Opposition Brief — Laudumiey v. Louisiana Attorney Disciplinary Board

‘- J ns §

ar OCT 2 7 2003

No. 03-460

In The

Supreme Court of the Gnited States

Vv

FERNAND L. LAUDUMIEY, III and DENNIS S. MANN,

Petitioners,

versus

LOUISIANA ATTORNEY DISCIPLINARY BOARD,

Respondent.

*

v

On Petition For Writ Of Certiorari

To The Supreme Court Of Louisiana

2

v

OPPOSITION TO PETITION

FOR A WRIT OF CERTIORARI

2

Vv

RICHARD P. IEYOUB

Attorney General

State of Louisiana

ROBERT E. HARROUN, III

Deputy Attorney General

RICHARD A. SHERBURNE, JR.

Director, Litigation Division

ANDRE CHARLES CASTAING*

Assistant Attorney General

LOUISIANA DEPARTMENT OF JUSTICE

LITIGATION DIVISION

P. O. Box 91279

Baton Rouge, LA 70821-1279

Telephone: (225) 342-8495

Fax: (225) 342-4952

Counsel for Respondent,

Office of the Disciplinary Counsel

* Counsel of Record

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

OR CALL COLLECT (402) 342-2831

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

disbarment rules where permanent disbarment

was not a penalty when Petitioners wrongfully

influenced prospective Grand Jury witnesses?

Does “fundamental fairness” and “fair warning”

require that the punishment of permanent dis-

barment be known at the time of wrongful con-

duct?

Does the Louisiana unitary system of lawyer dis-

cipline violate the requirements of an impartial

tribunal by its combination of prosecutorial and

adjudicatory functions?

Must a lawyer be disbarred upon conviction be-

yond a reasonable doubt or may lesser standards:

“clear and convincing evidence,” “moral fitness to

practice law” and “fitness to practice law” suffice

as adequate standards free of vagueness?

May Louisiana’s new Supreme Court Rules providing

for a penalty of permanent disbarment be applied ret-

roactively without violating the constitutional prohi-

bition against state ex post facto laws?

PARTIES

The parties in this Court and the court below are as

follows:

Petitioners: Fernand L. Laudumiey, III and Dennis

S. Mann were the respondents before the Louisiana

Attorney Disciplinary Board and in the Supreme Court of

Louisiana.

Respondent: The Office of the Disciplinary Counsel

prosecuted the petitioners before the Louisiana Attorney

Disciplinary Board and in the Supreme Court of Louisi-

ana. The Louisiana Attorney Disciplinary Board was not a

party to the proceeding in the Supreme Court of Louisi-

ana.

TABLE OF CONTENTS

Page

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B. Facts and procedural history.......... saiokesadmaied 2

REASONS FOR DENYING THE WRIT.................... 3

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A. Retroactive application of the permanent

disbarment rule to their conduct............. 3

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C. Impartial tribunal.....................0. aban 6

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2. Vagueness challenges to “moral fit-

ness necessary to. practice law” and

“fitness as laWyeTS” ...............cececeeeeees 10

Il. THE FORMER LAWYERS’ EX POST FACTO

CHALLENGE DOES NOT MERIT THIS

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iv

TABLE OF CONTENTS -— Continued

Page

III. THE FORMER LAWYERS’ CHALLENGES

TO THEIR SPECIFIC SANCTION OF PER-

MANENT DISBARMENT ARE NOT RIPE.... 16

PEI ciceeninnsenencinnniniensnieteneidinnnitnpeanbinwinlosiion 17

APPENDIX

A. Factual Basis in United States v. Dennis S.

Mann and Fernand L. Laudumiey, III,

Criminal Action No. 01-0014-L in the

United States District Court for the East-

ern District of Louisiana (docket no. 19;

