Alternative Dispute Resolution

Inside: • Overview of Special Master Appointments in Louisiana State and Federal Court • Building Trust in Law Enforcement: Community-Police Mediation in New Orleans • Mediation and Religion: General Attitudes of Three Major Religions in the United States LegierCo haystack NO Mag Aug09 8/12/09 4:37 PM Page 1

The Needle In A Haystack

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1100 Poydras Street • 34th Floor • Energy Centre • New Orleans, LA 70163 Telephone (504) 561-0020 • Facsimile (504) 561-0023 • http://www.legier.com Louisiana Bar Journal Vol. 63, No. 3 177 178 October / November 2015 ®

October / November 2015 Volume 63, Number 3

Departments Features

Editor’s Message...... 184 Overview of Special Master Appointments in Louisiana State and Alternative Letters to the Editor...... 185 Federal Court President’s Message...... 186 By Lara E. White, William B. Gaudet and Dispute Thomas Keasler Foutz...... 188 Association Actions...... 200 Practice Management...... 205 Building Trust in Law Enforcement: Resolution Lawyers Assistance...... 207 Community-Police Mediation in New Orleans Focus on Diversity...... 208 By Lou Furman and Focus on Professionalism..... 209 Alison R. McCrary...... 192

Puzzle...... 210 Mediation and Religion: Discipline Reports...... 212 General Attitudes of Three Major Religions in the United States Recent Developments...... 216 By Aaron T. Hubbard...... 196 Young Lawyers...... 236 Judicial Notes...... 238 People...... 240 News...... 243 Who’s Who in ADR 2015 Check out the separate supplement Classified...... 246 Who’s Who mailed with this issue! The Last Word...... 248 in ADR Also Inside 2015

Member Services...... 182 SOLACE...... 183 Postal Report...... 183 Alcohol/Drug Abuse Hotline.. 210 Secret Santa Form...... 215 Supplement to the Louisiana Bar Journal Advertisers’ Index...... 247 Volume 63, No. 3 Louisiana Bar Journal Vol. 63, No. 3 Who’s Who in ADR 2015 1

Louisiana Bar Journal Vol. 63, No. 3 179 ® Officers 2015-16 President Editorial Board Mark A. Cunningham • (504)582-8536  Alainna R. Mire  Winfield E. Little, Jr. President-Elect Editor (337)430-0907 (318)449-5046 Darrel J. Papillion • (225)236-3638  Claire McDaniel-Ojeh (225)622-2005 Secretary  Adrejia L. Boutte Alainna R. Mire • (318)449-5046 (504)561-5700  John H. Musser V (504)523-0400 Treasurer  Christopher D. Cazenave Robert A. Kutcher • (504)830-3820 (504)582-8408  Christopher K. Odinet (225)346-0285 Immediate Past President  Heather E. Cooley (318)445-3121  Roy H. (Hal) Odom, Jr. Joseph L. (Larry) Shea, Jr. • (318)934-4017 (318)227-3762  John S. (Chip) Coulter (225)362-2445 Maggie Trahan Simar Board of Governors 2015-16  Anthony M. DiLeo (337)394-6133 First District  (504)274-0087  Kristine D. Smiley David W. Leefe • (504)556-4137 (225)298-0770  Brendan P. Doherty Patrick A. Talley, Jr. • (504)584-9220 (832)255-6019  Gail S. Stephenson Second District (225)771-4900, x216  Stephen I. Dwyer John E. McAuliffe, Jr. • (504)840-4909 (504)838-9090  Tyler G. Storms (318)255-7805 Third District  Barry H. Grodsky Blake R. David • (337)233-2323 (504)599-8535  Bradley J. Tate (337)406-1099 Fourth District  Gerald J. (Jerry) Huffman, Jr. (504)957-9114 Dylan Tuggle Thriffiley Shayna L. Sonnier • (337)436-1600  Margaret E. Judice (504)620-3187 Fifth District  (337)828-1880 Edward J. Walters, Jr. Michael E. Holoway • (985)871-3924  Robert A. Kutcher (225)236-3636 C. Kevin Hayes • (225)268-2725  (504)830-3820  Jack K. Whitehead, Jr. Sixth District (225)303-8600 Charles D. Elliott • (318)442-9533 The Louisiana Bar Journal (ISSN 0459-8881) is published bimonthly by Seventh District the Louisiana State Bar Association, 601 St. Charles Avenue, New Orleans, C.A. (Hap) Martin III • (318)388-4700 Louisiana 70130. Periodicals postage paid at New Orleans, Louisiana and Eighth District additional offices. Annual subscription rate: members, $5, included in dues; Marjorie L. (Meg) Frazier • (318)213-9205 nonmembers, $45 (domestic), $55 (foreign). Canada Agreement No. PM Chair, Young Lawyers Division 41450540. Return undeliverable Canadian addresses to: P.O. Box 2600, Erin O. Braud • (504)681-6951 Mississauga, ON, L4T 0A8. At-Large Members Postmaster: Send change of address to: Louisiana Bar Journal, 601 St. Mickey S. deLaup • (504)828-2277 Charles Avenue, New Orleans, Louisiana 70130. John M. Frazier • (318)226-9100 Rachael D. Johnson • (504)836-2775 Subscriber Service: For the fastest service or questions, call Darlene M. Loyola University College of Law LaBranche at (504)619-0112 or (800)421-5722, ext. 112. Monica Hof Wallace • (504)861-5670 Editorial and Advertising: Southern University Law Center Publication of any advertisement shall not be considered an endorsement Donald W. North • (225)505-6714 of the product or service involved. Submissions are welcome and will be Louisiana State Law Institute considered for publication by the Editorial Board. For submission guide- Kevin C. Curry • (225)382-3484 lines, go online at www.lsba.org, click on “Publications,” then “Louisiana House of Delegates Liaison Chair Bar Journal.” Copyright © by Louisiana Bar Journal. All rights reserved. S. Jacob Braud • (504)394-9841 Reproduction in whole or part without permission is prohibited. Views expressed are those of the authors only. Editorial Staff Executive Director Luminary Award 2003 Loretta Larsen, CAE National Association of Bar Executives Communications Director Communications Section Kelly Wells Ponder Excellence in Regular Publications Publications Coordinator/Managing Editor

Darlene M. LaBranche International Communications Coordinator - Graphic Design Association of Business Barbara D. Baldwin Public Relations Society Communicators Communications Assistant of America New Orleans Krystal Bellanger Rodriguez New Orleans Chapter Chapter Award of Advertising Booking Questions? Bronze Quill Call (504)619-0131. Award of Merit

180 October / November 2015

OfferingOffering OfferingStatewide Statewide Statewide Professional Professional Professional Mediators, Mediators, Mediators, Arbitrators, Arbitrators, Arbitrators, UmpiresUmpires Umpires& Special & &Special Master Special Master Services Master Services Services

Baton RougeBatonBaton Rouge Rouge South LouisianaSouthSouth Louisiana Louisiana

John Perry Jr.John John PerryDaniel Perry Jr. Balhoff Jr. Daniel Daniel BalhoffRobert Balhoff Burns RobertJr. Robert BurnsJay Burns Dardenne Jr. Jr. Jay JayDardenneCarey Dardenne Guglielmo Carey Carey Guglielmo Guglielmo Matthew BlockMatthew Matthew BlockPatrick Block Briney Patrick Patrick BrineyRobert Briney Dampf RobertRobert Dampf Dampf

Trippe HawthorneTrippe Trippe HawthorneWilliam Hawthorne Helm WilliamWilliamSteven Helm Helm Judice StevenStevenGlen Judice ScottJudice Love Glen GlenScottDoug Scott Love Moreau Love DougDoug MoreauLiz Moreau Murrill Liz MurrillLiz Murrill Jeffrey M. ColeJeffrey Jeffrey M.H. ColeWardM. Cole Fontenot H. Ward H. Ward FontenotRichard Fontenot Hymel Richard Richard Hymel Hymel Judge, Ret. Judge,Judge, Ret. Ret. Judge, Ret. Judge,Judge, Ret. Ret.

Darrel PapillionDarrel Darrel MichaelPapillion Papillion Ponder Michael MichaelBert Ponder RobinsonPonder Bert BertRobinson RobinsonKeely Scott KeelyKeelyMyron Scott Scott Walker Myron Jr. Myron Walker Walker ThomasJr. Jr. JuneauThomas Sr.Thomas JuneauKatherine Juneau Sr. LoosSr.Katherine KatherineEmmett Loos Loos Sole EmmettEmmettPatrick Sole Sole Wartelle Patrick Patrick Wartelle Wartelle Judge, Ret. Judge,Judge, Ret.Arbitrator Ret. ArbitratorArbitrator

New OrleansNewNew Orleans & Orleans Northshore & &Northshore Northshore North LouisianaNorthNorth Louisiana Louisiana

Robert Burns RobertSr. Robert BurnsDavid Burns Sr.Clement Sr. David David JamesClement Clement Cobb Jr. James James CobbRen Cobb éJr. DeRojas Jr. Ren éRen MichaelDeRojasé DeRojas Helm MichaelMichaelRichard Helm Helm Kingrea Richard Richard KingreaA. J.Kingrea Krouse A. J.A. Krouse J. Krouse Donald ArmandDonald Jr.Donald Armand BrianArmand Jr. Homza Jr. BrianBrian Homza Homza Judge, Ret. Judge,Judge, Ret. Ret.

Peggy Landry PeggyPeggyAndrew Landry Landry Lemmon Andrew Andrew LemmonLynn Lemmon Luker LynnLynn DanielLuker Luker Lund IIIDaniel DanielChristopher Lund Lund III MoodyIIIChristopher Christopher Michael Moody MoodyPulaski Michael Michael DavidPulaski Pulaski Shea DavidDavid Shea Shea Hodge O’Neal HodgeIII Hodge O’NealChet O’Neal TraylorIII III ChetChet Traylor Traylor Justice, Ret. Justice,Justice, Ret. Ret.

721 Government721721 Government Government Street, Suite Street, Street, 102 Suite Suite 102Baton 102 Rouge,BatonBaton Louisiana Rouge, Rouge, Louisiana 70802 Louisiana 70802 70802 225-389 -9899225225-389 Phone-389-9899-9899 Phone 225Phone -389 -9859225225-389 Fax-389-9859 -9859 866Fax Fax -389 -9899866866-389 Toll-Free-389-9899-9899 Toll-FreeLouisiana Toll-Free www.perrydampf.com Bar Journal www.perrydampf.com www.perrydampf.com Vol. 63, No. 3 181 ® 601 St. Charles Ave. New Orleans, La. 70130 Member Web site: www.LSBA.org (504)566-1600 (800)421-LSBA Services Fax (504)566-0930 Louisiana Hotels Programs The following hotels have agreed to corporate discount rates for For information about these LSBA programs, contact the Bar Office by calling (504)566-1600 LSBA members. Call, e-mail or check the website link for the or (800)421-LSBA. If you have questions regarding the negotiated corporate rates offered at current discounted rates. When making reservations, you must the hotels listed, contact Kristin Durand for assistance. identify yourself as an LSBA member.

 Alternative Dispute Resolution Program New Orleans  Client Assistance Fund  Bienville House • (800) 535-9603  Continuing Legal Education Program E-mail: [email protected]  Ethics Advisory Service www.lsba.org/GoTo/BienvilleHouse  Lawyers’ Substance Abuse Hotline • (866)354-9334  Blake Hotel • (504) 962-7220 E-mail: [email protected]  Legal Specialization Program Loss Prevention Counsel  Hampton Inn Hotels & Suites of New Orleans  E-mail: [email protected] (504) 523-1200 Johanna G. Averill, Lindsey M. Ladouceur and Elizabeth LeBlanc Voss • (800)GILSBAR  Hotel Monteleone • (504) 523-3341*4561  SOLACE (Support of Lawyers/Legal Personnel All Concern Encouraged) E-mail: [email protected] www.lsba.org/GoTo/HotelMonteleone

 Hyatt French Quarter • (504) 266-6362 Publications E-mail: [email protected] Louisiana Bar Journal   Hyatt Regency New Orleans • (888) 591-1234  “Bar Briefs” (online) Corporate ID #: 95147  Inside the LSBA (online e-newsletter)  Intercontinental Hotel • (504) 585-4309 E-mail: [email protected]

 Le Meridien Hotel • (504) 207-5025 Online Services E-mail: [email protected]  Louisiana Bar Today Opinion Service  Lending Library  Le Pavillon Hotel • (504) 620-4132 Loews New Orleans Hotel • (504) 595-5314  Membership Directory  Twitter  E-mail: [email protected]  Fastcase (free online legal research)  Facebook  Maison Dupuy Hotel • (504) 648-6117  Law Office ManagementAssistance Program E-mail: [email protected]

 Omni Hotels of New Orleans • (504) 756-1141 Young Lawyers Division E-mail: [email protected] Residence Inn New Orleans Downtown • (504) 439-2703 Bridging the Gap    Choose Law E-mail: [email protected]  Mentor Program  Barristers for Boards  The Ritz-Carlton • (504) 670-2845  Young Lawyers’ Directory  Wills for Heroes E-mail: [email protected]  The Roosevelt New Orleans • (504) 556-3721 Corporate ID #: 2742353

Insurance through Gilsbar  Sheraton New Orleans • (800) 937-8461  Group Insurance E-mail: [email protected]

 Major Medical  St. James Hotel • (504) 926-7720 E-mail: [email protected]  Disability Malpractice  Westin New Orleans Canal Place • (800) 937-8461  E-mail: [email protected] (800)GILSBAR • (504)529-3505 • See inside back cover  The Whitney Hotel • (504) 212-8688 E-mail: [email protected] Car Rental Programs Online Booking: http://bit.ly/1Uth3Xo The following car agencies have agreed to discount rates for LSBA members.  Windsor Court • (504) 596-4364 E-mail: [email protected]

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

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

Other Vendors  Hilton Baton Rouge Capitol Center • (800)955-6962, (225)344-5866 The following vendors have agreed to discount rates for LSBA members. Corporate ID #0921780 • www.lsba.org/GoTo/HiltonBRCapitol  Hampton Inn Baton Rouge • (225) 926-9990  ABA Members Retirement – (800)826-8901  LexisNexis – (800)356-6548 E-mail: [email protected] • (Corp ID: 0002831840)  CoreVault – (866)945-2722  LawPay - (866)376-0950 Lafayette

 Geico - (800)368-2734  United Parcel Service – (800)325-7000  SpringHill Suites Lafayette South at River Ranch www.lsba.org/GoTo/SpringHill National Hotel Chains* Lake Charles Best Western Richmond Suites, (337)433-5213  Holiday Inn, (800)HOLIDAY  LaQuinta Inns & Suites, (866)725-1661  Use ID No. 100381739 www.LQ.com Shreveport Use corporate rate code LABAR  Clarion Shreveport Hotel, (318)797-9900  The Remington Suite Hotel, (318)425-5000 *Discounts not guaranteed at every hotel property within a national chain. Contact specific property to inquire about availability of LSBA discounted rates.

182 October / November 2015 SOLACE: Support of Lawyers/Legal Personnel — All Concern Encouraged The Louisiana State Bar Association/Louisiana Bar Foundation’s Community Action Committee supports the SOLACE program. Through the program, the state’s legal community is able to reach out in small, but meaningful and compassionate ways to judges, lawyers, court personnel, paralegals, legal secretaries and their families who experience a death or catastrophic illness, sickness or injury, or other catastrophic event. For assistance, contact a coordinator. Area Coordinator Contact Info Area Coordinator Contact Info Alexandria Area Richard J. Arsenault (318)487-9874 Monroe Area John C. Roa (318)387-2422 [email protected] Cell (318)452-5700 [email protected]

Baton Rouge Area Ann K. Gregorie (225)214-5563 Natchitoches Area Peyton Cunningham, Jr. (318)352-6314 [email protected] [email protected] Cell (318)332-7294

Covington/ Suzanne E. Bayle (504)524-3781 New Orleans Area Helena N. Henderson (504)525-7453 Mandeville Area [email protected] [email protected]

Denham Springs Area Mary E. Heck Barrios (225)664-9508 Opelousas/Ville Platte/ John L. Olivier (337)662-5242 [email protected] Sunset Area [email protected] (337)942-9836 (337)232-0874 Houma/Thibodaux Area Danna Schwab (985)868-1342 [email protected] River Parishes Area Judge Jude G. Gravois (225)265-3923 [email protected] (225)265-9828 Jefferson Parish Area Pat M. Franz (504)455-1986 Cell (225)270-7705 [email protected]

Shreveport Area Dana M. Southern (318)222-3643 Lafayette Area Josette Abshire (337)237-4700 [email protected] [email protected]

Lake Charles Area Melissa A. St. Mary (337)942-1900 [email protected] For more information, go to: www.lsba.org/goto/solace.

Louisiana Bar Journal Vol. 63, No. 3 183 EDITOR’S MESSAGE

By Alainna R. Mire Of S’Mores, Memories and the LSBA’s 75th Anniversary hile at a festival Each person has different life experiences perspectives are necessary in order to with friends, that impact who he or she becomes as continue to grow as an association. an adult. These life experiences shape The Louisiana State Bar Association we started to one’s core values and beliefs. I am very will be celebrating its 75th anniversary reminisce about fortunate to have a diverse family that in 2016. As such, we would like you to ourW childhoods. It all started is open and tolerant towards others. Not celebrate with us by submitting articles, everyone is as open-minded and accepting photographs and other materials that you innocently enough while of those they perceive as “different.” Some may have to commemorate this milestone. enjoying a vanilla latte and younger adults may think we already live By the way, I’ve also added pumpkin s’mores at a lounge. While two in a society that is accepting of diverse carving to my wood fire fall evening with people and cultures, yet older adults may friends because it is something that I of us just thought it was neat, our not see it the same way. My parents lived always did with my family as a child. My other friend was in heaven. He through the civil rights movement as did friends are family by choice so we embrace explained there was a technique to the parents of others my age. My childhood each other as I was taught to embrace roasting the perfect marshmallow was more open because of the movement people from different backgrounds and experienced by my parents. socioeconomic status. and a certain way to “make” As editor of the Louisiana Bar Journal, Our Association has made strides in your s’more. Apparently, when I am appreciative of the ability to have, and embracing diversity, but we still have a he was a child, someone in his to work with, a diverse Editorial Board. way to go. I hope the next 75 years are The Board comes from both a diverse even better than the first ones. family would build a wood fire in practice and cultural background. The the backyard so they could roast ability of the entire Board to collaborate marshmallows and wieners. and discuss submissions in a professional and courteous manner is what makes it After a good dose of friendly laughter, such a great group. In my opinion, multiple we decided we wanted to experience his childhood memory as adults. We are currently in the process of planning The LSBA is Turning 75 in 2016! an evening that will include roasting Help the Louisiana State Bar Association celebrate its 75th anniversary by marshmallows for s’mores and making submitting material for the commemorative issue of the Louisiana Bar Journal in Frito pies and hot dogs. Because he is our spring 2016. friend, we want to recreate and experience Do you have an article idea? Do you want to write an article? Do you have something that was such a positive photographs in your collection that would be of interest to the membership? experience in his life. Email your ideas by Friday, Dec. 4, to Editor Alainna R. Mire, The idea of experiencing things as [email protected], or Publications Coordinator Darlene M. LaBranche, others do or learning about them is what it [email protected]. means to learn about and embrace diversity.

184 October / November 2015 Letters

Reader response... letters policy

In Response to Recent Developments Article In response to the Criminal Law Sec- be pointed out that the convictions were Bar 101 tion Recent Developments article in the only overturned on technicalities and not online video series April/May 2015 Louisiana Bar Journal on any defect in the proof that found the (Volume 62, Number 6), I take exception defendants guilty. The fact that the racial To see Bar 101 videos, visit to the fact that the victim was identified makeup of the jury and the grand jury www.lsba.org/Members/bar101.aspx as “an Angola prison guard.” His name was not to the federal court’s liking did was Brent Miller, a likeable young man not mean that there was any bias against who had the whole world in front of him the defendants or that they would have The Bar 101 Video Series offers a when he was brutally murdered on the been found anything other than guilty quick look inside different aspects job in 1972 by the three inmates who regardless of the jury’s makeup. of the LSBA. Learn about new and were twice convicted of murdering him. To date, there has never been any noteworthy LSBA projects, free The article does not seem to be an indication of anyone other than the three professional services offered by objective statement briefing the legal named defendants as being guilty of the Bar, and how the Association points of the case, but more the perspective the brutal murder of Brent Miller, and can aid in everyday practice from those who want to exonerate these I seriously doubt that the knife attacked management. Everyone can learn defendants of Brent’s murder. It is hard Mr. Miller on its own and inflicted ap- something new from this series, for me to believe that the investigators proximately 40 stab wounds to his body. from the newest LSBA members to at Louisiana State Penitentiary would the most seasoned attorneys. have blamed three innocent inmates for Charles E. Griffin II the death of their employee and let the St. Francisville guilty parties go untouched. It also should

Letters to the Editor Policy

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

Louisiana Bar Journal Vol. 63, No. 3 185 President’s message

Civil Discourse and the Role of

the Profession in Public Policy By Mark A. Cunningham

am deferring my President’s force and police officer training. Some occupational group in the Legislature and Message until the next issue to members may have different views on generally comprised more than 30 percent allow for the publication of the how best to protect the safety of police of its members. Patrick F. O’Connor, et essay below from Roger A. Stetter. officers while at the same time respecting al., “The Political Behavior of Lawyers in Mr.I Stetter is an active volunteer for the individual rights. The role of the LSBA the Louisiana House of Representatives,” Senior Lawyers Division, and he has had a is not to answer these questions or take 39 La. L. Rev. 43 (1978). Lawyers distinguished career as a law professor and sides in the debate, but rather to promote continue to play a significant role in the trial attorney. So when Mr. Stetter could civil discourse within the legal profession. Louisiana Legislature, but their voices not find a home for his essay, I asked for In that spirit, I encourage members to are increasingly drowned out by others it to be published here. speak out on public policy issues impacting who do not share the same commitment In his essay, Mr. Stetter takes on the the rule of law. Write to the Louisiana Bar to civility and professionalism. Over difficult issue of race in America and Journal editor or the editor of your local time, the legal profession will surely help its role in recent events surrounding newspaper. Run for political office. In reinstitute civility in the political process controversial shootings in South Carolina, 1978, the Louisiana Law Review published but only if members take the time to share Ferguson, Mo., and elsewhere. He argues an article discussing the role of lawyers their points of view. that society should re-examine law in the Louisiana Legislature, noting that Here is what one member had to say: enforcement policies on the use of deadly lawyers represented the largest single

It’s Time to Review Deadly Force Policies and at the Same Time Fund Better Training and Compensation for Law Enforcement

By Roger A. Stetter

A spate of recent police shootings of sive data base on the number of police men and law enforcement officers lead all unarmed African-American men — most homicides and a majority of police de- too often to fatalities. notably of a man in South Carolina who partments do not file fatal police shooting In Tennessee v. Garner, 471 U.S. 1 was pulled over for a broken tail light and reports at all.3 However, we do know that (1985), the Supreme Court held that when shot repeatedly in the back while running young African-American males are at far a law enforcement officer is pursuing away from a police officer — has focused greater risk of being shot dead by police a fleeing suspect, he or she may not use national attention on the use of deadly than their white counterparts — 21 times deadly force to prevent an escape unless force by law enforcement officers.1 greater, according to a recent study of fed- “the officer has probable cause to believe Police work is dangerous, especially erally collected data on fatal police shoot- that the suspect poses a significant threat when millions of people are carrying ings.4 of death or serious physical injury to the handguns and ready to use them at the Unfortunately, running from the police officer or others.” The Court’s ruling drop of a hat.2 But we are left trying to has become a way of life among young sounds reassuring. However, it provides understand how a minor infraction or African-American men in heavily policed no practical guidance on when police of- mere suspicion of criminal activity often neighborhoods. Some flee because they ficers should chase people or draw their escalates into a deadly confrontation, and are in possession of drugs, others because guns, and when they should back away, why police officers are not better trained they are afraid that the police might rough wait or try to defuse the situation. to avoid the use of lethal force unless it is them up during random stops, even if they Curbing police shootings requires a re- absolutely necessary. do not try to escape.5 Mutual suspicion and examination of deadly force policies and a Remarkably, there is no comprehen- distrust between young African-American serious investment in police recruitment,

186 October / November 2015 training and retention. Police training in pay for the men and women who risk their Black and White,” ProPublica (Oct. 10, 2014). the use of deadly force is woefully inad- lives to protect us from harm. Whether or 5. John Eligon, “For Some, Running from Po- lice Is the Norm, Some in Baltimore Say,” New York equate. The lion’s share of police budgets not the necessary investment will be made Times (May 11, 2015) at A10. FBI reports filed for goes to salaries and equipment with al- to achieve proper community policing in the years 2010 to 2012 indicate that of 15 teenag- most nothing left for training. A Justice the United States remains an open ques- ers shot fleeing arrest, 14 were African-American. Department report on the Philadelphia Po- tion. A recent study by the American Society of Crimi- nology found that over a 10-year period in which lice Department states that police officers’ St. Louis police fired their weapons, more than 90 firearms training focuses more on target FOOTNOTES percent of their targets were African-American. practice and less on the police depart- Michael Wines, “Are Police Bigoted?,” New York Times (Aug. 30, 2014). ment’s policies about when officers can 1. The police shooting in South Carolina came 6. Gene Demby, “Takeaways from The Federal 6 on the heels of a rash of similar incidents over fire their weapons. The average police Report on Deadly Force By Philadelphia Cops,” the past year, including the shooting of Michael training in the United States is 15 weeks www.npr.org (March 25, 2015). Brown, an unarmed African-American teenager, 7. Paul Waldman, “Expert: U.S. Police Train- and, in most police departments, the only in Ferguson, Mo. The Ferguson police officer has ing in Use of Deadly Force Woefully Inadequate,” criteria for new recruits are a GED and the been cleared of any wrongdoing. However, the The American Prospect (Aug. 27, 2014), available South Carolina shooting was captured on video by non-use of drugs during the previous three at http://prospect.org. 7 a bystander and the police officer has been indicted years. The South Carolina police officer 8. Michael Slager, “Cop Who Killed Unarmed for murder. Alan Blinder and Timothy Williams, Black Man Walter Scott Had Prior Excessive Force who shot an unarmed African-American “Ex-South Carolina Officer Is Indicted in Shoot- Complaint,” Huffington Post (April 9, 2015). On man in the back was allowed to stay on ing Death of Black Man,” New York Times (June June 9, 2015, a grand jury indicted him for murder. the force despite a 2013 complaint that he 9, 2015), at A12. This is one of the few times an offending officer has been charged with a crime. used excessive force against another un- Roger A. Stetter, a graduate of Cornell and UVA Law 2. Approximately 21 million background 8 School, is a trial lawyer in New Orleans, a Lifetime armed African-American man. checks were conducted for gun sales in the United Member of the American Law Institute, and a former The role of police in a free society is to States in 2013. Katie Pavlich, “Gun Sales Set New member of the LSU Law School faculty. He has several Record,” Townhall.com (Jan 7, 2014). enforce the law in a manner that is fair and books in print, including Louisiana Civil Appellate 3. The FBI maintains a Uniform Crime Re- just to all people and to only use deadly Procedure; In Our Own Words: Reflections on Profes- porting Program which relies on law enforcement sionalism in the Law; and Louisiana Environmental force as a last resort. But this requires an agencies to voluntarily submit crime reports. This Compliance. ([email protected]; Ste. 1334, 228 investment in proper education and train- database only includes justifiable homicides. St. Charles Ave., New Orleans, LA 70130) ing of police officers as well as generous 4. Ryan Gabrielson, et al., “Deadly Force, in

a State Bar Ass isian ocia ou tio L n 2016 Midyear Meeting Save the dates! January 14-16, 2016 JW Marriott New Orleans Hotel • 614 Canal Street, New Orleans To register or for more information, visit www.lsba.org/midyearmeeting

Louisiana Bar Journal Vol. 63, No. 3 187 Overview of Special Master Appointments in Louisiana State and Federal Court

By Lara E. White, William B. Gaudet and Thomas Keasler Foutz

ith the rise in class actions, mass torts and multi- district litigation, the need for special master services has increased. These large and often complex cases put an enormous burden on courts and their limited resources.W Special master roles can vary widely from case to case depending on the size and complexity of the litigation and the needs of the particular judge and counsel involved. Special masters can assist the court with specific, limited tasks, such as case management issues, pretrial discovery or settlement mediation and administration, or they can remain involved in all aspects of the case through trial and post-trial, including making recommendations, proposed orders and reports to the judge and assisting with substantive case issues. This article examines the rules governing the appointment of special masters in Louisiana state and federal courts.

