Online Dispute Resolution: A Modern ADR Approach Effective Dispute Resolution in the Health Care Industry: Progress and Opportunities Mediating Family and Divorce Cases in Louisiana Casenote: Arbitration LegierCo haystack NO Mag Aug09 8/12/09 4:37 PM Page 1

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1100 Poydras Street • 34th Floor • Energy Centre • New Orleans, LA 70163 Telephone (504) 561-0020 • Facsimile (504) 561-0023 • http://www.legier.com Louisiana Bar Journal Vol. 62, No. 3 169 170 October / November 2014 ®

October / November 2014 Volume 62, Number 3

Departments Features

Editor’s Message...... 175 Online Dispute Resolution: A Modern ADR Approach President’s Message...... 176 By Paul W. Breaux...... 178 Association Actions...... 194 Practice Management...... 202 Effective Dispute Resolution in the Health Care Industry: Progress and Opportunities Lawyers Assistance...... 203 By R. Christopher Martin...... 182 Focus on Professionalism..... 204 Puzzle...... 206 Mediating Family and Divorce Cases in Louisiana By Charles N. Branton, Pamela N. Breedlove and Bobby Marzine Harges ...... 186 Discipline Reports...... 208 Recent Developments...... 212 Casenote: Arbitration By the Publications Subcommittee of the La. Center for Law and Louisiana State Bar Association’s Ethics Advisory Committee...... 190 Civic Education...... 230 Young Lawyers...... 232 Who’s Who in ADR 2014 Check out the separate supplement mailed with this issue! Judicial Notes...... 236 People...... 237 News...... 240 Classified...... 245 The Last Word...... 248 Also Inside Who’s Who Member Services...... 174 in ADR Alcohol/Drug Abuse Hotline.. 206 2014 SOLACE...... 236 Advertisers’ Index...... 247

Supplement to the Louisiana Bar Journal Volume 62, No. 3 Louisiana Bar Journal Vol. 62, No. 3 Who’s Who in ADR 2014 1

Louisiana Bar Journal Vol. 62, No. 3 171 ® Officers 2014-15 President Editorial Board Joseph L. (Larry) Shea, Jr. • (318)934-4017 Barry H. Grodsky Winfield E. Little, Jr. President-Elect   Editor (337)430-0907 Mark A. Cunningham • (504)582-8536 (504)599-8535 Secretary  Alainna R. Mire  Adrejia L. Boutte (318)449-5046 Barry H. Grodsky • (504)599-8535 (504)561-5700 Treasurer  John H. Musser V  Christopher D. Cazenave (504)523-0400 Robert A. Kutcher • (504)830-3820 (504)582-8408 Immediate Past President  Christopher K. Odinet  Scotty E. Chabert, Jr. (225)771-4900 Richard K. Leefe • (504)830-3939 (225)771-8100  Roy H. (Hal) Odom, Jr. Board of Governors 2014-15  John S. (Chip) Coulter (318)227-3762 (225)382-3183 First District  Maggie Trahan Simar David W. Leefe • (504)556-4137  Anthony M. DiLeo (337)394-6133 (504)274-0087 Patrick A. Talley, Jr. • (504)584-9220  Gail S. Stephenson Second District  Brendan P. Doherty (225)771-4900, x216 (832)255-6019 John E. (Eddie) McAuliffe, Jr. • (504)840-4909  Tyler G. Storms Third District  Stephen I. Dwyer (318)255-7805 (504)838-9090 Blake R. David • (337)233-2323  Dylan Tuggle Thriffiley Fourth District  Gerald J. (Jerry) Huffman, Jr. (504)620-3187 (504)524-8556 Shayna L. Sonnier • (337)436-1600  Edward J. Walters, Jr. Fifth District  Margaret E. Judice (225)236-3636 (337)828-1880 Michael E. Holoway • (985)871-3924  Jack K. Whitehead, Jr. C. Kevin Hayes • (225)268-2725  Robert A. Kutcher (225)303-8600 Sixth District (504)830-3820 Robert G. Levy • (318)443-7615 The Louisiana Bar Journal (ISSN 0459-8881) is published bimonthly by Seventh District the Louisiana State Bar Association, 601 St. Charles Avenue, New Orleans, Thomas M. Hayes III • (318)387-2422 Louisiana 70130. Periodicals postage paid at New Orleans, Louisiana and Eighth District additional offices. Annual subscription rate: members, $5, included in dues; Karelia R. Stewart • (318)226-6998, x 1070 nonmembers, $45 (domestic), $55 (foreign). Canada Agreement No. PM Chair, Young Lawyers Division 41450540. Return undeliverable Canadian addresses to: P.O. Box 2600, J. Lee Hoffoss, Jr. • (337)433-2053 Mississauga, ON, L4T 0A8. At-Large Members Postmaster: Send change of address to: Louisiana Bar Journal, 601 St. Julie Hayes Ferris • (504)982-9340 Charles Avenue, New Orleans, Louisiana 70130. Mickey S. deLaup • (504)828-2277 John M. Frazier • (318)226-9100 Subscriber Service: For the fastest service or questions, call Darlene M. LSU Paul M. Hebert Law Center LaBranche at (504)619-0112 or (800)421-5722, ext. 112. John M. Church • (225)578-8701 Editorial and Advertising: Tulane Law School Publication of any advertisement shall not be considered an endorsement Ronald J. Scalise, Jr. • (504)865-5958 of the product or service involved. Submissions are welcome and will be Louisiana State Law Institute considered for publication by the Editorial Board. For submission guide- Marguerite L. (Peggy) Adams • (504)556-4142 lines, go online at www.lsba.org, click on “Publications,” then “Louisiana House of Delegates Liaison Chair Bar Journal.” Copyright © by Louisiana Bar Journal. All rights reserved. Alainna R. Mire • (318)449-5046 Reproduction in whole or part without permission is prohibited. Views expressed are those of the authors only. Editorial Staff Executive Director Luminary Award 2003 Loretta Larsen, CAE National Association of Bar Executives Communications Director Communications Section Kelly Wells Ponder Excellence in Regular Publications Publications Coordinator/Managing Editor Darlene M. LaBranche International Communications Coordinator Association of Barbara D. Baldwin Business Public Relations Society ommunicators Communications Assistant C of America New Orleans Krystal Bellanger Rodriguez New Orleans Chapter Chapter Award of Advertising Booking Questions? Bronze Quill Call (504)619-0131. Award of Merit

172 October / November 2014 BUILDING ON 50 YEARS OF SERVICE TO THE LEGAL COMMUNITY. The aba retirement funds program (“the Program”) is proud to celebrate its 50th year of providing comprehensive and affordable retirement plans exclusively to the legal community. Your membership has made the Program a success. Thank You. Find out what thousands of Program member firms already know about saving for retirement.

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Louisiana Bar Journal Vol. 62, No. 3 173 ® 601 St. Charles Ave. New Orleans, La. 70130 Member Web site: www.LSBA.org (504)566-1600 (800)421-LSBA Services Fax (504)566-0930 Louisiana Hotels Programs The following hotels have agreed to corporate discount rates for For information about these LSBA programs, contact the Bar Office by calling (504)566-1600 LSBA members. Call, e-mail or check the website link for the or (800)421-LSBA. If you have questions regarding the negotiated corporate rates offered at current discounted rates. When making reservations, you must the hotels listed, contact Kayuyum Koban for assistance. identify yourself as an LSBA member.

 Alternative Dispute Resolution Program New Orleans  Client Assistance Fund  Bienville House, (800)535-9603  Continuing Legal Education Program e-mail: [email protected]  Ethics Advisory Service www.lsba.org/GoTo/BienvilleHouse

 Lawyers’ Substance Abuse Hotline • (866)354-9334  Hilton St. Charles, (504)524-8890  Legal Specialization Program  Hilton Garden Inn, (504)281-4004  Loss Prevention Counsel email: [email protected] Johanna G. Averill, Lindsey M. Ladouceur and Elizabeth LeBlanc Voss • (800)GILSBAR www.neworleansfrenchquartercbd.hgi.com SOLACE (Support of Lawyers/Legal Personnel All Concern Encouraged)  Hotel InterContinental, (877)866-9005  e-mail: [email protected]

 Hotel Monteleone, (800)535-9595 Publications e-mail: [email protected]  Louisiana Bar Journal www.lsba.org/GoTo/HotelMonteleone  Hyatt Regency New Orleans, (888)591-1234  “Bar Briefs” (online) www.hyatt.com, Corporate #95147  Louisiana Bar Today (online newsletter)  Hyatt French Quarter, (504)281-4004 email: [email protected] Online Services www.frenchquarter.hyatt.com  Louisiana Bar Today Opinion Service  Lending Library  Hyatt Place, (504)281-4004 email: [email protected]  Membership Directory  Twitter www.hyattplaceneworleansconventioncenter.com  Fastcase (free online legal research)  Facebook  JW Marriott New Orleans • www.jwmarriottneworleans.com  Law Office Management Assistance Program  Le Pavillon Hotel, (800)535-9095 • http://bit.ly/LPLSBAR  Loews New Orleans Hotel • (504)595-5370, (866)211-6411 Young Lawyers Division  Marriott Courtyard Downtown www.courtyardneworleansfrenchquarter.com  Bridging the Gap  Choose Law Mentor Program  New Orleans Marriott   Barristers for Boards www.lsba.org/GoTo/NewOrleansMarriott  Young Lawyers’ Directory  Wills for Heroes  New Orleans Marriott at the Convention Center www.lsba.org/GoTo/MarriottCC Insurance through Gilsbar  Renaissance Pere Marquette www.renaissanceperemarquette.com  Group Insurance Major Medical  The Ritz-Carlton, (800)826-8987, (504)670-2845  e-mail: [email protected]  Disability  The Roosevelt New Orleans • (504)335-3138, 1(800)WALDORF  Malpractice  Sheraton New Orleans, (504)595-6292 (800)GILSBAR • (504)529-3505 • See inside back cover e-mail: [email protected]

 Westin Canal Place, (504)553-5110 e-mail: [email protected] Car Rental Programs The Whitney Wyndham, (504)581-4222 The following car agencies have agreed to discount rates for LSBA members.   Windsor Court, (800)262-2662, (504)523-6000 e-mail: [email protected]  Avis – (800)331-1212 • Discount No. A536100  Wyndham Riverfront New Orleans, (504)524-8200  Budget Rent-a-Car – (800)527-0700 • Discount No. Z855300  Hertz – (800)654-2210 • Discount No. 277795 Baton Rouge  Courtyard Baton Rouge Acadian Thruway www.courtyardbatonrouge.com • (Corporate Code: ABA)

Other Vendors  Crowne Plaza Baton Rouge, (225)925-2244, (225)930-0100 The following vendors have agreed to discount rates for LSBA members. e-mail: [email protected]

 Hilton Baton Rouge Capitol Center, (800)955-6962, (225)344-5866  ABA Members Retirement – (800)826-8901  LexisNexis – (800)356-6548 Corporate ID #0921780 • www.lsba.org/GoTo/HiltonBRCapitol CoreVault – (866)945-2722  LawPay - (866)376-0950   Sheraton Baton Rouge, (225)378-6177  Geico - (800)368-2734  United Parcel Service – (800)325-7000 e-mail: [email protected] Lafayette * National Hotel Chains  SpringHill Suites Lafayette South at River Ranch  Holiday Inn, (800)HOLIDAY  LaQuinta Inns & Suites, (866)725-1661 www.lsba.org/GoTo/SpringHill Use ID No. 100381739 www.LQ.com Lake Charles Use corporate rate code LABAR  Best Western Richmond Suites, (337)433-5213

*Discounts not guaranteed at every hotel property within a national chain. Contact specific property to inquire about availability of LSBA Shreveport discounted rates.  Clarion Shreveport Hotel, (318)797-9900  The Remington Suite Hotel, (318)425-5000 www.remingtonsuite.com

174 October / November 2014 EDITOR’S MESSAGE

Random Thoughts

By Barry H. Grodsky aving differ- ► Bob Kutcher, the LSBA treasurer, established which would never have taken is clearly the most dapper dresser ever to place but for Bar activities. ent roles for serve in the House of Delegates or on the ► Professionalism programs in the law the Louisiana Board of Governors. schools and the upcoming mentoring pro- ► As a committee chair and LSBA gram for new admittees will pay dividends State Bar As- secretary, I have received very few com- to those just starting to practice. Those sociation (LSBA), includ- plaints but one thing is consistent: those who volunteer to help with these programs H who complain the most about the Bar do benefit as well. ing serving as secretary, the least for the Bar. ► Recently at a second-year law student editor of the Louisiana ► If you get a chance to look at the bar program at Loyola, a student told LSBA journals from other states, you will see just President Larry Shea and me that she re- Bar Journal and chair of how good our Bar Journal is. members from her 1L orientation program the Committee on the Pro- ► The decision to have additional themed that we said, “Professionalism starts today.” issues each year has generated favorable That was a good thing. fession, I frequently have feedback. More such issues are on the way. ► We still don’t promote the good work random thoughts (mostly ► If you get a chance to meet Mark of lawyers both in and away from the prac- Cunningham (president-elect) and Darrel tice of law nearly enough. Any suggestions all too often) about the Bar Papillion (president-elect designee), you or stories on this? Let me know. and the practice of law. should. These are energetic and dynamic ► Never underestimate the hard work leaders who will do a great job leading and dedication of the Bar staff. They are Probably not a lot of wit the Bar. truly the unsung heroes of this organization. and wisdom but I thought ► I’m not sure how many professional- ► The Bar’s video-conferencing system ism speeches I give each year but one speech is in place and ready to be used. Other local I would share a few. I give to young lawyers starts with “There bars such as Baton Rouge, Lafayette and ► I am overwhelmed by how many are two things I know about professionalism Shreveport have the system in place as well. judges are active in the Bar, from giving ─ it is hard to be a lawyer and I am proud If you need it, let the Bar know. CLE presentations to serving on committees to be a lawyer.” ► It’s never too late to sign up for a and participating in the law school profes- ► No matter how bad my day is I feel committee. Call or email LSBA President sionalism programs. Clearly service to the better when I get home and see my 5-and- Larry Shea. Bar does not end when the robes go on. a-half-year-old daughter Caroline. ► If you get a minute, read (or re-read) ► A significant number of past LSBA ► Usually professionalism can be the Code of Professionalism. It’s only a presidents have remained very active in the reduced to two concepts: 1) The Golden page long. Bar and have played key roles in current Bar Rule; and 2) Be humble in victory and ► It takes less effort to be professional programs. Some have become very active gracious in defeat. and courteous than it does to be disagreeable in the American Bar Association. ► It is great to see how many lawyers, and mean-spirited. ► If you have not read John Broadwell’s and not just those from Louisiana, want to ► Last year’s LSBA Annual Meeting “Thank You Letter to the Bar” (it is “The contribute to the Bar Journal. was great; next year’s might be just a little Last Word” in the August/September 2014 ► Volunteerism is the heart of successful bit better. issue), you really need to read it. This gives Bar programs. a poignant perspective on being a lawyer in More thoughts on the way! the most difficult of circumstances. ► I am amazed at how many good friends I have made and relationships I have

Louisiana Bar Journal Vol. 62, No. 3 175 President’s message

By Joseph L. (Larry) Shea, Jr. LSBA – Reaching Out Across the State

s an attorney who has prac- ticed law in Shreveport for Amore than 35 years, I am proud to be the first presi- dent from north Louisi- ana in 12 years and only one of nine presidents from Shreveport over the last 85 years. It is this background that drives one of my pri- Louisiana State Bar Association President Joseph L. (Larry) Shea, Jr., far right, attended the Sept. 17 “Celebration of the 40th Anniversary of the Legal Services Corporation” at the Shreveport Bar Center. mary initiatives of outreach The event celebrated and recognized Legal Services of North Louisiana. Attending, from left, were Judge Leon L. Emanuel III, director of Legal Services of North Louisiana; Judge C. Wendell Manning, to and inclusion of members president of the Louisiana Bar Foundation; Ben L. Politz, chair of the board of Legal Services of North Louisiana; Judge Roy S. Payne, president of the Shreveport Bar Foundation; Larry W. Pettiette, Jr., throughout the state. I want president of the Shreveport Bar Association; and Shea. to bring the Louisiana State I often joke about being from the “out- nian were correct. It is the same distance lier” province of Shreveport. One of the and it is a long way. Bar Association (LSBA) to most frequently repeated tales told among But, travel is no longer necessary to all of its members wherever Shreveport attorneys is the story of the out- participate. Advances made by the LSBA lier who requested of a New Orleans col- in the area of technology have substan- located and to bring as many league that a committee meeting be sched- tially enhanced the capabilities of the Bar of those members into active uled in Shreveport. As the story goes, the to meaningfully involve members from New Orleanian responded, “That is a long across the state. The LSBA has installed membership in the LSBA way to travel for a meeting,” to which the a video-conferencing system whereby at- outlier replied, “It is the same distance both torneys may participate in Bar meetings through participation in sec- ways.” I hear that similar tales are told in from their hometowns, at the computers in tions, committees or posi- Monroe, Ruston, Natchitoches, and even a their offices or even on a mobile device. province to the west, Lake Charles. In truth The LSBA has partnered with local bars tions of governance. and in fact, both the outlier and New Orlea- to place compatible video-conferencing

176 October / November 2014 LSBA President @LSBA_President • Aug 14 tion to clients who have been defrauded At the Southern University Law Center 1L Professionalism Orientation w/ by their lawyers; the variety of continuing Justice John Weimer & Chancellor Freddie Pitcher! legal education programs, including free seminars, being offered by the LSBA; the assistance offered by the Ethics Advisory Service to members confronted with dif- ficult legal ethics issues; the Law Practice Management Assistance Program and the Lending Library, both of which are de- signed to help lawyers improve their prac- tices and increase the quality of the legal services provided; and the LSBA Lawyer Fee Dispute Resolution Program to resolve fee disputes between attorneys and clients. LSBA members need to know that the state Bar is at the forefront of efforts to address a myriad of issues facing the le- gal profession in Louisiana, from mental health concerns within the profession to an Follow the LSBA President Joseph L. (Larry) Shea, Jr. on twitter @LSBA_President. uncertain future in legal education, from a equipment in the bar centers in Lafayette, Over the last two years, I have had shrinking legal job market to a crisis in ac- Baton Rouge and Shreveport. There is now the opportunity to visit with many LSBA cess to both criminal and civil justice, just an Outreach Committee of the Bar that members about their perceptions of the Bar to name a few. meets exclusively via video-conference and views of what the state Bar has to of- I am focused on communicating with and whose mission is to identify and devel- fer. I have been provided with suggestions our members, having gone so far as to op the means to engage more members in concerning projects that the Bar should “tweet” on occasion (something that the programs and activities of the LSBA by pursue. I have listened. One observation someone my age should seriously consider using rapidly advancing but widely avail- I have taken from all of these conversa- avoiding). I am committed to the LSBA able technology. I am hopeful that we will, tions is that the LSBA needs to do a better using every opportunity to reach out to its together, put this technology to good use. job of communicating with our members members wherever they are located and to On a similar note, and in furtherance of about all of the worthwhile and valuable connect those members with those services outreach, the state Bar has worked diligent- programs the Bar is currently supporting and programs that will be most helpful. I ly toward establishing closer relationships and undertaking. will continue to bring this message to our with the many local and specialty bars that The LSBA needs to make sure that its members all over the state so keep a look serve Louisiana. We have partnered with members know about the services it pro- out for me. local bars on many endeavors, includ- vides, including Fastcase, the free legal ing the delivery of quality CLE programs research tool offered to members; the Cli- and providing assistance to and support ent Assistance Fund, providing compensa- of many of the admirable access to jus- tice projects that have been undertaken. I hope to follow the lead of past presidents by enhancing these collaborations. As part LSBA Video Conferencing of that effort, the LSBA is planning a local bar leadership conference in January 2015 Easily join LSBA meetings & video calls with- to provide a forum for representatives from out leaving the room. Use your office computer, local bars and legal communities to discuss the common problems facing the bars and iPad, iPhone or Android device to connect with ways to address those problems, as well as others who may be on a wide range of video to share information relating to success- systems throughout the state. ful ventures and to assist in coordinating activities. The attorneys who are in a legal Now available in Lafayette, Baton Rouge and community that is just starting a local bar Shreveport bar associations! or that needs to jump-start an existing local Another benefit of membership bar will be welcome to attend the forum. from the Louisiana State Bar Association The LSBA is available to assist in any way that it can.

Louisiana Bar Journal Vol. 62, No. 3 177 A Modern ADR Approach

By Paul W. Breaux

178 October / November 2014 s technological advances and SquareTrade. eBay knew that, suggest his own.1 This back-and-forth continue to shrink the with the millions of transactions continues until the matter is resolved or world, the personal and occurring through its website, disputes an impasse is reached. In this way, the business interactions in such as billing, warranties and non- product “is a technological hybrid of Awhich we engage can lead to disputes delivery of goods were inevitable. For negotiation and mediation . . . moving with others that are geographically these one-time transactions involving the parties from a problem mode to a distant. Thus was born the field of geographically distant parties with no solution stance.”2 Online Dispute Resolution (ODR). Far real connection, SquareTrade developed from its beginnings with eBay, ODR an assisted negotiation process as its first- e-Mediation has adapted and grown into its own line of dispute resolution. The process separate field of alternative dispute is initiated when a party files an online In the event that a dispute cannot be resolution (ADR). This article will complaint form and is directed to a pull- resolved through the assisted negotiation give a brief description of the various down menu with options for the nature of process, the SquareTrade model utilized forms of ODR currently being offered the complaint. If the available options do by eBay offered assistance for a nominal and is intended to be a resource for not match the situation, the complainant fee through online mediation. Because further exploration of this brave new can fill out an open-faced box with of the relatively small amount of money world. his own description. Afterwards, the involved and parties’ geographical complainant is directed to choose from distance from each other, traditional Automated Negotiation possible solutions, with the same option face-to-face mediations were not an Platform of including his own solution in an open- option. Instead, the mediation takes place faced box. The complaint and requested through individual email communications One cannot begin a discussion solution are then sent by the system to between the mediator and the parties on ODR without starting with eBay the other party, with the request to choose in a “shuttle diplomacy” format. There several solution options available or are many advantages to this approach,

Louisiana Bar Journal Vol. 62, No. 3 179 including convenience (differences to provide a more traditional mediation prospect? in time zones, geographic locations experience with the ability to invite all of ► Have parties participated in the past and conflicting work schedules can be the participants in for a joint conference, in e-mediation? accommodated);3 access to mediators as well as conduct private caucus sessions If the answer to any one of these with experience who may not be available with each. Those invited by the mediator questions is “yes,” then e-mediation can locally; the slower pace may allow for can see and communicate with each other be seen as a suitable forum for dispute more deliberate application of mediator and the mediator through their individual resolution. In light of these factors, techniques; and text communication monitors. The AAA model works much Ebner believes that e-mediation may be may result in the balancing of power if the same way, with the difference being particularly adaptable for elder and health one of the parties is more articulate or that the parties and mediator participate care disputes. persuasive in face-to-face discussions.4 at one of AAA’s 23 regional sites. The disadvantages include the potential While AAA maintains its own roster of e-Arbitration loss of confidentiality due to all of the mediators in a service provider business communications occurring in a written model, Virtual Courthouse is open to (The following discussion is derived format; the “lack of warmth, immediacy, any mediator who chooses to sign up from Mohamed S. Abdel Wahab’s “ODR rapport and other attitudes and affects that for its services. Although mediating and E-Arbitration.”)11 make face-to-face mediation what it is;” through video-conference still lacks As noted in the discussion of and that “messages conveyed online . . . the “warmth” of face-to-face meetings, e-mediation, the advancement and are prone to misinterpretation . . . video-conferencing does reintroduce increasing use of information and and to causing deterioration of trust.”5 tone, spontaneity and visual clues into the communication technologies (ICTs) Despite these potentially negative e-mediation process. All of the services in business and everyday life has led factors, services such as Modria and discussed above, with the exception of to these technologies being used to Juripax (based in the United Kingdom AAA, propose their websites as secure bring arbitration online. In defining and purchased by Modria in April platforms for dispute case management “e-arbitration,” Wahab argues that 2014) offer this model for cases beyond purposes as well. “the sheer exchange of electronic e-commerce. Modria focuses on providing Noam Ebner, an assistant professor communications or submissions, or the resolutions services to large businesses for at the Werner Institute at Creighton simple use of teleconferencing or video- handling customer complaints, as well as University’s School of Law and a conferencing for an arbitration hearing, government entities for citizen complaints negotiation/ADR scholar, provides a would not suffice to characterize the (i.e., property valuation disputes).6 quick suitability test to see if a case is process as e-arbitration.”12 His admittedly Juripax expands the types of cases handled suitable for mediation:10 idealistic notion of “e-arbitration” would to include employment/labor, divorce/ ► Are disputants geographically mean that the proceedings would be parenting, small claims disputes, and distant from each other (common in “conducted wholly or substantially online personal injury and construction cases e-commerce) or from their preferred . . . includ[ing] filings, submissions, that are in the preparation stage.7 Both neutral? hearings, and awards being made or utilize dispute intake forms that can ► Did the dispute itself arise from an rendered online.”13 In today’s world, be used for dispute categorization and online transaction or interaction? however, e-arbitration providers fall diagnosis before getting to the mediation ► Is travel to face-to-face mediation within the former category, with an eye stage. Modria is an “institutional service impossible, cost-prohibitive or a factor toward the future ideal version. provider,” meaning that it provides its likely to rule out mediation for any other The numerous advantages to dispute resolution service by “performing reason? e-arbitration versus traditional arbitration intake of cases, collection of fees, ► Does the dispute include trans- include the speed within which the assignment to mediators from [their in- jurisdictional issues, making choice of law entire process can be conducted, its house] roster, provision of training and or court decision enforcement difficult? cost-effectiveness, its accessibility and support to neutrals, etc.”8 Juripax, on the ► Are the parties unwilling, or unable, availability, and its case management other hand, offers its dispute resolution to meet with each other face-to-face? efficiency.14 As far as disadvantages, it module to outside mediators for an ► Do scheduling issues or party became evident early in its development annual fee. preferences make it difficult or impractical that properly addressing the technical Other providers, such as Virtual for parties to convene for face-to-face challenges of confidentiality, privacy and Courthouse and the American Arbitration mediation? security concerns would be paramount Association (AAA), have added a video- ► Is a party/mediator handicapped to the acceptance of e-arbitration by its conferencing option to their services.9 or disabled in a way challenging travel eventual users. “Virtual Magistrate,” With the Virtual Courthouse model, the or convening? which launched in 1996 and conducted parties and mediator join the conference ► Are there concerns regarding the process largely through email, was not from their respective locales. Through inter-party violence or intimidation that very popular and resolved only one case. a series of clicks, the mediator is able make convening in the same room a risky

180 October / November 2014 “CyberTribunal,” another project which the relevant state law proscribes to NOTE: The dispute resolution launched the same year, utilized software the “functional equivalent” doctrine.21 providers listed in this article were a applications and encryption technologies Concerning the validity of an arbitrator’s sample of those in operation. Their for security, implemented arbitration e-signature, adequate technologies are mention is not a recommendation or rules and procedures in accords with available and need to be implemented an endorsement by the author of their those used for international commercial by the provider to “identify the signing services. arbitration, and provided transparency arbitrator, indicate the arbitrator’s and due process, all of which led to its intention in respect to the content of the FOOTNOTES resolving 100 cases before the project award, and [ensure] the reliability of the concluded in 1999.15 In the modern world arbitrator’s signature.”22 1. The description of SquareTrade’s of technology, any attorney contemplating There are several U.S.-based, automated negotiation process is an adaption of the use of e-arbitration would want to e-arbitration service providers. Modria and the description found in Orna Rabinovich-Einy’s “Technology’s Impact: The Quest for a New ensure that the provider has in place the net-Arb offer an asynchronous arbitration Paradigm for Accountability in Mediation,” 11 use of “encryption technologies, digital product whereby communication takes Harv. Negot. L. Rev. 258 (Spring 2006). signatures, firewalls and passwords place through one-way messaging. Modria 2. Id. . . . to guarantee both privacy [of the does this through its all-inclusive dispute 3. Id. at 259. 4. Noam Ebner, “E-Mediation,” Online proceedings] and authentication [of resolution module (dispute diagnosis, Dispute Resolution Theory and Practice, Chapter documents].”16 assisted negotiation, mediation, then, 17 (May 2013), www.mediate.com/pdf/ebner1.pdf. As far as the legal challenges of if necessary, arbitration), while net-Arb 5. Ebner, p. 378. e-arbitration, they include the agreement relies on email. ZipCourt follows in much 6. www.modria.com/resolution-center. 7. www.juripax.com/EN/home.php. to arbitrate itself, procedural issues and the same way, but offers the parties two 8. Ebner, p.372. awards-related challenges.17 Arbitration options: “Arbitrator’s Discretion” (where 9. www.virtualcourthouse.com; www.adr.org/ provisions are prevalent in business and the arbitrator independently reviews aaa/ShowPDF?doc=ADRSTG_002566. consumer contracts. The question arises the case and makes a decision based on 10. Ebner, p. 379. 11. Mohamed S. Abdel Wahab, “ODR and as to whether e-arbitration provisions local law), and “Baseball Arbitration” E-Arbitration,” Online Dispute Resolution Theory will be held enforceable, particularly in (where the parties each submit a proposed and Practice, Chapter 18 (May 2013), www. regards to consumer contracts (such as resolution and the arbitrator chooses mediate.com/pdf/ebner1.pdf. with credit cards or software licenses) the one he believes is best).23 Virtual 12. Wahab, p. 402. 13. Id. where the language often occurs buried Courthouse offers to arrange arbitrations 14. Wahab, p. 403. among long, tedious provisions seldom, face-to-face, via audio, video or a 15. Wahab, p. 400. if ever, read by the consumer. To alleviate combination.24 16. Wahab, p. 413. this concern, several measures can 17. Wahab, p. 403. 18. Wahab, p. 410. be implemented, including notifying Conclusion 19. Wahab, p. 414-415. consumers in enhanced size and colored 20. Wahab, p. 424. font that they are entering into an As we become increasingly comfort- 21. Id. e-agreement, requiring them to perform a 22. Wahab, p. 425. able with technology encroaching into 23. Wahab, p. 436. specific consensual act, and not allowing more aspects of our lives, our readiness 24. See www.virtualcourthouse.com/index. them to enter into the contract unless they to handle our disputes via technology will cfm/category/41/arbitration-demand.cfm. specifically agree to the e-arbitration continue to rise. From fully automated 25. Wahab, p. 420. clause.18 Regarding the issue of due negotiation platforms, to hybrids of e- process, an attorney should ensure that Paul W. Breaux is the mediation and e-arbitration, the practice chair of the Louisiana the use of technology in the arbitral of dispute resolution is following the State Bar Association’s proceedings (i.e., emails, document trend of an increasingly paperless society. Alternative Dispute uploads, audio/video conferencing, etc.) There are even hypothetical discussions Resolution Section, an is such that all participants have equal adjunct professor at in the ODR community of a time when Louisiana State University access to the appropriate and necessary e-arbitration is fully automated to a point Paul M. Hebert Law information in order to present their where a final decision will be made Center teaching the Civil evidence, counterclaims, etc. on equal without human intervention by a com- Mediation Clinic, and the grounds.19 Finally, regarding arbitral owner of Peacemakers puter equipped with artificial intelligence Mediation Service, L.L.C., in Baton Rouge. Research awards, the question arises as to whether (AI)!25 While much work still needs to be assistance for the article was provided by Savannah one that is “e-written and e-signed done to bring ODR into mainstream use, Steele, a 2014 graduate of LSU Paul M. Hebert . . . considered an original?”20 The its convenience and cost-effectiveness Law Center. ([email protected]; paul.breaux@ writing requirement is satisfied where law.lsu.edu; 16643 S. Fulwar Skipwith Rd., Baton makes ODR a permanent fixture in the Rouge, LA 70810) the e-document provides “a functional future of alternative dispute resolution. equivalent of a paper document” and

