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Louisiana Bar Journal Vol. 58, No. 4 233 SSEERRVVI INNGG LLOOUUIISS II AA NN A L A WW YYEERRSS SSIINNCCEE 11999900 ™

234 December 2010 / January 2011

140702 201195ol.indd 1 10/29/10 11:14 AM ™

December 2010 / January 2011 Volume 58, Number 4

Departments Features

President’s Message...... 240 Cell-Shocked: Bystander Damages for Letters...... 241 Viewing an Event Electronically Association Actions...... 254 By Linda C. Fowler...... 242

Puzzle...... 259

Focus on Professionalism..... 260

Discipline Reports...... 261

Recent Developments...... 264 LSBA Launches inCircle: A Fun and Professional Networking Tool Young Lawyers...... 279 • Step-by-Step Tutorial for a Quick and Easy Start! La. Center for Law & By Tony LaVerde and Danielle E. Boveland...... 246 Civic Education ...... 282

Judicial Notes...... 283 The Cy Pres Doctrine: “A Settling Concept”

People...... 284 By Calvin C. Fayard, Jr. and Charles S. McCowan, Jr...... 248

Classified...... 286 LSBA Honors Deceased Members of the Bench and Bar...... 252 News...... 288

Lucid Intervals...... 296

Also Inside 2011 Expert 2011 Judicial Interest Rate..... 238 ► 2011 Expert Witness, Consultant and Legal Services Directory Witness, Member Services...... 239 Consultant Alcohol/Drug Abuse Hotline.. 259 Check out the separate supplement and Legal mailed with this issue! Services SOLACE...... 273 Directory

Louisiana Bar Journal Vol. 58, No. 4 235 Editorial Board ™ Officers 2010-11 President  Carrick B. Inabnett  Margaret E. Judice Michael A. Patterson • (225)922-5110 Editor (337)828-1880 President-Elect (318)340-5107 Garrett P. LaBorde James J. Davidson III • (337)237-1660   J.Patten Brown III (866)263-2376 Secretary (212)709-8295 Carrick B. Inabnett • (318)340-5107  Roy H. Odom, Jr. Treasurer  Lawrence J. Centola III (318)227-3762 Mark A. Cunningham • (504)582-8536 (504)581-9065 Aimee M. Quirk Immediate Past President   John S. (Chip) Coulter (504)621-5409 Kim M. Boyle • (504)566-1311 (225)382-3183  Gail S. Stephenson

Board of Governors 2010-11  Michael L. DeShazo (225)771-4900, ext. 216 First District (504)524-0206 John H. Musser IV • (504)599-5964  Tyler G. Storms Barry H. Grodsky • (504)599-8535  Brendan P. Doherty (318)255-7805 Second District (504)561-0400 Katherine Tonnas Richard K. Leefe • (504)830-3939   Warren A. Goldstein (504)289-0618 Third District (504)566-4990 Lawrence P. Simon, Jr. • (337)232-7424  Edward J. Walters, Jr.

Fourth District  Shannan L. Hicks (225)236-3636 Winfield E. Little, Jr. • (337)430-0907 (318)677-2504 Fifth District  Jack K. Whitehead, Jr. Darrel J. Papillion • (225)236-3636  Gerald J. Huffman, Jr. (225)303-8600 Sixth District (504)957-9114 Charles D. Elliott • (318)442-9533 The Louisiana Bar Journal (ISSN 0459-8881) is published bimonthly by Seventh District the Louisiana State Bar Association, 601 St. Charles Avenue, New Orleans, Charles L. Kincade • (318)388-4205 Louisiana 70130. Periodicals postage paid at New Orleans, Louisiana and Eighth District additional offices. Annual subscription rate: members, $5, included in dues; Ronald J. Miciotto • (318)424-0200 nonmembers, $45 (domestic), $55 (foreign). Canada Agreement No. PM Chair, Young Lawyers Section 41450540. Return undeliverable Canadian addresses to: P.O. Box 2600, Alainna R. Mire • (318)449-5046 Mississauga, ON, L4T 0A8. At-Large Members Cloyd Benjamin, Jr. • (318)352-7575 Postmaster: Send change of address to: Louisiana Bar Journal, 601 St. Karelia R. Stewart • (318)226-6998 Charles Avenue, New Orleans, Louisiana 70130. Franchesca L. Hamilton-Acker • (337)237-4320 Subscriber Service: For the fastest service or questions, call Darlene M. LSU Paul M. Hebert Law Center LaBranche at (504)619-0112 or (800)421-5722, ext. 112. John M. Church • (225)578-8701 Tulane Law School Editorial and Advertising: Tania C. Tetlow • (504)862-8812 Publication of any advertisement shall not be considered an endorsement Louisiana State Law Institute of the product or service involved. Submissions are welcome and will be John David Ziober • (225)387-6966 considered for publication by the Editorial Board. For submission guide- House of Delegates Liaison Chair lines, go online at www.lsba.org, click on “Publications,” then “Louisiana Bar Journal.” Copyright © by Louisiana Bar Journal. All rights reserved. Robert A. Kutcher • (504)830-3820 Reproduction in whole or part without permission is prohibited. Views expressed are those of the authors only. Editorial Staff Executive Director Luminary Award 2003 Loretta Larsen, CAE National Association of Bar Executives Communications Director Communications Section Kelly Wells Ponder Excellence in Regular Publications Publications Coordinator/Managing Editor Darlene M. LaBranche Communications Coordinator In t e r n a t i o n a l Barbara D. Baldwin As s o c i a t i o n o f Bu s i n e s s Communications Assistant Pu b l i c Re l a t i o n s So c i e t y o m m u n i c a t o r s C o f Am e r i c a Krystal L. Bellanger Ne w Or l e a n s Ne w Or l e a n s Ch a p t e r Ch a p t e r Aw a r d o f Advertising Questions? Br o n z e Qu i l l Krystal L. Bellanger • (504)619-0131 Aw a r d o f Me r i t

236 December 2010 / January 2011 LOUISIANA Bar Today Get the latest Louisiana State Bar Association news in the free, weekly e-mailed update. It’s easy to subscribe.

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Louisiana Bar Journal Vol. 58, No. 4 237 2011 Judicial Interest Rate is 4%

Pursuant to authority granted by La. R.S. 13:4202(B)(1), as amended by Acts 2001, No. 841, the Louisiana Commissioner Judicial Interest Rates of Financial Institutions has determined that the judicial rate of interest for calendar year 2011 will be four (4.0%) percent per Through 2011 annum. Date Rate La. R.S. 13:4202(B), as amended by Acts 2001, No. 841, Prior to Sept. 12, 1980...... 7.00 percent requires the Louisiana Commissioner of Financial Institutions Sept. 12, 1980 to Sept. 10, 1981...... 10.00 percent to determine the judicial interest rate for the calendar year fol- Sept. 11, 1981 to Dec. 31, 1987...... 12.00 percent lowing the calculation date. The commissioner has determined Jan. 1, 1988 to Dec. 31, 1988...... 9.75 percent the judicial interest rate for the calendar year 2011 in accordance Jan. 1, 1989 to Dec. 31, 1989...... 11.50 percent with La. R.S. 13:4202(B)(1). Jan. 1, 1990 to Dec. 31, 1990...... 11.50 percent The commissioner ascertained that on Oct. 1, 2010, the ap- Jan. 1, 1991 to Dec. 31, 1991...... 11.00 percent proved discount rate of the Federal Reserve Board of Governors Jan. 1, 1992 to Dec. 31, 1992...... 9.00 percent was three-quarters (.75%) of one percent. Jan. 1, 1993 to Dec. 31, 1993...... 7.00 percent La. R.S. 13:4202(B)(1) mandates that on and after Jan. 1, 2002, Jan. 1, 1994 to Dec. 31, 1994...... 7.00 percent the judicial interest rate shall be three and one-quarter percentage Jan. 1, 1995 to Dec. 31, 1995...... 8.75 percent points above the Federal Reserve Board of Governors-approved Jan. 1, 1996 to Dec. 31, 1996...... 9.75 percent discount rate on Oct. 1, 2010. Thus, the effective judicial inter- Jan. 1, 1997 to July 31, 1997...... 9.25 percent est rate for the calendar year 2011 shall be four (4.0%) percent per annum. Aug. 1, 1997 to Dec. 31, 1997...... 7.90 percent La. R.S. 13:4202(B)(2) provides that the publication of the Jan. 1, 1998 to Dec. 31, 1998...... 7.60 percent commissioner’s determination in the Louisiana Register “shall Jan. 1, 1999 to Dec. 31, 1999...... 6.73 percent not be considered rulemaking within the intendment of the Ad- Jan. 1, 2000 to Dec. 31, 2000...... 7.285 percent ministrative Procedure Act, R.S. 49:950 et seq., and particularly Jan. 1, 2001 to Dec. 31, 2001...... 8.241 percent R.S. 49:953.” Therefore, (1) a fiscal impact statement, (2) a family Jan. 1, 2002 to Dec. 31, 2002...... 5.75 percent impact statement, and (3) a notice of intent are not required to be Jan. 1, 2003 to Dec. 31, 2003...... 4.50 percent filed with the Louisiana Register. Jan. 1, 2004 to Dec. 31, 2004...... 5.25 percent Jan. 1, 2005 to Dec. 31, 2005...... 6.00 percent — John P. Ducrest, CPA Jan. 1, 2006 to Dec. 31, 2006...... 8.00 percent Commissioner of Financial Institutions Jan. 1, 2007 to Dec. 31, 2007...... 9.50 percent Date: October 5, 2010 Jan. 1, 2008 to Dec. 31, 2008...... 8.50 percent Jan. 1, 2009 to Dec. 31, 2009...... 5.50 percent Jan. 1, 2010 to Dec. 31, 2010...... 3.75 percent Jan. 1, 2011 to Dec. 31, 2011...... 4.00 percent

Judicial Interest Rate Calculator Online!

Need to calculate judicial interest? Check out the Judicial Interest Rate Calculator (courtesy of Alexandria attorney Charles D. Elliott) on the Louisiana State Bar Association’s Web site.

Go to: http://www.lsba.org. Click “Judicial Interest Rate Calculator” on the left side of the home page.

238 December 2010 / January 2011 MembeServicesr Total LSBA MEMBERS: 21,051

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Louisiana Bar Journal Vol. 58, No. 4 239 President’s message

Get Involved in Your Bar: Great Opportunities Await You By Michael A. Patterson

ne of the frequent questions from other lawyers. If you participate in I get asked as I visit lawyers the sections or committees of our asso- throughout our state starts It is easy to get ciation, you will meet lawyers from all like this: “What is the LSBA involved. Go to over the state. You will get to know them goingO to do about . . . .?” and they will get to know you. They will My answer is always prefaced with this the Louisiana State learn in what area of the law you practice question: “What activities of the LSBA and chances are good they will be a great are you involved in?” Sadly, the answer Bar Association’s referral source. for many is none. This answer is usually website and review Another practice-related benefit is you followed by a laundry list of reasons can create a network of lawyers around why the individual does not have time to the drop-down menu the state who can, for instance, give you participate in his/her profession. local information on lawyers and judges Variations on this exchange have been of sections and in their areas or indicate what juries are an ongoing element since I began practic- committees: like in their jurisdictions. It is like hav- ing law. Along the way, I have taken the ing a group of consultants available to opportunity to remind these individuals www.lsba.org/ you — free of charge. that if you want to see change, you must Sections You also may discover you have made make the commitment of time and effort a bunch of new friends, people you may to work to see that change occurs. or never have met if you did not participate Structurally, the governing body of in your profession. our association is the House of Delegates www.lsba.org/ It is easy to get involved. Go to the whose members are elected in accordance Committees Louisiana State Bar Association’s web- with the articles and bylaws of our asso- site and review the drop-down menu of ciation. Yet, in each election cycle, many sections and committees: www.lsba.org/ of the House seats remain vacant because the activities of the law clinics in our Sections or www.lsba.org/Committees. not enough people step up to qualify to law schools — in effect, regulating the Find something that interests you run. When this happens, the president is practice of law. Our association, along and make a commitment to yourself to required to make appointments to fill the with all the law schools, testified against get involved. Ask others who are active vacancies. At meetings of the House of this bill. There are frequent attempts by to give you advice on what work of the Delegates, we seldom have more than 60 the Federal Trade Commission to regulate LSBA might be of interest to you. percent of the members present to conduct lawyers which the American Bar Asso- I am sure once you get involved you the business of our association. This is not ciation has lobbied against on the same will quickly realize the benefits of your a healthy situation. grounds. The practice of law should only decision and your participation will While I totally understand that mem- be regulated by the highest courts of each be helping your profession to fulfill its bership in our association is mandatory state. These attacks on our self-regulation mission: Serving the Public. Serving the by rule of our Supreme Court, I also are ongoing and require constant diligence Profession. know that if we do not participate in the by members of our profession to resist work of our association, we run the risk such attempts. of abdicating our governance to others If for no other reason, you should con- outside our profession. sider being involved to help your practice. These threats are real. For example, What am I talking about? Whether you last year, there was a bill in the Loui- have considered this or not, a lot of what siana Legislature which sought to limit most lawyers do comes to them by referral

240 December 2010 / January 2011 LetterS Hooray for Hollywood!

Clarifying Information in “Hooray for Hollywood” Article Author’s Response This letter comments on statements 40 percent tax credits on base investment, I appreciate Ms. LeBlanc’s efforts to in the article “Hooray for Hollywood! A some with restrictions not in the law. (See, shed light on the murky history of the Film-by-Film Primer on the Louisiana Film Red Stick v. State of La., et al, 1st Cir. Ct. Ap- now sunsetted infrastructure credit of 15 Industry’s Blockbuster Success Thanks to peal, No. 2009, CA 1347, prohibiting such percent provided for in former La. R.S. Motion Picture Tax Incentives” (August/ restrictions in an infrastructure contract, writ §47:6007(C)(1)(b)(iii) and for correcting September 2010 Louisiana Bar Journal), granted, writ denied S. Ct. 2010). any misimpression regarding how the particularly “15 percent tax credit” for House Concurrent Resolution #35 (2005 applicable percentage for infrastructure Louisiana “motion picture infrastructure” First Extraordinary Session) reaffirms leg- projects was ultimately interpreted due approved “after June 2005” when “at least islative intent of 40 percent infrastructure to ambiguities in the original legislation. $300,000 was expended prior to 2008” and tax credits. Attorney General Opinion The Attorney General Opinion she cites “the law sunset,” which leaves an incorrect #06-0216 confirms 40 percent tax credits, is a good reference for those who wish impression that infrastructure projects earn 15 percent on in-state and 25 percent on all to know more about the issue. Riding off no tax credits after 2008. infrastructure expenditures, including land, into the sunset (again) then . . . . La. R.S. 47:6007 (Acts 2005, No. 456) equipment, distribution investment, etc., on mandates 40 percent tax credits on “base which the state issued 40 percent credits. Jaye A. Calhoun investment” (“actual investment made and The amended law of 2007 mandates 40 New Orleans expended” by “a person in the development percent tax credits applicable to subsequent of a state-certified infrastructure project” ap- infrastructure contracts. Since each infra- proved after July 1, 2005) if base investment structure tax credit dollar returns $4 per the is “greater than $300,000,” i.e., 15 percent state’s economic research, more tax credits on in-state expenditures (statutory sunset benefit the state. extension beyond 2008) and 25 percent on all investment without sunset. Michèle LeBlanc Nearly a dozen state infrastructure con- Baton Rouge tracts executed per this 2005 law mandate Letters to the Editor Policy 1. At the discretion of the Editorial Board 4. Letters should be typewritten, signed may respond to letters to clarify misinfor- (EB), letters to the editor are published in and, if applicable, include LSBA member mation, provide related background or add the Louisiana Bar Journal. number, address and phone number. Letters another perspective. 2. If there is any question about whether from non-members of the LSBA also will be 7. Letters may pertain to recent articles, a particular letter to the editor should be considered for publication. Unsigned letters columns or other letters. Letters responding published, the decision of the editor shall are not published. to a previously published letter should ad- be final. If a letter questioning or criticizing 5. Not more than three letters from any dress the issues and not be a personal attack Louisiana State Bar Association (LSBA) individual will be published within one on the author. policies, rules or functions is received, year. 8. No letter shall be published that the editor is encouraged to send a copy 6. Letters also may be clarified or edited contains defamatory or obscene material, of that letter to the appropriate entity for for grammar, punctuation and style by staff. violates the Rules of Professional Conduct reply within the production schedule of the In addition, the EB may edit letters based or otherwise may subject the LSBA to civil Louisiana Bar Journal. If the editor deems on space considerations and the number or criminal liability. it appropriate, replies may be printed with and nature of letters received on any single 9. No letter shall be published that con- the original letter, or in a subsequent issue topic. Editors may limit the number of letters tains a solicitation or advertisement for a of the Louisiana Bar Journal. published on a single topic, choosing letters commercial or business purpose. 3. Letters should be no longer than 200 that provide differing perspectives. Authors, words. editorial staff or other LSBA representatives

Louisiana Bar Journal Vol. 58, No. 4 241 ocked: Cell-Sh Bystander Damages for Viewing An Event Electronically

By Linda C. Fowler

242 December 2010 / January 2011 magine the following scenario: Su- article 2315.6 was enacted impact the and rushed to the hospital emergency room san is commuting to work when she requirements for viewing injuries to the where his son had been taken.6 He later is involved in a horrific automobile direct victim under the statute. viewed a videotape of his son’s fall and collision, inflicting mortal injuries injury.7 The court held that article 2315.6 upon her. As she lies dying in her Viewing Electronically “does not provide for the situation where a Ivehicle, a passerby attempts to comfort Under Article 2315.6 parent arrives upon the scene, is informed her and asks if he should contact anyone. of the accident, rushes to the hospital She requests that he call her husband Bob where his son has been taken and later Advances in electronic technology 8 using a cellular phone. The passerby then such as camera cell phones and stream- views a videotape of the accident.” calls Bob, informs him of the accident, ing Internet have changed the way people At the time of the jockey’s accident in and points the camera on the phone at the view events. Today’s parents can look in Daigrepont, his stepmother was working crushed car and injured victim. Bob views on their children in daycare thanks to cam- at the race track and observed the accident the crushed vehicle and his injured spouse. eras and the Internet, and one can almost on a television monitor. The court denied May Bob recover bystander mental an- instantaneously see an image of a person bystander recovery to her because she did guish damages under Louisiana law for not fall into the class of persons allowed thousands of miles away on a cell phone. 9 viewing the scene and injury to his wife Also, images are becoming more true- to recover. The court then stated in dicta, on the cell phone? to-life due to innovations such as high- regarding her observance of the accident, definition televisions. Many events, such that it was “questionable whether the Background of the statute is applicable to one who views an as sporting events, are actually viewed 10 Louisiana Bystander Law better on a television monitor because accident on a television monitor.” of high-quality video and the close-up Did the Legislature intend that tele- In 1990, the Louisiana Supreme Court capability of modern cameras. vised events could qualify under the created a cause of action for bystander The frequency with which events are bystander mental anguish statute? It could mental anguish, enabling close relatives now seen electronically raises the issue be argued the answer is no — television to recover damages for witnessing injury of whether such a viewing would satisfy was in widespread use in 1991 when the to a loved one in Lejeune v. Rayne Branch the requirements of Louisiana Civil Code statute was drafted, and if the Legislature Hospital.1 In Lejeune, the plaintiff entered article 2315.6 that the claimant “view intended for electronic viewing of events the hospital room of her comatose husband or come upon the scene of an event.” to qualify, it would have been specifically shortly after he had been bitten on his face, Would viewing an injury to a loved included. Additionally, the dicta in Dai- neck and legs by rats and saw a nurse still one on a television, a closed-circuit TV grepont appear to reject viewing events cleaning blood from his wounds. Lejeune monitor, a cell phone or a live broadcast electronically under article 2315.6. overruled prior jurisprudence denying this on the Internet suffice? Or would it have It also could be argued that seeing an type of recovery dating back to the 1855 to be in person? It could be argued that event electronically is not the same as Louisiana Supreme Court case of Black since some requirements of the statute seeing it physically because it is not three- v. Carrollton R.R. Co.2 The Legislature are specified,e.g ., those persons entitled dimensional and the in-person aspect is codified Lejeune the following year as to recovery, the Legislature left it to the missing. Lejeune noted in citing out-of- Civil Code article 2315.6, which provides courts to define “view.” state jurisprudence that the essence of the tort is the shock caused by the perception that the bystander must view or come Almost all the Louisiana jurisprudence 11 upon the scene of the event, the injured regarding the requirement that the claim- of the event. It could be argued that the person must suffer such harm that mental ant “view or come upon the scene of the shock of the event is reduced if it is not anguish by a loved one is foreseeable, event” concerns incidents witnessed in in real person. and the mental anguish endured by the person.3 Only Daigrepont v. Louisiana But the statute does not specifically claimant must be severe and debilitat- State Racing Commission4 involved a prohibit viewing incidents electroni- ing. Article 2315.6 further defined the viewing of the incident electronically. cally from qualifying under the statute. class of potential claimants entitled to The 1st Circuit in Daigrepont denied Since 1995 when the dicta in Daigrepont recovery, specifically enumerating the bystander recovery to a father who viewed were written, high-speed Internet, digital close relatives who could be classified a videotape of his son’s accident after it cameras and cell phones have become as bystanders under the law referenced occurred and after he had learned of the ubiquitous in our society. Also, it could in Lejeune. accident. There, a jockey was severely be asserted that viewing an event elec- But “view” was not defined in the injured during a race when he lost control tronically can be even more shocking statute. This article examines whether of his horse, fell to the ground and was or disturbing than in person. A close-up changes in electronic technology and the struck in the head by an oncoming horse.5 view of a football player being tackled and proliferation of technology since Lejeune His father arrived at the race track shortly seriously injured in a televised game may was decided and Louisiana Civil Code thereafter, was informed of the accident be more distressing than if viewed from the stands. Consider the hypothetical case

Louisiana Bar Journal Vol. 58, No. 4 243 at the beginning of this article where the husband sees his mortally injured wife on the cell phone — emergency crews may have prevented him from going to his wife’s vehicle if he had been present at the scene. Learning of the occurrence by viewing or coming upon the event appears to be a requirement under article 2315.6. The Lejeune court stated:

The emotional injury must be directly attributable to the emotional impact of the plaintiff’s observation or contemporaneous sensory perception of the accident and immediate viewing of the accident victim. Therefore, recovery will not be permitted for emotional distress when the plaintiff is merely informed of the matter after the accident . . . .12 viewing as they both indicated that the indicates that the viewing must be closely plaintiff may satisfy the statute by “com- connected to the event in time and space. Potential claimants under article 14 2315.6 could learn of the traumatic event ing upon” the event. If the plaintiff These requirements would likely preclude via an electronic device as well as in learns of the event via the recording, it recovery for one who observes the event person. The father in Daigrepont, who would not seem to differ from a real-time electronically from across the country and was denied bystander recovery, did not electronic observance. However, Lejeune probably from across town. Satisfaction learn of his son’s accident via watching also requires “observation or contempora- of the view requirement of article 2315.6 the videotape; he already knew about the neous sensory perception of the accident by viewing an incident electronically is and immediate viewing of the accident not likely to be a common occurrence event when he viewed it. 15 What if the potential claimant views victim.” This must occur before the considering these constraints. condition of the victim has substantially an event electronically that is thousands 16 of miles away? Or even just across town? changed. As the Trahan court noted Conclusion The Louisiana Supreme Court seems to above, bystander recovery has almost address this situation when it stated in the never been allowed where the observa- In sum, since neither the statute nor 1999 case of Trahan v. McManus that: tion of the event is not closely connected the jurisprudence prohibits electronically in time to the event. The court reasoned viewing an event under the bystander recovery of damages for mental in Trahan that bystander damages are mental anguish law, it could be permitted anguish has almost never been intended to provide a remedy when severe under certain narrow instances: where the extended to one who observed the mental distress arises “directly and im- claimant is in the general physical vicinity victim’s suffering at a place other mediately from the claimant’s observing of the direct victim and sees the injury a traumatic injury-causing event to the either contemporaneously or soon after than where the injury-causing event 17 occurred or at a time not closely direct victim.” The court also noted the event. The Louisiana Supreme Court connected to the event.13 that limitations on bystander recovery emphasized in Trahan that recovery for established in Lejeune would not allow bystander mental anguish damages has Thus, even if the event is viewed recovery to someone “who learned of the almost never been granted to a claimant injury by telephone call several days after who viewed the direct victim’s suffering electronically under article 2315.6, 18 physical proximity is a requirement under the injury-causing event.” at a location other than where the injury- Trahan. Allowing recovery under article causing event occurred or at a time not Suppose seeing an event electronically 2315.6 for viewing an injury electroni- closely connected with the event.19 satisfies the view requirement of the stat- cally would expand bystander mental Other unanswered questions, not ute. Would a videotaped recording of the anguish recovery some, but it is not discussed herein, remain concerning event viewed hours or days later qualify? likely to “open floodgates” of litigation. bystander recovery. One is the temporal Lejeune and the Legislature apparently Lejeune requires that the claimant learn requirement of the statute. How much contemplated a non-contemporaneous of the event from the viewing. Trahan time may elapse between the event and

244 December 2010 / January 2011 the claimant coming upon it? No time mental pain and anguish sustained by a person not 15. Id., quoting Corso, 406 A.2d 300. limit appears in article 2315.6 for arrival directly injured, because of the negligent infliction 16. Id. of injury on a third person, was not recoverable 17. Trahan, 728 So.2d at 1279. at the scene to satisfy the requirement that under Louisiana tort law. 18. Id. at 1278. the claimant “come upon the event soon 3. See, e.g., Lejeune, 556 So.2d 559; Ruttley 19. Id. at 1279. after.” How serious an injury the direct v. Lee, 99-1130 (La. App. 5 Cir. 5/17/00), 761 victim must suffer for bystander recovery So.2d 777, writ denied, 00-1781 (La. 9/22/00), Linda C. Fowler is an 768 So.21287; and Edwards v. Pelican St. Mut’l is not specified. Article 2315.6 requires associate professor of Ins. Co., 95-253 (La. App. 3 Cir. 5/31/95), 657 legal analysis and writing that the claimant prove that the injured So.2d 440. at Southern University 4. 95-0539 (La. App. 4 Cir. 10/26/95), 663 person suffered “such harm that would Law Center. She grad- reasonably be expected to cause another So.2d 840, writ denied, 95-2828 (La. 2/2/96), 666 So.2d 1085. uated from Louisiana to suffer mental pain and anguish.” Also, 5. Id. at 840. State University Paul M. what qualifies as an “event” under the 6. Id. Hebert Law Center in statute? These questions are not clearly 7. Id. at 841. 1985, where she served answered in the statute or the jurispru- 8. Id. on the Moot Court 9. Id. Board. She taught legal dence and merit additional analysis. 10. Id. research and writing at LSU from 1996-2004, 11. Lejeune, 556 So.2d 559, 570, citing Gates when she joined the faculty at SULC. Fowler also FOOTNOTES v. Richardson, 719 P.2d 193 (Wyo. 1986). has held positions as a federal law clerk and state 12. Id., quoting Corso v. Merrill, 119 N.H. 647, prosecutor and was in private practice. Her e-mail 406 A.2d 300 (1979). 1. Lejeune v. Rayne Branch Hosp., 556 So.2d address is [email protected]. (8867 Highland Rd., 13. 728 So.2d 1273, 1279. #234, Baton Rouge, LA 70808-6856) 559 (La. 1990). 14. La. Civ.C. art. 2315.6; Lejeune, 556 So.2d 2. 10 La. Ann. 33 (1855). Black held that at 570.

