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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2004
- **Citation:** 540 U.S. 1179

## Text

a [ Supreme Court, US. |

; ion JAN 5 - 2004
No. 03-810
—OPEICE OF THE CLERK
In The
Supreme Court of the Anited States
Sd

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

o

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
a desi densi ncn iuiisnatennatinontiine 5

II. FORMER LAWYER PINKSTON’S EX POST
FACTO CHALLENGE DOES NOT MERIT
THIS COURT'S ATTENTION ....................000 6

III. FORMER LAWYER PINKSTON’S CHAL-
LENGES TO THE SPECIFIC SANCTION
OF PERMANENT DISBARMENT ARE NOT
TDR Giahshiindidhsnichidapesnemniiinakecakeneariadrnanenbarene 10

IV. FORMER LAWYER PINKSTON DID NOT
RAISE HIS “EMPLOYMENT PRECLU-
SION” CLAIMS IN THE LOUISIANA SU-
IEEE ciccnvicctecseisatenseecrnerssninsioeenveannn 11

I iia send deaextieandnesecepascdavsiasmanserainnbeesesens 13

iv

TABLE OF CONTENTS -— Continued
Page

APPENDIX

A.

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,

BBE sR DP CI) vce nennnssnssnrscninaientngioonanaiaiabesniiaaian 11 -

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
RUNNIN <<icasinacsisatincniceainankasebendamemenualdaneduiedaaaaammaleaand 6, 8
U.S. Constitution, Amendment XIV..................:ccceeeceeeeees 3, 5
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Supreme Court Rule 14. 1(gXi1).........0csscesssesssscsnsvecsescevsssenes 12

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.

4

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.

2

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. -

4

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

3

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
4

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).

5

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.

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

6

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.

7

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.

8

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).

9

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.

10

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).

11

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).

12

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.

4
v

* Supreme Court Rule 14.1(g)(i).
* Petition, Appendix B, p. 3a.

13

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

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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.

ie

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

ee

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

ee

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

ee

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386001_0762%3A3. Public record. Not legal advice.