RDS BG IEEE TIO i ince cnesccnnssntensenavisniansnnnniens App. 1

Vv

TABLE OF AUTHORITIES

; Page

CASES

A. FEDERAL

Alaska v. U.S., 531 U.S. 941, 121 S.Ct. 337, 148

Rene FB CE) ccindiiavciiccemsicinnttedertoasinaiiaedamanias iauasnennind 7

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

ROD Fes Be CED wrttcicincicrienniiae 16

Hawker v. People of New York, 170 U.S. 189, 18

B.b. STS, GB Ente, DEBE CIGD cevincsecsvecsscrrscosenveseveveceone 15

Hortonville Joint School Dist. No. 1 v. Hortonville

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

TL: 0 CTO wincvitineinnnvaneaaiamanaaale 4,13, 14

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

Ei CIE Bk F OD wictestinisnntinidiaditniniandinceialiianaimaliseiab ila cue. 5

In re: Winship, 397 U.S. 358, 90 S.Ct. 1068, 25

Re dueesanNs GEUNEY (WU WIND séshscniorssissincshiesibeadanadanioiiemndaaateansadbna a

Kolender v. Lawson, 461 U.S. 352, 103 S.Ct. 1855,

TF Ra ee Le vviersenteicnnteciiaasdaiaaiiiiiadees 11

Kugler v. Helfant, 421 U.S. 117, 95 S.Ct. 1524, 44

eRe TE 4 PD ccicienjiiinininiaiadaetiiebsdmbssnntaueceaaeaiaans 9

Nixon v. U.S., 506 U.S. 224, 113 S.Ct. 732, 122

Ha FUELED (INU secstniciiagstictiosdpacammnaionaadsenniebinaniaadknaasian 7

Papachristou v. City of Jacksonville, 405 U.S. 156,

92 S.Ct. 839, 31 L.Ed.2d 110 (1972) ..................0ccccseseees 11

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

113 S.Ct. 2485, 125 L.Ed.2d 38 (1998).................ccccceee 16

Rogers v. Tennessee, 532 U.S. 451, 121 S.Ct. 1693,

BP RR ee GUE COE vttniieeresseesnnieneiadidaceisanaaniidlaed 14

vi

TABLE OF AUTHORITIES -— Continued

Page

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

156 L.Ed.2d 544 (2003) .............sssccccsssssseeeees cimiaianniitiinisi 13

Village of Hoffman Estates v. Flipside, Hoffman

Estates, Inc., 455 U.S. 489, 102 S.Ct. 1186, 71

Sine AD SUED © DIED cxasccnvescninsinncnseutineidbaniniaanisibeietiapliniednsiaien 11

B. LOUISIANA

Bester v. Louisiana Supreme Court Committee on

Bar Admissions, 2000-1306 (La. 2/21/01), 779

ROE 0 Bb wssvinnistnniinniiciisindeniennimasamdanie 8

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

TE BR ieecnecisssentneimnmnnceiaenmaaial 2, 4, 10, 13

Succession of Wallace, 574 So.2d 348 (La. 1991)................ 8

CONSTITUTION, STATUTES, AND RULES ;

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

RANI .arcssscinnescnniiinitinnsaneseuieinianiiieaionadiedaiiaiamsiaasiaial 18, 14, 15

U.S. Constitution, Amendment I............ encicneniiduncdlialaaiae 11

U.S. Constitution, Amendment XTV ...................sccceeeeeeees 3, 5

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Be Cs Se vein sesiciveceissesicnesntinameniitinitcianitaitindamamaitmaniitan 6

0 Us eT sniievsrinsieeseistssininicinisinnininiinininniaiiaiainigmaieaabeilas 1

Da COGN BO BLT, sescrncectneneemnnncstaiasiniiniemniaeaan 12

Serene Canes BG GD cnscesiescesivicisensssitssneeveienuscnninaiina 12

Seapweene Comte Bake TOL) q.cccccsccscescecsevssssscesesssnnsssevenness 3,12

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TABLE OF AUTHORITIES — Continued

Page

La.Sup.Ct. Rules, Rule 19, §2.................0...ccccccsssscsssssseeeees 7

La. Sup.Ct. Rules, Rule 19, §S.........ccccsccssssssccsersesesesccceveces 7

La.Sup.Ct. Rules, Rule 19, §$4...............cccccsccccssesescovssesecones 7

La ‘Sup.Ct. Rules, Rule 19, §18........cccccccrcccerccccssressesesoveenes 9

1

OPPOSITION TO PETITION FOR

A WRIT OF CERTIORARI

This court should deny the former lawyers’ petition for

a writ of certiorari. The Louisiana Supreme Court perma-

nently disbarred them after federal authorities caught

them asking witnesses to lie to a federal grand jury —

conduct that resulted in their felony conviction for viola-

tion of 18 USC §1512(b)(1) & (2) (obstruction of justice —

witness tampering).