Louisiana Bar Journal Vol. 62, No. 3 181 By R. Christopher Martin

182 October / November 2014 All great changes are preceded by chaos. —Deepak Chopra

ardly a week passes without research revealed a dramatic decline in consequences. Such concerns can, and a news story about changes arbitration usage, except in the consumer will, lead to more systematic, strategic in our health care system. area. Mediation and other interest-based approaches to conflict resolution and more Nationally, the Patient options have replaced arbitration, with creative, collaborative dispute resolution ProtectionH and Affordable Care Act, mediation usage rising in almost every processes.4 also known as PPACA, the “Affordable type of dispute covered. Concerns about Institutions and individuals have Care Act” or “Obamacare,” is being arbitration include the difficulty of five different styles for managing/ implemented, yet still faces legal appealing rulings; concern that arbitrators responding to conflict. They are challenges.1 Changes in payment systems may not follow the law; the perception avoidance, accommodating, competing, that reward quality rather than the volume that arbitrators tend to compromise; the compromising and collaborating.5 The of services delivered are spurring new lack of confidence in neutrals; and the Fortune 1000 study suggests a gradual business models that are blurring the high costs. Arbitration has “become too movement away from conflict avoidance lines between providers and insurers. To much like litigation,” whereas mediation to a culture of more compromising and, illustrate, consider the clear trend toward has the advantages of privacy, informality, hopefully, ultimately to collaboration. more direct hospital employment of flexibility and, above all, control. Other Collaborating with and among health physicians and other forms of hospital- dispute resolution options increased such care providers takes open, honest and physician integration such as clinical as fact finding, early neutral evaluation, respectful communication. It takes more integration, bundled payments and early case assessment and in-house time and energy and enhanced listening accountable care organizations. Similarly, grievance programs for non-union skills. However, for caregivers, fear Louisiana has just completed a massive employees. One clear trend was away of retaliation and lack of support by transition of its charity care system to from hardball litigation towards more organizational leaders create mistrust and various public-private partnerships. creative alternatives. can actually create more conflict. Couple these tectonic changes in the Health care is a diverse and complex Recognizing the need for stronger landscape with increased funding for industry with an imbalance of power, leadership that stresses a collaborative fraud enforcement activity at the federal knowledge and interests among the approach and more effective level and you have a perfect storm various stakeholders, including hospitals communication and conflict management, of change that will produce new and (and other in-patient facilities such as the Joint Commission, which accredits different types of disputes.2 This article skilled nursing facilities and long-term and certifies more than 20,500 U.S. health will briefly explore the current state of acute care facilities), physicians, nurses care organizations and programs, took dispute resolution nationally, discuss a (and other mid-level providers), insurers action. In 2009, it required that health few programs that are working in hospitals and patients. Those working in hospitals, care organizations establish policies and elsewhere, and describe some effective for example, participate in the ultimate procedures for regular communication dispute resolution approaches currently team sport and encounter a number among leaders on issues of quality and used in the health care arena. of interprofessional relationships and safety (Standard L.D.02.03.01); conflict In 2011, researchers returned to the dynamics and complex communication management among leadership groups Fortune 1000 (including several large skills and challenges. Health care providers (Standard LD.02.04.01); a system for for-profit health systems and insurers) to (and leaders) are concerned about patient resolving conflicts among individuals conduct a follow-up survey (from 1997) safety and privacy; preservation of working in the hospital (Standard to gain more recent information regarding ongoing relationships and reputations; the LD.01.03.01, EP7); and in regard to the use of alternative dispute resolution adverse impact of personal distractions; disruptive behavior, “a process for (ADR) and explore how ADR practices an aversion to public controversy; and managing disruptive and inappropriate had changed over the last 15 years.3 The the overall stress of daily life and death behavior” (Standard LD.03.01.01.).6

Louisiana Bar Journal Vol. 62, No. 3 183 Despite these requirements, it seems by at least 70 percent. Interestingly, the conduct or quality of care concerns that hospitals still generally rely on ad hospitals have waived almost $6 million are some instances that can trigger hoc approaches to resolving conflict in hospital and professional fees where peer review. These disputes are very and their use of ADR is still tactical and care was found to be substandard or personal, stressful and can carry dire reactive rather than proactive, systematic unreasonable. consequences for the physician such as and strategic. However, this creates Another area gaining traction is the practice restrictions, summary suspension opportunity for lawyers who represent growing trend of apologizing for medical and/or termination of hospital privileges. health care clients to learn more about errors. The data suggests that, as apologies The physician is entitled to a peer-review conflict resolution processes such as increase, civil actions and financial hearing, but such hearings can be very coaching, collaborative law, third-party recoveries by patients decrease.10 At least expensive, disruptive and stressful. In facilitation and even formal mediation seven states (Nevada, Florida, New Jersey, contrast, Texas, for example, allows a training.7 With such enhanced skills, Pennsylvania, Oregon, Vermont and physician to request mediation, a less lawyers can help this industry make the California) mandate written disclosure expensive venue to explore resolution.13 full transition to a culture of collaboration. of unanticipated outcomes to patients. In If Louisiana had such a detour, it could There are some effective dispute order to encourage these disclosures, these save time, money and a lot of workplace resolution programs used in other parts of states prohibit communications about the stress and trauma. the country that could be adopted for use errors from being admitted as evidence In health care, hybrids of mediation, in Louisiana. In the medical malpractice of liability for the disclosed event. Some especially more facilitative, interest-based and medical error arena, one success story states, such as Pennsylvania, require approaches, are being used, especially in is the University of Michigan Health written disclosure of serious events to clinical settings where conflict is more System (UMHS) which implemented an patients within seven days of occurrence about values, relationships, patient safety early disclosure and offer of compensation or discovery and such notification made and staff workloads than about money. program more than 10 years ago. It pursuant to the statute does not constitute These approaches offer a collaborative, represents a radical departure from the “acknowledgement or admission of interest-based, rather than a rights-based, traditional “deny and defend” paradigm.8 liability.”11 approach, where the mediator keeps the UMHS promotes patient safety through Louisiana does not go that far. La R.S. parties together, is comfortable with honesty, transparency and accountability 13:3715.5 makes a distinction between a emotional conversations, and encourages with a stated goal of becoming the safest statement of sympathy and an admission active participation of all parties. hospital system in the nation. At UMHS, of fault. Apologies are protected, but not Elder mediation focuses on conflicts if a patient is injured due to inappropriate the accompanying acknowledgments of that arise in the context of issues related care, its policy is to offer patients a prompt fault. So “I am sorry that you are hurt” is to the aging process such as housing apology and fair compensation. However, protected, but not “I am sorry that I hurt and living arrangements, finances and if the adverse outcome is not the result you.” One commentator has argued that if insurance, guardianship, health care and of inadequate care, the hospital generally these apology statutes are truly designed to end-of-life planning and decision making. refuses to settle regardless of the cost or foster more open communication between In elder mediation, the mediator meets expediency. New claims have decreased patients and providers and encourage with the family members and advocates from 2.1 claims per 100,000 patients per providers to apologize to patients for for mutual respect and understanding to month to roughly .75 claims. The average medical errors, then legislation should promote problem solving. Elder mediators time from claim to resolution has dropped provide broader protection of physician’s are specially trained to understand the from 1.3 years to nine months. Costs and statements. “Legislating a physician’s effects of aging on individuals and legal fees have decreased as well. syntax seems counterintuitive to the families.14 Similarly, the “Seven Pillars” process overall goal of open communications.”12 Bioethics mediation is used to adopted by the University of Illinois In Louisiana, traditional litigation ameliorate conflict with difficult end-of- Medical Center in Chicago in 2006 focused-evaluative mediation is being life choices, such as continuing care versus spread to 10 Chicago area hospitals as a used to mediate medical malpractice withholding life-sustaining treatment. demonstration project in 2010.9 The seven claims, business disputes and personal The mediator, a hospital employee or an elements are reporting; investigation; injury claims, but mediation is not outside neutral, consults with the medical communication; apology with resolution; available statutorily in medical peer team to better understand the medical process and performance improvement; review. In health care, peer review is a situation. The mediator then meets with data tracking and analysis; and education. self-policing system where physicians the patient’s family and the medical Settlement time for malpractice cases monitor the appropriateness of patient team and coaches each how to talk and has reduced from five years to one care delivered by their fellow physicians. listen to one another in more productive year. Litigation costs have decreased Reported disruptive conduct, impaired ways; clarifies misconceptions; provides

184 October / November 2014 medical data; defuses deeply held values in the right setting.18 10. Chris Stern Hyman, “Mediation and Medical Malpractice: Why Plaintiffs, Hospitals and emotions; and identifies common and Physicians Should Be at The Table,” Dispute interests towards finding a common FOOTNOTES Resolution Journal, August/October 2011. solution.15 11. Nicole Saitta, MA, and Samuel D. Hodge, Jr., Another hybrid is physician co- 1. Halbig v. Burwell, No. 14-5018, Slip Opinion JD, “Efficacy of a Physician’s Words of Empathy: (D.C. Cir. July 22, 2014); King v. Burwell, No. 14- An Overview of State Apology Laws,” Journal Am. mediation. When a dispute involves 1158, Slip Opinion (4 Cir. July 22, 2014). Osteopath Association 2012, 112(5)302-306; D. exclusion of a physician from a network 2. Press release by Dept. of Health & Human Wojcieszak, J. Banja, C. Houck, “The Sorry Works! Coalition: Making the Case for Full Disclosure,” or involves a quality of care issue, it might Services, Feb. 26, 2014; for every $1 spent on health care fraud and abuse investigations in last three JC Journal on Quality and Pt. Safety 2006:(32) be advantageous to use an experienced years, the recovery/return on investment is $8.10. (6):344-350. health care attorney/mediator and a 3. See Thomas J. Stipanowich and J. Ryan 12. Robert B. Gibson and Laura A. Del Vecchio, “Effects of ‘Full Disclosure’ on Litigation,” For the physician with a particular background Lamare, “Living with ADR: Evolving Perceptions and Use of Mediation, Arbitration and Conflict Defense Magazine, November 2006 (41-47, 64). and experience in the specific issues. Management in Fortune 1,000 Corporations,” 19 13. Texas Health and Safety Code Section Such co-mediation may add credibility Harv. Negot. L. Rev. 1 (2014) and Pepperdine 241.101(d). University and Legal Studies Research Paper No. 14. Sally Abrahms, “Oh, Brother! With to the process especially if the disputants 2013-16; J. Ryan Lamare, “The Evolution of ADR Parent Aging, Squabbling Siblings Turn to Elder are physicians. Sometimes physicians Systems at Large U.S. Corporations,” Dispute Mediation,” AARP Bulletin, Sept. 20, 2010, online prefer to listen and/or talk to physicians Resolution Magazine, ABA Section on Dispute at: www.aarp.org/relationships/family/info-09- Resolution, Vol. 20, No. 1. 2010/elder_mediation.print.html; “What is Elder rather than attorneys. Obviously the co- 4. Marti G. O’Hare, “A Case-Study for Effective Mediation?,” online at www.acrelder.org/what-is- mediators must work well together with Conflict Management in the Healthcare Workplace: elder-mediation/. Lessons from Babb v. Centre Community Hospital,” 15. Autumn Fiester, PhD, “Bioethics Mediation the appropriate skill set to be effective & The End of Clinical Ethics As We Know It,” 16 AHLA Labor and Employment Practice Group co-mediators. Publication, Vol.12, issue 3, Dec. 2013; Haavi Cardozo J. of Conflict Resolution, Vol. 15:501- Finally, other traditional techniques Morreim, “Malpractice, Mediation and Moral 513(2014); Ellen L. Waldman, “Bioethics Mediation at the End of Life: Opportunities and Limitations,” such as early neutral evaluation and early Hazard: The Virtue of Dodging the Data Bank,” 27 Ohio St. J. on Disp. Res. 109 (2012); Pam Marshall, Cardozo J. of Conflict Resolution, Vol. 15:449-471 case management can be used in the initial RN, LLB, LLM (ADR) and Rob Robson, MDCM, (2014). stages of litigation before parties have FRCP(C), “Conflict Resolution in Healthcare: An 16. Michael D. Roth and Dr. Leonard M. Overview,” Interaction, Vol. 16, No. 1/2 (2003); Fromer, “Identifying and Resolving Disputes in New incurred the cost of extensive discovery. Gary A. Balcerzak, MS, and Kathryn K. Leonardt, Accountable Care Settings,” AHLA Connections In early neutral evaluation, a neutral MD, MPH, “Alternative Dispute Resolution and Magazine, Dec. 2013, Vol. 17, Issue 12. evaluator conducts a confidential session Healthcare: A Prescription for Increasing Disclosure 17. CPR Early Case Assessment “ECA” Toolkit and Improving the Patient Safety,” Patient Safety (2010), accessed at www.cpradr.org. to hear both sides of the case and offers and Quality Healthcare, July/August 2008; Dale C. 18. For services, there are at least three a non-binding assessment of the case. Hetzler, Deanne R. Messina and Kimberly J. Smith, organizations (JAMS, American Arbitration Association and the American Health Lawyers The neutral evaluator also may help with “Conflict Management in Hospital Systems: Not Just for Leadership,” 5 Am. J. Mediation 65 (2011). Association) that offer health care specialized case planning by clarifying arguments 5. Antoine Hymer, MS, RN, “Conflict panels of mediators, arbitrators and peer review and issues. Early case assessment uses Resolution,” Journal of Nursing online at hearing officers. different approaches aimed at effectively http://rnjournal.com/journal-of-nursing/conflict- resolution, last accessed on Aug. 10, 2014. R. Christopher (Chris) managing the conflict by actively and 6. The Joint Commission: 2011 Comprehensive Martin is a special partner systematically analyzing various aspects Accreditation Manual for Hospitals: The Official in the Health Care Practice of a case and developing appropriate Handbook. Group of Chaffe McCall, 7. Charity Scott and Debra Gerardi, “A Strategic L.L.P., in New Orleans. 17 strategies consistent with business goals. Approach to Managing Conflicts in Hospitals: Prior to joining the firm, Responding to the Joint Commission Leadership he served as in-house Standards, Parts 1 and 2,” 37 Joint Commission J. counsel at Ochsner Health Conclusion Qual and Patient Safety, 59-79 (2011); Jean Reister System from 2004-12. His Conrad and Jeanne F. Franklin, “Addressing the Art practice focuses on general of Conflict Management in Healthcare Systems,” In conclusion, as the quote from 16(3) Dispute Resolution Magazine 15 (2010); health care regulatory, Deepak Chopra suggests, health care is Haavi Morreim, “Conflict Resolution in Healthcare,” compliance and transactional work, and dispute in a chaotic time. However, out of such AHLA Connections Magazine, January 2014, pages resolution. He has personally conducted more than 28-32. E.H. Morreim, “In-House Conflict Resolution 1,200 mediations, a dozen arbitrations, chaired chaos comes opportunity, as lawyers, to Process: Health Lawyers As Problem Solvers,” (Feb. numerous medical-review panels, and acted as do our part to contribute to a culture of 1, 2014), The Health Lawyer 2014: 25(3):10-14. a peer review hearing officer. He is a member of collaboration. There are some innovative 8. Richard Boothman, JD, and Margo M. Hoyler, the Louisiana Hospital Association, the Society “The University of Michigan’s Early Disclosure and programs around the country that of Hospital Attorneys, the Health Law Sections of Offer Program,” Bulletin of American College of the Louisiana State Bar Association and the New Louisiana could adapt to the local needs of Surgery, AM. Coll. Surg. 2013 March, 98(3):21-25. Orleans Bar Association, and is a vice chair of the 9. T.B. McDonald, L.A. Helmchen, K.M. Smith, American Health Lawyers Association Alternative our communities. As health care disputes et al., “Responding to patient safety incidents: The increase, hybrids of mediation and other “seven pillars,” Qual. Saf. Health Care, published Dispute Resolution Affinity Group. (martin@chaffe. processes will evolve to address them online March 2010; Andis Robeznieks, “Full com; Ste. 2300, 1100 Poydras St., New Orleans, disclosure first, Alternative med-mal approaches LA 70163) with the overall goal of ensuring that we show promise,” Modern Healthcare Magazine, all receive the right care, at the right time, posted Feb. 2, 2013.

LouisianaLouisiana BarBar JournalJournal Vol.Vol. 62,62, No.No. 33 185185 Mediating Family and Divorce Cases in Louisiana

By Charles N. Branton, Pamela N. Breedlove and Bobby Marzine Harges

186 October October / November / November 2014 2014 ediation has become Court-Ordered Mediation However, many mediators, particularly a popular tool for attorney mediators, welcome attorney resolving child custody Courts have been authorized to order participation during and/or after and visitation disputes in mediation in custody and visitation mediation conferences. If the attorneys Louisiana.M The mediation of these types proceedings since 1984.5 Three decades are present and participate in the of disputes reduces conflict between later, mediation in these proceedings is mediation, any agreement reached will parents and helps them to communicate slowly becoming accepted by the courts, be an enforceable agreement. If the more effectively when they are resolving lawyers and litigants.6 Empirical studies attorneys do not participate, they still disputes and when their disputes are showing that mediation is effective need to review any agreement reached, end.1 Mediation allows divorcing or and results in settlement of some or advise their client whether to finalize separating parents to resolve personal all of the issues in family law matters the agreement, draft the judgment, and and complex issues in private, outside between 40-80 percent of the time.7 present same to the court. the courtroom environment, without Judges can order mediation of Surveys show that lawyers have the presence of outsiders who have no custody and visitation matters upon the found participating in mediation interest in the dispute.2 When compared motion of either party or on the court’s “increases efficiency, decreases to litigation, which can be a costly own motion.8 Unlike in civil cases, communication problems, enhances endeavor for the parents, the mediation mediation can be ordered even if a client involvement and understanding of child custody and visitation disputes party objects. If the parties do not agree of the process, increases information saves the parties considerable time and upon a mediator, then the court has the for attorneys, and dignifies the divorce money.3 authority to appoint any mediator on the process for many clients. Unlike many Because a large number of litigants Louisiana State Bar Association ADR of the theoretical models of negotiation, in family courts in Louisiana are not Section’s Child Custody and Visitation actual negotiations over divorce cases represented by attorneys, family court Mediator Registry.9 are discontinuous and fragmented. judges, who are allowed to order the If an agreement is reached during the By gathering everyone together at the parties to mediation under La. R.S. mediation, the mediator drafts a written, same place and time to give sustained 9:332, should always consider whether signed and dated agreement, commonly attention to settlement, the ‘months it is appropriate to order mediation referred to as a Memorandum of [or more] of diddling back and forth — even if neither party has requested Understanding. A consent judgment between lawyers’ can be diminished.”11 it. Even when parties have excellent incorporating the agreement is later In family law cases, clients often just attorneys, mediation is often proper submitted to the court for approval.10 want an objective person to listen to in domestic cases considering the When at least one of the parties is what they have to say before they overcrowding of dockets, the length represented, the party’s attorney can rationally consider resolutions of time between court dates, and the drafts this judgment. When the parties recommended by their own attorneys. emotional issues involved in family law are unrepresented, the parties are Lawyer participation in mediation matters. responsible for drafting the judgment. can help clients actually understand Additionally, family mediators, who Some legal aid offices and clerks of the relevant law and procedures and are qualified to mediate these cases court have forms that parties can use to help them accept that things which are under La. R.S. 9:334, have an ethical prepare orders adopting the agreement important to them mean little to the duty to be impartial and to advise each of reached as a judgment of the court. judge who will make a decision if the the parties participating in the mediation Some mediators provide these forms parties do not reach an agreement. No to obtain review by an attorney of any to unrepresented parties to prepare and matter how many times a lawyer may agreement reached as a result of the file. Some judges in north Louisiana tell a client something, it sometimes mediation prior to signing such an allow mediators to present agreements sinks in when the client hears it from agreement.4 While having a duty to be reached before them to the court when another person. impartial, the family mediator cannot the parties are not represented. Mediation in family law cases is serve as a lawyer for the unrepresented Court-ordered mediation is also becoming the standard nationwide litigants or ensure that the unrepresented appropriate and should be ordered as more states mandate mediation — litigants have enough information to in cases even when both parties are either in all cases or upon motion of make an informed decision. Moreover, represented by counsel. In the past, the parties. Court-ordered mediation because mediation is often effective in lawyers have been hesitant to request provides an opportunity for the parties high-conflict cases, family court judges mediation in family law cases for to resolve their differences in private should consider the use of mediation in multiple reasons, including the fear and to address the everyday issues that these cases. of removing them from the equation. the court system does not have time

LouisianaLouisiana BarBar JournalJournal Vol.Vol. 62,62, No. 3 187 to consider, provides parties with an of law in Louisiana.15 parents who cannot agree on custody and ownership in the agreement instead of What about when both parties to a visitation issues. Mediating custody and having it dictated to them, and gives child custody or visitation mediation visitation cases that are highly conflicted lawyers a better chance at helping their are unrepresented and cannot or will not in nature is rarely considered by Louisiana clients be satisfied with the outcome. obtain legal counsel? Should the mediator courts. Too often, the attorneys and the then provide legal advice to the parties courts default to the process that they know The Ethics of Mediating so that the parties do not miss important — litigation. While mediating high-conflict with Pro Se Litigants legal issues and arrive at an unfair and cases may sound oxymoronic, it can be unbalanced agreement? The answer is still effective. The future of family court issues There is no code of ethics for mediators no. The mediator has no duty to ensure that involving custody and visitation involves in child support and visitation cases in an agreement is fair. If the parties arrive mediation, not litigation. Louisiana. However, ethical issues arise at a child custody or visitation mediation Courts are burdened with more divorce when a mediator mediates with one without lawyers, it is not the responsibility cases involving conflicted issues of or more pro se litigants. How does the of the mediator to fill in the void left by the custody and visitation. The caseload of mediator address the many legal issues absence of attorneys. Even if the mediator conflicted cases grows larger every year. that arise in mediations? How does the can sympathize with the parties’ need for In 1980, a study revealed that almost 30 mediator ensure that pro se litigants legal counsel and feels the need to offer percent of divorcing parents with children legal advice, the mediator must not assume continued to have serious conflicts three to have enough information to make an 18 informed decision? These questions are the additional responsibility of being a legal five years after the divorce was rendered. easily answered when one realizes that advisor. A highly conflicted case consumes a the primary responsibility of a mediator is What if the mediator mediates in a great deal of the court’s time. Professionals to be a neutral third-party facilitator who district where most of the litigants in family who may be appointed by the court to does not give legal advice. mediations are unrepresented and have assist with the processing of custody critical needs for legal services? How should and visitation cases include parenting While many child custody mediators 19 12 the mediator respond to these litigants? coordinators and mental health experts, are attorneys, mediators are not serving 20 as attorneys when they are mediating. The fact that litigants in family mediations such as custody evaluators. Appointment Thus, the duty of the mediator is not to give need the advice of lawyers does not place of these experts is often considered by legal advice. While it is appropriate for the the burden on the mediator. The burden the court because the parents cannot mediator to provide legal information, it is of providing legal services in Louisiana stop fighting with each other. Utilizing not appropriate for the mediator to give legal is the responsibility of others, not that of these experts is not only expensive for advice. For example, a mediator can provide the mediator. the parties, but their involvement also information such as the fact that Louisiana is Statutorily, in Louisiana, the duties of a can lengthen the litigation process and, a community property state, but the mediator child custody and visitation mediator are in doing so, create more and increasing cannot advise the parties about specific to develop and execute an agreement to conflict between the parents. Often, when property in issue being community property mediate which identifies the issues to be a court appoints a mental health expert, or separate property. The former would be resolved, which affirms the parties’ intent to that expert is sometimes perceived as a mediate, and the circumstances under which threat by one or both of the parties. providing legal information and the latter 16 would be providing legal advice. Rule 2.4 the mediation may terminate. The mediator Attorneys often reject the idea of of the Louisiana Rules of Professional also has a duty to advise each of the parties mediating a high-conflict case. The Conduct states that a lawyer serving as a participating in the mediation to obtain reasons mediation is not more utilized mediator shall inform unrepresented parties review by an attorney of any agreement in contested custody and visitation cases reached as a result of the mediation prior vary. Sometimes, the attorneys and the that the lawyer is not representing them and 17 that, when a party does not understand that to signing such an agreement. While the courts are unfamiliar with mediation. role, the lawyer-mediator should explain mediator can explain procedurally what There also exists a mindset among some the difference between the lawyer’s role will happen before, during and after the lawyers and judges that mediation is not as a mediator and a lawyer’s role as one mediation process, the mediation process, suitable in these types of cases. Mediation who represents a client.13 Because a lawyer legal terms or procedures, ethically, the of highly conflicted cases may take several who is serving as a mediator is acting as a mediator cannot offer legal advice to the sessions; however, it can be far more third-party neutral and is not representing parties. effective and less expensive to the parties a client,14 the lawyer should not give than litigation. Moreover, the mediation legal advice. When non-lawyers serve as The Mediation of High- of these cases can assist the courts who mediators in Louisiana, they also should Conflict Cases are laboring under an ever-increasing not give legal advice because they may caseload of conflicted cases. violate La. R.S. 37:212 and 37:213, the The most emotional and highly contested The court has its own ideas of what laws regulating the unauthorized practice disputes in courts today often involve is best for children. This opinion is often based upon the judge’s life experiences

188 October / November 2014 as a parent, child, son or daughter. In Conclusion ness in Divorce Mediation,” 79 Minn. L. Rev. 1317 determining what is in the best interest (1995). 12. Under La. R.S. 9:334, lawyers, psychiatrists, of the children, the court may defer to a Mediation is a proven means of psychologists, social workers, marriage and family mental health expert who has met with alternative dispute resolution. As the counselors, professional counselors, clergymen and the parents and the children for several courts see an increasing number of self- other professions who receive the requisite training hours over several sessions. However, the can serve as child custody mediators in Louisiana. represented or pro se litigants and more 13. Rule 2.4 of the Louisiana Rules of Profes- court can never know all that has happened cases involving highly conflicted parties sional Conduct. between the parents and the children. Yet, and/or attorneys, mediation is a tool that 14. Id. the court must make its most important the courts should implement on a more 15. La. R.S. 37:213 prohibits anyone from ren- decision, i.e., which parent becomes the dering or furnishing legal services or advice to an- frequent basis. When parties are placed other unless that person is licensed or approved to domiciliary parent and how much time with an appropriately trained mediator in do so by the Louisiana Supreme Court. the non-domiciliary parent has with the the early stages of the proceeding, there 16. La. R.S. 9:333. children, based upon a tiny smidgeon of is an opportunity to avoid protracted and 17. La. R.S. 9:332. available information. What the court 18. J. Wallerstein and J. Kelly, Surviving the harmful litigation. The goal is always to Breakup: How Children and Parents Cope with Di- has learned from other cases may not be do what is in the best interest of the child. vorce (New York: Basic Books, 1980). applicable to the case in litigation before When parents are removed from their 19. See La. R.S. 9:358.1. it now; however, the court will sometimes adversarial positions and craft their own 20. See La. R.S. 9:331. use prior cases as a guidepost in making custody agreement, there is higher chance Charles N. Branton is a these decisions. of keeping them out of court. We need 1985 graduate of Loyola Mediating a high-conflict case may to embrace alternatives to the traditional University College of Law. involve working with parents who have litigation structure of the courts. Mediation He is an approved mediator personality disorders. These individuals through the Louisiana State can be cost-effective and it can alleviate Bar Association and serves often cannot see themselves as others see some of the ever-increasing caseload of as a family court mediator them and they can be inflexible in their the courts while still keeping lawyers in the 22nd Judicial District demands. A trained mediator is not there involved. It is now time to add mediation Court for St. Tammany Par- to provide a diagnosis; however, he can ish. (chuck@cnbranton. to the existing toolkits used by the courts com; 200 Commercial Sq. recognize potential patterns and adapt the to resolve custody matters. Rd., Slidell, LA 70461) approach to mediation accordingly. The mediation of high-conflict cases FOOTNOTES Pamela N. Breedlove is requires the mediator to be extremely the owner of Breedlove Law Firm and the city patient. High-conflict people are invested 1. Bobby Marzine Harges, “Mediator Qualifica- attorney for the city of in their positions and they are not easily tions: The Trend Toward Professionalization,” 1997 Grambling. She was first moved. A mediation involving high- B.Y.U. L. Rev. 687, 688 (1997). trained in civil and family 2. Id. conflict people must be structured and law mediation in 2006. In 3. Id. 2014, she completed the focused. The focus of the mediation should 4. La. R.S. 9:333. 40-hour training in fam- always be the best interest of the children. 5. Kenneth J. Rigby, “Symposium: Family ily mediation and is on High-conflict people are often angry and Law: Alternate Dispute Resolution,” 44 La. L. Rev. the Louisiana State Bar 1725, 1752, n 107 (1984). fearful of the court. By maintaining a Association Alternative Dispute Resolution Section 6. Rebecca Hinton, “Comment: Giving Chil- Child Custody and Visitation and Civil Mediator calm demeanor, the mediator can try to dren a Right to Be Heard: Suggested Reforms to Registers. She is a member of the American Bar keep the parties focused on achieving an Provide Louisiana Children a Voice in Child Cus- Association Dispute Resolution Section and the LS- agreement. A mediator who is experienced tody Disputes,” 65 La. L. Rev. 1539, 1565 (2005). BA’s ADR Section. (pambreedlove@breedlovefirm. Mediation is mandatory in Orleans Parish. Some com; P.O. Box 8667, Bossier City, LA 71113) in mediation with high-conflict people can judges in Caddo and Bossier Parishes are ordering be an asset to the court and to the parties. mediation on a frequent basis. Bobby Marzine Harges When the parties are able to craft their own 7. Stephen G. Bullock and Linda Rose Gal- is the Adams and Reese agreement, it is better for all concerned. lagher, “Surveying the State of the Mediative Art: Distinguished Professor A Guide to Institutionalizing Mediation in Louisi- High-conflict people are not going of Law at Loyola Univer- ana,” 57 La. L. Rev. 885, 919-920 (1997); and Hon. sity College of Law. He away. They will continue to file petitions Howard H. Dana, Jr., “Court-Connected Alternative is a qualified mediator in for custody and visitation. The court’s Dispute Resolution in Maine,” 57 Me. L. Rev. 349, the Orleans Parish Fam- existing framework needs to be expanded 367 (2005). ily Mediation Program 8. La. R.S. 9:332(A). to include mediation in the early stages of and a member of the Loui- 9. The Louisiana Child Custody and Visitation siana State Bar Associa- the dispute. Mandatory mediation should Mediator Registry can be found online at: http:// tion Alternative Dispute be considered. Courts should also allow files.lsba.org/documents/Committees/louisianame- Resolution Section. He is litigants to choose mediation at the time diatorregistry.pdf. the author of the book, The Handbook on Louisi- 10. La. R.S. 9:332(B). of filing. Mediation is the future of child ana Alternative Dispute Resolution Laws, recently 11. Craig A. McEwen, Nancy H. Rogers and published by Esquire Books. ([email protected]; custody and visitation and the courts should Richard J. Maiman, “Bring in the Lawyers: Chal- 7214 St. Charles Ave., Campus Box 901, New Or- embrace it now. lenging the Dominant Approaches to Ensuring Fair- leans, LA 70118)

