LOUISIANA BAR JOURNAL

Judy Perry Martinez ABA President 2019-2020 VOLUME 67, NUMBER 3

Also Inside: • When Disability Law Meets Private Land Use Regulations

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October / November 2019 Volume 67, Number 3 Departments Features Editor’s Message...... 166 New Orleans Attorney President’s Message...... 168 Judy Perry Martinez Association Actions...... 184 Installed as 2019-20 Practice Management...... 188 American Bar Association President...... 170 Lawyers Assistance...... 189 Focus on Diversity...... 190 Puzzle...... 192 Discipline Reports...... 194 U.S. Supreme Court Declines to Recent Developments...... 199 Mandate Class Arbitration in Its Decision, Lamps Plus, Inc. v. Varela Young Lawyers...... 216 By Anthony M. DiLeo...... 176 La. Center for Law and Civic Education ...... 220 Judicial Notes...... 222 People...... 223 When Disability Law Meets News...... 225 Private Land Use Regulations: Understanding Emerging Classified...... 230 Constraints on Private The Last Word...... 232 Land Use Controls Also Inside By Marc L. Roark...... 180 SOLACE...... 192 Secret Santa Program Form.... 210 Advertisers’ Index...... 229 Who’s Who in ADR 2018 2019 LOUISIANA STATE BAR ASSOCIATION ANNUAL REPORT

Judy Perry Martinez leads in the Supplement to the Louisiana Bar Journal Supplement to the Louisiana Bar Journal Volume 67, No. 3 Louisiana Bar Journal Vol. 67, No. 3 Who’s Who in ADR 2019 1 Louisiana delegation to the American Louisiana Bar Journal / 2018 Annual Report 1 Bar Association meeting where she was installed as the 2019-2020 ABA president. Who’s Who in ADR 2019 Supplement LSBA Annual Report 2018 Supplement (See page 170.) mailed with this issue. mailed with this issue.

Louisiana Bar Journal October / November 2019 162 Vol. 67, No. 3 www.lsba.org Louisiana Bar Journal October / November 2019 163 Vol. 67, No. 3 www.lsba.org ® Officers 2019-20 President Editorial Board

Robert A. Kutcher • (504)830-3838 þ Patrick A. Talley, Jr. þ Alainna R. Mire President-Elect Editor (318)449-5046 Alainna R. Mire • (318)449-5046 (504)584-9220 þ John H. Musser V Secretary (504)523-0400 Patrick A. Talley, Jr. • (504)584-9220 þ Rachel P. Dunaway (225)922-5110 þ Roy H. (Hal) Odom, Jr. Treasurer (318)227-3762 Shayna L. Sonnier • (337)436-1600 þ Stephen I. Dwyer Immediate Past President (504)838-9090 þ Kelly M. Rabalais Barry H. Grodsky • (504)599-8535 (985)898-2445 þ Laura S. Gravener (504)554-5807 þ Graham H. Ryan Board of Governors 2019-20 (504)582-8370 First District þ Mark A. Hill (504)526-4337 þ Maggie Trahan Simar Darryl J. Foster • (504)596-6304 (337)394-6133 Lawrence J. Centola III • (504)581-9065 þ Carrie L. Jones Second District (225)755-7500 þ Gail S. Stephenson (225)771-4900, x 216 Stephen I. Dwyer • (504)838-9090 þ Michael D. Lane Third District (504)581-3300 þ Tyler G. Storms Shannon Seiler Dartez • (337)233-1471 (318)255-7805 þ Winfield E. Little, Jr. Fourth District (337)430-0907 þ Adrejia L. Boutte Swafford Todd S. Clemons • (337)477-0000 (504)561-5700 þ C.A. (Hap) Martin III Fifth District (318)388-4700 þ Edward J. Walters, Jr. Valerie Turner Schexnayder • (504)813-3633 (225)236-3636 Kelly M. Rabalais • (985)898-2334 þ John E. McAuliffe, Jr. (504)840-4909 þ Sixth District Jack K. Whitehead, Jr. (225)303-8600 Edward L. Tarpley, Jr. • (318)487-1460 þ Claire McDaniel-Ojeh Seventh District (504)528-9500 Paul L. Hurd • (318)323-3838 The Louisiana Bar Journal (ISSN 0459-8881) is published bimonthly by Eighth District the Louisiana State Bar Association, 601 St. Charles Avenue, New Orleans, Patrick J. Harrington • (318)303-6833 Louisiana 70130. Periodicals postage paid at New Orleans, Louisiana and additional offices. Annual subscription rate: members, $5, included in dues; Chair, Young Lawyers Division nonmembers, $45 (domestic), $55 (foreign). Canada Agreement No. PM Scott L. Sternberg • (504)324-2141 41450540. Return undeliverable Canadian addresses to: 4240 Harvester At-Large Members Rd #2, Burlington, ON L7L 0E8. Monique Y. Metoyer • (318)729-1880 Postmaster: Send change of address to: Louisiana Bar Journal, 601 St. Lynn Luker • (504)669-0322 Charles Avenue, New Orleans, Louisiana 70130. Tina L. Suggs • (504)442-8591 Subscriber Service: For the fastest service or questions, call Darlene M. Loyola University College of Law LaBranche at (504)619-0112 or (800)421-5722, ext. 112. Monica Hof Wallace • (504)861-5670 Southern University Law Center Editorial and Advertising: Donald W. North • (225)505-6714 Publication of any advertisement shall not be considered an endorsement of the product or service involved. Submissions are welcome and will be Louisiana State Law Institute considered for publication by the Editorial Board. For submission guide- Zelda W. Tucker • (318)861-0884 lines, go online at www.lsba.org, click on “Publications,” then “Louisiana House of Delegates Liaison Chair Bar Journal.” Copyright © by Louisiana Bar Journal. All rights reserved. Shayna Beevers Morvant • (504)361-4287 Reproduction in whole or part without permission is prohibited. Views expressed are those of the authors only. Editorial Staff Executive Director Luminary Award 2003 Loretta Larsen, CAE National Association of Bar Executives Communications Director Communications Section Kelly Wells Ponder Excellence in Regular Publications Publications Coordinator/Managing Editor Darlene M. LaBranche International Communications Coordinator/Graphic Design Association of Barbara D. Baldwin Business Public Relations Society Communications Assistant Communicators of America New Orleans Krystal Bellanger Rodriguez New Orleans Chapter Chapter Advertising Booking Questions? ward of Bronze Quill A Call (504)619-0131. Award of Merit

Louisiana Bar Journal October / November 2019 164 Vol. 67, No. 3 www.lsba.org PROUDLY CONGRATULATES

JUDY PERRY MARTINEZ

ON BECOMING PRESIDENT OF THE AMERICAN BAR ASSOCIATION

2 October / November 2018 Louisiana Bar Journal October / November 2019 164 Vol. 67, No. 3 www.lsba.org Louisiana Bar Journal October / November 2019 165 Vol. 67, No. 3 www.lsba.org

1018_LBJ_JOURNAL_MAGAZINE_October.indd 2 8/22/2018 2:56:44 PM Editor's Message The Red Mass and St. Thomas More Catholic Lawyers Association By Patrick A. Talley, Jr.

ell, it is now fall. Although our state is not known for having colorful fall leaves, we doW have the annual (and colorful) Red Mass in several cities, which celebrates the opening of Louisiana courts and the beginning of the new judicial year. In New Orleans, the Red Mass is celebrated in St. Louis Cathedral on the first Monday of October. The Oct. 7 Mass was the 67th annual celebration. For those of you who have never at- tended the Red Mass in New Orleans, it is a beautiful and moving service. There is nothing quite like the beauty and pageantry of seeing the entire Supreme Court led by the Chief Justice march down the aisle in St. Louis Cathedral followed by dozens of robed judges from the courts of appeals, the district courts and the local courts, as well as many lawyers and other dignitaries, to celebrate the opening of courts and the During the 2017 Red Mass, Archbishop Gregory M. Aymond, left, with the Archdiocese of New new judicial year. Orleans, poses with Judge Raymond S. Steib, Jr., 24th Judicial District Court, next to the St. Thomas How and why do we have the Red More Catholic Lawyers Association banner. Photo by Darryl Schmitt Photography. Mass? First, a little history: and ministers wear, symbolizing the Red Mass. This magnificent

the tongues of fire representing edifice, erected in 1246, was used The origin of the Red Mass is ob- the Holy Spirit. Moreover, the only once a year and only for scured by its antiquity. It is the robes of the attending judges were celebration of the Red Mass. In Solemn Votive Mass of the Holy bright scarlet, thus providing an England, the custom began in the Spirit. (The word “votive” indi- additional reason for the name Middle Ages and continued even cated that the Mass is offered for “Red Mass.” during World War II, when judg- a special intention.) Celebrated es and lawyers attended the Red generally at the beginning of the The tradition of the Red Mass Mass annually in Westminster judicial year, the Red Mass is at- goes back many centuries in Cathedral. tended by judges, lawyers and of- Rome, Paris and London. From ficials of all faiths for the purpose long tradition, this ceremony has In the United States, the tradi- of invoking God’s blessing and officially opened the judicial year tion was inaugurated in 1928 in guidance in the administration of of the Sacred Roman Rota, the New York City by the Guild of justice. Its traditional name, the Tribunal of the Holy See. During Catholic Lawyers. They celebrat- Red Mass, is derived from the the reign of Louis IX, Saint Louis ed the Votive Mass in old Saint color of the vestments the cel- of France, La Sainte-Chapelle Andrew’s Church in the shadows ebrants, con-celebrants, clergy was designated as the chapel for of the towering State and Federal

Louisiana Bar Journal October / November 2019 166 Vol. 67, No. 3 www.lsba.org Court buildings. The annual cel- sion. The CLA works in conjunction and then beheaded. More was declared a ebration of the Red Mass in the with the Archbishop of New Orleans saint in the Roman Catholic Church by District of Columbia is attended and the Bishops of Louisiana for the Pope Pius XI in 1935.2 by justices and judges of the high- Red Mass and also sponsors the annual Many of the members of the CLA est courts in the land, by persons St. Thomas More Feast Day Mass and are prominent and influential attorneys of all faiths and from all branches continuing legal education of interest to and leaders in the Louisiana bar and of government, and by foreign Catholic attorneys. judges who hold important leadership diplomats and other distinguished The CLA is named in honor of St. roles in the state’s judiciary. All in all, guests who pray for God’s help Thomas More (1477-1535), an English the CLA contributes substantially to the in their roles as administrators of attorney and government official who bar and the judiciary, quietly and behind justice.1 died for his convictions. More rose to the scenes. We owe them a great deal become the chancellor of England under of gratitude for their contributions to The first Red Mass celebrated in King Henry VIII. When Henry declared the profession, and particularly for their Louisiana was offered in St. Louis that he was the head of the Church in annual sponsorship of the Red Mass, a Cathedral on Oct. 5, 1953, and this tra- England, More resigned his position wonderful tradition that we are fortunate dition has continued annually for 67 rather than violate his convictions. to have as lawyers in Louisiana (par- years. The Red Mass also is a longstand- While More did not publicly disavow ticularly since we don’t have many fall ing celebration in other Louisiana cities. Henry’s position, Henry required that leaves to enjoy). Many Louisiana State Bar More sign an oath acknowledging that Association members may not know the children of Henry and Anne Boleyn FOOTNOTES that the Red Mass in New Orleans is were the legitimate heirs to the throne, largely sponsored and serviced by fel- which More refused to do, and he con- 1. History of the Red Mass is largely taken low lawyers who comprise one of our sequently was imprisoned in the Tower from the program for the 67th Annual Red Mass in New Orleans. unique specialty bars, the St. Thomas of London. More was eventually tried 2. History of St. Thomas More is largely taken More Catholic Lawyers Association and convicted of treason for his refusal from the website of the St. Thomas More Catholic (CLA), a non-profit association of to execute an oath which violated his Lawyers Association. Catholic attorneys in the legal profes- convictions. He was sentenced to death

Louisiana Bar Journal October / November 2019 166 Vol. 67, No. 3 www.lsba.org Louisiana Bar Journal October / November 2019 167 Vol. 67, No. 3 www.lsba.org President's Message

Serving the Public;

Serving the Profession By Robert A. Kutcher

n Aug. 1, 2019, one of our a remedy available if any member practice in a changing world. Toward members sued the Louisiana takes issue with the Bar’s legislative that end, at our Annual Meeting in State Bar Association activities. Our reimbursement policy is June, the House of Delegates voted to (LSBA), the Louisiana available on our website. The total cost suspend the Legislation Committee and SupremeO Court and the individual of our legislative activities amounts to all related legislative activities until Justices alleging that the mandatory less than $3 per member per fiscal year. the Midyear Meeting in January 2020 bar structure of the LSBA, which has The goal of all of these lawsuits is to and also voted to require that all future been in place since 1941, is a consti- obtain a ruling from the U.S. Supreme House policies be approved only upon tutional violation of the 1st and 14th Court holding that all mandatory bars a vote of 75% of the House. The latter Amendments. There are more than 30 are unconstitutional, employing the requires an amendment to the Articles of mandatory bars in the United States. same analysis as that which the Supreme Incorporation, which must be voted on This is not an isolated claim, and we are Court applied in the case of Janus v. by the members. That proposal will be not the only state which has been sued. American Federation of State, County on our fall election ballot. Substantially similar claims have been and Municipal Employees, Council 31. Additionally, on June 11, 2019, long filed against the states of Wisconsin, The distinctions between labor unions before this litigation was instituted, a North Dakota, Oregon, Oklahoma, and bar associations, which regulate the committee was formed to review all of the Texas and Michigan. The Phoenix, practice of law, are obvious and do not House of Delegates’ policies and assess Ariz.-based Goldwater Institute is need discussion here, but that is the goal their appropriateness for a mandatory working with the plaintiffs in a number of all of these actions. bar. I fully expect that this committee’s of these suits, including the one here in Most recently, as directed by the work will be presented at the House of Louisiana. U.S. Supreme Court, the 8th Circuit Delegates meeting in January. The LSBA is in full compliance with reconsidered its earlier dismissal of a Our Bar works diligently to ensure the law. Mandatory membership in a challenge to the North Dakota State Bar competency, professionalism and state bar and payment of compulsory in light of Janus. After reconsideration, engagement of Louisiana lawyers. Our fees were held constitutional in Keller the 8th Circuit concluded that Janus CLE programming includes seminars v. State Bar of California, 496 U.S. 1 did not alter its prior grant of summary on numerous topics, many of which (1990), and Lathrop v. Donohue, 367 judgment in favor of the Bar. are offered at little to no cost to our U.S. 820 (1961), and the LSBA operates In Louisiana, our Association and members. Through administration of in accordance with these decisions. The the Louisiana Attorney Disciplinary both MCLE and legal specialization, we LSBA’s legislative advocacy, which is Board and its Office of Disciplinary assist the Supreme Court in ensuring the a target of the litigation, is subject to Counsel are charged with assisting the competency of practicing attorneys. We a number of provisions set forth in the Supreme Court in the regulation of the are committed to protecting the public Association’s Bylaws. These activities practice of law. The Supreme Court by promoting the highest standards of are limited to matters involving issues has the sole authority to regulate the ethical conduct and by addressing the affecting the profession, the regulation practice of law in this state. Through unauthorized practice of law. We offer a of attorneys and the practice of law, the these and other efforts, we have helped number of free practice resources through administration of justice, the availability to ensure that our profession continues our Practice Management Program, while and delivery of legal services to society, to be self-regulated and that Louisiana Fastcase provides LSBA members with the improvement of the courts and the lawyers continue to have a voice in the free legal research. All of these programs legal profession, and such other matters administration of the practice of law. It come with our membership. consistent with the mission and purposes is both an honor and obligation which We also have an extensive Access to of the Association. we willingly accept. Justice Program which helps facilitate In accordance with Keller, we have We also recognize that we live and the provision of civil legal services to

Louisiana Bar Journal October / November 2019 168 Vol. 67, No. 3 www.lsba.org indigent and working-poor Louisiana our mandatory bar in service to the accomplishing these goals, and, citizens. Our fellow citizens rely on public and the profession. collectively, we can use our combined us to help them navigate a complex ► The LSBA cultivates influence to advance and improve and vitally important body of laws and professionalism, collegiality and quality the legal profession and to safeguard justice. Through collaboration with the of life among its members to improve shared principles including protection Louisiana Bar Foundation, Louisiana the quality of practice and respect for the of the public and promotion of access to law schools, private practitioners, local profession. justice for all. bar associations, pro bono programs and ► The LSBA helps foster inclusion “Serving the Public; Serving the legal aid providers, the LSBA supports and participation by the diversity of Profession” is more than a tagline. a broad-based and effective justice its members and works to satisfy the Since 1941, it is who we are and what community. As lawyers, we all have unique needs of all members. we do. The mandatory structure has an obligation to help. This profession ► The LSBA expands access to served us well for nearly 80 years. We should be much more than a paycheck. justice. will strongly defend it so that we may During the past 12 months, our ► The LSBA improves public trust continue to fulfill our mission for the Board of Governors went through and confidence in the legal system and lawyers and all citizens of Louisiana. an exhaustive planning process and its participating judges and lawyers. I encourage everyone to visit our developed the following goals to move ► The LSBA has the financial, website at www.lsba.org to learn more our Bar forward in the coming years: governance and organizational capacity about this pending litigation and the to serve its vision. litigation in other states. More importantly, ► The LSBA preserves self- visit our website and see what the LSBA regulation and self-governance through We are firmly committed to can do for you. We offer a lot.

#yourLSBA: A Pro Bono Hero Providing Justice for ALL

Doing pro bono work is the ultimate leveling experience, as it is both gratifying and humbling. It only takes an hour at the Lafayette Bar Association’s Counsel on Call program or one meeting with a pro bono client to remember how petty my own perceived problems are. I guarantee that every day you help those in need will be a better day (for you and the beneficiary) because of it.

Hallie P. Coreil, Attorney at Law Formerly in private practice Western District of Louisiana • Lafayette, LA

Louisiana Bar Journal October / November 2019 168 Vol. 67, No. 3 www.lsba.org Louisiana Bar Journal October / November 2019 169 Vol. 67, No. 3 www.lsba.org Louisiana Bar Journal October / November 2019 170 Vol. 67, No. 3 www.lsba.org New Orleans Attorney Judy Perry Martinez Installed as 2019-20 American Bar Association President

udy Perry Martinez, of counsel with residence for one year at the Advanced served as chair of the New Orleans Bar the law firm of Simon, Peragine, Leadership Initiative at Harvard and then Association’s Young Lawyers Section. Smith & Redfearn, L.L.P., in returned to New Orleans. She chaired the LSBA’s Committee on New Orleans, was installed as For more than 30 years, Martinez held Minority Involvement in its inaugu- Jthe 2019-20 president of the American various leadership positions at the ABA. ral year (1989) and chaired the LSBA’s Bar Association (ABA) at the conclu- From 2014-16, she chaired the ABA Professionalism and Quality of Life sion of the ABA Annual Meeting in San Presidential Commission on the Future Committee and the Post-Conviction Francisco in August. Her one-year term of Legal Services. She also was a mem- Death Penalty Representation Committee. will end in August 2020. ber of the ABA Task Force on Building She is a member of the board of direc- “The American Bar Association will Public Trust in the American Justice tors of the American Bar Foundation, a continue to stand up for an independent System. In 2011, she was appointed chair Fellow of the American Bar Foundation judiciary and bolster the integrity of our of the ABA Standing Committee on the and the Louisiana Bar Foundation, and a democratic institutions, especially those Federal Judiciary, which evaluates all pro- member of the American Law Institute. that depend on due process, equality, ci- spective nominees to the federal bench. Martinez is the recipient of numer- vility, respect and fairness,” Martinez She has served as the ABA lead repre- ous awards. In 2017, she received the said. “As lawyers, advancing the rule of sentative to the United Nations and as a LSBA’s David A. Hamilton Lifetime law, which protects everyone’s liberties, is member of the ABA Board of Governors Achievement Award and the New Orleans of paramount importance. The ABA also and its Executive Committee. She previ- Bar Association’s Presidents’ Award. In will work to increase public awareness, ously served as chair of the ABA Young 2012, she received the Camille Gravel so more people understand the vital role Lawyers Division, a member of the ABA Pro Bono Public Service Award from the they can play in protecting democracy. Commission on Women in the Profession New Orleans Chapter of the Federal Bar Working together, we can ensure that laws and chair of the ABA Commission on Association. She is a past recipient of the are fair and justly enforced, and our rights Domestic Violence. She has been a mem- Sam Dalton Capital Defense Advocacy are never taken for granted.” ber of the ABA House of Delegates since Award from the Louisiana Association Martinez returned to Simon Peragine 1991. She has served as a member of of Criminal Defense Counsel (1997), the in 2015, previously serving the firm from the ABA Task Force on Attorney-Client Michelle Pitard Wynne Professionalism 1982-2003 as a partner, member of its Privilege, the Council of the ABA Center Award from the Association of Women Governing Committee and commercial for Racial and Ethnic Diversity and the Attorneys (1998) and the Alliance for litigator. In 2003, she joined Northrop ABA’s World Justice Project Committee. Justice Award from the National Gay and Grumman as assistant general counsel Outside of her work with the ABA, Lesbian Law Association (1999). for litigation, managing litigation for the Martinez, along with other members She earned her BS degree from the western half of the country before becom- of the Louisiana State Bar Association University of New Orleans and graduated ing vice president and chief compliance (LSBA), established the New Orleans from Tulane University Law School, with officer there in 2011. She retired from Pro Bono Project and served as its first honors, in 1982. Northrop in 2015 to become a fellow in chair in the early1980s. Additionally, she

Judy Perry Martinez. Photo courtesy of Media Relations, American Bar Association.

Louisiana Bar Journal October / November 2019 170 Vol. 67, No. 3 www.lsba.org Louisiana Bar Journal October / November 2019 171 Vol. 67, No. 3 www.lsba.org Remarks by Two weeks ago, Rene and I celebrated The courtroom where the ceremony our 40th anniversary. He has supported took place was filled with soon-to-be ABA President my bar work, my pro bono and my pro- new Americans beaming with pride. fessional career, always with a nudge that Many were holding tiny American flags. Judy Perry Martinez I need to give back more. He has pro- One, who later introduced himself to me ABA Annual Meeting vided our four children and their loved as Obin, was from Laos. More than 17 August 12, 2019 ones, our many nieces and nephews, my years earlier, his parents had fled vio- treasured three brothers and sisters in- lence and poverty and secured safe pas- Thank you, Chief Justice Johnson. law, the finest example of what -endur sage out of the country for their family. Your presence here means so much to me ing love and support means. I am grate- Now, he was a practicing CPA at a major and is truly an honor for the American ful for them and also to have had such accounting firm. Bar Association. a powerfully enabling law firm, Simon I asked Obin what he planned to do for President Carlson, you amplified Peragine, Smith & Redfearn, and em- his first Thanksgiving as an American. the Association’s voice on the indepen- ployer, Northrop Grumman Corporation. He said he didn’t know because he had dence of the judiciary, the essential role It means so much to me that my family, not celebrated Thanksgiving before. of lawyers and judges across the globe, dear friends from New Orleans and be- Without hesitation, he accepted my invi- and the fair and just treatment of those yond, and so many of my current and for- tation to join our extended family, includ- seeking safety and the hope of a new life mer colleagues have gathered here. ing Rene’s family, at my parents’ home. within our borders. You made us stron- Many years ago, I had the privilege of That tradition of inviting those who don’t ger through your heartfelt insistence that speaking on behalf of the New Orleans have a place to go has continued for we sound the trumpets for lawyer and Bar Association at a Naturalization many years in our family — our daugh- law student well-being. You made the Ceremony at the federal courthouse. ter, Carson, hosted her first Thanksgiving ABA better by working closely with our That November day was meaningful last year in D.C. and invited 10 foreign executive director, staff and volunteer to me, in part, because Rene is a natural- students to her table. leadership on a vast range of Association ized citizen. As a 2-year-old in 1958, he Just as the exchange of stories, ideas, operations, including our strategy to in- came with his parents to America from hopes and dreams at the same table with crease and sustain membership. We are Algeria. The reverence with which Rene those of different backgrounds, perspec- forever grateful. Thank you, Bob. and my in-laws have spoken about the tives and cultures makes our lives richer, Our many Association past presidents blessing and privilege of U.S. citizenship the gathering of people from different who have served with distinction con- awakened me to my own obligation not lands makes our nation stronger. We tinue to be a source of great knowledge to take for granted rights and responsi- make room not because we must, but be- and influence for our profession. In fact, bilities I had done nothing to achieve but cause we can. When they have no place 19 past presidents recently gathered by must do everything to fulfill. to go because of war, repression or fear phone at my invitation so that we could update them on the ABA and call on them to work with us in the coming year as we build on their prior work. Please join me as we show our appreciation to our former presidents for their prior and continued service to the Association and our profession. As we look back to strengthen the present, we also look forward. We are fortunate to have President-Elect Trish Refo on our team. She will be outstand- ing. Along with our other officers and the Board of Governors working closely with our professional staff led by Jack Rives and with all ABA entities, we will not only promote our four goals — to serve our members, improve our profession, eliminate bias and enhance diversity, and advance the rule of law — we pledge to do so strategically, with a seamless tran- sition of leadership, year after year. Judy Perry Martinez leads in the Louisiana Delegation to the ABA House of Delegates. Photo courtesy of Media Relations, American Bar Association.

