Lawyers in Libraries Day of Service

Rapides Parish Main Library

Ascension Parish Library

Terrebonne Parish Library Also Inside: • Lessor Liability • Interview: Associate Justice Greg G. Guidry • Book Review: Civil Code

St. Bernard Parish Library LegierCo haystack NO Mag Aug09 8/12/09 4:37 PM Page 1

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1100 Poydras Street • 34th Floor • Energy Centre • New Orleans, LA 70163 Telephone (504) 561-0020 • Facsimile (504) 561-0023 • http://www.legier.com Louisiana Bar Journal Vol. 63, No. 4 249 250 December 2015 / January 2016 ®

December 2015 / January 2016 Volume 63, Number 4

Lawyers in Libraries Departments Features Editor’s Message...... 254 Louisiana Attorneys Volunteer Time Day of President’s Message...... 256 and Talent for “Lawyers in Libraries” Day of Service Programs Service Association Actions...... 270 By Michael W. Schachtman...... 258 Practice Management...... 273 Lawyers Assistance...... 274 Treacherous Territory: Lessor Liability Focus on Diversity...... 275 for the Condition of Premises Puzzle...... 276 and Its Proper Limitation by Contract By Melissa T. Lonegrass...... 260 Focus on Professionalism..... 277 Discipline Reports...... 279 Portraits & Perspectives: Louisiana Supreme Court Associate Justices Recent Developments...... 281 One on One with Louisiana Supreme Court Associate Justice Greg G. Guidry Young Lawyers...... 299 Interviewed by Margaret E. Judice...... 264 Louisiana Center for Law and Civic Education...... 302 Book Review: Dictionary of the Civil Code Judicial Notes...... 304 Translation under the supervision of Alain A. Levasseur and People...... 306 Marie-Eugénie Laporte-Legeais Reviewed by Benjamin West Janke...... 268 News...... 310 Classified...... 316 Legal Services Directory...... 318 The Last Word...... 320

2016 Also Inside eXPert WitNeSS, CONSULtaNt & LegaL Member Services...... 305, 309 ServiCeS DireCtOrY Judicial Interest Rate...... 255 Alcohol/Drug Abuse Hotline.. 276 Attorney Fee Review Board.. 282 Pro Bono Hero...... 295

Code of Professionalism...... 298 2016 Expert Witness, Consultant & Legal SOLACE...... 300 Services Directory Supplement to Louisiana Bar Journal Check out the separate supplement mailed Advertisers’ Index...... 319 Supplement to the Louisiana Bar Journal 1 with this issue!

