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October/November 2005 Volume 53, Number 3

Gearing Up for Appeals • Louisiana Appellate Practice & Procedure • 2005 Amendment to LA C.C.P. Art. 2083 Legier & Materne CB-haystack 9/8/04 11:55 AM Page 1

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Order FORMDISK™ 2005 using this order form or call or write for more information. Template, Inc., P. O. Box 11810, New Iberia, LA 70562-1810 Order by telephone with VISA or MasterCard. (337) 367-3643 • Fax: (337) 365-5965 Louisiana Bar Journal Vol. 53, No. 3 201 SERVING LOUISIANA LAWYERS FOR 15 YEARS Working together to take you where you want to go.

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202 October/November 2005 October/November 2005 Volume 53, Number 3

T A B L E O F C O N T E N T S

DEPARTMENTS

Member Services Focus on Professionalism 210 Professionalism Successes and Challenges President’s Message By E. Phelps Gay Teaching Students: Our Democracy 234 By Frank X. Neuner, Jr. 212 Recent Developments 236 Association Actions Law School Young Lawyers Professionalism Orientations 252 224 Judicial Notes Lawyers Helping Lawyers 255 Public Opinion 05-RPCC-003 By Rules of Professional People FEATURES Conduct Committee 256 Gearing Up for Appeals 230 Discipline Reports Pro Bono 258 Louisiana Appellate Practice LSBA Officers Do Pro Bono By Rebecca K. Knight Classified and Procedure: 233 260 An Overview for Legal Practitioners News By Jonathan C. Augustine 264 214 Lucid Intervals 2005 Amendment California Scheming to La. C.C.P. Art. 2083: By Vincent P. Fornias Appellate Review of 274 Interlocutory Rulings By William R. Forrester, Jr. 220

274

Cover design by Shelly A. Buckel

Louisiana Bar Journal Vol. 53, No. 3 203 Officers 2005-06 President Frank X. Neuner, Jr. • (337)237-7000 Editorial Board President-Elect Marta-Ann Schnabel • (504)799-4200 Secretary Editor Margaret E. Judice E. Wade Shows • (225)346-1461 E. Wade Shows (337)828-1880 ® Treasurer (225)346-1461 Kym K. Keller Kim M. Boyle • (504)679-5790 (504)569-7405 Chair, Young Lawyers Section Managing Editor Amelia W. Koch Dona Kay Renegar • (337)237-4370 Darlene M. LaBranche (504)566-5222 Immediate Past President (504)619-0112 Lawrence E. Marino Michael W. McKay • (225)389-1060 (337)233-1100 Board Members Judge Mark D. Plaisance Board of Governors 2005-06 Judge Robert J. Burns (225)775-5297 First District (504)779-5703 Gail S. Stephenson Patricia A. Krebs • (504)582-3800 John “Chip” S. Coulter (225)771-4900, ext. 267 Ronald J. Sholes • (504)585-0479 (225)326-6405 Lucie E. Thornton Craig M. Freeman (985)892-9604 Second District (225)578-7381 Katherine Tonnas Joseph A. Conino • (504)834-9010 Edward C. Gleason (504)367-5939 Third District (504)523-2111 Edward J. Walters, Jr. Steven G. “Buzz” Durio • (337)233-0300 Shannan L. Hicks (225)766-1100 Fourth District (318)671-8102 James R. Nieset • (337)436-0522 Fifth District Celia R. Cangelosi • (225)387-0511 Sixth District The Louisiana Bar Journal (ISSN 0459-8881) is published bimonthly in the William M. Ford • (318)442-8899 months of February/March, April/May, June/July, August/September, Octo- Seventh District ber/November and December/January by the Louisiana State Bar Associa- Richard L. Fewell, Jr. • (318)388-3320 tion, 601 St. Charles Avenue, New Orleans, Louisiana 70130. Telephone: Eighth District (504)566-1600. Periodicals postage paid at New Orleans, Louisiana and Edwin L. Blewer, Jr. • (318)227-7712 additional offices. Annual subscription rate for members is $5, which is At-Large Members included in the dues; and for nonmembers, $45 (domestic) and $55 (foreign). Pamela W. Carter • (504)566-5200 Canada Agreement No. 40843510. Canada return address, Station A P.O. Paula Hartley Clayton • (225)344-1988 Box 54, Windsor, Ontario N9A 6J5. E-mail [email protected]. Shannan L. Hicks • (318)671-8102 Postmaster: Send change of address to: Louisiana State Bar Journal, 601 LSU Paul M. Hebert Law Center St. Charles Avenue, New Orleans, Louisiana 70130. John M. Church • (225)578-8701 Publication of any advertisement shall not be considered an endorsement of Tulane Law School the product or service involved. Manuscripts are welcome and preparation Raymond T. Diamond • (504)865-5962 instructions may be obtained on request. The right is reserved to select Louisiana State Law Institute materials to be published. Material accepted for publication becomes the Joseph W. Mengis • (225)767-7730 property of the Louisiana State Bar Association. House of Delegates Liaison Chair Statements or expressions of opinion appearing herein are those of the James E. Boren • (225)387-5786 authors and not necessarily those of the Association, Journal or editors. Copyright 2005, by Louisiana State Bar Association. Editorial Staff Editor Luminary Award E. Wade Shows 2003 Executive Director National Association Loretta Larsen, CAE of Bar Executives Publications Coordinator/Managing Editor Communications Section Darlene M. LaBranche Excellence in Regular Marketing Coordinator Publications Germaine A. Tarver Communications Coordinator INTERNATIONAL ASSOCIATION OF Shelly A. Buckel BUSINESS Advertising Questions? PUBLIC RELATIONS SOCIETY COMMUNICATORS OF AMERICA (504)619-0112 NEW ORLEANS NEW ORLEANS CHAPTER CHAPTER AWARD OF BRONZE QUILL AWARD OF MERIT

204 October/November 2005 Louisiana Bar Journal Vol. 53, No. 3 205 Attorney Volunteers Needed at Call Center and Disaster Recovery Centers Hurricanes Katrina and Rita may have 200 phone calls a day coming into the The Call Center is being staffed Mon- been relegated to the history books, but Louisiana Legal Assistance Call Center, day through Saturday, 8 a.m. to 8 p.m., the legal problems experienced by survi- operating at its new location at Louisiana and can be reached at 1-800-310-7029. vors in the aftermath of those storms are State University’s Paul M. Hebert Law To volunteer for both projects, go to: still fresh, as evidenced by the more than Center, and by the numbers of people http://www.lsba.org/home1/ seeking assistance at the 36 FEMA disas- pdfvolunteer.pdf. For DRC service, re- ter recovery centers (DRC) statewide. turn the form by fax or e-mail to Susan Attorney volunteers are needed to pro- Simon at [email protected], fax Need Free vide free legal advice for both endeavors. (337)233-9450, or call (337)237-7000 Of particular need are attorneys who can (office) or (337)654-4507 (cell). Legal Research? offer a physical presence at the Call Cen- Access Fastcase ter to provide immediate answers to legal Disaster Training Manual Published concerns, but attorneys throughout the The Louisiana State Bar Association, Do you need access to free legal state can participate by offering to take under the leadership of Lafayette lawyer on the non-fee-generating cases from the research? Use Fastcase, the online Susan Simon with the assistance of count- Call Center. legal research tool provided free less volunteers, has published a disaster For DRC service, attorney volunteers training manual for attorneys to use to to all members by the Louisiana are asked to work in two-hour shifts, provide legal services to individuals in State Bar Association. Click on either answering quick questions or tak- the aftermath of Hurricanes Katrina and “Fastcase” at the top of the LSBA’s ing information, which is then sent to the Rita. Go to www.lsba.org for this manual home page, http://www.lsba.org. Call Center for referral to handling attor- and others from the American Bar Asso- neys. ciation and other state bars.

The Andry Law Firm will pursue all legal means to get a fair and just result in any case we accept. Often this means a lot of research and Justice can always be found... homework on our part; but this is where cases are won and lost. Preparation is the best way to make a case. In short, we strive to maximize the value of our client’s claims. Regarding select plaintiffs’ if you know where to look. cases for referral, if you need a firm that has a proven track record involving Serious Personal Injuries, Wrongful Deaths, Mass Torts, Class Actions, Environmental or Maritime, then give us a call. We can help!

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206 October/November 2005 Louisiana Bar Journal Vol. 53, No. 3 207 Attorneys Urged to Update Lawyers Assistance Program Contact Information on LSBA.org Offering Counseling Help by Phone To ensure that the courts, their clients and other lawyers will be able to communicate with them in the aftermath of Hurricanes Katrina and Rita, Lawyers Assistance Program, Inc. displaced LSBA members are urged to go to http://www.lsba.org/home1/ (LAP) Director William R. Leary an- memberslogin.asp to update their contact information. Attorneys should use the nounced that LAP has contacted trauma format MM/DD/YYYY for their dates of birth. Those having problems logging and critical incident therapists who have in should call (504)566-1600 or e-mail [email protected]. volunteered to help lawyers and their families by telephone. The process offers an informal oppor- Supreme Court Issues Response which allow attorneys to carry forward tunity for participants to discuss the im- about CLE Carryover Hours up to eight (8) hours of CLE credit earned pact of the hurricanes. In response to questions about con- in excess of the minimum have not Go to: http://www.lsba.org/home1/ tinuing legal education carryover hours, changed. Accordingly, any attorney may NewsDetails.asp?NewsID=24 (Letter Louisiana Supreme Court Chief Justice carry forward up to eight (8) hours of from William Leary, LAP Director) for Pascal F. Calogero, Jr. issued the follow- continuing legal education earned or cred- the list of therapists’ names and “800” ing statement: ited for calendar year 2005 in excess of phone numbers. Use the “800” numbers “On Sept. 26, 2005, the court promul- the 12.5 hour annual minimum, pursuant for the initial call, then call LAP at gated an emergency rule which waived to Louisiana Supreme Court Rule XXX, (866)354-9334 for follow-up. Leary said the requirement, for calendar year 2005 Rule 5(b), and Regulations 3.5 and 5.5.” LAP will follow up beyond the crisis only, that attorneys complete the annual For the original court order, go to: with appropriate referrals and the forma- minimum legal education requirement of http://www.lsba.org/home1/ tion of mental health support groups 12.5 hours. The presently existing rules SCO09292005.pdf. across the state.

208 October/November 2005

Louisiana Bar Journal Vol. 53, No. 3 209 MEMBER Services TOTAL LSBA MEMBERS: 19,927

Louisiana Hotels Lake Charles The following hotels have Best Western Louisiana State Bar Association agreed to corporate dis- Richmond Suites 601 St. Charles Ave. • New Orleans, La. 70130 count rates for LSBA mem- (337)433-5213 bers. Call the hotel for the Shreveport (504)566-1600 • (800)421-LSBA Nationwide WATS line/members only current discounted rates. Sheraton Shreveport Fax (504)566-0930 • LSBA.org • E-mail: [email protected] When making reservations, Hotel • (318)797-9900 you must identify yourself as an LSBA member. Chain Hotels The following national ho- Programs New Orleans tel chains have agreed to For information about these LSBA programs, contact the Bar Office by Hotel InterContinental corporate discount rates for calling (504)566-1600 or (800)421-LSBA. (504)525-5566 LSBA members. Call for the Wyndham Canal Place current discounted rates. Alternative Dispute Resolution Program (504)566-7006 Fairmont Hotel Client Assistance Fund Pontchartrain (800)527-4727 Continuing Legal Education Program (800)777-6193 (415)772-5300 Ethics Advisory Service Fairmont Hotel Holiday Inn (800)527-4727 (800)HOLIDAY Lawyers’ Substance Abuse Hotline • (800)354-9334 • (504)868-4826 (504)529-4704 Use ID No. 100381739 for Legal Specialization Program Royal Sonesta Hotel reservations. Loss Prevention Counsel Judy Cannella Schott, Cynthia Oteri Butera, (504)553-2345 La Quinta (866)725-1661 Johanna G. Averill, Lindsey M. Ladouceur or Linda A. Liljedahl “W” Hotel www.lq.com (800)GILSBAR (800)777-7372 Rate Code: LABAR French Quarter (504)581-1200 Car Rental Programs Publications 333 Poydras St. The following car agencies (504)525-9444 have agreed to discount rates Louisiana Bar Journal Whitney Wyndham for LSBA members. “Bar Briefs” (504)581-4222 Avis Louisiana Bar Today (online newsletter) Iberville Suites Discount No. A536100 (504)523-2400 (800)331-1212 (A Ritz Carlton Hertz Online Services Property) Discount No. 277795 MCLE Transcripts Hotel Monaco (800)654-3131 Louisiana Bar Today Opinion Service (504)566-0010 Baton Rouge Other Vendors Membership Directory Radisson Hotel The following vendors have (225)925-2244 agreed to discount rates for Young Lawyers Section Ask for the “Executive Ad- LSBA members. vantage Rate” when making ABA Members Bridging the Gap your reservations. Retirement Program Mentor Program Sheraton Hotel & (800)826-8901 Young Lawyers’ Directory Convention Center Airborne Express (225)242-2600 (800)443-5228 Marriott Lexis/Mead Data Central Technology (225)924-5000 (800)356-6548 Technology Resource Center Richmond Suites Hotel MBNA America® Bank Thorne D. Harris III, Technology Consultant (225)924-6500 •MBNA Platinum PlusSM Credit Card (504)838-9108 • fax (603)462-3807 • e-mail: [email protected] Lafayette Hilton Lafayette •GoldSavers Money Market Account and Towers •GoldCertificate CD Insurance through Gilsbar (800)33CAJUN Account Hotel Acadiana Group Insurance • GoldOption Loan (800)826-8386 • GoldReserve Line Major Medical (337)233-8120 of Credit Disability Use VIP No. 71 when mak- (800)441-7048 Malpractice ing your reservations. United Parcel Service (800)325-7000 (800)GILSBAR • (504)529-3505 • See inside back cover

210 October/November 2005 Louisiana Bar Journal Vol. 53, No. 3 211 President’sMESSAGE CHALLENGING TIMES CREATE OPPORTUNITIES By Frank X. Neuner, Jr.

ouisiana and the Louisiana State There will continue Assistance Program. Bar Association (LSBA) are fac- Finally, we are currently in the middle to be many challenges Ling extraordinary challenges fol- of a special legislative session, and the lowing the destruction caused by Hurri- for the citizens LSBA is the sponsor and lead lobbyist on canes Katrina and Rita. These challeng- and lawyers House Bill No. 90, authored by Repre- ing times create opportunities for the sentatives Glenn Ansardi and Rick Gallot LSBA to provide more services and to in Louisiana, and as we and Senator Art Lentini. The LSBA and become more relevant to its members. face these challenges, its lobbyist, Larry Murray, have been One way the LSBA is assisting its working with the Louisiana Trial Law- members is through the Disaster Relief we will all have an yers Association, the Louisiana Associa- Fund, jointly administered by the LSBA opportunity to make tion of Defense Counsel and attorneys and the Louisiana Bar Foundation. The for the Louisiana Association of Busi- Grants Subcommittee of the Disaster Louisiana a better place ness and Industry to develop a bill which Relief Task Force recently met and to live, work and is acceptable to all parties and which the awarded 371 grants of $500 each raise our families. LSBA can support on behalf of its mem- ($185,500) to lawyers who were dis- bers. The intent of the bill is to ratify the placed as a result of Hurricanes Katrina Governor’s Executive Orders KB-2005 and Rita. Many of these lawyers lost not 32, 48 and 67 and extend their applicabil- only their offices but also their homes. ity until Jan. 3, 2006, with limited excep- While a $500 grant will in no way com- open to all members of the LSBA. The tions for litigants and lawyers in parishes pensate them for their losses, it hopefully Disaster Relief Task Force has raised inundated with flood waters. If this bill is will assist them in their efforts to recover almost $400,000 to aid LSBA members, passed by the Legislature, it will be a their law practices and rebuild their lives. and donations have been received not testament to the LSBA’s ability to bring The Grants Subcommittee is currently only from lawyers in Louisiana but also divergent interests together and facilitate accepting applications for a second round from lawyers and bar associations the legislative process for the betterment of grant distributions for lawyers who throughout the United States. of the citizens of Louisiana and the mem- have not previously applied. (See infor- Another way the LSBA is providing bers of the LSBA. mation on page 213.) The Grants Sub- additional services to its members is There will continue to be many chal- committee is also exploring other ways through free seminars focused on lenges for the citizens and lawyers in to assist lawyers in the affected areas by recovering from the hurricanes and Louisiana, and as we face these chal- setting up a business center in St. Ber- rebuilding law practices. The first lenges, we will all have an opportunity to nard Parish and providing computers, seminar was held in Lafayette on Oct. 7 make Louisiana a better place to live, phones, facsimile machines and copying and more than 100 lawyers attended. Two work and raise our families. services for lawyers at the LSBA office more seminars are scheduled for the New in New Orleans. Orleans and Lake Charles areas on Jan. Additionally, a grant will be awarded 12 and Jan. 13, 2006. The topics covered to the New Orleans Bar Association to in these seminars include recovery of assist it in setting up an “Internet Café” at data, setting up a law office, free legal its offices in the Whitney Bank building research through Fastcase and counseling and it is proposed that this facility will be available through the Lawyers’

212 October/November 2005 Application Deadline is Nov. 17:

LSBA/LBF Offering Second Round of Disaster Relief Fund Grants

The Louisiana State Bar Association (LSBA) and the Louisiana Bar Founda- tion (LBF) are offering a second round of grants from the LSBA/LBF Disaster Re- lief Fund. The application deadline is 4:30 p.m. Thursday, Nov. 17. To apply online, go to: http://www.lsba.org/ home1/disasterreliefapplogin.asp. The LBF approved 371 grants of $500 each recently in the first round of grant awards. Funds are available to attorneys in good standing with the LSBA who were displaced or had their practices disrupted by the hurricanes. The LBF is administering the fund, and the awarding of grants is at the sole discretion of the LBF’s Board of Directors or its designee. Donations to the fund should be made payable to the LSBA/LBF Disaster Re- lief Fund and sent to the Louisiana Bar Foundation, 601 St. Charles Ave., 3rd Floor, New Orleans, LA 70130. A mail- in donation form in .pdf format is available at http://www.lsba.org/home1/ DonationForm.pdf. Or to donate online, go to: http://www.lsba.org/foundation/ lbf/foundationhurricanefund.asp. The Relief Fund was created to help rebuild the state’s legal infrastructure so lawyers can provide needed legal services to their clients and restore their damaged offices and records. Funds are being distributed as either direct grants to lawyers or to assist in re-establishing legal communities in the affected areas.

Louisiana Bar Journal Vol. 53, No. 3 213 GEARING UP FOR APPEALS

Louisiana Appellate Practice and Procedure:

An Overview The appellate process begins in the La. C.C.P. art. 2201; see also La. Const. art. V, § 10, ¶ (A) (delegating supervisory trial court. Whether the appeal is for Legal appellate jurisdiction to the respective from a final judgment or supervi- courts of appeal on matters arising within sory writs are taken during an Practitioners their circuits). Supervisory writs are typically taken ongoing proceeding, appellate By Jonathan C. Augustine during the course of a trial court practitioners should do certain proceeding and before a final judgment things to ensure success. These is issued. For example, pursuant to La. C.C.P. art. 2201, litigants may petition a materials were written from the circuit court of appeal to review and/or Appellate Preparation perspective of an appellate practi- reverse a ruling on an exception. A Begins Before and During supervisory writ application to the tioner and former Louisiana the Trial Proceeding: respective courts of appeal must be in Supreme Court law clerk. They are Be Sure to Make a Record conformity with the Uniform Rules intended to provide a brief over- Courts of Appeal (hereinafter URCA) 4- 1, et seq.1 More importantly, however, view of Louisiana appellate prac- Applying for Supervisory Writs with the Court of Appeal because the trial court litigation will be tice and procedure and to serve as Under applicable law, “[s]upervisory ongoing, a party seeking supervisory a thumbnail reference guide for writs may be applied for and granted in writs should strongly consider moving accordance with the constitution and the trial court to stay the proceedings attorneys practicing in Louisiana rules of the supreme court and other contingent on the appellate court’s state courts. courts exercising appellate jurisdiction.” review. Specifically, URCA 4-4 provides:

214 October/November 2005 [w]hen an application for writs is clearly provides that a party must make the timely filing of the appeal bond . . . .” sought, further proceedings may be a timely objection to evidence which he Article 2121 also notes that an order for stayed at the trial court’s discretion. considers to be inadmissible and must appeal may be granted on oral or written Any request for a stay of state the specific ground for the motion but must show the return day for proceedings should be presented objection.8 Practitioners should, the appeal in the appellate court and the first to the trial court. The filing of, therefore, constantly keep the appellate requisite security to be furnished for the or the granting of, a writ application record in mind during the course of their appeal. After the order accompanying does not stay further proceedings trial court proceedings. the motion for appeal is granted, the unless the trial court or appellate applicable court of appeal asserts juris- court expressly orders otherwise. Post-trial Procedure diction and the trial court is divested of 14 to Perfect the Appeal the same. The Louisiana 3rd Circuit interpreted URCA 4-4 in Bankston v. Alexandria Post-Judgment Practice Appealing a Final Judgment Neurosurgical Clinic.2 In Bankston, the Generally speaking, an “[a]ppeal is As a general rule, there are two types plaintiff filed an application for the right of a party to have a judgment of of appeals in Louisiana state courts: devo- supervisory writs from a district court a trial court revised, modified, set aside, lutive and suspensive. A devolutive ap- judgment. The plaintiff did not, however, or reversed by an appellate court.” La. peal under article 2087 does not suspend receive an order staying proceedings in C.C.P. art. 2082. For a party to seek an the effect or execution of the trial court’s the district court pending the supervisory appeal, the trial court’s judgment must final judgment. Under the Code of Civil application. The district court proceeded first be signed and filed into the record. Procedure, such an appeal may be taken under its previously issued scheduling La. C.C.P. art. 1911 provides that “every within 60 days of either the expiration of order. Because the pro se plaintiff did not final judgment shall be signed by the time to apply for a new trial or the date the appear for trial, the district court judge. For the purpose of an appeal . . . clerk’s office mailed the notice of the dismissed her claim. On appeal, the 3rd no appeal may be taken from a final trial court’s refusal to grant a timely Circuit emphasized the district court’s judgment until the requirement of this application for a new trial. A suspensive discretion as to whether a stay should be Article has been fulfilled.” Regardless, issued in any litigation where a party has however, even if an appeal is made before filed an application for supervisory the trial judge signs the court’s final writs.3 The 3rd Circuit also ruled the judgment, the defect can be cured and district court did not abuse its discretion the appeal properly maintained.9 in dismissing the suit because there was Furthermore, the Code of Civil Proce- no stay order in place.4 As therefore dure specifically details matters that may evident by the foregoing, a stay of trial be appealed in Louisiana state courts.10 court proceedings pending a writ After the trial court has issued its signed application to a court of appeal is far from judgment, the party adversely affected automatic. has up to seven days, exclusive of legal holidays, to move the court for a new Appealing a Final Judgment trial.11 The delays for taking an appeal do Appellate courts can consider only not begin to run until the seven-day expi- matters that are in the record.5 Accord- ration of time to apply for a new trial.12 ingly, a practitioner’s pretrial prepara- Regardless, however, the untimely appli- tion should include plans to develop an cation for a new trial does not interrupt or advantageous record to ensure success extend the delay for taking a timely ap- on appeal. Such preparations must in- peal.13 clude planning objections and possibly Upon expiration of the seven-day pe- applying for supervisory writs when nec- riod, the adversely affected party must essary. divest the trial court of jurisdiction by Instances are arguably extremely rare moving the court for an appeal within the where an appellate court may consider delays allowed by law. La. C.C.P. art. matters when no objection was raised at 2088 provides that the “jurisdiction of trial.6 Moreover, in considering a trial the trial court over all matters in the case court objection, appellate courts usually reviewable under the appeal is divested, consider only the grounds for the and that of the appellate court attaches, objection as raised.7 Louisiana law on the granting of the order of appeal and

Louisiana Bar Journal Vol. 53, No. 3 215 appeal under article 2123 literally has the awarding that party any relief subse- this provision, the Supreme Court ex- effect of suspending the effect or execu- quently requested.17 pressly outlined a two-part test for re- tion of the trial court’s judgment. Under Oral arguments must be requested at viewing factual issues on appeal in the Code of Civil Procedure, “[e]xcept as the court of appeal. Under URCA 2-11.4, Arceneaux v. Domingue.19 Under otherwise provided by law, an appeal if a party wants oral arguments, it must Arceneaux, appellate courts may not dis- that suspends the effect or the execution specifically request so within 14 days of turb a factfinder’s factual determinations of an appealable order or judgment may the filing of the record in the court. More- if the appellate court finds in the record be taken, and the security therefor fur- over, under URCA 2-12.12, decisions there is: (1) a reasonable factual basis for nished, only within thirty days [of the shall be reached on the parties’ briefs and the trial court’s findings; and (2) the trial expiration of time to apply for a new trial oral argument shall be forfeited if either court was not clearly wrong/manifestly or the clerk’s mailing the notice of a party’s brief is not timely filed. erroneous.20 refusal to grant a timely filed application The appellate court may consider only for new trial.” Regardless of which type that which is in the record. As such, it is Manifest Error or Clearly Wrong of appeal is sought, the trial court shall imperative that if an aggrieved party — When a trial court’s factual findings fix a return date that is “thirty days from appellant or appellee — intends to win are based on witness credibility, appel- the date estimated costs are paid if there on appeal, the party must ensure the late courts must give great deference to is no testimony to be transcribed and record contains the correct and accurate the factfinder’s determinations.21 The Su- lodged with the record and 45 days from information upon which it shall rely. La. preme Court has held that “[t]he reason the date such costs are paid if there is C.C.P. art. 2132 allows a party to correct for this well settled principle of review is testimony to be transcribed . . . .”15 Fur- a record containing errors: based not only on the trial court’s better thermore, the clerk of the trial court is capacity to evaluate live witnesses (as required to prepare the record for appeal A record on appeal which is incor- opposed to the appellate court’s access and lodge it with the appellate court on or rect or contains misstatements, ir- only to a cold record), but also upon the before the return day or any extension regularities or informalities, or proper allocation of trial and appellate thereof.16 which omits a material part of the functions between the respective Under La. C.C.P. art. 2133, an appel- trial record, may be corrected even courts.”22 Accordingly, “where two per- lee also may seek to modify or reverse a after the record is transmitted to missible views of evidence exist, the judgment on appeal. In order to do so, the appellate court, by the parties factfinder’s choice between them cannot however, the appellee must timely file an by stipulation, by the trial court or be manifestly erroneous or clearly answer with the court of appeal. In rel- by order of the appellate court. All wrong.”23 evant part, article 2133 provides as fol- other questions as to the content Although appellate courts must give lows: and form of the record shall be great deference to witness credibility, presented to the appellate court. such evaluations may be clearly wrong An appellee may not be obliged to (Emphasis added.) when documents and other objective evi- answer the appeal unless he desires dence so contradict with witness’s testi- to have the judgment modified, re- It is therefore imperative that the appel- mony that no reasonable factfinder could vised, or reversed in part or unless lant performs due diligence to ensure the credit the witness’s story.24 Courts of he demands damages against the record lodged with the court of appeal is appeal must also give the same deference appellant. In such cases, he must accurate and/or contains the information to trial court decisions based on deposi- file an answer to the appeal, stating upon which he intends to rely on appeal. tion testimony as to decisions based on the relief demanded, not later than If a record is deficient, the court of appeal “live” testimony.25 Nevertheless, “the re- fifteen days after the return day or will assume the trial court’s ruling was viewing court must always keep in mind the lodging of the record whichever correct.18 that ‘if the trial court or jury’s findings is later. The answer filed by the are reasonable in light of the record re- appellee shall be equivalent to an The Standard of Review viewed in its entirety, the court of appeal appeal on his part from any por- may not reverse, even if convinced that tion of the judgment rendered The Louisiana Constitution of 1974 had it been sitting as the trier of fact, it against him in favor of the appel- details state appellate courts jurisdiction. would have weighed the evidence differ- lant and of which he complains in “Except as limited to questions of law by ently.’”26 his answer. (Emphasis added.) this constitution, or as provided by law in the review of administrative agency de- De Novo More importantly, when a party does not terminations, appellate jurisdiction of a When the appellate court reviews the answer an appeal or file a cross-appeal, court of appeal extends to law and facts.” trial court’s findings of fact as if it were the appellate court is precluded from La. Const. art. V, § 10 (B). In interpreting the trier of fact, the review is de novo.