Louisiana Bar Journal October / November 2019 172 Vol. 67, No. 3 www.lsba.org The Louisiana delegation. Back row: Graham H. Ryan, John H. Musser IV, Barry H. Grodsky, Michael W. McKay, Richard K. Leefe, Darrel J. Papillion and Hon. Raymond S. Steib, Jr. Middle row: Ashley L. Belleau, Jeanne C. Comeaux, Jan M. Hayden and David F. Bienvenu. Front row seated: Frank X. Neuner, Jr., Hon. Bernette Joshua Johnson, Judy Perry Martinez and Robert A. Kutcher. Photo courtesy of Media Relations, American Bar Association.

of safety, we bring them home. And our the Commission on Immigration and the improve and advocate for our profession. family, our America, welcomes them. Standing Committee on Pro Bono and We improve our profession as we work to Our Constitution demands, and our Public Service, with support from the eliminate bias and enhance diversity. Our laws confirm, that we afford due process American Bar Endowment. focus on diversity is essential to promot- rights to immigrants and asylum-seekers Our commitment is deepened by so ing the rule of law by making our profes- who are in or are seeking entry into the many of you and other lawyers who are sion more responsive to our clients and United States. stepping up with these projects and in opening our eyes to, and driving strate- That is the key reason why the ABA is your local communities. Just recently, a gies to overcome, systemic injustice. And so fiercely committed to due process for member of this House put me in contact by promoting the rule of law, we provide asylum-seekers and other immigrants at with a law student who had an older sib- a vital benefit to our members who see our border. Moreover, as this House has ling facing possible deportation. Through the legal profession as a calling and share confirmed, our sense of decency owed to the work of a pro bono immigration prac- our passion for justice and liberty. fellow human beings and our American titioner who is a colleague of yet an- Lawyers want to be the best at their values compel us to insist on “safe and other member of this House, the family profession they can be, and they expect sanitary conditions” and more, for chil- obtained legal assistance, and steps are support from the world’s premier asso- dren and all detainees, and against sepa- being taken toward a likely positive out- ciation of lawyers. The ABA is energized ration of families. come. by the work of our volunteer leader- Our commitment is a lasting one, as Lawyers know no strangers. We are ship and staff to introduce membership borne out by the 30th anniversary this fall taught to reach deep within ourselves to to more lawyers, make it easier to join of the ABA Commission on Immigration’s do the best we can to help those in need, and renew, bring them more educa- Pro Bono Asylum Representation Project whether the client can pay our posted tional programs tailored to their needs, in South Texas, known as ProBAR. I was fees and sometimes even when they can and offer opportunities for connection, honored to join President Carlson there only say “thank you.” involvement and leadership. Our newly for a week a year ago to do pro bono Lawyers are instilled with the under- appointed ABA state membership chairs service, and I look forward to a similar standing that somehow, some way, we will further these efforts by deploying show of support in the coming weeks must make room at the table of justice. to actively recruit and retain members. I when President-Elect Refo joins me. We And we can best do so by collaborating will continue to visit law schools, at ev- are proud not only of ProBAR but also with one another and seeing our mission ery opportunity, to foster a deep sense of our Immigration Justice Project in San and purpose as a unified pursuit. The belonging among law students and fac- Diego and our Children’s Immigration ABA’s four goals are listed as separate ulty in the ABA community. We all know Law Academy in Houston. And we value and distinct, yet they are, in fact, inter- that being an ABA member has enriched our coordination of lawyer volunteers by twined. We serve our members as we our professional lives and is an essential

Louisiana Bar Journal October / November 2019 172 Vol. 67, No. 3 www.lsba.org Louisiana Bar Journal October / November 2019 173 Vol. 67, No. 3 www.lsba.org Louisiana Supreme Court Chief Justice Bernette Joshua Johnson administered the oath of office for the ABA presidency to Judy Perry Martinez. Photo courtesy of Media Relations, American Bar Association. of good lawyering. Each of us needs to go to the Hon. Margaret McKeown, who share that experience far and wide. is serving as chair of the ABA’s centen- A foundation of good lawyering is a nial effort. This historic milestone offers deep belief in the rule of law. Our mem- unparalleled opportunities throughout the bers want the most powerful and influ- year for our members to engage in civics ential association that represents their education, explore the issues of voting profession to be champions of justice, rights and equal rights today, and encour- protectors of democracy, and advocates age voting in elections at all levels. for the rule of law, at home and abroad. Again and again, we hear from our tool of our trade as lawyers that is so We will continue to speak out to pro- colleagues that, at the heart of our nation- desperately needed in the public square. tect the judiciary from unwarranted and al challenges, is the imperative for civics I call on each of you, individually, as personal attacks. We will raise our voices education and greater public knowledge citizen-lawyers sworn to ethics and pro- in unison on the necessity of an indepen- about the rule of law. This fall, we will fessionalism, to stand up for civility and dent judiciary to the health of our democ- launch an engaging social media cam- respect, and speak out against bigotry racy. paign on the rule of law in our democracy. and hatred. Each of us must do our part to We stand for the rule of law as we Our campaign will leverage the commu- insist that our public discourse be better. leverage our voice with other national nication power of groups throughout the The preamble of our Constitution organizations to celebrate the 100th an- ABA and beyond, including bar associa- contains three words that may lay forth niversary of the 19th Amendment, which tions represented in this House, to reach the greatest imperative our nation owes guaranteed women the right to vote and people we have not typically reached in the individuals and families of today: launched the largest expansion of democ- the past. “Insure Domestic Tranquility.” If those racy in our country’s history. My thanks Civics rests on civility, an essential words are to have purpose and meaning

Louisiana Bar Journal October / November 2019 174 Vol. 67, No. 3 www.lsba.org ABA and state and local bar associations. Through your leadership back home, once again this October for the National Celebration of Pro Bono, the ABA will boost individual, law firm, law depart- ment and bar association efforts to bring pro bono front and center. Our theme this year is service for survivors of sexual and domestic violence. Please encourage your colleagues to participate in this ef- fort of lawyers across our country to ad- vocate for people who need us, and liter- ally, protect and save lives. In the coming year, we will celebrate The ABA presidency gavel is passed to new ABA president Judy Perry Martinez. Photo courtesy of another important centennial, the 100th Media Relations, American Bar Association. anniversary of our Standing Committee on Legal Aid and Indigent Defendants. today — if we are to be safe in our by our colleagues and law students with As we do so, we will leave no room homes, our schools, our workplaces, our disabilities, focusing on delivering infor- for doubt that the ABA means business houses of worship and our public spaces mation and tools for law school career when it comes to closing the justice gap. — our policymakers must take specific advisers and law firm recruiters guiding We will stand with the Legal Services actions that will make mass shootings a how they can be more fully inclusive. Corporation before Congress. We will historical, not ongoing, tragedy. We must This past spring, when the presidents- help state and local bars secure more put an end to gun violence — whether elect of the national bars of color met at funding for legal aid and court systems. handgun violence in our cities and towns the ABA as they do annually, for the first And we will not say no to innovations or civilian use of military-grade weapons time ever, leaders of the Disability Rights simply because that is not the way we, for mass murder. Bar Association and the National LGBT the lawyers and the courts, have always This body has given our policymakers Bar Association were both at the table, done it; at each and every turn, we will a roadmap to make that happen through and we all felt the incredible difference have the public we serve at the forefront more than 20 specific policies on gun their presence made. I urge you to simi- of our minds. safety adopted by this House over the last larly invite them to your table. Our colleagues and our country, and, 50 years. This House has spoken, and I We will commit to “No Ladders Up” indeed, the world, look to us to lead with pledge to you we will act on that author- until each and every person who sees knowledge of the law and respect for ity. It is time to end the repeated destruc- themselves as having the potential to the principles on which our nation was tion of innocent lives. contribute to our profession and to the founded. Our finest moments and most We have another imperative that is greater good through the practice of law enduring contributions have been when rooted in our Association’s goals and the has no doubt that the profession can be we have used our voice and resources for quest for justice — and that is to under- theirs through hard work, competency, causes about which we can act with au- stand the breadth and depth of the racial discipline and integrity. thority, and which we can influence with divides that continue to plague our pro- We must not be an insular profession, impact. As lawyers, we know equality. fession and our country. We need to build removed from the people we serve. We We know liberty. And we know justice. bridges and seek insights from other are a people’s profession that is at its best Together, we will honor the words of professions that similarly struggle with a defending liberty and pursuing justice abolitionist and women’s suffrage leader lack of diversity, but somehow outpace when we listen to what consumers of jus- Lucy Stone who said, “Now all we need the legal profession’s lagging opportu- tice need. We must continue to actively is to continue to speak the truth fear- nities for minorities. Working together listen as the profession and beyond ex- lessly, and we shall add to our number, across professions, we must explore our plores, examines and tests innovations those who will turn the scale to the side failures and share our successes so that in both technology and our regulatory of equal and full justice in all things.” once and for all the needs of the public framework, through our state supreme I am honored and humbled to be your in our respective fields are met because courts, state bar associations and affili- president. Thank you for your support as all available talent is there to meet their ated organizations. Our purpose in these we work together. needs. explorations and examinations is not to We will continue to champion gender protect lawyers or our livelihoods. Our parity and women’s rights, and welcome purpose is to provide access to justice. our LGTBQ+ colleagues. We will pay Our support for legal aid and pro bono needed attention to the challenges faced is a signature collaboration between the

Louisiana Bar Journal October / November 2019 174 Vol. 67, No. 3 www.lsba.org Louisiana Bar Journal October / November 2019 175 Vol. 67, No. 3 www.lsba.org U.S. Supreme Court Declines to Mandate Class Arbitration in Its Decision, Lamps Plus, Inc. v. Varela

By Anthony M. DiLeo

he United States Supreme class actions; and Epic Systems Corp. v. ployee into releasing the tax information Court on April 24, 2019, once Lewis, 138 S.Ct. 1612 (2018),3 from the of roughly 1,300 employees, including again issued an opinion with last term in which the Court confirmed Varela’s. After learning of the breach regard to class arbitration and the enforceability of class action waivers and the subsequent filing of a fraudulent declinedT to compel a party to submit to in arbitration agreements. Stated other- federal income tax return in his name, class arbitration in the absence of an af- wise, the Court’s holding is that an arbi- Varela filed a class action against Lamps firmative contractual basis to conclude tration agreement that is ambiguous as to Plus in a California federal district court. that the parties intended to do so. This class arbitration is insufficient to provide However, at the start of his employment, ruling in Lamps Plus, Inc. v. Varela1 fol- the necessary contractual intent for class Varela had signed an employment con- lows and is an extension of the Court’s arbitration.4 tract containing an arbitration clause prior decisions in Stolt-Nielsen S.A. v. In Lamps Plus, Inc. v. Varela, the which stated that Varela consented that AnimalFeeds International Corp., 559 Court issued six separate opinions in “arbitration shall be in lieu of any and all U.S. 662 (2010), where the arbitration reaching a 5-4 ruling declining to order lawsuits or other civil legal proceedings agreement was “silent” on the issue of class arbitration.5 In this case, Frank relating to my employment.”6 class arbitration; AT&T Mobility, L.L.C. Varela filed a putative class action against In the federal district court, Lamps v. Concepcion, 563 U.S. 333 (2011),2 his employer, Lamps Plus, Inc. The Plus moved both to compel arbitration where the Court upheld a mandatory ar- suit arose following a 2016 data breach and to dismiss Varela’s claims. Lamps bitration agreement in a consumer con- where a hacker impersonated a company Plus additionally contended that arbitra- tract barring customers from bringing official and tricked a Lamps -Plus em tion should be compelled on an individu-

Louisiana Bar Journal October / November 2019 176 Vol. 67, No. 3 www.lsba.org al, rather than a class-wide, basis because tion of contra proferentem to construe damental emphasis upon the consent of there was no contractual basis for find- the arbitration agreement against Lamps the parties, citing its prior conclusion in ing that the parties intended to submit to Plus.16 The Court reasoned that because AT&T Mobility, L.L.C. v. Concepcion.25 class-wide arbitration.7 Varela, however, “contra proferentem seeks a result other The majority opinion prompted sepa- argued that the motion to compel arbitra- than the intent of the parties,” it cannot rate dissents from Justices Ginsburg, tion should be denied either because the be used to compel class arbitration in the Breyer, Sotomayor and Kagan. In her data breach was outside the scope of the absence of consent.17 The Court reversed dissent, Justice Ginsburg emphasized employment relationship and, therefore, the judgment of the lower courts and that the FAA was intended to allow par- outside the scope of the arbitration agree- remanded the case to the 9th Circuit to ties with roughly equal bargaining power ment, or because the arbitration agree- compel bilateral individual arbitration in to arbitrate commercial disputes, not to ment itself was unconscionable.8 lieu of class arbitration.18 govern contracts of adhesion.26 Justice Moreover, Varela asserted that, should In formulating its holding, the Court Ginsburg criticized the majority’s con- the arbitration agreement be found both recited its precedent in Stolt-Nielsen, sent-focused reasoning as ironic because valid and applicable, the court should wherein the Court held that a court can- it “impos[ed] individual arbitration on compel class-wide, rather than individu- not compel class arbitration of an arbitra- employees who surely would not choose al, arbitration because the agreement did tion agreement that is silent on that mat- to proceed solo.”27 not waive class-wide arbitration. Varela ter.19 The Court reiterated the reasons for Joining Justice Ginsburg’s dissent in argued that the language providing that its holding in Stolt-Nielsen, emphasizing full, Justice Sotomayor wrote separately “all claims” be submitted to arbitra- that class arbitration forgoes many of the to challenge the proposition established tion was broad enough to include class benefits, such as greater efficiency and over the past decade of the Court’s prec- claims, or alternatively, was ambiguous lower costs, associated with bilateral ar- edents that the “‘shift from bilateral ar- enough to trigger the principle of con- bitration and, as stated in Stolt-Nielsen, bitration to class-action arbitration’ im- tra proferentem.9 The district court ac- implicates “serious due process con- poses such ‘fundamental changes,’ that cepted Varela’s argument, finding that cerns by adjudicating the rights of absent class-action arbitration ‘is not arbitration because the language of the arbitration members of the plaintiff class” with only as envisioned by the’ Federal Arbitration agreement was at least ambiguous with limited judicial review.20 In that case, the Act (FAA).”28 Justice Sotomayor fur- regard to class claims, and because the Court reasoned that due to the “crucial ther categorized class actions as merely principle of contra proferentem dictates differences” between class and bilateral a “procedural device” to which an em- that ambiguities within a contract should arbitration, there is “reason to doubt” ployee “should not be expected to realize be construed against its drafter, the ambi- that parties have consented to class-wide that she is giving up access” by signing guity should be construed against Lamps arbitration, and courts, therefore, cannot an arbitration agreement.29 Plus.10 Therefore, the district court com- infer such consent “absent an affirmative Joined in full by Justices Ginsburg and pelled arbitration on a class-wide basis ‘contractual basis for concluding that the Breyer and in part by Justice Sotomayor, and the U.S. 9th Circuit Court of Appeals party agreed to do so.’”21 Ruling that Justice Kagan emphasized in her dissent affirmed.11 Stolt-Nielsen is controlling, the Court her belief that the language of the con- The U.S. Supreme Court granted cer- concluded that “[l]ike silence, ambiguity tract was comprehensive in scope and un- tiorari to determine whether the Federal does not provide a sufficient basis to con- ambiguously included class arbitration.30 Arbitration Act (FAA) bars an order com- clude that parties to an arbitration agree- Justice Kagan concluded that even if the pelling class arbitration when an agree- ment agreed to ‘sacrifice [ ] the principal contract was ambiguous, the even-hand- ment is “ambiguous” as to its availabil- advantage of arbitration.’”22 Remarking ed principle of contra proferentem would ity.12 In a 5-4 opinion authored by Chief upon the relationship of this conclusion dictate the same result — authorizing Justice Roberts, the Court held that an to past decisions regarding arbitration, class arbitration.31 However, the major- ambiguous agreement fails to “provide the Court noted that its conclusion here ity opinion advises that this is “far from the necessary ‘contractual basis’ for com- “aligns with [the Court’s] refusal to in- the watershed Justice Kagan claims it to pelling class arbitration.”13 Extending fer consent when it comes to other fun- be. Rather, it is consistent with a long line its prior holding in Stolt-Nielsen S.A. v. damental arbitration questions,” such as of cases holding that the FAA provides AnimalFeeds International Corp., the whether parties have authorized arbitra- the default rule for resolving certain am- Court reasoned that because class arbi- tors to resolve gateway questions.23 biguities in arbitration agreements. For tration fundamentally differs from bilat- The Court noted too that the FAA pre- example, we have repeatedly held that eral arbitration and sacrifices its princi- empts state law where principles of state ambiguities about the scope of an arbitra- pal advantages, more than ambiguity is law stand as an obstacle to accomplishing tion agreement must be resolved in favor required to ensure the parties consented the full purposes of the FAA.24 Repeating of arbitration.”32 to class-wide arbitration.14 Emphasizing its axiom that arbitration is a matter of The Supreme Court’s holding in this the fundamental principle that “[a]rbitra- consent, the Court reasoned that because case can be seen as a marked extension tion is strictly a matter of consent,”15 the contra proferentem is a rule of construc- of its decision in Stolt-Nielsen nearly a Court rejected the 9th Circuit’s applica- tion, it must give way to the FAA’s fun- decade ago, holding that a contract that

Louisiana Bar Journal October / November 2019 176 Vol. 67, No. 3 www.lsba.org Louisiana Bar Journal October / November 2019 177 Vol. 67, No. 3 www.lsba.org is silent on the issue of class arbitration that Louisiana courts are governed by these deci- The Court granted certiorari to determine whether, cannot provide the necessary basis for sions. Aguillard v. Auction Management Corp., 908 under the FAA, a party to a contract can avoid arbi- So.2d 1, 40 (La. 2005), superseded by La. C.C.P. tration by claiming that the overall contract is ille- compelling class arbitration. There, the art. 2083, as amended by 2005 La. Acts, No. 205 § gal. The Court held that unless an arbitration clause Court reasoned that due to the fundamen- 1, effective Jan. 1, 2006, with respect to the right to is itself directly and independently challenged tal importance of consent in arbitration, interlocutory appeal (adopting the Supreme Court’s as unenforceable, the validity of the contract as a the FAA required more than silence to interpretation of federal arbitration law and holding whole is a matter for the arbitrator, rather than the that a “strong presumption of arbitrability” exists courts, to decide. support an order compelling class arbi- in Louisiana). The Louisiana Binding Arbitration 34. 569 U.S. 564 (2013). In that case, a primary tration. Here, the Court has clarified fur- Law, La. R.S. 9:4201, largely tracks the language care doctor contracted with a care network; the doc- ther that an ambiguous agreement does of the FAA. tor initiated a class action, on behalf of himself and not qualify for class arbitration. 5. The six separate opinions are the major- other medical providers. The contract contained ity by Chief Justice Roberts, a concurring opinion an arbitration clause which stated that “[n]o civil Despite the Court’s several rulings by Justice Thomas, and four separate dissents by action concerning any dispute arising under this restricting the availability of class arbi- Justices Ginsburg, Breyer, Sotomayor and Kagan. Agreement shall be instituted before any court.” tration, the Court has, however, in recent 6. Lamps Plus, 139 S.Ct. at 1413. The parties agreed that the arbitrator had the au- years consistently issued decisions in 7. Varela v. Lamps Plus, Inc., No. CV 16-577- thority to interpret the arbitration provision. The DMG (KSX), 2016 WL 9110161, at *1, *6 (C.D. arbitrator concluded that the clause encompassed support of arbitration, such as Buckeye Cal. July 7, 2016), aff’d, 701 F. App’x 670 (9 Cir. any action, including class actions. The defendant Check Cashing, Inc. v. Cardegna;33 2017), rev’d and remanded, 139 S.Ct. 1407, 203 moved to vacate that decision, arguing that the ar- Oxford Health Plans, L.L.C. v. Sutter;34 L.Ed. 2d 636 (2019), and vacated, 771 F. App’x bitrator had exceeded his authority. The Court held Rent-A-Center, West v. Jackson;35 and 418 (9 Cir. 2019), and rev’d and remanded, 71 F. unanimously that an arbitrator does not exceed his Ap’x 418 (9 Cir. 2019). authority by deciding that the parties agreed to class Hall Street Associates, L.L.C. v. Mattel, 8. Id. at *3. arbitration based on general contractual language Inc..36 Other appellate courts have ap- 9. Id. Contra proferentem is defined as “[t]he requiring arbitration of any dispute. More broadly, proved of arbitration of matters in newer doctrine that, in the interpretation of documents, the Court signaled that, under the FAA, a court can- arenas, such as of an ERISA retirement ambiguities are to be construed unfavorably to the not overrule an arbitrator even if the arbitrator’s 37 drafter.” Black’s Law Dictionary (11th ed. 2019). interpretation was likely erroneous. plan. 10. Id. at *7. 35. 561 U.S. 63 (2010). 11. See, Varela v. Lamps Plus, Inc., 701 F. App’x 36. 552 U.S. 576 (2008). There, toy manufac- FOOTNOTES 670, 672 (9 Cir. 2017), cert. granted, 138 S.Ct. turer Mattel was sued by its landlord, Hall Street 1697, 200 L.Ed. 2d 948 (2018), and rev’d and re- Associates. The arbitration agreement contained 1. 139 S.Ct. 1407 (2019). manded, 139 S.Ct. 1407, 203 L.Ed. 2d 636 (2019), a provision stating that “if the arbitrator’s conclu- 2. Customers of AT&T brought a class action and vacated, 771 F. App’x 418 (9 Cir. 2019). sions of law are erroneous,” a district court had the lawsuit against the telecommunications company 12. Lamps Plus, 139 S.Ct. at 1412. authority to overturn the arbitrator’s decision. This alleging a relatively small fraud — the company 13. Id. at 1415 (quoting Stolt-Nielsen S.A. provision would grant a court considerable author- was charging sales tax on the retail value of alleged- v. AnimalFeeds Int’l Corp., 559 U.S. 662, 684, ity over an arbitrator’s ruling that was not granted ly “free” phones. AT&T moved to compel arbitra- (2010)). by the FAA. The FAA only provides for narrow tion, which would effectively bar the action based 14. Id. (The majority stated that its ruling here circumstances in which a court can override an ar- on the contract’s no-class action clause. California is “a conclusion that follows directly from our deci- bitration decision. The Supreme Court invalidated had a conflicting law that provided that arbitration sion in Stolt-Nielsen.”) the contractual provision at issue, holding that the clauses were only enforceable if they allowed for 15. Id. (quoting Granite Rock Co. v. Teamsters, FAA’s restrictions on review are exclusive and not class actions. In a 5-4 ruling, the Court upheld the 561 U.S. 287, 299 (2010)) (alteration in original). susceptible to contractual expansion or modifica- mandatory arbitration clause in the AT&T consum- 16. Id. at 1417. tion by the parties to an agreement. er contracts barring customers from bringing class 17. Id. at 1417-18. 37. Dorman v Charles Schwab Corp., No. 18- actions, even though this effectively negated relief 18. Id. at 1419. 15281 (9 Cir. Aug. 20, 2019), where the court re- for consumers bringing claims for small amounts. 19. Id.at 1415. versed its 1984 ruling that ERISA disputes are not The Court’s holding also signified that the Federal 20. Id. at 1416. arbitrable. Arbitration Act (FAA) preempted any state law that 21. Id. (quoting Stolt-Nielsen, 559 U.S. at 687 ran contrary to the objectives of the FAA. (emphasis in original)). Anthony M. DiLeo is a life 3. Epic, a software company, had an arbitration 22. Id. (quoting AT&T Mobility, L.L.C. v. member of the American agreement in its employee contracts that required Concepcion, 563 U.S. 333, 348, 131 S.Ct. 1740 Law Institute, served as individualized arbitration for any employment- (2011)). a law clerk for Judge based dispute. The clause also waived the employ- 23. Id. at 1416-17 (citing Green Tree Financial John Minor Wisdom and ees’ right to participate in or benefit from class or Corp. v. Bazzle, 539 U.S. 444, 452, 123 S.Ct. 2402, Judge Alvin B. Rubin, and collective proceedings. An employee sued Epic in 156 L.Ed. 2d 414 (2003)). received an LLM from federal court under the Fair Labor Standards Act as 24. Id. at 1415. Harvard Law School after a representative of a class, and Epic moved to dis- 25. Id. at 1417-18 (citing Concepcion, 563 U.S. graduating from Tulane miss the complaint. The district court held that the at 348). University Law School. arbitration clause was unenforceable because it vio- 26. Lamps Plus, 139 S.Ct. at 1420 (Ginsburg, He is the co-reporter for lated the employees’ right to engage in “concerted J., dissenting). the ADR Committee of the activities” under the National Labor Relations Act 27. Id. at 1421. Louisiana State Law Institute for arbitration law. (NLRA). The 7th Circuit affirmed, and the Court 28. Id. at 1427 (Sotomayor, J., dissenting). He has taught arbitration at Tulane Law School as granted certiorari to determine whether such a 29. Id. an adjunct professor. For this article, the author clause violated the NLRA. The Court held 5-4 that 30. Id. at 1428-30 (Kagan, J., dissenting). greatly appreciates the assistance of Dara Mouhot arbitration agreements in employment contracts 31. Id. at 1430. (JD, 2021) of the Tulane Law Review. (tdileo1@ requiring individualized proceedings were enforce- 32. Id. at 1418-19 (internal citations omitted). gmail.com; Ste. 2405, 201 St. Charles Ave., New able and were not a violation of the NLRA. 33. 546 U.S. 440 (2006). There, the plaintiff Orleans, LA 70170) 4. The Louisiana Supreme Court has ruled claimed that a loan contract was illegal and that, as a result, the arbitration clause was unenforceable.

Louisiana Bar Journal October / November 2019 178 Vol. 67, No. 3 www.lsba.org DEFENSEDEFENSE EXPENSES EXPENSES CLAIMSCLAIMS EXPENSES EXPENSES DEFENSEDEFENSE & &CLAIMS CLAIMS EXPENSES EXPENSES

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Louisiana Bar Journal October / November 2019 178 Vol. 67, No. 3 www.lsba.org 800.906.9654800.906.9654Louisiana Bar Journal October / November 2019 179 Vol. 67, No. 3 www.lsba.orgGilsbarPRO.comGilsbarPRO.com When Disability Law Meets Private Land Use Regulations:

Understanding Emerging Constraints on Private Land Use Controls

By Marc L. Roark

rica Hernandez and Paulo door” pick up service by a public-school the neighborhood streets. The Regaldos Regaldo filed a claim against bus. The complaint alleges that the HOA claim that the HOA violates the Fair their neighborhood home- board voted to prevent access to the bus Housing Act because of its refusal to owners’ association (HOA), because of potential wear and tear to make a “reasonable modification” to its Ethe Golf Course Estates Homeowners the neighborhood roads and because of rules. Association.1 The Regaldos’ daughter safety concerns for residential children. Cities, neighborhoods and develop- suffers from severe autism that makes Nevertheless, the complaint also alleges ers generally understand that various her prone to “wander” when left alone. that the association regularly allows sources of property control impact the As a part of her Individual Education other large vehicles such as UPS trucks, spaces they regulate. Zoning regula- Plan, the school provided “door-to- FedEx trucks and garbage trucks onto tions, neighborhood covenants and

Louisiana Bar Journal October / November 2019 180 Vol. 67, No. 3 www.lsba.org other servitudes are cost-based regula- different strands of disability law and ing choice on the basis of a number of tory schemes that owners and develop- highlights some of the ongoing cases in vulnerable categories, including per- ers take into account when developing the United States. sons with handicaps. Under the FHA, land. When these properties interact in a discriminatory practice includes any the public sphere, such as where public Sources of Disability “refusal to permit reasonable modifica- accommodations are required, building Law that Impact Building tions, at the expense of the handicapped schemes typically include greater ac- person, or reasonable accommodations cess points to ensure that use is avail- Restrictions in rules, policies, practices or services, able for all persons. In Louisiana, most and failures in the design and construct of the cases dealing with a property There are three primary sources of of dwellings scheduled for first occu- owner’s interaction with disability law disability law in the United States — pancy.”18 the Americans with Disabilities Acts of have dealt with public accommodations 9 requirements,2 landlord-tenant disputes3 1990 and 2008 (ADA), the Fair Housing 10 Three Potential Conflict and zoning challenges.4 However, pri- Act and its amendments (FHA) and section 504 of the Rehabilitation Act of Areas for HOAs and vate developments, such as neighbor- 11 hood covenants (known colloquially as 1973 (RHA). Each of these acts work Disability Law HOAs), have often flown under the ra- to protect persons with disabilities from dar of these requirements since the gen- discrimination if the disability falls into One aspect of HOAs is the vast eral view is that accessibility require- the definition under those acts. The amount of control that HOA rules im- ments found in building schemes do not ADA’s definition of a disability is: pose on owners of property. These rules apply to privately owned property. are premised on the idea that homeown- In Louisiana, HOAs fall under the (A) a physical or mental impair- ers voluntarily consent to the rules when category of building restrictions. The ment that substantially limits one they purchase property in the neighbor- or more major life activities of hood or when they form the association Civil Code defines building restrictions 19 as “charges imposed by the owner of an such individual; with other homeowners. However, dis- immovable in pursuance of a general (B) a record of such an impair- abilities are not planned events and can plan governing building standards, spec- ment; or arise after individuals have invested in 5 (C) being regarded as having such a home. It can impact the homeowners, ified uses and improvements.” These 12 restrictions are “sui generis real rights” an impairment. their children or their parents who are and may be enforced by the association living in the family home. or other landowners in the association.6 The FHA uses the term “handicap” Still, HOAs can be particularly pro- They may impose requirements that as the basis for determining whether its tective over common environments impact area controls on property (such provisions reach a particular disadvan- and aesthetic features of homes. These as lot size, height or square footage of tage and is defined as a “a physical or concerns generally can be grouped into buildings attached to the land); or uses mental impairment which substantially three major areas dealing with persons of the property (such as pet allowances, limits one or more of such person’s ma- with disabilities — vehicle access to vehicle allowances or whether someone jor life activities, a record of such handi- the home; architectural features added cap or being regarded as having such a to the home; and control over common can operate a business from the prop- 13 erty).7 handicap.” The definition of disability areas of the community. in the RHA references the definition of Yet, as cases around the country have 14 demonstrated, there is another path to- disability in the ADA. Accommodation of Homeowner wards land use restraints in the form of Title III of the ADA addresses the Association Rules for Persons the Fair Housing Act’s requirements that provision of “goods, services, facilities, with Disabilities — Vehicles “reasonable modifications” be permitted privileges, advantages, or accommoda- In Kuhn v. McNarry Estates tions” of any place of public accommo- Homeowners Association, the plaintiffs to ensure that disabled persons are not 15 unfairly deprived of housing. Several dation. This applies to private com- (the Kuhns) were parents of a severely recent cases have demonstrated how the munities and country clubs that provide disabled adult daughter (Khrizma) with Fair Housing Act raises conflict with space for public events, to residential Down Syndrome, autism, chronic di- private land use schemes. Nearly 20- homes that include a home office, busi- gestive problems, scoliosis, who had 25% of the U.S. population has a fam- nesses where members of the public are the intellectual capacity and function- invited and common areas of housing ality of a 2-year-old child. In 2005, the ily member with a disability that limits 16 mobility; these issues will become even facilities. The RHA specifically pro- Kuhns purchased a home in McNarry more frequent, bringing private com- hibits discrimination by programs or Estates, an exclusive neighborhood that 8 activities that receive federal financial imposed two distinctive sets of home munities into conflict with HOAs. This 17 20 article unpacks some of the points of assistance from a federal agency. The ownership rules on owners. For the tension that exist between HOAs and FHA prohibits discrimination in hous- first five years, Khrizma lived with the