Louisiana Bar Journal Vol. 63, No. 4 251 ® Officers 2015-16 President Editorial Board Mark A. Cunningham • (504)582-8536  Alainna R. Mire  Winfield E. Little, Jr. President-Elect Editor (337)430-0907 (318)449-5046 Darrel J. Papillion • (225)236-3638  Claire McDaniel-Ojeh (225)622-2005 Secretary  Adrejia L. Boutte Alainna R. Mire • (318)449-5046 (504)561-5700  John H. Musser V (504)523-0400 Treasurer  Christopher D. Cazenave Robert A. Kutcher • (504)830-3820 (504)582-8408  Christopher K. Odinet (225)346-0285 Immediate Past President  Heather E. Cooley (318)445-3121  Roy H. (Hal) Odom, Jr. Joseph L. (Larry) Shea, Jr. • (318)934-4017 (318)227-3762  John S. (Chip) Coulter (225)362-2445 Maggie Trahan Simar Board of Governors 2015-16  Anthony M. DiLeo (337)394-6133 First District  (504)274-0087  Kristine D. Smiley David W. Leefe • (504)556-4137 (225)298-0770  Brendan P. Doherty Patrick A. Talley, Jr. • (504)584-9220 (832)255-6019  Gail S. Stephenson Second District (225)771-4900, x216  Stephen I. Dwyer John E. McAuliffe, Jr. • (504)840-4909 (504)838-9090  Tyler G. Storms (318)255-7805 Third District  Barry H. Grodsky Blake R. David • (337)233-2323 (504)599-8535  Bradley J. Tate (337)406-1099 Fourth District  Gerald J. (Jerry) Huffman, Jr. (504)957-9114 Dylan Tuggle Thriffiley Shayna L. Sonnier • (337)436-1600  Margaret E. Judice (504)620-3187 Fifth District  (337)828-1880 Edward J. Walters, Jr. Michael E. Holoway • (985)871-3924  Robert A. Kutcher (225)236-3636 C. Kevin Hayes • (225)268-2725  (504)830-3820  Jack K. Whitehead, Jr. Sixth District (225)303-8600 Charles D. Elliott • (318)442-9533 The Louisiana Bar Journal (ISSN 0459-8881) is published bimonthly by Seventh District the Louisiana State Bar Association, 601 St. Charles Avenue, New Orleans, C.A. (Hap) Martin III • (318)388-4700 Louisiana 70130. Periodicals postage paid at New Orleans, Louisiana and Eighth District additional offices. Annual subscription rate: members, $5, included in dues; Marjorie L. (Meg) Frazier • (318)213-9205 nonmembers, $45 (domestic), $55 (foreign). Canada Agreement No. PM Chair, Young Lawyers Division 41450540. Return undeliverable Canadian addresses to: P.O. Box 2600, Erin O. Braud • (504)681-6951 Mississauga, ON, L4T 0A8. At-Large Members Postmaster: Send change of address to: Louisiana Bar Journal, 601 St. Mickey S. deLaup • (504)828-2277 Charles Avenue, New Orleans, Louisiana 70130. John M. Frazier • (318)226-9100 Rachael D. Johnson • (504)836-2775 Subscriber Service: For the fastest service or questions, call Darlene M. Loyola University College of Law LaBranche at (504)619-0112 or (800)421-5722, ext. 112. Monica Hof Wallace • (504)861-5670 Editorial and Advertising: Southern University Law Center Publication of any advertisement shall not be considered an endorsement Donald W. North • (225)505-6714 of the product or service involved. Submissions are welcome and will be Louisiana State Law Institute considered for publication by the Editorial Board. For submission guide- Kevin C. Curry • (225)382-3484 lines, go online at www.lsba.org, click on “Publications,” then “Louisiana House of Delegates Liaison Chair Bar Journal.” Copyright © by Louisiana Bar Journal. All rights reserved. S. Jacob Braud • (504)394-9841 Reproduction in whole or part without permission is prohibited. Views expressed are those of the authors only. Editorial Staff Executive Director Luminary Award 2003 Loretta Larsen, CAE National Association of Bar Executives Communications Director Communications Section Kelly Wells Ponder Excellence in Regular Publications Publications Coordinator/Managing Editor

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

252 December 2015 / January 2016 LOUISIANA CHAPTER

TheThe followingfollowing attorneysattorneys areare recognizedrecognized forfor ExcellenceExcellence inin thethe fieldfield ofof AlternativeAlternative DisputeDispute ResolutionResolution

David S. Cook Mimi Methvin A. J. Krouse Steven Crews Scott Love (337) 234-4155 (337) 501-1055 (504) 599-8016 (318) 527-0142 (225) 389-9899

Andrew McGlathery Bernie McLaughlin Elizabeth Middleton Lynne Stern Don Weir, Jr. (337) 493-7271 (337) 310-1609 (318) 487-9406 (504) 259-4488 (318) 676-0802

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* The National Academy of Distinguished Neutrals is an invitation-only professionalLouisiana association Bar Journal of over 900 Vol. litigator-rated 63, No. 4 253 mediators & arbitrators throughout the US and a proud partner of the AAJ and DRI. For more info, please visit www.NADN.org/about EDITOR’S MESSAGE