Coming in the February/March 2011 Louisiana Bar Journal…

The LSBA’s Role in the Louisiana Legislature: Why Is It Necessary to the Profession?

In 2004, the Louisiana State Bar Association (LSBA), this process, Shawn L. Holahan, the LSBA’s liaison to the through its Legislation Committee, renewed its active role in Legislation Committee, interviewed Michael A. Patterson, opposing and/or supporting proposed legislation affecting the current LSBA president; Michael W. McKay, LSBA past presi- practice of law or access to justice. The aim is always to strike dent and current chair of the Legislation Committee; Loretta a balance between respecting members’ individual concerns Larsen, LSBA executive director; and Larry L. Murray, the and protecting the legal system. LSBA’s lobbyist. Read this enlightening Q&A article in the To educate the legal community about the LSBA’s role in February/March 2011 Louisiana Bar Journal.

Calendar these important dates for the 2011 Louisiana legislative session and the LSBA Legislation Committee: ► April 15, 2011 — Pre-filing deadline for bills for state legislators.

► April 21, 2011 — First LSBA Legislation Committee meeting.

► April 25, 2011 — Louisiana legislative session begins.

► May 21, 2011 — Second LSBA Legislation Committee meeting (open meeting) at the Hilton Capitol Center in Baton Rouge.

► May 21, 2011 — LSBA Board of Governors’ meeting (to immediately follow the second LSBA Legislation Committee meeting in Baton Rouge).

► June 21, 2011 — Louisiana legislative session adjourns.

Louisiana Bar Journal Vol. 58, No. 4 245 Use Step-by-Step Tutorial for a Quick and Easy Start!

LSBA Launches inCircle: A Fun and Professional Networking Tool By Tony LaVerde and Danielle E. Boveland

The Louisiana State Bar Association Once you have logged in, you can begin so that other members can view your latest (LSBA) has launched inCircle, the new with “My Profile.” You can add a personal posts as you make them. professional/social networking website photo, as well as any information about your As with other social networking sites, designed exclusively for Louisiana law- job, firm and education you would like to protecting your privacy settings are a key yers. inCircle is similar to Facebook for share; the name of your firm and your job concern. An important step once you create lawyers, but with access limited only to title are the only required fields. After your your profile is to review the “My Account” LSBA members. profile is complete, you can begin to build settings. In this area, you can manage your inCircle is a unique member benefit as your network by inviting people you know privacy settings and control your e-mail it provides a chance to reconnect with old to be “friends” and joining or creating notifications. You can also block access to classmates and colleagues who are LSBA groups. Groups can be public or private, any “friends” you don’t want. If you elect to members. The user-friendly site shares many invitation-only groups. Any information receive e-mails based on your group activity of the common social network features, such shared in a private group is only shared by or discussions, inCircle will send you e-mails as user profiles, public and private groups, the members of the group. based on the criteria you set here; review direct messaging, photo albums, discussion There are many ways to utilize the full these settings carefully and make sure you boards, blogs and job opportunities. potential of inCircle to expand your personal confirm your e-mail address. To log in to inCircle, go to the “Members network. You may set up a discussion board The log-in area provides links to several Log In” tab on www.LSBA.org and enter your to reconnect with old classmates, create useful help topics. If you have any specific Bar ID and password, as you would to access and post a blog, offer and receive advice, questions, contact LSBA Communications Fastcase, another popular member benefit. If or maybe just talk about the Saints and Coordinator of Online Media Danielle E. you have not yet created a member account, Hornets. You can create a group for your Boveland at (504)619-0147 or e-mail dan- or if you have forgotten your password, the law firm or join an LSBA Section group to [email protected]. “Create Member Account” link to the left view links to CLE materials. You can post For a simple step-by-step guide to help will walk you through the process. After you job openings, view upcoming events, or join you get started with this fun new member have entered your information, select the a golf or photography group. If you have a benefit, see box on the next page. inCircle quick connect and hit “Log In.” blog, you can enter its feed into “My Blog”

246 December 2010 / January 2011 LOG-IN

How do I log in to inCircle? 1) From the www.LSBA.org home page, click “Members Log In.” 2) Enter your Bar ID number (Bar roll number) and password. 3) Choose the “LSBA inCircle” quick connect option and click “Log In.” 4) You may now choose to either view the “Help” resources or enter “inCircle.” 5) On your first log-in, you will be asked to provide profile information. “Job title” and “employer” are the only required fields.

GROUPS

How do I join a group? 1) Navigate to the “Groups” tab. 2) Select the “Find” subcategory under the “Groups” tab, or from the Groups home page, click on “Find Groups.” 3) Enter keywords and click “Search.” 4) Select your group and click “Join Group.” The group moderator will approve your membership.

How do I create a post in a group? 1) Select the group from the “My Groups” section. 2) Click on the “Posts” link located beneath the group name on the left-hand side of the page. 3) Click on the “New Post” button. 4) Fill out the “Subject” and “Message” fields. 5) Click “Post.”

How do I create an event/album in a group? 1) Select the group from the “My Groups” section. 2) Click on the “Event/Album” link located beneath the group name on the left-hand side of the page. 3) Click on the “New Event/New Album” button. 4) Fill out the respective fields. 5) Click “Post” or “Finish” depending on action.

How can I receive e-mail notification triggered off group activity? 1) Navigate to the “My Account” tab. 2) Click “Update My E-mail Address.” 3) Add an e-mail address or click “Verify” next to the e-mail address you would like to use. A verification e-mail will immediately be sent to your inbox. inCircle Sign-Up Offer! 4) Set this e-mail address as the “Primary” address. 5) Navigate to the “Groups” tab. Join the 2011 LSBA Annual 6) Select the group from the “My Groups” section. Meeting group on inCircle by April 7) Click on the “Settings” link located beneath the group name on the left-hand side of the page. 15 and be entered for a chance to win 8) Specify the situations for which you would like to receive an e-mail notification. a free Annual Meeting registration, valued at up to $695! The 70th LSBA How do I view the recent participation in my groups? Annual Meeting is Tuesday through 1) Navigate to the “Groups” tab. Thursday, June 28-30, 2011, at the Wynn 2) Select the “What’s New” subcategory. Las Vegas. Already registered for the 3) You will be presented with a table of statistics describing the new posts, events, albums meeting? If you win, we’ll reimburse and users that have occurred in groups in which you belong. your registration fee. Enjoy all the great meetings, receptions and networking Tony LaVerde is the Louisiana State Bar Association’s information technology director. opportunities on us! Log on to inCircle Danielle E. Boveland is the Louisiana State Bar Association’s communications coordinator today at www.lsba.org/inCircle for your of online media. They can be e-mailed at [email protected] or danielle.boveland@ chance to win. lsba.org, respectively.

Louisiana Bar Journal Vol. 58, No. 4 247 The Cy Pres Doctrine: “A Settling Concept”

By Calvin C. Fayard, Jr. and Charles S. McCowan, Jr.

In December 2010, the Louisiana Bar Foundation (LBF) received a $38,600 cy pres distribution from a class settlement in the “In Re: Vulcan Litigation April 2001 incidents” lawsuit. From left, Bradley C. Myers, with Kean, Miller, Hawthorne, D’Armond, McCowan & Jarman, L.L.P., representing Vulcan Materials Company; Philip Bohrer, with Bohrer Law Firm, representing the plaintiffs; Mathile W. Abramson, LBF vice president; and Andrew P. Sellers, Jr., with Pow- ers, Sellers, Mixon & Chapoton, L.L.P., representing Industrial Coating Contractors, Inc.

ollowing a class-action or mass-joinder settlement, certain funds often cannot Fbe distributed to individual class members. For instance: ► class members do not come forward to file the necessary proof of claim to qualify for an allocation and distribution; ► the allowed claims do not equal the available settlement funds, reserves or allocations for class costs, and expenses are not exhausted; ► distributions of monies to individual class members have been found impracticable because the amounts owed to each individual plaintiff are exceedingly small; and/or ► calculation of the amount due each individual would be excessively difficult and costly. In such situations, many Louisiana state and federal courts have employed the “Cy Pres Doctrine,” an equitable remedy intended to put the residual funds to a worthy purpose in accordance with their availability.1

248 December 2010 / January 2011 In 1985, Judge Gordon E. Causey (now the failure of trusts. In re Lease Oil learn. I’m particularly proud that deceased) was innovative in his use of the Antitrust Litigation (No. II), [supra the money will go to a lot more than concept as a basis to foster the settlement at *20]; see also, Note, Damage four or five packs of cigarettes per in the Livingston train derailment class ac- Distribution in Class Actions: The person . . . so much more can be tion.2 As part of the settlement, $1 million Cy Pres Remedy, 39 U. Chi. L. done to help the people[.] was allocated to the Environmental Divi- Rev. 448, 452 (1972). For example, sion of the Louisiana Attorney General’s where a testator attempted to create With this observation, Judge Marion- Office, and several millions more, plus a perpetuity — which is prohibited neaux approved the settlement of the larg- residual and unclaimed funds, were allo- in civil law — the courts, instead of est certified Louisiana individual member cated to the Livingston Intergovernmental entirely voiding the bequest, would class resulting from a 1981 discharge into Commission to provide environmental explain the will in such a way as the Mississippi River, causing the water monitoring at the site of the derailment and to carry out the testator’s general supply in Orleans and Jefferson parishes to construct a facility to provide medical intention as far as the rule against to smell bad and requiring residents to services and annual physical examina- perpetuities would allow. The cy pres buy water from alternative sources. The tions for affected class members. These doctrine has migrated and appeared parties agreed that, after the payment of programs have subsequently been supple- with increased vigor in class-action/ the individual class members’ documented mented by other cy pres awards and are still multi-district litigation milieu. As expenses for purchasing water from other in existence and functioning today.3 used in this context, a court should sources, the remainder of the settlement Judge Eldon E. Fallon of the United endeavor to distribute unused funds proceeds would be allocated to the Greater States District Court for the Eastern District in a manner most consistent and New Orleans Foundation as an environ- of Louisiana explained:4 compatible with the issues which mental Field of Interest Fund for Orleans gave rise to the lawsuit which cre- and Jefferson parishes. In class action suits filed in federal ated the fund. The original cy pres award of $6 million court, the district court’s ability to has grown to $10 million. The endowment’s determine the use of unclaimed The cy pres doctrine has been de- perpetual goal is to encourage ecological, funds derives from the court’s inher- scribed as the “disposition of funds economic and cultural vitality, resilience ent power to manage its own docket that have not been individually and sustainability through environmentally and its power under Rule 23(d) of distributed, by distributing them focused policies, programs and projects. the Federal Rules of Civil Procedure for the next best use which is for The Foundation partners with environ- to make such orders as necessary indirect class benefit.” In re Lease mental experts and community leaders to manage the class action. When a Oil Antitrust Litigation (No. II), to set goals and chart effective strategies class action settlement agreement is [supra at *20]. Under the cy pres to support work critical to the health and silent as to the distribution of excess doctrine, the courts, guided by the resiliency of the class area.7 funds, or when there is an adjudicat- parties’ original purpose, direct that Other Louisiana state and federal courts ed aggregate class recovery that re- the unclaimed funds be distributed have concluded class-action litigation sults in unclaimed funds, the district for the indirect prospective benefit of through the use of a cy pres distribution judge must make the determination the class. Powell v. Georgia-Pacific with respect to some of the settlement about the appropriate distribution Corp., 119 F.3d 703 (8th Cir. 1997) funds. Parties involved in class actions of the surplus. See, 3 Newberg and (citations omitted); see also, In re have increasingly seen the wisdom of Conte, Newberg on Class Actions § Lease Oil Antitrust Litigation (No. consolidating remaining settlement pay- 10.15 (4th ed. 2002); see also, In re II), [supra at *20].5 ments into a community foundation or Lease Oil Antitrust Litigation (No. other nonprofit educational or charitable II), 2007 WL 4377835, *16 [2007 The practical value of the use of a cy organization. By use of cy pres, funds that U.S. Dist. LEXIS 91467] (S.D. Tex. pres residual settlement award is illustrated are not allocated to or are unclaimed by Dec. 12, 2007); see also, Wilson v. by retired 18th Judicial District Court a specific class member can benefit the Southwest Airlines, Inc., 880 F.2d Judge Jack T. Marionneaux’s comments whole affected defined class in a way that 807, 811 (5th Cir. 1989). in approving a distribution to the Greater addresses the issue which gave impetus to New Orleans Area Foundation to estab- the suit. The following Louisiana cases This distribution is usually done lish a multi-million-dollar environmental illustrate the parameters that federal and according to the tenets of the cy fund following a state court class-action state courts have used to test the propriety pres doctrine. This doctrine has settlement:6 and benefit of cy pres settlements. its origin in Roman law. The term translated loosely means: as near It’s been a learning experience for Cy Pres Cases as possible. The doctrine was first me. I’m not the oldest guy on the used in the charitable trust field bench. I’ve been here about eight Southeastern Louisiana University was when courts took steps to prevent years, but there’s always room to awarded a cy pres grant of $4.5 million as

Louisiana Bar Journal Vol. 58, No. 4 249 one of the conditions of settlement in the litigation; tion does not subject defendants In Re: Combustion, Inc. class action.8 This ► $20,000 to the Louisiana Bar Foun- to greater liability or alter their initial award was used as seed money to dation, dedicated for long-term investment substantive right, because it affects obtain additional millions of dollars from to provide an annual income stream to fund interests of silent class members federal and state governments which and coordinate a pro bono panel utilizing only. Further, distributing proceeds funded acquisition of property and con- attorneys in St. Landry Parish; and through Cy Pres satisfies class action struction and staffing of the first phase of a ► $80,000 to the Tri-Parish Health goals by deterring similar conduct literacy and technology center campus. In Center for the use and benefit of work- and disgorging the defendant of this case, more than 10,000 eligible class ing and nonworking underinsured in the profits wrongfully obtained, and members sued more than 150 defendants class area. using those funds in a way that at and their insurers for damages emanating Additional examples of cases using the least indirectly benefits the class from a waste oil recycling and reclamation cy pres doctrine include: In Re: Matter of members. Susan Beth Farmer, More facility in Livingston Parish, previously the Complaint of Ingram Barge Co. (Judge Lessons from the Laboratories: Cy designated as a Superfund site. A settle- John V. Parker);12 Lincoln v. Shell Pipeline Pres Distributions in Parens Patriae ment was reached, proof of claim forms (Judge Carl J. Barbier);13 Accounting Antitrust Actions Brought by State submitted, and, in due course, individual Outsourcing, L.L.C. v. Verizon Wireless Attorneys General, 68 Ford. L. Rev. allocations, fees and expenses were ap- Personal Communications, L.P. (Judge 361 at 394. proved and paid. Remaining monies from James J. Brady);14 Accounting Outsourcing the settlement’s reserve, contingency funds v. Kappa Publishing Group, Inc. (Judge In this particular case, residual and unclaimed allocations were awarded as James J. Brady);15 Baumann v. D&J Fill, funds were available from class cy pres grants to fund the Livingston Parish Inc. (Judge Pegram J. Mire Jr.);16 and actions that were filed because of Literacy and Technology Center, partnered Survey Communications, Inc. v. Corporate the ill effects of chemical releases by Southeastern Louisiana University Express (Judge James J. Brady).17 that impacted the lower end of Al- and the Livingston Parish School Board. The cy pres alternative is not without giers in the City of New Orleans. Under cy pres, the grants were awarded question18 and limitations.19 For instance, Although all previous allocations based on the theory that the site caused a in Cavalier v. Mobil Oil Corp.,20 a refin- of these funds were made to com- severe inconvenience and problems to the ery had an accidental airborne release munity service projects that directly residents of the class area. The resulting that allegedly impacted the surrounding benefited those persons impacted by facility provides vocational, educational neighborhoods. Separate lawsuits were the chemical releases, the March 26, and technological programs to residents in filed in Orleans and St. Bernard parishes. 2004, order allocated 20% of the the class area and, as a result, has helped All cases were consolidated. Resolution final disbursement (approximately to increase high school graduation rates was achieved, with various geographic $47,200.00) to . . . a project which and the number of class area residents boundaries established for a class area, provides services to residents and entering the work force and higher educa- notice was given, a consolidated fairness citizens of the lower ninth ward of tion. Thus, the court found that the cy pres hearing was held, and the trial court ap- the City of New Orleans, an area awards in In Re: Combustion, Inc. were proved the class-action settlement. Even- not involved in this class action of benefit to the entire class area and the tually, a disagreement arose between the settlement . . . . [W]e agree with class members. parties and the special master concerning Plaintiffs’ argument that the trial Judge Richard T. Haik Sr. said, “Educa- certain cy pres designations for a project court apparently believed that one tion is the most important legacy a society that had no connection to the class action of the companion cases to the Civil of human beings can leave to the next or the beneficiaries of the class actions. District Court cases involved New generation. It is the first and foremost The special master contended that the trial Orleans residents in the lower ninth business of government.”9 court had vast discretion in allocating cy ward, and merely erred in allocating Numerous other Louisiana cases,10 in- pres funds to community-based charities funds to an organization outside the volving both tort and commercial causes of located anywhere and was not required geographical boundaries of these action, have employed cy pres residual dis- to allocate cy pres funds for projects only class action settlements.21 tributions to a variety of nonprofit, public within artificially drawn geographical service and educational organizations. boundaries. The court disagreed and found The geographic limitation has, however, One case of particular interest to the instead: been subject to additional interpretation in Louisiana Bar Foundation and the Louisi- Turner v. Murphy Oil USA, Inc.,22 which ana State Bar Association is In Re: Eunice The equitable doctrine of Cy Pres confirms that if there is actual benefit to the Train Derailment.11 In this case, Judge permits distribution of excess class class area, an award is proper even though Richard T. Haik, Sr. awarded: action damage or settlement funds the award is not to an organization actually ► $20,000 to Acadiana Legal Ser- to the “next best” class, in order to located within the class area. In Turner, the vices Corp., dedicated for use in the class parallel the intended use of the funds court determined that the surplus funds area for providing legal services for civil as nearly as possible. This distribu- could be used in a cy pres distribution to

250 December 2010 / January 2011 confer a benefit to the class as a whole: Cy Pres. were made to Baton Rouge Marine Institute, Baton 2. Livingston Parish Police Jury v. Illinois Rouge Bar Foundation, Boys and Girls Club of Central Gulf R. Co., 432 So.2d 1027 (La. App. 1 Baton Rouge, Louisiana Arts and Science Center, After examining the purpose of the Cir. 1983). O’Brien House, Louisiana Coalition Against Do- fund and whom it was to benefit, 3. The Livingston train derailment occurred in mestic Violence, Southern University Law Center, as well as the purpose of the litiga- Livingston, La., and involved more than 3,500 class LSU Foundation and Adult Literacy Advocates, tion, this Court has concluded that members. It was certified as a class action and settled totaling $1,648,135. during jury selection for nearly $40 million. 15. CA 03 CV 169, United States District Court, the funds should be used for the 4. Turner v. Murphy Oil USA, Inc., 05-4206 (E.D. Middle District of Louisiana, where cy pres awards redress of the destruction and dam- La.), 2009 U.S. Dist. LEXIS 50509 (May 27, 2009), were made to Southeastern Development, Southern age throughout St. Bernard Parish. 2009 WL 1507414. University Law Center, LSU Law Center, Louisiana The Court would not be in favor of 5. Id., at 3-4. Bar Foundation, Greater Baton Rouge Food Bank, 6. For the certification portions of the decision, American Red Cross and Capital Area CASA, total- use of the funds for beautification see Ellis v. Georgia-Pacific Corp., 550 So.2d 1310 ing $431,262. outside of the Parish. However, (La. App. 1 Cir. 1989); Ellis v. Georgia-Pacific, Inc., 16. No. 82-488, 23rd Judicial District Court, As- these funds can be used outside of 536 So.2d 1217 (La. 1989); Ellis v. Georgia Pacific cension Parish, where a cy pres award was made to a the class area in a way that benefits Corp., 559 So.2d 121 (La. 1990). The cy pres order volunteer fire department located in the class area. was not appealed and can be found in the record of 17. CA 05-40, United States District Court, the class. Whether damaged by water Iberville Parish, 18th Judicial District Court, Div. Middle District of Louisiana, where cy pres awards or oil, much of the area has been “D,” Nos. 26328, 26574. were made to Our Lady of the Lake Foundation, devastated, and the development 7. www.gnof.org/programs/environment/. Louisiana Disaster Recovery Foundation and Mary of part of the Parish is linked to the 8. In Re: Combustion, Inc., 94 MDL 4000 (W.D. Bird Perkins Cancer Center. La. 1986). See also, In Re: Combustion, Inc., 968 F. 18. See 3 Newberg on Class Actions § 10:21-24 recovery of the entire community. Supp. 1116 (W.D. La. 1997), discussing the fairness (4th ed.) discussing the pros and cons of certain Many parts of St. Bernard Parish of the overall settlement and related issues. The criticisms of cy pres aspects of class-action settle- that are out of the area defined by cy pres distribution in the case also included $1.5 ments, including class-action manageability, cy pres the class serve as the gateway to million to the Livingston Parish Intergovernmental distribution as creating windfall, cy pres distributions Commission. as noncompensatory, and noncompensatory distribu- the class area. The proposed use of 9. Record, In Re: Combustion, Inc. tions as punishments; Kent A. Lambert, “Class Action a portion of the excess funds will 10. There are many illustrations from other Settlements in Louisiana,” 61 La. L. Rev. 89 (2000) at serve to increase the tax base of the jurisdictions including: In re Motorsports Merch. 104; Robert H. Klonoff and Mark Herrmann, “Class Parish and will inure to the benefit Antitrust Lit., 160 F.Supp.2d 1392, 1394 (N.D. Ga. Action Fairness Act: An Ill Conceived Approach 23 2001) (distributing unclaimed remainder funds to to Class Action Settlements,” 80 Tul. L. Rev. 1695 of the class members. charitable purposes according to cy pres doctrine); (2006) at 1704. Jones v. National Distillers, 56 F.Supp.2d 355, 358 19. The Louisiana Unclaimed Property Act, La. (S.D. N.Y. 1999) (authorizing that unclaimed funds R.S. 9:151, et seq., also has applicable provisions Conclusion in securities litigation case be paid to legal aid char- regarding the disposition of unclaimed allocated ity); New York v. Reebok Int’l Ltd., 903 F.Supp. funds. The use of cy pres distributions for 532, 536-37 (S.D. N.Y. 1995) (holding settlement 20. 2004-1543 (La. App. 4 Cir. 3/2/05), 898 residual or unclaimed class-action funds fair that distributed to charitable purposes $8 mil- So.2d 584. provides a beneficial method for case con- lion recovery for overcharging of athletic shoes, 21. Id., at 588 (citations omitted). where each individual claims ranged from $1-$4 22. Turner, supra, 2009 U.S. Dist. LEXIS 50509, clusion. Often, if an additional distribution and cost of administering individual recovery would at 4, 2009 WL 1507414. were required to individual class mem- be around $2.50 per claimant); Superior Beverage 23. Id. (citation omitted). bers, the extra expenses would likely be Co. v. Owens-Illinois, Inc., 827 F.Supp. 477, 478-79 disproportionate to the individual amount (N.D. Ill. 1993) (settlement in antitrust case distrib- Calvin C. Fayard, Jr., a partner in the Denham uted unclaimed remainder funds according to cy distributed. The equitable remedy of cy Springs law firm of Fayard & Honeycutt, received pres doctrine to several different charities); Pray v. his JD degree from Louisiana State University Law pres offers a solution: a court can, with Lockheed Aircraft Corp., 644 F.Supp. 1289, 1303 Center in 1969. He is a Fellow of the International (D.D.C.1986) (allowing punitive damage portion of creativity and cooperation, endeavor to Academy of Trial Lawyers and the Louisiana distribute unused funds in a way that most settlement fund case be given to charitable cause in case involving recovery for claims stemming from Bar Foundation. (519 Florida Blvd., Denham consistently benefits the class (and often the 1975 airplane crash in Saigon). Springs, LA 70726) surrounding community) as a whole. 11. CA 00-1267, United States District Court, As illustrated above, the cy pres doctrine Western District of Louisiana. Charles S. McCowan, also has been used as the basis to encour- 12. CA 97-226, United States District Court, Jr., a partner in the Ba- Middle District of Louisiana, where a cy pres award ton Rouge law firm of age settlement in non-class/mass-joinder of remaining funds was made to Southern University, Kean, Miller, Hawthorne, cases. Baton Rouge Area Foundation, Baton Rouge Com- D’Armond, McCowan & From community centers to educational munity College and Louisiana State University for the Jarman, is a 1967 gradu- outreach programs, from environmental “common benefit of the settlement class members and ate of Louisiana State all others in the geographic area who were potentially protection funds to legal aid and assistance University Law Center affected by the incident . . . that gave rise to this litiga- and was a member of the programs — in short, all benefit from cy tion.” Document 4303, filed 10/13/2006. Order of the Coif and the pres distribution. 13. CA 2005-4197, United States District Court, Louisiana Law Review. Eastern District of Louisiana, cy pres distribution to He is a Fellow of the American College of Trial the United Way for the GNO Plaquemine Capital Lawyers and the Louisiana Bar Foundation. (P.O. FOOTNOTES Campaign Fund. 14. CA 03 CV 161, United States District Court, Box 3513, Baton Rouge, LA 70821-3513) 1. See Black’s Law Dictionary (8th Ed. 2004), Middle District of Louisiana, where cy pres awards