Their 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 USC §1257 to review the 27 June 2003 ruling of

the Supreme Court of Louisiana.

,

vv

2

STATEMENT OF THE CASE

A. Parties.

The petitioners (“former lawyers”) are:

1. Fernand L. Laudumiey, ITI; and

2. Dennis S. Mann.

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 opinion reproduced at Petitioners’ Appendix A.

The respondent makes an observation about the former

lawyers’ statement of the case. The former lawyers state that

they “acted improperly relative to prospective witnesses before

a federal grand jury’.’ That is a euphemism for asking wit-

nesses to lie to the grand jury.’ The specific details of the

former lawyers’ conduct are relevant to the issue of whether

they have standing to raise some of their vagueness chal-

lenges. The Louisiana Supreme Court referred to and consid-

ered the factual basis submitted in support of the former

lawyers’ guilty pleas in their federal criminal case. That -

factual basis is attached as Appendix A to this opposition.

4

v

* Petition, p. 2.

* App. A, p. 3a-4a; In re Laudumiey, 2003-0234, pp. 3-4 (La.

6/27/03), 849 So.2d 515, 518.

3

REASONS FOR DENYING THE WRIT

I. DUE PROCESS.

The former lawyers’ due process challenges to their

disbarment do not merit this court’s attention. The Louisi-

ana 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.’ Their due process

challenges do not present important questions of federal

law.’ Instead, their claims lack arguable merit, they lack

standing to raise some of their due process claims, and

their arguments ignore the record.

A. Retroactive application of the permanent

disbarment rule to their conduct.

The former lawyers assert that the Louisiana Su-

preme Court violated their 14th Amendment Due Process

rights by applying a “new” permanent disbarment rule to

them. They assert they had no notice at the time they

committed their felonies that they might face permanent

disbarment.

First, the former lawyers’ 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 Louisiana law. This court is bound to accept the inter-

pretation of Louisiana law by the Supreme Court of

* Supreme Court Rule 10(b) & (c).

* Supreme Court Rule 10(c).

4

Louisiana (the highest court of the State).° In the former

lawyers’ disciplinary proceeding, the Louisiana Supreme

Court expressly held that permanent disbarment is not a

“new” sanction:

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

— 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

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.

Second, the record contradicts the former lawyers’

lack of prior notice claim. The Louisiana Supreme Court,

citing a federally recorded conversation involving the

former lawyers, found that at the time they committed the

underlying federal criminal offence they believed (incor-

rectly) that the revised disbarment rule was already in |

effect.’ Actual knowledge of a threat of permanent disbar- |

ment did not deter the former lawyers from committing

the crime.

‘ * 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, p. 10, 849 So.2d at 522. |

" App. A, p. lla, fn. 11.

5

Third, the former lawyers’ citation to In re: Ruffalo’ is

misplaced. Ruffalo held that an attorney is entitled to

notice of the charges against him prior to the disciplinary

hearing.’ It is undisputed that on 22 August 2001 the

Office of Disciplinary Counsel filed a supplemental and

amending formal charge against each former lawyer, which

sought permanent disbarment” and that the hearing com-

mittee held the hearing over 3 months later on 7 December

2001." Clearly, the former lawyers had the pre-hearing

notice of the charges against them required by Ruffalo.

B. Fair warning.

The former lawyers allege that permanent disbarment

violated their 14th Amendment Due Process rights because

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

their felonies that they could be permanently disbarred.