Looking Forward to 2016 and Wonderful Opportunities! By Alainna R. Mire h, the holidays! As lawyers, many of us place more im- being mindful of our judiciary and the state What a joyous portance on the profession, status and the of Louisiana. When our judiciary is attacked, people around us that count on us for support. it makes all of us look bad. When our state time of year for We do not always take into account our own is attacked, it makes all of us look worse. some. For me, it health and feelings. Personally, it has always We should not wait for a tragic event to isO not filled with so much. The been easier for me to try to please everyone occur, such as the Grand Theater shooting and do what is asked of me than to not make in Lafayette, for the entire state to come holidays are always a great the attempt. This behavior often tends to together as one. source of stress for me and, place additional stress on the person doing all I’m proud to be a Louisiana attorney lately, sadness. A few years ago, the giving. It has also caused friction in the who was born and raised in Scott. I hope workplace because some individuals may that each of you is proud to be a Louisiana I suffered a great loss the day think of you as “people pleaser” or “know it attorney, too. This holiday, I’m thankful to be after Christmas. Needless to all.” Unfortunately, that is not the case. I’m a member of the LSBA, a daughter, a sister say, things have been different just a person who will get the work done no and a friend. But, most of all, I’m thankful for me since 2012. Family has matter whose job it is. I not only take pride in to be able to take time for myself and family my work, but pride in whatever organization to enjoy the rest of 2015. always been important to me I’m a part of. It’s like the old Vidal Sassoon Looking forward to 2016 and all the so I’ve always made family commercial, “If you don’t look good, then wonderful opportunities the year will bring. members a priority. The one we don’t look good.” Happy holidays! As lawyers and members of the Louisiana person who has not always been State Bar Association (LSBA), we should at the top of the list is me. all want to look good. That also includes

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

254 December 2015 / January 2016 2016 Judicial Interest Rate is 4% Pursuant to authority granted by La. R.S. 13:4202(B)(1), as Judicial Interest Rates amended by Acts 2001, No. 841, the Louisiana Commissioner of Financial Institutions has determined that the judicial rate of inter- Through 2016 est for calendar year 2016 will be four (4.0%) percent per annum. La. R.S. 13:4202(B), as amended by Acts 2001, No. 841, and Date Rate Acts 2012, No. 825, requires the Louisiana Commissioner of Financial Institutions to determine the judicial interest rate for the Prior to Sept. 12, 1980...... 7.00 percent calendar year following the calculation date. The commissioner Sept. 12, 1980 to Sept. 10, 1981...... 10.00 percent has determined the judicial interest rate for the calendar year 2016 in accordance with La. R.S. 13:4202(B)(1). Sept. 11, 1981 to Dec. 31, 1987...... 12.00 percent The commissioner ascertained that on Oct. 1, 2015, the first Jan. 1, 1988 to Dec. 31, 1988...... 9.75 percent business day of the month of October, the approved discount rate Jan. 1, 1989 to Dec. 31, 1989...... 11.50 percent of the Federal Reserve Board of Governors was three-quarters (.75%) percent. Jan. 1, 1990 to Dec. 31, 1990...... 11.50 percent La. R.S. 13:4202(B)(1) mandates that on and after Jan. 1, 2002, Jan. 1, 1991 to Dec. 31, 1991...... 11.00 percent the judicial interest rate shall be three and one-quarter percentage points above the Federal Reserve Board of Governors-approved Jan. 1, 1992 to Dec. 31, 1992...... 9.00 percent discount rate on Oct. 1, 2015. Thus, the effective judicial interest rate Jan. 1, 1993 to Dec. 31, 1993...... 7.00 percent for the calendar year 2016 shall be four (4.0%) percent per annum. Jan. 1, 1994 to Dec. 31, 1994...... 7.00 percent La. R.S. 13:4202(B)(2) provides that the publication of the commissioner’s determination in the Louisiana Register “shall not be Jan. 1, 1995 to Dec. 31, 1995...... 8.75 percent considered rulemaking within the intendment of the Administrative Jan. 1, 1996 to Dec. 31, 1996...... 9.75 percent Procedure Act, R.S. 49:950 et seq., and particularly R.S. 49:953.” Therefore, (1) a fiscal impact statement, (2) a family impact state- Jan. 1, 1997 to July 31, 1997...... 9.25 percent ment, (3) a poverty impact statement, (4) a small business statement, Aug. 1, 1997 to Dec. 31, 1997...... 7.90 percent (5) a provider impact statement, and (6) a notice of intent are not required to be filed with the Louisiana Register. Jan. 1, 1998 to Dec. 31, 1998...... 7.60 percent Jan. 1, 1999 to Dec. 31, 1999...... 6.73 percent — John P. Ducrest, CPA Jan. 1, 2000 to Dec. 31, 2000...... 7.285 percent Commissioner of Financial Institutions Date: October 8, 2015 Jan. 1, 2001 to Dec. 31, 2001...... 8.241 percent Jan. 1, 2002 to Dec. 31, 2002...... 5.75 percent Judicial Interest Rate Jan. 1, 2003 to Dec. 31, 2003...... 4.50 percent Jan. 1, 2004 to Dec. 31, 2004...... 5.25 percent Calculator Online! Jan. 1, 2005 to Dec. 31, 2005...... 6.00 percent Jan. 1, 2006 to Dec. 31, 2006...... 8.00 percent Need to calculate judicial interest? Jan. 1, 2007 to Dec. 31, 2007...... 9.50 percent Check out the Judicial Interest Rate Jan. 1, 2008 to Dec. 31, 2008...... 8.50 percent Calculator (courtesy of Alexandria attorney Charles D. Elliott) on the Jan. 1, 2009 to Dec. 31, 2009...... 5.50 percent Louisiana State Bar Association’s Jan. 1, 2010 to Dec. 31, 2010...... 3.75 percent website. Jan. 1, 2011 to Dec. 31, 2011...... 4.00 percent Jan. 1, 2012 to Dec. 31, 2012...... 4.00 percent Go to: www.lsba.org/Members/ Jan. 1, 2013 to Dec. 31, 2013...... 4.00 percent JudicialInterestRate.aspx. Jan. 1, 2014 to Dec. 31, 2014...... 4.00 percent Or visit the “For Members” page and find it under Jan. 1, 2015 to Dec. 31, 2015...... 4.00 percent the “Member Tools and Services” box on the www.LSBA.org website. Jan. 1, 2016 to Dec. 31, 2016...... 4.00 percent