Louisiana Bar Journal October / November 2019 180 Vol. 67, No. 3 www.lsba.org Louisiana Bar Journal October / November 2019 181 Vol. 67, No. 3 www.lsba.org Kuhns part-time, but, starting in 2010, aesthetics of the new addition. The fam- depends on who has access to the com- she moved in with her parents full time. ily first requested permission to build munity areas. For example, if the associ- In 2014, complications in her conditions the sunroom in 2011 and spent a year ation regularly opens its facilities to the required the Kuhns to provide around- providing information to the HOA ar- public, its restroom must comply with the-clock care, including quick access chitectural board before they were sum- public accommodation requirements. to a toilet and access to a shower for marily denied. Eventually, the family If the access is limited to members of cleanup after use of the toilet. Because sold their home at a loss, frustrated that the community, the association must not of the curvature of her spine, Khrizma the process dragged on so long. The create obstacles that make it difficult for required transportation in a prone posi- Hollises’ children required the sunroom those individuals to enjoy the amenities tion. Her doctors recommended that the for therapeutic play and for in-home of the community. Kuhns purchase a specially equipped physical therapy. Despite this fact, the In 2018, the Village of Valleybrook RV with toilet and shower facilities and HOA denied the claims, alleging that the Homeowners Association in a place for Khrizma to rest. For easy association had an obligation to uphold Pennsylvania settled claims with four access, her doctor recommended that “architectural standards for everyone in residents who filed a HUD complaint the RV be parked in the driveway. The the neighborhood.” The HOA ultimately for failure to provide handicapped park- HOA’s rules prohibited RVs from being agreed to settle the suit for $156,000. ing spaces. The residents requested the parked in driveways within the subdivi- In a similar suit, in 2009, Cindy and spaces in 2017, and the association told sion. Ian Block bought a townhouse in the the residents that they would be required Khrizma’s doctor provided detailed Carriages at Allyn’s Landing neighbor- to pay for reserved spaces, per the writ- written reasons why the family required hood and later installed a wheelchair ten policy regarding handicapped park- an accommodation of the existing rules. ramp.23 Cindy Block’s mother was ing access. The residents refused, and Nevertheless, both the neighborhood wheelchair-bound. The neighborhood the association in turn refused to des- board and the separate homeowners’ association required that the Blocks ignate spaces.24 HUD found that the re- association denied the Kuhns’ request paint the wheelchair ramp the same fusal was a direct violation of the FHA for a reasonable accommodation. The color as the siding of the home and re- amendments in 2009. In fact, HUD in Kuhns filed a fair housing claim against move the ramp if and when it was no publications produced by the depart- both associations in 2016, after they longer needed. In September 2010, Ms. ment specifically identified requiring were forced to sell their home, purchase Block’s mother died and the HOA sent handicapped residents to pay the costs a higher-priced home and vacate their the Blocks a letter ordering them to re- for signage relating to a handicapped home more than a month before clos- move the ramp. In the meantime, Ms. parking spot to be a violation of the ing on the new home. The extra expense Block, who is legally blind, acquired FHA. caused them to sell their car and had det- a letter from her optometrist request- rimental effects on Mr. Kuhn’s health. In ing that they be allowed to keep it. The Conclusion January 2016, a federal judge sided with HOA then set forth additional condi- the Kuhns, finding that the HOAs had tions on the Blocks keeping the ramp, Advising an HOA can be fraught indeed engaged in housing discrimina- including that they remove the ramp pri- with peril. The residents and govern- tion. The Kuhns later settled with the or to attempting to sell their townhouse. ing actors often believe the rules help HOA for $300,000 plus other costs. The Blocks brought a lawsuit claiming maintain an orderly (and economically A similar dispute in Las Vegas21 housing discrimination and eventually viable) community that they chose to found an HOA liable for failure to make settled with the HOA for $20,000 plus live in. In many regards, they are given reasonable accommodation and permit attorney’s fees associated with the ac- broad authority to enforce covenants a family to park an ambulance used to tion. laid out when the subdivision was cre- transport their disabled son to and from ated and modify those rules as needed. his doctor appointments, despite their Control over Common Areas of However, HOAs are not immune rules prohibiting extra vehicles. the Community from restraint themselves. Despite some The HOA’s common areas can be- views that HOAs are governments with- Accommodation of Homeowner come a source of conflict that navigate out limits, the various provisions de- Association Rules for Persons between the territories of the associa- signed to protect disabled persons from with Disabilities — Design Rules tion as a private actor and the extent to housing discrimination is proving to be In 2012, Charles and Melanie which the association is bound to pro- a formidable check on an HOA’s seem- Hollis filed a federal lawsuit against vide access as a public accommodation. ingly limitless power to deny homeown- the Chestnut Bend Homeowners Sometimes, the common areas may in- er use of property. Because the regulato- Association for its denial of a right to terfere with the ability to access public ry scheme that protects disabled persons build a therapeutic sunroom onto their accommodations, like transportation, is federal, the Supremacy Clause of the home.22 The HOA denied the Hollises’ bathroom access or parking. When and Constitution requires that HOA schemes request for a modification based on the what the association is bound to provide

Louisiana Bar Journal October / November 2019 182 Vol. 67, No. 3 www.lsba.org make reasonable adjustments. An HOA Cir. 2014). 2018) available at: www.reviewjournal.com/news/ would be wise to take seriously claims 5. La. Civ.C. art. 775. feds-announce-settlement-with-las-vegas-hoa- 6. La. Civ.C.. art. 779; id. cmt. (c) (“every over-ambulance/ (noting that the suit brought and by disabled persons for reasonable mod- landowner in a subdivision is adversely affected settled by HUD resulted in a $65,000 settlement in ifications and accommodations. If well by violations and has a substantive right as well favor of the family). documented and the request is a reason- as procedural standing to bring an action.”); 22. Hollis v. Chestnut Bend Homeowners able accommodation, failure to make Lakeshore Property Owner’s Assoc. v. Delatte, Ass’n, 760 F.3d 531 (6 Cir. 2014). 579 So.2d 1039, 1044 (La. App. 4 Cir. 1991), writ 23. The N.C. Human Relations Comm’n v. a modification of rules for a disabled denied, 586 So.2d 560. Carriages at Allyn’s Landing Owners Ass’n, Inc., resident could cost the association and 7. See, Gail Stephenson, “Good Fences 13-823 (N.C. Ct. App. 2014). its homeowners thousands of dollars in Make Good Neighbors (But Only if the HOA 24. “Valleybrook group to pay $31k in fines, damages and attorney’s fees. Approves),” 2 The Baton Rouge Lawyer 8, 8 (Jan./ disabled complaint,” Daily Times (10/27/18) Feb. 2019). available at: https://independentamericancom- 8. Robin Malloy, Land Use Law and Disability: munities.com/2018/11/03/hoa-pays-31k-installs- FOOTNOTES Planning and Zoning for Accessible Communities handicapped-parking. 7 (2017). 1. Hernandez v. Golf Course Estates 9. 42 U.S.C. § 12101 et seq. Marc L. Roark is an Homeowners Ass’n, 6:18-cv-00932 (D. Ore. 10. 42 U.S.C. § 3601 et seq. associate professor 5/29/18). 11. 29 U.S.C. § 701 et seq. and Senior Fellow at 2. Covington v. McNeese State Univ., 996 12. 42 U.S.C. §12102(1). Southern University Law So.2d 667 (La. App. 3 Cir. 2008), writ denied, 3 13. 42 U.S.C. §3602(h). Center. He focuses in So.3d 491 (La. 2009); London v. E. Baton Rouge 14. 29 U.S.C. § 705 (9). property law, land use Par. Sch. Bd., 134 So.3d 623 (La. App. 1 Cir. 15. 42 U.S.C. § 12181 et seq. and housing issues, in- 2013). 16. Kalani v. Castle Village, L.L.C., 14 F. cluding the law relating 3. See e.g., Mazzini v. Strathman, 140 So.3d Supp. 3d 1359 (E.D. CA 2014). to homelessness public 253 (La. App. 4 Cir. 2014); Renewal Homes v. 17. 29 U.S.C. § 705 (9). housing. He is a member Laneheart, 2017 WL 4700825 (La. App. 4 Cir. 18. Hollis v. Chestnut Bend Homeowners of the Louisiana, North 2017); Foster v. Tinnea, 705 So.2d 782 (La. App. 1 Assoc., 760 F.3d 531 (6 Cir. 2014). Carolina and District of Cir. 1997); Riser v. H.Y. Bell Mem’l Apartments, 19. 4 Louisiana Civil Law Treatise § 10.3. Columbia Bars. ([email protected]; 2 Roosevelt 669 So.2d 689 (La. App. 2 Cir. 1996). 20. Kuhn v. McNarry Estates Homeowners Steptoe Dr., Baton Rouge, LA 70813) 4. See, e.g., Esplanade Ridge Civic Ass’n v. Ass’n, 228 F.Supp. 3d 1142 (D. Ore. 2017). City of New Orleans, 136 So.3d 166 (La. App. 4 21. “Feds Announce Settlement with Las Vegas HOA,” Las Vegas Review Journal (Oct. 30,

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

The Louisiana State Bar Association/Louisiana Bar Foundation’s Community Action Committee is assisting the ‘WEEN DREAM program in the collection of new and/or slightly used Halloween costumes for children in need. Law firms, attorneys and legal professionals wishing to donate should drop off costumes at the Louisiana Bar Center, 601 St. Charles Ave., New Orleans, on Nov. 1-8, during business hours (8:30 a.m.-4:30 p.m.). Costumes may simply be placed in bags. There is no labeling or sorting process required. ‘WEEN DREAM volunteers will handle the sorting process and match the costumes to children for Halloween 2020. (Costumes that were donated after Halloween 2018 are being distributed to children for 2019.) NEW ORLEANS BATON ROUGE MONROE SHREVEPORT Krystal Bellanger Rodriguez Baton Rouge Bar Association Alicia Reitzell Dana Southern Louisiana State Bar Association 544 Main St. The Reitzell Law Firm, LLC The Shreveport Bar Association 1900 N 18th St., Ste 406 601 St. Charles Ave. Baton Rouge, LA 70809 Monroe, LA 71201 625 Texas St. New Orleans, LA 70130 (225)344-4803 (318) 570-4444 Shreveport, LA 71101 (504)566-1600 (318)222-3643

COVINGTON LAFAYETTE ALEXANDRIA LAKE CHARLES Clint Hanchey Pam Landaiche Alainna Mire Shayna Sonnier Pugh Accardo, Attorneys at Law Lafayette Bar Association Alexandria City Hall Hunter, Hunter & Sonnier, LLC 2607 Johnston St. 112 Innwood Dr., Ste. B Lafayette, LA 70503 915 Third St. 1807 Lake St., Covington, LA 70433 (337)237-4700 Alexandria, LA 71301 Lake Charles LA 70601-5771 (985)246-2306 (337)436-1600

Louisiana Bar Journal October / November 2019 182 Vol. 67, No. 3 www.lsba.org Louisiana Bar Journal October / November 2019 183 Vol. 67, No. 3 www.lsba.org Association ACTIONS ELECTIONS... HOD... SPECIALIZATION

Elections: Self-Qualifying Deadline is Oct. 22; Voting Begins Nov. 18 Several leadership positions are cally succeed to chair-elect in 2021-22. Jefferson Davis, St. Martin, St. Mary and open in the 2019-20 Louisiana State Current YLD Secretary Graham H. Ryan Vermilion, one member; District 3C, par- Bar Association (LSBA) election cycle, will succeed to 2020-21 YLD chair-elect. ishes of Allen, Avoyelles, Evangeline, including positions on the Board of Other positions to be filled include: Grant, LaSalle, Natchitoches, Rapides, Governors, LSBA House of Delegates, Board of Governors (three-year Sabine, St. Landry and Vernon, one Nominating Committee, Young Lawyers terms beginning at the adjournment of member; District 3D, parishes of Bossier Division and American Bar Association the 2020 LSBA Annual Meeting and and Caddo, one member; and District House of Delegates. ending at the adjournment of the 2023 3E, parishes of Bienville, Caldwell, Deadline for return of nominations LSBA Annual Meeting) — one member Catahoula, Claiborne, Concordia, by petition and qualification forms is each from the First, Second, Third and DeSoto, East Carroll, Franklin, Jackson, Monday, Oct. 22. First election ballots Fifth Board Districts. Lincoln, Madison, Morehouse, Ouachita, will be available to members on Monday, LSBA House of Delegates (two-year Red River, Richland, Tensas, Union, Nov. 18. terms beginning at the commencement Webster, West Carroll and Winn, one H. Minor Pipes III of New Orleans of the 2020 LSBA Annual Meeting and member. and John E. McAuliffe, Jr. of Metairie ending at the commencement of the 2022 Young Lawyers Division. Secretary have been nominated for 2020-21 LSBA LSBA Annual Meeting) — one delegate (2020-21 term), nominee shall be a resi- president-elect and 2020-22 LSBA trea- from each of the First through Nineteenth dent of or actively practicing law in any surer, respectively. The president-elect Judicial Districts, plus one additional del- parish in Louisiana, based on preferred will automatically assume the presidency egate for every additional district judge mailing address. Petitions for nomina- in 2021-22. in each district. tion must be signed by 15 members of According to the president-elect ro- Nominating Committee (15 mem- the Young Lawyers Division. Also to be tation, the nominee must have his/her bers, one-year terms beginning at elected, one representative each from the preferred mailing address in Nominating the adjournment of the 2020 LSBA First, Second, Third, Fifth and Seventh Committee District 1 (parishes of Annual Meeting and ending at the ad- districts (two-year terms). Orleans, Plaquemines, St. Bernard and journment of the 2021 LSBA Annual American Bar Association House St. Tammany). Meeting) — District 1A, Orleans Parish, of Delegates (must be members of the According to the treasurer rotation, four members; District 1B, parishes American Bar Association) — two del- the nominee must have his/her pre- of Plaquemines, St. Bernard and St. egates from the membership at large and ferred mailing address in Nominating Tammany, one member; District 2A, one delegate from that portion of the Committee District 2 (parishes of East Baton Rouge Parish, two mem- membership not having reached his/her Ascension, Assumption, East Baton bers; District 2B, Jefferson Parish, 35th birthday by Aug. 4, 2020 (that dele- Rouge, East Feliciana, Iberville, two members; District 2C, parishes of gate being the “young lawyer delegate”). Jefferson, Lafourche, Livingston, Pointe Ascension, Assumption, East Feliciana, All LSBA members may vote for both Coupee, St. Charles, St. Helena, St. Iberville, Lafourche, Livingston, Pointe sets of candidates. The delegates will James, St. John the Baptist, Tangipahoa, Coupee, St. Charles, St. Helena, St. serve two-year terms, beginning with the Terrebonne, Washington, West Baton James, St. John the Baptist, Tangipahoa, adjournment of the 2020 ABA Annual Rouge and West Feliciana). Terrebonne, Washington, West Baton Meeting and expiring at the adjournment Also, the Young Lawyers Division Rouge and West Feliciana, one mem- of the 2022 ABA Annual Meeting, as (YLD) Council nominated Danielle L. ber; District 3A, Lafayette Parish, one provided in Paragraph 6.4(e) of the ABA Borel of Baton Rouge for 2020-21 YLD member; District 3B, parishes of Acadia, Constitution. secretary. The secretary will automati- Beauregard, Calcasieu, Cameron, Iberia,

Louisiana Bar Journal October / November 2019 184 Vol. 67, No. 3 www.lsba.org 19TH ANNUAL LOUISIANA STATE BAR ASSOCIATION COMPLEX LITIGATION SYMPOSIUM

NOVEMBER 8, 2019 – NEW ORLEANS

Richard J. Arsenault, Seminar Chair Our speakers include the nation’s leading complex litigation academicians, jurists, and members of the bar from both sides of the “ V.” These are the folks that are presiding over, writing about, and litigating the most significant cases in the country. They are the who’s who of the complex litigation bench and bar.

This year’s speakers include:

Hon. Eldon Fallon • Hon. Carl Barbier • Hon. Patrick Hanna • Hon. Glenn Norton • Hon. Ken Starr Prof. Lynn Baker • Prof. Jaime Dodge • Prof. Arthur Miller • Prof. James Wren Thomas Anapol • Khaldoun Baghdadi • Jeff Bassett • Dustin Carter • Dawn Chmielewski Tony Clayton • Lori Cohen • Special Master Kenny DeJean • Brian Devine • Bob Drakulich Nick Drakulich • Val Exnicios • Yvonne Flaherty • John Hooper • Jane Lamberti • Mark Lanier Rachel Lanier • Lynn Luker • Hunter Lundy • Todd Mathews • Jennifer Moore Melanie Muhlstock • James Murdica • Joe Rice • Special Master Gary Russo • John Sherk Raymond Silverman • Joe Thorpe • Aimee Wagstaff • James Williams For more information and to register online, please visit: www.lsba.org/CLE Louisiana Bar Journal October / November 2019 184 Vol. 67, No. 3 www.lsba.org Louisiana Bar Journal October / November 2019 185 Vol. 67, No. 3 www.lsba.org LBLS Accepting Requests for House Certification Applications Resolution The Louisiana Board of Legal for the year in which application is made Specialization (LBLS) is accepting ap- and the examination is administered: Deadline is plications for certification in five areas ► Appellate Practice — 15 hours of — appellate practice, estate planning approved appellate practice. Dec. 18 and administration, family law, health ► Estate Planning and Administration law and tax law — from Nov. 1, 2019, — 18 hours of approved estate planning The Louisiana State Bar Association’s through Feb. 28, 2020. and administration. (LSBA) Midyear Meeting is scheduled Also, the LBLS will accept applica- ► Family Law — 18 hours of ap- for Thursday through Saturday, Jan. tions for business bankruptcy law and proved family law. 16-18, 2020, at the Renaissance Hotel consumer bankruptcy law certification ► Health Law — 15 hours of ap- in Baton Rouge. The deadline for sub- from Jan. 1 through Sept. 30, 2020. proved health law. mitting resolutions for the House of In accordance with the Plan of Legal ► Tax Law — 18 hours of approved Delegates meeting is Wednesday, Dec. Specialization, a Louisiana State Bar tax law. 18. (The House will meet on Jan. 18, Association member in good standing ► Bankruptcy Law — CLE is 2020.) who has been engaged in the practice of regulated by the American Board of Resolutions by House members and law on a full-time basis for a minimum Certification, the testing agency. committee and section chairs should of five years may apply for certification. With regard to applications for busi- be mailed to LSBA Secretary Patrick Further requirements are that, each year, ness bankruptcy law and consumer A. Talley, Jr., c/o Louisiana Bar Center, a minimum percentage of the attorney’s bankruptcy law certification, although 601 St. Charles Ave., New Orleans, practice must be devoted to the area of the written test(s) is administered by LA 70130-3404. All resolutions pro- certification sought, and the attorney the American Board of Certification, at- posed to be considered at the meeting must pass a written examination to dem- torneys should apply for approval of the must be received on or before Dec. onstrate sufficient knowledge, skills and LBLS simultaneously with the testing 18. Resolutions must be signed by the proficiency in the area for which certifi- agency to avoid delay of board certifica- author. Also, copies of all resolutions cation is sought and provide five favor- tion by the LBLS. Information concern- should be emailed (in MS Word format) able references. Peer review is used to ing the American Board of Certification to LSBA Executive Assistant Jen France determine that an applicant has achieved will be provided with the application at [email protected]. recognition as having a level of compe- form(s). tence indicating proficient performance Anyone interested in applying for handling the usual matters in the special- certification should contact LBLS LBLS ty field. Refer to the LBLS standards for Specialization Director Mary Ann the applicable specialty for a detailed de- Wegmann, email maryann.wegmann@ Recertification scription of the requirements: www.lsba. lsba.org, or call (504)619-0128. For Applications Due by org/specialization. more information, go to www.lsba.org/ In addition to the above, applicants specialization. Nov. 1 must meet a minimum CLE requirement The Louisiana Board of Legal Specialization (LBLS) mailed re- certification applications on Oct. 1 NOPSI Hotel is a 217-room luxury hotel to specialists whose certification is located in the former headquarters of the due to expire on Dec. 31, 2019. The New Orleans Public Service Inc. is an completed application and the $100 architecturally unique, industrially elegant check (payable to “Louisiana Board building. Featuring 58 suites, 14,000 sq. ft. of Legal Specialization”) should be of meeting space, Above The Grid rooftop mailed or delivered to the LBLS of- bar and pool, Henry’s Gin Bar and Yard and a fice c/o Specialization Director Mary modern dining experience in Public Service. Ann Wegmann, 601 St. Charles Ave., New Orleans, LA 70130, no later than 317 BARONNE ST, NEW ORLEANS, LA • Friday, Nov. 1, 2019, to avoid penal- T 844 439 1463 • NOPSIHOTEL.COM ties. For questions, contact Wegmann at @NOPSIHOTEL (504)619-0128 or email maryann.weg- [email protected].

Louisiana Bar Journal October / November 2019 186 Vol. 67, No. 3 www.lsba.org LastChance_alaCarte19Ad_Layout 1 7/1/2019 1:16 PM Page 1

Louisiana’s most popular CLE event Baton Rouge and New Orleans

Perhaps you have all the CLE credits you need for the year ... or maybe not? No matter which, you’ll enjoy FOR YOUR CALENDAR: these holiday conferences. Excellent December 2019 CLE opportunities CLE LAST CLE ConferenceCHANCE à la December 12-13, 2019 Hyatt Regency New Orleans Carte December 30-31, 2019

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With more than 20 dynamic credit courses Offered concurrently in Baton Rouge from which to choose, it’s no wonder that and New Orleans, these highly attended LAJ’s Last Chance CLE Conference is two-day seminars are the most convenient Louisiana’s ultimate CLE experience. way to squeeze in those last few remaining You will be impressed with the highly CLE requirements for 2019 or jump ahead acclaimed national and Louisiana faculty for 2020. Regardless of the location that’s assembling for this conference. you choose, you’ll be treated to a truly You choose the courses you want and remarkable lineup. earn at least 13 CLE credits, including Ethics Embassy Suites, Baton Rouge and Professionalism. Windsor Court Hotel, New Orleans

For additional information about either conference, visit www.lafj.org or call 225-383-5554.

Louisiana Bar Journal October / November 2019 186 Vol. 67, No. 3 www.lsba.org Louisiana442 Europe Bar Journal Street October• Baton /Rouge, November Louisiana 2019 70802-6406187 • 225-383-5554Vol. 67, No. 3 www.lsba.org• www.lafj.org • [email protected] PRACTICEManagement By Elizabeth LeBlanc Voss SPLITTING FEES: ENGAGEMENT AGREEMENT

recent Formal Opinion fers guidance on how to appropriately must advise and obtain a waiver from on fee-splitting issued navigate the division of fees when that the client to avoid Rule 1.7 personal by the American Bar occurs. conflict of interest regarding the distri- Association (ABA) Standing ABA Formal Opinion 487 states that bution of the funds. CommitteeA on Ethics and Professional the successor firm in a contingency-fee For successor firms in a contingency Responsibility warrants a look at matter must notify the client in writing representation, we recommend that at- Louisiana Rule of Professional Conduct of the continuing obligation to pay the torneys discuss the client’s obligations 1.5 regarding fees. original lawyer. Because the notice must to pay former counsel during your en- The Opinion presents a hypothetical be in writing, the engagement agree- gagement agreement review with the where the client has a written contingen- ment can easily be used to satisfy this client. When explaining that the Rules cy-fee agreement with a lawyer, who the obligation. While the details of recovery of Professional Conduct mandate that client terminates without cause. The cli- and future division of fees is not known attorney’s fees be reasonable, address ent then retains a successor firm on the at the onset of the representation, the the likelihood of a negotiation process same contingency terms. The question successor firm can address the client’s between current and former counsel to at hand is whether the successor firm obligation to his original lawyer and a arrive at a fair division of fees. Also, has an obligation to disclose to the client potential fee-split in the fee section of ask for the client’s permission and get a the original lawyer’s potential claim and the engagement agreement. waiver when finalizing the engagement entitlement to a portion of the recovery. In Louisiana, the dismissed attorney contract. Louisiana Rule 1.5(e) addresses the would likely be entitled to recover in division of fees between lawyers at un- quantum meruit for legal services pro- Elizabeth LeBlanc Voss related firms when they are working in vided prior to termination. See, Saucier serves as professional liability loss prevention concert on the representation. In that v. Hayes Dairy Products, Inc., 373 So.2d supervisor and counsel situation, fee-splitting is allowed if the 102 (La.1979); see generally, Restatement for the Louisiana State client agrees in writing to the dual rep- of Law (Third) Governing Lawyers § 40 Bar Association (LSBA) resentation as well as the fee schedule (2000). If termination was for cause, the under the employ- ment of Gilsbar, Inc. in of the respective lawyers, provided the fee would likely be proportionately re- Covington. She received total fee is reasonable and each lawyer duced and possibly eliminated. her BA degree in political renders meaningful legal services to The engagement agreement also is science from Louisiana the client in the matter. However, the the ideal place to address a waiver that State University and her JD degree from South Texas College of Law, Louisiana rule does not expressly ad- likely will be required to effect the di- Houston. She is a member of the LSBA and the dress how fees must be split when one vision of fees. If negotiation with the State Bar of Texas. She writes and presents ethics firm replaces another in a contingency original lawyer becomes necessary, as and professionalism CLE programs on behalf of representation. The ABA Opinion of- it typically does, the successor lawyer the LSBA. Email [email protected]. LSBA Member Services The mission of the Louisiana State Bar Association (LSBA) is to assist and serve its members in the practice of law. The LSBA offers many worthwhile programs and services designed to complement your career, the legal profession and the community. In the past several years, the legal profession has experienced many changes. The LSBA has kept up with those changes by maturing in structure and stature and becoming more diverse and competitive. For more information, visit www.lsba.org

Louisiana Bar Journal October / November 2019 188 Vol. 67, No. 3 www.lsba.org Attention-Deficit/Hyperactivity Disorder • Schizophrenia • Schizoaffective Disorder • Bipolar I Disorder • Bipolar II Disorder • Cyclothymic Disorder • Disruptive Mood Dysregulation Disorder • Major Depressive Disorder • Persistent Depressive Disorder (Dysthymia) • Separation Anxiety Disorder • Social Anxiety Disorder • Phobias • Panic Disorder • Agoraphobia • Generalized Anxiety Disorder • Obsessive Compulsive Disorder • Body Dysmorphic Disorder • Hoarding Disorder • Posttraumatic Stress Disorder • Acute Stress Disorder • Adjustment Disorders • Dissociative Identity Disorder • Alcohol Use Disorder • Opioid Use Disorder • Stimulant Use Disorder • Neu- rocognitive Disorders • Paranoid Personality Disorder • Schizoid Personality Disorder • Schizotypal Personality Disorder • Antisocial Personality Disorder • Borderline Personality Disorder • Histrionic Personality Disorder • Narcissistic Personality Disorder • Avoidant Personality Disorder • Dependent Personality Disorder • Obsessive- Compulsive Personality Disorder • Attention-Deficit/Hyperactivity Disorder • Schizophrenia • Schizoaffective Disorder • JLAP is a comprehensive professional clinical program • Bipolar I Disorder • Bipolar II Disorder • Cyclothymic Disorder • Disruptive Mood Dysregulation Disorder • Major Depressive Disorder • Persis- tent Depressive Disorder (Dysthymia) • Separation Anxiety Disorder • Social Anxiety Disorder • Phobias • Panic Disorder • Agoraphobia • Generalized Anxiety Disorder • Obsessive Compulsive Disorder • Body Dysmorphic Disorder • Hoarding Disorder • Posttraumatic Stress Disorder • Acute Stress Disorder • Adjustment Disorders • Dissociative Identity Disorder • Alcohol Use Disorder • Opioid Use Disorder • Stimulant Use Disorder • Neu- rocognitive Disorders • Paranoid Personality Disorder • Schizoid Personality Disorder • Schizotypal Personality Disorder • Antisocial Personality Disorder • Borderline Personality Disorder • Histrionic Personality Disorder • Narcissistic Personality Disorder • Avoidant Personality Disorder • Dependent Personality Disorder • Schizoaffective Disorder • Bipolar I Disorder • Bipolar II Disorder Major Depressive Disorder • Persistent Depressive Disorder (Dysthymia) • Separation Anxiety Disorder • Social Anxiety Disorder • Phobias • Panic Disorder • Agoraphobia • Anxiety Disorder • JLAP’s professional counselors assist with all types of mental health issues • Body Dysmorphic Disorder • Hoarding Disorder • Posttraumatic Stress Disorder • Acute Stress Disorder • Adjustment Disorders • Dissociative Identity Disorder • Alcohol Use Disorder • Opioid Use Disorder • Stimulant Use Disorder • Neurocognitive Disorders • Paranoid Personality Disorder • Schizoid Personality Disorder • Schizotypal Personality Disorder • Antisocial Personality Disorder • Borderline Personality Dis- order • Histrionic Personality Disorder • Narcissistic Personality Disorder • Avoidant Personality Disorder • Dependent Personality Disorder • Obsessive-Compulsive Personality Disorder • Attention-Deficit/Hy- peractivity Disorder • Schizophrenia • Schizoaffective Disorder • Bipolar I Disorder • Bipolar II Disorder • Cyclothymic Disorder • Disruptive Mood Dysregulation Disorder • Major Depressive Disorder • Persis- tent Depressive Disorder (Dysthymia) • Separation Anxiety Disorder • Social Anxiety Disorder • Phobias • All calls to JLAP are privileged and confidential • Panic Disorder • Agoraphobia • Generalized Anxiety Disorder • Obsessive Compulsive Disorder • Body Dysmorphic Disorder • Hoarding Disorder • Posttraumatic Stress Disorder • Acute Stress Disorder • Adjustment Disorders • Dissociative Identity Disorder • Alcohol Use Disorder • Opioid Use Disorder • Stimulant Use Disorder • Neurocognitive Disorders • Paranoid Personality Disorder • Schizoid Personality Disorder • Schizotypal Personality Disorder • Antisocial Personality Disorder • Borderline Personality Disorder • Histrionic Personality Disorder • Narcissistic Personality Disorder • Avoidant Personality Disorder • Dependent Personality Disorder • Obsessive-Compulsive Personality Disorder • Atten- tion-Deficit/Hyperactivity Disorder • Schizophrenia • Schizoaffective Disorder • Bipolar I Disorder • Bipolar II Disorder • Cyclothymic Disorder • Disruptive Mood Dysregulation Disorder • Major Depressive Disorder • Call JLAP at (985)778-0571 or visit www.louisianajlap.com