As with their retroactivity argument, this argument is

foreclosed by the fact that permanent disbarment was not a

“new” possible sanction but, instead, is a power the Louisi-

ana Supreme Court “has always possessed”. Further, at the

time petitioner Mann committed the underlying federal

criminal offence he believed (incorrectly) that the revised

disbarment rule was already in effect.”

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

* 390 U.S. at 550, 88 S.Ct. at 1226.

* App. A, p. 5a; Petition, p. 3.

" App. C, p. 34a (This matter was heard on Friday, December 7,

2001...).

” App.A, p. 12a.

” App. A, p. lla, fn. 11.

6

C. Impartial tribunal.

The former lawyers specifically disclaim any actual

bias on the part of anyone involved in their attorney

disciplinary proceeding.“ Instead, the former lawyers

assert that mere “appearance” of unfairness violated their

due process rights, even in the total absence of any actual

unfairness.

First, the former lawyers waived this argument

because they did not seek to recuse any of the members of

the Louisiana Supreme Court. This is particularly appli-

cable to the 4 current members of the Louisiana Supreme

Court who in 1996 approved the Disciplinary Board’s

appointment of Charles B. Plattsmier as Disciplinary

Counsel.” If there was a due process problem with any of

these justices sitting on the former lawyers’ case, their

recusal could have cured it.

Second, their argument proves both too little and too

much. Their argument fails to show that there is any due

process violation in the Louisiana attorney disciplinary

structure. There is no “appearance” problem with the

Louisiana Supreme Court appointing a person or board to

receive evidence and make proposed findings and recom-

mendations back to it. Magistrate judges perform the

same functions for federal district courts. Special masters

“ “Counsel is not accusing anyone of unfairness”. Petition, p. 12.

* Chief Justice Calogero and Justices Kimball, Victory, and

Johnson.

** 28 USC §636(b 1B).

Rt

7

perform the same functions for this Court.” There is no

“appearance” problem with the Louisiana Supreme Court

doing the same thing.

There is no “appearance” problem with the structure

of the Louisiana Attorney Disciplinary Board. The Disci-

plinary Board is divided into 2 separate committees: the

Adjudicative Committee and the Administrative Commit-

tee."® The Administrative Committee appoints the hearing

committees — 3 member panels that conduct hearing into

formal charges.” The separate Adjudicative Committee

reviews the actions of the hearing committees.” Members

of the Administrative Committee may not participate in or

vote on matters involving appellate review functions of the

Adjudicative Committee.”

There is no substantial “appearance” problem with the

fact that the Louisiana Supreme Court must approve the

appointment of the Chief Disciplinary Counsel.” The

power to prosecute attorney disciplinary violations must

rest somewhere. The Louisiana Supreme Court has

“exclusive and plenary power to define and regulate all

" See: Alaska v. U.S., 531 U.S. 941, 121 S.Ct. 337, 148 L.Ed.2d 271

(2001). See also: Nixon v. U.S., 506 U.S. 224, 250, 113 S.Ct. 732, 746,

122 L.Ed.2d 1 (1993) (federal courts have appointed special masters

and other factfinders “[flrom the commencement of our Government”),

citing, Ex parte Peterson, 253 U.S. 300, 312, 40 S.Ct. 543, 547, 64 L.Ed.

919 (1920).

* La.Sup.Ct. Rules, Rule 19, §2(G).

* La.Sup.Ct. Rules, Rule 19, §2(G)(3a) and §3.

* La.Sup.Ct. Rules, Rule 19, §2(G)(2).

* La.Sup.Ct. Rules, Rule 19, §2(G) (unnumbered final sentence).

* La.Sup.Ct. Rules, Rule 19, §2(G)1)(b) and §4(A).

8

facets of the practice of law” in Louisiana,” including the

admission of attorneys to the bar, the professional respon-

sibility and conduct of lawyers, and the discipline, suspen-

sion and disbarment of lawyers.“ As a result, the

Louisiana Supreme Court must make the determination of

where to vest the prosecutorial function. Neither the

executive nor legislative branches of Louisiana govern-

ment have that power.