Louisiana Bar Journal Vol. 62, No. 3 189 By the Publications Subcommittee of the Louisiana State Bar Association’s Ethics Advisory Committee

Jacqueline T. Hodges and HRC Solutions, clients within the state of Louisiana. legal significance to the client, and the Inc. (formerly known as Med-Data The most obvious directly relevant matter may be of such size, that it may be Management, Inc.) v. Kirk Reasonover, and important conclusion of the opinion appropriate for the client to have a separate Esq., Alfred A. Olinde, Jr., Esq. and is how lawyers should handle arbitration independent lawyer to provide advice on Reasonover & Olinde, L.L.C. agreements within their fee agreements with the fee agreement itself. Certainly, where their clients. However, the implications of clients have separate general counsel or Supreme Court of Louisiana Opinion the Court’s opinion may go beyond that similar long-standing trusted lawyers with No. 2012-CC-0043 issue and into the general question of what whom they work regularly, that lawyer may On Supervisory Writs to the Civil level of notice or explanation to clients is play the role of negotiating a fee agreement District Court for the Parish of Orleans appropriate or necessary, both legally and with the new lawyer for the same client, ethically, in order for clients to be bound or participate in the drafting of the retainer On July 2, 2012, the Louisiana Supreme to their agreements with lawyers, as those agreement with the new lawyer. Court issued its decision in Jacqueline T. agreements are typically written by those Hodges and HRC Solutions, Inc. (formerly same lawyers. Factual Background known as Med-Data Management, Inc.) v. Given the wide range of sophistication Kirk Reasonover, Esq., Alfred A. Olinde, Jr., among clients with regard to finance, The arbitration clause at issue in Hodges Esq. and Reasonover & Olinde, L.L.C. The business, law and accounting, there can be a stemmed from a lawyer-client retainer Court was “called on to decide whether a wide range of explanation both appropriate agreement reached in August 2009. In binding arbitration clause in a lawyer-client and necessary to properly inform clients this case, the parties were not strangers retainer agreement is enforceable where the and to validate provisions of lawyer fee as they were engaged in a lawyer-client client has filed suit for legal malpractice.” agreements with clients. In order to obtain a relationship dating back to 1998. The lawyer’s services, some clients will merely arbitration clause in their agreement was 5-2 Ruling with Three sign the fee agreement without receiving likely similar to numerous agreements used Separate Opinions an adequate explanation or having a clear by lawyers throughout Louisiana, and found understanding of the terms and conditions in the American Arbitration Association The majority opinion was issued by of the agreement. For that reason, a lawyer standard arbitration provision stating, in Justice Knoll, with a concurring opinion by should take the time and give the attention pertinent part, “[a]ny dispute, disagreement Justice Weimer. Justice Johnson concurred needed to explain the retainer agreement or controversy of any kind concerning in the result. Separate dissenting opinions in detail to a client. One conclusion from this agreement . . . shall be submitted to were issued by Chief Justice Kimball the Court’s opinion is that an uninformed arbitration.” The retainer agreement urged and Justice Victory. This is a decision client may seek to overturn an arbitration the client to “review this agreement with of significance for a number of reasons provision and potentially other provisions independent counsel.” On the face of the because: (1) it addresses an issue of first of a retainer agreement because of a lack agreement, counsel appeared to meet the impression within Louisiana; (2) the scope of thorough explanation or comprehension requirements of professional conduct by of the language of the Court as well as the of the details of the agreement. stating in clear language that any dispute number of opinions issued; and (3) it affects In some cases, the lawyer-client shall be handled through arbitration and basic relationships between lawyers and relationship is of such financial and also urging the client to seek independent

190 October / November 2014 legal counsel before signing the agreement. must make to the client before seeking an failed to alert the clients as to what specific Before the Louisiana Supreme Court, arbitration provision. In short, the lawyer claims would be subject to arbitration. The the parties advanced their arguments as must make the consequences of arbitration arbitration clause failed to alert the clients to whether the arbitration agreement was abundantly clear to the client. At a minimum, that by participation in arbitration they enforceable. The lawyers’ counsel argued the lawyer must inform the client of the waived a jury trial and appeal, as well as the that the arbitration clause did not result in a following elements of binding arbitration: right to the broad discovery offered through limitation of ultimate liability to the clients 1. The waiver of a right to a jury traditional litigation. in a malpractice suit. They argued that the trial on the possible claims that arise The dissenting opinions of both Chief agreement merely limited the venue for the under the arbitration agreement; Justice Kimball and Justice Victory would airing of such disputes, by removing the case 2. The waiver of the right to appeal have permitted these parties to proceed from the state courts of Louisiana and placing the decision of the arbitrator; in arbitration, as opposed to litigation. the matter before the American Arbitration 3. The waiver of the right to the Chief Justice Kimball found that the Association and an arbitrator or arbitrators broad discovery permitted under the current Louisiana Rules of Professional appointed through the procedures of that Louisiana Code of Civil Procedure or Conduct failed to mandate the disclosure organization. In contrast, the clients’ counsel the Federal Rules of Civil Procedure; requirements required by the majority of provided a two-part argument. First, it was 4. An explanation that arbitration the Court; and that, as such, retroactive argued that arbitration, while not limiting may include significant upfront costs application resulted in an unfair application the substantive remedies available to the and a comparison between the costs of upon the lawyers who lacked notice of the clients, did impose substantial procedural arbitration and the costs of litigation; requirements set out by the Court in this barriers.1 Second, and critical to the Court, 5. An explicit disclosure of opinion. the clients’ counsel argued the lawyers had the nature of the claims covered Justice Victory agreed with Chief Justice failed to adequately disclose the full scope by the arbitration agreement, i.e., Kimball that retroactively imposing new of the arbitration clause and the potential malpractice claims, fee disputes, etc.; disclosure requirements upon the lawyers consequences to the clients of agreeing 6. The fact that the arbitration in this case was unfair and unnecessary, as to limit their remedies to arbitration. The agreement does not limit the client’s the lawyers performed all that was required clients contended that the lawyers never ability to file a disciplinary complaint under the law at the time of entering into mentioned malpractice throughout their against the lawyer; and the fee agreement. However, Justice Victory negotiations and that it was the clients’ 7. The lawyer must provide an also believed the lawyers met their duty of understanding that the arbitration agreement opportunity for the client to consult full disclosure in regard to the arbitration only applied to fee disputes. with independent legal counsel prior clause. First, the clear language of the clause to signing the agreement. reveals that it pertains to “any dispute” that Facets of the Opinion may arise under the contract, thus alerting In promulgating these new disclosure the client that the arbitration agreement All members of the Court, with the requirements, the Court relied upon the includes malpractice claims. Second, the exception of Justice Weimer, agreed that language of Rule 1.4(b) of the Louisiana client was informed through the clause arbitration agreements between lawyers Rules of Professional Conduct as it to obtain independent legal counsel and and clients are enforceable. However, the pertains to the lawyer’s duty of candor and review the agreement with counsel; it was Justices disagreed over what requirements communication, and its requirement that a the client’s decision not to seek independent are necessary to make such agreements lawyer must “explain a matter to the extent counsel on the matter and, therefore, the both legally binding and appropriate to reasonably necessary to permit the client lawyer performed his duty. fulfill a lawyer’s professional responsibility to make informed decisions regarding the Only Justice Weimer was willing to find pursuant to the Louisiana Rules of representation.” The Court reasoned that, that an arbitration clause that included legal Professional Conduct. embodied in this Rule, is the principle that malpractice was not fair and reasonable to Justice Knoll, speaking for the majority, a lawyer cannot take action which may the client, regardless of lawyer disclosure. laid out the requirements, which, as a result be adverse to the client unless the lawyer Justice Weimer based this argument on La. of this opinion, are now the law in Louisiana reveals all risks and consequences of the R.S. 9:5605, which governs the timeliness as it pertains to arbitration agreements in action. The Court also discussed Rule of legal malpractice claims and mandates legal fee agreements. First, the Court held 1.0(e), which defines “informed consent.”2 that a claim must be filed within one year that there is not a per se bar on arbitration In expounding upon what was required by of the alleged malpractice. Based upon the agreements, provided the agreement does Rules 1.4 and 1.0(e), the Court delineated statute, the peremptive period could limit not limit the lawyer’s substantive liability, what must be made clear to a client. a client’s remedies. For instance, even if does not impose an undue procedural burden Applying the disclosure requirements to the a client filed a claim in arbitration within on the client, and the agreement is fair lawyers in Hodges, the majority found the the one year mandated by the statute, if an and reasonable. However, the Court went lawyers did not reasonably explain to the award is not rendered within one year of further in discussing the disclosures a lawyer clients the terms and consequences of the filing the arbitration action, the client could arbitration agreement. The arbitration clause not then enter a Louisiana court seeking a

Louisiana Bar Journal Vol. 62, No. 3 191 remedy as the period would have expired. is how discovery or costs differ between the agreement, or even interlineation and Justice Weimer concluded that this “trap,” arbitration and traditional litigation. Some initialing of specific provisions of the fee in his words, is unfair to clients and cannot conversations will also need to touch on agreement. This is an obvious approach, be overcome, regardless of the disclosures uncomfortable subjects for the lawyer, such but it could be relevant if a client later made by a lawyer. However, Justice Weimer as disciplinary complaints and the claims, claims that he or she was unaware of the believed the “trap” could be fixed by the including legal malpractice, that will be limitations of arbitration. In fact, this same Legislature’s amending the malpractice covered in arbitration. These topics should argument was persuasive to Justice Victory, statute to consider arbitration the functional be included in client discussions, although who found the contractual language of the equivalent of litigation and satisfying the many lawyers may prefer that these subjects fee agreement in Hodges put the clients on peremptive period. not be raised with a client. Finally, a lawyer notice that “any dispute” would be resolved In contrast to Justice Weimer’s view, must alert the client of the opportunity to by arbitration. To further emphasize the despite the Court’s additional disclosure speak with independent counsel in regard disclosures in the fee agreement, a lawyer requirements, arbitration clauses were to the matter because, throughout these should ask the client to initial each of them acceptable to six of the seven Justices, conversations, a client may be inclined specifically, allowing the client to read suggesting that the new disclosure to seek additional consultation from an the document and then directly sign off requirements are likely here to stay. In independent lawyer due to the procedural next to each one in the arbitration clause. addition to the majority, Chief Justice rights the client is relinquishing under The agreement could also contain a client Kimball believed the requirements could be arbitration and the potential costs/risks certification that the lawyer did discuss added to the Louisiana Rules of Professional associated with same. all relevant disclosures. The combination Conduct and based her dissent on retroactive Many lawyers may conclude that Hodges of both emphasized language and a client application of the requirements. Even has little impact on their cases and clients signature immediately next to the arbitration Justice Victory was not hostile to the new because they represent a sophisticated entity clause, as well as a client certification disclosure requirements, rather based his or entities with counsel. However, that may of discussion of all relevant disclosures, dissent on retroactive application and his be an incorrect assumption. The majority should provide additional protection to a conclusion that the lawyers satisfied the in Hodges explicitly disagreed and stated lawyer. While not required, a combination disclosure requirements. Considering the that a client’s sophistication or familiarity of some or all of these suggestions may foregoing, there may be little potential for with the arbitration process is irrelevant provide evidence for a lawyer looking to rescinding the disclosure requirements in in providing warnings and disclosures to safeguard an arbitration agreement in the the future. clients. The majority did not wish to create event a dispute or challenge is later raised. two classes of clients and did not believe a Wise counsel must be familiar with Legal and Ethical business-savvy client was any less deserving the new disclosure rules promulgated Requirements of Arbitration of a lawyer’s reasonable communication by Hodges and act accordingly when than an average client.3 Thus, the disclosures entering into new agreements with clients. Agreements mandated by the Court must be made to Furthermore, counsel should also take care every client, regardless of whether the to follow the new disclosure requirements In light of Hodges, many lawyers client is inexperienced and with little formal with any clients who have previously will be required to alter their protocol in education or is a long-time, sophisticated entered into such agreements. negotiating with clients and entering into business person. fee agreements. No longer will a lawyer merely be able to hand a client a document FOOTNOTES and say “Please sign here.” How Attorneys Can Protect 1. The clients stated their filing fee with the Obviously, lawyers must engage in the Legality of an Arbitration American Arbitration Association was $18,800, detailed conversations with clients in regard Agreement compared to the $500 that would be required in to arbitration, explaining what procedural Louisiana state courts. The American Arbitration rights can be lost in the process. With Once a lawyer makes all the necessary Association bases filing fees in relation to the size of plaintiff’s demand. Here, the clients demanded $70 less sophisticated clients, this process disclosures required by Hodges, then the million in damages. may need to be extensive, as a client issue becomes what the lawyer must do 2. “. . .(e) “Informed consent” denotes the may be naïve about differences between to show that proper disclosures have been agreement by a person to the proposed course of arbitration and litigation. A conversation made. conduct after the lawyer has communicated adequate information and explanation about the material risks about how jury trials and appeals could be A lawyer would be advised to discuss the of and reasonably reasonable alternatives to the lost should be straightforward. However, arbitration disclosure requirements while proposed course of conduct. . . .” some discussions may be more complex, reviewing the fee agreement with the client. 3. In making this point, the Court cited to Mayhew requiring a lawyer to carefully discuss the The aspects of the disclosures can perhaps be v. Benninghoff, where the court was “baffled” by a lawyer’s argument that ethical considerations were differences between the litigation process emphasized through enlarging, highlighting loosened in dealings with wealthy and business- and the arbitration process. One example or applying bold print to the disclosures in educated clients. 53 Cal. App. 4th 1365, 1368 (1997).

192 October / November 2014 LOUISIANA CHAPTER

TheThe followingfollowing attorneysattorneys areare recognizedrecognized forfor ExcellenceExcellence inin thethe fieldfield ofof AlternativeAlternative DisputeDispute ResolutionResolution

David S. Cook Mimi Methvin A. J. Krouse Steven Crews Thomas Juneau (337) 234-4155 (337) 501-1055 (504) 599-8016 (318) 527-0142 (337) 269-0052

Scott Love Andrew McGlathery Bernie McLaughlin Elizabeth Middleton Lynne Stern (225) 389-9899 (337) 493-7271 (337) 310-1609 (318) 487-9406 (504) 259-4488

Check your preferred available dates or schedule appointments online, directly with Academy Members - for free. Visit www.LouisianaMediators.org/quicksearch

* The National Academy of Distinguished Neutrals is an invitation-only professional association of over 900 litigator-rated mediators & arbitrators throughout the US and a proud partner of the AAJ and DRI. ForLouisiana more info, Bar please Journal visit www.NADN.org/about Vol. 62, No. 3 193 Association Actions Elections... specialization... Pro Bono

Elections: Voting Begins Nov. 17 Pilot Mentoring Online voting will begin Monday, Nov. will include the member’s PIN number and Program Begins 17, for contested races in the 2014-15 a link to the voting website. On the voting Jan. 1, 2015: More Louisiana State Bar Association (LSBA) website, the member must type in the PIN elections. Deadline for electronically cast- number to access the ballot. Ballots will only Mentors Needed ing votes is Monday, Dec. 15. Balloting will include races for which the member may cast The Louisiana State Bar Association be conducted electronically only. No paper a vote. Members who do not have an email (LSBA) and its Committee on the Pro- ballots will be provided. address, or members preferring to vote from fession are encouraging more mentors to Leadership positions are open on the the LSBA website, will be able to log-in from participate in the Transition Into Practice Board of Governors, LSBA House of the LSBA website to a special log-in page (TIP) pilot mentoring program, set to Delegates, Nominating Committee, Young that will ask for additional information (Bar begin Jan. 1, 2015, in the Baton Rouge, Lawyers Division and American Bar As- roll number, birth date, zip code). Shreveport and greater New Orleans areas. sociation House of Delegates. For more information on the election Through the program, approved by the When voting opens, members will re- procedures and the schedule, go to: www. Louisiana Supreme Court and sponsored ceive an email with their E-ballot. The email lsba.org/goto/elections. by CNA/Gilsbar, new lawyers admitted into practice in 2014 will be paired with mentors. Mentors must be in good standing, House Resolution Deadline is Dec. 17 have no disciplinary history and must have The Louisiana State Bar Association’s be mailed to LSBA Secretary Barry at least 10 years of experience. Mentors can (LSBA) Midyear Meeting is scheduled H. Grodsky, c/o Louisiana Bar Center, receive up to 6 hours of free CLE credit for Thursday through Saturday, Jan. 601 St. Charles Ave., New Orleans, LA by volunteering. 15-17, 2015, at the Hotel Intercontinen- 70130-3404. All resolutions proposed to For more information, to register as a tal, 444 St. Charles Ave., New Orleans. be considered at the meeting must be re- mentor and to view video messages from The deadline for submitting resolutions ceived on or before Dec. 17. Resolutions Louisiana Supreme Court Chief Justice for the House of Delegates meeting is must be signed by the author. Bernette Joshua Johnson and LSBA Com- Wednesday, Dec. 17. (The House will Also, copies of all resolutions should mittee on the Profession Chair Barry H. meet on Jan. 17, 2015.) be emailed (in MS Word format) to Grodsky, go to: www.lsba.org/mentoring/. Resolutions by House members and LSBA Executive Assistant Mindi Hunter committee and section chairs should at [email protected]. Judges: Granting of Cy Pres Funds LOUISIANA Bar Authorized by LASC Rule XLIII Today Get the latest LSBA news in the The granting of Cy Pres funds by the non-profit or governmental entities which courts is authorized by Louisiana Supreme support projects that will benefit the class free, biweekly emailed update. Court Rule XLIII, specifically Section or similarly situated persons consistent 2. Judges are reminded that this provi- with the objectives and purposes of the It’s easy to subscribe. sion covers all entities eligible to receive underlying causes of action on which relief these funds, as well as the Louisiana Bar was based, including the Louisiana Bar Go to: Foundation. Foundation for use in its mission to support Section 2 states: “In matters where the activities and programs that promote direct www.lsba.org/goto/LBT claims process has been exhausted and Cy access to the justice system.” Pres Funds remain, such funds may be To review the rule, go to: www.lasc.org/ disbursed by the trial court to one or more rules/orders/2012/Rule_XLIII.pdf.

194 October / November 2014 R tesg r ! ye toi a d room block expires NEW YORK, NEW YORK soon! Seminar Moderator: A MULTI-TOPIC CLE SEMINAR Hon. James E. Kuhn • 1st Circuit Court of Appeal • Ponchatoula SATURDAY, NOV. 22 – 4.75 CLE HOURS

7:30-8:00 a.m. Registration

8:00-9:00 a.m. Compelled Production of Documents and Business Records in Civil Discovery — (1 credit) The Fifth Amendment’s Reach into Civil Litigation C. Frank Holthaus • deGravelles, Palmintier, Holthaus & Fruge • Baton Rouge

9:00-10:30 a.m. Recent Developments in Civil Procedure and Evidence (1.5 credits) Hon. Guy P. Holdridge • 23rd Judicial District Court • Gonzales Hon. Scott J. Crichton • 1st Judicial District Court • Shreveport

10:30-10:45 a.m. Break

10:45 a.m.- Noon What is “Spoliation”? Once Found, What are the Consequences? (1.25 credits) Moderator: Hon. James E. Kuhn • 1st Circuit Court of Appeal • Ponchatoula Panelists: Hon. John M. Guidry • 1st Circuit Court of Appeal • Baton Rouge Hon. Ulysses Gene Thibodeaux • 3rd Circuit Court of Appeal • Lake Charles Roy C. Cheatwood • Baker, Donelson, Bearman, Caldwell & Berkowitz • New Orleans Harry J. “Skip” Philips, Jr. • Taylor, Porter, Brooks & Phillips • Baton Rouge Thomas J. Madigan • Sher Garner Cahill Richter Klein & Hilbert • New Orleans

Noon-1:00 p.m. Revisiting the View from the Fishbowl (1 credit) Hon. W. Ross Foote (Ret.) • Attorney at Law • Shreveport Lynn Luker • Lynn Luker & Associates • New Orleans SUNDAY, NOV. 23 – 4.25 CLE HOURS

7:30-8:30 a.m. Social Media in the Workplace (1 credit) Karleen J. Green • Phelps Dunbar • Baton Rouge 8:30-9:30 a.m. A Statutorily Mandated Rocket Docket and Other Surprises — MILLENNIUM (1 credit) What You Never Learned But Need to Know About Louisiana Antitrust and Unfair Trade Practice Laws Mark A. Cunningham • Jones Walker • New Orleans BROADWAY HOTEL 9:30-10:45 a.m. Does Spoliation Constitute an Independent Cause of Action? (1.25 credits) Moderator: Hon. James E. Kuhn • 1st Circuit Court of Appeal • Ponchatoula Panelists: Hon. Sylvia R. Cooks • 3rd Circuit Court of Appeal • Lafayette Hon. Phyllis M. Keaty • 3rd Circuit Court of Appeal • Lafayette 145 WEST 44TH STREET James M. Garner • Sher Garner Cahill Richter Klein & Hilbert • New Orleans Dean A. Sutherland • Jeansonne & Remondet • New Orleans NEW YORK, NEW YORK 10:45-11:00 a.m. Break 11:00 a.m.-Noon Professionalism NOV. 22-24, 2014 (1 credit) Hon. Tiffany G. Chase • Orleans Parish Civil District Court • New Orleans MONDAY, NOV. 24 – 4 CLE HOURS SPONSORED BY THE 8:00-9:00 a.m. Ethics and All That Jazz! (1 credit) Joseph L. “Larry” Shea, Jr. • Bradley Murchison Kelly & Shea • Shreveport LOUISIANA STATE BAR ASSOCIATION 9:00-10:00 a.m. The Private Right of Action for Statutory Violations: (1 credit) Louisiana and Beyond This program has been approved for a maximum of J. Lee Hoffoss, Jr. • Hoffoss Devall • Lake Charles 13 hours of CLE credit, including 1 hour of ethics and 10:00-10:15 a.m. Break 1 hour of professionalism. 10:15-11:15 a.m. U.S. Supreme Court Update & Tidbits From The Feds (1 credit) Hon. Ivan L.R. Lemelle • U.S. District Court, Eastern District of La. • New Orleans 11:15 a.m.-12:15 a.m. A Primer and Update on Louisiana Insurance Coverage REGISTER TODAY AT (1 credit) and “Bad Faith Law” WWW.LSBA.ORG/CLE H. Minor Pipes III • Barrasso, Usdin, Kupperman, Freeman & Sarver • New Orleans Louisiana Bar Journal Vol. 62, No. 3 195 The Louisiana State Bar Association presents 2014 VooDoo Festival Seminar

or attorneys, a trial can be both frightening and exhilarating! Preparation is the key ingre- dient to a successful brew. Effective voir dire can uncover anything that mightF “go bump in the night” or in the court- room. Rattle your opponent’s chain with a killer opening statement. Undermining their case is the trick to a successful verdict. HON. JAMES E. KUHN and ROY CHEATWOOD, seminar co-chairs, have called upon highly experienced members of the bench and bar to walk you through the daunting and potentially danger-filled lairs of di- rect and cross examinations. Attendees will walk away spellbound with spine-tingling skills to prevail in the courtroom. The program concludes with the required ethics credit, sure to vanquish all your litigation demons. Don’t miss this opportunity to gain effective jury trial techniques explained by veteran jury trial lawyers and judges.

Friday, October 31, 2014 Sheraton New Orleans Hotel 500 Canal St., New Orleans

This program has been approved for a maximum of 6.25 hours of CLE credit, including 1 hour of ethics.

Register Online: www.lsba.org/cle

196 October / November 2014 Attorneys Apply for Recertification as Legal Specialists Pursuant to Section 8.7 of the Rules legal specialists. Any person wishing to 70130, no later than Nov. 30, 2014. and Regulations of the Louisiana Board comment upon the qualifications of any It is also requested that any knowledge of Legal Specialization, notice is hereby applicant should submit his/her comments to of sanctions or other professional action given that the following attorneys have the Louisiana Board of Legal Specialization, against an applicant be reported during pending applications for recertification as 601 St. Charles Ave., New Orleans, LA this comment period.

Tax Law Steven E. Hayes...... Metairie Douglas L. Salzer...... New Orleans Helen Popich Harris...... Lafayette Robert L. Henderson, Jr...... Slidell Robert C. Schmidt...... Baton Rouge Mitchell J. Hoffman...... New Orleans Ted W. Hoyt...... Lafayette David R. Sherman...... Metairie Lila Tritico Hogan...... Hammond Hirschel T. Abbott, Jr.....New Orleans Edwin Kidd Hunter...... Lake Charles John F. Shreves...... New Orleans Melanie Newkome A. Albert Ajubita...... New Orleans Charles B. Johnson...... New Orleans David L. Sigler...... Lake Charles Jones...... Baton Rouge Robert S. Angelico...... New Orleans Allen P. Jones...... Shreveport Scott Joseph Sonnier...... New Orleans Patricia M. Joyce...... Gretna Walter Antin, Jr...... Hammond Steven I. Klein...... New Orleans Paul D. Spillers...... Monroe Debra M. Kesler...... Metairie Jane E. Armstrong...... New Orleans William H. David Bruce Spizer...... New Orleans Philip C. Kobetz...... Lafayette William M. Langenstein III...... New Orleans Robert D. Levenstein...... Laplace Backstrom, Jr...... New Orleans Mark S. Stein...... New Orleans John Paul LeBlanc...... Mandeville Robert G. Levy...... Alexandria Dale R. Baringer...... Baton Rouge William P. Stubbs, Jr...... Lafayette Brian T. Leftwich...... New Orleans Robert C. Lowe...... New Orleans Alton E. Bayard III...... Baton Rouge Robert E. Tarcza...... New Orleans Lawrence M. Lehmann..New Orleans Christine O’Brien Lozes....Covington Hilton S. Bell...... New Orleans Alexander P. Trostorff....New Orleans Susan Whittington Lorraine Jane Andresen John C. Blackman IV.....Baton Rouge Chris A. Verret...... Lafayette Leidner...... New Orleans McCormick...... Baton Rouge Thomas G. Blazier...... Lake Charles Barry E. Waguespack.....Baton Rouge Lawrence L. Lewis III...... Lafayette Edith H. Morris...... New Orleans Sidney M. Blitzer, Jr...... Baton Rouge Jess J. Waguespack...... Napoleonville Dwayne O. Littauer...... New Orleans Kim M. O’Dowd...... New Orleans Robert T. Bowsher...... Baton Rouge Paul H. Waldman...... Metairie Peter J. Losavio, Jr...... Baton Rouge Patrice Wightman Jean C. Breaux, Jr...... Lafayette J. Benjamin Warren, Jr...... Shreveport John L. Luffey, Jr...... Monroe Oppenheim...... Mandeville Timothy Paul Brechtel....New Orleans William Brooks Watson...... Monroe David J. Lukinovich...... Metairie Carolyn F. Ott...... Amite Susan J. Burkenstock...... New Orleans Charles S. Weems III...... Alexandria Richard E. Matheny...... Baton Rouge David R. Paddison...... Covington Douglas C. Caldwell.....West Monroe John J. Weiler...... New Orleans Berlon M. Mauldin...... Baton Rouge David M. Prados...... New Orleans Richard M. Campbell...... Monroe Kenneth A. Weiss...... New Orleans Michael A. Mayhall...... Covington Philip Riegel, Jr...... Metairie Donald A. Capretz...... Lafayette Jack G. Wheeler...... Lake Charles Van R. Mayhall, Jr...... Baton Rouge Sandra S. Salley...... Metairie Robert R. Casey...... Baton Rouge Lester J. Zaunbrecher...... Lafayette Ray C. Mayo, Jr...... Shreveport Walter M. Sanchez...... Lake Charles David R. Cassidy...... Baton Rouge Karl J. Zimmermann...... New Orleans Donald H. McDaniel...... Metairie H.F. Sockrider, Jr...... Shreveport John P. Cerise...... New Orleans John F. McDermott...... Baton Rouge Diane A. Sorola...... Lafayette David M. Charlton...... Baton Rouge Family Law W. Deryl Medlin...... Shreveport D. Reardon Stanford...... Lafayette John W. Colbert...... New Orleans Donald M. Meltzer...... Baton Rouge Charles W. Strickland...... Shreveport J. Grant Coleman...... New Orleans Dawn Amacker...... Covington Joel A. Mendler...... New Orleans Susan L. Theall...... Lafayette George R. Collier, Jr...... Monroe Ernest S. Anderson...... Slidell Carey J. Messina...... Baton Rouge Linda A. Veazey...... Abbeville Katherine Conklin...... New Orleans D. Rex Anglin...... Shreveport Bruce A. Miller...... Metairie Lynne W. Wasserman...... Metairie Gary L. Conlay...... Natchitoches James H. Askew...... Shreveport Albert Mintz...... New Orleans Barbara J. Ziv...... New Orleans Paul D. Cordes, Jr...... New Orleans Michael Baham...... Metairie J. Tracy Mitchell...... Baton Rouge David N. Corkern...... Metairie Alfred R. Beresko...... Shreveport Max Nathan, Jr...... New Orleans Jeanne T. Cresson...... Metairie David A. Blanchet...... Lafayette Estate Planning and William A. Neilson...... New Orleans Christopher J. Dicharry..Baton Rouge Lisa Leslie Administration Law Daniel A. Palmer...... Waco Mary Lintot Dougherty...... Houston Boudreaux...... Baton Rouge Paul C. Pepitone...... Baton Rouge Richard S. Dunn...... Baton Rouge David L. Carriere...... Opelousas David M. Charlton...... Baton Rouge Laura Walker Plunkett....New Orleans Michael L. Eckstein...... New Orleans Amy Elizabeth Ronda Mary Gabb...... Covington Eugene F. William W. Edelman...... New Orleans Counce...... Baton Rouge Carl S. Goode...... Baton Rouge Pollingue, Jr.....Palm Beach Gardens Gary J. Elkins...... New Orleans Robert P. Cuccia...... Houma Lawrence Dietrich Huter...... Lafayette Edward M. Porche II...... Covington Mark S. Embree...... New Orleans Jennifer Carter deBlanc...... Marrero Conrad Meyer IV...... Metairie Betty Ann Raglin...... Lake Charles James C. Exnicios...... New Orleans Mary Clemence Ronald Wayne Morrison, Jr...Metairie Rudolph R. Ramelli...... New Orleans Devereux...... Covington William J. Friedman, Jr...... Lafayette Joseph Michael Placer, Jr.....Lafayette Glenn J. Reames...... New Orleans Karen D. Downs...... Baton Rouge Mandy Mendoza Joseph A. Prokop, Jr...... Baton Rouge Jerome John Reso, Jr...... New Orleans Gagliardi...... New Orleans Lillian T. Dunlap...... West Monroe Beau P. Sagona...... Metairie Patrick K. Reso...... Hammond Edward N. George III.....New Orleans Jack L. Dveirin...... New Orleans Eric M. Schorr...... New Orleans Earl C. Reynolds...... Baton Rouge Joseph R. Gilsoul...... Shreveport James L. Fortson, Jr...... Shreveport Scott Joseph Sonnier...... New Orleans F. Kelleher Riess...... New Orleans Carl S. Goode...... Baton Rouge Patricia M. Franz...... Metairie Leon H. Rittenberg, Jr....New Orleans William F. Grace, Jr...... New Orleans Frank A. Granger...... Lake Charles Business Bankruptcy Law Armand L. Roos...... Shreveport Michael E. Guarisco...... New Orleans Nancy S. Gregorie...... Baton Rouge John A. Rouchell...... New Orleans Patrick Shawn Garrity....Baton Rouge David S. Gunn...... Baton Rouge Grace Phyllis Robert E. Rowe...... Lafayette Gremillion...... Covington Michael David Kernan August H. Brenner Sadler...... Alexandria Rubenstein...... Houston Hand, Jr...... New Orleans Steven W. Hale...... Lake Charles