188 OctoberOctober // NovemberNovember 20152015 Federal Court consent to a special master appointment court de novo.23 However, a master’s ruling when circumstances would otherwise on a procedural matter may only be set aside Appointment require judges to disqualify themselves.12 for an abuse of discretion unless otherwise The rule governing the use of special indicated in the appointing order.24 The court masters in federal court is Federal Rule of Order of Appointment is the ultimate authority over the master’s Civil Procedure 53. A federal court may Once the court decides that a special order, report or recommendation, and “may appoint a special master in limited circum- master will be appointed, the court must adopt or affirm, modify, wholly or partly stances, as district judges must retain the give notice to the parties of who is proposed reject or reverse, or resubmit to the master primary responsibility for the cases in their for this appointment and the terms of the with instructions.”25 courts.1 Rule 53(a)(1) provides the three appointment, and also give the parties an standards for special master appointments: opportunity to be heard on these issues Compensation (1) by consent of the parties; (2) for trial du- and to nominate other candidates for ap- The court will determine the special ties; and (3) for pretrial or post-trial duties.2 pointment.13 After a special master has master’s compensation as provided in the Although a special master may be ap- been selected, the scope and limits of the appointing order or subsequent amend- pointed by consent of the parties, mere master’s duties and authority must be de- ments.26 The court also will determine how consent does not obligate the court to ac- tailed in a written order. The more detailed the master’s fees will be allocated between tually make the appointment, as the court the order, the better, so as to not have any the parties or taken from a fund or the subject has the ultimate discretion on this issue.3 A misunderstanding or confusion. The order matter of the litigation within the custody court also has ultimate authority to appoint should include information on: (1) the of the court.27 When considering the allo- a special master for trial, pretrial or post- specific duties of the master and any limits cation of fees, the court may consider the trial duties, even without the consent of the on authority; (2) guidelines for ex parte amount in controversy, the means of the parties, if the court meets the conditions communications with the court and the parties, and whether any particular party provided in Rule 53(a)(1)(B) and (C). It parties;14 (3) any materials that need to be is more responsible for the appointment of should be noted, however, that a court may preserved and filed to record the activities the master in the case.28 After a decision on not appoint a special master for trial duties of the special master; (4) the procedures and the merits, the court may decide to amend without the consent of all parties when the deadlines for reviewing any orders, findings an interim allocation.29 case will be tried to a jury.4 or recommendations of the master; and (5) Trial master appointments are limited.5 the plans and procedures for compensating Louisiana State Court Examples of trial master duties include the master under Rule 53(g).15 The parties presiding over an evidentiary hearing, a must be given an opportunity to be heard Appointment preliminary injunction hearing, or determin- on the terms of the appointment order.16 The Louisiana’s special master statute is ing complex damages issues.6 final order of appointment may be amended relatively recent, as compared with the Pretrial and post-trial masters are used by later as long as there is notice to the parties federal rule. La. R.S. 13:4165, governing district courts when help is needed to man- and an opportunity for hearing.17 the appointment of special masters, was age unusually large or complex cases, and enacted by the Louisiana Legislature in when the judge and magistrate are unavail- Authority, Orders and Reports 1997. This original statute was less than able to timely or effectively handle certain Once appointed, a special master has clear as to what the specific role of the matters. The intent is for these appointments broad authority to meet his/her assigned special master would be in a particular to be made only when there is a clear need duties as provided in the appointing order.18 matter appointment. This led to concerns for such assistance.7 Examples of pretrial Any order issued by a special master must and objections when the role of the special master duties include handling e-discovery be filed with the court and entered on the master was expanded during the course matters, reviewing extensive documents docket and must be served on all parties.19 of the matter without complete notice to for privilege, overseeing investigations, The special master must prepare and file the parties. Another concern regarding the settlement conferences and administrative reports to the court as the court requires in application of this original statute was the oversight.8 Post-trial master duties may the appointing order, and must file and serve appointment of special masters without full involve enforcing a complex decree.9 the report on the parties unless otherwise consent of all the parties. A special master is subject to the same directed by the court order.20 Because of concerns expressed by both conflicts of interest and disqualification Prior to acting on a special master’s the plaintiff and defense bar and other standards as that of a district judge under order, report or recommendation, the court interested parties, Louisiana’s statute was 28 U.S.C. § 455.10 However, the parties, must first provide the parties with notice amended and enacted by the Louisiana with court approval, may still consent to a and hearing.21 In response, a party may file Legislature and became effective on Aug. 1, special master appointment after disclosure an objection, or motion to adopt or modify, 2014.30 The specific consent requirement of of the grounds for disqualification under within the time frame set by the rules or the the Louisiana statute differs from the federal Rule 53(a)(2).11 Because a special master court.22 Any objections to findings of fact or rule. As noted above, a federal judge has is not a public judicial officer, a court may conclusions of law made or recommended authority to appoint a special master even find it appropriate to permit the parties to by the special master are reviewed by the

LouisianaLouisiana BarBar JournalJournal Vol.Vol. 63,63, No.No. 33 189189 without the consent of the parties. However, interpreting that rule are more specific as the backup documentation and details of the Louisiana statute by its general terms, to the power of a special master to conduct the time and tasks being charged require while requiring consent of the parties, evidentiary hearings, imposing certain even higher scrutiny by the special master. does not require the court to provide the sanctions, and providing parties with notice parties an opportunity for a hearing on the of hearings before the special master. But FOOTNOTES appointment or the right to nominate other given the broad authority provided to state candidates for appointment. courts, those issues should be addressed in a 1. The Advisory Committee Note to the 2003 When compared with the federal rule, the more detailed order of appointment and the Amendments to Rule 53. Louisiana statute does not provide specific federal form should be used as a template. 2. Id. 3. Id. guidelines for the formal disclosures by the It is important for the state court judge, in 4. Id. special master or the details that should be coordination with the special master, to 5. Id. included in the order of appointment — e.g., spend the time to anticipate all issues that 6. Id. guidelines for ex parte communications, may arise during the course of the litigation, 7. Id. 8. Id. preservation and recordation of special mas- set forth the details of the special master’s 9. Id. ter activities, and disclosure requirements. authority and anticipated scope of tasks, and 10. Fed. R. Civ. P. 53(a)(2). The Louisiana statute requires reports from provide as much detail as reasonable in order 11. Id. the special master to be served on the parties to avoid future objections by the parties.31 12. The Advisory Committee Note to the 2003 Amendments to Rule 53. and a right to objections in a contradictory 13. Id. hearing regarding that report before the Compensation 14. Although not dictated by the rule, normally, court adopts, modifies or rejects the report Like the federal rule, state courts ex parte communications between a special master of the special master. determine the special master’s compensa- and the court and parties are discouraged. There may, however, be circumstances when it would be benefi- There is minimal Louisiana case law tion; unlike the federal rule, the Louisiana cial, and even necessary, for such communications to discussing the special master issues but, statute provides that this compensation is take place. Ultimately, these are matters of discretion given the increase in the use of special to be taxed as costs of court. Because the for the court, but it is important that the parameters masters in Louisiana, more decisions are estimate of the amount of compensation of for such communications be laid out in the order of appointment. See, the Advisory Committee Note to likely to be forthcoming. Until more guid- the special master is to be provided before the 2003 Amendments to Rule 53. ance is provided by the Louisiana courts, appointment, it is important for the special 15. Fed. R. Civ. P. 53(b)(2). the parties should consider the more specific master to notify the parties well in advance 16. The Advisory Committee Note to the 2003 guidance provided by the federal rules and of seeking an order for compensation if there Amendments to Rule 53. 17. Fed. R. Civ. P. 53(b)(4). federal courts. are valid reasons to increase that original 18. The Advisory Committee Note to the 2003 estimate. Once again, however, there is Amendments to Rule 53. Authority, Orders and Reports little guidance for the state courts regard- 19. Fed. R. Civ. P. 53(d). Like the federal rule, the Louisiana stating the factors to be applied in approving 20. Fed. R. Civ. P. 53(e). 21. Fed. R. Civ. P. 53(f)(1). ute provides broad authority to the special the special master’s compensation. There 22. Fed. R. Civ. P. 53(f)(2). master and leaves much discretion with are ample filings and orders in the federal 23. Fed. R. Civ. P. 53(f)(3)&(4). the district courts regarding the limits of court system that can be adopted. Because 24. Fed. R. Civ. P. 53(f)(5). authority, the issues that can be addressed, the compensation of a special master will 25. Fed. R. Civ. P. 53(f)(1). 26. Fed. R. Civ. P. 53(g)(1). and the reports to be provided by the special be scrutinized not only by the judge but also 27. Fed. R. Civ. P. 53(g)(2). master. The federal rule and authorities by the parties paying the special master, 28. Fed. R. Civ. P. 53(g)(3). 29. Id. 30. The special master statute in its present form is designed to ameliorate the concerns noted above and require the court to specify the “anticipated specification of the powers to the special master” and more clearly require the consent of the parties contingent upon: (1) an estimate of the amount of the compensation of the special master; (2) the identity of the special master; and (3) the court’s anticipated specifications of the powers of the special master. 31. An example of the role and authority of a special master can be found in Pollard v. Alpha Tech- nical, 31 So.3d 576 (La. App. 4 Cir. 2010). There, the special master’s authority included holding an evidentiary hearing on class certification and issu- Special Masters ing recommendations to the court. The district court affirmed the special master’s recommendations de- THOMAS KEASLER FOUTZ | HON. CAROLYN GILL-JEFFERSON (RET.) nying class certification and the court of appeal affirmed.

14056.FJ_lsba-4.75x2.375_.indd 1 6/17/14 2:27 PM

190 October / November 2015 Lara E. White is a partner arlaw.com; Ste. 4500, 701 Poydras St., New Orleans, resented clients in a variety of complex litigations. in the New Orleans of- LA 70139) ([email protected]; Ste. 4500, 701 Poydras fice of Adams and Reese, St., New Orleans, LA 70139) L.L.P., and has 20 years William B. (Billy) Gaudet of complex litigation ex- is a partner in the New Thomas Keasler Foutz is perience, including class Orleans office of Adams president and co-founder actions, mass torts and and Reese, L.L.P. He is of ADR inc. A full-time multi-district litigation. chair of the New Orleans neutral since 1993, he has She focuses her practice on Bar Association’s Sec- been appointed by the court managing complex litigation on Class Actions and to serve as a special master tion, including discovery, Complex Litigations. His in a number of class actions. document management, experience includes acting ([email protected]; witness development, motion practice, settlement as liaison counsel for class Ste. 1940, 935 Gravier St., evaluation and negotiation and trials. She is avail- action and multi-district New Orleans, LA 70112) able for special master appointments. (lara.white@ litigations. He has rep-

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Louisiana Bar Journal Vol. 63, No. 3 191 Building Trust in Law Enforcement:

Community-Police Mediation in New Orleans

By Lou Furman and Alison R. McCrary

I am awestruck by the ability and will- suffer because of poor training, weak ships and build mutual understanding. ingness of mediation participants to con- oversight and cited unconstitutional The program exemplifies the essential front some of the most contentious issues behavior on the part of police depart- principles and standards of community affecting community-police relations in ments.1 Trust in law enforcement is low, mediation. New Orleans and around the country, especially in communities of color,2 lead- Every case is co-mediated with two from issues of race and aggression, to ing to protests across the country about of the 30 community-police mediators notions of service, courtesy and shared police behavior from Ferguson to Balti- who match the age, race and gender de- responsibility. more, from Philadelphia to New Orleans. mographics of the officer and civilian. —Community-Police Mediator In 2014, the New Orleans Office of the Each mediator has more than 50 hours of Independent Police Monitor launched its specialized training in community-police he U.S. Department of Justice Community-Police Mediation Program mediation. The mediations take place in spent $4.75 million creating a as a strategy to strengthen community private rooms in community spaces such National Initiative for Building trust in police and to build stronger re- as public libraries, community centers Confidence and Trust between lationships between the community and and schools near where the civilian or of- communitiesT and the justice system. police. In its first year of operation, the ficer live or work rather than government Across the nation, many acknowledge program has become a national model to buildings. that police and community relationships improve community and police relation- For several years, civilians have

192192 OctoberOctober // NovemberNovember 20152015 voiced concerns about the New Orleans mandates the creation of a community- enforcement institution. Police Department (NOPD) regarding police mediation program. This approach Another principle of justice-based alleged NOPD officer misconduct, dis- is in line with the Police-Civilian Review policing is reconciliation. Reconciliation respect, poor communication and per- Task Force’s recommendation to develop facilitates honest conversations between ceived racism. In the last decade, these an alternative dispute resolution mecha- community members and police officers complaints surfaced in two independent nism to resolve civilian-police conflicts. allowing them to address historic tensions, reviews of NOPD — the Police-Civilian The aims of the mediation program, grievances and misunderstandings in order Review Task Force Report in 2001 and conceived in 2012 and launched in 2014, to strengthen relationships. The mediation the U.S. Department of Justice Civil are: program allows for this expression. Both Rights Division’s investigation in 2011. ► to create mutual understanding be- procedural and reconciliation justice are The Police-Civilian Review Task tween civilians and police officers; highlighted principles of the National Ini- Force recommended the implementation ► to establish the legitimacy of media- tiative for Building Confidence and Trust. of an independent police monitor to sup- tion; and Mediation provides a medium for port NOPD reform and mend communi- ► to improve compliance and coopera- justice-based policing. It allows the party-police relationships. In 2008, 70 per- tion in mediation. ticipants to be fully heard and understood, cent of the electorate in the City of New Funding for the pilot year of the media- to speak directly with each other in a safe Orleans voted to amend the city charter tion program was secured with a grant from space, to give each other feedback, and to create the Office of the Independent the Department of Justice’s Community- to help to prevent similar incidents from Police Monitor (OIPM). Oriented Policing Services (COPS). In occurring in the future. The civilian is able A major aspect of the OIPM’s man- 2015, the program received funding from to regain confidence in police services date is to develop trust between NOPD Baptist Community Ministries to allow and to play an active role in a solution. officers and civilians. Public distrust in the continuation of the program through Officers have the opportunity to gain new the NOPD emanated, in part, from sev- May 2017. Future funding of the program understandings, improve community rela- eral high-profile officer convictions, ac- relies on public financing of the program tionships and trust, explain why they may cusations of constitutional rights viola- either through the Office of the Inspector have acted the way they did on a certain tions, and strained relationships with General’s budget that currently holds all day, and share about their role. minority groups due to disproportionate funding for the Independent Police Monitor Mediation is powerful because both the treatment. While there have been a num- or other public funds. Lack of sustainable complainant and the officer gain an under- ber of programs in place to improve the funding is the number one reason similar standing of why the other person acted as level of trust between the community and programs around the country fail. he or she did. When the participants gain the NOPD, civilians continue to initiate a The program includes justice-based this knowledge, the other’s behavior is sizable number of complaints. According policing principles that specifically ad- put into a new context that is more under- to NOPD Public Integrity Bureau data, dress the relational aspect of mediation standable. The person may not approve of at least 870 misconduct complaints were required in community policing. Justice- what happened but can understand why it made against police officers in 2014, based policing is particularly concerned happened. When mediation is successful, down from 994 complaints the previous with the relationship between minority this understanding can, and often does, year.3 However, it also should be noted groups and perceptions of discriminatory lead to forgiveness and healing. that this is likely an underestimation as policing. It considers the legitimate use of many experiences of dissatisfaction or police authority and civilian perceptions This mediation experience was tremen- police misconduct go unreported. While of fairness and justice. Researchers have dous. The complaint process triggered the number of complaints is sizable, pub- found empirical evidence that procedural something in this one officer. He remem- lic trust in the NOPD investigating com- justice, one principle of justice-based polic- bered the signs around town that read plaints is also low, demonstrating that ing, enhances police legitimacy. Procedural “think that you might be wrong” and he there are some people unwilling to file justice occurs where there is participation, reviewed his body-worn camera footage complaints with the NOPD as it is also dignity and trust in community-police since he didn’t remember speaking to the the agency responsible for investigat- relations. Participation allows civilians to civilian in a rude tone. He reviewed his ing them. As the OIPM works with the present their own view and contribute to footage and, during the mediation, he NOPD to build a more trustworthy com- decision-making, resulting in perceptions apologized in the first 15 minutes. The two plaints-and-accountability system, it also of fairness (even if it may not influence the participants developed a great process, provides a more immediate alternative in legal outcome). Dignity and respect by examined the conflict and their interac- the form of mediation. police acknowledge the individual’s rights tion, and made plans for the future. At Traditional complaint-investigation and values as a competent, equal person. about halfway through the process, we processes are not always the most effec- Trust occurs when officers model dignity took a short break. As the other mediator tive way to resolve police-community and respect and clearly explain decisions and I were walking back into the room, conflict. Lawmakers reflected this view that translate into more positive feelings the officer and civilian had made it back through the OIPM city ordinance, which about the legitimacy of police as a law before us and we observed them hugging

Louisiana Bar Journal Vol. 63, No. 3 193 each other. At the end of the mediation, The OIPM built a collaboration that police department may have an impact on they exchanged cell phone numbers and included the NOPD and nonprofit agen- the capacity to reduce the rate of violent set a date for lunch. cies — the Louisiana Public Health crime. For example, the stories, number of —Community-Police Mediator Institute which developed the evaluation; cases successfully resolved, and the data Community Mediation Services which reflecting the level of confidence increased In the long term, mediation helps helped recruit and train mediators; and through mediation will be valuable tools for with resource efficiency in the handling Community Mediation Maryland which other departments facing similar problems of complaints. It resolves complaints in provided specialized police-community in public trust and seeking processes to de- YOUR ADVOCATE. a satisfactory manner for all involved, mediation training — to transform the velop mutual understanding and improved improves community-police relations and philosophies underlying the mediation community and police relationships. builds trust between the participants. program to concrete practice. A Project Board, a Planning Committee The collaboration with the NOPD was FOOTNOTES YOUR PARTNER. and the OIPM Project Team created the essential for the program’s success. The mediation program. The Planning Com- NOPD has publicly acknowledged the need 1. Matt Apuzzo, “Justice Department, Criticiz- mittee consisted of members of the com- to repair and cultivate community partnering Philadelphia Police, Finds Shootings by Of- ficers Are Common,” New York Times, March 23, YOUR LSBA COMMITTEE. munity at large, criminal justice experts, ships. Its clear embrace and participation 2015. police association representatives, city in the program serves to reinforce its com- 2. F. Newport (Aug. 20, 2014). “Gallup Re- government representatives, mediators mitment to community policing. The types view: Black and White Attitude Towards Police,” and business professionals. of complaints that the NOPD policy most retrieved Aug. 30, 2015. The mediation program requires a set of commonly refers for mediation are those 3. New Orleans, La. (April 8, 2015). Public Integ- rity Bureau of New Orleans Police Department 2014 principles to guide its delivery and stream- related to professionalism, discourtesy or Annual Report. Retrieved Sept. 14, 2015. line both delivery and evaluation. The neglect of duty. Planning Committee and the Project Board The Louisiana Public Health Institute’s Lou Furman is a mediator agreed to the following 10 principles: (1) evaluation findings from all of the media- focusing on community issues and police/civilian re- ensure mediation is voluntary; (2) ensure tion sessions conducted in 2014 through lationships. A practitioner mediation is confidential; (3) offer bilin- pre- and post-mediation session surveys of restorative approaches, gual mediators or translators in mediation; revealed that police officers and civilians he is the former executive director of Community Me- The Legal Malpractice Insurance Committee (4) ensure mediation is for issues that meet believe that the mediation sessions were Your LSBA Committee serves you by ensuring: diation Services, a profes- of the Louisiana State Bar Association holds the the inclusion criteria; (5) ensure mediation unbiased, helped resolve issues between sor emeritus at Washington does not replace police accountability; (6) police officers and civilians, and are a bet- State University and a endorsed malpractice insurance carrier to a high • A strong policy offering essential coverages. clearly explain the mediation outcome; (7) ter option than formal disciplinary action registered drama therapist. standard of accountability for the benefit of all its provide officer incentives to participate against officers. He established programs in alternative and charter schools, worked extensively members. • An opportunity for coverage for the majority of in mediation; (8) deliver the project with After the mediation session, civilians with incarcerated youth and special populations, and Louisiana attorneys. trained mediators; (9) recognize the power agreed that the session helped them gain facilitates trainings in communication skills, media- differential between police and civilians; a better understanding of policing. Police tion, restorative practices and trauma awareness and and (10) record success of mediation. officers agreed that the mediation session resilience. ([email protected]; 7719 Cohn St., • Continuous oversight to ensure adequate and fair New Orleans, LA 70118) The Planning Committee and the Proj- helped build mutual respect between them premium rates for a stable program. ect Board agreed to the following three and the civilian, that mediation is a good Sister Alison R. McCrary, organizational goals for the project: way of resolving disputes between civilians Esq., is director of the ► Listening. In mediation, a safe en- and police officers, and that they would New Orleans Community- Police Mediation Program vironment will be created and facilitated agree to mediations in the future. at the Office of the Inde- in which each participant feels secure Most civilians agreed that if they had pendent Police Monitor, a in expressing and hearing one another’s information about a crime or incident in social justice attorney, a gilsbarpro.com 800.906.9654 points of view. their neighborhood, they would share that spiritual advisor on death row and a Catholic Sister. ► Problem solving. In mediation, information with the police officer who She currently serves on participants will listen to each other to participated in the mediation. the Leadership Team for determine what led to the complaint and the Community Mediation police interaction and, working together, Section of the Association for Conflict Resolution. Conclusion As a 2010 Soros Justice Advocacy Fellow in New all participants will decide on solutions Orleans, she challenged and changed policing or next steps. The establishment and continuance of practices and policies to transform relationships ► Transformation. In mediation, the New Orleans Community-Police Me- between police officers and the bearers of New Or- community members and police will leans’ indigenous cultural traditions. She received diation Program is vital to the City of New her JD degree from Loyola University College of sit together in a restorative practice that Orleans. The evaluation data and findings Law in New Orleans. (attyalisonmccrary@gmail. recognizes a breakdown in relationship as from the program offer a model to other com; 4030 Delgado Dr., New Orleans, LA 70119) the source of the conflict and seeks, first cities where the lack of public trust in the and foremost, to repair that relationship.

194 October / November 2015 YOURYOURYOUR ADVOCATE. ADVOCATE. ADVOCATE. YOURYOURYOUR PARTNER. PARTNER. PARTNER. YOURYOURYOUR LSBA LSBA LSBA COMMITTEE. COMMITTEE. COMMITTEE.

The LegalThe Malpractice LegalThe Malpractice Legal Insurance Malpractice Insurance Committee Insurance Committee Committee Your LSBAYour Committee LSBAYour Committee LSBA serves Committee youserves by ensuring:you serves by ensuring: you by ensuring: of the Louisianaof the Louisiana ofState the BarLouisiana State Association Bar State Association holdsBar Association the holds the holds the endorsedendorsed malpracticeendorsed malpractice insurance malpractice insurance carrier insurance tocarrier a high to carrier a high to •a Ahigh strong • A policystrong• offering Apolicy strong offeringessential policy essentialoffering coverages. essential coverages. coverages. standardstandard of accountabilitystandard of accountability offor accountability the benefitfor the benefit offor all the its benefitof all its of all its members.members.members. • An opportunity• An opportunity •for An coverage opportunity for coverage for forthe coverage majorityfor the majority offor the ofmajority of LouisianaLouisiana attorneys.Louisiana attorneys. attorneys.

• Continuous• Continuous oversight• Continuous oversight to ensure oversight to adequateensure to adequate ensure and fair adequate and fair and fair premiumpremium rates forpremium rates a stable for rates a program. stable for program.a stable program.

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Louisiana Bar Journal Vol. 63, No. 3 195 Mediation and Religion: General Attitudes of Three Major Religions in the United States

By Aaron T. Hubbard

n a world where most in- probability that any given party to media- functioning as a go-between or intermedi- habitants belong to one reli- tion will have some religious affiliation. ary between two people or parties, in order According to a 2013 publication by the Pew to initiate a relationship, promote mutual gious faith or another — and Research Center, “many religious groups understanding or activity, or effect recon- where, unfortunately, various encourage members who are accused of ciliation after a dispute.”8 Mediation also is religious texts are used to justify (non-criminal) moral wrongdoing or who defined as the “achieving of fellowship and I 9 both global and personal conflict are involved in a financial dispute . . . to reconciliation between separated parties.” engage in mediation in an effort to come Mediation is acknowledged to be useful in — it is important to bring to light to a voluntary agreement.”5 both “innocent circumstances and when what these texts instruct on how to Religious values and beliefs have been people are at odds with one another.”10 live in peace with others. identified as some of the interests that can Peacemaker Ministries identifies media- motivate a party to settle or create a barrier tion as a process for “the local church, not In 2014, the Pew Forum on Religion & for settlement.6 Therefore, it is important to a task reserved for professional mediators Public Life surveyed adults in the United understand the attitudes that the three reli- or lawyers.”11 Peacemaker Ministries also States; the findings (published in 2015) gions listed above have toward mediation. states the purpose of mediation is to do indicated that, about 76.5 percent of adults more than “try to resolve surface issues,” self-identify as affiliated with an organized Christianity but rather to “seek genuine reconciliation religion, and about 22.8 percent of adults with others.”12 self-identify as unaffiliated.1 Nationally, The Christian faith has a history of The Christian approach to mediation is three of the most prevalent religions are encouraging its adherents to settle mat- primarily drawn from three biblical pas- Christianity (70.6 percent), Judaism (1.7 ters through means other than litigation. sages — Matthew 5:9, Matthew 18:15-17 percent) and Islam (0.9 percent).2 In Louisi- The primary text of the Christian faith is and 1 Corinthians 6:1-7. ana, about 87 percent of adults self-identify the Bible. The Bible has several verses in Matthew 5:9 states: “Blessed are the as affiliated with an organized religion, and both the Old Testament and the New Testa- peacemakers, for they shall be called about 13 percent of adults self-identify as ment that encourage or model mediation. sons of God.”13 This passage encourages unaffiliated.3 In Louisiana, three of the These passages “promote reconciliation Christians to seek to create peace and most prevalent religions are Christianity 7 and forgiveness for everyone involved.” reconciliation. (85 percent), Judaism (0.5 percent) and Christianity understands the purpose of Matthew 18:15-17 states: “Moreover if Islam (1 percent).4 This means that, both mediation and mediator as “the activity your brother sins against you, go and tell nationwide and in Louisiana, there is a high and person performing it [mediation] of him his fault between you and him alone.