Louisiana Bar Journal Vol. 63, No. 4 255 President’s message

By Mark A. Cunningham The Importance of Speaking Out for the Profession and Rule of Law in Response to Unwarranted Attacks on Louisiana Attorneys and Judicial Independence

his past fall, the Washington Post called the Caddo Parish DA’s race the “most important local election of 2015.” NationalT press coverage started months before the election and focused on race, capital punishment and a case of prose- cutorial misconduct dating back decades. Reporters paid little attention to the policy positions of the candidates or their experience. They paid no attention to the critical role assistant district attorneys play in Caddo Parish and elsewhere in preserving public safety or the financial sacrifice many of them make by pursuing Louisiana State Bar Association President Mark A. Cunningham, third from left, attended a din- a public service career. None considered ner meeting with members of the Plaquemines Parish Bar Association. Among the attendees were the impact on the public when the State Plaquemines Bar officers, including President S. Jacob Braud, Treasurer Adrian A. Colon, Jr. and Secretary Dominick Scandurro, Jr.; Judge Michael E. Kirby and Judge Joy Cossich Lobrano; and failed to fund indigent criminal defense members Stephen C. Braud, Valeria M. Sercovich, Francis J. Lobrano, W. Allen Schafer, George Piv- fully. ach II, Mark A. Pivach, Corey E. Dunbar, Joel P. Loeffelholz and Leo J. Palazzo. We have all seen this dynamic before. It plays itself out in the media every day. Sometimes the target of ridicule is Please do not misunderstand my con- to defend attorneys and judges when they a district attorney; other times, the spot- cern. With the prominent position we are unjustly attacked, public respect for light is on the judiciary or trial lawyers. hold in public policy debates and the our profession will continue to wane and However, no matter what the story, we administration of justice, scrutiny of our our self-regulating status will come un- can always count on two things. First, the profession should not only be expected der attack. Further, when a particular seg- media will never acknowledge our com- but welcomed. We want to know when ment of our profession is attacked with- mitment and service to the public — at- our profession falls short. Our self-reg- out cause, we cannot expect that group to torneys doing good works does not sell ulating status demands that we embrace mount an effective defense without sup- papers. Second, the profession will never criticism and address our shortcomings. port from the rest of the bar. Defense law- speak out in its own defense. The irony Nor should we publicly defend attorneys yers must speak out for plaintiff lawyers should not be lost on anyone — the pro- or judges who disgrace the profession and vice versa. Prosecutors must speak fession with the greatest number of blow- by failing to meet the standards of ethi- out for criminal defense lawyers and hards (myself included) per capita has cal conduct and professionalism that we vice versa. All Louisiana attorneys must nothing to say when its own members are have established for ourselves. speak out for judges when those purport- unjustly attacked. On the other hand, if we do nothing ing to speak for Louisiana and economic

