Lawyers Assistance

Celebrating the State’s Bicentennial

Also Inside: ► America’s New Civil Rights Movement: Education Reform, Public Charter Schools and No Child Left Behind ► Jurisdiction and Choice of Law Issues in OCS Oil Spill Cases The Needle In A Haystack

Complex financial litigation cases often hinge on the engagement of experts who find the needle in a haystack. A substantial edge is gained when you have Legier & Company’s Forensic Accounting and Expert Witness Group on your team to help you find obscured financial facts that can ensure your success. Expert Testimony • Fraud & Forensic Accounting • Calculating and Refuting Financial Damages Business Valuations • Bankruptcies • Shareholder Disputes • Lost Profits • Business Interruptions For more information, contact William R. Legier (504) 599-8300

apac Forensic and Investigative CPAs

1100 Poydras Street • 34th Floor • Energy Centre • New Orleans, LA 70163 Telephone (504) 561-0020 • Facsimile (504) 561-0023 • http://www.lmcpa.com HORNEHORNEHORNEHORNE HORNEFRAUD, FRAUD, FRAUD, FRAUD, FRAUD, FORENSIC FORENSIC FORENSIC FORENSIC FORENSIC & &LITIGATION & LITIGATION &LITIGATION &LITIGATION LITIGATION SERVICES SERVICES SERVICES SERVICES SERVICES

ShownShownShown clockwiseShown clockwise Shownclockwise clockwise clockwise fromfrom backfrom backf rom left:backf rom left: back left: back left: left: EdwardEdwardEdward T.Edward Simmons, T.Edward T.Simmons, Simmons, T. Simmons, T. Simmons, CPA/ABV,CPA/ABV,CPA/ABV,CPA/ABV, CVA,CPA/ABV, CVA, CFE,CVA, CFE,CVA, CFFCFE, CVA, CFFCFE, CFF CFE, CFF CFF RobertRobertRobert H.Robert Alexander,H.Robert H.Alexander, Alexander,H. Alexander, H. Alexander, CPA/ABV,CPA/ABV,CPA/ABV,CPA/ABV, ASA,CPA/ABV, ASA, ASA,CFF ASA,CFF CFF ASA, CFF CFF JeffreyJeffreyJeffrey N.Jeffrey Aucoin,N. Jeffrey N.Aucoin, Aucoin,N. Aucoin, N. Aucoin, CPA,CPA, CFF,CPA, CPA,CFF, CFE,CFF,CPA, CFE,CFF, CIACFE, CFF, CIACFE, CIA CFE, CIA CIA LoriLori T.Lori Liddell, T.Lori T.Liddell, Liddell,Lori T. Liddell, T. Liddell, CPA/ABV,CPA/ABV,CPA/ABV,CPA/ABV, CFECPA/ABV, CFE CFE CFE CFE PaulPaul E.Paul Foster, E.Paul E.Foster,Paul Foster, E. Foster, E. Foster, CPA,CPA, CFECPA, CPA,CFE CFECPA, CFE CFE JessicaJessicaJessica R.Jessica Cormier,R.Jessica R.Cormier, Cormier,R. Cormier, R. Cormier, CPACPACPACPACPA

TheThe fraud,The fraud,The fraud, forensicThe fraud, forensic forensicfraud, andforensic andforensic litigation and litigationand litigation and litigationteam litigationteam teamat HORNEteamat atHORNEteam HORNEat LLP HORNEat LLP HORNEprovides LLP provides LLP provides LLP providesa comprehensive providesa comprehensivea comprehensive a comprehensive a comprehensive HORNE’s HORNE’sHORNE’s HORNE’s teamHORNE’s team team team team rangerangerange of range servicesof ofrangeservices servicesof serviceswithinof serviceswithin within the within theforensic withinthe forensic theforensic theforensicaccounting accountingforensic accounting accounting profession.accounting profession. profession. profession. Ourprofession. Our team Our team Our teammembers Our teammembers membersteam members members strives strivesstrives tostrives delivertostrives to deliver deliverto deliverto deliver are arecredentialedare credentialed arecredentialed arecredentialed credentialed in focused in infocused focused in practicefocused in practicefocused practice areaspractice areaspractice areas with areas with emphasis withareas emphasiswith emphasis with emphasis on emphasis economicon on economic economicon economicon damages, economic damages, damages, damages, damages, unbiased unbiasedunbiased unbiased experienceunbiased experience experience experience experience valuation,valuation,valuation,valuation, internalvaluation, internal internal audit, internal audit, internal audit, fraud audit, fraud fraudand audit, fraudand financial and fraud financial and financial and financial forensics. financialforensics. forensics. forensics. As forensics. a Astop Asa top 50a Astop business50a Astop 50 businessa topbusiness50 business50advisory businessadvisory advisory advisory advisoryin situationsin insituations situationsin situationsin situations rangingrangingranging rangingfrom rangingfrom from from from andand accountingand accountingand accountingand accounting firmaccounting firm firmnationally, firmnationally, nationally, firm nationally, the nationally, thefraud, the fraud, thefraud, forensic thefraud, forensic forensicfraud, forensicand forensic andlitigation and litigation and litigation and litigationteam litigationteam teamhas team has access hasteam access hasaccess hasaccess access complexcomplexcomplexcomplex valuationcomplex valuation valuation valuation valuation to internalto tointernal internalto resourcesinternalto resources internal resources resources in resourcesthe in in theservice the in service the servicein areas theservice areas service areas of taxareas of oftaxareasand tax of and auditing taxand of auditing taxand auditing and withauditing withauditing focused with focused with focused with practicefocused practicefocused practice practice practice issuesissuesissues toissues litigationtoissues to litigation litigationto litigationto litigation areasareasareas in theareas in in theareasfranchise, the in franchise, the franchise,in thefranchise, construction, franchise, construction, construction, construction, construction, financial financial financial financial institutions, financial institutions, institutions, institutions, institutions,health health health care health care andcarehealth andcare disasterand care disaster anddisaster anddisaster disasterengagements, engagements, engagements, engagements,engagements, recoveryrecoveryrecovery recoveryindustries recoveryindustries industries industries and industries and to and high-wealth to and tohigh-wealth andhigh-wealth to high-wealth to individuals,high-wealth individuals, individuals, individuals, privateindividuals, private private equity private equity private equity and equity and SEC andequity SEC andclients. SEC andclients. SEC clients. SEC clients. clients.servingservingserving servingattorneys attorneysserving attorneys attorneys as attorneys as as as as expertexpertexpert witnessesexpert witnessesexpert witnesses witnesses inwitnesses in in in in OUROUR SERVICESOUR SERVICESOUR SERVICESOUR SERVICES INCLUDE: SERVICES INCLUDE: INCLUDE: INCLUDE: INCLUDE: damages,damages,damages,damages, businessdamages, business business business business • •Fix •ed Fix• FixFee ed•ed FixFee Early FeeedFix Early Fee edEarlyCase Fee EarlyCase CaseAssistance Early CaseAssistance Assistance Case Assistance Assistance• •Business • Business•Business •Business InterruptionBusiness Int Interruptionerruption Interruption Interruption valuation,valuation,valuation,valuation, accountingvaluation, accounting accounting accounting accounting - Damage- Damage- Damage - Damageconsultation- Damageconsultation consultation consultation consultation - Quantification- Quantification- Quantification - Quantification- Quantification of loss of lossof loss of loss of loss issuesissuesissues andissues and issues forensicand forensicand forensic and forensic forensic - Deposition- Deposition- Deposition - Deposition- and Deposition and disco and disco and verydisco and verydisco assistancevery disco assistancevery assistancevery assistance assistance - Claim- Claim- Claim assessment - Claim assessment- assessmentClaim assessment assessment accounting.accounting.accounting.accounting.accounting. - Se- ttlement Se- Settlement - ttlement Se- ttlementconsultation Se ttlementconsultation consultation consultation consultation - Claim- Claim- Claim nego - Claim negotiation negoClaim tiationnegotiation negotiationtiation • •Litigation • Litigation•Litigation •Litigation AssistanceLitigation Assistance Assistance Assistance Assistance • •Business • Business•Business •Business ValuationBusiness Valuation Valuation Valuation Valuation ForFor moreFor moreFor more informationFor more information informationmore information information - Exper- Exper- Expert witness- Expert witness- t Experwitnesst testimony witness ttestimony witness testimony testimony testimony - Estat- Estat- e/giftEstat - e/giftEstat-e/gift tax Estate/gift taxplanning taxe/gift planning taxplanning taxplanning planning - Lost- Lost- pr Lost ofitspr Lost ofitspr- Lostofitscalculation pr ofitscalculation pr calculationofits calculation calculation - Buy/sell- Buy/sell- Buy/sell - agreementsBuy/sell- agreementsBuy/sell agreements agreements agreements on onHORNE’son HORNE’s onHORNE’s HORNE’son fraud, HORNE’s fraud, fraud, fraud, fraud, - Data- Data- managementData - managementData -management Data management management and and analytics and analytics and analytics and analytics analytics - Litigation- Litigation- Litigation - Litigation- Litigation forensicforensicforensicforensic and forensicand and and and - Business- Business- Business - Business v-aluation Business valuation valuation valuation valuation - Shareholder- Shareholder- Shareholder - Shareholder- Shareholderdisput disput disputes disputeses disputes es litigationlitigationlitigationlitigation services,litigation services, services, services, services, - Forensic- F- orensic F orensic- Faccountingorensic- Faccountingorensic accounting accounting accounting - Business- Business- Business - Business planning- Business planning planning planning planning contactcontactcontact contactJeffrey contactJeffrey Jeffrey AucoinJeffrey Aucoin Jeffrey Aucoin Aucoin Aucoin - Accounting- A- ccounting A ccounting- Accounting- malpractice Accounting malpractice malpractice malpractice malpractice - Marital- Marital- Marital - dissolution Marital -dissolution Marital dissolution dissolution dissolution at 225.341.3115.atat 225.341.3115. 225.341.3115.at 225.341.3115.at 225.341.3115. - Breach- Breach- Breach - of Breach contract -of Breach ofcontract contract of contract of contract • •Economic • Economic•Economic •Economic AnalysisEconomic Analysis Analysis Analysis Analysis - Personal- P- ersonal P ersonal- Pinjuryersonal- Pinjuryersonal injury injury injury - Financial- Financial- Financial - Financial suitability- Financial suitability suitability suitability analysis suitability analysis analysis analysis analysis • •F raud• Fraud•F Examinations/Preventionraud•F Examinations/Preventionraud Examinations/PreventionFraud Examinations/Prevention Examinations/Prevention - Feasibility- F- easibility F easibility- F easibilitystudies- F easibilitystudies studies studies studies - In-vestigation In- vestigationIn -vestigation In-vestigation In andvestigation and quantification and quantification and quantification and quantification quantification of loss of lossof loss of loss of- Dueloss- Due- diligence Due - diligence Due diligence- Due diligence diligence - Fidelity- Fidelity- Fidelity - bond Fidelity -bond Fidelity bondassessment bondassessment assessment bond assessment assessment - Recovery- R- ecovery R ecovery- R assistanceecovery- R assistanceecovery assistance assistance assistance - Pr-osecution Pr- osecutionPr -osecution Pr-osecution Prassistanceosecution assistance assistance assistance assistance www.horneffl.comwww.horneffl.comwww.horneffl.comwww.horneffl.comwww.horneffl.com - Pre- ventionPre- Pre vention- Prevention- and ventionPre and ventionmonitoring and monitoring and monitoring and monitoring monitoring 225.755.9798225.755.9798225.755.9798225.755.9798225.755.9798

February / March 2012 Volume 59, Number 5

Departments Features

Editor’s Message...... 320 Louisiana Celebrates Statehood Bicentennial: 1812-2012 Letters to the Editor...... 321

President’s Message...... 322 ► Introduction Association Actions...... 348 By Richard K. Lawyers Assistance...... 350 Leefe...... 324 Celebrating Quality of Life...... 351 ► Louisiana 1812-2012: the State’s Puzzle...... 352 200 Years of Statehood Bicentennial Focus on Professionalism..... 354 and 300 Years of Discipline Reports...... 356 French Law Influence Client Assistance Fund...... 359 By Prof. Olivier Moréteau ...... 325 Recent Developments...... 360 Young Lawyers...... 375 ► Louisiana 1812-2012: Hispanic Perspective La. Center for Law and Civic Education...... 377 By Ariel A. Campos, Sr...... 327 Judicial Notes...... 378 ► Letters...... 328 People...... 380 ► Excerpt from Louisiana 2012: A Bicentennial Classified...... 384 Celebration of History, Culture and Natural Resources News...... 387 By the Staff of the Louisiana State Archives...... 330 Lucid Intervals...... 392 ► LSBA House of Delegates Resolution...... 338

► Calendar: Statehood Bicentennial Events...... 339 Also Inside America’s New Civil Rights Movement: SOLACE...... 317 Education Reform, Public Charter Schools and No Child Left Behind Member Services...... 318 By Jonathan C. Augustine...... 340 Alcohol/Drug Abuse Hotline.. 352 Jurisdiction and Choice of Law Issues in OCS Oil Spill Cases Advertisers’ Index...... 386 By David W. Robertson...... 344

Louisiana Bar Journal Vol. 59, No. 5 315 ® Editorial Board Officers 2011-12 President  Richard K. Leefe James J. Davidson III • (337)237-1660 Editor President-Elect (504)830-3939 John H. Musser IV • (504)599-5964  Jennifer B. Bechet  John H. Musser V Secretary (504)581-3200 (504)523-0400 Richard K. Leefe • (504)830-3939 Roy H. (Hal) Odom, Jr. Treasurer Adrejia L. Boutte   (318)227-3762 Mark A. Cunningham • (504)582-8536 (504)561-5700 Immediate Past President Maggie Trahan Simar John S. (Chip) Coulter  Michael A. Patterson • (225)922-5110  (337)394-6133 (225)382-3183

 Gail S. Stephenson Board of Governors 2011-12  Anthony M. DiLeo (225)771-4900, x216 First District (504)274-0087 Tyler G. Storms Barry H. Grodsky • (504)599-8535 Brendan P. Doherty   (318)255-7805 H. Minor Pipes III • (504)589-9700 (504)561-0400 Second District Edward J. Walters, Jr. Barry H. Grodsky  Stephen I. Dwyer • (504)838-9090  (225)236-3636 Third District (504)599-8535 Jack K. Whitehead, Jr. Dona Kay Renegar • (337)234-5350 Gerald J. (Jerry) Huffman, Jr.   (225)303-8600 Fourth District (504)524-8556 Winfield E. Little, Jr. • (337)430-0907 Fifth District  Margaret E. Judice Darrel J. Papillion • (225)236-3636 (337)828-1880 Sixth District Charles D. Elliott • (318)442-9533 The Louisiana Bar Journal (ISSN 0459-8881) is published bimonthly by Seventh District the Louisiana State Bar Association, 601 St. Charles Avenue, New Orleans, Charles L. Kincade • (318)388-4205 Louisiana 70130. Periodicals postage paid at New Orleans, Louisiana and Eighth District additional offices. Annual subscription rate: members, $5, included in dues; Ronald J. Miciotto • (318)424-0200 nonmembers, $45 (domestic), $55 (foreign). Canada Agreement No. PM Chair, Young Lawyers Section 41450540. Return undeliverable Canadian addresses to: P.O. Box 2600, Shayna L. Sonnier • (337)436-1600 Mississauga, ON, L4T 0A8. At-Large Members Karelia R. Stewart • (318)226-6998, x1070 Postmaster: Send change of address to: Louisiana Bar Journal, 601 St. Franchesca L. Hamilton-Acker • (337)237-4320 Charles Avenue, New Orleans, Louisiana 70130. Daniel A. Cavell • (985)449-7500 Subscriber Service: For the fastest service or questions, call Darlene M. Loyola University College of Law LaBranche at (504)619-0112 or (800)421-5722, ext. 112. Monica Hof Wallace • (504)861-5670 Southern University Law Center Editorial and Advertising: Russell L. Jones • (225)771-3776 Publication of any advertisement shall not be considered an endorsement Louisiana State Law Institute of the product or service involved. Submissions are welcome and will be John Wayne Jewell • (225)638-3311 considered for publication by the Editorial Board. For submission guide- House of Delegates Liaison Chair lines, go online at www.lsba.org, click on “Publications,” then “Louisiana Bar Journal.” Copyright © by Louisiana Bar Journal. All rights reserved. George B. Recile • (504)833-5600 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 Communications Coordinator International Barbara D. Baldwin Association of Business Communications Assistant Public Relations Society ommunicators C of America Krystal Bellanger Rodriguez New Orleans New Orleans Chapter Chapter Award of Advertising Booking Questions? Bronze Quill Call (504)619-0131. Award of Merit

316 February / March 2012 SOLACE: Support of Lawyers/Legal Personnel — All Concern Encouraged The Louisiana State Bar Association/Louisiana Bar Foundation’s Community Action Committee supports the SOLACE program. Through the program, the state’s legal community is able to reach out in small, but meaningful and compassionate ways to judges, lawyers, court personnel, paralegals, legal secretaries and their families who experience a death or catastrophic illness, sickness or injury, or other catastrophic event. For assistance, contact a coordinator.

Area Coordinator Contact Info Area Coordinator Contact Info Alexandria Area Richard J. Arsenault (318)487-9874 Monroe Area John C. Roa (318)387-2422 [email protected] Cell (318)452-5700 [email protected] Baton Rouge Area Ann G. Scarle (225)214-5563 Natchitoches Area Peyton Cunningham, Jr. (318)352-6314 [email protected] [email protected] Cell (318)332-7294 Covington/ Suzanne E. Bayle (504)524-3781 New Orleans Area Helena N. Henderson (504)525-7453 Mandeville Area [email protected] [email protected] Denham Springs Area Mary E. Heck Barrios (225)664-9508 Opelousas/Ville Platte/ John L. Olivier (337)662-5242 [email protected] Sunset Area [email protected] (337)942-9836 Houma/Thibodaux Area Danna Schwab (985)868-1342 (337)232-0874 [email protected] River Parishes Area Judge Jude G. Gravois (225)265-3923 Jefferson Parish Area Pat M. Franz (504)455-1986 [email protected] (225)265-9828 [email protected] Cell (225)270-7705 Lafayette Area Susan Holliday (337)237-4700 Shreveport Area Sandra Haynes (318)222-3643 [email protected] [email protected] Lake Charles Area Chantell Marie Smith (337)475-4882 For more information, go to: [email protected] www.lsba.org/solace

LOUISIANA Bar Today Get the latest Louisiana State Bar Association news in the free, biweekly e-mailed update. It’s easy to subscribe.

Go to: www.lsba.org/ JoinLBT

Louisiana Bar Journal Vol. 59, No. 5 317 ® 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)378-2809  Legal Specialization Program e-mail: [email protected]  Loss Prevention Counsel  Hotel InterContinental, (877)866-9005 Johanna G. Averill, Lindsey M. Ladouceur and Elizabeth LeBlanc Voss • (800)GILSBAR e-mail: [email protected] SOLACE (Support of Lawyers/Legal Personnel All Concern Encouraged)  Hotel Monteleone, (800)535-9595  e-mail: [email protected] www.lsba.org/GoTo/HotelMonteleone Publications  Hyatt Regency New Orleans, (888)591-1234  Louisiana Bar Journal www.hyatt.com, Corporate #95147  Iberville Suites, (866)229-4351, (504)670-2845  “Bar Briefs” (online) e-mail: [email protected]  Louisiana Bar Today (online newsletter)  JW Marriott New Orleans • www.jwmarriottneworleans.com  Le Pavillon Hotel, (800)535-9095 • http://bit.ly/LPLSBAR Online Services  Loews New Orleans Hotel • (504)595-5370, (866)211-6411  Louisiana Bar Today Opinion Service  Lending Library  Marriott Courtyard Downtown www.courtyardneworleansfrenchquarter.com  Membership Directory  Twitter Fastcase (free online legal research) Facebook  New Orleans Marriott   www.lsba.org/GoTo/NewOrleansMarriott  Law Office Management Assistance Program  New Orleans Marriott at the Convention Center www.lsba.org/GoTo/MarriottCC Young Lawyers Division  Renaissance Pere Marquette www.renaissanceperemarquette.com  Bridging the Gap  Choose Law Mentor Program  The Ritz-Carlton, (504)670-2845, (800)241-3333   Barristers for Boards e-mail: [email protected]  Young Lawyers’ Directory  Wills for Heroes  The Roosevelt New Orleans • (504)335-3138, 1(800)WALDORF  Sheraton New Orleans, (504)595-6292 Insurance through Gilsbar e-mail: [email protected]  W French Quarter, (504)207-5187  Group Insurance e-mail: [email protected]  Major Medical  W New Orleans, 333 Poydras St., (504)207-5187  Disability e-mail: [email protected]  Malpractice  Westin Canal Place, (504)553-5110 (800)GILSBAR • (504)529-3505 • See inside back cover e-mail: [email protected]

 The Whitney Wyndham, (504)581-4222  Windsor Court, (800)262-2662, (504)523-6000 Car Rental Programs e-mail: [email protected] The following car agencies have agreed to discount rates for LSBA members.  Wyndham Riverfront New Orleans, (504)524-8200

 Avis – (800)331-1212 • Discount No. A536100 Baton Rouge

 Budget Rent-a-Car – (800)527-0700 • Discount No. Z855300  Courtyard Baton Rouge Acadian Thruway  Carey/Embarque – (866)444-2144 • Discount No. WA817505 www.courtyardbatonrouge.com • (Corporate Code: ABA) Crowne Plaza Baton Rouge, (225)925-2244, (225)930-0100  Hertz – (800)654-2210 • Discount No. 277795  e-mail: [email protected]

 Hilton Baton Rouge Capitol Center, (800)955-6962, (225)344-5866 Other Vendors Corporate ID #0921780 • www.lsba.org/GoTo/HiltonBRCapitol

The following vendors have agreed to discount rates for LSBA members.  Sheraton Baton Rouge, (225)378-6177 e-mail: [email protected]  ABA Members Retirement – (800)826-8901  LawPay - (866)376-0950 Lafayette CoreVault – (866)945-2722  United Parcel Service – (800)325-7000  SpringHill Suites Lafayette South at River Ranch LexisNexis – (800)356-6548   www.lsba.org/GoTo/SpringHill National Hotel Chains* Lake Charles  Best Western Richmond Suites, (337)433-5213  Holiday Inn, (800)HOLIDAY  LaQuinta Inns & Suites, (866)725-1661 Use ID No. 100381739 www.LQ.com Shreveport Use corporate rate code LABAR  Clarion Shreveport Hotel, (318)797-9900 *Discounts not guaranteed at every hotel property within a national chain. Contact specific property to inquire about availability of LSBA  The Remington Suite Hotel, (318)425-5000 discounted rates. www.remingtonsuite.com

318 February / March 2012 ABA_OrSun_8.5x10.875_4c_LA_layout 1 12/19/11 6:04 PM Page 1

At the end of the day... Who’s Really Watching Your Firm’s 401(k)? And, what is it costing you?

• Does your firm’s 401(k) include professional If you answered no to any of investment fiduciary services? these questions, contact the ABA Retirement Funds Program • Is your firm’s 401(k) subject to quarterly to learn how to keep a close reviews by an independent board of directors? watch over your 401(k).

• Does your firm’s 401(k) feature Phone: (800) 826-8901 no out-of-pocket fees? email: [email protected] Web: www.abaretirement.com

Who’s Watching Your Firm’s 401(k)?

The American Bar Association Members/Northern Trust Collective Trust (the “Collective Trust”) has filed a registration statement (including the prospectus therein (the “Prospectus”)) with the Securities and Exchange Commission for the offering of Units representing pro rata beneficial interests in the collective investment funds established under the Collective Trust. The Collective Trust is a retirement program sponsored by the ABA Retirement Funds in which lawyers and law firms who are members or associates of the American Bar Association, most state and local bar associations and their employees and employees of certain organizations related to the practice of law are eligible to participate. Copies of the Prospectus may be obtained by calling (800) 826-8901, by visiting the website of the ABA Retirement Funds Program at www.abaretirement.com or by writing to ABA Retirement Funds, P.O. Box 5142, Boston, MA 02206-5142. This communication shall not constitute an offer to sell or the solicitation of an offer to buy, or a request of the recipient to indicate an interest in, Units of the Collective Trust, and is not a recommendation with respect to any of the collective investment funds established under the Collective Trust. Nor shall there be any sale of the Units of the Collective Trust in any state or other jurisdiction in which such offer, solicitation or sale would be unlawful prior to the registration or qualification under the securities laws of any such state or other jurisdiction. The Program is available through the Louisiana State Bar Association as a member benefit. However, this does not constitute an offer to purchase, and is in no way a recommendation with respect to, any security that is available through the Program. Louisiana Bar Journal Vol. 59, No. 5 319 C11-0318-012 (3/11) Editor’s message

By Richard K. Leefe Recognizing Louisiana’s 200th Year

n this issue, the Louisiana Bar Louisiana and recognizes the extreme the responsibility of ensuring that the Journal is recognizing the great funding problems which exist in system works for all as it is intended. history and tradition of the state providing legal services to those who It is our hope that the Louisiana Bar of Louisiana over the last 200 cannot afford representation in both Journal provides an outlet for your years.I We hope you enjoy this tribute. criminal and civil matters. Our system thoughts concerning the practice of law It goes without saying that attorneys depends on all people having real access and, as always, we welcome your letters have played a large part in the history of to the court system, with representation to the editor on whatever subject you this state and, as we move forward, the of which we can be proud. We ask for feel compelled to address. Louisiana State Bar Association (LSBA) your thoughts in addressing these needs intends to continue to do its part. and the funding for such representation. The LSBA also is addressing the As attorneys who have been blessed issues of ensuring access to justice in with the knowledge, we also carry

Letters to the Editor Policy 1. At the discretion of the Editorial 4. Letters should be typewritten, signed respond to letters to clarify misinforma- Board (EB), letters to the editor are pub- and, if applicable, include LSBA mem- tion, provide related background or add lished in the Louisiana Bar Journal. ber number, address and phone number. another perspective. Letters from non-members of the LSBA 2. If there is any question about whether also will be considered for publication. 7. Letters may pertain to recent articles, a particular letter to the editor should Unsigned letters are not published. columns or other letters. Letters respond- be published, the decision of the editor ing to a previously published letter should shall be final. If a letter questioning or 5. Not more than three letters from address the issues and not be a personal criticizing Louisiana State Bar Associa- any individual will be published within attack on the author. tion (LSBA) policies, rules or functions one year. is received, the editor is encouraged to 8. No letter shall be published that send a copy of that letter to the appropri- 6. Letters also may be clarified or ed- contains defamatory or obscene material, ate entity for reply within the production ited for grammar, punctuation and style violates the Rules of Professional Conduct schedule of the Louisiana Bar Journal. by staff. In addition, the EB may edit or otherwise may subject the LSBA to If the editor deems it appropriate, replies letters based on space considerations and civil or criminal liability. may be printed with the original letter, or the number and nature of letters received in a subsequent issue of the Louisiana on any single topic. Editors may limit the 9. No letter shall be published that Bar Journal. number of letters published on a single contains a solicitation or advertisement topic, choosing letters that provide dif- for a commercial or business purpose. 3. Letters should be no longer than fering perspectives. Authors, editorial 200 words. staff or other LSBA representatives may

320 February / March 2012 Letters

Two Views on President’s Message

Response to government. By reminding our fellow religious. Any implication that lawyers lawyers and citizens that our rights do cannot be moral or ethical if they have no President’s Message not come from the government, but that “reverence for God” is simply baseless. the government may either protect or It was with great interest and gratitude impinge upon our rights, we educate Robert G. Stassi that I read the President’s Message them in the reason that we may lawfully Metairie in the December 2011/January 2012 resist those who would try to take our Louisiana Bar Journal. As a matter of rights away. Far from being only the Editor’s Response legal and civic education, it should be basis of our national motto, God is a matter of pride that we lawyers know to Mr. Stassi: indeed the reason we have a United I am sure President Davidson meant this history and some other history of States of America and a government our country as well. I am privileged to no disrespect to you and he, of course, limited to those powers granted it by the was stating his opinion that a reverence be allowed to teach young Boy Scouts people. about citizenship in our nation and to God would be a major factor in lawyers community. A frequent question I ask of regaining the respect of the public for Jeffrey S. Wittenbrink our profession. He notes that, “Although these Boy Scouts — and other lawyers Baton Rouge — is, “Where do your rights come there may be a few who disagree...,” he is from?” Most scouts, and all but a few grateful for the motto “In God We Trust.” of the lawyers I have quizzed over the As he said, there are those, apparently such years, have answered variously “the Response to as yourself, who disagree. I understood Constitution” or “the law.” President’s Message him to believe that following this motto I enjoy patiently explaining that can help restore respect for the legal the founders of our country believed The suggestion that a “reverence profession. I do not think it was meant as that our rights come from God. The for God” is a necessary ingredient a slight at those who might believe they Declaration of Independence declares of integrity, defined as “a steadfast can gain respect without “reverence for that we are endowed by “our Creator” adherence to a strict moral and ethical God.” I for one thank God that we live with those “inalienable” rights, and that code,” ignored the fact that there are in a country where we can each have our principle underlies the foundation of our moral and ethical lawyers who are not own opinion and state it freely. Ethics Advisory Service www.lsba.org/ethicsadvisory For assistance with dilemmas and decisions involving legal ethics, take full advantage of the LSBA’s Ethics Advisory Service, offering - at no charge - confidential, informal, non-binding advice and opinions regarding a member’s own prospective conduct.

Eric K. Barefield, Ethics Counsel LSBA Ethics Advisory Service, 601 St. Charles Ave., New Orleans, LA 70130-3404 (504)566-1600, ext. 122 • (504)619-0122 • toll-free: (800)421-5722, ext. 122 • Fax: (504)598-6753 Email: [email protected]

Louisiana Bar Journal Vol. 59, No. 5 321 President’s message

By James J. Davidson III Family Values: Cornerstone of Our Personal, Professional Lives

s practicing attorneys, our loyal and faithful to our family members able and successful Lawyers Assistance days, and to some extent and give to them our earnest support in Program (LAP). all of our waking hours, are both time and effort, that family unit will The services of the LAP Program are consumed by wrestling with become, as it should be, the most cohesive coordinated by Executive Director J.E. theA details which we feel are necessary to and strongest support group that each of (Buddy) Stockwell III. During the past properly handle the many matters we are us individually could ever hope to have. six months, I have had the opportunity to working on for our clients. It is unequivo- That family unit, with its support, will learn much more about the LAP Program cal that our chosen profession requires that only enhance our abilities as practicing at- by sharing the stage at various Louisiana we handle those details with due diligence torneys to give our clients the high standard State Bar Association functions around the and competence. of representation they deserve. state with Buddy Stockwell. Buddy will Being consumed by our work, however, I have been told for many years and attest to the fact that a strong, cohesive in more cases than we would like to admit, understand that the law is a “jealous mis- and supportive family is crucial to his causes us to neglect giving the necessary tress.” It is my belief that the same quote program’s success. I hereby certify to you attention to our respective families. likewise relates to our family. When we that Buddy is very passionate about LAP’s The family unit is truly the cornerstone realize and accept the fact that our family dual mission of confidentially assisting (the main support element) of our indi- should be treated as a “jealous mistress,” impaired lawyers, judges and their family vidual lives. We, therefore, owe a steadfast we will certainly devote the extra time and members while simultaneously helping fidelity to all of our family members. Our effort necessary to create a strong family to protect the public from harm that often loyalty, faithfulness, support and allegiance relationship which will in turn give to us the results when an impaired professional to our family must be primary and cannot backup support which we as attorneys need. represents his clients or takes the bench. afford to be sacrificed. We certainly need family support, espe- The quality of our family unit and the Giving to our family members the cially when one considers today’s statistics lives of our family members must not be quality of life which they deserve and which show that incidences of depression diminished or sacrificed in the face of meeting our responsibilities as advocates and various forms of substance abuse are emotional stresses encountered while prac- in competently handling the affairs of our much higher in the legal profession than ticing law. LAP is an extremely valuable clients certainly present a delicate balanc- for the general population. My conviction resource to our profession in its mission ing act. We, therefore, must carefully plan is that a strong family unit (with solid fam- of providing confidential assistance to our activities and schedule our time so that ily support) is necessary to help curb and lawyers, judges and their families. none is wasted. Then it is my belief that we reverse these statistics. Since assuming his position as LAP can accomplish the tasks of fully, honestly At times, however, we may come to the director, Buddy has had the privilege and and ethically representing our clients and conclusion that other outside assistance blessing to assist many lawyers, judges fulfilling all of the duties relating to our is needed to curb and/or cure problems and family members suffering from vari- family and its individual members. once they surface. We are blessed that, in ous forms of burnout, depression, alcohol It must be remembered that if we are Louisiana, we have a strong, active, vi- or drug abuse problems and other mental

322 February / March 2012 disorders that cause unhealthy stress, at www.lsba.org/memberservices/lap.asp. velopment of that territory and our state impairment and tension — conditions, My challenge is that each of us be en- as we know it today. when not properly addressed, that could couraged to work hard and play hard and The development of our state and a lead to the breakup of the family unit and that, with those activities in full swing, description of its wonderful attributes are would have destroyed the competency of we will each give to our families the time, best portrayed in the special section of the professional involved. effort, support, loyalty and allegiance this Journal devoted to Louisiana’s 2012 I hereby encourage all of you who are deserved. Statehood Bicentennial. concerned individually or for others who In closing, I want to draw attention to God bless each of you and your indi- desire or need help to take full advantage the fact that this is the Bicentennial year vidual family members. of LAP’s confidential services. Contact of Louisiana’s Statehood. Commencing LAP toll free at (866)354-9334, email as far back as the time of the Louisiana [email protected], or visit the website Purchase, lawyers led the way in the de-

LSBA Member Services

he mission of the Louisiana State Bar Association (LSBA) is to assist and serve its members in the practice of law. To this end, the LSBA offers many worthwhile programs and services designed to complement your career, the legal profession and the community. TIn the past several years, the legal profession has experienced many changes. The LSBA has kept up with those changes by maturing in structure and stature and becoming more diverse and competitive. As the premier organization serving Louisiana’s legal profession, the LSBA is working to advance its members’ goals and interests through unparalleled programming and a comprehensive benefits package. Listed below are a few benefits of membership:

Bar Center Services LSBA Professional Programs Lawyer Advertising Filing and Louisiana Bar Center Department Services Evaluation • [email protected] www.lsba.org/GoTo/BarCenter Client Assistance Fund This program provides screening of [email protected] [email protected] proposed lawyer advertising to confirm Louisiana lawyers are invited to reserve any This program helps consumers by compliance with the Supreme Court’s of the three Bar Center conference rooms providing compensation to clients who advertising rules. For information/ for depositions or other meetings. The have been defrauded by their lawyers. inquiries, contact LSBA Ethics Counsel building is equipped with wireless Internet For more information, contact Associate Richard P. Lemmler, Jr. at rlemmler@ access as well as desktop computers Executive Director Cheri Cotogno lsba.org or (504)619-0144. available at no charge to members. Contact Grodsky at [email protected] or Operations Coordinator Mike Montamat at (504)619-0107. Practice Assistance and Improvement (504)619-0140 with any questions. [email protected] Fastcase As mandated by the Louisiana Supreme Lawyers’ Assistance Program (LAP) www.lsba.org/fastcase Court, the Bar’s Practice Assistance and Lawyers’ Assistance Program In 2005, the LSBA launched Fastcase, Improvement Program offers alternatives www.louisianalap.com • (866)354-9334 a free web-based legal research product to discipline via its Attorney-Client LAP provides confidential assistance to that provides unlimited access to all state Assistance Program and the Diversion members of the Bar and their families and federal court cases. To access the Program. The Office of Disciplinary who experience problems with alcohol, program, go to www.lsba.org and click on Counsel diverts eligible matters enabling drugs, gambling and other addictions, the Fastcase icon. For more information, these members to avoid disciplinary as well as mental health issues. Call contact Practice Management Counsel proceedings. For more information, 1(866)354-9334 for assistance. Shawn L. Holahan at shawn.holahan@ contact Professional Programs Counsel lsba.org or (504)619-0153. for Practice Assistance William N. King at [email protected] or (504)619-0109.

For more information, visit www.lsba.org

Louisiana Bar Journal Vol. 59, No. 5 323 Louisiana Celebrates 200 Years of History: Louisiana Statehood Bicentennial 1812-2012

By Richard K. Leefe Secretary, Louisiana State Bar Association

he Louisiana State Bar Association (LSBA) is proud and honored to join in the celebration of the Louisiana Statehood Bicentennial Tand to recognize the roots from which our great state has grown. The Louisiana Office of the Secretary of State, through the Louisiana State Archives, created a wonderful compilation and presentation of that history, together with much more, in its work entitled “Louisiana 2012: A Bicentennial Celebration of History, Culture and Natural Resources.” The Secretary of State and the State Archives have kindly allowed the Louisiana Bar Journal to publish excerpts of that work in this issue for our members. This history excerpt is only a small part of the comprehensive work created by the Louisiana State Archives. Hopefully, the full work will be published for public access and use soon. The LSBA strongly recommends it. The information provides a marvelous perspective and review of the origins of our state. As Louisiana citizens and attorneys, we all owe a great deal of gratitude to those who founded this state and have gone before us in making this rich history. In addition, this issue of the Journal includes an article addressing the 300 years of French law influence in Louisiana by The official United States Twelfth Congress (1811) document approving Louisiana’s entry into Louisiana State University Paul M. Hebert the Union as the 18th state, as signed by President James Madison. National Archives and Records Law Center Professor Olivier Moréteau, as Administration. Used with permission. well as a lesson by Lafayette attorney Ariel A. Campos, Sr. on the large part Hispanic history has played in making Louisiana what it is today. Rounding out the issue are letters from various key players in the Bicentennial celebration, as well as a list of Bicentennial-related events throughout the state. These events are updated monthly on the state’s main website, www. louisianabicentennial2012.com. We hope you enjoy the articles and feel Louisiana has had eight State Seals since 1805, all including the state’s official emblem of the pelican pride in Louisiana’s rich history! and her nest. Louisiana State Archives, Secretary of State’s Office. Used with permission.

