Code of Professionalism Also Inside: • Legislative Updates Regarding Juvenile Matters in Louisiana
• Attracting Moderate Income Clients: Why Expanding Your Client Base Can Increase Your Bottom Line
• Louisiana’s Legal Legends: The Dawkinses of Union Parish
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LawPay is a registered ISO of Citizens Bank, N.A. Louisiana Bar Journal Vol. 66, No. 3 169 Judy Perry Martinez
1702 OctoberOctober / /November November 2018 2018
1018_LBJ_JOURNAL_MAGAZINE_October.indd 2 8/22/2018 2:56:44 PM ®
October / November 2018 Volume 66, Number 3 Departments Features Editor’s Message...... 174 LSBA and Louisiana Supreme Court Update Attorney Code of President’s Message...... 175 Professionalism Association Actions...... 194 By Alicia M. Bendana...... 176
Practice Management...... 197 Legislative Updates Regarding Juvenile Matters in Louisiana Lawyers Assistance...... 198 By Katy Walker, Ph.D...... 180 Focus on Diversity...... 200 Modest Means Online Puzzle...... 202 Legal Directory Focus on Professionalism..... 204 Attracting Moderate Income Clients: Why Expanding Your Client Base Discipline Reports...... 206 Can Increase Your Bottom Line Recent Developments...... 209 By Amy E. Duncan...... 184
Young Lawyers...... 224 Louisiana’s Legal Legends: La. Center for Law and The Dawkinses of Union Parish Book Excerpt: A Family in the Civic Education ...... 226 Louisiana Hill Country: Judicial Notes...... 228 The Dawkinses of Union Parish By Beth Dawkins Bassett...... 188 People...... 230 News...... 232 Classified...... 238 The Last Word...... 240 Who’s Who in ADR 2017 Also Inside 2018 LOUISIANA STATE BAR ASSOCIATION ANNUAL REPORT Postal Report...... 173 Member Services...... 196 Alcohol/Drug Abuse Hotline.. 202 Secret Santa...... 210
Supplement to the Louisiana Bar Journal Supplement to the Louisiana Bar Journal Advertisers’ Index...... 220 Volume 66, No. 3 Louisiana Bar Journal Vol. 66, No. 3 Who’s Who in ADR 2018 1 Louisiana Bar Journal / 2017 Annual Report 1 SOLACE...... 228 Who’s Who in ADR 2018 Supplement LSBA Annual Report 2017 Supplement mailed with this issue. mailed with this issue.
Louisiana Bar Journal Vol. 66, No. 3 171 ® Officers 2018-19 President Editorial Board Barry H. Grodsky • (504)599-8535 þ John E. McAuliffe, Jr. þ C. A. (Hap) Martin III President-Elect Editor (318)388-4700 Robert A. Kutcher • (504)830-3820 (504)840-4909 þ Alainna R. Mire Secretary (318)449-5046 þ Christopher D. Cazenave John E. McAuliffe, Jr. • (504)840-4909 (504)582-8408 þ Claire McDaniel-Ojeh Treasurer (225)622-2005 þ John S. (Chip) Coulter Shayna L. Sonnier • (337)436-1600 (225)362-2445 þ John H. Musser V (504)523-0400 Immediate Past President þ Anthony M. DiLeo (504)274-0087 þ Roy H. (Hal) Odom, Jr. Dona Kay Renegar • (337)234-5350 (318)227-3762 þ Brendan P. Doherty þ Maggie Trahan Simar (832)255-6019 Board of Governors 2018-19 (337)394-6133 First District þ Stephen I. Dwyer þ Kristine D. Smiley (504)838-9090 D. Skylar Rosenbloom • (504)556-5507 (225)298-0770 þ Laura S. Gravener Darryl J. Foster • (504)596-6304 þ Gail S. Stephenson (504)554-5807 Second District (225)771-4900, ext. 216 þ Mark A. Hill þ Scott L. Sternberg Stephen I. Dwyer • (504)838-9090 (504)581-1301 Third District (504)324-2141 þ Gerald J. (Jerry) Huffman, Jr. þ Shannon Seiler Dartez • (337)233-1471 Tyler G. Storms (504)957-9114 (318)255-7805 Fourth District þ Carrie L. Jones þ Adrejia L. Boutte Swafford J. Lee Hoffoss, Jr. • (337)433-2053 (225)346-1461 (504)561-5700 Fifth District þ Margaret E. Judice þ Patrick A. Talley, Jr. Edward J. Walters, Jr. • (225)236-3636 (337)828-1880 (504)584-9220 þ Robert A. Kutcher Valerie Turner Schexnayder • (504)813-3633 þ Edward J. Walters, Jr. (504)830-3820 Sixth District (225)236-3636 þ Winfield E. Little, Jr. Edward L. Tarpley, Jr. • (318)487-1460 þ Jack K. Whitehead, Jr. (337)430-0907 (225)303-8600 Seventh District 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)458-5839 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 Dylan T. Thriffiley • (504)842-4517 41450540. Return undeliverable Canadian addresses to: 4240 Harvester At-Large Members Rd #2, Burlington, ON L7L 0E8. Jermaine Guillory • (225)389-8846 Postmaster: Send change of address to: Louisiana Bar Journal, 601 St. Monique Y. Metoyer • (318)729-1880 Charles Avenue, New Orleans, Louisiana 70130. Lynn Luker • (504)669-0322 Subscriber Service: For the fastest service or questions, call Darlene M. LSU Paul M. Hebert Law Center LaBranche at (504)619-0112 or (800)421-5722, ext. 112. John M. Church • (225)578-8701 Tulane University Law School Editorial and Advertising: Ronald J. Scalise, Jr. • (504)865-5958 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- L. Kent Breard, Jr. • (318)387-8000 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. Sandra K. Cosby • (504)452-7719 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
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Louisiana Bar Journal Vol. 66, No. 3 173 EDITOR’S MESSAGE
40 Years (and Counting?) By John E. McAuliffe, Jr. s this issue of the Louisiana Bar Journal is distributed to our members, our very new- est lawyers will be sworn in ...Hold on to those good friends you onA Oct. 15. We congratulate all of them and welcome them to this practice of law. made in law school. They will continue to be It was 40 years ago in October 1978 that I and two of my best friends were sworn important to you. They can be an unending in as new attorneys. I consider myself lucky to have attended law school with such close friends. However, we all took source of counsel for you, and sometimes your different paths after graduation. Jean Champagne, Leon Cannizzaro next position or opportunity can result from and I all graduated from De La Salle High School. The three of us then attended and your [law school mates]... graduated from the University of New Orleans. Finally, we three graduated from Loyola University Law School in 1978. The three of us have remained close of all, your good friends are in the best At that point, we finally “separated” friends. We continue to meet for lunch. position to tell you when YOU are wrong from each other — at least as far as our We continue to discuss our legal and or should change something in your life. distinct careers. non-legal problems. We have attended Second, there are many careers where a Jean began his career as a CPA-lawyer weddings for all of our respective children. law degree gives you a “foot in the door” with one of the “big eight” accounting Our wives are friends. We all miss each and an advantage. You do not have to actu- firms. Thereafter, he has been involved other’s parents although we continue to ally “practice” law. Business, accounting, with several businesses and currently tell stories about them. (I think I do a fairly banking and other industries have a need works for a bank. He is well known in good imitation of Jean’s father. No need for well-educated (i.e., law degree) and business, banking and civic circles in St. to imitate Leon’s father. If you see Leon, innovative professionals. Keep your op- Tammany Parish. (Yes, he moved away you are seeing his Dad.) tions open. Your first career track does to that faraway land on the north shore All of this leads to two important points not have to be your last. Again, those law of Lake Pontchartrain.) for our new attorneys. school friends may be in the best position Leon began his career as an assistant First, hold on to those good friends you to assist you in any career decisions. district attorney in Orleans Parish and made in law school. They will continue We salute our new admittees. Many of then had a short stint as a criminal defense to be important to you. They can be an you, at times, exhibited a herculean effort attorney. After that came his political unending source of counsel for you, and in balancing your studies, family life, career as a trial court judge, an appellate sometimes your next position or oppor- work and personal obligations. You and court judge and finally as Orleans Parish tunity can result from your continued your friends will now join our profession, district attorney. He, of course, remains associations with your law school mates. and we hope your career is rewarding and in that office. Through the years, you will need advice gratifying as you push to YOUR 40 years My path was different from both of my on issues unrelated to your particular of practice. friends. I spent one year as an in-house field of practice. You will find your law corporate attorney. I then left the corporate school friends may well have invaluable world and became an insurance defense information and insight for you. Most attorney, where I am today.
174 October / November 2018 PRESIDENT’S MESSAGE
“Try It. You’ll Like It!” By Barry H. Grodsky few years ago, my wife, At a recent meeting of the National and Randy P. Roussel’s photography. What daughter and I went to a sea- Conference of Bar Presidents, an affili- interests do you have outside the practice? food restaurant for dinner. My ate of the American Bar Association, the Let’s publish it. daughter, Caroline, had never moderator asked the group — more than It’s so easy to get involved. Check out seen,A much less eaten, a raw oyster and 100 people were in attendance — if anyone the LSBA’s website and find something, was fascinated when a dozen of them was satisfied with his/her Bar. I looked anything, which interests you and just do it. were delivered to me. As she kept staring, around and no one had raised a hand. I For our young lawyers, the Young Lawyers I asked if she wanted to try one. “Nope.” whispered to Loretta Larsen, our Executive Division has great programs, many focused I asked again, same response. Finally, I Director, that I was really happy. She said, on access to justice. For more seasoned asked, “Why not?” She said, “Because I “Raise your hand!” I did. Only one other lawyers, get active in the Senior Lawyers don’t like them.” I replied, “How do you Bar president did the same. Division. Each Division has much to offer, know? You’ve never had one.” I gave a lot I see significant problems in other states including a joint lunch and CLE program of reasons why she should try an oyster — unfriendly Legislatures controlling the in Baton Rouge in February. and, reluctantly, Caroline finally ate one Bars, poor relationships between the Bars Those who get involved see the merits with a bit of cocktail sauce. Two bites, and the state courts, Bars being sued, the and gain from it. Often, once you are in, then she spit it out. “That’s fine,” I said, inability to get volunteers, turmoil in certain participation expands. But, almost without “at least you tried one.” courts. We have none of these problems. exception, those who complain the most A few minutes later, she asked if she What we have is an energetic Bar with about the Bar do the least for it. If you give could try another one. This time the result countless volunteers and Loretta and our to the Bar, the Bar will give back to you was different. She liked it. She proceeded friends at the Bar who do an unbelievable many times over. to eat the last six I had on my plate. job. But there are far too many among our I have spoken personally to many law- That dinner came to mind when I bumped approximately 23,000 members — judges yers who have become active; some have into a well-known New Orleans attorney and lawyers alike — who are simply afraid become very involved and others have some time ago. He had been disillusioned by of sticking their toes in the water. Perhaps done one thing. But, frankly, that’s all I’m a prior experience with the Bar. I asked him fear of the unknown — like eating an oyster asking. Do one thing — anything — for to become a mentor in the Transition Into for the first time — is preventing too many the Bar. What’s stopping you? The simple Practice Program. He said no. I asked why of our members from joining in. answer is “you.” If I can convince just one not. He said he would not like it. We went I understand. We’re all busy with jobs member to perform one Bar function, then back and forth and then he said, “You’ve got and families. Other interests take our time. I’ve succeeded. But with my faith in the Bar, five minutes to convince me.” Five minutes There are only so many hours in a day. participating in its programs and activities, later, he decided to become a mentor. He But, believe me, you’re missing out. Just having witnessed the true camaraderie of our went through the mentor training, completed like my daughter, try one. Join a committee members at Bar functions and seeing how the mentor program and went to the mentor or a section. Don’t just attend a CLE, but much you get back just by giving a little, I reception. He admitted that, once he was give one. Become a mentor. Run for a seat know that if you try it, you really will like it. convinced to try it, he liked it. Amazing! in the House of Delegates. Volunteer for a I also know that, as you give to the Bar, As long as I have been in Bar leader- law school orientation program. Submit an both the Bar and you will benefit. I can as- ship, I have preached this — try something, article for the Louisiana Bar Journal. Attend sure you of that. Give it a try and see what anything, for the Bar. You will be amazed. the LSBA’s Midyear Meeting or Annual the Bar can offer. There’s no doubt that, Perhaps I am the Bar’s biggest cheerleader. Meeting. Do one thing. That’s all I ask. when you bite into this oyster, you will That’s fine. But I wouldn’t do this if I did Becoming engaged in Bar activities can find your pearl. not believe in our Bar. I am convinced now be outside the law, too. Let’s talk about your more than ever that many lawyers simply non-legal interests. The Journal has featured don’t know just how terrific our Bar is and articles on Anthony M. (Tony) DiLeo’s what it has to offer. paintings and Judge Michael A. Pitman’s
Louisiana Bar Journal Vol. 66, No. 3 175 The legal profession is a learned calling. As such, lawyers should act with honesty and integrity and be mindful of our responsibility to the judicial system, the public, our colleagues, and the rule of law. We, as lawyers, should always aspire to the highest ideals of our profession.
• My word is my bond. • I will conduct myself with honesty, dignity, civility, courtesy and fairness and will not engage in any demeaning or derogatory actions or commentary toward others.
• I will not knowingly make statements of fact or law that are untrue or misleading and I will clearly identify for other counsel changes I have made in documents submitted to me. • I will be punctual in my communication with clients, other counsel and the court. I will honor scheduled appearances and will cooperate with other counsel in all respects.
• I will allow counsel fair opportunity to respond and will grant reasonable requests for extensions of time. • I will not abuse or misuse the law, its procedures or the participants in the judicial process. • I will cooperate with counsel and the court to reduce the cost of litigation and will not file or oppose pleadings, conduct discovery or utilize any course of conduct for the purpose of undue delay or harassment of any other counsel or party.
• I will not engage in personal attacks on other counsel or the court or use the threat of sanctions as a litigation tactic.
• I will support my profession’s efforts to enforce its disciplinary rules and will not make unfounded allegations of unethical conduct about other counsel.
• I will work to protect and improve the image of the legal profession in the eyes of the public. • I will endeavor to improve our system of justice. • I will use technology, including social media, responsibly. My words and actions, no matter how conveyed, should reflect the professionalism expected of me as a lawyer.
• I will seek opportunities to be of service to the bench and bar and assist those who cannot afford legal help. • I will be supportive of new members in the profession. • I will stay informed about changes in the law, communication, and technology which affect the practice of law.
Following approval by the Louisiana State Bar Association House of Delegates and the Board of Governors at the Midyear Meeting, and approval by the Supreme Court of Louisiana on Jan. 10, 1992, the Code of Professionalism was adopted for the membership. This revised Code, a product of the LSBA Committee on the Profession, was approved by the LSBA HOD in January 2018 and approved by the LA Supreme Court in March 2018.
176 October / November 2018 LSBA and Louisiana Supreme Court Update Attorney Code of Professionalism By Alicia M. Bendana
he Louisiana State Bar Associa- language is underlined and any revised or ment of any other counsel or party. tion’s (LSBA) Professionalism updated pledges are in italics. ► I will not engage in personal attacks and Quality of Life Committee on other counsel or the court or use the began drafting Louisiana’s first Code of Professionalism threat of sanctions as a litigation tactic. attorneyT Code of Professionalism1 in 1991. ► I will support my profession’s efforts The LSBA’s House of Delegates and Board The legal profession is a learned call- to enforce its disciplinary rules and will not of Governors approved the first Code at its ing. As such, lawyers should act with make unfounded allegations of unethical Midyear Meeting the following year, and, honesty and integrity and be mindful of conduct about other counsel. on Jan. 20, 1992, the Louisiana Supreme our responsibility to the judicial system, ► I will work to protect and improve Court adopted it. the public, our colleagues, and the rule of the image of the legal profession in the In 2017, the LSBA’s Committee on the law. We, as lawyers, should always aspire eyes of the public. Profession, under the leadership of cur- to the highest ideals of our profession. ► I will endeavor to improve our rent LSBA President Barry H. Grodsky, system of justice. formed a subcommittee to revisit, update ► My word is my bond. ► I will use technology, including and modernize the 26-year-old Code of ► I will conduct myself with honesty, social media, responsibly. My words and Professionalism. At the outset, the sub- dignity, civility, courtesy and fairness actions, no matter how conveyed, should committee agreed it would not rewrite and will not engage in any demeaning or reflect the professionalism expected of the Code and would style any additions derogatory actions or commentary toward me as a lawyer. or changes to conform with the existing others. ► I will seek opportunities to be of language in the Code. The subcommit- ► I will not knowingly make statements service to the bench and bar and assist tee conducted numerous meetings to of fact or law that are untrue or mislead- those who cannot afford legal help. discuss current challenges to attorneys, ing and I will clearly identify for other ► I will be supportive of new members the judicial system and the image of the counsel changes I have made in documents in the profession. legal profession. After numerous drafts, submitted to me. ► I will stay informed about changes the subcommittee agreed on a final draft ► I will be punctual in my communi- in the law, communication, and technology of an amended Code. The LSBA’s House cation with clients, other counsel and the which affect the practice of law. of Delegates and Board of Governors ap- court. I will honor scheduled appearances In 1997, the Louisiana Supreme Court proved the proposed amended Code at the and will cooperate with other counsel in amended its Rules for Continuing Legal LSBA’s Midyear Meeting in January 2018 all respects. Education to require that every Louisiana and the Louisiana Supreme Court adopted ► I will allow counsel fair opportu- lawyer attend at least one hour of profes- the amended Code of Professionalism, as nity to respond and will grant reasonable sionalism CLE each year. Attorneys have written, on April 11, 2018. requests for extensions of time. been taking professionalism courses on The Code now, as before, represents ► I will not abuse or misuse the law, essentially the same professionalism topics aspirational goals for Louisiana attorneys its procedures or the participants in the for the past 20 years. The new amended who seek to implement and maintain judicial process. Code opens up a number of additional standards of civility and professionalism ► I will cooperate with counsel and the topics related to attorney professionalism that exceed the minimum mandated by the court to reduce the cost of litigation and which the Committee on the Profession Louisiana Rules of Professional Conduct. will not file or oppose pleadings, conduct hopes will inspire education, discussion A “redline” of the LSBA’s new amended discovery or utilize any course of conduct and action. Some of the new changes to Code of Professionalism is below. All new for the purpose of undue delay or harass- the Code include the following.
Louisiana Bar Journal Vol. 66, No. 3 177 Preamble: The Law they individually maintain a presence on is a Profession Public Image of the Legal LinkedIn for professional use (less than Profession 15 percent do not). The new preamble to the Code stresses This was not the case 20 years ago. The that the law is a profession and that “we, The public’s perception of, and faith new Code introduces the concept of ePro- as lawyers, should always aspire to the in, the legal profession is waning. There is fessionalism, defined as the application of highest ideals of our profession.” The a need to preserve the image of the legal professionalism to an attorney’s Internet preamble identifies the core characteristics profession in the eyes of the public and activities. Beyond the firm website and use of the professional attorney as honesty to support programs and activities that of LinkedIn (a professional networking and integrity and stresses the professional educate the public about the law and the social media platform), attorneys are now attorney’s responsibility to the judicial legal system. Attorneys should aspire to communicating for professional purposes system, the public, colleagues and the rule conduct themselves in a manner that will through blogging, Facebook and Twit- of law. The new Code encourages attorneys encourage trust of the legal profession by ter. Because some of these social media to promote and commit to civility in their members of the public. Attorneys should platforms were originally developed and professional lives and to work to restore also be mindful of their obligation to used for personal communications, attor- greater civility to the profession.2 enhance the image of the legal profes- neys focused on professionalism should sion in all of their professional activities be mindful about drawing a distinction and be so guided in comments about the between private and public communica- Inclusive Thinking tions on such platforms as those lines are judiciary, opposing counsel or the mem- 5 The new Code establishes an aspira- bers of any other profession, and in the not always clear. tional goal for lawyers to be mindful of methods and contents of advertising and refraining from actions or commentary public communications. Pro Bono and Public that would be considered demeaning or Service derogatory toward others. This concept Improve System of Justice of inclusive thinking goes beyond the The new Code recommends that attor- boundaries of anti-discrimination and As a self-governing legal community, neys seeking to deepen their commitment hopes to inspire attorneys to consider and attorneys should always seek to improve to professionalism look for opportunities incorporate alternative perspectives, expe- the law and to improve access to, and the to provide pro bono services to those in riences, values, expectations and modes of administration of, justice. The hope is need. While there are many ways that thought before speaking and taking action. that the new Code will inspire Louisiana private citizens, including attorneys, can attorneys to work with judges and other serve the public interest, only attorneys Cooperation members of the bar to strive to make the can provide legal representation to the legal system more accessible, affordable indigent. Notwithstanding the primary The Bar understands that attorneys must and responsive to all. benefits of assisting the poor and improv- be zealous advocates for their clients, and, ing the system of justice, attorneys who especially in high-stakes litigation, op- Social Media do pro bono work often report a number portunities for cooperation do not always of professional and personal benefits present themselves. Attorneys in adver- The American Bar Association’s Legal including gaining additional experi- sarial situations should, however, challenge Technology Resource Center surveys in- ence, education, increased recognition themselves to look for opportunities for dividual attorneys’ and law firms’ use of and personal satisfaction.6 Moreover, cooperation, communication, compro- blogging and social media. The following additional incentive exists for pro bono mise and search for creative solutions. A statistics from the Center’s 2016 Legal service in Louisiana. Currently, Louisiana “scorched earth” approach in litigation and Technology Survey Report reveal a ma- attorneys must earn 12.5 hours of CLE negotiation can be counter-productive as jority of attorneys and law firms now use credit each year to maintain their law such an approach costs clients money and social media for professional purposes:4 licenses. In March 2015, the Louisiana frequently diverts attorneys’ time, energy ► 74 percent reported that their firms Supreme Court announced Rule XXX, and focus away from what, oftentimes, have a presence on social media (only 26 Rule 3, Regulation 3.21 which went into amounts to a smaller number of genuine percent do not). effect May 1, 2015. The Rule states that and relevant disputed facts or issues. Like- ► 76 percent reported individually us- attorneys who provide pro bono legal wise in transactional matters, adversaries ing social media for professional purposes representation “shall receive one (1) hour who are pushed too hard may refuse to (only 24 percent do not). of CLE credit for each five (5) hours of agree to deal points “on principle” despite ► 78 percent report that their firms pro bono representation, up to a maximum the fact that such concessions may cost the maintain a presence on LinkedIn (only of three (3) hours of CLE credit for each party nothing and create goodwill which 22 percent do not). calendar year.”7 will facilitate deal closing.3 ► More than 85 percent report that
178 October / November 2018 Mentorship nology Resource Center, Social Media for Lawyers, www.americanbar.org/groups/departments_offices/ legal_technology_resources/resources/social_me- As all experienced attorneys know, dia.html. Jared Correia, Twitter in One Hour for law school does not fully prepare new Lawyers (2012); Dennis Kennedy and Allison attorneys for the practice of law. Beyond C. Shields, Facebook in One Hour for Lawyers (2012); Dennis Kennedy and Allison C. Shields, what can be learned in books, new attor- LinkedIn in One Hour for Lawyers (2d ed. 2013); neys must learn the most effective ways of Ernie Svenson, Blogging in One Hour for Lawyers advocating to judges and juries, must learn (2012); Cal. Comm. On Prof’l Responsibility & how to handle themselves around difficult, Conduct, Formal Op. 2012-186 (2012); Col. Bar Ass’n Ethics Comm., Formal Op. 127, Use of Social more experienced opposing counsel, Media for Investigative Purposes (2015); Dist. of and must learn how to manage difficult Columbia Bar, Op. 370, Social Media I: Marketing clients, all while assessing the value of and Personal Use (2016); Dist. of Columbia Bar, participating in the local legal community, Op. 371, Social Media II: Use of Social Media in Providing Legal Services (2016); N.Y. State Bar assisting the less fortunate through pro Ass’n Commercial & Federal Litigation Section, bono service, and self-monitoring their Social Media Ethics Guidelines (updated June 9, behavior pursuant to the Rules of Profes- 2015); Pa. Bar Ass’n Comm. on Ethics & Prof’l sional Conduct. The new Code does not Responsibility, Formal Op. 2014-300 (2014), Ethi- cal Obligations for Attorneys Using Social Media. advocate forced mentoring but rather 6. Resources, Pro Bono and Public Service: encourages experienced attorneys to look amendments to Code of Professionalism, Roxanne J. Medina-Solomon, “Variety is the Spice for opportunities to assist new attorneys the LSBA and the Supreme Court seek to of Pro Bono,” 78 Mich. B.J. 1312 (1999); Deborah navigate the many difficult challenges J. Rhode, “Pro Bono in Principle and in Practice,” expand attorneys’ professionalism goals 53 J. Legal Educ. 413 (2003); Barbara A. Ruth, they will inevitably face as their careers and reinvigorate discussion, education Tax Benefits Associated With Pro Bono and Other progress. This goal also seeks to instill a and action on a broader, more current Volunteer Activities, https://www.duanemorris.com/ professional and service-focused mindset scope of professionalism topics. articles/article3160.html (March 3, 2009); Melissa in the new members of the profession.8 H. Weresh, “The Chicken or the Egg? Public Service Orientation and Lawyer Well-Being,” 36 U. Ark. FOOTNOTES Little Rock L. Rev. 463 (2014). Continuing Skill 7. “To receive credit, the Member shall submit Development and 1. Forty-four of the 50 state bar associations, MCLE Form 6 (Application for CLE Credit for Pro as well as many local bar associations and courts, Bono Services).” Id. Adaptation have adopted voluntary Codes of Professionalism. 8. Resources, Mentoring: Ida Abbott, The www.americanbar.org/groups/professional_respon- Lawyer’s Guide to Mentoring (2000); Ida Abbott, sibility/resources/professionalism/professional- Working with a Mentor: 50 Practical Suggestions Graduating from law school, passing for Success (2006); Matthew Christiano and Amy the bar exam, and taking required continu- ism_codes.html. 2. Resources, Law as a Profession: Neil Ham- Timmer, Maximizing Relationships to Become ing legal education classes should not ilton and Verna Monson, “The Positive Empirical a Successful Lawyer: Innovative Mentoring for be the limit of an attorney’s education. Relationship of Professionalism to Effectiveness Lawyers and Law Students (2012); Lori L. Keating in the Practice of Law,” 24 Geo J. Legal Ethics and Amy Timmer, Mentoring: No App for That, in The amended Code sets an aspirational the Relevant Lawyer: Reimagining the Future of goal for attorneys to, over the course of 137, 140 (2011); Michael B. Greenstein, On Be- ing a Lawyer of Good Reputation, and Why That the Legal Profession (Paul A. Haskins ed., 2015); their careers, continually self-evaluate Matters (March 17, 2011), http://spousealouse. Michael Maslanka, At Your Desk, Texas Bar Blog capacities and skills that clients want and wordpress.com/2011/03/17/on-being-a-lawyer-of- (Sept. 21, 2015), http://blog.texasbar.com/2015/09/ good-reputation-and-why-that-matters/; Daniel L. articles/texas-bar-tv/mike-maslanka-your-desk/; need. An attorney’s development of skills National Legal Mentoring Consortium, http://www. is a life-long process acquired through Harris and John V. Acosta, “Conduct Counts, On Professionalism: Professionalism for Litigation and legalmentoring.org. stages. Given today’s ever-changing Courtroom Practice,” 67 Or.St.B.Bull. 40 (2007); legal landscape, attorneys should seek Christopher J. Masoner, “The Importance of Percep- Alicia M. Bendana served tions,” 75 J. Kan. B.A. 7 (March 2006); Pamela Bucy on the Louisiana State Bar to be comfortable adapting to fast-paced Association (LSBA) Com- changes in the law, communication and Pierson, The Business of Being a Lawyer (2014); Heather Schlegel, In Trust We Trust: Why Reputa- mittee on the Profession’s technology. tion is the Currency of the Future, CNN (Sept. 23, subcommittee that updated 2014), http://edition.cnn.com/2014/09/23/opinion/ the Code of Professional- in-trust-reputation-currency; Fred C. Zacharias, ism. She is of counsel to the Conclusion “Effects of Reputation on the Legal Profession,” New Orleans law firm of 65 Wash. & Lee L. Rev. 173 (2008). Lowe, Stein, Hoffman, All- The practice of law is a profession. As 3. Resources, Cooperation: Robin Fisher and weiss & Hauver, L.L.P. Her William Ury, Getting to Yes: Negotiating Agreement primary areas of practice members of that profession, attorneys pur- are bankruptcy litigation sue a common calling in the spirit of public Without Giving In (Bruce Patton ed., 3rd ed. 2011). 4. Allison Shields, ABA TECHREPORT 2016, and commercial litigation service for the public good. Throughout Blogging and Social Media, www.americanbar.org/ with an emphasis on business torts and malfeasance. the history of this country, citizens have groups/law_practice/publications/techreport/2016/ She is a member of the LSBA’s House of Delegates, Committee on the Profession and Bankruptcy Law looked to the legal profession for leader- social_media_blogging.html. 5. Resources, Social Media: ABA Legal Tech- Section. ([email protected]; Ste. 3600, 701 ship and guidance. In approving the above Poydras St., New Orleans, LA 70139)
LouisianaLouisiana Bar Bar Journal Journal Vol. Vol. 66, 66, No. No. 3 3 179179 Legislative Updates Regarding Juvenile Matters in Louisiana By Katy Walker, Ph.D.