216 October/November 2005 The classic and most common example cases were docketed for oral arguments of Law. A court of appeal has of de novo review is when appellate courts while 201 were transferred with order.30 decided, or sanctioned a lower review a grant of summary judgment.27 Louisiana Supreme Court Rule X, § court’s decision of, a significant Furthermore, when a case is 1, details the court’s wide discretion on issue of law which has not been, but bifurcated and the judge and jury render writ grant considerations. If an applicant should be resolved by this court. inconsistent verdicts, the court of appeal is to successfully apply for writs of must review the issues de novo.28 More certiorari on a litigious matter falling 3. Overruling or Modification of importantly, when an appellate court has outside the express constitutional Controlling Precedents. Although all the facts before it, it may not remand provisions previously detailed, the the decision of the court of appeal but must decide the case on the merits.29 application must meet one or more of the is in accord with the controlling court’s Rule X consideration. Because of precedents of this court, the Practice Before the Louisiana the criteria’s obvious importance, the five controlling precedents should be Supreme Court factors are listed below. overruled or substantially modified. In outlining the criteria to be evaluated The Louisiana Supreme Court has when determining whether a writ 4. Erroneous Interpretation or both original and appellate jurisdiction application should be granted, Rule X Application of Constitution or over certain litigious matters. For provides the following: Laws. A court of appeal has example, under La. Const. art. V, § 5, ¶ erroneously interpreted or applied (B), “[t]he supreme court has exclusive The grant or denial of an the constitution or a law of this state original jurisdiction of disciplinary application for writs rests within or the United States and the proceedings against a member of the the sound judicial discretion of decision will cause material bar.” Similarly, the court has appellate this court. The following, while injustice or significantly affect the jurisdiction over litigation “if (1) a law neither controlling nor fully public interest. or ordinance has been declared measuring the court’s discretion, unconstitutional, or (2) the defendant has indicate the character of the 5. Gross Departure from Proper been convicted of a capital offense and a reasons that will be considered, Judicial Proceedings. The court of penalty of death actually has been one or more of which must appeal has so far departed from imposed.” Art. V, § 5, ¶ (D). Equally as ordinarily be present in order for proper judicial proceedings or so important, the court has appellate an application to be granted: abused its powers, or sanctioned jurisdiction over certain matters from the such a departure or abuse by a Louisiana Public Service Commission. 1. Conflicting Decisions. The lower court, as to call for an “Appeal may be taken in the manner decision of a court of appeal exercise of this court’s supervisory provided by law by any aggrieved party conflicts with a decision of another authority. or intervenor to the district court of the court of appeal, this court, or the domicile of the commission. A right of United States Supreme Court, on Analysis of the foregoing clearly shows direct appeal from any judgment of the the same legal issue. odds are stacked against a writ district court shall be allowed to the application being granted. Moreover, supreme court.” Art. IV, § 21, ¶ (E). With 2. Significant Unresolved Issues although the criteria are not “ranked,” regard to adjudicating the foregoing, the Supreme Court does not have discretion because of the constitutional mandates. APPELLATE ADVOCACY However, unlike appeals to Louisiana’s five circuit courts, the in Louisiana Appellate Courts and in the U.S. Fifth Circuit Louisiana Supreme Court is much like the United States Supreme Court because Mike Rubin & the McGlinchey Stafford Appellate Practice Team it does have a great deal of discretion are available to support your appellate cases. over general adjudication. In 2003, the court received 1,929 general writ applications and 1,381 prisoner pro se The Smart Business Decision. applications. Of all the aggregate writ applications filed, the court only granted 294 of the applications. Of the 294 writ [email protected] • Phone (225) 382-3623 applications the court granted, only 93 www.mcglinchey.com

Louisiana Bar Journal Vol. 53, No. 3 217 they arguably appear in order of further explain the citation’s significance. 7. Applicable statutory law also provides importance. The author argues successful For example, “See Reynolds v. Select that “[a]ll objections to the manner of selecting writ applications will be direct, concise, Properties, Ltd., 93-1480 (La. 4/11/94), or drawing the jury or to any defect or irregularity that can be pleaded against any and focus the reader on why the issue 634 So.2d 1180 (noting that appellate array or venire must be entered before entering presented is critical to more than his or courts review summary judgments de on the trial of the case; otherwise, all such her client, but important to Louisiana novo, using the same criteria applied by objections shall be considered as waived and jurisprudence in general. trial courts to determine whether sum- shall not afterwards be urged or heard.” La. R.S. mary judgment is appropriate).” The fore- 13:3052. General Tips and Advice going clearly explains the citation’s sig- 8. Tartar v. Hymes, 94-0758 (La. App. 5 Cir. nificance without mentioning the exact 5/30/95), 656 So.2d 756, 760, writ denied, 95- from a Former Law Clerk 1640 (La. 10/6/95), 661 So.2d 475. page on which the relevant language is 9. See Camaille v. Shell Oil Co., 562 So.2d From the prospective of a former Loui- found. As a practical rule, the easier it is 28, 30 (La. App. 5 Cir. 1990), writ denied, 565 siana Supreme Court law clerk, the au- for the law clerk to follow a concise So.2d 944 (La. 1990) (citing Overmier v. thor candidly believes “less is always argument, focused on one or two Rule X Traylor, 475 So.2d 1094 (La. 1985), in support more.” More often than not, applications criterion, the easier it is for the law clerk of the position that although the appellant’s for writs of certiorari are almost a verba- to recommend to the justices the writ appeal was technically premature, because the application should be granted. trial court did eventually sign a final judgment, tim regurgitation of the briefs and/or ap- the defect was considered cured). plication filed at the circuit court of ap- 10. See, generally, La.. C.C.P. art. 2083. peal. Louisiana Supreme Court Rule X is Conclusion 11. La. C.C. P. art. 1974. a road map for Supreme Court writ appli- 12. See Johnson v. E. Carroll Detention Ctr., cations. The URCA serve as a roadmap The foregoing is obviously only one 27,075 (La. App. 2 Cir. 6/21/95), 658 So.2d for circuit court applications. At the risk practitioner’s perspective. Hopefully, it 724. of mimicking a cliché, “driving with the will serve as a rough guide for 13. See Womer v. Womer, 95-0833 (La. App. 5 Cir. 1/8/96), 666 So.2d 1232. wrong map can only get you lost.” practitioners who are infrequently 14. If however a party only appeals a portion After administrative processing, the required to engage in appellate litigation. of the trial court’s judgment, the court of appeal justices’ law clerks provide the first com- As made evident herein, the governing only has jurisdiction over the matters before it prehensive writ-application review. Al- rules are much different from those of a on appeal and the trial court retains jurisdiction though clerks work only for one justice, trial court. Accordingly, a practitioner on the other matter(s). See, generally La. C.C.P. they work and socialize with all the other taking a matter on appeal should live by art. 1915. justices’ law clerks. From the author’s the rules of the craft. 15. La. C.C.P. art. 2125. 16. La. C.C.P. art. 2127; see also URCA 2- recollection, the uniform sentiment 1. among all clerks was “less is always FOOTNOTES 17. McMorris v. McMorris, 94-0590 (La. more.” An application that focuses on App. 1 Cir. 4/10/95), 654 So.2d 742; see also one or two Rule X criterion is always 1. One of the URCA’s key provisions W. Handien Marine v. Gulf States Marine, 624 requires the party seeking writs from the court better than a shotgun approach attempt- So.2d 907 (La. App. 5 Cir. 1993), writ denied, of appeal to first file a notice of intention with 93-2851 (La. 1/13/94), 631 So.2d 1166. ing to hit as many points as possible with the trial court, serve opposing counsel with the a wide aim. The shotgun approach argu- 18. See, e.g., Porche v. Waldrip, 597 So.2d same, provide a copy to the trial judge and 536, 537 (La. App. 1 Cir. 1992), writ denied, ably lacks discipline and credibility. request a return date not to exceed 30 days from 599 So.2d 316 (La. 1992) (“It is the appellant’s Equally important as a focused ap- the date the adverse ruling was signed. See responsibility to ensure the appellate record is proach, accurate citations — preferably URCA 4-2 & 4-3. complete. Since the appellant failed to do so, pinpoint citations referencing the exact 2. 94-0693 (La. App. 3 Cir. 12/7/94), 659 we must presume the trial court’s ruling on this So.2d 507. page from which relevant language was issue is correct.”); Cf. LeBlanc v. Cajun 3. Id. at 510. Painting, Inc., 94-1609 (La. App. 1 Cir. 4/7/ extracted — are more helpful than sim- 4. Id. ply citing a case with no other founda- 95), 654 So.2d 800, 806, writs denied, 95-1655 5. See, e.g., White v. West Carroll Hosp., (La. 10/27/95), 661 So.2d 1349 & 95-1706 (La. tion. Law clerks actually look up and 613 So.2d 150 (La. 1992); see also Earles v. 10/27/95), 661 So.2d 1350 (discussing the review key cases upon which the practi- Ahlstedt, 591 So.2d 741 (La. App. 1 Cir. 1991). plaintiff’s attempt to “supplement” the record tioner relies. As such, specific page ref- 6. See, e.g., State v. McCutcheon, 93-0488 on appeal by taking a deposition and moving erences are always helpful and allow the (La. App. 1 Cir. 3/11/94), 633 So.2d 1338, writ the appellate court to accept the same in support denied, 94-0834 (La. 6/17/94), 638 So.2d 1093 law clerk easier focus. of his assignment of error while noting said (providing that a party must make timely motion was inappropriate because the Some practitioners will nevertheless objections on evidentiary rulings during trial feel more comfortable using a citation applicable provisions of the Code of Civil to preserve grounds for appeal); Davis v. Procedure envisioned only correcting a record, without a specific page. If such is the Kreuter, 93-1498 (La. App. 4 Cir. 2/25/94), 633 not adding things to it once the trial court is case, he or she should consider following So.2d 796, writ denied, 94-0733 (La. 5/6/94), divested of jurisdiction). the citation with a short parenthetical to 637 So.2d 1050; see also La. C.E. art. 103. 19. 365 So.2d 1330 (La. 1978).

218 October/November 2005 20. See also Steven Guillory v. Ins. Co. of Ltd., 93-1480 (La. 4/11/94), 634 So.2d 1180, N. Am., 96-1084 (La. 4/8/97), 692 So.2d 1029; 1182 (noting that appellate courts review ABOUT THE AUTHOR Mart v. Hill, 505 So.2d 1120, 1127 (La. 1987). summary judgments de novo, using the same 21. See, e.g., Theriot v. Lasseigne, 93-2611 criteria applied by trial courts to determine Jonathan C. Augustine is (La. 7/5/94), 640 So.2d 1305; Stobart v. State whether summary judgment is appropriate); managing director of The Dept. of Transp. & Dev., 617 So.2d 880, 882 Independent Fire Ins. Co. v. Sunbeam Corp., Augustine Firm, A.P.L.C., and (La. 1993) (“[F]actual findings . . . should not 99-2181 (La. 2/29/00), 755 So.2d 226 (citing an adjunct professor at Southern University Law be reversed on appeal absent manifest error.”); Schroeder v. Board of Supervisors, 591 So.2d Center. He earned a BA degree see also Rosell v. ESCO, 549 So.2d 840, 844 342, 345 (La. 1991), for the position that review in economics from Howard (La. 1989). of a grant of a motion for summary judgment University and served as a 22. Stobart, 617 So.2d at 883 (citing Canter is de novo); see also Carter v. State, 03-0634 decorated U.S. Army officer before earning v. Koehring Co., 283 So.2d 716 (La. 1973)). (La. App. 4 Cir. 3/24/04), 871 So.2d 450, 452. his JD degree from Tulane Law School, where 23. Id. “This state’s appellate review 28. See, generally, Mayo v. Audubon Indem. he successfully argued before the Louisiana standard, which is constitutionally based and Ins. Co., 26,767 (La. App. 2 Cir. 1/24/96), 666 Supreme Court to win the Tulane Moot Court jurisprudentially driven, is that a court of appeal So.2d 1290, writ denied, 96-0457 (La. 4/1/96), competition. He also placed among the best may not overturn a judgment of a trial court 671 So.2d 325; Moore v. Safeway, Inc., 95- oral advocates of more than 100 competitors absent an error of law or a factual finding which 1552 (La. App. 1 Cir. 11/22/96), 700 So.2d 831, at the New York Law School Robert F. Wagner, Jr. National Labor & Employment Law is manifestly erroneous or clearly wrong.” writs denied, 97-2921 & 97-3000 (La. 2/6/98); Appellate Moot Court Competition. He began Stobart, 617 So.2d 882 n. 2. see also Gremillion v. Derks, 96-0412 (La. App. his legal career as a law clerk to Louisiana 24. Rosell, 549 So.2d 844-45. 4 Cir. 11/18/96), 684 So.2d 492. Supreme Court Associate Justice Bernette 25. See, generally, Shepard v. Scheeler, 96- 29. See Gonzales v. Xerox Corp., 320 So.2d Joshua Johnson. (Ste. 1, 8674 Quarters Lake 1720 (La. 10/21/97), 701 So.2d 1008; see also 163 (La. 1975); see also Myers v. American Rd., Baton Rouge, LA 70809) Bruno v. Harbert Int’l, Inc., 593 So.2d 357 (La. Seating Co., 93-1350 (La. App. 1 Cir. 5/20/94), 1992). 637 So.2d 771, 779, writ denied, 94-1569 (La. 26. Stobart, 617 So.2d 883 (citing Housley 10/7/94), 644 So.2d 631. v. Cerise, 579 So.2d 973 (La. 1991)). 30. The Supreme Court of Louisiana Annual 27. See, e.g., Reynolds v. Select Properties, Report (2003), pg. 33.

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Louisiana Bar Journal Vol. 53, No. 3 219 GEARING UP FOR APPEALS

2005 Amendment to La. C.C.P. Art. 2083

Appellate ouisiana has always had a appellate review of interlocutory judg- policy against piecemeal Review of ments except when an appeal is expressly appellate review of provided by law (e.g., Articles interlocutory rulings and Interlocutory 592(A)(3)(b) and 3612).3 In the future, favoring consolidated appellate review of interlocutory judg- Lconsideration of all alleged trial court ments for which an appeal is not ex- Rulings errors in one appeal after final judgment. pressly provided can only be applied for Louisiana has also recognized the need pursuant to the appellate court’s supervi- to have procedures, subject to judicial By William R. Forrester, Jr. sory authority set forth in Article 2201, control, which provide a litigant with an the Uniform Rules – Courts of Appeal, opportunity to request appellate and the Rules of the Supreme Court of intervention in trial court proceedings Louisiana. before final judgment when the harm complaints about the inefficiency and The amendment to Article 2083 was resulting from the continuation of an confusion caused by the interrelationship made for several reasons. erroneous trial court interlocutory ruling of these two procedures, the Louisiana outweighs the efficiency of the final State Law Institute undertook a study to Prior System Was judgment rule. consider a change. Counterproductive The Louisiana Code of Civil As a consequence, on the recommen- Procedure has provided two procedures dation of the Law Institute, La. C.C.P. First, continued co-existence of two for interlocutory appellate review — an art. 2083 was amended in Act No. 205 of overlapping procedures for interlocutory appeal of right1 and discretionary 2005 (effective on Jan. 1, 2006) to elimi- appellate review was unnecessary, supervisory writ review.2 In response to nate an appeal as a procedure for seeking confusing and wasteful.

220 October/November 2005 Under the prior version of Article for commencing the alternative proce- terlocutory issues typically require a much 2083, the cornerstone of an interlocutory dure.8 This refiling process can alone narrower analysis than review of a final appeal was the “irreparable injury” delay actual consideration of the issue judgment and are usually best resolved standard, which was intended by the for months. without extensive opinions that are a Legislature to provide for interlocutory A widely utilized recommendation for burden on the appellate courts’ resources appellate review in compelling avoiding risks in picking between the two and often can lead to premature and inap- circumstances without opening the door remedies is set forth in Maraist and propriate factual assumptions and char- to a flood of frivolous assertions of error. Lemmon, Vol. I, Louisiana Civil Law acterizations of the case before trial. Fur- The scope of supervisory review on Treatise, §14.17, p.404 as follows: thermore, filing an interlocutory appeal, the other hand is plenary and has no even where irreparable injury is clearly legislative parameters. But the appellate The cautious attorney who is caught present, provides no guarantee that the courts, to protect their overcrowded in this twilight zone will both apply briefing and oral argument procedures of dockets, have traditionally screened writ for supervisory writs and perfect a an appeal will be utilized. When circum- applications under the same “irreparable back-up appeal . . . such a waste of stances have demanded it, some of the injury” standards set forth in Article judicial effort and litigant funds appellate courts have, on their own initia- 2083. More recently, however, with begs for a better remedy, but this tive, disregarded the appeal label and increasing frequency and little apparent procedure may be necessary to considered interlocutory errors under uniformity, strict application of the protect the client’s appellate rights. their supervisory authority. “irreparable injury” standard for writ review has been relaxed. Now, even in The “waste” condemned by Maraist Interlocutory Appeals the absence of irreparable injury, writs and Lemmon can be substantial. Can Needlessly Delay Trial are being granted to reverse a variety of Duplicate appellate filing fees are erroneous interlocutory rulings, incurred and counsel must obtain Court Proceedings particularly when it avoids an separate orders from the trial court and Secondly, the appellate courts have unnecessary trial.4 comply with the differing briefing and recognized that the procedures inherent Thus, under the prior regime as it has record preparation requirements for each in ordinary appeals can be so time con- evolved, if an interlocutory ruling was of the two procedures. suming that they are often at cross pur- viewed as one that may cause irreparable Though the amendment to Article poses with the more important goal of the injury, the grounds for seeking the two 2083 is a significant procedural change, prompt resolution of litigation. For ex- appellate review remedies were largely it should not be interpreted as a signal to ample, the delay (over one year in the 3rd redundant, but if the ruling was simply the appellate courts of any new legislative Circuit) in processing an interlocutory erroneous and did not meet the irrepa- direction in the substantive standards for appeal of a venue ruling (while the suit rable injury standard, only a writ applica- considering interlocutory rulings. The sat dormant) was found unacceptable in tion was available. pre-existing criteria, including significant Hamilton Medical Group v. Ochsner Litigants often encounter difficulty in focus on the irreparable injury standard, Health Plan.9 The court noted that utili- determining when an interlocutory judg- remain unchanged. zation of appeals to consider interlocu- ment may cause irreparable injury, leav- During the debate of the proposal be- tory rulings could open the door to ing them in a confusing “twilight zone” fore the Law Institute Council and the meritless appeals of adverse rulings on as to which procedure to use. The prob- Louisiana State Bar Association’s House exceptions for no reason other than to lem became acute when after the delay of Delegates, concerns were expressed delay the case. To rectify the problem, for pursuing the alternative remedy had that elimination of interlocutory appeals the Hamilton court dismissed an appeal expired, the appellate court informed the under Article 2083 in favor of expanded of a venue ruling and then promptly ruled litigants that they made the wrong choice. writ review might diminish the appellate on the issue through its supervisory au- The attitudes of the appellate courts in courts’ thorough consideration of impor- thority noting, “Justice delayed is Justice affording relief to litigants in this pre- tant issues. This argument assumes that denied.” dicament have not been uniform. In the appeals as of right more fully protect By contrast, appellate review of inter- name of “judicial economy,” the 1st,5 litigants because writ applications, un- locutory judgments by supervisory writs 3rd6 and 4th7 Circuits have used their like appeals, are typically ruled on quickly is a superior system. Writ applications discretion to convert from one procedure without oral argument and written opin- have become common and the appellate to the other and ruled on the merits of the ion. What prevailed as the better view, courts are internally organized with suf- issues presented rather than order dis- however, is that the appellate courts ficient judges and staff to properly re- missal. However the 5th Circuit has con- should have broad discretion to consider view the issues and make timely rul- sistently favored ordering dismissal and trial court rulings on a flexible schedule ings.10 The appellate courts’ rules for then granting an additional time period without the formalities of an appeal. In- writ review are written to deal with the

