Appendix — Raspanti v. Office of Disciplinary Counsel (No. 09-215)

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APPENDIX

TABLE OF CONTENTS

Appendix Page

Opinion of

The Supreme Court of Louisiana

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Order of

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[ENTERED: MARCH 17, 2009]

FOR IMMEDIATE NEWS RELEASE

NEWS RELEASE #015

FROM: CLERK OF SUPREME COURT OF

LOUISIANA

The Opinions handed down on the 17th day of

March, 2009, are as follows:

BY WEIMER, J.:

2008-B -0954 IN RE: ROY A. RASPANTI

(Disciplinary Proceedings)

Accordingly, we conclude that a

public reprimand issue against

Respondent, and that he be cast

for costs of these proceedings.

PUBLIC REPRIMAND

IMPOSED; RESPONDENT

CAST FOR COSTS OF THESE

PROCEEDINGS.

03/17/09

SUPREME COURT OF LOUISIANA

08-B-0954

IN RE: ROY A. RASPANTI

Attorney Disciplinary Proceedings

WEIMER, J.

This disciplinary matter arises from formal

charges filed by the Office of Disciplinary Counsel

(ODC) against attorney Roy A. Raspanti

(Respondent). The charges alleged, in part, that he

filed a defamation suit against a former client based

on a complaint she filed with the ODC. The ODC

asserted Respondent’s actions violated Section 12 of

Louisiana Supreme Court Rule XIX (Rule XIX),

which provides, in part, that communications to the

disciplinary board, the hearing committee, and the

ODC “shall be absolutely privileged” and that “no

lawsuit predicated thereon may be instituted against

any complainant or witness.”

Both the hearing committee and_ the

disciplinary board found Respondent’s§ conduct

violated Rules 3.1, 8.4(a), and 8.4(d) of the Rules of

Professional Conduct. Furthermore, the hearing

committee determined Respondent violated the

“spirit” of Rule XIX, § 12(A), and the disciplinary

board found his conduct was in “direct violation” of

that provision.

Because this court has never specifically

addressed the effect of Section 12(A), we docketed

the matter on our own motion in order to address the

legal issue raised herein: whether an attorney’s

violation of Rule XIX, § 12(A) can be the basis for

discipline and the imposition of sanctions. !

Respondent filed an objection in this court to the

disciplinary board’s recommendation, but the filing was not

within the time limits of Louisiana Supreme Court Rule XIX, §

11(G)(1). Ordinarily, the filing of objections in a_ bar

3a

FACTS

The following facts are undisputed and

supported by the record. Thus, if we agree with the

committee’s and the board’s resolution of the legal

issue, the ODC will have met its burden of proof by

clear and convincing evidence.

Over the years, Respondent has represented

his sister, Janine Raspanti, in various civil matters,

at the urging of his parents. In 1994, Ms. Raspanti

filed the first of several disciplinary complaints

against Respondent with the ODC; she alleged that

Respondent had engaged in unethical conduct in

representing her in two civil suits for damages. For

the most part, her complaints stemmed from

disputes between herself and Respondent concerning

the payment of legal fees. In each instance, the ODC

found no clear and convincing evidence of ethical

misconduct by Respondent and dismissed _ the

complaint. As is the right of every complainant

under the provisions of Rule XIX, Ms. Raspanti

appealed the dismissal of each of her complaints to a

hearing committee, to the disciplinary board, and to

this court. Again, in each instance, the ODC’s

decision to dismiss the complaint § against

Respondent was affirmed.

disciplinary case determines how the case is treated. In a “no

objection” matter under Rule XIX, § 11(G)(1)(a), this court may

enter an order based on the recommended disciplines with

written reasons, which may be summary in nature. By

contrast, the filing of an objection mandates that the case be

scheduled for oral argument under Rule XIX, § 11(G)(1)(b).

Despite the fact that this is technically a “no objection” case, we

chose to schedule oral argument and docket the case for a full

opinion because the issue 1s res nova with this court.

4a

Ms. Raspanti’s second complaint was filed in

1997. According to Respondent, Ms. Raspanti alleged

he had engaged in a “dishonest, fraudulent and

deceitful misrepresentation” and that he engaged in

document concealment, was “exploitive’ and

breached “his ethics.” The ODC determined that Ms.

Raspanti’s “new” complaint was meritless, did not

require a response from Respondent, and warranted

dismissal without further investigation.

Unfortunately, due to an oversight, the ODC did not

notify Respondent of the 1997 complaint.

Respondent avers he would not have undertaken a

subsequent representation of his sister in 1999 had

he known of her second complaint in 1997. During

the years, Respondent obtained judgments in favor

of his sister, but the disputes over fees continued.

Ms. Raspanti filed her third complaint with

the ODC in December of 2001. In March and April of

2002, she made five communications to the ODC, in

which she restated her continuing dissatisfaction

with Respondent. Again, the ODC responded by

dismissing her complaints.

In January 2003, Respondent filed a lawsuit

against Ms. Raspanti for breach of contract and

defamation. The third cause of action contained in

Respondent’s petition specifically asserted

defamation by Ms. Raspanti because of the

complaints she had filed against him with the ODC.

In response to the petition, Ms. Raspanti asserted

the defense of immunity pursuant to Rule XIX, §

12(A). Respondent opposed the exception, arguing

that, at a minimum, Ms. Raspanti was not immune

from liability for defamatory statements she made in

her complainant appeals filed in this court, a body

which is not specifically listed in Rule XIX, § 12(A).2

Following a mediation effort in early 2004, the

attorney for Ms. Raspanti's insurer sent a letter to

the other parties and their counsel stating, in part:

Both parties agree to execute a Release

Agreement which will prevent them

from ever. bringing any § further

disciplinary complaints or lawsuits

arising out of or in any way connected

with Roy’s representation of Janine

over the past ten years. Roy will receive

payment of $3,000.00. Janine will agree

that if she defames Roy in the future,

and he successfully prosecutes to final

judgment a claim for that defamation,

Janine will pay him, in addition to the

actual damage award, a penalty of

$15,000 plus reasonable attorney’s fees.

Thereafter, Respondent forwarded to Ms.

Raspanti’s attorneys a two-page settlement proposal

which contained the essence of the above statement.

Respondent also proposed that: “In the event that

Roy Raspanti ever obtains a final collectible

judgment against Janine M. Raspanti for libel,

slander, or defamation, for any incidents occurring

In December 2003, the trial court granted Ms

Raspanti’s motion to dismiss Respondent's defamation claims

“based on complaints to the disciplinary board, including the

appeal to:the Supreme Court.” Respondent filed a notice of

intent to seek supervisory writs from the trial court's ruling,

but it appears that the application was never filed in the court

ot appeal

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after the date of this agreement, Janine M. Raspant1

agrees to pay Roy Raspanti, in addition to the actual

damage award, an additional penalty of $15,000 plus

reasonable attorney's fees and costs.” Ms. Raspanti

did not agree to Respondent’s settlement proposal,

and Respondent's lawsuit against her remains

pending at this time.

DISCIPLINARY PROCEEDINGS

On December 19, 2006, the ODC filed one

count of formal charges against Respondent, alleging

that his conduct as set forth above violated Rule

XIX, § 12(A) as well as the following provisions of the

Rules of Professional Conduct: Rules 8.4(a) (violation

of the Rules of Professional Conduct) and 8.4(d)

(engaging in conduct prejudicial to the

administration of justice). Respondent answered

the formal charges and denied any misconduct.

Formal Hearing:

This matter proceeded to a formal hearing on

May 15, 2007. Respondent appeared at the hearing

and was represented by counsel. The committee

received documentary evidence from both

J In its recommendation to this court, the disciplinary

board noted that the ODC’'s pre-hearing memorandum also

alleged Respondent's conduct violated Rule 3.1 entitled

“Meritorious Claims and Contentions.” Respondent thereafter

filed a motion to strike allegations relative to Rule 3.1 of the

Rules of Professional Conduct. Citing Louisiana State Bar

Association v. Keys, 567 So.2d 588, 591 (La. 1990), the

hearing committee concluded fair and adequate notice of the

nature of the misconduct had been given to Respondent, and

therefore, the Rule 3.1 claim could be pursued by ODC

Respondent and the ODC. The ODC called attorney

Thomas Buck to testify in person before the hearing

committee. Mr. Buck represented Janine Raspanti

and her homeowner’s insurer 1n connection with the

defamation and breach of contract lawsuit filed

against her by Respondent.

Respondent testified on his own behalf and on

cross-examination by the ODC. In his testimony,

Respondent stated that he agreed to represent Ms.

Raspanti at the urging of their parents. According to

Respondent, Ms. Raspanti filed’ disciplinary

complaints against him whenever she did not want

to pay him his fee. He filed a lawsuit against her

because he believed he had a cause of action for

defamation. However, he amended the lawsuit to

remove the defamation cause of action based on Ms.