180 October / November 2018 ver the past decade, courts the Louisiana Legislature made further Under Act 467, however, a child and legislatures have increas- strides to bring the state into line with age 14 or older and adjudicated for ingly repudiated the punitive national best practices in juvenile law first- degree/aggravated rape (La. R.S. responses that characterized and procedures, passing a series of 14:42) or aggravated kidnapping (La. Ojuvenile sentencing in the 1990s. These reforms that affect a range of juvenile R.S. 14:44) may now have his or her policy reforms acknowledge and further issues, explained below. case modified by a judge after serving the juvenile justice system’s focus on re- at least three years in the custody of habilitation and individualized treatment. Act 467: Rolling Back OJJ. In cases involving armed robbery Additionally, a large body of research has Mandatory Sentences (La. R.S. 14:64), a judge may modify a emerged in the past three decades dem- child’s disposition after three years or, if onstrating the need to further examine the for Youth the disposition is shorter than three years, use of incarceration in the juvenile jus- after two-thirds of his time is served. tice system. Numerous studies have es- The passage of Act 467, signed into Unfortunately, dispositions for first- or tablished that juvenile incarceration fails law by Governor Edwards on May 23, second-degree murder remain ineligible to help rehabilitate young people, finding marks a historic shift in how the state for modification. The provisions of the that 70 to 80 percent of youth are arrested treats young people who have committed new law apply to all children in the within two years of release. This research more serious offenses. Specifically, Act custody of OJJ on or after Aug. 1, 2018. also shows that incarceration is no more 467 rolls back mandatory sentences for These changes bring state law into effective in reducing future criminality or youth as articulated in La. Ch.C. art. line with an increasing body of research 897.1, colloquially referred to as “the delinquency among young people than 3 indicating that there is little or no probation or alternative sanctions.1 Vitter Law.” correlation between a child’s length of While the groundwork for juvenile Under previous law, youth 14 years stay in a residential facility and his or of age and older and adjudicated in the 6 justice reform in Louisiana was initiated 4 her likelihood of reoffending. Indeed, in 2003,2 there has been a resurgence of juvenile justice system for first-degree research shows that placement in a effort among lawmakers in recent years murder, second-degree murder, first juvenile facility beyond six months is to follow through on this promise. In do- degree/aggravated rape or aggravated ineffective at reducing recidivism and ing so, they have joined policymakers kidnapping were committed to secure may even increase recidivism rates.7 and stakeholders nationwide who rec- care until the age of 21 (“juvenile life”) Mandatory sentences also ignore the ognize that young people have an enor- without the opportunity to have their fact that, as youth mature, they typically mous capacity for change and positive sentences modified. Additionally, for outgrow the types of behavior that lead growth, notwithstanding the severity of children adjudicated delinquent for to contact with the juvenile or criminal their crimes. armed robbery, while the judge had the justice systems. This is frequently During 2016 alone, the Louisiana discretion to impose whatever sentence referred to as the “age-crime curve” Legislature passed a trilogy of sweep- he or she deemed appropriate (up to age and holds true even for those youth who ing reforms. That year, with the passage 21), a child had to serve the entire length commit violent offenses.8 of the “Raise the Age Act” (Act 501), of the sentence imposed without the Act 467’s amendments to La. Ch.C. Louisiana joined 41 other states that have possibility of review or modification of art. 897.1, while imperfect, bring raised the age of juvenile jurisdiction to the sentence. Louisiana’s law into closer alignment 17. The year 2016 also saw the enact- The resulting dynamic of this law was with the purpose of the juvenile justice that young people were incarcerated far ment of a law (Act 499) to “right-size” 5 system, as well as recent Supreme the juvenile justice system by ensuring past the point of rehabilitation, which Court cases recognizing the need for that children are not kept in state facili- was wasteful and counterproductive. individualized sentencing in juvenile ties for excessive periods of time and by Moreover, the inability of judges cases due to a juvenile’s diminished mandating data reporting about youth in to modify these sentences not only culpability and heightened ability for detention centers and juvenile prisons. discouraged children from doing rehabilitation. Additionally, the “Safe and Fair Return well while in custody but also proved Act” (Act 617) mandates that children problematic for facility staff who lacked the ability to provide incentives to Act 355: Ensuring Regular in the custody of the Office of Juvenile Post-Dispositional Hearings Justice (OJJ) receive semi-annual review the children to excel under their care. hearings to ensure that the children are Another detrimental consequence of the for Youth in State Custody receiving appropriate services and to de- law was that children, upon completing termine whether they are making prog- their sentences, were released without In 2016, state lawmakers passed ress in custody in anticipation of their any supervision or re-entry services to legislation (Act 617) requiring routine eventual release. help them successfully re-enter their in-person hearings before a judge for During the 2018 legislative session, communities. children in the custody of OJJ. The law
Louisiana Bar Journal Vol. 66, No. 3 181 stipulates that all children in OJJ custody felonies are nearly identical. Youth with then find that the child presents a particu- receive review hearings every six months non-violent felonies face, on average, larized risk of flight or physical harm to to determine whether they are making the longest sentences. Further, as with himself or others. The fact that a child progress in custody (La. Ch.C. art. sentence length, the amount of time a is detained is not sufficient justification 906). Additionally, for children serving child has served does not necessarily for restraints. If a request for a child to time in secure care for a felony-grade correlate with the seriousness of his be shackled is made, the child’s attorney offense that is not a crime of violence, offense. In fact, youth serving time for must be provided an opportunity to be a contradictory hearing must occur non-violent felonies and misdemeanors heard and object on the record, but the after nine months to determine whether were more likely to have already served child does not need to be present for the continued confinement is necessary. The the majority of their sentences than youth proceedings. This law only applies inside child may remain in OJJ custody only if with violent felony offenses.10 the courtroom — not in the detention the judge determines that his treatment Children incarcerated for long center, during transportation, or if the cannot be completed in a less restrictive periods of time in the juvenile system child is waiting outside the courtroom for setting (La. Ch.C. art. 898). increases recidivism and wastes public the hearing to begin. Although these went into effect in resources.11 Mandated, semi-annual 2016, confusion over who is ultimately review hearings where the presumption Act 321: Clarifying OJJ’s responsible for scheduling the hearings is for not continuing detention will help Authority over Children in resulted in very few of these legally cut down the excessive lengths of stay mandated hearings being set. Act 355 — currently characteristic of Louisiana’s its Custody which went into effect Aug. 1, 2018 — juvenile justice system by facilitating clarifies that it is the court’s responsibility an opportunity for judges to consider Act 321 clarifies that OJJ has the to set the hearing dates and specifies that motions to modify a child’s disposition authority to move a child into a less- the hearing date be set by the court at the and release him/her from custody. restrictive setting within its custody time of disposition. Further, regular in-person hearings allow continuum. The law further provides that, It also includes a schedule of hearings judges to assess the safety and well-being in cases where OJJ is seeking the release for children who were already entitled to of each child while in state custody, of a child from its custody, it must return them under current law. Thus, for children including the conditions of confinement. to court for a contradictory hearing. who are currently in state custody but Louisiana’s higher courts have already have not yet received a required hearing, ruled that OJJ maintains the authority to Act 453: Ending the Practice step a child down from a more secure to the court must schedule one no later of Indiscriminate Shackling than Sept. 30, 2018, for a date no later a less secure setting. As the 4th Circuit than Oct. 30, 2018. The new procedures Court of Appeal stated in State in the In much of Louisiana, juveniles who Interest of E.P: and this schedule apply to both review are detained pre-trial are routinely shack- hearings and contradictory hearings. led in court. This typically happens with- Louisiana public policy provides By facilitating multiple opportunities out any regard for a child’s age or charge for a judge to review a child’s progress, “that commitment of a juvenile or whether the child poses a safety or to the care of the department is mandatory post-disposition hearings flight risk. Beyond the obvious repercus- ensure that a child is receiving the not punitive nor in anywise to be sion of emotionally and psychologically construed as a penal sentence, necessary treatment and services and harming youth,12 indiscriminate shack- create an incentive for youth by providing but as a step in the total treatment ling, as in the case of adults, interferes process toward rehabilitation of the a chance for them to demonstrate their with a child’s presumption of innocence13 progress and growth. Perhaps most juvenile.” La. Ch.C. art. 906(A) and runs counter to the rehabilitative fo- (2). La. Ch.C. art. 901(D) provides significantly, these hearings will help to cus of juvenile courts. Act 453 remedies ensure that children are not being held for that OJJ “shall have sole custody this troublesome practice by eliminat- of the child and . . . shall determine excessive periods of time. ing the use of indiscriminate shackling Data shows that Louisiana the child’s placement, care, and in juvenile court, allowing it only under treatment, and the expenditures incarcerates children for extraordinary very limited circumstances. In doing so, long lengths of time9 — particularly to be made therefore, through Louisiana joins 31 other states that have appropriate examinations, tests, or when compared to the rest of the nation. passed legislation limiting the use of re- In fact, youth in Louisiana typically face evaluations conducted under the straints on juveniles. supervision of the department.”14 extremely long sentences that do not Act 453 amends La. Ch.C. art. 408, necessarily correlate with the seriousness providing that a child may not be shack- of their offense. Data shows that average Act 321 simply adjusts the statute led unless a request is made by law en- to comply with case law. This law will sentences for violent and non-violent forcement or prosecutors. A judge must
182 October / November 2018 allow OJJ, where appropriate, to move delays to the first phase of the law’s J.L. Blankenship, 2008, “Juvenile Recidivism and youth into less-restrictive settings and implementation. The timeline for full Length of Stay,” Journal of Criminal Justice, Vol. 36, pp. 126-137; J. Myner, J. Santman, G. Cappel- better respond to the individualized implementation in 2020 should remain letty and B. Perlmutter, 1998, “Variables Related to needs of the young people in its custody. on track. Many of the aforementioned Recidivism Among Juvenile Offenders,” Interna- As stated above, research demonstrates law changes — including Acts 467, 355 tional Journal of Offender Therapy and Compara- that keeping children in secure care for and 321 — will help safely reduce the tive Criminology, Vol. 42, No. 1, 65-90; A. Katsi- yannis and T. Archwamety, 1997, “Factors Related too long actually increases the likelihood number of youth in OJJ custody, freeing to Recidivism Among Delinquent Youths in a State that they will commit another offense. up beds and funding. Additionally, in Correctional Facility,” Journal of Child and Family Youth will be better served by OJJ freely the third special session, lawmakers Studies, Vol. 6, No. 1, pp. 43-55. exercising its authority to determine the allocated an additional $4 million to OJJ 7. M. Lipsey and D. Wilson, 1998, Effective intervention for serious juvenile appropriate care and treatment of youth to help cover any additional costs that offenders: A synthesis of research, Serious and in its custody and allow OJJ to better might be required for implementation of Violent Juvenile Offenders: Risk Factors and fulfill the rehabilitative mandate of the the law. Successful Interventions, edited by R. Loeber state’s juvenile justice system. and D.P. Farrington. Thousand Oaks, CA, Sage Publications; J.C. Howell, 1998, Preventing and Hope for More Reducing Juvenile Delinquency: A Comprehensive Act 654: Framework, Thousand Oaks, CA, Sage Changes Ahead Publications, p. 136. Delay of “Raise the Age” 8. See, Laurence Steinberg, Elizabeth Cauffman In 2003, the Louisiana Legislature and Kathryn C. Monahan, “Psychosocial Maturity Due to ongoing questions about the explicitly acknowledged that the goals of and Desistance from Crime in a Sample of state’s fiscal health and related concerns the state’s juvenile justice system should Serious Juvenile Offenders,” in OJJDP Juvenile Justice Bulletin (March 2015), www.ojjdp. over OJJ’s capacity and funding, the be prevention, protection, rehabilitation gov/pubs/248391.pdf; and Terrie E. Moffitt, 2018 regular session also resulted in a and restoration.16 Louisiana has made “Adolescent-Limited and Life-Course-Persistent minor setback for Louisiana’s recent law significant strides toward actualizing Antisocial Behavior: A Developmental Taxonomy,” change regarding the state’s upper-age these four core principles, but significant Psychological Review, Vol. 100, No. 4 (1993). 9. Based on data provided to the Louisiana Cen- limit of juvenile court. work remains. Louisiana lawmakers ter for Children’s Rights by the Louisiana Office of In 2016, the Legislature passed Act 501 should continue to move away from Juvenile Justice. to raise the age of criminal responsibility “tough on crime policies” by enacting 10. Id. so that Louisiana’s 17-years-olds would policies and programs, among others, 11. Pew Charitable Trusts, “Issue Brief: Re- Examining Juvenile Incarceration,” April 20, 2015. no longer be automatically prosecuted as that divert more children away from 12. American Psychological Association, “The adults. At the time, Louisiana was one of the juvenile justice system, reduce Use of Restraint in Correctional Mental Health only nine states left in the country who unnecessary detention and keep children Care” (2006). had not passed legislation to change the out of the adult system. 13. In the case of adults, the Supreme Court has ruled that the use of restraints is inherently prejudi- upper-age limit of juvenile court. The cial and unconstitutional unless justified by an es- original legislation changed the definition FOOTNOTES sential state interest specific to the particular defen- of a child, starting after June 30, 2018, dant. See, Deck v. Missouri, 125 S.Ct. 2007 (2005). to include 17-year-olds who commit a 1. The Annie E. Casey Foundation, “No Place 14. State in the Interest of E.P., 17-0495 (La. for Kids: The Case for Reducing Juvenile Incar- App. 4 Cir. 6/13/17, unpublished). delinquent act on or after July 1, 2018, 15. Act 501, www.legis.la.gov/legis/ViewDocu- when the act is not a crime of violence as ceration” (2011), 9-12. 2. In 2003, the Louisiana Legislature passed ment.aspx?d=1012088. defined in R.S. 14:2. After June 30, 2020, Act 1225, also known as the Juvenile Justice Re- 16. La. H.R. Con. Res. 56 (2003). the definition of a child would include form Act. Act 1225 provided a framework for reor- ganizing and reforming the state’s juvenile justice. Dr. Katy Walker is the anyone under age 18 who commits policy and advocacy co- any delinquent act, including crimes of 3. The bill that codified 897.1, HB 692, was sponsored by then-Rep. David Vitter. ordinator at the Louisi- 15 violence on or after July 1, 2020. 4. All of these youth were eligible for ana Center for Children’s During the 2018 session, the prosecution in the adult system, pursuant to La. Rights (LCCR). She joined Ch.C. art. 305. 15- and 16-year-olds with these LCCR in September 2016. Legislature passed Act 654, which delays She first gained experi- the effective date of the “Raise the Age” charges could be prosecuted as adults solely by the District Attorney. Thus, youth subject to the ence advancing progres- Act. Under the new law’s revisions, the “Vitter law” were determined to be amenable to sive policy campaigns as first phase of implementation will now rehabilitation. a senior policy associate 5. The Louisiana Children’s Code “shall be at Fight Crime: Invest in take effect on March 1, 2019. The second Kids, a non-profit child phase of implementation, which will liberally construed to the end that each child and parent coming within the jurisdiction of the court advocacy organization based in Washington, D.C. fully raise the age of criminal jurisdiction shall be accorded due process and that each child She took a break from policy advocacy to pursue a to 18, will take effect as originally shall receive, preferably in his own home, the care, doctorate in history at New York University, which guidance, and control that will be conducive to his she earned in May 2016. ([email protected]; scheduled in July 2020. 1100-B Milton St., New Orleans, LA 70122) Fortunately, there can be no further welfare.” La. Ch.C. art. 102. 6. K.P. Winokur, A. Smith, S.R. Bontranger and
Louisiana Bar Journal Vol. 66, No. 3 183 LSBA, ATJ Commission Create Modest Means Online Legal Directory Attracting Moderate Income Clients: Why Expanding Your Client Base Can Increase Your Bottom Line
By Amy E. Duncan
n March 2016, Mary’s husband Ron was diagnosed with a progressive brain disorder called Lewy body dementia. At the time of the diagnosis, Mary had a full-time job as an office manager earning $24/hour. Ron was self-employed, but eventually gave up his business due to the effect the disorder was having on his ability to work. On Mary’s Iincome, Ron’s Social Security and Medicare, Mary was able to care for Ron until his condition became so debilitating that he required 24-hour medical attention. With limited funds, Mary started the stressful process of getting Ron’s legal affairs in order before placing him in a senior nursing facility that could care for him full time. Mary first sought assistance from local nonprofits and legal aid organizations but quickly found out that she did not qualify for free legal aid. Although she couldn’t afford an attorney at the going rate of $250 an hour, she was willing to work with an attorney at a reduced rate, say $50-$75 per hour. Because of the time sensitivity of the matter and not knowing where or how to find an attorney she could afford, Mary went ahead and handled her family’s legal affairs — succession, power of attorney, etc. — on her own. Mary knows that working with an attorney would have greatly alleviated the stress of handling these matters while working full time, taking care of her husband, and coping with the grief of losing her husband to an aggressive disease. But, without access to affordable legal services, she felt she had no choice but to handle it on her own.
184 October / November 2018 Mary’s story is the story of many people in the United States with legal matters that go unaddressed by the legal profession. Mary’s family falls into what is known as the “justice gap.” This is the gap between being able to afford market-rate legal services and qualifying for free legal aid based on one’s income. Mary is in the middle. She makes too much to qualify for free legal aid, but not enough to afford the going rate. So she, like many others, decided to take on a complex legal matter and all of its attendant consequences on her own. Mary’s story, in terms of income, is even more common in Louisiana. Louisiana is home to 4.684 million people, making it the 25th most populous state in the United States and the 10th most populous in the South.1 Sadly, Louisiana also has the third profession’s sincere commitment to making the legal profession has been slow to highest poverty rate in the nation, with 20 changes to the current market fee rates. adapt to changing trends — trends that percent of people falling below the poverty ultimately affect the cost for services. line — $24,340 for a family of four.2 Median The Current and Future State Technology, for instance, is changing household income in 2012-16 was $45,652, of the Legal Market the traditional workflow approach. The meaning that half of the households in traditional approach usually means legal Louisiana make this amount or less. That is The legal market, with regard to price, advice handcrafted by lawyers (some in nearly $10,000 below the national statistics.3 is becoming more and more competitive. partnership), delivered on a one-on-one About 1.3 million people in Louisiana match Despite the demand for legal services, the basis with the output being documentation, Mary’s economic circumstance. They fall Bureau of Labor Statistics (BLS) suggests and, generally, the charge for the services between 200-400 percent of the poverty that “more price competition over the next computed on an hourly billing basis. With guideline set by the Census Bureau, meaning decade may lead law firms to rethink their this approach, most legal services have they make above the eligibility guidelines project staffing in order to reduce costs to become unaffordable to their consumer for free legal aid. clients.” BLS expects clients, both private users. By incorporating new technologies, A national study by the American and corporate, to cut back on legal expenses attorneys are able to reduce the time and cost Bar Association (ABA) found that half by demanding less expensive rates and spent on tasks such as document assembly of low- and moderate-income American scrutinizing invoices. They predict that and other responsibilities that typically households are facing one or more situations work previously assigned to lawyers, such consume an attorney’s time. that could be addressed by the civil justice as document review, may now be given In terms of the future of legal services, system. The same report concluded that to non-lawyers, such as paralegals and commentators have predicted radical nearly two-thirds of moderate-income legal assistants, and routine work may changes to the legal world over the next households with civil legal needs were not be outsourced to other lower-cost legal two decades, with cost being the focus of finding their way to the justice system.4 providers.6 the changes. Richard and Daniel Susskind’s The legal profession has responded to These types of responses to price book, The Future of the Professions, alarms about the lack of access to legal competition place continued pressure on suggests that technology, and specifically representation for the public with initiatives the job market, particularly for new lawyers. artificial intelligence (AI), will have a to fight or fill cuts to legal services programs, In 2016, 73 percent of the graduates of 204 fundamental impact on the legal industry to promote lawyers providing free services ABA-accredited law schools had full-time and the role of lawyers in the future. They through pro bono assistance, to develop jobs that required law degrees. This is after argue that the current professions, including resources for self-represented litigants, legal, are unaffordable and antiquated, with seeing a 7 percent decrease in class size 9 and to allow for the unbundling of legal due to lower enrollment.7 Considering the the talent of the best enjoyed only by a few. services. Lawyers have even raised ideas supply of trained lawyers without work At the other end is the growing supply about taking matters outside of the legal along with the demand by the middle class of technologically driven alternatives to system and away from the need for a lawyer for affordable legal services, one would traditional legal service, leading to increased — allowing diverse services to be provided think this would translate into lower costs momentum of the DIY movement in which by non-lawyer professionals.5 However, and more legal needs being met. Yet, the clients turn away from traditional law firm many believe the answer to reducing the cost for services continues to rise.8 services. gap in accessible legal services is the legal When compared to other industries, In a competitive landscape for legal
LouisianaLouisiana BarBar JournalJournal Vol.Vol. 66,66, No.No. 33 185185 services, attorneys and law firms should Offer Affordable Pricing Options for income clients is a helpful resource that be willing to incorporate new approaches Clients with Limited Means provides a step-by-step process in setting to delivering legal services, specifically to By now, most U.S. law firms have the fee arrangements alternative to the billable reach middle-income consumers whose option of an Alternative Fee Arrangement hour, such as a flat fee rate, to meet the legal needs are not being met. By being (AFA), broadly defined as charging for legal needs and budgetary restrictions of proactive and adapting to the changing legal services in any method other than the the population.15 market for legal services, attorneys can save standard billable hour. However, there’s time and money, grow their businesses and a difference between simply having that Use Limited Scope Representation increase access to affordable legal services. option and affirmatively engaging with a to Dip into the Untapped Market Below are some ways attorneys can adapt client to determine what fee model best Limited scope representation, sometimes to the changing landscape and incorporate meets his or her needs. In a broader context, referred to as unbundled legal services, is cost-effective legal solutions into their actively offering clients AFAs could greatly a way for attorneys to address consumer business models to meet the legal needs of increase the perception of value and promote demand and increase legal access for modest means clients. trust in the firm-client relationship. middle-income consumers. Limited scope For modest means clients, their ability representation is governed by Rule of Make Services More to pay will depend on their income. Some Professional Conduct 1.2(c) and is defined Accessible to Modest billable-hour pricing options, like sliding as an agreement between an attorney and scale, may work for middle-income clients, client in which the attorney represents or Means Clients and Adapt to if the fee structure is based on their income. assists the client for part, but not all, of the Changing Markets For instance, attorneys may work on a sliding client’s legal matter. A Louisiana attorney scale in which they reduce their hourly may undertake limited scope representation Leverage Technology to Increase standard rate by 75 percent for people falling of a client in a divorce case by agreeing to Your Reach between 200-250 percent of the poverty handle the custody dispute, but decline to Technology is playing a fundamental role guidelines, 50 percent for people falling handle the community property partition. Or in the transformation of the legal profession. between 250-350 percent, and 25 percent an attorney may handle a products-liability This transformation can translate to time for 350-400 percent. When the billable hour case for an employee injured on the job, but savings for attorneys and cost savings for acts as a disincentive to efficiency, flat fees decline to handle the worker’s compensation consumers. can increase transparency giving the client matter. There are many possibilities within For instance, new programs that systemize an opportunity to determine whether he or the realm of limited scope representation — document assembly allow attorneys to she can afford to pay for the services. as long as the scope of services provided is generate high-quality documents after reasonable and the requirements under Rule straightforward interactive consultations Increase Transparency in Pricing so of Professional Conduct 1.2(c) are met.16 10 with users. Some automation programs Consumers Know What to Expect In a DIY culture where information are even offered within cloud-based case and Don’t Shy Away from Seeking can be accessed at the click of a button for 11 management programs. Legal Assistance free, some people, especially those with Companies in Silicon Valley are even The allusion and mystery of the cost limited means, are less inclined to seek full offering AI programs to attorneys (some for legal services simply does not work representation services at an unknown cost at no cost) to increase affordable access to for a family with limited means. The lack to be later determined. In the proper context, justice — programs that can help quickly of price information has been raised as a offering limited scope representation can identify bad case law, find similar case law, culprit for people not obtaining the legal make access to legal services affordable and, 12 or summarize the facts of a case. advice they need.14 When people engage if done correctly, can be profitable for the There are also legal technology programs services in most consumer markets, they attorney by increasing his or her client base. available to save both the clients’ and expect to receive actual or even estimated attorneys’ time. One example is end-to-end costs before agreeing to the transaction. How is the LSBA Addressing online credit processing payment programs Most professional services offer the Justice Gap? like LawPay that allow customers to pay for transparent pricing. Why should the attorney services online. Additionally, case legal industry be an exception? For many management software programs now have Each month, the Louisiana State Bar areas of law — including immigration, Association (LSBA) receives more than automated processes for collecting on past DUI and traffic, and minor criminal 13 500 calls from people seeking legal counsel, due accounts. cases — transparent pricing is offered by These are just a few ways new many of whom fall within the justice gap. way of fixed fees. In setting affordable Recognizing this dilemma facing middle- technologies are changing how lawyers’ rates, understanding the time and costs practice — ways that can positively affect income families, the LSBA, through its associated with a particular matter will be Access to Justice Commission, created a the attorney’s bottom line and translate into key to determining price. The Chicago Bar cost savings for clients. Modest Means Committee in 2016. After Foundation’s Pricing Toolkit for attorneys studying the need, surveying Louisiana seeking to serve low- and moderate-
186 October / November 2018 attorneys and analyzing national programs, Conclusion 2017, https://biglawbusiness.com/report-law-firms- the committee created the Modest Means jacking-up-rates-demand-flat/ (Law firms increase billing rates by four percent based on a report by the Online Legal Directory. The directory is Distribution of legal services in the Citi Private Bank Law Firm Group). designed to connect attorneys offering United States is often compared to the profile 9. Richard and Daniel Susskind, The Future of affordable legal services with Louisiana of a martini glass. At the very top, where the the Professions: How Technology will Transform residents falling at or below 400 percent the Work of Human Experts, 3 (Oxford Univ. Press, glass is the widest, is where Big Law and 1st ed. 2015). of the poverty line. The attorneys offering Big Corporations mix and the majority of 10. In Louisiana, Ayla Legal Systems offers affordable rates do so by way of a sliding the spending on legal services occurs. The state-specific document assembly and generation scale based on the client’s income, flat fees, thin base of the glass represents free legal program. To learn more, go to: http://www. or by offering limited scope representation aylalegal.com/. services provided to the poor. The stem 11. Clio Case Management is cloud-based subject to the requirements of Rule of represents small businesses and middle- software that offers document automation within Professional Conduct 1.2(c). class families waiting for affordable legal its program. To learn more, go to: www.lsba.org/ services to become available. Members/TechnologyServices.aspx. 12. Ross Intelligence, a company in Silicon How Can Attorneys Join the The legal profession needs to devote Valley, created EVA, an AI system available for Directory? energy to focus on the stem, an untapped free. To learn more, go to: https://rossintelligence. market in many respects, for which people com/ross-new-coworker-eva/. can afford to pay for services at affordable 13. Clio Case Management Software provides The Modest Means Online Legal Di- this within its platform. rectory is open to all active Louisiana rates. With predictions of increased price 14. See, Solicitors Regulation Auth., “Price attorneys in good standing who offer re- competition in the legal market and people transparency in the legal services market” (January duced-cost legal representation to people not seeking legal assistance for problems 2018), available at: https://www.sra.org.uk/sra/how- that require an attorney, now is the perfect we-work/reports/price-transparency-legal-services- falling at or below 400 percent of the fed- market.page (Solicitors Regulation Authority (SRA), eral poverty line. To sign up, follow these time to improve internal processes within the body that regulates solicitors and law firms in steps: your law firm to better meet the legal needs England and Wales, commissioned a comprehensive ► Go to: www.lsba.org/ATJCommis- of the middle class. study to determine whether firms should be required to publish price information after the Competition sion/ModestMeans.aspx. and Markets Authority (CMA) found that the lack ► Complete the one-hour, on-demand FOOTNOTES of transparency of legal service price information CLE on “Ethical Considerations for Rep- weakened competition and meant consumers did resenting Clients with Limited Means” (see 1. U.S. Census Bureau, Tables, Annual not get the legal advice they needed.). Estimates of the Resident Population for the United 15. Justice Entrepreneurs Project & Chicago fee waiver opportunity below). States, Regions, States, and Puerto Rico: April 1, Bar Found., “Pricing Toolkit for attorneys ► Take a brief survey. 2010 to July 1, 2017, available at: https://www. seeking to serve low- and moderate-income ► Complete the online application form. census.gov/data/datasets/2017/demo/popest/state- clients” (March 21, 2016), available at: https:// Once the attorney completes the pro- total.html. chicagobarfoundation.org/resources/practice/ 2. U.S. Census Bureau, QuickFacts Louisiana pricing-toolkit/. cess and is determined eligible to partici- (last visited April 9, 2018), available at: https:// 16. The Louisiana Supreme Court has made pate, the attorney’s name, photo, contact www.census.gov/quickfacts/LA. Notice of Limited Appearance forms available information, practice areas and types of 3. Id. online for Family Law and Non-Family Law cases affordable legal services offered will be 4. Am. Bar Ass’n., “Legal Needs and Civil (see, https://www.lasc.org/rules/supreme.asp). Justice: A Survey of Americans” (1994), available The Alabama Access to Justice Commission has listed in the directory. at: https://www.americanbar.org/content/dam/aba/ published a helpful presentation on limited scope The directory is accessible to the pub- administrative/legal_aid_indigent_defendants/ representation presented by Sue Talia available lic through the LSBA’s new “Find Legal downloads/legalneedstudy.authcheckdam.pdf. at: http://www.alabamaatj.org/i-can-help/limited- Help Portal” designed to connect the pub- 5. Ann Juergens, Faculty Scholarship, “Valuing scope-representation/. Small Firm and Solo Law Practice: Models for lic with the full spectrum of legal services Expanding Service to Middle-Income Clients,” 39 Amy E. Duncan is the available in the state. The portal, located Wm. Mitchell L. Rev. 82-83 (2012), available at: Louisiana State Bar at www.LSBA.org/goto/FindLegalHelp, https://open.mitchellhamline.edu/cgi/viewcontent. Association’s Access includes options for hiring an attorney, cgi?article=1249&context=facsch. to Justice training and 6. U.S. Dep’t of Labor, Bureau of Labor legal aid and “pro bono” programs, self- projects counsel. She is Statistics, Occupational Outlook Handbook: the statewide coordinator help resources, and online and telephonic Lawyers (last modified Jan. 30, 2018), available at: of legal training and assistance. https://www.bls.gov/ooh/legal/lawyers.htm. education for Louisiana’s In addition to the portal, the LSBA 7. Press Release, Am Bar Ass’n., “ABA legal legal services providers education section releases employment data for also operates an online legal answers page and works closely with graduating law class of 2016” (May 11, 2017), the Access to Justice called LA Free Legal Answers, https:// available at: https://www.americanbar.org/con- Commission’s Modest la.freelegalanswers.org/, where people tent/dam/aba/administrative/legal_education_ Means Committee, the falling below 250 percent of the federal and_admissions_to_the_bar/statistics/2017_em- Legal Innovators for Tomorrow (LIFT) Program, ployment_data_2016_graduates_news_release. poverty guidelines can post legal questions the Criminal Justice Committee and Louisiana’s authcheckdam.pdf. pro bono organizations. ([email protected]; and have them answered by attorney 8. Gabe Friedman, “Report: Law Firms Jacking 601 St. Charles Ave., New Orleans, LA 70130-3404) volunteers. Up Rates, Demand Flat,” Bloomberg Law, Nov. 13,
LouisianaLouisiana BarBar JournalJournal Vol.Vol. 66,66, No.No. 33 187187 The Dawkinses of Union Parish
ouisiana’s legal legacy is deep-rooted in every corner of the state. Over the course of 300-plus years of history, the legal profession in the state has been peopled by patriots and scholars, by activists and visionaries. Inspired by the New Orleans’ Tricentennial, the Louisiana Bar Journal Lbegan a new series to commemorate and recognize the state’s legal leg- ends, including “legends in their own time.” For this issue, we focus on the Dawkinses of Union Parish.