Louisiana Bar Journal Vol. 53, No. 3 221 exigencies of ongoing litigation. Prepa- jurisdiction.” ration and submission of the pertinent The amendments to Article 3. Article 2083(C), as amended by Act 205, documents in the trial court record is now provides: “An interlocutory judgment is 2083 eliminate the prior appealable only when expressly provided by streamlined and the appellate courts have law.” virtually unlimited discretion to dispense system of two overlapping 4. See Herlitz Constr. Co. v. Hotel Investors with oral argument and briefing sched- of New Iberia, Inc., 390 So.2d 878 (La.1981); ules and written opinions in order to procedures and replace Tatum, “Revisiting the Supervisory Powers,” promptly rule on writ applications. Nev- La. Bar Journal, Vol. 41, No. 5, p. 433 (Feb. ertheless, when time permits, and in an them with a more workable 1994). For an excellent summary of the recent utilization of supervisory writs see Plotkin, appropriate case, more orderly briefing Louisiana Civil Procedure, West Practice schedules, oral argument and a published and consistent system of Series, Vol. 3, pp. 561-563. opinion can be utilized. 5. Citgo v. Dept. of Revenue, 845 So.2d 558, supervisory writs. 563 (La. App. 1 Cir. 2003). 6. Hamilton Medical Group v. Ochsner Amendments to Article 2083 Health Plan, 550 So.2d 290, 292 (La. App. 3 Promote Uniformity Cir. 1989); more recently in Starks v. American Bank Nat. Ass’n, 2004-1219 (La. App. 3 Cir. Finally, the amendment promotes 5/4/05), 901 So.2d 1243, the defendant took uniformity and clarity in appellate both an appeal and writ when its venue practice in that there is now one delay exception was overruled. The appellate court confusing to counsel because the delays ruled that either procedure was proper and then period for seeking appellate review of all granted the writ and consolidated it with the interlocutory judgments except those for start from notice of the signing of a appeal. which an appeal is expressly provided. written judgment, which is not always 7. N.O. Firefighters Ass’n v. New Orleans, Under the prior system, there were required for an interlocutory ruling, and 750 So.2d 1069, 1072 (La. App. 4 Cir. 1999). multiple periods when a supervisory writ their commencement is suspended during 8. Masson v. Masson, 815 So.2d 270, 272 and suspensive and devolutive appeals the time for applying for a new trial of a (La. App. 5 Cir. 2002); Meany v. Meany, 685 final judgment provided in Article 1974 So.2d 356 (La. App. 5 Cir. 1996). were considered options. 9. Hamilton, supra, fn.6 at 292. According to Uniform Rules, Courts which is not available for the trial court’s 10. Plotkin, Louisiana Civil Procedure, of Appeal §§4-2 and 4-3, a writ applicant reconsideration of interlocutory West Practice Series, Vol. 3, p. 554. must give notice of an intention to apply judgments. 11. Carter v. RHEA, 01-0234 (La. App. 4 for writs to the court and opposing Cir. 4/25/01), 785 So.2d 1022; Ward, “A Writ counsel within 30 days from the date of in Time,” La. Bar Journal, Vol. 51, No. 5, p. Conclusion 338 (Feb./March 2004). “notice” by the trial court of its 12. Williams v. Litton, 2003-805 (La. App. challenged ruling as provided in Article Due to their efficiency, supervisory 3 Cir. 12/23/03), 865 So.2d 838; Warren v. 1914. The trial court then sets a return writs have evolved as the procedure of Southern Energy Homes, Inc., 00-1236, (La. date within the same 30-day period choice by practitioners and the courts App. 3 Cir. 10/4/000); Jacobson v. Ryder Truck (unless otherwise extended) and the writ alike for appellate consideration of Rentals, Inc., 421 So.2d 436 (La. App. 1 Cir. 1982). Article 3612 expressly provides for an application must be filed within that interlocutory rulings. The amendments to appeal of an order relating to a preliminary return date. There is no new trial period Article 2083 eliminate the prior system injunction within 15 days of the order or that suspends commencement of the of two overlapping procedures and judgment. aforesaid period.11 replace them with a more workable and On the other hand, under prior law, consistent system of supervisory writs. there was never a codal provision ABOUT THE AUTHOR specifically fixing the time period for an FOOTNOTES appeal of interlocutory judgments William R. Forrester, Jr. serves as the reporter for the causing irreparable injury. Practitioners 1. The prior version of Article 2083(A) provided: “An appeal may be taken from a final Louisiana State Law Institute extrapolating provisions of the Code of judgment rendered in causes in which appeals Section on Civil Procedure. He Civil Procedure often assumed that such are given by law whether rendered after hearing is a partner with Lemle & interlocutory judgments were appealable or by default, from an interlocutory judgment Kelleher, L.L.P., and has taught Louisiana Civil which may cause irreparable injury, and from within the two periods of 30 and 60 days Procedure as an adjunct a judgment reformed in accordance with a provided in Articles 2123 and 2087 for faculty member at Tulane Law School. He suspensive and devolutive appeals of remittur or additur under Article 1814.” received his BA degree from the University 2. Article 2201 provides: “Supervisory writs final judgments.12 Application of these of Virginia and his JD degree from Tulane may be applied for and granted in accordance Law School. (21st Flr., 601 Poydras St., New final judgment articles to interlocutory with the constitution and rules of the supreme Orleans, LA 70130-6029) judgments was uncertain and often court and other courts exercising appellate

222 October/November 2005 Louisiana Bar Journal Vol. 53, No. 3 223 AssociationACTIONS PROFESSIONALISM ORIENTATIONS

150+ Attorneys, Judges Participate in Law School Professionalism Orientations

For the sixth consecutive year, the Louisiana State Bar Association’s (LSBA) Professionalism and Quality of Life (P&QL) Committee hosted law school orientations on professionalism at Louisiana’s four law schools. More than 150 attorneys and judges from across the state participated in the August programs. Opening remarks were given by the deans and chancellors of the law schools, as well as from LSBA President Frank X. Neuner, Jr., Louisiana Supreme Court justices, P&QL Committee Co-Chairs Bobby J. Delise and E. Phelps Gay, and Lawyers Assistance Program (LAP) representative Craig L. Caesar. First-year Chancellor Freddie Pitcher, Jr. welcomed special presenters at the Southern University Law law students also heard from practicing Center 2005 Professionalism Orientation. From left, Pitcher, Louisiana State Bar Association (LSBA) President Frank X. Neuner, Jr.; Louisiana Supreme Court Associate Justice John L. attorneys and members of the judiciary Weimer; and E. Phelps Gay, co-chair of the LSBA Professionalism and Quality of Life about what it meant to be a professional Committee. Photo by John H. Williams. attorney. This program, inaugurated in August 2000, has now been institutionalized as a yearly project for the LSBA and the law schools. The deans and admissions staff of all of the law schools have been ac- commodating in assisting with the logis- tical challenges of putting this program together. Opening remarks at the Louisiana State University Paul M. Hebert Law Center orientation were given by Chancellor John J. Costonis, Louisiana Supreme Court Justice Chet D. Traylor, LSBA President Neuner, LAP representative Caesar and P&QL Committee Co-Chair Delise. Opening remarks at the Loyola Uni- versity Law School orientation were given by Dean Brian Bromberger, Louisiana Supreme Court Chief Justice Pascal F. Calogero, Jr., LSBA President Neuner, LAP representative Caesar and P&QL First-year law students at the state’s four law schools participated in various professionalism Committee Co-Chair Delise. and ethics discussions at the orientation. Sessions were presented by attorneys and judges.

224 October/November 2005 Opening remarks at the Southern Uni- versity Law Center orientation were given by Chancellor Freddie Pitcher, Jr., Loui- siana Supreme Court Justice John L. Weimer, LSBA President Neuner, LAP representative Caesar and P&QL Com- mittee Co-Chair Gay. Opening remarks at Tulane Law School were given by Dean Lawrence Ponoroff, Chief Justice Calogero, LSBA President Neuner, LAP representative Caesar and P&QL Committee Co-Chair Gay. The LSBA and the Professionalism and Quality of Life Committee thanks all of the attorneys and judges who volunteered their time and talent to this year’s programs. The LSBA and the Professionalism LSBA President Frank X. Neuner, Jr., left, and Louisiana Supreme Court Chief Justice Pascal and Quality of Life Committee also thanks F. Calogero, Jr. led a session. its sponsors of the programs. Bronze Level Ottinger Hebert, L.L.C. Gold Level Burke & Mayer, A.P.L.C. John Pieksen & Associates, L.L.C. Lemle & Kelleher, L.L.P. Deutsch, Kerrigan & Stiles, L.L.P. Hassinger Law Firm, P.L.L.C. Program participants included: Silver Level Krebs, Farley & Pelleteri, L.L.C. Entergy Corporation Laborde & Neuner LSU Paul M. Hebert Law Center Irwin, Fritchie, Urquhart & Moore, L.L.C. Larzelere Picou Wells Simpson Valerie Briggs Bargas Leake & Andersson, L.L.P. & Lonero, L.L.C. David L. Bateman McKernan Law Firm Martzell & Bickford Fred Sherman Boughton, Jr. Perkins & Associates, L.L.C. McGlinchey Stafford, P.L.L.C. Hon. James J. Brady Milling Benson Woodward, L.L.P. Douglas D. Brown Mitchell & Associates, A.P.L.C. Hon. Marilyn C. Castle Mouledoux, Bland, Legrand Ronald D. Cox & Brackett Hon. John Crigler Hon. Laura P. Davis Bobby J. Delise Steven “Buzz” Durio Hon. Glennon P. Everett Larry Feldman, Jr. Melanie S. Fields Elizabeth E. Foote L. Paul Foreman Catherine S. Giering Nancy Goodwin Holly G. Hansen Paul J. Hebert Michael E. Holoway Hon. Bonnie Jackson Bernadine Johnson Hon. Charles W. Kelly IV J. Don Kelly, Jr. Bobby J. Delise, co-chair of the LSBA’s Pro- Loyola: Dean Brian Bromberger addressed fessionalism and Quality of Life Commitee. the students. Continued Next Page

Louisiana Bar Journal Vol. 53, No. 3 225 LSU session: Left photo, presenters Lorraine McCormick, John Ortego, Disciplinary Counsel Charles B. Plattsmier and LSBA President Frank X. Neuner, Jr. Top photo, Michael W. McKay and Valerie Briggs Bargas.

R. Loren Kleinpeter E. Alexis Bevis Ryan P. Hatler William T. McCall Barbara Bossetta Carl J. Hebert Lorraine McCormick Charles N. Branton Paul J. Hebert Jackie M. McCreary Greta M. Brouphy Michael E. Holoway Michael W. McKay John D. Carter Hon. Charles R. Jones Gregory K. Moroux Kevin Christensen Anne Derbes Keller Hon. William A. Morvant Sandra K. Cosby Hon. Rosemary Ledet Hon. Pam Moses-Laramore Bobby J. Delise Richard K. Leefe Frank X. Neuner, Jr. Val P. Exnicios Hon. Hans J. Liljeberg David H. Ogwyn Darryl J. Foster William C. Lozes John Ortego James George Ernest R. Malone, Jr. Patrick S. Ottinger Barry H. Grodsky John E. McAuliffe, Jr. John B. Perry Hon. John C. Grout, Jr. Sara Mouledoux Charles B. Plattsmier Lambert J. Hassinger, Jr. Francis B. Mulhall Betty A. Raglin Dawn M. Rawls Laurie Kadair Redman Sandra Ribes Hon. John D. Saunders Joseph L. Shea, Jr. Maggie Simar Lawrence P. Simon, Jr. Anthony J. Staines Hon. Ulysses Gene Thibodeaux Hon. John D. Trahan Michael S. Walsh Hon. Jay C. Zainey J. David Ziober

Loyola University Law School Kay Barnes Baxter Southern: Judge Trudy M. White of Baton Rouge City Court, Thomas Lorenzi, Virginia G. Carmelite M. Bertaut Benoist, Genia Coleman-Lee and D. Beau Sylvester. Photo by John H. Williams.

226 October/November 2005 Donald W. North Michael Penn Cynthia Reed Hon. John D. Saunders Leslie J. Schiff Jocelin M. Sias D. Beau Sylvester Hon. Trudy M. White

Tulane Law School Alex P. Basilevsky Franklin D. Beahm Scott R. Bickford Alan G. Brackett Amanda L. Bradley Marie Breaux Terrel J. Broussard Southern: Judge Paul Dehay, Monique M. Edwards, Melanie Fields, Dennis Blount and Allison P. Burbank Micheal Penn. Photo by John H. Williams. John H. Butler II Christopher E. Carey Frank X. Neuner, Jr. Hon. Curtis Calloway Kevin Christensen Allison Penzato Joseph Casanova John R. Cook IV John D. Rawls Genia Coleman-Lee Leonard A. Davis Claudia P. Santoyo Thomas D. Davenport, Jr. William R. DeJean Marta-Ann Schnabel Hon. Paul DeMahy Bobby J. Delise Scott A. Shelton Donald R. DeRouen Kathleen F. Duthu Hon. Ronald J. Sholes Wade D. Duty Gregory L. Ernst William J. Sommers, Jr. Melanie S. Fields Val P. Exnicios Scott J. Spivey E. Phelps Gay Judith A. Gainsburgh Raymond Steib, Jr. Hon. John Michael Guidry E. Phelps Gay Sheryl D. Story Michael E. Holoway Barry H. Grodsky Sharonda R. Williams Jim Holt Hon. John C. Grout, Jr. Dianne Irvine Hon. Patricia T. Hedges Michael E. Holoway Southern University Law Center LaKeisha Jefferson Virginia Gerace Benoist Thomas L. Lorenzi Heather Jermak Shelton Dennis Blunt Frank X. Neuner, Jr. Joni Johnson Gary P. Kraus Hon. Hans J. Liljeberg Ernest R. Malone, Jr. Lisa C. Matthews Frank X. Neuner, Jr. James R. Nieset, Jr. Jean Paul Overton Morris B. Phillips John O. Pieksen, Jr. Eugene J. Radcliff Hon. Karen Wells Roby William B. Schwartz Christopher R. Teske Hon. Ulysses Gene Thibodeaux James J. Whittenburg John G. Williams Tulane: This panel included Franklin D. Beahm, Alan G. Brackett, John H. Butler II, John R. Cook IV and Judge Patricia T. Hedges.

Louisiana Bar Journal Vol. 53, No. 3 227 House of Delegates CLE Sponsor Acknowledged Approves Formation of Appellate Section Thanks to The Louisiana State Bar Association’s LexisNexis House of Delegates approved the for sponsoring the continental breakfast during the formation of the Appellate Section. “Rebuilding Your Practice After the Disaster” seminar The section members will meet and on Friday, Oct. 7, 2005, in Lafayette. communicate via an electronic discussion group. All members will be automatically subscribed to this list serve. The section will ask every member to make a small scholarly contribution to La. Board of Legal Specialization the list serve once a year, even if it is just an educational war story from his/her Approves Resolution on 2005 CLE Hours practice or a few remarks about a recent decision or court rule. The Louisiana Board of Legal Specialization, at its Oct. 20 meeting, approved a The section welcomes all LSBA resolution that the year 2005 will be treated as a non-year for specialization CLE members to join. requirements, and that a maximum of eight (8) hours from 2004 and all specialization For more information, e-mail René B. CLE earned in 2005 will be applied to 2006. The resolution was approved without deLaup at [email protected]. opposition.

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PUBLIC Ethics PUBLIC Opinion purposes of administering an estate or for Advisory Opinions 05-RPCC-0031 a closing. Money delivered to the attorney to pay a judgment is an example of property to which the client is entitled. These Public Opinions have been Surrender of Client File Upon The second sub-part of the Rule relat- prepared by the Publications Sub- Termination of Representation ing to the lawyer’s file has two sub-parts. committee of the Louisiana State Bar The first is that, upon written request, the Association’s Rules of Professional Upon termination of representation, a law- lawyer must promptly release to the cli- Conduct Committee. The issues and yer must surrender the client’s papers and ent or the client’s new lawyer “the entire topics covered within these opinions property. Further, upon written request, file relating to the matter.” The second he must deliver to the client the entire originate from actual requests for ethics sub-part provides that the lawyer “shall original file, including work product. The advisory opinions submitted to the Ethics not condition release over issues relating lawyer may not condition delivery on pay- to the expense of copying the file or for Advisory Service by lawyer members of ment of his bill or on payment of copying any other reason.” Failure to comply with the Association. costs. Nor may he unreasonably insist upon the client’s request for the file may result in In selecting topics and issues for a particular place or mode of delivery. If the imposition of sanctions. See, e.g., In re publication, the Publications Sub- there is a single file for multiple clients, Turnage, 790 So.2d 620 (La. 2001). committee has reviewed opinions they should decide among themselves who referred to it by Ethics Counsel and/or will receive the original file. What Does “Entire File” Mean? panel members of the Ethics Advisory In our view, the specific provision The Rules of Professional Conduct Service for purposes of determining regarding release of the “entire file relat- Committee considers here the ethical con- ing to the matter” must be read in the whether the opinions submitted address cerns regarding the client’s property, context of the overall purpose of the issues of interest, importance and/or papers and the lawyer’s file that arise Rule, which is protection of the client’s significance to the general bar and which when a lawyer’s representation termi- interests to the extent reasonably practi- are not highly fact-sensitive. The nates. Under Rule 1.16(d) of the Louisi- cable. It serves to clarify the general duty Publications Subcommittee has made ana Rules of Professional Conduct (2004) to deliver “papers and property to which every effort to promote and maintain (the LRPC), a lawyer has a two-part the client is entitled.” The clarification is obligation upon termination of represen- confidentiality of the parties involved in intended to emphasize and insure the tation.2 The first duty is automatic: he the original requests. obligation to deliver the file expeditiously must surrender the “papers and property so that the client’s legal claims or rights Recommended format for citation of to which the client is entitled.” The sec- will not be prejudiced. Its use of the term PUBLIC opinions: e.g., “LSBA-RPCC ond duty, in contrast, only comes into “entire file” allows no argument that work PUBLIC Opinion 05-RPCC-001 (04/04/ play upon written request by the client. In product containing mental impressions, 2005)”. that event, the lawyer must “promptly research, analysis and the like is exempt Questions, comments or suggestions release to the client or the client’s new from inclusion in what must be delivered regarding the opinions, the publication lawyer the entire file relating to the mat- to the client.3 The entire file must be ter.” In our view, both parts of the Rule process or the Ethics Advisory Service delivered. The lawyer has the option of are intended to guide the lawyer in fulfill- may be directed to Richard P. Lemmler, making a copy for his own records. ing what the Rule specifies is an obliga- Jr., Ethics Counsel, Louisiana State Bar tion to “take steps to the extent reason- Can the Lawyer Retain the File Association, 601 St. Charles Ave., New ably practicable to protect a client’s inter- Until His Bill is Paid? Orleans, LA 70130; direct dial (504)619- ests” upon termination of representation. The immediate predecessor to the cur- 0144; fax (504)598-6753; e-mail: The duty to surrender “papers and rent Rule4 (and now the current Rule5 [email protected]. property to which the client is entitled” has) changed the law that existed prior to covers, for example, original documents its amendment on May 24, 2001. Retain- brought to the lawyer by the client for ing liens are now forbidden. Upon termi-

230 October/November 2005 nation, a lawyer who receives a written lawyer may not wish to mail it to the sult with the client about the means by request by the client for the file must client. On the other hand, there may be which the client’s objectives are to be promptly release it to the client or the circumstances where the client is uncom- accomplished.” Rule 1.4. While the law- client’s new lawyer, and may not condi- fortable coming to the lawyer’s office or yer-client relationship may technically tion release for any reason. See gener- finds it inconvenient or difficult to do so. be over, Rule 1.16(d) envisions a con- ally “Rule 1.16(d) of the Louisiana Rules Therefore, while making the file avail- tinuing obligation to accomplish certain of Professional Conduct — No ‘Hos- able at the lawyer’s reception desk for in- specified and limited objectives, one of tages’ Allowed,” Louisiana Bar Jour- person retrieval by the client normally which is surrender of the file. nal, Vol. 50, No. 3, at p. 216. would not be unreasonable, and the In our opinion, therefore, the lawyer lawyer’s concern regarding the possibil- should not simply stand pat on delivery/ What if There Are Multiple ity of loss or damage in the event of pickup at the office, but should inquire Clients Represented Jointly? mailing is legitimate, it would be im- whether any alternate method of delivery To the extent that the clients have proper to insist on in-office pickup with- would be appropriate and acceptable to delivered papers or property to the law- out further inquiry and dialogue. the client (e.g., private courier, commer- yer, these should be returned to the proper Two reasons compel further inquiry cial courier, hand-delivery, etc). The cost owners. However, given that the Rule and dialogue. First, absent an investiga- of such delivery could, like the copying contemplates delivery of the entire origi- tion of alternatives, insisting on in-office costs specifically mentioned in the Rule, nal file to the client, multiple clients must pickup could be seen as placing a condi- be determined in an appropriate pro- determine among themselves who gets the tion on the release, in violation of Rule ceeding if a resolution cannot be achieved original. If they are unable to do so, the 1.16(d). (On the other hand, a client’s directly with the client. Alternatively, the lawyer may file a concursus proceeding. unreasonable demands, such as in-per- client may be willing to sign a written son delivery in Outer Mongolia, do not release, authorizing the use of the mails Where Must the File Be Delivered? have to be acceded to.) Second, a lawyer and agreeing to hold the lawyer harmless If a file contains photographs, origi- has a duty to communicate with his cli- in the event of the file’s loss or damage as nal notes and other original documents, a ent, including a duty to “reasonably con- a result of that requested mailing. Writ-

Louisiana Bar Journal Vol. 53, No. 3 231 ten inquiry to the client on this subject do what the lawyer has presumably al- Corporate Life Ins. Co., 163 Pa. Cmmw. 36, would serve to provide support for the ready been paid to do. 641 A. 2d 1 (1994); Matter of Kaleidoscope, reasonableness of the lawyer’s efforts in Inc., 15 Bankr. 232 (Bankr. ND Ga. 1981), rev’d on other grounds, 25 Bankr. 729 (ND Ga. FOOTNOTES trying to release the file to the client 1982); Colo. Bar Ass’n Ethics Comm. Op. 104 while protecting his interests to the ex- (April 17, 1999); Conn. Bar Ass’n Comm. on 1. The comments and opinions of the Com- tent reasonably practicable. Professional Ethics, Op. 94-1 (1994); Ohio mittee — public or private — are not binding on Sup. Cr. Bd. of Commr’s on Grievances and Similarly, unilaterally electing to de- any person or tribunal, including — but not Discipline, Op. 92-8 (April 10, 1992); State Bd. posit the file with a copy service and then limited to — the Office of Disciplinary Counsel of Ca. Standing Comm. on Professional Re- requiring the client to pay the copying and the Louisiana Attorney Disciplinary Board. sponsibility and Conduct, Formal Op. 1992- Public opinions are those which the Committee charges prior to or upon retrieval of the 127 (1992); Oregon State Bar Ass’n, Formal has published — specifically designated thereon file from the copy service would be a Op.1991-125 (1991); and State Bar of Ga. as “PUBLIC” — and may be cited. Private violation of the Rule. The lawyer should Formal Advisory Op. 87-5. The minority view opinions are those that have not been published is that only the “end products” of the lawyer’s not use a third party, such as a copying by the Committee — specifically designated work (pleadings, a contract, etc.) belong to the service, to try to accomplish what the thereon as “NOT FOR PUBLICATION” — client, while the lawyer owns his mental im- and are intended to be advice for the originally- Rule prohibits her from doing herself: pressions, research, analysis etc. See, e.g., inquiring lawyer only and are not intended to be conditioning “release over issues relat- Federal Land Bank v. Federal Intermediate made available for public use or for citation. ing to the expense of copying the file.” Credit Bank, 127 FRD 473, modified, 128 FRD Neither the LSBA, the members of the Commit- 182 (SD Miss. 1989); Corrigan v. Armstrong, The lawyer should pay the copying costs tee or its Ethics Counsel assume any legal Teasdale, 824 S.W. 2d 92 (Mo. App. 1992); to obtain a copy of the file to keep, as well liability or responsibility for the advice and Alabama State Bar, Formal Op. RO-86-02 (Dec. as any other costs associated with promptly opinions expressed in this process. 23, 1987); Arizona State Bar Comm. on Rules 2. “Upon termination of representation, a delivering the file to the client, and then of Professional Conduct, Op. 92-1 (March 12, lawyer shall take steps to the extent reasonably seek reimbursement of those charges from 1992); Illinois State Bar Ass’n, Op. 94-13 (Janu- practicable to protect a client’s interests, such the client, if allowable under the lawyer’s ary 1994); North Carolina State Bar Ethics as giving reasonable notice to the client, allow- 6 Com. RPC 178 (April 14, 1994). The Restate- fee agreement or contract law. ing time for employment of other counsel, sur- ment of The Law Governing Lawyers (2003) No matter how delivery is accom- rendering papers and property to which the sanctions refusal to disclose to the client certain plished, it would be prudent to obtain a client is entitled and refunding any advance law firm documents reasonably intended only payment of fee that has not been earned. Upon signed and dated receipt evidencing safe for internal review, such as a memorandum written request by the client, the lawyer shall delivery of the file to the client. discussing which lawyers in the firm should be promptly release to the client or the client’s new assigned to a case, whether a lawyer must lawyer the entire file relating to the matter. The withdraw because of the client’s misconduct, or Can the Lawyer Charge for lawyer may retain a copy of the file but shall not the firm’s possible malpractice liability to the Organizing the Files Prior to condition release over issues relating to the ex- client. The basis for these exceptions is that pense of copying the file or for any other reason. Delivery to the Client? they are necessary for lawyers to be able to set The responsibility for the cost of copying shall be If it is reasonable for the client to down their thoughts privately in order to assure determined in an appropriate proceeding.” expect the files to be relatively organized effective and appropriate representation, and 3. This is in accord with the majority view the materials are not needed by the client in based upon the fees paid prior to termina- on this subject generally. See, e.g., Sage Realty order to be able to continue to pursue the legal tion, it would be unreasonable to charge Corp. v. Proskauer, 91 NY 2d 30, 689 NE 2d matter for which the client originally retained the additional fees for any time required to 879 (1997); Resolution Trust Corp. v. H, PC, attorney. Accord, Vermont Ethics Opinion 91-3 128 FRD 647 (ND Tes. 1989); Maleski v. organize the files to that level — i.e., to (1991) (lawyer may withhold internal notes). 4. Rule 1.16(d) of the Louisiana Rules of Professional Conduct (1987), as amended effective May 21, 2001. 5. Rule 1.16(d) of the Louisiana Rules of The Professional Conduct (2004), effective March 1, 2004. winning edge NLRG 6. There is a split of authority in other National Legal Research Group jurisdictions over who must pay for the copies, CHARLOTTESVILLE, VIRGINIA depending on whether the file is seen as belong- for Louisiana ing to the lawyer or the client. In the latter view, Put us to work helping you win today. the copying is strictly for the lawyer’s benefit. attorneys 1-800-727-6574 or [email protected] Compare “Ownership of Lawyer’s Files: Who Fast, Affordable, Specialized Gets the ‘Original’? Who Pays for the Cop- Research, Writing and Analysis ies?,” 79 Mich. B.J. 1062 (August 2000), with since In re X.Y., 529 N.W. 2d 688 (Minn. Sup. Ct. For more information, and to see what your 1995), McKim v. State, 528 N.E. 2d 484 (Ind. peers are saying about us: www.nlrg.com Ct. App. 1988), and Kansas Ethics Opinion 92- 1969 05 (1992).