Louisiana Bar Journal Vol. 62, No. 3 197 4

LSBA201 Energy and Environmental Law Summit Nov. 6 - 7, 2014 Sheraton New Orleans Hotel

here is no more dynamic topic in Louisiana at the present time than energy and environmental law. Because of the heightened Tinterest in this topic from in-house and outside counsel within and without the state, the LSBA is presenting its first ever two-day Energy and Environmental Law Summit covering matters of interest to executives and lawyers on both sides of the aisle, including how the Louisiana Legislature works, the latest 2014 significant energy and environmental legislation and jurisprudence, coastal land loss and contamination claims, litigation involving claims of imprudent operations that caused reservoir loss, regulatory issues, how units are created and established in Louisiana, alternate dispute resolution of energy and environmental claims and topics straight from the morning newspapers and the evening news. This summit brings it all together. att Randazzo, J. Michael Veron and Roy Cheatwood, summit co-chairs, have recruited jurists along with some of the Mstate’s leading and experienced lawyers and specialists to give summit attendees the latest and best information about what is going on in the world of oil and gas and the Louisiana environment. This summit includes an hour on ethics and an hour on professionalism. This program has been approved for a maximum of 12 hours of CLE credit, including 1 hour of ethics and 1 hour of professionalism. Register Online: www.lsba.org/cle

198 October / November 2014 LIFT Incubator Program Creates Jobs that Serve Community Needs

he Louisiana Civil Justice Group, L.L.C., in 2012. Her firm works Network (LPN), which connects aspiring Center (LCJC), in partnership with medical providers and educators public interest attorneys with the resources, with the Louisiana State Bar to ensure every child with mental and/ collaboration and training they need to Association, has launched the or physical disabilities has the resources build their solo practices. Currently, the TLIFT (Legal Innovators for Tomorrow) needed to lead a happy and healthy life. program has eight participating attorneys. Legal Incubator Program, the first legal Nicholas J. Hite formed Hite LCJC Executive Director Jonathan incubator program of its kind in Louisiana. Law Group in 2014. His practice M. Rhodes said, “The LIFT program The program is designed to address two provides affordable legal services to all and practice network are not only startling issues in Louisiana — the lack of individuals, with a focus on serving the about helping young attorneys gain the job opportunities for recent law graduates, unique needs of the LGBTQ community resources and experience they need to and an underprivileged population in need and all forms of non-traditional build a sustainable solo practice, it is also of legal representation. To address these families. He offers free legal community about innovating and collaborating to issues, LIFT matches newly admitted education seminars. better serve the needs of our community.” attorneys passionate about social justice Betty A. Maury formed Maury Law Although the legal incubator program is and serving the basic legal needs of Firm, L.L.C., in 2013. Her general- currently based in New Orleans, Rhodes vulnerable populations with those most practice firm has a family law focus. She said the plan is to expand the program in need of affordable legal services. works with clients to provide affordable statewide. Since launching the program in April legal services, with reasonable For more information, visit www. 2014, the participating attorneys have repayment plans. laciviljustice.org or contact Amy provided legal assistance to more than In addition to the LIFT program, the Duncan at amy.duncan@laciviljustice. 50 low- and moderate-income people in LCJC implemented the LIFT Practice org or (504)355-0980. Louisiana. The LIFT Legal Incubator is a two-year pilot program that provides new attorneys with the resources necessary to develop innovative, public interest-oriented solo practices. After a competitive application process, four attorneys were chosen to participate in the program — James A. Graham, Robyn R. Griffin, Nicholas J. Hite and Betty A. Maury. Each attorney has his/her own innovative practice covering a broad range of legal issues affecting children with disabilities, the LGBTQ community, the elderly, and those unable to afford high-priced legal services. James A. Graham formed his solo practice, the Law Office of James A. Graham, in 2013. Since joining LIFT, his practice primarily focuses on building medical-legal partnerships with health service providers to Louisiana Supreme Court Associate Justice Marcus R. Clark, second from left, was not correctly identified in a photo caption in the August/September 2014 Louisiana Bar Journal. We regret the error. address health-harming legal needs that From left, 2014-15 Louisiana State Bar Association President Joseph L. (Larry) Shea, Jr., Justice Clark, disproportionately affect people living Civics in Action Award recipient C. Jefferson Manning III and his father, Hon. C. Wendell Manning, in poverty. at the LSBA Annual Meeting. Photo by Matthew Hinton Photography. Robyn R. Griffin started Griffin Law Register Online: www.lsba.org/cle

Louisiana Bar Journal Vol. 62, No. 3 199 Access to Justice in the Character or Manner of a Pauper By Ashley P. Gonzalez

he ability of individuals to access Notably, however, Louisiana’s IFP laws In response to these findings, the Access the court systems, regardless of do not waive the litigation fees and costs to Justice Policy Committee partnered with income level, is a privilege that owed by IFP litigants in connection with Louisiana Appleseed to further study the has long been entrenched in both the proceeding; rather, they defer the cost issue and to develop a strategy for improv- Tstate and federal law. This privilege is central of litigation until a judgment is rendered. ing access to justice for indigent litigants. to the Louisiana Constitution, which states If judgment is rendered in favor of the IFP Using Louisiana Appleseed’s findings, that “[a]ll courts shall be open, and every litigant, the party against whom the judgment documented in an extensive white paper, person shall have an adequate remedy by is rendered shall pay all costs incurred by the Access to Justice Policy Committee due process of law and justice, administered the IFP party. Except as otherwise provided developed an educational brochure that was without denial, partiality, or unreasonable by the Code of Civil Procedure, if judgment distributed to legal service programs who delay, for injury to him in his person, prop- is rendered against an IFP litigant, he or she could in turn share it with local judges and erty, reputation, or other rights.”1 shall be responsible for the payment of costs clerks of court in an effort to help ensure Providing individuals with access to the incurred as well as those recoverable by the that IFP laws are properly understood and courts is a basic concept; however, there adverse party. administered. are considerable expenses associated with Despite the IFP scheme outlined in the The time and effort Louisiana Apple- litigation. Louisiana’s judicial system is Code of Civil Procedure, Louisiana’s legal seed’s volunteers dedicated to researching not designed to finance the filing fees and aid providers have long expressed concern IFP procedures and practices and the edu- court costs incurred by its litigants. With about the inappropriate application of Louisi- cational outreach from the Access to Justice nearly 20 percent of all residents living ana’s IFP laws. The Code of Civil Procedure Policy Committee have been worthwhile. below the poverty line, Louisiana has the provides that an IFP litigant is entitled to the Legal service program representatives second highest poverty rate in the United services required by law of a sheriff, clerk of from across the state report that they are States, and the highest in the South.2 These court, court reporter, notary or other public seeing improved administration of the IFP statistics indicate that, for the approximately officer in connection with the judicial pro- laws and, consequently, improved access to 1 million people in Louisiana who cannot ceeding, including, without limitation, the justice as a result of this research, education afford even the basic costs of living, they filing of pleadings and exhibits, the issuance and outreach. are also likely unable to pay the court fees of certificates, the certification of copies of The recent improvements in the acces- due in connection with any claim or action notarial acts and public records, the issuance sibility of Louisiana’s judicial system are they wish to file. This inability to advance and service of subpoenas and process, the an important accomplishment; however, court costs creates a significant obstacle to taking and transcribing of testimony, the as legal service programs continue to face achieving access to justice. issuance of judgments and the preparation budgetary limitations, a greater number of Recognizing this situation, the Louisiana of a record of appeal. indigent litigants will be forced to advocate Legislature enacted in forma pauperis laws Nevertheless, in practice, attorneys have for IFP status on their own behalf, without the in an effort to guarantee all Louisiana citizens reported that many IFP litigants’ pleadings benefit of an attorney. It is the responsibility equal access to the courts. In forma pauperis are initially refused for filing pending pay- of Bar members to ensure that Louisiana’s (IFP) means “in the character or manner of ment of filing fees. Additionally, IFP litigants judicial system recognizes and adheres to a pauper.”3 These laws provide the impov- are often told that they cannot obtain a copy its IFP rules and procedures so that those erished with special exceptions relative to of the judgment in their proceeding until litigants eligible to proceed IFP are granted cost so they may litigate in Louisiana courts. the court costs are paid, and are improperly such status. The in forma pauperis laws, as set forth charged with some or all of the court costs in the Louisiana Code of Civil Procedure, when they have already prevailed in their FOOTNOTES permit a litigant to initiate legal proceedings cases. without pre-paying the costs related to such In its efforts to address systemic issues 1. La. Const. art. I, § 22. claim or furnishing a bond for such costs, if facing legal aid providers, the Louisiana State 2. http://quickfacts.census.gov/qfd/states/22000. html. the litigant is “unable to pay the costs of court, Bar Association’s Access to Justice Policy 3. Henry Campbell Black. (1979). Black’s Law because of his poverty and lack of means[,]”4 Committee surveyed public interest attorneys Dictionary (5th ed.), West Publishing, p. 701. as ordered by the court after submission of throughout Louisiana to determine the real- 4. La. Code Civ. Proc. art. 5181. the litigant’s IFP affidavit. The privilege is ity and frequency of concerns surrounding Ashley P. Gonzalez is an attorney volunteer for reserved for those who are clearly entitled to the application of IFP laws. Through their Louisiana Appleseed, a nonprofit that recruits it by considering the type of proceeding, the research, the Access to Justice Policy Com- professionals to donate pro bono time to solve fees and costs associated with the proceeding mittee members identified more than a dozen problems at the systemic, or policy, level. A special and the ability of the litigant to pay those fees common practices that inhibit meaningful thanks to Carolyn Buckley for her assistance with this article and to King Krebs & Jurgens, P.L.L.C., and costs as they become due. access to justice for indigent litigants. for its support of this project.

200 October / November 2014 State’s Legal Services Programs Schedule Activities for National Pro Bono Week

everal Louisiana legal services Access to Ju the spouse and family in a drawn-out A st programs are planning events B ic domestic violence case or whether it is S e to celebrate National Pro the volunteer who takes five minutes L

Bono Celebration Week, Oct. to notarize a document to help keep a S19-25. Sponsored by the American child in school, pro bono volunteers are Bar Association, National Pro Bono making a difference in Louisiana. While

Celebration Week is part of a coordinated w helping others, many volunteers speak g effort to showcase the legal community’s w r of the personal benefit they receive from commitment to public service and the w .o volunteering. .c o positive impacts that pro bono lawyers el on Local bar foundations and pro bono make to the nation and the justice system. ebrateprob programs in Louisiana are scheduling The week offers opportunities both several recognition events and activities to make a difference for clients by in conjunction with the event. For updates providing special pro bono programming Louisiana who, on a regular basis, make on all Pro Bono Week activities, go to: and to acknowledge the selfless acts of the lives of many much better. Whether www.lsba.org/celebrateprobono. attorney volunteers from every part of it is the volunteer who helps represent

Nov. 12, 2014 Dec. 9, 2014 Pelicans v. Lakers Pelicans v. Knicks Smoothie King Center Smoothie King Center JOIN THE FLOCK!! The LSBA is Swooping Down into the Smoothie King Center for an exciting CLE with the NEW ORLEANS PELICANS!! Join the LSBA for 2 hours of CLE followed by an exciting time with the Pelicans. Earn 1 hour of Ethics and 1 hour of Professionalism. Registration includes one (1) HUBCLUB Level ticket to watch the game. Enjoy delicious food and complimentary sodas, wine & beer while cheering the Pelicans to victory! LIMITED TICKETS AVAILABLE. Registration and tickets are on a “first-come/first-served” basis. Register Online at www.lsba.org/cle

Louisiana Bar Journal Vol. 62, No. 3 201 PracManagementtice By Johanna G. Averill Non-Engagement/Declination Letters

he best way to decline an attorney- The way to avoid a swearing contest is a you regarding the application of time limits client representation is with a non-engagement/ declination letter, such to any claims you may have. non-engagement/declination as below: letter. It is important to create Thank you for your consideration of Twritten evidence of the declination. Reasons Dear ____: our firm. to decline representation include: This is to confirm that this firm will not Sincerely, ► lack of subject matter experience; represent you in the XXX matter. We have not ► conflict of interest; investigated your case and are expressing There are many reasons to decline rep- ► no time to take the case to conclu- no opinion as to its merits or the likelihood resentation. In Louisiana, establishing in sion; and of whether you would prevail. Rather, we writing that you are not handling a matter ► client’s expectations are unreason- have merely decided you would be better is the best investment in security you can able. served retaining another lawyer and we make. Faithful use of non-engagement/ must decline to represent you. Enclosed declination letters likely will even eliminate Often, lawyers think they are too busy are the documents that you provided to us. a claim being made against you. to confirm in writing what they’ve already communicated orally to the non-client We strongly recommend that you consult Johanna G. Averill is profes- — that they will not handle the matter. with another attorney about this matter sional liability loss preven- tion counsel for the Louisi- However, the time it takes to draft and without delay to ensure that your rights will ana State Bar Association send the non-engagement letter is much not be lost or jeopardized. If you wish to and is employed by Gilsbar, less time-consuming and expensive than to proceed with your claim, act immediately. L.L.C., in Covington. She later face a suit because a party remembered Failure to do so may bar your claim based received her BS degree in marketing in 1982 from it differently. upon time limits established by law, court Louisiana State University In Louisiana, the existence of an rules or case law. If your claim is lost based and her JD degree in 1985 attorney-client relationship turns largely on upon time limits, you will not be able to from Loyola University Law the “client’s subjective belief” that such a pursue any action to recover damages or School. In her capacity as loss prevention counsel, she lectures on ethics as part of relationship exists. See, e.g., In re LeBlanc, other relief. Because we are not representing Mandatory Continuing Legal Education requirements 884 So.2d 552, 557 (La. 2004); Francois v. you and will not be taking action on your for attorneys licensed to practice law in Louisiana. She Reed, 714 So.2d 228 (La. App. 3 Cir. 1998). behalf, we have not researched or advised can be emailed at [email protected]. www.lsba.org/diversityfor more info, visit Celebrating 50 Years of C 8th Annual Conclave on Diver ivil R sity in the L ig egal Pr hts March 6, 2015 « Louisiana Sta ofessi te Bar A on ssoci ation

202 October / November 2014 lawyersAssistance By J.E. (Buddy) Stockwell Risks for minors using alcohol

ew studies have established that factors that increase the risk of developing the use of alcohol before the age Lawyers Assistance alcoholism and addiction, we can all take of 15 can result in four times the Program, Inc. (LAP) advantage of that information to undertake risk of becoming an alcoholic appropriate steps to reduce the odds that Your call is absolutely confidential atN some point later in life. According to the as a matter of law. someone in our family will become an U.S. National Institutes of Health (NIH), alcoholic or addict in the fullness of time. the earlier a person begins using alcohol, Toll-free (866)354-9334 Based on the recent findings discussed the greater the risk of not only developing Email: [email protected] above, it is now more important than ever alcoholism but also developing other serious to ensure that young people, including older problems.1 The NIH said: one time. The NIH indicates that 11 percent teenagers and young adults, are extremely of eighth graders, 22 percent of 10th graders careful about alcohol use and the potential People who reported starting to drink and 29 percent of 12th graders had partici- impact that alcohol consumption can have before the age of 15 were four times pated in binge drinking within the past two on their developing brains. By drinking too more likely to also report meeting weeks of the survey. much alcohol too soon, young people may the criteria for alcohol dependence at The Substance Abuse & Mental Health be setting themselves up for dramatically some point in their lives. In fact, new Services Administration (SAMHSA) pub- increased likelihoods of developing alcohol research shows that the serious drink- lished information in 2011 stating that 74 dependency and other serious substance use ing problems (including what is called percent of people ages 18 to 30 who were disorders — all of which requiring clinical alcoholism) typically associated with admitted for substance abuse treatment re- intervention and treatment later in life. middle age actually begin to appear ported that they began using mood-altering The Lawyers Assistance Program, Inc. much earlier, during young adulthood substances at 17 or earlier. At least 10 percent (LAP) not only provides confidential assis- and even adolescence. of those admitted for treatment started using tance to lawyers and judges, but also to the Other research shows that the younger alcohol or drugs at age 11 or younger.2 family members of the Bar, including chil- children and adolescents are when they start Moreover, there appears to be an ad- dren and adolescents. If you are concerned to drink, the more likely they will be to en- ditional link between early alcohol use about alcohol or drug use by any member gage in behaviors that harm themselves and and the potential for addiction to multiple of your family, call LAP for confidential as- others. For example, frequent binge drinkers substances, not just alcohol. Of people sistance at (866)354-9334 or email LAP@ (nearly 1 million high school students na- who started drinking at age 11 or younger, louisianalap.com. tionwide) are more likely to engage in risky a staggering 78 percent of those people behaviors, including using other drugs such reported eventually abusing two or more FOOTNOTES as marijuana and cocaine, having sex with mood-altering substances prior to treatment. six or more partners, and earning grades that In contrast, for those who reported first 1. National Institute on Alcohol Abuse and Alco- holism, Alcohol Alert Number 67: “Underage Drink- are mostly Ds and Fs in school. starting to use alcohol later in life at age ing: Why Do Adolescents Drink, What Are the Risks, According to the NIH article referenced 25 to 30, less than half as many — 30.4 and How Can Underage Drinking Be Prevented?” above, the brain does not fully develop percent — reported abusing two or more http://pubs.niaaa.nih.gov/publications/AA67/AA67. until a person reaches his/her 20s. Child substances. Per SAMHSA: htm. 2. Substance Abuse & Mental Health Services Ad- and adolescent brains are at high risk for “Early to late adolescence is con- ministration: “Substance use during childhood or ado- damage by alcohol (and other mood-altering lescence is linked to long-term health risks.” http://www. sidered a critical risk period for the drugs). Nonetheless, alcohol use by minors samhsa.gov/newsroom/ad- beginning of alcohol and drug use,” is currently widespread. A 2005 study cited visories/1407174039.aspx. said SAMHSA Administrator Pamela by the NIH has established that three-fourths S. Hyde. “Knowing the age a person J.E. (Buddy) Stockwell is of 12th graders, at least two-thirds of 10th starts the use of a substance can inform the executive director of graders and about two in every five eighth the Lawyers Assistance treatment facilities so that they can graders have consumed alcohol. Program, Inc. (LAP) and better provide timely and appropriate More troubling still, when adolescents can be reached at (866)354- prevention and treatment programs.” 9334 or via email at LAP@ drink, a significant number of them “binge” louisianalap.com. drink, often consuming four to five drinks at As science uncovers more contributing

Louisiana Bar Journal Vol. 62, No. 3 203 FoProfessionalismcus on By Alan J. Yacoubian A question of balance

iven the inordinately high per- Step 2: Regain Control of Your Time Step 5: Protect and Nurture Good Re- centage of lawyers suffering In view of the inescapable truth that “time lationships from stress and depression in is money,” lawyers may be overwhelmed As we age, we come to realize and connection with the practice with the feeling of never having enough cherish the personal fulfillment of good ofG law, it is tempting to simply disparage time to “stay ahead.” Those who operate and nurturing relationships. Maintaining our entire profession. Perhaps it would by the billable hour know all too well that relationships that provide personal fulfill- make better sense to first look at ways to the more we work, the more we bill, and ment will allow us to feel satisfaction in enhance our own work situation. In exam- the more we bill, the more we make. This other areas, including work. Relationships ining ways to improve our professional practice, although seemingly having a posi- take time to develop and nurture, and it is life, it is encouraging to note that a survey tive financial result, will undeniably put a important that we incorporate relationships of published material on this issue reveals strain on our physical and emotional health, with our family and friends into our busy common themes suggested by experts. sense of work-life balance and ultimate schedule. Making regular dates with your These themes include acknowledging the happiness. To avoid the “slippery slope” family, scheduling mini-vacations, sharing need for change in your personal life and of chasing the next billable hour, we must a hobby or sport with a spouse or friend then developing a strategy for implementing draw the line at how much of our time we and not bringing work home all contribute this change. Any such strategy must include will devote to work.3 It has been said that to achieving the proper life-work balance efforts to develop more of a balance in life regaining control of our time will begin and nurturing those most important relation- 4 that reflect less of an emphasis on success in once we decide to allocate a certain portion ships. Make this the year that you take your the legal profession and more of a focus on of our time to our families, friends, hobbies family on a vacation, coach your son’s soc- happiness and satisfaction with the practice and other personal pursuits. cer team or invite a college friend to dinner. of law. Invariably, this strategy will focus on other aspects of your life that are equally, Step 3: Develop Good Time Management Step 6: Implement Healthy Lifestyle or more, important, including family, faith Skills Practices and personal interests. This article offers Once we regain control of our time, it is According to a North Carolina task force suggested strategies to improve your level essential that we develop good time manage- survey, a positive correlation exists between healthy lifestyle practices and subjective of job satisfaction. ment skills to maximize our productivity in 5 our personal and professional lives. Making well-being. The survey noted that healthier practices include exercise, attending faith- The 12-Step Process the most of your time while at work allows for efficiency and allocation of time toward based activities, prayer, hobbies, outdoor recreation, pleasure reading and weeks of personal endeavors which may operate to A thorough and direct approach toward vacation. To identify what you can do for increase your overall satisfaction in life. enhancing satisfaction in the legal profession yourself, put some things in writing.6 is offered by Hon. Carl Horn III, chief magis- ► Write a list of activities that nurture Step 4: Live Below Your Means trate judge for the Western District of North you, such as watching the sunrise, dancing, Although it is tempting to constantly Carolina. Judge Horn developed his “12 steps a massage, reading, etc. seek to increase our annual compensation toward personal fulfillment” in the practice of ► Next, make a list of things you would 1 and seek a big bonus at the end of the year, law. The following is a brief review of those do if you didn’t have to do them perfectly. such financial pursuits often inhibit our 12 steps, with additional comments. ► Make another list of things you would ability to choose a happier, more balanced do if you didn’t mind seeming silly. Step 1: Acknowledge Your Needs life. During tough economic times, it is ► Identify one activity you will pursue Given the increasing number of attorneys even more important to exercise discipline this month and one for this year. who report being unhappy with the practice over your spending. Taking responsibility After you have listed these items, do of law, the first question one needs to ask is with regard to our financial choices can what you say you are going to do and do whether you are pleased with the balance reduce the stressful financial pressures we not let anything else interfere. To prevent in your professional and personal life. This face on a daily basis and free us to make the demands of the office from permeating inquiry inevitably involves the question of more balanced decisions in other aspects into our individual lives, it is essential that whether you are having difficulty manag- of our lives. we are disciplined enough to engage in ing stress. 2 activities unrelated to work.

204 October / November 2014 Step 7: Encouragement of Individuals In the words of the immortal John Wooden, list of tips for planning a great vacation.10 Striving for Balance “Happiness begins where selfishness ends.”9 ► Commit to vacation dates and write Many of us are actively involved in our Nothing can give you greater joy than doing them on your calendar. law practice, including those of us who something for another. ► Select a vacation destination that is not have administrative roles in our law firm. accessible by cell phone or email. Being a partner or law firm administrator Step 10: Courts Must Respect the Re- ► Make monetary deposits for the trip. exposes us to the realities of “the bottom sponsible Efforts by Lawyers to Manage You will be less likely to back out if you put line,” which may complicate our ability to Time and Balance Lives money down. be mindful of others who are striving for We all recognize the need for courts to ► Contact your top clients and let them balance. Law firms have a responsibility ensure judicial efficiency. As the saying know you will be unavailable for those dates. to encourage their associates and partners goes, “Justice delayed is justice denied.” ► Send out bills two weeks before you to maintain a healthy and well-balanced However, there must be a balance between leave because you will need the cash flow lifestyle. The benefit of encouraging other the need for judicial expediency and the upon your return. lawyers to strike a balance between work right to manage one’s own calendar. In ► Pay your bills one month ahead for and their personal lives will ultimately recognition of the need for this balance, one less thing to worry about. benefit the bottom line by creating healthy North Carolina’s 18th Judicial District Court ► Block off the week before and week and happy lawyers. has adopted a vacation policy, which allows after your vacation to allow for full relaxation. lawyers to file with the court three weeks ► Take care of all vacation details in Step 8: Rigorously Apply the Golden of reserved vacation. During those reserved advance. Rule and Rule 11 weeks, none of those lawyers’ cases will be ► Arrange for another attorney to handle The Golden Rule of lawyering translates scheduled for hearing. This policy in North any emergencies. into the notion that lawyers should provide Carolina serves as an example in tolerance ► Make provisions for mail and phone calls. each other with courtesy and profes- for those lawyers who are striving to achieve ► Avoid calling your office and check- sionalism, including simple tasks such as a work-life balance. Without compromising ing emails. returning phone calls and providing prompt efficiency, the courts have a responsibility ► Finally, enjoy your trip and do not responses to discovery. Rule 11 imposes to respect reasonable efforts by lawyers to stress about work. consequences for a lawyer’s poor judgment better themselves and combat the negative or misconduct. Although not utilized often, stigma imposed on the legal profession. FOOTNOTES Rule 11 prevents lawyers from creating a hostile environment for the legal profession. Step 11: Law Schools Need to Prepare 1. Judge Carl Horn III, “Twelve Steps Toward Civility and professionalism in the practice Young Lawyers for the Real World Personal Fulfillment in Law Practice,” Law Practice Management (1999). of law allow for positive interaction among Those on the academic side of the legal 2. Dr. Maynard Brusman, “How to Master attorneys, which helps to promote content- profession have a responsibility to provide Stress,” Working Resources (2008). ment and conceal negativity. Judge Horn a realistic view of the life of the average 3. Horn, supra note 1. said, “I am struck by the way the Golden lawyer. Most practitioners can relate to 4. “Eight Tips Toward Balancing Home and Of- fice Life,” Capital Connection (November 1996). Rule and Rule 11 balance each other. The the notion that, as a law student, you have 5. Horn, supra note 1. former is the general rule, the foundation no idea what will be required from you as 6. Deborah K. Andelt, “Get a Life,” Legal Man- for good lawyering and living; the latter is a lawyer. Law schools should request that agement 73-74 (July/August 1998). the exception, a necessary last resort if we practitioners speak to students about their 7. Horn, supra note 1. 8. Horn, supra note 1. are to achieve what Rule 11 describes as the daily work and life experiences after law 9. John Wooden, Wooden: A Lifetime of Obser- overriding purpose of the Federal Rules of school. Those in private practice or other vations and Reflections On and Off the Court, 197. Civil Procedure: ‘the just, speedy, and in- fields of law should consider volunteering 10. Shannan L. Hicks, “Top 10 Tips to Planning expensive determination of every action.’”7 their time to mentor law students about a Great Vacation,” Louisiana Bar Journal (June/July 2008). the realities of practice. Law schools must Step 9: Live a Life Marked by Charity do their part by encouraging new lawyers Alan J. Yacoubian is a and Kindness to be faithful and ethical leaders in their partner in the New Or- Most appropriately noted by Judge Horn, field rather than being concerned about leans firm of Johnson, Yacoubian & Paysse, “[T]o the extent our profession has made getting rich. A.P.L.C. He received a BA us excessively combative, argumentative degree, cum laude, in 1982 and hard-nosed, these qualities eventually Step 12: Take Your Vacation from Tulane University will consume us if not properly balanced A renewed sense of energy and enthu- and his JD degree, cum laude, in 1985 from Tulane 8 with kindness, gentleness and charity.” To siasm can often come from taking time off Law School. He is a mem- balance these tendencies, we should seek work and enjoying that vacation you keep ber of the Louisiana State opportunities to give our time, resources, tal- putting off. In Europe and other parts of the Bar Association’s Commit- ents and enthusiasm to our community with world, employees are required to take up tee on the Profession. ([email protected]; Ste. 4700, 701 Poydras St., New Orleans, LA 70139-7708) the hope of making others feel appreciated. to six weeks of “holiday” a year. Here’s a

Louisiana Bar Journal Vol. 62, No. 3 205 Crossword Puzzle By Hal Odom, Jr. Special Proceedings Your advocate. 1 2 3 4 5 6 7 ACROSS DOWN

1 One appointed to manage the 1 Popular hot beverage (5) affairs of an interdict (7) 2 Seek political office (3) Your partner. 8 9 5 Applications for supervisory 3 One holding legal title to trust review (5) property (7) 8 Special proceeding analogous to 4 Place to dine on an elegant interpleader (9) train (10, 3) 10 11 12 Your LSBA Committee. 9 Test for many college seniors not 5 “___ may, ___ might” alternate title taking the LSAT (1, 1, 1) for “Star Light, Star Bright” (4, 1) 10 The most socially desirable 6 Extremely clever (9) 13 14 people (1, 4) 7 Big name in small swimwear (7) 12 Taking the same side in a 11 Alternative to a detailed descriptive lawsuit (7) list (9) 13 Floodwall (5) 13 Green, summertime drink (7) 15 16 17 18 14 Roundball, familiarly (5) 14 Gangster (7) 15 Refer to, without quoting (7) 16 Not appropriate (5) 17 Watering hole; sanctuary (5) 18 “The ___ falling,” mantra of 19 “Much ___ About Nothing” (3) Chicken Little (3, 2) 19 20 21 20 Not principal, as many special 21 Offroad motor bike (3) proceedings (9) 22 Where to find Memphis and Cairo (5) 22 23 23 Transfers from state to federal court (7) The Legal Malpractice Insurance Committee Your LSBA Committee serves you by ensuring: Answers on page 247. of the Louisiana State Bar Association • A strong policy offering essential coverages. holds the endorsed malpractice • An opportunity for coverage for the majority of Alcohol and Drug Abuse Hotline insurance carrier to a high standard of Louisiana attorneys. Director J.E. (Buddy) Stockwell III, 1(866)354-9334 accountability for the benefit of all its • Continuous oversight to ensure adequate and fair 1405 W. Causeway Approach, Mandeville, LA 70471-3045 • email [email protected] members. premium rates for a stable program.

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CNA is a registered trademark of CNA Financial Corporation. Copyright © 2014 CNA. All rights reserved. 206 October / November 2014 Your advocate. Your advocate. Your partner. Your partner. Your LSBA Committee. Your LSBA Committee.

The Legal Malpractice Insurance Committee Your LSBA Committee serves you by ensuring: The Legal Malpractice Insurance Committee Your LSBA Committee serves you by ensuring: of the Louisiana State Bar Association • A strong policy offering essential coverages. of the Louisiana State Bar Association • A strong policy offering essential coverages. holds the endorsed malpractice • An opportunity for coverage for the majority of holds the endorsed malpractice • An opportunity for coverage for the majority of insurance carrier to a high standard of Louisiana attorneys. insurance carrier to a high standard of Louisiana attorneys. accountability for the benefit of all its • Continuous oversight to ensure adequate and fair accountability for the benefit of all its • Continuous oversight to ensure adequate and fair members. premium rates for a stable program. members. premium rates for a stable program.

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CNA is a registered trademark of CNA Financial Corporation. Copyright © 2014 CNA. All rights reserved. CNA is a registered trademark of CNA Financial Corporation. Copyright © 2014 CNA. All rights reserved. Louisiana Bar Journal Vol. 62, No. 3 207 DISCIPLINE Reports REPORTING DATES 8/4/14 & 8/5/14 Your advocate. REPORT BY DISCIPLINARY COUNSEL

Your partner. Public matters are reported to protect the public, inform the profession and deter misconduct. Reporting date Aug. 4, 2014.