Book Author’s Note: I did my best to identify all the law- yers in Duncan Dekalb Dawkins’s line, but after the book was published, another descendant provided the names of five more lawyers. Those names have been added to the excerpt below. I am almost certain there are more lawyer descendants because there are branches of the family whose locations we have not found who have a legacy of lawyers. I am still trying to find more but no luck yet. Beth Dawkins Bassett.
188 October / November 2018 An Excerpt from the Book: Grandsons of A Family in the Duncan Dawkins Louisiana Hill Country: The Dawkinses of Union Parish Judge Benjamin Cornwell Dawkins b.1881 d.1966 By Beth Dawkins Bassett Judge Ben C. Dawkins was educated at Louisiana Industrial Institute and the The first descen- Tulane School of Law, where he received dants of Duncan the LL.B. degree in 1906. He was ad- Dawkins to take mitted to the Louisiana bar that year. He up the practice of did not complete his degree at LII, but law were two sons found work as a law secretary and court born to his sec- reporter and read law at night from 1902 ond wife, Margaret until 1905, when he entered law school. Brooks Thompson Following his admission to the bar, he Dawkins: Robert joined the firm of Lamkin, Millsap & Brooks Dawkins and Duncan Dekalb Dawkins. Dawkins in Monroe, and in 1909, became Oliver Cromwell Photo courtesy of Dawkins a partner in Mulholland & Dawkins. In Dawkins. Robert Family. 1912, at age thirty-one, he was elected subsequently was judge of the judicial district comprising elected to a judgeship. In each of the four Ouachita and Morehouse parishes and generations since, several descendants of was reelected without opposition four Book cover designed by Michael Hooten. Duncan Dawkins and his first two wives, years later. In 1918, at age thirty-seven, Alpha Nan Cochran and Margaret Brooks Oliver Cromwell Dawkins he took his seat as an Associate Justice of Thompson, have become lawyers, twenty- b.1859 d.1928 the Supreme Court of Louisiana, having two in all. Four became judges. Oliver C. Dawkins grew up in Union been elected to that position. In 1924, he Parish, Louisiana. He attended the pub- resigned as Senior Associate Justice of the Sons of Duncan Dawkins lic schools of the parish and then the Supreme Court to accept an appointment University of Tennessee, Knoxville, for by Pres. Calvin Coolidge as United States Judge Robert Brooks Dawkins three years. He returned to Union Parish, District Judge of the United States District b.1857 d.1923 where he taught school while reading law. Court for the Western Judicial District of Judge Robert B. Dawkins was born in He was admitted to the Louisiana bar in Louisiana. This appointment of a tradi- Union Parish, Louisiana, and educated 1886 and practiced with his elder brother tional Democrat, made by the then-Re- in the public schools of the parish and at Robert Brooks Dawkins in Farmerville. In publican administration, was based only Roanoke College, Salem, Virginia, from 1883, an article in the Ouachita Telegraph on merit. which he graduated in 1879 with the A.B. called him editor of The Farmerville Judge Dawkins served as a member degree. Returning to Union Parish, he Appeal newspaper. He later was an edi- of the Constitutional Convention of 1921 served as the superintendent of education tor of The Farmerville Gazette, still in by appointment of Louisiana Gov. John and read law at the same time. He was existence. In 1896, Oliver and his family M. Parker and was part of the Judiciary admitted to the Louisiana bar in 1886. moved to Monroe and bought The Monroe Committee that helped write the provi- He was elected to the Louisiana Senate Evening News. He both practiced law and sions that now govern the judicial system in 1896 from the district composed of ran the newspaper until 1906, when he of the state of Louisiana. As a member Union, Lincoln, Morehouse, and West sold the paper and returned full time to his of the Committee on Coordination, he Carroll parishes. In 1898, he was a mem- practice. In 1918, his son Joseph Brooks helped revise and harmonize all the ordi- ber of the Constitutional Convention. Dawkins joined his practice. As a newspa- nances that became part of the Louisiana In 1900, he was elected Judge of the perman, Oliver became interested and ac- Constitution. Louisiana Fourth Judicial District, com- tive in politics, advocating the gold stan- Judge Dawkins retired in 1953, but posed of Lincoln and Union parishes, and dard and white primaries and opposing the continued to preside over federal courts there he served fourteen years. In 1916, activities of the Ku Klux Klan. He ran for that included the United States Fifth he was elected to the Louisiana Court the United States Congress twice from the Circuit Court of Appeals in New Orleans, of Appeals, Second Circuit, compris- Fifth Congressional District of Louisiana, and those in several other states, until he ing the parishes of Bienville, Claiborne, in 1902 and in 1912, but was narrowly de- was well over eighty years of age. After Jackson, Bossier, Webster, Catahoula, feated each time. He was widely known his death, his peers compared him to fa- Winn, Grant, Union, and Lincoln. He as an after-dinner speaker. He continued to mous jurists in history and contended was a judge on the Court of Appeals at practice law until his death. that he should have been appointed to the the time of his death. Supreme Court of the United States.
Louisiana Bar Journal Vol. 66, No. 3 189 Former Louisiana Gov. Sam Jones, Louisiana. From 1911 until his death, he duty in France as a pilot. one of the speakers at the Memorial practiced in Alexandria, Louisiana. He After WWI, he earned the law degree Service held for Judge Dawkins in 1967 was a member of the Episcopal Church, at Georgetown University and was law at the Federal Court Room at Alexandria, a Knight Templar, a Mason, an Elk, a clerk to the Chief Justice of the Supreme Louisiana, said the following: “Judge Democrat, and a member of the parish Court of the District of Columbia for a Dawkins was a man of lofty ideals . . . . Democratic Executive Committee. year. In 1929, he joined the Federal Trade He gave no recognition to prominence, Commission (FTC) as an anti-trust spe- wealth or high office. In fact, he presided Joseph Brooks Dawkins cialist. He served in various legal positions over the trial of a former Governor of b.1890 d.1972 and argued the Cement Institute Case and Louisiana and imposed a substantial sen- Joseph B. Dawkins was educated in the Rigid Steel Conduit Case before the tence (10 years) upon the latter’s convic- the Ouachita Parish and Monroe City Supreme Court of the United States. He tion . . . . His court held the uniform and school systems, and at Washington and was appointed Assistant General Counsel universal respect of the people. This per- Lee University and the Louisiana State for the FTC and placed in charge of the haps is his greatest contribution.” University School of Law. He was ad- staff of special legal assistants. mitted to the Louisiana bar in 1914 After World War II, he was a member Herbert Elmer Dawkins and worked in the Louisiana Attorney of the joint United States State Department b.1882 d.1929 General’s Office through 1916. He enlist- and War Department Commission on Herbert E. Dawkins attended the pub- ed in the United States Army during World Japanese Combines. This commission lic schools of Union Parish, Louisiana, War I and served in France in the Coast prepared and recommended plans for and, after teaching school for one year, Artillery Corps, which included field artil- the decartelization of Japanese industry entered Louisiana Industrial Institute, lery and heavy artillery. In 1918, he joined and laid the foundation for the first anti- now Louisiana Tech University. There he the Monroe law firm of his father, Oliver trust statute in Japan. After his retirement, earned the Bachelor of Industry degree C. Dawkins. From 1924 to 1936, he was he was an adviser to the Small Business in 1905 and served as class orator for the Attorney for the Supervisor of Public Committee of the United States House of graduation ceremony. While at LII, he rep- Accounts for the Fifth Congressional Representatives. resented the Agatheridan Literary Society District of Louisiana. He practiced law for Mr. Dawkins died at age sixty-two, in a debate and was presented with a med- fifty-seven years. in McLean, Virginia, and was buried at al, and he served as literary editor of the In his manuscript The Dawkins and Arlington National Cemetery. school annual, Lagniappe. Norris Families, Joseph Brooks Dawkins, He taught school one year and then Jr. wrote of his father: “He loved the prac- Judge James Robert Dawkins entered the Louisiana State University tice of law and in particular where it was of b.1901 d.1974 School of Law in 1906, and, in 1909, re- benefit to the common man. At his death, Judge James Robert Dawkins was born ceived dual degrees, the B.A. degree in his office ledgers reflected many small in Union Parish, Louisiana, and attended literature and the LL.B. degree. At LSU, fees of which some had been paid off at the public schools of Farmerville. In 1919, he served as editor of the annual, The the rate of a dollar or two per week and he entered Louisiana State University and Gumbo, during his senior year. He had others which had never been collected. attended two years. He subsequently en- paid his way through LII by working in During the depression years from 1932 tered the Atlanta College of Pharmacy the cafeteria, and he supplemented the until the 1940s, he took in fees which and, after graduation, practiced this pro- money he had earned teaching by work- ranged from collard greens and opossums fession for several years. In 1925, he reen- ing in the cafeteria at LSU to pay his way to a 1928 Hupmobile, and he loved every tered LSU and, in 1928, graduated with the through law school. He was admitted to minute of it. Life to him was so fascinat- Bachelor of Laws degree as valedictorian the Louisiana bar in 1909 and went into ing and so extremely interesting that one of his class. He practiced law in Monroe, partnerships in Farmerville, first with never heard him complain. Many times, Louisiana, and then in Farmerville as a H.C. Fields and then with Everett, Elder, regardless of how bad things were or how sole practitioner. Hodge & Dawkins. In 1911, he became a bad things might likely turn out to be, he In 1953, at age fifty-two, he was elect- sole practitioner. He was a member of the has said, ‘it will certainly be interesting to ed Judge of the Third Judicial District of Missionary Baptist Church. see what happens.’” Louisiana, comprising Union and Lincoln parishes, and served three six-year terms. Bruton Thompson Dawkins Robert Brooks Dawkins, Jr. Prior to his election to the bench, he b.1887 d.1933 b.1897 d.1959 served one term as mayor of Farmerville Bruton T. Dawkins was born in Union Robert B. Dawkins, Jr. grew up in and as attorney for all the municipali- Parish, Louisiana. He graduated from the Ruston, Louisiana. In 1915, he went ties in the parish. He was a member and Louisiana State University School of Law to Washington, D.C., as secretary to deacon of the First Baptist Church of in 1909 and was admitted to the Louisiana Louisiana Representative Riley Wilson. Farmerville and Temple Baptist Church bar before his twenty-second year of age. He enlisted in World War I in 1917, in the in Ruston. He served as a member of the For one year, he practiced law in Monroe, United States Army Air Service, and saw Board of Trustees of Louisiana College
190 October / November 2018 and the Judicial Council of the Louisiana field transfusions and ferrying wounded A Family in the Louisiana Hill Supreme Court. By special assignment by U.S. soldiers and Japanese prisoners of Country: The Dawkinses of Union the Louisiana Supreme Court, he sat on war back to the United States. Parish may be purchased at the Union the bench on several occasions in other After the war, he resumed his law Museum of History and Art, 116 N. judicial districts, including the Fourth practice, and, in 1953, he was appointed Main St., Farmerville, LA 71241, or or- Circuit Court of Appeal in New Orleans. by Pres. Dwight D. Eisenhower to suc- dered from Beth Dawkins Bassett, P.O. ceed his father as United States District Box 57, Winder, GA 30680. 206 pp., Wilbur Dawkins Atkins, Sr. Judge of the United States District Court soft cover, $25. b.1905 d.1992 for the Western Judicial District of Wilbur Dawkins Atkins, Sr. studied Louisiana. He was responsible for issu- Sarah Elizabeth (Beth) Dawkins law for three years under attorneys and ing desegregation orders to twenty-one Bassett, a descendant of Duncan Dekalb passed the Bar in 1936. He practiced in school boards in twenty Louisiana par- Dawkins, was born in Farmerville, Baton Rouge and Lafayette. ishes and in the Monroe City Schools, La., and attended Union Parish public and he ruled that Monroe and Shreveport schools and Louisiana Tech University, Col. Woodrow Wilson Atkins change their then-forms of government where she earned a bachelor’s degree b.1917 d.2010 to more representative constructs. He in music in 1957. Later that year, she Col. Woodrow Wilson Atkins was served as a federal judge for twenty-six attended Indiana University as a voice granted an early law degree in December years, retiring in 1979. major. She taught public school music 1941, just after the bombing of Pearl Oral interviews conducted with Judge in Orlando, Fla., and, subsequently, per- Harbor. He served for twenty years in the Dawkins are on file in the archives of the formed as a professional church soloist Judge Advocate Division of the Army in library of Louisiana State University in in Atlanta, Ga., where her husband, the the United States, Germany, and Korea. Shreveport. The emphasis is the Federal late Harold Lane Bassett, was on the Court’s involvement in the Civil Rights engineering faculty at Georgia Tech. In Ben Edgar Atkins revolution. 1979, she received a master’s degree in b.1922 d.1998 education from Georgia State University Ben Edgar Atkins graduated from LSU Samuel Duncan Dawkins, Jr. in Atlanta. Before completing her de- Law School. He practiced in East Baton b.1926 d.2004 gree, she began work as writer for the Rouge Parish. Samuel D. Dawkins Jr. was born magazine Brown’s Guide to Georgia. In in Port Arthur, Texas, and attended 1980, she began work as associate editor Great-Grandsons of schools there. After graduating from the and principal writer for Emory Magazine Duncan Dawkins University of Texas at Austin in 1950, and assistant director of the Office of he was commissioned as an ensign in Periodicals at Emory University. She the United States Navy. He served two left the university in 1993 to begin Judge Benjamin Cornwell terms in the regular Navy and then en- freelancing. She has written seven non- Dawkins, Jr. tered the Naval Reserve, retiring as a fiction books and edited five. Bassett’s b.1911 d.1984 Judge Benjamin C. Dawkins, Jr. was full Captain in 1985. In 1956, he earned photo was taken by photographer Billy born in Monroe, Louisiana, and lived there the law degree from the University of Howard. ([email protected]; P.O. until 1918 when his father was elected to Texas. He practiced civil law in Dallas Box 57, Winder, GA 30680) the Louisiana Supreme Court, based in and Houston. New Orleans. He graduated from Tulane Robert Glen Dawkins University and from the Louisiana State Wilbur Dawkins Atkins, Jr. b.1935 University School of Law with the LL.B. b.1942 d.2008 Robert G. Dawkins grew up in He played varsity football at Tulane and Wilbur D. Atkins, Jr. graduated from Farmerville, Louisiana. He attended the went to the Rose Bowl in 1932. After LSU Law School and practiced in Baton Farmerville public schools, Louisiana receiving his law degree, he practiced in Rouge and Lafayette. Polytechnic Institute (now Louisiana Monroe one year as a solo practitioner. The Tech University), and Louisiana State following year, he joined the Shreveport Jerome Ersel Dawkins University. In 1959, he graduated from firm of Blanchard, Goldstein, Walker & b.1935 the LSU School of Law. He first practiced O’Quin. During World War II, he joined Jerome E. Dawkins grew up in Port law in the firm of Rabun & Dawkins in the United States Navy and received a Arthur, Texas, and attended schools Farmerville and now is a sole practitioner 2nd Lt. Commission. He served as a naval there. He graduated from Baylor Law in Ruston, Louisiana. aviator and flew some seventy-two Pacific School in Waco, Texas. He practiced law While at LSU, he became a member of Ocean crossings from San Francisco to as a corporate attorney for Mobil Oil in Phi Gamma Mu National Social Science Honolulu, Hawaii, and other islands in the Dallas, Texas, and New York, N.Y., until Honor Society and Phi Delta Phi legal fra- Pacific theater, bringing blood for battle- his retirement. ternity. In Farmerville, he held offices in
Louisiana Bar Journal Vol. 66, No. 3 191 several local civic organizations and was of Denver Law School in 1950. He prac- & Young Adult Program, Lafayette Parish voted Man of the Year in 1960 by the lo- ticed law in Denver for forty-one years, Bar Association, and Southwest Louisiana cal chapter of the United States Junior retiring in 1991. “Lawyers are the first Hockey Officials Association; and a pres- Chamber of Commerce. He is a mem- line of defense against authoritarianism,” ent member of the American Red Cross, ber of Temple Baptist Church in Ruston, he wrote in 2010. Acadiana Chapter. a trustee of Louisiana College, a mason, and a founder of Cedar Creek School in Franklin White Dawkins Cindy Atkins Bethea Ruston. b.1948 b.1952 In 1999, he was elected to the Council Franklin White Dawkins earned Cindy Atkins Bethea graduated from of the Louisiana State Law Institute, a the B.B.A. degree in accounting from Southern University Law School. She body created by the Legislature in 1938 as Southern Methodist University, Dallas, practices in Denham Springs, Louisiana. an official law advisory agency. The thir- Texas, in 1970; the J.D. degree from ty-one-member Institute consists of fac- Louisiana State University Law Center, Great-Great-Great ulty members of the law schools of LSU, Baton Rouge, in1974; and the LL.M. de- Granddaughter and Great- Tulane University, Loyola University, and gree in health law from the University of Southern University; and nineteen practic- Houston Law Center, Houston, Texas, in Great-Great Grandsons of ing attorneys. In 2013, he was appointed a 2007. Duncan Dawkins senior officer and member of the Executive He served as Senior Law Clerk to the Committee of that body. “These positions Chief United States District Judge, Middle Mary Elizabeth Dawkins are bestowed impartially,” wrote former District of Louisiana, from 1974-1976. In b.1956 State Supreme Court Justice Edward J. 1976, he joined the McGlinchey Stafford The first female lawyer among Duncan Bleich, “because of hard work, contribu- firm in New Orleans. In 1978, he served Dawkins’s descendants was born in tion and ability. These are qualities clearly as contract officer to the County Counsel’s Denver, Colorado. She first attended possessed by Robert Dawkins.” Office, Lane County, Eugene, Oregon, Colorado University, Denver, and gradu- and, in 1979, he was appointed Assistant ated as a paralegal. Some three years later, Great-Great-Grandsons and United States Attorney for the Western she enrolled in Denver University Law School. She passed the Colorado bar in Great-Great-Granddaughter District of Louisiana. As assistant United States attorney, he represented the United 1992. of Duncan Dawkins States Department of Justice in a case that went before the United States Supreme Eugene Donnaud Briere Albert Bartholamew Dawkins Court, U.S. v. Villamonte-Marques. In Dates Unknown b.1923 d.2013 1982, he joined the Lafayette, Louisiana, According to Judge Ben C. Dawkins, Albert B. Dawkins was born in New law firm Roy, Carmouche, Bivins, Judice, Eugene Donnaud Briere practiced law in Orleans but moved with his family to Henke & Breaud as a partner, and, in New Orleans, Louisiana. Denver, Colorado, at age seven and attend- 1989, he opened a solo practice. Since ed schools there. In 1941, he enlisted in the 2008, he has practiced health law and fed- John Donnaud United States Marine Corps and served in eral criminal defense law. Dates Unknown the Pacific Theater for three years, rising He is founder and director of According to Judge Ben C. Dawkins, to the rank of Sergeant. He saw action in the Louisiana High School Hockey John Donnaud practiced law in New several crucial battles, including the Battle Association; master, American Inns of Orleans, Louisiana, and then in of Midway. He entered the University of Court of Acadiana; a past member of the Washington, D.C. Denver and graduated from the University boards for Faith House, Lafayette Juvenile
Important Reminder: Lawyer Advertising Filing Requirement Per Rule 7.7 of the Louisiana Rules concurrent with first use/dissemination. and evaluation process, the required of Professional Conduct, all lawyer Written evaluation for compliance with filing fee(s) and the pertinent Rules are advertisements and all unsolicited written the Rules will be provided within 30 days available online at: http://www.lsba.org/ communications sent in compliance with of receipt of a complete filing. Failure to members/LawyerAdvertising.aspx. Rule 7.4 or 7.6(c) — unless specifically file/late filing will expose the advertising Inquiries, questions and requests for exempt under Rule 7.8 — are required lawyer(s) to risk of challenge, complaint assistance may be directed to LSBA to be filed with the LSBA Rules of and/or disciplinary consequences. Ethics Counsel Richard P. Lemmler, Jr., Professional Conduct Committee, The necessary Filing Application [email protected], (800)421-5722, through LSBA Ethics Counsel, prior to or Form, information about the filing ext. 144, or direct dial (504)619-0144.