Louisiana Bar Journal Vol. 58, No. 4 251 LSBA Honors Deceased Members of the Bench and Bar

The Louisiana State Bar Association son of Baton Rouge opened the memo- S. Steib, Jr., a judge in the 24th Judicial (LSBA) conducted its annual Memorial rial exercises, requesting that the court District Court in Gretna. The benedic- Exercises before the Louisiana Supreme dedicate this day to the honor and mem- tion was given by Archbishop Gregory Court on Oct. 4, 2010, honoring members ory of those members of the Bench and M. Aymond, Archdiocese of New Or- of the Bench and Bar who died in the past Bar who have passed away during the leans. year. The exercises followed the 58th an- last 12 months. On behalf of the LSBA, David F. Bienvenu, a past LSBA nual Red Mass held earlier that morning at he extended condolences to the families president and an attorney with the firm St. Louis Cathedral in New Orleans. The and friends of the judges and lawyers. of Simon, Peragine, Smith & Redfearn, Red Mass was sponsored by the Catholic LSBA President-Elect James J. Da- L.L.P., in New Orleans, gave the general Bishops of Louisiana and the St. Thomas vidson III of Lafayette read the names eulogy. More Catholic Lawyers Association. of all deceased members being recog- Following the exercises, the Su- (See related articles and photos on Red nized. Hon. Jeannette Theriot Knoll, as- preme Court was adjourned in memory Masses in New Orleans and Shreveport sociate justice of the Louisiana Supreme of the deceased members of the Bench on pages 291.) Court, gave the closing remarks. The in- and Bar. LSBA President Michael A. Patter- vocation was given by Hon. Raymond The members recognized included:

Members of the Judiciary 2009-10 Robert J. Boudreau...... Lake Charles Hon. Julian E. Bailes...... Natchitoches George S. Bourgeois, Jr...... Opelousas Hon. Allen Bergeron, Jr...... Baton Rouge Jack P. Brook...... Baton Rouge Hon. Dewey Burchett...... Benton Brent Douglas Burley...... Gonzales Hon. Oliver S. Delery...... Metairie James C. Cockfield...... Metairie Hon. Louis G. DeSonier, Jr...... Metairie Thomas W. Collens...... Covington Hon. George M. Foote...... Alexandria Regina C. Cooper...... Duluth, GA Hon. K. Perrell Fuselier...... Oakdale Sam J. D’Amico...... Baton Rouge Hon. Guy E. Humphries, Jr...... Alexandria Claiborne Dameron...... Baton Rouge Hon. Ingard O. Johannesen...... Metairie V. Gerald Dean...... Monroe Hon. Ronald P. Loumiet...... Lafitte Richard A. Deas...... Metairie Hon. Alfred Mansour...... Alexandria Harvey P. Delaune...... Bossier City Hon. Andrew J. Sciambra...... River Ridge Melissa F. Doise...... Lafayette Hon. Steven P. Shea...... Cade J. Stuart Douglass...... Metairie Hon. Michael G. Sullivan...... Lafayette Ernest S. Easterly III...... Watson Hon. David C. Treen...... Mandeville Jonathan A. Eckert...... New Orleans Hon. Shirley G. Wimberly, Jr...... New Orleans Francis Emmett...... New Orleans Stephen E. Everett...... Alexandria Members of the Bar 2009-10 Francis Burke Fenerty...... New Orleans Roland J. Achee...... Shreveport Nathan Joseph Folse...... Baton Rouge Robert J. Adams...... Lafayette Major Edward J. Gay III...... Covington Terry E. Allbritton...... Monroe Hugh M. Glenn, Jr...... New Orleans Frank Clinton Allen, Jr...... New Orleans Brace B. Godfrey, Jr...... Baton Rouge Richard D. Alvarez...... Metairie Abraham Goldfarb...... New Orleans Walter G. Andry...... Slidell Robert M. Green...... Mandeville Jessie H. Ankeny...... Roland, AR Frances L. Griffis...... Houston, TX George V. Baus...... Pass Christian, MS Arthur Buford Haack...... Baton Rouge Eugenie S. Bollier...... New Orleans Leven Hill Harris...... Shreveport Jonathan L. Bookman...... New Orleans Carol B. Hart...... Brunswick, GA

252 December 2010 / January 2011 M. Glenn Hawkins...... Many Robert E. Plumb, Jr...... Houston, TX Gerald I. Hebert...... Lafayette Norman W. Prendergast...... New Orleans Haywood Hansell Hillyer III...... Granbury, TX Robert A. Preston, Jr...... New Orleans William M. Hudson III...... Lafayette Vernon S. Pulliam...... Amite John Hanson Jackson...... Madisonville Leonard A. Redlauer...... Metairie William C. Jones...... New Orleans John R. Rarick...... St. Francisville Thomas K. Kirkpatrick...... Baton Rouge Charles K. Reasonover...... Metairie William L. Koerber...... Vidalia Paul Peter Reggie...... Lake Charles John D. Kopfler...... Hammond Charles S. Reily, Jr...... New Orleans Roselyn B. Koretzky...... New Orleans Norman Wendell Reisig, Jr...... Lacombe Edgar H. Lancaster, Jr...... Tallulah Arthur C. Reuter...... Mandeville Thaddeus Joseph Michael Lassai...... Houston, TX JoEdna Peabody Roberts...... Baton Rouge Robert S. Leake...... Baton Rouge Peter B. Salatich, Jr...... Metairie Patrick C. Leitz...... Metairie Edmund J. Schmidt, Jr...... Fairfield Glade, TN Stanley Harry Levin...... Metairie A.J. Schmitt, Jr...... New Orleans Guy Campbell Lyman, Jr...... Monteagle, TN O. Foerster Schully III...... Houston, TX Michael Mangham...... Lafayette David H. Seelig...... New Orleans Washington Marshall...... Baton Rouge Edward A. Sentilles, Jr...... New Orleans Wilton T. McCay, Jr...... Slidell Eustace J.J. Shearman III...... New Orleans Robert M. McHale...... Lake Charles Charles A. Shropshire...... Clinton Margie Gray McMahon...... Shreveport Gerald Nicholls Sims...... Owensboro, KY Bryan K. McMinn...... New Orleans Edwin A. Smith, Jr...... Baton Rouge John G. Miller, Jr...... Metairie Moise S. Steeg, Jr...... New Orleans Kendall R. Moses...... Kenner Fred Clegg Strong...... New Orleans James F. Mulla, Jr...... New Orleans David L. Thornhill...... Slidell Wayne Brown Mumphrey...... Slidell William C. Toadvin...... Monroe Edmund T. O’Brien...... New Orleans Mark H. Tompkins...... Lafayette James J. O’Connor...... Metairie Robert W. Troyer...... Ponchatoula Judy A. Pace...... New Orleans John C. West...... New Iberia Gary M. Pendergast...... New Orleans Nancy Brooks White...... Greenville, SC James R. Pettway...... Monroe Bluma F. Wolfson...... Metairie James R. Phillips...... Benton CARDONE LAW FIRM A PROFESSIONAL LAW CORPORATION Select Referrals Concentrating In: • NURSING HOME LIABILITY • MEDICAL MALPRACTICE • SERIOUS PERSONAL INJURY & WRONGFUL DEATH AV RATED State-wide practice with ofﬁ ces located in NEW ORLEANS • WESTBANK • METAIRIE 829 Baronne St., New Orleans, LA 70113 CLIFFORD E. CARDONE [email protected] (504)522-3333 • fax (504)581-7651

Louisiana Bar Journal Vol. 58, No. 4 253 Association Actions Events... Award... specialization

Participants registering now for the Louisiana State Bar Association’s (LSBA) fourth annual Solo and Small Firm Confer- ence can earn up to 13.5 CLE hours for just $250! This advance registration fee is effective through Jan. 14, 2011; the fee will increase to $300 from Jan. 15-Feb. 21. The conference is set for Feb. 24-25 at the Hilton New Orleans Riverside, 2 Poydras St. Conference organizers have announced that two nationally known speakers have been confirmed: James A. Calloway and Catherine Sanders Reach. Calloway, a legal technology and legal management expert, is the co-author of Winning Alternatives to Louisiana State Bar Association President Michael A. Patterson addressed participants attending the the Billable Hour — Strategies that Work October 2010 Louisiana Justice Community Conference. The seventh annual conference was hosted and How Good Lawyers Survive Bad by the LSBA’s Access to Justice Program. Times, and author of the blog, Jim Cal- loway's Law Practice Tips. Reach is the Access to Justice Program Hosts 7th Annual director of the American Bar Association’s Legal Technology Resource Center and an Louisiana Justice Community Conference editorial board member for Law Technol- ogy News, Law.com’s Legal Technology As part of the effort to strengthen Loui- Baxter of the Rhorer Law Firm shared and Law Practice Today. siana’s public interest legal community, her perspective on public interest from Two “tech tips” sessions just for legal the Louisiana State Bar Association’s her background in both civil litigation assistants ($40 each session) have been (LSBA) Access to Justice Program hosted and investigative journalism. added to the line-up for the conference. its seventh annual Louisiana Justice Participants had the opportunity to A full schedule of all topics and speakers Community Conference in October 2010 choose from two training tracks. The will be available online soon. in Baton Rouge. This year’s conference “Effective Advocacy” track focused on To register for the event online or to boasted new record attendance, with more practice skills and technology training, download a mail-in form, go to: www.lsba. than 120 public interest and pro bono such as trial preparation techniques taught org/2011solo. attorneys participating in the discussion by members of the American College of Also, conference exhibitors and spon- and networking events. Trial Lawyers. The “Substantive Law” sors can sign up to participate through Conference participants were greeted track provided advanced training in per- Jan. 28. To sign up as an exhibitor or by leaders of the Louisiana legal commu- tinent public interest topics, including sponsor, contact LSBA Program Coordi- nity, including addresses by LSBA Presi- foreclosure prevention and defense, health nator/Marketing and Sections Christine A. dent Michael A. Patterson and Louisiana care reform, and advocating for victims of Richard, (504)619-0105, e-mail crichard@ Bar Foundation Vice President Mathile W. domestic violence and elder abuse. lsba.org. Abramson. In a welcome address, Julie

254 December 2010 / January 2011 LSBA Encourages Louisiana Attorneys Volunteerism with Donate Nearly $13 a State Bar Ass isian ocia ou tio Model Pro Bono million in Service L 2011 n

Midyear Meeting Policy Louisiana attorneys, in the past year, collectively donated 129,213 pro bono The Louisiana State Bar Associa- hours to those who could not otherwise LSBA 2011 Midyear tion’s (LSBA) Board of Governors, at afford to hire an attorney, according to sta- its August 2010 meeting, approved the tistics compiled recently by the Louisiana Meeting Registration development of a model pro bono policy State Bar Association’s (LSBA) Access to for law firms and asked to review the Information Online Justice Department. This translates into final policy. The policy was developed approximately $13 million worth of service by pro bono program coordinators from to Louisiana’s indigent. The Louisiana State Bar Association’s across the state to encourage greater pro (LSBA) Midyear Meeting is scheduled As part of the continued effort to promote bono volunteerism among Louisiana and record pro bono activities throughout for Thursday through Saturday, Jan. 20- law firms. 22, 2011, at the New Orleans Marriott at the state, the LSBA collects statistics an- As part of its action plan for the nually on the number of pro bono hours the Convention Center, 859 Convention 2010-11 Bar year, the LSBA’s Access to Center Blvd. The meeting will feature free performed by Louisiana attorneys. This is Justice Department is working with the done through voluntarily self-reporting in CLE events, including the Young Lawyers various pro bono programs to distribute Section’s Professional Development response to a request distributed with the the plan to law firms and encouraging Bar dues. Rule 6.1 of the Rules of Profes- Seminar and a professionalism seminar, firms to adopt an official firm pro bono “DO Sweat the Small Stuff and Enhance sional Conduct sets an aspirational goal for policy. The model policy is being dis- every attorney to provide 50 hours of pro Professionalism in the Process;” a tributed to firms identified by local pro reception honoring the 50-, 60- and 70- bono service each year. bono organizations along with a letter On average, each Louisiana attorney year members of the LSBA; and several of support signed by LSBA President business meetings, including the Board of who reported his/her hours provided 73 Michael A. Patterson. Bar leaders and hours of pro bono service for the year, Governors, the House of Delegates and pro bono coordinators will follow up various committees. For more information well above the aspirational goal set forth with the identified law firms. in Rule 6.1. or to register online, go to: www.lsba.org/ Firms creating a Pro Bono Policy will midyear2011. It is not too late to report pro bono hours be recognized by the LSBA at events completed for the period beginning on July and in LSBA publications beginning in 1, 2009, and ending on June 30, 2010. These Online Registration January 2011. hours can be reported online at: www.lsba. For more information on development org/pbreporting. Open for Annual of a pro bono policy, or to review the LBSA To find out about pro bono opportunities, Model Pro Bono Policy, visit the Access visit the LSBA’s Access to Justice website, Meeting in Las Vegas to Justice website, www.lsba.org/atj, or www.lsba.org/atj. contact Access to Justice Director Monte Louisiana State Bar Association T.BusinessLoss Mollere at (800)421-5722, 1-6pg.qxp ext.6/28/10 146. 3:01 PM Page 1 (LSBA) members may now register online for the 70th LSBA Annual Meeting, Tuesday through Thursday, Business loss engagements involve cases in many areas including oil spills. June 28-30, 2011, at the Wynn Las Vegas. The online registration process is “Our Professionals have on hand experience dealing in all easy! Members must first register for the meeting. Once registration is complete, financial aspects of the legal profession. We have extensive members will receive a link to the Wynn experience in Business Loss and Bankruptcy.” Las Vegas reservation system and will be able to reserve a room at the negotiated —Kernion T. Schafer, CPA rate. For more information on all aspects of the Annual Meeting, go to: www.lsba. org/annualmeeting2011/. Several airlines Certified Public Accountants SCHAFER 701 Aurora Avenue • Suite A • Metairie, LA 70005 have daily flights between Louisiana GROUP LTD Phone 504.837.6573 • Fax 504.837.6570 • Email [email protected] cities and Las Vegas. Book early to get Forensic Accounting Emerging Issues Financial Services Litigation Services Legal Services Emerging Business the best flight deals!

Louisiana Bar Journal Vol. 58, No. 4 255 Deadline Jan. 14 for Mini Diversity LSBA Human Rights Conclaves in Baton Award Rouge, Shreveport

The nomination deadline is Jan. 14, The Louisiana State Bar Association 2011, for the Louisiana State Bar Associa- (LSBA) is partnering with the Greater tion’s (LSBA) Human Rights Award. The Baton Rouge Louis A. Martinet Legal award will recognize outstanding efforts Society, Inc. and the Baton Rouge Bar made by a bar association, a law firm or Association to host a free mini diversity law department, an individual attorney or conclave on Wednesday, Jan. 26, at the judge, a court, or a community organiza- Embassy Suites Hotel, 4919 Constitution tion or individual in promoting diversity Ave., Baton Rouge. in the legal profession, in particular, to The LSBA is partnering with the recognize efforts ensuring the full and Shreveport-Bossier Black Lawyers As- equal opportunity of all persons for entry sociation and the Shreveport Bar Associa- and advancement in Louisiana’s legal tion to host a free mini diversity conclave profession. on Thursday, Feb. 3, at the Petroleum One award will be presented during the Club, 416 Travis St., Shreveport. 2011 Annual Meeting in June. Both conclaves have been approved for To review the award guidelines and to 3 CLE professionalism hours. To register download a nomination form, go to: www. online or for more information, go to: www. lsba.org/lsbadocuments/285.pdf and www. lsba.org/2007cle/cle.asp. Or, contact lsba.org/lsbadocuments/285(1).pdf. Or e- LSBA Member Outreach and Diversity mail LSBA Director of Member Outreach Director Kelly McNeil Legier, (504)619- and Diversity Kelly McNeil Legier, kelly. 0129 or e-mail [email protected]. [email protected]. Staff Member Receives 2010 NABE Nominations Open Luminary Award Employers’ Deadline for 2011 Pro Bono is Jan. 30 for Legal Louisiana State Bar Association Publico Awards (LSBA) Communications Coordinator Internship Fair Barbara D. Baldwin received a Thom- The Louisiana State Bar Association’s son Reuters Legal Luminary Award for The Louisiana State Bar Association Access to Justice Committee is currently communications excellence from the (LSBA) Minority Involvement Section’s accepting nominations for its annual Pro National Association of Bar Executives third annual Minority Legal Internship Bono Publico Awards. Nominations must (NABE). Baldwin was honored in the Fair is 8 a.m. to 2 p.m. Saturday, March be received by 4:30 p.m. on Friday, Feb. Excellence in Web Sites category for 26, 2011, at Louisiana State University 25, 2011. her design of the LSBA’s 2010 Annual Paul M. Hebert Law Center. The Pro Bono Publico Awards recog- Meeting/Summer School web pages. Employers are encouraged to take nize pro bono and public interest attorneys The LSBA was among only 16 bar advantage of the opportunity to receive dedicated to serving Louisiana’s indigent. associations and their communications inexpensive or free legal assistance from The awards include the Friend of Pro Bono professionals to receive Luminary law students for the summer. Registration Award, the Pro Bono Publico Award, the Awards this year. The NABE is free for employers; registration deadline Career Public Interest Award, the David Communications Section’s Luminary is Jan. 30, 2011. A. Hamilton Lifetime Achievement Award Awards program, created in 1992 To register online, go to: https://law- and the Law Student Award. Awards will and named for the New Mexican lsba-csm.symplicity.com/employers/. be presented at a pro bono reception in “luminaria,” recognizes excellence in To RSVP for the luncheon or to re- May 2011. marketing, public relations, regular ceive more information, contact LSBA For more information on the award publications, special publications, Member Outreach and Diversity Direc- categories and to submit nominations electronic publications and Web sites. tor Kelly McNeil Legier, (504)619- online, visit the website, www.lsba.org/ 0129 or e-mail [email protected]. probonoawards.

256 December 2010 / January 2011

Deadlines Extended for Annual Meeting/Summer Planning Underway School Exhibitors, Sponsors, Advertisers for 2011 Diversity Conclave

The participation deadlines have Planning is underway for the Louisiana been extended for exhibitors, sponsors State Bar Association’s (LSBA) fourth and advertisers interested in the 2011 annual Conclave on Diversity in the Legal Louisiana State Bar Association (LSBA) Profession. The conclave is set for March Annual Meeting and LSBA/Louisiana 18, 2011, at the New Orleans Marriott at Judicial College Joint Summer School. the Convention Center, 859 Convention The Joint Summer School is Sunday Center Blvd., New Orleans. through Wednesday, June 5-8, at Sandestin The theme of this year’s conclave is Golf and Beach Resort in Destin, Fla. The “The Professional Workplace: Implement- 70th LSBA Annual Meeting is Tuesday ing Solutions and Cultivating An Inclusive through Thursday, June 28-30, at the Atmosphere.” Wynn Las Vegas. To sign up as an exhibitor or sponsor, The LSBA would like to acknowledge Christine A. Richard, (504)619-0105, contact LSBA Program Coordinator/Mar- Gilsbar, Inc. and LexisNexis for e-mail [email protected], by March 4, keting and Sections Christine A. Richard, participating as Platinum Sponsors for 2011. To book advertising space in the (504)619-0105, e-mail [email protected]. the Annual Meeting. LSBA Annual Meeting Program, contact For more information on the conclave, con- To sign up as an exhibitor, vendor LSBA Communications Assistant Krystal tact LSBA Member Outreach and Diversity or sponsor, contact LSBA Program L. Bellanger at (504)619-0131, e-mail Director Kelly McNeil Legier, (504)619- Coordinator/Marketing and Sections [email protected], by Jan. 31, 2011. 0129 or e-mail [email protected].

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Louisiana Bar Journal Vol. 58, No. 4 257 Lawyer Specialization Looking for litigation Available in Five Areas experience? The Louisiana Board of Legal Spe- and the examination is administered: cialization (LBLS) is accepting applica- ► Estate Planning and Administration Want to give tions for 2012 certification in business — 18 hours of estate planning law. bankruptcy law, consumer bankruptcy ► Family Law — 18 hours of fam- back to your law, estate planning and administration, ily law. community? family law and tax law. ► Tax Law — 20 hours of tax law. Deadline for accepting applications ► Bankruptcy Law — CLE is regu- for estate planning and administration, lated by the American Board of Certifica- Become a Pro family law and tax law certification is tion, the testing agency. Bono volunteer April 15, 2011. Applications for the two Regarding applications for business attorney! areas of bankruptcy law will be accepted bankruptcy law and consumer bankruptcy through September 2011. law certification, although the written In accordance with the Plan of Le- test(s) is administered by the American Pro Bono lawyers gain real gal Specialization, any Louisiana State Board of Certification, attorneys should Bar Association member who has been apply for approval of the Louisiana Board experience while providing engaged in the practice of law on a full- of Legal Specialization simultaneously valuable services for those time basis for a minimum of five years with the testing agency in order to avoid who may not otherwise be may apply for certification. The five-year delay of board certification by the LBLS. practice requirement must be met for the Information concerning the American able to afford legal help. period ending Dec. 31, 2011. A further Board of Certification will be provided No matter what your prac- requirement is that each year a minimum with the application form(s). tice area or experience level, of 35 percent of the attorney’s practice To apply for certification, complete there are pro bono programs must be devoted to the area of certifica- and mail, fax or e-mail the form below. tion sought. For more information, go to the Louisiana that will be of interest to you. In addition to the above, applicants Board of Legal Specialization’s Web site Here are some of the Pro must meet a minimum CLE requirement at www.lascmcle.org/specialization. Bono programs with exciting for the year in which application is made opportunities in your area: Legal Services of North La. Lawyer Specialization Application www.lsnl.org Deadline for accepting applications for estate planning and administration, Northwest Louisiana family law and/or tax law certification is April 15, 2011. Applications for business Pro Bono Project bankruptcy law and consumer bankruptcy law will be accepted until September [email protected] 2011. To receive an application, complete the following. (Please print or type.) Baton Rouge Bar Foundation Pro Bono Project Name ______www.brba.org Address______Central La. City / State / Zip______Pro Bono Project, Inc. [email protected] Please indicate area of certification desired______Lafayette Volunteer Lawyers Mail, fax or e-mail to: www.lafayettebar.org/volunteer.php Megan Landry, Executive Director Louisiana Board of Legal Specialization The Pro Bono Project, 601 St. Charles Ave., New Orleans, LA 70130-3404 Fax: (504)598-6753 New Orleans www.probono-no.org Or e-mail: [email protected].