256 December 2015 / January 2016 practitioners” are substantially less rigor- ous than those imposed on attorneys, yet they can practice without attorney supervision and can even open their own businesses. Our profession should not make it easier for their advocates by letting attacks on Louisiana attorneys and judges go unanswered. There could be no worse fate for the administration of justice and rule of law in Louisiana than limited license practitioners. Recently, I had dinner in St. Mary Parish with the attorneys and judges of the Inn on the Teche American Inn of Court and, before that, with members of Louisiana State Bar Association President Mark A. Cunningham, second from left, attended a the Plaquemines Parish Bar Association. dinner meeting with members of the Inn on the Teche American Inn of Court. From left, M. Bofill At both dinners, there was clear consen- (Bo) Duhe, district attorney, 16th Judicial District; Cunningham; Judge Curtis Sigur, 16th JDC; sus that unwarranted attacks on the legal Judge Vincent J. Borne, 16th JDC; Judge Keith R.J. Comeaux, 16th JDC; attorney Adolph B. Curet profession and judiciary in the media un- III; and Anthony J. (Tony) Saleme, Jr., assistant district attorney, St. Mary Parish. dermine public confidence in the administration of justice and the rule of law and development tear the state down by char- Lack of courage has consequences. that the LSBA should respond to these acterizing our court system as a “judicial The public pays attention when lawyers attacks in a timely, effective and respon- hell hole.” do not stand up for each other and fail to sible manner. We will be working toward I recognize that many attorneys and live up to their own standards. As public that goal. their clients believe in the reforms es- respect for our profession declines, our In the meantime, I encourage all poused by interest groups that sometimes ability to stave off efforts to open up the members to speak out for the profession attack attorneys and judges unfairly. I am practice of law to non-lawyers dimin- and judiciary whenever they are unjustly not suggesting that our members should ishes. Lawyers in Washington State are attacked and to let me or the LSBA staff pull their punches on important public already seeing these effects firsthand. know when they see any group target policy issues. There is often plenty of There, over the strenuous objections of lawyers or judges unfairly, particularly room for debate when it comes to de- the state bar, the Washington Supreme when the attack is motivated by political ciding issues related to the administra- Court authorized a special class of non- interests. In the long run, we can provide tion of justice. But debate and effective lawyers to practice law and, in some in- no greater service to the public than to advocacy can happen without us tacitly stances, serve as courtroom advocates in combat misinformation intended to un- endorsing media and public information practice areas historically served by solo dermine and politicize the administration campaigns intended to demean and side- and small-firm practitioners. The educa- of justice and rule of law. line our colleagues through our silence. I tional requirements and ethical obliga- find guidance in the poem by Protestant tions for these so-called “limited license Cleric Martin Niemöller:

First they came for the Socialists, and I did not speak out— LSBA Member Services The mission of the Louisiana State Bar Association (LSBA) is to assist and serve its Because I was not a Socialist. 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. Then they came for the Trade Union- ists, and I did not speak out— In the past several years, the legal profession has experienced many changes. The LSBA Because I was not a Trade Unionist. has kept up with those changes by maturing in structure and stature and becoming more diverse and competitive. Then they came for the Jews, and I did not speak out— For more information, Because I was not a Jew. visit www.lsba.org Then they came for me—and there was no one left to speak for me.