192 October / November 2018 YOUR VOICE OUR VOICE Your LSBA committee: an advocate, a partner.
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800.906.9654 GilsbarPRO.com Louisiana Bar Journal Vol. 66, No. 3 193 Association ACTIONS ELECTIONS... HOD... SPECIALIZATION
Elections: Self-Qualifying House Resolution Deadline is Dec. 14 Deadline is Oct. 22; for 2019 Midyear Voting Begins Nov. 19 Meeting he Louisiana State Bar Association’s (LSBA) Midyear everal leadership positions are St. Bernard and St. Tammany). Meeting is scheduled for open in the 2018-19 Louisiana Also, the Young Lawyers Division Thursday through Saturday, State Bar Association (LSBA) (YLD) Council nominated Carrie L. Jones Jan.T 17-19, 2019, at the Renaissance election cycle, including positions of Baton Rouge and Graham H. Ryan of Hotel in Baton Rouge. The deadline for onS the Board of Governors, LSBA House New Orleans for 2019-20 YLD chair-elect submitting resolutions for the House of of Delegates, Nominating Committee, and secretary, respectively. Delegates meeting is Friday, Dec. 14. Young Lawyers Division and American Other positions to be filled include: (The House will meet on Jan. 19, 2019.) Bar Association House of Delegates. (three-year terms) Board of Governors Resolutions by House members and Deadline for return of nominations by — one member each from the First, Fourth committee and section chairs should petition and qualification forms is Monday, and Fifth Board Districts. be mailed to LSBA Secretary John E. Oct. 22. First election ballots will be (two-year LSBA House of Delegates McAuliffe, Jr., c/o Louisiana Bar Center, available to members on Monday, Nov. 19. terms) — one delegate from each of the 601 St. Charles Ave., New Orleans, LA Alainna R. Mire of Alexandria and Twentieth through Forty-Second Judicial 70130-3404. All resolutions proposed Patrick A. Talley, Jr. of New Orleans Districts, plus one additional delegate for to be considered at the meeting must have been nominated for 2019-20 LSBA every additional district judge in each be received on or before Dec. 14. president-elect and 2019-21 LSBA district. Resolutions must be signed by the author. secretary, respectively. The president-elect (15 members, Nominating Committee Also, copies of all resolutions should be will automatically assume the presidency one-year terms). emailed (in MS Word format) to LSBA in 2020-21. . Young Lawyers Division Chair-elect Executive Assistant Mindi Hunter at According to the president-elect rotation, (2019-20 term), nominee be a shall not [email protected]. the nominee must have his/her preferred resident of or actively practicing law in the mailing address in Nominating Committee parishes of Orleans, Jefferson, St. Bernard District 3 (parishes of Acadia, Allen, or Plaquemines, based on preferred mail- Avoyelles, Beauregard, Bienville, Bossier, ing address. Secretary (2019-20 term), Caddo, Calcasieu, Cameron, Caldwell, nominee shall be a resident of or actively Judges and Lawyers Catahoula, Claiborne, Concordia, DeSoto, practicing law in the parishes of Orleans, East Carroll, Evangeline, Franklin, Grant, Jefferson, St. Bernard or Plaquemines, Assistance Program, Iberia, Jackson, Jefferson Davis, Lafayette, based on preferred mailing address. Also, Inc. (JLAP) LaSalle, Lincoln, Madison, Morehouse, one representative each from the First, Natchitoches, Ouachita, Rapides, Red Second, Fourth, Fifth, Sixth and Eighth Your call is absolutely River, Richland, Sabine, St. Landry, districts (two-year terms). confidential as a matter of law. St. Martin, St. Mary, Tensas, Union, American Bar Association House Vermilion, Vernon, Webster, West Carroll of Delegates (must be a member of the Toll-free and Winn). American Bar Association) — one delegate According to the secretary rotation, from the membership at large (two-year (866)354-9334 the nominee must have his/her preferred term). www.louisianajlap.com mailing address in Nominating Committee Email: [email protected] District 1 (parishes of Orleans, Plaquemines,
194 October / November 2018 Louisiana Bar Journal Vol. 66, No. 3 195 LBLS Accepting Requests for Certification Applications he Louisiana Board of Legal Spe- proficiency in the area for which certifica- ► Bankruptcy Law — CLE is regulated cialization (LBLS) is accepting tion is sought and provide five favorable by the American Board of Certification, applications for certification in references. Peer review is used to determine the testing agency. five areas — appellate practice, that an applicant has achieved recognition With regard to applications for business estateT planning and administration, family as having a level of competence indicating bankruptcy law and consumer bankruptcy law, health law and tax law — from Nov. proficient performance handling the usual law certification, although the written 1, 2018, through Feb. 28, 2019. Also, the matters in the specialty field. Refer to the test(s) is administered by the American LBLS will accept applications for business LBLS standards for the applicable specialty Board of Certification, attorneys should bankruptcy law and consumer bankruptcy for a detailed description of the require- apply for approval of the LBLS simulta- law certification from Jan. 1, 2019, through ments: www.lascmcle.org/specialization/ neously with the testing agency to avoid Sept. 30, 2019. index.aspx. delay of board certification by the LBLS. In accordance with the Plan of Legal In addition to the above, applicants must Information concerning the American Specialization, a Louisiana State Bar As- meet a minimum CLE requirement for the Board of Certification will be provided sociation member in good standing who has year in which application is made and the with the application form(s). been engaged in the practice of law on a full- examination is administered: Anyone interested in applying for time basis for a minimum of five years may ► Appellate Practice — 18 hours of certification should contact LBLS Spe- apply for certification. Further requirements appellate practice law. cialization Director Mary Ann Wegmann, are that, each year, a minimum percentage ► Estate Planning and Administration email [email protected], or call of the attorney’s practice must be devoted Law — 18 hours of estate planning law. (504)619-0128. For more information, go to the area of certification sought, and the ► Family Law — 18 hours of family law. to the LBLS website link listed above. attorney must pass a written examination to ► Health Law — 15 hours of health law. Review approved specializations CLE cours- demonstrate sufficient knowledge, skills and ► Tax Law — 18 hours of tax law. es online: www.lascmcle.org/apps/calendar.aspx LSBA Member Services – Business Services
or information about these LSBA programs, contact the Bar Office by calling (504)566-1600 or (800)421-LSBA. FThese services are benefits of membership with the Louisiana State BarAssociation. Programs Insurance through Gilsbar Other Vendors þ Group Insurance, Major Medical, þ Client Assistance Fund þ ABA Members Retirement — www.lsba.org/goto/clientassistancefund Disability and Malpractice Insurance (800)826-8901 (800)GILSBAR • (504)529-3505 þ Continuing Legal Education abaretirement.com/welcome/louisiana www.lsba.org/cle Citrix ShareFile — (805)617-7027 Car Rental Programs þ þ Ethics Advisory Service þ Clio — (888)858-2546 www.lsba.org/goto/ethicsadvisory Avis • (800)331-1212 þ þ CosmoLex — (866)878-6798 Legal Specialization Program Discount No. A536100 þ þ Dell — (800)999-3355 or 1-877-568-3355 www.lsba.org/Public/Lawyer Budget Rent-a-Car • (800)527-0700 þ þ Geico — (800)368-2734 Specialization.aspx Discount No. Z855300 þ LawPay — (866)376-0950 þ Loss Prevention Counsel Hertz – (800)654-2210 þ þ LexisNexis — (800)356-6548 www.lsba.org/Members/ Discount No. 277795 LossPreventionCounsel.aspx þ MyCase — (866)463-6110
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196 October / November 2018 PRACTICEManagement By Nisha Sandhu CYBERSECURITY: PART 2
awyers and law firms can puter system, patch to work, it must be used. In implement various practices particular de- the case of ransomware, hackers and procedures to strengthen vice or files. hold data hostage and demand a cybersecurity protocols. For According ransom. In response to malware Llawyers, information accessibility must to the 2017 attacks, developers issue security be balanced with the duty to keep cli- Data Breach patches for users to download and ent information confidential, Rule 1.6 Investigative install. If the latest security patch is of the Louisiana Rules of Professional Report, stolen not installed, a computer system Conduct, and the duty to safeguard cli- or weak pass- and all the data it holds are still ent property, Rule 1.15. Lawyers can- words were a left vulnerable. not simply scan files, save them to their major factor in Be aware. computer or in the cloud and forget 81 percent of Even with about them. Lawyers must protect any hacking-related security mea- electronically accessible client data to breaches. The Na- sures in place, a per- minimize the risk of data breaches, loss tional Institute of Stan- son can compromise a and professional liability. dards and Technology rec- computer or an entire network Encryption. Electronic storage and ommends using passphrases for if he or she does not know how to use transmission of client data have made each password created. Passphrases security features or is not aware of cur- legal practice easier and more efficient. are longer and more difficult to guess rent threats. Clicking an email link can Unauthorized access of that data can than the typical user-created password. launch any number of malware attacks. increase the risk of an ethical violation Other tips include using a password Learning how to encrypt files on a com- if that data is not adequately protected. manager. Some password managers store puter, for an email or on a flash drive, Disk encryption automatically encodes saved passwords in a virtual “vault” for can help prevent unauthorized access the data on a computer’s disk drive us- access, while others generate passwords and data theft. Training employees on ing an algorithm or key to deny access on demand. Whether retrieving stored cybersecurity awareness is important if to content. After encryption, files can be passwords or generating new ones, the data is to be protected. Annual or quarterly accessed using a password or passkey. password manager will often require a training updates can help keep employees Encryption can help prevent unauthorized “master” password for access, which must current on the latest threats and trends in access if the computer is lost or stolen be kept secure. Passwords are a good start cybersecurity breaches. or if the system is hacked. For email, for defending against unauthorized access Test your system. Check for vulner- encryption can scramble the content so as they can be used to protect specific files abilities by having your system evaluated that only the sender and intended recipi- and/or devices. by a credible IT professional or third-party ent can access the actual message. Email Keep devices and software updated. service provider. A vulnerability analysis encryption can also disable the ability to Using software that is no longer supported can help to assess the security-worthiness forward an email. with security updates not only leaves a of your system and help you determine Although the major operating systems door wide open to access confidential in- whether upgrades should be made. offer built-in encryption abilities, special formation, but also is unethical because the consideration should be given to deter- software is vulnerable to attack. For sup- Nisha Sandhu is a con- mine whether the encryption is strong ported software, security updates should tract attorney for Gilsbar, L.L.C., in Covington. She enough for the type of data being pro- be installed as soon as patches are issued received a BA degree in tected. Federal and state regulations can by the developer. If not, a whole system history from the Univer- require more stringent encryption meth- can be infiltrated by malware. Examples sity of Chicago and her ods (e.g., end-to-end or zero-knowledge). of malware include phishing emails, ran- JD degree from Loyola University College of Law. Passphrase protection for files and somware and botnets. The recent NotPetya Her practice includes ap- devices. Implement a “password” policy. ransomware exploited a vulnerability pellate law, family law and Passwords are a basic security measure in the Windows Server Message Block. criminal defense. Email for protecting one’s online presence, com- Microsoft released a patch, but, for a her at [email protected].
Louisiana Bar Journal Vol. 66, No. 3 197 LAWYERSAssistance By J.E. (Buddy) Stockwell ABA LAUNCHES WELL-BEING TOOLKIT
n the last two years, the legal pro- heretofore, we have never had a specific status quo. Positive change agents might fession has experienced a sobering manual to teach us how to take personal steps meet resistance, including that there is no “wake-up call” about how serious to set boundaries and prioritize well-being. room, time, resources or need for change. the wellness and mental health chal- There’s great news to report! This toolkit offers reasons for prioritizing lengesI are in our ranks. In short, profes- Just published in 2018, in partnership lawyer well-being as well as information, sion-wide action is needed to improve with the ABA, the “Well-Being Toolkit strategies and resources for implementing lawyer well-being for all of us. for Lawyers and Legal Employers” is a a plan for positive change. In February 2016, the national study comprehensive manual created by Anne Practicing lawyer well-being is the key “The Prevalence of Substance Use and M. Brafford, JD, MAPP and PhD “in prog- to reducing the currently elevated numbers Other Mental Health Concerns Among ress.” The well-developed treatise discusses of mental health problems that the legal American Attorneys” was published, con- topics including the Definition of Lawyer profession suffers. While JLAP provides clusively establishing that the legal profes- Well-Being; the Definition of a Healthy an extremely effective “peer-professionals’ sion suffers striking rates of depression, Workplace; 8-Step Action Plan for Legal program” and totally confidential services to alcoholism and addiction. Very unhealthy Employers; Policies and Practice Audit; assist those who have developed diagnos- rates of anxiety and stress are also prevalent Activities and Events; Education and De- able problems with alcohol, drugs, depres- in our profession. velopment; Assessments; Online Resources sion and other types of mental health issues, In response to that 2016 study, the Ameri- and Technology; Book Recommendations; JLAP also fully supports general health, can Bar Association (ABA) published its Well-Being Partners; Well-Being Speakers wellness and mindfulness. Practicing self- “The Path to Lawyer Well-Being: Practical and Consultants; Activity Workbook; and care can effectively prevent the development Recommendations for Positive Change” Well-Being Partner Appendix. of some mental health issues. report in August 2017, challenging all stake- All of the above ABA reports and the In the last two years, JLAP has dedicated holders in the profession to take action. The new Well-Being Toolkit are available on the significant resources to the lawyer well- report offered specific recommendations on Judges and Lawyers Assistance Program, being initiative. JLAP’s CLE presentations what each segment of the profession can do Inc. (JLAP) website: www.louisianajlap. on “Compassion Fatigue” and “The Profes- to help turn our overall culture in a direc- com/wellbeingtoolkit/. sional Duty of Self-Care” have been popular. tion that promotes well-being. We need to Per the ABA Toolkit: Visit JLAP’s website to download the learn how to set boundaries and carve out Because too many lawyers aren’t thriv- new ABA Well-Being Toolkit. Remem- dedicated time for self-care, placing our ing, multiple initiatives have been launched ber, JLAP offers complete wellness and personal well-being first. The mission is to take action. For example, in 2015, former well-being support to Louisiana’s legal simple: learn real tools for self-care and Chair of the American Bar Association’s profession. JLAP can provide resource then make using them a real priority. (ABA) Law Practice Division Tom Bolt suc- material, CLE presentations and clinical It’s a very tall order for legal profession- cessfully advocated for the creation of a new referrals to help you or your law firm als. We are all driven and competitive by Attorney Well-Being Committee. Next, the come up to speed on well-being initiatives. nature. In law school, many of us practiced National Task Force on Lawyer Well-Being Call JLAP at (985)778-0571, email jlap@ self-sacrifice mixed with indestructible te- was formed and it issued a comprehensive louisianajlap.com or visit the website, www. nacity as the basic recipe for competing at report, “The Path to Lawyer Well-Being: louisianajlap.com. an unprecedented academic level. We then Practical Recommendations for Positive took that high level of energy, dedication, Change.” The report motivated ABA Presi- J.E. (Buddy) Stockwell is skill and passion to the legal profession. dent Hilarie Bass to form a Presidential the executive director of the Louisiana Judges and Law- Basically, we set our work-ethic “cruise Working Group to Advance Well-Being in yers Assistance Program, controls” at a very high speed and buckled the Legal Profession focused on how legal Inc. (JLAP) and can be up for the long haul. employers can support healthy workplaces. reached at (866)354-9334 That’s all well and good, but most of The toolkit is designed to help lawyers or email jlap@louisiana- jlap.com. us did not receive any education on how and legal employers improve well-being important it is for all high-functioning pro- holistically and systemically. This goal fessionals to still maintain well-being and will require new choices, considerable ef- promote healthy work environments. Also, fort and changes that will likely upset the
198 October / November 2018 Offering Statewide Professional Mediators, Arbitrators, Umpires & Special Master Services
Robert Dampf Donald Armand, Jr. Daniel Balhoff Patrick Briney RobertBaton Burns,Rouge Jr. Robert Burns, Sr. David Butler David Clement
David Butler Baton Rouge
Doug Moreau Jeff Cole Baton Rouge Rene DeRojas Ward Fontenot Jim Gibson Carey Guglielmo James Cobb, Jr. Robert Dampf
Michael Helm William Helm M. “Kip” Holden Brian Homza Richard Hymel Steven Judice Trippe Hawthorne
Scott Kaiser Rick Kingrea A.J. Krouse Andrew Lemmon Jim Lochridge Thomas Juneau Sr. Peggy Landry
Kate Loos Scott Love Lynn Luker Dan Lund Chris Moody Doug Moreau Hodge O’Neal David Butler
Darrel Papillion Michael Ponder Mike Pulaski Keith Richardson Dan Parker John Perry Jonathon Perry
Keely Scott Tom Solari Emmett Sole Randy Theunissen Aub Ward Paul West Myron Walker 721 Government St, Suite 102 www.perrydampf.com Baton Rouge, LA 70802 Louisiana Bar Journal Vol. 66, No.225.389.9899 3 199 FOCUSDiversity ON 2018 SUIT UP PROGRAM
24 Students Complete 2018 Suit Up for the Future he Louisiana State Bar Asso- ciation’s (LSBA) Suit Up for the Future High School Summer Legal Institute and Internship TProgram had another successful year with 24 student interns completing the program. The three-week program (June 11-29) included abridged law school sessions; shadowing opportunities at law firms, courts and agen- cies; and field trips to courts and law schools. During the program, students prepared written memoranda to support their oral arguments. Oral arguments were presented on the last day of the program to a panel of Members of the 2018 Suit Up for the Future class and program coordinators. Front row from left, judges at the U.S. District Court, Eastern Adria Nobles Kimbrough, The Kullman Firm, co-chair, Pipeline to Diversity and Outreach Subcom- District of Louisiana. mittee; Spring A. Gaines, Loyola University College of Law; students Lanisha M. Dorsey, Shandrea The LSBA’s Suit Up for the Future U.M. Dyson, Gabrielle A. Bradford, Brooklyn M. Comeaux, Aria A. Morgan, Nakia Williams, Theresa M. Falgoust and Grace H. Traina; and Scherri N. Guidry, 15th JDC Public Defenders Office, co-chair, Program, a partnership with Just the Begin- Pipeline to Diversity and Outreach Subcommittee. Middle row from left, Elizabeth (Libby) Crocker, ning, the Louisiana Bar Foundation and the Tulane University Law School; students Alexandrea D. Flakes, Adrija Bhattacharjee, Alyssa M. Portillo, Louisiana law schools, is an award-winning Cassadi L. Marone, Terrol L. Perkins, Paitlyn M. McDonald, Nisha V. Bhatia and Rose Z. Ayyad; and Diversity Pipeline program and a 2013 Jay J. Vega, Tulane University Law School. Top row from left, students Bridget (Bee) Spinney, Chloe G. Brown, Matias D. Witte, Solange G. Campbell, Christian H. Lacoste, Amaya E. Felix, Kewaneé A. American Bar Association Partnership Harris and Patrick D. Murray. recipient. The Suit Up Program’s success is credited Judge Ivan L.R. Lemelle, U.S. District Cossich Lobrano and Judge (Ret.) Max N. to its dedicated volunteers. Court, Eastern District of Louisiana; Judge Tobias, Jr., Louisiana 4th Circuit Court of ► LSBA Pipeline to Diversity and Angelique A. Reed, 1st City Court, Orleans Appeal; Judge Camille Buras (Section H) Outreach Subcommittee Co-Chairs Adria Parish; Judge D. Nicole Sheppard, Orleans Nobles Kimbrough, The Kullman Firm; Parish Civil District Court; Adams and and Scherri N. Guidry, 15th JDC Public Reese, LLP; Courington Kiefer & Som- Defenders Office. mers, L.L.C; Deutsch Kerrigan, LLP; Irwin ► LSBA President Barry H. Grodsky. Fritchie Urquhart & Moore, LLC; Kelly Hart ► Instructors — Professors Isabel & Pitre; Shields Mott, L.L.P.; Stone Pigman Medina and Emily Bishop, Loyola Walther Wittmann, L.L.C.; Orleans Public University College of Law; Professors Defenders Office; Orleans Parish District Jeffrey C. Brooks and Robert E. Lancaster, Attorney’s Office; and Entergy Services, Inc. Louisiana State University (LSU) Paul M. ► Judges’ Panel — Judge Janis Van Hebert Law Center; Advocacy Fellow Annie Meerveld and Judge Karen Wells Roby, U.S. Scardulla, LSU Paul M. Hebert Law Center; District Court, Eastern District of Louisiana; and Professor Russell L. Jones, Southern Judge D. Nicole Sheppard (Section J), University Law Center. Orleans Parish Civil District Court; and Welcoming Suit Up students on the first day were, ► Shadowing Employers — Judge from left, Magistrate Judge Karen Wells Roby, Judge Paula A. Brown and Judge Tiffany U.S. District Court, Eastern District of Louisiana; June Berry Darensburg, 24th JDC; Judge G. Chase, Louisiana 4th Circuit Court of 2018-19 Louisiana State Bar Association President Lee V. Faulkner, Jr., 24th JDC; Judge Piper Appeal. Barry H. Grodsky; and Scherri N. Guidry, 15th JDC Griffin, Orleans Parish Civil District Court; ► Field Trip Presenters — Judge Joyce Public Defenders Office, co-chair, LSBA Pipeline to Diversity and Outreach Subcommittee.
200 October / November 2018 and Judge Tracey Flemings-Davillier (Section B), Orleans Parish Criminal District Court; Loyola University College of Law; Tulane University; Tulane University Law School; and Robert Gunn and Miriam Childs, Louisiana Supreme Court. ► Interns — Asia Hentkowski, Ashley Berry, Elizabeth (Libby) Crocker, Spring A. Gaines, Jay J. Vega; and Brian Trepanier, law clerk to Judge Karen Wells Roby. ► Lunch Presenters — Natalie S. Blackman, Caroline F. Bordelon, J. Michael Bowman, Alayne K. Gobeille, Robert W. Goeke, Amanda R. James, Janet Kearney, Kristen A. Lee, Dayal S. Reddy, Kimberly R. Silas and Micah C. Zeno. The 24 student interns participating in the 2018 Suit Up Program.
Derwyn D. Bunton, chief district defender, Orleans Public Defenders Office. Orleans Parish District Attorney Leon A. Cannizzaro, Jr.
On the final day of the program, Suit Up student interns presented oral argu- ments before a panel of judges. From left, Judge Paula A. Brown, Louisiana 4th “Legal Research and Writing” presenter Professor Emily Bishop, Loyola Circuit Court of Appeal; a.m. session Oral Argument winner and Best Memo University College of Law. winner (prosecution), Aria A. Morgan; a.m. session Oral Argument winner (defense), Adrija Bhattacharjee; p.m. session Oral Argument winner (defense), Christian H. Lacoste; p.m. session Oral Argument winner (prosecution), Theresa M. Falgoust; Magistrate Judge Karen Wells Roby, U.S. District Court, Eastern District of Louisiana; and Judge Tiffany G. Chase, Louisiana 4th Circuit Court of Appeal. Not in photo, Gabrielle A. Bradford, Best Memo winner (defense).
“How a Legal Career Provides You with Meaning, Purpose and a Mission in Life” “Statutory Interpretation” presenters, from presenter Professor left, Caroline F. Bordelon, Gieger, Laborde & “Constitutional Law” Robert E. Lancaster, “College and Law School Admission Preparation Laperouse, LLC; Micah C. Zeno, Gordon, Arata, presenter Professor LSU Paul M. Hebert Workshop” presenters, from left, Brent McLemore, Montgomery, Barnett, McCollam, Duplantis Isabel Medina, Loyola Law Center. assistant director at the Loyola Career Development & Eagan, LLC; and Kristen A. Lee, law clerk, University College Center, Office of Student Affairs, Loyola University Louisiana 4th Circuit Court of Appeal. of Law. New Orleans; and Veronica Aviles, admissions coun- selor, Loyola University New Orleans.
“College and Law School Admission Preparation Workshop” presenters, from left, Daphne A. James, “Oral Argument Workshop (How to Deliver an associate director of admissions, Office of Admis- “Criminal Law” presenter Professor Russell L. Oral Argument)” presenters, from left, Professor sions, LSU Paul M. Hebert Law Center; and Sierra Jones, center, Jesse N. Stone, Jr. Endowed Profes- Jeffrey C. Brooks, assistant professor of profes- Cason, admission counselor, Office of Undergraduate sor of Law, Southern University Law Center, with sional practice and Annie Scardulla, Advocacy Admission, Tulane University. student interns. Fellow, LSU Paul M. Hebert Law Center.
Louisiana Bar Journal Vol. 66, No. 3 201 Crossword PUZZLE By Hal Odom, Jr. KISS ME “CATE”
1 2 3 4 5 6 ACROSS DOWN
7 8 1 Document or electronic record of 1 Maintain contact, as with a insurance coverage (11) client (11) 9 10 11 7 Pay close attention (abbr.) (1., 1.) 2 Many a summer TV show (5) 9 Senseless or ill-advised (7) 3 One who might file a patent 10 ESPN summary (5) request (9) 12 Funerary vessel (3) 4 Recite, as magic words (6) 12 13 14 13 Prove oneself right (9) 5 Mediation and arbitration, 15 “The Usual Gang of ___” e.g. (1, 1, 1) MAD Magazine credit line (6) 6 As plain as possible, Jacques! (2, 5) 15 16 17 17 Keen and insightful remark (6) 8 An undergraduate degree for 19 Engage in a loud public argument many lawyers (1., 1.) 18 with (or without) physical 11 Decide before hearing the contact (9) evidence (11) 19 20 20 Former juvenile detention 14 Shower curses upon (9) facility in Monroe and 16 Honestly (2, 5) Baton Rouge (1, 1, 1) 18 Former tennis racquet material: 21 Avoid capture or exceed one’s no felines were harmed (6) 21 22 23 24 understanding (5) 20 Natural sponge (5) 24 Crunchy oat-and-nut confection (7) 22 Its capital is B.R. (2.) 25 25 How @ is pronounced (2) 23 Particularly (abbr.) (3.) 26 Pledge as security (11) 26
Answers on page 221.