324 February / March 2012 Louisiana 1812-2012: 200 Years of Statehood and 300 Years of French Law Influence

By Prof. Olivier Moréteau

he Bicentennial of Louisiana’s Louisiana. The population of New Orleans In France, the law took a new departure statehood happens to coincide successfully insisted that the civil law after the 1804 codification: the effort was with the Tercentennial of the tradition be maintained. In 1804 and 1805, to unite all Frenchmen under one law, enactment of French law as the two Acts of Congress provided that, in so demanding that all previous laws — Roman Tlaw applicable to La Louisiane, marking far as they were consistent with federal law, law in Southern France and customs in the starting point of the law of Louisiana. the civil laws in force in the Territory of the North — be repealed. After a national A Letter Patent signed on Sept. 14, 1712, Orleans “shall continue in force until altered, Revolution, it comes as no surprise that by King Louis XIV of France granted to modified, or repealed by the legislature.” In France would have a break with the past Sieur Crozat, the king’s Secretary, exclusive 1806, the Legislative Council resolved that regarding its legal system. trade rights in all lands possessed by the a Civil Code be prepared for the territory, Things were different in Louisiana, King “under the government of Louisiana,” and that “the civil law by which this territory where the movement towards codification whilst providing in article VII that all is now governed” (namely Spanish civil was conservative in essence. The Digest of laws applicable in Paris and its province, laws) be made “the ground work of said 1808 was meant to preserve the preexisting including Edicts, Ordinances and Customs, code,” in the effort to make the law clearer law and there was no wish for a fresh were applicable to Louisiana. This is the first and more accessible to the French, Spanish start. Judges kept citing the Siete Partidas document to make reference to the law to and American inhabitants. of Alfonso X of Castile and subsequent be applied in Louisiana. The two draftsmen, James Brown and Recompilations. This defeated the purpose Until the cession to Spain 50 years Louis Moreau-Lislet, were challenged with of the Digest as expressed in the Act of later, French law officially applied in the the daunting task of reducing thousands of March 31, 1808: it aimed at eliminating immense territories that stretched from pages of legal rules into a volume of 200 or the need of “recurring to a multiplicity the Gulf of Mexico to the Great Lakes, 300 pages. It fully made sense to follow as of books, which, being for the most part from the Mississippi River to the Rocky models both the Projet of 1800 and the Code written in foreign languages, offer in their Mountains and to the Isle of Orleans east civil des Français of 1804, later to be known interpretation inexhaustible sources of of the Mississippi River, though there as the Code Napoléon. Wherever an article litigation.” Clarification and simplification is limited evidence, if any at all, of the of the Projet or of the Napoleonic Code had been a vain hope. application of the Custom of Paris outside conformed to the Spanish law, it naturally In 1825, the Digest was replaced by New Orleans and maybe in a few locations made its way into the Digest of 1808. The a Civil Code, also drafted in French and in south Louisiana. organization of the French Civil Code, translated into English, this time abrogating French law would cease to apply in replicating the structure of the Institutes of “the Spanish, Roman and French laws” Louisiana after its cession to Spain in 1762. Gaius, remains to this date the backbone in force at the time of the Purchase on all When Spain effectively took possession of the successive Louisiana Civil Codes. matters governed by the Code (art. 3521). in 1769, Governor O’Reilly proclaimed The study of the cases decided in the Then an Act of 1828 proceeded to a general that justice was now to be administered first two decades after the enactment of repeal of all the civil laws in force before according to the laws of Spain, naming the the Digest of 1808 reveals that Louisiana the Civil Code. However, in a 1839 case Nueva Recopilación de Castilla and the courts never regarded the new enactment (Reynolds v. Swain), the Louisiana Supreme Recopilación de las Indias. The complex as a shift from the Spanish to the French Court declared that this repeal was confined and intricate Spanish laws, largely derived model. When faced with the generality of to positive or written law and could not from the Roman law of Justinian and that the provisions it contained, judges looked apply to the unwritten laws, citing among of the Visigoths, remained in force after the for the missing details in the pre-existing others the revealed law, the natural law, retro-cession of the Louisiana territories Spanish compilations. Spanish law was not and the law of nations: in the opinion of to France in 1800 and the subsequent abolished except where clearly contradicted the court, what had not been enacted by Louisiana Purchase by the United States in by the Digest. In addition, some distinctive the Legislature could not be abolished. At 1803. French law would never apply again aspects of Spanish law, different in least at that time, this made Louisiana law as such, but it would remain influential after substance from those in the French model, remarkably different from French law; the Territorial period during two centuries made their way to the Digest — for instance, legislative positivism was rejected, with of statehood. rules relating to marriage, the community French law was never reestablished in of gains, successions and alimony. Continued next page

LouisianaLouisiana Bar Bar Journal Journal Vol. Vol. 59, 59, No. No. 5 5 325325 Continued from page 325 the French influence into the interpretation To this day, the fleur-de-lis remains judges preferring to rely on the tradition of the Code and the understanding of a powerful symbol of Louisiana and its and principles of natural law. the substance of the law. Regarding French heritage. It was planted 300 years The Louisiana Civil Code was again interpretation, a most influential book by ago in the garden of our laws, where it is still rewritten in 1870, this time in English, Francois Gény was also translated into cultivated though more as a hybrid than in its after the Civil War and the abolition of English (1965). Méthode d’interprétation et original form. It was joined 100 years later slavery. The Louisiana State Law Institute sources en droit privé positif, a world-famous by a self-sacrificing pelican, a bird native to was founded in 1938 to prepare subsequent book published in 1899 and revised in 1954, Louisiana and a Christian symbol of love revision and keep the laws of Louisiana clarifies the importance of jurisprudence in (see good faith and cooperation as founding under constant review. The Civil Code of civil law jurisdictions and helps understand principles of the civil law). What flows in 1870 has been almost completely revised that reliance on court decisions is not the its veins is a mix of what makes us human during the past few decades, and can fairly same as common law stare decisis. Other beings, regardless of the color of our skin be described as one of the most modern civil major French books have been translated and ethnic origins. Let’s be mindful of this codes in the world today, abreast of social under the auspices of the Center of Civil rich heritage. Let’s be aware of its strength and economic needs as well as comparative Law Studies, thereby allowing Louisiana and its flaws (no system is perfect, not even law studies. This proves that the civil law to contribute to the dissemination of French the common law) when making decisions may be developed in the English language, legal culture outside the francophone world. that shape our future. following the French Civil Code format The Louisiana Civil Code started as Professor Olivier and style, whilst developing solutions a blend of Spanish substance and French style, described by LSU Professor Robert A. Moréteau in 2005 was compatible with the surrounding common named the first holder of the Pascal as a “Spanish girl in a French dress.” law. The Center of Civil Law Studies at Russell B. Long Eminent Louisiana State University is presently It has been re-substantiated with further Scholars Academic translating the Louisiana Civil Code into elements of French doctrine and reconciled Chair at Louisiana State French, so that French jurists and French- with common law solutions. What makes University Paul M. Hebert Law Center. A professor speaking jurisdictions may also benefit from Louisiana unique is the combination of cultures from at least three different of law, he is director of these developments, making the relationship the Center of Civil Law to France a give-and-take story. continents. New Orleans is an American Studies at LSU Law Center, editor-in-chief of the In the meantime, mostly under the city with a Spanish downtown called the Journal of Civil Law Studies and associate vice auspices of the Louisiana State Law Institute, French Quarter and something of an African chancellor for international programs. He has significant monuments of French legal and Caribbean way of life. In Louisiana, authored and edited books in French and English and written many articles in various languages for literature were translated from French into much of people’s daily lives, regardless of their origins, continue to be shaped by laws international periodicals and books on the civil law, English to provide a doctrinal background to common law, comparative law, law and languages, judges and attorneys not able to read French. combining the Roman, French, Spanish tort law, the law of obligations and legal education. These include the remarkable Treatise on and Anglo-American heritage. The French He is a member of the International Academy of the Civil Law by Marcel Planiol (1959) elegance given to it some 200 years ago Comparative Law, the European Group on Tort Law, the European Centre of Tort and Insurance and the very comprehensive Cours de droit should not hide the pluralism of its sources. It keeps bringing a major contribution to the Law, the American Law Institute, the Louisiana civil francais by Aubry and Rau (1965-72). Bar Equivalency Panel and the Louisiana Bar legal gumbo cooked by the Louisiana jurists, These volumes are frequently cited in court Foundation. (Paul M. Hebert Law Center, 1 E. opinions and teaching materials, projecting where ingredients of various origins remain Campus Dr., Louisiana State University, Baton visible but combine in a unique savor. Rouge, LA 70803)

Ten flags have flown over Louisiana, including the Spanish flag of DeSoto, the French flag of LaSalle, the British Union Jack, the Spanish flag, the French flag, the American flag, the West Florida Republic flag (Bonnie Blue), the Independent Louisiana flag, the Confederate Stars and Bars, and the Louisiana flag. Louisiana State Archives, Secretary of State’s Office. Used with permission. Flags Over Louisiana Flag Year Flag Year Spanish Flag of De Soto 1541 American 1803-1861 French Flag of La Salle 1682 West Florida Republic Flag, “Bonnie Blue” 1810 British Union Jack 1763-1779 Independent Louisiana Flag 1861 Spanish 1769-1800 Confederate Stars and Bars 1861 French 1800-1803 Louisiana Flag 1912-2010

326 February / March 2012 Louisiana 1812-2012: Hispanic Perspective By Ariel A. Campos, Sr.

efining diversity in the legal get stuck in the mouth of the Mississippi. cane as a major crop, much as their cousins profession in Louisiana He chose to bypass sailing up the river and had done in Spain’s Caribbean colonies.10 through a Hispanic perspective instead established a permanent settlement The devastation caused by Hurricane must begin at the beginning. on the Gulf Coast. Jean-Baptiste Le Katrina is not the first time New Orleans DHispanic comes from Hispania, an Moyne, Sieur de Bienville, did not share has undergone cataclysmic destruction. ancient name for the Iberia Peninsula.1 his brother Pierre’s view that the river was The Great New Orleans Fire of 1788 The American Heritage Dictionary of the not navigable. He continued to explore the nearly destroyed much of the city. The fire English Language (Fourth Edition, 2000) lower Mississippi River until 1718 when started at the home of the Spanish official defines Hispanic as “. . . of or pertaining to he founded a permanent settlement named Don Vincente Jose Nunez, spreading to Spain and its language, people and culture, New Orleans in honor of the ruling regent, within the Plaza de Armas and destroying having cultural origins in Iberia.” Within the Duc d’Orleans.7 It was not until 1731 the original Cabildo and virtually all major the context of Hispanics in Louisiana, that Louisiana became a royal French buildings, including the main church, the this definition has a historical reference. colony. The French were disappointed municipal building, the army barracks, the Christopher Columbus (Cristobal Colon that their new colony did not produce the armory and the jail. Gov. Esteban Rodriguez in Spanish) “discovered” and claimed the riches they had envisioned. King Louis Miro set up tents for the homeless. The Americas in the name of Queen Isabella of XV of France was strapped for funds Spanish rebuilt the city by replacing all the Spain. The Spanish Empire once was huge, after waging war with England during wooden buildings constructed by the French encompassing nearly all of North and South the Seven Years War, known in the New with structures containing courtyards, America.2 During the 400 years that Spain World as the French and Indian War. In thick brick walls, arcades and wrought ruled, it made many lasting contributions in 1762, as negotiations to settle that war were iron balconies. Among the new buildings language, religion, political administration, coming to a conclusion, Louis XV secretly were the present St. Louis Cathedral and laws and commerce.3 proposed to his cousin Charles III of Spain the Presbytere.11 Fire once again caused Spanish explorers were the first that France give Louisiana to Spain in the widespread devastation to the city in 1794. Europeans to discover the Mississippi Treaty of Fontainebleau.8 Although not quite as destructive as the River. In 1542, Hernando de Soto first Louisiana was the name of the earlier fire, it nevertheless destroyed 212 navigated the river, after claiming the land administrative district of New Spain after buildings. Still a colony of Spain, rebuilding draining into the river and its tributaries France secretly ceded it to Spain. Spanish after both fires was in the Spanish colonial for the Spanish Crown. However, Spain rule did not proceed smoothly at first. It style, thus eliminating much of the French virtually ignored the land that later became was not until 1764 that Spain formally architecture from the “French Quarter.”12 known as Louisiana for nearly a century- announced its rule over the new possession. Whether the legal system in Louisiana and-a-half due to the inhospitable climate, The French settlers rebelled against their should be called “Napoleonic” or not, since wildlife and geography. Precious metals and new ruler, Gov. Antonio Ulloa. It took the Civil Code was also influenced by fertile soils had been found by its explorers a new governor, Alejandro O’Reilly, to Spanish law,13 should be more fully explored in the more hospitable lands to the south.4 suppress the French settlers’ rebellion and in a book-length discussion. Few areas in French King Louis XIV, concerned about establish order. He sent the plotters to prison this country present diversity as vividly in all British and Spanish expansion in the New in Morro Castle in Cuba. The Spanish aspects of its origins as Louisiana does. Its World, encouraged French exploration of established much of New Orleans’ and customs, architecture, food, culture, people the Mississippi River and perhaps enlarge Louisiana’s character normally associated and laws are as diverse in origin as the faces his own empire.5 In 1682, Rene-Robert with the French. The Spanish control also of its citizens. Louisiana has as its roots Cavelier, Sieur de la Salle, reached the continued Catholic influence in the region.9 indigenous inhabitants, Spanish, French, mouth of the Mississippi and claimed it and Louisiana prospered under Spanish rule. A African and mixtures of all. The English, all the lands drained by it for France. He stable government fomented the growth of Irish, Germans and other European settlers named this vast, largely unknown territory business and commerce. Louisiana’s sugar arrived later. In Louisiana, the Spanish “Louisiane” or “Louis’ land.”6 industry began during this period. After the term Somos Primos, “we are cousins,” is In 1699, Pierre Le Moyne, Sieur development of a method for processing alive. The Civil Code is made up of two d’Iberville, sailed into the Gulf of Mexico sugar on a large scale by Etienne de Bore, thinking that the large French ships would Louisiana planters began growing sugar Continued next page

LouisianaLouisiana Bar Bar Journal Journal Vol. Vol. 59, 59, No. No. 5 5 327327 Continued from page 327 Happy 200th Birthday, Louisiana! relatives, Spanish law and French law, which This year, we are celebrating a magnificent Capitol on April 30, 200 years to the day in turn derive their respect for family and milestone, the bicentennial of Louisiana’s after Louisiana became a state. Also in Baton property law from their common ancestor: statehood. Our rich and authentic culture is Rouge, a new exhibit, The Treasures of the the Roman law. shaped by the past 200 years and the people Louisiana State Museum: Celebrating 200 A compelling conclusion to any who have called Louisiana home. For the Years of Louisiana Statehood, opened to the discussion regarding diversity in Louisiana’s next year, we are celebrating our past while public at the Capitol Park Museum on Feb. 1. laws and legal profession leads to the fact embracing our future. I encourage you to take advantage of Events are scheduled throughout the all the special events and programs that are that the legal profession and its practitioners year in every parish in the state. From happening this year. To learn more about in Louisiana must reflect the diversity of its commemorative license plates to education official events throughout the state, visit people and its origins. The contrary would curricula and museum exhibits to birthday www.LouisianaBicentennial2012.com. lead to a denial of the very existence of celebrations, 2012 is shaping up to be the our roots. best year yet for Louisiana. —Jay Dardenne The official bicentennial birthday event Lieutenant Governor FOOTNOTES will take place on the grounds of the State State of Louisiana 1. American Heritage Dictionary of the English Language, Fourth Edition, 2000. 2. Retrieved from www.nps.gov/jeff/. State Archives Telling Louisiana’s Story 3. Ibid. Serving as Louisiana Secretary of State commemorates its Bicentennial. 4. Retrieved from http://lsm.crt.state.la.us/ cabildo/cab3.htm. is challenging and rewarding. It is both an Louisianians, you are already a part of 5. Ibid. education and an experience, as well as an the history, and you or your children may 6. Ibid. honor, privilege and infinite pleasure. well add to its flavorful future. We invite you 7. Ibid. What better way to pay tribute to our to read the Bicentennial saga, to share it, to 8. Retrieved from http://lcweb2.loc.gov/ ammem/collections/maps/lapurchase/essay3.html. great state of Louisiana than to tell its story soak in this colorful panorama of a state that 9. Ibid. from an array of perspectives. One way, has flown 10 different flags, more than any 10. Frank Laughter, Concord Learning set in concrete, is the 10-panel sculpture on other state, and revels in its uniqueness of Systems, L.L.C., Concord, N.C. the exterior of the State Archives’ facility. being a warm and welcoming state. 11. Retrieved from http://enlou.com/time/ year1788.htm. Still another is the State Archives’ fact- For information on obtaining a copy of 12. Retrieved from http://enlou.com/time/ filled, researched, well-written history of the book, contact the State Archives, 3851 year1794.htm. Louisiana, “Louisiana 2012: A Bicentennial Essen Lane, Baton Rouge, LA 70809, 13. Retrieved from http://www.slate.com/ Celebration of History, Culture and Natural (225)922-1000, email [email protected]. toolbar.aspx?action=print&id=2126126. Resources,” with tables, photographs and the heroes and heroines who wrote —Tom Schedler Ariel Campos, Sr. is employed as a contract the history, page by page. It celebrates Louisiana Secretary of State attorney with Acadiana Louisiana becoming a state in 1812 and now Legal Services Corp. in Lafayette. He was previously employed by Recording Louisiana’s Colorful Heritage health care providers in Describing Louisiana to a stranger is like In addition, we wanted something special Louisiana and Missouri, trying to depict in words a kaleidoscope or for the Bicentennial Year of its statehood by the U.S. Department a tapestry. It’s a “many splendored thing,” in 1812, and took on the mighty task of of Justice, Civil Rights as the popular song of 1955 sounded. writing a history that is easily read and Division, in Washington, D.C., and by the Equal Employment Opportunity Historically, culturally and physically, with comprehended but in no way conclusive. Commission in the New Orleans District its depth of contributions that are global, This would be impossible because the Office. He earned his AB degree in English Louisiana has so many facets to its layout “gumbo” constantly evolves with tasty and philosophy from Loyola University and of people, places and things that the word additions. Vive la différence! his JD degree from Loyola University College “gumbo” is often used to describe it. This For information on obtaining a copy of of Law. He is a member of the Louisiana State is because Louisianians love to eat, drink the book, “Louisiana 2012: A Bicentennial Bar Association’s Diversity Committee and the Legal Services for Persons with Disabilities and be merry; and, yet, Louisiana is also Celebration of History, Culture and Natural Committee. He is a member of the Lafayette a place of great citizenship, compassion, Resources,” contact the State Archives, Bar Association and the Hispanic Lawyers bravery and ingenuity. 3851 Essen Lane, Baton Rouge, LA 70809, Association of Louisiana. (P.O. Box 4823, With this in mind, the staff of the State (225)922-1000, email [email protected]. Lafayette, LA 70502-4823) Archives addresses its mission: “To collect, preserve, display and make available those —Florent Hardy, Jr., Ph.D. records essential to the reconstruction of Louisiana State Archivist Louisiana’s colorful history and heritage.”

328 February / March 2012 Joyeux Anniversaire, Louisiane! On behalf of the Louisiana State Bar On the advice of the late Judge Allen M. Association’s (LSBA) Francophone Babineaux, I decided to attend Loyola Section, founded in 1999 (of which I am the University Law School. I spent five years current president), I am proud to state the living in New Orleans. I enjoyed every enormous significance of the Bicentennial of minute of it. I met many great people. I was the creation of the State of Louisiana, 1812- a history major so, when we get a chance 2012. Admitted as the 18th state in the Union to celebrate an historical event, namely, the on April 30, 1812, we gained notoriety, I founding of Louisiana and all its beauty, its believe unprecedented, in Louisiana and the bayous, its food, its culture, its language, its United States of America. Keep in mind that, law, the Civil Code of Louisiana, we do so in 1803, the United States officially bought in great earnest. the territory of Louisiana from France in This is not just an event which Louisiana what is known as the Louisiana Purchase. celebrates. Rather it is an International We founded the Francophone Section Francophone Event with wishes from all Old State Capitol. Louisiana State Archives, in Destin, Fla., in 1999, through the great Francophone countries, including but not Old State Capitol Exhibit Collection. Used with suggestion of then-LSBA President Patrick limited to Canada, France, Belgium and permission. S. Ottinger. I remember receiving the letter Haiti. It is an event that is monumental, an from Patrick, through Warren Perrin, while event of joy, an event of pleasure, but also Joyeux Anniversaire to boarding a plane to Miami, Fla., for a case an event of remembrance of what we have Louisiana (1812-2012) I was handling in Dade County. experienced for many years, including the My thoughts for Louisiana are very fond tragic Hurricanes Katrina and Rita in 2005. I first met John A. Hernandez III and in what I believe is the greatest state in Louisiana is blessed. Louisiana has great (also known as T-Jean), president of the the Union. I believe that for many reasons. people. Louisiana has great chefs! But, more Francophone Section of the Louisiana State I love Louisiana. My family came from importantly, Louisiana has a great Soul. “Le Bar Association (LSBA), at the LSBA’s the Canary Islands in the 1800s and rested joie de vivre” and “laissez les bon temps Annual Meeting in Destin, Fla., in 2003. We here and stayed here. My grandfather was rouler” are our signature phrases that define have formed a very formidable relationship a World War II veteran serving in France, who we are and who we want to be and are between the LSBA’s Francophone Section Spain and Germany. My father served in always recognized throughout the world. and the Bar Association of Paris, as well Vietnam. My father finished law school in Joyeux Anniversaire, Louisiane! as with the LSBA itself which we invite 1976. After completing my undergraduate —John A. Hernandez III each year to attend our Annual Red Mass. studies at Louisiana State University, I had Conversely, we are always invited to attend the great intention of going to law school. President, Francophone Section Louisiana State Bar Association the LSBA’s Annual Meeting, which I attended in 2011 in Las Vegas, Nev., on behalf of the Paris Bar Association. Through the help of the Francophone Greetings from Québec! Section, it has been my pleasure to have attended two seminars of the Judge Allen Québec and Louisiana were born as we have the pleasure of greeting your M. Babineaux International Civil Law two brothers, once joined by the hip when President to our Opening of the Courts Symposium in Lafayette, La. — once in the French Empire spread from the cold and, reciprocally, we have the pleasure 2005, unfortunately held two weeks after waters of the Labrador Sea to the warm of participating in your Annual Meeting. the great devastation of Hurricane Katrina, waters of the Gulf of Mexico. This common Your next assembly, in 2012, will take and then again in 2008 for the grand history gave rise to common institutions, place during the commemoration of the celebration of the 200th Anniversary of such as the French language and the Civil Bicentennial of the foundation of the State the Digest of 1808 of Louisiana. Code, which institutions we still share as of Louisiana. We look forward to being Our ties between Louisiana and France of today. Both colonies have since taken there and celebrating this event with you! are very deep and very treasured. To this a different path, but have continued to end, I congratulate this great state for its nourish a strong friendship, such as the one —Nicolas Plourde 200th Anniversary and look forward to we enjoy between our two Bars, especially Vice-President, Québec Bar celebrating same this year with my friends with the Louisiana State Bar Association’s Former Bâtonnier, Bar of Montréal in Louisiana. Francophone Section. As such, each year, —Jean-Marie Burguburu Ancien Bâtonnier du Barreau de Paris

Louisiana Bar Journal Vol. 59, No. 5 329 330 February / March 2012 An Excerpt Louisiana Indians Today List of Federally and State Recognized Native American Tribes and Other Contacts Editor’s Note: The publication, State of Louisiana “Louisiana 2012: A Bicentennial Federal State Other Celebration of History, Culture and Alabama Coushatta Adai Caddo Indians Apalachee Talimali Band Natural Resources,” was produced Tribe of Texas of Louisiana of Louisiana by Louisiana State Archivist Florent Caddo Nation Biloxi Chitimacha Confederation of Muskogee Hardy, Jr. and the staff of the Archives/ Chitimacha Tribe Choctaw-Apache Tribe of Ebarb Louisiana Secretary of State’s Office of Louisiana to commemorate the Bicentennial of Choctaw Nation Clifton Choctaw Tribe of Louisiana Louisiana’s Statehood on April 30, 2012. of Oklahoma The Louisiana Bar Journal has received Coushatta Tribe Four-Winds Cherokee Tribe permission to excerpt a portion of the of Louisiana Jena Band of Point au Chien Tribe historical chronology. For information on Choctaw Indians obtaining a copy of the book, contact the Mississippi Band United Houma Nation State Archives, 3851 Essen Lane, Baton of Choctaw Indians Rouge, LA 70809, (225)922-1000, email Quapaw Tribe [email protected]. of Oklahoma Tunica-Biloxi Tribe

Federally recognized tribes – www.louisiana.gov. Updated December 21, 2009. http://www.crt.state.la.us/...NatAmContactsNew.doc Introduction Native Origins2 in the sixteenth and seventeenth centuries. Celebrations are nothing new to Several of these tribes, specifically the Louisiana, a state rich in tradition and Native Americans have been a Natchez, continued to erect earthworks cultural festivity. The year 2012 promises significant contributor to Louisiana history like those at Poverty Point.4 to be a year-long celebration to end all, through the centuries. Little is known of the At the time of European contact, six as the people of Louisiana celebrate different tribes until the 1800s; however, major native groups lived within the borders the Bicentennial of their statehood it is known that these early inhabitants of present-day Louisiana: Coushatta, while recognizing two hundred years moved from place to place, basically as a Choctaw, Chitimacha, Houma, Tunica, and of challenge and opportunity. Although matter of survival. The first Louisianians Caddo. The largest, the Caddo of North serious in time of need, the citizens of crossed the Bering Land Bridge between Louisiana, exerted the most power and Louisiana appreciate the Cajun expression Asia and North America around the year influence. The Chitimacha and Houma “Laissez Les Bon Temps Rouler,” and 12,000 BC. The Mississippi River Valley lived in the marshes and bayous of South accept it as their unofficial motto. Visitors provided some of the best hunting grounds Louisiana. Although they originated in also soon revel spontaneously in world- and agricultural land on the entire continent, modern-day Mississippi, elements of both renowned Louisiana fun. and native peoples quickly made their the Tunica and the Choctaw settled in Much evolution and change occurred way to the bayous and rivers of the future central Louisiana during the mid-eighteenth during two hundred years of history. Early Pelican State. The region produced such an century. Around the same time, British inhabitants, European explorers, and overabundance of food that nomadic tribes colonial expansion forced the Coushatta colonial rulers all played major roles in transformed into hierarchical societies, migration to Louisiana from points the early history of what is now Louisiana. capable of building massive earthworks eastward.5 Upon statehood, the people of Louisiana like those preserved at Poverty Point State American history has taught us that and their actions became the focal point of Historic Site in North Louisiana.3 Today, Native Americans were named Indians historical development. Acknowledgment Poverty Point is a State Historical Site and because Christopher Columbus thought of a diverse ethnic heritage, wise use of is an affiliate of the Smithsonian Institution, he had reached the East Indies when he its strategic geographic location, and a designated by the United Nations as one discovered America in 1492. Hernando respect for the continued development of three World Heritage Sites in North De Soto’s Spanish expedition through of its many resources have helped to America. the modern Southeast encountered and make Louisiana what it is today. Beyond Construction of the mounds at Poverty tried to subjugate members of all six of comparison, however, the most important Point ended around 1350 BC, and these tribes. Following De Soto’s death of all of Louisiana’s many resources is archaeologists continue to debate the in 1542, his remaining soldiers built a raft its people — individuals who represent reasons for the apparent abandonment and sailed to Mexico, leaving the natives to a mini-melting pot overflowing with of the complex. The indigenous people, their own affairs. French colonial officials excitement, dedication, and a healthy however, did not disappear. In fact, they adopted a totally different policy toward work ethic.1 became the immediate ancestors of the Louisiana’s tribes. Although the French tribes that European explorers encountered attempted to convert the indigenous peoples

LouisianaLouisiana BarBar JournalJournal Vol.Vol. 59,59, No.No. 55 331331 to Catholicism, the colony’s leaders also Sieur de La Salle, to explore the interior thousands of gullible investors that the viewed the tribes as a vital source of waterways. In 1682, an expedition led by La colony contained vast amounts of gold, provisions and furs. In fact, New Orleans Salle reached the mouth of the Mississippi silver, and other valuable commodities. The survived on the foodstuffs grown by the River. Claiming all the land drained by the unmasking of the “Mississippi Bubble” in Choctaw.6 river for France, La Salle named the new 1720 led to a continental recession.12 Following the American purchase colonial possession Louisiana, in honor The crown resumed direct control of the of Louisiana, official policy toward the of King Louis XIV.10 Efforts by La Salle colony in 1731, but Louisiana continued natives rapidly changed. President Andrew to settle the new colony ended in failure, to struggle for survival. During the forty Jackson forced the Caddo and a majority and French colonial officials did not launch years of French rule, the colony never of the Choctaw and the Coushatta onto any further attempts to build an outpost in turned a profit. Although Law succeeded reservations in Oklahoma and Texas. Today, Louisiana until 1699. Settlers under the in attracting German and Swiss settlers, the federal government recognizes four leadership of French-Canadian Pierre Le the number of French residents remained tribes in Louisiana: Chitimacha, Coushatta, Moyne, Sieur d’lberville managed to scrape low. Colonial officials resorted to sending Tunica-Biloxi, and the Jena Band of the out an existence near the present-day city convicts and prostitutes to Louisiana in a Choctaw.7 The 2010 census based on 2009 of Biloxi, Mississippi. France, however, desperate attempt to increase the number estimates reported that approximately really needed a settlement directly on the of French settlers. Between 1717 and 1721, 26,800 American Indians and Alaska Mississippi to control the river. In 1718, half the women sent to the colony were natives lived in Louisiana.8 Iberville moved the capital of the colony prostitutes. By the end of French rule, the The early inhabitants of Louisiana have to New Orleans, a town recently laid out colony’s population managed to reach self- contributed much to the uniqueness of by his brother Jean-Baptiste Le Moyne, sustaining levels, but only barely.13 Louisiana and have left an indelible mark on Sieur de Bienville, and named in honor of Both the Company of the West and its culture. Indian names such as Calcasieu the Duke of Orleans.11 French royal authorities allowed the “crying eagle,” Catahoula “beloved lake,” importation of slaves into the new colony. and Tangipahoa “ear of corn” are indicative French-Louisiana The French hoped to imitate the success of of the long-lasting legacy of Louisiana’s Chronology Britain’s Virginia colony which exploited early inhabitants. Year Event slave labor to grow tobacco. While the Louisiana culture often revolves 1682 LaSalle Explores the Mississippi River crop emerged as the principal product around its early inhabitants. Only 1699 Louisiana Colony is Established of Louisiana during the colonial period, 1712-1717 Royal Charter Granted recently Louisiana Public Broadcasting’s to Antoine Crozat disease, climate, and low prices meant documentary, “Through Native Waters: A 1713-1731 Royal Charter Granted to John Law that Louisiana’s tobacco planters never Chitimacha Recollection,” portrayed the 1718 Bienville Founds New Orleans really rivaled their Virginian competitors. present Chitimacha tribe through the eyes 1762 Treaty of Fontainebleau The resulting influx of enslaved Africans of a descendant who journeys down the 1763 Treaty of Paris to grow the crop, however, led to massive Atchafalaya River Basin* and recounts 1764-1788 Acadians Come to Louisiana increases in the slave population. By stories, beliefs and perspectives of this 1800 Secret Treaty of San Ildefonso 1746, almost sixty percent of the colony’s important people. Although their numbers 1803 Louisiana Purchase Treaty population lived in chains.14 have decreased to some 1,000 and their 1804 Napoleonic Code Established The Louisiana colony was a challenge sacred fishing and hunting grounds are 1811 Enabling Act to France in many ways, especially 1812 Louisiana Becomes the diminishing, their legacy lives on. In fact, Eighteenth State economically. Many varied socioeconomic a grant from Rosetta Stone has allowed the 1861 Louisiana Secedes from the Union influences also impacted the growth of the tribe to research and teach their language 1951 France-Amerique colony through the years, but one influence and create a cultural center in St. Mary de la Louisiana-Acadienne remains paramount today. The French 9 Parish. Deborah Clifton, Florent Hardy, Jr., and Bruce Turner. Les Archives connection is the most dominant and the des Francophones de la Louisiane. Quebec Archives: Association des foremost reason for modern Louisiana’s Archivistes du Quebec, Volume 36, Archives 2, 2004-2005. Page 24. The French Connection alliance and closeness to Canada, France The French quickly relocated their and all French-speaking nations. It was In the late 1600s French Governor dispersed settlements to the new location. during the regime of 14 different governors of Canada, Louis de Baude, Comte de Despite the success in forging a foothold administering Louisiana under French rule Frontenac was a firm believer in French on the Gulf Coast, the colony continued through the mid-1700s that the French territorial expansion and feared that the to drain the French Treasury. Hoping attitude of laissez faire (let things happen as further growth of the British colonies might that private management of Louisiana they will) began to prevail, continuing today cut off France’s access to the valuable might lower the costs, French officials in a state known for its fairs, festivals, Mardi fur-trading lands of North America. He transferred control to the Company of the Gras, dancing and music. The knowledge of encouraged a wealthy immigrant to New West, a joint-stock corporation run by an the French language especially in southwest France, Rene Robert Cavelier or the exiled Scotsman named John Law. Law Louisiana has been a contributing factor never visited Louisiana, but he convinced to the long-lasting relationship with

332 February / March 2012 Louisiana and the French. In fact, during expelling the first Spanish governor sent World War II and in Vietnam in the 1960s from the Old World. and 1970s, Louisiana’s French-speaking In his place, the new colonial masters military personnel were much sought- dispatched Alejandro O’Reilly, an Irishman after interpreters. Four centuries of French in the service of the Spanish king. O’Reilly and Francophone cultural development quickly put down the rebellious French in the New World are documented in a settlers, reorganized the government of thorough recording of archival repositories the colony,19 and enabled the migration of that preserve historic data to this day. the exiled Acadians to Louisiana. O’Reilly Fortunately, history has always been only stayed in the colony about seven important to the people of Louisiana. Today, months, but his brief tenure set the tone for the Louisiana State Archives houses the the Spanish administration of Louisiana.20 original statehood constitution of 1812 and In order to dilute the French influence the Acts of the Legislature of the Territory in the colony, the Spanish authorities tried of Louisiana. These initial Acts were written to encourage immigration of Spaniards to both in English and French. Louisiana. Spain succeeded in attracting Louisianians with French ties have a number of Canary Islanders21 to settle in been both determined and influential the area around Lake Maurepas and Bayou Pierre Le Moyne, Sieur d’Iberville. Courtesy in preserving their French language of the Louisiana State Museum. Used with Lafourche, but their efforts to Hispanicize and culture. One of the earliest heritage permission. Louisiana society brought mixed results. organizations, the Athénée Louisianaise, While Spain significantly impacted the founded in 1876, was a society that immortalized the Grand Derangement and government and administration of the St. Martinville became known as “Le Petit encouraged the study of French language 17 colony, culturally, the territory remained and literature. France-Amérique de la Paris.” France briefly regained Louisiana firmly French. Louisiane-Acadienne was established in in 1800 through the secret Treaty of San During the almost forty years of Spanish 1951 with a similar goal. It was short- Ildefonso and three years later Napoleon control, Louisiana maintained the same lived, however. In 1968, a more concerted sold the Louisiana Colony. lowly position that the colony endured effort was made at the state level through Today the Napoleonic Code, the under French rulership — a minor imperial the original charter of the Council for the French civil law code established at the backwater of limited importance. In fact, Development of French in Louisiana or behest of Napoleon in 1804, remains the Spain took possession of Louisiana mainly CODOFIL, which brought much-needed basis of Louisiana’s legal system, with to protect its more valuable Mexican financial support to the effort. The mission contributions from both civil and common holdings from British and American of CODOFIL continues to be the restoration law. In 1808, the Louisiana Territory encroachment. Although colonial officials of ethnic pride. This was to be achieved adopted elements of the Napoleonic Code like Bernardo de Galvez lobbied Spanish primarily through the teaching of French and included similar provisions in the bureaucrats for further development in Louisiana’s schools. Another of the Civil Code of 1825, the Code civil des of Louisiana, their calls mostly went innovative efforts to foster ethnic pride Francais. By 1870, the state had updated unanswered. and to maintain the France/Louisiana the Louisiana Civil Code thereby creating When French ruler Napoleon Bonaparte connection is the twinning of Louisiana and a unique legislative-based standard of civil offered to take Louisiana back in 1800, law, the only state implementing such French cities. This effort began almost forty 18 Spanish authorities willingly obliged. years ago and has been joined more recently practices. Although the change in ownership quickly by the twinning of plantation homes and took place in Paris and Madrid, the new French castles. Interestingly, many of these Spanish Rule owners did not take control in Louisiana Louisiana cities and plantation homes have until November 1803.22 French names.15 In 1762 France ceded the The French and Indian War, known in Isle of Orleans and Louisiana west of the Enrope as the Seven Years’ War, cost France Migration of Europeans Mississippi River to Spain.16 The next year its empire in North America. In the 1763 the Treaty of Paris ceded Louisiana east of Treaty of Paris, French King Louis XV The migration of Europeans to Louisiana, the river to England. ceded Canada to Great Britain. To avoid throughout the 19th century, became a Ironically, it was at this time during giving control of Louisiana to the British, defining aspect of today’s statewide varied the Spanish regime (1764 to 1788) France secretly transferred possession of the and unique culture. This period brought in that some 3,000 Acadians, later known territory, via the Treaty of Fontainebleau, the Hungarian settlements in Livingston as Cajuns, were exiled from Acadia, to their Spanish allies in 1762. Spain did Parish, the German Coast in St. John the Nova Scotia, Canada, and ended up in not actually assume control in Louisiana Baptist Parish, the Canary Islanders and the Louisiana. Henry Wadsworth Longfellow’s until 1766. The French settlers did not take Acadians in south Louisiana, and the mix poem, “Evangeline, a Tale of Acadie,” kindly to the transfer of ownership, actually