Raspantis disciplinary complaints and_ her

complainant appeals to the ODC, hearing

committees, and disciplinary board, but kept the

defamation cause of action based upon _ her

complainant appeals to this court. He also added the

causes of action of abuse of process and malicious

prosecution based on Goldstein v. Serio, 496 So.2d

412 (La.App. 4 Cir. 1986), writs denied, 501 So.2d

208, 209 (La. 1987), and Sommer vy. State,

Department of Transportation and

Development, 97-1929 (La.App. 4 Cir. 3/29/00), 758

S0.2d 923, writ denied, 97-1929 (10/27/00), 772 So.2d

122. Respondent also stated that he sent the

proposed settlement agreement to Mr. Buck in

response to Mr. Buck’s February 12, 2004 letter,

which summarized Mr. Buck's view of the settlement

reached during the mediation. He testified that he

did not think any of the provisions were going to be

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enforceable, but the judge and the mediator were

strongly urging the parties to come to some sort of

agreement. Therefore, he responded in good faith

with his proposed settlement agreement.

Hearing Committee Report:

After considering the evidence and testimony

presented at the hearing, the committee made the

following findings.

Respondent filed a lawsuit against Ms.

Raspanti that alleged a claim for defamation based

upon various disciplinary complaints Ms. Raspanti

had filed with the ODC and appeals to the hearing

committee and disciplinary board, which claim is

precluded by Rule XIX, § 12(A) and, therefore, is a

non-meritorious action. Mr. Buck wrote to

Respondent’s attorney, raising the issue of Rule XIX,

§ 12(A) and requesting a dismissal of the defamation

claim. Respondent amended the lawsuit but did not

remove the defamation claim entirely. The third

cause of action listed communications to the ODC

and there was no clear delineation that the cause of

action was based only on defamation in the Fifth

Circuit Court of Appeals, United States District

Court, and the Louisiana Supreme Court. On

December G, 2003, the trial court dismissed the

defamation claim. Respondent’s’ reliance on

Goldstein is misplaced because the court of appeal

based its decision on the Louisiana State Bar

Association's Articles of Incorporation, Article XV, §

13 (repealed), which does not appear to specifically

provide an absolute preclusion of suit based upon

communications to the disciplinary board as is

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contained in Rule XIX, § 12(A). Respondent’s

reliance on Sommer is also misplaced because

Sommer does not interpret Rule XIX, § 12(A).

Respondent wrote to Mr. Buck on March 9, 2004,

and proposed a settlement agreement that included

monetary penalties against Ms. Raspanti if she filed

future disciplinary complaints against him. If

executed, the agreement would have had a “chilling

effect” on the filing of such complaints in the future.

Based on these findings, the committee

determined that Respondent violated the spirit of

Rule XIX, § 12(A) and also violated Rules 3.1, 8.4(a),

and 8.4(d) of the Rules of Professional Conduct. The

committee also determined that Ms. Raspanti

suffered no direct harm. The only aggravating factor

found by the committee was Respondent’s refusal to

acknowledge the wrongful nature of the conduct.

The committee further found that Ms.

Raspanti filed at least two non-meritorious

complaints against Respondent, and Respondent

only represented her at the insistence of their

parents. The committee indicated it appreciated

Respondent’s frustration with his sister and

expressed sympathy with his plight, but stated that

“we have no choice but to recognize the violation and

recommend a sanction.” Accordingly, the committee

recommended that Respondent be _ publicly

reprimanded.

Neither Respondent nor the ODC filed an

objection to the hearing committee’s

recommendation.

10a

Disciplinary Board Recommendation:

After review, the disciplinary board

determined that the hearing committee’s factual

findings are not manifestly erroneous. The board

found Respondent’s conduct violated Rules 3.1,

8.4(a), and 8.4(d) of the Rules of Professional

Conduct. Furthermore, the board determined

Respondent engaged in conduct that was in direct

violation of Rule XIX, § 12(A).

Regarding Respondent's reliance on

Goldstein, the board noted that the Goldstein

decision was rendered prior to the promulgation of

Rule XIX, § 12(A), which became effective April 1,

1990. Regarding Respondent’s reliance on Sommer,

the board agreed with the committee that Sommer

does not address Rule XIX, § 12(A).

The board determined that Respondent

knowingly violated duties owed to the legal system

and to Ms. Raspanti. He caused harm to Ms.

Raspanti in that she was forced to defend the

defamation claims. Furthermore, Respondent’s

retaliatory action threatens to undermine the

disciplinary system. Relying on the ABA’s Standards

for Imposing Lawyer Sanctions, the board

determined that the baseline sanction is suspension.

In aggravation, the board found the following

factors: refusal to acknowledge the wrongful nature

of the conduct, lack of remorse, substantial

experience in the practice of law (since 1975), and

indifference to making restitution or minimizing the

harmful effects of the misconduct. The only

lla

mitigating factor found by the board is the absence

of a prior disciplinary record.

Considering the above, the board

recommended that Respondent be suspended for one

year with all but three months deferred. The board

further recommended that Respondent be placed on

unsupervised probation for nine months following

the active period of the suspension, subject to the

condition that any misconduct during this period

may be grounds for making the deferred suspension

executory or imposing additional discipline, as

appropriate. Finally, the board recommended that

Respondent be assessed with all costs and expenses

of these proceedings.

DISCUSSION

The United States Supreme court has

characterized attorney disciplinary proceedings as

quasi-criminal in nature. In re Ruffalo, 390 U.S.

044, 551, 88 S.Ct. 1222, 1226, 20 L.Ed. 2d 117

(1968). Rule XIX, § 18(A), states that “Id]isciplinary

proceedings are neither civil nor criminal but are sui

generis.”

Louisiana Supreme Court Rule XIX, § 12(A):

The core legal issue in this matter relates to

the interpretation and effect of Rule XIX, § 12. Rule

XIX is entitled “Rules for Lawyer Disciplinary

Enforcement;” Section 12 is entitled “Immunity” and

provides immunity from civil suits and criminal

prosecutions. Specifically, this court is called upon to

decide whether a violation of Rule XIX, § 12(A) can

be the basis for discipline and the imposition of

sanctions.

Rule XIX, § 9(a) states that it shall be ground

for discipline for a lawyer to “violate or attempt to

violate the Rules of Professional Conduct, or any

other rules of this jurisdiction regarding professional

conduct of lawyers.” Clearly, Rule XIX, § 12(A) is not

a provision of the Rules of Professional Conduct. See

Louisiana State Bar Association (LSBA) Articles of

Incorporation, Art. XVI, Rules of Professional

Conduct, Rule 1.0, et seq. Thus, the sole question

presented is whcther Rule XIX, § 12(A) is one of the

“other rules of this jurisdiction regarding

professional conduct of lawyers.”

It will be helpful to consider these provisions

in their historical perspective.

In the late 1980s, the Louisiana Supreme

Court recognized that the state bar was experiencing

an “ethics crisis.” Address by Chief Justice John A.

Dixon, Press Conference (Feb. 6, 1990), cited in The

New Louisiana Disciplinary Enforcement Rules v.

The Old Rules: A Comparison, 36 Loy. L. Rev. 433

(1990). With a significant increase in this state’s

lawyer population, the number and complexity of

complaints had increased, overburdening the then

existing disciplinary system. This court requested

that the American Bar Association (ABA) Standing

Committee on Professional Discipline’ evaluate

Louisiana’s disciplinary enforcement procedures. Id.

at 438. An ABA team came to Louisiana and

conducted the evaluation, and thereafter issued a

report, “Professional Discipline for Lawyers and

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Judges,” on the areas of Louisiana’s system that the

team concluded were in need of revision.4 After the

submission of the report in July of 1987, this court

appointed a committee to review the ABA’s findings.

Id.

However, in 1989, while the local review was

pending, the ABA adopted the Model Rules for

Lawyer Disciplinary Enforcement. This court

responded by discontinuing its own evaluation

project and adopting and promulgating the ABA’s

new model rules regarding disciplinary enforcement,

La. S. Ct. Order (Feb. 6, 1990), making Louisiana

the first state to use the new ABA Model Rules for

Lawyer Disciplinary Enforcement. Jd. at 433.

In 1990, Article XV, “Discipline and

Disbarment of Members,” of the LSBA Articles of

Incorporation was vacated and repealed. In its place,

Louisiana Supreme Court Rule XIX was reenacted®

‘ Suggestions for reform were made concerning: 1)

structure of the disciplinary system, such as separation of the

duties of the executive counsel from disciplinary duties; 2)

intake and docket procedures; 3) investigation; 4) disposition

after investigation; and 5) sanctions. The report noted an

absence of provisions for complainant appeals and for witness

immunity from criminal prosecutions and recommended the

addition of same. Although the existing bar rule, Art. XV, § 13,

provided an absolute privilege for complaints to the

disciplinary committee, but did not provide immunity from the

instigation of civil suits, the ABA team did not note that

deficiency.