Decisions years’ supervised probation, ordered by FINAL and EFFECTIVE on June 20, 2014. Your LSBA Committee. the court as consent discipline on June 20, Gist: Commingling operating funds with Geraldine Broussard Baloney, La- 2014. JUDGMENT FINAL and EFFEC- client and third-party funds in client trust Place, (2014-B-1012) Suspended for TIVE on June 20, 2014. Gist: Neglected account. six months, fully deferred, subject to a legal matter; failed to promptly refund Margrett Ford, Shreveport, (2014- one-year supervised probation, ordered an unearned fee; and mishandled his client B-0831) Adjudged guilty of additional by the court as consent discipline on June trust account. violations warranting discipline, which 13, 2014. JUDGMENT FINAL and EF- John F. Dillon, Folsom, (2014-B-1090) shall be considered in the event she seeks FECTIVE on June 13, 2014. Gist: Engag- Six-month suspension, fully deferred readmission after becoming eligible to ing in a conflict of interest between two upon completion of a two-year period of do so with conduct occurring outside current clients that led to one client being probation, ordered by the court as consent the time frame of In Re: Ford, 12- overcharged for costs; and accepted an ag- discipline on June 20, 2014. JUDGMENT 1016, the minimum period for seeking gregate settlement on behalf of the clients without their informed consent. Donita Yvette Brooks, Harvey, (2014- The Legal Malpractice Insurance Committee Your LSBA Committee serves you by ensuring: B-1102) Suspended for one year and one of the Louisiana State Bar Association • A strong policy offering essential coverages. day, with all but six months deferred, subject to a one-year supervised pro- holds the endorsed malpractice • An opportunity for coverage for the majority of bation, ordered by the court as consent insurance carrier to a high standard of Louisiana attorneys. discipline on July 9, 2014. JUDGMENT FINAL and EFFECTIVE on July 9, 2014. accountability for the benefit of all its • Continuous oversight to ensure adequate and fair Gist: Lack of diligence; failure to com- members. premium rates for a stable program. municate; failure to return the unearned portion of a fee; failure to return a client file upon request; conduct involving misrep- resentation; and violating or attempting to violate the Rules of Professional Conduct. Craig Thomas Broussard, Lafay- ette, (2014-OB-0545) Reinstated to the practice of law ordered by the court on May 23, 2014. JUDGMENT FINAL and EFFECTIVE on May 23, 2014. gilsbarpro.com 800.906.9654 David P. Buehler, New Orleans, (2014-B-0619) Suspended for six months ordered by the court as reciprocal discipline on May 23, 2014. JUDGMENT FINAL and EFFECTIVE on June 6, 2014. Gist: Reciprocal discipline imposed for miscon- duct occurring in Virginia. David Augustus Capasso, New Or- leans, (2014-B-1186) Suspended for 18 months, fully deferred, subject to two

CNA is a registered trademark of CNA Financial Corporation. Copyright © 2014 CNA. All rights reserved. 208 October / November 2014 DISCIPLINARY REPORT: UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA The following is a verbatim report of the matters acted upon by the United States District Court for the Eastern District of Louisiana, pursuant to its Disciplinary Rules. This information is published at the request of that court, which is solely responsible for the accuracy of its content. This report is as of Aug. 5, 2014. Respondent Disposition Date Filed Docket No. Johnny S. Anzalone (Reciprocal) Interim suspension. 7/29/14 14-1233 Seth Cortigene (Reciprocal) Permanent disbarment. 7/29/14 14-1070 Craig A. Davis (Reciprocal) Deferred suspension. 7/29/14 14-1223 Darrell K. Hickman (Reciprocal) Deferred suspension. 7/29/14 14-1222 Devin W. Morris (Reciprocal) Deferred suspension. 7/29/14 14-1225 Newton B. Schwartz, Sr. Enjoined for 3 years from seeking admission to EDLA. 7/29/14 14-1070

Discipline continued from page 208 Clyde Lain, Jr., Monroe, (2014-OB- admission to the Louisiana Bar revoked. 1021) Permanent resignation from the William Steven Mannear, Baton readmission shall be extended for one practice of law ordered by the court on Rouge, (2014-OB-1390) Permanently year, subject to conditions, ordered by June 13, 2014. JUDGMENT FINAL and resigned from the practice of law in the court on June 20, 2014. JUDGMENT EFFECTIVE on June 13, 2014. lieu of discipline ordered by the court FINAL and EFFECTIVE on July 7, 2014. Robin Kent Ljungberg, Covington, on July 8, 2014. JUDGMENT FINAL Gist: Neglect of legal matters; failure to (2014-B-1393) Conditional admission and EFFECTIVE on July 8, 2014. Gist: communicate with clients; failure to return revoked ordered by the court on July 8, Commission of a criminal act; engaging unearned fees; failure to cooperate with the 2014. JUDGMENT FINAL and EFFEC- ODC in its investigations; and violating the TIVE on July 8, 2014. Gist: Conditional Continued next page Rules of Professional Conduct. Darrell K. Hickman, Alexandria, (2014-B-0817) Suspended for one year, fully deferred, ordered by the court on May 16, 2014, as consent discipline. JUDG- MENT FINAL and EFFECTIVE on May 16, 2014. Gist: Failing to properly com- municate with a client; and misleading the client about the status of her legal matter. Troy A. Humphrey, Baton Rouge, (12-DB-073) Public reprimand ordered by the Louisiana Attorney Disciplinary Board on May 23, 2014. JUDGMENT FINAL and EFFECTIVE on June 12, 2014. Gist: Failing to return unearned fees and violating the Rules of Profes- sional Conduct. William F. Kendig, Jr., Shreveport, chrIstoVIch & KearneY, llp (2014-B-1059) Suspended for one year attorneYs at law and one day, with all but six months deferred, followed by a two-year peri- od of unsupervised probation, ordered DEFENSE OF ETHICS COMPLAINTS AND CHARGES by the court as consent discipline on June 20, 2014. JUDGMENT FINAL and EF- e. phelps GaY KeVIn r. tullY FECTIVE on June 20, 2014. Gist: Fail- elIzaBeth s. cordes ure to exercise independent professional judgment and render candid advice; con- (504)561-5700 flict of interests; and violating or attempt- ing to violate the Rules of Professional 601 poYdras street, suIte 2300 Conduct. new orleans, la 70130

Louisiana Bar Journal Vol. 62, No. 3 209 Discipline continued from page 209 pervised probation, ordered by the court and conversion; collected an excessive as consent discipline on May 16, 2014. fee; failed to timely turn over property and in conduct involving dishonesty, fraud, JUDGMENT FINAL and EFFECTIVE funds belonging to third parties; failed to deceit or misrepresentation; and violat- on May 16, 2014. Gist: Neglecting two seek approval of his attorney’s fees in a ing or attempting to violate the Rules of matters; failing to properly communicate workers’ compensation matter; charged Professional Conduct. with a client; failing to account for work clients his hourly fee for services such as Jennifer Matte, Lake Charles, (2014- performed; failing to timely return a client’s typing and updating his time sheet; caused OB-1200) Transferred to active status file upon termination of the representation; a mistrial; failed to refund unearned fees; ordered by the court on June 20, 2014. and failing to fully cooperate with ODC and failed to cooperate with the ODC in JUDGMENT FINAL and EFFECTIVE in its investigation. its investigations. on June 20, 2014. Cory Scott Morton, New Orleans, Charles Phillips II, Bossier City, Kenner O. Miller, Jr., Baton Rouge, (2014-B-1349) Interim suspension or- (2014-B-0714) Disbarment ordered by (2014-B-0538) Permanent disbarment dered by the court on June 27, 2014. the court on June 13, 2014. JUDGMENT ordered by the court on May 23, 2014. Clarence T. Nalls, Jr., Baton Rouge, FINAL and EFFECTIVE on June 27, JUDGMENT FINAL and EFFECTIVE on (2013-B-2873) Disbarment ordered by the 2014. Gist: Neglected legal matters; failed June 6, 2014. Gist: Commingled, converted court on May 7, 2014. Rehearing denied to communicate; failed to account for or and/or misappropriated $208,260.83 in on July 1, 2014. JUDGMENT FINAL refund unearned fees; and failed to coop- client and third-party funds over a period and EFFECTIVE on July 1, 2014. Gist: erate with the ODC in its investigations. of approximately three years. Engaged in the unauthorized practice of Barry S. Ranshi, New Orleans, (2014- David J. Mitchell, New Orleans, law following his suspension; failed to B-0767) Conditional admission to the (2013-B-2688) Permanent disbarment inform clients of his suspension; collected practice of law in Louisiana revoked ordered by the court on May 7, 2014. Re- a fee following his suspension; failed to ordered by the court on May 13, 2014. hearing denied on July 1, 2014. JUDG- provide a client with a copy of his file; and JUDGMENT FINAL and EFFECTIVE on MENT FINAL and EFFECTIVE on July failed to promptly manage and account for May 13, 2014. Mr. Ranshi may not reapply 1, 2014. Gist: Conduct involving dis- clients’ funds. for admission until he can demonstrate honesty, fraud, deceit and misrepresen- Otha Curtis Nelson, Sr., Baton Rouge, at least a one-year period of sobriety and tation; violating or attempting to violate (2013-B-2699) Suspended for three compliance with the terms and conditions the Rules of Professional Conduct; and years, with all but one year deferred, of a contract with the Lawyers Assistance making an agreement for, charging or subject to two years’ supervised proba- Program. collecting an unreasonable amount for tion following the active portion of his Ronald A. Rossitto, Lake Charles, expenses. suspension, ordered by the court on May (2014-B-1273) Interim suspension or- Devin W. Morris, Denver, Colorado, 7, 2014. Rehearing denied on July 1, 2014. dered by the court on June 30, 2014. formerly of Baton Rouge, (2014-B-0730) JUDGMENT FINAL and EFFECTIVE on Chanci Shermaine Shaw, Melville, Suspended for one year and one day, July 1, 2014. Gist: Mishandled his client (2014-B-0714) Permanently disbarred fully deferred, subject to successful trust account, resulting in commingling completion of a one-year period of unsu- Continued next page M E B R S Advice and counsel concerning legal and judicial ethics A L P H B E T I C Defense of lawyer and judicial discipline matters

RepresentationA L in bar admissions proceedings Y

www.sswethicslaw.comF I E L D S — Advice and counsel concerning legal and judicial ethics —

LESLIE J. SCHIFF STEVEN SCHECKMANO F JULIE BROWN WHITE Over 25 Years’ Experience Former Special Counsel, Former Prosecutor, — Defense of lawyer and judicial discipline matters — P R

Disciplinary Defense Counsel Judiciary CommissionA (1994-2008) Offi ce of Disciplinary Counsel (1998-2006) C T I E — Representation117 in W.ba Landryr adm Streetissions proceedings — 829 Baronne Street 11715 Bricksome Avenue, Suite A-3 Opelousas, Louisiana 70570 New Orleans, Louisana 70113 Baton Rouge, Louisiana 70816 Phone (337)942-9771 • Fax (337)942-2821 Phone (504)581-9322 • Fax (504)581-7651 Phone (225)293-4774 • Fax (225)292-6579 [email protected] [email protected] [email protected]

LESLIE J. SCHIFF 20 Years’ Experience, Disciplinary Defense Counsel

210 October117 W. /L Novemberandry Stre e2014t E X P R Opelousas, Louisiana 70570

Phone 337.942.9771 • Fax 337.942.2821 T &

[email protected] S E R V I C E S STEVEN SCHECKMAN Former Special Counsel, Judiciary Commission (1994-2008) 829 Baronne Street New Orleans, Louisana 70113 Phone 504.581.9322 • Fax 504.581.7651 [email protected]

JULIE BROWN WHITE Former Prosecutor, Office of Disciplinary Counsel (1998-2006) 11404 N. Lake Sherwood Ave., Suite A Baton Rouge, Louisiana 70816 Phone 225-293-4774 • Fax 225.293.6332 [email protected] ordered by the court on June 20, 2014. a legal matter; failure to communicate No. of Violations JUDGMENT FINAL and EFFECTIVE with a client; commingling client funds; on July 7, 2014. Gist: Felony conviction and failure to promptly deliver settlement A person the lawyer knows to be represented of theft by fraud. funds to a client. by another lawyer in the matter...... 1 C. Hearn Taylor, New Orleans, (2014- Frank V. Zaccaria, Jr., Bossier City, Simultaneously representing clients with B-0646) Suspended for one year and one (2014-OB-1237) Transfer to disability adverse interests...... 1 day ordered by the court on May 23, 2014. inactive status ordered by the court on JUDGMENT FINAL and EFFECTIVE on June 30, 2014. JUDGMENT FINAL and Threaten to present criminal or disciplinary June 6, 2014. Gist: Neglected client’s legal EFFECTIVE on June 30, 2014. charges solely to obtain an advantage in a matters; failed to communicate; failed to civil matter...... 1 refund unearned fees; and failed to cooper- Admonitions (private sanctions, often with TOTAL INDIVIDUALS ate with the Office of Disciplinary Counsel. notice to complainants, etc.) issued since ADMONISHED...... 2 Bridget Brennan Tyrrell, New Or- the last report of misconduct involving: leans, (2014-B-1187) Suspended for 18 months ordered by the court as consent discipline on June 20, 2014. JUDGMENT Callihan Law Firm, LLC FINAL and EFFECTIVE on June 20, 2014. Representation in lawyer disciplinary complaints and proceedings Gist: Practiced law while ineligible to do so; and failed to cooperate with the ODC in its investigation. Damon S. Manning Channing J. Warner, Gretna, (2014- Former Investigator, Prosecutor & 1st Assistant Disciplinary Counsel B-1060) Suspended for one year and 15 years experience with ODC (1998–2014) one day, fully deferred, followed by two years’ supervised probation, ordered by 14465 Wax Road, Suite A the court as consent discipline on June 20, Baton Rouge, LA 70818 2014. JUDGMENT FINAL and EFFEC- (225)261-6929 TIVE on June 20, 2014. Gist: Neglect of [email protected]

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Louisiana Bar Journal Vol. 62, No. 3 211 Recent Developments ADR to Taxation

Seldom does a week go by where we do not low, crime rates rank among the nation’s hear alarming reports about alleged police highest, high-profile officer convictions Alternative misconduct. Many make national headlines; have led to public distrust, and a deep Dispute however, below the media’s radar are less history of oppression strains relationships dramatic, though still troubling, encounters with communities of color. The City of Resolution between police and community members in New Orleans needs an alternate means of need of the same transformation and heal- creating mutual understanding and trans- ing of relationships. At the root of many forming community-police relationships. New Orleans’ community-police conflicts are poor com- In New Orleans, complaints of officers’ munication and a misunderstanding (or an alleged misconduct may be filed with the Community Members incomplete understanding) of police work. Office of the Independent Police Monitor and Police Mediate With the new Community-Police Media- (OIPM) or the Public Integrity Bureau Conflict tion Program, complaints such as lack of (PIB), the investigative arm of the NOPD. professionalism, discourtesy and neglect of Investigations of police misconduct Those who practice in the field of alterna- duty may now be mediated in New Orleans. complaints have limited efficacy in some tive dispute resolution know that mediation The mediation program comes at a time types of cases — particularly those that changes lives, transforms relationships and when morale within the New Orleans Po- are “she said/he said” and discourtesy/ creates a space for healing and forgiveness. lice Department (NOPD) is at an all-time attitude-based cases. Complaints can take

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BATON ROUGE • NEW ORLEANS • LAFAYETTE • SHREVEPORT W. Ross Foote • E. Phelps Gay • Michael A. Patterson • Michael W. McKay • Patrick S. Ottinger

212 October / November 2014 up to 180 days to be investigated by the improves community-police relations. havior that hurts the ability of each side to PIB, and residents often receive a letter in Local commissions and federal bodies relate to the other. While traditional dis- the mail stating that their complaint could required the creation of a Community- cipline is an important and necessary tool not be sustained because it lacked physi- Police Mediation Program in New Orleans: to achieve this goal, mediation is a more cal evidence or witnesses. The complaint, the Police-Civilian Review Task Force in powerful tool to bring about a deeper and however, remains on the officer’s record, 2001, the Department of Justice’s Civil lasting change. Relationships deepen. affecting promotions and other opportuni- Rights Division in 2011, the New Orleans Trust is gained. There is no losing side. ties. Often, neither party is satisfied with City Ordinance creating the OIPM, and the Both participants come away with the the process. By contrast, a three-year study Memorandum of Understanding between gift of genuine understanding and a new of police mediation programs in other U.S. the NOPD and the OIPM. ability to talk out conflict. The Commu- cities revealed a 90-100 percent satisfaction The OIPM administers and coordinates nity-Police Mediation Program offers rate from both civilian complainants and the program in accordance with the laws the tools of incremental healing to a city police officers after a mediation session. requiring such a program with a small urgently trying to rebuild its trust and The Community-Police Mediation temporary grant from the U.S. Department confidence in the police department and Program is the first of its kind for New of Justice’s Community-Oriented Policing bridge relationships between the commu- Orleans and one of the first in the U.S. Services. The OIPM has applied for public nity and the police to create a safer city. South. The program was established with financing for the mediation program from community and NOPD support to build Mayor Landrieu and the City of New —Sister Alison R. McCrary, CSJ mutual understanding and improve rela- Orleans to ensure the sustainability and Community-Police Mediation Program tionships between residents and officers. success of the low-cost program with many Coordinator Mediation is a voluntary and confidential benefits to public safety. The number one Office of the Independent Police Monitor process that helps residents and officers reason around the country for the failure Office of the Inspector General share how their interaction affected each of these programs is the lack of public City of New Orleans other and listen to the other person. It is financing. 525 St. Charles Ave. a non-confrontational, participant-driven The goal in police misconduct investi- New Orleans, LA 70130 process facilitated by two profession- gations is determining and correcting be- ally trained neutral mediators to help the resident and the officer reach a mutually agreeable solution. Mediation allows the complainant to be fully heard and understood and to speak directly with the officer. The process also gives officers feedback and helps to prevent similar incidents from occurring in the future. The community member is able to regain confidence in police services and to play an active role in creating a solution. Officers have the opportunity to gain new understandings, improve community rela- tionships and trust, explain why they may have acted the way they did on a certain day and share about their role. Mediation is powerful because both the complainant and the officer can gain an understanding of why the other person acted as he or she did. When the parties gain this knowledge, the other’s behavior is put into a new context that is more understandable. The person may not approve of what happened, but he can understand why it happened. When mediation is successful, this understanding can, and often does, lead to forgiveness and healing. In the long term, mediation helps with resource efficiency in the handling of complaints, resolves complaints in a satisfactory manner for all involved and

Louisiana Bar Journal Vol. 62, No. 3 213 lien on the property. with the primary issue of “whether, after Sometime thereafter, 804 Congress de- an automatic stay in bankruptcy has been faulted on the note, abandoned the property, lifted and a creditor is permitted to fore- Bankruptcy and Wells Fargo initiated foreclosure-sale close on real property, federal or state law Law proceedings on the property. In response, governs an oversecured creditor’s recovery 804 Congress filed for bankruptcy. Wells of attorneys’ and other fees from the sale Fargo sought relief from the stay, and proceeds.” 756 F.3d at 371. Goldsby conducted a non-judicial foreclo- The 5th Circuit began by noting that Federal Law, not sure on the property. In order to distribute while the majority of Wells Fargo’s attor- the proceeds among the creditors, the neys’ fees were incurred post-petition, it did State Law, Governs bankruptcy court ordered the creditors to seek pre-petition fees as well. In reviewing Distribution of Fees file proofs of claim. The bankruptcy court the claim for pre-petition attorneys’ fees, the Pursuant to subsequently ordered Goldsby to pay VIA 5th Circuit cited to its opinion in Blackburn- Lending in full, to pay herself $7,500, and Bliss Trust v. Hudson Shipbuilders, Inc., 794 11 U.S.C. § 506(b) to pay Wells Fargo in full, except for its F.2d 1051 (5 Cir. 1986), where the court claim for attorneys’ fees, which the court held that 11 U.S.C. § 506(b) governs, rather Wells Fargo Bank, N.A. v. 804 Congress, completely disallowed as being unreason- than state law. In Hudson Shipbuilders, the L.L.C., 756 F.3d 368 (5 Cir. 2014). able. Wells Fargo appealed to the district 5th Circuit reasoned that bankruptcy courts 808 Congress, L.L.C. (debtor) owned an court, which found that once the foreclo- have jurisdiction in regard to pre-petition office building in Austin, Texas (property). sure sale occurred, the bankruptcy court attorneys’ fees pursuant to section 506(b) Wells Fargo Bank financed the purchase ceased to have jurisdiction over the sale because Congress “intended that federal law of the property through a real-estate-lien proceeds. Deciding that the sale proceeds should govern the enforcement of attorneys’ note, which was secured by a deed of trust. were governed by Texas law, the district fee provisions, notwithstanding contrary Greta Goldsby became the substitute trustee court remanded for further proceedings and state law.” The 5th Circuit went on to find under the Wells Fargo deed of trust. 804 ordered Goldsby to distribute the proceeds no discernible basis to treat post-petition Congress later obtained another loan from under Texas law. attorneys’ fee claims any differently. VIA Lending, secured by a second-priority On appeal, the 5th Circuit was faced Moving on to the issue of reasonable-

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214 October / November 2014 ness as to the Wells Fargo attorneys’ fees, the court to vacate the ruling by arguing that 1018 (5 Cir. 1991). While Bell argued that the 5th Circuit again turned to Hudson the Trust was ineligible to file for Chapter the bankruptcy court lacked subject-matter Shipbuilders, in which it determined that a 7 relief as it should have been classified as jurisdiction over the Trust, the 5th Circuit bankruptcy court has the power to decide a spendthrift trust. disagreed, stating that “[a] district court’s whether attorneys’ fees are reasonable even The bankruptcy court denied the motion exercise of subject-matter jurisdiction, even if the contractual attorneys’ fee provisions to reopen, finding that Bell would not have if erroneous, is res judicata and is not subject are presumed valid under state law. The been able to obtain Rule 60 relief as the rul- to collateral attack through Rule 60(b)(4) 5th Circuit agreed with the 11th Circuit ing was never appealed. The district court if the party seeking to void the judgment decision in Welzel v. Advocate Realty Invs., affirmed the bankruptcy court, reasoning had the opportunity previously to challenge L.L.C., 275 F.3d 1308, 1314 (11 Cir. 2001), that a Rule 60 motion is not a substitute for jurisdiction and failed to do so.” Finding which found that the language of section a timely appeal and, while Bell had ample that Bell had sufficient opportunities to ap- 506(b) does not indicate that “just because opportunity to appeal the ruling, she failed peal the classification of the Trust and the a given fee arrangement is enforceable un- to do so. bankruptcy court’s exercise of jurisdiction der state law, it should be exempt from the On appeal, the 5th Circuit reviewed the but failed to do so, the 5th Circuit affirmed. reasonableness standard.” The 5th Circuit text of section 350(b), which states that a reasoned that the bankruptcy court was “case may be reopened in the court in which —Tristan E. Manthey within its discretion to find Wells Fargo’s such case was closed to administer assets, Chair, LSBA Bankruptcy Law Section fees unreasonable as the claims were entirely to accord relief to the debtor, or for other and unsubstantiated. cause.” The 5th Circuit determined that the Alida C. Wientjes As to the issue of “whether § 506(b) phrase “for other cause” grants discretion Member, LSBA Bankruptcy Law Section categorically forecloses recovery of fees to the bankruptcy court to decide when to Heller, Draper, Patrick, Horn or charges found to be unreasonable” or reopen a bankruptcy case. Such “discre- & Dabney, L.L.C. whether parties can seek fees under 11 tion depends upon the circumstances of Ste. 2500, 650 Poydras St. U.S.C. § 502 as an unsecured claim, the 5th the individual case and accords with the New Orleans, LA 70130 Circuit declined to make a determination equitable nature of all bankruptcy court due to the sparse factual record. Therefore, proceedings.” In re Case, 937 F.2d 1014, the 5th Circuit remanded the case to the bankruptcy court to consider whether Wells Fargo may seek to recover pre- or post- petition attorneys’ fees under section 502, even though the bankruptcy court found the claims unreasonable under section 506(b).

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Louisiana Bar Journal Vol. 62, No. 3 215 been incorporated into the Model Act to be stated in the articles of incorporation, provisions that served as a drafting guide for leaving it to the discretion of the incorporator Corporate and the LBCA and will continue in effect after and/or legal counsel drafting the articles of Jan. 1, 2015, several significant changes incorporation. La. R.S. 12:24 C(4). While Business Law will impact both seasoned business lawyers seasoned corporate attorneys routinely and persons unfamiliar with the nuances of advise the inclusion of exculpation corporate practice. One significant change provisions, persons forming a Louisiana affects the minimum provisions required to corporation via the forms on the Secretary Exculpation of Directors be included in the articles of incorporation of State’s website who may not seek legal and Officers for when forming a Louisiana corporation. counsel beforehand usually do not provide After Jan. 1, 2015, a statement indicating such provisions, unaware of the possible Personal Liability for whether, and to what extent, the protection pitfalls and benefits associated with them. Breach of Fiduciary Duty against personal liability of directors and In view of the routine practice of corporate officers against monetary damages to the lawyers to include such provisions, and in A significant revision of the Louisiana corporation and its shareholders for breaches order to provide the benefits of exculpation Business Corporation Law, La. R.S. 12:1 of fiduciary duty will be a mandatory of directors and officers to persons who et seq., has been passed by the Louisiana provision of the articles of incorporation. may not seek legal counsel, in drafting the Legislature and signed by Gov. Jindal (also Articles of incorporation submitted for LBCA, the Corporate Laws Committee of discussed in this section in the August/ filing to the Secretary of State that lack the Louisiana State Law Institute opted to September 2014 Louisiana Bar Journal). such a statement regarding the exculpation require an express election to be made and to The amendments and revisions contained of directors and officers will be rejected. be described in the articles of incorporation. in Act No. 328 will go into effect on Jan. Under the currently existing Louisiana Like Section 91 currently in effect, 1, 2015, after which time Louisiana’s Business Corporation Law, provisions the LBCA provides a “default” rule of corporate statute will be renamed the limiting or eliminating the personal liability exculpating directors and officers from Louisiana Business Corporation Act (the of a director or officer to the corporation or personal liability for monetary damages for LBCA). While many aspects of Louisiana’s its shareholders for monetary damages for breaches of the fiduciary duties those persons corporate statutes currently in effect have breaches of fiduciary duties are not required owe to the corporation and its shareholders. THESE EYES HAVE IT

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216 October / November 2014 In order to keep this default rule consistent Ms. Stephens filed a claim for post- and avoid disrupting settled practice relating divorce spousal support in January 1996. to it, the Corporate Laws Committee The parties were divorced on Oct. 26, 2004. broadened the exculpation provision of Family In April 2009, she filed an amended and the Model Business Corporation Act by Law supplemental rule for final spousal support. including features of Section 91 currently He then filed an exception of peremption in effect. Therefore, the Corporate Laws under La. Civ.C. art. 117. The trial court Committee included among the limitations granted the exception, and the court of ap- on the exculpation from personal liability Spousal Support peal affirmed, finding that her 1996 claim afforded to directors and officers of a was abandoned for failure to take any step Louisiana corporation an exclusion for King v. King, 48,881 (La. App. 2 Cir. in its prosecution and, further, that all of the monetary damages for breaches of the 2/26/14), 136 So.3d 941. time delays provided in article 117 had run. director’s or officer’s duty of loyalty to the Ms. King had justifiable legal cause to leave the matrimonial domicile and thus corporation or its shareholders. On this Child Support point, Louisiana law as it currently exists was not at fault for abandonment, and, in any case, Mr. King did not ask her to return. afforded greater protection to corporations State, Dept. of Social Servs. v. F.P., and shareholders than the Model Act, under His lack of support of her during her serious medical issues, accusations of her having 13-0894 (La. App. 5 Cir. 4/23/14), 140 which directors and officers retain personal So.3d 328. liability only for the amount of a financial an affair, the decision to terminate the marriage, cutting off the television service, Because Mr. Payne’s driver’s license benefit improperly received by the director was administratively suspended for non- or officer. removing her from a checking account and terminating her Internet service all payment of child support, the juvenile court Accordingly, persons forming a Louisiana judge could not order the license restored corporation will need to describe the extent made their living together insupportable. The final spousal support award of $500 to him. He was required to proceed by the to which the default rule of exculpation in proper statutory administrative procedures. the LBCA applies by indicating whether the per month was reduced to $421.58 per exculpation protection is accepted, rejected month because that was the gap between or accepted with limitations. A statement that her income and her expenses. Internet and Custody the exculpation provision is accepted will television services were considered as mean that the protections against personal necessary expenses since she had medi- Wootton v. Wootton, 49,001 (La. App. 2 liability for monetary damages under the cal issues and was not able to leave her Cir. 5/14/14), 138 So.3d 1253. LBCA will be afforded to corporation’s house often. Costs for Medicare coverage, When Mr. Wootton filed for divorce directors and officers to the fullest extent. although not to be incurred until one month in Caddo Parish in 1998, the mother and Likewise, a statement that the exculpatory after the hearing, were also appropriately children were living in Mississippi. Their provision of LBCA is rejected means that included in her expenses as the court ac- 2009 consent judgment provided for joint the corporation’s directors and officers will cepted her testimony that these expenses custody, with the mother as domiciliary not be protected against personal liability for would definitely occur. Net income for parent, and the mother’s residence as monetary damages in any way. A statement spousal support purposes is distinguishable the children’s legal domicile. The judg- that purports to limit the application of from “disposable income.” ment also provided that Louisiana would the LBCA’s protection against personal retain jurisdiction over all future custody liability must be accompanied by an express Stephens v. Stephens, 48,957 (La. App. 2 litigation. description of the manner of limitation in Cir. 4/9/14), 137 So.3d 1242. The father subsequently moved to order to be effective. A statement limiting the protection against liability that is not accompanied with a description of the A Fresh Perspective manner of the limitation will be ineffective, and the protection against liability will be On Your Case applicable to the corporation’s directors and officer without any limitation whatsoever.