258 December 2010 / January 2011 Crossword Puzzle By Hal Odom, Jr. Legal Titans

1 2 3 4 5 6 7 ACROSS DOWN 1 Legal titan Samuel ___, author 1 Authorization to arrest or of a treatise on contracts (9) search (7) 8 9 6 ___ & Bradstreet (3) 2 Meditative posture (5, 8) 8 Typically, one eligible for a 3 Common expression in case pension (7) titles (2, 2) 10 11 9 Like diet foods (2-3) 4 Diana Ross/Michael Jackson 10 What’s more (4) movie musical of 1978 (3, 3) 12 11 Naïvely optimistic character in 5 Serious, but not too serious (8)

13 14 15 Dickens (8) 6 Automated external ___ (13) 13 “We ___ One,” 1989 Eurythmics 7 Saltpeter (5) 16 album (3, 3) 12 Substance associated with 14 What “nuncupative” means, Deepwater Horizon (5, 3) 17 18 literally (6) 15 Scots population center (7)

19 17 Constructors of houses (8) 16 Items associated with Space 18 ___ mater (4) Shuttle Challenger (1-5) 20 21 20 A friend south of the border (5) 17 Legal titan Hugo ___, author 21 Often worn at ABA of Gideon v. Wainwright (5) conventions (4, 3) 19 Ratite birds (4)

22 23 22 Relatives (3) 23 It broke the camel’s back (4, 5) Answers on page 290.

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Louisiana Bar Journal Vol. 58, No. 4 259 FocusProfessionalism on By Barry H. Grodsky Calling all mentors!

magine a young lawyer, one year out concerning the process? situations such as hearings, depositions or of law school, sitting in his office This is not a unique situation. Less facing a certain judge. Communications on a Thursday morning in Bunkie experienced lawyers often face these can be as simple as an e-mail exchange when his boss comes in, puts a file dilemmas, particularly when they have or phone call or two — or as much as the onI his desk and says, “I’ve got a family no one to ask. Such issues also can be mentor and mentee want. emergency out of the country and I need of concern to more experienced lawyers There will always be room for more to leave town right away. You need to going into a court in which they have mentors and, with the quick-and-easy reg- handle this rule tomorrow in Plaquemines. never practiced. istration process, this is a great opportunity Good luck.” With that, the boss in this two- These issues have been addressed to share the wisdom, experience and guid- person law firm walks out. By the time the by the Louisiana State Bar Association ance you have accumulated throughout young lawyer hears the office door slam, (LSBA) and, through the efforts of the your years of practice with those who can he immediately has two questions: What Committee on the Profession and the truly benefit from such mentoring. There is a “rule”? Where is Plaquemines? Practice Assistance and Improvement is no other obligation other than to take a The young lawyer knows the legal Committee, a voluntary online mentoring moment to sign up. issues; he prepared the legal memoran- program was created. The first step in the This database information will be dum. However, the only time he has been program is well underway — registering given soon to prospective mentees who in court was when he watched his boss volunteers to be mentors. This simple can avail themselves of this program. The handle a couple of hearings and once tried step is only a click away at the LSBA’s LSBA has, in recent years, expanded its a case. But a “rule”! And he was on his website, www.lsba.org/Mentoring. Select programming to assure that young law- own! The young lawyer reviewed the file the option to become a mentor and, after yers and law students are headed down and figured out that he had to be in the answering a few questions, you will be the proper path of professionalism and Parish of Plaquemines, not the city. He listed in a mentor database. As a mentor, can benefit from the experiences of more felt he knew “the law” but was unsure you can then be contacted by e-mail by seasoned lawyers. This programming about the little things — things more young lawyers to assist with practice includes annual professionalism orienta- seasoned and experienced lawyers take questions and other issues. tions in the state’s four law schools and for granted. The purpose of the program is not to the creation of a Law Student Division of At that moment, this young lawyer help with legal analysis or case strategy, the LSBA. The LSBA takes great pride had no one to ask about very basic in- but rather to lend a guiding hand to assist in its Leadership Classes and in promot- formation. What happens at a “rule”? with very basic information. Such help ing professionalism for all lawyers. This Where exactly is the court? What does is a prime example of professionalism voluntary mentoring program is just one he do when he arrives in court? Is there — sharing information and experiences more step in this direction. anything special he should be aware of with young lawyers to guide them through Remember, it was not that long ago when many of us were that “young John Fox & AssociAtes, L.L.c. lawyer.” Think about how much easier it would have been if we had a mentor. Worker’s compensAtion reFerrALs Support this program by being that mentor. * Combined 45 years of workers’ compensation experience – licensed in 1975, It is easy to sign up and can greatly help 1976 and 2005, respectively a young colleague. * Consider our firm for those clients with a workers’ compensation case that you do not want to accept Barry H. Grodsky, a partner in the New Orleans law firm of Taggart Morton, * If you have a tort case with a companion workers’ compensation case that you L.L.C., is a member of the Louisiana State do not want to handle, we will do our very best to get indemnity benefits started Bar Association’s Board of Governors so that your client will have a source of income, and to get medical treatment and the chair of the LSBA’s Committee authorized to save you that expense. on the Profession. He can be e-mailed at 1521 Washington Avenue, New Orleans, LA 70130 [email protected]. Phone: (504)891-3303 Email: [email protected]

260 December 2010 / January 2011 Discipline Reports REPORTING DATEs 10/1/10 & 10/4/10

REPORT BY DISCIPLINARY COUNSEL

Public matters are reported to protect the public, inform the profession and deter misconduct. Reporting date Oct. 4, 2010.

Decisions ordered by the court on Sept. 3, 2010. conditions, ordered by the court on July JUDGMENT FINAL and EFFECTIVE on 2, 2010. JUDGMENT FINAL and EF- Robert C. Arledge, Vicksburg, Sept. 17, 2010. Gist: Multiple instances FECTIVE on July 2, 2010. Gist: Plead Miss., (2010-B-1014) Permanent of intentional conversion of client funds guilty to felony second-degree battery disbarment ordered by the court on totaling in excess of $720,000; and no res- and misdemeanor simple battery in two Sept. 3, 2010. JUDGMENT FINAL and titution offered or made to any client. separate criminal matters. EFFECTIVE on Sept. 17, 2010. Gist: Scott M. Hawkins, Lafayette, (2010- Charles D. Jones, Monroe, (2010-B- Violation of the Rules of Professional B-1093) Suspended for two years, 2047) Interim suspension ordered by the Conduct; engaging in conduct retroactive to the date of his Jan. 7, court on Sept. 20, 2010. involving dishonesty, fraud, deceit or 2009, interim suspension, and ordered Johnnie A. Jones, Jr., Baton Rouge, misrepresentation; and commission of to serve two years’ probation with (2010-B-2010) Interim suspension or- a criminal act that reflects adversely on Continued next page the lawyer’s honesty, trustworthiness or fitness as a lawyer. Harry J. Boyer, Jr., Metairie, (2010- B-1441) Adjudged guilty, as consent discipline, of additional violations that warrant disbarment and that will be added to his record for consideration in the event that he applies for readmission from his disbarment in 2009-B-1740 ordered by the court on Sept. 3, 2010. JUDGMENT FINAL and EFFECTIVE on Sept. 3, 2010. Gist: Neglected legal matters; failed to communicate with clients; failed to refund unearned fees; and arrested for possession of cocaine. Krystal, Donald R. Brown, Alexandria, (2010- I like the white print on black back- B-1590) Suspended for one year and ground. But I would like to see it with one day, fully deferred, subject to a ch r I s t o V I c h & Ke a r n e Y , l l p following changes: two-year period of supervised proba- a t t o r n e Y s a t l a w tion, ordered by the court on Sept. 3, 2010. - Make the LLP smaller JUDGMENT FINAL and EFFECTIVE on - List E.Phelps Gay and Kevin R. Tully on Sept. 3, 2010. Gist: Failure to adequately DEFENSE OF ETHICS COMPLAINTS AND CHARGES the same line supervise his non-lawyer employee; and - Use smaller font for telephone number. failing to properly charge clients for certain expenses. e. ph e l p s Ga Y Ke V I n r. tu l l Y John D. Conry, Metairie, (2010-B- 1929) Interim suspension ordered by (504)561-5700 the court on Aug. 25, 2010. Robert L. Hackett, New Orleans, 601 po Y d r a s st r e e t , su I t e 2300 (2010-B-1013) Permanent disbarment ne w or l e a n s , la 70130

Louisiana Bar Journal Vol. 58, No. 4 261 Discipline continued from 261 a day, fully deferred, and ordered to or misrepresentation; and violating pay restitution to his workers’ com- or attempting to violate the Rules of dered by the court on Sept. 15, 2010. pensation client, ordered by the court Professional Conduct. Edward A. Kaplan, Alexandria, on Sept. 24, 2010. JUDGMENT FINAL Edward M. Nichols, Jr., Lake (2010-B-2112) Interim suspension and EFFECTIVE on Sept. 24, 2010. Gist: Charles, (2010-B-0079) Suspended ordered by the court on Sept. 20, 2010. Collected a fee that exceeded the fee for one year, with all but six months W. Scott Maxwell, Baton Rouge, awarded by the workers’ compensation deferred, followed by a one-year (2009-B-2658) Permanent disbarment judge and exceeded the amount permitted period of supervised probation, ordered by the court on July 6, 2010. by the workers’ compensation statute in ordered by the court on July 6, 2010. Rehearing denied on Sept. 3, 2010. a lump sum settlement. Rehearing denied on Sept. 3, 2010. JUDGMENT FINAL and EFFECTIVE Lori P. Moser, Covington, (2010- JUDGMENT FINAL and EFFECTIVE on Sept. 3, 2010. Gist: Convicted of B-1777) Suspended for one year on Sept. 3, 2010. Gist: Failure to abide felony theft of funds from his mentally and one day, fully deferred, subject by the client’s decisions regarding the disabled client and her mother; multiple to two years’ supervised probation, objectives of the representation; neglect instances of intentional conversion of ordered by the court on Sept. 24, 2010. of his client’s legal matters; and failure client funds; engaged in the practice of JUDGMENT FINAL and EFFECTIVE to communicate with his client. law during his interim suspension; and on Sept. 24, 2010. Gist: Charging or John B. Ohle III, New Orleans, failure to cooperate with ODC in the attempting to charge an excessive or (2010-B-1707) Interim suspension underlying investigations. improper fee and expenses; conduct ordered by the court on Aug. 13, 2010. Randal L. Menard, Lafayette, (2010- involving dishonesty, fraud, deceit Krystal,Warren I’d Rush like, Lafayette,to change (2010-OB- my ad in the B-1798) Suspended for one year and Bar2104) Journal Transfer a little to disability bit. inactive status ordered by the court on Sept. 28, I2010. want JUDGMENT to include: FINAL and EFFEC- Elizabeth A. Alston TIVE on Sept. 28, 2010. Counselor, advocate and expert witness Stephen R. Streete, Lake Charles, (2010-OB-2074)Chair, Disciplinary Transfer toBoard, disability 1991 – Practice limited to matters involving legal and judicial ethics inactive status ordered1992 by the court on Chair, Disciplinary Board, 1991 – 1992 Sept. 15,AV-rated 2010. JUDGMENT for twenty FINAL years and AV-rated (Martindale-Hubbell) for twenty years EFFECTIVE on Sept. 15, 2010. CouldRandy you P.take Zinna a stab, Baton at fi tting Rouge, this in? (2010-B-1778) Interim suspension Alston Law Firm, LLC If anything needs to be deleted, you can 322 West 26th Avenue, Covington, LA 70433 ordered by the court on July 29, 2010. delete “Counselor, Advocate and Expert 985-809-6779 or toll-free: 877-809-6779 http://EthicsByAlston.com Witness.” Thanks, Beth SchiffSchiffSchiff, S,checkman S,checkman Scheckman & &W &hiteW White hitellp llp llp Schiff, Scheckman & White llp S- Advicechiff- Advice and- ,Advice counsel andScheckman counsel and concerning counsel concerning concerning legal andlegal& judicial legalandW judicial andhite ethics judicial ethics - llp ethics - - - Defense- Defense of- Defenselawyer of lawyer and of lawyerjudicial and judicial and discipline judicial discipline mattersdiscipline matters - matters - - - Advice and counsel concerning legal and judicial ethics - - Representation- Representation- Defense- Representation ofin lawyer bar in admissionsand bar judicialin admissions bar discipline admissions proceedings proceedings matters proceedings -- - - - Advice -and Representation counsel concerning in bar admissions legal and proceedings judicial ethics- - - Defense of lawyer and judicial discipline matters - leSlie lJ. eSliechiff lJ.e SSlie-chiff Representation J. SchiffSteven inS Steven barcheckman admissionsS tevenScheckman Scheckman proceedingsJulie BJroulie - Wn B JWulierohiteW nB roWhiteWn White 20 Years Experience,20 Years lExperience,e20Slie Years J. Experience, Schiff Former SpecialStevenFormer Counsel, S SpecialcheckmanFormer Counsel, Special Counsel, JulieFormer BroW Prosecutor,n FormerWhite Prosecutor,Former Prosecutor, DisciplinaryDisciplinary Defense Disciplinary20 Defense Years Experience, Defense Judiciary CommissionJudiciaryFormer Commission (1994-2008)Judiciary Special Counsel, Commission (1994-2008) (1994-2008)Office of DisciplinaryFormerOffice Prosecutor, ofOffice DisciplinaryCounsel of(1998-2006) Disciplinary Counsel (1998-2006) Counsel (1998-2006) Disciplinary Defense Judiciary Commission (1994-2008) Office of Disciplinary Counsel (1998-2006) 117 W. Landry117 Street W. Landry117117 W. StreetW. Landry Landry Street Street 829 Baronne829829 Street Baronne Baronne Street829 Street Baronne Street 1140411404 N.N. LakeLake11404 Sherwood Sherwood N. Ave., Lake11404 Ave.,Suite Sherwood A N.Suite Lake A Ave., Sherwood Suite AAve., Suite A Opelousas, LAOpelousas, e70570Slie LAOpelousas,Opelousas, 70570chiff LA LA 70570 70570 New Orleans,tevenNew LA Orleans, Orleans,70113checkman LANew LA70113 Orleans, 70113 LA 70113 ulieBaton Rouge, Rouge,ro LABatonW LA 70816n 70816 Rouge,hiteBaton LA Rouge,70816 LA 70816 Phone 337.942.9771lPhone 337.942.9771 J.PhonePhone S 337.942.9771 337.942.9771 PhoneS 504.581.9322PhonePhone S 504.581.9322 504.581.9322Phone 504.581.9322 J Phone B 225.293.4774 225.293.4774Phone W 225.293.4774Phone 225.293.4774 20 Years Experience, Former Special Counsel, Former Prosecutor, Fax 337.942.2821Fax 337.942.2821Fax 337.942.2821 337.942.2821 Fax 504.581.7651FaxFax 504.581.7651 504.581.7651Fax 504.581.7651 FaxFax 225.293.6332 225.293.6332Fax 225.293.6332Fax 225.293.6332 [email protected] Defense Judiciary [email protected] (1994-2008) Office [email protected] Disciplinary Counsel (1998-2006) [email protected]@sswethicslaw.com117 W. [email protected] Street [email protected]@sswethicslaw.com Baronne [email protected] [email protected] N. Lake [email protected] Ave., [email protected] A Opelousas, LA 70570 New Orleans, LA 70113 Baton Rouge, LA 70816 Phone 337.942.9771 Phone 504.581.9322 Phone 225.293.4774 Fax 337.942.2821 Fax 504.581.7651 Fax 225.293.6332 [email protected] [email protected] [email protected] 262 December 2010 / January 2011 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 Oct. 1, 2010. Respondent Disposition Date Filed Docket No. Kenneth Back [Reciprocal] Suspension. 8/17/10 10-1486 “I” Joseph W. Bailey [Reciprocal] Suspension. 8/19/10 10-1681 “F” John T. Bennett [Reciprocal] Suspension. 9/20/10 10-1431 “R” Donald G. Cave [Reciprocal] Suspension. 8/19/10 10-1432 “F” John D. Conry [Reciprocal] Interim suspension. 9/30/10 10-2916 “J” Margrett Ford [Reciprocal] Suspension. 8/19/10 10-1680 “N” Robert U. Goodman [Reciprocal] Permanent resignation. 8/23/10 10-1774 “B” Darryl Jackson [Reciprocal] Disbarment. 8/30/10 03-1394 “R” Stephanie Lawrence [Reciprocal] Suspension. 8/13/10 10-2045 “J” Kevin P. Monahan [Reciprocal] Permanent resignation. 8/17/10 06-3986 “I” William H. Sibley [Reciprocal] Permanent resignation. 8/17/10 10-1433 “L” Arden Wells [Reciprocal] Disbarment. 9/3/10 07-9308 “N” Randy Zinna [Reciprocal] Interim suspension. 9/30/10 10-2736 “I”

Discipline continued from 262 “Confirmed in writing” when used in Regarding “informed consent”...... 1 Admonitions (private sanctions, often reference to the informed consent of a with notice to complainants, etc.) is- person...... 1 TOTAL INDIVIDUALS sued since the last report of misconduct ADMONISHED...... 10 involving: Commit a criminal act especially that No. of Violations reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in A lawyer shall abide by a client’s other respects...... 1 KKayay E. DDonnellyonnelly decisions concerning the objectives of & AssociateAssociatess the representation and shall consult with Each affected client gives informed consent the client as to the means by which they regarding concurrent conflict of interest.....1 CeCertiﬁedrtiﬁed CourtCourt ReportersReporters are to be pursued...... 1 Engaging in conduct intended to disrupt FFullull SServiceervice CouCourtrt RReportingeporting FirmFirm a tribunal...... 1 A lawyer shall hold property of clients CompleteComplete Litigation Support Support or third persons that is in a lawyer’s possession in connection with a Failing to act with reasonable diligence and 2424 HOUR HOUR SERVICE SERVICE representation separate from the lawyer’s promptness in representing a client...... 2 Video Depositions own property...... 1 Video Depositions Failure to communicate with client...... 3 VideoVideo Confe Conferencingrencing An attorney shall not knowingly disobey an RRealeal T Timeime T Transcriptionranscription Failure to properly withdraw from obligation under the rules of a tribunal.....1 CompleteComplete Computeri Computerizedzed ServicesServices representation...... 1 ConfeConferencerence RRoomoom A lawyer shall promptly deliver to the Failure to terminate representation client or third person any funds or other properly...... 1 KKnowledgeablenowledgeable property that the client or third person is Efficientfficient entitled to receive...... 1 Improperly charging a client for E recoverable costs without regard for the Deedicateddicated A lawyer shall promptly inform the client actual invoiced expenses...... 1 of any decision or circumstance with respect to which client’s informed consent Lack of diligence...... 1 SuiteSuite 2025 2025 Energy Energy CentreCentre Phone: 504.229.8220 11001100 Poydras Poydras Street Street TollFree:Toll Free: 866.301.8220 is required...... 1 NewNew Orleans, Orleans, LA 7016370163 Fax:Fax: 504.504.229.8219229.8219 Relating to the handling of advanced email:email: [email protected]@bellsouth.net Concurrent conflict of interest...... 1 fees...... 1

Louisiana Bar Journal Vol. 58, No. 4 263 Recent Developments Administrative law to Taxation

debtor, filed an adversary proceeding challenging the discharge of her debts. The bankruptcy court held that false Administrative Bankruptcy statements and fraudulent omissions in Law Law the debtor’s bankruptcy schedules and statement of financial affairs precluded a discharge of her debts. The district court and the 5th Circuit affirmed. Agency Subpoena Power Fraudulent Intent In this case, the creditors argued that Has Limits the debtor violated 11 U.S.C. §§ 727(a) In re Herman, 09-41226, 2010 WL (2) for omitting certain transactions that The Louisiana State Board of Nursing 3824246 (5 Cir. Sept. 24, 2010) (unpub- occurred within one year of the filing of (board) served a subpoena duces tecum lished). her bankruptcy petition from her sched- on the Baton Rouge sheriff and district Creditors of Verna Kay Herman, the ules and statement of financial affairs. attorney for the production of records in their possession and pertaining to their investigations of allegations against a nurse Mediation Arbitration licensed by the board for sexual abuse of ...the leader a patient. Law enforcement produced the maps initial police report but refused to produce Professional Systems, Inc. in resolution any additional documents because they 800.443.7351 866.769.4553 800.397.9533 E-mail: [email protected] were not public records. The board filed New Orleans Baton Rouge Jackson, MS Website: www.maps-adr.com suit seeking various relief, all of which aimed at compelling production of the Free monthly breakfast CLEs records. The trial court declined to rule 7:45am in the board’s favor. METAIRIE: In Louisiana State Board of Nurs- 3900 N. Causeway Blvd. • 2nd Floor ing v. Gautreaux, 09-1758 (La. App. 1 January 20, 2011 (2 hrs.) Cir. 6/11/10), 39 So.3d 806, the appeals Topic: Medicare & MSAs: Update II court affirmed the trial court, holding Speaker: Roger J. Larue that although the matter was moot by the February 24, 2011 (1 hr.) time it was being considered, the board Topic: Back to Basics: Fundamentals of Negotiation subpoenas constituted an unreasonable Speaker: Robert A. Jenks Roger J. Larue interference with the prosecutorial respon- sibilities of the district attorney. BATON ROUGE: 8550 United Plaza Blvd • 1st Floor —Brian M. Bégué January 28, 2011 (2 hrs.) Chair, LSBA Administrative Topic: Medicare & MSAs: Update II Law Section Speaker: Roger J. Larue 2127 Dauphine St. New Orleans, LA 70116 February 25, 2011 (1 hr.) Topic: Back to Basics: Fundamentals of Negotiation Speaker: Robert A. Jenks Robert A. Jenks Find us on Facebook

See MAPS’ website or MCLE calendar for a complete listing of all our seminars.

264 December 2010 / January 2011 Specifically, the debtor failed to disclose Judicial Estoppel Second, the 5th Circuit found that the the following transactions: (1) withdraw- “balance of harms disfavors permitting als from her checking account, which Reed v. City of Arlington, 620 F.3d 477 th[e] litigation to continue.” were allegedly used to pay for physical (5 Cir. 2010). Upon learning of the judgment, the improvements to her home; (2) transfer Kim Lubke, the debtor, obtained a trustee reopened the debtor’s bankruptcy of title of a truck to her husband for $1 judgment against the City of Arlington for case, and upon reopening, only one-sixth and then paid off the balance; and (3) the violations of the Family Medical Leave of the debtor’s creditors timely filed new purchase of a television and laptop on her Act. The debtor failed to list the pending claims with the court. Thus, the 5th Circuit personal line of credit at Best Buy. $1 million judgment on his schedules and recognized that the debtor’s creditors To obtain a denial of discharge under statement of financial affairs and on his would not be “materially advantaged” Section 727(a)(2)(A), the creditors had sworn statements and filings. The debtor if the case proceeded any further. The to prove by a preponderance of the evi- obtained a discharge of $300,000. 5th Circuit found that the only principal dence that the debtor transferred property The issue before the 5th Circuit was claimants in the bankruptcy were the belonging to the debtor within one year “whether judicial estoppel should prevent trustee and the debtor’s trial attorney, of the filing of the petition with intent not only Lubke but his bankruptcy trustee and equity did not favor “ignoring [the to hinder, delay or defraud a creditor or from collecting the judgment against the debtor’s] misuse of the court system for officer of the estate. City.” The 5th Circuit reversed the district the primary benefit of attorneys.” The The debtor argued that she did not court’s ruling, holding that “to protect the 5th Circuit also noted that the debtor believe the assets belonged to her and the integrity of judicial processes, judicial benefited from his continued possession omission was an “honest mistake.” The estoppel bars the trustee from collecting and use of other unscheduled assets that debtor asserted that she did not own the the judgment.” the trustee did not pursue. Accordingly, truck, but the 5th Circuit found that she The district court applied the following the 5th Circuit reversed the district court’s paid off the balance and did not produce three requirements for judicial estoppel: ruling, holding that the district court any evidence that her husband made the “(1) inconsistent positions, (2) the court’s failed to “consider the [judicial estoppel] payments. The debtor also argued that acceptance of inconsistent positions, and doctrine from a fact-specific perspective the items from Best Buy were used by (3) absence of inadvertence.” The district concerning all parties involved.” her husband for his business and she court found that while all of the require- —Tristan E. Manthey thought he was the owner. However, the ments applied to the debtor, they did not Chair, LSBA Bankruptcy Law Section 5th Circuit found that the debtor attempted apply to the trustee. The district court and to discharge the debt owed to Best Buy. ordered the City to pay the judgment to the Cherie D. Nobles Finally, the 5th Circuit noted that the trustee, but, concerned the debtor would Member, LSBA Bankruptcy debtor did not produce any evidence benefit from any remaining funds, ordered Law Section that physical improvements to her home those funds returned to the City. Heller, Draper, Hayden, were made with the funds she withdrew Upon a review of the facts, the 5th Patrick & Horn, L.L.C. from her account, but rather, that she Circuit held that the district court erred in holding that judicial estoppel did not Ste. 2500, 650 Poydras St. withdrew these funds just days after the apply to the trustee. First, the 5th Circuit New Orleans, LA 70130 enforcement of a state court judgment by noted that it was “not sufficient to distin- the creditors. guish the debtor’s conduct from that of The bankruptcy court inferred the in- the trustee in applying judicial estoppel.” tent to hinder or defraud from the evidence and found from the facts:

too many omissions from sig- Ask about

nificant transactions occurring only ℠ FasTrac weeks prior to the bankruptcy filing Mediation