232 October/November 2005 PRO BONO

By Rebecca K. Knight LSBA OFFICERS DO PRO BONO

ost attorneys know that Rule important than some of the other work I do. points out that when we take our 6.1 of the Louisiana Rules of Ultimately, I do pro bono work for very professional oath, we pledge to represent MProfessional Conduct, entitled selfish reasons: it makes me feel good indigents. He says, “Our Rules of Voluntary Pro Bono Publico Service, about myself and my chosen line of work.” Professional Conduct require that we encourages each lawyer to provide a mini- LSBA President Frank X. Neuner, Jr. provide services to the needy. But mum of 50 hours each year in pro bono agrees. He believes that providing pro additionally, our consciences should legal services to the poor. The rule is meant bono services achieves more than just demand that we use the skills we are to bolster one of the fundamentals of our personal satisfaction; it is an important fortunate to have to help those who are less system: access to the courts. If our poorest part of the serious responsibility inherent fortunate. It’s just the right thing to do.” citizens cannot be protected and their rights in having chosen to be an attorney. Neuner Moreover, Shows agrees with assured through the legal system, then jus- says, “I have truly come to believe that Neuner’s and Schnabel’s observation that tice for all cannot be a reality. Lawyers, providing pro bono services is a core pro bono work is personally rewarding more than any other profession, carry both element of being a professional.” and that the clients are often grateful. the honor and the burden of being the Neuner, who in 2004 received the “Not only is it nice to have a client who is guardians of a just society. Indeed, one of LSBA’s David A. Hamilton Lifetime satisfied with the outcome,” he says, “but the goals articulated in the Mission State- Achievement Award for his commitment the appreciation demonstrated by that ment of the Louisiana State Bar Associa- to pro bono service, has been a partici- client is very gratifying.” tion (LSBA) is to “assure access to and aid pant in the Lafayette Bar Foundation’s Neuner, Shows and Schnabel invite in the administration of justice . . . .” Volunteer Lawyers Program since its in- you to contribute your time and talent to Of course, talk is cheap. The real ception in 1988. According to Neuner, make sure that the legal system functions question is whether Louisiana’s Bar lead- one of the strengths of this particular for everyone, including the indigent. “Re- ers transform these laudable goals into a program is that it makes it very easy for member,” says our president-elect, sum- working reality. We talked to three cur- its volunteers to participate. In his expe- moning the language of the LSBA cam- rent officers to find out. rience, “clients are very grateful for the paign to garner more volunteers, “pro LSBA President-Elect Marta-Ann service you have performed for them.” bono attorneys hold the key to justice!” Schnabel, who has co-chaired the LSBA Secretary E. Wade Shows Association’sAccess to Justice Commit- agrees that pro bono service is an tee for the past two years and earned the important professional responsibility. A Rebecca K. Knight is the former Access 2004 President’s Award for her work on 2005 recipient of the David A. Hamilton to Justice training coordinator for the the committee, sees pro bono representa- Lifetime Achievement Award, Shows Louisiana State Bar Association. tion as an opportunity to remember why she chose to become a lawyer in the first place. Although she describes lawyers as “a cynical bunch,” she holds strongly to Discover the Indexing Edge the belief that most of us chose to go to Recommended by finance experts and utilized extensively by Michael H. Smither, J.D. experienced institutional investors, exchange-traded funds (ETFs) law school because of the desire to par- Managing Partner and index funds offer investors low-cost, diversified exposure to a ticipate in, promote and achieve justice. 650 Poydras Street wide variety of asset classes – from large and small company stocks Suite 1400 Pro bono work has helped her remain to growth and value, international equity, and bonds. At IndexEdge, New Orleans, La. 70130 grounded. She says, “When we graduate we use these innovative structures to implement cost-efficient, (504) 299-3419 index-based financial solutions for our clients. and enter the practice of law, we learn [email protected] • Specifically recommended by the Prudent Investor Rule that much of what we do in our day-to- www.indexedge.com • Well-suited for trustees and other fiduciaries day practice is more mundane. But when • Investments, retirement and college savings I go to court on behalf of an abused woman or a neglected child, I know that I am NDEX DGE SM NVESTMENT ONSULTING contributing to our society in a very direct I E I C and positive way, and in a way that seems Advanced Indexing Strategies for Accredited Investors considerably more immediate and more

Louisiana Bar Journal Vol. 53, No. 3 233 FOCUSProfessionalism ON By E. Phelps Gay PROFESSIONALISM SUCCESSES, CHALLENGES

ith all the hand-wringing over nice to know there are honest lawyers SOLACE members describing Johnny’s the supposed decline in lawyer somewhere in the world,” and after her plight. Within minutes, e-mails and phone Wprofessionalism over the past discouraging experience the committee calls flooded in from lawyers willing to decade or so, we sometimes forget that had “restored my faith in the legal donate their Delta Sky Miles to Johnny from a big-picture standpoint the legal system.” and his wife. Not only were they able to profession is in many ways more One day a talented but troubled fly to Milwaukee for the treatment, their “professional” now than it has ever been. lawyer was called into his managing ambulance charges also were paid for by Consider these stories: partner’s office. Expecting to see the SOLACE volunteers. Ms. Jones,1 a hard-working licensed managing partner, he was confronted In the aftermath of Hurricanes practical nurse with a spotless record, instead by five of his colleagues and one Katrina and Rita, hundreds of Bar was terminated by her employer after Bill Leary of Houma, director of the members participated in disaster training reporting certain rules violations which Lawyers Assistance Program (LAP). In to offer free legal assistance to the storms’ she believed endangered the health and a caring but firm tone, they told him he survivors. Attorneys manned shelters to welfare of patients. One of the hospital needed help. They specified numerous answer a myriad of storm-related legal physicians believed her rights had been instances where he failed to carry out his questions and offered advice through the violated and suggested she seek legal duties due to abuse of alcohol. They told LSBA’s Legal Assistance Hotline. counsel. She retained an attorney to file him he needed to undergo inpatient These stories, I should add, do not a whistleblower claim and paid him an evaluation and treatment at a facility represent isolated or even unusual advance of $1,000, a significant sum chosen by the LAP director. If he failed occurrences. They form part of the considering her modest annual income. to do so, he could no longer practice with everyday work undertaken by dedicated Having taken her money, the attorney the firm. lawyers and judges (usually volunteers) filed a sketchy, two-page petition in the This occurred six years ago. Recently, who care about our profession and want wrong venue and then disappeared. The the lawyer called Bill Leary and asked, to see its standards maintained and court held prescription had not been “Do you know what today is?” It was the improved. Like all “good news” stories, interrupted on her claim. The case had anniversary of the day he was summoned they draw little interest from the press; to be dismissed. Unemployed, with no into his managing partner’s office. That they will never land on the front page. savings, Ms. Jones scrambled to find was the day, he believes, that not only Instead, we read about the occasional contract nursing jobs. She filed a saved his practice, but also saved his corrupt judge and dishonest lawyer, and complaint against the attorney with the marriage and his life. He has been sober we grieve for what they have done — to disciplinary board, which eventually for six years. themselves, to their clients and recommended that he be suspended for Johnny’s liver disease was constituents, and to our profession. But three years and that he reimburse the 10 deteriorating at an alarming rate. His beneath the headlines, the “good news” clients who made similar complaints. doctor told him he needed to fly to goes on and, from time to time, without However, attempts to reach the lawyer Milwaukee immediately to begin boasting or becoming complacent, we proved fruitless. He never responded to screening for a liver transplant. Unable should tell those stories, too. the disciplinary complaints and was to pay for the tickets, he and his wife These thoughts came to mind a few ultimately disbarred by the Louisiana sought help from the Bar’s new SOLACE years ago when I read a provocative piece Supreme Court. No insurance was program, headed by U.S. District Judge written by a lawyer from Minnesota available to compensate his victims. Jay C. Zainey and New Orleans attorney named William Wernz.2 Responding to With nowhere else to turn, Ms. Jones Mark C. Surprenant. The program is an article decrying the “professionalism sought relief from the LSBA Client designed to reach out “in a small, but crisis,” he maintained we should not Assistance Fund. Upon investigation, meaningful and compassionate way” to necessarily equate a decline in civility finding her claim to be meritorious, the judges, lawyers, court personnel, among litigators with an overall decline committee authorized reimbursement of paralegals, secretaries and their families in professionalism. the $1,000 her attorney had taken from who experience a death or catastrophic Wernz postulated that the “core her. Ms. Jones responded with a heartfelt illness or injury. values” of professionalism relate to these letter to the committee chair, saying “it’s Judge Zainey sent an e-mail to areas: lawyer fee practices, concern for

234 October/November 2005 loyalty and conflicts of interest, self- the convictions and disbarments arising welcoming the new students to our regulation, care for clients and adverse out of the Watergate scandal that many profession. They spent the rest of the parties, learning and literature about the law schools began to require courses in afternoon engaging the students in a profession, and consideration for those legal ethics. lively discussion of ethics and outside the establishment, such as Further, Wernz notes that an honest professionalism issues. indigent criminal defendants or legal aid assessment of the profession’s past must So, yes, we face challenges. And, yes, clients. Point by point, he demonstrated come to grips with a history of exclusion. despite all of the articles, lectures, that what some lawyers believe was the It was not until 1943 that the ABA discussions, committee meetings and “golden age” 30 years ago was not really stopped barring African-Americans from CLE programs, we have not solved many so golden. membership. It was not until much more of the thorny issues confronting our Back then, the profession imposed recently that significant numbers of profession. We may never. As Tiger minimum fee schedules. For many women and minorities began to enter the Woods, the ultimate professional, said in persons, these schedules effectively profession. another context, “You can always get blocked access to legal services — that Wernz concludes that focusing on the better.” But it’s worth remembering that is, until 1975, when the U.S. Supreme “current abrasiveness” among certain we’ve come a long way, and, contrary to Court struck them down as “unusually lawyers runs the risk of ignoring “real popular wisdom, the place we came from damaging” to the public.3 Fee agreements progress on numerous professionalism was not necessarily a better place than were rarely regulated; the old DR 2-106 issues.” In my humble opinion, he is the place we’re in right now. did not even require communication of right. the basis of the fee. Conflicts of interest Acknowledging progress does not FOOTNOTES were not as strictly enforced as they are mean the status quo is perfect or that we today. It was not until 1983 that the don’t face serious challenges. This was 1. This is a true story, but her real name is Model Rules directly addressed the issue recognized by the Conference of Chief withheld for privacy reasons. of lawyers suing a current client. Justices in 1999, when they adopted a 2. “Does Professionalism Literature Idealize For that matter, disciplinary action National Action Plan on lawyer conduct the Past and Over-Rate Civility? Is Zeal a Vice against lawyers for any offense was and professionalism. This admirable or a Cardinal Virtue,?” The Professional remarkably lax, “practically nonexistent document contains a long list of Lawyer, ABA Center for Professional in many jurisdictions.”4 But by 1991, recommendations on improving lawyer Responsibility, Standing Committee on according to the ABA McKay Report, competence, continuing legal education, Professionalism, Fall 2001. “much progress [had] been made in the law office management, ethics assistance, 3. Goldfarb v. Virginia State Bar, 421 U.S. enforcement of lawyer discipline,” so assistance to lawyers with mental health 773 (1975). that most of the problems identified 20 or substance abuse problems, programs 4. Wernz cites the 1970 ABA Clark Report, years earlier had been resolved. for new admittees, funding client which noted that with few exceptions the Louisiana, as we know, has been a protection programs, pro bono service, “prevailing attitude of lawyers toward national leader in the area of improved professionalism in attorney advertising, disciplinary enforcement ranges from apathy disciplinary enforcement. and many other important topics. The During the 1970s, there were few, if action plan was followed by an to outright hostility.” See Wernz article, note any, client security funds. Clients whose Implementation Plan adopted by the 1, p. 5. lawyers stole their money were basically Chief Justices in 2001. 5. This certainly includes the LSBA Ethics out of luck. Today, we can proudly tell Right now, thousands of Louisiana Advisory Service, significantly improved in the story of Ms. Jones, who came to the lawyers and judges are working recent years. Bar and found relief. diligently to improve our profession. If the health of a profession is They are serving on important E. Phelps Gay is co-chair of the “reflected in the quality of its learned committees; they are speaking at Louisiana State Bar Association’s discourse,” Wernz suggests we are living seminars; they are taking on pro bono Professionalism & Quality of Life through a particularly robust era. cases; they are grading Bar exams. Committee. A past LSBA president, he is Scholars such as Geoffrey Hazard, Yesterday (as I write), I attended the sixth a partner in the New Orleans law firm Thomas Morgan, Deborah Rhode and annual Law Student Orientation on of Christovich & Kearney, L.L.P. He Stephen Gillers have provided us with Professionalism at Louisiana State received his undergraduate degree from rich resources on the law of lawyering. University Paul M. Hebert Law Center. Princeton University and his JD degree Ethics opinions to help lawyers navigate Fifty-five volunteer lawyers and judges from Tulane Law School in 1979. He can their way through difficult issues are showed up on a Friday afternoon to join be reached at (504)561-5700 or via e- better and more plentiful than ever.5 Associate Justice Chet Traylor and LSBA mail at [email protected]. Wernz reminds us that it was not until President Frank X. Neuner, Jr. in

Louisiana Bar Journal Vol. 53, No. 3 235 RECENTDevelopments ADMINISTRATIVE TO PUBLIC UTILITIES

Cir. 2005), the court held, 2-1, that the Louisiana Supreme Court’s exclusion of License Administrative non-immigrant aliens from admission to Art, the bar is a valid exercise of the court’s Entertainment Law constitutionally granted authority to regulate the practice of law in Louisiana, rea- and soning that the level of protection afforded Sports Law Non-Immigrant Aliens non-immigrant aliens is different from that Need Not Apply in favor of permanent resident aliens; i.e., non-immigrants are not, in this situation, a The Louisiana Supreme Court, like suspect class nor are they deprived of a Louisiana’s Newest many Louisiana regulatory agencies, fundamental right by the court. Moreover, requires that those who wish to receive a the restriction bears a rational relationship Entertainment Louisiana license to practice law must to the legitimate state interest in assuring Legislation be United States citizens or permanent clients that their Louisiana lawyers are U.S. residents, thus excluding non- accountable and the attorney-client rela- The 2005 Louisiana Legislature immigrant aliens. Two challenges to this tionship is not subject to disruption. passed several bills important to the en- requirement, filed in the Federal District The plaintiffs have requested review tertainment industry. These include laws Court for the Eastern District of by the Federal 5th Circuit Court of Ap- benefiting digital interactive media and Louisiana, were heard before different peals, en banc. the sound recording industry, as well as judges, who reached opposite results. changes to existing film and television One found the requirement valid; the — Brian M. Bégué production tax credits and new legisla- other concluded it was not. Although not Chair, LSBA Administrative tion to protect child actors. Each law is consolidated for trial, the two cases were Law Section briefly summarized below. consolidated for appeal. 2127 Dauphine St. The Digital Media Act (SB 341) grants In LeClerc v. Webb, 419 F.3d 405 (5 New Orleans, LA 70116 video game developers a 20 percent tax

236 October/November 2005 credit against their Louisiana expenses, minor may not withdraw the funds before in exchange for a long-term commitment his 18th birthday, unless a court ruling to operate in-state, and to develop rela- determines the minor is in “necessitous tionships with Louisiana universities. circumstances.” The Child Performer The Sound Recording Investment Act Trust Act also specifies at least three (HB 631) grants a refundable tax credit hours of educational instruction per day ranging from 10 to 20 percent for record- for any minor providing such artistic or ing projects or for infrastructure in the creative services. The teacher must be music industry. This legislation is tar- certified by the state of Louisiana in geted at major record companies to in- order to qualify as an “on set” teacher. If Fairness is crease recording in Louisiana studios the minor will be out of school two or and to create a permanent industry pres- more days within a 30-day period, teach- ence. The legislation also sets an annual ing on set is required. what justice cap on the costs of programs and limits Representatives of the Screen Actors usage per company. Guild and the Motion Picture Associa- really is. tion of America from the East and West –Potter Stewart Louisiana’s “Coogan Law” Coasts worked closely with the Legisla- Associate Justice, tive Committee of the Art, Entertainment U.S. Supreme Court Louisiana also passed an important and Sports Law Section and legislators, piece of non-tax-related legislation, the led by Senator Jay Dardenne, on this Most of the time, business in Child Performer Trust Act, Act 147, the crucial bill to protect minors in the indus- the securities industry runs equivalent of the California “Coogan try in Louisiana. smoothly. But what happens Laws.” These laws were passed in the when disputes arise? Investors, 1930s after former child actor Jackie — Michèle LeBlanc as well as industry members, Coogan found his substantial movie Member, LSBA Art, Entertainment need a fair and efficient earnings had been spent by his parents and Sports Law Section process to handle them. as he was growing up, to find he had very LeBlanc & Associates, P.L.C. That’s when NASD steps in. little money left. The Louisiana law P.O. Box 71651 We operate the largest tracks similar laws in California, Texas, New Orleans, LA 70172-1651 securities dispute resolution New York and New Jersey, protecting forum in the world. certain wages earned by minors for their performances and addressing on-set We recruit NASD arbitrators education. from both inside and outside Louisiana’s “Coogan Law” requires Corporate the securities industry. Then 15 percent of the gross earnings of a and we entrust them to run the minor rendering “artistic or creative ser- proceedings and ensure that vices” in Louisiana to be placed in an Business Law all the parties involved receive interest-bearing blocked trust account, a fair hearing. subject to certain conditions. The law Legislature Provides for applies to any contract in which a minor Simply visit us online at is employed or agrees to render such Certificateless Shares; www.nasd.com/arbitration_ artistic or creative services in Louisiana Amends Law on Transfer mediation if you are interested for $500 or more. Restrictions in becoming an arbitrator. The “artistic or creative services” of a You may also call our National minor include those of an “actor, actress, On June 21, 2005, the Governor signed Recruitment Supervisor, dancer, musician, comedian, singer, stunt- Act No. 97, which took effect on Aug. 15. Neil McCoy, at 212-858-4283. person, voice-over artist or other per- The law revises the sections of the Loui- former or entertainer in any motion pic- siana Business Corporation Law (LBCL), ture, television, radio, theatrical or sports La. R.S. 12:1, et seq., dealing with stock production or commercial production.” certificates and restrictions on the trans- The child’s compensation can be paid fer of stock. directly or through a third-party services Revised Section 57(G) of the LBCL company, loan-out corporation or agency will now allow a corporation’s board of providing services such as casting. The directors to authorize the issuance of

Louisiana Bar Journal Vol. 53, No. 3 237 certificateless shares, unless the articles unless the restriction is set forth on the provement, Inc. were entitled to either of incorporation or bylaws provide stock certificate or in the information one vote per share, or one vote per share- otherwise. The new law also makes statement provided to holders of holder, on matters considered at the changes to provisions governing physical uncertificated shares, it will not bind corporation’s annual shareholders’ meet- certificates. Under the old law, a anyone who has no knowledge of it, even ing. Hale, who owned 50 percent of the corporation’s president and secretary if it is contained in the articles or bylaws. corporation’s outstanding shares and who were required to sign stock certificates New Section 59 also provides that the voted against the actions taken at the unless the articles or bylaws designated only permissible purposes for a transfer meeting, claimed that the proper vote another officer. Now, unless the bylaws restriction are: (1) to maintain the was one vote per share, while the two designate two specific officers (or a clerk corporation’s status when that status de- defendants, who owned 25 percent of the and an officer), the corporation’s full pends on the number or identity of its stock each and voted in favor of the board of directors must sign all stock shareholders (for example, to maintain actions, argued the vote was by heads. certificates. This change may require “S” corporation status); (2) to preserve After reviewing the corporation’s char- many Louisiana corporations to amend exemptions under the federal or state ter documents and considering Section their bylaws or else have their entire securities laws; or (3) for any other “rea- 75 of the LBCL, the court held that the boards of directors sign stock certificates. sonable” purpose. The law also limits the vote was by shares. However, it appears In addition, the new law deleted the manner of the restrictions to: (1) rights of neither Hale nor the court considered requirements that the par value of the first refusal; (2) an obligation of the cor- whether, even if the vote was by heads, shares, or a statement that they have no poration or other persons to acquire the the actions taken at the meeting would par value, and restrictions on fractional shares; (3) a requirement that the corpo- have been invalid. shares other than voting restrictions be ration or other person approve the trans- At the meeting, the defendants voted set forth on the stock certificate. fer, if that requirement is not manifestly to, among other things, re-title company Act No. 97 makes significant changes unreasonable; and (4) a prohibition on vehicles in their own names, cut Hale’s to the LBCL regarding stock transfer transfers to certain persons or classes of compensation by $25,000 and give them- restrictions. The changes, set forth in persons, if the prohibition is not mani- selves a $10,000 bonus each. But mana- new Section 59, govern not just shares of festly unreasonable. gerial decisions such as these are the stock, but also any “security convertible Act No. 97 does not address Section province of the board of directors, not the into or carrying a right to subscribe or 12:58(A), which specifically permits shareholders. Section 81 of the LBCL acquire shares.” stock transfers to be regulated by bylaws provides that “all the corporate powers A corporation’s articles or bylaws, or not inconsistent with the now repealed shall be vested in, and the business and an agreement among shareholders, may Uniform Stock Transfer Law. affairs of the corporation shall be man- contain provisions restricting the trans- aged by, [the] board of directors . . . .” fer of shares of the corporation’s stock. Management of Corporations Shareholders are entitled to vote on only However, new Section 59(B) provides certain matters specified in the LBCL or that a transfer restriction will not affect In Hale v. Liljeberg, 04-0861 (La. the articles of incorporation, such as the shares issued before the restriction was App. 5 Cir. 1/25/05), 895 So.2d 28, the election and removal of directors, the adopted unless the holders of the shares Louisiana 5th Circuit considered whether approval of business combination trans- agreed to it or voted for it. Additionally, the three shareholders of Capital Im- actions, or the amendment of the articles. Since the court had previously affirmed the trial court’s factual finding that the defendants were not directors, it appears Forensic Meteorology & Oceanography Hale could have challenged some, if not Nash C. Roberts, III, Consulting Meteorologist, Inc. all, of the actions taken at the shareholders’ meeting by pointing out that those has over 30 years experience in forensic meteorology and items were not proper matters for share- forensic oceanography. Recognized as a professional capable holder consideration. of conducting involved investigations, reconstructing weather and marine conditions anywhere in the world and is — Maureen Brennan Gershanik eminently qualified to appear in expert testimony. Member, LSBA Corporate and Business Law Section 1905 Edenborn Ave. • Metairie, LA 70001 Correro Fishman Haygood Phone (504) 835-4538 Phelps Walmsley & Casteix, L.L.P. E-mail: [email protected] 201 St. Charles Ave., 46th Flr. New Orleans, LA 70170

238 October/November 2005 and reviewed the police reports, he “uni- pressed Brady evidence by failing to laterally determined that the absence of disclose Babin’s second statement. A Criminal contacts or glasses on the night of the series of hearings, dismissals of the com- Law murder did not affect Ms. Babin’s iden- plaint and reinstatements of the com- tification of Cousin as the shooter.” Al- plaint followed. At issue was whether though two of the statements were dis- Jordan had violated the Rules of Profes- closed to defense counsel prior to trial, sional Conduct, Rules 3.8(d) and 8.4(a), Brady Violations Can Be the second statement, being the most which provide: Ethical Violation as Well inconsistent statement, was not. After a failed motion to suppress the identifica- 3.8. The prosecutor in a criminal In Re Jordan, 04-2397 (La. 6/29/05), tion, the matter was tried to a jury, which case shall: ____ So.2d ____. convicted Cousin of first-degree murder On March 2, 1995, Michael Gerardi and sentenced him to death. (d) [M]ake timely disclosure to was shot at point-blank range during an Several days after the completion of the defense of all evidence or infor- armed robbery attempt outside the Port trial but prior to the penalty phase, a copy mation known to the prosecutor that of Call restaurant in New Orleans. The of Babin’s second statement was deliv- tends to negate the guilt of the ac- victim’s date, Connie Ann Babin, gave ered to defense counsel. On appeal, the cused or mitigates the offense, . . . three separate statements to the New defense tried to raise the failure to make except when the prosecutor is re- Orleans Police Department, noting at full disclosure as error, but the convic- lieved of this responsibility by a various times that she was nearsighted tion was reversed on other trial errors. protective order of the tribunal[.] and generally wears contacts or glasses. State v. Cousin, 96-2973 (La. 4/14/98), She stated that she did not get a good 710 So.2d 1065. However, the Supreme 8.4. It is professional misconduct look at the perpetrators and probably Court noted in its opinion that Babin’s for a lawyer to: couldn’t identify them, and then gave second statement was “obviously” ex- somewhat different descriptions of the culpatory, material to the issue of guilt, (a) [V]iolate or attempt to vio- perpetrator at different times. Despite her and “clearly” should have been produced late the Rules of Professional Con- misgivings, she identified Shareef Cousin to the defense under Brady v. Maryland, duct, knowingly assist or induce as the shooter from a photographic 83 S.Ct. 1194 (1963), and Kyles v. Whit- another to do so, or do so through lineup. Cousin was indicted for the first- ley, 115 S.Ct. 1555 (1995). the acts of another; degree murder of Michael Gerardi. Following Cousin’s successful appeal, Roger W. Jordan, Jr. was at that time he and his sister filed a complaint with The Disciplinary Board had found an assistant district attorney in Orleans the Office of Disciplinary Counsel against that Jordan technically violated the rules, Parish. Although he interviewed Babin Jordan, alleging that he wrongfully sup- but found that no discipline was neces- TRIAL COUNSEL