£

5 Prior to the reenactment, Louisiana Supreme Court

Rule XIX provided: “All matters touching upon the discipline

and disbarment of members of the bar shall be governed by

Article XV of the Articles of Incorporation of the Lowsiana

l4a

to incorporate the “Rules for Lawyer Disciplinary

Enforcement.” The “Rules of Professional Conduct”

remained and still are in Article XVI of the LSBA

Articles of Incorporation. However, the reenacted

Rule XIX changed the disciplinary procedure and the

sanctions imposed for professional misconduct. Id. at

445. Additionally, there was a change in the

provision related to a privilege for complaints to the

disciplinary committee of the LSBA.

The previous “Privileges and Immunities”

provision, Art. XV, § 13 provided, in pertinent part:

{1] Complaints filed with the

Committee in accordance with these

rules shall be absolutely privileged

and

[2] all communications and evidence

predicated thereon’ shall not be

admissible in any court in this State in

proceedings against the person filing

such complaints.

State Bar Association, as amended, and as approved by this

court.” Ia. S. Ct. R. XTX (West 1988) (repealed 1990).

6 The rules are divided into eight categories:

1. Client-Lawyer Relationship;

2. Counselor:

. Advocate;

4. Transactions with Persons Other Than Clients;

5. Law Firms and Associations;

6. Public Service;

7. Information about Legal Services; and

8. Maintaining Integrity of the Profession.

15a

The replacement for Art. XV, § 13, Paragraph

A of Section 12, of Rule XIX entitled “Immunity,”’

states, in pertinent part:

[1] Communications to the _ board,

hearing committees, or disciplinary

counsel relating to lawyer misconduct

or disability and testimony given in the

proceedings shall be absolutely

privileged,

and

[2] no lawsuit predicated thereon may

be instituted agaist any complainant

or witness.

Obviously, both provisions create an absolute

privilege. However, Art. XV, § 13 implicitly

recognized that complainants could be sued, whereas

Rule XIX, § 12(A) prohibits such suits.

The key words in both provisions are

“absolutely privileged.” A “privilege” as it relates to

the law of libel and slander is defined as an

“exemption from liability for the speaking or

publishing of defamatory words concerning another,

based on the fact that the statement was made in

the performance of a duty, political, judicial, social,

or personal.” BLACK’S LAW DICTIONARY, 1360

(4th ed. 1968). An “absolute privilege” is defined as a

7 Immunity from criminal prosecution which had been

recommended by the ABA team was enacted in Paragraph B of

Section 12, as follows: “Upon application by disciplinary

counsel and notice to the appropriate prosecuting authority, the

court may grant immunity from criminal prosecution to a

witness in a discipline or disability proceeding.”

16a

“privilege that immunizes an actor from suit, no

matter how wrongful the action might be, and even

though it is done with an improper motive.”

BLACK’S LAW DICTIONARY, 1215 (7th ed. 1999).

Louisiana jurisprudence has consistently held that

communications made in judicial or quasi-judicial

proceedings carry an absolute privilege so that

witnesses, bound by their oaths to tell the truth, may

speak freely without fear of civil suits for damages.

Knapper v. Connick, 96-0434, p. 3 (La. 10/15/96),

681 So.2d 944, 946, citing Bienvenu v. Angelle,

254 La. 182, 223 So.2d 140 (1969), overruled on

other grounds, Gonzales v. Xerox Corporation,

320 So.2d 163 (La. 1975). This court has recognized

the difference between absolute immunity, which

defeats a suit at the outset, and qualified immunity,

which depends on circumstances and motivations

and often must be established by evidence at trial.

Knapper, 96-0434 at 6, 681 So.2d at 948.

The key words in the additional sentence of

Rule XIX, § 12(A)—and no lawsuit predicated thereon

may be instituted against any comylainant or

witness—are “instituted” and “no lawsuit.” In the

context of this legal rule, the word “instituted” is

defined as “to beyin or start; commence.” BLACK’S

LAW DICTIONARY, 801 (7th ed. 1999). The words

“no lawsuit” clearly foreclose the institution of any

lawsuit whatsoever, regardless of the cause or

causes of action pled therein. Thus, Respondent’s

argument in the instant matter that Ruic XIX, §

12(A), as applied by this court, leaves the door open

for suits for malicious prosecution and/or abuse of

process 1s untenable. It is absolutely clear that Rule

XIX, § 12(A) prohibits all lawsuits predicated on the

17a

complaint or the testimony, and, thus, provides

additional protection to complainants and witnesses

that the former rule did not provide. The policy

decision by this court to protect those who file

complaints against lawyers from retaliatory lawsuits

avoids a chilling effect upon the proper function of

the lawyer regulatory system. This provision is

consistent with the overall purpese of Rule XIX to

engender confidence by the public in Louisiana’s

lawyer regulatory system.

The ABA “Commentary” regarding the portion

of Rule 12 “Immunity” at issue in this case states, in

pertinent part:

A policy of conferring absolute

immunity ... encourages those who have

some doubt about a lawyer’s conduct to

submit the matter to the proper agency,

where it may be examined and

determined. Without immunity, some

valid complaints will not be filed. The

individual lawyer may suffer some

hardship as the result of the occasional

filing of a malicious complaint, but a

profession that wants to retain the

power to police its own members must

be prepared to make some sacrifice to

that cause.

It is unlikely that even a

malicious complaint will cause any

damage beyond some inconvenience.

The members of the agency to whom

the complaint is submitted will surely

not hold it against the lawyer, for their

l8a

very function is to separate meritorious

from undeserving complaints.

Model Rules for Lawyer Disciplinary

Enforcement, Rule 12: Immunity, Commentary (1993

ed.).

This Rule 12 Commentary explains and

confirms the absolute’ privilege accorded _ to

communications to the board, hearing committees, or

disciplinary counsel and the immunity from civil suit

accorded to complainants and witnesses.* However,

the Rule 12 Commentary does not address the issue

in this case: whether an attorney is subject to

discipline for filing suit against the complainant.

As previously stated, our decision is based on

whether Section 12(A) can be considered among

“other rules of this’ jurisdiction regarding

professional conduct of lawyers” as provided in Rule

XIX § 9(a). We find it disingenuous to assert

3 We note that although the wisdom of the rule has b 8

een questioned, the rule has been adopted in other states. For

example, the Supreme Court of New Jersey has recognized that

the strong public policy in favor of maintaining strict adherence

to the rules of discipline required the removal of any

impediment to the effective functioning of the disciplinary

system. Allowing complainants to be vulnerable to lawsuits

brought by lawyers against whom they complained would be an

undesirable impediment. Allowing such suits might eliminate

some maliciously motivated complaints, but legitimate

complaints would similarly be chilled. The public policy

considerations making unacceptable any such chilling effect is

deemed important enough to overcome well-founded arguments

against such immunity. In re Hearing on Immunity for

Ethics Complainants, 96 N.J. 669, 671-672, 477 A.2d 339,

340 (1984).

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otherwise. Admittedly, Section 12(A) does not

mention lawyers. However, the provisions specify an

absolute privilege for communications and a

prohibition of the filing of civil suits against

complainants and witnesses. Thus, the prohibition of

Section 12(A) addresses itself to lawyers, who in

most cases are the subjects of the privileged

communications and who would be the ones to

institute suits against complainants or witnesses.

Thus, we conclude Rule XIX, § 12(A) is a “rule

regarding professional conduct of lawyers” and

makes lawyers susceptible to discipline for violation

of its provisions.

Considering the facts as found by the hearing

committee and the conclusions of the board, we

agree that Respondent, by filing suit against a

complainant for defamation not only violated the

spirit of Rule XIX, § 12(A), but was in direct

violation of its prohibitions, an action that subjects

him to the disciplinary process. See Rule XIX, § 9(a).

In his defense to this court, Respondent

argues that the Rules for Lawyer Disciplinary

Enforcement cannot form the basis of misconduct or

discipline. In support of this contention Respondent

cites In re Harris, 03-0212, (La. 5/9/03), 847 So.2d

1185. In that case, the ODC filed one count of formal

[tis conceivable that a non-lawyer would be defamed in

a cammumnication by a complainant or witness in an attorney-

disciplinary proceeding. I[n which case, Section’ 12(A)

nevertheless prohibits filing a suit against complainants and

witnesses, and attorneys would be subject to discipline for filing

suit on behalf of non-lawyers. Such allegedly defamed persons

would be in violation of this rule if they filed in proper person,

but there would be no sanctions against non-lawyers

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charges alleging that respondent’s behavior in

relation to a_ previous disciplinary proceeding

(Harris I), had been in violation of a laundry list of

rules; he allegedly “engaged in conduct prejudicial to

the administration of justice in violation of Rule

8.4(d); and, in bad faith, obstructed the disciplinary

process in violation of Rules 8.l(c) and 8.4(g) and

Supreme Court Rule XIX, § 12(A).” Harris, 03-0212

at 5, 847 So.2d at 1188.