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Louisiana Bar Journal Vol. 62, No. 3 217 Ouachita Parish and filed a motion to Link v. Link, 13-1441 (La. App. 3 Cir. for the Department and repurchased the transfer and change the venue, which was 5/7/14), 139 So.3d 659. credits by withdrawals from her paychecks granted. He then filed to modify the prior An award of sole custody pursuant during and after the termination date of custody judgment, and the mother filed to a default judgment obtained when the the parties’ matrimonial regime, with the exceptions of prematurity, lack of juris- mother did not appear at the custody trial final lump-sum payment coming after the diction, no cause of action and forum non is not subject to the Bergeron burden of termination of the community. The credits conveniens, primarily on the grounds that proof, even though the court heard some earned during the community and those Mississippi was the children’s home state testimony from the father regarding paren- repurchased were community property and that Louisiana was an inconvenient tal fitness. The burden of proof to modify because they were earned during the com- forum. The trial granted her exceptions a default judgment is the low evidentiary munity regime, even though some were of prematurity and lack of jurisdiction, standard of prima facie evidence, and “a repurchased with her separate property. and Mr. Wootton appealed. The court considered decree in the best interest of She was entitled to a reimbursement for of appeal affirmed the judgment, find- the children mandates a higher evidentiary her separate property used to repurchase ing that Mississippi was the children’s consideration of the circumstances of the community credits. home state, that Ouachita Parish did not litigants that is simply not met by a default have jurisdiction and that the continuing judgment proceeding.” Olson v. Olson, 48,968 (La. App. 2 Cir. jurisdiction provision of the prior consent 4/23/14), 139 So.3d 539. judgment was unenforceable as subject Community Property Because the parties obtained a court-ap- matter jurisdiction cannot be conferred by proved, post-nuptial separation-of-property agreement of the parties. Moreover, while Barker v. Barker, 13-0116 (La. App. 1 agreement, they were co-owners of certain Caddo Parish might have had jurisdiction, Cir. 12/18/13), 137 So.3d 16. entities formed thereafter and owned other it had divested itself of that jurisdiction by Ms. Barker had her retirement contri- property as separate property. Following Ms. transferring the matter to Ouachita Parish butions to the Baton Rouge City Police Olson’s petition for divorce and for partition on the grounds that none of the parties Department Retirement System refunded of co-owned property, Mr. Olson petitioned continued to live there. Louisiana was also to her during the marriage, and the parties to declare the post-nuptial contract null and an inconvenient forum as the evidence spent the funds. She later went back to work sought a jury trial. In contrast to Brumfield, regarding the children was in Mississippi. 477 So.2d 1161 (La. App. 1 Cir. 1985), a jury

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218 October / November 2014 trial was not available because the petition to appeals from rulings on rules to show cause Act suspended the tolling of all deadlines, declare the agreement null was filed after a regarding particular property issues were based on its other findings. petition for divorce had been filed, whereas in dismissed because the judgments were Brumfield no separation or divorce proceed- interlocutory and not appealable because Procedure ings had been filed. The contract was valid, no irreparable harm was shown. The court’s even though a single attorney represented ruling on a QDRO was interlocutory because Okechukwu v. Okechukwu, 13-1421 (La. both parties in confecting and entering the the order had not been qualified by the plan App. 3 Cir. 5/21/14), 139 So.3d 1135. post-nuptial agreement, because they ap- administrator per La. R.S. 9:2801(B). The court of appeal reversed the peared before the court, who rendered a trial court’s granting of Mr. Okechukwu’s judgment finding that the parties understood Adoption exception of no cause of action to Ms. the agreement and that it served their best Okechukwu’s petition for protection from interests. Both parties had consented to the In re Puckett, 49,046 (La. App. 2 Cir. abuse, finding that her allegations had to attorney’s dual representation. 4/17/14), 137 So.3d 1264. be accepted as true, and, even though the Although the court stated that the two The trial court granted an intrafamily alleged abuse was remote in time, “although co-owned condominium units were to be adoption, and Mr. Puckett, who had been La. R.S. 46:2135 requires that the danger partitioned in kind, both were partitioned serving in the military, appealed. The court of abuse be immediate and present, there to her, which was inappropriate under the of appeal reversed, finding that the mother is no statutory requirement that the abuse articles controlling partition of co-owned and her new husband failed to show by clear itself be recent, immediate, or present.” The property. As the units could not be divided and convincing evidence that the biological court declined to adopt a bright line rule of in kind, they had to be partitioned by licita- father refused or failed to visit, communicate how recent any abuse must have occurred in tion and sold. Moreover, the court could or attempt to communicate with the child order to qualify a petitioner for relief under not partition movable property between the without just cause for a period of at least six La. R.S. 46:2135(A). In this case, it gave parties, as such property was their separate, months. The court of appeal noted that the credence to the allegations made in the peti- not co-owned, property. The court could not burden of showing that the failure to com- tion and found that Ms. Okechukwu’s fear partition a corporation and LLCs owned by municate was “without just cause” rested of the danger of being abused was real and the corporation or the property owned by the on the petitioners and that their obstruction sufficient to entitle her to a protective order entities as the parties owned their shares in of Mr. Puckett’s communication with the despite that no actual abuse had occurred the corporation as separate property, not co- child contributed to their failure to prove in the 11 months before she filed the peti- owned property. As such, there was nothing that he did not communicate with the child. tion. The court of appeal remanded for the to partition as each already had a separate He had made numerous attempts, through trial court to issue a protective order and to ownership. The vehicle to obtain ownership numerous avenues, to communicate and to proceed under La. R.S. 46:2136. of the property was by dissolving the entities establish a relationship with the child, but and having the assets liquidated. Ms. Olson’s was thwarted by the mother and step-father —David M. Prados claims regarding the entities’ debts to her at almost every turn. The restrictions upon Member, LSBA Family Law Section were not subject to partition proceedings. him due to his military service were also Lowe, Stein, Hoffman, Allweiss a consideration in finding that his lack of & Hauver, L.L.P. Goines v. Goines, 13-0981 (La. App. 5 Cir. communication was not without just cause. Ste. 3600, 701 Poydras St. 4/23/14), 140 So.3d 314. Although he raised the Service Member’s New Orleans, LA 70139-7735 Because the parties’ community property Civil Relief Act, the court of appeal found was not fully partitioned, their respective that it did not have to address whether that

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Louisiana Bar Journal Vol. 62, No. 3 219 Star, and Wisznia appealed. Star countered that no possible claim The 5th Circuit, lacking a Louisiana existed that Wisznia breached any general Insurance, Tort, Supreme Court decision on point, duty of care to report unsafe conditions Workers’ recognized it should “predict how, in our or protect persons. The petition alleged, Compensation & best judgment, that court would decide the inter alia, that Wisznia was negligent Admiralty Law question,” deferring to Louisiana’s civil and breached its contractual and warranty law tradition of first examining “‘primary obligations to Jefferson Parish by: sources of law’ — the constitution, codes, ► designing and preparing a defective Duty to Defend: The and statutes — because ‘[j]urisprudence . . . set of plans and specifications; Eight-Corners Rule is a secondary law source in Louisiana.’” ► failing to coordinate the design Under Louisiana law, the insurer’s duty with its consultants effectively and Wisznia Co. v. Gen. Star Indem. Co., to defend suits brought against its insured professionally; No. 13-31125, ____ F.3d ____, 2014 WL “is broader than its liability for damage ► failing to design the Performing 4199555 (5 Cir. 7/16/14). claims.” Thus, the insurer’s duty to defend Arts Center with any accurate and Wisznia, an architecture firm, is determined by comparing the insurance sufficient structural detailing, requiring contracted with Jefferson Parish to policy to “the allegations [in] the injured the modification of the building; design a building, the Performing Arts plaintiff’s petition, with the insurer being ► failing to provide specifications that Center, an ongoing construction project. obligated to furnish a defense unless were definite in concept; and Jefferson Parish brought suit against the petition unambiguously excludes ► under-designing the project. Wisznia, claiming improper design and coverage.” Louisiana courts apply the The petition further alleged the parish’s inadequate coordination with the builders “eight-corners rule,” in which they damages were caused by Wisznia’s during its construction. General Star, “compare the four corners of the petition “negligence, failure of professional skill, Wisznia’s general liability insurer, refused with the four corners of the insurance policy breach of contract and breach of warranty to defend, asserting that the relevant without resort to extrinsic evidence.” in the faulty design.” insurance policies excluded coverage for Jefferson Parish’s petition alleged that General Star’s policy excluded coverage damages resulting from the rendering of Wisznia was liable for both professional for “‘bodily injury,’ ‘property damage’ or professional services. The district court liability and ordinary negligence. General ‘personal and advertising injury’ arising granted summary judgment for General

220 October / November 2014 out of the rendering of or failure to render foreign control of any person engaged in any professional services by you or any interstate commerce in the United States.” engineer, architect or surveyor who is International Id. at § 2170(a)(3). Covered transactions employed by you or performing work on Law include mergers, acquisitions and take- your behalf in such capacity.” The policy overs by a foreign individual or entity in defined “professional services” to include the United States. CFIUS must determine “preparing, approving, or failing to prepare whether “the transaction threatens to impair or approve, maps, shop drawings, opinions, the national security of the United States” reports, surveys, field orders, change orders Primer on Committee and recommend appropriate mitigation or drawings and specifications,” and “[s] or prohibition of the transaction. Id. at § upervisory, inspection architectural or on Foreign Investment 2170(b)(2)(A), (B). engineering activities.” in the United States Any party to a covered transaction may Applying the standard mandated by initiate CFIUS review before or after con- the Louisiana Civil Code in interpreting Louisiana is an increasingly popular clusion of the underlying transaction. Id. at insurance contracts “to ascertain the destination for foreign direct investment. § 2170(b)(1)(C)(i); 31 C.F.R. § 800.401(a). common intent of the parties to the contract The combination of generous state tax CFIUS has authority to scrutinize covered by construing words and phrases using their and income incentives, easy access to raw transactions sua sponte. Id. at § 2170(b) plain, ordinary and generally prevailing materials and an expansive transportation (1)(D). If CFIUS determines that the meaning,” La. Civ.C. arts. 2045 and 2047, network are enticing foreign investors into transaction poses a potential threat to na- and using the eight-corners rule, the court the state. Recent notifications of significant tional security, it initiates a 45-day formal concluded that Jefferson Parish allegedly inbound foreign direct investment include investigation of the transaction’s effects on hired Wisznia “for its expertise.” Thus, “it Yuhuang Chemical’s (China) $1.85 bil- national security, using 11 statutory factors is not far-reaching to find that all of the lion methanol project in St. James Parish; as guidance. Id. at § 2170(b)(2)(A), (B) services it rendered in connection with Sasol’s (South Africa) estimated $16-21 & § 2170(f). CFIUS may impose Interim [the performing arts center] project were billion ethane cracker and gas-to-liquids Mitigating Measures on the subject transac- professional in nature.” The court affirmed project in Lake Charles; and EuroChem’s tion during the course of the investigation the district court’s decision because it (Russia) $1.5 billion ammonia and urea in order to alleviate any potential national correctly concluded that General Star owed production plant in either St. John the security concerns. Id. at § 2170(I)(1)(A). If no duty to defend Wisznia as the insurance Baptist Parish or Iberville Parish. While the the committee determines that the national policies unambiguously excluded coverage net economic benefit of inbound foreign for professional liability. direct investment tied to economic incen- tives is oft-debated, the legal nuances of KKayay E. DDonnellyonnelly —John Zachary Blanchard, Jr. these projects are equally complex. One & Associates Past Chair, LSBA Insurance, Tort, little known committee in Washington has & Associates Workers’ Compensation and the authority to stop any of these projects CeCertifiedrtified CourtCourt ReportersReporters Admiralty Law Section in their tracks, either before or after the foreign companies have closed on local in- FFullull SServiceervice 90 Westerfield St. CouCourtrt RReportingeporting FirmFirm vestments. Counsel representing parties in Bossier City, LA 71111 CompleteComplete Litigation Support Support what are known as “covered transactions” should carefully consider the potential of Eighth Annual Conclave on 2424 HOUR HOUR SERVICE SERVICE iversity in the egal rofession the Committee on Foreign Investment D L P Video Depositions in the United States (CFIUS) to scrap or Video Depositions Video Conferencing March 6, 2015 unwind an investment transaction. Video Conferencing RRealeal T Timeime T Transcriptionranscription CompleteComplete Computeri Computerizedzed ServicesServices For up-to-date information, What is CFIUS? ConfeConferencerence RRoomoom visit www.lsba.org/Diversity CFIUS was created by the Defense Production Act of 1950 to conduct national Seeking sponsors! Commit by security reviews of foreign direct invest- KKnowledgeablenowledgeable Dec. 12, 2014 to appear in Conclave ment transactions. See 50 U.S.C. app. § EEfficientfficient mailer. For more info on 2170. The committee consists of the sec- Deedicateddicated sponsorship levels, contact retaries of Treasury, Homeland Security, D LSBA Program Coordinator/Marketing Commerce, Defense, State and Energy, along with various other ex officio mem- Suite 2025 Energy Centre and Sections Christine A. Richard, Suite 2025 Energy Centre Phone: 504.229.8220504.299.8220 bers. 50 U.S.C. app. § 2170(k)(2). CFIUS 11001100 Poydras Poydras Street Street TollFree:Toll Free: 866.301.8220 (504)619-0105, scrutinizes covered transactions, statutorily NewNew Orleans, Orleans, LA 7016370163 Fax:Fax: 504.504.299.8219229.8219 email:email: [email protected]@bellsouth.net or email [email protected]. defined as transactions that “could result in

Louisiana Bar Journal Vol. 62, No. 3 221 security impact of the transaction has been CFIUS Annual Report to Congress notification is strategically beneficial. mitigated and is otherwise not prohibited, CFIUS publishes an annual report Pre-closing modifications can be done to the entire proceeding is closed and CFIUS summarizing its activity in the prior cal- mitigate potential CFIUS scrutiny where submits a final investigative report to the endar year. The 2013 report on activities prior notification is not sought. U.S. Congress. Id. at § 2170(b)(3)(B); 31 for the 2012 calendar year discloses 114 The following case is one of the 10 C.F.R. § 800.506(d) total reviews in 2012. Chinese nationals covered transactions that failed to secure If CFIUS concludes the transaction and entities led the way with 23 total CFIUS approval in 2012. That outcome poses a national security threat and should covered transactions under review in may very well change in light of the Court be prohibited, it issues a report to the 2012. Only 10 of the 114 transactions of Appeals for the District of Columbia President of the United States requesting reviewed in 2012 failed to garner approval Circuit’s opinion imposing for the first presidential action on the covered trans- and were rejected by the United States time a measure of participatory due pro- action. 31 C.F.R. § 800.506(b), (c). The due to security concerns. This failure cess in CFIUS investigations. President has ultimate authority and may rate is somewhat misleading as the vast prohibit or unwind the transaction where majority of CFIUS reviews in 2012 were Ralls Corp. v. Comm. on Foreign Inv., there is “credible evidence that leads resolved after extensive negotiations and 2014 U.S. App. LEXIS 13389 (D.C. Cir. [him] to believe that the foreign interest implementation of mitigating measures. July 15, 2014). exercising control might take action that Most of the prohibited transactions in- The national security issues and clas- threatens to impair the national security.” volved cases where the parties closed the sified information permeating “covered 50 U.S.C. app. § 2170(d)(4). Presidential investment deal before notifying CFIUS. transactions” necessitate confidential action under the Defense Production Act The annual report indicates that CFIUS deliberations between officials with the is statutorily immune from judicial review. continues to actively scrutinize foreign appropriate level of security clearance. Id. at § 2170(e). The scope of this im- direct investment projects. Parties to Legal practitioners have long sought munity and its due process implications international mergers, acquisitions and access to the opaque CFIUS process. are at issue for the first time in the Ralls takeovers should carefully weigh the The recent U.S. Court of Appeals for the case, discussed infra. CFIUS national security statutory fac- District of Columbia Circuit decision in tors and determine whether prior CFIUS Ralls Corp. v. Comm. on Foreign Inv. LaPorte LSJB Ad'13D_Layout 1 11/4/13 11:02 AM Page 1

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222 October / November 2014 provides a narrow measure of access to Even if Ralls had a protected interest, the projects. Id. at *43-50. Moreover, a mini- the CFIUS process. The decision requires court surmised that CFIUS provided due mum measure of adequate due process CFIUS to provide foreign companies with process of law through notification of its is required with respect to that protected access to, and the opportunity to rebut, review and investigation. Id. at *18-19. interest. The measure of process due unclassified information regarding its The D.C. Circuit appellate court requires that Ralls receive notice of the determination. If the decision withstands devoted the vast majority of its opinion Presidential action, access to the unclas- potential appeals after remand, it imposes to the due process claim. The court first sified evidence upon which the action is a narrow measure of due process to the reviewed the statutory bar to judicial re- based, and an opportunity to rebut that system for the first time. view. The relevant portion of the Defense evidence. Id. at *56-57. The Ralls case involves a series of Production Act states that the “actions The appellate court reversed the district transactions surrounding the develop- of the President . . . shall not be subject court and remanded the case with direction ment of windfarms in Oregon. 2014 U.S. to judicial review.” Id. at *20, quoting to provide appropriate due process as set App. LEXIS 13389, at *1. Ralls Corp. 50 U.S.C. app. § 2170(e). CFIUS and forth in the opinion. To the extent this due is an American company owned by two President Obama argued that the statutory process holding prevails after any further Chinese nationals. Id. at *9. The company immunity permeates all activities in the post-remand appeals, it represents the purchased four American limited liability process, including the President’s deci- first crack in the otherwise impenetrable companies that were previously estab- sion “not to confide in Ralls his national shield of CFIUS investigations. While lished to effectuate the development of security concerns, and his judgment about the opening is narrow insofar as it allows the windfarms. Id. at *11. The windfarms the appropriate level of detail with which access only to unclassified information, it at the root of the covered transaction are to publicly articulate his reasoning.” Id. creates a quasi-judicial process of review located in and around restricted airspace at *28, quoting Br. for the Appellees, 27. for covered transactions. and a bombing zone maintained by the Statutory bars to judicial review must be U.S. Navy. Id. at *11-12. clear and convincing and expressed with —Edward T. Hayes CFIUS self-initiated review after the unequivocal congressional intent. Id. at * Member, LSBA International transactions were complete. Id. at *9, *12 21-22. The court concluded “neither the Law Section at note 7. CFIUS concluded the acquisi- text of the statutory bar nor the legislative Leake & Andersson, L.L.P. tion poses a national security threat and history of the statute provides clear and Ste. 1700, 1100 Poydras St. issued its report and recommendation to convincing evidence that the Congress LA Bar JournalNew Ad Orleans, 9/21/11 LA 701633:44 PM Page the President. Id. at *14-15. President intended to preclude judicial review of Obama subsequently issued a Presiden- Ralls’ procedural due process challenge tial Order prohibiting and retroactively to the Presidential Order.” Id. at 31. SCHAFER GROUP LTD unwinding the transaction in light of CFIUS and President Obama also Certified Public Accountants “credible evidence that leads [the Presi- asserted that Ralls’ due process claim dent] to believe that Ralls . . . might take presents a non-justiciable political ques- When you need a forensic accountant, action that threatens to impair the national tion within the scope of the President’s call on a professional. security of the United States.” Id. Executive Branch authority. Id. at *36-37. Ralls filed suit against CFIUS and After discussing the political question “Knowledge of business, finance President Obama in the U.S. District Court doctrine and framework of judicial review and accounting may be needed for the District of Columbia challenging set forth in Baker v. Carr, 82 S.Ct. 691 at any stage of the litigation the exclusion order, inter alia, as contrary (1962), the court found that Ralls did not process. Therefore, we can be to the Due Process and Equal Protection ask it to “exercise judgment in the realm of an important member of any Clauses. Id. at *16-17. The district court foreign policy and national security” but successful litigation team. rejected Rall’s Equal Protection claim, rather “whether the Due Process Clause From contemplation of action to but not the due process claim, for lack of entitles it to have notice of, and access to, subject matter jurisdiction based on the the evidence on which the President relied expert testimony, we can complement attorneys in Defense Production Act’s grant of Presi- and an opportunity to rebut that evidence ways that increase the likelihood of a desired outcome. dential immunity. Id. at *17; 50 U.S.C. before he reaches his non-justiciable (and We can support your litigation efforts to save you time app. § 2170(e). The district court granted statutorily unreviewable) determinations. and strengthen your case.” a Rule 12(b)(6) motion dismissing the Id. at *41. Ralls’ claim does not present —Kernion T. Schafer, CPA Due Process challenge. Id. at *17-18. The a potential judicial encroachment on court found that the President’s Order did the political branch of government, and S OUTH S HORE AND N ORTH S HORE O FFICES not deprive Ralls of any constitutionally therefore the matter is justiciable before METAIRIE MANDEVILLE 701 Aurora Avenue • Suite A 435 Girod Street • Suite B protected property interest and that Ralls the courts. Id. Metairie, Louisiana 70005 Mandeville, LA 70448 waived its opportunity to obtain prior On the merits, the court found that 504.837.6573 985.626.4066 Forensic Accounting • Emerging Issues • Financial Services consent from CFIUS by failing to notify Ralls had a constitutionally protected Litigation Services • Legal Services • Emerging Business the transaction in advance. Id. at *18. state property interest in the windfarm

Louisiana Bar Journal Vol. 62, No. 3 223 1955, provides that no employer may phone or computer). “request or require” any employee or job ► The employer may request the user Labor and applicant to disclose the user name, password name and password of any online account Employment or other authentication information related to provided by the employer, used for business Law a “personal online account.” Personal online purposes, or obtained through the employ- account includes any kind of online account ment relationship. — social media, personal blogs, personal ► The employer may discipline or email accounts — that an employee uses discharge the employee for wrongfully Employment 2014 “exclusively for personal communications transferring confidential or proprietary Legislative Update unrelated to any business purpose.” In the information to his or her personal online event that an employer inadvertently learns account (although an employer may not ac- Two of the 800-plus acts passed during an employee’s or applicant’s user name or cess the account just to “fish” for confidential the 2014 Louisiana Legislature Regular Ses- password, it cannot use that information to information). sion are particularly relevant to employers access the personal online account. (The act ► The employer may review any in- based out of, or doing business in, Louisiana. also applies to schools and similar institu- formation that is in the “public domain” Act 165, the “Personal Online Account tions vis-a-vis their students). and that can be accessed without using the Privacy Protection Act,” regulates employ- The law also sets forth a number of nar- employee’s user name or password. er’s access, or lack thereof, to an employee’s row exceptions for employers, including: An employer also may conduct an inves- or job applicant’s “personal online account.” ► An employer may request the em- tigation if it is aware of specific information Act 750 amends Louisiana’s wage-payment ployee’s personal email address, but not the on the employee’s personal online account statute to address differential pay between password, in order to facilitate communica- that may run afoul of the law or evidences genders. Both statutes, effective as of Aug. tion in the event that the employer’s system work-related misconduct, or if the employer 1, 2014, afford additional rights and protec- fails (for instance, in the event of a hurricane has specific information that the employee tions to employees. or mandatory evacuation). transferred confidential, proprietary or finan- ► An employer may request the user cial data to a personal online account. The Act 165 The Personal Online Account Privacy name and password for any electronic com- statutory language regarding these excep- Protection Act, codified at La. R.S. 28:1951- munication device paid for or supplied by tions is somewhat vague, and their precise the employer (such as a company-issued contours will likely have to be developed

224 October / November 2014 through the courts. Employers also should Economic Prospects,” N.Y. Times, March be aware that the National Labor Relations 21, 2014, p. A15). Board has taken an active interest in social- Second, Act 750 codifies the “good media policies of late, and the board is not faith” defense to Louisiana’s wage-payment Mineral limited by Louisiana state law in determining statute, La. R.S. 23:632, to state that an em- Law whether a particular policy constitutes an ployer is not subject to statutory penalties “unfair labor practice.” for nonpayment of wages if there is a good faith dispute regarding the amount of wages Act 750 Act No. 766 owed. This provision does not effect a true Act 750 contains two significant, distinct (Senate Bill 585) amendments that directly affect employers. change in the law, as Louisiana courts have long applied an equitable good faith defense First, it amends Louisiana’s employment Act No. 766 adds a new section (Sec. N) to discrimination statute, La. R.S. 23:332, to to claims for penalties under § 23:632. See, e.g., Carriere v. Pee-Wee’s Equip. Co., 364 La. R.S. 30:4. The Act prohibits the issuance state: An employer may not “intentionally of any permits to: (1) drill or operate a new pay wages to an employee at a rate less than So.2d 555, 556-57 (La. 1978). Rather, the amendment codifies judicial doctrine and solution-mined cavern in Iberia Parish, or that of another employee of the opposite (2) expand or convert an existing cavern in sex for equal work on jobs in which their solidifies a significant affirmative defense for employers, crucial in light of the newly Iberia Parish until a public hearing is held. performance requires equal skill, effort, and The hearing cannot occur before Aug. 15, responsibility, and which are performed increased employer obligations under Loui- siana’s discrimination and wage statutes. 2015. Also, an operator must provide notice under similar working conditions.” The to the public in advance of the hearing on insertion of the adverb “solely” is important at least three different occasions within a because it means the statute applies only if —Charles J. Stiegler and Nicole A. Eichberger 30-day period. Notice must be published the pay gap is based solely on sex or gen- in the Louisiana Register and the official der, as any pay differential based on “any Members, LSBA Labor and Employment Law Section journal of Iberia Parish. Thirty days prior to other differential based on any factor other the hearing, an operator must also provide: than sex” is not unlawful discrimination. Proskauer Rose, L.L.P. Ste. 1800, 650 Poydras St. ► a report to the Commissioner of Of additional importance is the fact that an 20219-Cardone-VirtualOfficeAd_20219-Cardone-VirtualOfficeAdConservation, 10/23/13Save Lake 9:44 Peigneur, AM Page Inc. 1 and employer may not reduce the wages of a New Orleans, LA 70130 higher-earning employee solely to comply with this new law. In addition, this amendment is substan- tively similar — though not identical — to last year’s Equal Pay for Women Act, La. R.S. 23:661 et seq., which applies only to governmental employees. The amendments to § 23:332 expand the reach of the law to all Louisiana employers, including private employers, who intentionally pay women VIRTUAL OFFICE less than similarly situated men based solely on gender (or vice versa). Employees may enforce § 23:332, as amended, through a IN NEW ORLEANS private right of action, and may seek both back pay and injunctive relief. As the case SPEND MORE TIME IN NEW ORLEANS law develops, courts will presumably clarify AND WRITE OFF YOUR TRIP! what showing a plaintiff must make to prove that any pay gap is based on gender rather than some other factor, what it means for two OUR LAW FIRM WILL PROVIDE: positions to “require equal skill, effort, and • Mailing Address • Copy Machine responsibility,” and whether any equitable or • Conference Room • Fax other defenses apply. Both the amendments • Phone Services • Voice Mail to the Louisiana wage statute and Louisiana’s • Lobby receptionist • Internet “Equal Pay for Women Act” reflect the na- tional attention on gender-pay issues raised by President Obama in his much-cited but CONTACT CLIFF CARDONE controversial claim that women are paid 77 829 BARONNE STREET• NEW ORLEANS • 504-522-3333 cents on the dollar relative to men. (Sarah Wheaton, “Obama Promotes Women’s

Louisiana Bar Journal Vol. 62, No. 3 225 the parish providing a baseline analysis of value, provided the owner can show proof received modified well participation option groundwater levels and salt content of nearby of continuous ownership before and during rights, which provided that it shall have the groundwater wells; the evacuation. All transfers of title would right as to future wells to purchase a 12.5 ► a plan for monitoring groundwater be free and clear of any liens, mortgages or percent working interest. Mobley presented while the cavern is being created, converted other encumbrances to the operator. this modified option to the Norwoods in a or expanded; Proposed rules implementing the Act document and stated that the Norwoods ► a third-party geologic analysis as to were issued on Aug. 20, 2014. would be paid in monthly installments and the structural analysis of the salt dome; and that Mobley and the Norwoods would split ► results of any testing that attempts to Breach of Fiduciary the 12.5 percent option. Later, Mobley sold determine the source and composition of the option rights to Lanza for $150,000 any foaming or bubbling in Lake Peigneur. Duty; Exception without telling the Norwoods. The Act also prohibits the issuance of of Prescription In 2008, the deep rights (below 9,000 feet) any permits prior to Jan. 31, 2016. were sold to Chesapeake. Chesapeake paid Proposed rules implementing the Act Norwood v. Mobley Valve Servs., Inc., Mobley and Lanza $17,500 per net mineral were issued on Aug. 20, 2014. 49,064 (La. App. 2 Cir. 6/25/14), ____ So.3d acre; Mobley received $5,725,091.98 in ____, 2014 WL 2875008. proceeds. Mobley did not tell the Norwoods Act No. 691 The Norwoods purchased a 10 percent about the sale. Subsequently, the Norwoods working interest in the Hunter-Mannies No. sued Mobley for breach of contract, fraud (Senate Bill 209) 1 lease operated by Mobley Valve Services and breach of fiduciary duty, among other (owned by Mark and Kimberly Mobley, col- claims. The trial court dismissed plaintiffs’ Act No. 691 provides for reimbursement lectively Mobley) in DeSoto Parish in 2005. claims for lack of evidence. The Norwoods of costs to state or political subdivisions of Pursuant to their agreement, the Norwoods appealed. Mobley filed a peremptory excep- the state for reasonable and extraordinary paid 10 percent of actual drilling costs and tion of prescription, arguing that a one-year costs in responding to or mitigating a disas- would receive 10 percent of any revenue prescriptive period applied because the ter due to a cavern collapse or other viola- generated by production. Mobley acted as Norwoods’ claims were delictual in nature. tion of any rule, regulation or order pro- mandatary for all purposes relating to the The Louisiana 2nd Circuit disagreed and mulgated pursuant to La. R.S. 30:4(M)(6). lease. In 2006, the Norwoods and Mobley denied the exception, finding that Mobley’s Costs are to be approved by the Governor’s transferred their interests in the lease to J.A. obligation to the Norwoods arose from Office of Homeland Security. However, Lanza, L.L.C. In return, the Norwoods and Mobley’s agreement to manage their lease payment of those costs does not amount to Mobley received a cash payment and a 25 interest. Thus the obligation was ex contractu an admission of liability or responsibility. percent option to participate in future drills (10-year prescriptive period), not ex delicto The Act also provides for payment of from 0 to 4,100 feet and an option up to (one-year prescriptive period). In addition, the “replacement value” of noncommer- 9.375 percent in new drills below 4,150 feet. the Louisiana 2nd Circuit found that Mobley cial, residential immovable property in Thereafter, litigation ensued between breached its fiduciary duty to the Norwoods an area under forced evacuation for more Mobley and two other working interest own- by not disclosing to them the sale to Chesa- than 180 days. The replacement value must ers, claiming that Mobley mismanaged the peake and awarded the Norwoods 10 percent be based on an appraisal (i.e., the value of lease. The litigation was settled by a revised of the $5,725,091.98 received from the sale the property before the disaster). Pursuant agreement in which Mobley conveyed to to Chesapeake. The court found further that to the Act, a property owner would be re- Lanza a 75 percent working interest in the Mobley charged the Norwoods $169,409 in imbursed within 30 days after accepting lease from 0 to 4,100 feet and a 37.5 percent undocumented lease charges. As for the other an operator’s offer to pay the replacement interest below 4,150 feet. In return, Mobley claims — fraud, piercing the corporate veil, declaratory relief and intentional interfer- ence — the court found these assignments Enhance the profession and of error lacked merit. sign up today —Keith B. Hall Member, LSBA Mineral Law Section n to be a Louisiana State University Me to Paul M. Hebert Law Center r 1 E. Campus Dr. Baton Rouge, LA 70803 • Earn CLE credits and • Give back to the profession Colleen C. Jarrott Member, LSBA Mineral Law Section • Help shape the future of the profession Slattery, Marino & Roberts, A.P.L.C. www.LSBA.org/Mentoring Ste. 1800, 1100 Poydras St. Visit New Orleans, LA 70163