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202 October / November 2018 18LAJ_LastChance_forLSBA_OutlineType_NoBleed_Layout 1 8/20/2018 10:47 AM Page 1
Louisiana Bar Journal Vol. 66, No. 3 203 FOCUS ON Professionalism By Christy M. Howley Connois THE NEED FOR A PLAN
ecent and not-so-recent as of counsel.” This person also can help you set up a list events in my practice, in- The takeaway? Even in death, your of where your files, bank accounts and cluding the death of sev- clients can pursue you. Also, even in the passwords are housed. Many IT people eral colleagues (some at event of a major illness, we cannot neglect are not prohibitively expensive and, I a veryR young age and others who were our duties to our clients. You must have a promise you, my IT person has saved my my contemporaries) and the suspension plan for another lawyer to take over your bacon many times. of colleagues for various issues, have practice in the event of a major illness, ► If you do not have a law partner, brought to the forefront a problem on my catastrophe or even your death. associate someone as of counsel or enlist mind lately, both in the context of an in- The comments to ABA Model Rule 1.3 a colleague and write your succession plan ability to practice law for some reason recommend just that: and give it to that person. Make sure they and in the context of organization — the are capable of taking over your practice need for a plan. [5] To prevent neglect of client on little to no notice for a period of time Louisiana attorneys don’t just practice matters in the event of a sole practi- if some emergency befalls you or your in big firms where their partners can take tioner’s death or disability, the duty family. No one should be unprepared and over if something happens to them. Many of diligence may require that each your clients should not be prejudiced by attorneys in our state practice in small sole practitioner prepare a plan, in your life issue. firms or are solo practitioners. If something conformity with applicable rules, ► Part of your plan should include writ- catastrophic happens to them, many have that designates another competent ten instructions on how and where client no succession plans for their practices. lawyer to review client files, notify information is stored, including bank and What plan do you have for your practice each client of the lawyer’s death or other account details (e.g., operating and in the event of a medical emergency, your disability, and determine whether trust account information), information death or the death of a close family member, there is a need for immediate pro- concerning disposition of closed client or some other unforeseen event that keeps tective action. (Dane Ciolino, La. files, information about law office equip- you away from your practice for more than Legal Ethics, 3/5/14). ment leases or other contracts, information a few weeks? Many (I know, because I’ve regarding payment of current liabilities, been asking) do not have any plan at all. If you’re in a small firm (fewer than five and information on how you contemplate Consider this case from New York and lawyers), could they pick up all of your your successor will be compensated. the ABA Model Rules. files and handle them quickly and without Recently, some colleagues and I had the A New York appellate court ruled in any incident like prescription or prejudice unenviable task of wrapping up the law 2014 that a lawyer’s death is no excuse for to a client? Probably not. practice of someone who died unexpected- negligently allowing a client’s tort claim So, here are a few easy guidelines for ly. We are still handling it today. Assisted by to prescribe, Cabrera v. Collazo, 2014 NY all of us. Louisiana State Bar Association (LSBA) Slip Op. 00622 (N.Y. App. Div. 1st Dept. ► Keep a client information folder in Ethics Counsel Richard P. Lemmler, Jr. 2/4/14). The lawyer died 11 days before your computer and keep a client informa- (who was so patient and informative and the statute of limitations ran on his client’s tion sheet in the front of each file, with who I highly recommend consulting), we medical malpractice claim. The aggrieved name, address, phone numbers, emails have navigated the waters of this area of client sued his estate for legal malpractice. and the like of the client(s) and another our practice that is not highly regulated by The court ruled: “Plaintiff is entitled to the person to contact if you cannot reach the the Bar. The only regulation that addresses factual inference that, at this late juncture client. I would apply this to any type of this is Louisiana Supreme Court Rule XIX, and mindful of his ill health, [the lawyer] case including an insurance one and just Section 27(A), which states: was aware of the need to prepare and file a change client for adjuster. complaint or to arrange for one to be filed as ► Back up all of your files onto an Inventory of Lawyer Files. If a soon as the necessary letters of administra- external hard drive kept away from your respondent has been transferred tion were received . . . . [He] neither filed a office or onto the cloud in the event of an to disability inactive status, or has complaint nor engaged another attorney to emergency. disappeared or died, or has been file one in his stead despite the availability ► Find an IT person to assist with your suspended or disbarred and there of three attorneys associated with the firm office setup, organization and file back-up. is evidence that he or she has not
204 October / November 2018 complied with Section 26, and no While there is currently nothing in the Christy M. Howley Con- partner, executor or other respon- Louisiana Rules of Professional Conduct nois, a member of the Gretna firm of Bowman & sible party capable of conducting that governs having a succession plan, that Howley, has been practic- the respondent’s affairs is known may not be the case for long. ing law for 22 years. She to exist, the presiding judge in the The Louisiana Supreme Court has this has a general civil and judicial district in which the re- issue on its mind as Proposed Rule 1.19 is criminal practice, focusing on family law, personal in- spondent maintained a practice or a under consideration. This rule would ask jury, successions, civil liti- lawyer member of the disciplinary all attorneys to create a succession plan or gation matters, and felony board should the presiding judge be name a successor attorney and place it on and misdemeanor criminal unavailable, upon proper proof of file with the LSBA. representation. She is a member of the Louisiana State Bar Association’s the fact, shall appoint a lawyer or Based on my own experiences, I hope House of Delegates and co-chairs the LSBA’s Com- lawyers to inventory the files of the the rule is approved soon. Every attorney mittee on the Profession. She was listed in Louisiana respondent, and to take such action should create a succession plan and place Super Lawyers in 2011 and was named as one of the as seems indicated to protect the it with their partners or another attorney Top 10 Family Law Attorneys in Louisiana in 2015 by the National Academy of Family Law Attorneys. interests of the respondent and his and certify that fact to the LSBA each year. She received her undergraduate degree from Loyola or her clients. (Amended effective That way, clients are protected and so is University and her law degree from Loyola University Sept. 16, 2005.) the profession. College of Law. (christyhowley@bowmanandhowley. com; 629 Lafayette St., Gretna, LA 70053)
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. 1-9, 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 2019. (Costumes that were donated after Halloween 2017 are being distributed to children for 2018.)
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 102 Arkansas Ave. 601 St. Charles Ave. Baton Rouge, LA 70802 Monroe, LA 71201 625 Texas St. New Orleans, LA 70130 (225)344-4803 (318) 387-3500 Shreveport, LA 71101 (504)566-1600 (318)222-3643
COVINGTON LAFAYETTE ALEXANDRIA LAKE CHARLES Clint Hanchey Jo Abshire Alainna Mire J. Lee Hoffoss, Jr. Lafayette Bar Association Alexandria City Hall Hoffoss Devall, LLC Pugh Accardo, Attorneys at Law 2607 Johnston St. 112 Innwood Dr., Ste. B Lafayette, LA 70503 915 Third St. 517 West College St., Covington, LA 70433 (337)237-4700 Alexandria, LA 71301 Lake Charles LA 70605 (985)246-2306 (337)433-2053
Louisiana Bar Journal Vol. 66, No. 3 205 DISCIPLINE Reports REPORTING DATES 8/1/18 & 8/6/18
REPORT BY DISCIPLINARY COUNSEL Public matters are reported to protect the public, inform the profession and deter misconduct. Reporting date Aug. 6, 2018.
Decisions period of unsupervised probation, by of Professional Conduct. order of the Louisiana Supreme Court on Arthur Harris, Sr., Metairie, (2018- Sean C. Brazil, New Orleans, (2018- June 15, 2018. ORDER FINAL and EF- B-0847) Probation revoked, previous B-0932) Consented to be transferred to FECTIVE on June 15, 2018. Gist: DWI deferred suspension of one year and interim suspension status by order by the offense (criminal act). one day has been made executory, by Louisiana Supreme Court on June 15, 2018. John Morris Dunn III, Covington, order of the Louisiana Supreme Court on JUDGMENT FINAL and EFFECTIVE on (2018-B-0340) Disbarred for conver- June 15, 2018. JUDGMENT FINAL and June 15, 2018. sion of third-party funds by order of EFFECTIVE on June 15, 2018. Robert O’Neal Chadwick, Jr., Alex- the Louisiana Supreme Court on May 11, Timothy John Henry, Jr., New Or- andria, (2018-B-0691) By consent has 2018. Rehearing denied on June 15, 2018. leans, (2018-B-0875) By consent has been suspended from the practice of law JUDGMENT FINAL and EFFECTIVE on been suspended from the practice of law for one year and one day, with all but six June 15, 2018. Gist: Respondent converted months deferred, subject to a two-year third-party funds in violation of the Rules Continued next page
206 October / November 2018 Discipline continued from page 206 suspended from the practice of law for and EFFECTIVE on June 9, 2018. Gist: for a period of one year, fully deferred, a period of two years, retroactive to Respondent neglected his client’s patent , subject to a one-year period of unsuper- his July 6, 2017, interim suspension matter; failed to communicate with his by order of the Louisiana Supreme Court vised probation, by order of the Louisiana client; failed to refund any portion of the on June 15, 2018. JUDGMENT FINAL Supreme Court on June 15, 2018. ORDER unearned fee he was paid; and failed to FINAL and EFFECTIVE on June 15, 2018. and EFFECTIVE on June 15, 2018. Gist: cooperate with the Office of Disciplinary Gist: Commission of a criminal act (DWI Commission of a criminal act, especially Counsel in its investigation. first offense); and violating or attempting to one that reflects adversely on the lawyer’s Melanie Kay Shrell, Ruston, (2018- violate the Rules of Professional Conduct. honesty, trustworthiness or fitness as a OB-0974) Transferred to disability lawyer in other respects (domestic abuse Raushanah S. Hunter, Baton Rouge, inactive status by order of the Louisiana and battery). (2018-B-0341) Suspended from the Supreme Court on June 25, 2018. JUDG- , New Orleans, practice of law for one year and one Dianne J. Marshall MENT FINAL and EFFECTIVE on June (2018-B-0918) day, with all but four months deferred, Consented to a public 25, 2018. by order of the Louisiana subject to probation, by order of the reprimand Michael L. Thiel, Hammond, (2018- Supreme Court on June 15, 2018. JUDG- Louisiana Supreme Court on May 18, 2018. B-0367) Disbarred on consent from the ORDER FINAL and EFFECTIVE on June MENT FINAL and EFFECTIVE on June practice of law by order of the Louisiana 1, 2018. Gist: Failure to act with reasonable 15, 2018. Gist: Respondent failed to act Supreme Court on June 25, 2018. JUDG- diligence and promptness in representing with reasonable diligence and promptness MENT FINAL and EFFECTIVE on June a client; failure to communicate; conflict in representing a client; failed to communi- 25, 2018. Gist: Respondent’s discipline of interest; failure to cooperate with the cate with a client; failed to take reasonable resulted from his pleading guilty to one Office of Disciplinary Counsel; engaging steps to protect a client’s interest upon count of willfully evading the payment in conduct involving dishonesty, fraud, termination of representation; and violated of federal taxes. deceit or misrepresentation; and violat- the Rules of Professional Conduct. Clara E. Toombs, Monroe, (2018-OB- ing or attempting to violate the Rules of Edward Bissau Mendy, New Orleans, 0948) Transferred to disability inactive Professional Conduct. (2018-B-0384) Permanently disbarred status by order of the Louisiana Supreme by order of the Louisiana Supreme Court Marcus Paul LaCombe, Iowa, LA, on May 25, 2018. JUDGMENT FINAL (2018-B-0716) By consent has been Continued next page
STANLEY, REUTER, ROSS, THORNTON & ALFORD LLC 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 Vol. 66, No. 3 207 DISCIPLINARY REPORT: UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA The following is a verbatim report of the matters acted upon by the United States District Court for the Eastern District of Louisiana, pursuant to its Disciplinary Rules. This information is published at the request of that court, which is solely responsible for the accuracy of its content. This report is as of Aug. 1, 2018. Respondent Disposition Date Filed Docket No. David L. Bell [Reciprocal] Interim suspension. 6/22/18 18-3716 Laetitia Black [Reciprocal] Suspension. 6/22/18 18-3973 Lionel Lon Burns [Reciprocal] Suspension. 7/25/18 18-5411 Patrick Hale DeJean [Reciprocal] Interim suspension. 7/25/18 18-5410 Hilliard Charles Fazande III [Reciprocal] Interim suspension. 7/25/18 18-5409 Christa Hayes Forrester [Reciprocal] Suspension. 6/22/18 18-3715 Bryan F. Gill, Jr. [Reciprocal] Suspension. 6/22/18 18-3971 Matthew Ungarino One-year suspension [fully deferred]. 7/11/18 17-773
Discipline continued from page 207 OB-1057) Reinstated to the practice of Ward has proven by clear and convincing law, subject to a five-year period of pro- evidence that she satisfies the criteria for Court on June 25, 2018. JUDGMENT FI- bation, by order of the Louisiana Supreme reinstatement to the practice of law in the NAL and EFFECTIVE on June 25, 2018. Court on July 3, 2018. JUDGMENT FINAL Louisiana. Trisha A. Ward, New Orleans, (2018- and EFFECTIVE on July 3, 2018. Gist: Admonitions (private sanctions, often with notice to complainants, etc.) issued Christovich & Kearney, llp since the last report of misconduct involv- attorneys at law ing:
Defense of Ethics Complaints and Charges Violation of Rule 1.15(f) — Safekeeping of a client’s or third person’s property stating E. Phelps Gay Kevin R. Tully that every check, draft, transfer or other H. Carter Marshall withdrawal instrument or authorization Mary Beth Meyer from a client trust account must be signed or directed by a lawyer, or in the case of a (504)561-5700 law firm, one or more lawyers authorized by the firm. 601 Poydras Street, Suite 2300 New Orleans, LA 70130 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 becom- ing more diverse and competitive. For more information, visit www.lsba.org
208 October / November 2018 RECENTDevelopments BANKRUPTCY TO TAXATION
use some of the proceeds for medical bills ceeds should be distributed to the debtors’ but then must turn over the remaining creditors under the plan. sale proceeds to the trustee, or (2) they On appeal, the 5th Circuit explained Bankruptcy could dismiss their case and retain all of that Section 349(b) of the Bankruptcy Law the proceeds, foregoing a discharge. The Code provides that dismissal of the case debtors chose to file a motion to volun- revests the property of the estate “in the tarily dismiss their case. entity in which such property was vested The trustee objected to the motion to immediately before the commencement Homestead Property dismiss, arguing that it was filed in bad of the case.” Because the homestead was faith in order to retain the sale proceeds, vested in the debtors at the commence- Matter of Lopez, 897 F.3d 663 (5 Cir. which were gained years prior without ment of the case, the sale proceeds revest- 2018). court permission, and retain a windfall at ed in the debtors on dismissal. The 5th In Lopez, the Chapter 13 debtors listed the expense of their unpaid creditors. The Circuit thus agreed with the bankruptcy their Texas property as their homestead, bankruptcy court granted the voluntary court, finding the district court’s ruling which they claimed as exempt under the dismissal and ordered that the trustee turn “untenable” because it ordered distribu- Bankruptcy Code and other Texas state over the proceeds to the debtors. tion of funds to creditors under a defunct laws. The debtors confirmed a plan that The trustee appealed, and the district plan in a case that was over. Since a trust- provided that the property of the estate, court reversed, holding that the sale pro- ee can distribute funds to creditors only including property that subsequently may come into the estate, would not revest in the debtor except upon, among other things, dismissal of the case. ROY A. RASPANTI After plan confirmation, the debtors Attorney and Counselor at Law continually failed to make the required plan payments. To ease their financial bur- den, the debtors sold their home but failed CIVIL MEDIATOR to seek court permission. Two years later, the debtors filed a motion seeking to retro- actively approve the sale. At the hearing on the motion to sell, $275 Per Hour the Chapter 13 trustee cited to 5th Circuit precedent that provides that the proceeds from the sale of the homestead property became estate property if they are not re- NO ADMINSTRATIVE FEE invested in (or used to purchase) another home within six months. Because the debtors did not purchase another home, Member of the LSBA since 1975 the trustee argued, the sale proceeds were Member of LSBA House of Delegates since 2000 no longer exempt and should be brought into the estate. The bankruptcy court approved the sale motion but ordered that the proceeds 110 Veterans Blvd. Suite 360 Metairie, LA 70005 were estate property and submitted the funds to the trustee for distribution to the (504) 835-5388 [email protected] debtors’ creditors. After again failing to www.RoyRaspanti.com make plan payments, the bankruptcy court informed the debtors that they could (1)
Louisiana Bar Journal Vol. 66, No. 3 209 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 22nd 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 Thursday, Nov. 29 through Monday, Dec. 3, 2018. • 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:______
City/State/Zip:______
Phone:______
Fax:______
E-mail:______
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.
210 October / November 2018 under the specific terms of a plan and had represented the corporation’s agent, entered against it. because the plan was no longer in effect officer and director. The suit asserted that After a notice to vacate was posted on upon dismissal, the authority to distribute the lawyer had conspired with his client Covington’s premises, Covington sued funds ended with the closing of the case. to defraud the corporation. Covington Ketchum and Keating seeking a prelimi- Golf and Recreation Park, Inc. was incor- nary and permanent injunction, as well as —Cherie D. Nobles porated by Charles Gambino, Thomas E. declaratory judgment that the lease was and Ketchum, Jr. and Ketchum’s wife, Betty valid and enforceable. Covington filed an Tiffany D. Snead Keating, with Gambino and Ketchum amended pleading to add Longenecker Members, LSBA Bankruptcy serving as directors, as well as president as a defendant, alleging that he had con- Law Section and secretary/treasurer, respectively. spired with Ketchum and Keating to Heller, Draper, Patrick, Horn Ketchum also served as agent for ser- commit fraud by suing Covington and & Manthey, L.L.C. vice of process, with his home address obtaining cancellation of the lease. Ste. 2500, 650 Poydras St. listed as Covington’s registered office Covington alleged that Ketchum’s New Orleans, LA 70130 and principal place of business. Further, intent to defraud it was evident by his Ketchum and Keating owned and leased not informing Gambino of the suit to to Covington the property on which cancel the lease, in violation of his fidu- • Sponsors will shop with inspiration from the child’s “Wish List.” Covington operated its driving range pur- ciary duty as Covington’s director, offi- • Informational packets will be distributed in November. Corporate and suant to a 10-year lease with an option to cer and agent. Further evidence of this • No required minimum or maximum amount on gifts. Business Law purchase the property. Attorney Geoffrey intent to defraud was Ketchum’s failure Longenecker represented Ketchum and to attend two special meetings of the • Gift collection will run from Thursday, Nov. 29 through Monday, Dec. 3, 2018. Keating in these transactions. board of directors called by Gambino • More details about gift-wrapping, drop-off, etc., will be included in the informational packet. In April 2008, Longenecker sent with the express intent of discussing Lawyer for Agent, Covington a notice-of-default letter on the status of Covington’s tax filings and behalf of Ketchum as lessor for failure plans for developing the property fur- Director and Officer Did to pay rent for three months. The letter ther. Ketchum also never raised the is- Not Conspire to Defraud gave Covington 10 days to cure the de- sues with the lease despite routine daily Corporation fault or the lease would be terminated. interactions with Gambino. Gambino al- The letter was delivered to Ketchum’s leged that he learned of the events only Covington Golf & Recreation Park, house by both certified mail and hand de- upon seeing the notice to vacate posted Inc. v. Keating, 17-0297 (La. App. 1 livery, and Ketchum acknowledged ser- at Covington’s premises. Covington also Cir. 3/7/18), ____ So.3d ____, 2018 WL vice by signing the certified mail receipt. alleged that Longnecker, as Ketchum’s 1191394. Subsequently, Ketchum and Keating filed personal attorney, knew of Ketchum’s The 1st Circuit Court of Appeal af- suit against Covington, and service of the intent in filing suit, and, therefore, had firmed the district court’s dismissal of a suit was personally made on Ketchum. participated in the conspiracy to com- corporation’s suit against a lawyer who After Covington failed to timely respond mit fraud. Ketchum and Keating subse- to the petition, a default judgment was quently declared bankruptcy and were
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Louisiana Bar Journal Vol. 66, No. 3 211 dismissed from the suit. Longenecker, jority opinion, stating that the record thereafter, died and his estate was substi- amply demonstrated Longenecker’s in- tuted as the sole defendant. volvement in the lawsuit for cancellation The trial court found in favor of of the lease, as well as his knowledge of Environmental Longenecker’s estate, holding that Ketchum’s positions with Covington as Law Covington had failed to meet its burden of agent, director and officer. At the very proving that Longenecker had knowledge least, Judge Welch argued, Longenecker that Ketchum and Keating were commit- “would have been aware” that Ketchum ting fraud by using the lawsuit to cancel had failed to act in his role as agent for Arguments to Combine the lease and not informing Gambino of Covington based on Covington’s fail- the lawsuit. Covington appealed, con- ure to timely respond to the lawsuit for Land Loss Suits tending the trial court erred in requiring cancellation of the lease. These facts and Rejected Covington to prove Longenecker’s actual circumstances, the dissent argued, were knowledge of Ketchum’s intent to com- sufficient to infer that Longenecker put In Re: La. Coastal Zone Land Loss mit fraud by concealing the suit instead himself in an “unusual and inappropri- Litigation, 317 F.Supp.3d 1346 (Mem) of concluding that Longenecker had such ate ethical circumstance” and knew of his (Multi. D. Lit. 2018.) knowledge on circumstantial grounds. client’s fraudulent intent. After being removed to federal court The 1st Circuit affirmed the trial court, again (the third time for some of the cases), holding that the trial court had not re- —Joshua A. DeCuir five judges of the United States Judicial Panel quired the plaintiff to prove actual knowl- Council Member, LSBA Corporate on Multi-District Litigation rejected defen- edge by Longenecker. Rather, the appel- and dants’ arguments to combine the dozens of late court held that the trial court clearly Business Law Section coastal-land-loss suits into a multi-district lit- concluded that the plaintiff failed to meet Aptim Corp. igation format (MDL) pursuant to 28 U.S.C. its burden of proving of Longenecker’s 4171 Essen Lane § 1407. The panel, which sat for hearings in knowledge even by circumstantial evi- Baton Rouge, LA 70809 Santa Fe, NM, concluded that centralization dence. is “not necessary for the convenience of the Judge Welch dissented from the ma- parties and witnesses or to further the just and efficient conduct of this litigation.”
The Patterson Resolution Group o ers dispute mediation and resolution services in complex cases to businesses and arbitration of individuals across Louisiana and the Gulf South. Group complex disputes members include six former presidents of the Louisiana State Bar Association and a retired district court judge. e members have substantive experience in disputes in areas such as:
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212 October / November 2018 The panel acknowledged that the 41 at the trial court, which were granted. The Lennie at *4. In support of this claim, the cases (29 pending in the Eastern District of trial court found that the plaintiffs failed plaintiffs alleged that NORM was pre- Louisiana and 12 in the Western District of to meet their burden of proof to apply the viously discovered by the oil industry Louisiana) broadly implicated the same fac- doctrine of contra non valentem, which and that a trade group was established tual questions — namely, that the five coastal suspends the running of prescription to develop a screening method to detect parishes were experiencing significant coast- against a claimant who is “ignorant of the NORM, which was approved by the state al-land loss and whether or to what extent oil existence of facts that would enable him and adopted by Lennie’s employer. A and gas extraction or transmission contribut- to bring a cause of action, provided that similar argument was successfully made ed to that loss — but the panel focused on the his ignorance is not willful, negligent, or in Lester v. Exxon Mobil Corp., 10-743 fact that each case was specifically tailored to unreasonable.” Guillot v. Daimlerchrysler (La. App. 5 Cir. 5/31/12), 102 So.3d 148. an “operational area” that would likely have Corp., 08-1485 (La. App. 4 Cir. 9/24/10), However, the 5th Circuit distinguished the distinct causes of action, discovery needs and 50 So.3d 174, 181 (citing Wimberly v. Lester case due to the plaintiffs’ failure to different defendants. Gatch, 93-2361 (La. 4/11/94), 635 So.2d present “any evidence of actions taken by Although the parties disagreed over the 206, 212). Relevant to the Lennie case, defendants that would rise to the level of prudence of consolidation as an MDL un- contra non valentem may apply when: 1) concealment, misrepresentation, or fraud der section 1407, the parties were mutually there has been concealment by the alleged directed towards them.” Lennie at *4. In agreeable to some form of consolidation at tortfeasor; or 2) where the plaintiffs do not Lester, there was evidence suggesting that the federal court level. As such, the MDL have actual or constructive knowledge of the employer showed videos to workers panel recognized that future consolidation by the cause of action even if not induced by suggesting that NORM exposure was very the Eastern and Western District Courts may the defendant. unlikely. be a possibility under 28 U.S.C. § 1404. More specifically, the plaintiffs al- The Lennie plaintiffs also sought to The 41 separate cases, which were re- leged that “the defendants actively sought avail themselves of the suspensive influ- moved on the basis that the plaintiffs’ pre- to conceal the causal link between work- ence of contra non valentem by alleging liminary expert reports implicated federal related NORM exposure and lung cancer, that they had no actual or constructive directives issued during World War II and and downplay the danger of exposure to knowledge of the cause of action, also thus before the passage of the Coastal Zone the radioactive material in the workplace.” known as the “discovery rule.” Management Act (upon which the cases are based), now remain in federal district court 6513 PERKINS, LLC and await decisions on pending motions to A Community of Professionals remand.