In Louisiana prior to 1990 the Louisiana State Bar

Association (LSBA) prosecuted attorney disciplinary

complaints. The former lawyers assert that the pre-1990

system did not suffer from the alleged “merger” problem.

Their distinction does not withstand scrutiny.

Prior to 1990, Louisiana’s attorney disciplinary rules

vested the prosecutorial function in the LSBA because that

is where the Louisiana Supreme Court chose to place it,

not because of any independent or inherent power in the

LSBA. For purposes of the former lawyers’ merger argu-

ment, the current system is as “unitary” as the former

system that they admit was constitutional.

The Disciplinary Rules create a significantly inde-

pendent Disciplinary Counsel’s Office -— and there is

nothing in the record to show that this independence is a

sham. Although the Louisiana Supreme Court approved

Plattsmier’s appointment as Chief Disciplinary Counsel,

there is no evidence in the record that the Supreme Court

* Bester v. Louisiana Supreme Court Committee on Bar Admis-

sions, 2000-1306, p. 3 (La. 2/21/01), 779 So.2d 715 (defining plenary as

“full, entire, complete, absolute, perfect, unqualified”).

* Succession of Wallace, 574 So.2d 348 (La. 1991).

9

actively manages Plattsmier’s office on a day-to-day basis.

Further, the Disciplinary Counsel’s principal office is in

Baton Rouge while the Louisiana Supreme Court sits in

New Orleans. Finally, as noted above, only 4 of the 7

justices who heard the former lawyers’ case were on the

Louisiana Supreme Court when it approved Plattsmier’s

appointment in 1996.”

D. Vague standards.

1. Burden of proof.

The former lawyers assert that due process requires

that an attorney disciplinary charge must be proved

beyond a reasonable doubt, rather than by clear and

convincing evidence as required by the Louisiana rules.”

First, they cite no authority for this novel proposition.

The case they cite - In re: Winship” — holds that the

“beyond a reasonable doubt” standard applies in juvenile

delinquency adjudications (an unremarkable holding given

that delinquency adjudications routinely involve incar-

ceration). Winship simply does not stand for the proposi-

tion for which the former lawyers cite it nor does it inform

the burden of proof analysis in this state attorney disci-

pline matter.

* See: Kugler v. Helfant, 421 U.S. 117, 128, 95 S.Ct. 1524, 1532, 44

L.Ed.2d 15 (1975).

* La.Sup.Ct. Rules, Rule 19, §18(C) (Standard of Proof. Formal

charges of misconduct ... shall be established by clear and convincing

evidence.).

” 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970).

10

Second, the former lawyers lack standing to assert

this issue because its resolution will not change the result

in this case. The Louisiana Supreme Court found that as a

result of the federal criminal conviction, the former law-

yers guilt of the underlying conduct had been proved

beyond a reasonable doubt.” Proof meeting that standard

necessarily means that there was proof on the somewhat

lesser standard of “clear and convincing evidence”. For the

same reason, their vagueness challenge to the “clear and

convincing evidence” standard is not appropriate for

review.

2. Vagueness challenges to “moral fitness

necessary to practice law” and “fitness

as lawyers”.

The former lawyers make a general assertion that the

terms “moral fitness necessary to practice law” and. “fit-

ness as lawyers” are unconstitutionally vague. This

assertion lacks merit and it is doubtful that the former

lawyers have standing to raise it.

First, the former lawyers’ string citation of this court’s

vagueness cases” is unenlightening. None of those cases

deal with lawyer discipline. None of those cases deal with

the challenged phrases (or any similar phrase). In fact, the

former lawyers cite no cases from any court that have ever

held the challenged phrases to be unconstitutionally

vague.

* App. A, p. 16a; In re Laudumiey, p. 14, 849 So.2d at 524.

* Petition, p. 13.

al

11

Second, the former lawyers lack standing to bring this

challenge because they fail to argue how these terms are

vague as to the specific conduct for which they were

disciplined. The former lawyers do not assert that the

challenged rules restrict their freedom of expression.