Louisiana Bar Journal Vol. 59, No. 5 333 of British Islanders, Italians, and Germanic ethnicities.23 New Orleans, however, remained the focal point of Louisiana. The strategic location of the Port of New Orleans assured that Louisiana would remain a constant interest of commerce to European imperial interests. Sold by France to help finance the Napoleonic Wars subjected to siege by Great Britain during the War of 1812, New Orleans became increasingly of pivotal importance to the shipping of goods between Europe and America. During the early half of the 19th century, Europe proved a mass consumer of American goods; for example, cotton, sugar,* and timber became primary Louisiana exports to European nations in need of such material and were greatly responsible for Louisiana’s economic growth. Louisiana continued to grow under the governance of France, Spain and Great Britain, until the United States’ annexation of Spanish West Florida, one of three independent countries that has ever existed in the United States, in September, 1812, completing the still existing boundary.24 A map of the original 12 parishes in the Territory of Orleans in 1805. Louisiana State Archives, Louisiana Purchase Secretary of State’s Office. Used with permission. for two crucial reasons. During the last Claiborne raised the Stars and Stripes over Upon achieving unrivaled power in years of Spanish rule, colonial authorities the Cabildo in New Orleans.28 1799, French General Napoleon Bonaparte frequently closed the port of New Orleans laid in motion not only the establishment to American traffic. The closures infuriated Territorial Louisiana and of a French Empire in Europe, but in North western settlers, who depended on the Statehood America as well. Napoleon saw Louisiana city as both a supplier and a market for then owned by Spain as a vital part in his their goods. For both philosophical and The present state of Louisiana was quest for New World riches. The Treaty of monetary reasons, Jefferson only wanted carved out of the southern section of the San Ildefonso25 transferred authority over 27 to purchase New Orleans from Napoleon. Louisiana Purchase. On March 26, 1804, the territory back to the French. Bonaparte Owning the entire territory of Louisiana, the Eighth Congress of the United States also launched a renewed effort to put down however, opened up a vast area of land to organized the Territory of Orleans, which the slave rebellion in the French colony of the rapidly expanding American nation. included all of the present state of Louisiana. San Domingue,26 which had raged without Proper ownership of colonial land grants The creation of a territorial government letup since 1791. The sad demise of the acquired prior to 1800 was addressed by allowed residents to elect a territorial army that Napoleon sent to conquer the the 1805 Congress.* legislature, but not major office-holders. island of Hispaniola soured his imperial For essentially the same price that the The President and Congress continued to ambitions in North America. Owning Americans wanted to pay for New Orleans, appoint the territorial governor. The future Louisiana made little geo-political sense Bonaparte offered to sell the entire territory state’s borders remained undefined and without also maintaining a position in the of Louisiana. Robert Livingston and James the matter of some dispute with Spanish more valuable Caribbean sugar islands. Monroe, the two American representatives, officials in Mexico. Not until the Adams- Furthermore, Bonaparte needed money to quickly signed an agreement to purchase Onis Treaty in 1819, seven years after fund expansion of his European empire. Louisiana for fifteen million dollars. Since statehood, did the Sabine River become As a result of all these considerations, the the amount well exceeded the money in the the official western border of Louisiana. American negotiators sent by President American Treasury, the United States took At almost the same time that America Thomas Jefferson to Paris found the French out a loan with Baring Bank, a British firm, assumed jurisdiction over Louisiana, an emperor a very willing seller. to actually pay the French. On December influx of refugees from the continuing The United States wanted Louisiana 20, 1803, Governor William Charles Cole unrest in San Domingue started to arrive

334 February / March 2012 in New Orleans. The new settlers greatly Louisiana’s of Secession on January 26, 1861, and in aided the development of Louisiana’s Many Constitutions March 1861 adopted the Constitution of economy, which languished during both 1861, making those changes necessary Constitution Dates the French and Spanish periods. French 1812 for the state constitution to conform to the planters from San Domingue played a 1845 Constitution of the Confederate States of crucial role in starting the sugar industry, 1852 America. The words “Confederate States” importing the technology and knowledge 1861 were inserted in place of “United States” needed to grow, harvest, and process sugar 1864 and some other minor changes. The 1861 1868 cane. A sizable community of free black 1879 Constitution amendment changes were 34 artisans also immigrated to Louisiana from 1898 not submitted to the voters in Louisiana. San Domingue.29 1913 Among the noteworthy provisions were In order for a territory to be admitted 1921 the abolition of slavery in 1864; a formal 1974 into the union in the early 1800s, minimum bill of rights, 1868; request for God’s West’s Louisiana Statutes Annotated: Treaties and Organic requirements had to be met. The Northwest Laws, Early Constitutions, U.S. Constitution and Index, St. guidance, 1879; restriction of voting rights Ordinance of 1787 stated that population Paul, MN: West Publishing Company, 1997, Volume 3, 80. to the literate and property owners only, had to exceed 60,000 and the Enabling Act act granting statehood to Louisiana. The 1898 and 1913. Throughout its history, of 1802 set forth the legal mechanisms that admission of Louisiana became official Louisiana has altered and added provisions authorized the people of a territory to begin two months later.32 to its constitution. The 1921 Louisiana the process towards statehood. There was Louisiana’s first elected governor to the Constitution holds the record for the longest precedent for a territory to become a state. newly formed state was William Charles state constitution before it was supplanted On April 30,1802, the Seventh Congress of Cole Claiborne, 1812-1816. Claiborne by the shorter 1974 constitution.35 the United States authorized the residents had served as Territorial Governor of the All Acts of the Louisiana Legislature, of the eastern portion of the Northwest Territory of Orleans (Louisiana), 1803- dating from 1803 to present, are stored in Territory to form the state of Ohio and join 1812. State officers serving with him temperature and humidity controlled vaults the United States on an equal footing with were as follows: L.B. Macarty, Secretary at the Louisiana State Archives in Baton the other states. Thus, Ohio set the precedent of State; J. Montegut, Treasurer; Allan B. Rouge. Earlier acts are in volumes bound and procedures for creation of future states Magruder, United States Senator; Thomas by various Secretaries of State, which in the western territories. Posey, (replacing Jean Noel Destréhan who were notably written by hand. The Acts To begin the process, twelve parishes30 resigned before taking his senate seat), dated 1803-1987 were microfilmed and were established by the Territorial United States Senator; and Thomas Bolling are available for research purposes at the Legislature on April 10, 1805, starting from Robertson, United States Congressman. State Archives. Annually, the Acts of the the southeast corner moving west and north. Other officials were Julien Poydras, Legislature are published by the Secretary These were Orleans, LaFourche, German President of the Senate; P.B. St. Martin, of State’s office.36 Coast, Acadia, Iberville, Attakapas, Pointe Speaker of the House of Representatives; In spite of the newly formed constitution, Coupee, Opelousas, Rapides, Concordia, Dominick Austine Hall, George Mathews however, the issue of Louisiana’s loyalty Natchitoches and Ouachita. Not included and Pierre Derbigny, Judges of the remained an open question until the War of in the Orleans Territory were the Florida Supreme Court; and Julien Poydras, 1812. This war was caused by the seizure Parishes on the east bank of the Mississippi; Stephen A. Hopkins and Philemon Thomas, of American sailors by the Royal Navy and they were part of the Spanish territory Presidential Electors.33 the British continued support for native of West Florida until annexed in 1810 The original constitution adopted in tribes in the Midwest and South. The first following the West Florida Revolt.31 The April of 1812 when Louisiana was admitted two years went badly for the Americans. In western boundary with Spanish Texas was to statehood laid out the organization of 1814, a British expedition even seized the not fully defined until the Adams-Onis the state’s governing system and stated country’s new national capital and burned Treaty in 1819, and a strip of land known the terms of office for the departments of the White House. In the fall of 1814, the as the Sabine Free State east of the Sabine state. It was in effect for many years, but British launched an attempt to seize New River was a neutral ground buffer area from revisions became necessary as society Orleans, and thereby gain control of the about 1807 until 1819. changed. The 1845 alterations included Mississippi River. By the Census of 1810, Louisiana met the the qualification terms, term limitations of To face the invasion, General Andrew 60,000 population figure needed to qualify the governor, and creation of the office of Jackson assembled a motley army of for statehood. The territorial legislature lieutenant governor. Not completely happy Tennessee Volunteers, Choctaws, armed quickly adopted a state constitution, shaped with the document, the public organized free blacks, and pirates. Although leery of primarily by a copy of the Napoleonic a constitutional convention in Baton American intentions, the French population Code that Creole admirers of the French Rouge in 1852. Over the years, there were of Louisiana feared the British even more, Emperor brought to New Orleans in more constitutional conventions and new and threw in with Jackson. On January 8, 1808. On February 20, 1812, President versions. Louisiana adopted the Ordinance 1815, the Americans won a major victory James Madison signed the congressional in the Battle of New Orleans, inflicting

Louisiana Bar Journal Vol. 59, No. 5 335 over two thousand casualties on British forces while suffering only thirteen dead. In actuality, British and American diplomats had signed a peace treaty ending the war over a month before the battle, but the successful repulse of the British army forever settled the debate over French Louisianians’ allegiance to their new nation.37

West Florida Republic

The Spanish territory of Florida extended into the area now called the Florida Parishes: East Baton Rouge, East Feliciana, Livingston, St. Helena, St. Tammany, Tangipahoa, Washington, and West Feliciana. In 1800, when the Spanish Map of the West Florida Republic. Courtesy of Claitor’s Publishing. Used with permission. agreed to sell Louisiana back to the French, Madison commanded Louisiana Territorial It is also designated by the United Nations as one of the Florida Parishes remained under the Governor William Charles Cole Claiborne three World Heritage Sites in North America. Culture, rule of the Spanish governor in Pensacola. Recreation and Tourism/Office of State Parks/Poverty to invade the Florida Parishes and seize Point State Historic Site, www.crt.la.us/archaelogy/ Settlers in the territory came from diverse them for the American nation. Seventy- virtualbooks/poverpoi/popo.htm, (accessed March backgrounds: Spanish landholders, former four days after its birth, the West Florida 18, 2011). Jon L. Gibson, Poverty Point: A Terminal American loyalists, and southern planters. Republic ceased to exist.40 Archaic Culture of the Lower Mississippi Valley, The wealthy planters of the Felicianas, in 2nd edition, (Baton Rouge: Department of Culture, The Louisiana State Archives received Recreation and Tourism, Louisiana Archaeological particular, viewed the Spanish colonial the statewide Education Award from Survey and Antiquities Commission, 1996). Series: government with derision.38 the Louisiana Trust for HISTORIC Anthropological Study (Louisiana Archaeological Napoleon’s occupation of Spain in PRESERVATION in 2011 as a result of its Survey and Antiquities Commission, no. 7). 1808 severely weakened Spanish control 4. Ibid. West Florida Republic Exhibit celebrating 5. Dayna Bowker Lee, “Caddo Nation,” KnowLA over their New World Empire. Two years the Bicentennial of the Republic. The State Encyclopedia of Louisiana. http:www.knowla.org/ later, rebellions broke out in Mexico and in Archives was assisted by the West Florida entry.php?rec=607, (accessed April 6, 2011). South America. The Florida Parishes also Republic Bicentennial Commission which 6. Michael T. Pasquier, “Early Exploration,” experienced unrest. The Feliciana planters KnowLA Encyclopedia of Louisiana. http:www. coordinated the participation and input of knowla.org/entry.php?rec=491, (accessed April 6, feared that a cash-strapped Spain might sell each of the parishes which made up the 2011). Florida to France or another continental seventy-four-day-long Republic. 7. James Precht, “Native Americans in power. On July 25, 1810, a convention of Twentieth- and Twenty-first Century Louisiana,” mostly American settlers gathered near KnowLA Encyclopedia of Louisiana. http://www. For the rest of the chronology and knowla.org/entry.php?rec=752, (accessed April 6, modern-day Zachary, Louisiana, to discuss more information on Louisiana’s culture 2011). the situation. Spanish loyalists informed the and natural resources, contact the State 8. U.S. Census Bureau, State and County Quick governor of the meeting, and urged him to Archives, 3851 Essen Lane, Baton Facts, http://quickfacts.census.gov/gfd/states/22000. march and break up the “rebellion.” With html, (accessed April 8, 2011). Rouge, LA 70809, (225)922-1000, email *The project encompasses 595,000 acres of the their secret discovered, the convention [email protected]. largest contiguous tract of bottomland hardwoods in decided to seize the Spanish Fort San the United States. The Atchafalaya Basin is a scenic Carlos in Baton Rouge. Under the cover FOOTNOTES semi-wilderness area of hardwood forests, cypress of darkness on the night of September 22, stands, marshes and bayous. It is one of the last great river swamps left in the nation. The Atchafalaya 1. Florent Hardy, Jr., Louisiana Proud. 1990 1810, forces loyal to the newly declared River and hundreds of miles of bayous bring life Unpublished essay. Louisiana Proud Essay Contest Republic of West Florida captured Baton to this wilderness area. Corps Lakes Gateway: sponsored by the Lt. Governor’s Office of Culture, 39 Louisiana - Atchafalaya Basin, http://corpslakes. Rouge. Recreation and Tourism and La Capital Federal usace.army.mil/visitors/projects.cfm. After the capitulation of Baton Rouge’s Credit Union. 9. Joan B. Garvey and Mary Lou Widmer, 2. Image sources are included in the Bibliography. Spanish garrison, the rebels fanned out Louisiana: The First Three-Hundred Years, (New 3. Poverty Point Historic Site. The Poverty Point across the Florida Parishes. They arrested Orleans: Garmer Press, 2001), 2-6, 265; Milburn Mound site is located near Epps in Northeast Louisiana Calhoun and Bernie McGovern, Louisiana Almanac. anyone suspected of Spanish sympathies. and is the largest earthwork in the Western Hemisphere. 18th Edition, (Gretna, LA: Pelican Publishing Just as rebels prepared to attack the Archaeologist Jon L. Gibson notes that Poverty Company, 2009), 91, 93-96. Point in about 1500 B.C. was the commercial and remaining stronghold at Mobile, the 10. Michael T. Pasquier, “Rene-Robert governmental center of its day. It is a State Historical United States intervened. President James Cavelier, Sieur de La Salle,” KnowLA Encyclopedia Site, and is an affiliate of the Smithsonian Institution. of Louisiana, http://www.knowla.org/entry.

336 February / March 2012 php?rec=807, (accessed April 5, 2011). of the Bishop of Santiago de Cuba. A single parish divided the territory into nineteen parishes . . . 11. Michael T. Pasquier, “Jean-Baptiste Le had been founded near New Orleans in 1723, but not without, however, abolishing the twelve existing Moyne, Sieur de Bienville,” KnowLA Encyclopedia until O’Reilly’s administration were they organized counties . . . . The county system was apparently of Louisiana, http://www.knowla.org/entry. on a widespread basis. After the Louisiana Purchase retained for the purpose of electing representatives php?rec=814, (accessed April 5, 2011). Bienville of 1803, these church parish borders served as the and levying taxes, and gradually these functions chooses a site that had been shown to him by Indians basis for the state’s political subdivisions. St. Mary went out of existence. Counties remained a tenuous, in 1699. It was an elevated natural levee, angled to Parish Department of Economic Development, shadowy feature of Louisiana government after the confront approaching ships, that allowed passage http://www.stmaryparishdevelopment.com/faq.asp. creation of parishes until they were abolished by the by Bayou St. John/River Road between Lake 20. Joe Gray Taylor, Louisiana: A Bicentennial Constitution of 1845. The parish in Louisiana has Pontchartrain and the Mississippi River. History, (New York: W.W. Norton, 1976), 21-22. served as practically the same governmental unit 12. Joe Gray Taylor, Louisiana: A Bicentennial 21. Spaniards from the Canary Islands (just 60 as the county in other states. Edwin Adams Davis, History, (New York: W.W. Norton, 1976), 8-9. miles off the coast of Morocco) crossed the Atlantic A Narrative History of Louisiana. (Baton Rouge: 13. Ibid., 10. to settle in South Louisiana. They were part of the Claitor’s Publishing Division, 1971), 168-169. 14. Michael T. Pasquier, “French Colonial Spanish colonial government’s plan to develop 31. The West Florida Republic lasted 74 days Louisiana,” KnowLA Encyclopedia of Louisiana, Louisiana and resist British encroachment. Several and consisted of the present-day parishes of East http://www.knowla.org/entry.php?rec=534, (accessed thousand families from the Spanish mainland and Baton Rouge, East Feliciana, Livingston, St. Helena, April 5, 2011). the Canaries were sent between 1778 and 1783. St. St. Tammany, Tangipahoa, Washington, and West 15. Les archives des francophones de la Bernard Parish Tourist Commission, “Who are the Feliciana. West Florida Revolt, http://www.knowla. Louisiane, Deborah Clifton, Florent Hardy, Jr. and Isleños?,” www.VisitStBernard.com. org/entry.php?rec=755, (accessed August 16, 2011). Bruce Turner, published by the Quebec Archives in 22. Joe Gray Taylor, Louisiana: A Bicentennial 32. Peter J. Kastor, “Louisiana Purchase Archives; Association des Archivistes du Quebec. History, (New York: W.W. Norton, 1976), 28-29. and Territorial Period,” KnowLA Encyclopedia Volume 36, Number 2, 2004-2005, 23-34. 23. Milburn Calhoun and Jeanne Frois, Louisiana of Louisiana. http://www.knowla.org/entry. 16. In regard to the question of why France ceded Almanac 2006-2007, 17th Edition, (Gretna, LA: php?rec=535, (accessed April 6, 2011). Louisiana to Spain, there were multiple theories Pelican Publishing Company, 2006), 147-153. 33. Leroy Willie, A Look At Louisiana’s First about why France acted as it did. The most logical *Etienne de Boré (1741-1820) is credited Century, 1804-1903, (Baton Rouge: SAR Books, theory in Edwin Adams Davis’s viewpoint is the with granulating sugar in 1796, greatly increasing 2002), 12. “White Elephant” Theory. This is the viewpoint that the value of Louisiana’s sugar production. Glenn 34. West’s Louisiana Statutes Annotated; Treaties France felt that Louisiana had failed as a colony and R. Conrad, Editor. The Dictionary of Louisiana and Organic Laws, Early Constitutions, U.S. was not cost-efficient. It had attracted no more than Biography. Volume 1. Lafayette, LA: Louisiana Constitution and Index, St. Paul, MN: West Publishing 7,000 persons after a half-century of settlement. Historical Association, 1988, 90. Company, 1997, Volume 3, 80. Edwin Adams Davis, The Story of Louisiana, 24. John G. Clark, “New Orleans: Its First 35. Wayne Parent. Inside the Carnival: Unmasking Volume I, (New Orleans: J.F. Hyer Publishing Co., Century of Economic Development,” Louisiana Louisiana Politics, (Baton Rouge: Louisiana State 1960), 69-70. Historical Association, Louisiana History. Winter University Press, 2005), 28-29. Edwin Adams Davis, 17. St. Martinville in the eighteenth century 1969, Volume 10, Number 1, 35-37. Louisiana; The Pelican State. Fourth Edition. (Baton gained its reputation as the home of numerous 25. San Ildefonso was the summer residence Rouge: Louisiana State University Press, 1975), 280. French Royalists who emigrated to escape the of the Spanish King. The standard spelling is 36. Eighth Congress, United States. “An act French Revolution as they fled precipitously from San Ildefonso. The treaty is also called The Third further providing for the government of the district of the anti-Catholic mob attack. In St. Martinville, the Treaty of San Ildefonso of 1800 to distinguish it Louisiana.” United States Statutes at Large. Session immigrants replicated in the wilderness a social from The Treaty of San Ildefonso of 1777 and The II, Chapter 31, March 3, 1805, 331-332. http:// life which resembled Parisian society as closely Treaty of San Ildefonso of 1796. Junius Rodriguez, memory.loc.gov. Eighth Congress, United States. as possible. St. Martinville has subsequently been (Editor); The Louisiana Purchase: A Historical and “An act erecting Louisiana into two territories, and known as “Le Petit Paris.” The many displaced Geographical Encyclopedia; Santa Barbara, CA: providing for the temporary government thereof.” Royalists that settled in the region established a class ABC-CLIO: 2002, 305-307. United States Statutes at Large. Session 1, Chapter of leisure and culture in the New World. Petit Paris, 26. Hispaniola. Junius Rodriguez, (Editor); The 38, March 26, 1804, 283-289, http://memory.loc.gov. http://www.urbandictionary.com/define. Louisiana Purchase: A Historical and Geographical Twelfth Congress, United States. “An act providing 18. Louisiana is one of the most unique states Encyclopedia; Santa Barbara, CA: ABC-CLIO: for the government of the territory of Missouri.” in the Union for a variety of reasons. In particular, 2002, 135-136. United States Statutes at Large. Session I, Chapter both civil and common law contribute to Louisiana’s 27. Jon Kukla, A Wilderness So Immense: The 95, June 4, 1812, 742-747, http://memory.loc.gov. legal code. Beginning with Spanish rule, the Civil Louisiana Purchase and the Destiny of America, 37. Jim Bradshaw, “Battle of New Orleans,” Code was adopted by the Louisiana Territory in (New York: Knopf, 2003), 58. KnowLA Encyclopedia of Louisiana, http://www. 1808. Preceding the adoption of the Civil Code *The legal ownership of all French and Spanish knowla.org/entry.php?rec=724, (accessed April 11, was the Code civil des Français, which the Spanish land grants prior to 1800 were initially clarified in 2011). implemented in 1804 as their form of jurisprudence. 1805. Eighth Congress, United States. “An act for 38. William C. Davis, The Rogue Republic: How By 1870, Louisiana updated the Louisiana Civil ascertaining and adjusting the titles and claims to Would-be Patriots Waged the Shortest Revolution in Code in use today and in the process created a unique land, within the territory of Orleans, and the district American History, (New York: Houghton Mifflin, legislative-based standard of civil law. Currently, of Louisiana.” United States Statutes at Large. 2011), 5, 35. Louisiana is the only state implementing such Session II, Chapter 26, March 2,1805, 324-329. 39. Samuel C. Hyde, “Quick Reference Guide practices; however, Spain, Quebec, and countries http://memory.loc.gov. for Understanding the West Florida Revolt and in Latin America use forms of civil codes within 28. Peter J. Kastor, “Louisiana Purchase Creation of the West Florida Republic,” http://www. their system of law. Bicentennial of the Civil Code, and Territorial Period,” KnowLA Encyclopedia selu.edu/acad_research/programs/csls/west_florida/ http://www.law.lsu.edu/index.cfm?geaux=ccls. of Louisiana, http://www.knowla.org/entry. documents/Reference_Guide_to_W.pdf, (accessed bicentennialofthelouisianacivilcode. php?rec=535, (accessed April 6, 2011). Jon Kukla, March 7, 2011). 19. A parish is Louisiana’s equivalent to a county A Wilderness So Immense: The Louisiana Purchase 40. Samuel C. Hyde, “West Florida Revolt,” elsewhere in the United States. The Cajun homeland, and the Destiny of America, (New York: Knopf, KnowLA Encyclopedia of Louisiana, http://www. Acadiana, comprises twenty-two south Louisiana 2003), 58. knowla.org/entry.php?rec=755, (accessed April 20, parishes. Parishes were first created in Louisiana in 29. John C. Clark. New Orleans, 1718-1812; An 2011). the late eighteenth century when Captain General Economic History, (Baton Rouge: Louisiana State Alejandro O’Reilly, an Irish-born governor (1769- University Press, 1970), 218-219. 70) in the service of Spain, divided the colony into 30. The first act passed at the second session twenty-one ecclesiastical parishes under the control of the first legislature, approved March 31, 1807,

Louisiana Bar Journal Vol. 59, No. 5 337 Resolution House of Delegates Louisiana State Bar Association In Commemoration of the Founding of the State of Louisiana (1812-2012)

WHEREAS the Francophone Section of the Louisiana State WHEREAS the Francophone Section of the Louisiana State Bar Association was created at the Annual Meeting at Sandestin, Bar Association wishes Louisiana a “Bon Anniversaire” of two Florida, in June of 1999; hundred years;

WHEREAS the Francophone Section’s mission is to WHEREAS the Francophone Section of the Louisiana promote any and all things Francophone in nature including State Bar Association will be having events in April 2012 in the preservation of the French Culture, Language and Historical commemoration of the founding of Louisiana at its Annual Events; Meeting in Lafayette, Louisiana, on April 27, 2012, at the United States Federal Courthouse, 800 Lafayette Street, at 4:00 o’clock WHEREAS on April 30, 1812, the United States of America p.m. and will participate in the actual commemoration by the admitted Louisiana as the eighteenth State into the Union; State of Louisiana on April 30, 2012;

WHEREAS Louisiana was the first State to have a majority WHEREAS the creation of documents of the founding of Catholic French and Spanish Speaking population reflecting the State of Louisiana was done by the legislature and impacted its origins as a colony under France from 1669-1763 and from by certain lawyers who drafted and created the final document; 1763-1803; WHEREAS the Louisiana State Bar Association and through WHEREAS American attorney Edward Livingston along its mission should be proud that its members prior to creation with French-born Congressman Julien Poydras lobbied and of the Louisiana State Bar Association in 1812 so helped create convinced Territorial Governor William C.C. Claiborne that the this legal document; New Orleans Territory qualified for Statehood and that, finally in 1811, Democratic President James Madison signed the Bill WHEREAS this historical event should be one of significant allowing the people of Louisiana to form a Statehood; historical presence for Louisiana as well as for the Louisiana State Bar Association; and WHEREAS forty-three American and Creole Leaders convened on April 14, 1812, at a Convention to consider the WHEREAS the Francophone Section of the Louisiana State Statehood of Louisiana; Bar Association hereby submits this resolution to commemorate this great event and the founding of Louisiana. WHEREAS in 2012, we celebrate the 200th Anniversary of the founding of the State of Louisiana; NOW, THEREFORE BE IT RESOLVED that the Francophone Section of the Louisiana State Bar Association wishes to proclaim WHEREAS two hundred years later Louisiana remains one this day before the House of Delegates of the Louisiana State of the distinctive States in the Union with its rich heritage of the Bar Association as an official birthday celebration of Louisiana French Language, Creole and Cajun Cuisine, Louisiana Civil which is to be celebrated on April 30, 2012. Code, Mardi Gras and its “Joie de Vivre”;

This resolution is made in Loving Memory of Judge Allen M. Babineaux.

APPROVED BY HOUSE OF DELEGATES AND BOARD OF GOVERNORS With caveat that article on Spanish history of Louisiana be included in Special Bicentennial issue of Louisiana Bar Journal.

JANUARY 21, 2012 NEW ORLEANS, LA

338 February / March 2012 Events / Louisiana Statehood Bicentennial 1812-2012 Several events have been planned March 2012 ► April 28, Bicentennial Family across the state to commemorate the ► March 13, Exhibit of Select George Homecoming Celebration Louisiana Statehood Bicentennial. The Rodrigue Paintings (opening) ► April 30, 200th Louisiana Bicentennial official events calendar online is listed by ► March 13, A Taste of History with Birthday Event month. For more information on all events, Thomas Jefferson (A Cooking Class) go to: www.louisianabicentennial2012. ► March 20, Louisiana State Museum/ May 2012 com. Celebrate your history! Capital Park Bicentennial Exhibit ► May 12, Faces and Places of Louisiana: ► March 22, Festival of the Arts Reading by Poet Laureate Julie Kane Among the activities are: April 2012 June 2012 Now through June 14, 2012 ► April 20, Springfest and Civil War ► June 27, Louisiana in 1812: A Lecture ► Natchitoches: Paths to Statehood Re-enactment Exhibit ► April 27, Bicentennial Documentary Premiere

Free CLE to Mark Bicentennial Celebration of Federal Courts in Louisiana This year marks the 200-year the past 200 years, such as the distinctive other memorabilia, as well as a slideshow anniversary of the federal courts in cultural combination of Creoles and presentation in the lobby of the Eastern Louisiana. Since their inception, the Americans in Louisiana’s early days of District building. Louisiana federal courts have endured statehood, the evolution of civilian aspects In addition to the Eastern District a rich history, from the Civil War to of Louisiana law, and Andrew Jackson’s of Louisiana, co-sponsors and partners Hurricane Katrina. The Eastern District infamous fight with Judge Dominick Hall. include the New Orleans Chapter of of Louisiana, through a committee of Panelists include historians and the Federal Bar Association, the New court, bar, university and civic leaders academics, including John Magill, curator Orleans Bar Association, the Louisiana and chaired by Hon. Mary Ann Vial of The Historic New Orleans Collection; Bar Foundation and the Louisiana Center Lemmon, has planned a free CLE Jason Wiese, assistant director of the for Law and Civic Education. Several seminar, “Tracking Louisiana’s Legal Williams Research Center at The Historic university professors and The Historic Heritage: Celebrating 200 Years of the New Orleans Collection; Professor New Orleans Collection also have been Federal District Courts in Louisiana,” for John Randall Trahan, Louisiana State instrumental in the planning of this Friday, April 13, to recognize the courts’ University Paul M. Hebert Law Center; celebration. bicentennial. Dr. Mark F. Fernandez, professor of More information about this All members of the bar, judiciary and history at Loyola University; Professor bicentennial celebration and the CLE, public are invited to attend this free CLE Richard Campanella, associate director of including various judicial biographies, seminar from 1-5 p.m. at the Pan American the Center for Bioenvironmental Sciences notable cases, rulings and other court Life Conference and Media Center, 11th at Tulane University; and Dr. Raphael documents, will be posted in early Floor Auditorium, 601 Poydras St., Cassimere, Jr., professor at the University March to the court’s website at www. New Orleans, followed by a reception of New Orleans. Dr. Warren M. Billings, laed.uscourts.gov/. To RSVP for the across the street at the Eastern District of professor of history at the University of event, send your name, firm/employer, Louisiana courthouse. The seminar has New Orleans, will serve as moderator. address, phone, fax and email to Camille been approved for 4 hours of CLE credit. The seminar also will feature a skit Zeller, Attorney Conference Center, Hale The seminar will highlight the colorful performed by local students about Boggs Federal Building, Room 364, 500 history of the federal courts in Louisiana, Louisiana’s unique admission to the union Poydras St., New Orleans, LA 70130; particularly that of the Eastern District of as a civil law state. call (504)589-7990; or email fbano@ Louisiana. Presentations will focus on There will be a display of interesting bellsouth.net. notable cases, judges and events from and historic documents, photographs and

Louisiana Bar Journal Vol. 59, No. 5 339 America’s New Civil Rights Movement:

Education Reform, Public Charter Schools and No Child Left Behind

By Jonathan C. Augustine

[C]harter schools are publically financed and open to any child, but they are run by entities other than the conventional local school district. Typically, they are operated by nonprofit organizations that rely on donations to provide seed money to launch the school but then use the same amount, or less taxpayer money per pupil, as is doled out to the public schools for ongoing operations. Those who run charters are accountable for the school’s performance. However, they are free to manage as they wish, which includes the freedom to hire teachers who are not union members. — Steven Brill, Class Warfare: Inside the Fight to Fix America’s Schools 8 (Simon & Schuster 2011)

340 February / March 2012 anuary 2012 marked the 10- Accordingly, in 1965, the year following continue receiving money. As evidenced year anniversary of President Congress’ enactment of the famed Civil by annual assessments, however, IASA George W. Bush signing the Rights Act of 1964, Congress passed the proved unsuccessful as a reform measure No Child Left Behind Act of Elementary and Secondary Education as American students continued to lag J2001 (NCLB),1 legislation designed Act (ESEA).11 behind their foreign peers.15 Amid an to close the achievement gap in public ESEA’s signature item, with the increase in the black-white achievement education. Indeed, as former Secretary goal of helping solve problems facing gap in public education, Congress of Education Rod Paige expressed, economically disadvantaged children, passed NCLB as a bipartisan attempt to closing the achievement gap between was its Title I, the federal government’s improving public education. black and white students was NCLB’s single largest education aid program.12 Dr. primary goal.2 Over the last decade, in John H. Jackson, a former White House Louisiana’s Statutory addition to “education reform” becoming education policy advisor, member of the Agent of Reform: a common catchphrase, the concept has Louisiana Bar and president of the national become reality in Louisiana with New Schott Foundation for Public Education, The RSD and the Orleans front and center on a national describes the statute as follows: Proliferation of stage as America’s first majority charter Charter Schools school city.3 Moreover, with indications The ESEA outlined a clear federal the state’s Recovery School District role for education and doubled In the decade following NCLB’s (RSD) will operate failed local schools federal aid for public schools. The enactment and its arguably unique in perpetuity, the paradigm of school ESEA was designed as both a federal effect in Louisiana, the state has become governance existing prior to NCLB is implementation and enforcement home to the “great experiment” for at clearly a thing of the past. mechanism for providing equitable least two reasons. First, in the wake of In Brown v. Board of Education,4 the educational opportunities as well Hurricane Katrina, the state Department of United States Supreme Court placed as desegregation incentives for Education and the Orleans Parish School access to educational opportunities at Southern school districts, as de Board have received significant national the heart of the 20th century Civil Rights jure districts were barred from attention in their rebuilding efforts.16 Movement (the Movement).5 Moreover, funds. The Brown decision, coupled Second, as previously highlighted, New in Grutter v. Bollinger,6 a case decided with the impact of the 1964 Civil Orleans is the United States’ first majority almost 50 years after Brown, the court Rights Act and the 1965 ESEA, charter school city.17 Consequently, affirmed this time-honored philosophical placed the United States on a course Louisiana’s RSD is indeed the center of position.7 As a successor to several other toward sustaining its position as a national attention. reform-oriented enactments, NCLB global leader of opportunity and After NCLB’s January 2002 effective placed education reform and closing the democracy.13 date, the Legislature responded with achievement gap between black and white Act 9 of the 2003 legislative session students at the pinnacle of a 21st century Indeed, for 30 years after ESEA’s creating the RSD.18 Consistent with civil rights movement where Louisiana is enactment, Congress poured hundreds of the Legislature’s clear intent to reform leading the way.8 millions of dollars into public education, academic standards, once a local school unfortunately, however, with only is deemed academically unacceptable NCLB’s History and lackluster results. for a period of four consecutive years, Legacy: From Sputnik to According to Rod Paige, the Secretary “the school shall be removed from the of Education under whom NCLB was jurisdiction of the local school board... Louisiana’s RSD enacted, the modern day educational and transferred to the jurisdiction of the accountability movement began with Recovery School District....”19 Further In the wake of World War II and the President George H.W. Bush’s 1991 consistent with the clear intent to reform Cold War’s intensification, concerns Education Summit, with its policy public education following Hurricane arose as to whether the United States recommendations later codified in Katrina, the Legislature provided for a could keep up with the Soviet Union in President Bill Clinton’s Improving “district in crisis” to be transferred to the math and science after the 1957 launch America’s Schools Act of 1994 (IASA).14 state-run RSD.20 Consequently, 107 of 116 of the Soviet Union’s space satellite 9 With the fundamental premise that all schools in New Orleans were subject to Sputnik. Consequently, along with the children could master challenging content state takeover. United States’ socially changing dynamics and complex problem-solving skills when As a result of the foregoing, charter — fueled largely by the then-ongoing expectations are high, the IASA served as schools have become commonplace Movement — policymakers pressured a practical precursor to NCLB by initiating in Louisiana by providing parents and public schools to quantify educational major funding reform. caregivers the much-needed “choice” to improvement measures to ensure America 10 IASA required that local school boards would not lose the “space race.” develop plans to increase achievement to Continued next page

LouisianaLouisiana BarBar JournalJournal Vol.Vol. 59,59, No.No. 55 341341 Continued from page 341 educate their children. Consistent with other states’ models for reform, flexibility and choice were cornerstones of NCLB.21 For example, in January 2009, the Board of Elementary and Secondary Education (BESE) accepted the recommendation of Paul Pastorek, a member of the Louisiana Bar then serving as Superintendent of Education, and placed operational control of eight eligible schools in Baton Rouge within the RSD, while subsequently announcing plans to issue charters to non-profit organizations authorized by the National Association of Charter School Authorizers.22 Furthermore, in addition to the charter movement’s stabilized base of operations, charter schools appear to be the wave of the future if more and more academically unacceptable schools are taken over as the requisite school performance score baseline continues to rise, presumably as an attempt to keep American students in step with their foreign counterparts. In noting this likely trend, Tulane University’s Cowan Institute provides the following: obstacles to holistic structural change. achievement.