In the instant case, Respondent relies on the

following language: “[T]he board noted _ that

[Supreme Court Rule XIX, § 12(A)] does not provide

a disciplinary remedy. Accordingly, the board

declined to find that respondent violated Rule XIX, §

12(A).” Harris, 03-0212 at 14, 847 So.2d at 1193

1194. Consideration of that statement in the context

of the entirety of this court’s opinion reveals that

Respondent’s reliance is misplaced. The statement

was included in the “Disciplinary Board

Recommendation.” Although this court did not

specifically repudiate the statement by the board, it

is clear from our “Discussion,” that violation of Rule

XIX, § 12(A) played a significant part in our decision

that permanent disbarment was the proper sanction.

We stated:

Bar disciplinary matters come

within the original jurisdiction of this

court. La. Const. art. V, § 5(B).

Consequently, we act as triers of fact

and conduct an independent review of

the record to determine whether the

alleged misconduct has been proven by

Zla

The record supports a finding of

professional misconduct that is

unquestionably serious in nature.

Respondent manufactured evidence and

presented perjured testimony in an

attempt to avoid lawyer discipline, and

he threatened his former clients with

civil litigation if either of them testified

against him in _ the _ disciplinary

proceeding. By engaging in these

practices, respondent has violated the

most fundamental duty of an officer of

the court.

Having found’ evidence of

professional misconduct, the sole issue

presented for our consideration is the

appropriate sanction for respondent's

actions. ...

Respondent's conduct clearly

violated duties owed to the public, the

legal system, and the profession. In our

view, respondent's breach of ethics was

profound and directly affected the

lawyer disciplinary system and the

administration of justice. [Citations

omitted; emphasis supplied. |

Harris, 03-0212 at 15-16, 847 So.2d at 1194.

In the board’s recommendation to this court in

the instant case, the board stated:

Respondent's post-hoc rationalizations

ignore the Section 12(A) proscription

which provides that “no lawsuit

22a

predicated” upon any communications

to the board, hearing committee or

disciplinary counsel “may be

instituted against any complainant or

witness.” [Emphasis added. |]

Respondent’s defamation suit against

Ms. Raspanti based upon her

complaints to Disciplinary Counsel flies

squarely in the face of the Section 12(A)

prohibition.

Unlike Respondent, we cannot

ignore the plain terms of Section 12(A).

We believe the Supreme Court said

what it meant and meant what it said

in Section 12(A). That provision is

essential to the effective functioning of

the disciplinary process.

We agree with the board that violation of Rule

XIX § 12(A) can subject an attorney to discipline and

a finding of professional misconduct, which in turn

supports the imposition of sanctions

Rules of Professional Conduct:

We now consider whether Respondent can be

sanctioned for his actions.

Rule 8 of the Rules of Professional

Responsibility is entitled “Maintaining Integrity of

the Profession,” and its five parts run the gamut of

provisions regarding bar admissions and disciplinary

matters to a provision outlining the jurisdiction of

the disciplinary process.

23a

Rule 8.4 is entitled “Misconduct” and provides

a list of various acts that constitute professional

misconduct. Rule 8.4's definition of professional

misconduct is a corollary of Rule XTX, § 10(A), which

provides that misconduct shall] be grounds for one or

more of the sanctions listed therein. Rule 8.4

provides, in pertinent part:

It is professional misconduct for

a lawyer to:

(a) Violate or attempt to violate the

Rules of Professional Conduct,

knowingly assist or induce another to

do so, or do so through the acts of

another;

(d) Engage in conduct that is prejudicial

to the administration of justice.

We agree with the committee and the board

that Respondent’s behavior breached Rule 3.1 of the

Rules of Professional Conduct and, thus, constituted

professional misconduct pursuant to Rule 8.4(a).

Rule 3 of the Rules of Professional Conduct is

entitled “Advocate”! and sets forth the standards a

lawyer must follow when he or she assists, defends,

pleads, or prosecutes. Rule 3.1, which is the first of

i Compare with Rule 2, which is entitled “Counselor,”

and includes 10 Rule 2.1, as follows: “In representing a client, a

lawyer shall exercise independent professional judgment and

render candid advice. In rendering advice, a lawyer may refer

not only to law but to other considerations such as moral,

economic, social and political factors, that may be relevant to

the chent’s situation.” The roles of counselor and advocate

illustrate the dichotomy of a lawyer’s practice.

24a

eight parts, is entitled “Meritorious Claims and

Contentions”; it provides, in pertinent part:

A lawyer shall not bring or

defend a_ proceeding, or assert or

controvert an issue therein, unless

there is a basis in law and fact for doing

so that is not frivolous, which includes a

good faith argument for an extension,

modification or reversal of existing law.

The hearing committee and the board

concluded that Respondent’s civil suit against his

former client, which asserted a claim of defamation

arising from her complaints to the ODC, was

frivolous in nature and violated Rule 3.1. Although

Respondent’s suit was also a suit for the payment of

legal fees and contained assertions of defamatory

statements in venues other than _ disciplinary

proceedings, Rule 3.1 clearly provides that an “issue”

in a law suit must have a basis in law which is not

frivolous. As a practicing attorney Respondent is

charged with knowing the law, including the

provision of Rule XIX § 12(A) that completely bars

his filing a petition that alleges defamation by the

complainant. That provision has been in place since

1990, more than a decade before Respondent filed

his law suit.

A reasonable lawyer in Respondent’s position

would have easily concluded that his defamation

lawsuit against his former client predicated on her

complaints to the ODC was meritless. Because there

existed a clear legal bar to the filing of a suit for

defamation predicated on Ms. Raspanti’s complaints

25a

to the ODC, we agree with the committee and the

board that Respondent's suit was frivolous and

violated Rule 3.1. We are not the first state to find

that the filing of a civil suit in violation of absolute

immunity afforded complainants 1s a frivolous action

that violates Rule 3.1. See In re Spikes, 881 A.2d

1118, 1125 (D.C. 2005); for violations of similar

rules, see also, Conduct of Adams, 293 Or. 727,

739-740, 652 P.2d 787 (1982); Columbus Bar

Association v. Elsass, 86 Ohio St.3d 195, 713

N.E.2d 421 (1999).

In arguing that his suit against Ms. Raspanti

was not frivolous Respondent relies on Goldstein v.

Serio, 496 So.2d 412 (La.App. 4 Cir. 1986), and

Sommer Vv. State, Department of

Transportation and Development, 97-1929

(La.App. 4 Cir. 3/29/00), 758 So.2d 923.+!

In Goldstein, attorneys filed a _ lawsuit

against former clients after the Louisiana State Bar

Association's Committee on Professional

Responsibility dismissed the former clients’

complaints against the attorneys. The lawsuit

sought damages for defamation, malicious

prosecution, and abuse of process. The trial court

held that the complaints to the Louisiana State Bar

Association were absolutely privileged and

1} In Sommer, the court of appeal held defamatory

statements by a State employee to the United States Customs

Service about a Customs Service employee were not protected

by absolute judicial privilege because the privilege does not

protect against intentional destruction of the employee’s career.

As previously stated, the board rejected Respondent’s defense

based on Sommer because that case did not involve

disciplinary proceedings.

26a

maintained the exception of no cause of action. The

court of appeal affirmed the trial court’s ruling with

respect to the defamation claim. However, it

reversed the ruling with respect to the malicious

prosecution and abuse of process claims, finding that

absolute privilege is not an affirmative defense when

“the crux of the action is not the statements made

but the fact that a proceeding was maliciously and/or

illegally pursued.” Goldstein, 496 So ?d at 415.

In the instant case, the board noted that

Respondent’s initial petition alleged defamation, but

he subsequently added claims of abuse of process

and malicious prosecution. The board noted that the

ODC did not make an issue of these claims in its

formal charges. Nevertheless, the board rejected the

Goldstein argument, concluding that the “no

lawsuit” prohibition contained in Section 12(A) is

clearly broad enough to encompass suits for

malicious prosecution as well as abuse of process.

The board opined that in promulgating Section

12(A), this court could have concluded that providing

a complainant or witness with an _ affirmative

defense was insufficient protection since affirmative

defenses must be pleaded, LSA-C.C.P. art. 1005, and

can be waived. We agree with the board’s rejection of

Respondent’s Goldstein argument.

Respondent also cites this court’s discussion of

Goldstein in Marrogi v. Howard, 01-1106 (La.

1/15/02), 805 So.2d 1118, a case involving the

privilege of absolute immunity for witnesses in civil

litigation. In explaining Goldstein, this court

stated, “{T]he privilege applies to preserve candor in

the attorney disciplinary system, yet complaints to

Zila

the bar undertaken in malice or in abuse of process

are not worthy of such protection.” Marrogi, 01-

1106 at 13, 805 So.2d at 1127. However, as the

disciplinary board now points out, Goldstein was

decided on the basis of LSBA Articles’. of

Incorporation, art. XV, § 13, which did not contain

the “no lawsuit” clause now embodied in Section

12(A). The Marrogi opinion did not address Rule

XIX, § 12(A), and it is clearly distinguishable from a

case in the lawyer disciplinary system.

Because we have determined that

Respondent’s action in filing a civil lawsuit against a

complainant violated Rule 3.1, it follows that he

engaged in professional misconduct pursuant to Rule

8.4(a) which states, “It is professional misconduct for

a lawyer to ... violate the Rules of Professional

Conduct.”