NORM Litigation
Lennie v. Exxon Mobil Corp., 17-0204 (La. App. 5 Cir. 6/27/18), ____ So.3d ____, 2018 WL 3131444. In an appeal from the 24th Judicial District Court, the Louisiana 5th Circuit recently clarified its application of pre- scription and contra non valentem in NORM (naturally occurring radioactive material) litigation. This case was a survival and wrongful Large suites and small offices with access to conference rooms available in death suit brought by the surviving spouse and children of a man who had worked well-known Baton Rouge building. Smaller offices are suitable for professionals in a pipe yard where they allege he was starting out, winding down their practice, needing minimal space, or out-of-town exposed to NORM, leading to his death firms looking for a Baton Rouge presence at a reasonable cost. from lung cancer some 16 years after his ♦ Beautiful lobby with receptionist to greet visitors ♦ Ample Free Parking retirement. Various Size Conference Rooms Large Patio Under a Spreading Oak The plaintiffs’ claims were based in tort, ♦ ♦ thus carrying a one-year prescriptive pe- ♦ Secured Entry Into Building ♦ Kitchen riod under La. Civ.C. art. 2315.1. Lennie LOCATED across from PENNINGTON BIOMEDICAL CENTER died in 2010 — some four years prior to For space availability, contact PAM PAYER or CHARLES MOORE at his family filing suit on his behalf. As such, 225.766.1100 the defendants filed prescription exceptions Visit us on facebook: 6513 Perkins, LLC
LouisianaLouisiana BarBar JournalJournal Vol.Vol. 66,66, No.No. 33 213 15 The Lennie plaintiffs testified that they court of appeal found that the two chil- did not have actual knowledge that an- dren were liable only for their virile shares other party wrongfully caused Lennie’s and amended the judgment to require the death until they read a newspaper article Family two children to pay one-fourth each of the in 2013. However, the court concluded Law mortgage expenses. The children were in its de novo review that “Mr. Lennie’s joint, not solidary, obligors. diagnosis of lung cancer in January 2010 Regarding the repair and maintenance was constructive notice sufficient to put expenses, the court of appeal first rejected the Lennies on guard and to call for them Succession the children’s argument that those ex- to inquire further into the cause of his con- penses should be offset by Ms. Sork’s use dition.” Lennie at *8. The court found that Sork v. Sork, 17-0300 (La. App. 1 Cir. of the home, finding that the children had the Lennies’ lack of knowledge was due 2/9/18), 242 So.3d 640. never demanded occupancy of the home only to their lack of investigation. In so Following Mr. Sork’s death, 50 percent and been refused. The children further ar- ruling, the court distinguished an earlier ownership of a home and the debt thereon gued that many of the expenses were not ruling allowing for the application of con- was received by Ms. Sork, who was Mr. necessary expenses. The court of appeal tra non valentem in a situation where the Sork’s second wife, and the other 50 per- agreed, reducing the award to those only plaintiff has investigated the cause of an cent of the home and liability was received for expenses necessary to preserve the injury, but received an alternative diagno- by his four children from his first wife. home and which were sufficiently prov- sis from a physician. She subsequently sued the stepchildren en. The dissent argued that the children for reimbursement for mortgage payments should have been solidarily obligated on —S. Beaux Jones and for repair and maintenance expenses. the debt. Vice-Chair, LSBA Environmental After serving two of the four children, Law Section she obtained a default against those two In re Succession of Buhler, 17-0049 (La. Baldwin Haspel Burke & Mayer, L.L.C. children for one-half of the mortgage pay- App. 1 Cir. 2/22/18), 243 So.3d 39. Ste. 3600, 1100 Poydras St. ments she had made and for one-half of During the parties’ marriage, Mr. Buhler New Orleans, LA 70163 the repair and maintenance expenses. The executed a will in which he bequeathed all
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214 October / November 2018 of hisThe property first case,to his Joseph wife. v.Subsequently, Wasserman, ingjudgments their marriage. were final Mr. Barriosdepended died on in La. theyinvolved divorced, a legal and malpractice the trial action.court signedWhile 1975.C.C.P. Ms. art. Barrios1915. died in 1981. The two athe judgment. case was pending,Mr. Buhler the thenplaintiffs died beforebecame successionsThe court were had noconsolidated trouble determining in 1984 theinvolved delay infor bankruptcy suspensively proceedings. appealing Thehad butthat remainedthe first openjudgment without was judgments a final judg of- passed.defendant Ms. filed Buhler an exceptionfiled a petition of no rightto pro -of possession.ment because Subsequently, the judgment after dismissed the BP a bateaction, his allegingwill, alleging that thethat plaintiffs’Mr. Buhler wasbank- oilparty. spill, The which judgment affected was thereforethe leases, final one herruptcy husband trustee and was seeking the real to partybe designated in inter- ofand the appealable parties’ childrenpursuant obtained to art. 1915(A) a large asest. executrix. The trial courtAfter sustained the trial the court exception signed recovery(1) without from being BP. designatedOther heirs as sued a final for the“conditionally,” order, Mr. Buhler’s pending daughter, the intervention Ms. Paul, theirjudgment. shares, However, which the court the second of appeal judg ul- movedof the bankruptcy to revoke trustee.the appointment under timatelyment was awarded more problematic. to them. The exception La. OnCiv.C. appeal, art. 1608 the 4th on Circuitthe grounds found that that the it of prescriptionThe second ofjudgment one of the decided heirs was one de of- Buhlerslacked subject were divorced matter jurisdiction at the time and of disMr.- niedthree because issues the in theheirs bifurcated became co-owners trial, the Buhler’smissed the death appeal. and Atthat issue Ms. wasBuhler whether mis- onother the parents’ two being deaths whether and their the claims plaintiffs did representedthe judgment that was she “precise, was still definite married toand nothad prescribetitle to the because property they in werequestion, co-heirs and him.certain,” She arguedan essential that, becauseelement theof finality.divorce andwhether co-owners any taxes in indivision. or tax refunds were judgmentAccording was to not the yet court, final “a at conditionalthe time of due plaintiffs. Unlike the first judgment, hisjudgment, death, it order abated. or decree, the finality of Successionthe second of judgment Pelt, 17-0860 did not (La. dismiss App. 3 a whichThe dependstrial court on found certain that contingencies the divorce Cir.party. 4/11/18), As a result, 244 So.3d it was 476. not appealable negatedwhich may any or testamentary may not occur, provisions is not final in unlessThe expressly court of appealdesignated reversed as appealable the trial herfor the favor, purposes revoked of appeal.” her appointment Based on that as court,under findingart. 1915(B) that the after decedent’s a determination purport- executrixprinciple, andthe appointedcourt found Ms. that Paul the as judg ex- edthat daughter’s there was petition no just to reason intervene for in delay. the ecutrix.ment lacked Both finality parties thenbecause submitted it condition con- successionThe trial court to establishmade no such her filiation certification was
flictingally sustained proposed the defendant’sjudgments, exception.and the trial notin the prescribed judgment. because Therefore, La. the Civ.C. judgment art. courtThe signed defendant both, Ms. urged Buhler’s the courtone day to 197was nothad finalto be and read appealable. in conjunction with andconsider Ms. Paul’s the appeal the next. because The court the condiof ap- art.The 870, court which then provided noted thatthat itsuccession could re- pealtion found in the that judgment, Ms. Paul’s the judgment intervention was rightsview theare judgmentgoverned underby the its law supervisory in effect anof absolutethe bankruptcy nullity, astrustee, it was had substantively occurred. onjurisdiction the date of if thethe decedent’sappeal was death. filed Whilewithin differentHowever, theand court could rejected not thisamend argu the- first herthe claim deadline would for filinghave been applications prescribed for signedment because judgment. the occurrence of the con- butsupervisory for the amendment writs. However, enacting plaintiffsart. 197, ditionMoreover, did not althoughchange the Ms. conditional Buhler’s pro na-- whenfailed theto file two their articles motion were for read appeal together, with-
posedture of judgment the ruling. was The not court circulated also declined to op- thein theLegislature’s deadline. intent Plaintiffs’ was clear motion that her was posingto convert counsel the appealin accordance to a writ with applica Rule- claimtimely was for notappeal prescribed. purposes Moreover, because they the 9.5,tion, it finding had been that provided the defendant to opposing had an decedent’shad filed heirs a motiondid not foracquire new atrial, vested which counsel,adequate and remedy the proposed from an judgment appeal of not the- rightwas denied,in the succession and they filedthat would their have motion edfinal that judgment. Ms. Paul opposed certain portions. precludedwithin 60 herdays claim. of the The judgment trial court denying sur- TheThe court second of appeal case, thusForstall found v. thatCity theof veyedthe motion previous for jurisprudence new trial. However, as well theas purposeNew Orleans for Rule, involved 9.5 had been an actionachieved, by thependency legislative of the history motion in conjunctionfor new trial with had andplaintiff that the to error quiet in not a allowing tax sale the fullon immov- makingno effect its onruling the deadlinethat because for applying her action for fiveable property. days for Plaintiffs opposition brought comments the ac- was wassupervisory brought writs,within which one year expired of Mr. 30 Pelt’s days harmless.tion against Regarding the City the of status New of Orleans the di- death,after the even judgment though was after rendered. she reached Because age vorce,and another the appellate putative courtowner, found alleging that thatthe 19,plaintiffs her claim failed was to not file perempted. their motion for ap- divorcethey were had the not owners abated, of and, the because property Ms. in peal within that deadline, the court could Buhlerquestion did because not appeal a prior the tax divorce sale by judg the- Innot reconsider Succession their appealof Bridges under, its17-1291 super- ment,City wasit was null final for and lack definitive. of notice. Further, Two (La.visory App. jurisdiction. 1 Cir. 2/27/18), 243 So.3d 618, herjudgments assignments were ofat errorissue. regarding The first failure judg- writThe denied Forstall, 17-1291 case illustrates(La. 5/11/18), that 242 if a ofment service granted regarding the other the putativedivorce owner’spetition So.3dparty is567. not careful to determine whether andmotion rule forto show summary cause judgment were rejected and disbe-- a judgmentMr. and isMs. final Bridges before were attempting divorced an
causemissed she the failed putative to file owner. declinatory The secondexcep- afterappeal, their it mayfirst findmarriage. itself Mr.with Bridges no remedy then tionsjudgment and, was therefore, rendered waived after a such bifurcated argu- executedin the court a will of appeal, under whichwhether he byleft appel most- ments.bench trialBecause and involvedthe judgment solely of the divorce issue oflate his or estatesupervisory to his formerreview. wife. The par- wasof whether final, shethe taxwas saleremoved was null. as executrix. ties then remarried, and, again, divorced. The court began its discussion of the After he died, Ms. Bridges—Scott was H. Mason named Successionjudgments byof Barriosnoting that, 17-0560 both judgments (La. App. executrixMember, and obtained LSBA Appellate a judgment Section of 4were Cir. 4/6/18), partial 243 judgments So.3d 122, because writ denied they, possession.Plauché Mr. Bridges’Maselli Parkerson, son, thereafter, L.L.P. 17-0049decided (La. less 4/15/16), than all issues191 So.3d in the 592. case. filed a motion seekingSte. 3800, to 701annul Poydras the testa St.- Therefore,The parties the acquired question oyster of whether leases dur the- ment, to vacateNew Ms. Orleans, Bridges’ LA appointment 70139-7915
Louisiana Bar Journal Vol. 66,65, No. 36 215 421
0418_LBJ_JOURNAL_MAGAZINE_April.indd 421 3/22/2018 2:45:12 PM as executrix, and to recognize his succes- Ms. Istre embezzled more than $4 mil- sion rights, arguing that the testamentary lion from her employer, Daigle Oil. The disposition in her favor should have been court of appeal affirmed the trial court’s Insurance, Tort, revoked under La. Civ.C. art. 1608 since judgment that Mr. Istre was liable in so- Workers’ the parties were divorced after the testa- lido for the debt. Even though he alleged Compensation & ment was executed and were divorced at he was not aware of it, the obligation Admiralty Law the time of his death. The trial court and was classified as a community obligation the court of appeal both rejected his ar- because it benefitted him and the com- guments, finding that because they were munity regime, and, since incurred dur- Liability in Multimodal not married when he executed the will, ing the community, was presumed to be art. 1608 did not apply; and, further, his a community obligation, which he failed Transport Contracts: intent was for her to be the executrix to rebut. Moreover, he was not entitled to Himalaya Clause and legatee, particularly since he did not raise on appeal the trial court’s denial of change the will to grant his son any great- her exception of prescription as the ex- Royal SMIT Transformers BV v. Onego er benefits. The court of appeal found that ception of prescription is personal to the Shipping & Chartering, BV, 898 F.3d the parties’ status at the time the will was party who raises it, and he had not raised 543 (5 Cir. 2018). executed controlled, and that art. 1608 his own exception of prescription. Royal SMIT, a Netherlands com- contemplated that the parties be married pany, sold three transformers to Entergy at the time of the execution. —David M. Prados Louisiana, L.L.C., and contracted with Member, LSBA Family Law Section an intermediary, Central Oceans USA, Community Property Lowe, Stein, Hoffman, Allweiss for delivery via a multimodal through bill & Hauver, L.L.P. of lading. Oceans’ subcontractors Onego provided ocean carriage from Rotterdam Daigle Oil Distributors, L.L.C. v. Istre, Ste. 3600, 701 Poydras St. to New Orleans; Illinois Central provided 17-1069 (La. App. 3 Cir. 4/11/18), 243 New Orleans, LA 70139-7735 rail carriage to St. Gabriel; and Berard So.3d 628.
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216 October / November 2018 trucked the transformers to Entergy’s modern maritime commerce, which has substation, the final destination. The bill embraced “door-to-door transport based provided: on efficient use of all modes of transpor- International tation by air, water, and land,” allowing Law [Central Oceans] shall be respon- a cargo owner to arrange for a complex sible for the acts and omissions of transportation of goods in a single trans- his servants or agents when any action rather than having to negotiate a such servant or agent is acting separate contract for each leg. within the scope of his employ- In considering whether the clause is United States ment, or of any other person of enforceable, the court noted: whose services he makes use for Am. Inst. for Int’l Steel v. United States, the performance of the Contract, Himalaya Clauses “extend the U.S. Court of International Trade, Docket as if such acts and omissions were bill’s defenses and limitations on No. 19-00152 (June 27, 2018). his own. liability to parties that sign sub- President Trump’s administration is us- contracts to perform services con- ing long-dormant statutory authority to im- An inspection at St. Gabriel revealed templated by the bills.” In other pose punitive tariffs above bound rates on that the transformers were damaged by words, they operate much like numerous imported products. One of the “excessive vibration” somewhere along the mountain range by the same President’s actions imposed 25 percent tar- the journey. Royal and its insurers sued name, creating a barrier between iffs on certain imported steel products. The Oceans and its subcontractors, defen- the cargo owner and downstream tariffs are premised on Section 232 of the dants herein, for breach of contract, carriers that can be neither scaled Trade Expansion Act of 1962, 19 U.S.C. § fault and negligence, seeking more than nor circumvented. 1862. Section 232 delegates authority to the $1,600,000 in damages. Defendants Secretary of Commerce to investigate the filed a motion for summary judgment, Finding the Himalaya Clause in national security impact of imported prod- arguing that they were protected from Oceans’ contract to be enforceable, the ucts. The statute requires the Secretary of suit by the Himalaya Clause in Royal’s court granted summary judgment, dis- Commerce to issue a report to the President contract with Central Oceans: missing its subcontractors, the defen- with factual findings on whether the subject 15. Defenses and limits for dants herein. articles are being imported into the United [Central Oceans], Servants, etc. States in such quantities as to threaten to (b) [Royal] undertakes that no —John Zachary Blanchard, Jr. impair national security. Along with the claim shall be made against any Past Chair, LSBA Insurance, Tort, findings, the Commerce Secretary makes servant, agent, or other persons Workers’ Compensation and recommendations to the President for ap- whose services [Central Oceans] Admiralty Law Section propriate action. has used in order to perform the 90 Westerfield St. President Trump imposed 25 percent Multimodal Transport Contract Bossier City, LA 71111 tariffs on certain steel products as a result of and if any claim should never- a Section 232 investigation conducted by theless be made, to indemnify [Central Oceans] against all con- sequences thereof. (c) However, the provisions of this Contract apply whenever claims relating to the performance of the Multimodal Transport Contract are made against any servant, agent or other person whose services [Central Oceans] has used in order to perform the Multimodal Transport Contract, whether such claims are founded in contract or in tort. In enter- ing into this Contract, [Central Oceans] . . . does so not only on its own behalf but also as agent or trustee for such persons. The Supreme Court has noted that through bills of lading are central to
Louisiana Bar Journal Vol. 66, No. 3 217 Secretary of Commerce Wilbur Ross. The forth by the legislative branch. This con- to different [e]mployees [to] be heard in American Institute for International Steel stitutional delegation, while not without separate proceedings.” Id. at 1620. The (AIIS) filed suit at the United States Court its critics, has functioned fairly smoothly employees argued that arbitration could of International Trade in New York seeking in recent history because TPA reserves for not be compelled because of the National to enjoin the steel tariff on the ground that Congress the right to vote up or down on Labor Relations Board’s (NLRB) 2012 Section 232 is an unconstitutional delega- presidential trade agreements. The current decision holding that the National Labor tion of legislative power to the President. trade climate, however, is markedly differ- Relations Act (NLRA) trumped the AIIS contends that the statute violates ent from recent history. President Trump Federal Arbitration Act (FAA). Article 1, Section 1 of the U.S. Constitution is using Section 232 for trade actions that Justice Gorsuch wrote for the major- and “the system of checks and balances that are not subject to Congressional approval. ity and explained that Congress enacted the Constitution protects.” See, Complaint, The AIIS case raises the significant ques- the FAA to mandate that courts recog- CIT Case No. 18-00152, at ¶¶ 8-13. tion of whether the Section 232 delegation nize arbitration agreements as “valid, ir- As previously reported in these Recent provides sufficient intelligible principles revocable, and enforceable.” Id. at 1621. Developments, U.S. constitutional author- to remain an appropriate delegation of leg- The act specifically directed courts “to ity over international trade hinges on a very islative power, or if it allows the President respect and enforce the parties’ chosen delicate and precarious balance between to become a legislator under the guise of arbitration procedures.” Id. This applied the legislative and executive branches. The national security. AIIS filed a motion for to whom the parties choose to arbitrate legislature has exclusive economic au- summary judgment on July 19, 2018. As with and the rules the parties decide to thority over foreign commerce, while the of this writing, the United States has not govern the arbitration. executive enjoys substantial leeway over filed its response. The plaintiffs argued that the FAA’s matters of national security and foreign savings clause created an exception affairs. In most circumstances, presiden- —Edward T. Hayes because it gave courts the ability to re- tial international trade action falls under Chair, LSBA International ject arbitration agreements “upon such the specific congressional guidelines set Law Section grounds as exist at law or in equity for forth in Trade Promotion Authority (TPA) Leake & Andersson, L.L.P. the revocation of any contract.” Id. at legislation. TPA allows the President to Ste. 1700, 1100 Poydras St. 1616. act and negotiate on certain international New Orleans, LA 70163 Justice Gorsuch relied on Supreme tradeLA Bar matters Journal under Ad statutory 9/21/11 criteria 3:44 set PM Page Court precedent in AT&T Mobility, L.L.C. v. Concepcion, 131 S.Ct. 1740 (2011), to distinguish between what the Court had held are available contractual defenses, SCHAFER GROUP LTD like duress, fraud and unconscionabil- Certified Public Accountants Labor and Employment ity, and those untenable defenses that When you need a forensic accountant, Law “target arbitration either by name or by call on a professional. more subtle methods” and “interfere with fundamental attributes of arbitration.” Id. “Knowledge of business, finance at 1622 (citing Concepcion at 1748). In Concepcion, the Court had recognized and accounting may be needed Savings Clause Can’t the “traditionally individualized and in- at any stage of the litigation Save Plaintiffs’ formal nature” as fundamental attributes process. Therefore, we can be Class Action of arbitration, id. at 1623, and held that an important member of any a state law prohibiting class action waiv- successful litigation team. Epic Sys. Corp. v. Lewis, 138 S.Ct. 1612 ers as unconscionable was not a protect- From contemplation of action to (2018). ed defense to arbitration under the FAA expert testimony, we can complement attorneys in Epic Systems involved a combined because it “sacrifice[d] the principal ad- ways that increase the likelihood of a desired outcome. appeal of three cases from the 5th, 7th vantage of arbitration — its informality We can support your litigation efforts to save you time and 9th Circuits. At issue was whether — and [made] the process slower, more and strengthen your case.” arbitration agreements that waived the costly, and more likely to generate pro- cedural morass than final judgment.”Id. —Kernion T. Schafer, CPA employees’ rights to pursue class action FLSA claims against their employers In Epic Systems, none of the employ-
S OUTH S HORE AND N ORTH S HORE O FFICES were valid. ees argued that the arbitration agree-
METAIRIE MANDEVILLE One such agreement — emblematic of ments were procured by fraud or du- 701 Aurora Avenue • Suite A 435 Girod Street • Suite B ress or some unconscionable way that Metairie, Louisiana 70005 Mandeville, LA 70448 the group — provided that the employer 504.837.6573 985.626.4066 and employee would arbitrate any dis- would defeat any contract. The only at- Forensic Accounting • Emerging Issues • Financial Services tack the employees made on the arbitra- Litigation Services • Legal Services • Emerging Business putes and that the arbitration would be individualized, with claims “pertaining tion agreement was based on mandated
218 October / November 2018 individualized proceedings. For this court or arbitral forums. Additionally, reason, Justice Gorsuch reasoned, they the position was strengthened by the sought to attack “one of arbitration’s fact that the plaintiffs’ claims arose not fundamental attributes.” Id. at 1622. under the NLRA, but the FLSA, which Mineral As the Epic Systems plaintiffs asserted the Court had previously held could not Law the same type of defense to arbitration trump the FAA. In fact, Justice Gorsuch as the Concepcion plaintiffs, the Court pointed out that the Court had previ- found it should come as no surprise to ously rejected every effort to create a them that “the saving clause still can’t conflict between the FAA and any other Closely Watched save their cause.” Id. federal statute, except for one instance The employees’ next argument was since overruled. Mineral Law Case that the NLRA overrides the FAA. The The Court similarly rejected the em- Gloria’s Ranch, L.L.C. v. Tauren NLRA provides that workers have “[t] ployees’ last argument — that it owed Exploration, Inc., 17-1518 (La. 6/27/18), he right to self-organization, to form, Chevron deference to the NLRB’s inter- 2018 WL 3216497. join, or assist labor organizations, to pretation of the NLRA’s Section 7. The The Louisiana Supreme Court’s re- bargain collectively though representa- Court refused to agree “that Congress view of Gloria’s Ranch has been this tives of their own choosing, and to en- implicitly delegated to an agency au- state’s most closely watched mineral gage in other concerted activities for the thority to address the meaning of a sec- law case of the year. In it, a mineral les- purpose of collective bargaining or oth- ond statute [that] it does not adminis- sor brought suit against three entities er mutual aid or protection.” Id. at 1624 ter.” Id. at 1629. Additionally, Chevron that held fractional interests in a lease (quoting 29 U.S.C. § 157). The Court re- requires a statutory ambiguity, which and against Wells Fargo, which held a jected the employees’ assertion that this had already been ruled out with statu- mortgage that covered one of the lessee’s language manifests congressional intent tory rules of interpretation. interest in the lease. The lessor sought to displace the FAA where class ac- With Epic Systems, Justice Gorsuch unpaid royalties, a penalty based on the tions are involved. While the language definitively resolved that arbitration nonpayment of royalties, and damages has been interpreted to allow unions to agreements waiving class actions are for lost leasing opportunity. The damag- bargain to prohibit arbitration, the Court valid and enforceable until and unless es for lost leasing opportunity were based found no support for the argument that it Congress explicitly decides otherwise. on a theory that the lease had terminated displaces the FAA’s application to con- as to much of the acreage originally cov- tractual agreements to arbitrate. —Christina M. Seanor ered by the lease, but that the lessees had The court employed the canon of Member, LSBA Labor and Employment refused to acknowledge the termination ejusdem generis to reason that the term Law Section as required by Mineral Code art. 207 and “other mutual aid or protection” in Bradley Arant Boult Cummings, L.L.P. that the defendants’ failure to acknowl- Section 7 embraces only objects simi- One Jackson Place edge the termination had prevented the lar in nature to those enumerated in Ste. 400, 188 E. Capitol St. lessor from securing a deal for a new the preceding words, which were lim- Jackson, MS 39201 lease at a time when companies were giv- ited to “self-organization,” “form[ing], ing large bonuses to secure leases. join[ing], or assist[ing] labor organiza- After a bench trial, the district court tions,” and “bargain[ing] collectively.” found that the lease had terminated in Id. at 1625. Ultimately the Court found part for lack of production in paying the “other concerted activities” that NLRA’s Section 7 was referring to were “things employees ‘just do’ for them- selves in the course of exercising their Provosty, Sadler & deLaunay, APC right to free association in the work- 934 Third Street, Suite 800, Post Office Box 13530 place, rather than the ‘highly regulated, Alexandria, Louisiana 71315 courtroom-bound activities of class and Direct Line: (318) 767-3197 joint litigation.’” Id. (quoting NLRB v. [email protected] Alt. Entm’t, Inc., 858 F.3d 393 (6 Cir. www.provosty.com 2017)). Justice Gorsuch noted this interpre- tation was supported by the act itself, James W. “Jim” Standley, IV, former Disciplinary which regulates the way employees and Counsel prosecutor (2009-2016), offers advice and counsel their representatives collectively bar- regarding legal ethics as well as defense of lawyers subject to gain, but does not regulate the adjudi- cation of class or collective actions in disciplinary proceedings.