196 October / November 2015 If he hears you, you have gained your community.19 belief that Allah is watching over every- brother. But if he will not hear, take with The desire for peace is a central theme thing,” common sense, introspection, and you one or two more, that ‘by the mouth and flows through every level of Juda- the independence of the parties.32 of two or three witnesses every word may ism.20 This leads to principles that encour- be established.’ And if he refuses to hear age peaceful debate and compromise.21 Application them, tell it to the church. But if he refuses There is also a strong belief that any to hear the church, let him be to you like judgment imposed by a third party would In the modern world, religion is often a heathen and a tax collector.”14 It is the only continue the conflict, and that the seen as a point of division, but, through second sentence of this passage that speaks parties through compromise, mediation mediation, the commonalities of religious to mediation. This passage encourages and eventual reconciliation can find true beliefs can be a way to bring parties to- parties who cannot resolve the dispute resolution of the issue.22 Compromise and gether. All of the above religions embrace between themselves to seek a third party mediation are considered preferable to a the belief that one should live peaceably (or parties) to help them find a resolution. ruling imposed by a third party because the with his/her neighbor, that conflicts should This becomes even more important compromise reached through mediation be resolved between the parties if possible, when read alongside 1 Corinthians 6:1-7, serves both “righteousness and justice.”23 and that resorting to the legal system is which states: “Dare any of you, having a Compromise is also seen as ensuring that the last resort if an agreement cannot be matter against another, go to law before the there is as little community upheaval as reached. The use of religious principles unrighteous, and not before the saints? . . . possible.24 This leads to the conclusion in mediation should constitute one of the I say this to your shame. Is it so, that there that mediation is encouraged when two mediator’s tools, but the use of religious is not a wise man among you, not even Jews are in conflict, but also when a Jew principles cannot replace the process of one, who will be able to judge between his and a non-Jew are in conflict. However, mediation. brethren? But brother goes to law against the Jewish tradition does exclude the According to authors Jacob Bercovitch brother, and that before unbelievers! Now possibility of mediation “when dealing and S. Ayse Kadayifci-Orellana, “[u]se therefore, it is already an utter failure for with external enemies whose behavior is of religious objects and involvement of you that you go to law against one another. irreparably immoral and whose hostility faith-based actors in mediation is not a new Why do you not rather accept wrong? Why is uncompromising.”25 development.”33 They said, “A religious do you not rather let yourselves be cheated? dimension . . . opens a window or a door . . . .”15 This passage encourages believ- Islam of opportunity that brings the parties closer ers to avoid taking matters between other to each other. Ultimately, addressing the believers to court, but rather to attempt to The Islamic tradition is supportive of legitimate needs of the parties and resolving settle things themselves. mediation as an alternative to litigation.26 the issues fairly and satisfactorily is sine When all three of these passages are This tradition springs from the Qur’an, qua non for any successful mediation ef- read together, they create a strong basis the Sunna, the Ijma and the Qiyas.27 These fort.”34 Restating the same concept, they for Christians to attempt to solve disputes sources encourage “peaceful conflict said that “[u]sing religious symbolism in through mediation. This principle of en- settlement: within the Islamic commu- the course of mediation can open a win- couraging mediation applies in disputes nity; between Islamic and non-Islamic dow to the deeper emotional and spiritual between two Christians, a Christian and communities; and between two or more realities of those involved in conflict.”35 a non-Christian, or two non-Christians (if non-Muslim communities.”28 The Qur’an According to author F. Matthews-Giba, the third party is a Christian). has several verses addressing mediation “an appeal to religious and transcendent principles.29 Mediation within Islam fo- values [can] provide the motivation to Judaism cuses on “restoring harmony and solidarity settle a dispute.”36 and restoring the dignity and prestige of Donal O’Reardon addresses the issue Judaism strongly encourages parties to individuals and groups.”30 According to of religion in mediation using four rules — settle their disputes through mediation.16 author Abdul Azees Sirajudeen, Muslims “Separate Doctrine from Interpretation,” Both “Jewish law, and rabbinical literature have a duty to society to resolve disputes, “Separate Christ from Caesar,” “Religious . . . praise . . . parties who are able to settle even if that resolution is slightly harmful to Positions Can’t be Mediated, Positions their disputes rather than engage in litiga- the individual.31 The following principles from Religion Can” and “Don’t Fear the tion.”17 Judaism draws upon the biblical play an important role in the Islamic view Reaper.”37 text, the Talmud, various other texts and of mediation — fairness, “collaborative O’Reardon’s first rule is to focus on numerous commentaries when address- problem solving,” attempting to create the “interpretation and application” of a ing conflicts.18 These sources focus “on win-win situations, looking to the future, particular doctrine instead of addressing the compromise in the context of monetary respect for others, avoiding assigning validity of the doctrine.38 “The key point disputes,” cautious action, and “accept[ing] blame for past issues, acknowledging that here is that belief and action are distinct and compromise in order to prevent conflict an individual’s feelings of anger allows that that the religious believer almost always and preserve the peace and welfare of the individual to move past his/her anger, “the understands the difference between the

Louisiana Bar Journal Vol. 63, No. 3 197 private doctrinal formulation and the public ment by appealing to their core values and Mediation in the Jewish Tradition,” 12 Jew- behavioral expression of that belief,” he and beliefs. However, this tool must be ish Political Studies Review 3, 3 (2000), available 39 at: http://jcpa.org/wp-content/uploads/2000/10/ said. He also said, “It is the mediator’s used with caution due to the possibil- conflict-prevention.pdf. task to remind the religious believer that, ity of creating an unnecessary point of 19. Id. if they think the only expression of their contention instead of creating a point of 20. Id. at 4. faith is practical and not theoretical, then agreement. Appealing to religious beliefs 21. Id. at 5. 22. Id. at 6. such practicality is necessarily fractured, in a mediation involving liability cases 23. Id. at 7. imperfect or, at least, partial.”40 with lawyers and insurance adjusters may 24. Id. at 7-8. O’Reardon’s second rule explores the not be positively received by the parties. 25. Id. at 9. fact that all religions take place in real- The use of religious beliefs in mediation 26. Caryn L. Wolfe, “Faith-Based Arbitra- 41 tion: Friend or Foe? An Evaluation of Religious ity. Explaining this principle, he said, seems most appropriate when dealing Arbitration Systems and Their Interaction with “The main point is that all actions which with individuals who either enter into Secular Courts,” 75 Fordham L. Rev. 427, 440 proceed from religious convictions have the mediation understanding that those (2006), available at: http://ir.lawnet.fordham.edu/ to take place in an imperfect world. In beliefs may be discussed or who bring up flr/vol75/iss1/11. 27. Abdul Azees Sirajudeen, Concept of Me- addition, these actions are themselves religion on their own during the course diation in Islamic Jurisprudence 6, available at: interpretations. That is, they flow from a of the mediation. Mediators must tread www.academia.edu/3048074/Mediation_in_Is- particular understanding of the religious carefully in introducing religious beliefs. lamic_Jurisprudence. teaching.”42 He added that the very selec- Where appropriate, those beliefs can be 28. Id. at 2. 29. Id. at 9. tion of mediation to attempt to settle the a powerful tool for mediators to assist 30. Id. at 2-3. dispute signals that the parties “recognize parties in reaching a resolution. 31. Id. at 6-7. the value of a process premised on [‘au- 32. Khalid Iqbal, Rahmaa Institute, Islamic tonomy and self-determination’] . . . And Mediation, available at: www.rahmaa.org/domes- FOOTNOTES tic-violence/islamic-mediation/. it is in this very recognition that there are 33. Jacob Bercovitch and S. Ayse Kadayifci- grounds for conflict resolution.”43 1. Pew Forum on Religion & Public Life, Amer- Orellana, “Religion and Mediation: The Role of The concept behind O’Reardon’s ica’s Changing Religious Landscape 4 (2015), Faith-Based Actors in International Conflict Reso- third rule is that the religious beliefs of available at: www.pewforum.org/files/2015/05/ lution,” 14 International Negotiation 175, 183 RLS-08-26-full-report.pdf. (2009). an individual are not being mediated, but 2. Id. 34. Id. at 196. rather the application of those beliefs to the 3. Id. at 146. 35. Id. at 197. current situation. “It is not the mediator’s 4. Id.; Pew Forum on Religion & Public Life, 36. F. Matthews-Giba, “Religious Dimensions role to address the theological content of U.S. Religious Landscape Survey 100 (2008), of Mediation,” 27 Fordham Urb. L.J. 1695, 1700 available at: http://religions.pewforum.org/pdf/ (1999). the believer’s faith and that we are talking report-religious-landscape-study-full.pdf. 37. Donal O’Reardon, “Can Religious Differ- here about the actions that follow from 5. David Masci and Elizabeth Lawton, Pew ences Be Mediated?” (2010), available at: www. that content,” he said.44 He added, “It is Research Center, Applying God’s Law: Religious mediate.com/articles/oReardonD2.cfm. beyond the remit of (mediators) to explore Courts and Mediation in the U.S. (2013), avail- 38. Id. able at: www.pewforum.org/2013/04/08/applying- 39. Id. the cognitive and intellectual content of a gods-law-religious-courts-and-mediation-in-the- 40. Id. faith statement; it is not, however, beyond us/. 41. Id. their remit when the interpretative method 6. Douglas N. Frenkel and James H. Stark, The 42. Id. used by the believer to relate to that faith Practice of Mediation 35-36, 59 (Vicki Been et al. 43. Id. eds., 1st ed. 2008). 44. Id. statement is then deployed in another 7. Masci and Lawton, supra. 45. Id. context.”45 8. Paul J. Achtemeier, Harper & Row and So- 46. Id. O’Reardon’s final rule focuses on not ciety of Biblical Literature, “mediation, mediator” fearing the role religion can play in media- in Harper’s Bible Dictionary (1985). Aaron T. Hubbard is a 9. Martin H. Manser, “mediation” in Diction- third-year law student at tion. He said: “Religious worldviews are ary of Bible Themes, The Accessible and Compre- Louisiana State University part of the family of human experience hensive Tool for Topical Studies (2009). Paul M. Hebert Law Cen- and expression. Ignoring them does them 10. Walter A. Elwell, “mediator, mediation” ter and a former student of an injustice. But it is an injustice as well in Evangelical Dictionary of Bible Theology in the Civil Mediation Clinic Baker Reference Library (1996). (spring 2015). He has ex- to those of us in the field of dispute reso- 11. Peacemaker Ministries, “What Makes terned at Freedom Guard, lution and it denies us the experience of Peacemaker Ministries Distinctive?” (2003), Inc. and the Louisiana 1st engaging in dispute resolution that speaks available at: www.peacemaker.net/site/c. Circuit Court of Appeal. to people at the level of their fundamental aqKFLTOBIpH/b.958133/k.852A/About_Peace- A native of Bossier City, maker_Ministries.htm. 46 he received his BA degree in history and pre-law beliefs and values.” 12. Id. in 2013 from Louisiana College in Pineville. He 13. Matthew 5:9 (New King James). wrote this article under the supervision of Paul 14. Matthew 18:15-17 (New King James). W. Breaux, LSU adjunct clinical professor and Conclusion 15. 1 Corinthians 6:1-7 (New King James). immediate past chair of the Louisiana State Bar 16. Masci and Lawton, supra. Association’s Alternative Dispute Resolution Sec- Religion can be another tool media- 17. Id. tion. ([email protected],edu; 215 Burrington Dr., tors use to help people reach an agree- 18. Gerald M. Steinberg, “Conflict Prevention Bossier City, LA 71112)

198 October / November 2015 15th Annual Class Action/ Complex Litigation Symposium

Co-Sponsored by the LSBA’s Insurance, Tort, Workers’ Comp & Admiralty Section omplex litigation presents high stake challenges for litigants along with an opportunity for creative Friday, November 13, 2015 Cthinking. RICHARD J. ARSENAULT, Hyatt French Quarter Hotel seminar chair, brings together power 800 Iberville St., New Orleans hitters from around the country and esteemed members of the judiciary, to explore critical developments and trends. Topics include the Volkswagen debacle, Daubert, Qui Tam, scientific intersection with law, and a discussion on whether spoliation is a game changer in MDLs. One dynamic panel will explore current MDL trends and the perspective from the transferee courts. Join MARK GERAGOS & MARK LANIER for lunch and a keynote presentation on “Managing Media Mania.” PLUS you’ll earn the required Ethics hour. This is a program you don’t want to miss!! Registration Fees*, Cancellations and Refunds Section Members...... $295 / $320 after Nov. 6 Non-Section Members...... $320 / $345 after Nov. 6 *Registration fee includes electronic course materials, seminar attendance and coffee/refreshment breaks.

MARK J. GERAGOS, is an internationally known trial THOMAS C. GALLIGAN, JR. is the president of Colby- lawyer and the only lawyer besides Johnnie Cochran Sawyer College. He previously served as dean and ever named “Lawyer of the Year” in both Criminal and professor of law at the University of Tennessee College of Civil arenas. Mark Geragos has represented some of Law in Knoxville, Tenn. From 1986 until May 1998, Presi- the most prominent figures in the world including former dent Galligan taught at the Paul M. Hebert Law Center Congressman Gary Condit, Roger Clinton, Winona Ry- at Louisiana State University (LSU). His scholarship has der, Michael Jackson, Nicole Ritchie, Chris Brown, and been cited in the proposed Restatement (Third) of Torts, Sean “Diddy” Combs (aka Puff Daddy), just to name a and by many courts. He has also testified on admiralty few. He has regularly appeared as both guest and legal and maritime tort issues before committees of the U.S. commentator on the “Today Show,” “Good Morning House and Senate. Mark Geragos America,” “Dateline NBC,” “Larry King Live,” “Greta Van Thomas C. Galligan, Jr. Geragos & Geragos Susteren’s On the Record,” “60 minutes,” and “48 hours.” Colby-Sawyer College currently serves as Lead Coun- New London, NH Richard Arsenault Los Angeles, CA sel in the Actos MDL where after a three month trial, the Mark Lanier: The National Law Journal has repeat- jury rendered a historic $9 billion dollar verdict. He has edly selected him as one of the nation’s Top 10 Trial been involved in over 25 Multidistrict litigation proceed- Lawyers and one of Decade’s Most Influential Lawyers. ings, often serving in leadership capacities. The New York His ability to process and then communicate complex Times has referred to him as one of the “big players” in the facts is astonishing. His capacity to focus is unparalleled. Featuring legal community. The Wall Street Journal described him Superimpose these unique skill sets on laser beam at- as having “national notoriety” and as a “big gun” amongst tention to detail and his string of record setting verdicts attorneys in competition for leadership roles. Business (including one last year in excess of $9 billion dollars) Week described him as “a dean of the Louisiana tort bar:, come as no surprise. He won the first Vioxx verdict ($253 USA Today featured him as a member of the “Legal Elite” million dollars) which is the subject of the book “All the and the New Orleans Times Picayune has referred to Justice Money Can Buy.” His trials have been carried on him as “an authority on class actions.” He has served as Mark Lanier Richard J. Arsenault Court TV and have been the subject of books highlighting Neblett, Beard & Arsenault The Lanier Law Firm a faculty member for LSU’s Trial Advocacy Program and Alexandria, LA Houston, TX his extraordinary communication techniques. lectured at Judicial Colleges. Register Online at www.lsba.org/cleLouisiana Bar Journal Vol. 63, No. 3 199 Association Actions Meeting... tech center... specialization

House Resolution Notice: CLE Compliance for Deadline is Dec. 9 for 2016 Midyear Meeting Board-Certified Specialists

The Louisiana State Bar Association’s In accordance with the requirements of Supreme Court Committee on Mandatory (LSBA) Midyear Meeting is scheduled the Louisiana Board of Legal Specializa- Continuing Legal Education (MCLE) no for Thursday through Saturday, Jan. 14- tion (LBLS), as set forth in the individual later than Jan. 31, 2016. Failure to earn 16, 2016, at the JW Marriott Hotel in Specialty Standards for each field of legal and/or timely report specialization CLE New Orleans. The deadline for submitting specialization, board-certified attorneys in hours will result in a penalty assessment. resolutions for the House of Delegates a specific field of law must meet a minimum Preliminary specialization transcripts meeting is Wednesday, Dec. 9. (The House CLE requirement for the calendar year will be mailed in November to all special- will meet on Jan. 16, 2016.) ending Dec. 31, 2015. ists who are delinquent in their specializa- Resolutions by House members and The requirement for each area of spe- tion CLE hours. The specialization CLE committee and section chairs should be cialty is as follows: requirement must be satisfied by Dec. mailed to LSBA Secretary Alainna R. Mire, ► Estate Planning and Administration 31, 2015. c/o Louisiana Bar Center, 601 St. Charles Law — 18 hours of estate planning law. If you have questions, contact LBLS Ave., New Orleans, LA 70130-3404. All ► Family Law — 18 hours of family law. Executive Director Barbara M. Shafran- resolutions proposed to be considered at ► Tax Law — 20 hours of tax law. ski at (504)619-0128 or email barbara. the meeting must be received on or before ► Bankruptcy Law — CLE is regulated [email protected]. Dec. 9. Resolutions must be signed by by the American Board of Certification. For more information or to obtain a the author. Also, copies of all resolutions CLE credits will be computed on a cal- copy of specialization transcripts, go to should be emailed (in MS Word format) to endar-year basis and all attendance infor- the LBLS’s website at: www.lascmcle.org/ LSBA Executive Assistant Mindi Hunter mation must be delivered to the Louisiana specialization. at [email protected]. LSBA Honors Deceased Members of the Bench and Bar The Louisiana State Bar Association ory of those members of the Bench and The invocation was given by Rev. (LSBA) conducted its annual Memorial Bar who have passed away during the Lawrence W. Moore, S.J., interim Exercises before the Louisiana Supreme last 12 months. dean and ex officio Philip and Eugenie Court on Oct. 5, honoring members of the LSBA President-Elect Darrel J. Brooks Distinguished Professor of Law Bench and Bar who died in the past year. Papillion of Baton Rouge read the at Loyola University College of Law. The exercises followed the 63rd annual names of all deceased members being The benediction was given by East Ba- Red Mass held earlier that morning at recognized. ton Rouge Parish District Attorney Hil- St. Louis Cathedral in New Orleans. The LSBA Board of Governors member lar C. Moore III. Red Mass was sponsored by the Catholic Patrick A. Talley, Jr., with the New Or- Following the exercises, the Su- Bishops of Louisiana and the St. Thomas leans office of Phelps Dunbar, L.L.P., preme Court was adjourned in memory More Catholic Lawyers Association. gave the general eulogy. (The eulogy of the deceased members of the Bench LSBA President Mark A. Cunning- begins on page 202.) and Bar. ham of New Orleans opened the memo- Hon. Bernette Joshua Johnson, chief The members recognized included: rial exercises, requesting that the court justice of the Louisiana Supreme Court, dedicate this day to the honor and mem- gave the closing remarks. Continued next page

200 October / November 2015 Bobby L. Culpepper Frederick S. Haygood Albert Mintz David A. Rothell In Memoriam Jonesboro, LA Baton Rouge, LA New Orleans, LA Natchitoches, LA Members of the Judiciary 2014-15 August 15, 2015 September 17, 2014 August 12, 2015 September 6, 2014 Ralph L. Cunningham, Jr. Paul M. Haygood Nadia St. Paul Moise John F. Rowley Hon. Bryant W. Conway Hon. James R. McClelland Baton Rouge, LA New Orleans, LA New Orleans, LA Chalmette, LA Glenmora, LA Franklin, LA August 4, 2015 June 13, 2015 August 6, 2015 November 5, 2014 March 16, 2015 March 15, 2015 Joseph C. Dabadie, Jr. C. Ellis Henican, Jr. Philip F. Monte, Jr. Edward H. Saer, Jr. Hon. Thomas F. Daley Hon. E. Rudolph Baton Rouge, LA New Orleans, LA Brookhaven, GA Covington, LA Laplace, LA McIntyre, Sr. June 9, 2015 July 6, 2015 July 19, 2015 June 16, 2015 January 31, 2015 Winnsboro, LA James R. Dagate E. Bradford Holbrook, Jr. L. Linton Morgan William Joseph Salvaggio November 26, 2014 Hon. Brent Dufreche Houma, LA Oakton, VA Covington, LA Metairie, LA March 20, 2015 Pontchatoula, LA Hon. Abel J. McNamara January 2, 2015 January 5, 2015 May 29, 2015 Sepember 1, 2015 Metairie, LA Benjamin F. Davis Stephen J. Hornyak Thomas Hadden Morrow P. Lynwood Sanders December 2, 2014 Metairie, LA Gretna, LA Lafayette, LA Orange, TX Hon. Richard H. Gauthier January 1, 2015 April 28, 2015 January 28, 2015 December 12, 2014 Chalmette, LA Hon. James R. Mitchell Robert Henry Sarpy, Jr. July 26, 2015 Leesville, LA Ben Louis Day James Fleet Howell Michael A. Mule New Orleans, LA July 24, 2015 Baton Rouge, LA Shreveport, LA Sugar Land, TX July 21, 2015 Hon. Charles Grisbaum, Jr. July 4, 2015 December 18, 2014 March 17, 2015 Hon. Charles B. Peatross Gretna, LA Stephanie Wall Shreveport, LA September 6, 2014 Paul N. DeBaillon Rickey R. Hudson William G. Nader Schexnayder January 28, 2015 Lafayette, LA Monroe, LA Shreveport, LA Hon. T. Barrett Harrington Gonzales, LA December 20, 2014 September 4, 2014 October 4, 2014 February 15, 2015 Crowley, LA Hon. John Ludger Peytavin April 10, 2015 Lutcher, LA Gregory A. Dupuy Joseph H. Hurndon George O’Dowd Phillip D. J. Simon February 3, 2015 New Orleans, LA Metairie, LA New Orleans, LA Lafayette, LA Hon. Guy M. Huard June 24, 2015 March 11, 2015 April 28, 2015 February 21, 2015 Mandeville, LA Hon. Charles R. Scott II J. Michael Early Leslie L. Inman May 30, 2015 Shreveport, LA Joseph B. Olinde Charles B. Sklar April 22, 2015 New Orleans, LA New Orleans, LA Baton Rouge, LA Pisgah Forest, NC Hon. A. Clayton James, Jr. August 26, 2015 July 18, 2015 April 7, 2015 February 27, 2015 Franklinton, LA Hon. Tom Stagg Shreveport, LA Robert J. Elliott Charles L. Kincade C. Michael Osborne Allen L. Smith, Jr. December 27, 2014 Alexandria, LA June 23, 2015 Monroe, LA New Orleans, LA Lake Charles, LA Hon. Yada T. Magee July 18, 2015 October 18, 2014 February 2, 2015 January 11, 2015 New Orleans, LA Marshall Joseph Favret Paul R. Knight Jack Peebles Irvin S. Smith May 24, 2015 New Orleans, LA Baton Rouge, LA Metairie, LA New Orleans, LA November 28, 2014 October 9, 2014 May 13, 2015 January 29, 2015 In Memoriam Anthony J. Fazzio John Wilfred Landry, Jr. Curtis N. Petrey Walter J. Suthon III Members of the Bar 2014-15 Lake Charles, LA Crowley, LA Shreveport, LA New Orleans, LA February 17, 2015 January 6, 2015 January 8, 2015 December 27, 2014 David J. Alexander Leo L. Brassett Houston, TX Baton Rouge, LA Nathan S. Fisher Ronald Davis Law Peter C. Piccione, Sr. G. Warren Thornell December 14, 2014 March 31, 2015 Baton Rouge, LA Dallas, TX New Orleans, LA Shreveport, LA January 15, 2015 March 4, 2015 April 12, 2015 April 14, 2015 Jerald N. Andry John A. Broadwell Robert K. Tracy New Orleans, LA Bossier City, LA Wayne W. Foley David A. LeClere James L. Piker New Iberia, LA November 9, 2014 September 2, 2015 New Orleans, LA Baton Rouge, LA Slaughter, LA January 13, 2015 May 9, 2015 July 29, 2015 December 28, 2014 L. Michael Ashbrook Frank S. Bruno Kenneth Mark Trahan John Leonard Fontenot, Jr. Shelley V. Poole Monroe, LA New Orleans, LA Janis Wilhelmina Lemle West Monroe, LA New Orleans, LA Austin, TX January 30, 2015 November 23, 2014 New Orleans, LA May 1, 2015 February 10, 2015 April 6, 2015 September 23, 2014 William B. Baggett, Sr. George E. Burgess, Jr. Michael J. Vallette Ruth M. Force Lake Charles, LA Lacombe, LA Ronald C. Levy Jan Andrew Press Ocean Springs, MS New Orleans, LA May 20, 2015 October 12, 2014 Slidell, LA Palm Harbor, FL February 6, 2015 July 13, 2015 December 9, 2014 June 22, 2015 John E. Bailey Peter G. Burke William R. Veal Houston, TX New Orleans, LA Lawrence J. Fritz James P. MacManus J. William Pucheu Las Vegas, NV January 5, 2015 September 17, 2014 Kenner, LA Lafayette, LA Ville Platte, LA March 6, 2015 August 20, 2015 August 29, 2015 June 15, 2015 Garic K. Barranger James D. Caldwell Jamie F. Veverica Covington, LA Shreveport, LA James B. Gardner Ronald C. Martin Claude R. Putnam Diamondhead, MS April 15, 2015 August 7, 2015 Shreveport, LA Natchitoches, LA Abbeville, LA February 9, 2015 August 30, 2015 March 31, 2015 February 25, 2015 Eugene Barriffe, Jr. Joaquin Campoy Gerald L. Walter, Jr. Ocean Springs, MS Metairie, LA W. Gerald Gaudet Paul A. May Rene Laurent Randon Baton Rouge, LA November 28, 2014 November 3, 2014 Lafayette, LA Baton Rouge, LA Metairie, LA January 14, 2015 November 18, 2014 April 9, 2015 December 21, 2014 Harry E. Barsh, Jr. Salvador J. Cangemi Charles K. Watts Louisville, KY New Orleans, LA R. Keith Gee Edmund McCollam Edward A. Rauscher Baton Rouge, LA June 17, 2015 October 4, 2014 Metairie, LA Houma, LA Seattle, WA April 8, 2015 April 4, 2015 September 5, 2014 August 13, 2015 Emmett Edward Batson Charles W. Chappuis Dennis R. Whalen Baton Rouge, LA Rayne, LA Susan Anderson Halsey Jordan Guzzino McFaull Jack Warner Riffle Baton Rouge, LA March 20, 2015 October 8, 2014 Fort Worth, TX New Orleans, LA Baton Rouge, LA June 4, 2015 December 19, 2014 August 10, 2015 June 4, 2015 William E. Baugh, Jr. David M. Chretien Nathan E. Wilson Savannah, GA Arnaudville, LA Richard Leo Harrell Charles E. McHale, Jr. David Lee Roberson II Baton Rouge, LA January 17, 2015 June 17, 2015 Portland, TX New Orleans, LA Norfolk, VA August 31, 2015 March 3, 2015 May 18, 2015 March 22, 2015 Fallon Wigginton Bentz Joseph W. Cole, Jr. Jack B. Wise Metairie, LA Port Allen, LA Overton T. Harrington, Jr. Beryl M. McSmith Sylvia Roberts Thibodaux, LA November 21, 2014 October 8, 2014 Gretna, LA Slidell, LA Baton Rouge, LA November 27, 2014 July 23, 2015 February 22, 2015 December 29, 2014 Beverly J. Zervigon Bernard Harris Berins Donald A. Cox, Jr. Austin, TX New Orleans, LA Nashville, TN H. Gordon Hartman Ben R. Miller, Jr. Charles Rosen II April 22, 2015 October 29, 2014 August 21, 2015 Metairie, LA Baton Rouge, LA Metairie, LA November 14, 2014 December 2, 2014 July 20, 2015

Louisiana Bar Journal Vol. 63, No. 3 201 General Eulogy: LSBA Memorial Exercises 2015 By Patrick A. Talley, Jr.

amilies and friends of our of them even more meaningful. the practice of law is all about — helping departed colleagues, Madam Different people have different ways others to do what they cannot do alone. Chief Justice, Associate Jus- to memorialize and remember those who Our deceased brothers and sisters of the tices, Judges, the distinguished have preceded us. Some build monuments bench and Bar whom we remember today FPresident of the Louisiana State Bar As- of stone or statuary; some erect shrines; did the same, dedicating their professional sociation, my fellow members of the Bar, some keep the shrines in their hearts. In lives to this “helping profession.” And so Ladies and Gentlemen: ancient times, the Pharaohs built their today, when we remember our deceased We have come together today from own memorials. However, pyramids and colleagues, we remember with quiet satis- different places, and we are all at different tombs, for all their awesome grandeur, are faction that they were practitioners of the stages in our journey through life. Our merely impersonal structures. But every highest order of this “helping profession,” paths are varied and we look at life in human being leaves another memorial of the practice of law. different ways. But there is one thing we his or her own building. It is the impact It has been said that “the law is but have in common, and that is we have been of one’s life on those lives that remain words and paper without the hands and touched by those whom we honor today. and follow. swords of men.” And so it is, that but for And so this morning, we put aside And so, we gather here today to renew the hands and swords of men and women our usual daily activities for a while and the memory of the impact on our lives by like our deceased colleagues who we gather here to remember our colleagues our colleagues of the Bar whose journey are honoring today, the law would truly of the Louisiana Bar who died during through life preceded ours. We are re- be meaningless. In remembering them, the past year. We are here today so that minded of what that journey left behind. we are proud that they used their talents in our own way we can celebrate, honor We are here today to honor our beloved and abilities to make the law more than and pay tribute to the lives of these great family members, friends and colleagues mere words and paper. Our deceased men and women of the Louisiana Bar, who spent their lives in distinguished legal colleagues have built a current of honor and, in so doing, we express our love and careers and have served their fellow man and dignity that our legal profession right- admiration for them. as judges and lawyers. fully deserves and we are proud to have “Memory,” said Cicero, “is the treasury Judge Jay Zainey, one of our distin- known and to have been related to such and guardian of all things.” “Praising what guished members of the Bar and past distinguished people. is lost,” said Shakespeare, “makes the President of the Louisiana State Bar So, as we remember our brothers and remembrance dear.” We come here today Association, aptly described the legal sisters of the bench and Bar who have died in that spirit, gathered here to treasure profession in a eulogy several years ago. this year, let us strive, like them, to be the and praise those distinguished members He said, “Ours is a helping profession. We hands and the swords of the law. Let us of the Louisiana Bar who have been lost lawyers are blessed with the ability to help strive, like them, to live our profession to to us, and thereby to make the memory our fellow man.” This, I think, is what the fullest, to use our talents and abilities

Several speakers participated in the Memorial Exercises on October 5, 2015. Photos by LSBA staff.