226 October / November 2014 award against the PCF to 35 percent of the for which a nonqualified provider “may be total, and awarded the PCF $400 on its held liable,” which “shall be limited to that indemnity/cross-claim. amount that the fund may be cast in judg- Professional The PCF, plaintiffs and Abbott filed ment.” But the jury’s verdict apportioned Liability separate appeals. Among the issues pre- fault between the PCF and Abbott under sented to the appellate court was the denial the comparative fault statute (La. Civ.C. art. of the plaintiffs’ pretrial motion to remove 2323), and the judgment did not cast the PCF the indemnity cross-claim from the jury’s in judgment for any amount attributable to PCF’s Indemnity Rights province and have it decided post-trial. The Abbot; instead it cast the PCF only for its PCF had opposed the motion to sever its proportionate share of fault, rendering the Willis v. Ochsner Clinic Found., 13-0627 cross-claim; this led the appellate court to indemnity statute inapplicable. (La. App. 5 Cir. 4/23/14), 140 So.3d 338. rule that the PCF could not on appeal argue The appellate court relied, in part, on In response to the plaintiffs’ petition for in favor of what it had before trial opposed. Hall v. Brookshire Bros., 02-2404 (La. court approval of a $100,000 settlement with Yet, because the plaintiffs preserved on 6/27/03), 848 So.2d 559, 568, in which the a qualified health-care provider (Ochsner), appeal the indemnity issue, the court said Supreme Court noted that the Legislature’s the PCF filed a cross-claim for indemnity it had to determine whether the PCF had intention was to hold the PCF liable “only and/or contribution from the manufacturer indemnity rights. for acts constituting medical malpractice.” of a pump that malfunctioned during heart The plaintiffs argued that the MMA’s When the trial court rendered judgment, surgery, also alleging that the manufacturer indemnity statute applied only when the reducing the PCF’s liability to 35 percent was jointly, severally and solidarily liable PCF was held liable for damages attribut- of damages, the PCF had “only been cast with it. The plaintiffs then amended their able to a nonqualified health-care provider, in judgment for an amount proportionate petition to include the manufacturer (Ab- whereas in the case at bar, it sought a reduc- to the PCF’s percentage of fault, and, bott) as a defendant. tion of its liability under comparative fault therefore, the indemnity provision of the Before trial, the plaintiffs reached a principles; thus the trial court’s refusal to (statute) is not applicable.” To hold oth- confidential settlement with Abbott, follow- strike the PCF’s indemnity claim improperly erwise would not make sense, concluded ing which they moved to strike the PCF’s allowed it to obtain a further reduction of its the court, as it would allow the PCF first cross-claim against Abbott, contending the liability. The PCF countered that the MMA’s to ask the jury to apply comparative fault PCF was prohibited from maintaining an indemnity statute gave it broad powers to to its responsibility and then to receive indemnity claim against Abbott because recover against a nonqualified provider for an indemnity from Abbott for the PCF’s the PCF and Abbott were not joint tortfea- “any and all damages” assessed against it. fault for malpractice. Once the verdict was sors, pursuant to La. Civ.C. art. 2323, and The court of appeal noted that the PCF’s reduced by comparative fault, the PCF was each could be liable only for its respective right to indemnity is limited with respect to not at risk to pay damages caused by a non- percentage of fault. The PCF responded that whom it can pursue (only nonqualified pro- qualified provider, and the appellate court it was entitled to indemnity pursuant to La. viders), as well as the amount of indemnity ruled that the trial court erred by refusing R.S. 40:1299.44(D)(2)(b)(xi) because Ab- bot was not a qualified health-care provider, and its fault contributed to the damages. At the hearing on the plaintiffs’ motion to Shortening the Distance! strike, the PCF argued its indemnity claim and asserted that Abbott violated its lease Easily join LSBA meetings without leaving the agreement concerning the pump by breach- room. Use your office computer, iPad, iPhone, ing the warranty Abbott gave Ochsner. The trial court denied plaintiffs’ motion to strike. or Android device to connect with others who A jury decided that Ochsner caused may be on a wide range of video systems damages in excess of $100,000 and that throughout the state. There’s no new equipment the pump was unreasonably dangerous to purchase. under the Louisiana Products Liability Act. It assessed 35 percent fault to the PCF and Now available in Lafayette, Baton Rouge and 65 percent to Abbott and awarded the PCF $400 for Abbott’s breach of the warranty Shreveport bar associations! provisions of its contract with Ochsner. The trial court’s judgment reduced the Another benefit of membership general damages to the PCF’s $400,000 cap, from the Louisiana State Bar Association reduced the judgment against the PCF for past medical expenses to 35 percent of the total, reduced the future medical expenses

Louisiana Bar Journal Vol. 62, No. 3 227 to strike the PCF’s indemnity claim after understanding, which was affirmed, with IRS Makes Important it sought and received the reduction for its PPEC agreeing to issue bonds to finance the liability under comparative fault principles. acquisition and construction of the project Changes to Offshore The trial court’s judgment was affirmed property. Pursuant to that agreement, the Voluntary Disclosure in all respects, except for the PCF’s $400 project property would be owned by the cross-claim award, which was reversed, IDB and leased to PPEC, and it was agreed Program because the PCF was “more in the nature that the property would not be subject to On June 18, the Internal Revenue of statutory intervenor than a defendant, and ad valorem property taxes. The police jury Service announced major changes to its it does not stand in the shoes of Ochsner,” approved the issuance of the bonds. offshore voluntary compliance programs, which was a health care provider-defendant In 2006, PPEC conveyed the project providing new options to taxpayers living that was party to the contract with Abbott. property to the IDB, and IDB leased it overseas and taxpayers residing in the back to PPEC. In 2011, the assessor for United States. The changes include an —Robert J. David Evangeline Parish placed the PPEC project expansion of the streamlined filing- Gainsburgh, Benjamin, David, Meunier property on the tax rolls. PPEC objected and compliance procedures and modifications & Warshauer, L.L.C. paid the taxes under protest. PPEC asserted to the offshore-voluntary-disclosure Ste. 2800, 1100 Poydras St. that, because the property is owned by the program, often referred to as the “OVDP.” New Orleans, LA 70163-2800 IDB, a public entity, and the property is used The expanded program is intended to for economic development, the property is help those U.S. taxpayers whose failure exempt from ad valorem tax in Louisiana to disclose their offshore assets was pursuant to Article VII § 21(A) of the non-willful. Louisiana Constitution. The changes to the streamlined filing- The assessor challenged the economic compliance procedures are now available development deal by asserting that PPEC to certain U.S. taxpayers residing in the actually owned the property, not the IDB. United States. The changes eliminate The 3rd Circuit affirmed the district court’s both the requirement that the tax liability finding that the IDB owned the project Taxation be $1,500 or less and the requirement of property. In addition, the assessor argued a risk questionnaire from the taxpayer. that because the facility was operated by The changes now require the taxpayer to a private for-profit entity, it could never be certify that his or her previous failures to for a “public purpose” as required by the comply with the law were non-willful. Louisiana Constitution for the exemption. When a taxpayer intends to take In rejecting this argument, the 3rd Circuit Economic Development advantage of the new streamlined looked to prior jurisprudence, which held disclosure, he must amend the most Deal Not Subject to Ad that any allocation to a use resulting in recent three years of personal income tax advantages to the public at large will suffice Valorem Tax returns, complete a certification form and to constitute a public purpose. In addition, submit full payment of the tax liability, Pine Prairie Energy Ctr., L.L.C. v. Soileau, the 3rd Circuit accepted the uncontested including interest and the miscellaneous 14-0005 (La. App. 3 Cir. 6/11/14), 141 affidavit of the president of the IDB of the offshore penalty. This miscellaneous So.3d 367. substantial economic impact the project has offshore penalty is now equal to 5 percent The 3rd Circuit Court of Appeal affirmed had on the parish. of the highest aggregate balance/value a trial court’s decision to grant summary The 3rd Circuit held that the project of the taxpayer’s total foreign financial judgment in favor of Pine Prairie Energy property is properly characterized as assets. The taxpayer is also required to Center, L.L.C. (PPEC) to hold that industrial public property used for a public purpose electronically file the most recent six development board property is exempt from and is, therefore, exempt from Louisiana years of overdue FBAR reports. ad valorem property tax. ad valorem tax under the Louisiana PPEC operates a natural gas storage Constitution. The 3rd Circuit enjoined the —Christian N. Weiler, LL.M. facility and associated facilities and assessor from further assessing or taxing Member, LSBA Taxation Section pipelines in Evangeline Parish (the project the project property during the term of the Weiler & Rees, L.L.C. property). In May 2005, an application was lease back between PPEC and IDB. Ste. 1250, 909 Poydras St. filed with the Evangeline Parish Police Jury New Orleans, LA 70112 for the establishment of Evangeline Parish —Antonio Charles Ferachi Industrial Development Board Number 1 Member, LSBA Taxation Section (the IDB) with the purpose to acquire, own Litigation Division and lease property to PPEC as a means of Louisiana Department of Revenue encouraging PPEC to locate in the parish. 617 North Third St. IDB entered into a memorandum of Baton Rouge, LA 70821

228 October / November 2014 Procrastination, Inability to open mail Feelings of bafflement, file stagnation & or answer phones, confusion, loneliness, neglect, inability to “emotional paralysis” isolation, desolation meet professional or and being overwhelmed personal obligations or deadlines Drug or alcohol Persistent abuse Changes apathy or in energy, “empty” feeling eating or sleep habits Loss of interest or pleasure, dropping Trouble hobbies concentrating or remembering things Guilt, feelings of hopelessness, helplessness, worthlessness, or A Johns Hopkins study foundlow self-esteem that lawyers suffer from depression at a rate 3.6 times higher than the general employed population.

We Can Help. The signs of depression aren’t easy to read. No one is completely immune. If you or a colleague experiences signs of depression, please call.

Your call is absolutely confidential as a matter of law. Toll-free (866)354-9334 • Email: [email protected] • www.louisianalap.com

Louisiana Bar Journal Vol. 61, No. 5 229 Louisiana Bar Journal Vol. 62, No. 3 229 Louisiana Center for

LouisianaCENTER FOR LCLCE Law & C ivicEducation LAW & CIVIC EDUCATION Law Day... Summer Institute... award

Cyberbullying Mock Trial Presented at Summer Institute

ouisiana elementary, middle and high school teachers from six Louisiana congressional districts met in New Orleans Lfor the 2014 Justice Catherine D. Kimball Summer Institute to learn about Sandra Day O’Connor’s iCivics Program and the nationally acclaimed “We the People: Attorney Benjamin J. Bleich and teachers Susan Prado and Teresa Davis innovatively created an The Citizen and the Constitution” civics interactive “Day in Court” for the Law Day presentation at Ringgold Elementary School. curriculum. Led by Northside High Academy for Legal Studies’ Liz Tullier, the participants also conducted a mock trial on Billings v. Pearson, dealing Law Day Celebrated in with cyberbullying among high school students. Coordinated by the Louisiana Center Louisiana Schools for Law and Civic Education, the Summer Institute was made available to Louisiana he Louisiana Center for Law and J. Putnam III, Judge J. Wilson Rambo, educators at no cost, with lodging, meals Civic Education (LCLCE) each Judge Cameron B. Simmons, Judge Parris and educational materials provided. year partners with the Louisiana A. Taylor, Judge M’elise Trahan, Judge Participants were welcomed by Judge District Judges Association Zorraine M. Waguespack, Judge Trudy Raymond S. Childress, president of the andT the Louisiana State Bar Association M. White and Judge H. Stephens Winters. Louisiana District Judges Association. to present Law Day activities to schools Participating attorneys were E. Adrian Among the teachers attending were across the state. This year, 56 Law Day Adams, Denise A. Allemand, Claire E. Dwayne Alexander, Jeanerette High presentations were organized, reaching Bergeron, Benjamin J. Bleich, Danielle School; Katie Bateman, Woodlawn Middle more than 2,600 students. Thanks to N. Brown, Michael J. Busada, Thomas School; Robert Chauvin, Academy of Our dedicated teachers, attorneys and judges, R. Caruso, Mekisha S. Creal, Trina T. Lady High School; Sonia Clements, these programs covered all six Louisiana Chu, Albert D. Clary, John F. Dillon, J. Morgan City High School; Valerie congressional districts and all grade levels. Keith Gates, Gerald J. Hampton, Jr., Fred Courville, L.J. Alleman Middle School; Several judges participated in the D. Jones, Joseph P. Landreneau, J. Clay Lauren Edelen, Ascension Catholic programs, including Judge Randall L. LeJeune, Gernine M. Mailhes, Sarah S.J. High School; Cynthia Edmonston, LSU Bethancourt, Judge Vincent J. Borne, Midboe, Paula E. Miles, Joseph H.L. Perez- Laboratory School; Matthew Edwards, Judge June Berry Darensburg, Judge Montes, Mark A. Myers, Monique F. Rauls, Glenbrook School; Christy Flynn, W. Ross Foote, Judge Andrea P. Janzen, Erica J. Rose, Thomas B. Thompson, Angel South Grant Elementary School; Camile Judge Patricia E. Koch, Judge Lawrence G. Varnado, Jason M. Verdigets, Amanda Gautreaux, St. Jude the Apostle School; L. Lagarde, Judge C. Wendell Manning, L. Westergard and Christie C. Wood. Judge Michele R. Morel, Judge Richard Continued next page

230 October / November 2014 Louisiana Supreme Court Associate Justice Greg G. Guidry, left, addressed Several educators participated in the 2014 Justice Catherine D. Kimball Summer Institute attendees prior to the commencement of the Billings v. Pearson Summer Institute. mock trial on cyberbullying. Photo courtesy of the Louisiana Supreme Court.

continued from page 230 LCLCE Lacie Oliver, Terrebonne High School; Bastrop High School; Denise Thomas, Vickie Hebert, Early College Academy; Charles Rivet, St. Martin’s Episcopal Woodlawn Middle School; Missy Leisa Hurst, Summerfield Elementary School; Rebekah Romero, Northside Varnado, Franklinton High School; Base School; Charlene Johnson, Bolton High School; Alisa Ross-White, Park Tyquenica Vessel, Buchanan Elementary High School; Randy Kinsey, EBR Forest Middle School; Patsy Scates, School; and Christina Wilbert, Central Readiness Superintendent’s Academy; LSU Laboratory School; Janice Schaff, High School. Nancy Monroe, Bolton High School; Lutheran High School; Walee Shakur, Anger Receives President’s Award for Outstanding Civics Teacher im Anger, a social studies teacher at Archbishop Hannan High School in Covington, is the recipient of the 2014 TPresident’s Award for Outstanding Civics Teacher. The annual award, presented jointly by the Louisiana Center for Law and Civic Education and the Louisiana State Bar Association, recognizes an outstanding Louisiana elementary, middle or high school teacher who imparts knowledge and understanding of law and civic education and demonstrates the use of interactive learning techniques. Louisiana Supreme Court Associate Tim Anger, right, a social studies teacher at Archbishop Hannan High School in Covington, is the recipient Justice Greg G. Guidry presented the of the 2014 President’s Award for Outstanding Civics Teacher. Louisiana Supreme Court Justice Greg award at the 2014 Justice Catherine D. G. Guidry, left, presented the award at the 2014 Justice Catherine D. Kimball Summer Institute. Photo Kimball Summer Institute. courtesy of the Louisiana Supreme Court. Anger, a teacher for 17 years, was recommended by Charles J. Baird, chair like to pursue law, politics or become a of teaching strategies and activities. of the school’s Social Studies Department. social studies teacher. Never have I met “Through the promotion of active civic “On a daily basis, he shares his love of a teacher who gives 150 percent one engagement in my classes and the law- law and civics with our students through hundred percent of the time,” Baird said. related content that I teach, I hope to instill his enthusiasm and his high-spirited Anger considers one of the most in my students the abilities to not only classroom lessons. His passion is truly important aspects of teaching to be the follow the law, but to have the knowledge passed on to the students as several promotion of active civic participation and desire to effectively shape it as well,” students each year realize they would among his students using a variety Anger said.

Louisiana Bar Journal Vol. 62, No. 3 231 Young Lawyers Message... Spotlight

young lawyer, and its seed is planted in CHAIR’S MESSAGE law school with classes specific to ADR. Young lawyers often build their case to try Alternative Dispute Resolution: in mediation rather than court. The benefit is quick resolution to cases. The downside The New Norm for Young Lawyers is not gaining valuable courtroom experi- ence. Indeed, I know some young litigation By J. Lee Hoffoss, Jr. lawyers who have been practicing for 10 years and have never tried a jury trial. The When I first began into mediation to see if you can settle the availability of a quick settlement is often practicing law, we case without going to court. For the sake too tempting to resist and is detrimental to had few mediators of judicial efficiency, it is fortunate that gaining courtroom experience. in the Lake Charles mediation oftentimes results in settlement. As lawyers, we have to realize that the area, and the now- However, does the option of mediation goal in every case is to get the best result large mediation and lessen the younger lawyer’s ability to just for our client. Many times, ADR proves arbitration groups in go to court and try his or her case? Does to be a better option than a risky trial. the state were in their mediation’s success prevent a younger Additionally, ADR allows clients to have infancy. The concept lawyer from gaining trial experience? more involvement and control in the ulti- of alternative dispute J. Lee Hoffoss, Jr. The answer to these questions is often a mate outcome of a mediation proceeding, resolution (ADR) mixed bag. rather than leaving their fate to a judge or through mediation and arbitration was In my first year as a litigator, my then- 12 strangers. However, as young lawyers, just gaining ground. Now, mediation and boss told me that mediation was so foreign we must keep in mind that our skills in the arbitration have become commonplace and to him that he really thought it to be a waste courtroom should be built early on in our a part of every litigator’s practice. Some of time. His motto was to play the role in practice. ADR is certainly a worthwhile mediation groups in our state have become the event, but rarely settle because all he and valuable tool for our profession, and larger than most law firms, and the need knew was to give the defense his number its success prevents a backlog of cases for experienced mediators is only growing. and go to trial if the defense did not accept waiting to go to trial. But never forget that As a young lawyer, mediation is not a it. This is the way most seasoned litigators sometimes you have to get in the trenches foreign concept. We have been grounded felt. Why? Because ADR was not ingrained of the courtroom to do battle. The more in it since beginning the practice of law. in their practices. you do it, the more times you will leave You do your discovery and then enter Now, ADR has long roots in every the battlefield victorious.

Young Lawyers Division News

Get the latest Young Lawyers Division

Y news online L Go to: www.lsba.org/YLD D The Young Lawyers Division Web site is a public service of the LSBA-YLD Council, providing YLD information to the public and communicating with YLD members.

232 October / November 2014 LAJLastChance14_FullPage_Layout 1 8/18/2014 11:09 AM Page 1

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The Ultimate CLE Experience With more than 20 dynamic credit assembling for this conference. You courses from which to choose, it’s no choose the courses you want and wonder that the Louisiana Association earn 13 CLE credits, including Ethics for Justice Last Chance CLE Conference and Professionalism. For additional is Louisiana’s ultimate CLE experience. information, including pricing and Pick an apple ... or two ... or three. You can’t help but be impressed with registration details, visit www.lafj.org the highly acclaimed faculty that’s or call 225-383-5554.

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Community Action Committee & ‘WEEN DREAM Partnering for Halloween Costume Donations

The Louisiana State Bar Association/Louisiana Bar Foundation’s Community Action Committee is assisting the ‘WEEN DREAM program in the collection of new and/or slightly used Halloween costumes for children in need. Law firms, attorneys and legal professionals wishing to donate should drop off costumes at the Louisiana Bar Center, 601 St. Charles Ave., New Orleans, on Monday and Tuesday, Nov. 3-4, during business hours (8:30 a.m.-4:30 p.m.). Costumes may simply be placed in bags. There is no labeling or sorting process required. ‘WEEN DREAM volunteers will handle the sorting process and match the costumes to children for Halloween 2015. (Costumes that were donated after Halloween 2013 are being distributed to children for 2014.) New Orleans Lafayette Alexandria Lake Charles Krystal Bellanger Rodriguez Jo Abshire Alainna Mire Hoffoss Devall, LLC Louisiana State Bar Association Lafayette Bar Association Alexandria City Attorneys Office 3205 Ryan Street, 601 St. Charles Avenue 2607 Johnston St 625 Murray Street, 3rd Floor Lake Charles, LA 70601 New Orleans, LA 70130 Lafayette, LA 70503 Alexandria, LA (337) 433-2053 (504) 566-1600 (337) 237-4700 Shreveport Baton Rouge Monroe Dana Southern Clint R. Hanchey Baton Rouge Bar Association The Shreveport Bar Association Hayes, Harkey, Smith & Cascio 544 Main St. 625 Texas Street 2811 Kilpatrick Blvd. Baton Rouge, LA 70802 Monroe, LA 71201 Shreveport, LA. 71101 (225) 344-4803 318-387-2422 (318) 222-3643

234 October / November 2014

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Louisiana Bar Journal Vol. 62, No. 3 235 JUDICIAL Notes By David Rigamer, Louisiana Supreme Court New Judge... appointments

New Judge for a term of office which began July 1 and Louisiana District Attorneys Association/ will end on June 30, 2017. ADA Section. His community involvement Jeanne Nunez Ju- ► Professor Ronald J. Scalise, Jr. and includes the Chamber of Commerce (past neau was elected as Thomas Rockwell Willson were reap- president), the Lions Club, the Tourism Com- judge of Division B, pointed, by order of the Louisiana Supreme mission, the Rotary Club and the Winnsboro 34th Judicial District Court, to the Louisiana Board of Legal Camp of Gideons International. Court, becoming the Specialization for terms of office ending court’s first woman on June 30, 2017. Death judge. She earned her 27th Judicial District Court Judge Donald BA degree, magna Retirement W. Hebert, 65, died July 9. After four years cum laude, in 1994 5th Judicial District Judge E. Rudolph of service in the United States Navy, Judge from Loyola Univer- Jeanne Nunez McIntyre, Jr. retired effective June 30. He Hebert earned his BA degree in 1966 from sity and her JD degree, Juneau earned his BS degree in 1973 and his JD de- the University of Southwestern Louisiana with honors, in 1997 gree in 1977 from Louisiana State University and his JD degree in 1977 from Louisiana from Loyola University College of Law. and LSU Paul M. Hebert Law Center. From State University Paul M. Hebert Law Center. That year, she began her career as an as- 1977-96, he was in private practice with his He practiced law in St. Landry Parish until his sociate attorney with Lobman, Carnahan, wife and father at McIntyre, McIntyre, Mc- election to the 27th JDC bench in 1999. He Batt, Angelle & Nader, L.L.C., in New Intyre in Winnsboro. Prior to his election to was a member of the St. Landry Parish Bar Orleans. From 1999-2001, she was an the 5th JDC in 1997, Judge McIntyre served Association and the Louisiana Trial Lawyers associate attorney with Aubert & Pajares, as an assistant district attorney from 1979- Association. He was a founding member of L.L.C., in Covington. In 2001, she entered 92 and as the Winnsboro City Court judge Parents Against Drug Dealers (P.A.D.D) and private practice opening the Law Office of from 1993-97. He served as president of the was involved in several civic organizations Jeanne Nunez Juneau, L.L.C., in Chalmette. 5th District Bar Association, district judge including the St. Landry Parish Community She served as executive attorney for St. representative on the Louisiana Commission Action Agency, the United Giver’s Fund, the Bernard Parish Government from January on Law Enforcement and Administration St. Landry Parish Heart Association and the 2012 until her election to the bench. She is of Criminal Justice, and as president of the St. Landry Parish Scholarship Committee. a member of the 34th JDC Bar Association and serves on the boards of the St. Bernard Support of Lawyers/Legal Personnel — All Concern Encouraged Parish Council on Aging and the Kiwanis SOLACE The LSBA/LBF’s Community Action Committee supports the SOLACE program. Through the program, the state’s legal community Club. She is married to Timmy Juneau and is able to reach out in small, but meaningful and compassionate ways to judges, lawyers, court personnel, paralegals, legal they are the parents of two children. secretaries and their families who experience a death or catastrophic illness, sickness or injury. For assistance, contact a coordinator. Area Coordinator & Contact Info Area Coordinator & Contact Info Alexandria Area Richard J. Arsenault Lake Charles Area Melissa A. St. Mary Appointments (318)487-9874 (337)497-0022 Cell (318)452-5700 [email protected] ► Celeste R. Coco-Ewing was ap- [email protected] Monroe Area John C. Roa pointed, by order of the Louisiana Supreme Baton Rouge Area Ann K. Gregorie (318)387-2422 (225)214-5563 [email protected] Court, to the Committee on Bar Admissions [email protected] Natchitoches Area Peyton Cunningham, Jr. for a term of office which began July 1 and Covington/ Suzanne E. Bayle (318)352-6314, Cell (318)332-7294 Mandeville Area (504)524-3781 [email protected] will end on June 30, 2019. [email protected] New Orleans Area Helena N. Henderson ► John H. Andressen, 4th Circuit Court Denham Springs Area Mary E. Heck Barrios (504)525-7453 (225)664-9508 [email protected] of Appeal Judge Paul A. Bonin, Milton Do- [email protected] Opelousas/Ville Platte/ John L. Olivier negan, Jr. and May Dunn were reappointed, Houma/ Danna Schwab Sunset area (337)662-5242, (337)942-9836 Thibodaux Area (985)868-1342 (337)232-0874 by order of the Louisiana Supreme Court, to [email protected] [email protected] the Board of Examiners of Certified Short- Jefferson Parish Area Pat M. Franz River Parishes Area Judge Jude G. Gravois (504)455-1986 (225)265-3923, (225)265-9828 hand Reporters for terms of office ending [email protected] Cell (225)270-7705 on July 1, 2017. Lafayette Area Josette Abshire [email protected] (337)237-4700 Shreveport Area M’Lissa Peters ► Lisa Leslie Boudreaux was appointed, [email protected] (318)222-3643 by order of the Louisiana Supreme Court, to For more information, go to: www.lsba.org/goto/solace. [email protected] the Louisiana Board of Legal Specialization

236 October / November 2014 People LAWYERS ON THE MOVE . . . NEWSMAKERS

Cook, Yancey, King & Galloway, A.P.L.C., LA 70501 (P.O. Box 53478, Lafayette, LAWYERS ON in Shreveport announces that D. Logan LA 70505-3478); phone (337)234-0500. THE MOVE Schroeder and Andrew P. Lambert have joined the firm as associates. Herman, Herman & Katz, L.L.C., in Becker & Hebert, L.L.C., in Lafayette an- New Orleans announces that Jennifer J. nounces that Daniel A. Rees, Christopher Deutsch, Kerrigan & Stiles, L.L.P., in New Greene and John S. Creevy have been D. Granger and James P. Doherty III Orleans announces that Suzan N. Rich- named partners. Also, Patrick R. Busby have joined the firm. ardson has joined the firm as a partner. has joined the firm as an associate.

Beirne, Maynard & Parsons, L.L.P., an- Dunlap Fiore, L.L.C., in Baton Rouge an- Johnson, Johnson, Barrios & Yacoubian, nounces that Marne A. Jones has joined the nounces that Erin Gourney Fonacier has A.P.L.C., in New Orleans announces that firm’s New Orleans office as an associate. joined the firm as an associate. Maurice C. Ruffin has joined the firm. Bland & Partners, P.L.L.C., a New Orleans- Kelly Hart & Hallman, L.L.P., announces Duplass, Zwain, Bourgeois, Pfister & based firm with an office in Houston, Texas, the opening of its New Orleans office, Weinstock, A.P.L.C., in Metairie an- merged with the Houston office of Crain which will operate as Kelly Hart & Pitre, nounces that Meredith L. Simoneaux has Wilson, P.L.L.C.. located at Ste. 1812, 400 Poydras Tower, joined the firm as an associate. New Orleans, LA 70130. Loulan J. Pitre, Breazeale, Sachse & Wilson, L.L.P., an- Jr. has joined the firm as partner-in-charge. nounces that Jacob S. Simpson has joined Fowler Rodriguez announces that four Also joining the firm are Aimee Williams the firm’s Baton Rouge office. attorneys have been named to the partner- Hebert, Demarcus J. Gordon, Kelly E. Ran- ship in the New Orleans office:Jacques P. som, Jane A. Jackson and Victor E. Jones. Christovich & Kearney, L.L.P., in New DeGruy, W. Jacob Gardner, Jr., Michael Orleans announces that F. Sherman A. Harowski and E. Stuart Ponder. Boughton, Jr. and Mindy Brickman have joined the firm as partners and Cara E. Robert K. Guillory & Associates has relo- Continued next page Hall has joined the firm as an associate. cated to 605 W. Congress St., Lafayette,

Richard J. Arsenault F. Sherman Mindy Brickman Patrick R. Busby John S. Creevy J.E. Cullens, Jr. Boughton, Jr.

Jacques P. DeGruy James P. Doherty III Erin Gourney George J. Fowler W. Jacob Christopher D. Fonacier Gardner, Jr. Granger

Louisiana Bar Journal Vol. 62, No. 3 237 Koeppel Traylor announces that Erik A. Stone Pigman Walther Wittmann, L.L.C., Ocean Springs, Miss., was appointed to Mayo, Katherine C. Minor and Steven N. announces that Peter M. Thomson has a three-year term on the Director’s Ad- Newton have joined the firm’s New Orleans joined the firm’s New Orleans office as visory Council of the Newcomb College office as associates. Newton will handle special counsel. Institute, an academic center at Tulane Louisiana and Mississippi statewide matters. University. She also was named to the NEWSMAKERSNEWSMAKERS Editorial Board of the new Journal of Liskow & Lewis, A.P.L.C., announces American Law in the environmental/ that Brittan J. Bush has joined the firm’s Richard J. Arsenault, a partner in the energy specialty board area and was se- Lafayette office as an associate. Alexandria firm of Neblett, Beard & Arse- lected to co-chair the CLE Subcommittee nault, will chair the 14th annual Louisiana of the National Association of Minority Moore, Thompson & Lee, A.P.L.C., in State Bar Association Complex Litigation/ and Women Owned Law Firms’ Insurance Baton Rouge announces that Holly Graphia Mass Tort Symposium on Nov. 21 in New Alliance Committee. Hansen has joined the firm. Orleans. In September, he was a speaker at the Kentucky Justice Association Annual J.E. Cullens, Jr., a founding partner in the L. Lane Roy announces the formation of Convention. Baton Rouge firm of Walters, Papillion, his new firm, L. Lane Roy, L.L.C., located Thomas, Cullens, L.L.C., earned national at Ste. 101, 110 E. Kaliste Saloom Rd., La- Judy Y. Barrasso, a founding member of board certification by the American Board fayette, LA 70508; phone (337)234-0438. the New Orleans firm of Barrasso Usdin of Professional Liability Attorneys in the Kupperman Freeman & Sarver, L.L.C., field of medical malpractice. Sessions, Fishman, Nathan & Israel, L.L.C., was awarded “Best in Litigation” at the announces that Lindsay E. Reeves has 2014 Euromoney LMG Women in Busi- Tiffany Delery Davis, a shareholder in the joined the New Orleans office as an associate. ness Law Awards. She also was named to New Orleans office of Liskow & Lewis, Benchmark Litigation’s top 250 Women A.P.L.C., was named to the Lawyers of in Litigation. Color’s second annual Hot List, which recognizes early- to mid-career minority Preston J. Castille, Jr., a partner in the Baton attorneys. Rouge firm of Taylor, Porter, Brooks & Phillips, L.L.P., was elected national presi- Nancy Scott Degan, a shareholder in the dent of the Southern University Alumni New Orleans office of Baker, Donelson, Federation. Bearman, Caldwell & Berkowitz, P.C., is serving a one-year term as chair of the Kaye N. Courington, managing mem- American Bar Association’s Section of Jennifer J. Greene Cara E. Hall ber of Courington, Kiefer & Sommers, Litigation. L.L.C., with offices in New Orleans and

Michael A. Harowski Robert E. Kleinpeter Andrew P. Lambert Ryan M. McCabe E. Stuart Ponder Daniel A. Rees

Lindsay E. Reeves Suzan N. Richardson Antonio J. Rodriguez Maurice C. Ruffin D. Logan Schroeder Norman C. Sullivan, Jr.