Accordingly, this court reviews the challenged rules less

strictly than if the rules inhibited 1st Amendment rights.”

Vagueness challenges to statutes that do not involve

lst Amendment freedoms are examined in the light of the

facts of the case at hand.” A person who engages in con-

duct that a law clearly proscribes cannot complain of the

vagueness of the law as applied to the conduct of others.”

A criminal statute is vague if it “fails to give a person of

ordinary intelligence fair notice that his contemplated

conduct is forbidden by the statute”.

Assuming for argument that the terms “moral fitness

necessary to practice law” and “fitness as lawyers” might

have some play at the margins, this is assuredly not such

a case. These former lawyers asked witnesses to lie to a

federal grand jury. As the Louisiana Supreme Court held:

(The former lawyers’) convictions are particularly

egregious because the investigation they sought

* Kolender v. Lawson, 461 U.S. 352, 358, n. 8, 103 S.Ct. 1855,

1859, 75 L.Ed.2d 903 (1983), citing, Village of Hoffman Estates v.

Flipside, Hoffman Estates, Inc., 455 U.S. 489, 499, 102 S.Ct. 1186, 1193,

71 L.Ed.2d 362 (1982).

" Hoffman Estates, 455 U.S. at 495, n. 7, 102 S.Ct. at 1191.

” Hoffman Estates, 455 U.S. at 495, 102 S.Ct. at 1191.

* Papachristou v. City of Jacksonville, 405 U.S. 156, 162, 92 S.Ct.

839, 843, 31 L.Ed.2d 110 (1972).

12

to impede related directly to runner-based solici-

tation in the legal profession.

It strains credulity to believe that either of these former

lawyers did not have “fair notice” that asking witnesses to

lie to a federal grand jury impacts on his “moral fitness

necessary to practice law” and “fitness as a lawyer”. The

Louisiana disciplinary rules clearly proscribed the former

lawyers’ felonious conduct. Therefore, they lack standing

to assert their vagueness challenge.

II. THE FORMER LAWYERS’ EX POST FACTO

CHALLENGE DOES NOT MERIT THIS

COURT’S ATTENTION.

The former lawyers’ ex post facto challenge to their

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.” Their ex post facto

chalienge is not an important question of federal law”

because it does not have broad applicability. Rather, it

addresses only the severity of their sanction: permanent

disbarment as opposed to disbarment with the ability to

apply for discretionary readmission after five years. Their

ex post facto claim applies only to the small number of

“ By comparison, one of the requirements for admission to this |

Court’s Bar is that the applicant “is of good moral and professional

character”. Supreme Court Rule 5.1 & 5.2. An applicant to the Bar of a

federal court of appeals must also be of “good moral and professional |

character”. FRAP Rule 46(a\1).

* Supreme Court Rule 10(b) & (c).

* Supreme Court Rule 10(c).

, |

13

Louisiana lawyers who committed serious misconduct

prior to 1 August 2001. Further, their challenge lacks

arguable merit and ignores the record.

First, the former lawyers correctly note that the Ex

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

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

when committed”.” However, they fail to recognize that

this rule does not apply to their case because permanent

disbarment 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 the former lawyers’ ex post

facto argument, the Louisiana Supreme Court 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 repre-

sent a substantive change to the bar disciplinary

* U.S. Const., Art. I, §10, cl. 1.

* 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. 12a; In re Laudumiey, p. 10, 849 So.2d at 522.

14

rules, nor do they result in the adoption of a 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 pos-

sessed.

The former lawyers’ ex post facto argument asks this court

to reverse 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 lawyers

cite no authority for such a tectonic shift in bedrock

federalism principles.

Second, the former lawyers’ “fair warning” claim is

mispiaced. 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 the former lawyers’ “fair

warning” claim. The Louisiana Supreme Court, citing a

federally recorded conversation involving the former

lawyers, found that at the time they committed the under-

lying federal criminal offence they believed (incorrectly)

that the revised disbarment rule was already in effect.”

Actual knowledge of a threat of permanent disbarment did

not deter them from committing the crime.

tig ee

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

—* App.A, p. lla, fn. 11.