Louisiana Bar Journal Vol. 66, No. 3 219
50 August / September 2018 quantities, and that the lessees’ failure to a penalty equal to twice the unpaid roy- only owned a fractional lease interest as to acknowledge the termination of the lease alties under Mineral Code art. 140. (The shallow depths, it should not be solidarily had caused the lessor to lose a leasing judgment was amended to give a credit liable for the entire lost-leasing damages. opportunity worth $22.8 million. In addi- for one lessee settling before trial.) tion, the court found that the lessees had On appeal, the Louisiana 2nd Circuit Act 245 of the 2018 not paid all the royalties that had been concluded that the loan agreements due. Further, the court concluded that the did not constitute an assignment of the Regular Session loan and mortgage agreements between lease, but that the loan agreements had Wells Fargo and one of the lessees had given Wells Fargo a sufficient interest The Louisiana Oil Well Lien Act constituted an assignment of the lease. and degree of control over the lease that (LOWLA), La. R.S. 9:4861 et seq., cre- On these bases, the court entered a judg- a judgment holding Wells Fargo solidar- ates a privilege in favor of persons who ment holding that the two non-settling ily liable was not manifestly erroneous. provide services, equipment or supplies lessees and the mortgagee were solidar- Therefore, the appellate court affirmed for “operations” at the “well site” of a ily liable for damages for the lessor’s lost the trial court’s judgment. well that is used either to explore for or leasing opportunity, unpaid royalties and The Louisiana Supreme Court re- produce hydrocarbons, produce water for versed the lower courts’ judgments to use in oil and gas operations, or inject INDEX TO ADVERTISERS the extent that they imposed liability on (for purposes of disposal) wastewater Wells Fargo. In doing so, the court reject- generated by oil and gas activities. D. Wesley Attaway...... 238 ed the appellate court’s conclusion that La. R.S. 9:4861(4)(b) specifies cer- Bourgeois Bennett...... 216 certain elements of “control” granted to tain activities that do not constitute “op- Broussard & David...... OBC Wells Fargo made it the equivalent of an erations” for purposes of LOWLA and Kathleen Christmas...... 238 owner of the lease. The Supreme Court which, therefore, do not qualify for this Christovich & Kearney, L.L.P...... 208 disagreed, concluding that the “control” privilege. A category of activities that Clean Jacket App...... 233 rights that a lessee had granted to Wells was expressly defined as not constitut- ing “operations” includes those involv- Complex Litigation Symposium...... 223 Fargo were commonly granted rights ing “transporting, handling, processing, James P. Doré, Dispute Resolution that are designed to protect a lender’s treating, or otherwise dealing” with “[s] Services of LA, L.L.C...... 217 collateral when a mineral lease serves as collateral for a loan. Therefore, the alt water or another waste substance pro- Expert Communications...... 239 lower courts erred by imposing solidary duced in association with hydrocarbons, Robert G. Foley...... 239 liability for lease obligations on a mere after it is placed in a truck, rail-car, pipe- Gilsbar, Inc...... 193, IBC mortgagee of a lessee. line, or other means of transportation for LawPay...... 169 The Supreme Court also addressed an disposal away from the well site.” See, Legier & Company, apac...... IFC issue that has been in dispute for years — La. R.S. 9:4861(4)(b)(iii). Act 245 of the Louisiana Association for Justice...... 203 namely, the meaning of certain language 2018 Regular Session of the Louisiana MAPS, Inc...... 195 in Mineral Code art. 140. The article Legislature repealed 9:4861(4)(b)(iii). Moore & Hebert, APLC ...... 213 provides that, in certain circumstances, However, the definition of “operations” was not changed. “Operations” constitute National Academy of “the court may award as damages double “every activity conducted by or for a les- Distinguished Neutrals...... 229 the amount of royalties due.” The ques- see on a well site” for certain specified The Patterson Resolution Group...... 212 tion that remained unresolved for years was whether “double” referred to the purposes. La. R.S. 9:4861(4)(a). Perry Dampf Dispute Solutions...... 199 amount of the judgment or the amount Provosty, Sadler & deLaunay, A.P.C..219 of the penalty. That is, does the article —Keith B. Hall Plastic Surgery Associates...... 214 authorize a total award (before attorney’s Member, LSBA Mineral Law Section RAL Forensics...... 215 fees and interest) of double the amount Director, Mineral Law Institute Roy A. Raspanti...... 209 of royalties due (this being the sum of the Campanile Charities Professor Royal Sonesta Hotel...... 237 royalties due and a penalty equal to the of Energy Law Schafer Group, Ltd...... 218 royalties due) or whether the article au- LSU Law Center Schiff, Scheckman &White, L.L.P....206 thorized a judgment for triple the amount 1 E. Campus Dr. Baton Rouge, LA 70803-1000 Simone Peragine Smith of royalties due (this being the sum of and & Redfearn, L.L.P...... 170 the royalties due and a penalty that was Colleen C. Jarrott Stanley, Reuter, Ross, Thornton & double the amount of royalties due). The Member, LSBA Mineral Law Section Alford, L.L.C...... 207 Court interpreted article 140 “as author- ity to award up to double the amount of Baker, Donelson, Bearman, Taggart Morton, L.L.P...... 239 royalties due,” not treble. Caldwell & Berkowitz, P.C. Upstate Mediation Group...... 211 In addition, the Court rejected the argu- Ste. 3600, 201 St. Charles Ave. The Write Consultants...... 239 ment of one of the lessees that because it New Orleans, LA 70170-3600
220 October / November 2018 the damages would have occurred, the pa- $1,000,000. The jury awarded 35 percent tient nevertheless could have had an out- of the total damages sought ($680,000), come better than having to undergo a heart a lump sum of general damages that the Professional transplant. Supreme Court found was not an abuse Liability The court wrote that the appellate court of the jury’s discretion. Thus, the court re- “misconstrued the theory of lost chance of duced that amount to the $500,000 cap and a better outcome in a medical malpractice allowed the PCF a credit for the $100,000 case,” which it said is “not a separate cause paid by the defendant. Loss of a Chance of action distinct from a statutory malprac- tice claim.” Quoting from Smith v. State, Admissibility of Panel Burchfield v. Wright, 17-1488 (La. Dep’t of Health & Hospitals, 95-0038 (La. 6/27/18), ____ So.3d ____, 2018 WL 6/25/96), 676 So.2d 543, the court stated: Opinions 3150182. The panel in Mr. Burchfield’s case The loss of a less-than-even chance Sanderson v. Tulane Univ. Hosp. & found that a breach of a standard of care of survival is “a distinct injury com- Clinic, 18-0588 (La. 6/15/18), 245 So.3d caused damages. The defendant settled, pensable as general damages” that 1043 (Mem.). and a trial against the PCF ensued. The cannot be calculated with mathe- The trial court disallowed the introduc- jury found that the plaintiff had proven the matical certainty; thus, the factfinder tion into evidence of the panel opinion after defendant’s breach of a standard of care must make a “subjective determina- deciding that there was a conflict of interest and that, while damages resulted from that tion of the value of that loss, fixing between a panel member and a defendant. breach, it was not “a substantial factor” in the amount of money that would ad- In this per curiam opinion, the Supreme contributing to the injuries. Instead, the equately compensate the claimants Court opined that, absent “allegations that jury found that the breach caused the pa- for that particular cognizable loss.” the medical review panel superseded its tient to lose the chance of a better outcome. statutory authority,” the opinion is subject In a separate jury interrogatory, the jury de- Juries may consider the same evidence to “mandatory admission.” The Court con- termined that the value of the lost chance in wrongful death and survival actions cluded: “[T]he mere fact that a member of was $680,000. The trial court issued a as in loss-of-chance cases, but in loss-of- the panel may not have disclosed a poten- judgment that reduced the jury’s award to chance cases, a lump sum general dam- tial conflict of interest is not a ground for the statutory cap of $500,000 and allowed age award is required. The appellate court automatic exclusion” of the opinion, add- the PCF credit for the $100,000 settlement erred when it allocated damages for spe- ing that the plaintiff would have “an- ad with the defendant. cific losses, e.g., wage losses and medical equate opportunity to explore any potential The appellate court was troubled by expenses. Furthermore, the appellate court bias” at the trial during cross-examination, the jury’s responses to the verdict form, ignored the Louisiana Supreme Court’s thus allowing the factfinder to assign- ap finding the jury “internally inconsistent, “clear and established jurisprudence” in propriate weight to the panel opinion. contributing to the troublesome reduction earlier cases by awarding not only general by the trial judge.” Burchfield v. Wright, damages but also granting separate awards —Robert J. David 51,459 (La. App. 2 Cir. 6/28/17), 224 for special damages, instead of one lump Gainsburgh, Benjamin, David, So.3d 1170, 1173. While agreeing that this sum award that encompassed all damages. Meunier & Warshauer, L.L.C. was a loss-of-chance-of-a-better-outcome Considerations of wages and medical ex- Ste. 2800, 1100 Poydras St. case, the appellate court decided that the penses “may be appropriate, keeping in New Orleans, LA 70163-2800 trial court erred by limiting the award to mind that a lost chance of a better outcome general damages subject to the MMA cap, envisions a less than 50% chance, and thus not full recovery.” As to the appellate thus awarding no damages for medical ex- ANSWERS for puzzle on page 202. court’s ruling that lump-sum damages for penses or lost wages. The appellate court 1 2 3 4 5 6 loss of a chance of a better outcome “may C E R T I F I C A T E affirmed the trial court’s $400,000 award 7 8 O E N N D N B in general damages and awarded past med- include special damages . . . and that ‘lump 9 10 11 M O R O N I C R E C A P ical expenses of more than $692,000, lost sum’ damages should not be limited to the M U O A L R wages of more than $490,000 and future cap for general damages,” the Supreme 12 13 14 Court observed that “[t]here is no sup- U R N V I N D I C A T E medical care, none of which were subject N A T M I J port for such a conclusion in this court’s 15 16 17 to the cap. I D I O T S A P E R C U 18 The case proceeded to the Supreme specific jurisprudence on the issue of the C N O C R D 19 20 Court, where the plaintiffs argued that the calculation of damages for lost chance of a A L T E R C A T E L T I negligence was a substantial cause of the better outcome.” T R T C O C 21 22 23 24 ultimate injury and, alternatively, that ab- The plaintiffs also argued to the jury E L U D E G R A N O L A 25 that the award should equal 49 percent A T S U T F T sent a greater than 50 percent chance that 26 of the total damages, approximately H Y P O T H E C A T E
Louisiana Bar Journal Vol. 66, No. 3 221 ciled in Louisiana in order to qualify for and National Bellas Hess, Inc. v. Dep’t of the deduction. Revenue of Illinois, 87 S.Ct. 1389 (1967), Taxpayers contended that they prop- and created an undefined sufficiency test Taxation erly excluded the gain from the sale of for determining whether substantial nexus the Nestle shares because if all transac- is satisfied for purposes of the dormant tions were viewed as interrelated steps Commerce Clause. The new sufficiency of a single transaction, the gain would test appears to apply to all state tax re- arise from the exchange of the seller’s gimes, including income, franchise, sales- Multi-Step Transaction: assets for the Nestle shares in 2013. and-use, gross receipts and property taxes, The question before the Louisiana and may have substantial and significant Net Capital Gain Board of Tax Appeals was whether the implications for taxpayers and other par- Deduction gain recognized by Taxpayers in 2015 ties subject to those regimes. arose from the exchange of substantially Post-Wayfair, for purposes of the Camp v. Robinson, BTA Docket No. all of the seller’s assets for the Nestle substantial-nexus prong of Complete 10609D (6/13/18). shares in 2013. Auto Transit, Inc. v. Brady, 97 S.Ct. 1076 Samuel and Judith Camp (Taxpayers) The Board held that Taxpayers were (1977), “[substantial nexus] is established were shareholders in Pamlab, Inc., a non- entitled to claim the net-capital-gains de- when the taxpayer [or collector] ‘avails publicly traded Nevada corporation with duction for the amount that they would itself of the substantial privilege of car- its corporate headquarters and principal have indisputably been able to claim rying on business’ in that jurisdiction.” operations in Louisiana. Pamlab entered had they disposed of their business in Wayfair, 138 S.Ct. at 2099, citing Polar into an asset-purchase agreement and a single business transaction. However, Tankers, Inc. v. City of Valdez, 129 S.Ct. plan of reorganization with NSH Buyer, Taxpayers then admitted to the Board 2277 (2009). In Wayfair, the Court con- Inc., an affiliate of Nestle S.A. The acqui- that a portion of the gain recognized on cluded that the large national retainers sition was a reorganization, with no gain the 2015 sales was the result of appreci- at issue satisfied this standard “based on being recognized on Taxpayers’ receipt ation of the Nestle shares after the 2013 both the economic and virtual contacts” of the Nestle shares as consideration for transaction. As that portion did not arise they had with South Dakota. Id. Because substantially all of the assets of Pamlab from the sale of the assets of Pamlab, the the Wayfair decision does not contain sub- and its subsidiaries. The sale of the assets Board found that Taxpayers were not en- stantive analysis of the economic and vir- was preserved in the hands of Taxpayers titled to exclude that portion of the gain. tual contacts that create substantial nexus, until Taxpayers would dispose of the Ultimately, the Board denied Taxpayers’ that issue will ultimately be decided by the Nestle shares in a taxable transaction. motion for summary judgment. lower courts. Pamlab distributed certain Nestle In response to Wayfair, the states are is- shares to Taxpayers in 2015, after a one- —Antonio Charles Ferachi suing guidance (or updating their tax laws) year holding period. Taxpayers subse- Member, LSBA Taxation Section to impose use-tax-collection obligations quently sold those Nestle shares and Director, Litigation Division on out-of-state vendors. While Wayfair recognized a gain that had been deferred Louisiana Department of Revenue provided some guidance on the require- since 2013. Taxpayers excluded the gain 617 North Third St. ments these laws must satisfy to survive from the sale of the Nestle shares from Baton Rouge, LA 70821 dormant Commerce Clause scrutiny, e.g., their income tax return under the net- safe harbors for small businesses and pro- capital-gain deduction provided by La. U.S. Supreme Court spective enforcement, it also left that issue R.S. 47:293(9)(a)(xvii). The Louisiana to the lower courts to resolve. As a result, Department of Revenue disallowed the Decision a business may have exposure to a state’s deduction. tax laws (including income-tax exposure) The Department filed a motion for On June 21, 2018, the U.S. Supreme even if the business does not have an in- summary judgment, arguing that the Court issued its opinion in South Dakota state physical presence. Businesses should transaction that gave rise to the net- v. Wayfair, Inc., 138 S.Ct. 2080 (2018). review their contacts with any state in capital-gains issue was Taxpayers’ sale The issue in Wayfair was whether South which they do not have a physical pres- of Nestle shares in 2015 and, because Dakota could impose a use-tax-collection ence to determine whether such exposure Nestle S.A. is a publicly traded corpo- obligation on large national retailers, i.e., exists. ration, not commercially domiciled in remote sellers, who sold products on-line Louisiana, the deduction did not ap- for delivery into South Dakota. In Wayfair, —William J. Kolarik II ply. The Department relied on La. R.S. the Court overturned the physical-pres- Member, LSBA Taxation Section 47:293(9)(a)(xvii), which requires that ence substantial-nexus standard appli- Kean Miller, L.L.P. the sale or exchange be of substantially cable to use-tax-collection requirements II City Plaza all of the assets of a non-publicly traded articulated by the Court in Quill Corp. Ste. 700, 400 Convention St. corporation that is commercially domi- v. North Dakota, 112 S.Ct. 1904 (1992), Baton Rouge, LA 70802
222 October / November 2018 18TH ANNUAL LOUISIANA STATE BAR ASSOCIATION COMPLEX LITIGATION SYMPOSIUM
NOVEMBER 9, 2018 – 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. Ken Starr • Hon. Eldon Fallon • Hon. Sarah Vance • Hon. W. Royal Furgeson • Hon. Patrick Hanna Hon. Mary Wiss • Hon. Glenn Norton • Hon. Lisa Page • Hon. Beth Hogan • Hon. James Stanton Mark Lanier• Hezekiah Sistrunk • Prof. James Wren • Prof. Lynn Baker • Prof. Tom Galligan Prof. Jaime Dodge • Prof. Francis McGovern • Prof. James Underwood • Prof. Arthur Miller Special Master Kenneth DeJean • Alexander Calfo • John Sherk • Shean Williams • Raymond Silverman Rachel Lanier • Shannon Pennock • James Williams• Douglas Marvin • Jane Lamberti • Eric Holland Tony Clayton • Jayne Conroy • Mark Robinson • Paul Pennock • Kathryn Snapka • Nicholas Drakulich Special Master Gary Russo • Lori Cohen • Stefani Preston • Aimee Wagstaff • Melanie Muhlstock Ethan Lange • Robert Drakulich • Ginger Susman • John Hooper • Beth Wilkinson • Neil Overholtz For more information and to register online, go to: www.lsba.org Louisiana Bar Journal Vol. 66, No. 3 223 Young LAWYERS CHAIR’S MESSAGE... SPOTLIGHT
mentee, allowing more experienced attor- CHAIR’S MESSAGE neys to share their knowledge with those who are just starting their careers. You can New Bar Members: Meet the New Code of find more information online: www.lsba. org/mentoring. Professionalism So, to new members and seasoned ones, if you want to know more about the Young By Dylan T. Thriffiley Lawyers Division or how to get involved, n Oct. 15, the Louisiana State feat, but with that ac- email me at [email protected]. Bar Association (LSBA) ad- complishment comes mitted and welcomed the great responsibility. YOUNG LAWYERS newest group of lawyers into I will use technol- SPOTLIGHT theO fold. These new admittees are also the ogy, including social newest members of the LSBA’s Young media, responsibly. Christopher H. Hester Lawyers Division (YLD). My words and ac- Baton Rouge First, I’d like to welcome all of them to tions, no matter how the YLD! The YLD is comprised of all at- conveyed, should Dylan T. Thriffiley The Louisiana torneys under the age of 39 or who have reflect the profes- State Bar Assoc- been in practice for fewer than five years. sionalism expected iation’s Young We are approximately 6,000 lawyers of me as a lawyer. Lawyers Division strong and one of the reasons we exist is I will never forget my law school orien- Council is spotlight- to encourage young lawyers’ interest and tation when a professor took the stage and ing Baton Rouge at- participation in Bar activities. said, “Your legal career started yesterday.” torney Christopher Timed perfectly for the newest LSBA That statement had a profound impact on H. Hester. members is the launch of the new Code our class, as it was a stark reminder that Hester is an as- of Professionalism. (Read more about the your reputation is bigger than the four sistant district at- Code in this issue beginning on page ???.) corners of your diploma. Remember that Christopher H. torney with the East Hester While every word of the updated Code you represent the profession in all of your Baton Rouge Parish of Professionalism is applicable to every communications, including the online District Attorney’s Office where he - cur member of the LSBA, there are a few ones. Step away from email and pick up rently serves as a section chief. He has statements that stand out to me as particu- the phone to call that colleague or op- most recently held the positions of chief larly applicable to our division. posing counsel. Think twice before you homicide prosecutor and section chief of I will work to protect and improve re-post that off-color joke or comment on the Violent Crimes Unit. He previously the image of the legal profession in the Facebook. Remember that you ultimately served as a misdemeanor assistant, junior eyes of the public. represent the profession in nearly every felony assistant and senior felony assistant. Every lawyer has that family member interaction you have, so strive to promote During his nearly nine years as an ADA, who loves nothing more than to crack a respect for yourself and your colleagues. he has handled everything from misde- lawyer joke at the Thanksgiving table. I will be supportive of new members meanors to murders. He is currently on Let’s face it. Lawyers don’t have the best in the profession. leave from his job as a prosecutor while he stereotypical reputation, but that reputa- While this is technically a call to the runs for Baton Rouge City Court judge. tion is just that, a stereotype. In my opin- more “seasoned” of our colleagues, I en- Immediately after graduating from ion, it’s also less true today than it’s ever courage you to hold them to this commit- Louisiana State University Paul M. Hebert been. Take every opportunity you can to ment and find yourself a mentor. It just Law Center and before he started work prove the naysayers wrong. Give back to so happens that the LSBA has a formal, as an assistant district attorney, he began the public, treat your clients and colleagues statewide mentoring program called the his career at Watson, Blanche, Wilson & with respect, and dress the part. Obtaining Transition into Practice (TIP) program. a law degree and passing the bar is no easy The program matches one mentor with one Continued next page
224 October / November 2018 Young Lawyers Division Award Nominations Deadline: October 18, 2018 ominations are open for the creative use of resources, involvement of access to legal services for the citizens of following LSBA Young young lawyers in programming and ser- Louisiana. Lawyers Division (YLD) vices, and inclusiveness. Please submit a type-written nomina- awards. To be eligible for con- ► Program of the Year. This award is tion entry, not to exceed 1,000 words, that sideration,N individual nominees must be given to an organization (bar association, describes why the nominee should be con- a current member of the YLD (attorneys firm, or other entity) that has implemented sidered for the award and that specifically who have not yet reached the age of thirty- an outstanding program or service that addresses the award criteria and includes, nine (39) years or who has been admitted serves the public or the profession, and en- where applicable, nominator and nomi- to the practice of law for less than five (5) hances the lives of young lawyers or was nee’s: (a) name, (b) address, (c) telephone years) in good standing. The YLD Council primarily planned by young lawyer(s). In number, and (d) email address. selects award winners from recommenda- determining the recipient of this award, the Nominations for individual awards tions made by a Committee of young law- YLD considers a number of factors includ- must include a current photo and résumé yers appointed from around the state. ing young lawyer involvement, impact on of the nominee. Additional attachments ► Outstanding Young Lawyer the public and/or profession, innovation, for all nominations are encouraged, which Award. This award is given to a young inclusiveness, and success. may include newspaper clippings, letters lawyer who has made exceptional contri- ► Hon. Michaelle Pitard Wynne of support and other materials pertinent to butions to the legal profession and their Professionalism Award. This award is the nomination. Submissions should not community. In determining the recipient given to a young lawyer for commitment exceed ten (10) pages total. of this award, the YLD considers a number and dedication to upholding the quality Nomination packets must be submitted of factors, including: the nominee’s service and integrity of the legal profession and by e-mail or hard copy to: Kristi W. to the public and community, the nomi- consideration towards peers and the gen- Richard, LSBA YLD Awards Committee nee’s service to the legal profession, the eral public. In determining the recipient of Chair, 301 Main St., Flr. 14, Baton Rouge, nominee’s service to the Louisiana State this award, the YLD considers a number LA 70801 or email krichard@mcglinchey. Bar Association Young Lawyers Division, of factors, including the nominee’s com- com awards and achievements received dur- mitment to promoting respect for the legal Any nomination packet that is incom- ing the nominee’s legal career, challenges system and profession by exhibiting the plete or is not received or postmarked on the nominee may have overcome, as well highest standards of competence, integrity, or before Friday, October 18, 2018, will as specific examples of the nominee’s out- civility, and ethics, as well as a dedication not be considered. Please submit detailed standing characteristics. Present or former to enhancing professionalism among law- and thorough entries, as nominees are members of the YLD Council are ineligible. yers. evaluated based on the information pro- ► Outstanding Local Affiliate. This ► YLD Pro Bono Award. This award vided in the nomination packets. award is given to a local affiliate orga- is given to a young lawyer for commit- Finalists will be announced in late nization that has impacted the lives of ment and dedication to providing pro bono November, and both finalists and winners young lawyers in an outstanding way. In services in his/her community or the state will be recognized at the LSBA Midyear determining the recipient of this award, at large. In determining the recipient of Meeting and Young Lawyer Professional the YLD considers a number of factors, this award, the YLD considers a number Development Conference luncheon in including the organization’s service to the of factors, including the total number of Baton Rouge on January 18, 2019. public, service to the legal profession, suc- pro bono hours per year, the impact of the For more information, contact Kristi cesses of initiatives that serve the public nominee’s pro bono work, ongoing contri- W. Richard at (225) 382-3704 or email and the profession, challenges overcome, butions that have resulted in the increased [email protected].
Hester continued from page 224 Growing up in Baton Rouge, he is a at St. Aloysius Catholic School. He is the graduate of Catholic High School and St. president of the Sigma Phi Epsilon Alumni Posner, a law firm practicing primarily in Aloysius Catholic School. He earned a Volunteer Corporation, an active com- the area of medical malpractice defense bachelor’s degree from Louisiana State mittee member at First United Methodist where he honed his skills in this unique University and his JD/BCL degree from Church and a former chair of the Baton civil practice. LSU Paul M. Hebert Law Center. He is an Rouge Bridge Academy Board. In 2016, Hester was recognized as one active Baton Rouge Bar Association com- Hester is married to his college sweet- of the Baton Rouge Business Report’s “40 mittee member. heart — Emily Burris Hester — and they Under 40” for his career success and im- In his community, he is the head coach are the parents of one child, with a new ad- pact in the community. of the eighth grade boys’ basketball team dition arriving early next year.
Louisiana Bar Journal Vol. 66, No. 3 225 Louisiana Center for
LouisianaCENTER FOR LCLCE LAW & CIVIC Education LAW & CIVIC EDUCATION PROGRAMS... AWARD... INSTALLATION
Louisiana middle and high school teachers participated in the 2018 Justice Catherine D. Kimball Summer Institute in New Orleans. Teachers Participate in 2018 Justice Catherine D. Kimball Summer Institute ouisiana middle and high school Court Associate Justice John L Weimer III, Robert Gunn, Louisiana Supreme Court teachers met in New Orleans gave an informative presentation on Plessy v. deputy judicial administrator/community for the 2018 Justice Catherine Ferguson. Louisiana Supreme Court Asso- relations, and Miriam D. Childs, director D. Kimball Summer Institute ciate Justices Scott J. Crichton and Weimer of the Law Library of Louisiana, provided Lto learn about the “We the People: The also addressed the Institute attendees. a tour of the Louisiana Supreme Court and Citizen and the Constitution” civics cur- Louisiana 4th Circuit Court of Appeal the Law Library. riculum. Chief Judge James F. McKay III welcomed Coordinated by the LCLCE, the six-day Participants were welcomed to the the teachers to the Louisiana Court of Ap- Summer Institute was made available to program by Louisiana Center for Law and peal. 4th Circuit Court of Appeal Judge Terri educators at no cost to the teachers, with Civic Education (LCLCE) President Judge F. Love gave a presentation on the Louisiana lodging, meals and educational materials Randall L. Bethancourt. Raul V. Esquivel court structure and concluded her talk with for the classroom provided. III, from the office of Louisiana Supreme a tour of her courtroom and office. Teachers participating were Kristoffer
Robert Gunn, Louisiana Supreme Court deputy judicial administrator/com- St. Amant High School teacher Abbie L. Tucker, left, with Miriam D. Childs, munity relations, addressed the Summer Institute teachers before conducting director of the Law Library of Louisiana. a historic building tour.
226 October / November 2018 Bonilla, Thomas Jefferson High School for Advanced Studies; Todd Bowles, Conway Junior High School; Katherine Clemons, Monteleone Junior High School; Joseph Cunningham, David Thibodeaux STEM Magnet Academy; John Evans, Glen Oaks High School; Harvie Douglas Hamilton III, Vandebilt Catholic High School; Donald Hampton, Griffin Middle Academy; Tony Howard, Horace Mann Arts & Science High School; Willie Earl Larry, Parkview Arts & Science Magnet School; Lionel O’Connor, Park Forest Middle School; Andrew Renard, Edna Karr High School; Regina Rihani, Sylvan Hills Middle School; Carol L. Saulsberry, Hammond Westside Montessori School; Dale Smith, Jr., Grant Junior High School; Amy Steuben, Milton Middle School; Abbie L. Tucker, St. Amant High School; Nicholas A. Turner, East Fe- liciana High School; Greg Warren, Saline High School; and Alyce Zottoli, Mabelvale Middle School. Judge Randall L. Bethancourt, left, was sworn in as 2018-19 president of the Louisiana Center for Law Funding for this program was provided and Civic Education (LCLCE) at the Louisiana State Bar Association’s Annual Meeting in Destin, Fla. by a grant from the U.S. Department of Administering the oath was Judge Raymond S. Steib, Jr. Judge Bethancourt and the other LCLCE Education through the Supporting Effective officers were sworn in at the LCLCE’s annual reception honoring its board members. Photo by Matthew Educator Development Program. Hinton Photography.
Judge Sharon I. Marchman, left, with the 4th Judicial District Court, presented an Adult Civics Education (ACE) program to the Bastrop Lions Club. She is with Club President Dan Wood. The ACE program, sponsored by the Louisiana District Judges Association, the Louisiana State Bar Association and the Louisiana Center for Law and Civic Education, offers members of the legal community with prepared topics designed for presentation to civic and community groups/ forums. The program provides handouts and Donald Joseph Judice III, second from left, a 2017-18 senior at Houma Christian School, was the recipi- other materials. Anyone interested in making a ent of the 2018 Civics in Action Award, presented by the Louisiana Center for Law and Civic Education presentation or providing contact information (LCLCE). The award recognizes an outstanding middle or high school student who has demonstrated for community and civic groups that may be outstanding civic virtue and involvement in his community. The plaque was presented by Louisiana interested in an ACE presentation should contact Supreme Court Associate Justice John L. Weimer III, far left, at the Justice Catherine D. Kimball Sum- Peggy Cotogno at the LCLCE, (504)566-1600. mer Institute. From left, Justice Weimer, Judice, Pat Judice, Murlyn Broussard and LCLCE President For more information, go online: www.lalce.org. Judge Randall L. Bethancourt.
Louisiana Bar Journal Vol. 66, No. 3 227 JUDICIALNotes By David Rigamer, Louisiana Supreme Court NEW JUDGES... RETIREMENT... MEMORIAM
New Judges University Paul M. Louisiana State University and his JD Hebert Law Center. degree from Louisiana State University Tonya Smith Prior to his election to Paul M. Hebert Law Center. Prior to his Lurry was elected the bench, he served election to the bench, he served as city judge, 18th Judicial as assistant district attorney for the City of Monroe. attorney in the 3rd District Court, Death Division B. She earned Judicial District, as her BA degree in 1996 state representative Retired 4th Circuit Court of Appeal from Louisiana State for District 12, which Chief Judge Joan Bernard Armstrong, 77, University and her JD included Lincoln, Jay B. McCallum died June 9. She earned her BA degree degree in 1999 from Union and portions from Xavier University and her JD degree of Morehouse Parishes from 1992-2003, Southern University Tonya Smith Lurry in 1967 from Loyola University College of Law Center. She has and was in the private practice of law. He Law, becoming the College of Law’s first practiced law for 17 years and formerly served on the 3rd JDC bench from 2003 female African-American graduate. She served as an assistant district attorney in until his election to the 2nd Circuit. He is was appointed by Gov. Edwin Edwards the 18th JDC. She is married to John Lurry married to the former Deanna Dunham and to the Orleans Parish Juvenile Court and they are the parents of three children. they are the parents of two children. bench in 1974, becoming the state’s first 3rd Judicial District Court Judge Jay African-American female judge. After 10 B. McCallum was elected unopposed to Retirements years on the Juvenile Court bench, she the 2nd Circuit Court of Appeal, Division was elected unopposed to the 4th Circuit A. He earned his BS degree in 1982 from 4th Judicial District Court Judge Carl Court of Appeal. She became the court’s the University of Louisiana at Monroe and Van Sharp retired effective July 31. He chief judge in 2003 and served there until his JD degree in 1985 from Louisiana State earned his BA degree from Northeast her retirement in 2011.
SOLACE: Support of Lawyers/Legal Personnel — All Concern Encouraged The Louisiana State Bar Association/Louisiana Bar Foundation’s Community Action Committee supports the SOLACE program. Through the program, the state’s legal community is able to reach out in small, but meaningful and compassionate ways to judges, lawyers, court personnel, paralegals, legal secretaries and their families who experience a death or catastrophic illness, sickness or injury, or other catastrophic event. For assistance, contact a coordinator. Area Coordinator Contact Info Area Coordinator Contact Info Alexandria Area Richard J. Arsenault (318)487-9874 Monroe Area John C. Roa (318)387-2422 [email protected] Cell (318)452-5700 [email protected] Baton Rouge Area Ann K. Gregorie (225)214-5563 Natchitoches Area Peyton Cunningham, Jr. (318)352-6314 [email protected] [email protected] Cell (318)332-7294 Covington/ Suzanne E. Bayle (504)524-3781 New Orleans Area Helena N. Henderson (504)525-7453 Mandeville Area [email protected] [email protected] Denham Springs Area Mary E. Heck Barrios (225)664-9508 Opelousas/Ville Platte/ John L. Olivier (337)662-5242 [email protected] Sunset Area [email protected] (337)942-9836 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.