202 October / November 2015 to better our society and enrich the lives remembrance dear.” The departed never today, look around. It is in your faces and and minds of those whom we touch. In this wholly leave us. We never wholly leave in your hearts. way, the mission of our deceased brothers each other. And we remember. In conclusion, I would like to para- and sisters will live on through us. These men and women whom we honor phrase from the funeral of a friend of But we have another purpose today. and remember today have gone home, mine who died recently. “God saw they We have not come here today solely leaving those of us with the memories were getting tired and the cure was not to seeking to reinforce our memories of they gave, the good they did and their be. So He put his arms around them and ones so well worth remembering. We contribution to the legal profession which whispered, ‘Come with Me.’ With tear- came also to express our condolences to remain as their legacy. We hope that in ful hearts, we watched them fade away. their loved ones who survived them, to some way, by showing our own sense of Although we love them dearly, we could show those nearest and dearest to them loss and fond remembrance, we can help not make them stay. Golden hearts stopped that their deep sense of loss is shared. As further the sense of a life well lived, a time beating, hardworking hands to rest. God a community of lawyers, this is part of on earth well spent, a heritage of lasting broke our hearts to prove to us, He only what we do, and our duty to each other in meaning in the noble career of the law. takes the best.” this “helping profession,” for we are truly What distinguishes mankind following “Requiem aeternam dona eis Domine.” a legal community, not just a collection death is not the construction of monu- Grant to them, our dear departed fam- of individuals practicing law. ments nor the composition of epitaphs, but ily, friends and former colleagues of the Traditionally, the occasion of this Me- rather the privilege of memory. Memorials law, eternal rest, Lord, and let perpetual morial Service, following the annual Red can be found in many places and many light shine upon them. Mass, is a time when friends gather with times, but principally in our hearts. the bereaved to say, “You are not alone in The epitaph of Sir Christopher Wren Patrick A. Talley, Jr., this loss; you are not alone in remember- in St. Paul’s Cathedral in London, the a partner in the New Orleans office of Phelps ing; you are not alone in holding onto the cathedral he designed, reads,”Lector, si Dunbar, L.L.P., repre- memory of a good human being and in monumentum requiris circumspice,” in sents the First District recollecting the ways in which he made translation from the Latin, “If you would on the Louisiana State his mark.” As we come together and share seek his monument, look around you.” Bar Association’s Board of Governors. (patrick. that process of remembering, the remem- Let me paraphrase that here today. If you [email protected]; Ste. brance becomes clearer, stronger, better would seek a true monument to our col- 2000, 365 Canal St., New for us all. “Praising what is lost makes the leagues, the ones whom we memorialize Orleans, LA 70130-6534) LSBA Member Services The mission of the Louisiana State Bar Association (LSBA) is to assist and serve its members in the practice of law. The LSBA offers many worthwhile programs and services designed to complement your career, the legal profession and the community. In the past several years, the legal profession has experienced many changes. The LSBA has kept up with those changes by maturing in structure and stature and becoming more diverse and competitive. For more information, visit www.lsba.org

Louisiana Bar Journal Vol. 63, No. 3 203 Heads Up! LSBA Launching Online TECHCENTER in January

reparations are underway for the ► Accessing general tech training with to be a practical, comprehensive resource January 2016 launch of the Louisi- free, anywhere, anytime, on-the-spot videos for learning how to harness digital technol- ana State Bar Association’s (LSBA) and written materials. ogy,” he added. online TECHCENTER, a virtual ► Accessing detailed, lawyer-centric Ernest Svenson, the LSBA’s TECHCEN- Pcomprehensive resource just a click away on tech training through the Chicago Bar As- TER Task Force chair, agreed. “The modern the LSBA’s website. Accessible to all LSBA sociation’s online “How To” video library. lawyer faces the challenge of learning to members, from the tech savvy to the not-so- ► Registering for tech-related CLE and harness digital technology in the form of tech savvy, the TECHCENTER will become non-CLE programming and tech webinars. computers, tablets, smartphones and the the one-stop shop for legal technology news The TECHCENTER is an initiative of software that powers those devices. But there and guidance to improve the efficiency and LSBA President Mark A. Cunningham. are opportunities for lawyers who learn to productivity of law practices. “Technology is dramatically affecting streamline their practices by leveraging the Through the TECHCENTER, LSBA lawyers and the practice of law, and this automation power of digital technology,” members will be offered assistance in: powerful trend will continue for the foresee- Svenson said. “The TECHCENTER will be ► Choosing the right technology for law able future,” Cunningham said. “Lawyers an important resource for Louisiana lawyers practices via product directories, product in Louisiana who need help integrating who want to learn how to do that.” reviews by lawyers, video clips and podcasts technology into their practices can benefit by lawyers, articles and books. from the TECHCENTER, which promises La. Board of Legal Specialization Accepting Requests for Applications The Louisiana Board of Legal Spe- in a certain field of law. ► Family Law — 18 hours of family cialization (LBLS) is currently accepting In accordance with the Plan of Legal law. requests for applications for January 2017 Specialization, a Louisiana State Bar ► Tax Law — 20 hours of tax law. certification in five areas — bankruptcy law Association member in good standing ► Bankruptcy Law — CLE is regulated (business and consumer), estate planning who has been engaged in the practice of by the American Board of Certification, and administration, family law and tax law on a full-time basis for a minimum the testing agency. law. The deadline to submit applications of five years may apply for certification. Regarding applications for business for consideration for estate planning and Further requirements are that each year a bankruptcy law and consumer bankruptcy administration, family law and tax law minimum of 35 percent of the attorney’s law certification, although the written certification is March 31, 2016. Applica- practice must be devoted to the area of test(s) is administered by the American tions for business bankruptcy law and certification sought, passing a written Board of Certification, attorneys should consumer bankruptcy law certification examination applied uniformly to all appli- apply for approval of the Louisiana Board will be accepted through Sept. 30, 2016. cants to demonstrate sufficient knowledge, of Legal Specialization simultaneously With the expanding complexity of the skills and proficiency in the area for which with the testing agency in order to avoid law, specialization has become a means of certification is sought, and five favorable delay of board certification by the LBLS. improving competence in the legal profes- references. Peer review shall be used to Information concerning the American sion and thereby protecting the public. determine that an applicant has achieved Board of Certification will be provided An increasing number of attorneys are recognition as having a level of competence with the application form(s). choosing to be recognized as having special indicating proficient performance handling Applications are mailed. Anyone inter- knowledge and experience by becoming the usual matters in the specialty field. ested in applying for certification should certified specialists. As a matter of practical In addition to the above, applicants must contact LBLS Executive Director Barbara necessity, most lawyers specialize to some meet a minimum CLE requirement for the M. Shafranski, email barbara.shafranski@ degree by limiting the range of matters year in which application is made and the lsba.org, or call (504)619-0128. For more they handle. Legal specialization helps examination is administered: information, go to the LBLS website at: the general public locate a lawyer who ► Estate Planning and Administration www.lascmcle.org/specialization. has demonstrated ability and experience Law — 18 hours of estate planning law.

204 October / November 2015 PracManagementtice By Carol M. Rider Malpractice Policies: Technology

sing the cloud to store law firm if the lawyer was negligent while rendering the cause, source or extent of a data breach. records is increasingly popular, legal services. ► Crisis response, which may include but it is critical to understand the However, relying solely on a lawyer’s reimbursement for expenses incurred for a risks and your responsibilities. malpractice policy to pay damages in the wrongful act by the insured or exploitation ForU example, does your cloud provider event of an electronic breach would be risky of an insured’s network causing damage to agree to the same standard as you are held? since negligence may not be the cause, a the firm’s reputation. Accidental or intentional disclosure of confi- third party may not be damaged, and the ► Extortion demand reimbursement dential client information via your computer damages could exceed the aggregate limits coverage involving threats to attack the or your network is serious. Your malpractice of liability, especially if the breach involved insured’s network or to release protected policy covers ordinary negligence, but how several clients’ data. The cyber/network risk information unless money is paid. does the policy respond when there is an policies and endorsements offer additional ► Business interruption and extra ex- electronic breach involving confidential cli- coverage and may include: pense coverage that may include lost busi- ent data? Technology has forced malpractice ► Privacy and network security breach ness income resulting from an unauthorized carriers to clarify existing policy provisions, resulting from an attack of a network by a access or electronic infection of the firm’s and in particular when data in the cloud is virus, hacker, etc. causing privacy injury, network. involved. identity theft and/or damage to a network. ► Cost to recreate or restore data and An example of negligence is leaving a Physical theft of devices, such as desktop network to pre-loss conditions. briefcase at court or at a coffee shop with PCs, laptops, USB drives, etc., is a com- ► Electronic theft usually involves confidentialpaper files inside. The briefcase mon cause of privacy breaches. In addition the unauthorized access to a network, or is subsequently stolen, sensitive client infor- to theft of information, hacking can create destruction of or copying of information mation is taken, and the client suffers dam- other problems, such as theft of intellectual on a network. ages. Barring any exclusions, and subject to property, destruction of data and sabotage. ► Third-party vicarious liability cov- its terms and conditions, a typical lawyer’s Accidental disclosure of confidential infor- erage and assumed liability of insured if malpractice policy would cover the damages mation is not uncommon, especially when required by written contract. up to the policy limits as long as the lawyer equipment or media is not properly erased. If you are considering a cyber/network was negligent while rendering legal services Rogue employees and phishing tactics like- policy, remember that each is unique and at the time of the theft. wise contribute to breaches of confidential should be carefully reviewed to ensure it is Other examples of risks associated with information. the best fit for the firm and its clients. being the protector of confidential informa- ► Privacy regulatory expenses, which tion include: may include costs of responding to a regula- FOOTNOTE ► You accidentally produce privileged tory inquiry for alleged violation of a privacy documents in the course of discovery. law or security breach notification law. 1. www.ncsl.org/research/telecommunications- ► You accidentally email confidential ► Notification and credit monitoring and-information-technology/security-breach-notification-laws.aspx. communications to your opponent. costs that may cover expenses incurred in ► You reveal trial strategy during a notifying parties whose personal information Carol M. Rider is profes- conversation in a public place. was breached, and those costs to help them sional liability loss preven- ► You lose or damage original pieces monitor their credit in case it was compro- tion counsel for the Louisi- of evidence. mised. Most states have breach notification ana State Bar Association (LSBA) and is an employee ► You accidentally delete the operating laws that set specific protocol when there is of Gilsbar, Inc. in Covington, files on your client’s network. a breach involving personally identifiable La. She earned her JD de- ► Your clients’ Social Security numbers information.1 gree from Loyola University are hacked. ► Public relations expenses, which Law School in 1983. She has lectured on professional- ► You leave unshredded confidential may consist of costs in hiring a PR firm to ism and ethics as part of documents in a dumpster minimize economic damage from a breach Mandatory Continuing Extending the lost briefcase example to of privacy or security. Legal Education requirements for attorneys licensed a laptop whereby client data is stolen, your ► Data forensics that may include ex- to practice law in Louisiana. She also has published several articles for the Louisiana Bar Journal. She may policy should likewise cover the damages penses to retain a forensics firm to determine be emailed at [email protected].

Louisiana Bar Journal Vol. 63, No. 3 205 New York, New York A Multi-Topic CLE Seminar

e the toast of Broadway at the Millennium Broadway Hotel in New York City, located in the heart of Times Square with access to Broadway theaters, Fifth Avenue shopping, midtown business and Millennium Bfine dining. Revel in the Manhattan skyline from one of our guest rooms and suites. At the Millennium Broadway Hotel, everyone receives Broadway Hotel star treatment. CLE in the Historic Hudson Theatre Millennium Broadway is also home to New York City’s 1903 landmark November 21-23, 2015 Hudson Theatre, where all of the CLE sessions will be held. The Hudson Theatre enters its second century with new beauty and authenticity. Built Early registration is encouraged as by Henry B. Harris, a famous Broadway producer of that period who later space is limited. Upon receipt of died aboard the Titanic, the Hudson Theatre is one of New York City’s paid registration, we will forward a oldest Broadway showplaces. On September 27, 1956 the first nationwide confirmation packet, including more broadcast of The Tonight Show starring Steve Allen came from the Hudson detailed information on the hotel and Theatre. On this stage Allen hosted Ernie Kovacs, Milton Berle and Elvis area attractions. Presley along with many other notables.

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206 October / November 2015 www.lsba.org/cle lawyers New York, New York Assistance By J.E. (Buddy) Stockwell “In Recovery” from Alcoholism

hat does it mean to be “in Judges and Lawyers Assistance scales of the WHO-QOL instrument. recovery” from alcoholism? Program, Inc. (JLAP) Is being “sober” different The consensus panel noted that criteria 2 from being “in recovery” Your call is absolutely confidential and 3 are the components that extend sobriety as a matter of law. andW does any such difference impact long- (mere abstinence) into the broader concept term success rates? The experts say yes. Toll-free (866)354-9334 of “recovery” and that “personal health and Sarah A. Benton, MS, LMHC, LPC, Email: [email protected] citizenship are often achieved and sustained through peer support groups such as AA author of The High Functioning Alcoholic In 2007, the Betty Ford Institute recog- and practices consistent with the 12 steps (Preager Publishers, 2009), explains that nized the need for a more formal definition of and 12 traditions.” It is also important to when an alcoholic simply stops drinking “recovery” and commissioned a consensus underscore that recovery requires a voluntary without incorporating components such as panel to produce a report, “What is recovery? and willing commitment to recovery. Thus, treatment and mutual-help programs, the A working definition from the Betty Ford admitting the problem and surrendering to person may be simply “white knuckling” Institute.”2 The introduction of the report 1 help is required. his/her abstinence (aka, a “dry drunk”). frames the issue: “Individuals who are ‘in The Judges and Lawyers Assistance If the underlying issues that led to al- recovery’ know what it means to them and Program, Inc. (JLAP) effectively assists coholic drinking are left unaddressed, the how important it is in their life. They do not alcoholic lawyers, judges, family members, person will continue to suffer. According to need a formal definition. However,recovery law students and bar applicants in their Benton, that is why many “sober” alcoholics is not clear to the public, to those who request to establish stable recovery that will may not be currently drinking, but they have search and evaluate addiction treatments, and support successful, happy and productive developed unhealthy “transfer addictions” to those who make policies about addiction.” lives despite prior problems with alcoholism. (such as food, sex or shopping) to fill the A panel of 12 experts produced a three- If you or someone you know is trying void left when alcohol use was discontinued. part definition for “recovery” as follows: to “white knuckle” his/her way through an They may be sober, but their lives may be A voluntarily maintained lifestyle charac- alcohol problem, make a confidential call “exactly the same, leading them to be jealous terized by sobriety, personal health, and for help to JLAP at (985)778-0571 or email of others who are drinking or to struggle with citizenship. To be “in recovery,” the person [email protected] and learn more emotional or mental health issues,” she says. must voluntarily meet each of these criteria: An alcoholic “in recovery” is also sober about recovery. Your call is confidential and but he/she has taken additional steps, such as 1) Sobriety, meaning abstinence you do not have to give your name. treatment, support group participation and from alcohol and all other non- therapy, to address head-on the underlying prescribed drugs. Abstinence is FOOTNOTES emotional or mental health issues that fueled considered primary and the cardinal 1. See, https://www.psychologytoday.com/blog/ the alcohol dependency in the first place. feature of a recovery lifestyle. Early the-high-functioning-alcoholic/201005/being-sober- According to Benton, some individuals sobriety is one to 11 months; sustained versus-being-in-recovery. can swear off the use of alcohol permanently 2. Published by Elsevier, Inc. and Journal of Sub- sobriety, one to five years; and stable stance Abuse Treatment, 2007. without any cravings or obsessions and those sobriety, five years or more. 3. According to the World Health Organization, the people are likely problem or heavy drinkers 2) Personal health, meaning an WHO-QOL is a quality-of-life assessment, developed who may not have been alcoholics in the first improved quality of personal life as by the WHO-QOL Group with 15 international field place. But, for those suffering from alcohol centers, simultaneously, to achieve an assessment ap- defined and measured by validated plicable cross-culturally. www.who.int/mental_health/ dependency, “alcoholics may abstain for instruments such as physical health, publications/whoqol/en/. periods of time without help but in most psychological health, independence cases will inevitably return to their previous and spirituality scales of the World J.E. (Buddy) Stockwell is drinking patterns,” Benton says. the executive director of the Health Organization QOL instru- Judges and Lawyers Assis- 3 While being “in recovery” from alcohol- ment. tance Program, Inc. (JLAP) ism is clearly understood and guarded by 3) Citizenship, meaning living and can be reached at those who are in it, the general public does with regard and respect for those (866)354-9334 or via email at [email protected]. not have a clear view of what recovery is, around you as defined and measured partly because a standard definition has by validated instruments such as the Experience it again! been elusive. social function and environment

Louisiana Bar Journal Vol. 63, No. 3 207 FocusDiversity on Suit Up Program 2015

17 Students, Graduates Complete 2015 Suit Up Program eventeen New Orleans area high school juniors, seniors and recent graduates participated in the 2015 three-week, pre-law “Suit Up for theS Future” High School Summer Legal Institute and Internship Program (June 15- 26 and July 6-10). The program concluded with mock oral arguments before two judges’ panels at the U.S. District Court, Eastern District of Louisiana, in New Orleans. South Plaquemines High School junior Kayla C. Barthelemy won the award in the morning session for Best Oral Argument for the Prosecution. The Defense Award went to Holy Cross High School junior Gerald A. Aviles. In the afternoon session, Treslyn E. Davenport, a St. Mary’s Do- 2015 Suit Up for the Future class with Hon. Karen Wells Roby during a field trip to the U.S. District minican High School senior, won the Best Court, Eastern District of Louisiana. Front Row, from left, Amara D. Stokes, Courtney J. Conerly, Victoria Oral Argument award for the Prosecution. S. Suazo, Hon. Karen Wells Roby, Victoria Turner and Treslyn E. Davenport. Second row, from left, Lusher High School senior Kyree M. Ma- Elizabeth Whitfield, Karina Shareen, Emily R. Lema, Alexis M. Turner, DeChanda A. Martin, Taylor gee was awarded Best Oral Argument for E. Austin, Kayla C. Barthelemy and Ann Bondoc. Third row, from left, Miles Edwin Ballard, Gerald A. Aviles, Galatia E. Jones and Kyree M. Magee. Back row, from left, Derrick F. Ransom, Borjius J. the Defense. Guient and Desmond C. LeBlanc. Not in photo Michaela S. Roussell. Photo by LSBA staff. Awards also were presented to students who submitted exceptional written mem- oranda. The award for the Best Written Foundation to present the program, an sessions, shadowing opportunities at local Memorandum went to South Plaquemines award-winning Diversity Pipeline Pro- firms, courts and agencies, and field trips to High School junior Kayla C. Barthelemy gram and a 2013 American Bar Associa- courts and law schools. for the Prosecution and Haynes Academy tion Partnership Program recipient. Several attorneys, professors and law graduate Emily R. Lema for the Defense. High school students are selected to schools’ staff members volunteered for the Each year, the Louisiana State Bar As- participate based on their academic per- 2015 program, teaching courses, talking to sociation partners with the Just the Begin- formance and application essays. The the students one-on-one or offering “shad- ning Foundation and the Louisiana Bar program includes abridged law school owing” opportunities.

Save the dat e

LSBA March 4, 2016 Diversity Hilton Baton Rouge Capitol Center 201 Lafayette Street • Baton Rouge, LA

208 October / November 2015 FocProfessionalismus on By Katherine L. Hurst Pride, prejudice and Professionalism

am proud to be a lawyer. We are part D. (Kitty) Kimball. Shortly afterward, to sit for the bar. She is now the first openly of a noble profession whose advocacy she became the first woman elected to transsexual elected judge in the nation. can combat all forms of prejudice the Louisiana Supreme Court. She was a Years ago, I defended a lesbian in a in our society and legal system. It is great role model showing you can be both child-custody dispute where the judge Ilargely through the legal system that we a lady and a lawyer. was predisposed to deny my client custody have seen the advancement of civil rights The standards of what is expected or because she was a lesbian and in a com- for people of color, women and the LGBT respected in male versus female lawyers mitted relationship with another woman. community. Prejudice has no place in our are not always the same. Male lawyers who I respectfully insisted on my client’s right profession. The very meaning of the word are assertive and tenacious are respected, to her day in court and proved that she is to “pre-judge.” We should not prejudge while those same qualities in female at- was the better parent, the primary factor our fellow professionals based on race, torneys are often considered negative. in any custody case. The judge granted my gender, religion, sexual orientation or any Stereotypes don’t serve our profession or client custody and justice, not prejudice, other arbitrary standard. Nor should we the legal system. prevailed. tolerate prejudice within our profession. Ageism Elitism Racism One of the easiest targets of diminished One of the most insidious forms of With the election of President Barack respect can be young lawyers. Never under- prejudice in our profession is elitism. Some Obama, many suggested we reached a estimate a new lawyer. Those fresh from law lawyers, or groups of lawyers, think they “post-racial age” — a period or society in school may lack your legal experience but are inherently superior to other colleagues which racial prejudice or discrimination they are fresh with ideas and know the latest by virtue of their status or area of practice. no longer exists. Great strides have been in the law and are eager to change the world. If you accept the concept that the senior made in society and our profession, both I suspect many people dismissed a young partner of a large law firm deserves more in Louisiana and nationwide. But, as nice lawyer named Sarah Weddington when she respect than a solo practitioner, elitism as “post-racial” sounds, we have not yet took on her first major case. In that case, has crept into your thinking. As officers of reached that stage. But the Louisiana State she changed the law of the land. Regardless the court, we have a duty to advance the Bar Association (LSBA) is has taken steps of your views on Roe v. Wade, you have to concept that prejudice is unacceptable in by adopting a Diversity Statement in 2008, respect a young lawyer who has the vision society and the legal system. in part: “The LSBA is committed to diver- to pursue a landmark constitutional case. I Are you proud to be a lawyer? If not, sity in its membership, Board of Governors, often see young lawyers treated with less make a difference and start by not prejudg- staff, House of Delegates, committees and respect then their more seasoned colleagues. ing your colleagues by arbitrary standards. all leadership positions. Diversity is an When we diminish one another, we should inclusive concept that encompasses race, not be surprised when society diminishes FOOTNOTE ethnicity, national origin, religion, gender, our profession as a whole. age, sexual orientation and disability.”1 1. For the full Diversity Statement, go to: www.lsba. LGBT Community org/diversity. To show support for diversity in the Sexism Long before anyone heard of Caitlyn legal profession, become a signatory. Louisiana has 18,868 lawyers practic- Jenner, the Louisiana Supreme Court dealt Katherine L. Hurst is a solo practitioner in Lafayette ing within the state — of these, 6,399 are with the issue of a transsexual lawyer. whose primary practice areas are attorney disciplin- women. Are women lawyers treated with While I was a freshman LSU law student, ary defense and complex domestic litigation. She is equality and judged in the same way as a senior was transitioning from male to a member of the Louisiana State Bar Association’s (LSBA) Committee on the Profession and the LSBA’s their male colleagues? female. This student was at the top of the Practice Assistance and Improvement Committee. A male lawyer friend once bought me class and graduated with honors. Yet when She received her JD degree in 1991 from Louisiana a T-shirt that said, “I’m no Lady! I’m a she applied to take the bar, the Louisiana State University Paul M. Hebert Law Center. Prior to Lawyer!” Although I wore it proudly, it Committee on Bar Admissions denied her establishing her firm, she clerked for former Louisiana Supreme Court Justice Catherine D. (Kitty) Kimball, begged the question: “Can a woman be application due to her transsexuality. The the Office of Disciplinary Counsel and 3rd Circuit both?” During my first year out of law Louisiana Supreme Court unanimously Court of Appeal. ([email protected]; Ste. 555, school, I clerked for then-Judge Catherine overturned that decision and allowed her 600 Jefferson St., Lafayette, LA 70501)

Louisiana Bar Journal Vol. 63, No. 3 209 Crossword Puzzle By Hal Odom, Jr. Basic Obligations

1 2 3 4 5 6 7 ACROSS DOWN

1 Kind of obligation in which each 1 Narcotics squad action (5) debtor owes a separate debt (7) 2 Of assorted kinds (7) 8 9 5 Pie nut (5) 3 Memoirs; recollections (13) 8 Affecting the property, not 4 ___ the sword... (4, 2) the person (2, 3) 5 Tenured or endowed position on a 9 Kind of crime for which the college faculty (13) 10 arrestee cannot be released on his 6 Obsolescent form of draft (5) own recognizance (7) 7 Kind of obligation that corresponds 10 Innovator, pioneer (13) to moral duty (7) 11 12 13 11 Assert emphatically (6) 11 Kind of term that is not stated 12 Attack, physically or verbally (6) directly (7) 14 15 Doesn’t stop, at a place along 13 Kind of conduct that may be the way (6, 7) prohibited by a protective order (7) 15 16 17 18 Not legal (7) 14 Sculpture (6) 19 Popular Japanese poetic form (5) 16 Divide; leave (5) 20 Sees socially (5) 17 Drags with difficulty (5) 21 Kind of term that is stated 18 19 directly (7)

20 21

Answers on page 247.

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

210 October / November 2015 Advanced Appellate Practice Seminar Co-Sponsored by the LSBA Appellate Section Friday, November 6, 2015 Westin New Orleans Canal Place • 100 Rue Iberville

ractitioners are increasingly aware of the unique challenges and opportunities in the realm of appellate advocacy. Join Pseminar chair THOMAS FLANAGAN, eight sitting appellate judges, several leaders of the appellate bar, and the general counsel of a Fortune 500 company for an in-depth, practical examination of appellate practice in Louisiana state courts. Through a series of panel discussions, esteemed judges from the Louisiana First, Fourth, and Fifth Circuits will discuss what works (and what doesn’t work) in the areas of writ practice, issue formulation, brief-writing, and oral argument. Along the way, the panelists will explore recent changes to governing rules, appellate jurisdiction, preserving alleged error, standards of review, rehearing applications, and a host of other topics. Registration Fees*, Cancellations and Refunds Section Member...... $295 / $320 (after Oct. 30) Non-Section Member...... $320 / $345 (after Oct. 30) On-Site Registration...... $345 *The fee includes electronic course materials, seminar attendance and coffee/refreshment breaks. On-Site Registrants will be provided the link to download electronic course materials at the time of registration. Printed seminar manuals will be available for purchase at the seminar.

Seminar Chair: Thomas M. Flanagan • Flanagan Partners • New Orleans

8:00-8:30 a.m. Registration 1:15-2:15 p.m. Professionalism and Effective Oral Argument (1 credit - Prof.) Hon. James F. McKay, Chief Judge • 4th Circuit Court of Appeal 8:30-8:45 a.m. Program Overview • New Orleans (.25 credit) Thomas M. Flanagan • Flanagan Partners • New Orleans Hon. Roland L. Belsome, Jr. • 4th Circuit Court of Appeal • New Orleans 8:45-9:45 a.m. The Unique Role of Appellate Counsel Hon. Sandra Cabrina Jenkins • 4th Circuit Court of Appeal (1 credit) Hon. Terri F. Love • 4th Circuit Court of Appeal • New Orleans • New Orleans Kim M. Boyle • Phelps Dunbar • New Orleans Thomas M. Flanagan • Flanagan Partners • New Orleans Marcus V. Brown • Executive Vice President & General Counsel of Entergy Corporation • New Orleans 2:15-3:15 p.m. Supreme Court Practice – The Law Clerk’s Perspective (1 credit) Andy J. Dupre • Flanagan Partners • New Orleans 9:45-10:45 a.m. Writ Practice – Herlitz and Writ-Grant Considerations P. J. Kee • Jones Walker • New Orleans (1 credit) Hon. John Michael Guidry • 1st Circuit Court of Appeal • Baton Rouge Isaac H. Ryan • Deutsch, Kerrigan & Stiles • New Orleans Hon. Rosemary Ledet • 4th Circuit Court of Appeal • New Orleans Michael J. Palestina • Kahn Swick & Foti • New Orleans Cheryl M. Kornick • Liskow & Lewis • New Orleans 3:15-3:30 p.m. Break 10:45-11:00 a.m. Break 3:30-4:30 p.m. Ethics on Appeal 11:00 a.m.-Noon Appellate Briefing – Giving the Court What it Needs (1 credit - Ethics) Hon. William J. Crain • 1st Circuit Court of Appeal • Madisonville (1 credit) Hon. Paul A. Bonin • 4th Circuit Court of Appeal • New Orleans Hon. Fredericka H. Wicker • 5th Circuit Court of Appeal • Gretna Hon. John Michael Guidry • 1st Circuit Court of Appeal • Baton Rouge Stephen L. Miles • Barrasso Usdin Kupperman Freeman Martin A. Stern • Adams and Reese • New Orleans & Sarver • New Orleans

Noon-1:15 p.m. Lunch (on your own) Register Online at www.lsba.org/cle Louisiana Bar Journal Vol. 63, No. 3 211 Discipline Reports REPORTING DATE 8/4/15

REPORT BY DISCIPLINARY COUNSEL

Public matters are reported to protect the public, inform the profession and deter misconduct. Reporting date Aug. 4, 2015.