Louisiana Bar Journal October / November 2019 188 Vol. 67, No. 3 www.lsba.org Louisiana Bar Journal October / November 2019 189 Vol. 67, No. 3 www.lsba.org Focus on Diversity 18 Students Complete 2019 “Suit Up for the Future” Chief Justice Bernette Joshua Johnson and Hon. Tiffany G. Chase welcome Suit Up student interns. Program From left, Lora L. Ghawaly; Lannette Richardson; Lauren Bennett; Quentin C. Stalker; Madison G. Campbell; Jamia S. Brown; Miles M. Francis; Belema A. Derefaka; Hon. Tiffany G. Chase, Louisiana Court of Appeal, Fourth Circuit; Ally D. Flakes; Issis M. Haydel; Ning (Nina) Xi; Javier he Louisiana State Bar A. Calderon-Yanar; Casey L. Shaefer; Chief Justice Bernette Joshua Johnson, Louisiana Supreme Association’s (LSBA) Suit Up for Court; Taylor P. Wardsworth; Lizzie N. Flores-Miranda; Miles I. Lee; Ann M. Rome; Rachael J. the Future High School Summer Hahn; Christian J. Olivier; Kai Z. L. Haley; Benjamin J. Burstain; Jessica A. Burrell; Christian A. Falcone; Trinity A. Holmes; and Ashley Berry. Legal Institute and Internship TProgram had another successful year with 18 student interns completing the program. The three-week program (June 10-28) included Lemelle, U.S. District Court, Eastern District abridged law school sessions; shadowing op- of Louisiana; Hon. Terri F. Love, Louisiana 4th portunities at law firms, courts and agencies; Circuit Court of Appeal; Courington Kiefer & and field trips to courts and law schools. Sommers, L.L.C; Liskow & Lewis; SHIELDS| During the program, students prepared MOTT L.L.P.; Simon, Peragine, Smith written memorandums to support their oral & Redfearn, LLP; Stone Pigman Walther arguments, which were presented on the last Wittmann LLC; Orleans Public Defenders day to a panel of judges. Office; Orleans Parish District Attorney’s The LSBA Suit Up for the Future Program, Office; Michelle D. Craig, Transcendent Law a partnership with Just the Beginning, the Group; Scott, Vicknair, Hair & Checki, LLC; Louisiana Bar Foundation and Louisiana and Entergy Services, Inc. law schools, is an award-winning Diversity ► Judge Panel: Hon. Dana M. Douglas LSBA Pipeline to Diversity and Outreach Pipeline program and a 2013 American Bar and Hon. Karen Wells Roby, U.S. District Subcommittee Co-Chair Scherri N. Guidry, left, 15th JDC Public Defenders Office; 2019-20 LSBA Association Partnership recipient. Court, Eastern District of Louisiana; Hon. D. Nicole Sheppard (Section J), Orleans Parish President Robert A. Kutcher, center; and Hon. The success of the program is credited to Karen Wells Roby, Chief Magistrate Judge, U.S. the dedicated volunteers. Civil District Court; Hon. Dale N. Atkins and District Court, Eastern District of Louisiana wel- ► LSBA Pipeline to Diversity and Hon. Roland L. Belsome, Jr., Louisiana 4th comed students on Day One. Outreach Subcommittee Co-Chair Scherri N. Circuit Court of Appeal. Guidry, 15th JDC Public Defenders Office; ► Field Trip Presenters: Chief Justice LSBA Pipeline to Diversity and Outreach Bernette Joshua Johnson and Associate Justice Subcommittee member Angela White-Bazile, Marcus R. Clark, Louisiana Supreme Court; executive counsel to Louisiana Supreme Court Hon. Roland L. Belsome, Jr., Hon. Tiffany Chief Justice Bernette Joshua Johnson; and G. Chase, Hon. Sandra C. Jenkins and Hon. 2019-20 LSBA President Robert A. Kutcher. Terri F. Love, Louisiana 4th Circuit Court of Appeal; Hon. Camille G. Buras (Section H) ► Instructors: Professor Emily A. Bishop, Loyola University New Orleans College of Law; and Hon. Tracey Flemings-Davillier (Section Professors Jeffrey C. Brooks and Raymond T. B), Orleans Parish Criminal District Court; Diamond, Louisiana State University Paul M. Loyola University New Orleans Law School; Hebert Law Center; Advocacy Fellow Annie Tulane University; Tulane University Law Sherri N. Guidry, left and LSBA Pipeline to F. Scardulla, LSU Paul M. Hebert Law Center; School; and Trina S. Vincent and Miriam D. Childs, Louisiana Supreme Court. Diversity and Outreach Subcommittee member and Professor Roederick C. White, Southern Angela White-Bazile. University Law Center. ► Interns: Ashley Berry; Adrija Bhattacharjee; Lauren Bennett; Belema ► Shadowing Employers: Hon. Nakisha ► Lunch Presenters: Denia S. Ervin-Knott and Hon. Piper D. Griffin, Derefaka; Ally Flakes; Asia Hentkowski; Kai Aiyegbusi, J. McCaleb Bilbro, Kieone H. Orleans Parish Civil District Court; Hon. Lee Johnson, extern to Hon. Karen Wells Roby; Cochran, Kristen A. Lee, Janell McFarland- V. Faulkner, Jr., 24th JDC; Hon. Ivan L.R. and Lannette Richardson. Forges and Micah C. Zeno.

Louisiana Bar Journal October / November 2019 190 Vol. 67, No. 3 www.lsba.org Matthew R. Slaughter, Phelps Dunbar, LLP, Suit Up student interns on the final day of the program. Seated from left, afternoon session oral argument fifth from left, assisted student interns with winner (prosecution) Issis M. Haydel; Casey L. Schaefer; Lizzie N. Flores-Miranda; best memo winner memorandum prep. (prosecution) Taylor P. Wardsworth; Ning (Nina) Xi; morning session oral argument winner (defense) Ann M. Rome; afternoon session oral argument winner (defense) Rachael J. Hahn; and best memo winner (de- fense) Javier A. Calderon-Yanar. Standing from left, Christian J. Olivier; Madison G. Campbell; Benjamin J. Burstain; morning session oral argument winner (prosecution) Jessica A. Burrell; Miles I. Lee; Kai Z.L. Haley; Jamia S. Brown; Quentin C. Stalker; Christian A. Falcone; and Trinity A. Holmes.

Lunch presenter LSBA Diversity Committee Co- Chair Denia Aiyegbusi, Deutsch Kerrigan LLP, fourth from left, with student interns.

Afternoon session judge panel with Hon. D. Nicole Sheppard, Orleans Parish Civil District Court (top row left) and Hon. Dale N. Atkins (top row right) and Hon. Roland L. Belsome, Jr., Louisiana Court of Appeal, Fourth Circuit (bottom row far right).

Morning session judge panel, Hon. Dana M. Douglas and Hon. Karen Wells Roby, Chief Kimberly Jones, MS, JD, Director Law Emily Wojna-Hodnett, Assistant Director of Magistrate Judge, U.S. District Court, Eastern Admissions, fourth from left, welcomes students Admission, far right, welcomes students to Tulane District of Louisiana. to Loyola University New Orleans College of Law. University Law School.

“Legal Research and Writing” presenter Professor Emily A. Bishop, center, “Oral Argument Workshop” presenters Annie Scardulla, third from left, Westerfield Fellow, director of the Lawyering Program, Loyola University Advocacy Fellow, LSU Paul M. Hebert Law Center, and Jeffrey C. Brooks, New Orleans College of Law, with student interns. fourth from left, assistant professor of Professional Practice, with student interns.

“Constitutional Law” presenter Raymond T. Diamond, center, director of “Contracts” presenter Professor Roederick C. White, fifth from left, Vice the Pugh Institute for Justice, James Carville Alumni Professor of Law and Chancellor for Academic and Student Affairs, Southern University Law Jules F. and Frances L. Landry Distinguished Professor of Law, LSU Paul M. Center, with student interns. Hebert Law Center, with student interns.

Louisiana Bar Journal October / November 2019 190 Vol. 67, No. 3 www.lsba.org Louisiana Bar Journal October / November 2019 191 Vol. 67, No. 3 www.lsba.org Crossword PUZZLE By Hal Odom, Jr. OFFICIAL STATE

1 2 3 4 5 6 7 ACROSS DOWN

1 Site of Official State “Christmas 1 Having personal autonomy in the Country” festival (9) or self-determination (9) 8 9 6 ___-au-Lait, Official State 2 Kind of jurisdiction (2, 3) freshwater fish (3) 3 Renoir or Rodin (7) 8 Official State boat (7) 4 Nevertheless (4, 2) 9 ___ pelican, Official State bird (5) 5 Something to kick or break (5) 10 11 12 10 Uteri (5) 6 In her own right, not by virtue 11 Kind of seedless mandarin orange, of marriage (Latin) (3, 4) not the Official State citrus fruit (7) 7 Atlanta-based news channel (3) 13 14 15 16 13 Word of preference (6) 12 Official State reptile (9) 15 In addition (2, 4) 14 One genre of Shakespearean 17 18 Rapidly shrinking salt lake (4, 3) drama (7) 20 Healthy notation on a menu (2, 3) 16 Aten, in ancient Egyptian art (3, 4) 18 19 20 21 22 ___ de lis, Official State symbol (5) 17 “___, Black Sheep” (3, 3) 23 Fried and sugared pastry, not 19 Cancel, as a space trip (5) the Official State donut (7) 21 Café du___, noted place to 24 Kind of fishing (3) order 23 across (5) 22 23 25 Official State mammal (5, 4) 22 Very loud, musically (3)

24 25 Answers on page 229.

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

Area Coordinator Contact Info Area Coordinator Contact Info Alexandria Area Richard J. Arsenault (318)487-9874 Monroe Area John C. Roa (318)387-2422 [email protected] (318)452-5700 [email protected] Baton Rouge Area Ann K. Gregorie (225)214-5563 Natchitoches Area Peyton Cunningham, Jr. (318)352-6314 [email protected] [email protected] Cell (318)332-7294 Covington/ Suzanne E. Bayle (504)524-3781 New Orleans Area Helena N. Henderson (504)525-7453 Mandeville Area [email protected] [email protected] Denham Springs Area Mary E. Heck Barrios (225)664-9508 Opelousas/Ville Platte/ John L. Olivier (337)662-5242 [email protected] Sunset Area [email protected] (337)942-9836 Houma/Thibodaux Area Danna Schwab (985)868-1342 (337)232-0874 [email protected] River Parishes Area Judge Jude G. Gravois (225)265-3923 Jefferson Parish Area Pat M. Franz (504)455-1986 [email protected] (225)265-9828 [email protected] Cell (225)270-7705 Lafayette Area Josette Gossen (337)237-4700 Shreveport Area Dana M. Southern (318)222-3643 [email protected] [email protected] Lake Charles Area Melissa A. St. Mary (337)942-1900 [email protected] For more information, go to: www.lsba.org/goto/solace.

Louisiana Bar Journal October / November 2019 192 Vol. 67, No. 3 www.lsba.org Louisiana Bar Journal October / November 2019 192 Vol. 67, No. 3 www.lsba.org Louisiana Bar Journal October / November 2019 193 Vol. 67, No. 3 www.lsba.org DISCIPLINE Reports REPORTING DATES 8/5/19 & 8/5/19

REPORT BY DISCIPLINARY COUNSEL Public matters are reported to protect the public, inform the profession and deter misconduct. Reporting date Aug. 5, 2019.

Decisions sent, issued a public reprimand by Gregory Cook, Baton Rouge, (2018- order of the Court on June 3, 2019. B-1076) Previously suspended for six Evelyn Adams, Grove Hill, AL, JUDGMENT FINAL and EFFECTIVE months, with all but 30 days deferred, (2019-OB-0624) Transferred from dis- on June 3, 2019. Gist: Respondent neg- subject to a one-year period of unsuper- ability inactive status to active status ligently endorsed a third-party’s name to vised probation. After receiving evidence by order of the Court on May 1, 2019. a settlement check. the attorney engaged in the practice of law JUDGMENT FINAL and EFFECTIVE Lynden James Burton, New Iberia, during the period of suspension, the Court on May 1, 2019. (2019-B-0893) Suspended from the made the deferred portion of the suspen- Evelyn Adams, Grove Hill, AL, practice of law for a period of two sion immediately executory. The attor- (2019-B-0625) Interimly suspended years, retroactive to Sept. 22, 2017, ney will be suspended for six months by order of the Court on May 1, 2019. by order of the Court on June 17, 2019. by order of the Court on June 3, 2019. JUDGMENT FINAL and EFFECTIVE JUDGMENT FINAL and EFFECTIVE JUDGMENT FINAL and EFFECTIVE on May 1, 2019. on June 17, 2019. Gist: Guilty plea to on June 17, 2019. Gist: Respondent en- failure to file tax returns and acknowl- John Christopher Alexander, Continued next page Baton Rouge, (2019-B-0664) By con- edged tax evasion and filing false returns.

Advice and Counsel Concerning Legal C Judicial Ethics Defense of Lawyer C Judicial Discipline Matters Representation in Bar Admissions Proceedings pÅÜáÑÑI pÅÜÉÅâã~å C tÜáíÉ ääé www.sswethicslaw.com

Leslie J. Schiff Steven Scheckman Julie Brown White Damon S.Manning Over30 Years Experience Former Special Counsel Former Prosecutor, Former Investigator, Prosecutor Disciplinary Defense Counsel Judiciary Commission ('94-'08) Disciplinary Counsel ('98-'06) Disciplinary Counsel ('98-'14) 117 W. LandryStreet 650 Poydras Street, Suite 2760 11715 Bricksome Ave, Suite B-5 201 NWRailroad Ave, Suite 302 Opelousas, Louisiana 70570 NewOrleans, Louisiana 70130 Baton Rouge, Louisiana 70816 Hammond, Louisiana 70401 Phone (337) 942-9771 Phone (504) 309-7888 Phone (225) 293-4774 Phone (985) 602-9201 Fax(337) 942-2821 Fax(504) 518-4831 Fax(225) 292-6579 Fax(985) 393-1130 [email protected] [email protected] [email protected] [email protected]

Louisiana Bar Journal October / November 2019 194 Vol. 67, No. 3 www.lsba.org STEVE HERMAN GravierHouse.com HAS BEEN CALLED A LOT OF NAMES BY OTHER LAW FIRMS. IF YOU NEED AN

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504.581.4892 hhklawfirm.com New Orleans, LA Louisiana Bar Journal October / November 2019 194 Vol. 67, No. 3 www.lsba.org Louisiana Bar Journal October / November 2019 195 Vol. 67, No. 3 www.lsba.org Discipline continued from page 194 Forrest E. Guedry, Baton Rouge, Ernest L. Johnson, Baton Rouge, (2019-B-0558) Suspended on consent (2019-B-0682) Suspended on consent gaged in a conflict of interest. from the practice of law for one year from the practice of law for six months, Donald C. Douglas, Jr., Mandeville, and one day, fully deferred, subject fully deferred, by order of the Court on (2019-B-0984) By consent, issued a to probation, by order of the Court on June 26, 2019. JUDGMENT FINAL and public reprimand by order of the Court May 28, 2019. JUDGMENT FINAL and EFFECTIVE on June 26, 2019. Gist: on June 26, 2019. JUDGMENT FINAL EFFECTIVE on May 28, 2019. Gist: Knowingly made a false statement of fact and EFFECTIVE on June 26, 2019. Gist: Criminal conduct (DWI). or law to a tribunal or failed to correct a Respondent engaged in conduct prejudi- Todd A. Harris, Mansura, (2019-B- false statement of material fact or law pre- cial to the administration of justice. 0827) Previously deferred suspension of viously made to the tribunal by the lawyer; Maurice R. Franks, Baker, (2018- one year and one day made executory failed to disclose legal authority known to B-1483) Reciprocal discipline disbar- by order of the Court on June 17, 2019. the lawyer to be directly adverse to the ment by order of the Court on May 28, JUDGMENT FINAL and EFFECTIVE position of the client; engaged in conduct 2019; rehearing denied by the Court on on June 17, 2019. Gist: Failure to comply prejudicial to the administration of justice; June 26, 2019. JUDGMENT FINAL and with the terms of his probation agreement. and violated the Rules of Professional EFFECTIVE on June 26, 2019. Gist: Kevin Lovell James, Baton Rouge, Conduct. Respondent abandoned his law practice; (2019-B-0653) Suspended on consent to Yolanda J. King, New Orleans, (2019- converted his clients’ funds to his own a one-year-and-one-day period of sus- B-0356) Suspended from the practice use; and failed to cooperate in the disci- pension, with all but 30 days deferred, of law for one year, retroactive to her plinary proceedings. followed by a two-year period of super- March 14, 2016, interim suspension, Patrick A. Giraud, Chalmette, (2019- vised probation, by order of the Court by order of the Court on May 20, 2019. B-1646) Suspended for one year and one on June 3, 2019. JUDGMENT FINAL JUDGMENT FINAL and EFFECTIVE day, with all but six months deferred, and EFFECTIVE on June 3, 2019. Gist: on May 20, 2019. Gist: Misdemeanor by order of the Court on June 26, 2019. Respondent mismanaged her client trust criminal conviction involving statements JUDGMENT FINAL and EFFECTIVE account and failed to cooperate with the as to her domicile in connection with on July 10, 2019. Gist: Conversion of cli- Office of Disciplinary Counsel in - itsin qualifying as a candidate for public office. ent funds from his trust account. vestigation. Continued next page

Legal & Judicial Ethics

William “Billy” M. Ross has over 15 years of experience defending lawyers and judges in disciplinary matters, advising lawyers on their ethical duties, and providing representation in legal fee disputes and breakups of law firms. He is committed to advancing the legal profession through his work for clients, involvement with the LSBA, and participation in presentations on ethics and professional responsibility. William M. Ross [email protected] 909 Poydras Street, Suite 2500 New Orleans, Louisiana 70112 (504) 523-1580 www.stanleyreuter.com

Louisiana Bar Journal October / November 2019 196 Vol. 67, No. 3 www.lsba.org DISCIPLINARY REPORT: UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA The following is a verbatim report of the matters acted upon by the United States District Court for the Eastern District of Louisiana, pursuant to its Disciplinary Rules. This information is published at the request of that court, which is solely responsible for the accuracy of its content. This report is as of Aug. 5, 2019. Respondent Disposition Date Filed Docket No. Daniel E. Becnel III [Reciprocal] Suspension. 6/21/19 19-9435 Philip Martin Kleinsmith [Reciprocal] Disbarment. 6/4/19 19-2433 Victor Roy Loraso III Interim suspension. 6/21/19 19-9436 Christine Yvonne Voelkel Interim suspension. 6/4/19 19-3442 Doris McWhite Weston [Reciprocal] Suspension. 6/21/19 19-9794 Robert Wiegand II [Reciprocal] Suspension fully deferred. 7/11/19 19-10231

Discipline continued from page 196 Plead no contest felony possession of including neglect of his clients’ legal Victor Roy Loraso, Baton Rouge, a Schedule II CDS and to first-offense matters, failure to refund unearned fees, (2019-B-0688) Permanently disbarred, DWI. failure to place advanced deposits for on consent, by order of the Court on Mark G. Simmons, Baton Rouge, costs and expenses into his client trust June 17, 2019. JUDGMENT FINAL and (2019-B-0908) Probation revoked and account, and failure to return his clients’ EFFECTIVE on June 17, 2019. Gist: the previously deferred portion of the files upon termination of the representa- Respondent was convicted of possession one-year-and-one-day suspension has tion; also practiced law while ineligible and distribution of child pornography. been made executor by order of the to do so, failed to cooperate with the Jack F. Owens, Jr., Harrisonburg, Court on June 26, 2019. JUDGMENT Office of Disciplinary Counsel in its in- (2019-OB-0985) Permanently resigned FINAL and EFFECTIVE on June 26, vestigation; and was charged with issu- in lieu of discipline by order of the Court 2019. ing worthless checks. on June 26, 2019. JUDGMENT FINAL Gregory Joseph St. Angelo, New and EFFECTIVE on June 26, 2019. Orleans, (2019-B-1102) Interimly sus- Admonitions (private sanctions, often Ashton DeVan Pardue, Springfield, pended by order of the Court on July with notice to complainants, etc.) issued (2019-B-0901) Suspended on consent 22, 2019. JUDGMENT FINAL and since the last report of misconduct from the practice of law for one year EFFECTIVE on July 22, 2019. involving: by order of the Court on June 17, 2019. Channing J. Warner, Gretna, JUDGMENT FINAL and EFFECTIVE (2019-B-0663) Suspended on consent Rule 1.1(a) — Competence. on June 17, 2019. Gist: Neglected legal for a period of three years by order of Rule 1.2 — Failure to timely litigate. matter; failed to communicate with cli- the Court on June 3, 2019. JUDGMENT Rule 1.3 — Failure to act with dili- ent; engaged in personal relationship FINAL and EFFECTIVE on June 3, gence. with current client; and violated the 2019. Gist: Respondent’s suspension is Rule 8.4(c) — Dishonest conduct. Rules of Professional Conduct. a result of serious attorney misconduct, Lucretia Patrice Pecantte, New Iberia, (2019-B-0892) Suspended from the practice of law for a period of two years, retroactive to Sept. 22, 2017, Christovich & Kearney, llp by order of the Court on June 17, 2019. attorneys at law JUDGMENT FINAL and EFFECTIVE on June 17, 2019. Gist: Guilty plea to Defense of Ethics Complaints and Charges failure to file tax returns and acknowl- E. Phelps Gay Kevin R. Tully edged tax evasion and filing false returns. Matthew V. Shelton, Alexandria, H. Carter Marshall (2019-B-0791) Suspended on consent Mary Beth Meyer from the practice of law for three years, with all but six months deferred, sub- (504)561-5700 ject to probation, by order of the Court 601 Poydras Street, Suite 2300 on June 17, 2019. JUDGMENT FINAL New Orleans, LA 70130 and EFFECTIVE on June 17, 2019. Gist:

Louisiana Bar Journal October / November 2019 196 Vol. 67, No. 3 www.lsba.org Louisiana Bar Journal October / November 2019 197 Vol. 67, No. 3 www.lsba.org MEDIATION AND ARBITRATION of COMPLEX DISPUTES

Guy deLaup Ross Foote Phelps Gay Thomas Hayes, III

Patrick Ottinger Mike Patterson Larry Roedel Marta-Ann Schnabel

Mike McKay, a partner at the Stone Pigman Walther Wittmann L.L.C. law firm in Baton Rouge, has represented plaintiffs and defendants in a wide variety of matters ranging from intellectual property to community property; wills and trusts to antitrust; RICO to ERISA; class actions to derivative actions; product liability to professional liability; and more. He has been mediating casualty and commercial disputes for over 20 years and is a member of the American Arbitration Association’s Roster of Arbitrators. He received a graduate certificate from the Straus Institute of Dispute Resolution at Pepperdine Law School and is currently completing Pepperdine’s LLM program. He served as president of the Louisiana State Bar Association 2004-2005.