3 Hour Limit to support the supposition that these Fixed Fee omissions were the result of honest mistakes or inadvertence. DAVID S. COOK MEDIATOR The 5th Circuit held that the bankruptcy court did not clearly err by finding Over 2,000 Mediations No charge for travel throughout the State of Louisiana the debtor acted with fraudulent intent in violating Section 727(a)(2)(A). (337) 234-4155

Louisiana Bar Journal Vol. 58, No. 4 265

to allege that a change of circumstances had with benefits, she was still in need, and he occurred since the last judgment, his claim could afford to pay final spousal support. was dismissed. The court of appeal affirmed, Although he claimed that the court erred in Family finding that although the article 102 action considering entertainment/miscellaneous, Law was abandoned, the consent judgment of gifts, credit cards, veterinary bills, cell custody remained in effect. phone, cable/Internet, medical, pharmacy and utilities, the court of appeal found that Child Support “[d]espite the fact that ‘maintenance’ allows Custody for the basic necessities of life and does not State ex rel. Dept. of Soc. Servs. v. Peteet, 09- include luxury items, the evidence submitted Chandler v. Chandler, 45,308 (La. App. 2 1219 (La. App. 4 Cir. 5/12/10), 40 So.3d 1015. supports a $1,500.00 award without includ- Cir. 5/19/10), 37 So.3d 569. The Louisiana Department of Social ing the luxury items.” There was also no Naturally occurring changes in the 10 Services at the request of an Ohio support error in the duration for at least 24 months. years since the previous stipulated custody enforcement agency filed to register an Ohio The court could not consider his claim that judgment — such as the mother’s finishing child support judgment for enforcement by her expenses decreased because a mortgage her education and becoming a doctor, both wage assignment, which was granted. The note had been paid; his remedy was a rule parents’ remarriages, the father’s subsequent court of appeal found that Ohio had personal to decrease. jurisdiction over the defendant, who had to divorce, and the child’s advanced age as a Property young teenager — were not alone changes raise any such objections in Ohio, which had continuing jurisdiction over the matter; that materially affected the child’s welfare Iles v. Ogden, 09-0820 (La. App. 4 Cir. Ohio law controlled as to the prescriptive to support a change of the custody arrange- 2/26/10), 37 So.3d 427, writs denied, 10-0863, period under UIFSA; and the Ohio and ment. Because the child was flourishing 10-0986 (La. 9/3/10), 44 So.3d 694, 695. Louisiana Departments had standing to under the present schedule, and the father The court addressed, among other bring the action. failed to show that a change would be in community-property-related issues, the his best interest, the trial court did not err Divorce res nova issue of whether a cause of action in dismissing his case involuntarily under exists in a wrongful death case (automobile La. C.C.P. art. 1672. Noto v. Noto, 09-1100 (La. App. 5 Cir. accident) in favor of the decedent’s spouse for unearned/passive income derived from Pylant v. Pylant, 45,378 (La. App. 2 Cir. 5/11/10), 41 So.3d 1175. decedent’s separate property, which would 6/23/10), 41 So.3d 1282. The court of appeal found that the trial have been community-property income, and After entering a consent judgment re- court did not err in finding Ms. Noto free found that she was entitled to one-half of the garding custody in 2006 on a petition for from fault because the trial court believed value of such income. This was particularly an article 102 divorce filed by Ms. Pylant, her testimony, and Mr. Noto had no corso because he was on his way to sign a will the divorce action was abandoned when no roborating evidence to prove his claims for that would have provided her with most rule for divorce was timely filed. In 2009, fault by a preponderance of the evidence. The of his separate estate and one-half of his Mr. Pylant filed a petition for an article 103 court of appeal also affirmed that the parties community property when he was killed. divorce and sought custody and child sup- going on a family vacation together after he The court established factors to be met to port. Ms. Pylant’s exception of no cause of confessed his infidelity was not sufficient establish a cause of action to determine the action as to the custody was maintained, and to prove a reconciliation had taken place. loss to be replaced. The court found there when Mr. Pylant failed to amend his petition Even though she had a salary of $47,787, was no cause of action established for her “loss of inheritance,” but did not rule out that such a cause could be established under the INSURANCE & appropriate extraordinary circumstances. FINANCIAL CONSULTING Succ. of Firmin v. Louden, 09-0411 (La. App. WAYNE CITRON 4 Cir. 4/21/10), 38 So.3d 445, writ denied, 10-1176 (La. 9/17/10), 45 So.3d 1046. Expert Insurance Testimony The trial court did not err in finding Ms. Firmin was not entitled to the marital portion CMC A Leading Firm in Life, Health, or in how it calculated the value of her and Disability, Property and Mr. Firmin’s respective estates. She was ADVISORS Casualty Insurance for not due as community property one-half 1-800-CITRON1 Over 38 Years of the undistributed income retained in his www.citronagency.com business at his death, which was his separate Insurance Law and Regulations property. Although his will granted her use and occupancy of the family home (his

266 December 2010 / January 2011 separate property), after it was destroyed by Martin v. Martin, 09-1960 (La. App. 1 Cir. Hurricane Katrina, she was not entitled to 5/26/10), 38 So.3d 1174. use the proceeds in lieu of her living in the Mr. Martin and his wife borrowed money Fidelity, home, which she declined to repair. from his father while they were domiciled in Surety and Mississippi. They later established a domi- Construction Barber v. Barber, 09-0780 (La. App. 1 Cir. cile in Louisiana, where they were divorced. Law 5/7/10), 38 So.3d 1046. The father sued both after default on the The trial court found the parties’ pre- loan, and the trial court found them solidarily nuptial contract valid, but a paragraph liable on the debt as a community debt. Louisiana Surety Law regarding waiver of interim spousal support The court of appeal, however, applying the and final spousal support was struck in its conflicts of laws articles regarding contracts, A plaintiff subcontractor in Texas entirety because it is unlawful to waive rather than those regarding the parties after Contract Carpet, Inc. v. Echelon Constr. interim spousal support and the provisions divorce, found that it was not a community Servs., L.L.C., No. 09-6695, 2010 U.S. were “inextricably bound.” It also ruled that debt because it was incurred before the par- Dist. LEXIS 52320 (E.D. La. May 27, her right to seek reimbursement for contribu- ties established their community regime in 2010), sought to recover unpaid subcon- tions to his estate was reserved “as per law.” Louisiana. However, the classification as tract sums totaling $348,750.46 from the On his appeal, the court of appeal found that community property or as his separate debt general contractor’s payment-bond surety while interim spousal support could not be was “ultimately irrelevant” as to the father’s on a St. Tammany Parish private project. waived, “there is no prohibition against the claim because he was entitled to judgment At issue in the litigation were periodic lien waiver of post-divorce permanent spousal against both as the debt could be satisfied waivers executed by the subcontractor and support.” Further, it reversed the trial court’s from former community property held by submitted with pay applications, and the striking of the whole paragraph, finding that either, although her liability was only to the defense by the surety that the lien waivers the two waivers were distinct. It also found extent of the community property, not to her absolved the surety of potential liability that she had waived her right to reimburse- separate property. to the subcontractor. ment, and reversed this, too. The lien waivers were required by the —David M. Prados subcontract and provided in pertinent Jemison v. Timpton, 09-1166 (La. App. 4 Member, LSBA Family Law Section part that the subcontractor acknowledged Cir. 5/6/10), 38 So.3d 1021. Lowe, Stein, Hoffman, Allweiss receipt of certain monies. However, the Because Ms. Timpton did not include & Hauver, L.L.P. lien waivers also set forth that the purpose reimbursement claims on her descriptive list Ste. 3600, 701 Poydras St. of the lien waiver was to induce the gen- and did not timely file a motion to include New Orleans, LA 70139-7735 eral contractor to make a payment to the them or a pre-trial memo on the issues to subcontractor (and, correspondingly, for be presented, the trial court did not err in the owner to make disbursements to the refusing to allow her to introduce evidence general contractor in connection with the regarding her reimbursement claims. subcontractor’s payment request).

Louisiana Bar Journal Vol. 58, No. 4 267 The surety argued that the lien waiv- over a lawn sprinkler head on the bank’s known that the placement of the sprinkler ers effectively released the surety from property and was injured. The plaintiff head would result in an unreasonable risk claims and demands to the extent the in Lingoni v. Hibernian National Bank, of harm to the plaintiff. The plaintiff as- amounts sought in the litigation were 10-0714 (La. 5/28/10), 36 So.3d 255, serted that at the time of the accident the the subject of a lien waiver. The federal sued the bank, its insurer, the contrac- sprinkler head in question was not at the district court disagreed. The court found tors responsible for the installation of the location shown in the plans. The court the lien waivers to be ambiguous as to sprinkler system and the parties involved found, however, that there was insuf- whether the subcontractor had already in the design of the system. Plaintiff settled ficient proof that the contractors had not been paid (which it clearly had not) when with the bank and its insurer, leaving the constructed in accordance with the plans. it submitted the lien waivers to the gen- construction-related defendants in the As the plaintiff could not show that the eral contractor, as well as on the issue of suit. All of those defendants filed motions contractors breached an independent duty whether the lien waivers were conditioned for summary judgment. to the plaintiff or otherwise show that the on the subcontractor actually receiving The contractor defendants filed mo- contractors did not construct according to payment. Finding the lien waivers to be tions for summary judgment pursuant to the plans and specifications furnished to susceptible of more than one interpreta- La. R.S. 9:2771. That statute provides that them, summary judgment was granted in tion, and considering the lien waivers a contractor that constructs a work based favor of the contractor defendants. in context with the subcontract and the on plans and specifications that were pro- The summary judgment motion of payment applications, the federal district vided to the contractor and not created by the designer defendants was predicated court rejected the surety’s motion for the contractor is immune from liability for principally upon the failure of the plaintiff summary judgment on the claims against construction defects related to insufficien- to provide an expert on the issue of the it by the subcontractor. cies in the plans and specifications. That alleged negligent design. The designer immunity applies unless the contractor defendants urged the court to hold that the Contractor Immunity/ can be shown to have breached a duty issue of negligent placement of a sprinkler Construction Experts of care owed to the injured third party, head too close to a sidewalk could be es- which, in this case, required a showing tablished only through expert testimony. Plaintiff, a patron of a bank, stumbled that the contractor knew or should have Noting that a common sense standard in

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268 December 2010 / January 2011 regard to the sprinkler head placement was Carnival’s alleged negligence contributed not prevent an action for contribution not within the purview of the average lay to the breakaway, and dismissed United’s for a settling tortfeasor who obtains, witness, the court held that the plaintiff third-party complaint against Carnival as part of its settlement agreement could not establish that the sprinkler head with prejudice. United then settled with with the plaintiff, a full release locations shown in the plans constituted Combo, releasing all parties of all its for all parties. Where the settling professional negligence of the designers. claims, and appealed the district court’s tortfeasor takes an assignment The designers were dismissed from the order of summary judgment dismissing of the plaintiff’s claim, then [he] lawsuit as well. Carnival and its third-party claims. essentially steps into the plaintiff’s Noting that “[d]ifficult and interesting shoes and pursues the plaintiff’s —Daniel Lund III contribution questions arise where one claim. In that scenario, the plaintiff’s Member, LSBA Fidelity, Surety and or more tortfeasors settle before trial,” claim is not extinguished. Construction Law Section the court cited the companion cases of Shields Mott Lund, L.L.P. McDermott, Inc. v. Amclyde, 114 S.Ct. The rules articulated in THE LOUISIANA Ste. 2600, 650 Poydras St. 1461 (1994), and Boca Grande Club, and THE OREGON shift the burden of New Orleans, LA 70130 Inc. v. Fla. Power & Light Co., 114 S.Ct. proof on the issue of fault. These are 1472 (1994). The court held that when “[e]videntiary presumptions . . . designed one defendant settles with a plaintiff, the to fill a factual vacuum. Once evidence Insurance, Tort, liability of the remaining non-settling is presented . . . presumptions become Workers’ defendants is calculated based upon their superfluous because the parties have Compensation & proportionate injuries, and “actions for introduced evidence to dispel the mysteries Admiralty Law contribution against settling defendants are that gave rise to the presumptions.” The neither necessary nor permitted.” Citing its district court’s grant of summary judgment reliance upon these holdings in previous in favor of Carnival and its judgment Admiralty: Fault and opinions, the court stated: against United on its claims against Liability in Allisions Carnival was reversed, and the case was We have held that AmClyde’s remanded to the district court. proportionate liability scheme bars Combo Maritime, Inc. v. United Bulk a settling tortfeasor from seeking Terminal, 615 F.3d 599 (5 Cir. 2010). Workers’ Compensation: contribution from a non-settling Several barges broke free of their Post-Termination Coverage tortfeasor . . . [n]or may a settling moorings at United’s barge fleeting tortfeasor seek recovery from a facility and drifted downstream, alliding Ardoin v. CLECO Power, L.L.C., 10-0815 non-settling tortfeasor based on an with Combo’s vessel, which lay at anchor (La. 7/2/10), 38 So.3d 264. assignment of the property damage nearby. Allision is the impact of a moving Ardoin was discharged from CLECO’s claim by the plaintiff. However... vessel with a stationary object. The incident employ at its Opelousas Work Center we indicated that when a settling was contemporaneous with the passage by on Friday, Oct. 24, 2008. He obtained tortfeasor obtains a full release from United’s fleeting yard of a Carnival cruise CLECO’s permission to return to his the plaintiff for all parties, an action ship, allegedly too close and at full speed. office in Eunice on Monday, Oct. 27, for contribution might not conflict United brought action against Carnival for 2008, to clear his office and clean out his with AmClyde. We now make contribution and indemnity and damage desk. In the process, he sustained serious explicit what we have previously to its fleeting equipment and barges. injuries in a slip-and-fall accident. He implied and hold that AmClyde does Carnival moved for and received summary filed a disputed claim for compensation judgment on United’s claim based on the ancient LOUISIANA rule, which creates a rebuttable presumption that, in allisions A Fresh Perspective involving a drifting vessel, the drifting vessel is at fault. THE LOUISIANA, 3 Wall. On Your Case (70 U.S.) 164, 173, 18 L.Ed. 85 (1866), and the similarly hoary OREGON rule, that creates a presumption that shifts the burden of production and persuasion to a moving vessel that, under her own power, allides with a stationary object. THE OREGON, 15 S.Ct. 804 (1895). The district court further ruled that, at trial with Combo, Jury Focus Groups | Mock Trials United could not present evidence that www.tomfoutzadr.com

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Louisiana Bar Journal Vol. 58, No. 4 269 seeking wage benefits, medical treatment, to ensure collection of all owed antidump- penalties and attorney fees. The Office of ing duties. Workers’ Compensation (OWC) hearing International ► Eliminating the ability of individual officer considered each party’s motion for Law companies to seek removal from antidump- summary judgment regarding Ardoin’s ing or countervailing duty orders based on employment status at the time of the zero margins or rates for three (antidumping) accident, granting CLECO’s motion and or five (countervailing duty) consecutive denying Ardoin’s. The 3rd Circuit affirmed. years. The Supreme Court cited Larson’s U.S. Department of ► Consider requiring importers to post Workers’ Compensation Law, § 26.01 for Commerce International cash deposits in lieu of bonds for imports the proposition that: Trade Administration subject to antidumping and countervailing duty investigations at the time of the Compensation coverage is not Proposals to Support National Export preliminary determination. automatically and instantaneously Initiative and Enhance U.S. Competitive- ► Increasing the accountability of at- terminated by the firing or quitting ness (Aug. 26, 2010). torneys and non-attorneys practicing before of the employee. The employee U.S. Secretary of Commerce Gary Locke the Department of Commerce. is deemed to be within the course announced a series of proposals to strength- U.S. 9th Circuit Court of of employment for a reasonable en U.S. trade-enforcement mechanisms and period while winding up his or her support President Obama’s National Export Appeals affairs and leaving the premises. Initiative, which aims to double exports in Cassirer v. Kingdom of Spain, 616 F.3d The difficult question is: What is a the next five years. There are 14 proposals, reasonable period? 1019 (9 Cir. 2010). half of which apply exclusively to illegal im- The U.S. 9th Circuit Court of Appeals port practices from non-market economies addressed an important issue related to the CLECO allowed Ardoin to go to his (NMEs). The following is a brief summary office on Monday to remove his personal Foreign Sovereign Immunities Act (FSIA) of some of the proposed changes: in Cassirer. The FSIA provides immunity effects, and, thus, as a matter of law, he ► Expanded use of random sampling to “was within a reasonable period of time from suit in U.S. courts to foreign states select foreign companies as individual re- unless the foreign state’s conduct satisfies to wind up his affairs.” The case was spondents in antidumping investigations. remanded to the OWC. one of the act’s various exceptions. The ► Clarification of Commerce’s current question before the court was whether NME practices with respect to import prices the illegal taking of a painting that was —John Zachary Blanchard, Jr. for valuing production factors (including Past Chair, LSBA Insurance, Tort, originally confiscated by Nazis in 1939 and freight and handling costs) and reporting of then legally sold to Spain, shielded Spain Workers’ Compensation and production inputs for all products produced Admiralty Law Section from suit under the FSIA. The FSIA allows at foreign facilities (not simply those facili- prosecution against a sovereign where the 90 Westerfield St. ties used for U.S.-destined products). Bossier City, LA 71111 issue involves “property taken in viola- ► Reconsideration of the treatment tion of international law.” This so-called of export taxes and value-added taxes in “expropriation exception” was invoked Commerce’s non-market economy meth- by the American plaintiff, who alleged that odology. his grandmother’s painting was originally ► Increasing the focus on resellers confiscated by the Nazi government in and non-reviewed parties in NME cases Germany and, after changing hands numerous times, ended up being purchased by a Spanish government foundation in violation of international law. Spain sought dismissal of the case on narrow FSIA sovereign immunity grounds because it was a state entity, is pleased to announce the addition of and not the state itself, that purchased the painting. Both the district and appellate Hon. H. Ward Fontenot (Ret.) courts refused to dismiss the case, hold- to its mediation and arbitration panel ing that FSIA immunity pertains to events involving state actors generally and is not Phone 225-389-9899 or 866-389-9899 for Scheduling limited to state actors. A dissenting opinion 721 Government Street, Suite 102 Baton Rouge, LA 70802 noted the “important diplomatic implica- www. perrydampf.com tions” of the case and the majority’s failure to use principles of statutory construction in

270 December 2010 / January 2011 determining that the FSIA was unambiguous to the United States and many advocates (lindane), against Canada under NAFTA. with respect to state actors. contend that China lacks effective food Chemtura had previously registered its pes- safety programs, citing problems with dairy ticide, but Canada revoked the registration. World Trade Organization products, infant formula, wheat gluten and Chemtura invoked arbitration for Canada’s Certain Measures Affecting Imports of farmed seafood. alleged failure to conduct a fair review of Poultry from China (WT/DS392). China requested a WTO dispute- Chemtura’s registration, in violation of A World Trade Organization (WTO) settlement panel to address the issue, and NAFTA articles 1105 (minimum standard dispute-settlement panel recently issued the panel issued its final report on Sept. 29, of treatment), 1103 (most favored nation) a ruling on certain measures implemented 2010. The panel found the U.S. measure was and 1110 (illegal expropriation). by the United States regarding poultry im- a prohibition on imports in violation of nu- In order to address the expropriation ports from China. In April 2006, the U.S. merous provisions of the WTO Agreement claim, the tribunal first had to determine Food Safety and Inspection Service (FSIS) on Sanitary and Phytosanitary Measures and whether the registration was an “invest- published a final rule allowing importation not justified under Article XX (b) of GATT ment” as defined by the treaty. The tribunal of certain poultry products from China. 1994. The U.S. measure has now expired, developed a significantly expanded defini- FSIS was prohibited from implementing and the WTO panel made no recommendation of investment to include elements such the rule, however, due to various appro- tions regarding further U.S. action necessary as goodwill, customers and market share. priations measures enacted after 2006. The to comply with the ruling. Despite broadening the scope of what qualifies as an investment, the tribunal found that FY 2010 Agriculture appropriations bill North American Free Trade contained language addressing the issue by Chemtura had not been subjected to “sub- allowing the Department of Agriculture to Agreement stantial deprivation” of its investment as a result of the registration revocation. use certain funds to implement the rule as Ad Hoc NAFTA Arbitration under UNCI- long as certain preconditions were satis- TRAL Rules, Chemtura Corp. v. Canada —Edward T. Hayes fied. The preconditions sought to ensure (Aug. 2, 2010). Member, LSBA International the safety of Chinese poultry imports but An ad hoc NAFTA arbitral tribunal Law Section also sought to address collateral U.S.-China reached a significant decision in August Leake & Andersson, L.L.P. trade23377 concerns.Koerber_LA_7.125x4.625:KoerberYourClientsAd_horz China is the third largest 2010 in a case involving 11/8/10claims by Chem4:52- PM Page 1 Ste. 1700, 1100 Poydras St. supplier of food and agricultural products tura, a U.S. manufacturer of pesticide New Orleans, LA 70163

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Louisiana Bar Journal Vol. 58, No. 4 271 The landowners subsequently sued for cure requirements in the leases as applying lease cancellation. They filed suit more than to any breach by the lessee, and affirmed 60 days after sending their first letter, but the order dismissing the suit. Mineral fewer than 60 days after sending their second Law letter. The defendants filed exceptions of Contract Formation prematurity based on the landowners’ failure to allow Fite 60 days to cure. The trial court Adams v. JPD Energy, 45,420 (La. App. 2 sustained the exceptions and dismissed. The Cir. 8/11/10), ____ So.3d ____. Prematurity plaintiffs appealed. The 2nd Circuit began A landowner signed a lease that provided its analysis by stating that the first letter did for a one-eighth royalty, but he later claimed Lucky v. EnCana Oil & Gas, 45,413 (La. not satisfy the leases’ notice requirement that he and the landman who negotiated the App. 2 Cir. 8/11/10), ____ So.3d ____. because the landowners did not send it to the lease actually had agreed to a one-fourth Landowners granted multiple mineral lessee, Fite. It did not matter that EnCana royalty. The landowner explained that leases to Fite Oil & Gas. Each lease required forwarded the letter to Fite. he had not read the lease before signing the landowners to give the lessee written The landowners argued, however, that it because he had poor eyesight and had notice and 60 days to cure any failure of they were not required to give notice or an trusted the landman. The landowner sued the lessee to conduct its “operations . . . in opportunity to cure because they were suing to rescind the lease on the basis of fraud compliance” with the lease. A few weeks for damages to property. They relied on or error. In the alternative, he asked that after Fite transferred certain rights under Broussard v. Hilcorp, in which the Louisiana the lease be reformed to provide for a one- the leases to EnCana, the landowners wrote Supreme Court held that Mineral Code Art. fourth royalty. a letter to EnCana, alleging lease violations 136’s requirement that a lessor give notice The landman testified that the lease’s and demanding lease cancellations. EnCana and a reasonable opportunity to cure before reference to a one-eighth royalty was a forwarded the letter to Fite, and also filing suit does not apply to actions based on mistake, but that he and the landowner had responded to the landowners, denying contamination of property. The 2nd Circuit agreed to a one-fifth royalty, not a one-fourth liability and stating that the landowners distinguished Broussard, holding that it does royalty. The defendants contended that the should direct their claims to Fite. The not control the scope of a lessor’s contractual lease should be reformed to provide for a landowners then sent a second letter, which duty to give notice and an opportunity to cure. one-fifth royalty. They further argued that they delivered to both Fite and EnCana. The 2nd Circuit interpreted the notice and the plaintiff’s claim of fraud or error was

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272 December 2010 / January 2011 barred by his failure to read the lease. a judgment granting the relief sought by The district court held that there was the plaintiff. no valid lease because there had been no On appeal, the United States 5th “meeting of the minds” between the parties. Circuit resolved several issues. It held Professional The 2nd Circuit affirmed. that the plaintiff’s letter to the defendant Liability satisfied Mineral Code Art. 136’s pre-suit Lost Opportunity to Lease notice requirement. The court purported to distinguish jurisprudence that suggests Rathborne Land Co. v. Ascent Energy, 610 that a letter demanding lease cancellation, Summary Judgment: F.3d 249 (5 Cir. 2010). rather than demanding performance, fails Timeliness of Filing The lessor’s predecessor-in-interest to satisfy Art. 136 because it does not give Affidavits granted a mineral lease that covered more an opportunity to cure. The court held than 5,000 acres, but, over numerous years, a that a plaintiff can recover for lost leasing Guillory v. Chapman, 10-1370 (La. series of partial releases had reduced the area opportunities if he shows that it is more 9/24/10), 44 So.3d 272. under lease to about 450 acres. The lessor’s probable than not that he could have leased Affidavits submitted in opposition to lawyer wrote a letter to the lessee, demanding the property but for the defendant’s conduct. a motion for summary judgment must be a release of the remaining acreage because Finally, the court reduced the damages served at least eight days prior to the date of the lessee’s failure to reasonably develop award, holding that the plaintiff could not of the hearing. La. C.C.P. art. 966 (B)(2). the premises. After negotiations failed to recover damages for lost leasing opportunity The date in Guillory for the submission resolve the dispute, the lessor filed suit for for land other than the 450 acres leased to of the plaintiff’s opposition to the defen- lease cancellation and also for damages for the defendant. Damages for lost opportunity dants’ motion was March 1, a Sunday, the lost opportunity to enter new leases. to lease the other land would constitute thus making the deadline March 2. On The plaintiff explained that it was entitled consequential damages, which the court March 2, the plaintiff filed his opposition to damages for the lost opportunity to concluded were not available in a suit based memorandum, which included an affidavit lease approximately 5,800 acres, not just on a failure to reasonably develop. from an expert witness, all of which were the 450 acres still leased to the defendant, hand-delivered to the defendants’ counsel. because the 450 acres was in the middle of —Keith B. Hall The expert’s affidavit, however, was not the 5,800 acres, the defendant had refused Member, LSBA Mineral Law Section notarized. On March 3, the plaintiff filed to participate in 3-D seismic activity, that Stone Pigman Walther the notarized affidavit and faxed a copy refusal had made a survey of the 5,800 acres Wittmann, L.L.C. impossible, and that impossibility prevented 546 Carondelet St. the plaintiff from leasing the 5,800 acres. New Orleans, LA 70130 After a bench trial, the district court entered