238 October / November 2014 Attorney Barbara L. Edin of Metairie was Orleans Parish Criminal District Court New Orleans Magazine honored as a past president (1993-94) by Judge Robin D. Pittman is serving on the Carver, Darden, Koretzky, Tessier, the Women’s Bar Association of Maryland, Loyola University New Orleans College of Finn, Blossman & Areaux, L.L.C. (New Montgomery County. Law’s Alumni Board of Directors. She also Orleans): Jacqueline M. Brettner, 2014 top was appointed by the Louisiana Supreme female achiever. Monica A. Frois, a shareholder in the New Court to the Louisiana Judicial College Orleans office of Baker, Donelson, Bear- Board of Governors, serving through INIn MEMORIAM Memoriam man, Caldwell & Berkowitz, P.C., was September 2015. Edgar F. Barnett, reappointed as co-vice chair of Diverse 82, of Houston, Member Development for the Diversity Meera U. Sossamon, an associate in the Texas, died July 27. Committee of the International Association New Orleans firm of Irwin Fritchie Urqu- He received his law of Defense Counsel. hart & Moore, L.L.C., was named to the degree from Loui- Lawyers of Color’s second annual Hot siana State Univer- Emily B. Grey, a partner in the Baton List, which recognizes early- to mid-career sity Law School in Rouge office of Breazeale, Sachse & minority attorneys. 1958 and was ad- Wilson, L.L.P., was appointed vice chair PUBLICATIONSPUBLICATIONS mitted to practice of Strategic Activities in the American in Louisiana the Edgar F. Barnett Health Lawyers Association’s Hospitals Chambers USA 2014 same year. He was and Health Systems Practice Group. Breazeale, Sachse & Wilson, L.L.P. admitted to the Texas (Baton Rouge, New Orleans): John T. Bar in 1990. He practiced law in Lake Daisy Gurdián Kane, an associate in the Andrishok, Robert L. Atkinson, Thomas Charles from 1958-89, focusing in insur- New Orleans office of Jackson Lewis, M. Benjamin, David R. Cassidy, Murphy ance defense law and maritime law. He P.C., was named to the Lawyers of Color’s J. Foster III, Alan H. Goodman, Richard served as president of Southwest Louisiana second annual Hot List, which recognizes D. Leibowitz, Steven B. Loeb, Eve B. Bar Association and was a member of the early- to mid-career minority attorneys. Masinter, E. Fredrick Preis, Jr., Claude F. Maritime Law Association of the United She also is serving as president-elect of Reynaud, Jr. and Jerry L. Stovall, Jr. States since 1963. In 1989, he moved to the Hispanic Lawyers Association of Carver, Darden, Koretzky, Tes- Houston where he practiced maritime law Louisiana. sier, Finn, Blossman & Areaux, L.L.C. as a sole practitioner, representing both (New Orleans): M. Hampton Carver, M. plaintiffs and defendants. He also served Robert E. (Bob) Kleinpeter, managing Taylor Darden, William T. Finn, I. Harold as a consultant to Louisiana lawyers in partner in the Baton Rouge firm of Klein- Koretzky, Frank A. Tessier and David F. maritime cases, practicing in both Loui- peter & Schwartzberg, L.L.C., achieved Waguespack. siana and Texas. He served in the United the status of diplomate in the National Fowler Rodriguez (New Orleans): States Army as an artillery lieutenant in College of Advocacy and was recognized George J. Fowler, Antonio J. Rodriguez the Korean War. Mr. Barnett is survived by at the American Association for Justice’s and Norman C. Sullivan, Jr. his wife, Gerry; his daughter, Jana Phelps; 2014 convention. Jackson Lewis, P.C. (New Orleans): his son, Lake Barnett; his stepdaughter, René E. Thorne, Susan F. Desmond and Jennifer Hubbs; a grandson and two great Linda A. Liljedahl, founder of Dispute Charles F. Seemann III. grandchildren. Resolution Institute of Louisiana, Ltd., Ogletree, Deakins, Nash, Smoak & based in Baton Rouge, was named the top Stewart, P.C. (New Orleans): Mark N. female executive for 2014 by the Cam- Mallery and Christopher E. Moore. bridge Who’s Who of America.

Eve B. Masinter, a partner in the New Or- leans office of Breazeale, Sachse & Wilson, L.L.P., was appointed to a three-year term on the board of directors of the International 2015 Association of Defense Counsel. Midyear Meeting Ryan M. McCabe, an associate in the New Orleans firm of Steeg Law Firm, L.L.C., Save the dates was named chair of the Louisiana State January 15-17, 2015 Bar Association’s Law-Related Education Committee and has joined the board of InterContinental New Orleans Hotel • 444 St. Charles Ave., New Orleans the Louisiana Center for Law and Civic www lsba org midyearmeeting Education. To register or for more information, visit . . /

Louisiana Bar Journal Vol. 62, No. 3 239 News Awards... local bars... lbf

Update Chair, Vice Chair Elected to Judiciary Commission

Shreveport attorney Jerry Edwards and 15th Judicial District Court Judge Jules D. Edwards III were elected as chair and vice chair, respectively, of the Judiciary Commission of Louisiana, the Louisiana Supreme Court announced. Attorney Edwards earned his law de- gree in 2005 from Vermont Law School. He served as a law clerk for 1st Judicial District Court Judges Scott J. Crichton Jerry Edwards Judge Jules D. The Shreveport law firm of Cook, Yancey, King and Jeanette G. Garrett. In 2006, he joined Edwards III & Galloway, A.P.L.C., is one of the recipients the Shreveport law firm of Blanchard, of the 2014 Beacon of Justice Award, presented Walker, O’Quin & Roberts, A.P.L.C., as an tively, from Loyola University. He earned annually by the National Legal Aid and Defender Association. All law firms recognized devote associate and became a director in 2014. a master in public administration degree resources to delivering on the mandate of Gideon He is serving on the Louisiana State Bar in 1994 from Louisiana State University v. Wainwright, which 50 years ago established the Association’s Young Lawyers Division and a master of strategic studies degree in right to counsel for people accused of a crime Council and is a member of the Shreve- 2005 from the U.S. Army War College. and facing a loss of liberty. Cook Yancey was recognized for its work to advance policies and port Bar Association and the Booth-Politz During his career, he served as an in- practices that provide pathways to justice and American Inn of Court. digent defender attorney, assistant district opportunity. Cook Yancey shareholder Herschel Judge Edwards, chief judge of 15th attorney, counsel to the Louisiana Senate’s E. Richard, Jr., left, and special counsel Lisa C. Judicial District Court and a drug court Select Committee on Crime and Drugs, Cronin accepted the award on the firm’s behalf at the June ceremony in Washington, D.C. pioneer, received his undergraduate and and a partner of the Edwards and Edwards law degrees in 1981 and 1984, respec- Law Offices. Send your news! The Louisiana Bar Journal would like to publish news and photos of your activities and accomplishments.

Email your news items and photos to: LSBA Publications Coordinator Darlene LaBranche at [email protected].

Warren A. Perrin of Lafayette, fourth from left, represented the Louisiana State Bar Association (LSBA) Or mail press releases to: at the Caen Bar Association’s conference on human rights in litigation in June in Cabourg, France. Darlene LaBranche Perrin is chair of the LSBA’s Francophone Section. Also attending the conference were, from left, Antoanella Motoc, judge for the European Court of Human Rights; Gilles Straehli, counselor for the 601 St. Charles Ave. French Supreme Court; Emmanuel Pire, attorney with the Paris Bar; Perrin; Robert Apery, bâtonnier New Orleans, LA of the Caen Bar Association; Jean-Pierre Versini Campinchi, attorney with the Paris Bar; Vincent Le 70130-3404 Beguec, director of Central Police of the Judiciary; and Robert Gelli, president of the National District Attorneys’ Association.

240 October / November 2014 Southern University Law Center Chancellor Freddie Pitcher, Jr., far left, with the seven 2014 Law Center Hall of Fame inductees, from left, Mayor Southern University Law Center Chancellor Freddie Pitcher, Jr., far right, Jacques M. Roy, Alexandria; attorney Edward Larvadain, Jr., Alexandria; with the six 2014 Law Center Distinguished Alumni, from left, Yolanda Judge Ramona L. Emanuel, Shreveport; attorney Rickey W. Miniex, Martin Singleton, Baton Rouge; State Rep. Katrina R. Jackson, Monroe; Lafayette; Judge Jeffrey S. Cox, Bossier City; Judge Wilson E. Fields, Baton Vanessa Caston LaFleur, Baton Rouge; Jason M. Stein, New Orleans; Tricia Rouge; and attorney Clyde R. Simien, Lafayette. Photo provided by Southern R. Pierre, Lafayette; and Samuel L. Jenkins, Jr., Shreveport. Photo provided University Law Center. by Southern University Law Center. SULC Recognizes Hall of Fame, Wall of Fame and Distinguished Alumni Seven Southern University Law Center were Yolanda Martin Singleton and Vanessa SULC graduates who serve or have (SULC) alumni were inducted into the Hall Caston LaFleur, both of Baton Rouge; served as members of the judiciary have of Fame in April. Eight judges’ portraits State Rep. Katrina R. Jackson, Monroe; portraits on the Wall of Fame in the North were unveiled for installation on the SULC Jason M. Stein, New Orleans; Tricia R. Wing of A.A. Lenoir Hall. The eight new Judicial Wall of Fame. Six other graduates Pierre, Lafayette; and Samuel L. Jenkins, portraits join 23 others currently on display. were recognized as 2014 Distinguished Jr., Shreveport. Distinguished Alumni Award recipients Alumni. SULC Hall of Fame inductees are have maintained active engagement in the Hall of Fame inductees included Mayor recognized for their career accomplishments, continued progression of the Law Center; Jacques M. Roy and attorney Edward commitment to bettering the community have been practicing law, or another legal Larvadain, Jr., both of Alexandria; Judge and support to the Law Center. Their names discipline, for five-plus years; are financially Ramona L. Emanuel, Shreveport; attorney are placed on a special recognition wall contributing supporters of the Law Center; Rickey W. Miniex and attorney Clyde R. display at the Law Center’s A.A. Lenoir and have been recognized by their peers for Simien, both of Lafayette; Judge Jeffrey Hall. Since 2003, 59 alumni have received contributions to their fields of law at the S. Cox, Bossier City; and Judge Wilson E. Hall of Fame recognition. state, national and/or international levels. Fields, Baton Rouge. Judicial portraits unveiled for the Wall of Fame included Judge Ernestine (Teena) Anderson-Trahan, Orleans Parish Second City Court; Judge Paula A. Brown, Orleans Parish Civil District Court; Magistrate Judge Harry E. Cantrell, Jr., Orleans Parish Criminal District Court; Judge Wilson E. Fields, 19th Judicial District Court, East Baton Rouge Parish; Judge Frank E. Lemoine, Kaplan City Court, Vermilion Parish; Judge Brenda Bedsole Ricks, 21st Judicial District Court, Livingston, St. Helena and Tangipahoa parishes; Judge Shonda D. Stone, Caddo Parish Juvenile Russian law students, accompanied by Professors Gaya Davidyan and Natalia Sherback from Moscow State University in Moscow, Russia, visited the courtroom of Orleans Parish Criminal District Court Court and Family Preservation Court; and Judge Arthur L. Hunter in July. For eight years, the students, hosted by Professor James M. Klebba Judge Felicia Toney Williams, 2nd Circuit of Loyola University College of Law, have visited the court to observe criminal proceedings and learn Court of Appeal. about the American criminal justice system. Also participating in the program were attorneys Carrie E. Recognized as Distinguished Alumni Ellis and Sarah Chervinsky of the Orleans Public Defenders Office, attorney Ike Spears and Assistant District Attorneys Robert J. Ferrier, Jr. and Irena Zajickova.

Louisiana Bar Journal Vol. 62, No. 3 241 LOCAL / SPECIALTY BARS Important Federal Bar Association/New Orleans Reminder: Lawyer Chapter Names 2014-15 Board Advertising Filing Requirement Christopher J. Alfieri was installed Cot, Donna Phillips Currault, Michael as 2014-15 president of the Federal Bar J. Ecuyer, Joelle F. Evans, Harold J. Per Rule 7.7 of the Louisiana Rules Association/New Orleans Chapter during Flanagan, Kathleen C. Gasparian, Soren of Professional Conduct, all lawyer the association’s annual meeting and E. Gisleson, Steven F. Griffith, Jr., Brian advertisements and all unsolicited written awards luncheon in August. L. Guillot, Alida C. Hainkel, Hon. Stephen communications sent in compliance with Joining him on the executive board A. Higginson, Kathryn M. Knight, Tracey Rule 7.4 or 7.6(c) — unless specifically of directors are Hon. Sarah S. Vance, N. Knight, Hon. Mary Ann Vial Lemmon, exempt under Rule 7.8 — are required president-elect; Kelly T. Scalise, treasurer; Andrew T. Lilly, Omar K. Mason, Diana to be filed with the LSBA Rules of Celeste R. Coco-Ewing, recording A. Mercer, Hon. Jane Triche Milazzo, Professional Conduct Committee, secretary; W. Raley Alford III, membership Douglas J. Moore, Hon. Susie Morgan, through LSBA Ethics Counsel, prior to chair; Wendy Hickok Robinson, immediate Thomas Kent Morrison, Hon. Michael or concurrent with first use/dissemination. past president; and Stephen G.A. Myers, B. North, Kyle L. Potts, Sally Brown Written evaluation for compliance with younger lawyers representative. Richardson, Bradley J. Schlotterer, Paul the Rules will be provided within 30 days Serving on the chapter board of directors M. Sterbcow, Peter J. Wanek and Richard of receipt of a complete filing. Failure to are Erin K. Arnold, John T. Balhoff II, Hon. W. Westling. file/late filing will expose the advertising Carl J. Barbier, Hon. Nannette Jolivette Ex-officio board members are Hon. lawyer(s) to risk of challenge, complaint Brown, Brian J. Capitelli, Hon. Lyle W. William Blevins and Tara G. Richard. and/or disciplinary consequences. Cayce, Lawrence J. Centola III, Jose R. The necessary Filing Application Form, information about the filing and evaluation process, the required filing fee(s) and the pertinent Rules are available Shreveport Bar Association Names online at: http://www.lsba.org/members/ LawyerAdvertising.aspx. 2014 Officers, Board Inquiries, questions and requests for assistance may be directed to LSBA Ethics Counsel Richard P. Lemmler, Jr., Lawrence W. Other 2014 committee and section [email protected], (800)421-5722, Pettiette, Jr., a partner chairs include James C. McMichael, ext. 144, or direct dial (504)619-0144. at Pettiette, Armand, Jr., Krewe of Justinian; S. Christopher Dunkelman, Slatten, Roy H. (Hal) Odom, Jr. and Woodley, Byrd & Arthur R. Carmody, Jr., Bar Review LBF Sets Grant Cromwell, L.L.P., editors; Gregory J. Barro, membership; in Shreveport, Marcus E. Edwards and Erik S. Vigen, Application was installed as Law Week; Graham H. Todd, military 2014 president affairs; Sam N. Gregorio, mentoring; Deadlines of the Shreveport Lawrence W. Judge Jeanette G. Garrett and Judge Mark Bar Association Pettiette, Jr. L. Hornsby, continuing legal education; The Louisiana Bar Foundation’s grant (SBA). Also sworn Curtis R. Joseph, Jr., James A. Mijalis application for 2015-16 funding is now in as officers were and Donald E. Hathaway, Jr., golf and available online and must submitted by Bennett L. Politz, president-elect; Laura tennis tournament; Amy C. Gardner Dec. 1, 2014. P. Butler, vice president; and Robin N. and Melissa L. Allen, legal technology; The Loan Repayment Assistance Jones, secretary-treasurer. Jaqueline A. Scott and Judge James J. Program (LRAP) application for 2015-16 The 2014 SBA directors-at-large are Caraway, long-range planning; John T. funding will be available online beginning Melissa L. Allen, Curtis R. Joseph, Jr., Kalmbach, memorial and recognition; Dec. 1, 2014. Deadline for submitting the John C. Nickelson and J. Marshall Rice. Judge Gay C. Gaskins, professionalism; LRAP application is Feb. 13, 2015. Sarah Smith-Brown is head of the SBA Mark W. Odom, archives; W. Ross Renee Bienvenu is the new grants Young Lawyers Section. Judge Michael Foote, mediation/arbitration; Trudy coordinator and will oversee the overall A. Pitman is judicial liaison, and Linda Daniel, Gerald M. Johnson and Kristen administration of the grant programs and Millhollon Ryland is head of the Women’s B. Bernard, publicity; and Jerry Edwards application process. For more information, Section. and Ronald J. Miciotto, program. go to: www.raisingthebar.org.

242 October / November 2014 Louisiana Bar Foundation

President’s Message Protecting and Empowering Against Abuse By President Hon. C. Wendell Manning ctober is observed nationally as is dedicated to help- Project Celebration, Safe Harbor, Inc., Domestic Violence Awareness ing protect families, Safety Net for Abused Persons, Southeast Month. One out of every four empower victims and Spouse Abuse Program, St. Bernard Battered women in a relationship will break the cycle of Women’s Program, The Haven, Inc., The experienceO some sort of physical abuse in violence in Louisiana. Wellspring Alliance for Families, Inc. and her lifetime — your mother, your sister, I am proud to report United Way of Central Louisiana. your daughter, your friend.1 It can happen that the LBF awarded As members of the legal community, we to anyone. Domestic violence cuts across more than $300,000 can help. Please consider joining the LBF. all socioeconomic lines; it affects rich, poor, in grants to domes- The LBF is working to help break the cycle black, white, young and old. tic violence agencies Hon. C. Wendell of violence by helping women and children. In 2012, Louisiana was ranked as hav- across the state this Manning We also assist the elderly, working poor, ing the fourth highest homicide rate among year. These agencies empower people to people with disabilities, disaster victims female victims killed by male offenders in leave abusive relationships and seek safety. and many others. Through our projects and single-victim/single-offender incidents. Of The essential services provided by these activities, we work to better the legal profes- the victims who knew their offenders, 51 agencies range from providing communities sion and our communities. To join, contact percent were wives, common-law wives, with a 24-hour crisis line; shelter for abused Membership Coordinator Danielle Marshall ex-wives or girlfriends of the offenders.2 spouses and their children; legal services; at (504)561-1046 or email danielle@rais- Did you know? education on domestic and dating violence; ingthebar.org. For more information, go to: ► Nationally, an estimated 1.3 million and establishing collaborative relationships www.raisingthebar.org. women are victims of physical assault by with law enforcement, judges, clerks of an intimate partner each year. court and prosecutors. According to 2012- FOOTNOTES ► Domestic violence is more than three 13 statistics provided by our grantees, they times as likely to occur when couples are were able to help more than 8,500 women 1. Patricia Tjaden and Nancy Thoennes, National Institute of Justice and the Centers for Disease Control experiencing high levels of financial strain. and 3,500 children in Louisiana obtain safety and Prevention, “Extent, Nature and Consequences ► Boys who witness domestic violence from their abusers. of Intimate Partner Violence: Findings from the are twice as likely to abuse their own partners Included in the 2014 Domestic Violence National Violence Against Women Survey,” (2000). 2. Violence Policy Center, “When Men Murder and children when they become adults. Programs grantees are: Beauregard Com- Women: An Analysis of 2012 Homicide Data” ► The average number of times a bat- munity Concerns, Inc., Catholic Charities/ (September 2014). 3. Statistics and facts: National Coalition Against tered woman may leave from, and return Project S.A.V.E., Chez Hope, D.A.R.T. of Domestic Violence; The National Network to End Do- to, her batterer is between five and seven.3 Lincoln, Faith House, Inc., Metropolitan mestic Violence; Violence Policy Center based on FBI The Louisiana Bar Foundation (LBF) Center for Women and Children, Oasis, data; and the Governor’s Office on Women’s Policy.

LBF Receives Cy Pres Award Louisiana Bar Foundation The Louisiana Bar Foundation (LBF) In 2012, the Louisiana Supreme Court Announces New Fellows is the recipient of a $10,000 cy pres award. adopted Rule XLIII, which names the The Louisiana Bar Foundation Unused administrative funds from the LBF as a permissible recipient of cy pres announces new Fellows: Elmira Preston et al v. Tenet HealthSystems funds. The LBF is the only organization Kristin L. Beckman...... New Orleans Memorial Medical Center et al class action specifically identified in the rule. Because of Jennifer C. Deasy...... New Orleans case were directed to the LBF by Orleans the tremendous need for civil legal services C. Kevin Hayes...... Baton Rouge Parish Civil District Court Judge Tiffany for low-income people in Louisiana, cy pres Hon. Patricia E. Koch...... Alexandria Gautier Chase. awards can go a long way toward meeting Diana A. Mercer...... New Orleans “The LBF is deserving of this award the need for legal services. Jonathan M. Rhodes...... New Orleans because of its commitment to ensuring For more information, contact Laura Weldon J. Rougeau...... Chicago, IL access to equal and fair representation in Sewell at (504)561-1046 or email laura@ Paul L. Wood...... Shreveport civil legal aid matters for the indigent,” raisingthebar.org. Hon. Lisa Woodruff-White.....Baton Rouge Judge Chase said.

Louisiana Bar Journal Vol. 62, No. 3 243 Save the dates!

n the legal community the more you know, the faster you’ll get ahead. That’s why the Louisiana State Bar Association offers a variety of seminars on a wide range of legal topics. Enrolling in them will help you stay competitive and keep up with the ever-changing laws. The Continuing Legal Education Program Committee sponsors more than 20 programs each year, ranging from 15-hour credit seminars to one-hour ethics classes. Check online for the most up-to-date list of Iupcoming seminars at www.lsba.org/CLE. Upcoming LSBA CLE Seminars 54th Bi-Annual Bridging the Gap Reinventing Health Law and Policy: The Pursuit of Balance: Life & Law Oct. 28 & 29, 2014 The Louisiana Experiment Dec. 16, 2014 Sheraton New Orleans Hotel Nov. 14, 2014 Hyatt French Quarter Hotel 500 Canal St., New Orleans Westin Canal Place Hotel 800 Iberville St., New Orleans 100 Iberville St., New Orleans

Voodoo Fest: Litigation Spooktacular! Trial Practice CLE Oct. 31, 2014 14th Annual Class Action/ Dec. 16, 2014 Sheraton New Orleans Hotel Complex Litigation Symposium Sheraton New Orleans Hotel 500 Canal St., New Orleans Co-Sponsored w/ LSBA Insurance, Tort, 500 Canal St., New Orleans Workers’ Comp & Admiralty Section Nov. 21, 2014 LSBA Energy and Environmental Hyatt French Quarter Hotel Federal Court Practice: Learn from Law Summit 800 Iberville St., New Orleans the Masters of the Bench & Bar Nov. 6-7, 2014 Dec. 18, 2014 Sheraton New Orleans Hotel New Orleans Marriott Hotel 500 Canal St., New Orleans New York, New York CLE 555 Canal St., New Orleans Nov. 22-24, 2014 New York Millennium Broadway Hotel Ethics & Professionalism – Dazzling Disney! Bossier City Feb. 16-18, 2015 Nov. 7, 2014 Ethics & Professionalism: Disney’s Grand Floridian Resort & Spa Horseshoe Bossier City Watch Your P’s & Q’s Lake Buena Vista, FL 711 Horseshoe Blvd., Bossier City Dec. 5, 2014 Sheraton New Orleans Hotel 500 Canal St., New Orleans French Quarter Fest CLE: CLE with the New Orleans Pelicans! 6th Annual White Collar Crime Symp. Pelicans vs. Lakers April 10, 2015 Nov. 12, 2014 CLE with the New Orleans Pelicans! Sheraton New Orleans Hotel Smoothie King Center, New Orleans Pelicans vs. Nicks 500 Canal St., New Orleans Dec. 9, 2014 Smoothie King Center, New Orleans Workers’ Comp: Waves of Change - Bankruptcy/Consumer Law Oceans of Opportunity April 17, 2015 Nov. 13, 2014 26th Summer School Revisited Hilton - Shreveport Embassy Suites Hotel Dec. 11-12, 2014 4914 Constitution Ave., Baton Rouge Sheraton New Orleans Hotel 500 Canal St., New Orleans

244 October / NovemberFor 2014 more info, visit www.lsba.org/CLE Classified ads ONLINE at www.lsba.org CLASSIFIED NOTICES Mid-sized, suburban New Orleans law firm Standard classified advertising in our regu- POSITIONS OFFERED (AV-rated) seeks an experienced attorney to join the firm. The qualified candidate should lar typeface and format may now be placed Growing AV-rated New Orleans defense in the Louisiana Bar Journal and on the have an established book of business and LSBA Web site, LSBA.org/classifieds. firm seeks an attorney with three-five years’ possess excellent academic and professional All requests for classified notices must experience in insurance defense. Excellent credentials. Attorney compensation formula be submitted in writing and are subject writing/communication skills required. to approval. Copy must be typewritten rewards productivity based on fees collected Great opportunity for advancement or for work originated and work performed and payment must accompany request. lateral placement. All inquiries treated with Our low rates for placement in both are and includes attractive fringe benefits. The as follows: strictest confidence. Qualified individuals qualified candidate will have access to an should submit résumé, transcript and writ- experienced and well-trained legal support RATES ing samples: HR, 701 Poydras St., #4700, staff, including associate attorneys, para- New Orleans, LA 70139-7708, or email legals, legal assistants and court runners. CLASSIFIED ADS [email protected]. Firm is also set up to enable attorneys to Contact Krystal L. Bellanger at work remotely. Candidates wishing to bring (504)619-0131 or (800)421-LSBA, Expanding AV-rated New Orleans civil ext. 131. their own support staff will be considered. defense firm seeks independent attorney, Please reply in strictest confidence to Office Non-members of LSBA with established client base, seeking op- Administrator, P.O. Box 931, Metairie, LA $85 per insertion of 50 words or less portunity for expansion and growth in 70004-0931. $1 per each additional word corporate and/or civil litigation practice. $20 for Classy-Box number All inquiries will be treated with the LAMMICO, a Metairie-based profes- strictest confidence. Qualified individuals Members of the LSBA sional liability insurance company, is seeking should submit résumé, transcript and writ- $60 per insertion for 50 words or less an experienced medical malpractice attorney $1 per each additional word ing samples to Inquiries, P.O. Box 30590, for its Staff Counsel program. Requirements No additional charge for Classy-Box New Orleans, LA 70190. include a JD degree from an accredited law number school, minimum of 10 years’ experience in Suburban New Orleans AV-rated law medical malpractice defense and extensive Screens: $25 firm seeks attorney to practice in the area Headings: $15 initial headings/large type trial experience. Responsible for defense of of insurance coverage and defense. Mini- medical malpractice claims from the medical BOXED ADS mum five years’ experience preferred but review panel stage through trial and appeal. Boxed ads must be submitted camera ready will consider other applicants with excel- Comprehensive benefits package, including by the advertiser. The ads should be boxed lent academic background. Competitive medical, dental, life, long- and short-term and 2¼” by 2” high. The boxed ads are $70 salary and benefits package. All replies per insertion and must be paid at the time of disability, and 401k with match. Qualified held strictly confidential. Send résumé to placement. No discounts apply. candidates should submit their résumé to [email protected] or fax (504)362-5938. [email protected]. EOE. All DEADLINE inquiries will be held in strictest confidence. For the February issue of the Journal, all classified notices must be received with payment by Dec. 18, 2014. Check and ad copy should be sent to: Forensic Document LOUISIANA BAR JOURNAL Classified Notices Examiner 601 St. Charles Avenue Robert G. Foley New Orleans, LA 70130 Handwriting • Typewriting • Copies Ink/Paper Analysis & Dating RESPONSES To respond to a box number, please address Certified & Court Qualified in your envelope to: Federal, State, Municipal & Journal Classy Box No. ______Military Courts since 1972 c/o Louisiana State Bar Association Phone: (318) 322-0661 601 St. Charles Avenue www.robertgfoley.com New Orleans, LA 70130

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Louisiana Bar Journal Vol. 62, No. 3 247 The Last Word By Joseph I. Giarrusso III Not just Humblebragging

he quote “It ain’t braggin’ if you can do it” is attributed to former baseball star Dizzy Dean. While this may come as a surprise to some,T it is advice that certain lawyers seem to live by. Before recent technological advances, such boasting was generally confined to personal exchanges among attorneys. However, the advent of the Internet (and social media in particular) has drastically changed the scope and immediacy of “counsel crowing.” As a Generation X-er — firmly entrenched between the importance of a personal tions. #Pre-existing-injury-fail.” selves. #lawreviewproblems. conversation and the lightning speed of Finally, social media has launched a ► I am so out of shape. All out of a short text message — I am perfectly new word into the lexicon — the concept breath from walking a few blocks to take situated to observe these emerging social of which is one of my biggest pet peeves. my picture for this year’s Super Lawyers. media trends. The authoritative cultural online jour- If only I had more time to exercise. First, have you ever noticed that real es- nal, www.urbandictionary.com, defines tate, succession and transactional lawyers “humblebragging” as: ► Can’t believe they videotaped my rarely seem to brag on Facebook or Twitter? LSBA speech. I suppose if people want I am waiting for posts like “I generated 20 The lowest, most despicable and to be uninspired for 15 minutes, they can sets of closing documents today. More clos- loathsome form of self-promotion, click here. ings = more MONEY” or “Texas lawyer often delivered in a terse one or two wanted to call a usufruct a life estate. What fragmented sentences on social net- ► Awkward. Saw some guy next to me a joke. #commonlawproblems.” working sites. A typical and popular LOL-ing while reading “The Last Word” 2 Second, it seems as though no one ever approach is to use a disingenuous in the Journal. loses anything on social media. All plaintiff complaint about something, a self- FOOTNOTE cases are resolved favorably and all defense deprecating statement or a comment cases end in summary judgment or after a on something completely innocuous 1. Apparently, Urban Dictionary is populated by “decisive” trial. If so inclined to this type as a vehicle to deliver the real mes- those speaking the Queen’s English. of horn-tooting, I would like to propose a sage, which invariably shows the 2. Shout out to @humblebrag for the help! 3:1 ratio. For every three times a lawyer person in a favourable light.1 Joseph I. Giarrusso III is brags, he/she must post one humiliating a shareholder in the New or defeated moment such as, “Well, my What are some classic “humble-brag- Orleans office of Liskow & witness imploded during his depo today. ging” examples? Look no further: Lewis, P.L.C. He received If plaintiff’s counsel had asked just a few his JD degree in 2001 from ► I am so not looking forward to Cam- Louisiana State University more questions, with all due respect to bridge, MA winters while in law school! Paul M. Hebert Law Cen- Daniel Kaffee from A Few Good Men, he Trying to soak up as much sun as I can ter (Louisiana Law Review would have copped to the Kennedy assas- and Order of the Coif). He before leaving town. sination” or “My client who told me she is admitted to practice in Louisiana and Texas. (jigi- had no prior injuries to her back had not ► Wish I could watch TV today. But [email protected]; Ste. one, not two, but three earlier back opera- those cite checks are not going to do them- 5000, 701 Poydras St., New Orleans, LA 70139)

The Louisiana Bar Journal is looking for authors and ideas for future “The Last Word” articles. Humorous articles will always be welcomed. But Editor Barry H. Grodsky is broadening the scope of the section, including “feel-good” pieces, personal reflections, human interest articles or other stories of interest. If you have an idea you’d like to pitch, email Grodsky at [email protected] or LSBA Publications Coordinator Darlene M. LaBranche at [email protected].

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