BATON ROUGE | NEW ORLEANS | LAFAYETTE | SHREVEPORT | MONROE : 866.367.8620 : [email protected] : pattersonresolution.com Louisiana Bar Journal October / November 2019 198 Vol. 67, No. 3 www.lsba.org RECENTDevelopments ADMINISTRATIVE LAW TO TRUSTS

under its prototype OTA authority con- test, see Bruce L. Mayeaux, “Recent tained within 10 U.S.C. § 2371b. In re- Developments: Corrective Action, sponse to the solicitation, multiple inter- Presumption of Good Faith and Speculation Administrative ested vendors, including MD Helicopters, at the GAO,” 65 La. B.J. 418 (2018). Law Inc., submitted “white papers” or offers. After a first round of evaluations, MD GAO Does Not Have Bid Protest Helicopters was not selected by the Army Jurisdiction Over OTAs — to continue into phase one of the OTA Generally There Actually is (Still) a competition. After receiving notice of its In its request for dismissal, the Army ar- Limit to GAO Bid Protest non-selection, MD Helicopters filed a pre- gued that the GAO does not have jurisdic- award bid protest with the Government tion to review bid protests of OTAs because Jurisdiction Accountability Office (GAO) alleging that such instruments are not considered “pro- the Army: (1) unreasonably evaluated its curement contracts” under the Competition MD Helicopters, Inc., B-417379, Apr. 4, offer, and (2) failed to promote small busi- in Contract Act of 1984 (CICA). Generally, 2019, 2019 CPD ¶ 120. ness participation pursuant to 10 U.S.C. under CICA, procurement contracts are In spring 2019, the U.S. Army issued § 2371b(d)(1). The Army requested the contracts entered into by the federal govern- an Other Transaction Agreement (OTA) GAO dismiss the bid protest for lack of ment for the procurement of goods and ser- for prototyping solicitation No. W911W6- jurisdiction. vices. See, 31 U.S.C. §§ 3551(1), 3552. In 19-R-0001 for the development of future For a discussion on what is a bid pro- the instant matter, while the Army may use attack reconnaissance aircraft prototypes

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Louisiana Bar Journal October / November 2019 198 Vol. 67, No. 3 www.lsba.org Louisiana Bar Journal October / November 2019 199 Vol. 67, No. 3 www.lsba.org a prototype OTA to procure goods or servic- Helicopters argued that the GAO’s Bid MD Helicopters, Inc., B-417379, at 4. es, an OTA does not fall under the auspices Protest Regulations actually allow an ex- This statement harked back to the GAO’s of CICA because OTAs draw authority pansive jurisdictional grant in 4 C.F.R. § earlier position that it reviews OTAs only to from a separate statute, 10 U.S.C. § 2371b. 21.5(m) when it provides that the “GAO see if an agency is properly using its statu- See, 10 U.S.C § 2371b(d)(1). Contrary to generally does not review protests . . . of tory OTA authority because of a challenge its recent decisions in ACI Techs., Inc., agreements other than procurement con- to that effect. As MD Helicopters was not B-417011, Jan. 17, 2019, 2019 CPD ¶ 24, tracts” and that the GAO should use this challenging the Army’s decision to use an and Oracle America, Inc., B-416061, May “considerable discretion” to hear its pro- OTA and opposed only the outcome of the 31, 2018, 2018 CPD ¶ 180, where the GAO test. See, MD Helicopters, Inc., B-417379, OTA competition, the GAO dismissed the appeared to be taking a more expansive Apr. 4, 2019, 2019 CPD ¶ 120 at 3 (em- bid protest for lack of jurisdiction. view of its jurisdictional grant under CICA, phasis in original). However, the GAO did This decision placed the GAO back the GAO agreed with the Army and strictly not find MD Helicopters’ argument- per in line with its earlier jurisdictional prec- interpreted its jurisdiction. suasive. Specifically, the GAO reiterated edent regarding OTAs as contained within In its decision, the GAO referenced its in its decision that the jurisdictional grant MorphoTrust USA, L.L.C., B-412711, basis for the dismissal as jurisdictional limi- was from Congress by way of CICA and May 16, 2016, 2016 CPD ¶ 133, or at least tations provided by Congress in CICA and not its Bid Protest Regulations. Hence, be- attempts to clarify its jurisdictional limi- under its own Bid Protest Regulations; spe- cause CICA limits the GAO’s bid protest tations in light of ACI Techs. and Oracle cifically, that it has jurisdiction to preside jurisdiction to procurement contracts and America. Potential government contrac- over bid protests concerning allegations of OTAs are not procurement contracts, the tors should be mindful of this restate- violations of procurement statutes or regu- GAO could not hear the bid protest. ment of GAO’s bid-protest jurisdictional lations by federal agencies in the award or Additionally, as a point of clarifica- limitations and consider other fora, such proposed award of procurement contracts. tion, the GAO commented that the use as COFC or the federal district courts, for See, 31 U.S.C. §§ 3551(1), 3552; 4 C.F.R. of the term “generally” in its Bid Protest protests of OTAs as the GAO has now § 21.1(a). The GAO noted that under this Regulations does not: made clear that it will not entertain those general jurisdictional limitation, however, protests. it would review a bid protest allegation connote some reserved discretion for that an agency is misusing its OTA author- [the] GAO to consider hearing cases Disclaimer: The views presented are those ity merely to procure goods and services. involving the award or proposed of the writer and do not necessarily represent See, 4 C.F.R. § 21.5(m); Blade Strategies, award of an OTA, or other non- the views of DoD or its components. L.L.C., B-416752, Sept. 24, 2018, 2018 procurement agreement. Rather, it CPD ¶ 327 at 2. In the instant bid protest, connotes that [the] GAO may, in —Bruce L. Mayeaux the GAO noted that MD Helicopters’ alle- limited circumstances, hear a protest Major, Judge Advocate gations involved the Army’s evaluation of that tangentially impacts an agency’s U.S. Army offers and award decisions and not its use of award or proposed award of other Member, LSBA Administrative its OTA authority under 10 U.S.C. § 2371b. than a procurement contract. Law Section In its opposition to the dismissal, MD

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Louisiana Bar Journal October / November 2019 200 Vol. 67, No. 3 www.lsba.org estate. For example, the debtor’s bankrupt- Approximately one month after rejecting cy counsel fees are typically considered its contract with Nabors, Whistler sent administrative expenses. Classification as Nabors a letter requesting a “demobili- Bankruptcy an administrative expense is important in zation” plan. This plan was required by Law bankruptcy because these expenses are Whistler’s federal regulator. Four months given repayment priority ahead of most after Whistler rejected the Nabors contract, other creditors. demobilization began. In Whistler, the 5th Circuit considered Nabors then asked the bankruptcy court 5th Circuit Allows whether the bankruptcy court conducted to classify its approximately $7 million the correct analysis when determining in pre-demobilization and demobiliza- Administrative Expense whether certain post-bankruptcy expenses tion expenses as administrative expenses. Claims for Costs were “administrative expenses.” The facts However, the bankruptcy court found that “Induced” by a Debtor- of the case are this: prior to filing bankrupt- many of Nabors’ expenses during the pre- cy, Whistler Energy II, L.L.C., contracted demobilization period were akin to Nabors in-Possession with Nabors OffshoreCorp. Nabors was to merely being available to provide services, provide a drilling rig to Whistler, as well if needed, rather than actually providing Nabors Offshore Corp. v. Whistler as related equipment and services. When those services. With the exception of ser- Energy II, L.L.C. (In re Whistler Energy Whistler entered bankruptcy, it rejected its vices specifically requested by Whistler, II, L.L.C.), ____ F.3d ____ (2019), 2019 contract with Nabors. Contract rejection the bankruptcy court found that a majority U.S. App. LEXIS 22337. is treated as a pre-bankruptcy breach of of Nabors’ pre-demobilization expenses The U.S. 5th Circuit Court of Appeals the agreement. 11 U.S.C. § 365(g)(1); see were not administrative expenses. Further, recently clarified the scope and definition also, § 502(g). the bankruptcy court found that none of of “administrative expenses” under 11 The parties then entered a “pre-demo- Nabors’ demobilization expenses were ad- U.S.C. § 503 of the Bankruptcy Code. For bilization” period — the timeframe before ministrative expenses because these costs non-bankruptcy practitioners, an “admin- equipment and infrastructure is removed did not benefit the bankruptcy estate. In to- istrative expense” is ordinarily a debt that from a drilling platform. During this time, tal, the bankruptcy court awarded Nabors arises post-bankruptcy that is related to, Nabors’ rig, equipment and some per- an administrative expense claim of only and usually beneficial to, the bankruptcy sonnel remained on Whistler’s platform. $897,024.

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Louisiana Bar Journal October / November 2019 200 Vol. 67, No. 3 www.lsba.org Louisiana Bar Journal October / November 2019 201 Vol. 67, No. 3 www.lsba.org The district court affirmed the -bank allow for more administrative expense pression of the case. Her answer suggested ruptcy court’s decision. claims, and the court’s analysis offers that the jurors had already discussed the The 5th Circuit then reversed the lower guidance on how to support such claims. case among themselves over the course of courts’ decision on pre-demobilization ex- the trial. The alternate stated, “Pretty much penses. Regarding demobilization costs, —Sarah E. Edwards from the opening statement, we had de- the court agreed that these expenses were a Member, LSBA Bankruptcy Law Section cided that the defendant wasn’t at fault.” consequence of Whistler’s rejection of the McGlinchey Stafford, P.L.L.C. The jury deliberated for approximately Nabors’ contract and did not benefit the es- Ste. 1200, 601 Poydras St. 15 to 20 minutes before returning a unani- tate. However, the court of appeals found New Orleans, LA 70130 mous verdict for the defendant, just as the that the bankruptcy court should have ana- alternate had said the jurors had previously lyzed whether pre-demobilization expens- decided. The court, with the parties’ con- es (1) benefitted the estate, and (2) whether Civil Law sent, and on the record, asked the jurors if Whistler induced the services giving rise they had discussed the case before delib- to these expenses, regardless of whether and erations. The procedure by which the court Nabors actually provided any services. Litigation went about questioning the jurors is not The second prong of this test, induce- evident from the opinion. The foreperson ment, is key in the 5th Circuit’s ruling. confirmed that the jurors did not know they With this statement, the 5th Circuit clari- were not allowed to discuss the case while fied that a creditor may prove entitlement Shhhh . . . No Talking in the jury room; on the contrary, they felt to administrative priority when its post- a “duty” to discuss the case over the course Gotch v. Scooby’s ASAP Towing, L.L.C., bankruptcy expenses are triggered by “in- of the trial in order to reach a verdict. 19-0030 (La. 6/26/19), 2019 La. LEXIS ducement [from the debtor-in-possession] Another juror explained that some ju- 1624. via the knowing and voluntary post-peti- rors formed opinions from the beginning, This case arose from a jury trial relative tion acceptance of desired goods or ser- but none of them had made their minds up to injuries sustained from an automobile vices.” Id. at *13. “one hundred percent,” evinced by the fact accident, where the jury discussed the mat- In Whistler, the court of appeals noted that they all took copious notes over the ter prior to deliberations. In a split decision, that Nabors’ availability to provide ser- course of the trial. She assured the court the Louisiana Supreme Court held that, vices during the pre-demobilization period that the jury “looked at all the information” even though the jury members discussed may have benefitted the bankruptcy estate, before reaching its verdict. the matter before it was submitted to them, even if services were not actually provid- Plaintiff filed a motion for mistrial, the trial court did not abuse its discretion ed. The court analogized this availability to arguing that the jurors disregarded the in- in denying a mistrial for lack of prejudice, that of an insurance policy, which benefits struction against making a determination and the verdict should stand. the debtor by minimizing risk even if the before the conclusion of the trial. The dis- At the start of trial, the trial judge in- policy is not actually triggered. The 5th trict court found that there was no manifest structed the jury, “You may only discuss Circuit remanded the matter to the bank- error in allowing the verdict to stand and the case with the other members of the ruptcy court for a factual determination denied the motion for mistrial because the jury when you begin deliberations on your of inducement on pre-demobilization ex- discussion did not affect the jury’s verdict, verdict and all other members of the jury penses, applying the new inducement test. and reasonable minds could have reached are present.” Practitioners in the 5th Circuit should the same verdict. Plaintiff’s appeal ensued. After deliberations began, counsel for familiarize themselves with the Whistler The Louisiana 3rd Circuit Court of plaintiff asked the alternate juror, who had inducement standard. This standard may Appeal reversed the district court, and the remained in the courtroom, about her im- Louisiana Supreme Court granted certio- rari. The ultimate question was whether the district court had abused its discretion in denying a mistrial. In a 4-3 opinion, the court reversed the appellate court’s deci- sion and reinstated the district court’s de- nial of mistrial. LOUISIANA CHAPTER The majority began by stating that a NADN mistrial is a drastic remedy, not a matter of www.LouisianaMediators.org right, that a trial court has vast discretion to 1/6 Color grant or deny, and which should be granted Check your preferred available dates or schedule appointments online, only when an error results in substantial directly with top litigator-rated mediators and arbitrators. prejudice sufficient to deprive a party of To view our national roster of over 1000 litigator-rated neutrals, visit www.NADN.org/directory any reasonable expectation of a fair trial. To qualify for a mistrial, the court contin- ued, juror misconduct must make it impos-

Louisiana Bar Journal October / November 2019 202 Vol. 67, No. 3 www.lsba.org sible to proceed to a proper judgment. stating outright that plaintiff was preju- Here, the majority found the district diced by jury misconduct and that the only court did not abuse its discretion in find- remedy available was a mistrial. Justice ing that the jurors did not make a prema- Genovese reasoned the alternate juror’s Family ture decision, and, therefore, the plaintiff statement that “[p]retty much from the Law was not prejudiced, because one juror’s opening statement, we had decided the testimony refuted any suggestion of pre- defendant wasn’t at fault” prohibited the judgment or prejudice to plaintiff’s case. plaintiff from a fair trial, as the jury had Moreover, the majority believed any preju- made a preliminary decision before any Community Property dice would have favored the plaintiff since evidence could be presented. his case was presented first. This opinion begs the question of where Volpe v. Volpe, 18-0809 (La. App. 4 Cir. Three justices dissented, including Chief the scale tips in establishing juror miscon- 2/20/19), 265 So.3d 871, writ denied, 19- Justice Johnson. The chief justice noted duct sufficient to necessitate a mistrial. At 0479 (La. 5/20/19), 271 So.3d 1269. jury misconduct rises to the level of a mis- least for now, it is not where jurors openly Ms. Volpe purchased a home prior to the trial when it causes prejudice that cannot be disregard the court’s instructions against parties’ marriage and refinanced it shortly cured by admonition or further instruction. discussing the case prior to submission, as before the marriage. After their marriage, The chief justice stated unequivocally that, happened here. Notably, this decision rep- they lived in the home, and she later donat- here, the jury had received instructions not resents one of the last votes cast by former ed one-half of her interest in the property to engage in premature deliberations and Louisiana Supreme Court Justice, now to Mr. Volpe. The preexisting mortgage had violated them, causing prejudice that U.S. District Court Judge, Greg G. Guidry. remained in her name. Mr. Volpe was not necessitated a mistrial. Further, the chief His vacancy may raise the opportunity for entitled to reimbursement for community justice cited the alternate juror’s comment a sudden reversal of this recent decision. funds used prior to the donation to pay for as well as the court’s comments on the re- flood insurance, homeowner’s insurance cord, stating that deliberations were barely — Shayna Beevers Morvant and property taxes since such expenses are long enough for the jurors to have a bath- Secretary, LSBA Civil Law not reimbursable. room break, as evidence that the verdict & Litigation Section Further, the trial court’s awards to Mr. was “predetermined.” Beevers & Beevers, L.L.P. Volpe of one-half of the community funds Justice Hughes also dissented, chiding 210 Huey P. Long Ave. paid on the loan principal from the date the courts for “cavalier treatment” of the Gretna, LA 70053 of marriage to the termination of commu- Plain Civil Jury Instructions promulgated and nity, and for one-half of the community by the Louisiana Supreme Court. He, too, Ashton M. Robinson funds upon the sale of the property that noted the apparent brevity of the jury’s de- 3L Tulane Law School and were used to satisfy the existing mortgage, liberations to suggest a predetermined ver- Law Clerk were reversed. Although the mortgage re- dict. Ultimately, he felt that the majority Beevers & Beevers, L.L.P. mained in her name, he was aware of the simply ignored the rules violations herein. 210 Huey P. Long Ave. mortgage and acknowledged it in the Act Justice Genovese dissented as well, Gretna, LA 70053

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Louisiana Bar Journal October / November 2019 202 Vol. 67, No. 3 www.lsba.org Louisiana Bar Journal October / November 2019 203 Vol. 67, No. 3 www.lsba.org of Donation. His share of the equity in the business venture between him and Mr. amendment to the prior judgment, and that property was calculated after payment of Sonnier, Ms. Gordon was liable on the Mr. Pembo’s request was for more than a the mortgage due, not before. note, even though she claimed that she did mere correction of a calculation error. The court found that “it is unjust, ineq- not receive any consideration for signing The trial court ordered that the QDRO uitable and improper for Mr. Volpe to also and had no control of the funds. The court be amended to reflect that her share was be reimbursed for half of the payments found that she personally incurred the obli- calculated as of Nov. 7, 2013, and that she to the princip[al] on the mortgage during gation by signing the note. was entitled to interest and earnings only the marriage, and for one half of the funds since that date, not since the community used to settle the mortgage at the act of Pembo v. Pembo, 17-1153 (La. App. 1 termination date, Aug. 26, 2011. The court sale.” Further, Ms. Volpe was not entitled Cir. 6/28/19), ____ So.3d ____, 2019 WL of appeal reversed, finding that the- ex to reimbursement for one-half of the mort- 2723554. ception of res judicata was not the proper gage payments she made post-termination In this community property partition, procedural mechanism to challenge an at- because she had exclusive use and occu- Ms. Pembo was awarded a portion of Mr. tempt to amend a judgment, but instead pancy of the home and, under the co-own- Pembo’s 401(k) plan as of Aug. 26, 2011, considered her arguments under La. C.C.P. ership articles, La. Civ.C. art. 806, a mort- and all earnings or losses thereon until art. 1951 that Mr. Pembo sought a substan- gage expense is not a necessary expense or the date of segregation into her separate tive amendment to the judgment, not a one for ordinary maintenance and repairs, account. Almost a year later, Mr. Pembo mere correction of an error in calculation. or necessary management expenses paid to filed a rule requesting that the court correct The court also found that the QDRO, a third person. an error in calculation and calculate the which had already been accepted by the amount as of Nov. 7, 2013, arguing that plan administrator, was not interlocutory Sonnier v. Gordon, 52,650 (La. App. 2 the sum awarded to Ms. Pembo was de- under La. R.S. 9:2801 (B) but was a final Cir. 5/22/19), 273 So.3d 629. termined as of the date of settlement, and judgment. Further, although La. C.C.P. art. Because both Mr. and Ms. Gordon, thus already included interest and earnings 1951 allows final judgments to be amend- during their marriage, signed a promissory on her community portion since the date ed, because the amendment he sought note in favor of Mr. Sonnier, and funds of termination, Aug. 26, 2011. Ms. Pembo would change the substance of the agree- from Mr. Sonnier were deposited into an filed an exception of res judicata, arguing ment, it could have been changed only by account controlled by Mr. Gordon for a that the court could not make a substantive consent of the parties, an application for a

Louisiana Bar Journal October / November 2019 204 Vol. 67, No. 3 www.lsba.org new trial, an action for nullity or a timely water bottles, stolen from a nearby con- appeal. The court of appeal thus reversed venience store. The complaint alleges the trial court, finding that the change was Insurance, Tort, that Mckesson did nothing to prevent the not an error in calculation, but was sub- Workers’ escalating violence but rather incited it. stantive. Compensation & The police began making arrests when an Admiralty Law unidentified person picked up a rock or Succession of Schelfhaudt, 19-0129 (La. piece of concrete and hurled it at the of- App. 4 Cir. 5/8/19), 271 So.3d 304. ficers, striking Doe in the face. His injuries During their long-term relationship, Tort: Liability for included loss of teeth, injuries to his jaw, Ms. Schelfhaudt donated a one-half inter- head and brain, lost wages “and other com- est in her home to Mr. Stephens, subject to Damages in Civil pensable losses.” Doe filed suit in district a mortgage. Subsequently, she refinanced Protests court, naming Mckesson and Black Lives the home and executed a promissory note Matter as defendants, on theories of negli- in favor of the bank. Mr. Stephens did not Doe v. Mckesson, ____ F.3d ____ (5 Cir. gence, respondeat superior and civil con- sign the note, but he did sign the mort- 2019), 2019 WL 3729587. spiracy. Mckesson filed two motions: (1) gage, allowing the home to secure the debt In July 2016, during the summer of our a Rule 12(b)(6) motion asserting failure represented by the note. After her death, national discontent, a protest associated to state a plausible claim for relief against her heirs argued that Mr. Stephens was with Black Lives Matter took place by Mckesson, and (2) a Rule 9(a)(2) motion responsible for the note. The court found blocking a highway in front of the Baton asserting that Black Lives Matter is not that his signing the mortgage only allowed Rouge Police Department headquarters. an entity with capacity to be sued. Officer the home to be used as security, and since The Baton Rouge Police Department pre- Doe moved to amend his complaint to add he did not sign the note itself, he was not pared by organizing a front line of officers factual allegations as to Black Lives Matter obligated on it. in riot gear, standing in front of other of- Network, Inc., and #Black Lives Matter as ficers, including Officer Doe, prepared to defendants. The district court granted both Appeals make arrests. DeRay Mckesson, associ- of Mckesson’s motions and denied Doe’s ated with Black Lives Matter, was “the motion for leave to amend, taking judi- prime leader and an organizer of the pro- Meadows v. Adams, 18-1544 (La. App. 1 cial notice that #Black Lives Matter is a test.” Cir. 8/7/19), ____ So.3d ____, 2019 WL “hashtag” and, therefore, an “expression,” Some protestors began throwing full lacking capacity to be sued, and dismissed 3717547. Mr. Meadows filed a motion for new trial and then a motion for devolutive ap- peal by facsimile filing with an electronic signature; he then submitted the same pleadings but with a handwritten signature. ERISA / LONG TERM The appellate court dismissed his appeal as untimely, as the second filed pleadings were not exactly the same as the facsimi- DISABILITY CLAIMS le-filed pleadings because of the different signatures. Consequently, the facsimile- (DENIALS / ADMIN APPEALS / FEDERAL COURT) filed pleadings were ineffective, leading to the second filings each being untimely. The dissent argued that appeals are favored and should not be dismissed on “hyper- Statewide, La and tX technical” interpretations of statutes, in- cluding here, where the only difference in the pleadings filed was the electronic and Over 28 yearS – av rated handwritten signatures.

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Louisiana Bar Journal October / November 2019 204 Vol. 67, No. 3 www.lsba.org Louisiana Bar Journal October / November 2019 205 Vol. 67, No. 3 www.lsba.org his case with prejudice. The court did not Louisiana’s “duty-risk” analysis for as- reach the merits of Doe’s state tort claims signing tort liability under a negligence against Mckesson, but found that Doe theory requires a plaintiff to establish that International failed to plead facts that took Mckesson’s (1) the plaintiff suffered an injury; (2) the Law conduct outside of the bounds of First defendant owed a duty of care to the plain- Amendment-protected speech and asso- tiff; (3) the duty was breached by the de- ciation. fendant; (4) the conduct in question was On appeal, the 5th Circuit found that the cause-in-fact of the resulting harm; Mckesson’s conduct was not necessarily and (5) the risk of harm was within the U.S. Court of protected by the First Amendment. It be- scope of protection afforded by the duty gan by addressing Doe’s state tort claims. breached. International Trade La. Civ.C. art. 2320 provides that “[m] The court found that Doe had alleged JSW Steel (USA) Inc. v. United States, asters and employers are answerable for sufficient facts to support a negligence Case 1:19-cv-00133 (Ct. Intl. Trade). the damage occasioned by their servants . . . claim. Doe “plausibly alleged” that JSW Steel (USA) is the American in the exercise of the functions which Mckesson breached his duty of reasonable subsidiary of a large Indian steel com- they are employed.” A “servant” under care by intentionally leading the demon- pany. After breaking ground on a new the Code “includes anyone who performs strators to block the highway, a criminal electric arc furnace in Texas and credit- continuous service for another and whose act under La. R.S. 14:97, making it patent- ing the Trump administration’s steel tar- physical movements are subject to the ly foreseeable that the Baton Rouge police iffs as the primary justification for up to control or right to control of the other as response would almost certainly provoke $1 billion in U.S. expansion investment, to the manner of performing the service.” a confrontation between police and dem- the company turned around and sued the Doe’s vicarious liability theory fails be- onstrators. Doe also plausibly alleged that Trump administration for failing to grant cause he did not allege facts that support Mckesson’s breach of duty was the cause- it an exemption to the same steel tariffs an inference that the unknown assailant in-fact of his injuries. By leading the dem- that it applauded. JSW Steel (USA) sued “performed a continuous service” for or onstrators onto the public highway and the U.S. Department of Commerce at that his “physical movements [we]re sub- provoking a violent confrontation with the the Court of International Trade seek- ject to the control or right to control” of police, Mckesson’s negligent actions were ing to reverse Commerce’s decision Mckesson. the “but for” causes of Doe’s injuries. The denying its request to exclude various In order to impose liability for civil court found that Doe’s claim was “suffi- categories of steel that it imports from conspiracy in Louisiana, a plaintiff must ciently plausible to allow him to proceed Mexico and China from the Section 232 prove that (1) an agreement existed with to discovery,” noting that its “ruling at this steel tariffs. The complaint alleged that one or more persons to commit an illegal point is not to say that a finding of liability the Commerce Department’s decision is or tortious act; (2) the act was actually will ultimately be appropriate.” arbitrary and capricious and violates the committed; (3) the act resulted in plain- The court further held that Doe did not Administrative Procedures Act (APA). tiff’s injury; and (4) there was an- agree plead sufficient facts to show that Black In March 2018, the United States im- ment as to the intended outcome or result. Lives Matter is a “suable entity.” The posed a 25% tariff on steel imports. The The court found that the plaintiff had al- trial court took judicial notice that Black President’s Executive Order imposing leged no facts supporting civil conspiracy, Lives Matter is a “social movement” and, the tariff, issued pursuant to authority stating: thus, could not be a juridical person. The granted under the Trade Expansion Act 5th Circuit found that was legal error as of 1962 (19 U.S.C. § 1862), also directs Although Officer Doe has alleged whether Black Lives Matter was a “na- the Secretary of Commerce to grant tariff facts that support an inference that tional unincorporated organization” as exclusions to U.S. businesses for certain Mckesson agreed with unnamed alleged by Doe was a mixed question of steel imports that are not immediately others to demonstrate illegally on law and fact. However, the court found available from U.S. producers in suffi- a public highway, he has not pled that Doe failed to plead sufficient facts to cient quantity and quality. The purpose of facts that would allow a jury to con- support a plausible inference that Black the exclusions is to “protect downstream clude that Mckesson colluded with Lives Matter was an entity capable of be- manufacturers that rely on products not the unknown assailant to attack ing sued. produced by U.S. domestic industry at Officer Doe or knew of the attack this time.” See, Submissions of Exclusion and specifically ratified it. —John Zachary Blanchard, Jr. Requests and Objections to Submitted Past Chair, LSBA Insurance, Tort, Requests for Steel and Aluminum, 83 Finally, Doe alleged that Mckesson Workers’ Compensation and Fed. Reg. 46,026, 46,038-39 (Sept. 11, was negligent for organizing and leading Admiralty Law Section 2018). the Baton Rouge demonstration because 90 Westerfield St. JSW operates a facility in Texas he “knew or should have known” that Bossier City, LA 71111 where it manufactures steel plate and the demonstration would turn violent. pipe for infrastructure projects, including

Louisiana Bar Journal October / November 2019 206 Vol. 67, No. 3 www.lsba.org natural gas and oil pipelines. The com- dispute-settlement system recently is- commerce. On the other, all powers pany and its Indian parent are investing sued a ruling against the United States for not allocated to the federal government up to $1 billion to expand and upgrade various domestic-content requirements are reserved to the states by the 13th the plant. Company leadership credited and subsidies granted by numerous U.S. Amendment. U.S. state economic-devel- the Trump administration’s steel tariffs state governments to the renewable en- opment-incentive programs heighten this with providing the flexibility to compete ergy sector. India brought the complaint constitutional tension when states enact on a more level playing field and to com- back in 2016, but the panel was not con- laws or programs that implicate inter- mit necessary resources to the expansion. stituted until 2018. national commerce but otherwise likely However, the company utilizes primar- India’s complaint asserts that the fall within the states’ constitutional pre- ily imported steel slab feedstock for its U.S. state governments of Washington, rogative. The U.S. Supreme Court’s most operations. Alleging that the feedstock California, Montana, Massachusetts, recent statement in this area is Crosby is unavailable in the U.S. market at its Connecticut, Michigan, Delaware and v. National Foreign Trade Council, 530 quantity and quality specifications, the Minnesota enacted various laws, regula- U.S. 363 (2000), where it struck down a company filed an exclusion request seek- tions and programs that provide an unfair Massachusetts law forbidding state pro- ing exemption from the 25% tariffs on advantage to U.S. domestic products in curement contracts to companies doing its imports from Mexico and India. The the development of the U.S. renewable- business with the country of Burma. The Mexican tariffs have since been lifted energy sector, in violation of, inter alia, Court’s holding was limited inasmuch as after conclusion of the U.S.-Mexico U.S. commitments under Article III:4 of it found that the state law was preempt- Canada Free Trade Agreement, but tariffs the General Agreement on Tariffs and ed because of federal sanctions against remain on the Indian imports. Trade 1994. Article III:4 is a bedrock Burma. The lawsuit contends that the non-discriminatory principle requiring U.S. WTO commitments include spe- Commerce Department refused to con- WTO members to afford imported prod- cific obligations to take all reasonable sider the record evidence on U.S. steel ucts treatment that is “no less favour- measures necessary to bring U.S. states quality and quantity and that it issued able than that accorded to like products into conformity with the federal govern- the same boilerplate denial for each ex- of national origin” with respect to inter- ment’s international trade commitments. clusion request. JSW acknowledges the nal laws and regulations. In short, WTO See, GATT Art. XXIV:12 (“Each con- objections from the U.S. steel industry members are not allowed to enact laws or tracting party shall take such reasonable to its request wherein the U.S. produc- regulations that discriminate in favor of measures as may be available to it to ers claimed to have sufficient capacity domestic products against imported prod- ensure observance of the provisions of to satisfy the product demand and qual- ucts. India contends that the eight U.S. this Agreement by the regional and local ity specifications. The company takes states enacted a plethora of renewable- governments and authorities within its issue with Commerce’s alleged failure energy tax rules and incentive programs territories.”). In this case, the WTO panel to verify the domestic industry’s asser- that favor the inclusion of U.S.-made concluded that the United States is vio- tions and with the fact that the denials products to the detriment of imported lating its WTO obligations and commit- are “part of a broader pattern in which products. ments because the U.S. state programs do the Department has rejected thousands The legal relationship between U.S. not comply with WTO rules. The WTO of exclusion requests by providing the states and the federal government in in- dispute-settlement panel ordered the same pro forma, conclusory explana- ternational economic matters is some- WTO to request that the United States tion, with no reasoning or analysis.” See, times controversial. On the one hand, bring the non-conforming measures into Complaint, Case No. 19-00133, at ¶34. the federal government is constitution- compliance with WTO rules. It remains The complaint seeks redress under the ally tasked with regulating international to be seen how the various U.S. states APA for the Department’s alleged failure to provide any evidentiary basis for its denial, which is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” Id. at ¶39.