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Louisiana Bar Journal Vol. 58, No. 4 273 to defense counsel. filing an opposition memorandum. The fact. But, the defendant, as mover, did At the hearing on the motion, the de- court also pointed out that “the trial court not have the burden to negate all essen- fendants objected to the expert’s affidavit was informed the case was six years tial elements of a claim against it. La. on the ground that it was not timely filed. old and the plaintiff was aware of the C.C.P. art. 966 (C)(2). Mover’s burden The plaintiff argued that a snowstorm in expert for years. As such, the trial court was only to point out a lack of support the area where the expert lived — an act did not abuse its discretion in excluding for “an essential element” of the claim, of God — prevented the timely filing of the affidavit.” which it did. the notarized affidavit. The trial court rejected this argument and disallowed Summary Judgment: Summary Judgment: Trial the admission of the affidavit. Lack of Support for an Judge May Not Make Ruling On appeal to the 3rd Circuit, 09-1005 (5/12/10), the trial court’s decision was Essential Element Based on Credibility reversed. The court of appeal noted of the Claim that trial judges have discretion, absent Janney v. Pearce, 09-2103 (La. App. 1 prejudice to the moving party, to consider Thibodeaux v. Lafayette Gen. Surgi- Cir. 5/7/10), 40 So.3d 285, writ denied, affidavits served after the time provided cal Hosp., (La. App. 3 Cir. 5/5/10), 38 10-1356 (La. 9/24/10), 45 So.3d 1078. by Art. 966. The defendants in this case So.3d 544. A medical-review panel unanimously did not allege that they were prejudiced The defendant-hospital filed a mo- opined that Dr. Pearce breached no by the late-filed affidavit. The court of tion for summary judgment in which it standard of care. The plaintiffs then filed appeal found that the trial court abused contended that the plaintiffs would be a wrongful death and survival action its discretion in refusing to admit or to unable to sustain their burden of proof on against her. She moved for summary consider the affidavit of the expert wit- the issues of negligence and causation. judgment, and, in support of the motion, ness. After considering the affidavit, The trial court, without written reasons, attached the opinion of the panel, the the court of appeal found that it created granted summary judgment. deposition of a physician, the affidavit of genuine issues of material fact as to One assignment of error argued by the one of the panel members and her own af- whether there had been a breach of the plaintiffs was that the trial court gave no fidavit. The plaintiffs filed in opposition applicable standard of care and whether weight to Mrs. Thibodeaux’s affidavit or the affidavit of a physician, the affidavits any breach resulted in the death of the to the deposition testimony of an attend- of three of the plaintiffs, the emergency patient. ing physician. The court of appeal agreed room record and the defendant’s notes In a per curiam opinion, the Supreme that this evidence “arguably” created a from her office chart. A physician’s letter Court reversed the decision on defen- genuine issue of material fact concerning that was not in the form of an affidavit dants’ motion and reinstated the trial the issue of negligence. As to the causal was also attached to the opposition and court’s ruling. The court noted that Art. link between the potential negligence was thus not considered by the trial court 966(B)(2) coincides with Rule 9.9(b) and damages, the court concluded that or by the court of appeal. of the Uniform Rules of the Louisiana the plaintiffs did not present evidence The trial court granted the motion for District Courts concerning the time for sufficient to create a genuine issue of partial summary judgment, dismissing

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274 December 2010 / January 2011 the plaintiffs’ claim for wrongful death. sued Proskauer, along with 16 other de- Much of the plaintiffs’ focus in their fendants, bringing claims under state law, appeal was on the difference between the Racketeering Influenced and Corrupt a wrongful death claim and a “loss of Taxation Organizations Act (RICO) and the Securities chance of survival claim.” The court of Exchange Act of 1934. appeal did not reach the merits of that Addressing the claims brought against assignment of error because it determined Proskauer, which had provided plaintiffs that the trial court had made credibility with legal opinions on the tax shelter, the determinations in granting the summary Federal Taxation court affirmed the dismissal of plaintiffs’ judgment and that this called for rever- In a decision that has implications for law RICO claim, holding that Congress had sal. The court, citing Willis v. Medders, firms providing legal opinions for transac- limited RICO claims where the conduct 00-2507, p. 2 (La. 12/8/00), 775 So.2d tions in which tax benefits are subsequently “would have been actionable as fraud in the 1049, 1050, stated: disallowed by the Internal Revenue Service, purchase or sale of securities.” The court the 5th Circuit Court of Appeals has held also affirmed the dismissal of plaintiffs’ Despite the legislative mandate that, although malpractice claims may be securities-fraud claims, finding that the that summary judgments are now appropriate, RICO and securities fraud elements of reliance and scienter were not favored, factual inferences rea- claims could not be brought against the sufficiently pleaded. The court stated that a sonably drawn from the evidence law firm providing the opinions at issue. In securities claim would require a showing must be construed in favor of the a recent decision in Affco Investments 2001 of reliance upon Proskauer’s role in the tax party opposing the motion, and v. Proskauer Rose, ____ F.3d ____ (5 Cir. scheme. As plaintiffs were assured only that all doubt must be resolved in the 2010), the court reviewed claims brought a “major national law firm” would be giving opponent’s favor. by plaintiffs who invested in a tax shelter an opinion, and because plaintiffs had no involving digital options. The tax scheme knowledge of Proskauer’s role in the invest- The appellate court reviewed control- was later disallowed by the IRS and, as a ment scheme before deciding to invest in the ling cases on the issue and noted that result, the IRS charged plaintiffs with back digital options scheme, the court affirmed the trial court’s role is not to evaluate taxes, interest and penalties. Plaintiffs then the dismissal of the securities claim. the weight or credibility of evidence but only to determine whether there is a genuine issue of triable fact. The court cited Independent Fire Ins. Co. v. The FaircloTh law Group, llc Sunbeam Corp., 99-2181, pp. 16-17 (La. 2/29/00), 755 So.2d 226, 236, for the From the courtrooms to the Capitol proposition that in deciding the motion for summary judgment, “the trial court must assume that all of the witnesses Jimmy R. Faircloth, Jr. are credible.” Barbara Bell Melton The evidence before the trial court was found to have raised genuine issues of material fact; thus, the court of Whether seeking co-counsel or merely a new perspective on appeal ruled that the trial court erred in litigation or legislative strategy, selecting the right resource granting summary judgment because to do so required it to decide disputed is often the most important decision you make. genuine issues of fact and to make credibility determinations, both of which The Faircloth Law Group concentrates on business, property should have been determined by a trial and governmental litigation, as well as strategic litigation on the merits. support and governmental affairs. — Robert J. David Gainsburgh, Benjamin, David, Meunier 1412 Centre Court, Suite 203 & Warshauer, L.L.C. Alexandria, LA 71301 Ste. 2800, 1100 Poydras St. New Orleans, LA 70163-2800 Phone: 318.619.7755 Facsimile: 318.619.7744

Louisiana Bar Journal Vol. 58, No. 4 275 Increased Form 1099 to an independent, impartial administrative Local: Assessor Lacks Reporting authority before a final assessment is issued. Standing to Challenge The department cited La. R.S. 47:1563 as Section 9006 of the recently enacted, and statutory authority for creation of this new highly controversial, Patient Protection and In Gisclair v. Louisiana Tax Commis- division. The APB will handle certain mat- sion, 10-0563 (La. 9/24/10), 44 So.3d 272, Affordable Care Act amended and broad- ters previously handled by the department’s ened Internal Revenue Code Section 6041 to the Louisiana Supreme Court held that Field Audit Services Division. A taxpayer, a parish assessor does not have standing require, beginning in 2012, all companies to unsatisfied with the decision of the APB, still use Form 1099 to report payments to vendors to challenge the constitutionality of the retains its rights to appeal to the Board of Louisiana Tax Commission’s valuation of $600 or more in any given tax year. The Tax Appeals or to pay the tax under protest Small Business Jobs Act of 2010, signed of public service property. In Gisclair, the and file a lawsuit in district court. assessor complained that the Tax Com- by President Obama in September, while To obtain an APB hearing, a taxpayer extending the SBA’s America’s Recovery mission improperly recognized certain tax must submit a completed protest petition exemptions in its determination that reduced Capital Loan Program and establishing within 30 days from the date of the Notice of additional small business loan funds and the taxes to be paid to the parish. The court Proposed Tax Due. The protest petition must rejected the assessor’s position that La. incentives, offset a portion of the bill’s costs identify relevant facts, outstanding issues by further amending Internal Revenue Code R.S. 47:1998(C), which gives assessors and the reasons that the taxpayer disputes the authority to sue to protect the interest Section 6041 to require that, beginning in the proposed assessment, and should cite 2011, persons receiving rental income to use of the state, permitted the instant lawsuit. relevant statutes, cases and other authority The court held that 47:1998(C) authorized Form 1099 to report payments to a vendor in support of the taxpayer’s position. Hear- of $600 in a given tax year made with re- suits only with respect to assessments by ings, which are informal, may be conducted local assessors and did not apply to the Tax spect to expenses in maintaining the rental by telephone, and no transcript is made of property. These two provisions are feared Commission’s assessment of public-service the proceeding. The department does not property. Although a local assessor may be to create a heavy reporting burden, and two intend for decisions of the APB to have failed attempts have already been made in made a party to such a suit, the sole right to precedent beyond any particular case under bring a lawsuit challenging a Tax Commis- the Senate to repeal or soften the reporting consideration, and taxpayers may be asked requirement. Congress has now recessed for sion determination is granted to taxpayers to sign agreements to suspend prescription under La. R.S. 47:1856(G). the election cycle, and no recourse appears in connection with a protest. to be presently forthcoming. The APB will not consider all protests that —Jaye A. Calhoun State: Department of may be made. The APB will not consider cases Member, LSBA Taxation Section in which fraudulent or criminal behavior is sus- and Revenue Audit Protest pected or ascertained; where the department Bureau Jeffrey P. Good is committed to litigate on an issue or where McGlinchey Stafford, P.L.L.C. The Louisiana Department of Revenue constitutional issues are involved; where the 601 Poydras St., 12th Flr. has instituted a new Audit Protest Bureau department has issued a Revenue Ruling; New Orleans, LA 70130 (APB), intended to provide taxpayers with an where the only issue is collectability; where opportunity to appeal certain audit findings the protest is untimely; and in other instances specified by the department. Need some help managing your law office?

The Louisiana State Bar Association (LSBA) has established the Law Office Management Assis- tance Program (LOMAP, for short). This program is designed to assist lawyers in increasing the quality of the legal services they provide. Questions or comments about LOMAP may be sent to Shawn L. Holahan, shawn.holahan@lsba. org or call (504)619-0153 or (800)421-5722, ext. 153. And don’t forget about the LSBA’s other programs assisting lawyers... Fastcase for free online legal research, accessible from the LSBA’s home page, www.lsba.org. Lawyer Fee Dispute Resolution Program for quick, inexpensive, informal and final resolution of attorney/client and attorney/attorney fee disputes. Contact Bill N. King at [email protected] or call (504)619-0109 or (800)421-5722, ext. 109.

Ethics Advisory Service for confidential, totally free ethics advice and opinions to each of its licensed members in good standing. Contact Richard P. Lemmler, Jr. at [email protected] or call (504)619-0144 or (800)421-5722, ext. 144.

For more information on all of the LSBA’s programs, go to www.lsba.org.

276 December 2010 / January 2011 An LAJ CLE Conference, March 17-18, 2011

The Reptile

Revolution commons/nasmac creative Annual LAJ Convention CLE Conference for members only! featuring David Ball & Don C. Keenan Two of the authors of the wildly popular Reptile: The 2009 Manual of the Plaintiff’s Revolution Windsor Court Hotel l New Orleans To register call 225-383-5554 or visit www.lafj.org.

Louisiana Bar Journal Vol. 58, No. 4 277 lo u I s I a n a st a t e Ba r as s o c I a t I o n fo u r t h an n u a l

1. Consider changing “law technology updates” to “law technology tips.”

2. Please change “conference” to “conference” wherever “conference” appears (see earlier email entitled “picky, picky, picky”).

fe B r u a r Y 24 & 25, 2011 hI l t o n ne w or l e a n s rI V e r s I d e

oin us for the 4th Annual Solo & Small Firm Conference! Satisfy your CLE requirement and earn up to 13.5 hours, including ethics, professionalism and law offi ce management. This popular four-track conference features national and regional speakers who will deliver: substantive law updates, law technology tips, law practice management information, and quality of life topics.

registration Fees* Advance Registration (until Jan. 14, 2011) ...... $250 Regular Registration (until Feb. 21, 2011) ...... $300 On-Site Registration ...... $350 Flash Drive with Conference Materials ...... $25 *The fee includes electronic course materials, conference attendance and coffee/refreshment breaks. Cancellation of registration must be received in writing by the LSBA no later than February 14, 2011. Timely cancellations will result in a full refund, less a $25 administrative charge. Absolutely no refunds after February 14, 2011. The LSBA is providing an electronic version of the conference materials for attendees to download. The electronic materials will be made available in advance of the conference via links sent by e-mail. Internet access will not be available at the conference. THE LSBA WILL NOT HAVE PRINTED MATERIALS FOR PARTICIPANTS. See F. A. Q. on website for more information. Register Online: www.lsba.org/2011Solo

278 December 2010 / January 2011 Young Lawyers Message... Spotlight... Affiliates

CHAIR’S MESSAGE Young Lawyers Spotlight Play Fair and Be Nice Catherine Saba Giering By Alainna R. Mire Baton Rouge

Professionalism. it, including judges, other lawyers The Louisiana What does it mean? and public officials. While it is a State Bar Associa- How does someone lawyer’s duty, when necessary, to tion’s Young Law- behave profession- challenge the rectitude of official yers Section (LSBA ally? Even after at- action, it is also a lawyer’s duty to YLS) is spotlighting tending a number uphold legal process. (Emphasis young lawyer Cath- of continuing legal added.) erine (Cathy) Saba education classes on Giering. ethics and profes- So, the next time you are in a deposition Giering was born Alainna R. Mire sionalism, I still go with rude opposing counsel or the judge is in Portland, Ore., but Catherine Saba back to my definition. she calls Winnsboro, denying all your motions, just remember Giering In the simplest of terms, I believe that be- to uphold the rules of the profession and La., home. After ing professional is to abide by the golden kindergarten. Play fair and be nice. graduating from Louisiana State Uni- rule and “do unto others as you would have versity in 1996 with a major in English them do unto you.” Basically, “be nice.” and a double minor in Russian studies Unfortunately I have realized that the older I get, the more I see and meet “not Continued next page so nice” or unprofessional people. I often wonder why that is and have come to the conclusion that many allow their drive for success or status to block the part of their brains that holds the lessons learned from kindergarten, such as sharing and being polite. For that matter, does it really hurt to say “good morning” when walking into the office at 8:30 a.m.? No, it doesn’t, but for some people, it is torture. The ABA Model Rules of Professional Conduct Preamble 5 states:

A lawyer’s conduct should conform to the requirements of the law, both in professional service to clients and in the lawyer’s business and The New Orleans Bar Association’s Young Lawyers Section sponsored its annual Health and Legal Fair personal affairs. A lawyer should in October at Touro Infirmary in New Orleans. Attorney volunteers offered free legal assistance and use the law’s procedures only for materials to the public. The focus was on health and legal issues, including living wills, medical powers of attorney and related matters. Volunteers were from private firms, the Pro Bono Project and Southeast legitimate purposes and not to ha- Louisiana Legal Services. The Southern Eye Bank and the Louisiana Organ Procurement Agency were rass or intimidate others. A lawyer on hand to assist with organ and tissue donations. A grant from the American Bar Association helped should demonstrate respect for the fund the event. Seated from left, Katy M. Caraway, Jacqueline L. Childers, Renae Davis, Margaret legal system and for those who serve Kuklewicz and Ayanna R. Lee Butler. Standing from left, Christopher K. Ralston, Stephanie V. Lemoine, Mark A. Moreau, Linton W. Carney, Conrad Meyer, Megan C. Misko and Michael J. Ecuyer.

Louisiana Bar Journal Vol. 58, No. 4 279 Sp o t l i g h t continued from page 279 Local Affiliates and business administration, she attended LSU Paul M. Hebert Law Center. She received her JD degree in 1999 and began practicing with Laborde & Neuner. In 2004, she joined the Baton Rouge firm of Crawford & Lewis and was named partner in 2008. She is the 2010 chair of the Baton Rouge Bar Association’s (BRBA) Young Lawyers Section Council. The BRBA is extremely active, and Giering and the council have strived to increase young lawyer participation in several BRBA activities, including the Bench/Bar Con- The St. Tammany Young Lawyers Association presented its first “Day at the Court” program in October. During the event, students from the law studies class at Covington High School spent the day at 22nd ference, luncheon meetings, Cocktails Judicial District Court. with the Court, Opening of Court in the fall and Belly Up to the Bar. St. Tammany Young Lawyers Association Giering serves on the Junior League of Baton Rouge and is the current Policy Receives Award for “Day at the Court” Governance chair. She is also a supporter The St. Tammany Young Lawyers As- and to strengthen the relationship between of the downtown YMCA and is a past sociation was the recipient of the 2009-10 the YLS Council and its local affiliates. chair of the Charles Lamar YMCA board Louisiana State Bar Association Young St. Tammany young lawyers helping to of directors. Lawyers Section (LSBA YLS) Council’s organize the “Day at the Court” program Her LSBA YLS activities include Local Affiliate Support Award in connection were Nancy Brechtel, Elizabeth Sconzert, serving on a law school professionalism with its first “Day at the Court” program, said Gino Forte, Lauren Hudson, Klint Beckend- orientation panel in 2005, serving as a high Allison L. Becknell, chair of the LSBA YLS orff, Anna Wong and Jesse Wimberly III. school essay contest competition judge Local Affiliates Outreach Committee. in 2006, and serving as a member of the In October, 25 students from the law YLS Awards Committee in 2007. studies class at Covington High School Her husband, Edmund Giering, also spent the day at 22nd Judicial District Court. practices law in Baton Rouge. They are The students attended Drug Court, observed the parents of a son and a daughter. trials, toured the Justice Center, and partici- Giering said that the greatest influence pated in a panel discussion with a judge, an her mentors have had on her is teaching assistant district attorney, a public defender her the value of a strong work ethic and a and a sheriff’s officer. The day provided job well done. She also cites her father’s students with the unique opportunity to positive attitude as inspiration. She has in- observe firsthand all aspects of the 22nd Judicial District Court. herited her father’s positive attitude. That The St. Tammany Young Lawyers Association positive attitude and strong work ethic are The purpose of the LSBA YLS Council’s presented its first “Day at the Court” program evident in everything she does. Local Affiliate Support Award is to help local in October. Among those helping to organize the affiliates fund existing local programs, to en- event were, from left, Gino Forte, Klint Beckend- courage the development of new programs, orff, Elizabeth Sconzert and Nancy Brechtel.

Young Lawyers Section News Get the latest Young Lawyers Section news online Go to: www.lsba.org/YLS

The Young Lawyers Section Web site is a public service of the LSBA-YLS Council, providing YLS information to the public and communicating with YLS members.

280 December 2010 / January 2011 Nomination Deadline is March 4, 2011: Young Lawyers Section Awards Nomination Form The Young Lawyers Section is accepting nominations for the following awards: • Michaelle Pitard Wynne Professionalism Award. This award is given to a young lawyer for commitment and dedication to upholding the quality and integrity of the legal profession and consideration towards peers and the general public. • Outstanding Young Lawyer Award. This award is given to a young lawyer who has made outstanding contributions to the legal profession and his/her community. • Service to the Public Award. This award is given to a local affiliate organization that has implemented a program or provided a service to that local community by which the non-attorney public has been helped. • Service to the Bar Award. This award is given to a local affiliate organization that has implemented a program or provided a service that has benefited and/or enhanced the attorney community in that area. • YLS Pro Bono Award. This award is given to a young lawyer for commitment and dedication to providing pro bono services in his/ her community. All entries must include a nomination form, which may not exceed 10 pages. In addition, entries should include a current photo and résumé of the nominee, newspaper clippings, letters of support and other materials pertinent to the nomination. Nomination packets must be submitted to Barbara Bell Melton, Chair, LSBA Young Lawyers Section Awards Committee, Ste. 203, 1412 Centre Court, Alexandria, LA 71301. Any nomination packet that is incomplete or is not received or postmarked on or before March 4, 2011, will not be considered. Please submit detailed and thorough entries, as nominees are evaluated based on the information provided in the nomination packets. All winners will be announced at the Louisiana State Bar Association Annual Meeting in Las Vegas, Nev., in June 2011.

1. Award nominee is being nominated for: (Individuals/local affiliate organizations may be nominated for more than one award. Please check all that apply. Candidates will only be considered for the award(s) for which they have been nominated.) ____ Michaelle Pitard Wynne Professionalism ____ Outstanding Young Lawyer ____ Service to the Public ____ Service to the Bar ____ YLS Pro Bono 2. Nominator Information: Name______Address/State/Zip______Telephone/Fax ______E-mail______

3. Nominee Information: Name ______Address/State/Zip ______Telephone/Fax ______E-mail ______Birth Date ______Marital Status/Family Information ______

4. Describe the nominee’s service to the public for the past five years (or longer, if applicable). Include details as to the nature of the service, value to the public, amount of time required, whether nominee’s activities are a part of his/her job duties, and other pertinent information.

5. Describe the nominee’s service to the Louisiana State Bar Association Young Lawyers Section for the past five years.

6. Describe the nominee’s service to the legal profession for the past five years.

7. Describe the nominee’s particular awards and achievements during his/her career.

8. Provide a general description of the nominee’s law practice.

9. Describe what has made the nominee outstanding (answer for Outstanding Young Lawyer Award only).

10. Has the nominee overcome challenges (handicaps, limited resources, etc.)?

11. Why do you believe your nominee deserves this award?

12. Provide other significant information concerning the nominee.

For more information, contact Barbara Bell Melton at (318)619-7755 or e-mail [email protected].

Louisiana Bar Journal Vol. 58, No. 4 281 Louisiana Center for

LouisianaCENTER FOR LCLCE Law & C ivicEducation LAW & CIVIC EDUCATION Constitution Day

Attorney Ariel Campos presented a Constitution Attorney Lance Harwell presented a Constitu- Judge Danny Ellender presented a Constitu- Day program at Our Lady of Fatima School. tion Day program at Patrick Taylor Science and tion Day program at Jesus the Good Shepherd Technology Academy. School. Lawyers/Judges in the Classroom Program Participants Celebrate Constitution Day On Sept. 17, 1787, 42 of the 55 delegates Bethancourt, Chuck Bourque, Judge Guy Elementary, E.C. Pittman, Early College to the Constitutional Convention held their Bradberry, Eirleen Brown, Ariel Campos, Academy, Eleanor McMain Secondary, Fair- final meeting. Only one item of business Kelly Carmena, Sandy Clause, Judge June field Elementary Magnet, Galvez Middle, occupied the agenda that day: to sign the Berry Darensburg, Louis DiRosa, Penny Glen Oaks High, Hadnot-Hayes Elementary, Constitution of the United States of America. Douciere, Judge Danny Ellender, J. Albert Harriet Ross Tubman Charter, I.A. Lewis, The signing of the Constitution — a docu- Ellis, Roy Fletcher, David Green, Spencer Independence Middle, Istrouma High, ment designed to clearly define and sepa- Gulden, Lance Harwell, Jim Hautot, Eden James Singleton Charter, Jesus the Good rate the powers of the central government, Heilman, Ingrid James, Judge Andrea Shepherd, Lafayette High, Lee Road Junior the powers of the states, the rights of the Janzen, Bernadine Johnson, Judge Pamela High, Lincoln Elementary, Madison James people, and how the representatives of the Johnson, Judge Charles Jones, Judge Patricia Foster Elementary, Mulberry Elementary, people should be elected — is celebrated Koch, Holly Lamarche, Molly McEacharn, Myrtle C. Thibodeaux Elementary, Newton across the nation every year on Sept. 17. Ben Miller, Ashley Nichols, David Peterson, Smith Visual & Performing Arts Middle, Our In observance of Constitution Day, the Judge Robin Pittman, Robert Shadoin, Er- Lady of Fatima, Our Lady of Prompt Suc- Lawyers in the Classroom/Judges in the nestine Trahan, Judge Jane Triche-Milazzo, cor, Park Forest Elementary, Patrick Taylor Classroom programs organized 70 in-school Frank Wagar, Judge Zorraine Waguespack, Science and Technology Academy, Quest, presentations statewide by members of the Henry Walker and Zachary Wool. Romeville Elementary, Sarah T. Reed High, legal community. Nearly 2,500 students Participating schools included: A.C. Scottlandville Pre-engineering Academy, St. participated in these activities. Steere Elementary, Barbe High, Belaire Anthony of Padua, Sulphur High, Dufrocq, Constitution Day presenters included: High, Belle Chasse Middle, Clearwood and Woodmere Elementary. Rep. Damon Baldone, Judge Randall Junior High, Coteau Bayou Blue, Delhi The Louisiana Center for Law and Civic Education (LCLCE) partners with the Loui- siana State Bar Association and the Louisiana District Judges Association to bring lawyers, judges, legislators and educators together to deliver exciting, interactive, law-related presentations to Louisiana schools through the Lawyers in the Classroom/Judges in the Classroom programs. For more information on the programs, visit the LCLCE website, Judge June Berry Darensburg presented a Con- Judge Randall Bethancourt presented a Con- www.lalce.org. stitution Day program at Woodmere Elementary stitution Day program at Coteau Bayou Blue School. School.