Decisions event he applies for reinstatement misrepresentation; and misleading or from his suspension in In Re: Ferrara, deceptive communication about the Alan J. Abadie, Chalmette, (2015- 13-0722 (La. 4/26/13), 116 So.3d 654, lawyer, the lawyer’s services or the law OB-1135) Permanent resignation in ordered by the court as consent discipline firm’s services which promises results. lieu of discipline ordered by the court on June 30, 2015. JUDGMENT FINAL Donna U. Grodner, Baton Rouge, on June 30, 2015. JUDGMENT FINAL and EFFECTIVE on June 30, 2015. (2015-B-1093) Suspended for a period and EFFECTIVE on June 30, 2015. Gist: Engaging in conduct involving Continued on page 214 Gist: Commission of a criminal act; and violating or attempting to violate the Rules of Professional Conduct. ChristoviCh & Kearney, llp David G. Arceneaux, Thibodaux, attorneys at law (2015-OB-1066) Transferred to disability inactive status ordered by the court on Defense of ethics complaints anD charges June 3, 2015. JUDGMENT FINAL and EFFECTIVE on June 3, 2015. e. phelps Gay Kevin r. tully Gerald J. Asay, Baton Rouge, (2015- elizabeth s. Cordes B-1399) Interim suspension by consent arter arshall ordered by the court on July 21, 2015. h. C M Frank J. Ferrara, Jr., Walker, (2015- B-1196) Adjudged guilty of additional (504)561-5700 violations which warrant discipline 601 poydras street, suite 2300 and which may be considered in the new orleans, la 70130 MEMBERS ALPHABETICALLYMEMBERS Advice and counsel concerning legal and judicial ethics

Defense of lawyer and judicial discipline matters

Representation in bar admissions proceedings

www.sswethicslaw.comPRACTICE OF FIELDS — Advice and counselLESLIE concerning J. S CHIFFlegal and judicialS TEVENethics — SCHECKMAN JULIE BROWN WHITE Over 25 Years’ Experience Former Special Counsel, Former Prosecutor, — Defense of lawyer and judicial discipline matters — Disciplinary Defense Counsel Judiciary Commission (1994-2008) Ofﬁ ce of Disciplinary Counsel (1998-2006) — Representation117 in W.bar Landry admissions Street proceedings — 829 Baronne Street 11715 Bricksome Avenue, Suite A-3 Opelousas, Louisiana 70570 New Orleans, Louisana 70113 Baton Rouge, Louisiana 70816 Phone (337)942-9771 • Fax (337)942-2821 Phone (504)581-9322 • Fax (504)581-7651 Phone (225)293-4774 • Fax (225)292-6579 [email protected] [email protected] [email protected]

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

212 October117 W. /Landry November Street 2015 SERVICES & EXPERT Opelousas, Louisiana 70570 Phone 337.942.9771 • Fax 337.942.2821 [email protected]

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

JULIE BROWN WHITE Former Prosecutor, Office of Disciplinary Counsel (1998-2006) 11404 N. Lake Sherwood Ave., Suite A Baton Rouge, Louisiana 70816 Phone 225-293-4774 • Fax 225.293.6332 [email protected] 15LAJ_LastChance_forLSBA2_Layout 1 8/19/2015 11:44 AM Page 1

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442 Europe Street • Baton Rouge, Louisiana 70802-6406 • 225-383-5554Louisiana • www.lafj.org Bar Journal • [email protected] Vol. 63, No. 3 213 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. 4, 2015. Respondent Disposition Date Filed Docket No. Joseph N. Mole Suspension 6/5/15 11-966

Discipline continued from page 212 5, 2015. JUDGMENT FINAL and No. of Violations EFFECTIVE on June 5, 2015. Gist: of 60 days ordered by the court as consent Commingling...... 1 discipline on June 30, 2015. JUDGMENT Conditional admission to the practice of FINAL and EFFECTIVE on June 30, 2015. law revoked. Engaged in conduct prejudicial to the Gist: Affirmative misrepresentations to a Gilbert E. Stampley, New Orleans, administration of justice...... 1 (2015-OB-1142) Permanent resignation federal court while serving as counsel in Failure to supervise non-lawyer from the practice of law in lieu of a civil action. employees...... 1 Thomas C. McBride, Alexandria, discipline ordered by the court on June (2015-B-1022) Public reprimand or- 30, 2015. JUDGMENT FINAL and Knowingly failed to respond to a lawful dered by the court as consent discipline EFFECTIVE on June 30, 2015. Gist: demand for information from an admissions on June 30, 2015. JUDGMENT FINAL Engaging in the practice of law during a or disciplinary authority...... 1 period of suspension. and EFFECTIVE on June 30, 2015. Mishandling and misuse Gist: Failure to make reasonable efforts of trust account...... 1 to ensure that other lawyers in his firm Admonitions (private sanctions, often conformed their conduct to the Rules of with notice to complainants, etc.) issued TOTAL INDIVIDUALS Professional Conduct. since the last report of misconduct involving: ADMONISHED...... 4 Richard B. Scandrett, Lafayette, (2015-B-0957) Conditional admission revoked ordered by the court on June Callihan Law Firm, LLC Representation in lawyer disciplinary complaints and proceedings KKayay E. DDonnellyonnelly & AssociateAssociatess Damon S. Manning Former Investigator, Prosecutor & 1st Assistant Disciplinary Counsel Certiﬁed Court Reporters Certiﬁed Court Reporters 15 years experience with ODC (1998–2014) FullFull ServiceService Court Reporting Firm Court Reporting Firm 14465 Wax Road, Suite A CompleteComplete Litigation Support Support Baton Rouge, LA 70818 2424 HOUR HOUR SERVICE SERVICE (225)261-6929 [email protected] VideoVideo Depositions Depositions VideoVideo Conferenc Conferencinging RealReal Time Time Transcription Transcription CompleteComplete Computerized Computerized Services A Fresh Perspective ConferenceConference Room On Your Case KKnowledgeable EEfficient Dedicated

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214 October / November 2015 SIGN UP EARLY! Sign up early and receive your informational packets ecret in November! anta Brightening the holidays for needy children The Louisiana State Bar Association/Louisiana Bar Foundation’s Community Action Committee is inviting Bar members and other professionals to brighten the holidays for needy children by participating in the 19th annual Secret Santa Project. • Sponsors will shop with inspiration from the child’s “Wish List.” • Informational packets will be distributed in November. • No required minimum or maximum amount on gifts. • Gift collection will run from Tuesday, Dec. 1 through Thursday, Dec. 3, 2015. • More details about gift-wrapping, drop-off, etc., will be included in the informational packet.

The Secret Santa Project also welcomes monetary donations to help buy gifts for children not adopted. For more information, visit www.lsba.org/goto/SecretSanta.

For more information or questions about the Project, contact Krystal Bellanger Rodriguez at (504)619-0131 or [email protected].

Name: ______

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City/State/Zip: ______

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I would like to sponsor ______child(ren). Preferred age range (not guaranteed) ______(12 and under) To participate, fax this form to Krystal Bellanger Rodriguez at (504)566-0930.

Louisiana Bar Journal Vol. 63, No. 3 215 Recen Developmentst Administrative law to Taxation

contracts only to “responsible” bidders who In response, Colonial filed a bid protest must be able to comply with the proposed with the Government Accountability Of- delivery schedules and have a satisfac- fice (GAO) under 31 U.S.C. § 3552 and Administrative tory record of performance on previously alleged two points of error — first, that the Law awarded contracts. See, PPR, Ch. I. § 5.4. If contract officer’s determination that Colo- the bidder cannot meet the standards, then it nial was non-responsible was an abuse of must be deemed non-responsible. Id. at § 6. discretion; and, second, that under the Act, Normally, a government contract officer the responsibility determination should Legislative Agencies may not preclude a concern from being have been referred to the SBA under the awarded a contract due to it being found Competency Program. The GAO denied Not Required to Refer non-responsible without referring the Colonial’s protest and found that the GPO Potential Contractor matter to the Small Business Administra- was not subject to the referral requirements tion (SBA) for final disposition under the of the program as a legislative agency; it Responsibility SBA’s Certificate of Competency Program. determined that the contract officer had Determinations See, 15 U.S.C. § 637(b)(7) & 13 C.F.R. § a reasonable basis for her determination. 125.5. Under that program, the SBA certifies After losing at the GAO, Colonial filed Colonial Press Int’l, Inc. v. United States, to the contract officer whether a concern a bid protest in the United States Court of 788 F.3d 1350 (Fed. Cir. 2015). is responsible with respect to a particular Federal Claims pursuant to 28 U.S.C. § In June 2012, the Government Publish- procurement. 1491(b). Colonial generally argued the same ing Office (GPO), a legislative agency, is- In the immediate matter, the GPO con- two points, but that court ruled against it sued an invitation for bids for an executive tract officer reviewed Colonial’s history re- on both. Colonial then appealed that deci- agency relating to a printing order. The GPO lating to past GPO contracts, which included sion to the United States Court of Appeals received nine bids in response; one was from Colonial’s recent performance history and for the Federal Circuit under 28 U.S.C. § Colonial Press International, Inc. Colonial other factors. During that period, Colonial 1295(a)(3). was considered a “small business concern” was late on approximately 6 percent of de- The Federal Circuit was established in for purposes of the Small Business Act, 15 liveries. After an opportunity to respond and 1982 and assumed the appellate jurisdiction U.S.C. §§ 631 et seq. without referring the determination to the of the U.S. Court of Claims, now called According to the Printing Procurement SBA, the contract officer wrote to Colonial the Court of Federal Claims. The Federal Regulation GPO Pub. 305.3 (Rev. 2-11) stating that it was found non-responsible Circuit, recognizing whether the SBA ap- (PPR), the GPO was allowed to award and awarded the contract to another bidder. plies to a legislative agency was an issue of first impression, considered essentially the same two issues argued before the GAO Securities Arbitration/Litigation and the lower court. The legislative agency question is discussed below.

JAMES F. W ILLEFORD Legislative Agencies and the SBA The court limited the issue to the definitions of two operative terms in the Small Representing investors in disputes with Business Act dealing with the Competency Program — “government procurement stockbrokers and brokerage houses officer” and “government contract” in 15 U.S.C. § 637(b)(7). The court reasoned that “[i]f these terms are defined broadly, then § New Orleans 504/582-1286 637(b) could require any government pro- [email protected] curement officer . . . to refer responsibility determinations to the SBA.” Alternatively, the court reasoned that:

216 October / November 2015 meaning given the term — agency — by also found this argument unpersuasive and [i]f . . . defined narrowly, then § 637(b) section 551(1) of title 5 . . . .’” Further, the noted that if it took Colonial’s view on the could be limited to certain categories court found that under § 551(1), the term issue, then it would have to: of government procurement officers, “agency” does not include the Congress, specifically those in the executive and that, as a legislative agency, the GPO is interpret “Government procurement branch, and, as a result, only certain included in the term “Congress.” Therefore, contracts” to exclude contracts solic- officers would be required to refer the court reasoned that the language in § ited by legislative agencies in some responsibility determinations to the 637(b) should be defined narrowly, and that portions of the Act, while interpreting SBA. the Act’s responsibility referral requirement “Government procurement officers” under the program does not apply to the to include contracting officers of In examining this, the court evaluated the GPO. See generally, United States v. IBM those same legislative agencies in specific words in the Act “in their context Corp., 892 F.2d 1006, 1009 (Fed. Cir. 1989); another portion of the Act, namely and with a view to their place in the overall Mayo v. U.S. Printing Office, 9 F.3d 1450, § 637(b)(7). statutory scheme,” as opposed to solely fo- 1451 (9 Cir. 1993). cusing on the specific language in § 637(b). Colonial took exception to the court’s Additionally, the court noted that the See, Davis v. Mich. Dep’t of Treasury, 109 reasoning under two theories. First, Colo- “GAO, GPO, and SBA have interpreted S.Ct. 1500 (1989). nial proposed to avoid the court’s analysis the Small Business Act consistently since In determining whether the operative by suggesting that, instead of examining 1983” in line with their present interpreta- terms are broadly or narrowly defined, the the GPO’s duties under the Act, the court tion. See, Fry Commc’ns, Inc., 62 Comp. court noticed that neither term was actually should examine the duties of the executive Gen. 164, 167 (1983). defined in the Act. It then, in looking to the agencies on whose behalf the GPO was general statutory scheme, stated that because awarding contracts. The court found this —Bruce L. Mayeaux under 15 U.S.C. § 637c(3) a “‘Government to be an “unpersuasive dodge of the basic Major, Judge Advocate procurement contract’ is defined as ‘any issue” and did not address it further. Second, JAG Legal Center and School contract for the procurement of any goods Colonial argued that, because the terms the 600 Massie Road or services by any Federal agency,’” that court focused on do not appear in § 637(b) Charlottesville, VA 22903 the term “‘Federal agency’ must have ‘the (7), their definitions are irrelevant. The court

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Louisiana Bar Journal Vol. 63, No. 3 217 computer; however, the trustee took the same court that presided over the adversary computer. The plaintiffs filed a motion with proceeding. The 5th Circuit further found the district court requesting the trustee turn another rationale behind the Barton doctrine Bankruptcy over the computer. The district court deferred did not apply, i.e., bankruptcy courts have Law a ruling on the motion, allowing the trustee a strong interest in protecting trustees from to obtain a forensic expert to evaluate the personal liability as officers of the court. computer. The plaintiffs alleged the district The 5th Circuit noted that Abide served as court did not authorize the trustee to access an officer in both courts; thus, the district Barton Doctrine Does the computer. After making its ruling on court shared the same interest in protecting ownership, the district court ordered the the trustee. Not Apply When Trustee computer returned. Upon receipt of the Carrying Out District computer, the plaintiffs’ forensic expert Golf Channel May Not Court Orders determined that the trustee had accessed the computer three times. Be Burned by Stanford’s Carroll v. Abide, 788 F.3d 502 (5 Cir. 2015). The plaintiffs brought a lawsuit in the Ponzi Scheme After All In the bankruptcy cases of William and district court against Abide claiming she Carolyn Carroll and their corporation, the violated their Fourth Amendment right Janvey v. Golf Channel, Inc., 792 F.2d 539 Carrolls’ children requested a determination against illegal search and seizure. The district (5 Cir. 2015), certified question accepted that certain movables had been properly court dismissed the complaint, ruling the (July 17, 2015). transferred to them. Samera Abide, the plaintiffs were required to request leave of In 2006, Stanford International Bank bankruptcy trustee for the debtors, filed the bankruptcy court to file a lawsuit against negotiated a deal with the Golf Channel, Inc. a counterclaim seeking a determination the trustee pursuant to the Supreme Court regarding an advertising package. Stanford regarding proper ownership. The dispute decision Barton v. Barbour, 104 U.S. 126, was apparently attempting to reach the Golf was withdrawn to the district court. During 128 (1881), citing Davis v. Gray, 83 U.S. (16 Channel’s high-net-worth viewership that the case, the district court entered an order Wall.) 203 (1872). In Barton, the Supreme was likely to invest in its Ponzi scheme. that the Carrolls turn over any computers of Court held that in order to file a lawsuit Ultimately, an agreement was struck to, the debtor-corporation to Abide. The Carrolls against a receiver, a plaintiff must seek leave among other things, provide live coverage LA Bar Journal Ad 9/21/11 3:44 PM Page asserted that one computer was their personal from the court that appointed the receiver. of a golf tournament hosted by Stanford. In total, Stanford paid the Golf Channel An action against a receiver without $5.9 million. court permission, the [Supreme] By 2009, the SEC uncovered the massive SCHAFER GROUP LTD Certified Public Accountants Court reasoned, is an attempt “to Ponzi scheme, one of the largest in the obtain some advantage over the history of the United States. The SEC filed When you need a forensic accountant, other claimants upon the assets in the a lawsuit in the Northern District of Texas, call on a professional. receiver’s hands.” If such a suit were and the district court appointed a receiver allowed, “the court which appointed over Stanford. The receiver sued the Golf “Knowledge of business, finance the receiver and was administering Channel to recover the $5.9 million as a and accounting may be needed the trust assets would be impotent to fraudulent conveyance under the Texas at any stage of the litigation restrain him.” Carroll, 788 F.3d at 505. Uniform Fraudulent Transfer Act (TUFTA), process. Therefore, we can be asserting the transaction provided no value The 5th Circuit vacated the district court’s an important member of any to Stanford’s creditors. The Golf Channel decision and remanded to the district court. successful litigation team. asserted an affirmative defense allowed While the 5th Circuit had previously applied under section 24.009(a) of the TUFTA — From contemplation of action to Barton to lawsuits against bankruptcy “(1) that it took the transfer in good faith; and expert testimony, we can complement attorneys in trustees, it held that the Barton doctrine (2) that, in return for the transfer, it gave the ways that increase the likelihood of a desired outcome. did not apply because the claims against debtor something of ‘reasonably equivalent We can support your litigation efforts to save you time Abide, as trustee, stemmed from her conduct value.’” The Golf Channel argued that it and strengthen your case.” while carrying out orders from the district provided “reasonably equivalent value” —Kernion T. Schafer, CPA court rather than the bankruptcy court. The for the transfers by providing advertising. 5th Circuit found that the concerns Barton In March 2015, the 5th Circuit issued its S OUTH S HORE AND N ORTH S HORE O FFICES implicated did not apply in this situation, original opinion, Janvey v. Golf Channel, METAIRIE MANDEVILLE i.e., if parties could sue trustees, a foreign 780 F.3d 641 (5 Cir. 2015) (original 701 Aurora Avenue • Suite A 435 Girod Street • Suite B court could “turn bankruptcy losers into Metairie, Louisiana 70005 Mandeville, LA 70448 opinion), which was discussed in the 504.837.6573 985.626.4066 bankruptcy winners.” Id. at 506, citing In re Louisiana Bar Journal (June/July 2015). Forensic Accounting • Emerging Issues • Financial Services Linton, 136 F.3d 544, 546 (7 Cir. 1998). The Litigation Services • Legal Services • Emerging Business In the original opinion, the 5th Circuit held reasoning is that the plaintiffs filed suit in the value is determined from the perspective

218 October / November 2015 of the creditors of the transferor, and proof Business and Commerce Code, the of market value is insufficient. The 5th definition of “reasonably equivalent Circuit found the Golf Channel’s advertising value” in section 24.004(d) of the services that were purchased to extend a Texas Business and Commerce Code, Corporate and Ponzi scheme could not, as a matter of law, and the comment in the Uniform Business Law provide any value to Stanford’s creditors. Fraudulent Transfer Act stating that Accordingly, the 5th Circuit rendered “value” is measured “from a creditor’s judgment in favor of the receiver, and the viewpoint,” what showing of “value” Golf Channel was required to return the full under TUFTA is sufficient for a LLC Shield Exceptions $5.9 million. transferee to prove the elements of The Golf Channel filed a petition for the affirmative defense under section Hohensee v. Turner, 14-0796 (La. App. 4 a panel rehearing, which the 5th Circuit 24.009(a) of the Texas Business and Cir. 4/22/15), ____ So.3d ____, 2015 La. granted, vacating the original opinion. The Commerce Code? App. LEXIS. 5th Circuit found that it must determine under The plaintiff sought the services of an The Texas Supreme Court has not ruled Texas law and the TUFTA the meaning of architect to design plans for her new home; as of yet. Stay tuned. “value and/or reasonably equivalent value.” the architect referred her to an unlicensed The 5th Circuit reasoned that there were architectural designer, who designed the —Tristan E. Manthey some discrepancies between the definitions plans, but the architect stamped the design Chair, LSBA Bankruptcy Law Section in the TUFTA and the comments in the plans so the plaintiff could obtain a building and TUFTA, and that only the Texas Supreme permit. After the plaintiff hired a contractor Cherie Dessauer Nobles Court could rule on this discrepancy. As there and problems developed during construc- Member, LSBA Bankruptcy Law were no decisions from the Texas Supreme tion, the plaintiff sued (among others) the Section Court addressing this dispute, the 5th Circuit architect, asserting deficiencies in the design. Heller, Draper, Patrick, Horn certified the following question to the Texas Although the architect was a member of a & Dabney, L.L.C. Supreme Court, which it accepted: limited liability company, the plaintiff as- Ste. 2500, 650 Poydras St. serted he was personally liable under La. Considering the definition of “value” New Orleans, LA 70130 R.S. 12:1320(D), which provides that the in section 24.004(a) of the Texas

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Stan Lemelle Former Criminal Chief, U.S. Attorney Don Cazayoux Former U.S. Attorney

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Louisiana Bar Journal Vol. 63, No. 3 219 Louisiana LLC law does not derogate from plans for the [plaintiff’s] house, there and the member’s executor, administrator, any rights that any person may by law have is no evidence in the record that [the guardian, conservator, or other legal rep- against a member of an LLC because of, architect] breached any professional resentative shall be treated as an assignee among other things, “any breach of profes- duty as an architect. As in Ogea, [the of such member’s interest in the [LLC].” sional duty or other negligent or wrongful architect’s] affixing his seal was in La. R.S. 12:1333(A). The LLC law further act by such person.” furtherance of the [plaintiff’s] contract provides that “[a]n assignment of a member- In Ogea v. Merritt, No. 13-1085 (La. with [the contractor], a contract to ship interest shall not entitle the assignee to 12/10/13), 130 So.3d 888, 898-901, the which [the architect] was not a party. become or to exercise any rights or powers of Supreme Court interpreted R.S. 1320(D) as Conduct taken in furtherance of the a member until such time as he is admitted,” creating separate exceptions for a “breach of legitimate goals of that contract does but does entitle the assignee to receive the professional duty” and for a “negligent or not subject [the architect] to personal assignor’s allocations, share of profits, and wrongful act,” and, as to the latter exception, liability. distributions. La. R.S. 12:1330(A). identified four factors to be considered, one The legatee/executor filed suit against of which was “whether the conduct at issue LLC Assignee Issues the LLC and its surviving manager member was required by, or was in furtherance of, a seeking inspection and demanding, among contract between the claimant and the LLC.” Succession of Scheuermann v. Scheuer- other things, that the two sections of the In Hohensee, the majority affirmed the trial mann & Jones, L.L.C., 15-0040 (La. App. statute described above be declared uncon- court’s grant of summary judgment in favor 4 Cir. 5/22/15), ____ So.3d ____, 2015 La. stitutional, arguing that Section 1333(A) of the architect, reasoning that the plaintiff App. LEXIS 1030. imposes a deprivation of property without must prove that the architect “breached An attorney’s will left her ownership due process of law because it transfers an his professional duty to her by negligence interest in a law firm, a limited liability interest in an LLC to the LLC, the surviving or some other wrongful conduct.” Noting company, to an individual, whom she also member of the LLC, or the executor, rather unrebutted expert testimony supporting the appointed an independent executor of her than to the decedent’s heirs or legatees, architect, the majority concluded: estate. The Louisiana LLC law provides and that it is unconstitutionally vague. The that “[i]f a member who is an individual defendants alleged that the plaintiff was Although [the architect] stamped the dies . . . the member’s membership ceases not entitled to inspection because of R.S. 12:1332(A)(1), which provides that “[a] n assignee of an interest in [an LLC] shall not become a member or participate in the management of the [LLC] unless the other members unanimously consent in writing.” The district court rendered a partial summary judgment declaring Sections 1330 and 1333 constitutional and designated the judgment as appealable. The court of appeal found on de novo review that the judgment was improperly designated as appealable and dismissed the appeal without reaching the merits.