Finally, even if we were inclined to disagree

with the hearing committee and the board

concerning their conclusions that Respondent

violated Rule 3.1 and, thus, engaged in professional

misconduct pursuant to Rule 8.4(a), we conclude that

the gravamen of the ODC’s formal charges against

Respondent lies in misconduct pursuant to Rule

8.4(d), 1t.e., conduct that is prejudicial to the

administration of justice. Filing a lawsuit based on a

cause of action which is specifically prohibited by

Rule XIX, § 12(A) has a chilling effect on complaints

against attorneys and 1s_ prejudicial to the

administration of justice within the arena of

attorney discipline.

28a

In the instant case, where suit against a

complainant was actually filed (as contrasted with a

threatened lawsuit, as in Harris, supra) and

continued (with various amendments) in violation of

Rule XIX, § 12(A), we conclude that Respondent

engaged in professional misconduct pursuant to Rule

8.4(d). Accord, In re Smith, 989 P.2d 165, 172 (Colo.

10/4/99); Spikes, supra.

Louisiana Supreme Court Rule XIX, § 10.

Sanctions:

Having found evidence of _ professional

misconduct, we now consider the sole remaining

issue, u.e., the appropriate sanction for Respondent's

actions. In determining a sanction, we are mindful

that disciplinary proceedings are designed to

maintain high standards of conduct, protect the

public, preserve the integrity of the profession, and

deter future misconduct. Louisiana State Bar

Association v. Reis, 513 So.2d 11738 (La.1987). The

discipline to be imposed depends upon the facts of

e€aci case and the seriousness of the offenses

involved, considered in light of any aggravating and

mitigating circumstances. Louisiana State Bar

Association v. Whittington, 459 So.2d 520

(La.1984).

Ru. “TX, § 10(A) provides that misconduct

Shall be ground for this court to impose, among

others, one or more of the following sanctions:

disbarment, suspension, probation, reprimand.

Rule XIX, § 10(C) provides that this court

Shall consider the following factors in imposing

29a

sanctions: 1) whether the lawyer has violated a duty

owed to a client, to the public. to the legal system, or

to the professton; 2) whether the lawyer acted

intentionally, knowingly, or negligently; 3) the

amount of the actual or potential injury caused by

the lawyer’s misconduct; and 4) the existence of any

aggravating or mitigating factors.

In the instant case, the hearing committee

recommended Respondent be reprimanded. Neither

the ODC nor the Respondent specifically objected to

this recommendation. As previously stated, the

hearing committee determined that Respondent

violated the spirit of Rule XIX, § 12(A) and also

violated Rules 3.1, 8.4(a), and 8.4(d) of the Rules of

Professional Conduct. The committee also

determined that Ms. Raspanti suffered no direct

harm; Ms. Raspanti filed at least two non-

meritorious complaints against Respondent; and

Respondent only represented her at the insistence of

their parents. The committee found Respondent’s

frustration with his sister was understandable, but

nevertheless resulted in a rule violation that called

for a sanction. The only aggravating factor found by

the committee was Respondent’s” refusal to

acknowledge the wrongful nature of his conduct. The

committee felt constrained to recognize a violation

and recommend aé_=e sanction. Accordingly, the

committee recommended that Respondent ' be

publicly reprimanded.

On the other hand, the board determined

Respondent knowingly violated duties owed to the

legal system and to Ms. Raspanti; caused harm to

Ms. Raspanti in forcing her to defend the defamation

30a

claim; and took retaliatory action that threatens to

undermine the disciplinary system.

In aggravation, the board found the following

factors: refusal to acknowledge the wrongful nature

of the conduct, lack of remorse, substantial

experience in the practice of law, and indifference to

making restitution or minimizing the harmful effects

of the misconduct. The only mitigating factor was

the absence of a prior disciplinary record.

Relying on the ABA’s Standards for Imposing

Lawyer Sanctions, the board determined that the

baseline sanction is suspension. The board

recommended that Respondent be suspended for one

year with all but three months deferred. The board

further recommended that Respondent be placed on

unsupervised probation for nine months following

the active period of the suspension, subject to the

condition that any misconduct during this period

may be ground for making the deferred suspension

executory or imposing additional discipline, as

appropriate. Finally, the board recommended that

Respondent be assessed with all costs and expenses

of these proceedings.

Our de novo review of the record in this case

convinces us that the recommendation of the hearing

committee for a public reprimand is more in line

with the nature of Respondent’s violation. Our choice

of the most lenient discipline available to us

pursuant to Rule XIX, § 10 should not be interpreted

as deprecating the importance of the rule that was

violated in the instant case. Thus, we issue the

following caveat.

3la

Considering that the facts of this case were

undisputed by Respondent and the ODC, we were

left with a single, novel issue: the interpretation and

application of Rule XIX, § 12(A). We have resolved

that issue by finding the provision accords

complainants absolute immunity from civil suits. As

the instant case illustrates, not all complainants will

be equally justified in making complaints to the

lawyer disciplinary system; yet all complainants will

have equal, absolute immunity. Granting a

complainant absolute immunity when filing a

complaint against a lawyer is a part of the

disciplinary system adopted from the ABA Model

Rules for Lawyer Disciplinary Enforcement in 1990,

which are designed to regulate attorneys and

sanction those who violate the ethical standards of

the legal profession.

Respondent has violated a clear, unambiguous

rule that has been in place for almost two decades; if

he did not know that filing suit against his former

chent alleging defamation (and later abuse of

process and malicious prosecution) was completely

prohibited, he should have known. Louisiana is not

the only state to find that violation of the absolute

immunity rule is also a violation of the Rules of

Professional Conduct prohibiting frivolous lawsuits

and interference with the administration of justice.

See Spikes, supra.

However, there are several factors’ in

mitigation of Respondent’s knowing violation. First,

we are issuing a sanction for a matter for which no

one has been sanctioned previously. There are

statements in the jurisprudence that might indicate

32a

the possibility of our arriving at an interpretation of

Rule XIX, § 12(A) contrary to the interpretation we

issue today. For example, the board in Harris,

supra, as recently as 2003, indicated Section 12(A)

did not provide a sanction; the board in the instant

case found the rule clear and unambiguous.

Second, we do not consider Respondent's lack

of remorse an aggravating factor; instead, we find he

had a principled belief he was not engaging in

inappropriate behavior. While we disagree with his

belief, we are at the same time convinced he was

sincere in his belief, thus, making any finding of a

lack of remorse inappropriate.

Third, we note he has no prior disciplinary

record during his lengthy career.

Next, although Respondent cannot avoid

discipline by relying on the fact that he was

represented by counsel in his suit against his sister,

that fact may be considered in mitigation.

Finally, as did the hearing committee, this

court recognizes that Respondent represented his

sister only because his parents urged him to do so.

Unlike the completely unprovoked threat of a civil

suit in Harris, Respondent's suit apparently was

filed in an attempt to put an end to what the ODC

determined to be baseless complaints on the part of

his former client.

Regardless of the mitigating factors listed

above, we find that Respondent in failing to refrain

from filing a civil suit violated a duty he owed to a

33a

former chent, the public, the legal system and the

profession. He acted with, at least, constructive

knowledge of a prohibition. Although he may have

caused injury to his former client because she was

called upon to defend herself, such injury was not

substantial because there was ongoing litigation

regarding a fee dispute.

Accordingly, we conclude that a_ public

reprimand issue against Respondent, and that he be

cast for costs of these proceedings

PUBLIC REPRIMAND IMPOSED;

RESPONDENT CAST FOR COSTS OF THESE

PROCEEDINGS.

34a

[ENTERED: MAY 22, 2009}

SUPREME COURT OF LOUISIANA

FOR IMMEDIATE NEWS RELEASE

NEWS RELEASE #30

FROM: CLERK OF SUPREME COURT OF

LOUISIANA

On the 22nd day of May, 2009, the following

actlons were taken by the Supreme Court of

Louisiana in the case(s) listed below:

APPLICATIONS FOR REHEARING DENIED:

2008-B -0954 IN RE: ROY A. RASPANTI

2008-C -1044

C/W JOHN KEITH RICHARD Vv

LAFAYETTE FIRE AND POLICE

CIVIL SERVICE BOARD AND

LAFAYETTE CONSOLIDATED

GOVERNMENT (Parish of Lafayette)

2008-C -—-1623 JOHNSON, J., would grant.

TRAYLOR, J., would grant.

KNOLL, J., would grant

2008-C -1159 JUDITH SANDIFER

FORMERLY KNOWN AS JUDITH

HONAKER v. THE LOUISIANA

STATE BOARD OF PRACTICAL

NURSE EXAMINERS, FILMORE P.

BORDELON, RUBY R.

35a

CHANCELLOR, ROBERTA R

CONNELLEY, GWENDOLYN M.

DUNN, SHARON K. FORE, BOBBY G

FULMER, PATRICIA S. JUNEAU,

ANN OC LAWS, REBECCA A

NELSON, ROSEMARY S

PASSANTINO, EUGENE C. _ SIT.