282 December 2010 / January 2011 JUDICIAL Notes By Robert Gunn, Louisiana Supreme Court Appointments... In Memoriam

Appointments pointed, by order of the Louisiana Supreme 5, 2010. He graduated from Louisiana Court, to the Louisiana Board of Legal State University in 1949 and earned his JD ► 5th Circuit Court of Appeal Judge Specialization for terms of office which degree from LSU Law School in 1951. He Fredericka H. Wicker was reappointed, by will end on June 30, 2013. also graduated from the United States Air order of the Louisiana Supreme Court, to ► Charles V. Cusimano III was ap- Force’s Air Command and Staff School. A the Louisiana Judicial College’s Board of pointed, by order of the Louisiana Supreme decorated veteran of World War II and the Governors for a term of office which began Court, to the Louisiana Judicial Campaign Korean Conflict, he served as a research Oct. 1 and will end on Sept 30, 2013. Oversight Committee for a term of office specialist with the Louisiana Legislative ► Pineville City Court Judge Phillip ending on April 21, 2014. Council, funding director for the Acadia J. Terrell was appointed, by order of the Parish Indigent Defender Program and as- Louisiana Supreme Court, to the Louisiana Deaths sistant district attorney for the 15th Judicial Judicial College’s Board of Governors for a District. In 1976, he began his service as term of office which began Oct. 1 and will ► Retired 21st Judicial District Court judge of the 15th Judicial District Court end on Sept. 30, 2013. Judge Joseph E. (Joe Eddie) Anzalone, and served until his retirement in 1996. He ► Wayne J. Lee was reappointed, by Jr., 75, died Oct. 1, 2010. He earned his served as president and Executive Com- order of the Louisiana Supreme Court, to undergraduate degree from Southeastern mittee member of the Louisiana District the Mandatory Continuing Legal Educa- Louisiana College in 1957 and his LLB Judges Association. He was a member of tion Committee for a term of office which degree from Loyola University in 1964, the American Judges Association and the begins on Jan. 1, 2011, and will end on where he was elected to Alpha Sigma Nu, National Council of State Trial Judges. Dec. 31, 2013. National Jesuit Honor Society, in 1963. He served on the Louisiana State Law ► Gordon L. James was appointed, by From 1963-64, he served as law clerk to Institute, the Judicial Ethics Committee, order of the Louisiana Supreme Court, to 4th Circuit Court of Appeal Judge Luther the Louisiana Judicial College’s Board of the Mandatory Continuing Legal Educa- Hall. In 1974, he was a delegate to the Governors, the Governor’s Drug Preven- tion Committee for a term of office which Louisiana Constitutional Convention. He tion Program, the Children’s Code, the begins on Jan. 1, 2011, and will end on began service on the bench in 1985 and Louisiana Supreme Court’s Time and Dec. 31, 2013. retired in 1990. Standards Committee, and the Science and ► Monique Babin Clement, James G. ► Retired 15th Judicial District Court Technology Committee of the Louisiana Dalferes and Chauntis T. Jenkins were ap- Judge Hugh Ellis Brunson, 83, died Oct. Supreme Court’s Judicial Council.

The mission of theMember Louisiana State Bar Association Services (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. 58, No. 4 283 People LAWYERS ON THE MOVE . . . NEWSMAKERS

dras St., New Orleans, LA 70130; phone Seale, Smith, Zuber & Barnette, L.L.P., LAWYERS ON (504)523-2266. in Baton Rouge announces that Willie THE MOVE G. Johnson, Jr. has become a partner in Nan Roberts Eitel has joined the office of the the firm. deLaup, Miranda & Enright, L.L.C., in U.S. Department of Justice in Washington, Metairie announces that Aimee A. Scheuer- D.C., working as associate general counsel Roger A. Stetter announces the relocation mann has joined the firm as an associate. for Chapter 11 in the Executive Office for of his law offices to the Whitney National U.S. Trustees. Bank Building, Ste. 1435, 228 St. Charles Deutsch, Kerrigan & Stiles, L.L.P., in New Ave., New Orleans, LA 70130; phone Orleans announces that David M. Geerken Hymel, Davis & Petersen, L.L.C., in Baton (504)524-9100. has joined the firm as an associate. Rouge announces that Joseph E. Black- well has joined the firm. Stone Pigman Walther Wittmann, L.L.C., Brett M. Dupuy announces the relocation in New Orleans announces that Maggie of his law office, Brett M. Dupuy, P.L.C., Irwin Fritchie Urquhart & Moore, L.L.C., A. Broussard has joined the firm as an to the Poydras Center, Ste. 2750, 650 Poy- announces that Kelly E. Brilleaux has associate. joined the firm’s New Orleans office as an associate. Taylor, Porter, Brooks & Phillips, L.L.P., in Baton Rouge announces that Troy Houston Derren S. Johnson & Associates, A.P.L.C. Middleton IV has joined the firm as an in Baton Rouge announces that Monica associate. Griffith-Braud has joined the firm. Woodley Williams Law Firm, L.L.C., in Robein, Urann, Spencer, Picard & Cange- Lake Charles announces that Jeffery D. mi, A.P.L.C., in Metairie announces that Fruge and Ann M. McSpadden have joined Paula M. Bruner has joined the firm. the firm as associates. Joseph E. Blackwell Monica Continued next page Griffith-Braud

Kelly E. Brilleaux Paula M. Bruner James M. Fantaci Anthony M. Fazzio Willie G. W. Shelby McKenzie Johnson, Jr.

Troy Houston Julian R. Murray, Jr. Frank X. Neuner, Jr. Aimee A. David R. Sherman Roger A. Stetter Middleton IV Scheuermann

284 December 2010 / January 2011 NEWSMAKERS he received his law Maloney, James N. Mansfield III, Thomas NEWSMAKERS degree from Louisi- J. McGoey II, Robert B. McNeal, Joe B. M. Thomas (Tom) Arceneaux, vice ana State University Norman, William W. Pugh, Richard W. president of the firm Blanchard, Walker, Law Center in 1966. Revels, Jr., Leon J. Reymond, Jr., George O’Quin & Roberts, P.L.C., in Shreveport, He was a member of H. Robinson, Jr., Robert A. Seale, Jr., Law- was installed as president of the Louisiana the American Law rence P. Simon, Jr., Randye C. Snyder, John City Attorneys Association. Also, the firm Institute and served M. Wilson and John D. Wogan. announces that it has been awarded recer- on the Louisiana State McGlinchey Stafford, P.L.L.C. tification in Meritas, a global alliance of Law Institute Council, (Baton Rouge, New Orleans): Richard business law firms. chairing numerous Charles Aubrey A. Aguilar, Rodolfo J. Aguilar, Jr., Brad committees on law Snyder J. Axelrod, Samuel A. Bacot, Stephen P. Mark C. Surprenant, a partner in the New reform. He lectured Beiser, Jaye A. Calhoun, Rudy J. Cerone, R. Orleans office of Adams and Reese, L.L.P., for the Practising Law Institute and was a Keith Colvin, Katherine Conklin, Richard has been appointed as the 2010-11 chair continuing legal education speaker for the A. Curry, Larry Feldman, Jr., Michael D. of the Louisiana State Committee of the Louisiana State Bar Association, the Insti- Ferachi, R. Marshall Grodner, Deborah American College of Trial Lawyers. tute on Mineral Law and the National Busi- D. Harkins, Mary Terrell Joseph, Bennet ness Institute. He served as board president Scott Koren, Kathleen A. Manning, Kai D. ININ MEMORIAM MEMORIAM of the Historic New Orleans Collection, on Midboe, Colvin G. Norwood, Jr., Jay M. the New Orleans Museum of Art board of O’Brien, Erin Fury Parkinson, R. Andrew John Wood An- trustees and on the Dean’s Council of the Patty II, Anthony Rollo, Michael H. Rubin, thony of Bogalusa A.B. Freeman School of Business at Tulane Stephen P. Strohschein, Susan M. Tyler, died Oct. 20 after a University. He was president of Temple Kenneth A. Weiss, Dan E. West, Constance long illness. He was Sinai, a member of the City Park Board of Charles Willems, David S. Willenzik and 90. Born in 1920 in Commissioners and a past member of the Henri Wolbrette III. New Orleans, he at- governing boards of the United Way and Taylor, Porter, Brooks & Phillips, tended Fortier High its Agency Relations Committee, Touro L.L.P. (Baton Rouge): W. Shelby McK- School and Tulane Infirmary, the New Orleans Speech and enzie, Baton Rouge Insurance Lawyer of University. He gradu- Hearing Center and the Friends of City the Year, 2011. ated from Tulane John Wood Anthony Park. He is survived by his wife, Sharon Law School in 1942, Rae Veta Snyder, three children and four People Deadlines & where he was Order of the Coif and civil grandchildren. Notes law editor of the Tulane Law Review. He Deadlines for submitting People PUBLICATIONSPUBLICATIONS served as staff sergeant in Army Intelligence announcements (and photos) : during World War II. He moved to Bogalusa in 1946 and joined the Talley Law Firm. The Best Lawyers in America 2011 Publication Deadline He was affiliated with the firm of Talley, Chehardy, Sherman, Ellis, Murray, April/May 2011 Feb. 4, 2011 Recile, Griffith, Stakelum & Hayes, Anthony, Hughes & Knight, L.L.C., until June/July 2011 April 4, 2011 1989. Active in his community, he served L.L.P. (Metairie): James M. Fantaci, Aug./Sept. 2011 June 3, 2011 on the Washington Parish Library Board for Julian R. Murray, Jr. and David R. 26 years, chairing the board for 16 years. He Sherman. Announcements are published free of served as president of the Washington Par- Anthony Fazzio, L.L.C. (Lafayette): charge for members of the Louisiana ish Bar Association and the Kiwanis Club, Anthony M. Fazzio. State Bar Association. Members may commander of the American Legion Post Laborde & Neuner (Lafayette): Frank 24, and chair of the Welfare Advisory Board X. Neuner, Jr., Baton Rouge Area Maritime publish photos with their announce- and the Washington Parish Boy Scouts of Lawyer of the Year, 2011. ments at a cost of $50 per photo. America. He is survived by his wife, Marie Liskow & Lewis, P.L.C. (Lafayette, Send announcements, photos and Ware Anthony, a brother, three daughters, New Orleans, Houston, Texas): Donald R. photo payments (checks payable to two grandchildren and other relatives. Abaunza, Marguerite L. Adams, Robert S. Louisiana State Bar Association) to: Services were conducted at St. Matthews Angelico, John Anjier, George Arceneaux Publications Coordinator Episcopal Church in Bogalusa. III, Wm. Blake Bennett, Thomas Beron, James A. Brown, George Denègre, Jr., Darlene M. LaBranche, Louisiana Bar Journal, Charles Aubrey Snyder, a partner in the James C. Exnicios, S. Gene Fendler, Joseph 601 St. Charles Ave., law firm of Milling Benson Woodward, C. Giglio, Jr., Don K. Haycraft, Robert E. L.L.P., in New Orleans, died Oct. 2 in Cov- Holden, Jonathan A. Hunter, R. Keith Jarrett, New Orleans, LA 70130-3404 ington. He was 69. Born in 1941 in Bastrop, Phillip K. Jones, Jr., Gene W. Lafitte, David or e-mail [email protected]. W. Leefe, Thomas B. Lemann, Marilyn C.

Louisiana Bar Journal Vol. 58, No. 4 285 Classified ads ONLINE at www.lsba.org CLASSIFIED NOTICES seeks attorneys for its Lafayette office. Great Standard classified advertising in our regu- POSITIONS OFFERED opportunity for motivated and ambitious self-starter who is seeking considerable lar typeface and format may now be placed Curry & Friend, P.L.C., a growing New in the Louisiana Bar Journal and on the hands-on experience, a progression to Orleans CBD/Northshore AV-rated defense LSBA Web site, LSBA.org/classifieds. partnership commensurate with experience, firm is currently seeking a med malat- All requests for classified notices must excellent compensation and fringe benefits be submitted in writing and are subject torney. Must have excellent organizational package. Prior admiralty and trial experi- to approval. Copy must be typewritten skills, A/V rating and med mal experience ence preferred. Mail confidential résumé and payment must accompany request. preferred. The firm offers excellent work en- Our low rates for placement in both are to: C-Box 256. vironment, competitive salary and benefits. as follows: Send résumé, writing sample and references Suburban New Orleans AV-rated law to [email protected]. RATES firm seeks attorney to practice in the areas of business, transactional and business The Office of Jon C. Thornburg, Chapter CLASSIFIED ADS litigation. Also seeking attorney to practice Contact Krystal L. Bellanger at 13 bankruptcy trustee, Alexandria, La., is in insurance coverage and defense. Three (504)619-0131 or (800)421-LSBA, seeking applications for the position of staff years’ experience preferred but will consider ext. 131. attorney. Applicants must be licensed to other applicants with excellent academic practice law in the state of Louisiana. Duties Non-members of LSBA background. Competitive salary and benefits include, but are not limited to, conducting $85 per insertion of 50 words or less package. Please send résumé to C. Brech- meetings of creditors; preparing pleadings $1 per each additional word tel, P.O. Box 1910, Gretna, LA 70054; fax $20 for Classy-Box number that will include motions, oppositions and (504)362-5938; or e-mail [email protected]. response statements; legal research and writ- All replies held strictly confidential. Members of the LSBA ing; discovery; litigation; court appearances $60 per insertion for 50 words or less and other duties as necessary. Litigation and $1 per each additional word Loyola University College of Law seeks bankruptcy experience are preferred. The No additional charge for Classy-Box applications for the position of academic suc- number position will be filled as quickly as possible. cess instructor. Loyola’s academic success References will be requested prior to selec- instructors work closely with individual first- Screens: $25 tion. Salary commensurate with experience. Headings: $15 initial headings/large type year and upper-level students to assist them The office provides excellent health, retire- in developing and improving legal study, ment and other benefits. Résumés will be kept BOXED ADS writing and test-taking skills. This position confidential and can be submitted by e-mail Boxed ads must be submitted camera ready is a 12-month renewable administrative ap- by the advertiser. The ads should be boxed to [email protected] or mailed to: Jon C. pointment commencing August 2011. This and 2¼” by 2” high. The boxed ads are $70 Thornburg, Chapter 13 Bankruptcy Trustee, position requires: (1) a Juris Doctor degree per insertion and must be paid at the time of P.O. Box 1991, Alexandria, LA 71309. placement. No discounts apply. from an ABA-accredited law school; (2) a record of academic and extracurricular AV-rated maritime and insurance defense DEADLINE success in law school; and (3) superior writ- For the April issue of the Journal, all classified firm with offices in Texas and Louisiana notices must be received with payment by Feb.18, Mississippi Attorney 2011. Check and ad copy should be sent to: LOUISIANA BAR JOURNAL Carey R. Varnado Classified Notices Tulane Law 1976

601 St. Charles Avenue Selected to “Best Lawyers in America” New Orleans, LA 70130 2003-08 • Case Referrals RESPONSES • Attend Depositions and Hearings To respond to a box number, please address your envelope to: Post Office Drawer 1975 Journal Classy Box No. ______Hattiesburg, MS 39403 c/o Louisiana State Bar Association (601) 544-1234 601 St. Charles Avenue [email protected] New Orleans, LA 70130

286 December 2010 / January 2011 ten, oral and interpersonal communication Appellate briefs, motions, legal research. Offices available, downtown building. One skills. Applications will be accepted until Attorneys: the appellate process is your last Shell Square, 701 Poydras St., 41st floor, the position is filled. Inquiries and applica- chance to modify or defend your judgment. great views. Offices rent as a suite or indi- tions should be addressed to: Professor Dian Lee Ann Archer, former Louisiana Supreme vidually. Excellent referral system among Tooley-Knoblett, Loyola University College Court clerk and Tulane Law honors gradu- lawyers. Includes receptionist, telephones, of Law, 7214 St. Charles Ave., Campus Box ate, offers your best chance, with superior voice mail, conference rooms and kitchen. 901, New Orleans, LA 70118. appellate briefs, outstanding legal research, Walking distance of courts. Call Astrid at pinpoint record review and 20-plus years of (504)525-4361. ServicesSERVICES appellate experience. Confidential; statewide service; fast response. Call (337)474-4712 Offices on St. Charles Avenue at Julia in Texas attorney, LSU Law 1985. Admitted (Lake Charles); e-mail [email protected]; architecturally renovated building. Two in Louisiana and Texas. I am available to visit www.leeaarcher.com. suites: 879 square feet and 907 square feet. attend hearings, conduct depositions, act as Each suite has two private offices and secre- local counsel and accept referrals for general ForFO RentR RENT tarial/reception space. Ideal for solo or two civil litigation in the Houston area. Contact CovingtonCOVINGTON attorneys. Secure covered parking, easy in/ Manfred Sternberg, Jr. at (713)622-4300. out. Call (504)522-6222. Executive office suites, two blocks to Brief writing/legal research. Columbia Law Covington courthouse. Includes utilities, ForFO RentR RENT School graduate; former U.S. 5th Circuit staff cleaning, conference room, library, kitchen, ShreveportSHREVEPORT attorney; former U.S. District Court, Western off-street parking, fax, copier and wireless District of Louisiana, law clerk; more than Internet. From $375/month. Owner-broker, Approximately 800-square-foot renovated nine years of legal experience; available for (985)892-0632 or (985)867-0747. office suite available in Kings Ridge in the brief writing and legal research; references heart of the Shreveport-Bossier metropolitan and résumé available on request. Douglas Lee ForFO RentR RENT area. 831 Kings Highway. Call (318)222- Harville, lee.harville@theharvillelawfirm. New Orleans 8514 for details. com, (318)222-1700 (Shreveport). NEW ORLEANS For lease. The verdict is in. There’s only NoticeNotice Briefs/Legal Research/Analysis one place for business, One Canal Place of Unusual or Problem Cases Office Tower. Convenient, easily accessible Notice is hereby given that Jean Marie JD with honors, federal judicial clerk, riverfront location in New Orleans CBD. Lacobee intends on petitioning for reinstate- graduate of top 10 law school, 20 years’ 1,000 to 89,000 square feet of contiguous ment/readmission to the practice of law. Any experience, federal and state litigation. space available; unparalleled amenity person(s) concurring with or opposing this Available for briefs, research, court ap- package. Contact Andrea Huseman, CCIM, petition must file notice of same within 30 pearances, analysis of unusual or problem (504)587-1450 or ahuseman@Corp-Realty. days with the Louisiana Attorney Disciplin- cases. References on request. Catherine com. 365 Canal St., Ste. 100, New Or- ary Board, Ste. 310, 2800 Veterans Memorial Leary, (504)436-9648, statewide services, leans. OnlyOneCanalPlace.com. Blvd., Metairie, LA 70002. registered office Jefferson Parish. Mid-City offices up to 1,600 square feet. Notice is given that Kervin W. Doyle in- Legal research/briefs, drafts of pleadings 219-221 N. Clark, New Orleans. Separate tends on petitioning for reinstatement to the carried out efficiently and promptly. Thirty offices from $450-550 or total for $1,500/ practice of law. Any person(s) concurring years’ litigation and appellate experience; month. Off-street parking lot. Off Canal with or opposing his petition must file notice AV-rated. Résumé available on request. For Street above Jeff Davis. Near street car line within 30 days with the Louisiana Attorney more information, contact Bonnie Zakotnik, and restaurants. Nice. Kathleen Cresson, Disciplinary Board, Ste. 310, 2800 Veterans (504)296-6011 and (504)486-6011, zakot- attorney, at (504)486-6666. Memorial Blvd., Metairie, LA 70002. [email protected] (New Orleans). EXAMINER OF Forensic Document QUESTIONED DOCUMENTS Computer Forensic Examiner Examiner WILLS • CHECKS Court Qualified Expert Witness Robert G. 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Louisiana Bar Journal Vol. 58, No. 4 287 News Southern... supreme court... local bars

Collins, Louisiana Supreme Court Judicial Update Administrator, Announces Retirement Averill Selected for Hugh M. Collins, and Planning Division of the New Orleans Supreme Court Judicial Ph.D., judicial admin- Police Department. istrator of the Louisi- In 1974, Collins joined the staff of Administrator’s Post ana Supreme Court, the Louisiana Supreme Court Judicial Attorney Timothy will retire effective Administrator’s Office as deputy judicial F. Averill has been se- Jan. 3, 2011, after 36 administrator for systems analysis. In 1980, lected to serve as Loui- years of service to the he became chief deputy administrator and siana Supreme Court state judiciary. deputy chief executive officer of the Judi- judicial administrator, Under Collins’ ciary Commission of Louisiana. In 1987, he filling the position after stewardship, the Of- Hugh M. Collins was designated acting judicial administrator 20 years of service fice of Judicial Admin- of the Louisiana Supreme Court and, in 1988, as a deputy judicial istrator has grown to include oversight of was appointed judicial administrator. He is administrator/general several award-winning, good-government currently the chief executive officer of the counsel for the court, Timothy F. Averill initiatives and departments, including the Judiciary Commission of Louisiana. the Louisiana Supreme Louisiana Supreme Court Drug Court He served in leadership positions for Court announced. He returned to the court on Program, the Children and Families Depart- several professional organizations, including Dec. 13, 2010, to begin his service. ment, the Community Relations Depart- the Conference of State Court Administra- Averill received his BA degree in English ment, the Court Management Information tors (COSCA), the National Association from James Madison University in 1979 Systems Department and the Louisiana for Court Management and the Forum on and his MPA degree from the University Protective Order Registry. the Advancement of Court Technology. In of Alabama in 1980. He received his law Collins received a BS degree in math- 2009, he became chair of the FBI Criminal degree from Loyola University Law School ematics from Boston College in 1966 and Disposition Task Force. in 1985. his Ph.D. in mathematics from Tulane Collins is the recipient of several awards, He was a law clerk and then an attorney University in 1971. In 1980, he graduated including the 1990 Distinguished Service for the law firm Abbott, Webb, Best & Meeks from the National Center for State Court’s Award from the National Center for State in New Orleans before serving a one-year Institute for Court Management. He is a Courts (NCSC), the 1999 Glenn R. Winters clerkship for Louisiana Supreme Court Fellow of the Institute of Politics at Loyola Award from the American Judges Associa- Justice Pascal F. Calogero, Jr. in 1986. From University. From 1972-78, he was a consul- tion and the 2007 Kenneth Palmer Award 1987-89, he practiced admiralty law at the tant to the superintendent and the Research from COSCA. New Orleans law firm of Phelps, Dunbar, Marks, Claverie & Sims. In 1989, he began SULC Recommended for AALS Full Membership service as general counsel in the Judicial The Executive Committee of the Asso- January 2011 in San Francisco, Calif. Administrator’s Office of the Louisiana ciation of American Law Schools (AALS) “The AALS Executive Committee’s Supreme Court. He served in this position voted to recommend that Southern Uni- vote and recommendation to the House of until 2008 when he was selected to partici- versity Law Center (SULC) be admitted to Representatives is an external validation of pate in the United States Supreme Court’s full membership in the association, Chan- the quality of our program of legal educa- Fellows Program in Washington, D.C. For cellor Freddie Pitcher, Jr., announced. tion,” Pitcher said. two years, he was assigned to the Admin- The Nov. 11 vote in Washington, D.C., The AALS, a nonprofit educational as- istrative Office of the United States Courts. followed presentations by Pitcher and SULC sociation of 171 law schools representing Since returning to New Orleans earlier in Professors Evelyn L. Wilson and Nadia E. more than 10,000 law faculty in the United 2010, he has worked in the law office of Nedzel. AALS Executive Director Susan States, is a resource for the improvement of retired Chief Justice Calogero, providing Prager said the committee will present its the quality of legal education by networking legal representation in appellate, lawyer recommendation to the House of Repre- law school faculty, professional staff and discipline and bar admission matters. sentatives at the AALS Annual Meeting in deans to information and resources.