World Trade Organization

United States-Certain Measures Relating to the Renewable Energy Sector, WT/DS510/R (June 27, 2019). A panel constituted under the auspices of the World Trade Organization (WTO)

Louisiana Bar Journal October / November 2019 206 Vol. 67, No. 3 www.lsba.org Louisiana Bar Journal October / November 2019 207 Vol. 67, No. 3 www.lsba.org will react to the ruling and what, if any, tion.” The court also found that because reasonable measures the federal govern- the Louisiana Pregnancy Discrimination ment will seek to employ against the Labor and Act (LPDA), La. R.S. 23:342, includes the states. Economic-development-incentive Employment exact same language as Title VII, it is sub- programs appear to fall squarely within Law ject to the same interpretation. Although the constitutional prerogative of the the 5th Circuit has yet to weigh in on the states, so the road to resolving this dis- issue, the 3rd and 6th Circuits, the only two pute remains unclear. If the United States appellate courts to have addressed the is- refuses to comply, or asserts that it lacks Abortion Protected, But sue, have found that it is. the ability to force the states the change However, Ducharme, who alleged their laws, India will be entitled to im- Not Drinking on the Job she was fired because she had an- abor pose retaliatory tariffs against U.S.- ex tion, could not avoid dismissal of her dis- A district court in the Eastern District ports in amounts commensurate with the crimination claims under Title VII and the of Louisiana recently found that abortion level of trade impacted by the U.S. state LPDA where she admittedly drank on the is encompassed within the statutory text of programs. job and could not demonstrate the deci- Title VII, 42 U.S.C. § 2000e(k), prohibit- sion maker had any anti-abortion animus. ing adverse employment actions “because —Edward T. Hayes Additionally, several coworkers, including of or on the basis of pregnancy, childbirth, Chair, LSBA International Law Section the bartender’s boyfriend, were also fired or related medical conditions.” Ducharme Leake & Andersson, L.L.P. for drinking on the job, belying any alle- v. Crescent City Déjà Vu, L.L.C., ____ Ste. 1700, 1100 Poydras St. gation that she was treated differently than F.Supp.3d ____ (E.D. La. 2019), 2019 New Orleans, LA 70163 those who did not have abortions. WL 2088625. The court noted that “[w] hile abortion is not a medical condition related to pregnancy in the same way as Pertinent Facts In September 2017, Ducharme, a bar- gestational diabetes and lactation, it is a tender at a bar and grill, told her manager medical procedure that may be used to that she had become pregnant and planned treat a pregnancy related medical condi-

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Louisiana Bar Journal October / November 2019 208 Vol. 67, No. 3 www.lsba.org to have an abortion. She requested two drinking on the job and being intoxicated ficient.” Fairchild v. All Am. Check Cashing, days off to have the procedure, and the on the job. The employee claimed she and Inc., 815 F.3d 959, 968 (5 Cir. 2016). manager accommodated the request. The her boyfriend were fired for simply drink- Most damning to the employee’s preg- manager declared that she was not upset ing or “taking just one sip,” while others nancy discrimination claim was the com- about the employee having an abortion who were terminated were drinking so plete absence of any support for any al- and had no real opinion about abortion much they were seriously impaired. The leged anti-abortion animus by the manager. generally. However, the employee testified court found this to be a distinction with- It was uncontroverted that the manager had that the manager began treating her “crap- out a difference as both drinking on the job never said anything about abortion or reli- pily” and “indifferently” after learning of and being intoxicated on the job were ter- gion to the employee any time during their the employee’s planned abortion. minable offenses. 18-month, “very good” relationship. While the employee was off work for It was undisputed that the employee In sum, an employee who has an abor- her abortion, another employee alerted the was drinking alcohol on the job. The em- tion in Louisiana may now be able to assert manager that he had seen the employee ployee admitted she drank on the job at that she is protected from being terminated drinking many times while on the clock. least monthly, and the employer produced or otherwise discriminated against on that The manager confirmed through her- re security camera footage showing her do- basis, but undergoing the procedure does view of security tapes that the employee ing so. It was also undisputed that this con- not immunize the employee from the ap- had not only been drinking on the job, but duct violated the rules as stated in the em- plication and enforcement of legitimate had given another person a drink without ployer’s handbook and that the employee workplace rules. charging for it. The company terminated was aware of these rules. the employee for drinking on the job and Although the employee was fired the —Christine M. White also terminated the employee’s boyfriend, same day she underwent an abortion, the 5th Member, LSBA Labor and who was also captured on video surveil- Circuit has held that “[a]lthough the temporal Employment Law Section lance drinking while on the job. proximity between the employer learning of Baker, Donelson, Bearman, The employee sued the bar and the the plaintiff’s pregnancy and her termination Caldwell & Berkowitz, P.C. manager, alleging they violated Title VII may support a plaintiff’s claim of pretext, Ste. 3600, 201 St. Charles Ave. and the LPDA when they terminated her. such evidence — without more — is insuf- New Orleans, LA 70170

Abortion Recognized as Protected Characteristic Under Title VII and LPDA The employer argued that the employ- ee’s claims should be dismissed because neither Title VII nor the LPDA recognize pregnancy as a protected characteristic. The court rejected the employer’s argu- ment that abortion did not fall within the text of the two statutes at issue and found that a woman who was terminated from employment because she had an abortion was terminated because she was affected by pregnancy, and thus Title VII and the LPDA extend to abortions.

Employee’s On-the-Job Drinking not Protected However, the court granted the em- ployer’s summary judgment motion, concluding that the employee was fired for drinking on the job, not because she had an abortion. The employee could not produce competent evidence that other employees who did not have abortions but drank or used drugs on the job were not fired. Moreover, the court rejected the employee’s attempt to demonstrate dispa- rate treatment by distinguishing between

Louisiana Bar Journal October / November 2019 208 Vol. 67, No. 3 www.lsba.org Louisiana Bar Journal October / November 2019 209 Vol. 67, No. 3 www.lsba.org SIGN UP EARLY! Sign up early and receive your informational packets ecret in November! Brightening the holidays for needyanta children The Louisiana State Bar Association/Louisiana Bar Foundation’s Community Action Committee is inviting Bar members and other professionals to brighten the holidays for needy children by participating in the 23rd annual Secret Santa Project.

• Sponsors will shop with inspiration from the child’s “Wish List.” • Informational packets will be distributed in November. • No required minimum or maximum amount on gifts. • Gift collection will run from 9 a.m. to 4 p.m. on Wednesday, Dec. 4 through Friday, Dec. 6, 2019. • More details about gift-wrapping, drop-off, etc., will be included in the informational packet.

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

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

Name:______

Firm/Company:______

Mailing Address:______

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

Louisiana Bar Journal October / November 2019 210 Vol. 67, No. 3 www.lsba.org State Leases, Including a Surface Mining and Reclamation Act. This annual fee is in addition to the existing fee Provision for a Security under 30:906.1 of 8 cents per ton of coal Mineral Interest and lignite produced. Law Acts 2019, No. 403, provides that the No Claim Against State Mineral and Energy Board may in- clude in state mineral leases issued after Mineral Lessee for Co-ownership and July 31, 2019, a clause that grants a secu- Crop Damages rity interest in minerals produced pursu- Authority to Operate ant to the lease (or lands pooled therewith Precht v. Columbia Gulf Transmission, and attributable to the leased premises) to L.L.C., ____ F.Supp.3d ____ (W.D. La. Acts 2019, No. 350, amended Mineral secure the lessee’s obligation to pay lease 2019), 2019 WL 3368600. Code article 164 (La. R.S. 31:164) to pro- royalties or other sums due under the lease. Columbia Gulf Transmission constructed vide that if a co-owner of land creates a min- a natural gas pipeline across land owned by a eral servitude that burdened his interest, the Additional limited liability company, pursuant to a right- • Sponsors will shop with inspiration from the child’s “Wish List.” servitude owner can conduct mineral op- of-way agreement that required Columbia to erations, provided that the owner acquires Reclamation Fee for • Informational packets will be distributed in November. pay for any damage to crops. In addition, the consent of co-owners owning at least Coal and Lignite Mines though, in return for a specified payment, • No required minimum or maximum amount on gifts. an undivided 75% interest in the land (the the landowner had released Columbia for fractional interest of the co-owner who cre- • Gift collection will run from 9 a.m. to 4 p.m. on Wednesday, Dec. 4 through Friday, Dec. 6, 2019. Acts 2019, No. 150, amends La. R.S. any future claims the landowner might have ated the servitude should count toward the 30:906.1 to impose on all persons hold- for crop damages. Flavia and Kelly Precht • More details about gift-wrapping, drop-off, etc., will be included in the informational packet. total amount of consenting interests). The ing a permit under the Surface Mining and later sued Columbia, alleging that they were same legislation amended Mineral Code Reclamation Act an annual reclamation fee farming the land pursuant to a verbal farm- article 166 (La. R.S. 31:166) to provide that of $6 for each acre of land included within ing lease. In resolving cross motions for if a co-owner of land creates a mineral lease the approved mine permit area. The reve- summary judgment, the court resolved sev- covering his interest, the lessee may oper- nue is to be used for enforcing the Louisiana eral issues. ate with the consent of co-owners owning at least an undivided 75% interest in the land. Finally, the 2019 legislation amended Mineral Code article 175 (La. R.S. 31:175) to provide that, if land is subject to a min- eral servitude and the mineral servitude it- self is co-owned, a co-owner can conduct operations if co-owners owning at least an undivided 75% interest consent. Under the original version of these articles that were enacted with the Mineral Code, unanimous consent was required. This was changed to 90% in 1986 and to 80% percent in 1988.

Use of Oilfield Site Restoration Fund J. Chris Guillet Acts 2019, No. 193, amends La. R.S. Commercial Mediator 30:86 to authorize use of money from the Oilfield Site Restoration Fund -to re Twenty Years of Experience in spond to emergencies declared by the Louisiana’s State and Federal Courts Commissioner of Conservation pursuant to R.S. 30:6.1. Act No. 193 also amends R.S. 30:93.1 to provide that, if money from Call Upstate Mediation Group the Fund is used to respond to an emergen- at 318-352-2302, ext. 116 cy, the Commissioner must seek recovery to schedule your next of those funds from any party that has op- commercial mediation with erated or held a working interest in the site where the emergency occurs. J. Chris Guillet.

Louisiana Bar Journal October / November 2019 210 Vol. 67, No. 3 www.lsba.org Louisiana Bar Journal October / November 2019 211 Vol. 67, No. 3 www.lsba.org First, citing La. Civ.C. art. 2004, the make no findings as to whether there was court noted that a party can contract in ad- any malpractice. But assuming Lindquist’s vance to release another party from future allegations were true, the court found that liability for simple negligence (as opposed Professional the failure to disclose the results of the x- to gross negligence). Thus, the release Liability rays was a fraudulent act that prevented was not invalid altogether, as the Prechts him from filing a malpractice claim and argued. But the release did not apply to that prescription was suspended until he claims brought by someone other than the learned of the presence of the foreign ob- landowner. Thus, the release did not bar Three-Year Prescription ject. The mere availability of the informa- the Prechts’ claim. tion in Lindquist’s records did not serve Second, because the contractual clause In re Med. Review Panel of Lindquist, 18- as sufficient constructive knowledge to that obligated Columbia to pay for dam- 0444 (La. App. 5 Cir. 5/23/19), 274 So.3d 750. start the running of prescription. Instead, ages to crops did not limit this obligation to Lindquist underwent surgery in 2013. the court wrote, it was what he “knew or paying for damages to crops that belonged X-rays of his spine two days post-opera- should have known,” not what he “could to the mineral lessor, the clause appeared tively showed a metal artifact in the sur- have known.” Id. at 761, quoting Lennie to be a stipulation pour autrui (third party gery site, and the surgeon noted it in a v. Exxon Mobil Corp., 17-0204 (La. App. beneficiary contract) under La. Civ.C. art. progress note. Lindquist was not informed 5 Cir. 6/27/18), 251 So.3d 637, 646, writ 1978. Thus, the clause could benefit a farm- of the artifact. denied, 18-1435 (La. 11/20/18), 256 So.3d ing lessee. Accordingly, Columbia was not Four years later, following an MRI of 994. The trial court’s ruling on the excep- entitled to a summary judgment dismissing his spine, Lindquist was advised of the pres- tion of prescription was reversed. the Prechts’ contractual claims. However, ence of the foreign object, after which he the Prechts were not entitled to a summary filed suit. The defendants filed an exception Medical Review Panel judgment that Columbia had contractual li- of prescription based on the three-year peri- ability to them under the stipulation pour od of La. R.S. 9:5628. Lindquist argued that Evidence autrui because there was a genuine issue of the failure to inform him of the artifact con- material fact as to whether the Prechts actu- stituted fraudulent concealment, invoking In re Med. Review Panel for Brock, 19-0480 ally had a valid verbal farming lease. the doctrine of contra non valentem. Thus, (La. App. 4 Cir. 6/19/19), 274 So.3d 1275. Third, Columbia sought dismissal of prescription did not begin to run until he Does the trial court have the authority the Prechts’ tort claims on grounds that the learned of its presence four months before to impose restrictions on evidence submit- Prechts could not show that they owned the filing his panel complaint. The defendants ted to a medical-review panel? La. R.S. crops that were damaged. The court agreed. countered that Lindquist was not prevented 40:1231.8(D)(2) references things that La. Civ.C. art. 491 provides that, as to third from bringing his suit within three years be- “may” be submitted, e.g., medical records, persons, crops are presumed to belong to the cause the presence of the foreign object was and concludes that “any other form of owner of the land unless separate ownership documented in his medical records, which evidence allowable by the medical review is shown by an instrument filed for regis- were continuously available to him. The panel” may be submitted. try in the conveyance records of the parish trial court granted the exception. The plaintiffs issued subpoenas to the where the land is located. This presump- The appellate court noted this res nova Orleans Parish coroner and to the execu- tion is conclusive. That is, the presumption issue of whether a health-care provider, tive director of the Louisiana State Board applies even if the third person knows that who is aware of such a situation but fails of Medical Examiners, intending to submit the crops belong to some person other than to disclose such to the patient, has engaged the records to the medical-review panel. the landowner. Accordingly, Columbia was in conduct that rises to the level of conceal- The defendants moved to quash the sub- entitled to a dismissal of the Prechts’ tort ment, misrepresentation, fraud or ill prac- poenas, arguing that the “catchall provi- claims for damage to their crops. tices sufficient to trigger the application of sion” at the end of the statute warranted the third category of contra non valentem strict construction “in the context of the —Keith B. Hall to interrupt the prescriptive period set forth MMA,” in that the information sought was Member, LSBA Mineral Law Section in La. R.S. 9:5628. irrelevant to the medical treatment at issue. Director, Mineral Law Institute The appellate court distinguished ear- Unpersuaded by plaintiffs’ contention that LSU Law Center lier cases that imposed the three-year limi- it lacked the authority to make that deter- 1 E. Campus Dr. tation on malpractice actions when neither mination, the trial court granted the motion Baton Rouge, LA 70803-1000 the patient nor the defendant was aware of to quash. and its presence. In the instant case, the defen- The appellate court noted that the is- Colleen C. Jarrott dant allegedly was aware of the presence sue of whether a trial court, in the pretrial Member, LSBA Mineral Law Section of the artifact, as evidenced by Lindquist’s context, has the authority to impose re- Baker, Donelson, Bearman, medical record. strictions on the type of evidence a panel Caldwell & Berkowitz, P.C. The court decided that, at this prelimi- member may consider was res nova in Ste. 3600, 201 St. Charles Ave. nary stage of the proceedings, it would Louisiana. New Orleans, LA 70170-3600

Louisiana Bar Journal October / November 2019 212 Vol. 67, No. 3 www.lsba.org The court found instructive Indiana’s [a] medical review panel. Moreover, this Tortuga filed a motion for summary malpractice statute, on which Louisiana’s provision grants [a] medical review panel judgment asserting that the vessel was pur- malpractice act was modeled. Indiana the authority to determine the evidence it chased in a non-taxable occasional or iso- courts consistently have held that a trial will consider.” Id. at 1279. lated sale under the occasional sale exclu- court may not function as a gatekeeper of sion, La. R.S. 47:301(10)(c)(ii)(bb). Tortuga evidence that may be submitted to a med- —Robert J. David bought the vessel from a third-party seller ical-review panel or that a panel member Gainsburgh, Benjamin, David, with the aid of a broker in the business of may consider, quoting Griffith v. Jones, 602 Meunier & Warshauer, L.L.C. facilitating such vessel sales. The collector N.E.2d 107, 110 (Ind. 1992). In Griffith, Ste. 2800, 1100 Poydras St. asserted the position that both the broker the Supreme Court of Indiana observed: New Orleans, LA 70163-2800 and the seller were persons engaged in the business of selling such vessels, and thus the In view of the fact that the legisla- occasional sale exclusion does not apply. ture clearly intended for the medi- The question presented was whether cal review panel to function in an the definition of an occasional sale in the informal manner in rendering its Taxation occasional sale exclusion, as a matter of expert medical opinion, we believe law, excludes sales involving a broker. In that the legislature did not simul- reviewing the statutory language of La. taneously intend to empower trial R.S. 47:301(10)(c)(ii)(bb), the BTA found courts to dictate to the medical re- that its plain language does not state that a view panel concerning either the Boat Broker Does Not broker can never be involved in an occa- content of the panel’s opinion or the Disqualify Isolated sional sale. The BTA noted that it could not manner in which the panel arrives or Occasional Sale find any case law in support of such posi- at its opinion, or the matters that tion. The BTA referenced a conclusion by the panel may consider in arriving Exclusion the Louisiana Department of Revenue in at its opinion. In other words, the Revenue Ruling 15-001 that the language grant of power to the trial court to Tortuga Charters, L.L.C. v. Tax Collector, of La. R.S. 47:301(10)(c)(ii)(bb) does not preliminarily determine matters is to Parish of St. Tammany, BTA Docket No. state that a broker can never be involved be narrowly construed. L00637 (4/15/19). in an occasional sale. Moreover, as tax Randy Smith, sheriff and ex-officio tax exclusions must be interpreted in the tax- Without any Louisiana statutory or collector for St. Tammany Parish (collec- payer’s favor, the BTA refused to stretch jurisprudential law that allows a court to tor), assessed Tortuga Charters, L.L.C., for the language to include the restriction on a act as gatekeeper of admissible panel evi- sales/use tax and related amounts relating broker being involved in such transactions dence, the appellate court decided the per- to Tortuga’s purchase of a particular vessel. as urged by the collector. tinent statute “places no restrictions on the Tortuga paid the tax at issue under protest However, the BTA ultimately denied type of evidence that may be produced to and filed suit for recovery at the Louisiana Tortuga’s motion for summary judg- Board of Tax Appeals (BTA). ment, finding that the record did not make

Louisiana Bar Journal October / November 2019 212 Vol. 67, No. 3 www.lsba.org Louisiana Bar Journal October / November 2019 213 Vol. 67, No. 3 www.lsba.org clear that the seller of the vessel was not Clause. The North Carolina appellate later sold to Close in 2014. Close also in the business of selling boats. The only courts affirmed the trial court’s decision purchased 5.87 acres of adjacent land evidence submitted by Tortuga as to the solely on due process considerations. The from Galloway. In 2017, the Brunsons seller’s business was an addendum to the U.S. Supreme Court granted a petition for purchased from Ballina a 6.1-acre tract vessel-purchase agreement in which the writ of certiorari to the North Carolina adjacent to Galloway’s land and began alleged owner of the seller stated that it is Department of Revenue on appeal from building their home. Crown Brake pur- not a dealer in used vessels, and that the the North Carolina Supreme Court. chased the 190-acre tract from Galloway sale of the vessel constituted an occasional The only legal issue before the Supreme in September 2017 and claimed a 50-foot- sale of used equipment as defined in the Court was whether the Due Process Clause wide servitude through the middle of the Louisiana tax code. Tortuga did not pro- prohibited North Carolina from taxing the Brunsons’ partially constructed home. duce an affidavit by the seller’s owner nor undistributed trust income. The Court Crown Brake claimed the servitude base any other corroborating evidence. As such, found that North Carolina did not have on language attached to the 2008 Act of the BTA found that the record was insuf- sufficient “minimum connection” to tax Exchange. The Brunsons filed a petition ficient to grant summary judgment. the trust because the North Carolina ben- for declaratory judgment and injunctive eficiary did not receive any distributions in relief, claiming the servitude did not exist. —Antonio Charles Ferachi the tax years in question, had no right to The trial court allowed evidence outside of Member, LSBA Taxation Section control the trust assets and was not legally the 2008 Act of Exchange and found that Director, Litigation Division certain to ever receive any trust income if two predial servitudes existed in favor of Louisiana Department of Revenue the trustee continually rolled the trust over. Crown Brake based on the parties’ intent. 617 North Third St. The use and extent of a servitude is Baton Rouge, LA 70821 —Sanders Whitworth Colbert governed by the title that creates it, and Member, LSBA Taxation Section any doubt as to the existence of a servi- Presence of In-State Kean Miller, LLP tude is resolved in favor of the servient Ste. 3600, 909 Poydras St. estate. Servitudes must be express and Beneficiary Alone Does New Orleans, LA 70112 cannot be implied from vague or ambigu- Not Empower State to ous language. As a predial servitude must be recorded to be effective against third Tax Undistributed Trust persons, the third parties in this lawsuit are Income Trusts, Estate, bound by only the 2008 Act of Exchange, Probate & Exhibit A and the December 2008 plat sur- N.C. Dep’t of Rev. v. Kimberley Rice Immovable vey, not the unrecorded November 2008 Kaestner 1992 Family Trust, 139 S.Ct. Property Law plat. As there was no identification of the 2213 (2019). servient estate in these documents, doubt The North Carolina Department of arises as to the “existence, extent, or man- Revenue assessed a tax deficiency on the ner of exercise” of the alleged predial ser- undistributed income of a New York trust May Parol Evidence vitude. This ambiguity must be resolved in whose only connection to North Carolina Resolve Ambiguity favor of the servient estate. was a trust beneficiary who was a North to Create a Predial However, the court is not to interpret Carolina resident. North Carolina is one the intent of the contracting parties when of few states that tax undistributed trust Servitude? dealing with third parties. The 3rd Circuit income based solely on the residence of found that the recorded documents failed beneficiaries. The trust kept all physical In Brunson v. Crown Brake, L.L.C., 18- to express the nature, location and ex- records in New York and had no direct 994 (La. App. 3 Cir. 6/19/19), ____ So.3d tent of a predial servitude. Thus, the trial investments in North Carolina. The trust ____, 2019 WL 2607202, the Louisiana court’s judgment was reversed, and the 3rd agreement gave the Connecticut trustee 3rd Circuit reviewed whether the language Circuit granted judgment declaring that exclusive control over the distribution of of recorded documents was sufficient to the recorded 2008 Act of Exchange did not trust income and provided the trustee with create predial servitudes. create a predial servitude. the right to roll the trust over into a new Ballina sold 190.02 acres to Galloway trust ahead of its scheduled termination by a 2008 Act of Exchange, with a metes —Amanda N. Russo date. The trustee paid the tax under protest and bounds legal description attached, a Member, LSBA Trusts, Estate, Probate and sued for a refund, winning against the description of the servitude and reference and Immovable Property Law Department of Revenue throughout the to an unrecorded November 2008 plat. Sher Garner Cahill Richter Klein & North Carolina legal system. The plat attached to the Act of Exchange Hilbert, L.L.C. The trial court held that North was dated December 2008 and did not Ste. 2800, 909 Poydras St. Carolina’s tax violated both the dormant reference a servitude. In 2011, Ballina New Orleans, LA 70112 Commerce Clause and the Due Process transferred 2.89 acres to the Tarvers, who

Louisiana Bar Journal October / November 2019 214 Vol. 67, No. 3 www.lsba.org Louisiana Bar Journal October / November 2019 214 Vol. 67, No. 3 www.lsba.org Louisiana Bar Journal October / November 2019 215 Vol. 67, No. 3 www.lsba.org Young LAWYERS CHAIR’S MESSAGE... WILLS... SPOTLIGHT

before he walked into that room. CHAIR’S MESSAGE His newfound appreciation for political involvement matters, and not just because It’s Election Time: Be Informed we should all care about what happens in our state or our community (we should). By Scott L. Sternberg As a young lawyer, your clients, family t’s election time — some would say same night and told and friends will expect you to be “up” on “silly season” — around Louisiana. I me afterwards how the issues — if not to have an opinion that love elections. They are fun to watch, his appreciation for they will seek out. and they make my personal law prac- political involvement People will ask you which judicial can- ticeI way more exciting. They can also get had grown just from didate to vote for. Why? You’re a lawyer, expensive. attending that one shouldn’t you know? If you don’t know A fellow young lawyer sat down in my event. He had learned which judge you would support to hear office recently and asked me why I go to about issues he was your legal dispute, then how should the fundraisers and participate in the process. unaware of before the general public? The same can be said for He was contemplating his political in- event and developed Scott L. Sternberg every public office. So, take a moment to volvement and uncertain of what he had to a greater understand- get informed about the issues and the can- gain from being active in that sphere. ing of topics that he already cared about. didates. People expect us to be up on the issues Not only was he able to network with I’m not saying you should stake out of the day, I told him. And, it’s a great way friends and fellow professionals he already an extreme or even any position on every to meet people. knew, but he met more seasoned attorneys single issue. I am saying that people will In the August/September 2019 issue in his practice area who held opinions that expect you to be a resource because of of the Louisiana Bar Journal, I suggested aligned with the candidate’s views. He re- your training and role as an officer of the that Bar events are a great way to work alized how the rooms change with the is- Court. Our Code of Professionalism states on your marketing skills. It’s true, and sues involved and saw the value in being a that we will “be mindful of our responsi- we have quite a few events and programs part of the process. bility to the judicial system, the public, our coming up over the next few months. Stay I could see how, for this young attorney, colleagues, and the rule of law.” tuned for more information. the picture became a little clearer for him. Informing yourself on the issues of the Political events, like Bar events and To complement his enjoyable evening, he day that affect your community will not professional activities, can serve not only had made several new marketing contacts only make you a better citizen, it will make as marketing opportunities but also as op- that he hopes to develop into new busi- you a more authoritative source. That will portunities for personal and professional ness. He’s still not sure how he feels about have benefits for you and your practice for growth. the candidates he met, but I’m 100% sure years to come. It might also help you land The fellow young lawyer went to a he’s more informed and further along in a new client! fundraiser for a major candidate that very his professional development than he was YOUNG LAWYERS DIVISION NEWS Get the latest Young Lawyers Division news online Y L Go to: www.lsba.org/YLD D The Young Lawyers Division Web site is a public service of the LSBA-YLD Council, providing YLD information to the public and communicating with YLD members.

Louisiana Bar Journal October / November 2019 216 Vol. 67, No. 3 www.lsba.org Wills for Heroes Program Offers Legal Help and “Peace of Mind” to First Responders “After choosing a career involving ser- in 28 states. The LSBA YLD hosted vice to others, it was very humbling to be Louisiana’s first Wills for Heroes event in on the receiving end,” Probation and Parole October 2008 for the Calcasieu Parish Fire Officer Mark Davis said during a Wills for Department in Lake Charles. Since that Heroes event in Amite, La. “I am grateful time, the YLD has continued to host events for the peace of mind I now have, thanks for Louisiana first responders, providing to the volunteers who prepared my first responders with the equanimity estate planning documents.” of knowing their affairs are in or- The Wills for Heroes program der should the unthinkable occur. is designed to provide free legal At a typical Wills for Heroes services to first responders in event, attorney volunteers ar- the preparation of basic estate rive early to receive one hour planning documents. Groups of CLE-approved training of attorney volunteers go on preparing wills and other to emergency service sites estate planning documents across Louisiana to set up one-day using hardware provided by the clinics where they draft basic wills, pow- LSBA. Participating first responders Wills for Heroes event in Lafayette, LA. ers of attorney and health care directives for download a questionnaire in advance of eligible first responders and their spouses. the meeting to be completed prior to their The program was created shortly after clinic appointment. The attorney volun- the terrorist attacks of Sept. 11, 2001, when teers work with each first responder to South Carolina attorney Anthony Hayes con- review the completed questionnaire in a tacted his local fire department asking what confidential manner, while another volun- lawyers could do to help. It became clear that teer enters the information into a laptop. there was a glaring need for estate planning Once the documents have been explained, services and, since then, the charitable pro- the will, power of attorney and health care gram has provided more than 50,000 estate directive are generated, executed and no- planning documents nationwide. tarized. The goal is to complete the entire Wills for Heroes event in Baton Rouge, LA. “As the wife of a firefighter, the process in one meeting. Each event aver- Wills for Heroes program is very dear ages 30 first responder participants. to my heart,” said Louisiana State Bar “I can’t protect a firefighter who runs into Association Young Lawyers Division a burning building or a police officer who (LSBA YLD) Wills for Heroes Co-Chair is knocking on a door not knowing what’s Betty A. Maury. “First responders selfless- on the other side,” said Wills for Heroes ly place themselves at risk for the benefit Foundation President Daniel McKenna in of their community. The program brings an interview with Comcast. “But, as a law- a little peace to our Louisiana heroes and yer, I can help protect their families.” their family members.” To find more information and how to With events held across the country, volunteer for upcoming events, go to: there are now Wills for Heroes programs www.lsba.org/YLD/willsforheroes.aspx. Wills for Heroes event in Amite, LA.