Single Business Enterprise

Bridges v. Polychim USA, Inc., 14-0307 (La. App. 1 Cir. 4/24/15, 2015 La. App. Unpub. LEXIS. During the relevant time, the defendant was a Georgia corporation not qualified to do business in Louisiana. It owned two foreign subsidiaries that, in turn, owned a foreign partnership that owned property and was doing business in Louisiana. The Louisiana Department of Revenue sought to require the defendant to pay Louisiana franchise taxes, asserting (among other things) that Louisiana

220 October / November 2015 courts have repeatedly allowed creditors to set of facts. use the single-business-enterprise doctrine to On initial review, the Louisiana 4th breach the corporate walls between corpora- Circuit Court of Appeal, in a 2-1 decision, tions and their subsidiaries and affiliates. Criminal vacated the defendant’s conviction and The court of appeal reasoned that the Law reversed his sentence upon finding that doctrine allows certain businesses to be the prosecutor’s use of Marshall’s post- held liable only for “wrongful acts done in arrest silence violated Doyle by using the pursuit of [a common business] purpose,” exercise of his Fifth Amendment right and that the Department was not seeking to Prosecutorial Use of to undermine his plausible self-defense hold the defendant liable for the “wrongful” Post-Miranda Silence claim. State v. Marshall, 12-0650 (La. acts of its subsidiaries, but merely for fran- App. 4 Cir. 7/31/13), 120 So.3d 922. chise taxes based on their actions. The court State v. Marshall, 13-2007 (La. 12/9/14), However, a Doyle violation is a trial error also noted that, in this context, the single- 157 So.3d 563. that is subject to harmless-error analysis. business-enterprise doctrine sounded very The Louisiana Supreme Court addressed Doyle, 96 S.Ct. at 2245. similar to the “unity of purpose” theory that the applicability of Doyle v. Ohio, 96 Upon granting an application for the Louisiana Supreme Court had rejected S.Ct. 2240 (1976), when reviewing a certiorari from the State, the Louisiana in an earlier franchise-tax case. prosecutor’s cross-examination of a Supreme Court reviewed all evidence defendant regarding his alibi. presented at trial. Marshall was tried —Michael D. Landry The U.S. Supreme Court held in Doyle by a jury in Orleans Parish for second- Reporter, LSBA Corporate and Business that a defendant’s right to due process is degree murder and found guilty of the Law Section violated when a prosecutor impeaches a lesser-included offense of manslaughter Stone Pigman Walther Wittmann, L.L.C. defendant’s exculpatory alibi or defense for “end[ing] a love triangle” involving 546 Carondelet St. by questioning why he did not provide it himself, the victim and the mother of the New Orleans, LA 70130 when first Mirandized by police, thereby victim’s three children. implying that the defendant came up While the victim was serving a six- with the story over time and spoke with month stint in the parish jail, Marshall police only after developing a favorable began a romantic relationship with his maps...STAYING® AHEAD

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Louisiana Bar Journal Vol. 63, No. 3 221 children’s mother. Upon the victim’s did not contribute to the verdict is, release from jail, the woman decided to rather, to find that error unimportant attempt reconciliation, but an enraged in relation to everything else the Marshall confronted them at their home. jury considered . . . . Environmental Described as “much smaller” at 5’6” and Law 140 pounds, Marshall resorted to a .40 Marshall, quoting Yates v. Evatt, 111 caliber handgun to fight the victim, who S.Ct. 1884, 1893 (1991). “was nearly six feet tall and weighed over Ultimately, the Louisiana Supreme 200 pounds.” Nine spent casings were Court adopted the position of the U.S. Supreme Court found near the body of the victim, who dissenting judge at the 4th Circuit, finding suffered five gunshot wounds, including that “the overwhelming physical evidence Reverses EPA’s two to the back, among other wounds. render[ed] the improper questioning Mercury Rule Marshall took the stand and testified harmless.” Marshall, 120 So.3d at 932 that he shot in self-defense. “On cross- (Dysart, J. dissenting). Accordingly, In one of its last opinions of a memorable examination, the state confronted [the] the Court reinstated the verdict and re- year for the U.S. Supreme Court, the Court defendant with his failure to stay on the imposed the original sentence. struck down the EPA’s new rule regulating scene and explain to the police” that However, the Court took care to mercury and other air toxins — the Mercury he shot in self-defense. This violation clearly incorporate the principles of Doyle and Air Toxics Standard (MATS) rule. In a of Doyle, which formed the basis for v. Ohio into Louisiana jurisprudence. 5-4 ruling, the Court declared in Michigan the 4th Circuit’s decision, was weighed Prosecutors throughout Louisiana are v. E.P.A., 135 S.Ct. 2699 (2015), that the against mounds of forensic, ballistic thereby on notice that using a defendant’s EPA acted unreasonably when it declined to and eyewitness evidence in light of the post-Miranda silence to implicate an consider the costs to implement its MATS harmless-error test set forth in Sullivan exculpatory alibi or defense as spurious rule. The MATS rule was issued in 2012 and v. Louisiana, 113 S.Ct. 2078 (1993). The is a clear violation of due process. established fairly stringent emissions limits Court reiterated the proper framing of for power plants. Power plants were to come the question: —Chase J. Edwards into compliance with the rule by mid-2015, Assistant Professor of Law although a one-year extension was granted To say that an error did not B.I. Moody III College of to coal-fired plants to either install control “contribute” to the ensuing verdict Business Administration technology or shut down altogether. is not, of course, to say that the jury University of Louisiana-Lafayette The central issue for the Court was was totally unaware of that feature 214 Hebrard Blvd. whether the EPA could reasonably refuse to of the trial later held to have been Lafayette, LA 70503 consider cost when issuing the MATS rule. erroneous . . . . To say that an error Under the Clean Air Act section 112(n)(1), the “Administrator shall regulate electric utility steam generating units under this section, if the Administrator finds such

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222 October / November 2015 regulation is appropriate and necessary.” The the rule on its face could not be “appropriate 1), 13-2132 (La. App. 1 Cir. 9/19/14), argument focused on the “appropriate and and necessary.” 153 So.3d 1209, applied the Eagle Pipe necessary” language from (n)(1), specifically The Supreme Court agreed with the subsequent-purchaser doctrine to a Mineral whether the EPA was required to consider power plants, holding that the EPA’s inter- Code claim. The Louisiana Supreme Court compliance costs. pretation of section 112(n)(1) was unreason- has now denied writs. Global Marketing In addressing the question of whether able. The EPA must consider compliance Solutions, L.L.C. v. Blue Mill Farms, Inc. regulation of power plants for air toxins was costs before issuing rules regulating the (Global 2), 14-2572 (La. 4/23/15), ____ appropriate and necessary, the EPA argued emissions of power plants. However, the So.3d ____. In the underlying case, the that regulation was appropriate because of ruling was limited to just the MATS rule; new owner of a 144-acre parcel sued all risks these emissions posed to the human the Court stressed that a formal cost-benefit former mineral lessees once that new owner health and environment, and it found that analysis was not called for, and no court has discovered that the land was contaminated controls were available that could reduce held that benefits of environmental rulings by toxic waste in the soil, claiming that the these harmful emissions. After the EPA must necessarily outweigh the potential defendants — former oil and gas compa- issued its rule, multiple states and industry costs of compliance. There seems to be no nies that were lessees or operators on the associations sued, arguing that a regula- consensus on whether this decision from the property since 1937 — were contractually tion is only “appropriate and necessary” Supreme Court could impact other potential obligated under their mineral leases to if compliance costs are considered. The and dramatic expected rulemakings from the restore the land to its original condition. situation was particularly egregious here EPA on various air emissions. The defendants filed a motion for where the EPA did not consider benefits summary judgment that was ultimately versus compliance costs, and the plaintiffs Louisiana Supreme granted, based on the subsequent-purchas- argued that the social benefits were valued Court Agrees: er doctrine spelled out by the Louisiana at $4 million to $6 million while the actual Supreme Court in Eagle Pipe & Supply, costs to the power plant industry to comply New Owners Can’t Sue Inc. v. Amerada Hess Corp., 10-2267 (La. with the rule was estimated to be $9.6 billion. Old Mineral Lessees 10/25/11), 79 So.3d 246. The 1st Circuit Power plants argued that these outrageous agreed and upheld the dismissal of the compliance costs, particularly when com- A late 2014 case, Global Marketing Solu- claims, holding that: pared to the estimated benefits, meant that tions, L.L.C. v. Blue Mill Farms, Inc. (Global

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Louisiana Bar Journal Vol. 63, No. 3 223 an owner’s right to sue for damage rights belonging to the owner of to his property is a personal right and the property when the damage was is held by the person who was the inflicted.” Because there is no such owner at the time the damage was assignment or subrogation here, I Family caused. This personal right is not agree with the decision of the court Law transferred to a subsequent owner of appeal. without a clear stipulation that the right has been transferred. Global 2 (Crichton, J., concurring) (citations omitted). Although he did not Global 1, 153 So.3d at 1215. Without expressly state “Eagle Pipe’s subsequent Same-Sex Marriage evidence that Global had obtained a trans- purchaser doctrine is equally applicable Obergefell v. Hodges, 135 S.Ct. 2584 fer of this personal right, Global could not to both predial and mineral leases,” Judge (2015). sue for pre-existing damage. Crichton did add in a footnote citing Frank Following the U.S. Supreme Court’s Plaintiffs appealed to the Louisiana Su- C. Minvielle, L.L.C. v. IMC Global Opera- decision in United States v. Windsor, preme Court, again arguing that the Eagle tions, Inc., 380 F.Supp. 2d 755, 776 (W.D. James Obergefell and John Arthur, a Pipe decision was limited to predial leases La. 2004): same‑sex couple, married in Maryland. and was inapplicable to mineral leases and After learning that their state of residence, Mineral Code claims. A victory for the The analysis is similar in the Mineral Ohio, would not recognize their marriage, plaintiffs would have meant the reversal of Code context . . . . Because a mineral they filed a lawsuit, alleging that Ohio’s numerous post-Eagle Pipe suits that have right is a limited personal servitude, ban on recognition of same‑sex marriages applied the subsequent-purchaser doctrine it does not pass with the property, validly performed in other states was to mineral leases and Mineral Code claims. and the subsequent landowner must unconstitutional. The district court agreed, The Supreme Court, however, denied the have “privity of contract, assignment but the 6th Circuit Court of Appeals plaintiffs’ writ application. of rights, or be a beneficiary of a reversed, holding that Ohio’s ban on While the Court denied writs without an stipulation pour autrui” to sue. recognition of same‑sex marriages did opinion, Judge Crichton wrote a separate not violate the U.S. Constitution. The U.S. concurrence on the issue, quoting Eagle The body of case law applying the Supreme Court consolidated Obergefell Pipe and declaring: subsequent-purchaser doctrine to legacy with cases from Tennessee, Michigan lawsuits continues to grow and has received and Kentucky and held that the 14th Under the “subsequent purchaser a substantial boost from this latest decision. Amendment requires a state to license rule” articulated in Eagle Pipe & a marriage between two people of the Supply Inc. v. Amerada Hess Corp., —Lauren E. Godshall same sex and to recognize a marriage “an owner of property has no right Member, LSBA Environmental between two people of the same sex when or actual interest in recovering from Law Section their marriage was lawfully licensed and a third party for damage which was Curry & Friend, P.L.C. performed in another state. inflicted on the property before Ste. 1200, Whitney Bank Bldg. his purchase, in the absence of an 228 St. Charles Ave. assignment or subrogation of the New Orleans, LA 70130

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224 October / November 2015 Procedure/Service Child Support costs, and then apportion the total by the parties’ respective shares. Edwards v. Mathieu, 14-0673 (La. App. Holleman v. Barrilleaux, 14-0499 (La. 4 Cir. 3/11/15), 163 So.3d 110. App. 3 Cir. 11/19/14), 161 So.3d 789. State v. C.B., 14-0360 (La. App. 5 Cir. Because service of the petition for pa- In this child-support-calculation case, 10/29/14), 164 So.3d 850. ternity and child support was “served” by the trial court should have included The father was entitled to credit against long arm to a post office box of Mathieu’s undistributed income from Mr. Holle- future child-support obligations for a employer, and signed for by someone who man’s business as he had the ability to lump-sum disability payment made to was neither his agent nor authorized to withdraw it or leave it in the business. the child. The court of appeal remanded receive mail for him, the default judgment Regular depreciation was excluded from to the trial court to determine the credit he entered against Mathieu was vacated. the income calculation, but accelerated received when the original child-support depreciation was added back. Distribu- case was dismissed in order to determine State v. White, 14-1269 (La. App. 3 Cir. tions to him from another company also any remaining credit to be applied to the 4/1/15), 162 So.3d 716. should have been included in his income. current child-support order. Although Mr. White received a copy of “Draws” that he received from his busi- the petition to establish child support, he ness, above his salary, also should have Final Spousal Support was never actually served with that peti- been included in calculating his income, tion. Thus, the Rapides Parish judgments as were “fringe benefits” paid for him Miller v. Miller, 13-1043 (La. App. 3 Cir. of paternity and child support against him by the company. After determining that 4/2/14), 161 So.3d 690. were annulled. Moreover, since paternity his income was $37,720 per month, and Ms. Miller’s testimony as to what Mr. and child-support matters had previously Ms. Barrilleaux’s income was $4,923 per Miller allegedly said during a counseling been filed in Ouachita Parish, which had month, for a combined income of $42,643 session waived her claim of a patient entered an interim judgment, the matter was per month, the court of appeal stated that health-care-provider privilege, and the remanded to be transferred from Rapides the “proper calculation” was to take the trial court erred in refusing to allow the to Ouachita. As the mother had assigned child support sum at $30,000 ($2,653), counselor to testify. Nevertheless, that her child-support rights to the Department add it to the sum at $12,600 ($1,473), for error did not require reversal of the trial ofLaPorte Social LSJB Services, Ad'15_Layout DSS was 1 to 9/8/15 be made 2:09 a PM Pagea combined 1 basic obligation of $4,126, court’s finding that she was free from fault party after the transfer. then add child care and health-insurance

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Louisiana Bar Journal Vol. 63, No. 3 225 in the breakup of the marriage because: preclude her from final spousal support. (1) although Mr. Miller alleged that she The court did not err in not giving him had abandoned the marriage, he never credit against the support for payments he Insurance, Tort, asked her to return; therefore, he failed had made on the car note and insurance, Workers’ to prove abandonment; (2) she did not finding that he was entitled to raise those Compensation & engage in cruel treatment of him because claims as reimbursements in the property Admiralty Law her comments that she did not love him partition. or like him were reasonable reactions to her reasonable suspicions that he was Community Property/ 5th Circuit Clarifies involved with another woman; and (3) her refusal to have sex with him when he was Pension Chandris Temporal drunk was justified, as was her refusal to Requirement for have sex with him after her suspicions that Ast v. Ast, 14-1282 (La. App. 3 Cir. Seaman Status he was involved with another woman. The 4/1/15), 162 So.3d 720. After the parties reached a stipulation trial court’s award of $5,350 per month Alexander v. Express Energy Servs. Op- and a judgment was signed by their in final spousal support was reduced by erating, L.P., 784 F.3d 1032 (5 Cir. 2015). attorneys and the court, Ms. Ast began the court of appeal to $3,350 per month The 5th Circuit revisited the require- receiving her marital share of Mr. Ast’s because she should have been imputed an ments for a plaintiff to qualify as a Jones Act military retirement benefits. He then earning capacity relative to an income she seaman. In Alexander, the court affirmed a converted those benefits from retirement could have earned working for someone motion for summary judgment granted in to disability benefits and ceased paying her else, rather than the income she was favor of Express Energy Services, ruling that share. Following her rule for contempt, earning running her own unsuccessful the plaintiff did not fulfill the requirements he argued that the court did not have business. Although Mr. Miller complained to be a Jones Act seaman because he did not jurisdiction to enforce her claim against that Ms. Miller’s expenses were excessive, spend more than 30 percent of his time in his disability benefits or to partition them. the court did not consider that, given the service of a vessel in navigation. Under the His arguments were rejected, and he was great disparity in their incomes and the ruling, a plaintiff must actually work on a ordered to provide her those benefits, fact that his professional corporation paid vessel at least 30 percent of his total work as he actively converted the benefit in most of his expenses. time in order to qualify as a seaman under an attempt to deprive her of her share. the Jones Act. Moreover, the judgment provided that Stowe v. Stowe, 49,596 (La. App. 2 Cir. The plaintiff was employed as a lead she would be entitled to her share of such 3/4/15), 162 So.3d 638. hand/operator for Express Energy Services, benefits. His second argument was that Mr. Stowe argued that the award of plugging decommissioned oil wells off the the stipulation addressed only military final spousal support to Ms. Stowe was coast of Louisiana. Plaintiff’s duties involved retirement benefits, but that the judgment improper because no financial records of ensuring the plugging operation’s success by added references to additional benefits, income or expenses were submitted as setting up and running the plugging opera- which should have been struck from evidence. However, the court of appeal tion on the deck of oil-production platforms. the judgment as not conforming to the found that there was no abuse of the trial As many of the platforms were too small to stipulation. This claim, too, was rejected, court’s discretion because the record accommodate the crew and their equipment, as his attorney had signed the judgment, supported the trial court’s reliance on the plaintiff’s work also frequently involved approving it as to form and content, before testimony alone even with no supporting the use of Aries Marine Corp. lift boats in it was submitted to the court. Moreover, documents. Moreover, since Mr. Stowe conjunction with his platform-related du- he did not timely file a motion for new did not object that discovery had not ties to accommodate the additional needed trial or appeal concerning the language been exchanged prior to the start of the space. Plaintiff was injured while working of the judgment, which had become final. case, he could not later complain. The on a platform when a crane wire snapped, court accepted his testimony as to his causing a bridge plug/tool combination to —David M. Prados own income. It found that her testimony drop and roll onto plaintiff’s foot. The crane Member, LSBA Family Law Section as to her expenses and her medical was permanently attached to an Aries lift Lowe, Stein, Hoffman, Allweiss condition was credible. He provided no boat and operated by an Aries employee & Hauver, L.L.P. countervailing evidence. The court also for the use and benefit of the Express crew. Ste. 3600, 701 Poydras St. confirmed her freedom from fault, finding Plaintiff filed a Jones Act claim against New Orleans, LA 70139-7735 that the disputes they had did not rise to his employer, Express, in the Eastern District a level of fault on her part sufficient to of Louisiana. Express filed a motion for summary judgment, arguing that Alexan- der was a platform-based worker who thus failed to satisfy the Chandris test to qualify as a seaman.

226 October / November 2015 To maintain a claim under the Jones Act, forth in Chandris that a plaintiff spend at least plaintiff performed “some incidental work 46 U.S.C. § 30104 et seq., the plaintiff must 30 percent of his total work time on a vessel. on a vessel” while on the job; rather, the qualify as a seaman, a status that requires Alexander argued that he did contribute to plaintiff must show that he actually worked meeting a two-pronged test set forth by the the function of a vessel, namely the Aries lift on a vessel at least 30 percent of the time in Supreme Court in Chandris, Inc. v. Latsis, boat, and that he should be allowed to count order to be classified as a Jones Act seaman. 115 S.Ct. 2172 (1995). Chandris establishes all of his time on jobs where an adjacent The 5th Circuit made it clear that plaintiffs that first a plaintiff must prove that his work vessel was used in order to satisfy the 30 cannot qualify as seamen under the Jones duties “contribut[e] to the function of the ves- percent temporal requirement of Chandris. Act if their only connections to vessels in sel or to the accomplishment of its mission.” The district court granted Express’s navigation are to vessels in support of other The plaintiff need not necessarily aid in the motion, concluding that Alexander’s duties operations, such as work on a platform. This navigation or transportation of the vessel did not contribute to the function of a ves- decision falls in predictable form under so long as he is “doing the ship’s work.” sel because they were related to the fixed Chandris that a worker must perform a Second, Chandris requires that a seaman platform and not the vessel. The court wrote, substantial part of his work aboard a vessel in have a significant connection to a vessel “Alexander was only a passenger on the lift navigation. Alexander acts as a reminder of in navigation, a requirement that separates boat and . . . the lift boat was merely a support the intricacies inherent in maritime law, and land-based workers “whose employment vessel for the platform operations.” The 5th of the fact-specific inquiries in determining does not regularly expose them to the perils Circuit affirmed the district court’s ruling seaman status of injured employees. The of the sea.” Generally, this prong requires that without addressing the first prong, contrib- case is instructive for both plaintiff attorneys workers spend approximately 30 percent of uting to the function or mission of a vessel. vetting future clients/cases and for maritime/ their time in service of a vessel in navigation. The 5th Circuit found that Alexander failed oil employers, their insurers and their legal Express asserted that Alexander did not to satisfy the second prong under Chandris, team in trying to determine benefits available contribute to the function of a vessel as he the temporal-connection requirement that a to employees injured on the job. worked on non-vessel fixed platforms and, seaman must spend a substantial amount of although Alexander spent 35 percent of his time, ordinarily 30 percent, actually work- —Michael S. Finkelstein plug-and-abandonment job time using a lift ing on a vessel. Additionally, the 5th Circuit Wolfe, Begoun & Pick, L.L.C. boat, he did not satisfy the requirement set clarified that it was not sufficient that the Ste. 100, 818 Howard Ave. New Orleans, LA 70113

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Louisiana Bar Journal Vol. 63, No. 3 227 an astounding tariff increase to ICP of for failing to comply with notice and almost 2,400 percent. Id. comment procedures. Id. The Federal International The ensuing years of litigation began Circuit reversed and vacated on appeal, Law in 2005 when CBP liquidated some of finding that the Trade Court lacked residual ICP’s pending entries of white sauce jurisdiction because “mere allegations of under the terms of the 2005 reclassification financial harm . . . do not make the remedy notice. Id. ICP did not file a protest with established by Congress manifestly CBP about the liquidation. Id. ICP did inadequate.” Int’l Custom Prods., Inc. v. U.S. Court of Appeals for file suit against CBP at the U.S. Court of United States, 467 F.3d 1324, 1327 (Fed. International Trade seeking to overturn Cir. 2006). The Federal Circuit ruled the Federal Circuit the 2005 reclassification notice. Id. That that ICP should have protested the CBP court is a court of limited jurisdiction with reclassification, paid the liquidated duty Int’l Custom Prods., Inc. v. United States, specific trade boundaries established by and then commenced the lawsuit. Id. at 791 F.3d 1329 (Fed. Cir. 2015). Congress. See, 28 U.S.C. § 1581 (2000). 1328. After 10 years of litigation, the U.S. It has a residual jurisdiction provision Several other waves of litigation ensued Court of Appeals for the Federal Circuit that is not available when jurisdiction after CBP liquidated additional entries hammered a U.S. food importer with a $28 under another subsection of § 1581 is of white sauce. The 2008 liquidations million duty bill. Appellant International appropriate, or where the remedy under resulting in the duty bill of $28 million Custom Products (ICP) imported a “white the applicable subsection of § 1581 is were the subject of the final appeal. The sauce” for sale to food manufacturers. Id. manifestly inadequate. Id. at 1332. The Federal Circuit upheld the Trade Court’s at 1332. ICP sought a tariff classification applicable subsection in this case is (a), dismissal of ICP’s challenge to the from Customs & Border Protection (CBP) which requires that an aggrieved importer pre-payment requirement. ICP argued in order to establish what tariff, if any, was first file a formal protest with CBP, which that the pre-payment requirement is an owed as a result of the importation of the protest must be denied. Id. Once CBP unconstitutional violation of the Fifth sauce. Id. CBP classified the import under denies the protest, the importer must pay all Amendment Due Process Clause inasmuch the Harmonized Tariff Schedule as “sauces liquidated duties owed before commencing as it creates an “insurmountable financial and preparations therefor.” Id. Six years suit in that court. Id. barrier to judicial review.” Int’l Custom after the classification, CBP notified ICP of ICP did not file a protest with CBP Prods., 791 F.3d at 1335. The Federal a new investigation into the classification but invoked the Trade Court’s residual Circuit noted that “pre-payment of duties of white sauce. Id. at 1333. In 2005, CBP jurisdiction, arguing that any remedy under owed undoubtedly burdens an importer, issued a Notice of Action reclassifying the subsection (a) is manifestly inadequate and we appreciate the harsh reality that white sauce under a different classification, because payment of the liquidated duties requirement imposes here, as ICP must pay “[d]airy spreads.” Id. CBP informed ICP would put the company “on the brink of almost $28 million before it can commence that the reclassification applied to all bankruptcy” and out of business. Id. at 1333. suit in the Trade Court.” Id. However, the pending and future entries of white sauce. The court exercised its residual jurisdiction court’s decision rested on ample precedent Id. The reclassification ultimately created and found the 2005 reclassification invalid holding that pre-payment is an allowable conditional waiver of the United States’ sovereign immunity. Id. at 1335-38. ICP’s failure to pay foreclosed any effort to seek Important Reminder: Lawyer a judicial remedy. Advertising Filing Requirement This case provides a stark reminder to importers and their counsel to carefully Per Rule 7.7 of the Louisiana Rules of Professional Conduct, all lawyer watch all import timelines and deadlines advertisements and all unsolicited written communications sent in compliance with for protests. One available option to Rule 7.4 or 7.6(c) — unless specifically exempt under Rule 7.8 — are required minimize the financial impact of an to be filed with the LSBA Rules of Professional Conduct Committee, through adverse classification is to timely pay the LSBA Ethics Counsel, prior to or concurrent with first use/dissemination. Written duties owed on the first entry and then evaluation for compliance with the Rules will be provided within 30 days of receipt timely request suspension of all remaining of a complete filing. Failure to file/late filing will expose the advertising lawyer(s) liquidations pending final resolution of to risk of challenge, complaint and/or disciplinary consequences. litigation. The necessary Filing Application Form, information about the filing and evaluation process, the required filing fee(s) and the pertinent Rules are available online at: —Edward T. Hayes http://www.lsba.org/members/LawyerAdvertising.aspx. Chair, LSBA International Law Section Inquiries, questions and requests for assistance may be directed to LSBA Ethics Leake & Andersson, L.L.P. Counsel Richard P. Lemmler, Jr., [email protected], (800)421-5722, ext. 144, Ste. 1700, 1100 Poydras St. or direct dial (504)619-0144. New Orleans, LA 70163

228 October / November 2015 the new salary levels from becoming a certain weekly salary. The regulations stale over time, Labor is, for the first time, also exempt “highly compensated” em- Labor and proposing to include an automatic annual ployees who “customarily and regularly” Employment update to the salary and compensation perform one of the exempt duties of an Law thresholds using either a fixed percentile administrative, executive or professional of wages or the Consumer Price Index for employee, but who do not otherwise meet urban consumers. It is still up in the air the duties test. 29 C.F.R. § 541.601. It is whether non-discretionary bonuses and the salary and compensation threshold New Proposed incentive payments should be included to for these employees that Labor is target- determine whether the new salary thresh- ing with the new proposed regulations. Regulations on FLSA olds have been met. Labor has admitted the proposed Overtime Protections As background, the FLSA generally rulemaking will “transfer income from requires that employers pay overtime employers to employees in the form of This summer, the U.S. Department for every hour an employee works in higher earnings.” In fact, Labor estimates of Labor (Labor) proposed new regula- excess of 40 in a particular workweek. that “average annualized direct employ- tions that will dramatically increase the 29 U.S.C. § 207(a). The FLSA exempts er costs will total between $239.6 and number of employees who must be paid certain groups of employees from the $255.3 million per year . . .” and “aver- on an hourly basis under the Fair Labor overtime pay requirements. One of the age annualized transfers are estimated to Standards Act (FLSA). Whereas in the most common exemptions relates to em- be between $1.18 and $1.27 billion . . . .” past employees who earned $455 per ployees working in jobs that are execu- Department of Labor, Frequently Asked week (or $23,660 per year) could qualify tive, administrative or professional — the Questions: www.dol.gov/whd/overtime/ as exempt, the new rule would make the so-called “white collar” exemptions. 29 NPRM2015/faq.htm. salary threshold for exempt status $970 U.S.C. § 213(a)(1). In order for an em- Labor estimates that nearly 4.6 mil- per week (or $50,440 per year). In addi- ployee to fall within one of the white- lion workers who are exempt under the tion, the proposed regulations increase collar exemptions, the employee must current white-collar exemption would no the “highly compensated” threshold from perform executive, administrative or pro- longer be exempt under the new rules. $100,000 to $122,148. Finally, to prevent fessional duties (the duties test) and make Similarly, Labor estimates that 36,000

Louisiana Bar Journal Vol. 63, No. 3 229 workers currently exempt under the The administrative headache would not “highly compensated” category will no stop there. Because exempt employees longer qualify. Finally, Labor estimates normally do not track their hours, many that as many as 6 million workers cur- employers do not have adequate data on Mineral rently classified as white-collar workers the number of hours their formerly ex- Law and who earn at least $455 per week but empt employees worked. Employers will less than the proposed salary level would need to institute processes to ensure ac- have “their overtime protection strength- curate timekeeping for these employees. ened because their non-exempt status This may be particularly difficult because Mediation of Legacy would be clear based on the salary test non-exempt managerial-type employees alone, without any need to review their often perform a variety of potentially Disputes duties.” Id. compensable job-related activities dur- Acts 2015, No. 448, enacts La. R.S. The obvious impact for employees ing their “off” time, such as receiving 30:29.2, which requires parties to legacy reclassified as non-exempt is that they and responding to work calls and emails disputes to “meet and confer” within 60 will begin being paid time-and-a-half if from home, taking work home, working days after the end of the automatic stay they work more than 40 hours in a week. through lunch, etc. All of these activities required by La. R.S. 30:29 “in an effort to However, there may be other unintended must now be taken into account by the assess the dispute, narrow the issues, and negative consequences for the employee, employer when tracking time and deter- reach agreements useful or convenient for possibly including a loss of benefits avail- mining its payroll budget and allocation the litigation of the action.” In addition, the able only to exempt employees, such as of employee responsibilities. new statute establishes a procedure by which vacation or paid time off or eligibility for The regulations will not become final any party to a legacy lawsuit may compel certain managerial bonuses. until the 60-day comment period elapses mediation after the earlier of the close of In addition to the obvious increased and Labor has had a chance to consider the discovery or approximately 18 months after monetary cost of compliance for em- comments. It will then decide whether to the litigation is commenced. Responsibility ployers, many likely will also suffer addi- proceed with the proposed changes, issue for the cost of mediation will be based on tional administrative and record-keeping a new or modified proposal or take no ac- the parties’ agreement or, in the absence of headaches in figuring out how to adjust tion on the proposed rule. If a substantive agreement, will be borne by the party that their workforce to comply with the rules, change is made to the proposal after the moved to compel mediation. while keeping their businesses financial- comments, Labor is required to provide ly viable. Many employers operating in the public with further opportunity for industries that have relied heavily in the comment. If Labor proceeds with the pro- Cross-Unit Wells past on lower-level managers previously posed rule, it will be published in the Fed- classified as exempt (such as retail stores eral Register and will become effective no Louisiana law generally prohibits a and restaurants) will have to reclassify less than 30 days after publication. wellbore from being drilled any closer than large groups of their workforce and pay 330 feet to a property line, unless the well is them on an hourly basis. —Kathlyn Perez Bethune within a unit, in which case the law generally In order to avoid paying overtime to Member, LSBA Labor and prohibits the well from being drilled any a large number of now non-exempt em- Employment Law Section closer than 330 feet from the unit boundary, ployees, the employer may decide to Baker, Donelson, Bearman, though the Commissioner of Conservation increase the total number of employees Caldwell & Berkowitz, P.C. has authority to grant exceptions to this rule. and decrease work hours, which would Ste. 3600, 201 St. Charles Ave. Because fractures tend to propagate in a likely increase transactional costs, such New Orleans, LA 70170 particular direction in a given shale forma- as onboarding, training and benefits. tion, the region near a unit boundary that is parallel to the direction of propagation tends to remain unfractured, and hydrocarbons in that area are not recovered. To allow for the recovery of those hydrocarbons, the Commissioner of Con- servation sometimes issues orders allowing Your call is absolutely confidential a horizontal lateral for one unit to extend as a matter of law. beyond that unit and into the neighboring unit. Such a well is called a “cross-unit well.” The orders authorizing such wells Call toll-free (866)354-9334 have provided that the production from the Email: [email protected] well will be allocated between the units in or visit www.LouisianaJLAP.com proportion to the length of horizontal lat-