MARTIN, WILLIAM SONNIER, JR.,

IDOLPHUS C. TURNLEY, JR., AND

CLAIRE D. GLAVIANO (Parish of E.

Baton Rouge)

WEIMER, J., would grant.

2008-C -149] KAREN KING vy. ILLINOIS

NATIONAL INSURANCE COMPANY,

ET AL. (Parish of Webster)

KIMBALL, C.J., would grant rehearing

JOHNSON, J., would grant rehearing

2008-B -2356 IN RE: JOHN E. DEMORUELLE

VICTORY, J., would grant.

WEIMER, J., would grant

36a

FILED: MAY 5, 2009

LOUISIANA SUPREME COURT

NO. 2008-B-0954

IN RE: ROY RASPANTI

SUPPLEMENTAL MEMORANDUM IN

SUPPORT OF RESPONDENT’S APPLICATION

FOR REHEARING

/s/ Roy Raspanti

ROY RASPANTI

(La. Bar No. 11119)

110 Veterans Boulevard

Suite 360

Metairie, Louisiana 70005-4930

Telephone: (504) 835-5388

/s/ Douglas M. Schmidt __

DOUGLAS M. SCHMIDT

335 City Park Avenue

New Orleans, Louisiana 70119

Telephone: (504) 482-5711

/s/ John A. Occhipinti

JOHN A. OCCHIPINTI

(La. Bar No. 10154)

110 Veterans Boulevard - Suite 360

Metairie, Louisiana 70005-4930

Telephone: (504) 833-1230

Attorneys for Respondent,

Roy Raspanti

RULE XIX SECTION 12(A) VIOLATES THE

FIRST AMENDMENT OF THE UNITED

STATES CONSTITUTION AND ARTICLE 1

SECTION 22 OF THE LOUISIANA

CONSTITUTION AS IT CONSTITUTES A

DEPRIVATION OF A LAWYER’S RIGHT OF

ACCESS TO THE COURTS

This brief will show:

i. Louisiana Supreme Court Rule XIX

Section 12(A) violates Article 1 Section

22 of the Louisiana Constitution in that

it deprives lawyers of their right of

access to the Courts.

iY)

Rule XIX Section 12(A) violates the

First Amendment of the United States

Constitution for the same reason, U.e.,

because it deprives a lawyer of his right

of access to the Courts.

3. Only a compelling interest will justify

such a deprivation.

4. There is no compelling State interest

which will justify such an intrusion

based upon the Louisiana Supreme

Court’s ruling in Jn Re: Ivan David

Warner and Steven Joseph Rando, #05-

B-1303, Lawyer Disciplinary

Proceedings.

38a

A.

RULE XIX SECTION 12(A) VIOLATES THE FIRST

AMENDMENT OF THE UNITED STATES

CONSTITUTION AS IS CONSTITUTES A

DEPRIVATION OF A LAWYER'S RIGHT OF

ACCESS TO THE COURTS

The United States Court of Appeals for the

Fifth Circuit stated the following in Ryland uv.

Shapiro, 708 F.2d 967, 971-972 (1983):

“The Substantive Ri sht of Access to Courts:

The right of access to the courts

is basic to our system of government,

and it is well established today that it is

one of the fundamental rights protected

by the Constitution. In Chambers ov.

Baltimore & Ohio Railroad, 207 U.S.

142, 28 S.Ct. 34, 52 L.Ed. 143 (1907),

the Supreme Court characterized this

right of access in the following terms:

The right to sue and defend in

the courts is the alternative of

force. In an organized society it is

the right conservative of all other

rights, and les at the foundation

of orderly government. It is one

of the highest and most essential

privileges of citizenship, and

must be allowed by each state to

the citizens of all other states to

the precise extent that it is

39a

allowed to its own citizens.

Equality of treatment in this

respect 1s not left to depend upon

comity between the states, but is

granted and protected by the

Federal Constitution.

207 U.S. at 148, 28 S.Ct. at 35 (citations

omitted). It is clear that the Court

viewed the right of access to the courts

as one of the privileges and immunities

accorded citizens under article 4 of the

Constitution and_ the fourteenth

amendment.

In California Motor Transport

Co. v. Trucking Unlimited, 404 U.S.

508, 92 S.Ct. 609, 30 L.Ed.2d 642

(1972), the Supreme Court found in the

first amendment a second

constitutional basis for this right of

access: "Certainly the nght to petition

extends to all departments’. of

Government. The right of access to the

courts is indeed but one aspect of the

right of petition.” Jd. 92 S.Ct. at 612.

This court recognized the first

amendment right of access to the courts

in Wilson v. Thompson, 593 F.2d 1375

(5th Cir.1979), where we stated: "It is

by now well established that access to

the courts is protected by the First

Amendment right to petition for redress

of grievances." Id. at 1387. See also

40a

NAACP uv. Button, 371 U.S. 415, 83

S.Ct. 328, 336, 9 L.Ed.2d 405 (1968);

Coastal States Marketing, Inc. v. Hunt,

694 F.2d 1358, 1363 (5th Cir.1983).

A number of other courts have

also recognized that this right of access

is encompassed by the first amendment

right to petition. See McCray ov.

Maryland, 456 F.2d 1, 6 (4th Cir.1972);

Harris v. Pate, 440 F.2d 315, 317 (7th

Cir.1971); zzolato vu. Perez, 524

F.Supp. 914, 921 (E.D.La.1981); Crewe

v. Pertrosky, 509 F.Supp. 1199, 1204 n.

10 (W.D.Pa.1981).

.. .In conclusion, it is clear that,

under our Constitution, the right of

access to the courts is guaranteed and

protected from unlawful interference

and deprivations by the state, and only

compelling state interests will justify

such intrusions.” (Emphasis added)

The Fifth Circuit also pointed out that another

constitutional basis for the right of access to the

courts is found in the due process clause. See p. 972,

Rylands.

In N.A.A.C.P. v. Button, 83 S.Ct. 328, 340-341

(1983) the State of Virginia contended that it had a

subordinating interest in the regulation of the legal

profession which justified limiting the petitioner’s

First Amendment rights. Virginia argued that

N.A.A.C.P.’s activities fell “within the traditional

4la

purview of state regulation of professional conduct.”

See p. 340-341, N.A.A.C.\P.. The Supreme Court

stated:

“. . The decisions of this Court have

consistently held that only a compelling

state interest in the regulation of a

subject within the State’s constitutional

power to regulated can justify limiting

First Amendment freedoms. Thus it is

no answer to the constitutional claims

asserted by the petitioner to say, as the

Virginia Supreme Court of Appeals has

said, that the purpose of these

regulations was merely to insure high

professional standards and not to

curtail free expression. For a State may

not, under the guise of prohibiting

professional nisconduct, ignore

constitutional r shts. See Schware uv.

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

778.Ct. 752, 1 L.Ed.2d 796; Konigsberg

vu. State Bar, 353 U.S. 252. 77 S.Ct. 722.

1 L.Ed.2d 810. Cf. In re: Sawyer, 360

U.S. 622, 79 S.Ct. 1376, 3 L.Ed. 1473.

In NAACP v. Alabama ex rel. Patterson,

357 U.S. 449, 461, 78 S.Ct. 1163, 1171,

2 L.Ed.2d 1488, we said, ‘In the domain

of these indispensable liberties, whether

of speech, press, or association, the

decisions of this Court recognized that

abridgment of such rights, even though

unintended, may inevitably follow from

varied forms of governmental action.’

Later, in Bates vu. Little Rock, 361 U.S.

42a

516, 524, 80 S.Ct. 412, 4 L.Ed.2d 480,

we said, ‘[w]here there is a significant

encroachment upon personal liberty, the

State may prevail only upon showing a

subordinating interest which is

compelling.’ Most’ recently, in

Louisiana ex rel. Gremillion v. NAACP,

366 U.S. 293, 297, 81 S.Ct. 1333, 1336,

6 L.Ed.2d 301, we reaffirmed this

principle: *.. . regulatory measures .

no matter how sophisticated, cannot be

employed in purpose or in effect to

stifle, penalize, or curb the exercise of

First Amendment rights.” (Kmphasis

added) P. 341.

B.

RULE XIX SECTION 12(A) ALSO VIOLATES

ARTICLE 1 SECTION 22 OF THE LOUISIANA

CONSTITUTION

Article 1 Section 22 of the Louisiana

Constitution states:

Ҥ 22. Access to Courts

Section 22. All courts shall be open,

and every person shall have an

adequate remedy by due process of law

and justice, administered without

denial, partiality, or unreasonable

delay, for injury to him in this person,

property, reputation, or other rights.”

(Emphasis added)

43a

Also pertinent are Article 1 Section 1 and 7:

Ҥ 1. Origin and Purpose of

Government

Section 1. All government, of right,

originates with the people, is founded

on their will alone, and is instituted to

protect the rights of the individual and

for the good of the whole. Its only

legitimate ends are to secure justice for

all, preserve peace, protect the rights,

and promote the happiness and general

welfare of the people. The right

enumerated in this’ Article and

inalienable by the state and shall be

preserved inviolate by the state.”