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Louisiana Bar Journal Vol. 53, No. 3 239 sary and dismissed the formal charges. the defendant’s conviction in the under- Considering the factors regarding pun- lying case was ultimately reversed on ishment, the board found no aggravating other grounds, the potential injury to the factors but did find “numerous and defendant and the criminal justice sys- weighty” mitigating factors. The Office tem required some form of discipline. Family Law of Disciplinary Counsel sought review, Looking to the rulings of other states and the Supreme Court granted the re- regarding prosecutorial ethical violations, quest. the court suspended Jordan from the prac- Divorce The Supreme Court explained that the tice of law for three months, deferring duty to disclose material evidence favor- imposition for one year, subject to the Rivette v. Rivette, 04-1630 (La. App. 3 able to a criminal defendant is more than condition that any misconduct during the Cir. 4/6/05), 899 So.2d 873. a mere statutory discovery right, but year following the judgment could be The court of appeal affirmed the trial strikes to the heart of the right to a fair grounds imposing the suspension or ad- court’s finding that the parties had recon- trial as guaranteed by the 14th ditional discipline, as appropriate. ciled, thus extinguishing the cause of Amendment’s Due Process Clause. The Justice Johnson concurred in part and action for the divorce. A strong dissent court likewise clarified that exculpatory dissented in part. Justice Johnson agreed discussed the burden of proof, the ad- evidence includes evidence that im- that Jordan knowingly withheld Brady verse presumption rule and the law re- peaches the testimony of a witness whose evidence and dissented from the decision garding reconciliation. credibility or reliability may determine to defer imposition of the suspension guilt or innocence. As the second state- from practice. Gremillion v. Gremillion, 39,588 (La. ment negated the witness’s ability to posi- App. 2 Cir. 4/6/05), 900 So.2d 262. tively identify the defendant in a lineup, — Michael S. Walsh Ms. Gremillion’s petition for divorce the statement was exculpatory and should Chair, LSBA Criminal Law Section filed in Union Parish, where she was have been disclosed. The court, there- Lee & Walsh living with her father due to medical fore, concluded that Jordan had, in fact, 628 North Blvd. problems, sought use of the former mat- violated Rule 3.8(d). Baton Rouge, LA 70802 rimonial domicile in Rapides Parish. Her The court then considered the appro- and actions while living in Union Parish and priate discipline, which was a res nova Joseph K. Scott III her “unique circumstances” showed she issue for Louisiana. Considering the high 830 Main St. had “no option” but to make Union Par- ethical obligations imposed on the pros- Baton Rouge, LA 70802 ish her domicile, so the trial court’s fac- ecutor by the power of his position, the tual finding on this issue denying Mr. rules must be strictly enforced. Although Gremillion’s exception of venue was not CARDONE LAW FIRM A PROFESSIONAL L AW C ORPORATION Select Referrals Concentrating In: • NURSING HOME LIABILITY CASES • SERIOUS PERSONAL INJURY & WRONGFUL DEATH CASES AV RATED State-wide practice with offices located in NEW ORLEANS • WESTBANK • METAIRIE CLIFFORD E. CARDONE (504) 581-1394

240 October/November 2005 erroneous. For purposes of interim spou- primary domiciliary parent. Where the Child Support sal support for Ms. Gremillion, Mr. parents’ parenting abilities are essen- Gremillion’s earning potential and ben- tially equal, the preference of a mature State v. Anderson, 04-1567 (La. App. 4 efits such as per diem pay, housing and and grounded 15-year-old is entitled to Cir. 3/9/05), 899 So.2d 93. use of an automobile could be consid- great weight, and his choice to live with After the attorney for the mother, Ms. ered in fixing his income and ability to the other parent constituted a material Love, and Mr. Anderson had an in-cham- pay. The final spousal support award did change of circumstances. bers conference with the court, Ms. Love’s not exceed one-third of his net income attorney read a purported “agreement” of once these factors were considered. Fernandez v. Pizzalato, 04-1676 (La. child support arrearages and a payment Because Ms. Gremillion’s irritability App. 4 Cir. 4/27/05), 902 So.2d 1112. schedule into the record, which the court and argumentativeness were due to her Because the trial court was clearly then stated was its ruling. Mr. Anderson history of mental problems and exacer- wrong in finding that Ms. Pizzalato had was not asked if, nor did he state on the bated by recent brain surgery, she was not met her burden of proof to change record, that he consented. The court of not at fault in the dissolution of the mar- custody, and because there were mani- appeal vacated the judgment and re- riage, which the court stated was “a legal fest errors in the trial court’s factual manded for a determination of his con- judgment of moral responsibility for end- findings, the court of appeal reviewed sent or for a trial on the merits. ing the marriage,” which was inappropri- this change of custody and visitation case ate under the circumstances. The court de novo. If the trial court interviews the Ezernack v. Ezernack, 04-1584 (La. App. further stated: child, it must make a record. Mr. 3 Cir. 4/6/05), 899 So.2d 198. Fernandez’s arrest records were relevant One month after the court set the child Indeed it is questionable whether and should have been admitted, but the support award, Mr. Ezernack stopped an individual suffering from mental omission was harmless because his testi- working the overtime he had worked for illness can be blameworthy or at mony put the same evidence before the almost the entire marriage. The trial court “fault” for the dissolution of a mar- court. The trial court’s ignoring of its did not err in denying his request to riage where it is the symptomatic court-appointed custody evaluator’s rec- reduce the support, finding that he was behavior of the mental disease that ommendations was unexplained and er- voluntarily underemployed because he caused the dissolution. roneous, given its thoroughness and the quit for the “express and admitted pur- trial court’s failure to adopt any of the pose” of avoiding his child support ob- Final Spousal Support recommendations. The court of appeal ligation. The court’s order that the balance vacated the trial court’s ruling limiting of a community property automobile mort- Voyles v. Voyles, 04-1667 (La. App. 3 Ms. Pizzalato’s access to the child, and, gage be assessed to him as his separate debt Cir. 5/4/05), 901 So.2d 1204. instead, awarded joint custody. Although after he voluntarily surrendered the vehicle The court of appeal affirmed the trial the court named Mr. Fernandez domicili- to the finance company instead of paying court’s award of $500 per month final ary parent, it designated Ms. Pizzalato to the note as he was ordered (Ms. Ezernack spousal support to Ms. Voyles based on make all major decisions regarding the had been awarded use of the vehicle) was her age (56), health problems (chronic child’s education. reversed because the punishment exceeded asthma), Mr. Voyles’s ability to pay (gross the court’s authority. income of $4,500 to $5,500 per month) and the duration of their marriage (approximately two years). There was no error in the trial court’s not setting a termination date for the support. ROLLAND L. BROUSSARD, L.L.C. SPECIALIZED PARALEGAL SERVICES Custody SPECIALTY AREAS: HIGH QUALITY RESEARCH & DOCUMENT WRITING Wages v. Wages, 39,819 (La. App. 2 Cir. Why pay for a yearly research plan? Get the research you need, 3/24/05), 899 So.2d 662. when you need it. We cater to solo practices and small firms; Whether Bergeron applies to a subse- however, we can assist large firms with special needs. quent request to modify custody depends Call for full details, (337) 856-5176; cell (337) 280-7661; on the nature of the original custody fax (337) 857-0294; e-mail [email protected] Crises, call 24/7. award, not on subsequent custody hearings that may not have directly addressed B.S., MED., EdD. Graduate of the LSU Paralegal Studies Program parental fitness as the core issue regard- Approved by the American Bar Association ing which parent should serve as the

Louisiana Bar Journal Vol. 53, No. 3 241 Wyatt v. Wyatt, 39,518 (La. App. 2 Cir. employees in each accident; or 4/6/05), 899 So.2d 788. Insurance, (b) bodily injury by disease, Mr. Wyatt failed to show that his including death resulting therefrom, retirement was for illness or medical ne- Tort, Workers’ sustained by each employee. cessity rather than voluntary. Further, he Compensation had other financial resources, and his Wausau filed motions for summary past failures to pay child support sug- and Admiralty judgment that were eventually granted by gested that he was not in good faith but Law the district court, which concluded that was attempting to avoid his child support the “underlying claims in question in this obligation. Thus, he was not entitled to a lawsuit involve bodily injury by disease. reduction in child support. Crash Course in Contract Therefore, the 36-month exclusion Construction applies and should be enforced as Community Property written.” Further, with respect to the SIR Riverwood Int’l Corp. v. Employers Ins. issue, because the claims were for Boone v. Boone, 39,544 (La. App. 2 Cir. of Wausau, ____ F.3d ____, (5 Cir. “bodily injury by disease,” a separate SIR 4/6/05), 899 So.2d 823. 2005). had to be met for each claim before Sub-chapter S distributions from a Riverwood, a paperboard manu- Wausau’s obligation to indemnify would community property corporation made facturer in West Monroe, purchased a attach, and no individual claim exceeded to Mr. Boone post-termination were his series of excess workers’ compensation the smallest per-employee SIR of separate property as earnings arising from and employers’ liability policies from $100,000. his labor, not community property as Wausau, providing coverage from May On appeal, Riverwood urged a shareholder distributions, because, even 1974 to January 1984. In 2000, numerous genuine issue of material fact as to though he received a salary, the corpora- present and former employees sued whether, under the policy terms, the tion had no capital assets or investments, Riverwood seeking damages for asbestos claims were for “bodily injury but all of its earnings arose from his exper- asbestos-related injuries. Riverwood by disease” or “bodily injury by tise and labor, including his supervision of settled 260 of the claims for a total of accident.” If the latter applied, the 36- subcontractors under his direction. $1.513 million, notifying its insurers, month exclusion would be avoided, thus including Wausau, of the claims, triggering Wausau’s obligation to Procedure characterizing them as “bodily injury by indemnify for the aggregate amount of disease” claims. Wausau denied the settlement, under the SIR. Interdiction of Cade, 04-1619 (La. App. coverage, citing a policy provision The 5th Circuit cited La. Civ.C. arts. 3 Cir. 4/6/05), 899 So.2d 844. excluding from coverage “bodily injury 2047 through 2050 on the interpretation The listing of grounds in La. R.S. by disease” claims not brought within 36 of contracts, and La. R.S. 23:1021(1) 9:1025 to remove a curator is illustrative, months after the end of the policy period, (workers’ compensation) to the effect that not exclusive, and the trial court has and further asserting that Riverwood “accident” is defined as: broad discretion to remove a curator if in could not meet the self-insured retention the best interest of the interdict. Because (SIR) requirements of the policy: an unexpected or unforeseen actual, one sister who lived in the same town as identifiable, precipitous event the interdict was able to attend her on a III. RETENTION AND happening suddenly or violently, daily basis, while the other sister, who was INDEMNITY. with or without human fault, and the curator, lived out of town, the court did The insured shall retain as its own directly producing at the time not err in changing the curator. However, net retention loss in the amount of objective findings of an injury because the court changed the curator not the retention stated in the which is more than simply a gradual because of mismanagement or wrongdo- declarations and the company deterioration or progressive ing, the court of appeal assessed the trial hereby agrees to indemnify the degeneration. costs equally between the two sisters. insured against loss in excess of such retention, subject to the limit The court adopted the holding of the of indemnity stated in the Louisiana 1st Circuit: — David M. Prados declarations; provided, that the Member, LSBA Family Law Section retention and limit of indemnity [T]o find that disease that results Lowe, Stein, Hoffman, apply as respects: from accidental contact with a Allweiss & Hauver, L.L.P. (a) bodily injury by accident, foreign body, such as an asbestos Ste. 3600, 701 Poydras St. including death resulting therefrom, fiber, is bodily injury by accident New Orleans, LA 70139-7735 sustained by one or more would be to subsume the definition

242 October/November 2005 of bodily injury by disease into the declaratory and injunctive relief under flagged cruise ships, except to the extent definition of bodily injury by Title III of the Americans with Disabili- that the application of the act interfered accident. ties Act. They asserted that the Baha- with the “internal affairs” of the foreign mian-registered cruise ships were cov- vessel. Id. at 2178-2179. In sum, foreign Hubbs v. Anco Insulations, Inc., 98-2570 ered by Title III’s prohibition on dis- cruise ships are places of “public accom- (La. App. 1 Cir. 12/28/99), 747 So.2d crimination in places of “public accommodation” and “specified public trans- 804, 807-808. Therefore, the court held modation,” and by its prohibition on dis- portation” within the meaning of Title III that: crimination in “specified public trans- of the ADA. The court held, however, portation services.” See 42 U.S.C. § that the provision of Title III requiring [T]he district court properly 12182(a); 42 U.S.C. § 12184(a). barrier removal if “readily achievable,” concluded that the only reasonable The district court held that Title III 42 U.S.C. § 12181(9), did not apply to interpretation of the [p]olicies is applied to foreign-flagged cruise ships in the foreign ships if barrier removal would that an asbestos-related disease is United States territorial waters. The dis- bring a vessel into non-compliance with not a “bodily injury by accident” trict court dismissed, however, the peti- the International Convention for the but is rather a “bodily injury by tioners’ claims regarding physical barri- Safety of Life at Sea or any other interna- disease.” Accordingly, the 36- ers to access. The United States 5th Cir- tional legal obligation. month exclusion applies. cuit reversed in part, holding that Title III did not apply because of a presumption — Brendan P. Doherty that absent a clear indication of congres- Foreign-Flagged Cruise Ships Member, LSBA Insurance, Tort, sional intent, general statutes do not ap- Workers’ Compensation and Adjudged Places of “Public ply to foreign-flagged ships. Spector v. Admiralty Law Section Accommodation” Norwegian Cruise Line Ltd., 356 F.3d Gieger, Laborde & Laperouse 641, 644-646 (5 Cir. 2004). In a similar Ste. 4800, 701 Poydras St. Spector v. Norwegian Cruise Line Ltd., case, the 11th Circuit held that the ADA New Orleans, LA 70139 125 S.Ct. 2169 (2005). does apply to foreign-flagged cruise ships and Petitioners, a group of disabled indi- in United States waters. Stevens v. Pre- John Zachary Blanchard, Jr. viduals and their companions who pur- mier Cruises, Inc., 215 F.3d 1237 (11 Past Chair, LSBA Insurance, Tort, chased tickets in 1998 and 1999 for round- Cir. 2000). The United States Supreme Workers’ Compensation and trip cruises on two Norwegian Cruise Court granted certiorari to resolve the Admiralty Law Section Line vessels, filed a class action in the conflict. Spector, 125 S.Ct. at 2174. 90 Westerfield St. United States District Court for the South- The Supreme Court reversed in part, Bossier City, LA 71111 ern District of Texas. Petitioners sought holding that Title III applied to foreign-

Louisiana Bar Journal Vol. 53, No. 3 243 ruling, the court stated that: StreamCast peer-to-peer software packages were created primarily to ® one who distributes a device with encourage users to illegally trade ™ the object of promoting its use to copyrighted songs and movies. In an Intellectual infringe copyright, as shown by innovative move, MGM did not file suit Property Law clear expression or other against the individual users of the © affirmative steps taken to foster software, but instead alleged contributory infringement, is liable for the and vicarious infringement by the makers resulting acts of infringement by of the technology that enabled the Supreme Court Rules third parties. infringement. in MGM v. Grokster 125 S.Ct. at 2780. The decision Supreme Court Ruling The United States Supreme Court represents a major victory for the motion The issue before the Supreme Court recently ruled in the much-anticipated picture and recording industries, which focused on a relatively narrow question: copyright infringement case Metro- took the case to the nation’s highest court whether distributors of peer-to-peer Goldwyn-Mayers Studios Inc. v. after losing in the lower courts. products capable of both lawful and Grokster, Ltd., 125 S.Ct. 2764 (2005). Lawyers for the plaintiffs (MGM) unlawful use could be held liable for acts The high court reversed the judgment of filed a complaint in the U.S. District of copyright infringement by third parties the 9th Circuit Court of Appeals and held Court for the Central District of using the products. Supporters of that Grokster, StreamCast (Morpheus) and California against Grokster and Grokster and StreamCast argued that the KaZaA could be held liable for copyright StreamCast alleging copyright case had broad implications, stating that infringements committed by users of their infringement, in violation of 17 U.S.C. § if copyright owners were allowed to sue peer-to-peer file-sharing software. In its 501. MGM asserted that Grokster and inventors of new technologies for the acts of their users, such regulation would chill innovation and development of new file- sharing technologies. Grokster and StreamCast primarily relied on the Supreme Court’s 1984 Sony Betamax ruling — in which the court rejected claims brought against Sony for copyright infringement associated with the Betamax video cassette recorder (VCR) — to counter MGM’s claims. Sony Corp. of America v. Universal City Studio, 104 S.Ct. 774 (1984). In the Sony case, the Supreme Court ruled that makers of technologies with “commercially significant non-infringing uses” were not liable for their users’ copyright violations. Specifically, the court found that the sale of VCRs did not subject Sony to contributory copyright liability, even though Sony had constructive knowledge that its machines could be used, and were being used, to infringe copyrighted works. The utility of the VCR for “substantial non- infringing uses” convinced the court that “constructive” knowledge of infringing activity was insufficient to warrant liability based on the “mere retail” of Sony’s recorder. The ruling in MGM does not overturn the court’s Sony decision. Instead, the

244 October/November 2005 court reasoned that the Sony ruling was active steps to encourage of the alleged infringement, and the never intended to provide shelter for infringement. marketing strategy of the peer-to-peer promoters of copyright infringement. The software as indicators that Grokster and court noted: 125 S.Ct. at 2772. Consequently, the StreamCast intentionally induced its court concluded that Grokster and users to infringe copyrighted works. The Sony’s rule limits imputing culpable StreamCast could be found at fault for court also found that the defendants intent as a matter of law from the promoting and profiting from profited from the infringement by selling characteristics or uses of a infringement among users of their advertising space and streaming the distributed product. But nothing in products. advertisements to its software users while Sony requires courts to ignore The court explained: they employed the programs to download evidence of intent if there is such and trade files. According to the court’s evidence. . . . One infringes [copyright law] rationale, both contributory and vicarious contributorily by intentionally infringement theories were seemingly 125 S.Ct. at 2779. Justice Souter, writing inducing or encouraging direct applicable, but the court did not rule on for a unanimous court, noted that in the infringement . . . and infringes the vicarious liability issue, opting only instant case: vicariously by profiting from direct to address the applicability of infringement while declining to contributory infringement based on an [t]he record is replete with exercise a right to stop or limit it. inducement theory. evidence that from the moment Harmonizing its ruling with Sony, the Grokster and StreamCast began to 125 S.Ct. at 2776. Justice Souter cited court concluded that “mere knowledge distribute their free software, each factors including the business model of infringing potential or of actual one clearly voiced the objective employed by Grokster and StreamCast, infringing uses” of a product is not that recipients use it to download the lack of effort to filter copyrighted enough to “subject a distributor to copyrighted works, and each took works or limit infringement, the quantity liability.” But in instances where “the

Louisiana Bar Journal Vol. 53, No. 3 245 distributors’ words and deeds” go beyond agency, instituted suit in Export-Import the foreign country.” The court concluded distribution and show a purpose to cause Bank of the United States v. Asia Pulp & that “Indonesia appears to prohibit ser- and profit from third-party acts of Paper Co., 03 Civ. 8554 (LTS)(JCF) vice by international courier.” copyright infringement, the “inducement (S.D. N.Y. 2005), against Asia Pulp and The court, however, concluded that rule” premises liability on such subsidiaries of Asia Pulp, alleging that service by way of international courier, “purposeful, culpable expression and the defendants breached loan and guar- although “technically in violation of In- conduct.” 125 S.Ct. at 2780-2782. The antee agreements. The Ex-Im Bank, main- donesian service requirements,” was ac- court, therefore, concluded that there “is taining that the subsidiaries had frus- ceptable pursuant to Rule 4 (f)(3). The substantial evidence in MGM’s favor on trated service of process, moved the court court noted that the defendant subsidiar- all elements of inducement, and summary to declare service valid and for leave to ies breached their contractual obligations judgment in favor of Grokster and serve amended pleadings. to maintain agents for service of process, StreamCast was error.” Id. at 2782. The The plaintiff maintained that service that any offense to Indonesia’s sover- judgment of the 9th Circuit Court of on the subsidiaries in Indonesia should eignty would be minimal and that the Appeals was accordingly vacated and the be deemed valid pursuant to either Fed- means of service attempted by the Ex-Im case remanded to the district court for eral Rule of Civil Procedure 4 (f)(2)(C)(ii) Bank were reasonable given the fact that further proceedings. or (4)(f)(3). Rule 4 (f)(2)(C)(ii) provides, the parties were engaged in international in part, that service outside of the U.S. transactions. — Mark A. Johnson may be effected “by . . . any form of mail Member, LSBA Intellectual requiring a return receipt, to be addressed U.S. Criminal Proceedings Property Law Section and dispatched by the clerk of court to the and Vienna Convention Liskow & Lewis party to be served.” Rule 4 (f)(3) pro- Ste. 5000, 701 Poydras St. vides that service may be made “by other The U.S. Supreme Court, in Medillin New Orleans, LA 70139-5099 means not prohibited by international v. Dretke, 125 S.Ct. 2088 (2005), dis- agreement as may be directed by the missed a writ of certiorari sought by a court.” Mexican national convicted in Texas of The court held that the service at- the gang rape and murder of two girls, tempted by mail was ineffective pursuant concluding that certiorari had been “im- to Rule 4 (f)(2)(C)(ii) because the mail providently granted.” The court initially was not sent by the clerk of court and granted certiorari to consider two ques- because the subsidiary defendants did tions: (1) whether a federal court is bound International Law not sign the return receipts. Service at- by a decision of the International Court tempted by means of an international of Justice (ICJ), the judicial arm of the courier, in this instance DHL, was also United Nations, to reconsider the Foreign Service of Process ineffective pursuant to Rule 4 (f)(2)(C)(ii) petitioner’s claim for relief asserted un- because it too was not dispatched by the der the Vienna Convention on Consular The Export-Import Bank of the United clerk and further because this aspect of Relations; and (2) whether the decision States (Ex-Im Bank), a corporation orga- Rule 4 also requires that the manner of of the ICJ should be given effect “as a nized pursuant to federal law as a federal service is not “prohibited by the law of matter of judicial comity and uniform treaty interpretation.” The ICJ in In re Avena and Other SCIENTIFICALLY BASED ACCIDENT RECONSTRUCTION Mexican Nationals (Mex. v. U.S.), 2004 AND PRODUCT DEFECT CASES... I.C.J. No. 128 (judgment of March 31), declared that the Vienna Convention • Accident Reconstruction • Construction Zones and MUTCD • “guaranteed individually enforceable Railroad Grade Crossing Accidents • Oil Field Accidents • ATV Accidents rights” and that the U.S. must provide for • Tractor Trailer Truck Accidents • Automotive Glass Testing • Fires, Fuels and the review and reconsideration of the Explosions • Product Design Defects • Testing Facility • Electronic Scan Tool conviction and sentencing of Mexican • Hands-On Mechanical Work • Physical Evidence Storage nationals who maintained that their • Technical Support for Attorneys Vienna Convention rights had been vio- RHOADES COMPANY, INC. lated. Medellin, subsequent to being con-

HEADQUARTERS: P. O. BOX 392 • CORINTH, MISSISSIPPI 38835 • 662.287.0167 • FAX 662.286.0938 victed and sentenced to death, asserted OTHER OFFICES: 8209 JO MARCY DRIVE • LAS VEGAS, NEVADA 89131 • 702.396.2154 • FAX 702.839.0757 on appeal that the State of Texas violated www.rhoadescompanyinc.com • [email protected] his rights under the Vienna Convention by failing to notify him of his right to