230 October / November 2015 eral in each. A concern arose among some permits granted pursuant to the State and Lo- people that a cross-unit well could extend cal Coastal Resources Management Act, and only a short distance into a second unit, that in doing so the defendants have caused but hold all leases in the second unit and harm to the coastal areas. The defendants Professional interrupt prescription of nonuse for mineral removed the various lawsuits to the United Liability servitudes and mineral royalties covering States District Court for the Eastern District land in the second unit. of Louisiana. Upon removal, the multiple Acts 2015, No. 253, enacts La. R.S. cases were assigned to different sections of 30:9.2. The new statute provides that the the court. Plaquemines Parish v. BEPCO, Suspension of Commissioner of Conservation generally L.P. was assigned to Judge Nannette Jo- Prescription: may authorize a cross-unit well, but if a livette Brown. The plaintiffs in the various horizontal lateral will extend less than 500 cases moved to remand. Two Cases feet into the “short unit,” the Commissioner In BEPCO, the defendants argued cannot approve the well unless: (1) the op- that three independent bases existed for Correro v. Caldwell, 49,778 (La. App. 2 erator’s pre-application notice and hearing federal subject matter jurisdiction. First, Cir. 6/3/15), 166 So.3d 442. application expressly state that interested the defendants asserted that there was Dr. Ferrer, Glenwood Medical Center persons may express an objection; and diversity jurisdiction, notwithstanding the and two unidentified employees of (2) either no person with an interest in the existence of non-diverse parties, because the Glenwood were named in Correro’s panel short unit mails an objection to the Com- non-diverse parties had been fraudulently request. Dr. Ferrer acknowledged his missioner 15 days or more in advance of the joined. Judge Brown disagreed, holding that liability, waived panel proceedings, and application hearing, or the short unit already the standard for fraudulent joinder was not was dismissed from the panel proceeding has one or more horizontal laterals with a met. The defendants also argued that subject on Aug. 22, 2013. The panel against combined length of perforated lateral of at matter jurisdiction existed, based on the Glenwood proceeded. least 500 feet. Outer Continental Shelf Lands Act. Judge In Glenwood’s panel brief, it argued Brown rejected that argument, concluding against any responsibility for Caldwell and Greer (the unidentified employees) Fees to the Office of that the plaintiffs’ claim(s) did not arise from an operation on the Outer Continental because they were not Glenwood Conservation Shelf. Finally, she held that removal was employees. not proper based on maritime jurisdiction, On the date of the panel hearing, Acts 2015, No. 362, amends La. R.S. even though the plaintiff complained about Correro amended her panel request and 30:4 to add a subsection “P” that autho- dredging activities conducted by vessels on specifically named Caldwell and Greer as rizes the Commissioner of Conservation navigable waters, because the claim was additional tortfeasors with Dr. Ferrer and to develop a program whereby permit ap- brought in state court under the savings- Glenwood. Ultimately, the “initial panel” plicants may pay an extra fee for expedited to-suitors clause. Accordingly, the court concluded, without awareness of the processing of their application. Act 362 also remanded. amendment, that Glenwood failed to meet amends La. R.S. 30:21(B) to increase the Judge Brown’s order remanding to state the standard of care. The panel opinion ceiling on the statewide aggregate amount court is consistent with orders issued by was mailed to the plaintiff on Dec. 27, of fees that the Office of Conservation may several other sections of the United States 2013. On July 31, 2014, the PCF advised collect on “capable oil wells” and “capable District Court for the Eastern District of Correro that “[u]nknowing to the [PCF] an gas wells,” Class I, II and III wells, and cer- Louisiana, which have remanded similar opinion was rendered on the [initial panel] tain other facilities. Finally, Act 362 amends cases brought by parish governments against when the recently submitted amendment La. R.S. 30:21(d) to authorize certain fees oil and gas companies. dated November 19, 2013 was filed,” and and amends 30:136.1(D) to increase fees that the amendment “will be processed on state mineral leases. —Keith B. Hall as a new request for a medical review Member, LSBA Mineral Law Section panel.” The new panel was assigned a Parish Coastal Erosion Louisiana State University separate PCF number and referenced as Paul M. Hebert Law Center the “second panel.” Lawsuits 1 E. Campus Drive Caldwell and Greer filed exceptions Baton Rouge, LA 70803 of prescription, arguing that claims Plaquemines Parish v. BEPCO, L.P., and against them prescribed on April 7, 13-6704 (E.D. La. July 7, 2015), 2015 WL Colleen C. Jarrott 2014. They conceded that the “initial 4097062. Member, LSBA Mineral Law Section panel” suspended prescription during the Multiple parishes each filed multiple Slattery, Marino & Roberts, A.P.L.C. pendency of the initial panel but, as the lawsuits against various oil and gas compa- Ste. 1800, 1100 Poydras St. plaintiff never filed suit against Ferrer or nies, alleging that the defendants’ activities New Orleans, LA 70163 have violated state and local regulations and Continued on page 233

Louisiana Bar Journal Vol. 63, No. 3 231 Procrastination, Inability to open mail Feelings of bafflement, file stagnation & or answer phones, confusion, loneliness, neglect, inability to “emotional paralysis” isolation, desolation meet professional or and being overwhelmed personal obligations or deadlines Drug or alcohol Persistent abuse Changes apathy or in energy, “empty” feeling eating or sleep habits Loss of interest or pleasure, dropping Trouble hobbies concentrating or remembering things Guilt, feelings of hopelessness, helplessness, worthlessness, or A Johns Hopkins study foundlow self-esteem that lawyers suffer from depression at a rate 3.6 times higher than the general employed population.

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

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

232 October / November 2015 Louisiana Bar Journal Vol. 61, No. 5 232 Glenwood after the initial panel opinion not liable to the patient. Thus during the care provider. Id at 689. had been issued, the claims against the pendency of an allegation of solidary Yet, it distinguished Milbert from the exceptors and any other joint tortfeasors liability or joint liability, the exception instant case in two ways. First, the plaintiff had prescribed. The trial court agreed. of prescription is premature. in Milbert did not initially file a complaint The court of appeal reversed, The court added, in a footnote, that the against a non-qualified provider within referencing La. R.S. 1299.47(A)(2) exception of prescription could still be one year of the alleged negligence, as (a), which recites that a request for raised at trial, and if the exceptors proved had the plaintiffs in Maestri, and, second, review suspends prescription “against that neither Dr. Ferrer nor Glenwood were the Milbert plaintiffs filed suit against the all joint and solidary obligors, and all liable to the plaintiff, their exception of non-qualified provider in district court joint tortfeasors,” including health-care prescription could then be reconsidered. within 90 days of notice from the PCF providers, irrespective of their qualified that Pazos was not a qualified provider, status under the Act, to the same extent Maestri v. Pazos, 15-0009 (La. App. 5 whereas the Maestri plaintiffs had not. that prescription is suspended against the Cir. 5/28/15), ____ So.3d ____, 2015 Therefore, because the plaintiffs in parties who are subject to the request for WL 3440341. Maestri did initially name Pazos in their review, adding that since the Supreme The plaintiffs were notified by the panel request but did not file suit within Court’s opinion in Borel v. Young, 07- PCF that two of the respondents in their a year from the tort, they could not rely 0419 (La. 11/27/07), 989 So.2d 42, request for review (Oceans and Parikh) on the language of the statute to extend 68, a “special rule of suspension of were qualified health-care providers the time to file suit beyond the 90-day prescription” in medical malpractice cases but the third (Pazos) was not. More plus notification by the PCF of Pazos’s applies to all joint tortfeasors, irrespective than 90 days after notification that he non-qualified status. The court added that of whether they are named in the initial was not qualified, the plaintiffs filed a La. C.C.P. art. 934 prohibits defeat of a panel proceeding. lawsuit against Pazos, who then filed an peremptory exception by an amendment Caldwell and Greer argued that the exception of prescription. The plaintiffs to the pleadings. suspension ended on April 7, 2014, 90- countered with an amended petition in plus days after the panel opinion was which they claimed that the qualified —Robert J. David received by the plaintiff, because no providers (Oceans and Parikh) were joint Gainsburgh, Benjamin, David, suit had been filed against Dr. Ferrer, tortfeasors with Pazos, and thus their claim Meunier & Warshauer, L.L.C. Glenwood or any other joint tortfeasor. was timely filed, pursuant to the second Ste. 2800, 1100 Poydras St. But the appellate court noted that when sentence of La. R.S. 40:1299.47(A)(2) New Orleans, LA 70163-2800 the plaintiff filed a panel complaint (a). The plaintiffs also argued that the against the exceptors, the panel was still medical-review panel was still pending pending as to Glenwood, which served as to the qualified health-care providers; to suspend prescription against all joint therefore, the claim against Pazos could tortfeasors, including unnamed ones. The not be prescribed. The trial court, however, exceptors then relied on Robin v. Hebert, disagreed and granted the exception. 12-1417 (La. App. 3 Cir. 5/1/13), 157 The plaintiffs did not dispute that So.3d 63, which held that upon dismissal their petition was filed beyond the “90- horten of a defendant deemed to be not liable, day plus” period of suspension, but they S the “late-added defendants were no argued that, in addition to the language the distance! longer joint tortfeasors, and the special of R.S. 40:1299.47(A)(2)(a), and the Easily join LSBA meetings prescriptive periods under the LMMA continuing suspension of prescription without leaving the room - use your no longer applied.” during the life of a panel, the Supreme office computer, iPad, iPhone, or The appellate court found the case sub Court’s opinion in Milbert v. Answering Android device and connect with judice factually different from Robin, as Bureau, Inc., 13-0022 (La. 6/28/13), others who may be on a wide that case dealt with prescription when 120 So.3d 678, explained and buttressed range of video systems. Attend a a “not liable defendant is dismissed,” their argument that the suspension of video conferencing meeting with the help of the Louisiana State Bar whereas in the present case, when Dr. prescription applied to all joint tortfeasors Association. Visit www.lsba.org/ Ferrer waived the panel process, there was and solidary obligors, irrespective of goto/BlueJeans to find out more no finding that he was “not liable.” The their qualified or non-qualified status. information on how to schedule same was found to be true as to Glenwood: The court of appeal agreed that Milbert your next meeting. When the exceptors were added by the held that a non-qualified, health-care filing of the amended panel complaint, provider may be a joint tortfeasor with Another benefit of membership there had been no determination made a qualified health-care provider who is from the Louisiana State Bar Association that it was “not liable.” In fact, as to either before a medical-review panel; thus, the of the originally named joint tortfeasors, suspension of prescription “may” apply there was never a finding that they were to the filing of suit against the non-health-

Louisiana Bar Journal Vol. 63, No. 3 233 NISCO operates power-generation facili- it purchased the sand and limestone for ties in the Lake Charles area and sells steam further processing into steam and electricity. and electricity manufactured from those Rather, NISCO argued that the materials ap- Taxation facilities. The process used by NISCO to pear in and benefit the ash and that NISCO produce steam and electricity uses sand and intentionally purchased the materials for limestone and produces ash as a by-product the additional purpose of manufacturing thereof. NISCO sells the ash that is produced ash that NISCO sells to third parties. The to a third party. taxing agencies argued that the ash was a Sand and Limestone Are NISCO asserted the sand and limestone residue, not a purposefully created product; at issue were not taxable based on the fur- that no manufacturer produces ash alone as Not Materials for ther processing statute, La. R.S. 47:301(10) a product; and that no business would spend Further Processing in (c)(i)(aa), which states, “The term ‘sale at $46 million on sand and limestone to manu- Power-Generation retail’ does not include sale of materials for facturer ash that sold for only $6.8 million. further processing into articles of tangible The court looked to the testimony of a Bridges v. Nelson Indus. Steam Co., 14- personal property for sale at retail.” The court professor of tax and cost accounting, who 1253 (La. App. 3 Cir. 6/24/15), 169 So.3d applied the test enunciated in International “essentially confirmed that NISCO did not 711. Paper v. Bridges, 07-1151 (La. 1/16/08), treat the ash as a co-product.” Instead, the The 3rd Circuit Court of Appeal affirmed 972 So.2d 1121: “The raw materials, or ash was an incidental by-product that was a trial court decision that found Nelson In- their component molecular parts, (1) must saleable because the purpose of the sand and dustrial Steam Co.’s (NISCO) purchases of be of benefit to the end product; (2) must be limestone was to comply with regulations sand and limestone for its power-generating a recognizable and identifiable component controlling sulfur emissions. The fact that process were not exempt or excluded from of the end product; and (3) must have been NISCO found a revenue stream for the ash sales taxes under the further-processing purchased for the purpose of reprocessing did not mean the purpose for buying the statute, La. R.S. 47:301(10)(c)(i)(aa). The into the end product.” limestone was changed. The court held the court upheld the state collector’s assessment It was undisputed that the sand and sand and limestone were not purchased for of additional sales taxes and the parish col- limestone did not appear in any form in the further processing into an end-product — lector’s denial of NISCO’s claims for refund steam and electricity produced and sold by steam or electricity — but were instead part of sales taxes based on the statute. NISCO, and NISCO did not contend that of an incidental by-product. As a result, the

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234 October / November 2015 court affirmed the trial court’s finding that 31, 2015. value of estate assets within 30 days of the NISCO’s purchases of sand and limestone Previously, the values reported on the estate-tax return’s due date. These new were subject to sales tax and not exempt federal estate-tax return were “deemed” to be statements are added to the definition of or excluded from tax under the further- the fair-market values of the property passing “information return” and “payee statement” processing statute. from the decedent for the purpose of deter- under IRC § 6724(d), making failure to mining the income-tax basis for the property furnish them subject to penalty under IRC —Antonio Charles Ferachi under IRC § 1014 (Treas. Reg. 1.1014-3(a)), §§ 6721 and 6722. Member, LSBA Taxation Section but it was not an absolute requirement that Although these new provisions apply to Director, Litigation Division the same values be used for federal estate- property for which an estate-tax return is Louisiana Department of Revenue tax and income-tax purposes, and there filed after the date of enactment, according to 617 North Third St. were no specific reporting requirements or Notice 2015-57, effective on Aug. 21, 2015, Baton Rouge, LA 70821 specific penalties for applying inconsistent the IRS has postponed the due date for any values. H.R. 3236 adds (1) a new subsection statement that IRC § 6035 requires to be filed Consistent Basis 1014(f), which states that the basis of prop- with the IRS and estate beneficiaries before erty acquired from a decedent cannot exceed Feb. 29, 2016, until Feb. 29, 2016, to allow Reporting Between the value finally determined for estate-tax the IRS time to issue guidance addressing Estates and Persons purposes; (2) new section 6035, requiring the requirements of IRC § 6035. basis reporting by persons required to file The IRS is requesting comments on Acquiring Property estate-tax returns; and (3) inconsistent basis the guidance to be issued, which can be reporting to the list of actions for which a 20 submitted electronically and should refer Consistent tax-basis reporting by the percent accuracy-related penalty is imposed to Notice 2015-57. executor of an estate on the federal estate-tax under IRC § 6662. return and the beneficiaries of the estate on New IRC § 6035 requires executors of —Caroline D. Lafourcade their individual income-tax returns will be estates and other persons who are required to Member, LSBA Taxation Section required under section 2004 of H.R. 3236, file returns under IRC § 6018(a) or 6018(b) Montgomery Barnett, L.L.P. Surface Transportation & Veterans Health to now furnish the IRS and the estate’s 3300 Energy Centre, 1100 Poydras St. Care Choice Improvement Act of 2015 (P.L. beneficiaries with statements reporting the New Orleans, LA 70163 114-41), which was signed into law on July

Louisiana Bar Journal Vol. 63, No. 3 235 Young Lawyers Chair’s Message... Spotlight

evaluated. Behave accordingly. Dress the CHAIR’S MESSAGE part. Don’t do silly things generally. Every- thing you do or say can and will be used against you. Welcome, New Lawyers! Be Nice. Interact with everyone in a way that builds your personal brand. For By Erin O. Braud that purpose, “everyone” starts with your secretary and the bicycle messenger de- We welcome our off more — even though it’s always avail- livering your dinner. It also includes your newly licensed attor- able, absent a financial crisis. Then focus colleagues, paralegals and junior associ- neys to the practice of on doing a really great job, on time, on the ates who might report to you, the partners law! The swearing-in assignments you’ve undertaken. who assign you work, and opposing coun- ceremonies remind Understand What They Want. When sel. Don’t complain. Don’t have fits. Don’t me of how it felt to be you get an assignment, pay attention from whine. Eventually, you develop a persona a new lawyer and the the very beginning. Bring a notepad and — an image and a perception of who you value of good mentors take notes. Understand what your supervi- are — within the firm and even within and advice. The transi- sor wants you to do, and how your supervi- the larger practice and business world. tion from law school to Erin O. Braud sor wants you to present that work product. Your persona consists of the accumulated lawyer is a big change You don’t want to find that you’ve wasted effect of all the interactions with every- for most. Now begins a lot of time producing something that’s one you’ve met. And once you establish learning the art of the billable hour, office not what they want. You look bad that way, your persona, it travels through walls and etiquette, case management, handling clients and you cause time crunches, emergencies doesn’t go away. Once the world perceives and handling other lawyers. With that in and billing write-offs. If you aren’t sure you as negative or a whiner or “difficult,” mind, I offer some of my favorite advice what your supervisor wants, ask him/her. it’s very hard to change that. Don’t let it through the years to our newest lawyers, and But try to collect all your questions at once happen in the first place.1 some reminders to the rest of us. rather than bombard your supervisor with Find a Mentor. Law firms have men- Work Hard. Yes, of course, you expect a series of emails. tor programs. The Louisiana State Bar to be told to work hard. But you should Escape from Email. You’re in an of- Association also has a mentor program. work hard strategically. Be available for fice. You can still walk down the hall and There are many reasons to have a mentor: that horrible assignment from the assign- talk to someone. Do it. This will enhance to learn from another’s experience (some- ing partner on a Friday night. It’s not great the quality of your interactions, help you times mistakes), to seek advice, to learn the for your family life, but you won’t have to learn more, and build relationships that unwritten rules of being a lawyer, to have a do it every Friday night, and it comes with will ultimately help you. You might even sounding board of ideas, and to see it done the territory. Make sure people know you have a conversation with someone and before you have to do it on your own. Take “stepped up” and know, subtly, how hard learn something that wasn’t exactly what time to find a mentor and start building a you are working. People notice. People re- you expected. relationship that will affect, for the better, member. It doesn’t hurt to send emails in Legal Research. Lawyers are sup- the rest of your career. the middle of the night. posed to know law and know how to find Finally, be diligent, ethical, continue to But Don’t Work Too Hard. On the answers to legal questions. Those skills at- learn, communicate regularly with your other hand, there is always more work rophy in legal practice, replaced by a gen- clients and you will do fine in your new role you can do. You can always have more eral tendency to use online searches to an- as a new lawyer. Congratulations on your assignments piled on your plate. If you let swer every question. Don’t let that happen. tremendous accomplishment. Welcome to yourself get truly overworked, you invite When legal questions arise, approach them the Bar and good luck! mistakes, missed deadlines, dropped balls as a lawyer. Get legal answers through le- FOOTNOTE and other problems. People will remember gal research. You will learn far more than those screw-ups much more than all the those answers. It’s one of the best ways to 1. Joshua Stein (Oct. 5, 2012), “From the Career hours you worked. So once you have bitten develop your knowledge and legal skills. Files: A Dozen Suggestions for New Lawyers” [web log post], http://abovethelaw.com/2012/10/from-the- off a good amount of work, try not to bite Evaluation. You are always being career-files-a-dozen-suggestions-for-new-lawyers/.

236 October / November 2015 mercial litigation, including shareholder where he continued to focus his practice Young Lawyers disputes, minority shareholder rights, in the areas of construction law, corporate Spotlight derivative actions, dissolution and breach law, business litigation, transactions and of fiduciary duty. He also has represented general civil litigation. Michael E. Platte both owners and contractors in various An active member of the Baton Rouge Baton Rouge types of construction litigation. Bar Association, Platte is founder and A lifelong resident of Baton Rouge, he co-chair of the Business/Corporate Law The Louisiana received his undergraduate degree from Section. He also currently serves on the State Bar Associa- Louisiana State University and his JD Law Expo Committee and chaired the tion’s Young Law- degree in 2008 from Southern University 2011 and 2012 Law Expo. yers Division is spot- Law Center. Following graduation, he Also active in the Baton Rouge com- lighting Baton Rouge worked for the firm Myles, Cook & Day munity, he is a member of the board of attorney Michael E. where his practice focused on construction trustees for the Boys and Girls Club of Platte. law, corporate law and general civil litiga- Greater Baton Rouge, is vice-chair of the An associate with tion. He also served as general counsel for Alcohol and Beverage Control Board for Ogwyn Law Firm, the Zachary Community School Board. In East Baton Rouge Parish, and is a member L.L.C., Platte’s prac- Michael E. Platte 2010, he joined the law offices of James of the Rotary Club of Baton Rouge. He tice includes business S. Holliday, Jr., A.P.L.C., in Baton Rouge previously served on the board of direc- and commercial litigation, corporate where he assisted Holliday with the 2010 tors for Forum 35. law, construction law and general civil Louisiana Practice Series for construction Platte and his wife, Anne Bennett litigation. He has handled a wide range and corporate law. He later joined the Ba- Platte, are the parents of one child and are of matters in the area of business and com- ton Rouge firm of Dunlap Fiore, L.L.C., expecting their second child in January. Pro Bono Heroes: Providing Justice for All

Helping others without any expectations is medicine for the soul. I believe that our success can only be measured by the actions we perform to improve the lives of others.

– Booker T. Carmichael, J.D. Attorney at Law and volunteer with Baton Rouge Bar Association’s Pro Bono Project Baton Rouge, LA

ustice F Providing J or A Access to Justice ll www.lsba.org/ATJ Louisiana State Bar Association

Louisiana Bar Journal Vol. 63, No. 3 237 JUDICIAL Notes By David Rigamer, Louisiana Supreme Court New JudgeS... Appointments... Memoriam

New Judges Circuit Court of Appeal, from 1977-78. he was a member He next worked for a year as an associate of the National Thomas W. with Hargrove, Guyton, Ramey & Bar- Moot Court Trial Rogers was elected low. From 1979 until his election to the Team. He began judge, Division B, bench, he was a partner in Napper, Mad- his law practice as 3rd Judicial District den & Rogers in Ruston. Judge Rogers is an associate with Court. He earned married to Beth Donner Rogers and they Weems, Wright, his BA degree in are the parents of three children. They Schimpf, Hayter & 1974 from Louisi- have five grandchildren. Gilsoul, A.P.L.C., ana Tech and his JD Jefferson R. Thompson was elected in Shreveport. Jefferson R. degree in 1977 from judge, Division B, 26th Judicial District From 1997-2003, Thompson Louisiana State Thomas W. Rogers Court. He earned his bachelor’s degree he was a partner in Boggs & Thompson, University Paul M. in 1988 from Northeast Louisiana Uni- A.P.L.C. From 2003 until his election to Hebert Law Center. He served as law versity and his JD degree in 1995 from the bench, he was a solo practitioner in clerk to Judge Charles A. Marvin, 2nd Tulane University Law School, where Shreveport. He served as State Repre-

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

The Louisiana State Bar Association/Louisiana Bar Foundation’s Community Action Committee is assisting the ‘WEEN DREAM program in the collection of new and/or slightly used Halloween costumes for children in need. Law firms, attorneys and legal professionals wishing to donate should drop off costumes at the Louisiana Bar Center, 601 St. Charles Ave., New Orleans, on Monday through Friday, Nov. 2-6, during business hours (8:30 a.m.-4:30 p.m.). Costumes may simply be placed in bags. There is no labeling or sorting process required. ‘WEEN DREAM volunteers will handle the sorting process and match the costumes to children for Halloween 2016. (Costumes that were donated after Halloween 2014 are being distributed to children for 2015.) New Orleans Lafayette Alexandria Lake Charles Krystal Bellanger Rodriguez Jo Abshire Alainna Mire Hoffoss Devall, LLC Louisiana State Bar Association Lafayette Bar Association Alexandria City Hall 517 West College Street, 601 St. Charles Avenue 2607 Johnston St 915 Third Street Lake Charles, LA 70605 New Orleans, LA 70130 Lafayette, LA 70503 Alexandria, LA 71301 (337) 433-2053 (504) 566-1600 (337) 237-4700 Shreveport Baton Rouge Monroe Dana Southern Clint R. Hanchey Baton Rouge Bar Association The Shreveport Bar Association Hayes, Harkey, Smith & Cascio 544 Main St. 625 Texas Street 2811 Kilpatrick Blvd. Baton Rouge, LA 70802 Monroe, LA 71201 Shreveport, LA. 71101 (225) 344-4803 318-387-2422 (318) 222-3643

238 October / November 2015 sentative, District 8, from 2012-15. He Union University and his JD degree, Appointments is the recipient of Tulane University’s cum laude, in 1993 from Southern Uni- Yiannopoulos Award and is past presi- versity Law Center. He served as a Ter- ► Judge Alonzo Harris, Judge Robert dent of the Bossier Parish Bar Associa- rebonne Parish assistant district attorney H. Morrison III, Judge Shonda D. Stone and tion. Judge Thompson is married to Toni for more than 20 years and was a Proj- Judge Benedict J. Willard were appointed, Thompson and they are the parents of ect LEAD instructor for local schools. by order of the Louisiana Supreme Court, two children. In 2010, he served as president of the to the Judicial Budgetary Control Board Timothy S. Terrebonne Bar Association. In 2011, he for terms of office which began July 1 and Marcel was elect- received The Courier’s Reader’s Choice will end on June 30, 2018. ed judge, Division Award for Best Trial Attorney. Judge ► Dow Michael Edwards and William E, 29th Judicial Pickett is married to Bernadette Robinet C. Kalmbach III were appointed, by order District Court. He Pickett and they are the parents of two of the Louisiana Supreme Court, to the earned his bach- children. Committee on Bar Admissions for terms elor’s degree in Hunter V. of office which began on July 1 and will 1991 from Nicholls Greene was elected end on June 20, 2020. State University judge, Division D, ► David L. Morgan was appointed, by and his JD degree Timothy S. Marcel East Baton Rouge order of the Louisiana Supreme Court, to in 1996 from Loui- Parish Family Court. the Louisiana Board of Legal Specializa- siana State University Paul M. Hebert He earned his BS de- tion for a term of office which ends on Law Center. He established his private gree in accounting in June 30, 2018. practice in 1997 in Luling. He is past 1989 from Louisi- president of the St. Charles Parish Bar ana State University Death Association and served as a board mem- and his JD degree, Hunter V. Greene 30th Judicial District Court Judge James ber of the District Court’s Indigent De- magna cum laude, Richard (Jim) Mitchell, 69, died July 24. fender Board. Judge Marcel is married in 1994 from Southern University Law Valedictorian of Baker High School, he to Sarah E. Marcel and they are the par- Center. Following his law school gradu- earned both his undergraduate and JD ents of twins. ation, he worked as an attorney for the degrees from Louisiana State University. Juan W. Pick- Legislative Auditor’s Office until 1998. After serving in the U.S. Army as a captain ett was elected He practiced as a sole practitioner from in the Judge Advocate General’s office, judge, Division C, 1998 until his election to the bench. He he started his private practice in 1974 in 32nd Judicial Dis- also served in the Louisiana House of Leesville. While in private practice, Judge trict Court, becom- Representatives, representing District 66, Mitchell served as president of the 30th ing the court’s first from 2005-14. Judge Greene is married Judicial District Bar Association and acting African-American to Emily Aaron Greene and they are the city judge and attorney for the Leesville judge. He earned parents of three children. Housing Authority. He was elected to his BA degree in the 30th JDC in 2008 and was re-elected 1990 from Virginia Juan W. Pickett unopposed in 2014. Ethics Advisory Service www.lsba.org/goto/ethicsadvisory For assistance with dilemmas and decisions involving legal ethics, take full advantage of the LSBA’s Ethics Advisory Service, offering - at no charge - confidential, informal, non-binding advice and opinions regarding a member’s own prospective conduct. Eric K. Barefield, Ethics Counsel LSBA Ethics Advisory Service, 601 St. Charles Ave., New Orleans, LA 70130-3404 (504)566-1600, ext. 122 • (504)619-0122 • toll-free: (800)421-5722, ext. 122 • Fax: (504)598-6753 E-mail: [email protected]

Louisiana Bar Journal Vol. 63, No. 3 239 People LAWYERS ON THE MOVE . . . NEWSMAKERS

Gregorio, Chafin & Johnson, L.L.C., in Perrier & Lacoste, L.L.C., in New Orleans LAWYERS ON Shreveport announces that Verity Gentry announces that Kristie L. Mouney has THE MOVE Bell has joined the firm as an associate. joined the firm as special counsel.

