August of

1999, after he was notified that Ms. Jones had filed a

disciplinary complaint, Respondent refunded $1,000.00 to

Ms. Jones.

B. RULES ALLEGEDLY VIOLATED

Respondents conduct allegedly violated Rules of

Professional Conduct 1.16(d).

C. FACTUAL AND EVIDENTIARY FINDINGS

The Committee finds that the facts set forth in Section

I above are correct.

App. 43

D. DETERMINATION OF RULES VIOLATED

Respondent’s conduct violated Rule 1.16(d).

COUNT SEVEN:

AGNES MOTTON and ZINA NUNNERY

A. BRIEF FACTUAL SETTING

Frank Motton was sentenced to a lengthy sentence in

1979 and filed an application for post-conviction relief. Ms.

Motton and Ms. Nunnery retained Respondent in 1995 to

represent Mr. Motton in his attempt to obtain a hearing on

_ his application and paid him $2,300.00. Receipts were

issued to Zina Nunnery for $700.00 and to Agnes Motton

for $1,600.00. (ODC Exhibit #27). Over the next three

years Respondent filed three writs of habeas corpus to

have Mr. Motton brought to the district court for a hearing

on Motton’s application, but each time the matter was

continued. When Respondent was suspended from prac-

tice, another attorney took over the case in 1999. Respon-

dent admits that he did not earn the entirety of his fee.

(See Respondent’s Post-Hearing Memorandum, page 7).

The complaint alleged, among other things, that Respon-

dent failed to keep his clients informed about the status of

their case, and there is no credible evidence that Respon-

dent did communicate fully with his clients.

B. RULES ALLEGEDLY VIOLATED

Respondents conduct allegedly violated Rules of

Professional Conduct 1.3, 1.4, 1.5(f)(6), and 1.16(d).

C. FACTUAL AND EVIDENTIARY FINDINGS

The Committee finds that the facts set forth in Section

I above are correct, and further that Respondent did not

App. 44

obtain for his clients the result they reasonably believed

he had undertaken to obtain.

D. DETERMINATION OF RULES VIOLATED

Respondent’s conduct violated Rules 1.3 and 1.5(f)(6).

Il. BASELINE SANCTION

As set forth above with respect to the individual

counts, the Committee has found violations of Rules of

Professional Conduct 1.3, 1.4, 1.5(f)(6), 1.16(d), and 8.4(a)

and (d). The baseline discipline is suspension when a

lawyer knows or should know that he is dealing improp-

erly with client property and causes injury or potential

injury to a client (Standards 4.12) and when a lawyer

knowingly fails to perform services for a client and causes

injury or potential injury to a client or engages in a pat-

tern of neglect and causes injury or potential injury to a

client (Standards 4.42).

Ill. AGGRAVATING AND MITIGATING FACTORS

The primary aggravating factors are Respondent’s

prior discipline and the pattern of misconduct reflected in

the matters at hand. While the misconduct alleged in the

foregoing complaints occurred before Respondent’s two-

year suspension became effective, the judgment of the

Supreme Court of Louisiana in that matter (involving

charges of failure to maintain client funds in trust) noted

that Respondent had even then been the subject of prior

discipline. The Court noted that: “In January 1997, re-

spondent was reprimanded by the disciplinary board for

misleading clients, failing to return an unearned fee, and

commingling funds. ... Respondent was also admonished

four times between 1994-1995 for failure to cooperate by

not filing written answers to complaints.” (ODC Exhibit

App. 45

#44, FN4). Thus, the Committee finds that the misconduct

found in the complaints now before the Committee do

arise from actions in disregard of prior discipline.

The Committee finds, in mitigation, that Respondent

has cooperated with the Office of Disciplinary Counsel and

with the Disciplinary Board in these proceedings.

IV. RESTITUTION

With respect to the complaint of Kenneth McDonald

(Count One), the Committee finds that Mr. McDonald is

due restitution in the amount of $3,500.00, the entire fee

paid to Respondent.

With respect to the complaint of Ammie Isaac (Count

Two), the Committee finds that Ms. Isaac is due restitu-

tion in the amount of $3,000.00, the entire fee paid to

Respondent.

With respect to Count Four, Respondent admits he

has failed to make restitution to a former client, as set by

the arbitrator, in the amount of $2,000.00, and he should

be required to do so.

With respect to the complaint of Agnes Motton and

Zina Nunnery (Count Seven), the Committee finds that

Agnes Motton is due restitution in the amount of

$1,600.00, the entire fee she paid to Respondent, and that

Zina Nunnery is due restitution in the amount of $700.00,

the entire fee she paid to Respondent.

V. RECOMMENDATION

It is the Committee’s recommendation that Respon-

dent be suspended from the practice of law for thirty (30)

App. 46

months and be required to file a petition for reinstate-

ment. In addition this Committee recommends that prior

to his reinstatement Respondent be required to pay

restitution to Kenneth McDonald in the amount of

$3,500.00, to Ammie Isaac in the amount of $3,000.00, to

Felisia N. Alston in the amount of $2,000.00, to Agnes

Motton in the amount of $1,600.00, and to Zina Nunnery

in the amount of $700.00. Further, the Committee recom-

mends that Respondent be assessed the costs of these

disciplinary proceedings pursuant to Rule XIX(10)(A)(7).

New Orleans, Louisiana, this 7th day of March, 2001.

HEARING COMMITTEE #24

ANTHONY P. DUNBAR, Chair

JOAN M. VOGEL

RICHARD P. LEMMLER, JR.

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