246 October/November 2005 contact a Mexican consular official. Wilderness, ____ F. Supp. 2d ____ after OFAC issued its pre-penalty notice. The petitioner, subsequent to the Su- (D.D.C. 2005), were whether the Office The court, subsequent to reviewing the preme Court’s decision to grant his writ, of Foreign Assets Control (OFAC), a agency record, concluded that the delay filed a writ of habeas corpus in state court Treasury Department agency charged was not unreasonable given the agency’s relying in part on a memorandum of the with administering and enforcing U.S. “other enforcement priorities, particu- President that addressed how the U.S. economic sanctions, violated its regula- larly in the wake of the September 11, would carry out its international obligations by failing to “promptly” issue a 2001 terrorist strikes.” The court further tions under the Vienna Convention. The penalty notice and whether it had acted held that while the timing of the issuance Supreme Court held that “the state-court arbitrarily and capriciously when it is- of the penalty notice was “fortuitous,” no proceedings may provide Medellin with sued a penalty notice in the amount of evidence before the court established the very reconsideration of his Vienna $20,000 nine days after the defendant selective prosecution. Convention claim that he now seeks” and protested against the government’s mili- that the “merits briefing” raised a number tary policy in Iraq. Voices in the Wilder- China Textile Safeguards of issues that needed to be overcome ness exported medical supplies and trav- before he would be entitled to the habeas eled to Iraq in the late 1990s contrary to The Court of Appeals for the Federal relief he sought. Executive Order 12724 and the Iraqi Circuit in U.S. Assoc. of Importers of Sanction Regulations. Textiles and Apparel v. United States, OFAC’s regulations required that the 413 F.2d 1344 (Fed. Cir. 2005), reversed OFAC: “Prompt” agency “promptly” issue a monetary pen- a December 2004 decision of the Court Penalty Notice alty notice once “the Director determines of International Trade (CIT) that granted that there was a violation” of U.S. eco- the plaintiff’s motion for a preliminary The issues before the court in Office of nomic sanctions. The penalty notice is- injunction. The CIT enjoined the Com- Foreign Assets Control v. Voices in the sued to Voices came almost four years mittee for the Implementation of Textile

Louisiana Bar Journal Vol. 53, No. 3 247 Agreements from considering petitions A jury awarded the plaintiff’s dam- providers and the plaintiff to settle or self-initiating safeguard investigations ages in excess of the cap, plus past and their liability in exchange for any- against Chinese textile products based future medical expenses. Following de- thing. This case simply does not on the threat of market disruption. The nial of their JNOV/new trial motion, the involve a settlement of liability. Federal Circuit concluded that the CIT two defendant health care providers sat- Rather, it involves a payment in had abused its discretion in granting the isfied the judgment against them by each satisfaction of an adverse judgment. preliminary injunction “[b]ecause the As- paying the statutory maximum of Consequently, the provisions of La. sociation failed to show even a fair chance $100,000, plus interest, and foregoing R.S. 40:1299.44(C)(5)(e) . . . do of success on the merits.” their rights to appeal. The PCF then inter- not apply to this case. vened and filed a petition for a suspen- The views expressed do not necessarily sive appeal. The court of appeal had relied on represent the views of U.S. Customs and The court of appeal refused to allow Koslowski v. Sanchez, 576 So.2d 470 Border Protection or the United States the PCF to contest the liability of the (La. 1991), overruled in part by Russo v. government. doctors after the doctors admitted their Vasquez, 94-2407 (La. 11/7/95), 648 liability by paying the statutory maxi- So.2d 879, which held that a post-judg- — J. Steven Jarreau mum. The appellate court also affirmed ment settlement prevented the Fund from Member, LSBA International the district court’s award of past and contesting liability on appeal. The Law Section future medical expenses. Koslowski court held that the PCF could U.S. Customs and Border Protection The Louisiana Supreme Court granted not contest liability when there was a 1300 Pennsylvania Ave., N.W., certiorari: binding settlement “either before or after Mint Annex trial.” But, Koslowski does not apply to Washington, D.C. 20229 primarily to consider the issue of this case because, in Koslowski, the plain- whether the Fund is entitled to con- tiff executed a release in favor of the test the physicians’ liability on ap- defendant and his insurer, whereas in the peal when the physicians have paid instant case, the defendant elected not to the statutory maximum amount in appeal and instead satisfied the judg- Professional satisfaction of judgment and have ment. The record did not indicate that a Liability foregone their rights to appeal. release had been executed. The plaintiff’s brief said the judgment was paid without The PCF argued the inapplicability of the benefit of a release, whereas the PCF Payment by Physicians La. R.S. 40:1299.44(C)(5)(e), which pro- indicated that the plaintiff did sign a of the Statutory Maximum vides that the payment of $100,000 in release and satisfaction of judgment. The settlement amounts to a statutory admis- record did not contain a release signed by After Judgment: sion of liability. The court agreed: the plaintiff. Is Liability Admitted? In reviewing its prior decisions and In the instant case, nothing in the tracing the history of the MMA from its Hanks v. Seale, 04-1485 (La. 6/17/05), record indicates the existence of an enactment in 1975, the court pointed out ____ So.2d ____. agreement between the health care that it had long recognized that a suit under the MMA is against the health care provider only and that the Fund is not a party defendant against whom the action can be brought. After a plaintiff has settled with a health care provider, the PCF takes the form of a statutory intervenor. The court cited a number of cases for this proposition, including Felix v. St. Paul Fire and Marine Ins. Co., 477 So.2d 676 (La. 1985), which held that after a judgment is rendered against the health care provider in excess of $100,000, the PCF has “an interest in the action for the purpose of appealing the excess judgment against the Fund.” These principles led the court to conclude that the Act

248 October/November 2005 contemplates that liability is generally an patient is or is not in need of future admitted into evidence in any civil ac- issue to be determined between the claim- medical care “and the amount thereof.” tion, any information “created, gener- ant and the health care provider, whereas The jury awarded $2,435,040 in future ated, or compiled” by a medical profes- the Fund has an interest in the issue of medical expenses, but the Fund argued sional liability insurance company, a excess damages, a conclusion validated that the plaintiff did not establish with health care provider professional and by La. R.S. 40:1299.44(C)(6), which pro- any degree of certainty that he was in public liability trust created pursuant to vides that any settlement approved by a need of future medical care, and he pre- R.S. 22:5, the Office of Risk Manage- court shall not be appealed, whereas a sented no medical evidence or testimony ment or the PCF. However, any factual judgment fixing damages can be ap- to support such a claim. But the evidence information that is otherwise discover- pealed: produced at trial was such that a jury able from a health care provider or is could reasonably conclude that the pa- otherwise admissible in evidence “shall Thus, the settlement itself, which is tient was in need of future medical care not be deemed confidential because it between the health care provider without direct expert medical testimony has been reviewed or used for purposes and the plaintiff, cannot be ap- on that issue, although there was “non- of risk management or loss prevention” pealed, but the amount of damages specific” testimony related to the need by a medical professional liability in- assessed by the Court, which can for future medical care. The court noted surer, a public trust, the Office of Risk include excess damages to be paid that future medical care is not a lump sum Management or the PCF. by the Fund, may be appealed. award payable immediately but instead Section 3715.5 is commonly referred is paid as the bills are submitted to the to as the “I’m sorry” statute. It provides Here, when the defendants each chose PCF. One justice suggested that the judg- that any oral or written statement, gesture not to appeal and decided to satisfy the ment should be reformed, with respect to or conduct by a health care provider judgment, the judgment of liability be- future medical expenses, simply to state “expressing or conveying apology, re- came final. No provision of the Act gives that if the plaintiff was in need of future gret, grief, sympathy, commiseration, the PCF the right to appeal this part of the medical expenses that they would be condolence, compassion, or a general judgment. paid “when and as incurred.” sense of benevolence made to a patient, a The PCF also argued that the lower relative of the patient, or an agent or courts erred by affirming the award of 2005 Legislation representative of the patient” shall not future medical expenses because the constitute an admission or a statement plaintiff did not submit any evidence as Act No. 63, Amending and Re-enacting against interest and shall not be admis- to the nature, extent and amount of such R.S. 44:4.1(B)(5) and Enacting R.S. sible “to establish liability, or for any expenses. The court recognized that La. 13:3715.4 and 3715.5 other purpose, including impeachment,” R.S. 40:1299.43 provides, in part, that Section 3715.4 protects from any kind in panel proceedings, arbitration pro- the fact finder should decide whether the of discovery, and prevents from being ceedings or civil actions. However, a @ek\i\jk\[`eXDfi\ ClZiXk`m\GiXZk`Z\6

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Louisiana Bar Journal Vol. 53, No. 3 249 statement of fault that is part of, or in last panel member was deleted. interest electric transmission corridors” addition to, any such communication is in areas that are congested and meet other not made inadmissible pursuant to this — Robert J. David specified standards. Once established, statute. Gainsburgh, Benjamin, David, FERC would have the authority to issue Meunier & Warshauer, L.L.C. permits for construction or modification Act No. 127, Amending and Re-enacting 2800 Energy Centre, 1100 Poydras St. of transmission facilities in these R.S. 40:1299.39.1(A)(1)(e), (2)(a), (3)(a) New Orleans, LA 70163 corridors under some circumstances. The and/or R.S. 40:1299.47(A)(1)(e), (2)(a), statute does not consider traditional state (3)(a) and (c), and enacting R.S. interests such as aesthetics, or 40:1299.39.1(A)(5) and 1299.47(A)(5), environmental or public health and safety and repealing R.S. 40:1299.47(K) issues. It creates a right of federal All references to “60”-day deadlines eminent domain over property necessary were changed to “90”-day deadlines. Public Utilities to make the transmission modifications. Confirmation to the claimant that the It would not affect Louisiana unless or filing of a medical-review-panel com- until it is included in a “national interest plaint has been officially received and Energy Policy Act of 2005 electric transmission corridor.” whether the named defendant or defen- Brings Change to the dants are qualified must now be made by Regulation of Public Utilities Transmission Operation “certified mail, return receipt requested.” Improvements However, if the certified mail is not On Aug. 8, President Bush signed into The Act protects existing transmission claimed or is returned undeliverable, the law the Energy Policy Act of 2005 (Act), rights that are needed to serve retail state or the PCF shall provide notifica- a sweeping piece of legislation that will native load. It states that utilities are tion by regular first-class mail. have implications for many aspects of entitled to use existing firm transmission The requirement that the medical- energy law and business. This article will rights that are needed to secure native review panel must render its opinion highlight some of the major changes load and to serve that native load in the within 180 days after the selection of the brought about by the new Act. future. The Act is silent on the issue of RTO participation. Electric Reliability Standards The Act allows FERC to select and Transmission Rate Reform ,BZ&%POOFMMZ certify an Electric Reliability Orga- The Act requires FERC to establish "TTPDJBUFT nization (ERO) that would be given the incentive-based and performance-based authority to set nationwide “reliability rates intended to encourage transmission $FSUJmFE$PVSU3FQPSUFST standards.” The ERO is given the investment. These incentives would 'VMM4FSWJDF authority to penalize violations of ERO- apply to existing as well as new $PVSU3FQPSUJOH'JSN established (and FERC-approved) transmission investment. Section 1242 of $PNQMFUF-JUJHBUJPO4VQQPSU reliability standards, subject to FERC this subtitle allows the FERC to approve review. This legislation will transform the participant funding for transmission )0634&37*$& North American Economic Reliability upgrade costs. 7JEFP%FQPTJUJPOT Counsel (NERC) from a voluntary 7JEFP$POGFSFODJOH reliability organization to a regulated PURPA Amendments 3FBM5JNF5SBOTDSJQUJPO organization that will have authority to The Act requires each utility to 1) $PNQMFUF$PNQVUFSJ[FE4FSWJDFT set and enforce mandatory reliability make “net metering service” available to $POGFSFODF3PPN standards. State authority is preserved to customers requesting such service; 2) act regarding safety, adequacy and develop a plan to diversify its fuels and reliability issues, as long as the action is technologies, including renewable .QRZOHGJHDEOH not inconsistent with the FERC-approved technologies; and 3) develop and (IILFLHQW reliability standards. implement a 10-year plan to increase the 'HGLFDWHG efficiency of its fossil fuel generation. Transmission Infrastructure This amendment states that each state Modernization regulator shall conduct a proceeding to 4VJUF&OFSHZ$FOUSF 1IPOF The Act creates what has become consider adopting the requirements listed 1PZESBT4USFFU 5PMM'SFF known as federal “backstop” siting above for its regulated utilities. /FX0SMFBOT -" 'BY FNBJMLBZEPOO!CFMMTPVUIOFU authority. The Secretary of Energy is It also requires state regulators to authorized, after study, to set up “national conduct proceedings to investigate whether

250 October/November 2005 it wants to adopt time-based metering, time- Under PUHCA, the SEC regulated transmission services. It protects based rate schedules, real-time pricing rate affiliate transactions of utility holding sensitive market information, prohibits schedules, and credits for consumers that companies, and it had approval authority the providing of false information, and agree to peak load reductions in advance. over most utility mergers. Under this prohibits energy market manipulation. The Act further requires state regulators to repeal, state utility regulators retain investigate forms of demand response access to the books and records of Liquefied Natural Gas devices and rates. affected holding companies to the extent The Act grants the FERC exclusive Section 1253 of this subtitle that those books and records are jurisdiction over the siting, construction, eliminates mandatory PURPA purchase legitimately needed to regulate the costs expansion and operation of LNG and sales obligations from QF facilities incurred by the utility. It reserves the right terminals and removes state authority to for new contracts, if the QF has of state regulators to exclude from retail enforce safety violations. nondiscriminatory access to a wholesale rates excess costs associated with market or if the QFs are protected by an inappropriate affiliate transactions. State Renewable Portfolio Standards RTO. It eliminates the requirement to regulators may move to enact protective The Act includes tax credits for purchase from any new cogeneration measures necessitated by PUHCA’s repeal. renewable electricity resources, but does facility unless that QF facility was built not include a federal renewable portfolio to be used primarily for industrial/ “Market Transparency, Enforcement standard. A federal renewable portfolio commercial use — and not designed to and Consumer Protection” standard has passed the Senate several be used to sell to a utility. The Act sets up an electronic times. information system to provide public — Noel J. Darce and Repeal of PUHCA access to appropriate information needed Dana M. Shelton The Act repeals the Public Utility to provide price transparency in Members, LSBA Public Utilities Section Holding Company Act (PUHCA), wholesale electric markets, including Stone Pigman Walther Wittmann, L.L.C. effectively removing jurisdiction over information on the availability and 546 Carondelet St. utility holding companies from the SEC. market prices of wholesale energy and New Orleans, LA 70130

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Louisiana Bar Journal Vol. 53, No. 3 251 LAWYERSYoung LOCAL AFFILIATES

LOCAL AFFILIATES

NOBA IOC, YLS Sponsor Joint Mentoring Program

The New Orleans Bar Association (NOBA) Inn of Court and the New Or- leans Bar Association Young Lawyers Section sponsored “The Art of Mentoring: Ways and Means to a Successful Mentoring Relationship” in July. This was a “brown bag lunch” program held in the courtroom of U.S. District Judge Carl J. Barbier. It was designed to benefit attorneys of all experience levels. Ad- dressed were the need for mentoring, analyzing ways to incorporate mentoring into the daily practice of law and presenting the ways and means to a successful mentoring relationship. A joint mentoring program was hosted by the New Orleans Bar Association (NOBA) Inn of Inn of Court Vice President William Court and Young Lawyers Section. From left, NOBA YLS Chair Bradford E. Adatto, NOBA B. Schwartz chaired the event with the Immediate Past Chair Chauntis T. Jenkins, NOBA YLS Directors Maurice C. Ruffin and assistance of Kelly T. Scalise, NOBA Deborah McCrocklin and NOBA Inn of Court Vice President and Program Chair William B. Young Lawyers Section Executive Board Schwartz. Seated is NOBA Executive Board member Kelly T. Scalise. member and chair of the YLS Mentoring Committee. A mock presentation was performed by Cassie E. Felder, YLS Immediate Past Chair Chauntis T. Jenkins, YLS Directors Deborah McCrocklin and Maurice C. Ruffin and Schwartz.

New Orleans Mayor Nagin Speaks at NOBA Mayor’s Luncheon

The New Orleans Bar Association (NOBA) Young Lawyers Section sponsored its annual Mayoral Luncheon with New Orleans Mayor Ray Nagin on June 9. More than 100 people attended to hear an update from the mayor on the state of New Orleans Mayor Ray Nagin addressed members of the New Orleans Bar Association the city. (NOBA) at the annual NOBA Young Lawyers Section Mayoral Luncheon. From left, NOBA NOBA President Jesse R. Adams, Jr. First Vice President Daniel Lund, Nagin, NOBA President Jesse R. Adams, Jr. and NOBA introduced Mayor Nagin who spoke can- Board member José R. Cot.

252 October/November 2005 didly with area lawyers about the progress that has been made since he was elected and the challenges that remain. After his talk, he welcomed questions from the audience. Carey L. Menasco is chair of the YLS Mayor’s Luncheon Committee.

Airline High Mock Trial Team Places Second in State

The Shreveport-area high school mock trial competition winners, Airline High School, made it to the championship round of the 2005 Louisiana State Mock Trial Competition and placed second in the state behind Baton Rouge Magnet High. Airline High team member Tina Dean was named “Best Attorney” in the com- The Airline High School mock trial team (honored at the Shreveport Bar Association’s Law petition. In addition to Dean, other Air- Day luncheon) won the regional competition and placed second in the state. From left, Coach line team members included Emily Mickey White, Michael Kim, Tahani Hammad, Rachal Cox, Emily Atwood, Tina Dean, Andrew Green, Paul Gillespie and Michael Gillespie. Atwood, Rachal Cox, Michael Gillespie, Paul Gillespie, Andrew Green, Tahani Hammad and Michael Kim, with Mickey White and Judy Podner serving as team coaches. The case argued in the competition involved violation of the civil rights of prisoners in North Feliciana Parish. The parish sheriff was charged with con- spiracy to violate the civil rights of the federal prisoners placed in his care. The case centered around a group of San Marcan refugees who had been placed in parish and county facilities all across the South while awaiting transfer to federal holding areas. Seven teams participated in the state competition, with Airline and Destrehan high schools being the only two public schools in the competition. Airline beat Destrehan and St. Fredrick’s High School of Monroe prior to facing Baton Rouge Magnet in the championship round. Team Coach White said that the championship match “was a very close match, but their (Baton Rouge High) polish and poise lifted them over us. The experience of making that final round will be invaluable for next year.” Airline finished third in last year’s state competition. In addition to the two teacher coaches,

Louisiana Bar Journal Vol. 53, No. 3 253 the Airline team received guidance from Shreveport attorneys Robert Gillespie, Chuck Phillips and Mary Ellen Halterman. The Shreveport Bar Associa- tion annually provides funding to the Shreveport-Bossier area winning team to help cover expenses for attending the state competition. Teen Court Presents Law Week Training

The Volunteers for Youth Justice Teen Court Program hosted Teen Volunteer Training on May 9 in observance of Na- tional Law Week. Area middle and high school volunteers from Caddo and Volunteers for Youth Justice (VYJ) training program volunteers included, from left, Bossier Bossier’s Teen Court Programs partici- Parish Teen Court Director Pat Faulkinberry; Cpl. Lifford Jackson, Caddo Sheriff’s Office; pated in the training. Attorneys presented Caddo Parish Assistant District Attorney Brian Barber; 1st Judicial District Court Public information on several topics: the role of Defender Michelle AndrePont; VYJ Director of Youth Programs Shonda Houston; attorney Carlos Prudhomme; and Caddo Parish Assistant District Attorney Geya Williams. the prosecuting attorney and defense attorney, case preparation techniques, the role of the jury, and proper courtroom decorum. Trainers included Geya Will- iams, assistant Caddo district attorney; Brian Barber, assistant Caddo district attorney; Michelle AndrePont, Caddo public defender; Carlos Prudhomme, attorney; and Cpl. Lifford Jackson, Caddo Parish Sheriff’s Office. Several of the teen volunteers also presented a mock Teen Court trial and the trainers cri- tiqued their performance. The youth participants received valu- able knowledge of how the legal system works. This training also opened the door for the adult attorneys to mentor the teen Teen Court jurors are sworn in. attorneys. The result is that several teen volunteers set up summer job shadowing schedules with the adult attorneys. Some Teen Court defendants were required to participate in this training as well. The Securities Arbitration/Litigation training allowed the defendants to also see how the court operates and it presented them with the opportunity to vol- JAMES F. WILLEFORD unteer once their Teen Court sentence is complete. Immediately after the training, one defendant asked how he could be- PIABA member representing investors in disputes come a volunteer. with stockbrokers and brokerage houses Sponsoring the event were the Volun- teers for Youth Justice, Juvenile Court New Orleans 504/582-1286 for Caddo Parish, the Young Lawyers [email protected] Section of the Shreveport Bar Associa- tion and the American Bar Association.

254 October/November 2005 JUDICIAL Notes By Robert Gunn, Louisiana Supreme Court NEW JUDGE. . . DEATHS

New Judge Deaths for the 24th JDC in November 1999 and took his oath in February 2000. Prior to Richard “Chip” Moore III, was 9th Judicial District Court Judge B. serving as commissioner, he was an as- elected to Division N, 19th Judicial Dis- Dexter Ryland, 63, died June 28 in sistant parish attorney for Jefferson Par- trict Court, East Ba- Alexandria. Following study at Louisiana ish, 1976-96; served as city magistrate, ton Rouge Parish. He College and Louisiana State University, city of Harahan, 1991-94, also sitting ad earned his under- he earned his JD degree from LSU Paul hoc in 1995 and 1997; was commis- graduate degree from M. Hebert Law Center in 1965 where he sioned as a reserve police officer in Louisiana State Uni- won the 1965 Moot Court competition. Harahan in 1983; and served as legal versity in 1988 and He was inducted into the LSU Law advisor to the Harahan Police Depart- graduated magna Center Hall of Fame in 1987. Prior to ment on a pro bono basis. He also served cum laude from his election to the bench, he served as as a volunteer instructor on violence pre- Southern University assistant city attorney for Pineville and vention for the Louisiana Center for Law Law Center in 1992, later as city attorney for Alexandria. He and Civic Education’s Teen Camp at where he also earned Richard Moore III also served as assistant district attorney Loyola Law School. He was a member of the Chancellor’s for Rapides Parish prior to his election the national legal fraternity Phi Alpha Award and was an International Law to the bench in 1990. In September 1996, Delta, the American and Jefferson Parish Moot Court participant. Prior to his elec- the Alexandria Bar Association bar associations, and the American Juris- tion to the bench, he was a sole practitio- nominated him for the Louisiana Bar prudence Society. ner in Zachary where he also served as Foundation’s Outstanding Jurist Award. the Zachary city prosecutor for 10 years, 24th Judicial District Court Commis- through April 2005. He was appointed as sioner Craig J. Cimo, 61, died July 6. the attorney for the town of Slaughter as He earned his undergraduate degree from Do You Have a well as its magistrate judge for four years Loyola University in 1967, graduating Post-Hurricane prior to his election. He is involved in a with cum laude honors, and his JD de- Professionalism Story? number of civic and community organi- gree from Loyola University Law School zations and is a member of the Baton in 1967, also graduating cum laude and Members of the LSBA’s Pro- Rouge and Feliciana bar associations. earning the Dean’s Award. He was in the fessionalism & Quality of Life He is married to Sheryl DeMetz Moore private practice of law from 1967-99 and and they are the parents of three children. was appointed domestic commissioner Committee are aware that there have been remarkable acts of kind- ness and selflessness shown to Bar colleagues following the two hur- As fraud-related litigation continues to escalate, so also will attorneys’ ricanes, including assistance with needs for experts in this high-profile area of accounting. their practices and with basic needs ... in other words, true “profession- KERNION T. SCHAFER, CPA, MS alism.” The committee is now so- liciting “professionalism” stories A Life Fellow of the American College of Forensic Examiners from members, with the idea of publishing them online, in print Schafer Group LTD., LLC 701 Aurora Avenue, Suite A, Metairie, LA 70005 publications, or both. Send your Phone: 504-837-6573 • Fax: 504-837-6570 story or comments to: Email: [email protected] [email protected]

Louisiana Bar Journal Vol. 53, No. 3 255 PEOPLE

tion firm, announces the addition of Judge Faircloth, Vilar & Elliott, L.L.C., an- LAWYERS ON Richard J. Ganucheau (retired) to its nounces that Christopher M. Sylvia and THE MOVE statewide panel of neutrals. He will serve R. Christopher Nevils have joined the as a mediator and arbitrator and will Alexandria firm as associates. The 3rd Circuit Court of Appeal an- chair medical review panels. nounces the promotions of Renée R. General Health System, parent company Simien, Peter M. Stevens, Sandi Aucoin Baker, Donelson, Bearman, Caldwell & of the Baton Rouge General Medical Broussard and Tara B. Hawkins. Berkowitz, P.C., announces that Dickie Center, announces that Catherine Smith Simien is the new central staff director. W. Patterson has joined the New Orleans Nobile has joined the company as in- Stevens is the new central civil staff di- office as of counsel. house counsel. rector. Broussard is the new central criminal staff director. Hawkins has been ap- Briney & Foret announces the associa- The Gray Law Firm, A.P.L.C., announces pointed administrative general counsel. tion of Jason R. Garrot with the Lafayette that Chris J. Guillory has joined the Lake firm. Charles firm as an associate. Abbott, Simses & Kuchler announces that Robert E. Guidry, Michael H. Chehardy, Sherman, Ellis, Breslin, E. Eric Guirard Injury Lawyers announces Abraham, McGready L. Richeson and Murray, Recile & Griffith Law Firm an- the addition of William H. “Wick” Coo- Mazen Y. Abdallah have joined the nounces that William J. Furnish, Jr. has per III and Amy Vandeveer Christina firm in its New Orleans office. Andre E. joined the firm as a partner. as associates to the firm. Maillho has joined the firm in its Covington office. Jennifer L. Crick has joined National Jones Walker announces that Don Investment Managers, Inc. in New York, Rouzan has joined its New Orleans of- ADR inc., a multi-service dispute resolu- N.Y., as associate counsel. fice as an associate.