(Emphasis added)

And

Ҥ 7. Freedom of Expression

Section 7. No law shall curtail or

restrain the freedom of speech or of the

press. Every person may speak, write,

and publish his sentiments on any

subject, but ts responsible for abuse of

that freedom.” (Emphasis added)

The Louisiana Supreme Court first addressed

this law in Kennedy v. Item Co., 34 So.2d 886, 890

(La. 1948), a case decided under the Louisiana

Constitution of 1921 but it 1s still pertinent today:

44a

“

The very foundation upon which

the law of hbel is laid is the protection

of reputation. The right to a good name

and fame is as absolute and as essential

to the ‘pursuit of happiness’ as is the

right to life and liberty, characterized in

our Declaration of Independence as

among those “inalienable rights with

which all men, being created equal, are

endowed by their Creator. A man’s

reputation is recognized to be an

invaluable, and is given the same

dignity in the Bill of Rights that

comprises Article I of our constitution,

as his right to due process of law in the

protection of his life, liberty, and

property...: freedom of religion...;

freedom of speech and of the press...;

peaceable assemblage...; and freedom

from unreasonable’ searches’ and

seizures...; for in Section 6 (present

Section 23 of the Louisiana

Constitution) of this article we find the

guaranty that ‘All courts shall be open,

and every person for injury done him in

his rights, lands, goods, person or

reputation shall have adequate remedy

by due process of law and_ justice

administered without denial, partiality

or unreasonable delay.’ Thus the

general declaration in Section = 3

(present Section 7 of the Louisiana

Constitution) of the Bull of Rights that

‘No law shall ever be passed to curtail

or restrain the liberty of speech or of

45a

the press, is not only qualified by the

clause immediately following that ‘any

person may speak, write and publish

his sentiments on all subjects, being

responsible for the abuse of that

liberty, but also by the specific

guaranty in Section 6 (present Section

22 of the Louisiana Constitution) that

the courts are open for the redress of

injury to reputation by the irresponsible

use of the right to freely express one’s

sentiments.” (Emphasis in text)

It is respectfully submitted that this

Honorable Court’s holding that a lawyer is

prohibited by Rule XIX Sec. 12(A) from filing a

lawsuit against a complainant for having filed a

malicious complaint against him - no matter how

malicious and no matter how many times it has been

done - for the purpose of defending his reputation

from such malicious attacks denies said lawyer

access to the courts in violation of the First

Amendment of the United States Constitution and

Article 1 Section 22 of the Louisiana Constitution.

Its is respectfully submitted that Rule XIX

Sec. 12(A) was promulgated by this Honorable

Court, a state entity, and directly abridges speech,

thus the protections of the First Amendment apply

to this Rule. Warner, supra, p. 11, 77. Rule XIX Sec.

12(A) also directly abridges Article 1 Section 7,

Section 1 and Section 22 of the Louisiana

Constitution.

46a

ENCOURAGING TH

IS NOT A COMPE

i FILING OF COMPLAINTS

sLING STATE INTEREST

The main reason put forth by the Office of

Disciplinary Counsel for rule XIX Sec. 12(A) is to

encourage the filing of complaints. It is respectfully

submitted that encouraging the filing of complaints

is not a compelling state interest as this Honorable

Court pointed out in Jn Re: Ivan David Warner and

Steven Joseph Rando, #05-B-1303 (4/17/09 Release

21). On page 67 of said opinion, two of the four

courts (A.M. v. Sup. Ct., 883 A2d at 378-379 and Doe

v. Doe, 127 S.W. 3d at 735) that completed an in-

depth First Amendment analysis of confidentiality

rules in the context of an attorney discipline system

explicitly held that the interest of encouraging the

filing of complaints and encouraging participants to

cooperate with disciplinary investigations did not

qualify as compelling under strict scrutiny. This

Honorable Court also pointed out that the other two

courts who completed this study (Petition of Brooks,

678 A2d at 145 and Doe v. Sup. Ct., 734 F.Supp. At

985) also held that the confidentiality rules in

question could not survive strict scrutiny on the

basis of these interests but on different grounds

As this Honorable Court pointed out on page

52 of its April 17, 2009 opinion in the Warner case

cited above:

We must approach the strict

scrutiny analysis ‘with the posture the

Supreme Court has long prescribed for

Alva

this inquiry: ‘it is the rare case in

which... a law survives strict scrutiny.”

[It is respectfully submitted, that as has been

seen above, this is not that rare case

L).

Separate and apart from the issues discussed

above, it is respectfully submitted that this

Honorable Court's opinion in Warner, supra

rendered on April 17, 2009, demonstrates another

factor in the case at bar that is in common with

Tobkin v. Jarboe, 710 So.2d 975 (Fla. 1998) cited by

respondent in his’ application for rehearing

Grievance proceedings are not confidential in Florida

and according to Warner, they are not confidential in

Louisiana either.

Finally, it is respectfully submitted,

respondent in the case at bar does not have to be

right on the law to avoid reprimand, he only has to

show that his argument was based on “principled

belief’ and good faith argument which, it is

respectfully submitted, this Honorable Court has

acknowledged, in order to demonstrate that he did

not violated 3.1 in the case at bar. And, if he did not

violate 3.1, he could not have violated 8.4a or 8.4d

because hi alleged violation of 8.4a and 8.4d 1

based on pleadings which he filed

Su

/s/ Roy Raspanti

ROY RASPANTI

(La. Bar No. 11119)

110 Veterans Boulevard

Suite 360

Metairie, Louisiana 70005-4930

Telephone: (504) 835-5388

DOUGLAS M. SCHMIDT

335 City Park Avenue

New Orleans, Louisiana 70119

Telephone: (504) 482-5711

/s/ John A. Occhipinti_

JOHN A. OCCHIPINTI

(La. Bar No. 10154)

110 Veterans Boulevard - Suite 360

Metairie, Louisiana 70005-4930

Telephone: (504) 833-1230

Attorneys for Respondent, Roy Raspanti

CERTIFICATE OF SERVICE

This is to certify that a copy of the above and

foregoing pleading has been served upon all counsel

of record, via facsimile and/or by placing a copy in

the U.S. Mail, this 5 day of May, 2009

Is/ Roy Raspanti

ROY A. RASPANTI

49a

FILED: APRIL 14, 2009

LOUISIANA SUPREME COURT

NO. 2008-B-0954

IN RE: ROY RASPANTI

RESPONSE TO OPPOSITION OF OFFICE OF

DISCIPLINARY COUNSEL TO

RESPONDENT’S APPLICATION FOR

REHEARING

/s/ Roy Raspanti

ROY RASPANTI

(La. Bar No. 11119)

110 Veterans Boulevard

Suite 360

Metairie, Louisiana 70005-4930

Telephone: (504) 835-5388

/s/ Douglas M. Schmidt _

DOUGLAS M. SCHMIDT

335 City Park Avenue

New Orleans, Louisiana 70119

Telephone: (504) 482-5711

/s/ John A. Occhipinti _

JOHN A. OCCHIPINTI

(La. Bar No. 10154)

110 Veterans Boulevard - Suite 360

Metairie, Louisiana 70005-4930

‘Telephone: (504) 833-1230

50a

Attorneys for Respondent,

Roy Raspanti

*k**

argument be “prejudicial to the administration of

justice” (Rule of Professional Conduct 8.4d)? Finally,

if making such an argument is not violative of 3.1,

how can making such an argument be violative of

8.4d? More particularly, how can an argument

whicn has

“...a basis in law and fact...that is not

frivolous, which includes a good faith

argument for an extension, modification

or reversal of existing law.” (Rule of

Professional Conduce 3.1)

possibly be “prejudicial to the administration of

justice” (Rule of Professional Conduct 8.4d)?

3.

The issue resolved by this Honorable Court by

its March 17, 2009 opinion was res nova. Page 2,

footnote 1, 3/17/09 Judgment, #08-B-0954, In Re: Roy

Raspanti. It is now the law. It 1s respectfully

submitted that by virtue of the fact that the issue

resolved herein by this Honorable Court was res

nova, it was not the law prior to March 17, 2009. As

this Honorable Court states on page 23 of its March

17, 2009 decision:

“There are statements in the

jurisprudence that might indicate the

possibility of our arriving at an

Sia

interpretation of Rule XIX Sec. 12(A)

contrary to the interpretation we issue

today. For example, the Board in

Harris, supra, as recently as 20038,

indicated Sec. 12(A) did not provide a

sanction; the Board in the instant case

found the Rule clear and unambiguous.”

It is respectfully svi mitted that sanctioning

respondent for violating the law first announced by

this Honorable Court on March 17, 2009 on this res

nova issue because of an action he took in 2003

would be, by definition, the enforcement of an ex post

facto law.

4.