While in recent years the state has made Furthermore, Louisiana is often School Performance Scores significant improvements in public colloquially described as “land-rich range from 0.0 to either 236.4 or education, including nationally recognized and cash-poor.” The state’s percentage 266.7 (depending on the grade accountability and teacher quality reforms, of children living in poverty is higher configuration of the school). A and being recognized among national than the percentage of children living in school’s baseline SPS is calculated leaders in education technology efforts poverty in the entire United States, with by averaging the previous two years and early childhood education initiatives,25 more than two-thirds of the state’s public of school performance data and is Louisiana is still challenged by ongoing school students living in low-income used to give a school a performance desegregation litigation, poverty26 and households.30 Because there remains a rating label. Schools with a Baseline anti-reform laws like the Louisiana Teacher higher concentration of black children SPS of 140 or above receive a rating Tenure Act (TTA).27 attending Louisiana’s public schools, of five stars. Schools with an SPS According to the United States poverty and de facto school segregation below 60, as of 2007, are deemed Commission on Civil Rights, 42 Louisiana seem to go hand-in-hand. “Academically Unacceptable.” school districts have ongoing desegregation Finally, the TTA continually proves After NCLB, the state set a target cases pending in the state’s respective to be an obstacle to holistic education of having all schools reach an SPS federal district courts.28 In desegregation reform. The law gives public school of 120 or above by 2014.23 cases, matters of operational control teachers tenure in office and arms them and governance rest with the district with a protective shield against discharge, As far as Louisiana is concerned, court, which has a mandatory concern suspension or demotion for causes other therefore, Type 5 Charter Schools will for racial parity and not necessarily than those expressly provided by statute.31 likely be operational for decades to come.24 academic performance.29 Consequently, Although the law was originally intended as school districts attempt to implement to protect teachers from political pressure Challenges to Education and institutionalize reform and follow after a three-year probationary period in Reform in Louisiana the dictates of the RSD law to assume which they earned tenure,32 its current operational control of failed schools, there application makes it almost impossible to Notwithstanding the national spirit is arguably an inherent tension between a make some of the much-needed changes of education reform that has soundly district court’s concern for racial parity and in education reform. taken foot in Louisiana, there are still the Department’s concern for academic

342 February / March 2012 Author’s Anecdotes FOOTNOTES 24. Under Louisiana law, there are five different types of charter schools. See, generally, La. R.S. § 17:3973(2)(b); see also Wendy Parker, 1. 20 U.S.C. §§ 6301-6304, Pub. L. 107-110, Many African-American policymakers “The Color Choice: Race and Charter Schools,” 115 Stat. 1425. 75 Tul. L. Rev. 563, 577-80 (2001). Specific to argue NCLB and education reform are 2. See, generally, Rod Paige and Elaine Witty, 33 the Department assuming operation of preexisting part of a new civil rights movement. The Black-White Achievement Gap: Why Closing schools deemed academically unacceptable for It is the Greatest Civil Rights Issue of Our Time In contrast to those arguments, on Sept. four consecutive years, however, state law is clear (Amacom 2010). 23, 2011, America’s first black president, that such schools will operate under a Type 5 3. Danielle Holley-Walker, “The Accountability Charter. La. R.S. § 17:3973(2)(b)(v)(aa). Barack Obama, announced a NCLB Cycle: The Recovery School District Act and New 34 25. See Education’s Next Horizon, Education waiver program for the respective states. Orleans’ Charter Schools,” 40 Conn. L. Rev. 125, Briefing Book: A Primer for Policymakers on 128 (2007). In this author’s opinion, any such waiver Louisiana K-12 Education 19-27 (March 2008). 4. 347 U.S. 483 (1954). would be a mistake and arguably push 26. See id. at 28. 5. Id. at 493 (providing that education is 27. La. R.S. § 17:443. back academic gains. If anything, NCLB the most important function of state and local 28. United States Commission on Civil Rights, should be strengthened, not “watered governments and the very foundation of good Becoming Less Separate?: School Desegregation, citizenship). down.” Specifically, the author suggests Justice Department Enforcement and the Pursuit 6. 539 U.S. 306 (2003). two reform-oriented measures by which of Unitary Status 141-45 (2007). 7. Id. at 331 (citing Brown v. Board of 29. See Augustine and Freeman, supra note Congress can strengthen education reform Education, 347 U.S. 483, 493 (1954)). 8 at 261; see also Kristi L. Bowman, “A New even more. Congress should: (1) require 8. See, generally, Jonathan C. Augustine and Strategy for Pursuing Racial and Ethnic Quality in Craig M. Freeman, “Grading the Graders and a periodic review of school board and Public Schools,” 1 Duke F. for L. & Soc. Change Reforming the Reform: An Analysis of Public district superintendent effectiveness; and 47, 52 (2009) (internal citations omitted). Education Ten Years After No Child Left Behind,” 30. Briefing Book, supra note 25 at 28. (2) require that states modify their teacher 57 Loy. L. Rev. 237 (2011). 31. Reed v. Orleans Parish School Board, 21 tenure laws to receive Title I funding. 9. Scott S. Cowen Inst. for Pub. Educ. Initiatives So.2d 895 (La. App. Orl. 1945). at Tulane Univ., Public School Performance in First, teachers often anecdotally 32. Rousselle v. Plaquemines Parish School New Orleans: A Supplement to the 2008 State complain that incentive pay should not Board, 93-1916 (La. 2/28/94), 633 So.2d 1235, of Public Education in New Orleans Report 4 1242. be tied to student achievement. Fair (January 2009) (internal citations omitted). 33. See, e.g., Kevin P. Chavous and Benjamin is fair. A uniform application would 10. See id. F. Chavis, Jr., “Every Child Deserves a Chance” 11. 20 U.S.C. § 6301, Pub. L. 89-10, 79 Stat. require that school board members and (Feb. 11, 2011), available at: http://blog.baeo. 27-58. superintendents would be evaluated org/2011/02/20/chavous-chavis-every-child- 12. Nick Lewin, “The No Child Left Behind deserves-a-chance/ (last visited Oct. 23, 2011) to determine their effectiveness, too. Act of 2001: The Triumph of School Choice Over (commenting in an Internet blog published by the Second, with respect to modifying tenure Racial Desegregation,” 12 Geo. J. on Poverty L. & Black Alliance for Educational Options). Pol’y 95, 101 (2005). laws, the charter school movement’s 3 4.http://www.npr.org/2011/09/23/ 13. John H. Jackson, “From Miracle to national popularity clearly suggests that 140750871/obama-announces-no-child-left- Movement: Mandating a National Opportunity behind-state-waivers (last visited Oct. 23, 2011). voters want schools to have localized to Learn,” in The State of Black America 2009: 35. See, e.g., Jones v. Rapides Parish School autonomy and discretion in making the Message to the President 62 (Nat’l Urban League Board, 634 So.2d 1197 (La. App. 3 Cir. 1993) 2009). necessary personnel changes to improve (chronicling teacher Donald Jones’ multiple 14. Paige and Witty, supra note 2 at 107 student achievement. As an example, the infractions, including showing junior high students (discussing Pub. L. No. 103-382, 108 Stat 3518). an “R” rated movie, dismissal by his school board, standards for teacher removal under the 15. See, generally, Laurence Steinberg, Beyond 35 and court-ordered reinstatement under the TTA). TTA are almost impossible to meet. At a the Classroom: Why School Reform Has Failed minimum, therefore, the current standards and What Parents Need to Do (Simon & Schuster should be modified. Paperbacks 1996) (providing a detailed analysis Jonathan C. Augustine of the lowering of all academic achievement in serves as executive Education reform cannot be isolated. It public education with particular emphasis on the counsel of the Louisiana requires a synergistic relationship between growing disparity between black and white school Workforce Commission parents and caregivers, the local school children). and as a member of and/or school district, and community 16. See, e.g., Robert A. Garda, Jr., “The the Louisiana Blue Politics of Education Reform: Lessons from New stakeholders like businesses and faith- Ribbon Commission on Orleans,” 40 J.L. & Educ. 57 (2011); see also Educational Excellence. based organizations. As the new civil Inst. on Race & Poverty at the U. of Minn. L. He earned a BA degree rights movement in America, education Sch., The State of Public Schools in Post-Katrina from Howard University New Orleans: The Challenge Creating Equal reform also requires more, not less, and his JD degree Opportunity (May 10, 2010). federal intervention to ensure Brown’s 17. See Holley-Walker, supra note 3 at 128. from Tulane University Law School. Prior to previously-referenced proclamation is 18. La. R.S. § 17:1990. his current appointments, he served in locally realized. Indeed, education is the very 19. La. R.S. § 17:10.5 (A)(1) (emphasis elected office as vice president of the East Baton Rouge Parish School Board. He began his foundation of good citizenship. added). 20. Id. §§ 10.6 & 10.7. professional career as a law clerk to Louisiana 21. Paige and Witty, supra note 2 at 15. Supreme Court Associate Justice Bernette The opinions expressed herein are the 22. See, generally, Will Sentell, “BESE Votes Joshua Johnson. (P.O. Box 14626, Baton Rouge, author’s alone and do not necessarily to Takeover Eight Failing EBR Schools,” The LA 70898) represent those of his employer. Advocate, Jan. 15, 2009, at A1. 23. Cowen Report, supra note 9 at 10.

LouisianaLouisiana BarBar JournalJournal Vol.Vol. 59,59, No.No. 55 343343 Jurisdiction and Choice of Law Issues in OCS Oil Spill Cases

By David W. Robertson

344 February / March 2012 s is widely known, the Act, 1 U.S.C. § 3, defines the term vessel by the admiralty courts’ recognition of United States District Court as “every description of watercraft or other the superior authority of Congress15 and for the Eastern District of artificial contrivance used, or capable of (conversely) by OPA’s and OCSLA’s Louisiana presently harbors a being used, as a means of transportation provisions acknowledging the applicability Aconglomeration of cases arising from the on water.” In 33 U.S.C. § 2701(37), OPA of maritime law. OPA explicitly preserves April 2010 oil spill into the Gulf of Mexico sets forth the same definition. Stewart v. “admiralty and maritime law” and the from the Macondo well and the drilling rig Dutra Const. Co. held that 1 U.S.C. § 3 federal courts’ admiralty jurisdiction Deepwater Horizon. The court derives its defines vessel “throughout the U.S. Code” “[e]xcept as otherwise provided in this subject matter jurisdiction from a number and “general maritime law.”9 There can be Act.”16 OCSLA provides for “exclusive of federal statutes, including the Oil no reasonable doubt that the Deepwater Federal” governance of matters within its Pollution Act (OPA), 33 U.S.C. § 2717(b); Horizon — drilling for oil while “afloat coverage,17 and it fills gaps in “Federal the Outer Continental Shelf Lands Act upon the navigable waters of the Gulf of laws” by adopting adjacent-state law as (OCSLA), 43 U.S.C. § 1349(b)); the Mexico” and attached to the wellhead only surrogate federal law.18 It goes without grant of federal question jurisdiction, 28 by a “5,000-foot string of drill pipe”10 — saying that OPA is “Federal laws” for U.S.C. § 1331; the Limitation of Liability fell squarely within the section 3 definition. OCSLA purposes. General maritime law Act, 46 U.S.C. § 30511(a); the Admiralty is also a major part of the “Federal laws” Extension Act, 46 U.S.C. § 30101(a); An Established Choice of cross-referenced by OCSLA.19 and the grant of admiralty and maritime Law Hierarchy jurisdiction, 28 U.S.C. § 1333(1). No single A Profound Dissenter provision in this list covers everything that The Supreme Court’s decisions is before the court, but the broadest is the establish that the potential sources of In the June/July 2011 Louisiana admiralty grant. substantive law governing an admiralty Bar Journal (Volume 59, Number 1), case are first, federal legislation; then Louisiana State University Paul M. Vessel-Related Oil Spills general maritime law (federal maritime Hebert Law Center Chancellor Emeritus into Navigable common law); and then supplementary and professor of law John J. Costonis Water Fall Within state law.11 This hierarchy is as applicable presented a provocative argument that it would be better policy to exclude Admiralty Jurisdiction to a vessel-related OCS oil spill case as to any other admiralty case. For oil spill cases, admiralty jurisdiction and maritime law this puts OPA, 33 U.S.C. §§ 2701 et seq., at from any role in the treatment of pollution Lawyers familiar with maritime law will 20 1 the top of the stack. Enacted in 1990 in the damages from OCS-originated oil spills. regard the above subtitle as a truism. Direct The space available to Professor Costonis confirmation is found in Supreme Court aftermath of the Exxon Valdez catastrophe, OPA is “comprehensive marine oil spill prevented full development of his policy- oil-spill decisions — see, Exxon Shipping 12 2 legislation.” OCSLA, 43 U.S.C. §§ 1331 based reasoning, but it can be inferred Co. v. Baker and Askew v. American that he fears application of maritime law Waterways Operators, Inc.3 — as well as et. seq., dates from 1953 with significant amendments in 1978.13 Because OCSLA will somehow impede Congress’s aims in numerous oil-spill decisions from the 21 4 is older, less comprehensive, and less as expressed in OPA and OCSLA. We courts of appeals. There is no basis in have just seen, though — in the two reason or legal doctrine for thinking that specific respecting oil spill liability than OPA,14 OPA will presumably control in the subsections just above — that the federal a vessel-related spill into the waters over admiralty courts and Congress have striven the Outer Continental Shelf (OCS) is any event of any conflict. Either statute will necessarily displace anything in maritime for harmony among the three relevant less an admiralty matter than a spill into bodies of law, and that there is a default high seas beyond the OCS or into state common law deemed inconsistent with the 5 statute’s provisions. hierarchy in place for dealing with direct waters inshore of the OCS. conflicts. At this point, it is not clear why OPA, OCSLA and Federal Professor Costonis is not satisfied with Deepwater Horizon those safeguards. I understand that his Was a Vessel Maritime Law Are Designed policy arguments against maritime law for Mutual Cooperation, Not will be further developed in forthcoming The Deepwater Horizon was a MODU Hierarchical Struggle publications. (mobile offshore drilling unit).6 OPA Professor Costonis acknowledges that provides in 33 U.S.C. § 2701(18) that A choice-of-law hierarchy becomes his proposal to oust admiralty jurisdiction MODUs are vessels. The Supreme Court crucial only when potentially applicable from the OCS oil-spill realm is inconsistent seems to regard the vessel status of MODUs provisions of different bodies of law are with current law,22 but he believes that as firmly established,7 and the 5th Circuit in irreconcilable conflict. Respecting proper regard for the 1978 amendments has repeatedly emphasized this.8 OPA, OCSLA and maritime law, the to OCSLA — coupled with a new-and- Section 3 of the Rules of Construction potential for such conflict is minimized Continued next page

Louisiana Bar Journal Vol. 59, No. 5 345 Continued from page 345 improved understanding of three Supreme Court decisions — could (and should) lead to changes in the law.23 None of these arguments is persuasive. First, the part of the 1978 amendments to OCSLA that might have lent support to the Costonis proposal was repealed in 1990.24 Professor Costonis is left with only the 1978 expansion of the coverage of 43 U.S.C. § 1333(a)(1) from “artificial islands and fixed structures” to “artificial islands, and all installations and other devices permanently or temporarily attached to the seabed.” As Professor Costonis notes, the purpose of this change was to bring MODUs under OCSLA coverage.25 Professor Costonis believes that the 1978 Congress meant also to take MODUs out of vessel status,26 but he Third, the Costonis proposal rests Court took pains to make clear that its does not tie that belief to anything in the in major part on a radically revised holding and reasoning were limited to fixed statute’s language or to anything explicit understanding of Rodrigue v. Aetna Cas. & platforms and did not extend to vessels. 36 in the legislative history.27 When 43 U.S.C. Sur. Co. and concomitantly of OCSLA’s The majority opinion states: § 1333(a)(1) is laid alongside section 3 of legislative history. The legislative history the Rules of Construction Act, 1 U.S.C. shows with great clarity that the OCSLA- Offshore oil rigs are of two general § 3, the relatively obvious conclusion is enacting Congress debated fiercely over sorts: fixed and floating. Floating that MODUs are both OCSLA situses whether the newly opened OCS should structures have been treated as 44 and vessels, and so the 5th Circuit has be relegated to adjacent-state law or swept vessels by the lower courts. consistently held.28 It should also be entirely into federal maritime law before remembered that OPA defines MODUs ultimately determining that the right answer On the vessel status of MODUs, the 37 as vessels.29 was neither. Instead, Congress decided to dissenters emphatically agreed: Second, while Professor Costonis leave maritime law where it was — i.e., to correctly reads the Supreme Court’s make no changes to admiralty jurisdiction “Floating” petroleum rigs are Grubart decision30 to predicate admiralty — and to fill gaps in extant federal law by classified as vessels in admiralty tort jurisdiction on a showing that the adopting adjacent-state law “as surrogate jurisprudence . . . . It must be 38 activity bringing about the injury had federal law.” In deciding that injuries emphasized . . . that in admiralty law, “a substantial relationship to traditional to workers on fixed OCS platforms were the classification of a structure as maritime activity,”31 his leap from Grubart governed by adjacent-state surrogate law “floating” turns only on its capacity to the assertion that admiralty jurisdiction rather than maritime law, the Rodrigue to float, and not on the relevance of over the Deepwater Horizon spill is lacking court emphasized throughout its opinion buoyancy to its typical use or its unless “OCS oil drilling is a traditional that admiralty jurisdiction could not reach state at the time of an injury. Many maritime activity”32 is probably wrong. these accidents because they occurred on “floating” offshore petroleum rigs 39 Foremost Ins. Co. v. Richardson held that “artificial islands” and were thus excluded are so classified because they are a collision between two pleasure boats from admiralty under “conventional [i.e., floated to their drilling sites; but 40 had “a sufficient nexus to traditional pre-OCSLA] admiralty principles.” once there, they are elevated above maritime activity”33 despite the fact that Professor Costonis’s invocation of the water and supported by legs that 45 pleasure boating — largely a post-World Rodrigue as authority for rejecting rest on the ocean floor. War II phenomenon34 —was certainly admiralty jurisdiction over vessel-related not itself a traditional maritime activity. oil spills into navigable waters seems to Herb’s Welding’s endorsement of the Moreover, Professor Costonis’s belief that stretch the decision past the breaking point. vessel status of jacked-up drilling rigs OCS oil drilling is not of itself a maritime Fourth, Professor Costonis ignores seems to ensure the vessel status of the activity collides almost head-on with a 5th key passages in Herb’s Welding, Inc. v. Deepwater Horizon, which was fully afloat 41 Circuit tenet that “[o]il and gas drilling Gray. In the course of holding that the while drilling. The fatal flaw at the heart 42 on navigable waters aboard a vessel is LHWCA did not apply to an accident of Professor Costonis’s proposal is its recognized to be maritime commerce.”35 on a “fixed offshore oil-drilling platform insistence on ignoring the long-established in state territorial waters,”43 the Supreme fixed platform/vessel distinction. If for

346 February / March 2012 no other reason, on that ground alone the of Liability Act and the Robins Dry Dock rule. See nonmaritime. Section 1333(a)(2)(A) has always proposal seems destined to fail. H.R. Rep. No. 101-653, at 103 (1990), reprinted in been and remains limited by its terms to “artificial 1990 U.S.C.C.A.N. 779, 781 (Conf. Rep.). islands and fixed structures,” thus excluding 17. 43 U.S.C. § 1333(a)(1). MODUs. Congress’s decision to leave § 1333(a) FOOTNOTES 18. 43 U.S.C. § 1333(a)(2)(A). (2)(A) unchanged was purposive. See Robertson, 19. See Tennessee Gas Pipeline v. Houston supra note 13, 38 J. Mar. L. & Com. at 504-06. 1. For the doctrinal basis, see, e.g., Jerome B. Casualty Ins. Co., 87 F.3d 150, 154 (5 Cir. 1996): 28. See, e.g., Demette, 280 F.3d at 498-99 Grubart, Inc. v. Great Lakes Dredge & Dock Co., “While OCSLA was intended to apply to the full (citing two cases); Houston Oil & Minerals Corp. 513 U.S. 527, 534 (1995); Tagliere v. Harrah’s range of disputes that might occur on the OCS, v. American International Tool Co., 827 F.2d 1049, Illinois Corp., 445 F.3d 1012, 1014 (7 Cir. 2006) it was not intended to displace general maritime 1052-53 (5 Cir. 1987) (citing five post-1978 cases). (Posner, J.). law. This is clear from both the statute itself and See also In re Oil Spill, 2011 WL 3805746 at *3-4. 2. 554 U.S. 471, 489-90 (2008). holdings of this court. According to the statute, 29. 33 U.S.C. § 2701(18). 3. 411 U.S. 325, 328 (1973). Cf. United States ‘this subchapter shall be construed in such a 30. Supra note 1. v. Locke, 529 U.S. 89, 99, 103 (2000). manner that the character of the waters above 31. Grubart, 513 U.S. at 534. 4. See, e.g., Gabarick v. Laurin Maritime the outer Continental Shelf as high seas and the 32. 59 La. B.J. at 30 (emphasis added). (America), Inc., 649 F.3d 417, 421 (5 Cir. 2011); right to navigation and fishing therein shall not be 33. 457 U.S. 668, 674 (1982). In re Ballard Shipping Co., 32 F.3d 623, 624-25 affected [43 U.S.C. § 1332(2)].’ Furthermore, 43 34. Prebl Stolz, “Pleasure Boating and (1 Cir. 1994); Union Oil Co. v. Oppen, 501 F.2d U.S.C. § 1333(f) makes clear that the applicability Admiralty: Erie at Sea,” 51 Calif. L. Rev. 661 & 558, 559, 561-62 (9 Cir. 1974); Oppen v. Aetna of OCSLA law under 43 U.S.C. § 1333(a) shall n. 1 (1963). Ins. Co., 485 F.2d 252, 253, 254-57 (9 Cir. 1973). not give rise to any inference that other provisions 35. Theriot v. Bay Drilling Corp., 783 F.2d 527, 5. The Oppen cases, supra note 4, involved a of law (such as general maritime law) do not also 538-39 & n. 11 (5 Cir. 1986) (citing two supporting spill originating on the OCS. apply. It is not surprising, therefore, that this court 5th Circuit cases, distinguishing Herb’s Welding 6. See Jefferson Block 24 Oil & Gas, L.L.C. has declared that where [the OCSLA provision and Rodrigue as “fixed platform” cases, and v. Aspen Insurance UK Ltd., 652 F.3d 584, 591 adopting adjacent-state law as surrogate federal noting that Director, OWCP v. Perini North River (5 Cir. 2011). law] and general maritime law both could apply, Ass’n, 459 U.S. 297 (1983), classified virtually all 7. See the discussion of Herb’s Welding, Inc. v. the case is to be governed by maritime law [citing work on vessels as “maritime employment” for Gray, 470 U.S. 414 (1985), infra text & nn. 41-45. three Fifth Circuit cases].” LHWCA purposes). 8. See, e.g., Demette v. Falcon Drilling Co., 20. See supra note 9. 36. 395 U.S. 352 (1969). 280 F.3d 492, 498 & n. 18 (5 Cir. 2002) (stating 21. See, e.g., 59 La. B.J. at 29 & nn. 13-15. 37. See Warren M. Christopher, “The Outer that it “is beyond dispute” that a jacked-up rig is a 22. See id. at 29 & nn. 1-10 (describing the Continental Shelf Lands Act: Key To a New vessel); Diamond Offshore Co. v. A&B Builders, arguments for admiralty jurisdiction over the Frontier,” 6 Stan. L. Rev. 23, 37-43 (1953); Inc., 302 F.3d 531, 543 n. 12 (5 Cir. 2002) (“a Macondo/Deepwater Horizon spill as “potent” Robertson, supra note 13, 38 J. Mar. L. & Com. at semi-submersible drilling rig . . . is undisputably and mentioning “judicial reluctance to disturb 493-95, 506-09, 531-34. a vessel.”). Demette and Diamond were partially settled admiralty understandings” and “familiar 38. Rodrigue, 395 U.S. at 357. overruled on other grounds by Grand Isle general maritime law categories and reasoning” as 39. The term “artificial island” is used in the Shipyard, Inc. v. Seacor Marine, LLC, 589 F.3d impediments to his proposal). Rodrigue court’s very first sentence, id. at 352, 778, 788 & n. 8 (5 Cir. 2009) (en banc). 23. In addition to relying on the three decisions and the entire opinion is permeated with that term 9. 543 U.S. 481, 490 (2005). The Stewart discussed in the text below, Professor Costonis cites and synonyms such as “stationary platform” (id. at court’s validation of 1 U.S.C. § 3 as a general- Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207 354) and “fixed structures” (id. at 355). purpose definition should trump anything in the (1986), and Chevron Oil Co. v. Huson, 404 U.S. 40. Id. at 361. works of Lewis Carroll. But see John J. Costonis, 97 (1971). See 59 La. B.J. at 29 n. 11. Costonis 41. 470 U.S. 414 (1985). “The Macondo Well Blowout: An Admiralty quotes brief dicta from both cases. But neither 42. 33 U.S.C. §§ 901 et seq. Tort?,” 59 La. B.J. 28, 29 & n. 21 (2011). case involved the kind of overlapping admiralty 43. 470 U.S. at 416. 10. In re Oil Spill, 2010 WL 3805746 at *3 and OCSLA coverage presented by the Deepwater 44. Id. at 416 n. 2 (citations omitted). (E.D. La. Aug. 26, 2011). Horizon disaster. Tallentire held that admiralty 45. Id. at 428 n. 1 (Marshall, Brennan, 11. See Exxon Shipping Co., 554 U.S. at jurisdiction — and not OCSLA — applied to a Blackmun, and O’Connor, JJ., dissenting) 489-90; Grubart, 513 U.S. at 545-46; Miles v. helicopter crash into the Gulf that killed fixed- (citations omitted). Apex Marine Corp., 498 U.S. 19, 27 (1990); East platform workers “miles away from the platform.” River Steamship Corp. v. Transamerica Delaval, 477 U.S. 219. Huson involved an accident “on an David W. Robertson is 476 U.S. 858, 864-65 (1986); Mobil Oil Corp. v. artificial island drilling rig” (404 U.S. 98) that was W. Page Keeton Chair in Higginbotham, 436 U.S. 618, 625 (1978); Romero not within admiralty jurisdiction (see id. at 101-02, Tort Law and University 103-04 & n. 7). v. International Terminal Operating Co., 358 U.S. Distinguished Teaching 24. See supra note 14. 354, 373-74 (1959). Professor, University of 12. David W. Robertson, “The Oil Pollution 25. See 59 La. B.J. at 29 & n. 16. Texas at Austin, and Act’s Provisions on Damages For Economic 26. See id. at 29 & nn. 16-17. he is of counsel to the Loss,” 30 Miss. C.L. Rev. 157, 158 (2011). 27. Professor Costonis cites a congressional 13. See David W. Robertson, “The Outer committee report describing the 1978 change to Baton Rouge law firm Continental Shelf Lands Act’s Provisions on § 1333(1)(a) as “meant to restate and clarify and of Dué, Price, Guidry, Jurisdiction, Remedies, and Choice of Law,” 38 not change [the] law” in ostensible support of a Piedrahita & Andrews, J. Mar. L. & Com. 487, 493-95, 497-98 (2007). bold inference that the 1953 version of § 1333(a) P.A. Professor Robertson 14. See Costonis, supra note 9, 59 La. B.J. 29 (1) included MODUs in the category of “fixed teaches and writes about torts, admiralty and & n. 20 (noting that Title III of OCSLA, which structures.” Id. at 29 n. 16. The inference is maritime law, and the law of the Outer Continental directly addressed OCS oil spills, was repealed by implausible, for several reasons: (a) MODUs did Shelf. The views expressed in this article are Congress in 1990 in the course of enacting OPA). not exist in 1953; (b) the 1953 statutory language based on decades of academic study, research 15. See, e.g., Miles, 498 U.S. at 27 (“Congress was “artificial islands and fixed structures,” and it and scholarship, but they also reflect work that retains superior authority in these matters.”). seems weird to call a MODU an artificial island; Robertson has recently undertaken as a consulting 16. 33 U.S.C. § 2751(e). The coverage of and (c) the 1978 Congress did not change § 1333(a) expert for the Plaintiffs’ Steering Committee in the OPA’s “otherwise provided” caveat is probably (2)(A),which is the provision that might be read Macondo/Deepwater Horizon litigation. (727 East to label certain OCS situses as presumptively limited to OPA’s displacement of the Limitation Dean Keeton St., Austin, TX 78705)

Louisiana Bar Journal Vol. 59, No. 5 347 Association Actions Secret santa... specialization

2011 Secret Santa Project a Success! 777 Children Assisted

he Louisiana State Bar Southeast Spouse Abuse Program, El Yo Association/Louisiana Bar Yo Head Start, Jefferson Parish Head Foundation’s Community Start Program, Children’s Special Health Action Committee would like Services Region IX, Children’s Special Tto thank all legal professionals who Health Services New Orleans Region, participated in the 2011 Secret Santa Children’s Bureau, CASA of Terrebonne, Project. CASA of Lafourche, CASA of New Because of the generous participants Orleans, North Rampart Community throughout the state — from “adopting” Center and Metropolitan Center for Santas and from monetary donations Women and Children. — 777 children, represented by 13 This was the 15th year for the Secret social service agencies in five Louisiana Santa Project. Several of the children parishes, received gifts. send “thank you” cards and drawings to These children were represented by St. their “Santas.” Thank you to everyone John the Baptist, Boys Hope Girls Hope, that participated!

Louisiana State Bar Association President James J. Davidson III was on hand as gifts were being delivered to the Bar Center from several legal professionals. Photo by Danielle E. Boveland.

Louisiana State Bar Association Secretary Richard K. Leefe, left, and Immediate Past President Michael A. Patterson, right, were on hand as gifts were being delivered to the Bar Center. Photo by Danielle E. Boveland.

348 February / March 2012 Attorneys Qualify as Board- LSBA Staff Member Receives Outstanding Paralegal Award Certified Specialists onjanita LSPA member for exhibiting outstanding In accordance with the requirements of C. Jordan, paralegal skills in her profession and in the Louisiana Board of Legal Specialization, executive her community. as approved by order of the Louisiana secretary/ She has completed the business/ Supreme Court, and in accordance with Sofficer liaison in computer skills program at the Rule 7.2(c)(5) of the Louisiana Rules the Louisiana State Opportunities Industrialization Center of Professional Conduct, the following Bar Association’s of Ouachita, Inc. and the paralegal Louisiana State Bar Association members Member Outreach certification program at the University have satisfactorily met the established and Diversity of New Orleans, among others programs criteria and are qualified as board-certified Department, is the Sonjanita C. Jordan and workshops. specialists in the following areas for a five- recipient of the Jordan has volunteered to serve various year period which began Jan. 1, 2012, and Louisiana State Paralegal Association’s programs, including the University of will end on Dec. 31, 2016. (LSPA) 2011 Outstanding Paralegal of New Orleans’ Team Teach Program and the Year Award. the Paralegal Studies Program. She also Estate Planning and Jordan, serving as LSPA’s district chairs the Employment Committee and Administration Law director for the New Orleans area and serves on the Paralegal Advisory Board Linda S. Melancon...... Prairieville chair of the Professional Development of Herzing University and is a member of Laura Walker Plunkett...... New Orleans Committee, was nominated by a fellow the New Orleans Paralegal Association. Betty A. Raglin...... Lake Charles

Family Law Jeffrey W. Bennett...... Harahan Lawyer Specialization Andrea Ducote Aymond...... Marksville

Tax Law Available in Five Areas Christian N. Weiler...... New Orleans he Louisiana Board of Legal and the examination is administered: Carl J. Servat III...... Harahan Specialization (LBLS) is ► Estate Planning and Administration accepting applications for Law — 18 hours of estate planning law. The Louisiana Board of Legal 2013 certification in business ► Family Law — 18 hours of family Specialization (LBLS) was established in Tbankruptcy law, consumer bankruptcy law. 1993 by the Louisiana Supreme Court to law, estate planning and administration ► Tax Law — 20 hours of tax law. assist consumers in finding a lawyer who law, family law and tax law. ► Bankruptcy Law — CLE is has demonstrated ability and experience in Deadline for accepting applications regulated by the American Board of specialized fields of law. To become board for estate planning and administration, Certification, the testing agency. certified in accordance with the Plan of family law and tax law certification is Regarding applications for business Legal Specialization, an attorney must be April 16, 2012. Applications for the two bankruptcy law and consumer bankruptcy an active member of the Louisiana State areas of bankruptcy law will be accepted law certification, although the written Bar Association, have a minimum of five through September 2012. test(s) is administered by the American years of full-time practice, demonstrate In accordance with the Plan of Legal Board of Certification, attorneys should substantial experience in the specialty area Specialization, any Louisiana State apply for approval of the Louisiana Board and pass a written examination. Presently, Bar Association member who has been of Legal Specialization simultaneously the five areas of law for which the LBLS engaged in the practice of law on a full- with the testing agency in order to avoid is offering certification are business time basis for a minimum of five years delay of board certification by the LBLS. bankruptcy law, consumer bankruptcy may apply for certification. The five- Information concerning the American law, estate planning and administration year practice requirement must be met Board of Certification will be provided law, family law, and tax law. for the period ending Dec. 31, 2012. A with the application form(s). To apply for certification, contact further requirement is that each year a To receive an application, contact LBLS Executive Director Megan Landry, minimum of 35 percent of the attorney’s LBLS Executive Director Megan Landry, email [email protected] or call practice must be devoted to the area of email [email protected] or call (504)619-0128 or (800)421-5722, ext. certification sought. (504)619-0128 or (800)421-5722, ext. 128. For more information, go to the In addition to the above, applicants 128. For more information, go to the LBLS’s website at www.lascmcle.org/ must meet a minimum CLE requirement LBLS’s website at www.lascmcle.org/ specialization. for the year in which application is made specialization.