15

Fourth, the former lawyer’s argument is incredible.

They assert that the threat of permanent disbarment

would have deterred them from their felonious conduct

when they were not deterred by the threat of federal

prison (and of the other incidents of a felony conviction

such as losing the right to vote and to own firearms) and of

disbarment for at least 5 years with only a hope of discre-

tionary readmission.

Fifth, the former lawyers’ ex post facto claim is a

complaint about form over substance. Under this court’s

caselaw, if a state enacts a law prohibiting convicted felons

from practicing medicine, the Ex Post Facto Clause does

not prevent application of that law to a person who com-

mitted a felony before the new law was enacted.“ Accord-

ingly, consistent with the Ex Post Facto Clause as

interpreted by this court in Hawker, the Louisiana Su-

preme Court could have:

e disbarred Laudumiey and Mann with the

ability to seek readmission after 5 years;

¢ enacted a new rule barring all convicted fel-

ons from admission to the Louisiana Bar; and

¢ applied that new rule to any subsequent peti-

tion for readmission filed by Laudumiey or

Mann.

That result would be consistent with what actually oc-

curred in this case.

© Hawker v. People of New York, 170 U.S. 189, 18 S.Ct. 573, 42

L.Ed. 1002 (1898).

16

Accordingly, the former lawyers fail to show that this

court should exercise its discretion and hear their ex post

facto challenge to their disbarment.

Ill. THE FORMER LAWYERS’ CHALLENGES TO

THEIR SPECIFIC SANCTION OF PERMA-

NENT DISBARMENT ARE NOT RIPE.

The majority of the former lawyers’ claims relate to

their sanction of permanent disbarment. They admit that

the Louisiana Supreme Court could have disbarred them.

However, they assert that they should have the opportu-

nity 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 lawyers’

claim will be ripe only if they seek readmission 5 years

from now, they are otherwise eligible for readmission, and

if the Louisiana Supreme Court denies their 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 their permanent dis-

barment.“

“ 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).

ll a a a

17

As a result, the former lawyers’ claims concerning

their sanction are not yet ripe at this time.

2

vy

CONCLUSION

This Court should deny Laudumiey and Mann’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

RICHARD A. SHERBURNE, JR.

Director, Litigation Division

ANDRE CHARLES CASTAING*

Assistant Attorney General

LOUISIANA DEPARTMENT OF JUSTICE

LITIGATION DIVISION

P. O. Box 91279

Baton Rouge, LA 70821-1279

Telephone: (225) 342-8495

Fax: (225) 342-4952

Counsel for Respondent,

Office of the Disciplinary Counsel

*Counsel of Record

App. 1

EXHIBIT ODC #15

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

UNITED STATES OF AMERICA* CRIMINAL NO. 01-14

v. * SECTION: “L”

DENNIS S. MANN ”

FERNAND L. LAUDUMIEY, III ,

* * *

FACTUAL BASIS

(Filed Mar. 14, 2001)

If called upon to try this case the government would

prove at trial, among other things, the following:

Defendants Dennis S. Mann and Fernand L.

Laudumiey were attorneys licensed in the State of Louisi-

ana, and practiced general civil law. Mann and Laudumiey

employed Ernest Aiavolasiti and Michael A. Palmisano,

Jr. as legal assistants. While so employed with Mann and

Laudumiey, and with their full knowledge, Aiavolasiti and

Palmisano used runners to solicit personal injury cases.

In June 2000, Aiavolasiti and Palmisano were sub-

poenaed, and later appeared as witnesses, before a federal

grand jury investigating fraud and corruption in the legal

and medical professions engaged in personal injury litiga-

tion. A grand jury is an official proceeding under Title 18,

United States Code, Section 1512. Prior to their appear-

ance in the grand jury, however, Aiavolasiti and Palmis-

ano had a meeting with Laudumiey on June 13, 2000.

App. 2

They met again with both Laudumiey and Mann on June

15, 2000.