288 December 2010 / January 2011 Chief Judge Carter Reappointed to ABA Committee

Chief Judge Bur- rell J. Carter of the Louisiana 1st Circuit Court of Appeal has been reappointed to the American Bar Association (ABA) Judicial Division’s Ethics and Profes- Judge Burrell J. sionalism Commit- Carter tee. Judge Carter has been a member of the Louisiana judiciary since October The Coushatta Indian Tribe presented its annual continuing legal education program in April 2010 1974. He has served as chief judge in Elton. Among the attendees for the Coushatta Round Table on Native American Affairs were, from left, Madro Bandaries, Sandra Phillips, retired U.S. Sen. Ben Nighthorse Campbell, Coushatta Tribe of the Louisiana 1st Circuit Court of Chair Kevin Sickey and Tribe Vice Chair David Sickey. Appeal since 1999. The Judicial Division is the judicial LOCAL/SPECIALTY BARS voice of the ABA. Its mission is to promote the ideals of fair and impartial BRAWA Hosts Judicial Forum for First Circuit courts, provide opportunities for judicial The Baton Rouge Association of Association President Fred T. Crifasi. education and service, and enhance the Women Attorneys (BRAWA) hosted the BRAWA Immediate Past President public’s confidence and trust in the ju- only Judicial Forum held for the four Jan M. Reeves introduced the candidates diciary. The Ethics and Professionalism 1st Circuit Court of Appeal candidates who presented statements regarding Committee examines issues of ethics up for election this past October: Judge their qualifications. Event chair was and judicial responsibility affecting the John Michael Guidry, Judge Wilson E. Denise N. Akers. BRAWA President judiciary. Fields, Judge Toni M. Higginbotham and Teresa Hatfield and Vice President Ann Judge Timothy E. Kelley. Attending the Wise also assisted on the judicial forum September 2010 forum were 85 people, committee. including judges and Baton Rouge Bar

Louisiana attorney Gerald M. Woods, far right, The Baton Rouge Bar Association (BRBA) conducted its Law Expo trade show in September 2010. a member of the Poarch Band of Creek Indians, An after-Expo reception, with a luau theme, honored contributing writers of the BRBA’s magazine, was one of the attendees at the Governor’s 2010 “Around the Bar,” which is celebrating its 25th anniversary. From left, BRBA President Fred T. New Year holiday celebrations at the Governor’s Crifasi; Cherie A. Lato, co-chair of the 2010 Expo Committee; Michael E. Platte, 2011 chair of the Mansion in Baton Rouge. With Woods are Law Expo Committee; Jennifer Fontenot DeCuir, co-chair of the 2010 Expo Committee; and Alana Louisiana Gov. Bobby Jindal and First Lady Robert of the Camelot Club of Baton Rouge. Photo by Pamela Labbe. Supriya Jindal.

Louisiana Bar Journal Vol. 58, No. 4 289 Lafayette Bar Association Launches New Website

The Lafayette Bar Association has announced the launch of its newly designed and upgraded website, www.lafayettebar. org. With this newly polished presence on the Web, the site’s 1,300 unique visitors each month can not only learn about the association, but also can interact with it. When members of the association visit the site, they can register for events, reserve space in the mediation center, flip through a digital version of the newsletter, The Promulgator, make a donation, and even renew their membership by paying dues online. For the public, the new website is organized to help those seeking assistance from the legal community access to information and resources. Visitors can read about the association’s sections, committees and community outreach programs, find an attorney using the lawyer referral service, or search through Lafayette Bar Association’s President Chuck Ziegler and his wife Flo were among the attendees at the Who Dat party, held in conjunction with the Bench Bar Conference in New Orleans. the news section. “We are now in a position where we can reach out to an up-and-coming Lafayette Bar Holds Saints-Themed generation of attorneys whose thumbs are ever busy on smart phones and who Bench Bar Conference not only appreciate but expect online The Lafayette Bar Association held its convenience,” said Marketing Director annual Bench Bar Conference in New Or- Ruthie Toce. “At the same time, we are leans in September 2010, this year featuring not abandoning our more traditional a New Orleans Saints theme. The conference communication methods. The site is not allowed judges and attorneys to obtain con- meant to replace any other type of com- tinuing legal education credits, socialize with munication but to augment practices we Lafayette’s legal community, and enjoy a fun already have in place.” weekend at the Roosevelt Hotel. Although the conference is always the premier event ANSWERS for puzzle on page 259.

for Lafayette’s legal community, this year’s 1 2 3 4 5 6 W I L L I S T O N D U 7N event capitalized on the city’s excitement A O N H O E I 8 9 after the Saints’ victory during its first home r E T I r E E N O F A T game of the season. r U E W F I E 10 11 The attorneys and judges attending the A L S O M I C A W B E r 12 conference watched the Thursday night game N P C z T r 13 14 15 at Galatoire’s with their very own Who Dat T W O A r E N A M I N G 16 party. Friday’s events included a full day of S U O L L L 17 18 CLE with Frank X. Neuner, Jr., James P. Roy, B U I L D E r S A L M A 19 Lafayette Bar Association’s Bench Bar Confer- Dr. David Barzcyk, Sen. Mike Michot and L T E I E A S 20 21 ence Chair Boyd Anderson and his wife Georgette Charles B. Plattsmier speaking on various A M I G O N A M E T A G were among the attendees at the Black & Gold topics. Friday evening featured a Black & C O I G U O O Affair in New Orleans. 22 23 Gold Affair, with food and a jazz band. K I N L A S T S T r A W

290 December 2010 / January 2011 Past presidents of the St. Thomas More Catholic Lawyers Association served as gift bearers for Louisiana State Bar Association President Mi- Archbishop Gregory M. Aymond with the Arch- the New Orleans Red Mass, Herman L. Bastian, chael A. Patterson served as a reader during the diocese of New Orleans was the main celebrant Jr., Susan J. Burkenstock, Stephen P. Bruno, New Orleans Red Mass. Photo by Pasos Photo and homilist for the Red Mass. Photo by Pasos Michael S. Haddad and Val P. Exnicios. Photo and Video. Photo and Video. by Pasos Photo and Video. Red Mass Observances Held in New Orleans, Shreveport Patterson, Clark, Archbishop Aymond Participate in New Orleans Red Mass ouisiana State Bar Association Supreme Court justices, Louisiana judges was scheduled to be in Nashville, Tenn., in President Michael A. Patterson and and attorneys, and others in the legal profes- October 2010 but was cancelled by flooding LLouisiana Supreme Court Associate sion. The Loyola Chorale also performed of the Cumberland River. Because of the Justice Marcus R. Clark served as readers for the services. efforts of Judge Patrick McLaughlin, the for the 58th annual Red Mass on Oct. 4, The Red Mass, always held on the first delegation of judges arrived in New Orleans 2010, at St. Louis Cathedral in New Orleans. Monday of October, recognizes the tradi- in time to participate in the Red Mass and Archbishop Gregory M. Aymond with the tional opening of the judicial year. reception. Archdiocese of New Orleans was the main Following the Mass, the STMCLA hosted After the reception, the court convened celebrant and homilist for the Mass. a reception in the Supreme Court building. to memorialize members of the bench and The Catholic Bishops of Louisiana and Guests of STMCLA and the court were bar who died in the preceding year. the St. Thomas More Catholic Lawyers As- federal administrative law judges visiting Also attending the Red Mass were New sociation (STMCLA) sponsored the event, from across the country. The judges were Orleans Mayor Mitch J. Landrieu, Jefferson which began with a processional assembly scheduled to be in New Orleans in October Parish President John Young and Orleans from the Louisiana Supreme Court to the 2005, but the conference was cancelled be- Parish District Attorney Leon A. Canniz- cathedral. In the procession were Louisiana cause of Hurricane Katrina. The conference zaro, Jr.

18th Annual Red Mass Conducted in Shreveport

The 18th annual Red Mass in Shreve- port was conducted at Holy Trinity Catholic Church. The homilist was the Rev. Mat- thew Tyler Long, a lawyer and a member of the Shreveport Bar Association. Bishop Michael G. Duca, who had delivered the homily at the 57th annual Red Mass in New Orleans in 2009, presided. Donald L. Baker, age 95, a member of the Louisiana State Bar Association for more than 50 years, chaired the event. The Rev. Matthew Tyler Long, a lawyer and Bishop Michael G. Duca presided over the the a member of the Shreveport Bar Association, 18th annual Red Mass in Shreveport at Holy was homilist for the 18th annual Red Mass in Trinity Catholic Church. Shreveport.

Louisiana Bar Journal Vol. 58, No. 4 291 Belleau Installed as National President of Federal Bar Association Ashley L. Belleau, issues, insurance, medical malpractice, real Mirabeau Family Learning Center, Inc., a a partner in the estate, corporate and estate matters. nonprofit organization that provides housing New Orleans office Belleau obtained a BA degree in Ameri- and support services such as employment of Montgomery, can studies, cum laude, from Newcomb preparation, educational opportunities and Barnett, Brown, College of Tulane University, where she child development. She also is active with Read, Hammond & also met her husband, Michael Kiernan, the SOLACE program and various pro Mintz, L.L.P., was now a doctor at Tulane. After a one-year bono projects. installed as the 83rd deferment (Michael was in the Navy at the Belleau and the FBA’s national leadership national president of time and was stationed in Norfolk), Belleau have ambitious plans. At the Presidential the Federal Bar Ashley L. Belleau began law school at Tulane. Summit, the leadership formulated the Association (FBA) in Following graduation, she served two FBA’s game plan for the next three to five September 2010, during the association’s years as a judicial law clerk to the late Judge years. Belleau recognizes that “the FBA annual meeting in New Orleans. Henry A. Mentz, Jr. of the Eastern District, is a voluntary bar association, which is This brings the FBA presidency back to and was honored by the United States District membership-value driven.” To increase the Louisiana after a 17-year hiatus. Malcolm Court, Eastern District of Louisiana, with its value of FBA membership, their plan for the W. Monroe of the firm Deutsch, Kerrigan Distinguished Service Award. next several years is to increase the FBA’s & Stiles, L.L.P., was FBA president from During this time, she became actively VRV — Visibility, Relevance and Value. To 1992-93. involved in the Federal and Louisiana accomplish the VRV vision, the FBA will Belleau maintains a commercial practice State bar associations. She was elected to offer and highlight additional activities and with a concentration in arbitration, litigation the council of the Louisiana State Bar As- CLEs at the section, division and chapter on the federal and state court levels, sociation’s (LSBA) Young Lawyers Section, levels, more national CLEs, continue to mediation and transactional work. She eventually becoming its chair. For more enhance its new website, and increase com- advises businesses, financial institutions, than a decade, she has served as a member munications with FBA members via e-mail and individuals concerning bankruptcies, of the LSBA’s House of Delegates and has and other media. contracts, construction, environmental held leadership positions in various LSBA The FBA also in involved with: sections and committees. ► promotion of high standards of profes- Belleau began her ascent in the FBA in sional competence and ethical conduct; 1992, when Robert Kutcher, then-president ► promotion of independence of the of the New Orleans FBA Chapter (and her federal judiciary; partner), appointed her to its board of direc- ► ensuring adequate funding for the Watch the tors. Kutcher, Judge Edith Brown Clement federal courts; (past president of the New Orleans Chapter ► establishment of additional fed- Children’s Law and now 5th Circuit judge), Belleau and eral judgeships and support staff as rising Robyn Spalter (who served as national caseloads threaten the prompt delivery of Committee FBA president from 2005-06) created the justice; New Orleans Chapter’s Young Lawyers ► adoption of adequate security mea- video, Section. Working her way up through the sures to protect the federal judiciary, their New Orleans Chapter’s Membership Com- families and court personnel in and outside mittee, Belleau became president of the New the courthouse, while preserving meaningful Louisiana Orleans Chapter in 1999. public access to judicial proceedings; and Belleau’s involvement in the FBA on ► promotion of the professionalism and Foster Care: a national level took off in 2000 when she esteem of attorneys employed by the federal was appointed to serve as vice president government. An Introduction, of the 5th Circuit, a position she held until Founded in 1920, the FBA serves 2005 and for which she received the FBA as the national representative of federal Award for Outstanding Service. She served legal practitioners. The mission of the online at as chair of the Circuit Vice Presidents from FBA (with more than 15,000 members 2003-05, deputy secretary from 2005-06 and nationwide) is to “strengthen the federal as the FBA’s general counsel from 2006-08. legal system and administration of justice www.lsba.org/ She decided to run for FBA treasurer, then by serving the interests and needs of president-elect. the federal practitioner, both public and fostercare Belleau is active in her local community private, the federal judiciary and the public as well. She serves on the board of the they serve.”

292 December 2010 / January 2011 ™ Continuing Legal Education In the legal community the more you know, the faster you’ll get ahead. That’s why the Louisiana State Bar Association offers a variety of seminars on a wide range of legal topics. Enrolling in them will help you stay competitive and keep up with the ever-changing laws. The Continuing Legal Education Program Committee sponsors more than 20 programs each year, ranging from 15-hour credit seminars to one-hour ethics classes. Check online for the most up-to-date list of upcoming seminars at www.lsba.org/CLE.

Getting on Solid Ground Destination Disney! Multi-Topic CLE in Real Estate Law: Leases March 7 - 9, 2011 January 19, 2011 Lake Buena Vista, Florida New Orleans Transactional Challenges in Distressed Times Baton Rouge Mini Diversity Conclave March 11, 2011 January 26, 2011 New Orleans Baton Rouge Appellate Advocacy Shreveport Mini Diversity Conclave March 18, 2011 February 3, 2011 New Orleans Petroleum Club of Shreveport Shreveport 4th Annual Conclave on Diversity in the Legal Profession Getting on Solid Ground March 18, 2011 in Real Estate Law: Entity Formation New Orleans Marriott at the February 9, 2011 Convention Center New Orleans New Orleans

Red Rover, Red Rover, Send My Lawyer Over: Family Law CLE Children Need Lawyers Too, and How! March 25, 2011 February 11, 2011 New Orleans New Orleans Motion Practice Louisiana Trusts: From Conception March 25, 2011 to Natural Death New Orleans February 18, 2011 New Orleans Immigration CLE Seminar Getting on Solid Ground in Real Estate Law: March 31, 2011 Introduction to Tax Credits & Tax Abatements New Orleans February 23, 2011 Tips for Avoiding Legal Malpractice New Orleans April 1, 2011 4th Annual Solo and Small Firm Conference New Orleans February 24 - 25, 2011 Hilton New Orleans Riverside French Quarter Fest: New Orleans 3rd Annual White Collar Symposium April 8, 2011 New Orleans For more information or to register online, visit www.lsba.org/CLE

LouisianaLouisiana BarBar JournalJournal Vol.Vol. 58,58, No.No. 44 293293 Louisiana Bar Foundation President’s Message ‘Tis the Season for Giving By Herschel E. Richard, Jr.

‘Tis the season for shopping, partying crises; and, hopefully, reflecting on the spirit of The LBF provides an ► assist families to retain their the season — giving. With the season opportunity for all lawyers homes; of giving upon us, please consider mak- ► give children a voice in court; ing a year-end gift to the Louisiana Bar to play a part in ensuring ► bring families back together; Foundation (LBF). The LBF relies on gifts ► build educational courtrooms in that every Louisiana citizen schools; and such as these to continue our mission to has equal access to the ► bring communities together to preserve, honor and improve our system identify legal needs in their areas. of justice. A gift to the LBF demonstrates justice system. Please take the time during this busy your belief in our mission and will help holiday season to reflect on the blessings strengthen the programs we support and in your life and consider making a gift to most vulnerable. the services we provide. the LBF. Make your gift online at: www. With your support, the LBF is able The LBF provides an opportunity for raisingthebar.org/gift or mail directly to: all lawyers to play a part in ensuring that to the LBF, 909 Poydras St., Ste. 1550, ► help women and children in domes- every Louisiana citizen has equal access to New Orleans, LA 70112. If you have any the justice system. By working together, tic violence shelters; ► provide education to youth about questions, contact Development Director we can enhance the Foundation’s mission Laura Sewell, (504)561-1046 or e-mail and meet the legal needs of our state’s the legal process; ► aid the elderly through financial [email protected].

Louisiana Bar Foundation LBF Seeking Nominations for 2011 Boisfontaine Award Announces New Fellows The Louisiana Bar Foundation (LBF) tablished through an endowment to the is seeking nominations for the 2011 Curtis Louisiana Bar Foundation in memory of The Louisiana Bar Foundation R. Boisfontaine Trial Advocacy Award. Curtis R. Boisfontaine, who served as announces the following new Fellows: Nominations must be received in the president of the Louisiana State Bar As- LBF office by Friday, Feb. 11, 2011. The sociation and the Louisiana Association award will be presented at the Louisiana of Defense Counsel. Generous donations Paula B. Bertuccini. . . . .Lafayette State Bar Association’s Annual Meeting from Sessions, Fishman, Nathan & Israel, Hon. Edward B. Broussard. . Abbeville in Las Vegas, Nev., in June. The recipient L.L.P., the Boisfontaine family and friends will receive a plaque and $1,000 will be established the fund. Hon. W. Eugene Davis. . . Lafayette donated in his/her name to a non-profit, The award is given to a Louisiana Stephen J. Herman. . . New Orleans law-related program or association pro- attorney who exhibits long-standing de- Kyle A. Ferachi. . . . .Baton Rouge viding services in Louisiana (recipient’s votion to and excellence in trial practice choice). and upholds the standards of ethics and Sidney A. Nominations should include the nomi- consideration for the court, litigants and Marchand III. . . .Donaldsonville nee’s name, contact information, a brief all counsel. Previous recipients are Wood Chad E. Mudd. . . . . Lake Charles written statement on the background of Brown III, William K. Christovich, Pat- the nominee, as well as reasons why the rick A. Juneau, John B. Scofield, Gene W. Prof. Robert A. Pascal . . Baton Rouge nominee is proposed as the award recipi- Lafitte, Charles S. Weems III, Herschel E. Henry S. Provosty. . . .New Orleans ent. Nominations should be forwarded to Richard, Jr., Jack C. Benjamin, Sr., Robert R. Scott Ramsey, Jr.. . .Morgan City Dennette Young, Communications Di- B. Acomb, Jr., John J. Weigel, Allen Lewis rector, Louisiana Bar Foundation, 909 Smith, Jr., H. Alston Johnson III, John R. Hon. Marie B. (Melise) Poydras St., Ste. 1550, New Orleans, Martzell, George A. Frilot III, Phillip A. Trahan...... Crowley LA 70112; or e-mail to dennette@rais- Wittmann, J. Michael Small and John M. ingthebar.org. McCollam. This trial advocacy award was es-

294 December 2010 / January 2011 LBF’s 25th Anniversary Fellows Gala Set for April 8 LBF Annual Membership The Louisiana Bar Foundation (LBF) ► Cornerstone Level, $3,500: In- Meeting Moves to New will celebrate the 25th annual Fellows cludes 20 patron party tickets, 20 gala Orleans in April Gala on Friday, April 8, 2011. The gala tickets with two reserved tables (seats and live auction will be held at the Ritz- 20) and recognition at the event. The Louisiana Bar Foundation’s board Carlton New Orleans, 921 Canal St. ► Capital Level, $2,000: Includes of directors approved holding the Annual Discounted rooms at the Ritz-Carlton 10 patron party tickets, 10 gala tickets Membership Meeting in conjunction with New Orleans are available for $215 a night with one reserved table (seats 10) and the 25th Anniversary Fellows Gala. The for both Thursday, April 7, and Friday, recognition at the event. breakfast meeting will be held at 8 a.m. April 8. Reservations must be made on ► Pillar Level, $1,200: Includes six Friday, April 8, 2011, at the Ritz-Carlton or before Thursday, March 17, 2011, to patron party tickets, six gala tickets and New Orleans. This meeting is an op- get the discounted rate. Call the hotel recognition at the event. portunity for Fellows to be updated on directly at (800)826‑8987 and reference ► Foundation Level, $400: Includes LBF activities and to elect new board “Louisiana Bar Foundation” to make a two patron party tickets, two gala tickets members. reservation. and recognition at the event. A meeting notice will be sent to all Sponsorships are available at the fol- Individual tickets to the gala are $150. Fellows in good standing in the spring. lowing levels: Young lawyer individual gala tickets are For more information, contact Laura ► 25th Anniversary Circle, $5,000: $100. Sewell at [email protected] or Includes 30 patron party tickets, 30 gala For more information, contact Laura (504)561-1046. tickets with three reserved tables (seats Sewell at (504)561-1046 or e-mail laura@ 30) and recognition at the event. raisingthebar.org.

INDEX TO ADVERTISERS ADR inc...... 272 Alston Law Firm, L.L.C...... 262 D. Wesley Attaway...... 287 Aubert Law Firm/Tammany Business Centre...... 274 Bourgeois Bennett...... 268 Bruno & Bruno...... 237 Bryson Law Firm, L.L.C...... 267 Cardone Law Firm, P.L.C...... 253 Christovich & Kearney, L.L.P...... 261 CMC Advisors...... 266 Red Rover, Red Rover, David S. Cook/Mediator...... 265 Red Rover, Red Rover, Kay E. Donnelly & Associates...... 263 SendSend MyMy LawyerLawyer Over:Over: The Faircloth Law Group, L.L.C...... 275 Children Need Lawyers Too Robert G. Foley...... 287 ...and How! John Fox & Associates, L.L.C...... 260 Friday, February 11, 2011 Tom Foutz/ADR inc...... 269 Sheraton New Orleans Hotel • 500 Canal St. Gilsbar, Inc...... IBC The Law Offices of Deborah M. Henson, L.L.C...... 261 oin us at this comprehensive seminar featuring The Koerber Company, P.A...... 271 judges, lawyers, and lay professionals with Jinteresting and practical information for the LaPorte Sehrt Romig Hand...... 238 new and seasoned practitioner in the children’s Legier & Company...... IFC arena. Every session presents the most current LexisNexis...... 234 developments, putting you “in the know” in this vital and growing area of practice. From relocation Louisiana Association for Justice...... 277 in our ever more mobile society to immediate ex MAPS, Inc...... 264 parte relief from abuse, from new adoption laws Montague Pitman & Varnado...... 286 to new funding available for representation of children, you won’t want to miss a single topic! Perry Dampf Dispute Solutions...... 270 Plastic Surgery Associates...... 257 For more information or Schafer Group, Ltd...... 255 Schiff, Sheckman & White, L.L.P...... 262 to register online, visit: Mary Ann Sherry...... 287 www. Template, Inc...... 233 lsba.org Texas Corp. Supplies...... 286 This program will be offered as an online seminar. West, A Thomson Business...... OBC Check http://www.legalspan.com/lsba/catalog.asp

Louisiana Bar Journal Vol. 58, No. 4 295 Lucid INTERVALS By Vincent P. Fornias Under the table

t was just another day at a law office in Wilmington, N.C., where a representative of an insurance company sued for bad faith was Ibeing deposed via videophone by a Miami lawyer representing the plaintiffs. The latter had dispatched a paralegal to the deposition to sit by for the marshalling of the exhibits in person. Suddenly the paralegal noticed a strange noise coming from under the table, directly below the position of the deponent and the lawyer defending the deponent. It sounded like a Broadway musical under there. Tap-tap-tap. So he subtly peeked under the table, yanked out his smart phone and snapped a picture of the evidence. Then he sent it posthaste to his boss in Miami. Here is the resulting deposition exchange: cramped quarters under the table, and that this was a “natural position for parties sitting for hours of cross-examination.” Miami lawyer: “Ms. Dennis?” As a public service to our readership, and in the hope that future Witness: “Yes.” instances of unprofessional and unseemly conduct can be avoided, Miami lawyer: “Has he been tapping your foot? And you’re we provide below a Checklist of Indicia of Foot-Tapping Potential under oath here.” to be brought to all future depositions: Witness: “Yes.” Miami lawyer: “Yes, he has?” ► Is the defense lawyer related to Fred Astaire, Gene Kelly, Cyd Witness: “Yes. I didn’t know it was his foot.” Charisse, Shirley Temple or Mr. Bojangles? ► Is there a Morse code cheat sheet near the deponent? Alas, dear reader(s), we are haunted here by the limitations of a ► Do deponent and his lawyer refuse to check their footwear cold, dry transcript, leaving those of us without a life with persistent, at the door? searing questions about her intriguing answer, and specifically where ► Is the deponent wearing ballet slippers and her lawyer wear- the emphasis was placed by deponent: ing steel-toed boots? ► Is deponent heard to whisper, “Ouch! That one hurt!”? A. Did she mean she didn’t know it was his foot (as opposed to the foot of the court reporter or other counsel or the legendary Better yet, an ounce of prevention is always worth a pound of Sasquatch of North Carolina)? incendiary sanction motions. Henceforth, all footsie flotsam can be avoided altogether by: B. Did she mean she didn’t know it was his foot (or perhaps he had exceedingly long arms or . . . let’s not go there, OK)? ► Placing deponent at the other end of the table from her attorney and hoping that he was not an NBA center; C. Did she mean she didn’t know it was his foot (meaning she had ► Placing fly paper under the deposition room table; simply either narrowed the list to her lawyer’s foot or the presence ► Installing barbed wire, broken bottles or electric wiring to of very large and over-caffeinated termites)? encourage under-table foot separation; ► Spraying a detectable dye on the sole of deponent’s attorney’s What we do know is that the deposition was promptly concluded foot; or and the Miami lawyer sought sanctions from the insurance com- ► Requiring all deposition tables to be glass-topped. pany, accusing its lawyer of coaching the witness through dastardly foot-tapping. Attached to the motion was a reprint of the paralegal’s Notice that we have now almost concluded this important report Kodak Moment. The defendants replied in brief that there was no without one single solitary reference to the (ugh!) footnote to this impropriety other than occasional foot brushing prompted by the story. Well, almost . . . .

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

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