Louisiana Bar Journal Vol. 59, No. 5 349 lawyAssistanceers By J.E. (Buddy) Stockwell Asking for help

s the executive director of the of successfully treating diseases such as Lawyers Assistance Program, Lawyers Assistance alcoholism, addiction and depression, and Inc. (LAP), I am always Program, Inc. (LAP) even share recovery stories by those who trying to envision new and wish to contribute. betterA methods to encourage lawyers, Your call is absolutely Some of the happiest and most produc- judges and their family members to feel confidential as a matter of law. tive people I know in the legal profession comfortable about contacting LAP for found their way to LAP and received the confidential help with problems such as Toll-free (866)354-9334 help they needed. Their prior path of pain alcoholism, drug addiction, compulsive Email: [email protected] and hopelessness has been transformed gambling, sex addiction, depression and into a happy and healthy journey of re- other mental disorders. However, it is covery and hope. They have successfully not an easy task because most of us resist your way out of alcoholism or chemical escaped the darkness and isolation they asking for help with these problems until brain diseases. As such, the self-reliance previously suffered. a crisis has been reached. that previously served lawyers and judges U.S. Supreme Court Justice Louis The reasons for resisting help are nu- so well can be their total undoing because Brandeis once said, “Sunlight is the best merous. For one thing, there is the myth it blocks the path to help. disinfectant,” and that holds true for that asking for help is a sign of weak- In the end, fear is at the core of why dispelling old stigmas that impede one’s ness. In fact, however, asking for help most people are reticent to reach out for ability to seek help for alcoholism, ad- empowers people because it allows them help. While an internal struggle over diction, depression and other diseases. I to face chronic problems head-on, instead “seeking help” versus “maintaining am hopeful that future LAP articles will of being stuck in a quagmire of secret secrecy and hoping for the best” rages help shine light into the darkest corners misery. It also is a myth that smart and within the individual in trouble, time of the subject matters at hand and, by so successful people don’t need help. As any is of the essence more than that person doing, reduce fears and foster a greater great leader will tell you, it is sometimes imagines. Sadly, it is common that an trust in the simple premise that asking LAP necessary to rely on the expertise of others individual will resist seeking help until for help can literally make the difference to successfully solve a problem. the problem becomes a full-blown crisis. between life and death. Lawyers and judges are particularly By procrastinating and not seeking help In the meantime, if you think you have resistant to the concept of seeking help, early on, more serious consequences (or are concerned about someone else especially for a personal problem. As accumulate and the road to recovery regarding) a problem with alcohol, drugs, professionals, we are not accustomed to becomes more arduous. In the worst depression or any other mental condition, surrendering to anything. This is not sur- scenarios, the inability to seek help costs contact LAP without delay. Your call is prising given our training. In law school, the person his or her life. These deaths are absolutely confidential as a matter of we developed intellectual stamina and not publicized, but they are happening law and you do not even have to give analytical skills that afford us legitimate nonetheless — right here, right now and your name. Whether you need immedi- academic confidence. While practicing within our legal profession. ate help or want general information on law, we gained well-earned confidence It is my goal to reduce the fear of what help is available, call LAP toll free in complex problem solving. Simply put, asking for help and encourage members at (866)354-9334 or email your inquiry as lawyers and judges, we are trained to of the Louisiana State Bar Association to [email protected]. handle problems, not suffer problems. and their families to feel comfortable in Our admirable attributes of indepen- seeking assistance from LAP before a J.E. (Buddy) Stockwell dence and tenacity serve us well right up crisis occurs. The Louisiana Bar Journal is the executive director of the Lawyers As- until we suffer a personal problem that has graciously invited me to be a regular sistance Program, Inc. can’t be outsmarted. Alcoholism, drug contributor on behalf of LAP and that (LAP) and can be reached addiction, depression and other physio- will certainly be invaluable in helping at (866)354-9334 or via logically-based chemical brain diseases work toward that goal. To that end, I email at LAP@louisianalap.com. simply can’t be defeated with analytical plan to share ongoing information about skills and confidence. You can’t “lawyer” LAP, facts about the ongoing sciences

350 February / March 2012 quality of Life By Mackie Shilstone Benefits of Omega-3 Fatty Acids

or many in the legal profession, clotting and inflammation response. This is Heart Association recommends 500 mg of their lives revolve around long the opposite effect of Omega-3. As Omega-3 combined EPA and DHA for those without a days at the office and eating on can help make the blood more fluid, promot- history of heart disease, 1,000 mg if there is a the run. Combine that with little ing bleeding, Omega-6 works to make the history of heart disease, and 2,000-4,000 mg For no exercise and it is a recipe for disaster. blood thicker, or more “sticky” as it is often of combined EPA and DHA for individuals I see it every day in my clients. So much referenced. Sources of Omega-6 include with a high triglceride level (blood fat) under so that it is the reason I wrote my recently oils from seeds, beans and grains. You also medical supervision. Remember, supple- released book, Stop Renting Your Health. consume Omega-6 through fast food and ment intake should be based on your health Own It — A Three-Step Approach. It focuses pre-packaged foods because they are cooked needs and can interact with prescription on a three-step approach to healthy living, in these types of oils. Too much Omega-6 in drugs you are taking. Always consult your including passion and motivation, a fitness your body is thought to be a factor in heart physician prior to taking a new supplement. cure and a Rx diet and supplement plan. disease, diabetes, autoimmune and inflam- Knowing your ratio of Omega-6 to One of the more important sections is mation diseases, depression, dementia and Omega-3 also can help you determine if you the discussion of Omega-3 fatty acids (fish other chronic diseases. have an appropriate balance of Omega-6 and oils). Adding this to your diet can make a big The key is to strike a healthy ratio of Omega-3. One test to consider is a simple difference in your health by countering the Omega-6 and Omega-3 in your system. I finger prick home blood test that will give effects of Omega-6 fatty acids in your body. recommend a ratio of Omega-6 to Omega-3 you the results you need. Test information Emerging research by the scientific com- of 4-2 to 1. Unfortunately today, it is esti- can be found at www.omega3test.com; if munity supports the notion that Omega-3 mated that many Western diets have a ratio you enter “NORDIC3” in the offer code can benefit almost any area of the body, of Omega-6 to Omega-3 fatty acids from box during checkout, you can get this test including the cardiovascular system, the 15-30 to 1. at a significantly reduced rate. circulatory system, metabolism and cogni- To achieve the recommended ratio, it is tive function. One example of research is best to cut out fast food and pre-packaged Mackie Shilstone is execu- a recent study in the December 2011 issue foods and instead eat freshly prepared foods tive director of the Fitness Principle at East Jefferson of Diabetes Care by the American Diabetes so you can control the ingredients. That will General Hospital. He can be Association that concluded low doses of cut down on your Omega-6 fatty acids. I reached at (504)457-3100. Omega-3 for diabetes patients with a high then recommend you eat two-to-four serv- For more information on risk of heart disease reduced their risk for ings (about 4 ounces each) of cold-water, his Executive Wellness In- stitute, visit www.ejgh.org/ fatal heart attacks and arrhythmia-related fatty fish per week. If you do not consume thefitnessprinciple. events. these servings per week, you may want to Let’s examine what Omega-3 fatty ac- consider a high-quality fish oil supplement ids are and why we need them. Omega-3 that contains EPA and DHA. The American is considered an essential fatty acid. The human body can manufacture most of the fats it needs, including cholesterol, saturated fatty acids and monounsaturated fatty acids. A Fresh Perspective However, Omega-3 and Omega-6 are not made by the body and must, therefore, On Your Case be obtained through diet or supplements. Omega-3 includes eicosapentaenoic acid (EPA) and docosahexaenoic acid (DHA) that helps promote an anti-inflammatory response in the system. Primary sources of Omega-3 are cold-water fish such as salmon, mackerel and sardines. Omega-6 also plays an important func- Mediation | Jury Focus Groups | Special Master tion in the body by assisting with blood www.tomfoutzadr.com

Louisiana Bar Journal Vol. 59, No. 5 351 Crossword Puzzle By Hal Odom, Jr. admission to the union

1 2 3 4 5 6 7 ACROSS DOWN

1 With 24 Across, momentous event 1 Statutory privilege on immovable of April 30, 1812 (9) (or sometimes movable) property (4) 8 9 6 It’s certain, to a Cajun (3) 2 Catering to an affluent clientele (7) 8 Ambiguous word meaning both 3 Common word in legal footnotes (3) “come after” and “result from” (5) 4 At all times (6) 9 ___ C.C. Claiborne, First governor 5 Like the eye in the Great Seal (3-6) 10 11 12 of Louisiana (7) 6 Former name of cable TV’s Syfy 10 Chronic sickness (6) channel (3-2) 12 Popular brand of mineral water (5) 7 Language such as Italian or French (7) 13 14 15 13 Antebellum (6) 11 1819 treaty that finally established 14 ___ Derbigny, First justice of Louisiana’s western boundary at the 16 Louisiana Supreme Court (6) Sabine River (5-4) 17 William B. ___, Virginia senator 13 Beauty contest (7) 17 18 19 who first introduced bill (1810) 15 Meet unexpectedly (3, 4) for 1+24 Across (5) 16 Clear part of blood (6) 20 19 Unverifiable urban tale (6) 18 State of great uncertainty (5) 21 Used to flavor amaretto (7) 20 Like most Easter eggs (4) 21 22 22 Animal associated with Easter (5) 22 Insect on Napoleon’s coat of arms (3) 23 Excessively (3) 24 See 1 Across (9)

23 24 Answers on page 389.

Alcohol and Drug Abuse Hotline Director J.E. (Buddy) Stockwell III, 1(866)354-9334 Ste. 31, 1011 N. Causeway Blvd., Mandeville, LA 70471 • e-mail [email protected]

Alexandria Steven Cook...... (318)448-0082 Lake Charles Thomas M. Bergstedt...... (337)558-5032

Baton Rouge Steven Adams...... (225)753-1365 Monroe Robert A. Lee.....(318)387-3872, (318)388-4472 (225)924-1510 David E. Cooley...... (225)753-3407 New Orleans Deborah Faust...... (504)304-1500 John A. Gutierrez...... (225)715-5438 Donald Massey...... (504)585-0290 .(225)744-3555 Dian Tooley...... (504)861-5682 (504)831-1838 Houma Bill Leary...... (985)868-4826 Shreveport Michelle AndrePont ...... (318)347-8532 Lafayette Alfred “Smitty” Landry...... (337)364-5408, Nancy Carol Snow...... (318)366-1820 (337)364-7626 William Kendig, Jr...... (318)222-2772 Thomas E. Guilbeau...... (337)232-7240 .(318)572-8260 (cell) James Lambert...... (337)233-8695 Steve Thomas...... (318)872-6250 .(337)235-1825

The Lawyers Assistance Program, Inc. provides confidential assistance with problems such as alcoholism, substance abuse, mental health issues, gambling and all other addictions.

352 February / March 2012 Louisiana Bar Journal Vol. 59, No. 5 353 FocusProfessionalism on By Michelle Beaty-Gullage Chess, Anyone?

awyers are expected (and required by the Rules of Pro- fessional Conduct) to conduct themselves professionally at all Ltimes. How many of us actually review the Rules of Professional Conduct? I would venture a guess it’s not something most lawyers consult on a regular basis. Many of us also feel that professionalism is sort of inherent, built-in and intuitive. We look at professionalism as one of those words that defines itself. Professionalism: To behave professionally. We know we are supposed to advocate for our clients zealously, extend professional courtesies when possible, and refrain from misrepresenting to the court, among other tenets of good behavior. In spite of the codification of rules and that little voice inside that tells us what’s right and wrong, we all see various instances The thrust of the call to a higher stan- in new subjects to learn about issues they of conduct that are clearly unprofessional. dard of professionalism has largely been may find themselves litigating. The most Whether it’s that wrong-headed and nega- couched in terms of improving the image of common complaint (other than the hours) tively toned email that landed in your inbox the legal profession and to encourage public is the bad behavior of other lawyers. It from opposing counsel, belligerent behav- trust in the profession. I would suggest that seems we have lost sight of a couple of ior during a deposition, or playing fast and if more lawyers behaved in accordance with things. First, and foremost, Dean Pound’s loose with the facts in written or oral argu- our adopted creed of professionalism, we observation on what a “profession” is and, ment, we have all seen it. Unfortunately, might all actually enjoy the practice a little secondly, the description of the nature of the this kind of behavior is perceived by some more. That “steep decline” in profession- relationship of legal adversaries given by as a good way to practice law. Civility is alism has not only wreaked havoc on the Shakespeare who wrote that adversaries in difficult, if not impossible, to legislate, and public perception of lawyers but it also has the law “[s]trive mightily, but eat and drink there will be those who comply with the decimated our perception of ourselves and as friends.”3 A strong current of civility is letter but not the spirit of the rules. Even so, the practice, making it, for some, a much supposed to flow unimpeded throughout it is so important to the level of satisfaction less satisfying pursuit. our dealings with each other. That current we experience as lawyers. Dean Roscoe Pound said that a profes- has been reduced to a trickling stream. In 1986, the American Bar Association’s sion is “a group... pursuing a learned art I have heard some argue that the Commission on Professionalism noted that as a common calling in the spirit of public gamesmanship, discourtesy and outright “lawyer professionalism may well be in service — no less a public service because chicanery that are found within the profes- 1 steep decline.” This sentiment, shared by it may incidentally be a means of liveli- sion today are necessary evils. Clients don’t other legal professional associations and hood.”2 In thinking about my own issues want weak lawyers. They want aggressive state bar associations, led to the promulga- with the practice and in talking to colleagues warriors who will fight hard on their behalf. tion of Codes of Professional Conduct in the who also complain of dissatisfaction, the Litigation is war and, as we have been told, states. The Louisiana State Bar Association common theme is not dissatisfaction with all is fair in love and war, right? Wrong. It is adopted its Code of Professionalism in the substance of what we do. I believe not a given that lawyers will lose ground in 1992. It begins: “My word is my bond. I most lawyers truly enjoy the intellectual handling matters by conducting themselves will never intentionally mislead the court challenge of the practice, the challenge of with some measure of grace and civility. or other counsel. I will not knowingly make finding solutions to clients’ problems, trying Lawyers can conduct themselves in a civil statements of fact or law that are untrue...” cases or the fun of immersing themselves manner without losing one iota of power,

354 February / March 2012 respect or force of argument. You might are on the board. They each have different find yourself benefitting from a percep- abilities as far as where they can go and Code of tion of maturity and thoughtfulness. It is how they can get there but the game is not up to us as professionals to raise the level over until someone’s king is captured. It’s Professionalism of expectation of our clients about this all about strategy, thinking ahead, focus, process. While our litigants’ behavior may diligence, boldness, seeing the big picture ► My word is my bond. I will never have driven them to us in the first place, and civility. Chess, anyone? intentionally mislead the court or other we should take over the wheel once we get counsel. I will not knowingly make statements of fact or law that are un- involved. The ultimate decisions are up to FOOTNOTES them and they may have absolutely no love 1. See American Bar Association Commission true. for their opponent. But, that attitude does on Professionalism, In the Spirit of Public ► I will clearly identify for other coun- Service: A Blueprint for the Rekindling of Lawyer not have to spill over into how counsel sel changes I have made in documents Professionalism, 7 (1986). submitted to me. deal with each other or how we conduct 2. Quoted in Douglas W. Hillman, ourselves in advocating for them. “Professionalism — A Plea for Action!,” 69 Mich. ► I will conduct myself with dignity, While it is true that not all legal disputes B.J. 894, 895 (1990), and in Justice Sandra Day civility, courtesy and a sense of fair O’Connor, “Professionalism,” 76 Wash. U. L.Q. 5 can be resolved through mediation or nego- play. (1998). ► I will not abuse or misuse the law, tiation and that, for those we represent, the 3. William Shakespeare, The Taming of the case may dominate their perspective as the Shrew, Act I, Scene 2. its procedures or the participants in the fight of their lives, the ready acceptance of judicial process. the “war” analogy is, in my humble opin- Michelle Beaty-Gullage is an associate in the ► I will consult with other counsel Metairie office of Blue Williams, L.L.P. She whenever scheduling procedures are re- ion, beneath the calling of our profession. received a BA degree from Duke University in A more suitable analogy might be a chess quired and will be cooperative in sched- 1991 and her JD degree from Tulane Law School uling discovery, hearings, the testimony game. No one screams at or threatens his in 1994. In addition to her involvement in several opponent over a chess board. I have never professional associations, she is a member of the of witnesses and in the handling of the felt the need to curse my opponent when Louisiana State Bar Association’s Committee on entire course of any legal matter. he or she captured my queen. You cannot the Profession. She also serves as an assistant bar ► I will not file or oppose pleadings, examiner in the area of constitutional law. (Ste. conduct discovery or utilize any course lie to or mislead your opponent. The pieces 900, 3421 N. Causeway Blvd., Metairie, LA 70002) are what they are and they are where they of conduct for the purpose of undue delay or harassment of any other counsel or party. I will allow counsel fair oppor- Family Law Practice tunity to respond and will grant reasonable requests for extensions of time. Making you ► I will not engage in personal attacks on other counsel or the court. I will support my profession’s efforts to enforce zzzy?y??? its disciplinary rules and will not make DDiiz unfounded allegations of unethical con- Navigating the Process in St. Tammany, duct about other counsel. ► I will not use the threat of sanctions Jefferson & Orleans Parishes as a litigation tactic. Friday, March 30, 2012 ► I will cooperate with counsel and the Sheraton New Orleans Hotel • 500 Canal St. • New Orleans court to reduce the cost of litigation and will readily stipulate to all matters not killed members of the Bar will focus on the quirks in each parish regarding in dispute. these and other topics you think are important in your venue: obtaining a ► I will be punctual in my communi- divorce; fault trials; determination of entitlement to final support; calculation S cation with clients, other counsel and of support, partition procedure, discovery motions and much more! Join us for a the court, and in honoring scheduled full day of valuable information and earn your required ethics credit too!! appearances. Registration Fees*, Cancellations and Refunds Advance Registration...... $295 Following approval by the Louisiana State Bar After March 23...... $320 Association House of Delegates and the Board On-Site (Seminar Manual automatically included)...... $360 of Governors at the Midyear Meeting, and The fee includes electronic course materials, seminar attendance and coffee/refreshment breaks. approval by the Supreme Court of Louisiana This program has been approved for a maximum of 6 hours of CLE credit, on Jan. 10, 1992, the Code of Professionalism was adopted for the membership. The Code including 1 hour of ethics, and may qualify for Family Law Specialization. originated from the Professionalism and Quality of Life Committee. Register Online: www.lsba.org

Louisiana Bar Journal Vol. 59, No. 5 355 Discipline Reports REPORTING DATEs 12/1/11 & 12/4/11

REPORT BY DISCIPLINARY COUNSEL

Public matters are reported to protect the public, inform the profession and deter misconduct. Reporting date Dec. 4, 2011.

Decisions failing to cooperate with the ODC. of trust account by commingling personal Kenneth Robin Bowen, New Orleans, funds with client funds. Houston Michael Aaron, Baton (2011-B-2015) Interim suspension or- Seth Cortigene, Baytown, TX, (2011- Rouge, (2011-B-1633) Consent six- dered by the court on Oct. 12, 2011. B-1564) Suspension of three years, month suspension, fully deferred, sub- Ronald Patrick Camp, West Mon- fully deferred, subject to probation as ject to one-year unsupervised probation roe, (2011-B-1853) Suspended for six reciprocal discipline identical to that and conditions, ordered by the court on Smonths,chiff fully deferred,, subjectScheckman to a imposed by Texas, ordered &by the courtW hite llp Oct. 7, 2011. JUDGMENT FINAL and two-year period of unsupervised pro- on Oct. 14, 2011. JUDGMENT FINAL EFFECTIVE on Oct. 7, 2011. Gist: Lack bation, ordered by the court on Oct. 7, and EFFECTIVE on Oct. 28, 2011. Gist: Sof chiffdiligence; and failure, toS keepcheckman client 2011. JUDGMENT FINAL and& EFFEC W- Failedhite to communicate llp with a client; informed. TIVE on Oct. 7, 2011. Gist: Improper use settled a legal matter without the knowl- Mazen Younes Abdallah, Houston, - AdviceSchiff and counsel, Scheckman concerning & legal W andhite judicial llp ethics - Schiff, ScheckmanTX, (2011-B-1631) Permanent & disbar - White- Defense llp of lawyer and judicial discipline matters - ment ordered by the court on Oct. 14, Schiff, Scheckman & White llp 2011. JUDGMENT- Advice FINAL and and EFFEC counsel- concerning- legalRepresentation- Adviceand andjudicial counsel in concerning ethics bar admissions legal- and judicial ethicsproceedings - - TIVE on Oct. 28, 2011. Gist: Criminal - Defense of lawyer and judicial discipline matters - - Defense of lawyer and judicial discipline- Advice andmatters counsel concerning - legal and judicial ethics - conviction for conspiracy to commit - Representation- Defense of lawyer in andbar judicial admissions discipline proceedings matters - - - Advice and counselMedicare/Medicaid concerning -fraud. Representation legal and judicial in barethics admissions - proceedings- Representation in bar- admissions proceedings - Sean Daniel Alfortish, Kenner, (2011- eSlie chiff 20 Years Experience, Disciplinaryteven Defensecheckman ulie roWn hite l J. S eSlie chiff S teven checkmanS ulie roWn hiteJ B W - Defense of lawyer and judicial discipline matters - l 117 J. W.SleS lieLandry J. Schiff Street, Opelousas,S Steven LA SS checkman70570 Julie BJroWn WBhite W B-2190) Interim suspension ordered by 20 Years Experience, 20 Years Experience,20 Years Experience, FormerFormerFormer Special Special Special Counsel, Counsel, Counsel, Former Prosecutor,Former Prosecutor, Former Prosecutor, DisciplinaryPhone DefenseDisciplinary 337.942.9771 Defense • FaxJudiciary 337.942.2821Judiciary Commission Commission (1994-2008) (1994-2008)• [email protected] ofOffice Disciplinary of Counsel Disciplinary (1998-2006) Counsel (1998-2006) Disciplinary Defense 117 W. Landry Street Judiciary 829Commission Baronne Street (1994-2008)11404 N. Lake Sherwood Ave., Suite A Office of Disciplinary Counsel (1998-2006) Schiff117 W. Landry, StreetScheckman829 Baronne Street & White11404 N. Lake Sherwood llp Ave., Suite A Opelousas, LA 70570 New Orleans, LA 70113 Baton Rouge, LA 70816 - Representationthe court in onbarchiff Oct. admissions 19, 2011. proceedingscheckman - Opelousas, LA 70570 hiteNew Orleans, LAllp 70113 Baton Rouge, LA 70816 S , S 117 W. Landry Street & PhoneW 337.942.9771 829Phone 504.581.9322 Baronne Street Phone 225.293.4774 11404 N. Lake Sherwood Ave., Suite A PhoneFormer 337.942.9771Fax 337.942.2821Special Counsel, JudiciaryPhoneFax 504.581.7651504.581.9322 Commission (1994-2008)Fax 225.293.6332Phone 225.293.4774 MichaelleS lieRichard J. S chiffBark, Terrytown, StevenOpelousas, Scheckman LA 70570 Fax [email protected] Julie [email protected] Orleans,504.581.7651Wn LA W 70113hite [email protected] 225.293.6332 Baton Rouge, LA 70816 [email protected] Baronne Street, New Orleans,[email protected] LA 70113 [email protected] Phone 337.942.9771 Phone 504.581.9322 Phone 225.293.4774 (2011-B-1737)20 Years Permanent Experience, disbarment Former Special Counsel, - AdvicePhone and 504.581.9322 counsel • concerning Fax 504.581.7651Former Prosecutor, legal • [email protected] and judicial ethics - and restitutionDisciplinary ordered Defense by the court on Judiciary CommissionFax 337.942.2821S (1994-2008)chiff- Defense, Scheckman of Officelawyer ofand Disciplinary judicialFax 504.581.7651 discipline&Counsel W (1998-2006) mattershite - llp Fax 225.293.6332 117 W. Landry Street [email protected] Baronne Street - Representation11404 in N. bar [email protected] admissions Sherwood Ave., proceedings Suite A - [email protected] Former Prosecutor, Office of Disciplinary Counsel (1998-2006) leSlie J. Schiff Oct.S 21,teven 2011.Opelousas, JUDGMENTScheckman LA 70570 FINAL and JulieNew B Orleans,roW LAn W70113hite Baton Rouge, LA 70816 - Advice and counsel concerning legal and11404 judicial N. Lake Sherwood ethics Ave., Suite - A, Baton Rouge, LA 70816 20 Years Experience, FormerPhone Special 337.942.9771 Counsel, FormerPhone 504.581.9322 Prosecutor, Phone 225.293.4774 EFFECTIVE on Nov. 4, 2011. Gist: In- leSlie- Advice J. SPhonechiff and 225.293.4774 counsel concerning•S tevenFax 225.293.6332 Scheckman legal • and [email protected] judicialJulie ethics BroW -n White Disciplinary Defense Judiciary CommissionFax 337.942.2821 (1994-2008) Office of DisciplinaryFax 504.581.7651 Counsel (1998-2006)20 Years Experience, FormerFax Special 225.293.6332 Counsel, Former Prosecutor, - Defense of lawyer and judicial disciplineDisciplinary- DefenseDefense of matters lawyerJudiciary and Commission- judicial (1994-2008) discipline mattersOffice of Disciplinary - Counsel (1998-2006) volved in an investment scheme wherein 117 W. Landry Street 829 Baronne Street 11404 N. Lake Sherwood Ave., Suite A 117 W. Landry Street [email protected] Baronne Street 11404 [email protected] Lake Sherwood Ave., SuiteOpelousas, A LA- 70570Representation in [email protected] Orleans, admissions LA 70113 proceedingsBaton - Rouge, LA 70816 Phone 337.942.9771 Phone 504.581.9322 Phone 225.293.4774 Opelousas, LA 70570 he inducedNew several Orleans, partiesLA 70113- to Representation invest a total inBaton bar Rouge, admissions LA 70816 Fax 337.942.2821 proceedings -Fax 504.581.7651 Fax 225.293.6332 [email protected] [email protected] [email protected] Phone 337.942.9771 of $373,000;Phone issued 504.581.9322 two checks, totaling Phone 225.293.4774 leSlie J. Schiff Steven Scheckman Julie BroWn White Fax 337.942.2821 Fax 504.581.7651 Fax 225.293.6332 20 Years Experience, Former Special Counsel, Former Prosecutor, Disciplinary Defense Judiciary Commission (1994-2008) Office of Disciplinary Counsel (1998-2006) $1,463,200, which were returned due to 117 W. Landry Street 829 Baronne Street 11404 N. Lake Sherwood Ave., Suite A [email protected] [email protected] [email protected] Opelousas, LA 70570 New Orleans, LA 70113 Baton Rouge, LA 70816 Phone 337.942.9771 Phone 504.581.9322 Phone 225.293.4774 insufficient funds in his trust account; Fax 337.942.2821 Fax 504.581.7651 Fax 225.293.6332 leSlie J. Schiff Steven [email protected] Julie [email protected] White [email protected] and failed to cooperate20 Years Experience,in the disciplinary Former Special Counsel, Former Prosecutor, investigation. Disciplinary Defense Judiciary Commission (1994-2008) Office of Disciplinary Counsel (1998-2006) 117 W. Landry Street 829 Baronne Street 11404 N. Lake Sherwood Ave., Suite A Elise M. Beauchamp,Opelousas, LA 70570 Metairie, New Orleans, LA 70113 Baton Rouge, LA 70816 (2011-B-1144) PermanentPhone 337.942.9771 disbarment Phone 504.581.9322 Phone 225.293.4774 Fax 337.942.2821 Fax 504.581.7651 Fax 225.293.6332 ordered by the [email protected] on Sept. 23, 2011. [email protected] [email protected] JUDGMENT FINAL and EFFECTIVE on Oct. 7, 2011. Gist: Neglecting legal matters; failing to communicate with clients; failing to return unearned fees; engaging in conduct involving dishonesty, fraud, deceit or misrepresentation; and

356 February / March 2012 edge or consent of the client; and engaged physician; failed to reduce a contingency was prejudicial to the administration of in dishonest or deceitful conduct. fee agreement to writing; submitted a let- justice. Melanie Smith Daley, Lake Charles, ter of withdrawal to the trial court in which Michelle Alt Hazlett, Hammond, (2011-B-2089) Interim suspension or- he disclosed his opinion of the value of (2011-B-1700) Suspended for six dered by the court on Sept. 28, 2011. his client’s case and misrepresented his months, fully deferred, subject to a Victor A. Dorsey, Harvey, (2011-B- client’s settlement demand; withdrew one-year period of unsupervised proba- 2009) Suspended for a year and a day from representation only a few weeks tion, ordered by the court on Oct. 7, 2011. ordered by the court on Oct. 14, 2011. prior to the scheduled trial; and allowed JUDGMENT FINAL and EFFECTIVE JUDGMENT FINAL and EFFECTIVE a non-lawyer to attend and participate in on Oct. 7, 2011. Gist: Failure to act with on Oct. 14, 2011. Gist: Engaging in the two depositions. reasonable diligence and promptness in practice of law while ineligible to do so Danny L. Guidry, Lafayette, (2011- representing a client; failure to properly as a result of his failure to comply with B-1208) Suspended for one year and communicate with a client regarding the the minimum requirements of continuing one day ordered by the court on Sept. status of the matter; and conduct preju- legal education prescribed by the Louisi- 23, 2011. JUDGMENT FINAL and dicial to the administration of justice in ana Supreme Court. EFFECTIVE on Oct. 7, 2011. Gist: connection with a civil matter. Louis A. Gerdes, Jr., New Orleans, Potential for significant harm to the Joseph W.P. Hecker, Baton Rouge, (2011-B-0200) Suspended for nine public. (2008-DB-004) Public reprimand months, all but three months deferred, Sidney W. Hall, Baton Rouge, (2011- ordered by the Louisiana Attorney followed by one year of supervised B-1025) Suspension for one year, fully Disciplinary Board on Sept. 12, 2011. probation with conditions, ordered by deferred, conditioned upon one-year JUDGMENT FINAL and EFFECTIVE on the court on Oct. 25, 2011. JUDGMENT unsupervised probation with special Sept. 26, 2011. Gist: Engaging in conduct FINAL and EFFECTIVE on Nov. 8, 2011. condition, ordered by the court on Sept. prejudicial to the administration of justice; Gist: Engaged in a conflict of interest by 2, 2011. JUDGMENT FINAL and EF- and failure to cooperate with the Office being substituted as the plaintiff in the FECTIVE on Sept. 16, 2011. Gist: Failed of Disciplinary Counsel. lawsuit after his client’s death; failed to at- to properly communicate with a client Steven Boyd Longo, New Orleans, tend the deposition of his client’s treating regarding his appeal, which conduct (2011-B-1928) Interim suspension ordered by the court on Oct. 14, 2011. chrIstoVIch & KearneY, llp attorneYs at law Continued next page

DEFENSE OF ETHICS COMPLAINTS AND CHARGES KKayay E. DDonnellyonnelly & AssociateAssociatess e. phelps GaY KeVIn r. tullY elIzaBeth s. cordes CeCertiﬁedrtiﬁed CourtCourt ReportersReporters FFullull SServiceervice (504)561-5700 CouCourtrt RReportingeporting FirmFirm CompleteComplete Litigation Support Support 601 poYdras street, suIte 2300 new orleans, la 70130 2424 HOUR HOUR SERVICE SERVICE VVideoideo D Depositionsepositions VideoVideo Confe Conferencingrencing RRealeal T Timeime T Transcriptionranscription Elizabeth A. Alston CompleteComplete Computeri Computerizedzed ServicesServices Counselor, advocate and expert witness ConfeConferencerence RRoomoom Practice limited to matters involving legal and judicial ethics KKnowledgeablenowledgeable Chair, Disciplinary Board, 1991 – 1992 Efficient AV-rated (Martindale-Hubbell) for twenty years Efficient Deedicateddicated Alston Law Firm, LLC 322 West 26th Avenue, Covington, LA 70433 SuiteSuite 2025 2025 Energy Energy CentreCentre Phone: 504.229.8220 985-809-6779 or toll-free: 877-809-6779 11001100 Poydras Poydras Street Street TollFree:Toll Free: 866.301.8220 http://EthicsByAlston.com NewNew Orleans, Orleans, LA 7016370163 Fax:Fax: 504.504.229.8219229.8219 email:email: [email protected]@bellsouth.net

Louisiana Bar Journal Vol. 59, No. 5 357 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 Dec. 1, 2011. Respondent Disposition Date Filed Docket No. Lorraine Adrienne Dupont [Reciprocal] Suspension. 11/15/11 11-2569 Sidney W. Hall [Reciprocal] Suspension. 10/26/11 11-2432 Raven Matthews Pillette Reinstated. 9/26/11 11-808 Clifton John Spears, Jr. [Reciprocal] Suspension. 10/26/11 11-2431 James A. Wood [Reciprocal] Interim suspension. 10/26/11 11-2429

Continued from page 357 Gregory Patrick Nichols, New Or- practice of law, subject to conditions, leans, (2011-B-1538) Suspended for six ordered by the court on Sept. 21, 2011. Ramsey Terry Marcello, New Or- months, fully deferred, subject to a six- JUDGMENT FINAL and EFFECTIVE leans, (2011-OB-1539) Conditional month period of unsupervised proba- on Sept. 21, 2011. admission revoked ordered by the court tion, ordered by the court on Oct. 14, 2011. Dennis J. Vidrine, Opelousas, (2011- on Nov. 16, 2011. JUDGMENT FINAL JUDGMENT FINAL and EFFECTIVE B-1209) Public reprimand ordered by the and EFFECTIVE on Nov. 16, 2011. Gist: on Oct. 28, 2011. Gist: Neglected clients’ court on Oct. 7, 2011. JUDGMENT FINAL Conditional admission to the practice of legal matters; and failed to adequately and EFFECTIVE on Oct. 21, 2011. Gist: law in Louisiana is revoked. He may not communicate with clients. Conflict of interest and filing pleadings submit an application for readmission in Willie J. Nunnery, Madison, WI, containing misrepresentations. no less than 30 months from the date of (2011-B-1309) Disbarment as reciprocal James A. Wood, Baton Rouge, (2011- the court’s order. discipline identical to that imposed by B-1891) Interim suspension ordered by Paul C. Miniclier, New Orleans, Wisconsin ordered by the court on Oct. 21, the court on Sept. 14, 2011. (2011-B-1859) Suspended for three 2011. JUDGMENT FINAL and EFFEC- months, fully deferred, subject to one- TIVE on Nov. 4, 2011. Gist: Repeatedly Admonitions (private sanctions, year unsupervised probation, ordered by failed to diligently pursue his clients’ cases; often with notice to complainants, etc.) the court on Nov. 4, 2011. JUDGMENT failed to keep clients informed and ignored issued since the last report of misconduct FINAL and EFFECTIVE on Nov. 18, 2011. their repeated requests for information on involving: Gist: Knowingly disobeying an obligation their cases; and failed to cooperate in the No. of Violations under the rules of a tribunal; engaging in disciplinary investigation. conduct prejudicial to the administration Anselm Nnaemeka Nwokorie, Mon- Failing to act with reasonable dili- of justice; and violating or attempting to roe, (2011-B-2047) Suspended for six gence and promptness in representing violate the Rules of Professional Conduct. months, fully deferred, subject to a two- a client...... 2 year period of unsupervised probation, ordered by the court on Oct. 21, 2011. Failure to communicate...... 2 Clarification from Office of JUDGMENT FINAL and EFFECTIVE Failing to cooperate with the Of- Disciplinary Counsel on Oct. 21, 2011. Gist: Improper use of fice of Disciplinary Counsel in its trust account by commingling personal investigation...... 1 In the October/November 2011 issue funds with client funds. of the Louisiana Bar Journal (Volume Clifton John Spears, Jr., Alexandria, Settling a potential malpractice claim 59, Number 3), the Office of Disciplinary (2011-B-1135) Suspension for one year with a client without advising the client in Counsel reported that Walter Hunter, Jr. of and one day, fully deferred, conditioned writing of the desirability of seeking and New Orleans had his probation revoked upon two years’ supervised probation allowing the client a reasonable oppor- and was transferred to disability inactive with special conditions, ordered by the tunity to seek the advice of independent status by order of the Supreme Court, court on Sept. 2, 2011. JUDGMENT FI- legal counsel...... 1 effective June 21, 2011. As clarification, NAL and EFFECTIVE on Sept. 16, 2011. Violated the scope of representation this regulatory action did not reference or Gist: Maintained incomplete records of his by entering stipulations contrary to the involve Walter M. Hunter, Jr. of Alexandria trust account, which resulted in a negligent express instructions of his client...... 1 or Walter O. Hunter, Jr. of Shreveport. commingling and conversion of funds. —Charles B. Plattsmier Stephen R. Streete, Lake Charles, TOTAL INDIVIDUALS Chief Disciplinary Counsel (2011-OB-0212) Reinstated to the ADMONISHED...... 3

358 February / March 2012 Client AssistanceFund Fund Payments

Client Assistance Fund Payments - September 2011 Attorney Amount Paid Gist Ronnie K. Banks, Sr. $500.00 #1286 – Unearned fee in a civil matter Michael H. Colvin $8,203.83 #1283 – Conversion in a personal injury matter John D. Conry $9,864.10 #1307 – Conversion in an insurance matter John D. Conry $25,000.00 #1292 – Conversion in an insurance matter John D. Conry $20,700.00 #1295 – Conversion in an insurance matter Victor J. Dauterive, Jr. $250.00 #1281 – Unearned fee in a domestic matter Darien D. Lester $1,000.00 #1313 – Unearned fee in a criminal matter Kenota L. Pulliam $4,000.00 #1265 – Unearned fee in a criminal matter Kevin R. Rees $11,831.96 #1279 – Conversion in a personal injury matter Kevin R. Rees $10,946.44 #1137 – Conversion in a personal injury matter Kenneth F. Sarama $17,400.00 #1040 – Conversion in a tax matter Byrlyne Van Dyke $3,000.00 #1237 – Unearned fee in a criminal matter David C. Willard $1,000.00 #1274 – Unearned fee in a criminal matter Q&ALouisiana Client Assistance Fund What is the Louisiana Client Assistance How do I file a claim? How do I qualify for the Fund? Fund? Because the Client Assistance Fund Clients must be able to show that the The Louisiana Client Assistance Fund Committee requires proof that the lawyer money or property came into the lawyer’s was created to compensate clients who dishonestly took your money or property, hands. lose money due to a lawyer’s dishonest you should register a complaint against conduct. The Fund can reimburse clients the lawyer with the Office of Disciplinary Is there any charge for seeking Client up to $25,000 for thefts by a lawyer. It Counsel. The Disciplinary Counsel’s office Assistance Fund help? covers money or property lost because will investigate your complaint. To file a No. The process is free. a lawyer was dishonest (not because the complaint with the Office of Disciplinary lawyer acted incompetently or failed to Counsel or to obtain a complaint form, Who can, or cannot, qualify for the take certain action). The fund does not pay write to: Disciplinary Counsel, 4000 South Fund? interest nor does it pay for any damages Sherwood Forest Blvd., Suite 607, Baton Almost anyone who has lost money done as a result of losing your money. Rouge, LA 70816-4388. Client Assistance due to a lawyer’s dishonesty can apply Fund applications are available by calling for reimbursement. You do not have to be Does the Fund cover fees? or writing: The Client Assistance Fund, a United States citizen. However, if you The Fund will reimburse fees only in 601 St. Charles Ave., New Orleans, LA are the spouse or other close relative of the limited cases. If the lawyer did no work, 70130-3427, (504)566-1600 or (800)421- lawyer in question, or the lawyer’s busi- fees may be covered by the Fund. Fees are 5722. Applicants are requested to complete ness partner, employer or employee, or in a not reimbursable simply because you are an Application for Relief and Financial business controlled by the lawyer, the Fund dissatisfied with the services or because Information Form. will not pay you reimbursement. Also, the work was not completed. Fund will not reimburse for losses suffered by government entities or agencies.