Mazen Y. Abdallah Michael H. Sandi A. Broussard Amy V. Christina William H. Jennifer L. Crick Abraham Cooper III

Catherine L. Judge Richard J. Robert E. Guidry Tara B. Hawkins Linda A. Liljedahl Andre E. Maillho Davidson Ganucheau (Ret.)

256 October/November 2005 Liskow & Lewis announces that Jana L. Shields Mott Lund, L.L.P., announces Mary E. “Mimi” Hunley, an assistant attor- Grauberger has been elected as a share- that Stephen D. Morel and Catherine L. ney general, has been elected to a two-year holder in the Houston office, Monica D. Davidson have become associates of the term as president of the National Associa- Gibson joined the New Orleans office as of firm. tion of Extradition Officials. counsel, and James E. Lapeze, Stephen M. Pesce, Paul C. Kitziger and Brianne M. Steffes, Vingiello & McKenzie, L.L.C., Arbitrator/mediator Linda A. Liljedahl Star joined the New Orleans office as asso- announces the relocation of its Baton of Baton Rouge received the Woman of ciates. Rouge offices to 13702 Coursey Blvd., the Year Award (2005) from the United Building 3, Baton Rouge, LA 70817; Cultural Committee and American Bio- Katherine M. Loos announces that she has phone (225)751-1751. graphical Society. She was recognized joined the mediation and arbitration firm of for her 15 years of work in mediation, Perry, Dampf, Watts & Associates. Stemmans & Alley, P.L.L.C., announces ADR and settlement of disputes. that Michael J. Taffaro has been named Toni R. Martin announces the opening of partner. William Lurye of New Orleans has been her law office at Ste. 7, 1104 MacArthur inducted as a Fellow in the College of Dr., Alexandria, LA 71303; phone James Wattigny, P.L.C., has relocated Labor and Employment Lawyers. (318)448-4388. his law practice to Ste. C, 124 West Washington, New Iberia, LA 70560; G. Fred Ours, deputy disciplinary coun- McGlinchey Stafford announces that phone (337)364-8272. sel in the Office of Disciplinary Counsel, Mary L. Grier Holmes has joined the was elected president of the National New Orleans office as of counsel, Sarah NEWSMAKERS Organization of Bar Counsel. E. Bleichner has joined the New Orleans office as staff attorney, and John Marron Tonia Dandry Aiken has been elected Shutts & Bowen partner John H. Rooney, Monsour and Dawn M. Rawls have joined president of New Orleans District Nurses Jr. has become chair of the International the Baton Rouge office as associates. Association and secretary of Louisiana Law Section of the Florida Bar. He also State Nurses Association. She is editor is licensed to practice in Louisiana. Preston & Cowan, L.L.P., announces that and contributing author of a recently pub- Tina L. Suggs has joined the firm as an lished textbook, Legal, Ethical and Po- Marie C. Williams was selected as an associate in the New Orleans office. litical Issues in Nursing. administrative law judge for the Division of Administrative Law for Louisiana.

Tara Bell Hawkins has been appointed to the Louisiana State Bar Association’s 2005-06 Leadership LSBA class by Presi- dent Frank X. Neuner, Jr.

Robert B. Worley, Jr., a partner at Jones Walker, has been selected for inclusion in the 14th edition of Who’s Who in American Law 2005-2006.

Stephen D. Morel McGready L. John H. Rooney, Jr. Don Rouzan Richeson

Renée R. Simien Peter M. Stevens Tina L. Suggs Michael J. Taffaro Marie C. Williams Robert B. Worley, Jr.

Louisiana Bar Journal Vol. 53, No. 3 257 DISCIPLINE Reports REPORTING DATES 8/1/05 & 8/2/05

REPORT BY DISCIPLINARY COUNSEL

Public matters are reported to protect the public, inform the profession and deter misconduct. Reporting date Aug. 2, 2005.

Decisions May 24, 2005. JUDGMENT FINAL on June June 24, 2005. Gist: Lack of diligence; fail- 7, 2005. JUDGMENT EFFECTIVE on July ure to communicate; failure to refund un- Larry M. Aisola, Jr., Chalmette, (2005- 9, 2002, retroactive to the date of his interim earned fee; and termination of representa- B-1160) Consent public reprimand ordered suspension. Gist: Neglect of legal matters; tion. by the court on June 3, 2005. JUDGMENT conversion of client and third-party funds; Walter Hunter, Jr., Shreveport, (2005- FINAL and EFFECTIVE on June 3, 2005. and failure to cooperate with the Office of OB-1497) Indefinite probation with condi- Gist: Assisting a non-lawyer in the unautho- Disciplinary Counsel. tions by consent ordered by the court on rized practice of law by sending him to depo- Joseph R. DePaoli, Jr., Gretna, (2005- June 23, 2005. JUDGMENT FINAL and sitions; and engaging in a conflict of interest B-1112) Consent public reprimand ordered EFFECTIVE on June 23, 2005. by representing a client in a criminal matter by the court on June 3, 2005. JUDGMENT Robert Margavio, Covington, (2005-B- stemming from an incident with a former FINAL and EFFECTIVE on June 3, 2005. 1514) Consent suspension of three years client. Gist: Failure to promptly return client’s file; with 18 months deferred ordered by the Daniel Elmore Becnel III, LaPlace, and failure to cooperate with a disciplinary court on June 15, 2005. JUDGMENT FI- (2005-B-0831) Consent suspension of one investigation. NAL and EFFECTIVE on June 15, 2005. year and one day, deferred with 18 months’ David M. Dickson, Covington, (2005-B- Gist: Neglect of his client’s case by not probation and special conditions, ordered 1498) Interim suspension ordered by the acting diligently and not communicating with by the court on April 29, 2005. JUDGMENT court on June 15, 2005. JUDGMENT FI- his client; failing to properly protect his FINAL and EFFECTIVE on April 29, 2005. NAL and EFFECTIVE on June 15, 2005. client’s interest upon termination of the rep- Gist: Neglecting clients’ matters; failure to Gist: For threat of harm pursuant to Rule resentation; and engaging in conduct involv- adequately communicate with his clients; XIX, Section 19.2. ing dishonesty, fraud, deceit or misrepresen- and failure to promptly remit third-party James C. Ferguson, Baton Rouge, (2005- tation. funds. OB-1625) Transferred to disability inac- Michael F. Melton, New Orleans, (2005- Arthur L. Carter, New Orleans, (2005- tive status ordered by the court on June 22, OB-0409) Permanent disbarment ordered B-0725) Permanent disbarment ordered by 2005. JUDGMENT FINAL and EFFECTIVE by the court on June 17, 2005. JUDGMENT the court on June 24, 2005. JUDGMENT on June 22, 2005. FINAL and EFFECTIVE on July 1, 2005. FINAL and EFFECTIVE on July 7, 2005. Margrett Ford, Shreveport, (2005-B- Gist: Engaging in the unauthorized practice Gist: Conversion or mishandling of clients’ 1328) Consent suspension for one year and of law; failure to cooperate with the Office of funds in light of prior misconduct. one day, fully deferred subject to proba- Disciplinary Counsel in its investigation; and Broderick C. DeJean, Opelousas, (2005- tion, ordered by the court on June 24, 2005. engaging in conduct prejudicial to the ad- B-0337) Disbarment ordered by the court on JUDGMENT FINAL and EFFECTIVE on ministration of justice. Norman Mopsik, New Orleans, (2004- B-2395) Suspension of 60 days ordered by the court on May 24, 2005. JUDGMENT FINAL and EFFECTIVE on June 24, 2005, the date rehearing was denied. Gist: Failing to supervise a non-lawyer employee and assisting the employee in the unauthorized practice of law. Milton Osborne, Jr., New Orleans, (2005-B-0190) Consent public reprimand ordered by the court on May 6, 2005. JUDG- MENT FINAL and EFFECTIVE on May 6, 2005. Gist: Failure to properly discuss his fee with his client. Bobby K. Pitre, Lake Charles, (2005-B-

Discipline continued next page

258 October/November 2005 DISCIPLINARY REPORT: UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA

The following is a verbatim report of the matters acted upon by the United States District Court for the Eastern District of Louisiana, pursuant to its Disciplinary Rules. This information is published at the request of that court, which is solely responsible for the accuracy of its content. This report is as of Aug. 1, 2005.

Respondent Disposition Date Filed Docket No. Craig W. Marks Interim suspension. 6/2/05 05-1493 S Vincent J. Glorioso, Jr. Reinstated. 6/10/05 01-2383 T Gilbert E. Stampley Suspension deferred, 12 months’ probation. 3/11/05 05-1381 A Andrew C. Engolio Retroactive interim suspension. 3/16/05 05-1382 T Henry J. Lafont, Jr. Retroactive 90-day suspension. 4/15/05 05-1627 N Reginald J. Laurent Retroactive deferred suspension, two years’ probation. 4/1/05 05-1626 K Michael J. Riley, Sr. Petition for reinstatement DENIED. 7/7/05 87-2028 H Milton Osborne, Jr. Public reprimand. 7/26/05 05-2090 N Douglas C. Dorhauer Interim suspension. 7/26/05 05-1717 B Daniel E. Becnel III Suspension deferred, 18 months’ probation. 4/29/05 05-1923 A Bradford D. Carey Transfer to disability inactive status. 7/26/05 05-1625 B

Discipline continued from page 258 instatement from interim suspension im- in the prosecution or defense of his clients’ posed in In Re: Schwartz, 04-0519 (La. 4/2/ cases; limited the scope of his representation 0853) Disbarment ordered by the court on 04), 870 So.2d 982, ordered by the court on without his client’s consent; and failed to fully June 17, 2005. JUDGMENT FINAL and June 22, 2005. JUDGMENT FINAL and cooperate with the disciplinary investigation EFFECTIVE on July 1, 2005. Gist: Engag- EFFECTIVE on June 22, 2005. Gist: Violat- into these matters. ing in the unauthorized practice of law. ing the Rules of Professional Conduct. Lester J. Waldmann, Gretna, (2005-B- Robert E. Randolph, Baton Rouge, Duke Ellington Tilley, Jr., Baton Rouge, 1751) Interim suspension for threat of harm (2005-B-0125) Suspension of one year and (2005-B-0338) Suspension of three years ordered by the court on July 7, 2005. JUDG- one day ordered by the court on June 3, 2005. to run consecutively to the minimum five- MENT FINAL and EFFECTIVE on July 7, JUDGMENT FINAL and EFFECTIVE on year period for seeking readmission from 2005. June 17, 2005. Gist: Neglect of clients’ legal the disbarment imposed in In re: Tilley, 01- matters; failure to communicate with his cli- 2454 (La. 4/26/02), 814 So.2d 1289, subject Admonitions (private sanctions, often with ents; failure to provide accountings for client to conditions, ordered by the court on June notice to complainants, etc.) issued since the funds; and failure to cooperate with the Of- 24, 2005. JUDGMENT FINAL and EFFEC- last report for misconduct involving: fice of Disciplinary Counsel in disciplinary TIVE on July 8, 2005. Gist: Lack of dili- investigations. gence; failure to communicate with a client; No. of Violations Robert E. Shadoin, Ruston, (2005-B- failure to provide an accounting to client and 1545) Consent suspension of one year and failure to refund fees following termination Practicing law while ineligible for failure one day, deferred, conditioned upon two of representation; knowing disobedience of to pay bar dues and assessment ...... 1 years’ probation, ordered by the court on an obligation under the rules of a tribunal; Conflict of interest ...... 4 June 24, 2005. JUDGMENT FINAL and engaging in conduct involving dishonesty, Lack of reasonable diligence and EFFECTIVE on June 24, 2005. Gist: Crimi- fraud, deceit or misrepresentation; and en- promptness in representing a client..... 1 nal conviction for driving while intoxicated. gaging in conduct prejudicial to the adminis- Failure to keep a client reasonably Fritz M. Stoller, New Orleans, (2004-B- tration of justice. informed of the status of a matter ...... 3 2758) Permanent disbarment ordered by the Paul T. Voiron, Gretna, (2005-B-1256) Engaged in conduct prejudicial to the court on May 24, 2005. Rehearing denied on Consent suspension of one year and one administration of justice ...... 1 June 24, 2005. JUDGMENT FINAL and EF- day, deferred, plus two years’ probation, Failure to safe keep client’s property ...... 2 FECTIVE on June 24, 2005. Gist: Violating ordered by the court on June 24, 2005. JUDG- Failure to timely notify and promptly the Rules of Professional Conduct; commis- MENT FINAL and EFFECTIVE on June 24, deliver funds to third parties ...... 1 sion of a criminal act reflecting adversely on the 2005. Gist: Neglect of his clients’ cases by Acting beyond the scope of lawyer’s honesty, trustworthiness or fitness as failing to diligently pursue their legal matters; representation of a client ...... 1 a lawyer; and engaging in conduct involving failing to adequately communicate with his Violating or attempting to violate the dishonesty, fraud, deceit or misrepresentation. clients and by failing to make reasonable Rules of Professional Conduct ...... 1 Marvin L. Schwartz, Monsey, N.Y., efforts to expedite litigation consistent with TOTAL INDIVIDUALS (2005-OB-1391) Public reprimand and re- the interests of his clients or to take any steps ADMONISHED ...... 9

Louisiana Bar Journal Vol. 53, No. 3 259 CLASSIFIED Review past ads at LSBA.org/classifieds

Rouge, La. Educational documents must CLASSIFIED NOTICES POSITIONS OFFERED be originals, or certified copies. Please Standard classified advertising in our regu- call (225)389-3114 with any questions. lar typeface and format may now be placed Attorney, Full-time In addition to the completed application, in the Louisiana Bar Journal and on the please submit a cover letter and résumé LSBA Web site, LSBA.org/classifieds. All and Part-time to: Wade Shows, Parish Attorney, P.O. requests for classified notices must be sub- The City of Baton Rouge, Parish of East Box 1471, Baton Rouge, LA 70821. mitted in writing and are subject to approval. Baton Rouge Government is seeking Copy must be typewritten and payment must Application Deadline: Applications will qualified applicants for the position of accompany request. Our low rates for place- be accepted until 1 p.m. Friday, Nov. 11, attorney (full-time and part-time). This ment in both are as follows: 2005. unclassified position assists the parish attorney with a wide variety of the RATES The Litigation Division of the Louisiana complex professional legal duties that Attorney General’s Office is seeking CLASSIFIED ADS include providing services for all attorney applicants for one position in its Contact Germaine A. Tarver at departments and governing bodies of the (504)619-0117 or (800)421-LSBA, ext. 117. Shreveport office for the handling of city and parish. Employees are generally complex tort litigation. Applicants should assigned to certain specific fields of legal Non-members of LSBA have at least six years’ personal injury endeavor. Desirable Qualifications: Juris $85 per insertion of 50 words or less trial experience or equivalent. Salaries $1 per each additional word Doctorate degree and admission to the are commensurate with years of practice. $20 for Classy-Box number State Bar, supplemented by four years’ Mail résumés, along with two writing experience in the practice of law. Salary: Members of the LSBA samples, to Office Chief, Louisiana Part-time, $32,196 (depending on $60 per insertion for 50 words or less Department of Justice, Litigation qualifications); full-time, $37,271 $1 per each additional word Division, Ste. 777, 330 Marshall St., (depending on qualifications). Excellent No additional charge for Classy-Box number Shreveport, LA 71101. EOE. Benefits Package: Health, dental and life Screens: $25 insurance; sick and vacation leave; Mid-sized insurance defense firm seeks Headings: $15 initial headings/large type retirement plan. Application Information: four- to six-year attorney with experi- For consideration, please forward a BOXED ADS ence in tort litigation. Experience in gen- completed employment application to: Boxed ads must be submitted camera ready eral casualty and workers’ compensation by the advertiser. The ads should be boxed Parish Attorney’s Office, P.O. Box 1471, a plus. Salary commensurate with expe- and 2¼" by 2" high. The boxed ads are $70 Baton Rouge, LA 70821. Applications rience. Great work environment. Please per insertion and must be paid at the time of are available at www.brgov.com/dept/hr placement. No discounts apply. send résumé to (337)235-7108 to the or at the Human Resources Recruiting attention of Mark Pharr. DEADLINE Office located at 1755 Florida St., Baton For the February issue of the Journal, all classified notices must be received with payment by Dec. 16, 2005. Check and ad copy should be sent to: CLARY MEDICAL-LEGAL LOUISIANA BAR JOURNAL Classified Notices CONSULTING, INC. 601 St. Charles Avenue If your case involves New Orleans, LA 70130 MEDICAL RECORDS, we can help you! RESPONSES JAN SMITH CLARY, BS, RN, LNCC* To respond to a box number, please address (225) 261-9426 your envelope to: * LNCC (legal nurse consultant certified) – Ameri- Journal Classy Box No. ______can Association of Legal Nurse Consultant certifi- c/o Louisiana State Bar Association cation granted by examination to registered nurses 601 St. Charles Avenue with at least 2,000 hours of current practice as an New Orleans, LA 70130 LNC and a minimum of a baccalaureate degree or equivalent years of experience.

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262 October/November 2005 INDEX TO ADVERTISERS People AAA RV Pro ...... 261 Legier & Materne ...... IFC Deadlines ABA Members Retirement LexisNexis ...... 202 Program ...... 205 Louisiana Organization & Notes ADR inc...... 219 for Judicial Excellence ...... 245 Note the following deadlines for Alston Law Firm, L.L.C...... 258 MAPS, Inc...... 236, 244, 253 submitting People announcements The Andry Law Firm, L.L.C...... 206 McGlinchey Stafford, P.L.L.C...... 217 (and photos) in future issues of the Babcock Law Firm ...... 209 Elizabeth W. Middleton Louisiana Bar Journal: Bates Engineering, Inc...... 261 Mediation Services...... 243 Bezou Law Firm ...... 228 NASD ...... 237 Publication Deadline Bourgeois Bennett ...... 231 National Legal Research Group...... 232 Feb./March 2006 ....Dec. 5, 2005 April/May 2006 ...... Feb. 3, 2006 Rolland L. Broussard, L.L.C...... 241 Office Suites at 1050 ...... 262 June/July 2006 ...... April 4, 2006 Cardone Law Firm, A.P.L.C...... 240 Perry, Dampf, Watts Aug./Sept. 2006 ...... June 2, 2006 Clary Medical-Legal & Associates, L.L.C...... 211 Consulting, Inc...... 260 Rhoades Co., Inc...... 246 Announcements are published Tommy K. Cryer ...... 262 Rimkus Consulting Group, Inc...... 215 free of charge to members of the Diagnostic Management Affiliates . 249 Nash C. Roberts III ...... 238 Louisiana State Bar Association. Only the names of Louisiana State Kay E. Donnelly & Associates ...... 250 Schafer Group, Ltd., L.L.C...... 255 Bar Association members are pub- Ericksen, Krentel The Security Title ...... 251 lished. & LaPorte, L.L.C...... 248 ShadowTrack ...... 207 LSBA members may publish Robert G. Foley ...... 262 Mary Ann Sherry ...... 260 photos with their announcements at Gilsbar, Inc...... IBC Smith & Fawer, L.L.P...... 239 a cost of $50 per photo. Firms sub- IndexEdge Investment Template, Inc...... 201 mitting multiple photos for publication must remit $50 for each Consulting ...... 233 David Ware & Associates...... 247 photo. JLS Medical-Legal Consulting ...... 261 West, A Thomson Business ...... OBC Payment for photos must be LaPorte, Sehrt, Romig, Hand ...... 208 James F. Willeford ...... 254 submitted when the announcement Legal Directories Jack Wright, Jr., J.D., Ph.D...... 262 is submitted (adhering to the sub- Publishing Co., Inc...... 229 mission deadlines above). All photos must be paid for prior to publication. Send announcements, photos and photo payments (checks pay- Need able to Louisiana State Bar Asso- computer help? ciation) to: Publications Coordinator Darlene M. LaBranche The Technology Resource Louisiana Bar Journal Center is an LSBA Member Service and just a phone call, 601 St. Charles Ave. fax or e-mail away! New Orleans, LA 70130

(504)838-9108 Call (504)619-0112 or (800)421-5722, ext. 112 fax (603)462-3807 Announcements and photos e-mail: may be e-mailed to [email protected] [email protected].

Louisiana Bar Journal Vol. 53, No. 3 263 NEWS FRANCOPHONE. . . LOCAL BARS

UPDATE

Francophone Section Conducts Annual Meeting

The Louisiana State Bar Association’s Francophone Section held its annual meeting in April during Festival International de Louisiane in Lafayette. Guests included Patrick Rolot, counsel general of France in New Orleans; Christian Goudeau, honorary counsel of France for Lafayette; Eliane De-Pues Levaque, permanent representative from Belgium; and Pierre Boudreaux, avocat from Moncton, New Brunswick, Canada. Rolot was honored for his aid to the section during his tenure as counsel Attending the LSBA Francophone Section’s annual meeting in Lafayette were, from left, general of France in New Orleans. He Section Vice President John Hernandez, Jr., Madame Rolot, Patrick Rolot, Section President and his wife received a gift from the John A. Hernandez III, Christian Goudeau and Philippe Gustin. Francophone Section, presented by President John A. Hernandez III and Vice of St. Charles Parish clerk of court, where President John A. Hernandez, Jr., from Judge Dufresne Inducted into St. Stanislaus College he served four consecutive terms. Le Centre International de Lafayette, He was elected as district judge (29th presented by Philippe Gustin, and Hall of Fame Judicial District) in 1978 and was elected Christian Goudeau. A special to the 5th Circuit Court of Appeal in 1981. presentation followed by Bench Bar Fifth Circuit Court of Appeal Chief Section President Val Exnicios. Judge Edward A. The Francophone Section also held a Dufresne, Jr. was Landry Receives Inn of Court meeting during the LSBA’s Annual recently inducted Professionalism Award Meeting in Las Vegas, Nev. Special guest into the St. was Bernard Synott, ancien bâtonnier du Stanislaus College New Iberia attor- Barreau de Montréal. Present were Hall of Fame. A ney Alfred Smith Francophone President Hernandez, 1956 graduate of St. Landry was pres- Charsley Wolff and Joseph Barreca. Stanislaus, Judge ented the profes- The section’s next annual meeting will Dufresne earned his sionalism award by be held in Lafayette during Festival undergraduate the Teche Chapter International de Louisiane on Friday, degree in 1960 from American Inn of Judge Edward A. April 21, 2006. Loyola University Dufresne, Jr. Court in September. For more information on joining the and his JD degree in The chapter of Francophone Section and to learn of the 1963 from Loyola Law School. judges and lawyers Alfred Smith planned 2006 events, contact President He was admitted to practice in from Iberia, St. Mary Landry Hernandez at (337)233-5330 or at Louisiana in August 1963 and, five and St. Martin [email protected]. months later, was elected to the position parishes presented the award in

264 October/November 2005 recognition of Landry’s achievements Terry Ryder, U.S. Attorney David Dugas, and ethical and professional excellence U.S. Attorney Donald Washington, State LOCAL & during his 55-year legal career. District Court Judge “Ricky” Wickers, SPECIALTY BARS Landry, a partner in the firm of Family Court Judge Kathleen Ritchie, Landry, Watkins, Repaske & Breaux, Chief Disciplinary Counsel Charles B. began practicing law in New Iberia in Plattsmier, District Attorney Association Lafayette Bar Members 1950. He is past president of the Iberia Executive Director E. Pete Adams and Volunteer Time Bar Association, former member of the 1st Circuit Court of Appeals Clerk at St. Joseph’s Diner Louisiana State Bar Association (LSBA) Christine Crow. Board of Governors, longtime member The students also participated in Members of the Lafayette Parish Bar and past chair of the LSBA’s Committee Federal Law Day at Middle District Association recently helped feed the on Alcohol and Drug Abuse and member Federal Court, visited the Louisiana needy at St. Joseph’s Diner. The diner is of the LSBA’s Ethics Advisory Supreme Court and toured Angola State open for breakfast and lunch 365 days Committee. He is a past president of the Penitentiary with the Civil Rights section. per year for anyone in need of a hot meal. Louisiana Association of Defense Counsel and a Fellow of the American Academy of Trial Lawyers. Presenting the award on behalf of the Alcohol and Drug Abuse Hotline Inn was Porteus Burke, who co-chaired Director William R. Leary 1(866)354-9334 the awards presentation with his wife, Ste. 4-A, 5789 Hwy. 311, Houma, LA 70360 attorney Margaret Judice. Area Committee Contact Phone Attorney General’s Summer Fellowship Program a Success Alexandria Stephen E. Everett ...... (318)640-1824, (318)443-6312 Louisiana Attorney General Charles Baton Rouge Steven Adams ...... (225)753-1365, (225)924-1510 C. Foti, Jr. recently conducted his second David E. Cooley ...... (225)751-7927, (225)753-3407 annual Summer Fellowship Program, a John A. Gutierrez ...... (225)715-5438, (225)744-3555 full-time work program allowing law students to experience the operations and Houma Bill Leary ...... (985)851-0611, (985)868-4826 functions of the Attorney General’s office. Lafayette Alfred “Smitty” Landry ...... (337)364-5408, (337)364-7626 The program attracted top law Thomas E. Guilbeau ...... (337)232-7240 students from a variety of backgrounds. James Lambert ...... (337)233-8695, (337)235-1825 Thirty-two students from Harvard, Louisiana State, Loyola, Tulane and Lake Charles Thomas M. Bergstedt ...... (337)433-3004, (337)558-5032 Southern law schools participated in the Nanette H. Cagney ...... (337)437-3884, (337)477-3986 2005 program. Students worked in specific areas of Monroe Robert A. Lee...... (318)387-3872, (318)388-4472 interest, while rotating among the different sections, according to the needs New Orleans Craig Caesar ...... (504)596-2774 of each division. The program also allows Deborah Faust ...... (504)486-4411, (504)833-8500 hiring personnel to oversee and work Donald Massey ...... (504)585-0290 with law school students, so the office is William A. Porteous ...... (504)581-3838, (504)897-6642 better equipped to meet its entry-level Dian Tooley ...... (504)861-5682, (504)831-1838 hiring needs. Speakers for the 2005 program Shreveport Bill Allison ...... (318)221-0300, (318)865-6367 included Attorney General Foti and First Ed Blewer ...... (318)227-7712, (318)865-6812 Assistant Nick Gachassin, Louisiana Steve Thomas ...... (318)872-6250 Supreme Court Justice Catherine D. “Kitty” Kimball, Chief Federal Court The Lawyers Assistance Program, Inc. provides confidential assistance Judge Frank Polozola, 1st Circuit Court with problems such as alcoholism, substance abuse, mental health issues, of Appeal Chief Judge Burrell Carter, gambling and all other addictions. Governor Blanco’s Executive Counsel

Louisiana Bar Journal Vol. 53, No. 3 265 The Lafayette Bar volunteers, con- sisting of judges, attorneys and support staff, spent three days at St. Joseph’s Diner. They spent each morning chop- ping vegetables and preparing food to be served, as well as serving the meal during the lunch hour.