On June 13, 2000, Aiavolasiti and Palmisano met

Laudumiey at Lakeview Harbor Restaurant in New

Orleans, Louisiana. Aiavolasiti and Palmisano were

consensually wearing recording and transmitting devices

supplied by special agents of the Federal Bureau of Inves-

tigation (FBI). When Aiavolasiti and Palmisano disclosed

to Laudumiey that they had been subpoenaed to appear

before a federal grand jury, Laudumiey read the grand

jury subpoenas and stated, “This changes everything.”

Laudumiey insisted that they have another meeting.

Accordingly, on June 15, 2000, a second meeting took

place at Lakeview Harbor Restaurant. Present were

Mann, Laudumiey, Aiavolasiti, and Palmisano. Again,

Aiavolasiti and Palmisano consensually wore transmitting

and recording devices supplied by special agents of the

FBI. Laudumiey suggested almost immediately that they

go to his house at 998 Amethyst Street in New Orleans.

FBI and the Interna) Revenue Service (IRS) agents sur-

veilled the defendants leaving the restaurant with Ai-

avolasiti and Palmisano and going to Laudumiey’s house.

Immediately upon arriving at the house, Mann

requested everyone strip their clothes off to ensure no one

was wearing recording devices. Upon redressing, a lengthy

conversation of approximately two hours ensued concern-

ing Aiavolasiti and Palmisano’s upcoming testimony

before the grand jury. Repeatedly during the conversation,

Mann and Laudumiey sought to influence Aiavolasiti and

Palmisano’s grand jury testimony. Specifically, Mann and

Laudumiey encouraged Aiavolasiti and Palmisano to

testify falsely to the grand jury. For example, Mann made

App. 3

the statement, “Let me tell you, how about if you said

something like this, tell ’em [i.e. the grand jury] you paid

runners to bring in cases but don’t tell ’em that the law-

yers knew anything about it.” Laudumiey agreed that

Aiavolasiti and Palmisano should make this false testi-

mony to the grand jury. In fact, as described above Mann

and Laudumiey knew Aiavolasiti and Palmisano were

using runners to bring in cases.

At another part of the conversation, Mann again urges

Aiavolasiti and Palmisano to conceal from the grand jury

that he and Laudumiey knew anything about using

runners. Mann went on to tell them that he was less

concerned about going to jail, than he was about losing his

livelihood. During another part of the conversation

Laudumiey instructed Aiavolasiti and Palmisano to tell

the grand jury that they had paid runners while working

for another lawyer's office, but not while working for

Laudumiey and Mann.

In an effort to convince Aiavolasiti and Palmisano to

testify falsely before the grand jury, Mann compared the

instant investigation to the recent Edwin Edwards trial in

Baton Rouge. He attempted to convince them that this

investigation was not as strong as the Edwards case

because it had no tapes or surveillance and that it was

merely based on “words of like people ... that are delivery

boys.” During the meeting, both Mann and Laudumiey

repeatedly attempted to influence Aiavolasiti and Palmis-

ano’s grand jury testimony.

At the conclusion of the meeting, Mann and

Laudumiey gave Aiavolasiti and Palmisano $2,000 and

told them there was more if they needed it, ostensibly to

App. 4

hire an attorney. Finally, both defendants asked Aiavola-

siti and Palmisano to contact them after they appeared

before the grand jury.

The above evidence comes from an investigation done

by special agents of the Federal Bureau of Investigation

and the Internal Revenue Service, a federal grand jury

investigation, consensual tape recordings, and the admis-

sions of the defendants Laudumiey and Mann.

/s/ Irene Gonzalez /s/ Dennis S. Mann

IRENE GONZALEZ DENNIS S. MANN

Assistant U.S. Attorney Defendant

/s/ Albert J. Winters, Jr. /s/ Fernand L. Laudumiey, II

ALBERT J. WINTERS, JR. FERNAND L.

Assistant U.S. Attorney LAUDUMIEY, III

Senior Litigation Counsel Defendant

/s/ Michael H. Ellis, Esq.

MICHAEL H. ELLIS, ESQ.

Counsel for Defendants