Louisiana Bar Journal Vol. 59, No. 5 359 Recent Developments ADR to Trusts

early 2011 in an attempt to avoid such the most important was the division of an occurrence. As the months passed the league’s revenue. Under the 2005-11 Alternative without an agreement, and with a lockout agreement, players received 57 percent Dispute seeming imminent, the NBAPA filed suit of basketball-related income (BRI). Fac- to enjoin the league from implementing ing financial hardships during the recent Resolution the lockout. Being unsuccessful in court, economic recession, the league granted the lockout began as the CBA expired at loans to keep teams in its smaller markets 12:01 a.m. on July 1. afloat and was adamant about increasing Competitive Bargaining In October, the NBA and NBAPA its share of the BRI to recover these costs Delays 2011-12 agreed to begin mediation with George and establish a stronger financial situation NBA Season Cohen, the federal mediator who suc- for the future. NBA players offered a cessfully assisted the NFL to negotiate its scheme whereby the BRI would be split Like the National Football League labor dispute. Though several issues were 53/47 between players and owners. NBA (NFL), the National Basketball Associa- up for discussion under the new CBA, Commissioner David Stern, negotiating tion (NBA) functions through the league’s owners agreeing to renewable contracts, or collective bargaining agreements (CBAs), with its players. Also like the NFL, the NBA’s recent agreement with LEARN FROM THE EXPERTS: its players association, the NBA Players’ Association (NBAPA), expired this past FREE SPECIAL 3-HOUR* INTERACTIVE SEMINAR ON year, resulting in a bitter fight between the league’s players and owners. Unlike the MEDICARE ISSUES IN LIABILITY AND NFL mediation, as the parties engaged in negotiations to create a new agreement, WORKERS’ COMPENSATION CASES their respective hard-lined positional bargaining tactics caused the league to A Detailed View of the Medicare Secondary Payer Act, suffer a delayed start to its season that Including Current Medicare Set Asides Practices led to the cancellation of games. The NBA’s most recent CBA was a six- year agreement that began in 2005 and was • RogeR J. LaRue, JD, MBa • ChaRLes Duhe, JD to expire at the end of the 2011 season. By • MiCheLe eaRney, Bs , hCRM • Ms. saLLy staLCup, the fall of 2010, and with the NBA season Region 6 Msp RegionaL CooRDinatoR already underway, discussions to produce • Q & A Panel Discussion a new CBA had failed. Both sides were adamantly opposed to backing down from April 20, 2012 • 9am - Noon • One Lakeway Center their proposed revenue-sharing schemes, 3900 N. Causeway Blvd., Metairie • 2nd Floor Conference Room and NBA Players’ Association President To register, call 800-443-7351 Billy Hunter warned that a lockout was highly likely for the following season. In a lockout, league owners try to financially Celebrating pressure the players in order to obtain the Years upper hand in labor negotiations as the 555 Winderley Place · Suite 300 25 players would be prevented from collect- Maitland, FL 32751 800.397.9412 · www.specialtymetrics.com Offices in Metairie and Baton Rouge ing payments under their contracts. NBA 800.443.7351 · maps-adr.com *3 hours credit and NBAPA officials began meeting in

360 February / March 2012 on behalf of team owners, demanded a counterparts in the NFL had revealed the mediation as a model for the NBA to 50/50 BRI split. secret purchasing of “lockout insurance” amicably resolve its dispute. The league claimed it needed the ex- that would pay the players in the event In an effort to save the season, owners tra 3 percent to break even on revenue. of a lockout, Stern’s show of force was and players resumed negotiations and Players were concerned they would set unmatched by NBA players. Mediation quickly reached a tentative “handshake a dangerous precedent for future CBAs reached an impasse as neither side was agreement” on Nov. 26, ending the lockout if they came down from their already willing to move from its proposed revenue and creating a shortened season to tip off reduced proposed scheme of a 53/47 split. share. On Nov. 13, Stern sent a letter to on Christmas Day. On Dec. 8, 2011, play- The potential money involved added up NBA players directly, asking them to ers and owners signed a 10-year CBA, to $1 billion over the course of a 10-year approve a CBA passed by owners based allowing both parties an “opt out” option agreement. on their offer of a 50/50 BRI split. The after the sixth year. As is frequently the Hunter and the NBAPA gambled that, following day, the players unanimously case in negotiation, the side willing to by acquiescing to the NBA’s requests on voted down the proposal in a strong walk away from the table can wield this issues such as contract lengths and free showing of solidarity. Though this vote power to pressure the other side into an agency earlier in negotiations, the players mitigated the effects of Stern’s attempt agreement. By showing that it was willing would find themselves in a better posi- to grab power, it led to another standstill to cancel games, and potentially the entire tion to obtain a more favorable share of in CBA negotiations. season, the league compelled its players BRI in the latter stages. The gamble did Just as it seemed that the entire season into giving ground on their biggest issue, not pay off for Hunter. By making these would be cancelled, internal and external resulting in the players yielding to the early concessions, the players had given pressures breathed new life into nego- NBA’s demand of a 50/50 BRI split. up issues to trade with later in discussing tiations. Though both sides continued to revenue sharing. Having already reached pursue legal maneuvers in court, players —Michael S. Finkelstein agreement on smaller issues, Stern po- were still not collecting payments under 2nd-Year Student, LSU Paul M. Hebert sitioned the league to capitalize on its their contracts, league finances were be- Law Center Civil Mediation Clinic stronger bargaining position. ing further frustrated with lost revenue Under the Supervision of Without putting a proposal on the table from cancelled games, and the Occupy Paul W. Breaux, Adjunct Clinical by a self-imposed Oct. 28 deadline, and Wall Street movement contextualized fan Professor, and by cancelling games through the month of frustrations against the wealthy owners Chair, LSBA Alternative Dispute November, Stern showed the players that in a public relations battle. Furthermore, Resolution Section the owners were resolute in their position the league risked losing support from its 16643 S. Fulwar Skipwith Rd. and unwilling to back down. While their fans, who pointed to the successful NFL Baton Rouge, LA 70810

CARDONE LAW FIRM A PROFESSIONAL LAW CORPORATION Select Referrals Concentrating In: • NURSING HOME LIABILITY • MEDICAL MALPRACTICE • SERIOUS PERSONAL INJURY & WRONGFUL DEATH AV RATED State-wide practice with ofﬁ ces located in NEW ORLEANS • WESTBANK • METAIRIE 829 Baronne St., New Orleans, LA 70113 CLIFFORD E. CARDONE [email protected] (504)522-3333 • fax (504)581-7651

Louisiana Bar Journal Vol. 59, No. 5 361 by a deed of trust on the property. They Consequently, the 5th Circuit determined later defaulted on the note and the deed of that the conditions for the recovery of trust. The Velazquezes filed a petition for attorney fees had been fulfilled. The 5th Bankruptcy relief under Chapter 13 of the United States Circuit additionally stated that in conclud- Law Bankruptcy Code, and Countrywide filed a ing that Countrywide was entitled to the proof of claim in the bankruptcy including fees requested in the fee application, the $200 in “Post-Petition Bnk. Atty. Fees” as question of whether Countrywide was part of the arrearage portion of the claim. obligated to file a fee application pursuant Recovery of Attorney Fees Countrywide later filed a fee application to Rule 2016 was moot. seeking approval of the same $200 plus In re Velazquez, 660 F.3d 893 (5 Cir. $150 for fees incurred in the “preparation Equitable Mootness 2011). and prosecution of the Fee Application.” Countrywide Home Loans Servicing, In its decision, the 5th Circuit recognized In re Idearc, Inc., 662 F.3d 315 (5 Cir. L.P., sought to recover attorney fees it that “[a] home lender’s ability to collect 2011). incurred in connection with the Chapter 13 fees and costs from a Chapter 13 debtor’s The Spencer ad hoc Equity Committee bankruptcy case of Lawrence and Tracy Ve- bankruptcy estate is governed, in the first appealed an order of the district court deny- lazquez. Countrywide additionally sought instance, by the language of its loan docu- ing its appeal of the confirmation order of a determination that recovery of those fees ments.” In re Rangel, 408 B.R. 650, 655 the reorganization plan of the debtor Idearc, did not require compliance with Federal (Bankr. S.D. Tex. 2009). Countrywide Inc. on equitable mootness grounds. The Rule of Bankruptcy Procedure 2016. argued that the bankruptcy and district Spencer Committee additionally appealed The bankruptcy court determined that courts misinterpreted certain sections of the district court’s denial of its motion for Countrywide was not entitled to recover the deed of trust, one section of which a de novo trial on its fraud claims. The 5th the attorney fees in question, and as Coun- entitled Countrywide to “do and pay for Circuit affirmed, determining that the mat- trywide had complied with Rule 2016, whatever is reasonable or appropriate to ter was controlled by equitable mootness. there was no justiciable issue concerning protect Lender’s interest in the Property Idearc filed a voluntary petition under whether Rule 2016 applied. The district and rights under this Security Instrument.” Chapter 11 of the United States Bankruptcy court subsequently affirmed, but the 5th The 5th Circuit devoted a large part of its Code on March 31, 2009. The day before Circuit concluded that Countrywide was discussion to the interpretation of the word the hearing on confirmation of the plan, the entitled to recover the fees applied for in “and” in this section and concluded that, in Spencer Committee filed objections to the its application and determined that the this instance, the meaning of “and” should confirmation hearing, making allegations bankruptcy and district courts misconstrued be construed as “either or both” in order of fraud and seeking a jury trial. An order a contract provision concerning the avail- to reflect the clear intent of the parties. confirming the plan was entered on Dec. ability of attorney fees. The court, therefore, The bankruptcy and district courts had 22, 2009, and the Spencer Committee reversed and remanded the matter. interpreted “and” as being a conjunctive filed a notice of appeal in the district court The Velazquezes had executed a note for requirement, therefore limiting the recovery concerning the confirmation order. The the purchase of a home, which was secured of fees to a narrow set of circumstances. district court granted Idearc’s motion to

6513 Perkins Rd. Ste. 101 Baton Rouge, LA 70808 (225)223-6714 1606 Saint Mary St., Ste. C Scott, LA 70583 (337)233-4210 www.brysonlawfirm.com

362 February / March 2012 dismiss the appeal on the ground of equi- ing, Inc., 542 F.3d 131, 136 (5 Cir. 2008)). table mootness and denied the motion of Assessing these factors, the 5th Circuit the Spencer Committee for a trial de novo recognized that the Spencer Committee’s concerning its fraud claims. motion for a stay had been denied. The 5th Family The issue before the 5th Circuit was Circuit also acknowledged that the plan Law whether the doctrine of equitable mootness had been substantially consummated, and was properly applied by the district court explained that the relief requested by the in dismissing the Spencer Committee’s ap- Spencer Committee did not “outweigh the peal of the bankruptcy court’s confirmation disturbance that would occur to the success Custody order. The 5th Circuit stated that the court of the reorganization and to third parties....” must look to three factors when evaluating Further, it was determined that the relief Angelette v. Callais, 10-2279 (La. App. 1 equitable mootness: requested by the Spencer Committee would Cir. 5/6/11), 68 So.3d 1122. adversely affect the success of the plan or Ms. Callais alleged the trial court erred (i) whether a stay has been obtained, the rights of third parties who were not in not ordering Mr. Angelette to accom- (ii) whether the plan has been “sub- before the court. modate the child’s dance and cheerleading stantially consummated,” and (iii) practices and activities during his custodial whether the relief requested would —Tristan E. Manthey time and in not addressing these matters in affect either the rights of parties not Chair, LSBA Bankruptcy the custody plan. The court found no error before the court or the success of Law Section and further found he was not required to the plan. and pay for dance and cheerleading because Kendra M. Goodman she, not he, wanted the child involved and The “ultimate inquiry,” the 5th Circuit Member, LSBA Bankruptcy because she made the decision to participate asserted, was “whether the court can grant Law Section at the extent involved. The trial court did relief without undermining the plan.” Heller, Draper, Patrick & Horn, L.L.C. not err in not ordering mediation because Quoting Bank of N.Y. Trust Co. NA v. Pac. Ste. 2500, 650 Poydras St. Ms. Callais did not request a mediation Lumber Co. (In re Scopac), 624 F.3d 274, New Orleans, LA 70130 order. There was no error in not ordering 281 (5 Cir. 2010) (citing In re SI Restructur- him to participate in future counseling ses-

JAMES A. KOERBER, CPA/ABV, CVA, CFE, CFF BRIAN D. SCHMITTLING, CPA/ABV, CVA, CFE, CFF ROBERT D. KING, JR., CPA, CVA, CFE JEFFREY E. TINNON, CPA, CVA, CFE, CFF LISA R. BERNARD, CPA, CVA, CFE, CFF EMILY K. MONTGOMERY, FIRM ADMINISTRATOR

• Business Valuation Services • Lost Profit Analysis • Family Law Services • Calculation of Damages • Personal Injury/Wrongful Death • Intangible Asset • Forensic Accounting • Shareholder Disputes Valuations

103 Madison Plaza • Hattiesburg, MS 39402 • Toll Free 888.655.8282 • www.koerbercompany.com

Louisiana Bar Journal Vol. 59, No. 5 363 sions for the child because the counselor Child Support While the trial court’s averaging of the par- testified that the child’s issues had been ties’ CPAs’ calculations of his income for mostly resolved, and there was no error in Hall v. Hall, 11-0060 (La. App. 5 Cir. the past three years, then averaging those not ordering him to pay for private school 5/24/11), 67 So.3d 635, writ denied, 11-1752 two numbers, was “not usually desirable,” expenses because Ms. Callais presented no (La. 10/14/11), ____ So.3d ____. it was “within the range of reasonable al- evidence that private school was needed. The court of appeal, relying on the trial ternatives,” as the trial court did not have to court’s credibility determination regarding accept one party’s version to the exclusion Granger v. Granger, 11-0077 (La. App. 3 Mr. Hall’s claim as to his income, agreed of the other’s. Although the trial court used Cir. 6/15/11), 69 So.3d 666, writ denied, with the trial court that he could set his a “disfavored” mathematical extrapolation 11-1882 (La. 9/16/11), 69 So.3d 1152. salary at any amount he chose and that he by multiplying the highest child support Notice of a proposed relocation by hand failed to show that his income had decreased Guideline amount by the factor by which delivery was acceptable, even though the since the original child support judgment he Mr. Guidry’s income exceeded that amount, statute requires certified mail, because Mr. sought to modify. However, because Ms. the trial court also considered and discussed Granger got timely and proper details of Hall was making $1,400 per month more the child’s needs. Further, because the the proposed move and the trial court con- than at the time of the previous judgment, resulting number was not prejudicial to a sidered the failure to give statutory notice the trial court did not err in granting him substantial right of either party, the court of in its judgment. The previous judgment a reduction of $700. The opinion failed to appeal would not review and determine the restraining the mother from moving was address his arguments that the Guidelines child support amount de novo. Moreover, not res judicata because custody judgments had to be used and that the trial court had Mr. Guidry could clearly afford the child are never final and are always subject to to state reasons for deviating from what the support that was set. modification. Because Mr. Granger gave Guideline calculation would have been. It no reasons why he should have been named also found that his argument that because Spousal Support the custodial parent, and because there were child support was decreased, his share of good reasons for the move to California, the uncovered medical expenses also had Horrigan v. Horrigan, 10-1377 (La. App. relocation was affirmed. The joint custody to be decreased to be proportionate to the 1 Cir. 6/14/11), 70 So.3d 111, writ denied, and alternating weekend arrangements parties’ incomes was “incorrect,” stating that 11-1596 (La. 10/7/11), 71 So.3d 325. were continued in place because the parties “there is no statutory requirement that all Even though the 102 divorce action had sufficient means to fly the child back uncovered medical expenses of the minor was abandoned for failure to file a rule for and forth every other weekend. child must be allocated in proportion to the a divorce in two years, a consent judgment reached before the abandonment requiring parties’ share of income.” Griffith v. Latiolais, 11-0166 (La. App. 3 Mr. Horrigan to pay spousal support of

Cir. 6/1/11), 70 So.3d 71. Dejoie v. Guidry, 10-1542 (La. App. 4 Cir. $1,500 per month for 10 years was enforce- Although Ms. Latiolais was the domi- 7/13/11), 71 So.3d 1111. able because he knew what he was agreeing ciliary parent, the trial court did not err On this rule to increase child support, to when he signed it, and it did not terminate in setting forth an implementation order because of Mr. Guidry’s self-employment when the divorce action was abandoned with 14 provisions that she objected to and the fact that the matter took three years because this ancillary issue was resolved and no longer pending. as compromising her authority. La. R.S. to get to trial, the trial court did not err in 9:335(B)(3) allows the trial court to place averaging his last three years of income to conditions on the domiciliary parent’s establish that a change in circumstances Property decision-making authority. had occurred since the original judgment. Laird v. Laird, 46,459 (La. App. 2 Cir. 6/22/11), 69 So.3d 1173. Summary judgment finding that an inter-

est in an LLC was not community property Ask about

℠ was reversed because there were genuine FasTrac Mediation issues of fact. The husband transferred his

3 Hour Limit interest to his partner shortly before the wife Fixed Fee filed for divorce; the partner transferred the

DAVID S. COOK interest back to him several months later and two accountants’ notes showed it was MEDIATOR being held for the husband by his partner. Over 2,000 Mediations A judgment denying summary judgment No charge for travel throughout the State of Louisiana and denying an exception of res judicata

is interlocutory and cannot be appealed or (337) 234-4155 designated as a final appealable judgment,

even as an answer to a proper appeal by the other party.

364 February / March 2012

Dray v. Bendily, 46,452 (La. App. 2 Cir. principal, not one-half of the total amount. he had not sold it. She was not entitled to 6/22/11), 69 So.3d 1200. The court of appeal reversed, finding that it pre-judgment interest on the proceeds of the Ms. Dray’s petition to partition the was unable to determine the amount of the sale that he received and kept or on legal parties’ community property, which was principal paid and the number of months, fees and costs he received from his law served on Mr. Bendily, included an order and remanded for the trial court to make practice after the community terminated that both parties file detailed descriptive that determination. because they were not classified as com- lists within 45 days. She subsequently filed munity property until the judgment and her detailed descriptive list, and then took Becnel v. Becnel, 10-1011 (La. App. 5 Cir. because Reinhardt v. Reinhardt, 748 So.2d a preliminary default against Mr. Bendily, 5/24/11), 70 So.3d 20. 423 (La. 1999), controlled. The trial court which she later confirmed. After he filed Ms. Becnel was not entitled to the value had ordered that Mr. Becnel’s claim that he motions to set aside the default and for Hibernia stock would have had at the time owed his brother a community property debt a new trial, which were denied, the court of trial if Mr. Becnel had not sold it in of $100,000 be held open for further proof, of appeal found that she had established a 2000, despite an injunction not to dispose but the court of appeal vacated the order prima facie case supporting her descriptive of community property and La. Civ.C. art. because he failed to prove the claim at trial. list through documents and testimony and 2369.3’s obligation to preserve community that his failure to traverse her valuations property in a manner consistent with its use Milton v. Milton, 10-1589 (La. App. 1 Cir. and classifications was a concurrence. The prior to the termination of the regime. He did 5/9/11), 71 So.3d 326, writ denied, 11-1168 court of appeal held that while one may file not “mismanage” the property, she should (La. 9/16/11), 69 So.3d 1150. a rule to show cause if the other party does have sought relief for his selling the stock The trial court’s refusal to allow Mr. not timely file a descriptive list, the entry of in violation of the injunction prior to the Milton to cross-examine Ms. Milton on a default judgment is also a proper remedy. partition proceeding, and her damages were issues beyond the scope of her direct On his assignment of error that the trial court “too speculative.” She was owed one-half examination was erroneous, but because awarded her reimbursement for community of the dividends he received from the stock he did not make a proffer regarding her funds paid on his separate mortgage, he ar- between the termination of the community testimony and because no substantial right gued that she was entitled to reimbursement and Mr. Becnel’s sale of the stock, but not of his was affected, the error was harmless. only for one-half of the amount paid for the to dividends that may have been earned if Although he brought 60 dairy cattle into

In a word, Precise.

Financial Damage Analysis It’s more than just beIng rIght. It is also about timing and the attention

Discovery Assistance given to the smallest of details. This is why so many of Louisiana’s most prominent law firms

Business Valuations continue to choose to work with Bourgeois Bennett. Not only do we offer the highest level

Expert Testimony of expertise that is expected of an accounting firm that has been a leader since 1923, but our Insurance Claims full-time Forensic Accounting and Litigation Consulting Services Group continues our legacy of Commercial Litigation excellence. Bourgeois Bennett is always ready with sound advice and expert testimony. Call us Class Action Administration today and let our professional staff give your case the attention it deserves — while dotting Fraud and Embezzlement Investigations every “i” and crossing every “t.”

New OrleaNs 504.831.4949 NOrth shOre 985.246.3022 hOuma 985.868.0139 thibOdaux 985.447.5243

Louisiana Bar Journal Vol. 59, No. 5 365 the marriage as his separate property, he 12, 2004, a date five months and two was not entitled to reimbursement for their days hence. use to benefit the community because the Insurance, Tort, The parents contested the expulsion milk produced and the proceeds from the Workers’ recommendation, and the school system sale thereof were natural and civil fruits, Compensation & conducted a preliminary hearing by a which were community property. He also Admiralty Law committee composed of the director claimed reimbursement for the value of of the School Board’s Attendance and his separate property land and dairy barn Census Department and six school used during the community to benefit the Tort: Due Process in School system administrators. The committee community, but this claim was also rejected Disciplinary Proceedings recommended expulsion, but only until because the “value” of the land was not Dec. 19, 2003, because the “[parents] did used as required by La. Civ.C. art. 2367. He Christy v. McCalla, 11-0366 (La. not know that they could call witnesses” was also not entitled to wages for working 12/6/11), ____ So.3d ____. and, before the hearing was scheduled, on the dairy farm after the termination of Senior Justin Christy was attending a Andrew Heacock, a witness, had asked the community because a co-owner is not class at Captain Shreve High School when to come to the hearing. entitled to payments for his management a 750 ml. bottle of whiskey fell from his Twenty-five days later, the full unless there is a management plan agreed backpack and broke on the floor. Referred School Board took up the matter. Christy to by the co-owners to provide for wages. to Marvin Hite, the school’s disciplinary testified, presenting his full defense and His only relief would have been under the administrator, Christy claimed he did calling Andrew Heacock, who claimed law of unjust enrichment, but the court of not know that the whiskey was in his responsibility for the whiskey being in appeal found that it did not apply under backpack or how it got there. He was Christy’s backpack. One School Board these facts. The court of appeal found that arrested by the school’s Shreveport Police member allegedly “expressed disbelief the number of community cows at the time security officer for underage possession of Andrew’s overall claim... and that of trial should have been 43 instead of 163. of alcohol. Shortly thereafter, Christy’s Justin was unaware that the bottle was Because the change in the value of the cows friend, Andrew Heacock, Student Council in his backpack.” The full School Board would significantly change the possible president, came forward claiming that voted 9-2 to expel Christy. Rather than allocation of assets and debts, the court of he had planted the whiskey in Christy’s appealing to the district court under the appeal remanded for a reallocation and the backpack. An informal hearing was held provisions of La. R.S. 17:416(C)(5), determination of an equalizing payment. by Hite and Larry Anderson (a school Christy’s mother filed suit against the district supervisor for child welfare and School Board, alleging that it violated —David M. Prados discipline) with Christy and his parents. Christy’s right to due process and Member, LSBA Family Law Section Anderson concluded that Christy should imposed an “excessive and irrational Lowe, Stein, Hoffman, Allweiss be expelled from Captain Shreve and punishment,” causing “extreme mental & Hauver, L.L.P. placed at Hamilton Terrace Learning anguish and distress, grief, humiliation Ste. 3600, 701 Poydras St. Center, an alternative school, until March and inconvenience.” She further alleged New Orleans, LA 70139-7735 Christopher Moody Mediator Chris has over 32 years of experience in personal injury, medical malpractice, commercial litigation and general law, representing both plaintiffs and defendants.

His mediator experience includes a wide array of multi-party, complex legal, and commercial issues.

Christopher M. Moody of Moody & Johnson Also hosting Mediations in Hammond and Covington

HAMMOND 225.389.9899 • Fax 22.5389.9859 203 East Thomas Street • Hammond, LA 70401 721 Government Street, Suite 102 COVINGTON Baton Rouge, Louisiana 70802 222 North Vermont Street • Covington, LA 70433 DISPUTE SOLUTIONS www.perrydampf.com

366 February / March 2012 that the disciplinary process was tainted “I should have called Heacock. I didn’t in his backpack. However, losing on the because the school system had prevented call him.” Anderson testified that he felt merits of one’s claim does not equate to a Heacock from explaining that he, not he had sufficient information to make a denial of due process.” Christy, was responsible for the whiskey disciplinary recommendation and did not Justice Knoll mounted a vigorous five- bottle. Following a bench trial, the district need to hear from Heacock. page dissent, chiding her colleagues for court, concluding that it had “no problem The court found that despite these focusing on the procedural aspects of the at all finding liability,” awarded Christy “less-than-exemplary effort(s) by school case to the neglect of attention to Christy’s $50,000. The court of appeal affirmed administrators,” Christy failed to show delictual claim. She concluded, “This Court (3-2) on liability and damages. The a due process deprivation by those who regularly cautions appellate courts not to decisions at trial and on appeal hinged ultimately determined his discipline, the lightly overturn the factual findings of the largely on the failure at the two preliminary superintendent and the School Board. trial court: ‘Because the discretion vested hearings to allow or disclose Andrew Although the school administrators might in the trier of fact is so great, and even vast, Heacock’s testimony and the perceived not have rendered all process due to Christy an appellate court should rarely disturb its inappropriateness of the punishment. by not considering Heacock’s explanation findings on review.’... I believe in this case Writing for the Supreme Court’s directly from the source (an issue the court we would be best served in taking our own majority, Justice Weimer pretermited the declined to decide), to recover in tort for a cautionary advice.” School Board’s procedural arguments, deprivation of due process for an expulsion, finding that “Justin failed to carry his Christy had to prove injury that was caused —John Zachary Blanchard, Jr. burden of proving that the School Board by the School Board. The court stated Past Chair, LSBA Insurance, Tort, denied him due process in rejecting his that Christy’s trial evidence proved only Workers’ Compensation version of events and disciplining him.” “that he lost in his effort to persuade the and Admiralty Law Section Applying the duty-risk analysis ingrained School Board that he was not responsible 90 Westerfield St. in Louisiana tort law to determine whether for bringing a bottle of whiskey to school Bossier City, LA 71111 liability exists, the court concluded: “The school system... has a duty under the Due Process Clause of the federal constitution Mediation Arbitration to not arbitrarily suspend or expel a child.” ...the The School Board correctly pointed out leader that, by law, school personnel may suspend in mapsProfessional Systems, Inc. resolution but cannot expel a student. Under La. R.S. 17:416, school personnel are empowered 800.443.7351 866.769.4553 800.397.9533 [email protected] to take only the first step in a two- or New Orleans, LA Baton Rouge, LA Jackson, MS www.maps-adr.com three-step process. Under the first step, a school principal may suspend any student who commits one of the enumerated maps welcomes to our panel: offenses, including “possess[ing] alcoholic beverages.” To expel a student requires a hearing conducted by the superintendent’s designee to determine the facts and find whether the student’s conduct warrants expulsion, after which “the superintendent, or his designate, shall determine whether such student shall be expelled” or other action taken. At trial, there were admissions of improper handling of the preliminary disciplinary proceedings. Hite testified,

Watch the LSBA Children’s Law Committee video,

Louisiana Foster Care: An Introduction Justice E. Joseph Bleich (Ret.) online at Mediator/Arbitrator/Special Master www.lsba.org/fostercare

Louisiana Bar Journal Vol. 59, No. 5 367 cific regional free-trade agreement. Japan, small- and medium-sized enterprise com- Canada and Mexico notified their intent mitments to address the specific concerns International to join the negotiations in November. If and needs of smaller businesses; and (3) Law successful and inclusive of Japan and the market access and services coverage in North American Free Trade Agreement the digital economy and green technology (NAFTA) partners, the TPP will serve sectors. as the most comprehensive and inclusive free-trade agreement to date. World Trade Organization Trans-Pacific Partnership The proposed TPP includes various Agreement “next-generation” issues that have not Eighth Ministerial Conference, Geneva, been included to a significant degree Switzerland (Dec. 15-17, 2011). Negotiations have intensified between either in the World Trade Organiza- The World Trade Organization (WTO) the United States and eight countries tion multilateral trade regime or in the held its Eighth Ministerial Conference in (Australia, Brunei Darussalam, Chile, various bilateral or regional free-trade Geneva, Switzerland, from Dec. 15-17, Malaysia, New Zealand, Peru, Singapore agreements. Some of the cross-cutting 2011. The Ministerial Conference is the and Vietnam) to form the Trans-Pacific issues include: (1) regulatory coherence highest decision-making body in the Partnership (TPP) agreement. The TPP between the customs authorities in the organization. The WTO has been stuck agreement is the first proposed U.S.-Pa- regional trade bloc to facilitate trade; (2) in neutral as the Doha Development Agenda, initiated in 2001, continues to lag. WTO members continue to disagree over various core Doha issues, including, inter alia, the scope of non-agricultural market Continuing Legal Education access for developed country products, In the legal community the more you know, the faster you’ll get changes to agricultural-support programs ahead. That’s why the Louisiana State Bar Association offers a variety around the world and the measure of spe- of seminars on a wide range of legal topics. Enrolling in them will help you cial and differential treatment available stay competitive and keep up with the ever-changing laws. The Continuing for developing countries. This is a critical Legal Education Program Committee sponsors more than 20 programs each year, meeting for the organization, as many ranging from 15-hour credit seminars to one-hour ethics classes. Check online for the most up-to-date list of upcoming seminars at www.lsba.org/CLE. observers believe a failure to harvest even minimal agreement could foster greater protectionism and a loss of confidence in Mark your calendars! the multilateral trading system. Upcoming LSBA CLE Seminars United States-Certain Country of Origin Family Law CLE March 30, 2012 Labeling (COOL) Requirements, WT/ New Orleans DS384/R & WT/DS386/R (Nov. 18, 2011). Bankruptcy Law CLE A WTO dispute-settlement panel April 13, 2012 recently issued an opinion on a long- New Orleans standing complaint by Mexico and Canada regarding certain aspects of U.S. French Quarter Fest CLE: Country of Origin Labeling (COOL) re- 4th Annual White Collar quirements. Canada and Mexico sought Crime Symposium consultations, and ultimately requested a April 13, 2012 panel, in 2008 regarding portions of the New Orleans mandatory COOL requirements contained in the Agriculture Marketing Act of 1994, Elder Law & Trusts CLE April 17, 2012 as amended by the 2008 Farm Bill. U.S. New Orleans COOL laws require retail outlets to inform consumers of the country of origin Jazz Fest CLE of certain commodities, including beef April 27, 2012 ® and pork. The U.S. originating mark is New Orleans reserved for animals exclusively born, raised and slaughtered in the United States. Beef or pork derived from livestock exported to the United States for feed and

368 February / March 2012 immediate slaughter is excluded. 494, 498 (5 Cir. 2007), cert. denied, 128 Canada and Mexico alleged that certain S.Ct. 2508 (2008)). Pre-Garcetti employ- COOL requirements discriminate against Labor and ment speech was subject to the Pickering their livestock in breach of numerous Employment test, where the government balanced a WTO obligations, including violations of Law public employee’s interests in speaking the Technical Barriers to Trade (TBT) and as a citizen on matters of public concern Sanitary and Phyto-sanitary Agreements. with the government’s interests as an The panel concluded that COOL consti- employer in promoting efficiency in the tutes a measure under the TBT agreement Are Government public services it performs. Garcetti adds and that, while the United States does Employee Speech Rights another layer to this analysis. have the right under WTO rules to adopt Stronger Under Louisiana In two summary judgment motions filed COOL requirements, the manner in which months apart in the same case addressing the regulations are implemented provide Constitution? employee speech rights under the Louisi- less favorable treatment to Canadian and ana and U.S. constitutions, a federal judge Generally, courts interpret citizen rights Mexican livestock. Despite the fact that determined speech protections under the under the Louisiana Constitution similarly the United States was found in violation Louisiana Constitution without mention to that of the U.S. Constitution. At least of its WTO obligations, the panel decision of Garcetti or job duties, while the deci- one recent publicized decision regarding has been applauded by many consumer sion regarding the First Amendment was speech rights, albeit a federal court deci- and industry groups here because it rec- decided based on Garcetti. The motions sion, makes one wonder if the protection ognizes the basic WTO-consistency of were filed in van Heerden v. Board of Su- is even more robust under the state rather labeling laws and requirements. pervisors in the Louisiana Middle District, than the federal constitution. case 10-155. van Heerden was an LSU The differences in speech protection —Edward T. Hayes hurricane researcher who criticized the between the two constitutions revolve Member, LSBA International U.S. Army Corps of Engineers for levee around whether a Garcetti analysis is re- Law Section failures following Hurricane Katrina. LSU quired under the Louisiana Constitution. In Leake & Andersson, L.L.P. administrators asked him to refrain from Garcetti v. Ceballos, 126 S.Ct. 1951 (2006), Ste. 1700, 1100 Poydras St. speaking on that issue, but van Heerden the U.S. Supreme Court determined that New Orleans, LA 70163 continued to do so. When LSU refused the government can restrict the speech of to extend his employment contract, he public employees when employees com- alleged retaliation under the Louisiana ment on issues required in their “official Whistleblower Act (La. R.S. 23:967) and duties” (Nixon v. City of Houston, 511 F.3d 42 U.S.C. § 1983, a federal claim.