Louisiana Bar Journal Vol. 63, No. 4 257 Louisiana Attorneys Volunteer Time and Talent for “Lawyers in Libraries” Day of Service Programs

By Michael W. Schachtman

ouisiana pro bono attorneys provided much-needed legal assistance to the public during the Louisiana State Bar Asso- Lciation’s (LSBA) “Lawyers in Libraries” Day of Service on Oct. 29. A total of 133 attorneys volunteered for 73 events, reaching more than 600 people statewide. “Lawyers in Libraries,” an ongoing collaboration between the LSBA’s Access to Justice Department and the Louisiana Library Association, directly connects the public with counsel, and makes people aware of the resources and options available to them when they cannot afford an attorney. The Oct. 29 Day of Service was scheduled to mark Louisiana’s participation Attorneys participating in the “Lawyers in Libraries” program at Rapides Parish Main Library were, in “National Celebrate Pro Bono Week” front row from left, Amanda Westergard, Terry Aubin and Laurel White. Back row from left, Ted (Oct. 25-31), but attorneys are encouraged Roberts, Walter McClatchey and Robert Levy. A total of 40 people were served through the Central to volunteer throughout the year. Helpful Louisiana Pro Bono Project, Inc. resources are available at www.Louisian- on how to respond to legal inquiries. Also, Calcasieu Parish: Tom Shea aLawyersinLibraries.org and LSBA staff Louisiana’s legal aid organizations have Caldwell Parish: Dina Domangue will help coordinate events with libraries helped develop specialized print and on- Cameron Parish: Jennifer Jones throughout the state. line resources available to the public via Catahoula Parish: Christie Wood “Lawyers in Libraries” is part of the local libraries. Claiborne Parish: Jerry Edwards and Charlie Legal Education & Assistance Program The LSBA would like to acknowledge Tabor (LEAP), which delivers information and Louisiana libraries, the LSBA members Concordia Parish: Amelia Hoppe and Jonathan assistance to the public via libraries. Ear- who volunteered on Oct. 29 in their com- Rhodes lier this year, representatives of the LSBA, munities, and the agencies helping to coor- DeSoto Parish: Hon. Gary Evans Louisiana State University Law Library dinate this annual event. East Baton Rouge Parish: Annette Peltier and and the Law Library of Louisiana toured Luis Leitzelar the state to provide training for library staff “Lawyers in Libraries” Volunteers East Carroll Parish: Laurie Brister Acadia Parish: Greg Landry East Feliciana Parish: Sara Bradley Allen Parish: Adam Johnson Evangeline Parish: Laura Picard Ascension Parish: Artis Ulmer and Pamela Moran Franklin Parish: Emily Shields, E. McIntyre, Assumption Parish: Leah Poole Scott Sartin and Caroline Hemphill Avoyelles Parish: Cory Roy, Ben James, Doug Grant Parish: Gwenda Lamb Bryan, Charles Riddle and Brandon Scott Iberia Parish: Julie Rosenzweig Beauregard Parish: Lawanda Gibson Iberville Parish: Wendy Ramnarine and Thomas Bienville Parish: Melanie Shrell McCormick Terrebonne Parish attorney volunteer John Sirois Bossier Parish: Felicia Hamilton and Dayan Ryan Jackson Parish: Mike Rhymes presented a program on elder law and other legal Caddo Parish: John Frazier Jefferson Parish: Jeremy Epstein, Jacqueline Ep- information.