Respondent is not “[expanding] the record in

these proceedings by alleging facts.” The fact that

complainant made the same complaint against

respondent in the

52a

FILED: MARCH 831, 2009

LOUISIANA SUPREME COURT

NO. 2008-B-0954

IN RE: ROY RASPANTI

APPLICATION FOR REHEARING

/s/ Roy Raspanti

ROY RASPANTI

(La. Bar No. 11119)

110 Veterans Boulevard

Suite 360

Metairie, Louisiana 70005-4930

Telephone: (504) 835-5388

/s/ Douglas M. Schmidt _

DOUGLAS M. SCHMIDT

335 City Park Avenue

New Orleans, Louisiana 70119

Telephone: (504) 482-5711

/s/ John A. Occhipinti

JOHN A. OCCHIPINTI

(La. Bar No. 10154)

110 Veterans Boulevard - Suite 360

Metairie, Louisiana 70005-4930

Teiephone: (504) 833-1230

Attorneys for Respondent,

Roy Raspanti

keke *

53a

The Spikes court referred to the “consistent

interpretation given the Rule by this court” and said

that “the case law of this court weighs entirely

against” the suit filed by Spikes in that case (Spikes

p. 1123). On the other hand, in the case at bar, this

Honorable Court has pointed out in its Opinion of

March 17, 2009 that, based upon statements in the

jurisprudence, it could have arrived at an

interpretation of Rule XIX Sec. 12(A) contrary to the

interpretation it issued on March 17, 2009 in the

case at bar. Give this fact, it is respectfully

submitted, respondent could have _ reasonah.y

concluded that there was at least a:

“...faint hope of success on the legal

merits...” and this his argument was

not “wholly lacking in substance” P.

1125, In Re: Spikes

and if that is so, then according to Spikes cited by

this Honorable Court in its March 17, 2009 Opinion,

respondent’s argument was not frivolous. (See p.

1125, Spikes, supra)

3.

Black’s Law Dictionary defines ex post

facto law as:

“A law that applies retroactively, esp. in

a way that negatively affects a person’s

rights, as by criminalizing an action

that was legal when it was committed.

Ex post facto criminal laws’ are

prohibited by the U.S. Constitution.”

54a

This Honorable Court has now, for the first

time, interpreted Rule XIX Sec. 12(A) of the Rules

for Lawyer Disciplinary Enforcement to be a Rule of

Professional Conduct (RPC). This Honorable Court

pointed out that in 1990 Art. XV of the Louisiana

State Bar Association Articles of Incorporation was

entitled “Discipline and disbarment of Members” (p.

10, 3/17/09 Opinion, emphasis added) and that prior

to its reenactmeni, Louisiana Supreme Court Rule

XTX provided:

“All matters touching upon the

discipline and disbarment of members

of the Bar shall be governed by Art. XV

of the Articles of ‘ncorporation of the

Louisiana State Bar Association, as

amended, and as approved by this

court.” Footnote 5, p. 10, 3/17/098

Opinion. (Emphasis added)

This Honorable Court also referenced Rule

XIX Sec. 9:

“It shall be a ground for discipline for a

lawyer to:

(a) violated or attempt to violate the

Rules of Professional Conduct or any

other rules of this jurisdiction regarding

professional conduct of lawyers.” P. 9,

3/17/09 Opinion.

It is respectfully submitted that reference to a

good dictionary will demonstrate that the phrase

“touching upon” and the word “regarding” (along

with the words concerning, relative to, concern,

a . —

55a

having to do with, respecting, connected with) are

basically synonymous. The key, though is that the

words “discipline” and “disbarment” are used and

the words “professional conduct” are not. It is

respectfully submitted that old Art. XV, never had

anything to do with professional conduct of lawyers.

It only “touched upon” discipline and disbarment of

members and the reenacted Rule XIX which was put

in its place also only “touches upon” or “regarded”

discipline 4nd disbarment. As this Honorable Court

stated on pages 10-11 of its March 17, 2009 Opinion:

“.,.Louisiana Supreme Court Rule XIX

was reenac‘ed to incorporate the “Rules

for Lawyer Disciplinary Enforcement.”

The “Rules of Professional Conduct”

remained and still are in Article XVI of

the LSBA Articles of Incorporation.

However, the reenacted Rule XIX

changed the disciplinary procedure and

the sanctions imposed for professional

misconduct.” (Emphasis added)

It is respectfully submitted that even if a

lawyer had researched the history of Rule XIX Sec.

iZ(A) and the old Rule XV of the Articles of

Incorporation of the Louisiana State Bar

Association, the reasonable conclusion that a

reasonable lawyer would have come to would have

been that the former Rule XV and the present Rule

XIX Sec. 12(A) “touched upon” or “regarded” only

discipline and disbarment ot members and_ not

professional conduct of members of the Louisiana

State Bar Association. Presumably, if the Louisiana

Supreme Court had meant for the old Art. XV of the

56a

Articles of Incorporation of the Louisiana State Bar

Association or the reenacted Rule XIX and, more

particularly, Rule XIX Sec. 12(A), to “touch upon” or

“regard” or relate to the Rules of Professional

Conduct it would have said so. It is respectfully

submitted that given these provisions and their

history, announcing today that Rule XIX Sec. 12(A)

is and has7 presumably always been a

“rule...regarding professional conduct of lawyers”

and punishing respondent for violation of same

would be the very definition of an ex post facto law.

Moreover, this Honorable Court’s statement that:

There are statements in the

jurisprudence that might indicate the

possibility of our arriving at an

interpretation of Rule XIX Sec. 12(A)

contrary to the interpretation we issue

today.”

would also support the conclusion that punishing

respondent for violation of Rule XIX Sec. 12(A) based

upon the interpretation first announced by this

Honorable Court in the same March 17, 2009

Opinion is, again, by definition, an ex post facto law.

Again, in Sptkes, supra, the court therein pointed to

a “consistent and unambiguous state of the law” and

“consistent decisional law” and the “consistent

interpretation given the Rule by this court” (supra).

It is respectfully submitted that the question is, now

can a Rule first interpreted here on March 17, 2009

have, by clear and convincing evidence, been violated

prior to its interpretation?

/s/ Roy Raspanti

ROY RASPANTI

(La. Bar No. 11119)

110 Veterans Boulevard

Suite 360

Metairie, Louisiana 70005-4930

Telephone: (504) 835-5388

/s/ Douglas M. Schmidt _

DOUGLAS M. SCHMIDT

335 City Park Avenue

New Orleans, Louisiana 70119

Telephone: (504) 482-5711

/s/ John A. Occhipinti

JOHN A. OCCHIPINTI

(La. Bar No. 10154)

110 Veterans Boulevard - Suite 360

Metairie, Louisiana 70005-4930

Telephone: (504) 833-1230

Attorneys for Respondent, Roy Raspanti

CERTIFICATE OF SERVICE

This is to certify that a copy of the above and

foregoing pleading has been served upon all counsel

of record, via facsimile and/or by placing a copy in

the U.S. Mail, this 31 day of March, 2009.

/s/ Roy Raspanti

ROY A. RASPANTI

58a

F:rst Amendment

Congress shall make no law _ respecting an

establishment of religion, or prohibiting the free

exercise thereof; or abridging the freedom of speech,

or of the press; or the right of the people peaceably to

assemble, and to petition the Government for a

redress of grievances.

Fifth Amendment

No person shall be held to answer for a capital, or

otherwise infamous crime, unless on presentment or

indictment of a Grand Jury, except in cases arising

in the land or naval forces, or in the Militia, when in

actual service in time of War or public danger; nor

shall any person be subject for the same offense to be

twice put in jeopardy of life or limb; nor shall be

compelled in any criminal case to be a witness

against himself, nor be deprived of life, liberty, or

property, without due process of law; nor shall

private property be taken for public use, without just

compensation

Fourteenth Amendment - Section 1

All persons born or naturalized in the United States,

and subject to the jurisdiction thereof, are citizens of

the United States and of the State wherein they

reside. No State shall make or enforce any law which

shall abridge the privileges or immunities of citizens

of the United States; nor shall any State deprive any

person of life, lberty, or property, without due

process of law; nor deny to any person within its

jurisdiction the equal protection of the laws.

59a

Lawyer Disciplinary Enforcement

Rule 19§12A

Section 12. Immunity.

A. From Civil Suits. Communications to

the board, hearing committees, or disciplinary

counsel relating to lawyer misconduct or disability

and testimony given in the proceedings shall be

absolutely privileged, and no lawsuit predicated

thereon may be instituted against any complainant

or witness. Members of the board, members of the

hearing committees, disciplinary counsel, staff,

probation monitors and monitoring lawyers

appointed pursuant to this rule or its appendices,

inventorying lawyers appointed pursuant to Section

27, members of the Ethics Advisory Committee

adopted by resolution to the House of Delegates and

approved by the Board of Governors of the Louisiana

State Bar Association on November 2, 1991 and

members of the Lawyer Advertising Advisory Service

Committee adopted by resolution to the House of

Delegates and approved by the Board of Governors of

the Louisiana State Bar Association o June 9, 1995,

shall be immune from suit for any conduct in the

course of their official duties or reasonably related to

their official duties.