Louisiana State Bar Association presents 4th Annual White Collar Crime Symposium Friday, April 13, 2012 New Orleans Marriott Hotel, 555 Canal St. • New Orleans th This program has 29 Anniversary of the French Quarter Fest been approved for a Celebrate – 4 days of music, food, special events and fun – April 12-15, 2012. Save the dates for the largest FREE music festival in the South! maximum of 7 hours of CLE credit, his year’s festival will feature over 275 hours of free music across 18 stages throughout the historic including 1 hour of French Quarter. With over 800 local musicians, every genre is represented. From traditional and ethics. Tcontemporary jazz, to rhythm and blues, New Orleans funk, Zydeco, to brass bands, folk, opera and gospel, there is truly something for everyone. Festival-goers are also invited to participate in other free activities throughout the three-day weekend and are encouraged to explore all that French Quarter Festival has to offer. For more information, view the agenda, or register online, visit: www.lsba.org/CLE

Louisiana Bar Journal Vol. 59, No. 5 369 In the first summary judgment decision, on another summary judgment motion appears to be a Garcetti analysis that there the court addressed whether van Heerden’s addressing van Heerden’s § 1983 claim was no Louisiana whistleblower claim for employer violated the state whistleblower predicated on LSU violating van Heerden’s an employee who disclosed wrongdoing statute and speech rights under the Louisi- First Amendment speech rights. van because the “reports were required as part ana Constitution. Judge Brady found that Heerden v. Board of Supervisors, 10-155 of his normal duties.” Id. at 1090. there were issues of fact whether LSU had (10/20/11), 2011 WL5008410. Judge In Matthews’ writ application (2008 WL violated van Heerden’s speech rights in Brady expressed concern that applying 2149843) to the Louisiana Supreme Court, violation of Louisiana Constitution article Garcetti to an academic under these facts Matthews argued the following: 1) apply- I, § 7, which prohibits state actors from could lead to “a whittling-away of academ- ing Garcetti to the whistleblower statute “curtail[ing] or restrain[ing] freedom of ics’ ability to delve into issues or express eviscerates it; 2) the U.S. Supreme Court in speech or of the press” and states that “[e] opinions that are unpopular, uncomfortable Garcetti envisioned whistleblower statutes very person may speak, write and publish or unorthodox.” He held, however, that to make up for a lack of constitutional his sentiments on any subject.” van Heerden’s speech “outside the chain speech protection; and 3) the Louisiana Judge Brady examined van Heerden’s of command” to legislative bodies and to whistleblower statute lacks language that statements prior to and after LSU ordered the public through his book was not part would except from its protection speech him not to make any further comments or of his official job duties. Thus, even ap- that is part of an employee’s job duties. He provide testimony regarding whether the plying Garcetti, summary judgment was also presented a scholarly argument that Corps had failed to adequately construct precluded. Louisiana constitutional speech protec- and maintain the New Orleans levees. He The Louisiana 1st Circuit Court of tions need not track U.S. constitutional examined LSU administrators’ actions Appeal took a different approach than the speech protections. The writ was denied. against van Heerden. He concluded that federal court in van Heerden as to a state a reasonable factfinder could find LSU whistleblower claim in Matthews v. Mili- —Paul F. Bell retaliated against van Heerden because tary Dep’t ex rel. La., 07-1337 (La. App. 1 Secretary‑Treasurer, LSBA Labor of his speech. The court did not analyze Cir. 9/24/07), 970 So.2d 1089; writ denied, and Employment Law Section whether the statements were made as part 07-2316 (La. 2/15/08), 976 So.2d 177; cert. Bell Law Firm, L.L.C. of his job duties or solely as a citizen. denied, 129 S.Ct. 82 (2008). The court 4949 Tulane Dr. LSJBThree Ad5c months '11_Layout later, 1 Judge 8/16/11 Brady 1:27 ruled PM Pagedecided 1 on summary judgment in what Baton Rouge, LA 70808

A Louisiana Leader in providing Litigation Services, Forensic Accounting, Business Valuation, and Law Firm Management

New Orleans 504.835.5522 Houston 713.963.8008 Baton Rouge 225.296.5150 Covington 985.892.5850

From left to right, standing: Daniel Simpson, Jr., CPA; Jeanne Driscoll, CPA; Michele Avery, CPA/ABV, MBA, CVA, CFFA; LaPorte.com Stephen Romig, CPA, CFP; Jennifer Bernard-Allen, CPA; Anna Breaux, CPA, JD, LLM; Ryan Retif, MS; seated: Irina Balashova, CPA, MBA, CIA; Chav Pierce, CPA/ABV, MS; Holly Sharp, CPA, MS, CFE, CFF

370 February / March 2012 Secure, Off-Site Data Protection Recommended to More Than 450,000 Attorneys

Member Benefit

DATA FINANCES reputation clients ARCHIVES EMAILS

Visit us online today! corevault.com/LSBA Louisiana Bar Journal Vol. 59, No. 5 371 SPECIAL PRICING

blog.corevault.com of title within 20 days. Several days stating that it had selected a route that later, the Office of Conservation issued crossed his property. Acadian offered a drilling permit to KCS for land unitized him compensation for a pipeline right Mineral with the Pilkintons’ property. Ashley of way and expressed a desire to reach Law Ann instructed its bank not to honor the “an amicable agreement.” Dr. Nunley $431,000 draft. rebuffed the offer. The Pilkintons sued for payment of Acadian filed an expropriation action the $431,000. Ashley Ann argued that on Feb. 19. In opposition to the action, Top Leasing the drilling permit was a title defect that the Nunleys argued that Acadian had excused its obligation to pay, but the exercised its expropriation authority in bad Pilkinton v. Ashley Ann Energy, L.L.C., district court granted summary judgment faith because it had only considered two 46,650 (La. App. 2 Cir. 11/22/11), ____ in favor of the Pilkintons. The 2nd Circuit routes, rather than several possible routes. So.3d ____. affirmed, stating that neither the drilling The Nunleys also argued that testimony A “top lease” is a mineral lease that permit nor the KCS lease itself was a title was not sufficient to show that Acadian a lessor grants during the existence of defect in the context of a top lease that had considered the various factors that another mineral lease that covers the expressly recognized the existence of the jurisprudence has established should be same area. A top lease is valid, but is KCS lease. considered (costs, environmental impact, not enforceable unless and until the long-range planning for the area and safety previously-existing lease terminates. Expropriation for Pipeline considerations) in choosing a route. The KCS Energy held a mineral lease Nunleys asserted that, because Acadian that covered 86.20 acres owned by the Acadian Gas Pipeline Sys. v. Nunley, had only offered testimony regarding its Pilkintons in Bossier Parish. The lease 46,648 (La. App. 2 Cir. 11/02/11), ____ analysis of alternative routes, rather than provided that it would remain in effect So.3d ____. documents demonstrating such analysis, until Dec. 2, 2008, and for as long Acadian Gas obtained a certificate a court could not properly conclude thereafter as KCS was engaged in drilling of transportation from the Department that Acadian exercised its appropriation or the production of minerals from the of Natural Resources for purposes of authority in good faith. The district leased premises or land unitized therewith. building a natural gas pipeline. Under court disagreed and granted judgment As of August 2008, KCS was not Louisiana’s expropriation statutes, for Acadian, ordering the expropriation engaged in drilling or production. That that certificate empowered Acadian to it had requested, and noting that an month, the Pilkintons granted a top lease expropriate private property as needed expropriating authority has considerable to Ashley Ann Energy for the 86.20 acres for construction of the pipeline. latitude in choosing a route. The 2nd that was covered by the KCS lease. In Acadian chose a pipeline route that Circuit affirmed. return, Ashley Ann, which was acting would run across the Nunleys’ property. as agent for Chesapeake, agreed to pay Acadian wrote Dr. Nunley on Jan. 20, —Keith B. Hall an initial lease bonus of $5,000 per acre, 2010, asking for permission to enter his Member, LSBA Mineral Law Section plus an additional $15,000 per acre if the property for purposes of performing a Stone Pigman Walther KCS lease terminated. survey and threatening legal action if Wittmann, L.L.C. In payment of the initial bonus, Ashley he did not respond within three days. 546 Carondelet St. Ann gave the Pilkintons a $431,000 draft, Dr. Nunley denied the request. On New Orleans, LA 70130 which conditioned payment on approval Feb. 2, Acadian wrote Nunley again, and Colleen C. Jarrott Member, LSBA Mineral Law Section Slattery, Marino & Roberts, A.P.L.C. INSURANCE & Ste. 1800, 1100 Poydras St. FINANCIAL CONSULTING New Orleans, LA 70163 WAYNE CITRON LOUISIANA Bar Today Expert Insurance Testimony Get the latest Louisiana State Bar CMC A Leading Firm in Life, Health, Association news in the free, Disability, Property and biweekly emailed update. ADVISORS Casualty Insurance for It’s easy to subscribe. 1-800-CITRON1 Over 38 Years Go to: www.citronagency.com Insurance Law and Regulations www.lsba.org/LBT

372 February / March 2012 contaminated with radioactive material. or subrogation of this personal right,” held From 1981 to 1988, the property was the court, “a subsequent purchaser of the Trusts, Estate, allegedly leased and operated as an in- property cannot recover from a third party Probate & dustrial pipeyard that bought, stored and for property damage inflicted prior to the Immovable sold used oilfield tubing. After Eagle Pipe sale.” Id. p. 22. Property Law purchased the property, the LDEQ issued Applying these principles to the violations of state exposure regulations to exception of no right of action against Eagle Pipe as a result of the presence of Eagle Pipe’s claims, the court held that Property Owner Still Not radioactive materials and ordered that the “[i]nsofar as Eagle Pipe claims a right to Entitled to Damages Based property be remediated. Eagle Pipe sued sue based on the damage to the property on Actions Occurring Prior the former landowners and the oil and which occurred before its ownership, we trucking companies allegedly responsible hold the plaintiff has no right of action to to Ownership for the contamination. The oil and trucking assert as a matter of law.” Id. The court

companies filed exceptions of no right of explained that “the law has provided to The Louisiana Supreme Court has action arguing “Eagle Pipe had no right to Eagle Pipe a cause of action in redhibi- finally laid to rest the question of whether assert a claim for damage to the property tion and the right to sue for rescission of the subsequent purchaser rule applies to which occurred before Eagle Pipe was its the sale or the reduction of the purchase non-apparent property damages inflicted owner.” Id. p. 2. price,” but “the law is not required to prior to the sale. Over the past few years, As first reported in this Section in the provide Eagle Pipe with every possible this issue has plagued plaintiffs and defen- June/July 2010 (Volume 58, Number 1) remedy.” Id. p.26. dants alike in oil and gas legacy litigation. Louisiana Bar Journal, the appellate The court also rejected Eagle Pipe’s In Eagle Pipe & Supply, Inc. v. Amera- court initially affirmed the dismissal, assertion that the right to assert a claim da Hess Corp., 10-2267 (La. 10/25/2011), but reversed on rehearing, limiting the for damages was properly transferred by ____ So.3d ____, the Supreme Court subsequent purchaser rule to situations the subrogation clause in the act of sale, held that the “fundamentals of Louisiana where the damage was apparent at the which provided that the sellers “sell, property law compel the conclusion” that: time of the sale. The Supreme Court transfer and deliver, with full guarantee granted certiorari to determine whether a of title and free from all encumbrances, an owner of property has no right or subsequent purchaser of property has the andLA withBar fullJournal subrogation Ad 9/21/11 to all their 3:44rights PM Page actual interest in recovering from a right to sue a third party for non-apparent third party for damage which was property damage inflicted before the sale inflicted on the property before of the property absent an assignment or his purchase, in the absence of an LTD subrogation to that right. SCHAFER GROUP assignment or subrogation of the Certified Public Accountants The court’s opinion spans numerous rights belonging to the owner of legal issues from continuous torts to When you need a forensic accountant, the property when the damage was real versus personal rights to the proper call on a professional. inflicted. method of assigning or subrogating such rights in an act of sale. The court first Id. p. 1, 4. “Knowledge of business, finance found that when property is damaged, the The issue before the Supreme Court and accounting may be needed owner of the property obtains a personal arose from a 1998 sale of land to plain- at any stage of the litigation right to demand repair from the tort- tiff, Eagle Pipe and Supply, Inc., who process. Therefore, we can be feasor. “In the absence of an assignment later discovered the land was allegedly an important member of any successful litigation team. From contemplation of action to expert testimony, we can complement attorneys in ways that increase the likelihood of a desired outcome. We can support your litigation efforts to save you time and strengthen your case.”

—Kernion T. Schafer, CPA

S OUTH S HORE AND N ORTH S HORE O FFICES

METAIRIE MANDEVILLE 701 Aurora Avenue • Suite A 435 Girod Street • Suite B Metairie, Louisiana 70005 Mandeville, LA 70448 504.837.6573 985.626.4066 Forensic Accounting • Emerging Issues • Financial Services Litigation Services • Legal Services • Emerging Business

Louisiana Bar Journal Vol. 59, No. 5 373 and action of warranty against previous contaminated oilfield equipment from the Connect with the owners . . . .” Id. p. 24. The court held oil and trucking companies to the former Louisiana State Bar that this language was not an “express property owner. Id. p. 23. assignment or subrogation of the former The core legal issues underpinning Association online! property owner’s personal rights to sue the court’s analysis and ultimate opinion for damage” because the subrogation in Eagle Pipe extend beyond the toxic ► “Like” the Louisiana State Bar Association clause did not explicitly mention the tort context. The Eagle Pipe decision on Facebook assignment or subrogation of the former impacts the viability of oil and gas legacy ► Follow @LouisianaBar on Twitter property owners’ right to sue for property cases, the nature and extent to which any ► Connect with us on LinkedIn damage. Id. p. 25. plaintiff can successfully assert property ► Join our circle on Google+ In an attempt to sidestep the subsequent damage claims, the proper method of ► Check in to our meetings on FourSquare purchaser rule, Eagle Pipe argued that the transferring certain personal rights and damage to the property was continuing the proper language to include in an act To view the links, scan in the QR Code below such that Eagle Pipe was asserting its of sale to transfer such rights in a real with your smartphone or visit own right of action that did not accrue estate transaction. www.lsba.org/GoTo/SocialMedia until the LDEQ first notified Eagle Pipe of the contamination. The Supreme Court ─ Raymond C. Lewis rejected this argument, finding that “the Member, LSBA Trusts, Estate, Probate continued presence of the alleged con- and Immovable Property Law Section tamination,” the injury claimed by Eagle Sher Garner Cahill Richter Pipe, “is simply the continuing ill effect Klein & Hilbert, L.L.C. from the original tortious acts,” which Ste. 2800, 909 Poydras St. the court explained were the tender of New Orleans, LA 70112

Expert Surgeon. Expert Witness.

Respected and trusted by both plaintiff and defense lawyers, Dr. Darrell L. Henderson is one of the nation’s leading reconstructive & plastic surgery experts.

Throughout his 40-year, board certified practice, he has followed single cases for multiple years, giving him the experience and knowledge to make accurate projections on future patient care. But it’s not his legal expertise that patients appreciate: his genuine care and compassionate bedside manner keep them coming back, year after year. He understands that just because the case is closed, doesn’t mean it’s over. Total Care for the Patient. It’s the way we operate. It’s the way we practice medicine.

Serving Acadiana for 40 Years 337.233.5025 or 1.800.950.9290

Darrell L. Henderson, MD / Russell C. Romero, DDS, MD / Louis G. Mes, MD / Terry A. Cromwell, MD 1101 S College Rd., Suite 400 / Lafayette, LA 70503 / www.psassoc.com / [email protected]

374 February / March 2012 Young Lawyers Chair’s Message... Spotlight

► Experience — Many new attorneys CHAIR’S MESSAGE leave law school without much, if any, courtroom experience. By taking a pro The Benefits to You of the committee is diligent about helping bono case, you can get into the courtroom Doing Pro Bono Work to give the less fortunate access to legal within days of accepting a case. services. One of the many ways this goal ► Support — Accepting cases through pro bono programs provides support for By Shayna L. Sonnier is accomplished is by working with the pro bono programs across the state. new attorneys or attorneys looking to change the focus of their practices. A motivating fac- We all recognize the benefits individu- ► Mentoring — Pro bono programs tor for my becoming als receive from pro bono services, but can provide someone on their pro bono an attorney was the what about the attorney? Some of you panel with experience in a field to provide opportunity to help may be thinking to yourself, “I just started guidance to a new attorney or someone others. Therefore, it practicing” or “I haven’t been able to find not as familiar with a particular area of seems appropriate a job,” and may think you are not in the the law. that I devote a mes- position to provide pro bono services. ► Future Clients — Pro bono attorneys sage to the benefits While I understand everyone must earn are sometimes the only attorney that of pro bono work Shayna L. Sonnier a living (you aren’t the only person with clients know and often may later come (especially after chat- student loans, trust me!), there are many to the attorney for work or refer friends ting with my friend, Louisiana State Bar reasons to provide pro bono work even or relatives with a financially beneficial Association’s Access to Justice Director if you are just starting out. case to that attorney. Monte Mollere, and learning all about Here is a short list detailing why doing ► Continuity — Volunteer pro bono Louisiana pro bono programs). If you are pro bono work may be beneficial to you legal work can be a useful item on a unaware of the Access to Justice Commit- in addition to the wonderful feeling you résumé for a recently admitted attorney tee’s great work for individuals around our get from helping others: as well as an attorney without a job. It can wonderful state, I am here to tell you that Continued next page Young Lawyers Division News

Get the latest Young Lawyers Division news online Go to: www.lsba.org/YLD

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.

Louisiana Bar Journal Vol. 59, No. 5 375 Continued from page 375 March 17, in Lake Charles. Volunteers other WFH events in Lake Charles, are always needed. If you are interested Baton Rouge and Shreveport. If you are sometimes eliminate that “lapsed time” in participating, email Laura Bryan at interested in volunteering or want to have or “gap” on your résumé. [email protected]. an event in your city, email Kyle Ferachi ► Networking — Volunteer work In April, we will host our third an- at [email protected] or Derrick can lead to interaction with other nual Local Affiliates Symposium in Earles at [email protected]. attorneys, judges and the court. This Lafayette. This event is an opportunity for Also, the 2011-12 Leadership LSBA interaction can be a valuable networking all local affiliates to get together with the Class is sponsoring a 5K run/1 mile walk/ experience that can lead to referrals or job Louisiana State Bar Association (LSBA) kids’ run on Saturday, April 14, at Sam opportunities. Young Lawyers Division (YLD) and Houston Jones State Park in the Lake I understand it is a difficult time for exchange ideas/concerns and see how Charles area. The purpose of the “Laps for young attorneys now and it may be a chal- we can all work together to better serve LAP” event is to promote mental health in lenge to motivate yourself to “volunteer” our communities. the legal community and raise awareness when there are bills to pay. However, I The LSBA YLD Closet will take place of this very real issue that affects many truly believe that Louisiana pro bono March 10-April 14 at Dee’s Shoes and Ac- members of our bar. Proceeds will go to programs not only can help us give back cessories in Lafayette. This project helps the Lawyers Assistance Program (LAP), but also can help us move forward. To provide prom dresses to high school junior which offers confidential assistance to find your local pro bono program, go to: and senior girls who would not otherwise lawyers and judges whose personal and www.lsba.org/probono. be able to afford to attend. Donations are professional lives are threatened by the needed. If you are interested in donating, impact of problems caused by depression/ Upcoming Events! email Tamara Rahim at tamara.rahim@ anxiety, alcoholism, and/or drug abuse. la.gov. This is a family-friendly event and the We have some exciting events hap- Also, there are several Wills for He- run will be followed by a family picnic. pening this spring. roes events this spring. The next event More information will be available soon The state High School Mock Trial is tentatively scheduled for March 10 online at: www.lsba.org. Competition will be held Saturday, in Alexandria. Be on the lookout for

Young Lawyers Spotlight

John C. Nickelson a wide range of matters, including legal ranging from adoptions and protective Shreveport malpractice defense, oil and gas litiga- orders for abused women and children tion, and products and premises liability to custody disputes and consumer rights The Louisiana disputes. cases. State Bar Associa- In addition to maintaining an active As the treasurer and a member of the tion’s Young Law- practice, Nickelson is involved in both Shreveport Bar Foundation’s board of yers Division is spot- the state and local bar associations. He is directors, he is closely involved with the lighting Shreveport a member-at-large of the Shreveport Bar organization’s coordination of pro bono attorney John C. Association’s Executive Council, trea- activities in the Shreveport-Bossier area. Nickelson. surer of the Shreveport Bar Foundation He represents indigent criminal defen- Nickelson gradu- and a member of its board of directors, dants as a member of the United States ated, magna cum and a member of the Harry V. Booth and District Court for the Western District of laude and Phi Beta John C. Nickelson Judge Henry A. Politz American Inn of Louisiana’s Criminal Justice Act Panel. Kappa, from Texas Court. He also was selected and served He also was an active participant in the Christian University as a member of the 2010-11 Leadership 2010-11 Leadership LSBA Class CLE with a BA degree in history. He earned LSBA Class. presentations encouraging the pro bono his law degree from the University of When asked why he pursued a law efforts of firms and individual attorneys Virginia in 2004. He began his practice degree and a career as a lawyer, Nickel- throughout Louisiana. He credits his with Baker Botts in Dallas, Texas. He son answered that he went to law school commitment to pro bono work to the clerked for Hon. Jennifer Walker Elrod, because he thought he would enjoy the mentoring and support he has received United States Circuit judge for the United profession and wanted to contribute to from others, including Herschel E. Rich- States 5th Circuit Court of Appeals. He the lives of others. His involvement in ard, Jr., Cook Yancey’s president and the returned home to Shreveport in 2009 to the bar and his commitment to pro bono immediate past president of the Louisiana practice with the firm of Cook, Yancey, work make it apparent he is achieving his Bar Foundation. King & Galloway, A.P.L.C. He is a com- aspirations. Since graduating from law Nickelson and his wife, Emily, are the mercial litigator and represents clients in school, he has handled pro bono cases proud parents of three children.

376 February / March 2012 Louisiana Center for

LouisianaCENTER FOR LCLCE Law & C ivicEducation LAW & CIVIC EDUCATION Citizens, Not Spectators

West Monroe High School students prepared to register to vote as part of Fourth graders at A.C. Alexander Elementary School voted during a simu- the “Citizens, Not Spectators” program. lated election, the culminating activity of the “Citizens, Not Spectators” program. Voting machines were provided by the Louisiana Secretary of State’s Office. LCLCE Launches “Citizens, Not Spectators” Program The Louisiana Center for Law and Law and Civic Education. Junior High School; teacher Mitzi Murray, Civic Education last fall launched a Ten Louisiana schools participated in West Monroe High School; teacher Jamie new student program, “Citizens, Not the program last fall, including teacher Staub, Haynes Academy for Advanced Spectators.” The goal of the program is Michael Denning, Coteau-Bayou Blue Studies; and teacher Mark Hernandez, to increase the voting rate among young Elementary School; teacher Michelle Dutchtown High School. Americans by providing engaging voter Molina, Marrero Academy for Advanced “The students were engaged and education to elementary, middle and high Studies; teacher Dwayne Alexander, empowered,” said Folsom Junior High school students. Jeanerette Middle School; teacher Jimmy School teacher Mary Barnes, adding To accomplish this goal, this program Benton, Caddo Parish Magnet High that the program was presented to both offers a curriculum that demystifies the School; teacher Danielle Mahan, John seventh and eighth graders. “We allowed voting process by teaching elementary, Paul the Great Academy; teacher Ann the students to design their own voter middle and high school students how to Majeste, A.C. Alexander Elementary registration card and their own ‘I Voted’ cast a vote, how the voting process works, School; teacher Mary Barnes, Folsom stickers,” she said. how to become an informed voter, and why it is important to cast an informed THE ERISA BENEFITS LAW GROUP vote. The curriculum focuses on hands-on, AND active learning. Using actual voter regis- WILLIAM T. ALLISON tration forms and ballots, students receive Attorney at Law instruction in how to register and cast a vote in a simulated election. The Louisi- Announce the opening of offices exclusively devoted to representation of ana Secretary of State’s Office provided real voting booths to schools conducting individuals with claims arising under the Employee Retirement Income simulated elections. This program is made Security Act in the areas of disability, life, and health insurance. possible through a cooperative effort made by the Center for Civic Education, 1100 Poydras Street, Suite 2900, New Orleans, LA 70163-2900 the Arsalyn Program of Ludwick Family 3421 Youree Drive, Shreveport, LA 71105 Foundation and the Louisiana Center for Toll Free Telephone (866) 626-3501 • Toll Free Facsimile (888) 817-7232

Louisiana Bar Journal Vol. 59, No. 5 377 JUDICIAL Notes By Robert Gunn, Louisiana Supreme Court NEW Judges... appointments

New Judges Judges ► Attorney Chauntis T. Jenkins has been appointed, by order of the Louisiana Sheva M. Sims ► Judge Robert A. Chaisson was re- Supreme Court, as judge pro tempore of was elected to Di- cently elected as judge of the 5th Circuit Division K‑5 of Orleans Parish Civil Dis- vision D, Shreve- Court of Appeal, 3rd District, Division A. trict Court. She fills the vacancy created port City Court. She He previously served as judge of Division due to the election of Judge Herbert A. earned her BS degree E, 29th Judicial District Court. Cade to Orleans Parish Traffic Court. She in mathematics from ► Judge Herbert A. Cade was recently will serve through May 1 or until further Dillard University elected to Orleans Parish Traffic Court. He order from the court. in 1984 and her JD previously served as judge of Division K, ► Marta-Ann Schnabel and Bonita degree from South- Orleans Parish Civil District Court. Preuett-Armour were reappointed, by order ern University Law Sheva M. Sims of the Louisiana Supreme Court, to the Center in 1994. She Appointments Louisiana Judicial Campaign Oversight was in the practice of law for 17 years Committee for terms of office which con- before her election to the bench. She was ► Retired Judge Robert J. Klees has clude on April 21, 2015. the 2009 recipient of the Louisiana State been assigned, by order of the Louisiana ► Frank A. Fertitta was appointed, Bar Association’s (LSBA) Leah Hipple Supreme Court, as judge pro tempore to by order of the Louisiana Supreme Court, McKay Memorial Award for Outstanding the 29th Judicial District Court, Division to the Attorney Disciplinary Board for Volunteerism. She served as president of E. He will serve through May 27, due to the a term of office which will conclude on the board of directors for the YWCA of vacancy created by the election of Judge Dec. 31, 2012. Northwest Louisiana. She also served as a Robert A. Chaisson to the 5th Circuit Court ► Tara L. Mason was appointed, by mathematics tutor, a subject she taught at of Appeal. He will serve until the vacancy is order of the Louisiana Supreme Court, the high school level prior to becoming an filled or until further orders of the Louisiana to the Attorney Disciplinary Board for attorney. She is a member of the Louisiana, Supreme Court. a term of office which will conclude on National and Shreveport bar associations Dec. 31, 2014. and the Black Lawyers Association of Shreveport-Bossier. She is a member of Need some help managing several LSBA committees and a Fellow your law office? of the Louisiana Bar Foundation. She is the mother of two daughters. The Louisiana State Bar Association (LSBA) has established the Law Office Management Robert P. Black- Assistance Program (LOMAP, for short). This burn was appointed program is designed to assist lawyers in increasing as magistrate com- the quality of the legal services they provide. missioner at Orleans Questions or comments about LOMAP may be sent to Parish Criminal Dis- Shawn L. Holahan, [email protected] or call trict Court. He earned (504)619-0153 or (800)421-5722, ext. 153. his BA degree from And don’t forget about the LSBA’s other programs assisting lawyers... the University of Ne- Fastcase for free online legal research, accessible braska in 1993 and his from the LSBA’s home page, www.lsba.org. JD degree from Loui- Robert P. Lawyer Fee Dispute Resolution Program siana State University Blackburn for quick, inexpensive, informal and final Paul M. Hebert Law resolution of attorney/client and attorney/ attorney fee disputes. Contact Bill N. King Center in 1997. He is married to Emily at [email protected] or call (504)619-0109 or DeSalvo Blackburn and they are the parents (800)421-5722, ext. 109. of two children. For more information on all LSBA programs, go to www.lsba.org.

378 February / March 2012 LAJMembershipAd_Gold:Layout 1 10/13/2011 12:56 PM Page 1

Introduce a new partner to your law firm

Joining Louisiana Association for Justice is like introducing a new partner to your law firm — one who works around the clock and doesn’t take holidays. LAJ exists for one purpose only: to serve the Louisiana trial bar. From battling our clients’ rights in the legislature to providing second-to-none networking opportunities, LAJ works 24/7 to help members succeed. Networking through LAJ offers you a wide range of practice sections, list servers, regional luncheons with decision makers, and our popular Annual Convention. Participating in a practice section and list server is like adding a team of experienced lawyers to your firm. In today’s world, everybody expects value, which is exactly what LAJ brings to your practice. LAJ’s annual dues for lawyers start at just $95.

To join, contact us at 225-383-5554 or visit www.lafj.org. Louisiana Bar Journal Vol. 59, No. 5 379 People LAWYERS ON THE MOVE . . . NEWSMAKERS

leans announces that Emily Lippold the firm in the Covington and New Orleans LAWYERS ON Gordy, Jacqueline M. Brettner and offices. Also, Lucie E. Thornton has joined THE MOVE Seth E. Bagwell have joined the firm as the firm’s health care section as a partner. associates. Adams and Reese, L.L.P., announces that Kathleen L. DeBruhl & Associates, L.L.C., L. Cole Callihan and Diana C. Surprenant Chehardy, Sherman, Ellis, Murray, Recile, in New Orleans announces that Lindsey E. have joined the firm as litigation associates Griffith, Stakelum & Hayes, L.L.P., in Surratt, a health care associate, is now li- in the New Orleans office. Metairie announces that Joshua O. Hess censed in both Louisiana and Mississippi. has joined the firm as an associate. Baker, Donelson, Bearman, Caldwell & The Faircloth Law Group, L.L.C., an- Berkowitz, P.C., announces that Jan M. Cook, Yancey, King & Galloway, A.P.L.C., nounces that Jonathan S. Ringo has joined Hayden has joined the firm as a shareholder in Shreveport announces that Michael D. Si- the firm’s Baton Rouge office. in the New Orleans office. mon has joined the firm as an associate. Flanagan Partners, L.L.P., in New Orleans Blanchard, Walker, O’Quin & Roberts, Couch, Conville & Blitt, L.L.C., announces announces that Stephen M. Pesce was P.L.C., in Shreveport that Galen M. Hair has joined the firm as elected partner in the firm and Kelsey Meeks announces that An- an associate in the New Orleans office. Duncan joined the firm as an associate. dres H. Aguilar has Also, Benjamin G. Lambert, an associate joined the firm as an in the New Orleans office, has been ad- Forrester & Dick in Baton Rouge announces associate. mitted to practice law in Mississippi and that Amanda G. Clark has become a princi- Tennessee. pal of the firm and the firm has been renamed Carver, Darden, Ko- Forrester, Dick & Clark. Also, Chris D. retzky, Tessier, Finn, Curry & Friend, P.L.C., announces that Broadwater has joined the firm. Blossman & Areaux, Frances I. McGinnis, Barbara L. Bossetta L.L.C., in New Or- Elizabeth L. Adams and Meghan E. Smith are associated with

Andres H. Aguilar Seth E. Bagwell Barbara L. Bossetta Peter A. Bourgeois Elena P. Branzaru Jacqueline M. Brettner

Chris D. Broadwater Hunter A. Chauvin Ryan T. Christiansen Amanda G. Clark J. Gregg Collins Allison M. Colomb

380 February / March 2012 Galloway, Johnson, Tompkins, Burr & Liskow & Lewis, P.L.C., announces that five Saunders & Chabert in Baton Rouge an- Smith, P.L.C., announces that Peter A. new associates have joined the New Orleans nounces that Erica D. Edwards has joined Bourgeois and David M. Moragas, both office: Hunter A. Chauvin, Ryan T. Chris- the firm as an associate. in the New Orleans office, were elected to tiansen, Jerome W. Matthews, Jr., Reed the board of directors. Also, Allison M. A. Morgan and Kathryn M. Zainey. Seale & Ross, A.P.L.C., announces that Am- Colomb and Meagan E. Messina have brose K. Ramsey III, Georgia K. Thomas, joined the firm as associates in the New McGlinchey Stafford, P.L.L.C., announces Celeste H. Shields and Joshua P. Melder Orleans office. that Erin M. Minor has joined the firm as an have joined the firm’s Hammond office. associate in the New Orleans office. Gibson, Gruenert & Zaunbrecher, P.L.L.C., Steeg Law Firm, L.L.C., in New Orleans in Lafayette announces that Francine A. El- Pendley, Baudin & Coffin, L.L.P., in Plaque- announces that Margaret V. Glass has liot has joined the firm as an associate. mine announces that Elena P. Branzaru joined the firm as an associate. has joined the firm as an associate. Hayes, Harkey, Smith & Cascio, L.L.P., Taylor, Porter, Brooks & Phillips, L.L.P., in in Monroe announces that Brandon W. Perrier & Lacoste, L.L.C., in New Orleans Baton Rouge announces that Elizabeth L. Creekbaum has joined the firm as an announces that Nathan M. Gaudet has Adams and Erin B. Sayes have joined the associate. joined the firm as an associate. firm as associates.

The Hayter Law Firm, L.L.C., in Shreveport Phelps Dunbar, L.L.P., announces that Roy NEWSMAKERSNEWSMAKERS announces that Stacey A. Smith has joined L. Bergeron, Jr., Bradley S. Bourgeois and the firm as an associate. Alejandro J. Velazquez have joined the firm Chris D. Broadwater, with the Baton as associates in the Baton Rouge office, and Rouge firm of Forrester, Dick & Clark, Irwin Fritchie Urquhart & Moore, L.L.C., an- Christopher M. Douse and Mary Katherine was elected state representative for House nounces that Ali A. Spindler has joined the Jones have joined the firm as associates in District 86 (south central Tangipahoa firm’s New Orleans office as an associate. the New Orleans office. Parish). Preis & Roy, P.L.C., announces that Jean Derren S. Johnson & Associates, A.P.L.C., R. Keith Colvin, special counsel in the Ann Billeaud, Elizabeth P. Everett and in Baton Rouge announces that Sharen K. New Orleans office of Jones, Walker, Madison E. Toepfer have joined the firm’s Dhillon has joined the firm. Waechter, Poitevent, Carrère & Denègre, Lafayette office. L.L.P., was elected president-elect of Lewis Brisbois Bisgaard & Smith, L.L.P., the American College of Mortgage At- Provosty & Gankendorff, L.L.C., in New announces that Tracy P. Curtis has joined torneys. Orleans announces that Jason P. Franco has the firm’s Lafayette office. joined the firm as an associate. Continued next page

R. Keith Colvin Brandon W. Sharen K. Dhillon Kelsey Meeks Erica D. Edwards Lillian E. Eyrich Creekbaum Duncan

James M. Fantaci Thomas Keasler Nathan M. Gaudet Margaret V. Glass Emily Lippold Ben R. Hanchey Foutz Gordy

Louisiana Bar Journal Vol. 59, No. 5 381 Christopher J. Couch, managing member Allen C. Miller, a partner in the New with Henry Mentz and of the New Orleans office of Couch, Orleans office of Phelps Dunbar, L.L.P., Leon Ford. He earned Conville & Blitt, L.L.C., was selected as was recognized by the Children’s Defense his own prominent a member of the 2012 class of the New Fund-Louisiana as a 2011 Beat the Odds status in the bar as Orleans Leadership Institute. Champion for Children. He also serves as president of the 21st president and executive committee board Judicial District Bar Gilbert F. Ganucheau, Jr., an attorney in the chair of the New Orleans Chapter of Court- Association, founding New Orleans firm of Kathleen L. DeBruhl Appointed Special Advocates. member of the 21st & Associates, L.L.C., was named president Judicial District Inn of the Louisiana State Bar Association’s Michael S. Mitchell, a partner in the New of Court, 21st Judicial Rodney Charles Health Law Section. Orleans office of Fisher & Phillips, L.L.P., District member of Cashe was elected president of the International the Louisiana State Thomas E. Ganucheau, a partner in the Hous- Executives Association for 2011-12. Bar Association’s House of Delegates and ton, Texas, office of Beck, Redden & Secrest, a member of the board of directors of the L.L.P., was elected 2011-12 president and Mark C. Surprenant, a partner in the New Or- 21st Judicial District Indigent Defender Executive Committee member of the Texas leans office of Adams and Reese, L.L.P., was Board. Later in his career as a mediator, Association of Defense Counsel. elected for a three-year term on the board of Mr. Cashe helped many individuals and the New Orleans Bar Association. companies settle their legal conflicts. He Carmen T. Hebert, an associate in the served his community as president of the firm of Carleton Loraso, L.L.C., in Baton R. Patrick Vance, a partner in the New Hammond Exchange Club and as a board Rouge, was appointed as a junior member Orleans office of Jones, Walker, Waechter, member of the Hammond Chamber of of the Louisiana State Law Institute. Chan- Poitevent, Carrère & Denègre, L.L.P., has Commerce, the Southeastern Louisiana cellor Jack M. Weiss of Louisiana State become a Fellow of the American College University Development Foundation, University Paul M. Hebert Law Center of Trial Lawyers. the Hammond Downtown Development made the appointment. District and the Hammond Tangipahoa IN IN MEMORIAM MEMORIAM Home Mortgage Authority. Mr. Cashe’s Christopher J. Kane, a partner in the New colleagues, Andre G. Coudrain and Ashley Orleans office of Adams and Reese, L.L.P., Rodney Charles Cashe, a senior partner E. Sandage, said he was “a great mentor to was re-elected president of the Algiers Eco- of the Cashe Coudrain & Sandage law firm our law firm and members of the local bar. nomic Development Foundation. in Hammond and a prominent civic leader, He always encouraged our firm to support died on Dec. 2, 2011. He was 63. He moved our community through active participation Frank E. Lamothe III, with the firm Lamothe to Hammond in 1972 after his graduation and support of many local charities and Lea Aertker, L.L.C., in Covington, was in- from Louisiana State University Law civic groups.” vited to join the National Trial Lawyers. School. In his early career, he practiced law

Carmen T. Hebert Stephen D. Hébert Joshua O. Hess Jerome W. Frances I. McGinnis Meagan E. Messina Matthews, Jr.