Wills for Heroes event in Covington, LA. Wills for Heroes event in St. Tammany Parish. Wills for Heroes event in Terrytown, LA.

Louisiana Bar Journal October / November 2019 216 Vol. 67, No. 3 www.lsba.org Louisiana Bar Journal October / November 2019 217 Vol. 67, No. 3 www.lsba.org YOUNG LAWYERS SPOTLIGHT Stuart R. Breaux Wave to victory Association, co-chair of the Leadership Lafayette over its in-state “ri- Institute of Acadiana’s IntroLafayette vals” at the 2011 program and president of Fix the Charter The Louisiana State Bar Association’s Louisiana State PAC, which helped to pass and defend, Young Lawyers Division Council is Bar Association and is now working to smoothly imple- spotlighting Lafayette attorney Stuart R. (LSBA) Law ment, amendments to the Lafayette Breaux. School Mock Trial City-Parish Home Rule Charter. He is a Breaux is general counsel at Southern Competition. He member of the American Inn of Court of Lifestyle Development Co., L.L.C. (SLD), was also a Moot Acadiana, the St. Thomas More Society of a Lafayette-based real estate development Court Board mem- Stuart R. Breaux Acadiana, the Krewe of Gabriel and Our company with projects throughout the ber and an Order of Lady of Fatima Roman Catholic Church. Gulf South. Barristers inductee. In 2018, he received the Hon. Michelle A Lafayette native, Breaux is a gradu- Prior to joining SLD in 2018, he Pitard Wynne Professionalism Award ate of the Episcopal School of Acadiana, worked for the law firm Becker & Hebert, from the LSBA Young Lawyers Division. the University of Louisiana at Lafayette L.L.C. He focused his practice on local As a lifelong fan of the New Orleans and Tulane University Law School. While government law and real estate and com- Saints, he eagerly anticipates the start of at Tulane, he was an active member of mercial transactions. football season and the sweet, sweet re- Tulane’s Moot Court program and is Breaux is the president of the Young venge that awaits. most proud of having coached the Green Lawyers Section of the Lafayette Bar Louisiana YOUNG LAWYERS Conference

Friday, January 17, 2020 Renaissance Baton Rouge Hotel 7000 Bluebonnet Blvd., Baton Rouge, LA

Join in this innovative conference for an inspired day of learning and networking where you invest in yourself and renew your own excitement about the work you do. Make positive, professional connections that will help your business thrive. For more information, watch for updates on www.lsba.org/YLD

Louisiana Bar Journal October / November 2019 218 Vol. 67, No. 3 www.lsba.org Louisiana Bar Journal October / November 2019 218 Vol. 67, No. 3 www.lsba.org Louisiana Bar Journal October / November 2019 219 Vol. 67, No. 3 www.lsba.org Louisiana Center for

LouisianaCENTER FOR LCLCE LAW & CIVIC Education LAW & CIVIC EDUCATION LAW DAY... SUMMER INSTIUTE... CIA

Lawyers/Judges in the Classroom

Programs Presented Statewide

n recognition of Law Day, the Louisiana Center for Law and Civic Education (LCLCE) orga- nized 65 presentations through- outI the state, reaching 4,451 students. Attorneys and judges volunteered their time to present in-class programs in all six Louisiana congressional districts and at all grade levels. The LCLCE, working through the Lawyers in the Classroom/Judges in the Classroom programs, endeavors to pro- vide year-round classroom visits with a special emphasis on the celebration of Law Day in schools that may not other- wise have a Law Day event. Several judges participated in the Judges in the Classroom program, including LCLCE President Judge Randall L. Bethancourt, Judge Marilyn Louisiana Center for Law and Civic Education Board member W. Thomas Angers presented a Law C. Castle, Judge Aisha S. Clark, Judge Day program at Comeaux High School in Lafayette. Charles G. Fitzgerald, Judge J. Hadley Fontenot, Judge Theodore M. Haik III, Judge Sandra C. Jenkins, Judge Donald McCreary, Mark A. Myers, Ebonee Elementary School, Meisler Middle T. Johnson, Judge Curtis Sigur and R. Norris, Alicia Reitzell, Celeste School, New Iberia Senior High School, Judge Karelia R. Stewart. H. Shields, Susan S. Simon, Philip Northdale Superintendent’s Academy, Several attorneys participated in the M. Smith, David A. Szwak, Jason A. Northshore High School, QuesTech Lawyers in the Classroom program, Weaver and Adrienne S. Wood. Learning, Richwood Middle School, including LCLCE Board member W. Schools participating in the Lawyers/ South Louisiana Community College, Thomas Angers, Justin S. Brashear, Judges in the Classroom programs St. James Parish 4-H Achievement Day, Jessica G. Braun, Paeton L. Burkett, included Baton Rouge International St. Joseph Catholic School, The Net Albert D. Clark, Joshua P. Clayton, School, Boyet Junior High School, Charter School, University of Louisiana Samuel C. D’Aquilla, Jeanette E. C.E. Byrd High School, Cedarcrest- at Lafayette, Vandebilt Catholic High DeWitt-Kyle, Claire B. Edwards, Southmoor Elementary School, School, Werner Park Career Day and Daniel J. Gauthier, Lauren E. Godshall, Comeaux High School, East Feliciana Westgate High School. Courtney H. Guillory, A. Spencer Middle School, FK White Middle The Lawyers in the Classroom/ Gulden, Felicia M. Hamilton, Jack P. School, Glasgow Middle School, Judges in the Classroom programs are Harrison, William K. Hawkins, Kenneth Immaculate Conception Cathedral a partnership of the Louisiana District P. Hebert, Christine Lipsey, Angel V. School, LJ Alleman Arts Academy, Judges Association, the Louisiana State Manzanares, Jason R. May, Jackie M. Loyola College Prep, Martha Vinyard Bar Association and the LCLCE.

Louisiana Bar Journal October / November 2019 220 Vol. 67, No. 3 www.lsba.org Louisiana elementary, middle and high school educators participated in the 2019 Justice Catherine D. Kimball Summer Institute in New Orleans. Photo courtesy of Louisiana Supreme Court. Teachers Participate in 2019 Justice Catherine D. Kimball Summer Institute ouisiana elementary, middle and high school teachers met in New Orleans for the 2019 Justice Catherine D. Kimball Summer LInstitute to learn about mock trials, iCivics, student sexting, student texting, child traf- ficking and child abuse. Following training on mock trials, the Haynes Academy mock trial team performed a mock trial demonstration. This team was the second-place finisher at the 2019 Richard N. Ware IV State High School Mock Trial Following mock trial training, Summer Institute teachers were given a mock trial demonstration Competition. Serving as judge was Louisiana by the Haynes Academy for the Advanced Studies mock trial team. Val P. Exnicios, the Haynes Center for Law and Civic Education (LCLCE) Academy mock trial team coach, served as the mock trial judge for the demonstration. Photo cour- tesy of Louisiana Supreme Court. Board member and Haynes Academy mock trial coach Val P. Exnicios. Coordinated by the LCLCE, the Summer Louisiana Supreme Court Associate Institute was made available to educators at Civics in Action Award Justice Scott J. Crichton and Louisiana no cost with lodging, meals and educational Supreme Court Community Relations and materials for the classroom provided. Website Coordinator David Rigamer pre- Among those attending were elemen- sented a program on “Sexting, Texting and tary school educators Yvette Stevens of Beyond.” Louisiana 4th Circuit Court of Jefferson Terrace School, Lindsay Peterson Appeal Judge Joy Cossich Lobrano addressed of St. Mary Margaret, Krystal Critton of teachers on early intervention collaboration Turner Elementary, Christa Watson of among schools, juvenile court and NGO’s on Lake Forest Charter School and Kristy sex trafficking of minors. Stacie Schrieffer Lewis of Woodmere Elementary. Middle Leblanc, CEO of the UP Institute and pres- school educators were D’Andre Blouin ident-elect of the American Professional and Karen Watson of Dutchtown Middle; Society on the Abuse of Children, spoke Chris Kourvelas of Elm Grove Middle; on “Beyond Mandatory Reporting Laws: and Missy Varnado of Northshore Charter Recognizing, Responding and Reporting.” School. High school educators were Mandy Participants were welcomed to the Abigail Roberts, a senior at Captain Shreve Perret and Dirk Schexnaydre of Dutchtown High School in Shreveport, was the recipient Institute by LCLCE President Judge Randall High; Vincent Hoang from Episcopal of the 2019 Civics in Action Award, presented L. Bethancourt and Louisiana District High; Charles Vidrine, Jade Johnston and by the Louisiana Center for Law and Civic Judges Association President Judge Lisa M. Karen Olivier from the Magnet Academy Education (LCLCE). The award recognizes Woodruff-White. Robert Gunn, Louisiana an outstanding middle or high school student for Cultural Arts; Yulinda Marshall from who has demonstrated outstanding civic virtue Supreme Court deputy judicial adminis- Istrouma High; Abbie Tucker from St. and involvement in his/her community. The trator/community relations, and Miriam Amant High; Greg Warren and Larry plaque was presented by Louisiana Supreme D. Childs, director of the Law Library of Williams from Saline High; and Sammi Court Associate Justice Scott J. Crichton at the Louisiana, provided a tour of the Louisiana Justice Catherine D. Kimball Summer Institute. Dunn from Glenbrook School. Photo courtesy of Louisiana Supreme Court. Supreme Court and the Law Library.

Louisiana Bar Journal October / November 2019 220 Vol. 67, No. 3 www.lsba.org Louisiana Bar Journal October / November 2019 221 Vol. 67, No. 3 www.lsba.org JUDICIALNotes By Trina S. Vincent, Louisiana Supreme Court RETIREMENTS... IN MEMORIAM

Retirements He served in Family and Juvenile Court gree in 1958 from Loyola University when first elected to the bench in 1995. College of Law. He served in the U.S. ► Louisiana Supreme Court Associate In 1997, he transitioned to the Criminal/ Air Force from 1953-54. From 1956- Justice Greg G. Guidry retired, effective Civil Court. 66, he was a sports columnist for the June 22, to fulfill his appointment by the New Orleans States-Item and served as United States President as judge of the Deaths vice president and legal counsel of the U.S. District Court, Eastern District of Louisiana Sportswriters’ Association. In Louisiana. He earned his BA degree in ► Retired 4th Circuit Court of Appeal 1966, he was elected to the 24th Judicial 1982 from Louisiana State University Chief Judge Patrick M. Schott, 88, died District Court, Division G, and served as and his JD degree in 1985 from LSU June 3. He earned a BA degree in 1951 chief judge. He was reelected in 1972 and Paul M. Hebert Law Center. He practiced and his JD degree in 1953 from Loyola 1978. In 1982, he was elected to the 5th law in the New Orleans office of Liskow University New Orleans. He served in Circuit Court of Appeal, First District, & Lewis, P.L.C., from 1985-89. From the Judge Advocate General Corps of and served as chief judge. He is a former 1989-90, he worked as an assistant attor- the U.S. Army from 1953-56. Prior to president of the Louisiana Conference of ney general at the Louisiana Department his election to the 4th Circuit in 1972, Court of Appeal Judges and the 4th and of Justice in Baton Rouge. He worked as he practiced law in New Orleans. He 5th Circuit Judges Association. He also assistant U.S. attorney, U.S. Attorney’s became chief judge in 1988, serving un- served on the Executive Committee of the Office, Eastern District of Louisiana, til his retirement in 1998. He served as Louisiana District Judges Association. from 1990-2000. Judge Guidry served on ad hoc judge on the 4th and 5th Circuit He served as president of the Louisiana the 24th Judicial District Court, Division Courts of Appeal. He worked as a me- Chapter of the National Cystic Fibrosis E, from 2000-06 and the 5th Circuit Court diator through Mediation Arbitration Research Foundation and was an hon- of Appeal from 2006-08. In 2009, he was Professional Systems, Inc. and as an ar- orary member of the Louisiana State elected to the Louisiana Supreme Court. bitrator through the American Arbitration University Paul M. Hebert Law Center ► 21st Judicial District Court Association. Additionally, he served Alumni Association. After retiring (Division D) Judge M. Douglas Hughes as a hearing officer for the Judiciary from the bench, he worked with the retired, effective July 1. He earned his Commission of Louisiana. Department of Justice writing opinions BA degree in 1982 from Louisiana State ► Retired 5th Circuit Court of Appeal for the Louisiana Attorney General. University and his JD degree in 1986 Chief Judge H. Charles Gaudin, 88, In 2002, he served as president of the from Mississippi College School of died June 29. He earned a BA degree in Louisiana Retired Judges Association. In Law. Prior to his election to the bench, 1952 from the University of Louisiana 2004, he was appointed by the Governor he worked in the general practice of law at Lafayette (formerly University of as chair of the Louisiana Gaming Control and as city attorney for Denham Springs. Southwestern Louisiana) and his JD de- Board, a position he held for six years. Ethics Advisory Service www.lsba.org/goto/ethicsadvisory For assistance with dilemmas and decisions involving legal ethics, take full advantage of the LSBA’s Ethics Advisory Service, offering - at no charge - confidential, informal, non-binding advice and opinions regarding a member’s own prospective conduct. Eric K. Barefield, Ethics Counsel LSBA Ethics Advisory Service, 601 St. Charles Ave., New Orleans, LA 70130-3404 (504)566-1600, ext. 122 • (504)619-0122 • toll-free: (800)421-5722, ext. 122 • Fax: (504)598-6753 E-mail: [email protected]

Louisiana Bar Journal October / November 2019 222 Vol. 67, No. 3 www.lsba.org PEOPLE LAWYERS ON THE MOVE . . . NEWSMAKERS

Colvin, Smith & McKay announces that Taylor, Porter, Brooks & Phillips, LAWYERS ON Daniel N. Bays, Jr. has been named a L.L.P., in Baton Rouge announces that THE MOVE partner in the firm’s Homer office. J. Jess C. Frey has joined the firm as Clayton Caraway has joined the firm’s special counsel. Adams and Reese, L.L.P., announces Shreveport office as an associate. that Philip B. Sherman has joined the NEWSMAKERSNEWSMAKERS firm’s New Orleans office as special Degan, Blanchard & Nash, A.P.L.C., counsel. announces that Danielle L. Trostorff Robert S. Angelico, managing partner has joined the firm’s New Orleans office in the New Orleans office of Liskow Breazeale, Sachse & Wilson, L.L.P., as of counsel. & Lewis, A.P.L.C., received the announces that Timothy W. Hardy Distinguished Service Award from the and V. Joyce Matthews have joined the Erlingson Banks, P.L.L.C., announces Society of Louisiana Certified Public firm’s Baton Rouge office as partners. that Ashley M. Caruso has joined Accountants. David C. Fleshman has joined the the firm’s Baton Rouge office asan Baton Rouge office as an associate. associate. Richard J. Arsenault, a partner in the Alexandria firm of Neblett, Beard & Chaffe McCall, L.L.P., announces that Kelly McNeil Legier has been appointed Arsenault, was recognized as one of Frank A. Piccolo has joined the firm’s as a federal administrative law judge for the Top 25 Mass Tort Trial Lawyers Houston, Texas, office as a partner. the Office of Medicare Hearings and in Louisiana by the Mass Tort Trial Appeals within the U.S. Department Lawyers Association. He was selected Chehardy, Sherman, Williams, Murray, of Health and Hospitals in the New by the American Academy of Attorneys Recile, Stakelum & Hayes, L.L.P., Orleans Field Office. as one of the Top 100 attorneys in announces that R. Christopher (Chris) personal injury law in Louisiana. He Martin has joined the firm’s Metairie Perrier & Lacoste, L.L.C., announces was selected to the Lawdragon 500 office as a special partner. that Margie R. Scott has joined leading plaintiff consumer lawyer guide. the firm’s New Orleans office asan associate. Stephen J. Holliday, an attorney with Gulino Law, A.P.L.C., in Baton Brian D. Perry, Sr. has retired from the Rouge, was appointed as a member Department of Defense as the deputy of the National Academies of chief of staff for the Defense Language Sciences, Engineering and Medicine’s Institute in Monterey, CA. He has Transportation Research Board returned to the greater New Orleans Standing Committee on Intermodal area. Freight Transport for the 2019-22 term.

Richard J. Arsenault Daniel N. Bays, Jr.

J. Clayton Caraway Ashley M. Caruso David C. Fleshman Jess C. Frey Timothy W. Hardy R. Christopher Martin

Louisiana Bar Journal October / November 2019 222 Vol. 67, No. 3 www.lsba.org Louisiana Bar Journal October / November 2019 223 Vol. 67, No. 3 www.lsba.org PUBLICATIONS Erin Sayes Kenny, a partner with Taylor, Alejandro R. Perkins, a partner in the PUBLICATIONS Porter, Brooks & Phillips, L.L.P., in Baton Rouge office of Hammonds, Sills, Baton Rouge, was named to the “On the Adkins & Guice, L.L.P., received an Best Lawyers in America 2010 Rise, Top 40 Young Lawyers” list by honorary degree of Doctor of Humane Barrasso Usdin Kupperman Freeman the American Bar Association’s Young Letters from Grambling State University & Sarver, L.L.C. (New Orleans): Judy Lawyers Division. in May. Y. Barrasso, New Orleans Lawyer of the Year, insurance law; Celeste R. Coco- Frank X. Neuner, Jr., managing Jack K. Whitehead, Jr., senior partner Ewing, George C. Freeman III, Craig partner of Neuner Pate in Lafayette, of Whitehead Law Firm in Baton Rouge, R. Isenberg, John W. Joyce; Stephen H. was appointed to the board of directors was inducted into the 100 Black Men of Kupperman, New Orleans Lawyer of of the Legal Services Corp. He is a Baton Rouge, Ltd. the Year, securities litigation; H. Minor member of the LSC’s Governance and Pipes III, Andrea M. Price, Richard E. Performance Review Committee and James M. Williams, senior partner Sarver, Steven W. Usdin and Charles- Operations and Regulations Committee. and head of litigation in the Metairie Theodore Zerner. He was Louisiana State Bar Association office of Chehardy, Sherman, Williams, president in 2005-06. He chaired the Murray, Recile, Stakelum & Hayes, Louisiana Public Defender Board from L.L.P., was appointed to the Louisiana 2008-13. State Law Institute as a member of the Torts and Insurance Committee.

V. Joyce Matthews Frank X. Neuner, Jr. Margie R. Scott Danielle L. Trostorff Jack K. James M. Williams Whitehead, Jr. People Deadlines & Notes SEND YOUR Deadlines for submitting People announcements (and photos): NEWS! Publication Deadline Feb./March 2020 Dec. 4, 2019 The Louisiana Bar Journal April/May 2020 Feb. 4, 2020 would like to publish news and June/July 2020 April 4, 2020 photos of your activities and August/September 2020 June 4, 2020 accomplishments. October/November 2020 Aug. 4, 2020 Email your news items and photos to: Announcements are published free of charge for members of the LSBA Publications Coordinator Louisiana State Bar Association. Members may publish photos with their Darlene LaBranche at announcements at a cost of $50 per photo. Send announcements, photos [email protected]. and photo payments (checks payable to Louisiana State Bar Association) to: Publications Coordinator Darlene M. LaBranche Or mail press releases to: Louisiana Bar Journal Darlene LaBranche 601 St. Charles Ave. Publications Coordinator New Orleans, LA 70130-3404 601 St. Charles Ave. or email [email protected]. New Orleans, LA 70130-3404

Louisiana Bar Journal October / November 2019 224 Vol. 67, No. 3 www.lsba.org NEWS AWARDS... LOCAL BARS... LBF

UPDATE LSBA Members Receive Awards at National Bar Association Events Louisiana Supreme Court Chief Justice Bernette Joshua Johnson and Orleans Parish Civil District Court Judge Piper D. Griffin were two of the Judge Karelia R. Stewart, First Judicial Louisiana State District Court, re- Bar Association ceived the National Bar (LSBA) members Association Women recognized dur- Lawyers Division’s ing the National Excellence in Judiciary Camille R. Bryant, left, with McGlinchey Stafford, Award. Louisiana Supreme Court Chief Justice P.L.L.C., received the National Bar Association Bar Association’s Bernette Joshua Johnson, right, received the Women Lawyers Division’s Outstanding Young (NBA) 94th Annual Conference July National Bar Association Judicial Council’s Lawyer Award; and Sharonda R. Williams, 20-26 in New York City. William H. Hastie Award in July. With her Fishman Haygood Phelps Walmsley Willis & is her daughter Orleans Parish Civil District Chief Justice Johnson received the Swanson, L.L.P., received the Outstanding Court Judge Rachael D. Johnson. Woman Lawyer Hidden Figure/Impact Award. William H. Hastie Award, the NBA Judicial Council’s highest award, to recognize excellence in legal and judicial scholarship and for demonstrated com- mitment to justice under law. Judge Orleans Parish Civil Griffin, current chair District Court Judge Piper D. Griffin re- of the Louisiana ceived the National Attorney William C. Snowden, center, received the National Bar Association’s London J. Alexander Judicial Council (the Bar Association Award for Advocacy and Leadership. With him are, left, Cory J. Vidal, Hancock Whitney Bank; and Louisiana affiliate Judicial Council’s Camille R. Bryant, McGlinchey Stafford, P.L.L.C., recipient of the National Bar Association Women Lawyers Division’s Outstanding Young Lawyer Award. of the NBA Judicial Sarah J. Harper Humanitarian Award. Council), was hon- NBA Women Lawyers Division held an Figure/Impact; and Judge Karelia R. ored with the NBA Judicial Council’s Achievement Awards Breakfast on July Stewart, 1st Judicial District Court, Sarah J. Harper Humanitarian Award, rec- 23. Among the award recipients hon- Excellence in the Judiciary. ognizing her consistent and unselfish com- ored were Louisiana lawyers Camille R. Other Louisiana attorneys honored mitment to the purpose and goals of the Bryant, McGlinchey Stafford, P.L.L.C., were attorney William C. Snowden, NBA. Both awards were presented dur- Outstanding Young Lawyer; Sharonda London J. Alexander Award for Advocacy ing the NBA’s 2019 Thurgood Marshall R. Williams, Fishman Haygood Phelps and Leadership; and Kenneth R. Barnes, Awards Luncheon on July 24. Walmsley Willis & Swanson, L.L.P., Louisiana Supreme Court, Top 40 Young Also during the conference, the Outstanding Woman Lawyer Hidden Lawyers in America.

Louisiana Bar Journal October / November 2019 224 Vol. 67, No. 3 www.lsba.org Louisiana Bar Journal October / November 2019 225 Vol. 67, No. 3 www.lsba.org SULC Recognizes Distinguished Alumni, Judicial Wall of Fame Honorees Southern University Law Center (SULC) honored its distinguished alumni at the Alumni and Friends Round-up on April 4. Festivities in- cluded the Alumni Hall of Fame Gala, CLE workshops, student development events and an evening reception. Inducted into the SULC Judicial Wall of Fame were Hon. Tonya Jones, Harris County Criminal Court; Hon. Michael Bellamy, Alabama 26th Circuit Court; and D. Nicole Sheppard, Orleans Parish Civil District Court. Several alumni were recognized for professional achievements and Several Southern University Law Center (SULC) alumni were recognized for professional achieve- ments and support of the Law Center. From left, Brian Jackson, Laner Muchin; Robin Raasch, Akin support of the law center including Gump Strauss Hauer & Feld; Paula Hartley Clayton, Law Offices of Paula L. Hartley; Harry L. Brian Jackson, Laner Muchin; Robin Daniels III, Daniels and Washington Law Firm; Kavitha Akula, Akula & Associates; Carl A. Moore, Raasch, Akin Gump Strauss Hauer Law Office of Carl A. Moore; Deidre D. Robert, Southern University System; Daryl Washington, & Feld; Paula Hartley Clayton, Law Washington Law Firm; and SULC Chancellor John K. Pierre. Offices of Paula L. Hartley; Harry L. Daniels III, Daniels and Washington Law Firm; Kavitha Akula, Akula & Associates; Carl A. Moore, Law Office of Carl A. Moore; Deidre D. (Right) Judges inducted into the Southern University Law Center’s Judicial Wall of Robert, Southern University System; Fame were, from left, Hon. Tonya Jones, Daryl Washington, Washington Law Harris County Criminal Court; Hon. Michael Firm; and Chancellor John K. Pierre, Bellamy, Alabama 26th Circuit Court; and D. Southern University Law Center. Nicole Sheppard, Orleans Parish Civil District Court. Chief Justice Delivers Keynote at Advocacy at the Capitol

Members of Alpha Kappa Alpha (AKA) and Alpha Phi Alpha attended AKA Day in Baton Rouge on May 8. The theme for the 2019 Day at the Capitol was “Mobilizing the Ivy Power.” In the morning, Gov. John Bel Edwards addressed AKA and Alpha Phi Alpha members at the Legislative Briefing Governor’s Press Room, joined by members of the Louisiana Legislative Black Caucus. At noon, keynote speaker Louisiana Supreme Court Chief Justice Bernette Joshua Johnson led a Joint Advocacy Luncheon. AKA Day ended with closing remarks from AKA South Central Regional Director Louisiana Supreme Court Chief Justice Bernette Joshua Johnson gave the keynote speech at the Katina M. Semien and Alpha Phi Alpha Joint Advocacy Luncheon in conjunction with Alpha Kappa Alpha Day in Baton Rouge. Louisiana District Director Keith Dillon.

Louisiana Bar Journal October / November 2019 226 Vol. 67, No. 3 www.lsba.org LOCAL/SPECIALTY BARS Martinet Greater Lafayette Chapter Hosts Scholarship Breakfast he Louis A. Martinet Legal School and is attending Prairie View Society, Inc. Greater Lafayette A&M in Texas. Coleman is a graduate Chapter hosted its second an- of Lafayette High School and is attend- nual scholarship breakfast on ing Louisiana State University. Both TJuly 19 to honor Tierra Nicole Butler recipients were high academic achiev- and Caleb Joseph Coleman, each award- ers and exhibited a commitment to pub- ed a $500 scholarship. The Scholarship lic service while in high school with a Committee was chaired by JoAnn stated commitment to continue while in Nixon. college. Butler graduated from Acadiana High

Attending the Louis A. Martinet Legal Society, Inc. Greater Lafayette Chapter second annual scholarship breakfast were, seated from left, Terri Butler (mother of scholarship recipi- ent Tierra Butler); Franchesca L. Hamilton- Acker, Martinet Lafayette Chapter president; and scholarship recipient Caleb Coleman. Standing from left, Orida B. Edwards, Valerie The Louis A. Martinet Legal Society, Inc. Greater Lafayette Chapter hosted a Summer Social on June Gotch Garrett, Dwazendra J. Smith, Jocelin 28. Members gathered for a reception and then participated in creating a unique painting of the orga- M. Sias, Taylor L. Johnson and Glenn M. nization logo. From left, Tia C. Benton, Dwazendra J. Smith, Orida B. Edwards, Martinet Lafayette Lazard. Chapter President Franchesca L. Hamilton-Acker, Taylor L. Johnson and Mckinley B. James, Jr.

Ted Justice Williams, Law Offices of Ted Justice Williams, right, was the The Avoyelles Parish Bar Association held its annual Law Day ceremony keynote speaker for the Southwest Louisiana Bar Association’s annual Law on May 3 and awarded scholarships to high school students. From left, Day ceremony on May 3 at the Old Calcasieu Parish Courthouse. Following District Attorney Charles A. Riddle III, Riddle & Donaghey, L.L.C.; and the ceremony, members attended the midyear buffet luncheon meeting. Gracie Tingle, second place winner of the scholarship. With him is Judge Clayton A.L. Davis, 14th Judicial District Court.