228 October / November 2018 LOUISIANA CHAPTER
TheThe followingfollowing attorneysattorneys areare recognizedrecognized forfor ExcellenceExcellence inin thethe fieldfield ofof AlternativeAlternative DisputeDispute ResolutionResolution
David S. Cook Ronald E. Corkern Brian E. Crawford Steven Crews Tom Foutz Andrew McGlathery (337) 234-4155 (318) 352-2302 (318) 325-3200 (318) 352-2302 (504) 237-3183 (337) 493-7271
Bernie McLaughlin Mimi Methvin Elizabeth Middleton Bruce Shreves Lynne Stern (337) 310-1609 (337) 501-1055 (318) 487-9406 (504) 569-2908 (504) 259-4488
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* The National Academy of Distinguished Neutrals is an invitation-only professional association of over 900 litigator-rated mediators & arbitrators throughout the US and a proud sponsor of the AAJ and DRI. LouisianaFor more info, Bar please Journal visit www.NADN.org/about Vol. 66, No. 3 229 PEOPLE LAWYERS ON THE MOVE . . . NEWSMAKERS
of IAS LAW LLC, located at 900 Camp the firm’s Mandeville office as associates. LAWYERS ON St., 3rd Floor, New Orleans, LA 70130; THE MOVE (504)500-1876; website www.iaslawllc.com. Schutte, Terhoeve, Richardson, Eversberg, Cronin, Judice & Boudreaux, L.L.P., in Adams and Reese, L.L.P., announces that King & Jurgens, L.L.C., announces that Baton Rouge announces that Christopher A. Zachariah (Zach) Butterworth has joined Gabriel A. Crowson has joined the firm’s W. Stidham has joined the firm as a partner. the firm’s New Orleans office as special New Orleans office as an attorney. counsel. Also, Kellen J. Mathews has been Shelton Services, Inc., a pollution control appointed partner in charge of the firm’s Darrick M. Lee, licensed in Louisiana and and industrial services firm, announces that Baton Rouge office. Texas, has been appointed to the position of David C. Coons has joined the company as Office of Workers’ Compensation Admin- its general counsel, based in New Orleans. Breazeale, Sachse & Wilson, L.L.P., an- istration fraud manager in Baton Rouge. nounces that Matthew M. McCluer has Southern University and A&M College joined the firm’s New Orleans office as Lewis, Kullman, Sterbcow & Abramson, System announces that Deidre Deculus an associate. L.L.C., based in New Orleans, announces Robert has been appointed general counsel. that Conrad S.P. (Duke) Williams III has Michael W. Collins announces the opening joined the firm as of counsel. Taylor, Porter, Brooks & Phillips, L.L.P., of his law office, The Collins Law Firm, in Baton Rouge announces that Rebecca L.L.C., located at Ste. 102, 2901 Division Lugenbuhl, Wheaton, Peck, Rankin & Hub- M. Hinton has joined the firm as special St., Metairie, LA 70002; (504)900-8009. bard announces that Delos E. Flint, Jr. has counsel. joined the firm’s New Orleans headquarters Deutsch Kerrigan, L.L.P., announces that as a shareholder. Attorney E. Peter Urbanowicz, Jr. in Dallas, Pierce C. Azuma has joined the firm’s New Texas, was appointed to serve as chief of Orleans office as an associate. Milling Benson Woodward, L.L.P., an- staff for the U.S. Department of Health and nounces that Cody J. Acosta, Carlos J. Human Services. Saravia and Nicholas G. Grest have joined Imtiaz A. Siddiqui announces the formation Continued next page
W. Raley Alford III Richard J. Arsenault Pierce C. Azuma David C. Coons John B. Dunlap III Delos E. Flint, Jr.
Rebecca M. Hinton Darrick M. Lee Lynn Luker Matthew M. Gerald E. Meunier Frank X. Neuner, Jr. McCluer
230 October / November 2018 NEWSMAKERS Stephen J. Herman, a partner at Herman, Reuter, William M. Ross and Jennifer NEWSMAKERS Herman & Katz, L.L.C., in New Orleans, L. Thornton. Richard J. Arsenault, a partner in the received the 2018 Harry M. Philo Award Alexandria firm of Neblett, Beard & Arse- presented by the American Association Best Lawyers in America 2019 nault, will chair the 18th Annual Louisiana for Justice. Barrasso Usdin Kupperman Freeman State Bar Association Complex Litigation & Sarver, L.L.C. (New Orleans): Judy Y. Symposium in New Orleans on Nov. 9. He Judge Donald R. Johnson, Ph.D., on the Barrasso, Celeste R. Coco-Ewing, George also will chair a Mass Tort Conference in bench of 19th Judicial District Court, C. Freeman III (New Orleans Lawyer of the New York on Nov. 28. received the 2018 William R. McMahon Year, Securities Litigation), Craig R. Isen- Award presented by the National Confer- berg, John W. Joyce, Stephen H. Kupper- Mark R. Beebe, a partner in the New Orleans ence of Specialized Court Judges. man, H. Minor Pipes III, Andrea M. Price, office of Adams and Reese, L.L.P., was Richard E. Sarver and Steven W. Usdin. elected to the International Association of Donald C. Massey, a partner in the New Stanley, Reuter, Ross, Thornton & Defense Counsel’s board of directors for a Orleans firm of Couhig Partners, L.L.C., Alford, L.L.C. (New Orleans): Richard three-year term. was selected among America’s Top 100 C. Stanley (New Orleans Lawyer of the High Stakes Litigators for 2018. Year, Bet the Company Litigation), W. John S. Creevy, a partner at Herman, Her- Raley Alford III, Lynn Luker, Thomas man & Katz, L.L.C., in New Orleans, was Frank X. Neuner, Jr., founder and man- P. Owen, Bryan C. Reuter, William M. named to the board of directors for the New aging partner of NeunerPate in Lafayette, Ross and Jennifer L. Thornton. Orleans Area Habitat for Humanity. received the 2018 Lifetime Achievement Award presented by the American Bar As- Chambers USA 2018 Louisiana Army National Guardsman John sociation’s Solo, Small Firm and General Gainsburgh, Benjamin, David, B. Dunlap III, a principal in the Baton Practice Division. Meunier & Warshauer, L.L.C. (New Rouge law firm of Dunlap Fiore, L.L.C., was Orleans): Gerald E. Meunier. Shreveport City Court Judge Sheva M. Sims promoted to the rank of brigadier general. received the Power of Influence/Woman of Louisiana Super Lawyers 2018 Inspiration Award during the 2018 Essence Judge Peter J. Garcia, on the bench of 22nd Adams and Reese, L.L.P. (Baton Music Festival in New Orleans. Judicial District Court, received the 2018 Rouge, New Orleans): Mark R. Beebe, Sam Cochran Criminal Justice Award pre- Charles A. Cerise, Jr., Robin B. Cheatham, Attorney Ernest Svenson, formerly of New sented by the National Alliance on Mental Scott Robert Cheatham, Jaimme A. Collins, Orleans, now in St. Louis, Mo., received Illness. Kathleen F. Drew, John M. Duck, Brooke the 2018 Trainer Award presented by the Duncan III, Philip A. Franco, A. Kirk Gas- American Bar Association’s Solo, Small perecz, William B. Gaudet, Charles F. Gay, Firm and General Practice Division. Jr., Matthew C. Guy, Marshall A. Hevron, Christopher J. Kane, Louis C. LaCour, Jr., PUBLICATIONS PUBLICATIONS Edwin C. Laizer, Leslie A. Lanusse, Kel- len J. Mathews, Patrick L. McCune, Don Best Lawyers in America 2018 S. McKinney, Glen M. Pilie, Jeffrey E. Stanley, Reuter, Ross, Thornton & Richardson, Deborah B. Rouen, Elizabeth Alford, L.L.C. (New Orleans): Rich- A. Roussel, E. Paige Sensenbrenner, Ronald ard C. Stanley (New Orleans Lawyer J. Sholes, Mark J. Spansel, Martin A. Stern, of the Year, Legal Malpractice Law- Mark C. Surprenant, Sara C. Valentine and Defendants), W. Raley Alford III, Lynn Raymond P. Ward. Luker, Thomas P. Owen, Bryan C. Thomas P. Owen Bryan C. Reuter
Deidre Deculus William M. Ross Richard C. Stanley Christopher W. Jennifer L. Conrad S.P. Robert Stidham Thornton Williams III
Louisiana Bar Journal Vol. 66, No. 3 231 NEWS ABA PRESIDENT-ELECT... LOCAL BARS... LBF
UPDATE Martinez Sworn In as ABA President-Elect Judy Perry Martinez, of counsel in the For more than 30 years, Martinez has New Orleans law firm of Simon, Peragine, held various ABA leadership positions. She Smith & Redfearn, L.L.P., was sworn in chaired the ABA Presidential Commission as president-elect of the American Bar on the Future of Legal Services from 2014- Association (ABA) at the close of the ABA 16 and currently serves as special advisor Annual Meeting in Chicago on Aug. 7. She to the newly established ABA Center for will serve a one-year term as president- Innovation. She was a member of the ABA elect and will be sworn in as ABA presi- Task Force on Building Public Trust in the dent in August 2019. American Justice System. In 2011, she “Our profession and our country contin- was appointed chair of the ABA Standing ue to look to the American Bar Association Committee on the Federal Judiciary. — the only organization that brings togeth- She has served as the ABA lead repre- er lawyers in private practice, prosecutors, sentative to the United Nations and as a criminal defense counsel, civil legal aid member of the ABA Board of Governors lawyers, policy makers, government law- and its Executive Committee. She previ- yers, judges, law professors and law stu- ously served as chair of the ABA Young dents — to speak on issues critical to the Lawyers Division, a member of the ABA rule of law, justice system and our demo- Judy Perry Martinez Commission on Women in the Profession cratic values, and to lead with knowledge vice began years ago when she and other and chair of the ABA Commission on of the law and respect for the principles on members of the Louisiana Bar established Domestic Violence. She has been a mem- which our nation was founded,” Martinez the New Orleans Pro Bono Project. ber of the ABA House of Delegates since said. “I will be guided by the association’s She currently serves as a Fellow in the 1991. She also has served as a member of unparalleled history of standing up for the Louisiana State Bar Association’s (LSBA) the ABA Task Force on Attorney Client voiceless and its unwavering commitment Distinguished Access to Justice Pro Bono Privilege, the Council of the ABA Center to support our members to be the best that Fellows Program. She is working with for Racial and Ethnic Diversity and the they can be each day for their clients and Southeast Louisiana Legal Services on ABA’s World Justice Project Committee. the public they serve.” several projects, including work supporting Martinez received the LSBA President’s Martinez earned her BS degree from Flood Proof and its expansions and creation Award twice. In 2017, she received the the University of New Orleans and her JD of a Veterans Legal Needs Check-Up App. LSBA’s David A. Hamilton Lifetime degree, with honors, in 1982 from Tulane Martinez has chaired the LSBA Achievement Award and the New Orleans University Law School, where she earlier Minority Involvement Committee, the Bar Association’s Presidents’ Award. In served as an instructor in trial advocacy and Professionalism and Quality of Life 2012, she received the Camille Gravel now serves on the Dean’s Advisory Council. Committee and the Post-Conviction Death Pro Bono Public Service Award from the She was a partner in Simon Peragine Penalty Representation Committee. She New Orleans Chapter of the Federal Bar from 1982-2003 before she joined Northrop was named the LSBA’s Outstanding Association. She also is the recipient of the Grumman and became assistant general Young Lawyer in 1990 and the Louisiana Sam Dalton Capital Defense Advocacy counsel for litigation and vice president Bar Foundation’s (LBF) Distinguished Award from the Louisiana Association and chief compliance officer. She retired Attorney in 2001. She also is a LBF of Criminal Defense Counsel (1997), the from Northrop Grumman in 2015 to be- Fellow. She has chaired the New Orleans Michelle Pitard Wynne Professionalism come a Fellow at the Advanced Leadership Bar Association’s Young Lawyers Section. Award from the Association of Women Initiative at Harvard University, where she She is a member of the board of directors Attorneys (1998) and the Alliance for spent a year in residence. and a Fellow of the American Bar Foundation Justice Award from the National Gay and Martinez’s commitment to public ser- and a member of the American Law Institute. Lesbian Law Association (1999).
232 October / November 2018 Introducing...
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Justice & Acountability Center of Louisiana jaclouisiana.org • [email protected] Louisiana Bar Journal Vol. 66, No. 3 233 Neuner Appointed to Legal Services Corp. Board of Directors
Frank X. Neun- er, Jr., managing partner of the law firm NeunerPate in Lafayette, was ap- pointed by President Donald Trump to the Legal Services Corp. (LSC) board of directors. The Frank X. Neuner, Jr. LSC is the nation’s single largest provider of legal assistance grants for low-income Americans. Neuner received his JD degree in 1976 from Louisiana State University Paul M. Hebert Law Center. Louisiana Supreme Court Chief Justice Bernette Joshua Johnson, Justice John L. Weimer and Justice He served as 2005-06 president of the James T. Genovese hosted Louisiana Gov. John Bel Edwards and the college students selected to partici- pate in the inaugural Governor’s Fellows Program in Louisiana Government at the Louisiana Supreme Louisiana State Bar Association during Court building in New Orleans on Aug. 7. The Fellows Program offers the students the opportunity to hurricanes Katrina and Rita. In 2013, he collaborate with state agency leaders on existing projects, gain firsthand knowledge of the development shared his experiences in restoring the and implementation of public policy and obtain a better understanding of Louisiana government and legal system after natural disasters at current affairs. The program is a partnership with Louisiana’s Office of the Governor, Louisiana State University, Southern University and the Baton Rouge Area Foundation. With the students are, seated the World Justice Forum in The Hague, from left, Justice Weimer, Gov. Edwards, Chief Justice Johnson and Justice Genovese. Netherlands. As president of the Louisiana Client Assistance Foundation since 2001, he oversees reimbursement of funds to LOCAL/SPECIALTY BARS clients who lose money due to lawyer misconduct. Alexandria Bar Association Elects Neuner served as chair of the Louisiana Public Defender Board from 2008-13. 2018 Officers, Council During that time, he led the effort to create Members of the Alexandria Bar Associa- legislation to increase access to defense tion conducted their annual meeting on July counsel for low-income individuals. 11, electing officers and Executive Council He served as president of the members for 2018. Lafayette Bar Association and the President Michael S. Koch will be joined Lafayette Bar Foundation. He is a mem- by Vice President Ronald G. (Ronnie) ber of the Louisiana Association of Beard, Secretary Carolyn O. Hines and Defense Counsel, the Defense Research Treasurer Jonathan D. Stokes. Institute, the Maritime Law Association Executive Council members are Tamara of the United States and the Federation S. Battles, June Wells-Foster, Lauren S. of Defense and Corporate Counsel. He Laborde, Allison P. (Allie) Nowlin, Samuel is a Fellow of the International Society J. (Sam) Spurgeon and Shane D. Williams. of Barristers and of the International Matthew L. (Matt) Nowlin will chair the Academy of Trial Lawyers and serves Young Lawyers Section. as the American Bar Association (ABA) Former presidents Robert L. Beck III and State Delegate for Louisiana. He recent- Aaron L. Green were recognized for their ly received the ABA Solo, Small Firm outstanding service to the organization, as and General Practice Division’s 2018 The 2018 Alexandria Bar Association officers are, well as outgoing Treasurer Magistrate Jo- from left, Treasurer Jonathan D. Stokes, Vice Lifetime Achievement Award. seph Perez-Montes and Executive Council President Ronald G. (Ronnie) Beard, Secretary Carolyn O. Hines and President Michael S. Koch. member Barbara B. Melton.
234 October / November 2018 McDonald Receives LOUISIANA BAR FOUNDATION NOBA Liberty Bell Award LBF Announces LBF Grant
Alden J. McDon- 2018-19 CPP, Application ald, Jr., president and CEO of Lib- Committee Available Online erty Bank & Trust The Louisiana Bar Foundation grant Company, is the re- Chairs application for 2019-20 funding is now cipient of the 2018 Louisiana Bar Foundation (LBF) available online. Deadline for submitting Liberty Bell Award, President W. Michael Street appointed grant applications is Dec. 3, 2018. presented by the 2018-19 LBF Community Partnership The Loan Repayment Assistance Pro- New Orleans Bar Panel (CPP) and committee chairs. gram (LRAP) application for 2019-20 fund- Association during Alden J. CPP chairs include Acadiana CPP, ing also is available online. Deadline for sub- its June 1 Leader- McDonald, Jr. Shannon Seiler Dartez; Bayou Region mitting LRAP applications is Feb. 8, 2019. ship Luncheon. The award recognizes an CPP, Teresa D. King; Capital Area CPP, For more information, contact Renee exceptional non-lawyer leader whose life Linda Law Clark; Central CPP, Elizabeth LeBoeuf at (504)561-1046 or email re- is dedicated to serving the community in W. Randall; Greater Orleans CPP, Paula [email protected]. strengthening and promoting the Ameri- A. Ates; Northeast CPP, Thomas M. Grant applications are available on- can system of justice. Hayes IV; Northshore CPP, Patricia R. line at: www.raisingthebar.org. McDonald was recognized for his sup- Bonneau; Northwest CPP, John C. Nick- port of education through his work with elson; and Southwest CPP, Judge Guy E. Save the Date! the Greater New Orleans Chapter of the Bradberry. Louis A. Martinet Legal Society, Inc., Committee chairs include Budget/In- Louisiana Bar which awards an annual scholarship to a vestment, Christopher K. Ralston; Com- Foundation 33rd prelaw student. He also supports the Justice munications, Harry J. (Skip) Philips, Jr.; Revius O. Ortique, Jr. Mock Trial Center Development, Alan G. Brackett; Educa- Annual Fellows Gala at Dillard University, is active with the tion, Prof. Russell L. Jones; Governance, United Negro College Fund, and dedicates Valerie Briggs Bargas; Grants, Christo- Friday, April 5, 2019 resources to the Amistad Research Center pher K. Ralston; and Kids’ Chance, Mat- Hyatt Regency New Orleans to preserve the importance of America’s thew R. Richards and Sherry A. Watters. ethnic and racial history. Discounted rooms are available Thurs- day, April 4, and Friday, April 5, 2019, at $244 a night. To make a reservation, call the Hyatt at 1(888)421-1442 and reference “Louisiana Bar Foundation” or go to https:// book.passkey.com/go/labargala2019. Reservations must be made before Friday, March 15, 2019. For more Gala information, contact Danielle J. Marshall at (504)561- 1046 or email [email protected].
How do you address your stress? Don’t go it alone. Call JLAP, we’ll show you the way. Judges and Lawyers Assistance Program, Inc. (JLAP) More than $30,000 was donated to the Shreveport Bar Association’s community projects and build- ing fund, thanks to the 2018 efforts of Shreveport’s Krewe of Justinian, the only legal-related Mardi Your call is absolutely confidential Gras krewe in the United States. Krewe Captain Lawrence W. Pettiette, Jr., left, presented the check as a matter of law. to Shreveport Bar Association President James C. (Jim) McMichael, Jr. The Shreveport Bar Center is home to the Shreveport pro bono lawyer program, assistance for victims of domestic violence, the Toll-free (866)354-9334 monthly Ask-A-Lawyer program and the annual wills for veterans program, among other legal events. Email: [email protected] The Krewe of Justinian will celebrate its 25th anniversary in 2019.
Louisiana Bar Journal Vol. 66, No. 3 235 LOUISIANA BAR FOUNDATION President’s Message LBF is Good for the Profession By 2018-19 President W. Michael (Mike) Street
s the Louisiana Bar Foundation involved and be a part preserve, honor and improve our system (LBF) president, I am proud to of the LBF mission of justice. The gala is a black-tie event be a member of an organization through volunteer and includes dinner, a silent auction, live directly impacting the legal service. Each year, entertainment and awards. professionA and the community at large. the class works on a In an effort to grow LBF membership, Each year, the LBF awards grants to project. This year, in we have removed criteria requiring spon- non-profit organizations and public interest partnership with Lou- sorship by an existing member of the LBF. attorneys throughout the state to address isiana Appleseed, the I encourage you to go to our website and the civil legal needs of indigent citizens, LSC Liaison Project join today. provide a basic understanding of the law is working to educate W. Michael Street Additionally, we have a new program and assist with improvements to the justice communities about where we invite new members of the Bar system. The organizations we support pro- the importance of the to become an LBF Young Lawyer Fellow vide free civil legal aid to women, children, legal services corpo- with a complimentary membership for the the elderly, people with disabilities, the rations. first year of practice. After the first year, it newly unemployed, those facing loss of ► Join a committee or Community costs as little as $100 to be a Young Law- their homes, disaster victims and many Partnership Panel. Our committees include yer Fellow of the LBF and donations are others by providing services that go to the Communications, Development, Educa- tax-deductible. very heart of the health, safety and security tion, Grants and Kids’ Chance, as well as So, why is the LBF good for the profes- of many of our citizens and their families. the nine regional Community Partnership sion? Lawyers do great service work every I encourage every member of the Bar Panels operating across the state. day by helping others. The LBF is the visible to become a member of the LBF. It costs ► The LBF Education Committee, public service organization of Louisiana as little as $200 and your membership in partnership with the Community Part- attorneys and brings members of our pro- represents your commitment to fairness and nership Panels, produces oral histories fession together, maximizing our efforts equal access for all in the justice system. of retiring judges, Bar leaders and other to better the profession, our communities Members of the LBF are referred to legal personalities to preserve the history, and ourselves. Membership in the LBF is as Fellows. Our membership consists of culture and flavor of Louisiana law. With a statement of commitment to fairness and judges, lawyers and law professors whose CPP funding and support, we now have a equal access for all in the justice system. professional, public and private careers collection of nearly 100 oral histories that We invite you to visit the LBF website at demonstrate their dedication to the im- can be viewed on the LBF website. www.raisingthebar.org and join today. For provement of the administration of justice. ► The Annual Fellows events are hosted any questions, contact Outreach and Events LBF membership provides opportunities by the Community Partnership Panels and Manager Danielle Marshall at (504)561- for networking, professional develop- are held every spring across the state to 1046 or email [email protected]. ment, volunteer leadership and committee update Fellows on LBF activities, local participation. Some other benefits include: projects and initiatives and to recognize ► invitations to special events and local volunteers. Louisiana Bar meetings; ► The Annual Fellows Membership ► participation in annual nominations Meeting is an opportunity for Fellows to Foundation Welcomes for the Distinguished Jurist, Attorney and be updated on LBF activities and elect new New Fellows Professor awards; and board members. The Louisiana Bar Foundation ► association with an organization ► The Kids’ Chance Scholarship Pro- announces new Fellows: directly impacting the legal profession gram awards educational scholarships to the and recognition of one’s contribution to dependents of workers killed or permanently Vanessa W. Anseman...... Lafayette the profession. disabled in a work-related accident. Henry W. Kinney III...... New Orleans There are many ways for Fellows to ► The Annual Fellows Gala is the Alexis C. Normand...... Metairie get involved: LBF’s largest fundraiser. Each year, lawyers, Frances Lacy Radcliff...... New Orleans ► The Fellows Class Project is an op- judges and professors gather from across J. Ralph White...... New Orleans portunity for our newest members to get the state to support the LBF’s mission to Rachel D. Wortham...... Shreveport
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Louisiana Bar Journal Vol. 66, No. 3 237 sonesta.com/royalneworleans | [email protected] | 504.553.2205 sonesta.com/royalneworleans | [email protected] | 504.553.2205 CLASSIFIED ADS ONLINE AT WWW.LSBA.ORG CLASSIFIED NOTICES
Standard classified advertising in our regu- Suburban New Orleans AV-rated law lar typeface and format may now be placed POSITIONS OFFERED firm seeks attorney to practice in the in the Louisiana Bar Journal and on the area of insurance coverage and defense. LSBA Web site, LSBA.org/classifieds. Experienced associate sought. Four- All requests for classified notices must Minimum five years’ experience re- six years’ experience with the following: quired. Competitive salary and benefits be submitted in writing and are subject preparing witnesses for depositions and to approval. Copy must be typewritten package. All replies held strictly con- and payment must accompany request. trial testimony; taking fact witness de- fidential. Send résumé to cbrechtel@ Our low rates for placement in both are positions; taking expert witness deposi- grhg.net or fax (504)362-5938. as follows: tions; taking medical expert witness de- positions; preparing for and trying civil Phelps Dunbar, L.L.P., a regional RATES personal injury cases; researching, writ- law firm, is seeking an attorney for the ing and arguing complex pre-trial mo- Insurance Practice Group in the New CLASSIFIED ADS tions including MSJs, motions in limine, Contact Krystal L. Bellanger at Orleans office. The preferred candidate (504)619-0131 or (800)421-LSBA, Daubert motions; preparation of pre-trial will have two-plus years of experience; ext. 131. orders, witness lists, exhibit lists; prepa- professional liability and/or cybersecu- ration of trial exhibits including prepara- rity experience a plus. Must have strong Non-members of LSBA tion for and exchange of exhibits with $85 per insertion of 50 words or less writing (coverage writing) and research opposing counsel, exhibit bates num- skills and excellent academic creden- $1 per each additional word bering, introduction of exhibits at trial; $20 for Classy-Box number tials. Apply at this link: http://ow.ly/ strong knowledge of evidence and civil rRVt30lNrcU. Members of the LSBA procedure rules. In addition, the candi- $60 per insertion for 50 words or less date should have a strong work ethic, a Phelps Dunbar, L.L.P., a regional $1 per each additional word humble attitude and a genuine desire to law firm, is seeking an attorney for the No additional charge for Classy-Box do the best for the client to win the case. number Insurance Practice Group in the New Compensation is based on ability and ex- Orleans office. The preferred candidate Screens: $25 perience and may range from a salaried will have one-plus years of experi- Headings: $15 initial headings/large type position to compensation based on pro- ence; insurance coverage a plus. Must duction of fees on large firm cases. Huge have strong writing (coverage writing) BOXED ADS earning’s potential for the candidate ca- and research skills and excellent aca- Boxed ads must be submitted camera ready pable of handling a case from start to by the advertiser. The ads should be boxed demic credentials. Apply at this link: and 2¼” by 2” high. The boxed ads are $70 finish. Contact jmitchell@cochranfirm. http://ow.ly/NCCc30lNrtz. per insertion and must be paid at the time of com; [email protected]. placement. No discounts apply.
DEADLINE For the February issue of the Journal, all classified 01010001110000010101101010 notices must be received with payment by Dec. 100001111001010100111000101 18, 2018. Check and ad copy should be sent to: D. 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Louisiana Bar Journal Vol. 66, No. 3 239 The Last WORD By Edward J. Walters, Jr. IPSE DIXIT: COLUMBUS TOOK A CHANCE
any of us know Baton Rouge’s John Perry as an excellent mediator, but, as most mediators, he had a priorM life as a lawyer. Many John Perry stories abound, but this one is particularly unusual because it has happened to all of us from time to time, but never quite like this. So John Perry is in Allentown, Pa., in 1988, taking a deposition in a products liability case. The deposition ran long, as they are wont to do in products cases — through no fault of John, of course (so he says). He had a reservation to fly home immediately after the deposition, from Philadelphia, some 65 miles away by In- terstate. His flight was scheduled to leave at 4:30 p.m. Last flight out. He rushes out of the deposition and he’s on the Interstate trying to get to Philadel- phia. He’s looking at his watch. Not gonna make it. Being the competitor that he is, he is undaunted. He’s driving aggressively, even driving on the shoulder passing cars on the right. VERY unlike John Perry. Well, it’s now 4:15 p.m. Where is John? ily — looked like a family sending off a you did this! There’s probably a cop pulling John is just pulling into the airport. grandmother. John goes to the person who over a kid in Laredo claiming to be John Problem No. 1: He has a rental car he looked like her grandson and said, “Here’s Perry and he’s showing them the rental needs to return. Off-site. Not gonna happen. a $20 bill. The keys are in the car. Here’s agreement.” Problem No. 2: He HAS to catch this the rental agreement. Please bring this car No courage, them. flight because he promised his wife (and to the Hertz counter.” Then he quickly It all turned out fine. MUCH better half) Fran that he would be headed for the gate. (John said if he did it John took a chance. home for her birthday, which he’s let work today, it would have probably been a $100 Don’t try this at home. True story. interfere with way too many times in the bill. Inflation, you know.) past. But NOT this time. NO, not THIS He made his flight. That made him Edward J. Walters, Jr., time. Not today. happy. That made Fran happy. a partner in the Baton This was in the PC era (pre-cellphone Rouge firm of Walters, BUT, what’s the deal with the car? Papillion, Thomas, era) so he couldn’t just Google the Hertz We’re sure who he DIDN’T make happy Cullens, L.L.C., is a desk, call them and let them know what’s that day was the Hertz representative at former Louisiana State up. the Philly airport when grandson dropped Bar Association secretary Time is of the essence. and editor-in-chief of the off the car. Louisiana Bar Journal. Solution: Don’t return the car. John, of course, doesn’t know what He is a current member What? That’s no solution! happened after he left, but his credit card of the Journal’s Editorial Well, it WAS, that day! got charged like no big deal. He never Board and chair of the John pulled the car up to where it says LSBA Senior Lawyers Division. (walters@lawbr. heard a word from anyone. net; 12345 Perkins Rd., Bldg. 1, Baton Rouge, LA “Departures.” He saw a very nice fam- His partners said, “John, I can’t believe 70810)
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