Adams and Reese, L.L.P., announces that Hailey, McNamara, Hall, Larmann & Phelps Dunbar, L.L.P., announces that Johnny L. Domiano, Jr. has been appointed Papale, L.L.P., in Metairie announces that former Southern University Law Center partner in charge of the New Orleans office. attorney Natasha Z. Wilson has joined the Chancellor and retired judge Freddie Elizabeth A. Roussel, a partner in the New firm. Also, Shannon C. Burr, James H. Pitcher, Jr. has rejoined the firm as a Orleans office, was elected to the firm’s Johnson, Meredith A. Mayberry, E. Stuart senior partner in the Baton Rouge office. Executive Committee. Also, Adam P. Gu- Ponder and B. Marianne Wise have joined lotta has joined the New Orleans office as the firm as associates. Halima Narcisse Smith and Reed S. a staff attorney. Minkin announce the formation and Hammonds, Sills, Adkins & Guice, L.L.P., opening of their law firm, Smith Minkin Anderson & Boutwell in Hammond an- with offices in Baton Rouge and Monroe, Law Group, L.L.C. Offices are located at nounces that Ashley Anderson Traylor announces that Monica M. Vela-Vick has 1106 Girod St., Mandeville, LA 70448, has joined the firm as an associate. joined the firm as an associate in the Baton (985)951-2222; and Ste. 201, 3201 Rouge office. General de Gaulle Dr., New Orleans, LA Coats, Rose, Yale, Ryman & Lee announces 70114, (504)358-2112. Website: www. that Jason A. Camelford and Molly L. Jones Walker LLP announces that Henry smithminkin.com. Stanga have joined the New Orleans office F. O’Connor III has been elected to the as associates. partnership in the Mobile, Ala., office. Stites & Harbison, P.L.L.C., announces that Katrina Lynn Dannheim has joined the firm Dunlap Fiore, L.L.C., in Baton Rouge an- Kelly Hart & Pitre announces that Gary as counsel in the Louisville, Ky., office. nounces that Hunter R. Bertrand has been M. Carter, Jr. has joined the firm as a elected a partner in the firm, and Katelin partner in the New Orleans office. E. Ann Wise was appointed by Louisiana Hughes Varnado has joined the firm as Gov. Bobby Jindal and confirmed by the an associate.

Troy N. Bell Hunter R. Bertrand Jason A. Camelford Gary M. Carter, Jr. Ryan M. Goudelocke Chauntis T. Jenkins

Vinson J. Knight Jayanne Jené Kristie L. Mouney Freddie Pitcher, Jr. Christopher J. Molly L. Stanga Liggins Sellers, Jr.

240 October / November 2015 Louisiana Senate to serve a fourth six- Chauntis T. Jenkins, a partner in the than 30 years of year term as director of the Division of New Orleans office of Porteous, Hainkel experience practic- Administrative Law. & Johnson, L.L.P., is the new chair of the ing law, with the American Bar Association’s Standing majority of those NEWSMAKERSNEWSMAKERS Committee on Disaster Response and years in the U.S. Preparedness. Attorney’s Office. Troy N. Bell, a member in the New He received his un- Orleans office of Courington, Kiefer Vinson J. Knight, an attorney in the New dergraduate degree & Sommers, L.L.C., was named to the Orleans office of Sullivan Stolier Knight, in 1979 from the National Black Lawyers Top 100 List for L.C., was elected as a member of the University of New John A. Broadwell 2015, was selected for membership in Louisiana State Bar Association’s Health Orleans and his JD the American Chemical Society, and was Law Section Council. degree in 1983 from appointed co-chair of the Louisiana State Loyola University College of Law. Fol- Bar Association’s Diversity Committee Jayanne Jené Liggins, an associate in lowing law school graduation, he joined a and Community Action Committee. the New Orleans office of Courington, Shreveport firm and engaged primarily in Kiefer & Sommers, L.L.C., was named civil litigation. He next joined the Caddo Charles J. Boudreaux, Jr., special counsel in to the National Black Lawyers Top 100 Parish District Attorney’s Office where he the Lafayette office of Jones Walker LLP, List for 2015. initially handled appeals and later handled was elected as board president of the New misdemeanors and felonies as a litigating Cardiovascular Horizons Foundation. He Christopher J. Sellers, Jr., an associate in assistant district attorney. In January 1987, will serve as president through July 2017. the New Orleans office of Sullivan Stolier he joined the U.S. Attorney’s Office and Knight, L.C., was appointed as a member handled appeals to the 5th Circuit before Breazeale, Sachse & Wilson, L.L.P., an- of the Louisiana State Bar Association’s joining the Civil Division. He served 13 nounces that Alan H. Goodman, Murphy J. Bar Governance Committee for 2015-16. years as the deputy and civil chief of the Foster III and Claude F. Reynaud, Jr. were Civil Division and later served as litigator named Fellows of the Litigation Counsel ININ MEMORIAM MEMORIAM handling civil matters. He served the U.S. of America. Goodman is a partner in the Attorney’s Office and the Department New Orleans office. Foster and Reynaud John A. Broadwell, a civil assistant U.S. of Justice with distinction under five are partners in the Baton Rouge office. attorney in the U.S. Attorney’s Office, Presidents. Mr. Broadwell is survived Western District of Louisiana, Shreveport by his wife, Diane Davis Broadwell, two Ryan M. Goudelocke, a partner in the Division, died Sept. 2 after a long battle children, a granddaughter, his mother, two Lafayette firm of Durio, McGoffin, Stagg & with cancer. He was 58. A resident of brothers and other relatives. Ackermann, is registered to practice before Bossier City, Mr. Broadwell had more the U.S. Patent and Trademark Office. Continued next page People Deadlines & Notes Deadlines for submitting People announcements (and photos): Publication Deadline Feb./March 2016 Dec. 4, 2015 April/May 2016 Feb. 4, 2016 June/July 2016 April 4, 2016 Jack M. Stolier Ashley Anderson Aug./Sept. 2016 June 4, 2016 Traylor Announcements are published free of charge for members of the Louisiana State Bar Association. Members may publish photos with their announcements at a cost of $50 per photo. Send announcements, photos and photo payments (checks payable to Louisiana State Bar Association) to: Publications Coordinator Darlene M. LaBranche Louisiana Bar Journal 601 St. Charles Ave., New Orleans, LA 70130-3404 or email [email protected]. Katelin Hughes Monica M. Varnado Vela-Vick

Louisiana Bar Journal Vol. 63, No. 3 241 Charles Edmund is survived by his wife, Betty Woodward (Shreveport): Sam N. Gregorio. McHale, Jr., a New McHale, four daughters, nine grandchil- Herman, Herman & Katz, L.L.C. Orleans lawyer who dren and four great-grandchildren. (New Orleans): Leonard A. Davis, Soren was a leading figure E. Gisleson, Maury A. Herman, Russ M. in the civil rights PUBLICATIONSPUBLICATIONS Herman, Stephen J. Herman, Brian D. movement and who Katz, James C. Klick and Steven J. Lane. was known for his Best Lawyers in America 2016 King, Krebs & Jurgens, P.L.L.C. work with tax sale Barrasso Usdin Kupperman Free- (New Orleans): J. Grant Coleman, Eric statutes, died May man & Sarver, L.L.C. (New Orleans): E. Jarrell, George B. Jurgens III, Henry A. 18. He was 89. A Charles E. Judy Y. Barrasso, George C. Freeman III, King, Patricia A. Krebs, Robert J. Stefani, native New Orlea- McHale, Jr. John W. Joyce, Stephen H. Kupperman, Jr. and David A. Strauss. nian, Mr. McHale H. Minor Pipes III, Thomas A. Roberts, Lamothe Law Firm, L.L.C. (New received a BS degree in geology from Tu- Richard E. Sarver and Steven W. Usdin. Orleans): Frank E. Lamothe III. lane University and law degrees from both Breazeale, Sachse & Wilson, L.L.P. Ogletree, Deakins, Nash, Smoak & the University of Texas-Austin and Loyola (Baton Rouge, New Orleans): Robert L. Stewart, P.C. (Lafayette, New Orleans): University Law School. He practiced law Atkinson, Thomas M. Benjamin, Robert Monique Gougisha Doucette, Greg Guidry, for 64 years and was admitted to practice T. Bowsher, Jude C. Bursavich, David Steven Hymowitz, Mark N. Mallery, Chris- in United States district courts and the U.S. R. Cassidy, David M. Charlton, Murphy topher E. Moore and Christine M. White. Supreme Court. In 2012, he served on the J. Foster III, Gregory D. Frost, Alan H. committee revising the tax sales statutes Goodman, Emily Black Grey, Paul M. Chambers USA 2015 for Louisiana and was considered by his Hebert, Jr., Scott N. Hensgens, Michael Flanagan Partners, L.L.P. (New colleagues as the “best tax sale attorney.” R. Hubbell, Joseph R. Hugg, David R. Orleans): Thomas M. Flanagan. He was a member of the New Orleans Bar Kelly, Eve B. Masinter, Van R. Mayhall, Louisiana Super Lawyers 2015 Association’s Executive Committee and Jr., Trenton J. Oubre, Richard G. Passler, Gregorio, Chafin & Johnson, L.L.C. received a Lifetime Achievement Award Claude F. Reynaud, Jr., Jerry L. Stovall, (Shreveport): Scott J. Chafin, Jr., Sam N. from the Louisiana Land Title Associa- Jr., Thomas R. Temple and B. Troy Villa. Gregorio and Julie Payne Johnson. tion. He was a past president of the Urban Domengeaux Wright Roy Edwards League of Greater New Orleans. He was & Colomb, L.L.C. (Lafayette): James H. New Orleans Magazine board chair and founding legal counsel of Domengeaux, James P. Roy, Elwood C. Sullivan Stolier Knight, L.C. (New Methodist Hospital New Orleans and its Stevens, Jr. and Bob F. Wright. Orleans): Jack M. Stolier, Top Lawyer general counsel from 1965-90. Mr. McHale Gregorio, Chafin & Johnson, L.L.C. for 2015.

Coming in early 2016! LSBA Online TECHCENTER The Louisiana State Bar Association’s online TECHCENTER is set for launch in January 2016.

This virtual comprehensive resource will become the one-stop shop for legal technology news and guidance to improve the efficiency and productivity of law practices. Among the offerings: ► Discussions on technology choices for law practices. ► General tech training with free videos. ► Lawyer-centric tech training through the Chicago Bar Association’s online “How To” video library. Stay tuned for more information via LSBA’s print and online publications and social media!

omplimentary benefiit o A c f membership in the Lou on!

isiana State Bar Associati

www.lsba.org

(504)566-1600 • (800)421-5722

601 St. Charles Ave., New Orleans, LA 70130-3404

242 October / November 2015 News Francophone... local bars... lbf

Update Orleans Parish Criminal District Court LSBA Francophone Section Hosts Ontario Bar Judges Recognized About 140 judges, lawyers, law professors and officials from the Ontario by ABA Journal Bar Association attended their annual convention in Lafayette and New Orleans Orleans Parish Criminal District Court from June 25-30. Hosting events for Judges Laurie A. White and Arthur L. the group were the Louisiana State Bar Hunter, Jr. were recognized as two of 11 Association’s Francophone Section, the new “Legal Rebels” by the ABA Journal. Lafayette City Parish Government, the Profiles of all honorees are featured in the U.S. District Court for the Western District cover story, “Meet our 2015 Legal Rebels,” of Louisiana and the Federal Bar Associa- tion’s Lafayette Acadiana Chapter. in the September 2015 issue, accessible The event, which featured continuing online at: www.abajournal.com/magazine/ education, lectures and meetings focused article/meet_our_2015_legal_rebels. on a comparison between the justice This is the seventh year that the maga- systems in Ontario and Louisiana, was zine has recognized “Legal Rebels,” de- coordinated by a former member of the fined as legal professionals who are finding Canadian Supreme Court, Justice J.E. Mi- Louisiana State Bar Association Francophone Sec- new ways to practice law, represent their chel Bastarache. Justices Julie Thorburn, tion Chair Warren A. Perrin, left, with Attorney clients, adjudicate matters and train the Robert N. Beaudoin and Albert Roy also General of the Province of Ontario Madeleine next generation. “Rebels” are nominated Meilleur during the Ontario Bar Association’s attended the event. by readers and staff. Louisiana 15th Judicial District Court convention in Louisiana in June. Judge White and Judge Hunter are be- Judge Patrick L. (Rick) Michot addressed ing recognized for their work in founding the group. The visitors also were given rector Georgia Chadwick and 4th Circuit a VIP tour of the Louisiana Supreme Court of Appeal Chief Judge James F. the Orleans Re-entry Court Workforce Court by Law Library of Louisiana Di- McKay III. Development Program. This program gives purpose, value and meaning to the time that lifers and inmates spend at Lou- isiana State Penitentiary at Angola. Through the program, men serving life sentences teach new inmates GED classes and offer job training in trades like plumbing and carpentry. Prison officials manage the program and select life-sentence inmates they trust to do the teaching. Life skills, including anger management, parenting and character, are also taught by men serving life sentences. White and Hunter said about 70 percent of released inmates who finish the program successfully reintegrate into society. Participants can win early release The New Orleans Bar Association’s Young Lawyers Section coordinates twice-a-month lunch service at Ozanam Inn, a homeless shelter in downtown New Orleans. Recent volunteers included, from left, once they complete the program, which Christopher D. Wilson, Courtney J. Vance, Jeanne Amy, Christopher K. Ralston, Kimberly Silas, Ni- can take two years. They then serve five cole Gurba and Lauren E. Godshall. years’ probation.

Louisiana Bar Journal Vol. 63, No. 3 243 Several judges attended the July Baton Rouge Bar Association’s Annual Bench Bar Conference, with the theme “Privacy, Please.” The conference Baton Rouge Bar Association (BRBA) President Robert J. Burns, Jr., cen- featured sessions covering all aspects of privacy, from social media and cy- ter; BRBA Immediate Past President Darrel J. Papillion, right; and C. berspace to privacy in the workplace. Among the attendees were, from left, Frank Holthaus, Louisiana State Bar Association House of Delegates mem- Judge Anthony J. Marabella, Jr., 19th Judicial District Court; Judge Alex ber, were among the attendees at the BRBA’s Annual Bench Bar Confer- W. (Brick) Wall, Jr., Baton Rouge City Court; and Judge Michael R. Erwin, ence, with the theme “Privacy, Please,” in Alabama in July. 19th Judicial District Court.

Louisiana State University defensive line Coach Ed Orgeron, center, was the guest speaker during the Baton Rouge Bar Association’s (BRBA) June 18 lun- cheon, organized by the BRBA Young Lawyers Section (YLS) Council. From left, Erin Sayes Kenny; Loren Shanklin Fleshman, YLS secretary; Scott M. Levy, YLS chair; Orgeron; Francisca M. Comeaux, Scotty E. Chabert, Jr. and Mackenzie Smith Ledet. LBF Sets Grant Save the Date! LBF Send your Application 30th Anniversary news! Fellows Gala Deadlines The Louisiana Bar Journal Friday, April 8, 2016 would like to publish news and The Louisiana Bar Foundation’s grant Hyatt Regency New Orleans photos of your activities and application for 2016-17 funding is avail- accomplishments. able online. The deadline for submitting Discounted rooms are available Thurs- grant applications is Dec. 1, 2015. day, April 7, and Friday, April 8, 2016, at Email your news items and The Loan Repayment Assistance $229 a night. To make a reservation, call photos to: Program (LRAP) application for 2016- the Hyatt at 1(888)421-1442 and refer- LSBA Publications Coordinator 17 funding also is available online. The ence “Louisiana Bar Foundation” or go Darlene LaBranche at deadline for submitting LRAP applica- to https://resweb.passkey.com/go/labar- [email protected]. tions is Feb. 12, 2016. foundationannuagala. Reservations must For more information, go to: www. be made before Monday, March 14, 2016. Or mail press releases to: raisingthebar.org. For more Gala information, contact Darlene LaBranche, 601 St. Danielle J. Marshall at (504)561-1046 or Charles Ave., New Orleans, LA email [email protected]. 70130-3404

244 October / November 2015 Louisiana Bar Foundation President’s Message LBF is Giving Kids a Chance By President H. Minor Pipes III atelyn’s dad was a cab driver in often have to confront totaling $459,600. New Orleans for 30 years. As he the hurdle of funding The Louisiana Workers’ Compensation was approaching the customer’s their education beyond Corp. is hosting its Annual Kids’ Chance destination, the customer robbed him high school. Golf Tournament on Oct. 19 at Louisiana andK shot him seven times. He died on the job. This year, Kate- Country Club. All proceeds benefit the LBF Alesha’s dad was an ambulance worker in lyn, Alesha and 15 Kids’ Chance Scholarship Program. For more Cameron Parish. He was crushed when strong additional students information on the golf tournament, contact winds knocked the trailer housing his office received $52,500 in Dee Jones at (504)561-1046. off of its blocks. He was pinned between the scholarships from the In addition, the LBF is participating in the building and a car. He died on the job. Louisiana Bar Foun- H. Minor Pipes III first National Kids’ Chance Awareness Week, This year it is estimated that more than dation (LBF) Kids’ Nov. 2-6. Please help us spread the word 100 Louisiana workers will die on the job. Chance Scholarship Program. These scholar- about this program to families in your area. More than 45,000 will be injured, leaving half ships are specifically awarded to dependents Applications for the 2016-17 school year, of those injured disabled. Families of these of Louisiana workers who have been killed along with the guidelines, will be available individuals will face difficult challenges as or permanently and totally disabled in a on the LBF’s website on Dec. 1. they struggle to overcome the financial burden workplace accident. The LBF Kids’ Chance For more information or questions about of these losses. Often a child’s dream of going Scholarship Program is administered by the the LBF Kids’ Chance Scholarship Program to college is crushed because of unexpected LBF and is governed by a committee repre- or to find out how you can participate in a income loss and/or the necessity for the child senting a cross-section of the state’s legal and Kids’ Chance Awareness Week activity, to forfeit an education to help financially workers’ compensation communities. Since contact Dennette Young at (504)561-1046, support other family members. To these its inception in 2004, the LBF Kids’ Chance email [email protected]; or go to children, the future can appear frightening. Scholarship Program has awarded 235 stu- the LBF website at: www.raisingthebar.org/ Already confronting difficult emotions, they dents like Katelyn and Alesha scholarships kidschance.

Grantee Spotlight: LBF Helping to Louisiana Bar Foundation Announces New Fellows Protect and Empower Against Abuse The Louisiana Bar Foundation ctober is Domestic Violence and prosecutors. announces new Fellows: Awareness Month. One out of The LBF proudly supports the following Jason W. Burge...... New Orleans every four women in a relation- domestic violence programs: Beauregard ship will experience some sort Community Concerns, Inc.; Catholic Chari- Hon. Mary L. Doggett...... Alexandria ofO physical abuse in her lifetime.1 This could ties/Project S.A.V.E.; Chez Hope; D.A.R.T. Hon. Desiree Duhon Dyess...... Natchitoches be your mother, your sister, your daughter, of Lincoln; Faith House, Inc.; Metropolitan Katie L. Dysart...... New Orleans your friend. Domestic violence cuts across Center for Women and Children; Oasis; Jennifer B. Eagan...... New Orleans all socioeconomic lines regardless of gender, Project Celebration; Safe Harbor, Inc.; Brian C. Flanagan...... Shreveport race, ethnicity, sexual orientation, income Safety Net for Abused Persons; Southeast Edmund J. Giering IV...... Baton Rouge or age. Spouse Abuse Program; St. Bernard Battered Mark M. Judson...... Lake Charles The domestic violence agencies that Women’s Program; The Haven, Inc.; The the Louisiana Bar Foundation (LBF) funds Wellspring Alliance for Families, Inc.; and Alida C. Hainkel...... New Orleans enable people to leave abusive relationships United Way of Central Louisiana. Robert C. Lehman...... Mandeville and seek safety. The essential services pro- Dixon W. McMakin...... Baton Rouge vided by these agencies include a 24-hour FOOTNOTE Alysson L. Mills...... New Orleans crisis line; shelter for abused spouses and Stephanie N. Prestridge...... Baton Rouge 1. Patricia Tjaden and Nancy Thoennes. National their children; legal services; education Elizabeth S. Sconzert...... Mandeville concerning domestic and dating violence; Institute of Justice and the Centers of Disease Control and Prevention, “Extent, Nature and Consequences David O. Walker...... Alexandria and establishing collaborative relationships of Intimate Partner Violence: Findings from the Adrienne D. White...... Mansfield with law enforcement, judges, clerks of court National Violence Against Women Survey,” (2000).

Louisiana Bar Journal Vol. 63, No. 3 245 Classified ads ONLINE at www.lsba.org CLASSIFIED NOTICES of partners/practice groups. Some Standard classified advertising in our regu- POSITIONS OFFERED partners are choosing to relocate to firms where their unique strengths are valued lar typeface and format may now be placed Metairie law firm (AV-rated) seeks in the Louisiana Bar Journal and on the and compensation competitive. This LSBA Web site, LSBA.org/classifieds. an experienced health care regulatory requires broad knowledge of the existing All requests for classified notices must attorney with a current book of business but marketplace and insight into the culture be submitted in writing and are subject with the capacity to take additional work to approval. Copy must be typewritten of local law firms. Shuart & Associates representing hospitals, medical practices has a proven track record in providing and payment must accompany request. and other health care providers. Reply in Our low rates for placement in both are this service. All inquiries confidential. as follows: strict confidence to: Office Administrator, (504)836-7595. www.shuart.com. P.O. Box 931, Metairie, LA 70004-0931. RATES ServicesSERVICES King, Krebs & Jurgens, P.L.L.C., a CLASSIFIED ADS New Orleans firm with a diversified Texas attorney, LSU Law 1985. Admitted Contact Krystal L. Bellanger at litigation and transactional practice, in Louisiana and Texas. I am available (504)619-0131 or (800)421-LSBA, seeks an associate with two to four ext. 131. to attend hearings, conduct depositions, years’ commercial litigation experience act as local counsel and accept referrals Non-members of LSBA for challenging legal work. Competitive for general civil litigation in the Houston $85 per insertion of 50 words or less salary, bonus structure and benefits offered. area. Contact Manfred Sternberg, Jr. $1 per each additional word Send résumé with class rank, transcript and at (713)622-4300; email manfred@ $20 for Classy-Box number writing sample to Steven Rossi at srossi@ msternberg.com. kingkrebs.com. Members of the LSBA $60 per insertion for 50 words or less Appellate briefs, motions, legal research. $1 per each additional word AV-rated Metairie admiralty/insurance Attorneys: the appellate process is your last No additional charge for Classy-Box defense firm seeking attorney with chance to modify or defend your judgment. number three to five years’ experience. Some Lee Ann Archer, former Louisiana maritime experience preferable. Salary Supreme Court clerk and Tulane Law Screens: $25 commensurate with experience. Excellent Headings: $15 initial headings/large type honors graduate, offers your best chance, benefits. All inquiries strictly confidential. with superior appellate briefs, outstanding BOXED ADS Forward résumé and writing sample legal research, pinpoint record review and Boxed ads must be submitted camera ready to: Administrator, Ste. 1000, 3850 N. 20-plus years of appellate experience. by the advertiser. The ads should be boxed Causeway Blvd., Metairie, LA 70002. and 2¼” by 2” high. The boxed ads are $70 Confidential; statewide service; fast per insertion and must be paid at the time of response. Call (337)474-4712 (Lake Shuart & Associates Legal Search & placement. No discounts apply. Charles); email [email protected]; visit Staffing. In today’s market, many law www.leeaarcher.com. DEADLINE firms are growing by lateral acquisition For the February issue of the Journal, all classified notices must be received with payment by Decem- ber 18, 2015. Check and ad copy should be sent to: Forensic Document LOUISIANA BAR JOURNAL Classified Notices Examiner 601 St. Charles Avenue Robert G. Foley New Orleans, LA 70130 Handwriting • Typewriting • Copies Ink/Paper Analysis & Dating RESPONSES To respond to a box number, please address Certified & Court Qualified in your envelope to: Federal, State, Municipal & Journal Classy Box No. ______Military Courts since 1972 c/o Louisiana State Bar Association Phone: (318) 322-0661 601 St. Charles Avenue www.robertgfoley.com New Orleans, LA 70130

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Louisiana Bar Journal Vol. 63, No. 3 247 The Last WORD By Edward J. Walters, Jr. IPSE DIXIT: MIGHT BE A LAWYER IF...

o, I’m in the Wal-Mart, in Gal- If you’ve ever gone from a paper cal- If you’ve ever thought (on Thursday), liano, in the checkout line, in a endar to a computer calendar and want “Hey! This damn thing is due TOMOR- T-shirt and shorts, and the cashier your paper calendar back, you just might ROW!!!,” you just might be a lawyer. says, “You a lawyer?” Is it that be a lawyer. obvious?S It certainly wasn’t because of If you’ve ever been on the Inter- what I was buying: fishing tackle . . . fish If you’ve ever sat through the judge’s net looking at the top 10 funniest news hooks, corks, some VooDoo Shrimp and oral reasons for judgment and thought, bloopers when your senior partner walks The Deadly Dudley Mauler Shrimp. “He must have attended a different trial,” in, you just might be a lawyer. What is it about us? Do we exude you just might be a lawyer. something different? What makes folks If you’ve ever gone to court and real- think we might be lawyers? If you’ve ever gotten to the end of ized you have NO IDEA what your client Well, the other night — in the middle spending an hour writing a KILLER brief looks like, you just might be a lawyer. of the night — I was flipping through and your computer freezes and won’t the standard 500 channels, trying to find speak to you, you just might be a lawyer. If you’ve ever fussed at your staff for something to fall asleep to, and I landed not putting that treatise back on the shelf upon Jeff Foxworthy explaining how “. . . If you’ve ever been in court and where it belongs, only to find it under a you just might be a redneck . . .” You thought to yourself, “That is the dumbest pile of mail on your desk, you just might know, “If you own a home that is mobile argument I have ever HEARD,” you just be a lawyer. and five cars that aren’t, you just might be might be a lawyer. a redneck.” Funny stuff. If you’ve ever corrected something I thought about why I couldn’t get back If you’ve ever been in court and that you thought was very poorly written to sleep and I realized it was because I thought to yourself, “That is the dumbest and then found out that YOU wrote it, was thinking about an upcoming court argument I have ever MADE,” you just you just might be a lawyer. appearance. Then, this article came to me: might be a lawyer. If you’ve ever been in a deposition and If you’ve ever been unable to fall asleep If you’ve blamed your new phone sys- took your shoe off and now you can’t find in the middle of the night because you’re tem for the fact that you did not return that it, you just might be a lawyer. arguing, in your mind, a motion you are call, not your long lunch at Galatoire’s, going to argue tomorrow morning, you you just might be a lawyer. Well, I’m going back to sleep. Maybe just might be a lawyer. next time I go to the Galliano Wal-Mart, If you’ve ever called someone back I’ll wear a coat and tie. If you’ve ever gotten up in the middle during lunchtime because you really of the night and dashed to your office to don’t want to talk to them, you just might Edward J. Walters, Jr., make sure that case doesn’t prescribe TO- be a lawyer. a partner in the Baton Rouge firm of Walters, MORROW!, you just might be a lawyer. Papillion, Thomas, Cul- If you’ve ever thought (on Monday), lens, L.L.C., is a former If you’ve ever left your coat hanging “Hey! We’ve got time — this ain’t re- Louisiana State Bar As- on the back of your chair so your senior ally due until Friday,” you just might be sociation secretary and editor-in-chief of the partner would think you must be just a lawyer. Louisiana Bar Journal. down the hall, you just might be a lawyer. He is a current member If you’ve ever thought (on Wednesday), of the Journal’s Editorial If you’ve ever put on the same blue “Hey! We’ve got to get ON this — it’s due Board. He is the chair of the LSBA Senior Lawyers Division and editor of the pinstriped suit that your co-counsel put Friday,” you just might be a lawyer. Division’s e-newsletter Seasoning. (walters@lawbr. on the first day of a jury trial, you just net; 12345 Perkins Rd., Bldg. 1, Baton Rouge, LA might be a lawyer. 70810)

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

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