David M. Moragas Reed A. Morgan C. Joseph Murray Stephen M. Pesce Jonathan S. Ringo Erin B. Sayes

382 February / March 2012 PUBLICATIONS of the Year. ning, Kai D. Midboe, Jay M. O’Brien, Erin PUBLICATIONS Herman, Herman, Katz & Cotlar, Fury Parkinson, Anthony J. Rollo, Michael The Best Lawyers in America 2012 L.L.P. (New Orleans): Russ M. Herman, H. Rubin, Stephen P. Strohschein, Dan E. Adams and Reese, L.L.P. (New Or- Steven J. Lane, James C. Klick, Leonard West, Constance Charles Willems and Henri leans): O. Ray Cornelius, New Orleans A. Davis and Brian D. Katz. Wolbrette III. Securitization and Structured Finance Law Jones, Walker, Waechter, Poitevent, Steeg Law Firm, L.L.C. (New Or- Lawyer of the Year. Carrère & Denègre, L.L.P. (Baton Rouge leans): Lillian E. Eyrich, New Orleans ADR inc. (Metairie and Monroe): J. and New Orleans): Robert B. Bieck, Jr., New Real Estate Law Lawyer of the Year. Gregg Collins, Thomas Keasler Foutz, Orleans Litigation/Securities Lawyer of the Tritico Law Office (Lake Charles): Ben R. Hanchey, C. Joseph Murray and Year; Robert R. Casey, Baton Rouge Tax Russell T. Tritico, Sr. David R.M. Williams. Law Lawyer of the Year; Curtis R. Hearn, Baldwin Haspel Burke & Mayer, New Orleans Securities/Capital Markets Louisiana Super Lawyers 2012 L.L.C. (New Orleans): Jerome J. Reso, Jr., Law Lawyer of the Year; Robert C. Tucker, Stephen D. Hébert, L.L.C. (New Leon H. Rittenberg III, John A. Rouchell, Baton Rouge Trademark Law Lawyer of Orleans): Stephen D. Hébert, Louisiana William B. Schwartz and Karl J. Zim- the Year; and Richard P. Wolfe, New Or- Rising Stars. mermann. leans International Trade and Finance Law Herman, Herman, Katz & Cotlar, Chehardy, Sherman, Ellis, Murray, Lawyer of the Year. L.L.P. (New Orleans): Leonard A. Davis, Recile, Griffith, Stakelum & Hayes, McGlinchey Stafford, P.L.L.C. (Baton Maury A. Herman, Russ M. Herman, Ste- L.L.P. (Metairie): James M. Fantaci, Rouge and New Orleans): Deborah Du- phen J. Herman, James C. Klick, Morton New Orleans Corporate Law Lawyer of plechin Harkins, Baton Rouge Government H. Katz and Steven J. Lane. the Year. Relations Practice Lawyer of the Year; Col- Deutsch, Kerrigan & Stiles, L.L.P. vin G. Norwood, Jr., New Orleans Product New Orleans Magazine Top Lawyers (New Orleans): Robert E. Kerrigan, Jr., Liability Litigation/Defendants Lawyer of Steeg Law Firm, L.L.C. (New Or- New Orleans Personal Injury Litigation/ the Year; R. Andrew Patty II, Baton Rouge leans): Robert M. Steeg, Randy Opotowsky, Defendants Lawyer of the Year. Patent Law Lawyer of the Year; Kenneth A. Charles L. Stern, Jr. and Lillian E. Eyrich. Dué, Price, Guidry, Piedrahita & An- Weiss, New Orleans Litigation/Trusts and drews, P.A. (Baton Rouge): Paul H. Dué; Estates Lawyer of the Year; and Richard and Donald W. Price, Baton Rouge Medical A. Aguilar, Rudy J. Aguilar, Brad J. Axel- People Deadlines Malpractice Lawyer of the Year. rod, Samuel A. Bacot, Stephen P. Beiser, Fisher & Phillips, L.L.P. (New Or- Mark N. Bodin, Jaye A. Calhoun, Rudy & Notes leans): Keith M. Pyburn, Jr., New Orleans J. Cerone, Katherine Conklin, Richard Deadlines for submitting People Labor and Employment Law Lawyer of A. Curry, Larry Feldman, Jr., Michael D. announcements (and photos): the Year; and Sandra Mills Feingerts, New Ferachi, R. Marshall Grodner, Mary Terrell Orleans Employee Benefits Law Lawyer Joseph, Bennet Koren, Kathleen A. Man- Publication Deadline June/July 2012 April 4, 2012 Aug./Sept. 2012 June 4, 2012 Oct./Nov. 2012 Aug. 3, 2012 Dec. 2012/Jan. 2013 Oct. 4, 2012 Feb./March 2013 Dec. 4, 2012 Announcements are published free of charge for members of the Louisiana State Bar Association. Members may publish photos with their announce- Michael D. Simon Meghan E. Smith Stacey A. Smith Ali A. Spindler ments at a cost of $50 per photo. Send announcements, photos and photo payments (checks payable to Louisiana State Bar Association) to: Publications Coordinator Darlene M. LaBranche, Louisiana Bar Journal, 601 St. Charles Ave. New Orleans, LA 70130-3404

or e-mail [email protected]. Lindsey E. Surratt Lucie E. Thornton David R.M. Williams Kathryn M. Zainey

Louisiana Bar Journal Vol. 59, No. 5 383 Classified ads ONLINE at www.lsba.org CLASSIFIED NOTICES ideal candidate would have experience Standard classified advertising in our regu- POSITIONS OFFERED in the areas of business law, particularly lar typeface and format may now be placed banking, mergers and acquisitions, real in the Louisiana Bar Journal and on the estate, commercial transactions, corpo- LSBA Web site, LSBA.org/classifieds. AV-rated maritime and insurance de- All requests for classified notices must fense firm with offices in Texas and Loui- rate governance and securities. Excellent be submitted in writing and are subject siana seeks attorneys for its Lafayette and academic credentials required (top 25 to approval. Copy must be typewritten New Orleans offices. Great opportunity percent) and Moot Court/Law Review and payment must accompany request. for motivated and ambitious self-starter preferred. The position offers competitive Our low rates for placement in both are salary and benefits. Interested candidates as follows: who is seeking considerable hands-on experience, a progression to partnership should send a cover letter, résumé and transcript to Ms. Rachel Woolridge, RATES commensurate with experience, excellent compensation and fringe benefits pack- Ste. 2000, 365 Canal St., New Orleans, CLASSIFIED ADS age. Prior admiralty and trial experience LA 70130, or email rachel.woolridge@ Contact Krystal L. Bellanger at preferred. Mail confidential résumé to: phelps.com. (504)619-0131 or (800)421-LSBA, C-Box 262. ext. 131. The Baton Rouge office of Phelps Dun- bar, L.L.P., is seeking a lateral attorney Non-members of LSBA Sessions, Fishman, Nathan & Israel, $85 per insertion of 50 words or less L.L.C., is seeking an assistant litiga- with two-plus years of experience for $1 per each additional word tion manager to work with its consumer the firm’s insurance and reinsurance $20 for Classy-Box number defense group in the Metairie, La., of- practice area. The ideal candidate would fice. Needed is an organized applicant have experience with insurance coverage Members of the LSBA who can assist manager with a national litigation including both first-party and $60 per insertion for 50 words or less third-party coverage disputes. Excellent $1 per each additional word integrated litigation practice with nine No additional charge for Classy-Box offices. Responsibilities will include academic credentials required (top 25 number coordinating cases and day-to-day man- percent) and Moot Court/Law Review agement of very active national docket. preferred. The position offers competitive Screens: $25 Knowledge of ProLaw is a plus. Excel salary and benefits. Interested candidates Headings: $15 initial headings/large type and Word skills are required. Email ré- should send a cover letter, résumé and BOXED ADS sumé to Mayas Erickson at merickson@ transcript to Ms. Rachel Woolridge, Boxed ads must be submitted camera ready sessions-law.biz. Ste. 2000, 365 Canal St., New Orleans, by the advertiser. The ads should be boxed LA 70130 or email rachel.woolridge@ and 2¼” by 2” high. The boxed ads are $70 The Baton Rouge office of Phelps Dun- phelps.com. per insertion and must be paid at the time of bar, L.L.P., is seeking a lateral attorney placement. No discounts apply. with two-plus years of experience for DEADLINE the firm’s business practice area. The Continued next page For the June issue of the Journal, all classified notices must be received with payment by April 18, Mississippi Attorney 2012. Check and ad copy should be sent to: Forensic Document LOUISIANA BAR JOURNAL Carey R. Varnado Classified Notices Tulane Law 1976 Examiner

601 St. Charles Avenue Selected to “Best Lawyers in America” Robert G. Foley New Orleans, LA 70130 2003-08 Handwriting • Typewriting • Copies • Case Referrals Ink/Paper Analysis & Dating RESPONSES • Attend Depositions and Hearings To respond to a box number, please address Certified & Court Qualified in your envelope to: Post Office Drawer 1975 Federal, State, Municipal & Military Courts since 1972 Journal Classy Box No. ______Hattiesburg, MS 39403 c/o Louisiana State Bar Association (601) 544-1234 Phone: (318) 322-0661 601 St. Charles Avenue [email protected] www.robertgfoley.com New Orleans, LA 70130

384 February / March 2012 Staff attorney. The Housing Authority of experience. Email résumés to mrj@judice- Florida health law attorneys available to New Orleans (HANO) is a progressive or- adley.com or mail to Office Manager, P.O. consult, affiliate as co-counsel or accept ganization, committed to providing qual- Box 51769, Lafayette, LA 70505. referrals representing physicians and other ity, affordable housing options. HANO health care providers throughout Florida. is dedicated to recruiting and retaining Toxic tort associate with two-four years George F. Indest III, admitted in Louisiana exceptional talent. HANO is currently of experience needed to join Spears & and Florida, is board certified by the Florida seeking an experienced candidate for Gary, L.L.C. Spears & Gary has provided Bar in health law. Available to cover hear- the position of staff attorney (contracts client service for more than 30 years and is ings and depositions. Also available, Joanne and construction). The staff attorney a Lake Charles-based law firm. Excellent Kenna, RN, JD. We represent exclusively performs a wide variety of legal services writing and litigation experience a plus health care providers. Our practice includes for the agency with a focus on contracts but not required. The firm offers competi- business, regulatory and transactional and construction law. The staff attorney tive salaries and comprehensive benefits. matters and commercial, administrative is responsible for the drafting, negotia- Interested candidates should send résumés and professional litigation. Experienced in tion, review and oversight of private and to [email protected]. defending investigations, licensing cases, public contracts, the public bid process Medicare/Medicaid audits/investigations, and transactions on behalf of HANO. ServicesSERVICES credentialing/privileges cases, covenants- This position provides advice to HANO not-to-compete, and other health-related leadership on construction issues, risks Texas attorney, LSU Law 1985. Admitted areas. George F. Indest III, The Health and liabilities, and solutions to problems in Louisiana and Texas. I am available to Law Firm, 1101 Douglas Ave., Altamonte that arise during all phases of construction attend hearings, conduct depositions, act as Springs, FL 32714, (407)331-6620. www. projects, including the planning, design, local counsel and accept referrals for general TheHealthLawFirm.com. procurement, construction, management civil litigation in the Houston area. Contact and closeout of projects. The ideal candi- Manfred Sternberg, Jr. at (713)622-4300. Appellate briefs, motions, legal research. date must possess a Juris Doctorate (JD) Attorneys: the appellate process is your last from an accredited law school, be licensed Brief writing/legal research. Columbia chance to modify or defend your judgment. to practice law in the state of Louisiana, Law School graduate; former U.S. 5th Lee Ann Archer, former Louisiana Supreme and have at least three years of relevant Circuit staff attorney; former U.S. District Court clerk and Tulane Law honors gradu- experience in construction law, public Court, Western District of Louisiana, law ate, offers your best chance, with superior bid law, procurement and/or contract law. clerk; more than nine years of legal experi- appellate briefs, outstanding legal research, Prefer government contract experience. ence; available for brief writing and legal pinpoint record review and 20-plus years For more information, visit the website at research; references and résumé available on of appellate experience. Confidential; state- www.hano.org. Submit an application and request. Douglas Lee Harville, lee.harville@ wide service; fast response. Call (337)474- résumé to [email protected]. HANO theharvillelawfirm.com, (318)222-1700 4712 (Lake Charles); email lee@leeaarcher. offers a highly competitive salary and (Shreveport). com; visit www.leeaarcher.com. benefit package. The Housing Authority of New Orleans is an equal opportunity Legal research/briefs, drafts of pleadings Briefs/pleadings/legal research. Thirty- and drug-free employer. carried out efficiently and promptly. Thirty plus years of litigation and appellate experi- years’ litigation and appellate experience; ence in Louisiana courts, U.S. 5th Circuit Busy defense practice seeks full-time AV-rated. Résumé available on request. For and U.S. Supreme Court. Law Review, attorney, up to five years’ experience, more information, contact Bonnie Zakotnik, AV-rated. Résumé available upon request. with interest in litigation; primary focus in (504)296-6011 and (504)486-6011, zakot- Contact Regel L. Bisso, Bisso & Miller, professional liability defense and medical [email protected] (New Orleans). L.L.C., [email protected]. (504)830-3401 malpractice. Salary commensurate with and (504)905-3450 (New Orleans).

EXAMINER OF QUESTIONED DOCUMENTS Computer Forensic Examiner WILLS • CHECKS Court Qualified Expert Witness ALTERED RECORDS Caddo, 1st Judicial District DISPUTED SIGNATURES Federal, W. District of LA Mary Ann Sherry, CDE Board Certifi ed • Court Qualifi ed EnCase Certified Examiner NADE DIPLOMATE D. Wesley Attaway Greater N.O. Area (504) 889-0775 318-797-4972 or 393-3289 (cell) Outside Greater N.O. (888) FORGERY www.maryannsherrycde.com [email protected]

Louisiana Bar Journal Vol. 59, No. 5 385 Lawyers Resource Group: Serving Virtual office. Spend more time in New with or opposing this petition must file attorneys and their clients with transi- Orleans and write off your trip. Will pro- notice of same within 30 days with the tional preparations for incarceration. Call vide mailing address, conference room, Louisiana Attorney Disciplinary Board, (318)699-0036 or (405)694-7357, services phone services, lobby receptionist, copy, Ste. 310, 2800 Veterans Memorial Blvd., available seven days a week, night or day. fax, voice mail, Internet. 829 Baronne St. Metairie, LA 70002. Don’t let your clients and their families Contact Cliff Cardone, (504)522-3333. face federal prison without understanding Robert A. Liptak has filed a petition and the system. We remove desperation from NoticeNotice application for reinstatement to the practice incarceration. of law in Louisiana. Individuals may file Notice is hereby given that Martha E. notice of concurrence or opposition within ForFO RentR RENT Minnieweather intends to make appli- 30 days with the Louisiana Attorney Dis- CovingtonCOVINGTON cation to the Louisiana Supreme Court ciplinary Board, Ste. 310, 2800 Veterans for reinstatement to the practice of law Memorial Blvd., Metairie, LA 70002. Executive office suites. Two blocks to in Louisiana. Any person(s) concurring Covington courthouse. Includes utilities, cleaning, conference room, library, kitchen, off-street parking, fax, copier and wireless INDEX TO ADVERTISERS Internet. From $400/month. Owner-broker: call (985)867-0747 and (985)893-7480 or email [email protected]. ABA Members Horne, L.L.P...... 313 Retirement Program...... 319 ForFO RentR RENT The Koerber Company, P.A...... 363 New Orleans Alston Law Firm, L.L.C...... 357 NEW ORLEANS Sandra Kreuter...... 386 Office space to share with trusts and D. Wesley Attaway...... 385 estate firm for up to two attorneys and LaPorte Sehrt Romig Hand...... 370 staff in 400 Poydras Tower. Includes a Bourgeois Bennett...... 365 breathtaking river view, tastefully ap- Legier & Company...... IFC pointed reception room, two conference Bruno & Bruno...... 317 rooms, kitchen, color copier/fax/scanner, LexisNexis...... 314 telephone system and Internet. Covered Bryson Law Firm, L.L.C...... 362 Louisiana Association parking available. Contact Rosa Harshaw Cardone Law Firm, P.L.C...... 361 for Justice...... 379 at (504)525-0815 for more information. Christovich & Kearney, L.L.P...... 357 MAPS, Inc...... 360, 367 Office space available in newly renovated four-story building located in the heart of CMC Advisors...... 372 Montague Pitman & Varnado...... 384 the New Orleans CBD. Choose from individual offices or suites up to 2,000 square David S. Cook/Mediator...... 364 Christopher M. Moody...... 366 feet. Access to conference rooms, kitchen and other amenities included. Terms ne- CoreVault...... 371 Plastic Surgery Associates...... 374 gotiable depending upon space needed. Contact Stephen Barry at (504)525-5553 Docusource...... 353 Restaurant Expert Witness...... 373 or [email protected]. Kay E. Donnelly & Associates...... 357 Schafer Group, Ltd...... 373

Vocati onal Expert Witness ERISA Benefits Law Group...... 377 Schiff, Sheckman Court Qualiﬁ ed & White, L.L.P...... 356 Licensed Rehabilitati on Counselor Robert G. Foley...... 384 Mary Ann Sherry...... 385 LA and MS • Federal & State Court Tom Foutz/ADR inc...... 351 Workers Comp/General Liability/ Texas Corp. Supplies...... 385 Gilsbar, Inc...... IBC Personal Injury West, A Thomson Business...... OBC SANDRA G. KREUTER, CDMS, LRC, CRC The Law Offices of Phone: (985) 845-8856 Deborah M. Henson...... 356 [email protected]

386 February / March 2012 News Awards... local bars... LBF

Update Louisiana Center for Law and Civic Education Receives Sandra Day O’Connor Award U.S. Marshals Service The Louisiana Center for Law and “There is no better way to educate our Conducts Court Civic Education (LCLCE) was named youth than with organizations such as the 2011 recipient of the Sandra Day the Louisiana Center for Law and Civic Security Training O’Connor Award for the Advancement of Education (LCLCE). For nearly 20 years, Sessions Civics Education by the National Center its activities have promoted understanding for State Courts (NCSC). The award and a sense of pride in our justice system The United States Marshals Service, honors an organization, court or individual and government,” Chief Justice Kimball at the request of the Louisiana Supreme who has promoted, inspired, improved or said. “This honor is well-deserved and Court, conducted regional training ses- led an innovation or accomplishment in I applaud LCLCE for being recognized sions in 2011 for Louisiana sheriffs the field of civics education related to the as the recipient of the 2011 Sandra Day and their court security personnel, in justice system. O’Connor Award for the Advancement of conjunction with the court’s efforts to “The Louisiana program stands out for Civics Education,” she added. improve court security statewide. The its impressive array of innovative programs, Mark A. Cunningham, currently serving sessions were conducted in New Orleans, its exemplary efforts at collaboration, and as LCLCE president, said this award Shreveport and Lafayette and addressed the fact that it reaches students throughout represents a true collaboration of several issues such as improving facility security the state,” said NCSC President Mary legal professionals. “This award has been for all levels of budget, high-threat tri- McQueen. The award will be presented at earned over the course of more than a als, and security for judges both at the a future date. decade and reflects the work of countless courthouse and at home. The LCLCE is a nonprofit organization Louisiana judges, attorneys and educators The Marshal Service training was that coordinates, implements and develops working in partnership to make certain recommended following a study com- law and civics education programs; trains that younger generations understand and missioned by the Louisiana Supreme educators how to teach civics education appreciate the importance of the rule of law Court’s Court Security Task Force, programs; and assists with the delivery of law in our society,” he said. chaired by 17th Judicial District Judge and civic education programs throughout A former LCLCE president, Louisiana Jerome J. Barbera III. Louisiana. The organization was established 4th Judicial District Court Judge C. Wendell About 31 parishes were represented in 1992 and contains several components Manning summed up the organization’s im- at the training sessions hosted by U.S. and programs, including Lawyers in the pact on Louisiana students. “The lesson plans Marshal Ginny May, Eastern District Classroom/Judges in the Classroom; We the and programs are interactive, transforming of Louisiana; U.S. Marshal Henry L. People: The Citizen and the Constitution; instruction in civics and law-related educa- Whitehorn, Sr., Western District of Annual Summer Institute for Social Studies tion into a fun experience for both students Louisiana; and U.S. Marshal Kevin Educators; and Law Signature Schools. and teachers. In a nut shell, the LCLCE Harrison, Middle District of Louisiana. On reviewing the programs implemented makes law and civics education come alive Chief Deputy U.S. Marshal Steve Hart- by the LCLCE, U.S. Supreme Court Justice in the classroom,” he said. man (Eastern District) designed the (Ret.) Sandra Day O’Connor wrote via letter The award is named in honor of retired training program, and Chief Inspector that she was impressed. “With the develop- U.S. Supreme Court Justice Sandra Day John Muffler, administrator for the Na- ment of the programs and its training of O’Connor because of her commitment to tional Center for Judicial Security, was educators, LCLCE, along with its volunteer improving civics education. Since retiring a featured speaker. professionals, have benefited numerous stu- from the bench in 2006, Justice O’Connor dents throughout the state of Louisiana. This has become a tireless advocate working to Send Your News! is exactly what I envisioned would happen increase awareness and understanding of The LSBA would like to publish news and throughout the country,” she wrote. how our government works. She established photos of your activities and accomplishments. Send your material to LSBA Publications Louisiana Supreme Court Chief Justice iCivics, a program that uses web-based edu- Coordinator Darlene M. LaBranche, 601 St. Catherine D. Kimball and State Court Ad- cational tools to teach civics education and Charles Ave., New Orleans, LA 70130-3404 or ministrator Timothy F. Averill nominated to inspire students to be active participants email [email protected]. the LCLCE for the award. in society.

Louisiana Bar Journal Vol. 59, No. 5 387 Commercial Litigation Practice Group, Court Finalizes Rule Local/Specialty bars Vance’s practice focuses primarily on for Reporting Tort business litigation, creditors’ rights litigation and bankruptcy. Case Statistical Vance Installed as He earned a BA degree, with highest Information 87th President of honors, in 1970 from Louisiana State New Orleans Bar University and his JD degree in 1975 The Louisiana Supreme Court final- from Louisiana State University Paul M. ized the rule and Civil Case Reporting Association Hebert Law Center. Form regarding reporting of certain tort Vance has served on the NOBA case statistical information. This new New Orleans at- board of directors. He is a Fellow of the reporting system became effective on torney R. Patrick American College of Trial Lawyers, the Jan. 1. The Civil Case Reporting Form Vance was installed American Law Institute and the American is essentially unchanged from the version as the 87th pres- College of Bankruptcy, and an officer previously placed on the website during ident of the New and conferee of the National Bankruptcy the comment period. The form is to be Orleans Bar Asso- Conference. completed by the filing attorney, his/her ciation (NOBA) at He also is a member of the American representative, or the self-represented the Annual Meeting Bar Association, the American College litigant at the time the petition is filed. in November 2011. of Bankruptcy Foundation, Kid Sm Art, To review the final court rule and the A partner in Jones, R. Patrick Vance Louisiana State University Honors Col- approved Civil Case Reporting Form, go Walker, Waechter, lege Advisory Council and Southeast to: www.lasc.org. Poitevent, Carrère & Denègre, L.L.P., Louisiana Legal Services. and leader of the firm’s Business and

The Louisiana State Bar Association presents

2012

Friday, April 27, 2012 • Sheraton New Orleans Hotel • 500 Canal St. ake your litigation skills to the next level. Learn how successful and experienced trial lawyers win their cases. From opening statements to closing arguments and everything in between, this seminar is designed to help lawyers of all skill levels obtain the best results for their clients. Join us for a day of educating law- Tyers with trial skills that will make you effective in the courtroom. Whether you are a novice or seasoned trial lawyer, plaintiff or defense counsel, this program will assist you in your next trial and trials thereafter. This program has been approved for a maximum of 6 hours of CLE credit, including 1 hour of professionalism.

Registration Fees Advance Registration (by April 20, 2012)...... $375 On-Site (Printed Seminar Manual automatically included; Jazz Fest Tickets NOT included)...... $325 The Advance Registration fee includes: electronic course materials • seminar attendance • coffee/refreshment breaks • two (2) tickets to Jazz Festival (if registration form and payment are received by April 20)

388 February / March 2012 Goodier Receives Lee Receives NOBA Arceneaux NOBA Distinguished Professionalism Award Maritime Lawyer Award New Orleans at- He is a former president of the Louisiana torney Wayne J. Lee State Bar Association. He received two New Orleans received the New LSBA President’s Awards — in 1993 for attorney Glenn G. Orleans Bar Asso- his work as chair of the Continuing Legal Goodier received the ciation’s (NOBA) Education Program Committee and in 1998 2011 Distinguished Arceneaux Profes- for work as co-chair of the Practice Assis- Maritime Lawyer sionalism Award at tance and Improvement Committee. Award from the New the Annual Meeting Orleans Bar Associa- in November 2011. ANSWERS for puzzle on page 352. tion at a luncheon in 1 2 3 4 5 6 7 The award is present- Wayne J. Lee L O U I S I A N A S U r October 2011. The ed to a lawyer whose I P E L L C O 8 9 award honors mari- Glenn G. Goodier practice has exemplified the highest levels E N S U E W I L L I A M time attorneys for N C A S F A of integrity, honor and civility. 10 11 12 their dedication in practicing admiralty Lee is a member of the firm Stone M A L A d y E V I A N law and contributions to the local admi- L d S E C Pigman Walther Wittmann, L.L.C., and 13 14 15 ralty bar. P r E W A r P I E r r E chairs the firm’s Commercial Litigation 16 Goodier leads the Admiralty and A M P N U Practice Group. He received his law de- 17 18 19 G I L E S L E G E N d Maritime Practice Group of Jones, Walker, 20 gree in 1974 from Tulane Law School, E I O A I d Waechter, Poitevent, Carrère & Denègre, where he was chosen to the Order of the 21 22 L.L.P. He has more than 35 years of ex- A L M O N d S B U N N y Coif and was a member of the Tulane N B I M E T E perience handling all aspects of domestic 23 24 Law Review Board of Editors. T O O S T A T E H O O d and international maritime law. He earned his BBA degree from Loyola University and his JD degree from Loyola University College of Law. Testimonial speakers included Hon. Edith Brown Clement, Andre J. Moule- doux and Grady S. Hurley.

New Orleans Martinet Legal Society Hosts Holiday Luncheon

The Greater New Orleans Louis A. Martinet Legal Society, Inc. hosted its first holiday luncheon at Dooky Chase’s Restaurant in December 2011, with more than 60 judges and attorneys in attendance. Martinet officers shared their goals and proposed a calendar for 2011-12. Luncheon speakers included Hon. Edwin A. Lombard, Hon. Hebert A. Cade and attorney James Gray, Sr. who shared their memories of Martinet during its early years, including efforts to get the first African-American judges and politicians elected in the New Orleans area. The Southwest Louisiana Bar Association conducted a food and donation drive in November 2011 to The chapter also collected toys for benefit the Oak Park Food Pantry in Lake Charles. The agency serves about 170 families and was in danger Covenant House. Covenant House serves of closing due to low donations. The legal community was asked to collect canned goods and other non- children of all ages (infants-teens). perishable items. Staff from the Richard Law Firm picked up and delivered all donated food items. As a result of the efforts, the pantry went from $800 worth of groceries to more than $8,000 worth of goods.

Louisiana Bar Journal Vol. 59, No. 5 389 Louisiana Bar Foundation President’s Message Interview of 2011-12 Outgoing President Mathile W. Abramson

Interviewed by 2011-12 Secretary C. Wendell Manning

Manning: Did you learn anything Program has provided a much needed memories. I cherish the old friends I have new this year about the Louisiana Bar service to the children in the state who worked with and have delighted in the new Foundation’s (LBF) work? heretofore may not have had separate, friends I made throughout the state. We Abramson: I became more aware if at all, legal representation from their have worked to achieve common goals. of the extensive work performed by our parents/guardians. This program began Most rewarding has been to see firsthand grantees on behalf of the poor. This led in 2009 as a collaboration with the Office the individuals and organizations helped to a greater appreciation on my part of of the Judicial Administrator, the Legal by the LBF. the significant numbers of very diverse Service Corporations, and Department organizations that the LBF funds. I had the of Children and Family Services. Dur- Manning: Is there anything else you opportunity to work with many public ser- ing the 2010-2011 fiscal year, the LSCs would like to add? vice attorneys who are devoted to provid- represented 1,732 foster care children Abramson: We are celebrating our ing access to the legal system. Likewise, and 303 non-custodial children through 26th Annual Fellows Gala on April 20 there are a large number of LBF Fellows the CINC program. where my LBF presidency will end. I who devote countless hours helping with hope to see you there. the grants process and other projects that Manning: How has your service as Working with the LBF members and enable the LBF to carry out its mission. president affected your beliefs about the staff, hopefully we have made the world (As an aside, I am almost fluent in the justice system? a little better place and have helped sow “LBF lingo” of acronyms. I may not have Abramson: I have seen firsthand that seeds for those who come after to harvest. mastered them all but I know now what the justice system can and does work. This last year has gone by so quickly. most of them represent.) Likewise, I know that inadequate funding There are many to whom I am grateful for legal aid results in the inability for (my apologies if I have left anyone out). Manning: What was the biggest chal- some poor to gain access to the justice I thank my law firm Kean Miller and my lenge facing the LBF this year? system. The need for direct legal services secretary Brenda Clark for your support Abramson: The continuing chal- to the poor is so great. LBF work covers and help. Thank you Louisiana State Bar lenge is to meet the increasing need for so many areas and the LBF is always Association President Jimmy Davidson legal services as the financial landscape ready and poised to step up as much as for the assistance I received from you, declines. The impact the LBF has on fiscally possible. the staff and leadership. providing funds for legal services to the I am most grateful to Executive Direc- poor has become even more clear. The Manning: Do you have any advice for tor Donna Cuneo and the entire LBF staff LBF was able to maintain grants during future leadership? who are so competent and always ready the 2011-2012 fiscal year (only by dipping Abramson: Leadership is developed and willing to help in any way. They truly into reserves). Unfortunately because of by rolling up your sleeves and getting share the vision of what the LBF is the stagnant interest rate, we will not be involved. This is a working Board. The all about. I appreciate the entire LBF able to do so for the 2012-2013 fiscal LBF provides many opportunities for Fel- membership, the Board, Vice President year. By safeguarding the financial health lows to get involved through committee Patricia Krebs, Treasurer Leo Hamilton, of the LBF, the Board ensures future and Community Partnership Panels. The Secretary Wendell Manning and Past financial support of the many agencies LBF’s continued success relies upon the President Herschel Richard. Thanks to relying on it. future leadership’s willingness to give our past leadership, current leaders, and their time, talent and efforts. Good luck all of you for your help and the wonderful Manning: What do you believe was the in the LBF’s future endeavors and know opportunity. It is an honor to serve on the biggest impact the LBF made this year? that you have my support. Board and be your president. Abramson: As discussed above, the To my husband Steven and my fam- LBF was able to maintain funding levels Manning: What is your fondest ily, thank you for your love, patience for the 2011-2012 fiscal year and provide memory from this year? and support. stability to our grantees. On an individual Abramson: As I reflect on my program basis, the LBF’s role in adminis- presidential year and my time as a board tering funds for the Child in Need of Care member, it is filled with many wonderful

390 February / March 2012 Louisiana Bar Foundation’s Second Annual Assembly April 19-20 in New Orleans The Louisiana Bar Foundation (LBF) recommendations on 2012-13 grant fund- to Gregory A. Pechukas, director of is conducting its second Annual Assembly ing. Also at 9 a.m., the Kids’ Chance Central Staff for the Louisiana Supreme on Thursday and Friday, April 19-20. All Committee will meet to discuss recom- Court. events are being conducted at the Ritz mendations on 2012-13 scholarships. The black-tie 26th Annual Fellows Carlton New Orleans, 921 Canal St., On Friday, April 20, the Annual Fel- Gala, beginning at 7 p.m., will close out the New Orleans. lows Membership meeting begins at 8 a.m. Assembly. The gala features presentation The Annual Assembly celebrates the Fellows will be updated on LBF activities of the 2011 Distinguished Jurist, Attorney LBF’s mission to preserve, honor and and will elect new board members. The and Professor Awards, and installation of improve the system of justice by funding, President’s Award and the Horn Blower the 2012-13 officers. developing and promoting efforts which Award will be presented, and the LBF For a full events schedule, go to: www. enhance the legal profession, increase Community Partnership Panels and com- raisingthebar.org/AbouttheFoundation/ public understanding of the legal system mittee chairs will be recognized. At 9 a.m., AnnualAssembly.asp. For more informa- and advance the reality of equal justice the board of directors will meet. tion, contact Laura C. Sewell at (504)561- under the law. The Distinguished Honoree Luncheon 1046 or email [email protected]. On Thursday, April 19, the Grants begins at noon on April 20 and the 2011 Committee will meet at 9 a.m. to discuss Calogero Justice Award will be presented

LBF Annual Fellows Gala to Recognize Louisiana Bar Foundation Distinguished Honorees Announces New Fellows The Louisiana Bar Foundation The 2011 Distinguished Jurist, At- raisingthebar.org. For more information, announces the following new Fellows: torney and Professor will be recognized contact Laura Sewell at (504)561-1046 or Hon. Dawn Amacker...... Covington during the Louisiana Bar Foundation’s email [email protected]. Sebastian C. Ashton...... Baton Rouge 26th Annual Fellows Gala, set for Friday, Also serving on the 2012 Annual April 20, at the Ritz-Carlton New Orleans, Fellows Gala Committee are Darrel Patrick J. Babin...... New Orleans 921 Canal St., said Lexi T. Holinga and Papillion (Board liaison), H. Minor Mark L. Barbre...... Baton Rouge Christopher K. Ralston, co-chairs of the Pipes III (Board liaison), Kevin O. Ains- Shelton Dennis Blunt...... Baton Rouge 2012 Gala. The gala begins at 7 p.m. and worth, Celeste Coco‑Ewing, Bernadette Joy G. Braun...... New Orleans will feature a live auction. A patron party D’Souza, Kelsey Meeks Duncan, Nakisha will be held prior to the gala. Ervin‑Knott, Kyle A. Ferachi, Kelsey Hon. Tracey This year, the LBF is honoring Dis- Kornick Funes, Pamela Gibbs, Steven F. Fleming-Davillier...... New Orleans tinguished Jurist, Benjamin Jones, 4th Griffith, Jr., Franchesca Hamilton‑Acker, Laila L. Hlass...... New Orleans Judicial District; Distinguished Attorney, John H. Musser IV, Adrian G. Nadeau, Hon. Veronica E. Henry...New Orleans William Shelby McKenzie, with Taylor, Denise Redmann, David Shea, Michelle Porter, Brooks & Phillips, L.L.P.; and M. Sorrells, Laranda Moffett Walker and Hon. Paulette R. Irons...... New Orleans Distinguished Professor, Robert A. Pas- Sharonda R. Williams. Craig R. Isenberg...... New Orleans cal, Louisiana State University Paul M. Brian D. Lenard...... Hammond Hebert Law Center. Laurie W. Lyons...... Shreveport Gala proceeds will help strengthen Review the LBF’s 2011 Warren P. McKenna III....New Orleans the programs supported and provided by Annual Report Online! the Louisiana Bar Foundation. Several Fred A. Menner...... Baton Rouge sponsorship levels are offered. For more The Louisiana Bar Foundation’s Julie U. Quinn...... Metairie information, go to: www.raisingthebar. 2011 Annual Report is posted online. Hon. Penelope Q. Richard..... Cameron org/gala2012. Go to: Individual tickets to the gala are avail- Tom D. Snyder, Jr...... Metairie www.raisingthebar.org/About able for $150. Young lawyer individual TheFoundation/AnnualReports.asp David A. Strauss...... New Orleans gala tickets are $100. Gala ticket reserva- Dylan M. Tuggle...... New Orleans tions can be made by credit card at www.

Louisiana Bar Journal Vol. 59, No. 5 391 Lucid INTERVALS By Vincent P. Fornias Making a (federal) Point

lame this on the history major in me. The year 1450 is a self-explanatory date to all our readers, isn’t it? No, Bthat is not the date of origin of MCLE rules. Almost as importantly, in that fateful year, one Johannes Gutenberg invented the printing press. Not only did this invention forever empower anal-retentive appeal court briefing clerks, it also crystallized the growing 15th-century movement for proper punctuation. Originating from “pointing,” this began as a rough system of marks used in the Middle Ages to indicate to a speaker when he should pause or catch his breath during a recitation. Now, isn’t that scintillating material for your next cocktail party? If for no other reason, we should be forever grateful to Herr Gutenberg’s creation for spawning acridly sarcastic footnotes in judicial decisions castigating the misuse of our mother tongue. It is no coincidence that the vast majority of these originate from the federal judiciary, who have carte blanche to rap ungrammatical Though laudable for “the old college try,” the Sanches wrists without fear of electoral consequences. decision pales in comparison to footnote 1 found in Factac, Inc. Among my personal favorites is footnote 13 in Sanches v. v. King, Bankruptcy Case No. 05-56485-C, WD, Texas, 2006, in Carrollton-Farmer’s Branch Independent School District, No. which, denying defendants’ motion “For Incomprehensibility,” 10-10325, U.S. 5th Circuit, 2011: the court decreed:

Usually we do not comment on technical and grammatical Or, in the words of the competition judge to Adam errors, because anyone can make such an occasional Sandler’s title character in the movie, “Billy Madison,” mistake, but here the miscues are so egregious and after Billy Madison had responded to a question with an obvious that an average fourth grader would have avoided answer that sounded superficially reasonable but lacked most of them. For example, the word “principals” should any substance, have been “principles.” The word “vacatur” is misspelled. The subject and verb are not in agreement in one of the Mr. Madison, what you’ve just said is one of the most sentences, which has a singular subject (“incompetence”) insanely idiotic things I’ve ever heard. At no point in your and a plural verb (“are”). Magistrate Judge Stickney rambling, incoherent response was there anything that is referred to as “it” instead of “he” and is called a could even be considered a rational thought. Everyone in “magistrate” instead of “magistrate judge”. And finally, this room is now dumber for having listened to it. I award the sentence containing the word “incompetence” makes you no points, and may God have mercy on your soul. no sense as a matter of standard English prose, so it is not reasonably possible to understand the thought, if any, that Deciphering motions like the one presented here wastes is being conveyed. It is ironic that the term “incompetence” valuable chamber staff time, and invites this sort of footnote. is used here, because the only thing that is incompetent is • • • the passage itself. In closing, we would probably paraphrase the ancient dictum, “Power corrupts. Absolute power corrupts... grammatically.”

If you have experienced, seen or heard something humorous in your day-to-day legal practice, or if you just have an idea for a Lucid Intervals column, by all means, let the Louisiana Bar Journal know. Mail, fax or e-mail your stories, anecdotes, quotes or ideas c/o Publications Coordinator Darlene M. LaBranche, Louisiana State Bar Association, 601 St. Charles Ave., New Orleans, LA 70130- 3404; fax (504)566-0930; e-mail [email protected]. She’ll make sure your “gems” get into the right hands. Keep smiling!

392 February / March 2012

Selected as the 2011

New Productof Law of theLibraries. Year by the American Association

“ IT HELPS ME ADDRESS MY CLIENTS’ ISSUES ANYTIME, ANYWHERE.”

TIM JOHNSON PRINCIPAL ATTORNEY MATTHEWS, LAWSON & JOHNSON, P.L.L.C. HOUSTON

Is your firm using the efficiencies of mobile technology to differentiate your client service and value? Matthews, Lawson & Johnson, P.L.L.C. is – by using the WestlawNext® iPad® app. “Serving my clients is not a 9-to-5 job. Ideas come around the clock,” Tim says. “The WestlawNext app automatically syncs with the research I’ve already done on the WestlawNext website, giving me access to my key resources when I leave the office.” Learn more about the iPad app at WestlawNext.com. Learn more about Matthews, Lawson & Johnson, P.L.L.C. at www.matthewsfirm.com.

 