Lafayette Volunteer Lawyer Chair Ric Mere was recently featured as the key- note speaker at the Silent Witness Un- veiling ceremony hosted by the Louisi- ana Violence Preven- tion Alliance. The ceremony memorialized women from the Acadiana area whose lives were unfortunately cut short by the tragedy of domestic violence. Their stories were told in an effort to bring light to the problem of domestic Erin Beyer, from left, John Miller, Dora Morton, Elsie Fontenot and Donna Domingue were violence and to help bring an end to it. the first group to serve lunch at St. Joseph’s Diner in Lafayette.

Lafayette Parish Bar Participates in UW Day of Caring

Members of the Lafayette Parish Bar Association participated community. Participants included, front row from left, Hoa in the United Way of Acadiana’s annual Day of Caring. This Nguyen, Cassie Bidstrup, Jo Ann Snyder, Vicki Truxillo, project pairs community agencies and schools with volunteers Tammy DeRouen, Jill Suire, Callie Stagno and Brandi Mayet. from numerous companies and organizations to spend one Back row from left, Jennifer Arabie, Steven Ramos, Greg entire day participating in projects to better the entire Acadiana Koury, Jacques Duplantier and Jim Diaz, Sr.

266 October/November 2005 Claverie Receives NOBA’s Who’s Who in American Law. Presidents’ Award He has served on the board of directors of Children’s Hospital since 1978 Philip deVilliers Claverie, Sr. is the and has been a member of the hospital’s recipient of the 2005 New Orleans Bar Executive Committee since 1984, serv- Association (NOBA) Presidents’ Award. ing as president from 1985-87. He has He was honored at a reception in July. been a board member of the New Orleans This award recognizes attorneys who, in Police Foundation since 1997 and cur- addition to their professional excellence rently serves on the advisory board of the and integrity, have dedicated themselves International School. to community service in the exercise of NOBA President Jesse R. Adams, Jr. the highest ideals of citizenship. This presented Claverie with a proclamation award is the highest level of recognition from New Orleans Mayor Ray Nagin, Incoming president of the New Orleans Bar from the association. naming July 14, 2005, “Philip DeV. Foundation, Adriel G. Arceneaux, presented Claverie is a senior partner in the firm Claverie, Sr. Day,” a certificate from James R. Morton with a plaque commemo- of Phelps Dunbar, L.L.P. In addition to Louisiana Gov. Kathleen B. Blanco, a rating his three years of service as president letter from United States Sen. David Vitter of the foundation. the New Orleans Bar Association, he is a member of the Louisiana State Bar Asso- and a letter from President George W. New Orleans Bar Foundation ciation, American Bar Association, As- Bush. Attending the reception were past Elects New Officers sociation of the Bar of the City of New York, American Judicature Society and NOBA Presidents Kim M. Boyle, Hon. Jerry A. Brown, Jack C. Benjamin, Sr., The New Orleans Bar Foundation the Louisiana State Law Institute. He is a Fellow with the American Bar Founda- Grady S. Hurley, Thomas O. Lind, John elected new officers. Serving as presi- M. Page and Phillip A. Wittmann. Two dent is Adriel G. Arceneaux; vice presi- tion and the Louisiana Bar Foundation. Additionally, he is a member of the board past Presidents’ Award recipients were dent, Grady S. Hurley; and secretary- also in attendance, Benjamin and David treasurer, Bradford E. Adatto. Directors of advisory editors for the Tulane Law Review. He was included in the charter J. Conroy, as was Ambassador John G. are Allain C. Andry and Kim M. Boyle. Weinmann. Executive director is Helena N. listing of Best Lawyers in America, as Henderson. well as in Who’s Who in America and Speech and Awards Highlight Shreveport Law Day Luncheon

If you were one of the approximately 125 attorneys and guests attending the Shreveport Bar Association’s (SBA) Law Day luncheon in April, then you had the good fortune to hear an excellent talk on “The American Jury” by Hon. William G. Young, chief judge of the U.S. District Court, Division of Massachussetts. Judge Young, a nationally acclaimed lecturer and author, received a standing ovation following the speech which was inspired by this year’s Law Day theme: The Ameri- can Jury: We the People in Action. Prior to Judge Young’s talk, SBA President-Elect John Frazier presented the 2005 Liberty Bell Award to Dr. Phillip A. Rozeman, president and co-founder With Philip deVilliers Claverie, Sr., 2005 recipient of the New Orleans Bar Association of Cardiovascular Consultants, for his (NOBA) Presidents’ Award, are, from left, NOBA President Jesse R. Adams, Jr. and Laura outstanding community service, particu- M. Claverie. larly in connection with his work in sup-

Louisiana Bar Journal Vol. 53, No. 3 267 Shreveport Bar Association President-Elect With Shreveport Bar Association Liberty Bell Award recipient Dr. Phillip Rozeman, third John Frazier, left, presented the 2005 Lib- from left, are, from left, Judge Tom Stagg, Judge William Young, Rozeman and Law Week erty Bell Award to Dr. Phillip A. Rozeman. Chair Chris Slatten.

port of public education. Dr. Rozeman Shannan Hicks, Tommy Johnson, Garrett founded the Alliance for Education, a LaBorde, Jason Nichols, Carol Paga, Kim non-profit organization that combines Ramsey and Richard Ray. human and financial resources in support of public education in Caddo, Bossier, Law Career Forum: Webster and DeSoto parishes. He devel- Shreveport Bar Sponsors oped the Alliance after personally re- searching school improvements and trav- Law Day Project eling (using his own resources) to other cities in the United Stats to learn about As a Law Day project, the Shreveport similar programs. Through the efforts of Bar Association sponsored a free forum for college students interested in pursu- Dr. Rozeman and local community and Career Forum moderator and co-chair business leaders, $1 million was raised to ing a career in law. Approximately 100 Garrett LaBorde. fund the Alliance, with Dr. Rozeman students attended the forum at the Sci- donating $250,000 of his own funds to ence Lecture Hall on the campus of LSU- the organization. Shreveport. Other luncheon highlights included The career forum was an open panel special recognition of the Airline High discussion among lawyers, judges and School mock trial team, who placed sec- students with an emphasis on the national ond in the Louisiana state competition Law Day theme, “The American Jury: (see related story in this issue) and the We the People in Action.” winners of the SBA-sponsored Law Day Participating as panel members were Essay Contest (see related story in this 1st Judicial District Court Judge Jeanette issue). Garrett and attorneys Don Miller, Bill Serving on the Law Day Committee Kendig and Shannan Hicks. Co-chairs of are Chair Chris Slatten, Co-Chair Allison the event were Garrett LaBorde and Ja- son Nichols. Duncan and members Karen Fox, Felicia Career Forum panel member Don Miller Gilliam, Denise Tolber, Patti Guin, shares legal career pointers with students.

268 October/November 2005 Megan Pickett, the first place winner of the Shreveport Bar Association’s Law Day About 100 students attended the Shreveport Bar Association’s Law Career Forum. Panel Essay Contest, with contest Chair Shannan members, from left, Shannan Hicks, Don Miller, Bill Kendig and Judge Jeanette Garrett. Co- Hicks. chairs of the event were Garrett LaBorde and Jason Nichols.

Caddo Magnet Student Wins badminton tournament on April 8-9 at Choice” workshop graduate. SBA’s Law Day Essay Contest East Ridge Country Club. The two events George Sirven, general manager of raised $35,800 for Volunteers for Youth KTBS-Channel 3, and pediatrician Dr. Megan Pickett, a 10th grade student Justice. Donald Mack were presented with the at Caddo Magnet High School, was the During the dinner, the attendees viewed 2005 Ron Anderson “Champion for Chil- winner of the Shreveport Bar a two-part inspirational video featuring dren” awards for their contributions to Association-sponsored Law Day essay comments and information from Sheriff area youth, and Olympia Norris was pre- contest. A total of 43 essays based on this Steve Prator, Caddo Juvenile Court Ad- sented with the “Bright Future Award” year’s Law Day theme, “The American ministrator Ted Cox and a real-life success for her essay regarding her experience in Jury: We the People in Action,” were story by James Williams, a VYJ “Power of one of VYJ’s programs. submitted for judging in the competition. For her efforts, Pickett received a $500 check at the association’s annual Law Day luncheon. Second place honors ($300) went to Brandi Andrews, a senior at Byrd High School, and third place honors ($150) went to Tierney Strange, also a senior at Byrd High School. Other schools submitting essays in the competition were Huntington High School and Green Oaks High School.

Shreveport Bar Foundation Sponsors VYJ “Champion for Children” Fundraiser

With funds donated by the Shreveport Bar Foundation, the Volunteers for Youth Justice (VYJ) organization was able to Shreveport Bar Association member Roy Payne, center, with two-time Olympic badminton hold its annual “Champion for Children” medalist Su Sin and her husband/partner Anthony. Payne was a member of one of the eight fund-raising dinner/silent auction and teams competing in the fund-raising tournament.

Louisiana Bar Journal Vol. 53, No. 3 269 flight winners, both of which were Law Day Community Project: scorecard playoffs, were: SBA Members Donate First Flight – Low Net: More Than $2,000 First Place, Greg Batte, Bryan Calloway, Sock Sockrider and Scott Members of the Shreveport Bar Asso- Griffis (49); ciation (SBA) donated $2,145 towards Second Place, Jimmy Muslow, Fred the 2005 Law Day community project. Sexton, Chris Marlowe and Doug The project was aimed at helping fami- Roundtree (49). lies of local National Guardsmen sta- tioned overseas. The 1st Battalion, 156th Second Flight – Low Net: Armor Unit, headquartered at Fort Hum- First Place, Larry Shea, Gene Hilliard, bug on Youree Drive, includes approxi- Hank Anderson and Cole Anderson (57); mately 500 soldiers who have been in Second Place, Sid Cook, Charlton Iraq for several months. The 1-156th has Holmes, Keith Hightower and Billy Joe a Family Readiness Group (FRG) that Toliver (57). helps serve the families of the deployed Shreveport Bar Association President soldiers. After all donations were col- Tommy Johnson addressed guests at the Volunteers for Youth Justice “Champion For the second year in a row, the Isle lected, the Law Day Committee con- for Children” dinner. The Shreveport Bar of Capri Casino sponsored a “Million sulted the FRG and asked how the money Foundation was the underwriter for the Dollar Shootout” contest with 20 tourna- could best be spent to meet current needs. event. ment golfers, whose names were ran- Per the suggestions of the FRG, the domly drawn, attempting to make a 165- committee made three presentations to Following the awards presentation, yard hole-in-one shot for $1,000,000. the support organization. The first was a guest soloist, Adreana Harvey, received Unfortunately, no one walked away with check for $1,000 for purchasing Interna- a standing ovation for her accapella per- the prize. tional calling cards. The cards will be formance of “One at a Time.” Proceeds from the tournament fund distributed to soldiers overseas and will Eight teams participated in the bad- the projects of the Shreveport Bar Asso- allow them to call their families more minton tournament, directed by Tom ciation. often. The second presentation was a Carmody and Joe Averett. Gold and Sil- ver Olympic medalist Su Sin and her husband and team partner, Anthony, clocked bird speeds (shuttlecock) of more than 150 miles an hour and captured first place honors in the tournament. Second place honors went to David Soto and David Rutherford, with Max Kelly and Kevin Vonkijacobsnolten receiving the consolation trophy.

Shreveport Bar Golf Tournament: A Great Outing!

This year’s Shreveport Bar Associa- tion (SBA) golf tournament had all the ingredients needed for a fun day at the links – great weather, good food and impressive scores turned in by SBA golfers and their guests. Tom Bordelon not only chaired this year’s event, but his team (Bordelon, Brad Wright, Randy Kornrumph and Buster Toms) took top honors by turning in the lowest gross Shreveport Bar Association golf tournament low-gross winners, from left, Tom Bordelon, score of the tournament (54). Low net Brad Wright, Buster Toms and Randy Kornrumph.

270 October/November 2005 check for $520 for defraying the costs of a “Welcome Home” picnic that the FRG will hold for returning soldiers and their families this fall (when the unit is scheduled to return). The FRG has obtained the use of Hirsch coliseum to host the event, but it needs funds to pay for food and other supplies. Finally, the committee presented $625 worth of $25 gift cards from Tinseltown Theater to children of local soldiers. The committee extends its gratitude to everyone who donated to this project:

Beard & Sutherland Michael Carmody Sam Caverlee Trina T. Chu Ted Cox Allison Duncan James B. Gardner Judge Jeannette Garrett Chris Slatten, center, chair of the Shreveport Bar Association Law Week activities, presented Mark Gilliam donations raised for 1-156th Family Readiness Group to Mary Sue Adams, FRG Battalion Patti and Billy Guin point of contact, right, and Heather Luebbert, battalion treasurer. Magistrate Judge Mark Hornsby Jim Jeter Bernard Johnson Tommy Johnson Allison Jones Judge Bill Kelly Bill Kendig Sarah Kirkpatrick David Klotz Legal Secretaries of Shreveport-Bossier Gail McCulloch Malcolm Murchison Jason Nichols Pettiette, Armand, Dunkelman, Woodley, Byrd & Cromwell L.L.P. Donna Prudhome Stephen Ramey Chris Slatten Marty Stroud Kim and David Tullis

Members Enjoy SBA-Sponsored Crawfish Boil

Approximately 150 members and area law school students attended the Shreve- port Bar Association-sponsored craw- Alma Jones, director of Legal Services of North Louisiana, seated center, and co-workers are fish boil at the Shreveport Yacht Club on impressed with the size of their crawfish. May 13.

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272 October/November 2005 Louisiana Bar Journal Vol. 53, No. 3 273 Lucid INTERVALS By Vincent P. Fornias CALIFORNIA SCHEMING

Louisiana Civil Code Article 2439

Definition: Sale is a contract whereby a person transfers ownership of a thing to another for a price in money. The thing, the price and the consent of the parties are requirements for the perfection of a sale.

Got that? Now promptly forget about our laws if you are dealing in plastic currency in California. It all started one August day while my wife and I were wandering touristically and happened upon the quaint little hamlet of Moss Point, Calif. You know the drill. Lots of “cool” shops with “cool” names like Noah’s Arches or Shelter Skelter (not really!). I spent most of our couple of hours there down the street in a shabby little place, haggling over a baseball glove from the turn of the century. When my reasonable offer was scoffed at, I walked away to look for my wife. She had had considerably more success than I in the form of a western-style belt with silver inlay that she had charged for $150.15. The cutesy name of the place will go October 8, 2004. My wife’s next MC statement shows a unmentioned to spare me more grief. She was impressed with temporary credit of the pending $1,500 charge, pending resolu- the deal she had gotten concerning the artisanship of the inlay. tion. We soon drove away from the place and flew home. Case closed. NOT-T-T. Here is an abbreviated journal of the sale October 13, 2004. My first letter, on firm letterhead, goes out from hell. to Mr./Ms. Kalisch. I provide every scintilla of available information requested and try to explain that although my wife did September 10, 2004. She receives her MC statement from one not retain the charge receipt, it would be one of the great of the big financial conglomerates (hereafter “Clueless One”), coincidences of mankind that this merchant just happened to wherein there was a credit of $150.15 and a unilateral charge of credit $150.15 if that were not the amount actually charged and $1,500.15 for what was obviously the holy grail of inlaid silver agreed upon. I further explain to U. that my wife had picked out belts. a belt whose price tag was smudged and actually took the further step of bringing it to the sales clerk and telling her that if the price September 11, 2004. With my advice, she e-mails Clueless One was $150 she was very interested, but not if it was $1,500 — at informing it that she emphatically denies this charge, made which point the clerk responded that she “could not imagine” without her knowledge or consent, and requesting that the prior that it was $1,500, so the $150 sale was consummated. Wait charge of $150.15 be reinstated. By the way, did I mention that around. she had misplaced her copy of the charge receipt? October 29, 2004. C. Zappas responds on Clueless One letter- September 29, 2004. Now starts the litany of nonsensical head, addressed not to me, but to my wife, mentioning a recent bureaucratic letters from Clueless One, usually signed in suc- letter was received from an “unauthorized third party” and cession by a different person, who unfailingly uses his or her requiring that an attached authorization form be filled out by her first name initial and a surname that is either fictitious or if she wishes that party to act on her behalf. indicative of major outsourcing. Thus, “U Kalisch” thanks her for her recent inquiry, then requests a laundry list of information November 5, 2004. The authorization is faxed back to C. at the ranging from an account number to blood type, culminated by number provided. a request for a copy of the charge receipt. At this point, I take over. Continued Next Page

274 October/November 2005 Lucid continued from page 274 December 10, 2004. I try the customer service number again (by now I know it by heart). I am speaking to what may as well November 12, 2004. My wife receives a second letter from C. be S. Hussein at Clueless One. At least he actually acknowl- Zappas, stating that his/her prior letter concerning an authorized edges receipt of one of my collection of authorization faxes. He third party should have not been sent: “We failed to realize that then tells me that unless the merchant’s bank responds by your husband . . . is acting on your behalf as an attorney.” December 19, “it’s out of our hands.” Translation: You will then DUHHH. It closes by assuring her that she is “a valued cus- be stuck paying 10 times what you agreed to pay for the belt. tomer” of Clueless One. December 12, 2004. Letter from California merchant: “My November 21, 2004. Letter to my wife from S. Keith requesting intention was never to commit fraud. I merely was trying to get the identical information requested almost two months before someone’s attention so that (your wife) would contact me so that by U. Kalisch and answered in my exhaustive reply of October I could recoup my belt.” (e.g., a means to an end). She attaches 13. This one also closes with the now traditional “valued a letter she had sent to her servicing bank when the charge was customer” mantra. first questioned, claiming that the belt purchase was made from “a young high school student worker” and that the purchaser had November 24, 2004. I fax off a letter to both Zappas, Kalisch asked to see “numerous . . . belts, none of which cost less than and Keith, restating what transpired at the store and spoon $550, and proceeded to purchase the most expensive belt with feeding the same information previously requested: “In closing, although you continue to insist that (my wife) ‘is a valued customer,’ she is being treated as anything but that. She right- fully feels that the burden is being placed on her to correct a serious breach of ethics by your merchant.” (I couldn’t resist.)

December 6, 2004. My wife receives her next MC statement — now showing again the $1,500 charge. I call the “800 customer service” number (an oxymoron if ever one existed). After the testy menu maze, my first 30 seconds of conversation with an actual human being (wherever she may be) persuades her to transfer me to a supervisor. After a hold of 27 minutes, I am connected with someone identifying herself (egads! a first name!) as “Laura.” She informs me that I am not authorized to deal on this account. I assure her that not one but two consent forms have been faxed to the black hole that is Clueless One. She then places me on hold for 16 more minutes, comes back on the line and says “the system is down,” but offers to call me tomorrow after she “researches the file.” Not unless she gives me her last name. She says it is “Hanna.” I hang up. Big mistake. a price of $1,400. My young employee mistakenly charged her December 8, 2004. Surprise. Laura Hanna never called back. card $140 plus sales tax, totaling $150.15.” She then admits in Neither did L. Hanna. I call the customer service number and no writing that she “took it upon myself to change the transaction one recognizes the name Laura Hanna. By now I am about to call . . . with the hope that your cardholder would contact me so that the State Department. I fax for the third time my authorization I could recuperate (sic) my belt.” In closing, she adds that she form so that someone will speak to me. No response. I take it a understands “this might have become a moral issue” (can you step further. I “Googlize” the merchant and get the owner’s believe it?) but that she is hopeful that the cardholder will make name and address. “the right choice.” Attached to that letter is a copy of my wife’s signed charge for $150.15. Eureka. December 9, 2004. Certified letter to California merchant on my letterhead. I repeat the facts, including her own store clerk’s December 13, 2004. Armed with these silver bullets, I fax incredulity, stated to my wife, that the belt could cost $1,500: “I letters to all prior Clueless One bureaucrats I have dealt with, hereby request . . . that you provide me immediately with a copy sending both a copy of the wife’s charge receipt and the of the signed charge under which you have attempted to collect merchant’s “I took it upon myself” written admission. $1,500 on a sale that was completed for $150. Your failure to do so will cause me to contact the California Attorney General’s Office, Department of Consumer Fraud.” Continued Next Page

Louisiana Bar Journal Vol. 53, No. 3 275 Lucid continued from page 275

December 14, 2004. Another call to the Clueless One 800 number connects me with S. Lucemill. They continue to ac- knowledge my existence and authority — and actually confirm receipt of my letter and charge receipt. Noncommittally, she states that a responsive letter to me “is in the mail,” refusing to tell me what it says.

December 16, 2004. Merry Christmas, in the form of a letter from K. Bracken of Clueless One: “. . .We are crediting $1,500.15 to your account and are charg- ing the same amount back to the merchant’s bank.” But wait. We didn’t want to steal the belt. We want to pay the $150.15 agreed upon. We will await receipt of the next periodic Clueless One statement before acting impulsively.

January 20, 2005. After confirming the statement crediting February 7, 2005. Letter received from R. Hughes at Clueless $1,500.15, I write a letter to the California merchant: “Nah, nah, One: “We have new information about your disputed charge. nah, nah, nahhhhhhh!!!!!” (just kidding). I enclose a check in the The merchant has provided additional proof (what? an affidavit amount of $150.15: “For the record, I concur with your letter from the high school worker?) that the charge is valid. You must that ‘this might have become a moral issue’. In a prior letter, you provide proof of the return of the belt before any credit will be practically accused my wife of casing your store to find the most issued.” expensive belt, then taking advantage of a young student clerk. Please know that my wife is the most honest person I have ever February 8, 2005. (I had nothing to do with this, but I secretly met, to the point of finding a $100 bill on the floor of a gambling rejoiced.) Letter by me to the merchant, stating that my wife has casino and turning it into their lost and found department.” instructed me that once we are advised in writing that the (True story. At this point, I’m thinking closure.) $150.15 charge has been credited to her account she will promptly return the belt to her. January 22, 2005. Letter from W. Myers of Clueless One: “We understand the amount you agreed to be billed is $150.15. February 11, 2005. (This one’s for me.) I fax my final letter to Therefore, we have rebilled your account for this amount, which R. Hughes at Clueless One: “My wife and I give up. Your will appear on your next statement.” We have now doubled the endless bureaucracy and non-accountability have officially price of the belt! worn us down. You win! Enclosed is a copy of our letter to the merchant confirming we are returning the belt for credit. We January 31, 2005. I fax a letter to a California merchant with hereby request that once and for all full credit of all charges for whom I had hoped never to communicate again: “I hereby this transaction be confirmed. Shortly thereafter, my wife will request that you either return our check or provide us with ‘unchoose’ Clueless One in any further financial relationship.” evidence of your request that the said amount be re-credited to the account.” * * *

February 3, 2005. I receive a certified collection letter from the Be assured, dear reader(s), this is the abridged version. At the merchant, including invoice for belt in the amount of $1,500.15. conclusion of this unfortunate transaction, surely one less rain A copy is shown going to her lawyer in a San Francisco firm with forest exists in the Amazon, the by-product of the systematic six names on the letterhead. unraveling of a valid Louisiana sale.

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