Louisiana Bar Journal October / November 2019 226 Vol. 67, No. 3 www.lsba.org Louisiana Bar Journal October / November 2019 227 Vol. 67, No. 3 www.lsba.org LOUISIANA BAR FOUNDATION President’s Message Investing in Civil Legal Aid Technology By 2019-20 President Amanda W. Barnett

echnology is fundamentally il legal aid technol- Louisiana’s underprivileged populations. changing the way the world op- ogy through a special Through this work, Lagniappe Law Lab erates, and the legal system has grant to Lagniappe will help our service providers scale their not escaped this fate. Across the Law Lab. impact on our community, increasing ac- TUnited States and the world, legal service Lagniappe Law cess to justice for all. innovators are experimenting with new Lab was founded “Lagniappe Law Lab’s existence is service delivery models and technologies in May 2019 by purely motivated by the goal of improving that aim to narrow the ever-growing justice Amanda Brown and the justice system and the legal profession gap; Louisiana is no exception. is a new technology- in Louisiana. All services provided are in At its 2017 strategic planning meet- focused non-profit Amanda W. Barnett direct support of expanding access to jus- ing, the Louisiana Bar Foundation (LBF) poised to deliver tice to all. Day-to-day, Lagniappe Law Lab identified as a priority to identify and services to Louisiana’s civil justice sys- will work to improve service providers’ implement technology that would serve tem. The Lab will provide in-house ser- case velocity and/or outcomes and provide our grantees and our communities. Taking vice delivery consulting to civil legal aid and maintain legal information resources steps toward that goal, in 2018, the LBF organizations, and will facilitate the de- for the public. These efforts will ideally hired a technology consultant to support sign, development and implementation of advance the reality of equal justice under the development of an online legal infor- new legal aid technology projects. It will the law through increased public under- mation access portal, the Louisiana Civil also provide a home for and maintain ex- standing of the legal system and a more Legal Navigator, to direct civil legal aid isting technology programs, such as the streamlined delivery of legal services,” clients to the best, most relevant legal in- Louisiana Civil Legal Navigator. Through Brown said. formation, forms and referral sources. the use of technology, design thinking and For more information on Lagniappe Building on that momentum and rec- operations principles, Lagniappe Law Law Lab, contact Amanda Brown at ognizing the need to support this program Lab aims to put people back into the cen- (504)561-1046 or email amanda@ and others like it, the LBF is excited to ter of the legal process and bring a more lagniappelawlab.org. Visit the website share that it is investing in the future of civ- streamlined legal service experience to at: www.lagniappelawlab.org. LBFAnnounces LBF Grant Save the Date! Application Louisiana Bar Foundation New Fellows 34th Annual Fellows Gala The Louisiana Bar Foundation Available Online Friday, April 3, 2020 welcomed the following new Fellows: The Louisiana Bar Foundation’s • Hyatt Regency New (LBF) grant application for 2020- Orleans Taylor Alexander...... Lake Charles 21 funding is now available online. Bethany B. Breaux...... Lafayette Deadline for submitting grant applica- Discounted rooms are available Hon. Laurie R. Brister...... Lake Providence tions is Dec. 2, 2019. Thursday, April 2 and Friday, April 3, 2020 The Loan Repayment Assistance Lenzi C. Hebert...... Lake Charles at $259 a night. To make a reservation, call Program (LRAP) application for 2020- Monique Y. Metoyer...... Shreveport the Hyatt at 1(800)233-1234 and reference 21 funding is now available online. Louisiana Bar Foundation or go to: https:// Alexandra Camille Patti...... New Orleans Deadline for submitting the LRAP ap- www.hyatt.com/en-US/group-booking/ plication is Feb. 7, 2020. Hon. Robin D. Pittman...... New Orleans MSYRN/G-LGAL. Reservations must For more information and questions, Mary Katherine Price...... Winnfield be made before Friday, March 13. For contact Renee LeBoeuf at (504)561- more Gala information, contact Danielle J. Kelly M. Rabalais...... Mandeville 1046 or email [email protected]. Marshall at (504) 561-1046 or danielle@ Tina L. Suggs...... Metairie Grant applications will be available at: raisingthebar.org. www.raisingthebar.org.

Louisiana Bar Journal October / November 2019 228 Vol. 67, No. 3 www.lsba.org LBF Kids’ Chance Awareness Week is Nov. 11-15 Every year the entire Kids’ Chance gram/kids-chance-scholarship-guidelines. community (now in 47 states) dedicates Too young for college? Sign up for one special week to raising awareness Planning for the Future and when the time of Kids’ Chance nationwide. This year, is right, Kids’ Chance will make contact, Kids’ Chance Awareness Week will be https://www.kidschance.org/planning-for- held November 11-15, 2019. In Louisiana, the-future/. Find out more at Governor John Bel Edwards has pro- You can help with Awareness Week this www.lsba.org/mentoring/ claimed It LBF Kids’ Chance Awareness year. Week. During this week the committee ► We are looking for donations of your spotmentoring.aspx will be sending care packages to our cur- company swag and gift cards to include in rent Kids’ Chance scholarship recipients. the Kids’ Chance Care packages. Attend our “Kids’ Chance Awareness Meet ► You can host a “Dress Down for and Greet” at Urban South Brewery in Kids’ Chance Day,” with donors getting to ANSWERS for puzzle on page 192. New Orleans on Wednesday, November wear jeans to work for the day. 1 2 3 4 5 6 7 13, from 5-7. ► Host a “Pizza Party for Kids’ E L I Z A B E T H S A C M N U V A U N The Louisiana Bar Foundation (LBF) Chance,” letting donors have a fun pizza 8 9 Kids’ Chance Scholarship Program is for party at work. P I R O G U E B R O W N O E U N I J dependents of Louisiana Workers’ killed ► Attend our “Kids’ Chance Awareness 10 11 12 W O M B S S A T S U M A or permanently and totally disabled in a Meet and Greet” at Urban South Brewery E T O R L 13 14 15 16 work accident. Applications for the 2020- in New Orleans on Wednesday, November R A T H E R A S W E L L 17 21 academic year will be available online 13, from 5-7. E R B U I 18 19 20 21 December 1, 2019. Contact Dee Jones if you have ques- D E A D S E A N O M S G For more info about LBF Kids’ Chance tions or want to get involved with helping G C A D O A 22 23 https://raisingthebar.org/programs-and- families of Louisiana workers’ killed or F L E U R B E I G N E T projects/kids-chance-scholarship-program. permanently and totally disabled in a work F D U A S D O 24 25 For program guidelines https://rais- accident, call 504-561-1046 or dee@rais- F L Y B L A C K B E A R ingthebar.org/kids-chance-scholarship-pro- ingthebar.org.

INDEX TO ADVERTISERS

Joseph G. Albe, Jr...... 231 Louisiana Association for Justice...... 187 D. Wesley Attaway...... 231 Louisiana National Guard Foundation...... 201 Bourgeois Bennett...... 208 Maison de la Luz...... 203 Broussard & David...... OBC MAPS, Inc...... 215 Christovich & Kearney, L.L.P...... 197 J. Price McNamara Law Offices...... 205 Complex Litigation Symposium...... 185 Chris Moody...... 204 James P. Doré, Dispute Resolution Services of LA, LLC...... 209 National Academy of Distinguished Neutrals...... 202 Expert Communications...... 231 National Association of Hearing Officials...... 213 Robert G. Foley...... 230 NOPSI Hotel...... 186 Chad M. Garland, CPA, LLC...... 161 The Patterson Resolution Group...... 198 James F. Gasquet III...... 231 Perry Dampf Dispute Solutions...... 193 Gilsbar, Inc...... 179, IBC Schiff, Scheckman & White, L.L.P...... 194 J. Chris Guillet...... 211 Simon, Peragine, Smith & Redfearn, L.L.P...... 165 Steve Herman...... 195 Southeast Louisiana Legal Services...... 199 International Maritime Consultancy...... 207 Stanley, Reuter, Ross, Thornton & Alford, L.L.C...... 196 LaPorte, CPAs and Business Advisors...... 219 Taggart Morton, L.L.P...... 231 LawPay...... 162 Upstate Mediation Group...... 200 Legier & Company, apac...... IFC The Write Consultants...... 230

Louisiana Bar Journal October / November 2019 228 Vol. 67, No. 3 www.lsba.org Louisiana Bar Journal October / November 2019 229 Vol. 67, No. 3 www.lsba.org experience, federal and state litigation. Any person(s) concurring with or oppos- ServicesSERVICES Available for briefs, research, court ap- ing this petition must file notice of same pearances, analysis of unusual or problem within 30 days with the Louisiana Attor- Texas attorney, LSU Law 1985. Admit- cases. References on request. Catherine ney Disciplinary Board, Ste. 310, 2800 CLASSIFIEDted in Louisiana and Texas. I am available Leary, (504)436-9648, statewide services, Veterans Memorial Blvd., Metairie, LA to attend hearings, conductADS depositions, ONLINE registered AT WWW.LSBA.ORG office Jefferson Parish. 70002. act as local counsel and accept referrals CLASSIFIED NOTICES for general civil litigation in the Houston Northwest Florida counsel. Louisiana Michael J. Riley, Sr. has applied for area. Contact Manfred Sternberg, Jr. at attorney with 32 years’ experience, and readmission to the Louisiana State Bar Standard classified advertising in our regu- (713)622-4300; email manfred@mstern- licensed in Florida, available for referral Association. Any person(s) may file a lar typeface and format may now be placed berg.comPOSITIONS. OFFERED ServicesSERVICES in the Louisiana Bar Journal and on the of civil and criminal matters from Pen- concurrence or opposition to his applica- LSBA Web site, LSBA.org/classifieds. Insurance coverage associate. Phelps sacola to Panama City. Contact John F. tion within 30 days of publication of this Mobile, Ala., attorney accepting refer- Texas attorney, LSU Law 1985. Admitted All requests for classified notices must Dunbar, LLP, is seeking an attorney for Greene, Ste. 210, 4507 Furling Lane, notice to the Louisiana Attorney Disci- rals of personal injury claims in South in Louisiana and Texas. I am available to be submitted in writing and are subject the insurance practice group in the New Destin, FL 32541. Call (850)424-6833 or plinary Board, Ste. 310, 2800 Veterans to approval. Copy must be typewritten Alabama, including automobile, work- attend hearings, conduct depositions, act Orleans office. The preferred -candi (504)482-9700; or visit www.destinattor- Memorial Blvd., Metairie, LA 70002. and payment must accompany request. ers’ compensation and slip & fall acci- as local counsel and accept referrals for date will have one-plus years of experi- neyjohngreene.com. Our low rates for placement in both are dents. Licensed in both Louisiana (since general civil litigation in the Houston area. as follows: ence. Must have strong writing (cov- 1979) and Alabama (1998). Russell E. ContactForFOR Rent Manfred RENT Sternberg, Jr. at (713)622- ADVERTISE YOUR erage writing) and research skills and Bergstrom, 955 Dauphin St., Mobile, AL 4300;New Orleansemail [email protected]. RATES excellent academic credentials (top 25% NEW ORLEANS EXPERT WITNESS 36604; (251)433-4214; fax (251)433- required). Interested applicants should 1166; email [email protected]. LegalOffices writer. available 23-year at 829 Baronnecivil litigator St. in CLASSIFIED ADS send a cover letter, résumé and transcript OR LEGAL SERVICES! Contact Krystal L. Bellanger at “No representation is made that the qual- representingprestigious plaintiffsdowntown and building, defendants taste- in to Annie Sinclair at annie.sinclair@phelps. (504)619-0131 or (800)421-LSBA, ity of legal services provided is greater statefully and renovated. federal district Excellent and appellate referral courts sys- Contact com or apply using the following link: ext. 131. than the quality of legal services provided availabletem among to research 35 lawyers. and write Includes any legal sec- Krystal Bellanger-Rodriguez http://ow.ly/1HU930lLq4g. documentsretarial space, at every receptionist, stage of proceedings. telephones, Non-members of LSBA by other attorneys.” at Havevoice handled mail, Internet, complex conference commercial rooms, and $85 per insertion of 50 words or less New Orleans CBD office of a multi-state (504)619-0131 or email $1 per each additional word , legal re- tortkitchen, litigation. office Hourly equipment rates. Short and turn parking.- Appellatelaw firm is lookingbriefs, tomotions add lateral attorneys [email protected] $20 for Classy-Box number search. Attorneys: the appellate process is aroundWalking possible. distance Can of work CDC, independently USDC and with portable business. The firm’s practice ormany in collaboration.fine restaurants. Contact Call MoniqueCliff Cardone at your last chance to modify or defend your ANSWERS for puzzle on page 298. Members of the LSBA areas include admiralty, commercial litiga- [email protected] Kim Washington at (504)522-3333. or (504)669-5385. judgment. Lee Ann Archer, former Loui- 1 2 3 4 5 6 $60 per insertion for 50 words or less tion, construction, defense litigation, energy, B I E N V E N U E E L M siana Supreme Court clerk and Tulane $1 per each additional word estate planning/administration, general busi- NoticeNOTICE A L E O L P Law honors graduate, offers your best Briefs/Legal Research/Analysis of 7 8 9 No additional charge for Classy-Box ness, insurance, products and real estate law. R E V I S I T A B I T A number Unusual or Problem Cases chance,Mail confidential with superior résumé appellateto C-Box 286. briefs, Notice is hereby given that Steven T E E H S S T JD with honors, federal judicial clerk, 10 11 outstanding legal research, pinpoint re- H O N E Y R A T I O C Screens: $25 Courtney Gill intends on petitioning for cord review and 20-plus years of appel- graduate of top 10 law school, 25 years’ O O I D H $15 initial headings/large type New Orleans-based law firm led by well- reinstatement to the practice of law. Any Headings: experience federal and state litigation, 12 13 late experience. Confidential; statewide person(s) concurring with or opposing this L L A F O U R C H E A known attorney Stuart H. Smith seeks ré- creative legal thinker. Available for briefs, BOXED ADS service; fast response. Call (337)474- petition must file notice of same within 30 O A L G F sumés to fill attorney positions as the firm research, court appearances, analysis of 14 15 16 Boxed ads must be submitted camera ready 4712continues (Lake to Charles);grow. Litigation, email lee@leeenviron-- days with the Louisiana Attorney Disci- M P O O C H S O U S A by the advertiser. The ads should be boxed aarcher.com; visit www.leeaarcher.com. unusual or problem cases. References E L R R A S L mental and scientific experience desired. plinary Board, Ste. 310, 2800 Veterans 17 18 and 2¼” by 2” high. The boxed ads are $70 on request. Catherine Leary, (504)436- W H A T I O K I N A W A Three-seven years of plaintiff litigation Memorial Blvd., Metairie, LA 70002. per insertion and must be paid at the time of 9648, statewide services, registered office C D A N I Y Briefs/Legal Research/Analysis 19 20 placement. No discounts apply. preferred. Pay commensurate with experi- Jefferson Parish. I C E A U D I T O R I A ence.of Unusual Email résumé, or Problemcover letter Casesand writ - Notice is hereby given that Melissa Sugar DEADLINE JDing samplewith honors, to [email protected] federal judicial. clerk, Gold intends on petitioning for reinstate- For the February issue of the Journal, all classified graduate of top 10 law school, 20 years’ ment/readmission to the practice of law. notices must be received with payment by Dec. 18, 2019. Check and ad copy should be sent to: LOUISIANA BAR JOURNAL FORENSIC DOCUMENT TAGGART MORTON, LLC Classified Notices EXAMINER Adele A. Thonn Adele A. Thonn Forensic Document Examiner Forensic Document Examiner 601 St. Charles Avenue Accepting Appellate Referrals New Orleans, LA 70130 ROBERT G. FOLEY Services include document examination, Services andinclude Consultations document examination, Handwriting Examination & Comparison analysis and opinions including, but not analysis and opinions including, but not and Related Matters limited to, questioned signatures and limited to, questioned signatures and RESPONSES Donald J. Miester, Jr. To respond to a box number, please address alleged alterations alleged alterations Certified & Court Qualified since 1972. Chair-Appellate Practice Section your envelope to: Diplomat of the American Board of Happily servicing the Greater New Orleans Happily servicing the Greater New Orleans Journal Classy Box No. ______Forensic Document Examiners. 1100area Poydras and surrounding Street, parishes Suite 2100 area and surrounding parishes c/o Louisiana State Bar Association New Orleans, LA 70163 Phone: (318) 322-0661 Phone: (504) 430-5117 Phone: (504) 430-5117 601 St. Charles Avenue [email protected] (504) 599-8500 Email: [email protected] Email: [email protected] New Orleans, LA 70130 www.robertgfoley.com www.thewriteconsultants.com www.thewriteconsultants.com

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0217_LBJ_JOURNAL_MAGAZINE.indd 413 12/20/2016 2:34:55 PM Houston Auto Appraisers provides ex- Ste. 310, 2800 Veterans Memorial Blvd., Notice is hereby given that Herman J. Office sublet. Fully furnished office, full- pert witness testimony for cases involving Metairie LA 70002. Mouton, Jr. intends on petitioning for re- service reception area, phone, kitchen, copy INDEX TO ADVERTISERS diminished value/total loss auto appraisals, instatement/readmission to the practice of machine, conference room, in beautiful, insuranceAdmiralty claims Symposium disputes ...... and liability, mo- Notice is hereby given that2 law. Any person(s) concurring with or op- prestigious One Canal Place building in torhomes, travel trailers, manufacturer de- Dr. Lillian Matena Brown-Singh intends posing this petition must file notice of same the New Orleans Central Business District. D. Wesley Attaway...... 79 fects, DTPA, Lemon Laws, divorce/com- on petitioning for reinstatement/readmis- within 30 days with the Louisiana Attorney Convenient to shopping, French Quarter, Barrasso Usdin Kupperman Freeman & Sarver, L.L.C...... 52 munity property valuations, classic cars, sion to the practice of law. Any person(s) Disciplinary Board, Ste. 310, 2800 Veterans Convention Center, Audubon Aquarium of trucks,Barrios, motorcycles, Kingsdorf commercial& Casteix, L.L.P. vehicles, ...... concurring with or opposing this petition56 Memorial Blvd., Metairie LA 70002. the Americas, Harrah’s Casino, Riverwalk. heavyBourgeois equipment, Bennett cargo ...... damaged in tran- must file notice of same within 55 30 days $1,500/month. Contact: nbm@rodneylaw. sit, damage repair estimates, auto accident with the Louisiana Attorney Disciplinary Notice is hereby given that Duke Ellington com or (504)483-3224 for appointment. Broussard & David ...... OBC reconstruction, event data recorder (EDR/ Board, Ste. 310, 2800 Veterans Memorial Tilley, Jr. is filing a petition for reinstate- BlackKathleen Box downloads)Christmas ...... and litigation assis- Blvd., Metairie, LA 70002. 79 ment to the practice of law in Louisiana. ForFOR Sale SALE tance.Christovich Roy Theophilus & Kearney, Bent, L.L.P. Jr., 1(877)845- ...... 42 Any person(s) concurring with or opposing Starting a new law office? Full set of 2367.Clean www.HoustonAutoAppraisers.com Jacket App...... Notice is hereby given that Felix (Andy)23 the petition and application for reinstate- DeJean IV intends to file a petition and ap- ment must file notice of same within 30 days pristine, excellent quality office furniture. Complex Litigation Symposium ...... 61 Terms (985)630-4549. ForFOR Rent RENT- New Orleans / NEW ORLEANS plication for reinstatement to the Louisiana with the Louisiana Attorney Disciplinary Expert Communications ...... State Bar Association. Anyone concurring78 Board, Ste. 310, 2800 Veterans Memorial For sale in New Orleans. 858 Camp OneRobert partner-sized G. Foley ...... office left at 829 with or opposing this petition and applica78- Blvd., Metairie LA 70002. Baronne St. Share office space with 35 St., 4,800 square feet. Proximate to Gilsbar, Inc...... tion for reinstatement must file 27,notice IBC of courts. 13+ offices, reception, large lawyers from varied disciplines. Tenants concurrence or opposition within 30 days Court appearances, jury includeLawPay an ...... engineer, CPA, Legal Wings .1 conference room, secretarial/cubicle with the Louisiana Attorney Disciplinary consulting & referrals for Courier Service. This offers a rare oppor- space, lunch room, French Quarter Legier & Company, apac ...... Board, Ste. 310, 2800 Veterans MemorialIFC cases in Plaquemines Parish courtyard. Call Christian Trinchard at tunityLouisiana to joint Association venture casesfor Justice and ...... bounce Blvd., Metairie, LA 70002. 77 ideas off of experienced professionals. Call 20 years experience handling civil (504)756-7451. Email: ctrinchard@ MAPS, Inc...... 75 christiantrinchardrealtor.com. www. Cliff Cardone at (504)522-3333. Notice is hereby given that Mark L. James litigation and criminal defense lacdb.com/listing/30258009/858-Camp- National Academy of Distinguished Neutrals II...... intends to file a petition and application45 Office in Plaquemines Parish since 2002 NoticeNOPSINOTICE Hotel ...... for reinstatement to the Louisiana State69 St-New-Orleans-LA-70130. James F. Gasquet, III The Patterson Resolution Group ...... Bar Association. Anyone concurring with50 Notice is hereby given that Daniel E. or opposing this petition and application (504) 394-5584 BecnelRAL ForensicsIII intends ...... to file a petition and ap- for reinstatement must file notice of con53- [email protected] plicationRoy A. forRaspanti reinstatement ...... to the Louisiana currence or opposition within 30 days with49 129 Chancellor Dr., Belle Chasse, LA 70037 State Bar Association. Anyone concurring 01010001110000010101101010 The Roosevelt Hotel ...... the Louisiana Attorney Disciplinary46 with or opposing this petition and applica- Board, Ste. 310, 2800 Veterans Memorial 100001111001010100111000101 Royal Sonesta ...... 48 D. WESLEY ATTAWAY tion for reinstatement must file notice of Blvd., Metairie, LA 70002. 000111101010100011100110101 concurrenceSchafer Group, or opposition Ltd...... within 30 days 51 EnCase Certified Examiner D WESLEY ATTAWAY with the Louisiana Attorney Disciplinary [email protected] [email protected] Schiff, Scheckman & White, L.L.P...... Notice is hereby given that Kimuel Lee41 Board, Ste. 310, 2800 Veterans Memorial intends on petitioning for reinstatement 0101000111000001010100010010Smyser Kaplan & Veselka, L.L.P ...... 17 318.393.3289 Blvd., Metairie, LA 70002. to the practice of law in Louisiana. Any 318.393.3289 Stanley, Reuter, Ross, Thornton & Alford, L.L.C...... 43 Court Certified Expert Witness 01 01010001110000010101101 person(s) concurring with or opposing Court Certified Expert Witness Fred A. Blanche III intends to file a peti- State and Federal Courts 01010000111100101010011100State and Federal Courts Taggart Morton, L.L.P...... this petition must file such within 30 days79 Criminal Defense and Civil Litigation tion seeking reinstatement of his license to Criminal Defense and Civil Litigation 010100011110101010001110011practiceUpstate law Mediation in Louisiana. Group Any...... person(s) with the Louisiana Attorney Disciplinary47 Data Retrieval Services Since 1995 concurringThe Write withConsultants or opposing ...... this petition Board, Ste. 310, 2800 Veterans Memorial79 Data Retrieval Services Since 1995 01010101010100000111101010 Blvd., Metairie LA 70002. 1010COMPUTERS 010100011100000101010 AND CELL PHONES must file such within 30 days with the COMPUTERS AND CELL PHONES Louisiana Attorney Disciplinary Board, 01000111000001010110101010 00011110010101001110001010 VOCATIONAL EXPERT WORKERS COMP Named a 2018 Top Lawyer for Appellate CLAIMS 00111101010100011100110101 Vocational testing / Evaluation Practice by New Orleans Magazine Labor Market Surveys in la & ms 01010101000001111010101010 Joseph G. Albe, Sr. Joseph “Jay” Albe, Jr. Expert Witness Testimony Accepting Appel (985)649-4737 (985)718-1170 010100011100000101010 Qualified in state and federal courts ferrals and Consultations [email protected] [email protected] and administrative law hearings Attorneys At Law 30 Plus Years Handling State and Federal Workers Comp Claims Jeff Peterson, M.Ed., CRC, CVE, CLCP 1100 Poydras Street, Suite 2100 337-625-2526 New Orleans, LA 70163 COMP - What You Don’t Know [email protected] Can Hurt Your PI Case (504) 599-8500 236 Fremaux Avenue • Slidell, Louisiana 70458

Louisiana Bar Journal Vol. 67, No. 1 79 Louisiana Bar Journal October / November 2019 230 Vol. 67, No. 3 www.lsba.org Louisiana Bar Journal October / November 2019 231 Vol. 67, No. 3 www.lsba.org

0619_LBJ_JOURNAL_MAGAZINE_JUNE.indd 79 4/24/2019 12:24:38 PM The Last Word How ’d I Do?

By E. Phelps Gay

hese days you can’t order a piz- za, rent a car, book a room or get your battery replaced without the service providers asking you Tto fill out a survey to tell them how they did. How was the service? Lawyer: “Hello, client. I just took a deposition of the plain- Were our people courteous and professional? Was the service car- tiff. What did you think? Weren’t my questions incisive and well- ried out in a timely fashion? Did we successfully complete your constructed? Would you agree that I skillfully elicited important order? How would you rank our performance on a scale of 1-to- testimony helpful to our defense? Wasn’t my demeanor a perfect 10? Would you use our company again? Would you recommend combination of tough but professional? How did I do on a scale of it to your friends? 1-to-10?” Almost as annoyingly, nowadays service providers are not con- (Client’s Private Thoughts: “How quickly can we cross this yo- tent merely to have your business. No, they must invite you to join yo off our approved list?”) their special Rewards Club so you can get a lot of little discounts the next time you book a room or buy a cookie. Gone are the days when Lawyer: “Hello, client. I just made an oral argument in court you simply called someone on the phone or walked into a shop, on our motion for summary judgment. How’d I do? Did you think asked for service, got it, paid the bill and went on your way. Now, my argument was persuasive? Weren’t my responses to the judge’s no matter how brief or insignificant the transaction, they want you questions clever and articulate? Would you agree I kept oppos- to tell them how they did. Recently, as I wound down my already- ing counsel on the defensive? Based on what you saw, would you too-long call to a rental car agency, eager to turn back to other press- hire me again to argue an important motion?” (Client’s Private ing matters, the company representative asked: “Would you mind Thoughts: “I’d prefer root canal.”) holding on to take a brief survey?” Politely, I declined, knowing “brief” in this context meant an excruciating extra 20 minutes. Back in the day — an expression old dudes tend to use, which Why is all this happening? I suppose there is nothing wrong may be as annoying as people asking you to take a survey — I with companies wanting feedback in order to gauge “customer sat- remember telling our managing partner, the late A.R. (Dick) isfaction,” although, in truth, I suspect they are trying to “manufac- Christovich, Jr., that despite doing what I thought was a pretty good ture” customer satisfaction so they can brag about it in their next job on a case, I got no positive comment or pat on the back from advertisement. Car companies want good ratings from J.D. Power. the client. Colleges and universities want high rankings from U.S. News Dick, who at age 19 had flown bombers over Germany and & World Report. Hotels want nice comments on Yelp and Trip lived to tell the tale, looked at me as if I were possibly the most piti- Advisor. As a reader of these ratings and rankings, one must take ful specimen he had ever had the misfortune to examine. Gruffly, them — good or bad — with a healthy dose of salt. Or, perhaps, a he replied: “The pat on the back is when they pay your bill.” healthy pinch of the nose. Translated: Just work hard, do your job, and don’t go looking for All this got me wondering how our clients would react if we, any pat on the back. their service-providing lawyers, were constantly asking them to tell So, with this alleged humor column, how’d I do? (Don’t us how we are doing or how we did. For example: answer that!) t E. Phelps Gay is a partner and former managing Lawyer: “Hello, client. As you know, I just filed an Answer to partner of Christovich & Kearney, L.L.P. He also is an that new lawsuit. How did I do? Didn’t you like those affirmative arbitrator and mediator with The Patterson Resolution Group. A graduate of Princeton University and defenses? And what about all those denials for lack of sufficient -in Tulane Law School, he served as 2000-01 president formation to justify a belief? Weren’t those great? And that prayer of the Louisiana State Bar Association and as 2016- for dismissal with prejudice — wasn’t that impressive?” 17 president of the Louisiana Association of Defense (Client’s Private Thoughts: “God help me.”) Counsel. ([email protected]; Ste. 2300, 601 Poydras St., New Orleans, LA 70130)

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Judy Perry Martinez ABA President 2019-2020 VOLUME 67, NUMBER 3

Also Inside: • When Disability Law Meets Private Land Use Regulations

• U.S. Supreme Court Declines to Mandate Class Arbitration October / November 2019