258 December 2015 / January 2016 St. James Parish librarian Betsy Octave and Ascension Parish attorney volunteers Pamela Moran Pointe Coupee Parish attorney volunteers Lane attorney volunteer David Handelman. and Artis Ulmer, and librarian Chriselle Henry. Ewing and Don Cazayoux with Pointe Coupee Library Director Melissa Hymel. stein, James Maguire, Shayna Beevers, Thomas St. Charles Parish: Michelle Stross Robbins and Martha Maher St. Helena Parish: Sean Brady Central Louisiana Pro Bono Project Jefferson Davis Parish: David Marcantel St. James Parish: David Handelman DeSoto Parish Bar Association Lafayette Parish: Lafayette Volunteer Lawyers St. John the Baptist Parish: Greg Hughes Lafayette Volunteer Lawyers Lafourche Parish: John Sirois St. Landry Parish: Travis Broussard and Rick Legal Services of North Louisiana LaSalle Parish: Carmen Ryland and Brian Frazier Keating Southeast Louisiana Legal Services Lincoln Parish: Paul Lensing St. Martin Parish: Jennifer Maybery Southeast Louisiana Legal Services Northshore Livingston Parish: Sam Pleasant St. Mary Parish: Adolph Curet Pro Bono Project Madison Parish: Edwin Moberley St. Tammany Parish: Dorian Tuminello, Cindy Southwest Louisiana Bar Foundation Petry, Kim Sanders Vanderbrook, Shanda Red- Morehouse Parish: Jay Mitchell St. Landry Parish Bar Association Natchitoches Parish: Lewis Gladney mon, Teresa Robertson, Thad Minaldi, William Cass and William Magee Orleans Parish: Kelsey Jarrett, Elizabeth Men- More “Lawyers in Libraries” events will Tangipahoa Parish: Greg Webb and Denise Lee eray, Kimya Holmes, Charles Nelson, Jason be scheduled throughout the year. Attorneys Freas, Michelle Semmes, John Bihm, Margaret Tensas Parish: McCaleb Bilbro wanting to volunteer their time and talent for Woodward, Roy Bellina, Leandro Area, Bonnie Terrebonne Parish: John Sirois future events should email Nicole Louque Dye and Thomas Dunn Union Parish: Brian Dollar at [email protected]. Ouachita Parish: Clint Hanchey and Dayna Ryan Vermilion Parish: Burton Guidry For a recap of other events conducted Plaquemines Parish: Chris Ralston and Ashley Vernon Parish: S. Christie Smith IV, Elvin during Pro Bono Week, go to: www.lsba. Heilprin Fontenot, Tiffany Ratliff, Willie Banks, Jr., and Pointe Coupee Parish: Don Cazayoux and Lane Wes Bailey org/ATJ/ProBonoCelebrate.aspx. Ewing Washington Parish: Janet MacDonell and Lam Michael W. Schachtman Rapides Parish: Maria Losavio, Robert Levy, Tran is the Louisiana State Barry Barnett, Ruby Freeman, Terry Aubin, Ted Webster Parish: Justin Courtney Bar Association Access Roberts, Laurel White, Walter McClatchey and West Baton Rouge Parish: Julie Payer to Justice Department’s Amanda Westergard West Carroll Parish: Clay Hamilton self-represented litigation counsel. He works Red River Parish: Nina Coleman West Feliciana Parish: David Opperman Richland Parish: Myrt Hales, Jr. and Josh with Louisiana’s network Winn Parish: James Mixon of Self-Help Resource Strickland Centers and coordinates St. Bernard Parish: Van Robichaux, Jr., Brian LIL Supporting Agencies the Lawyers in Librar- Page, Daniel Nodurft, Lisa Borne, Paul Tabary ies and similar access to Acadiana Legal Services Corp. III, David Serio, Cory Grant, Cullen Tonry, Alan justice-related programs. Bouterie, Michael Ginart and Adele Faust. Baton Rouge Bar Foundation’s Pro Bono Project ([email protected]; 601 St. Charles Caldwell Parish Bar Association Ave., New Orleans, LA 70130)

St. Bernard Parish attorney volunteers, from left, Alan Bouterie, Mike Ginart, St. Bernard Parish attorney volunteers, from left, David Serio, Cullen Tonry, Adele Faust, Paul Tabary and Daniel Nodurft. Lisa Borne, Cory Grant, Brian Page and Van Robichaux.

Louisiana Bar Journal Vol. 63, No. 4 259 Treacherous Territory:

Lessor Liability for the Condition of Premises and Its Proper Limitation by Contract

By Melissa T. Lonegrass

ew aspects of lease law Lessor Liability in Contract Louisiana Revised are as anxiety provoking and Tort Statutes 9:3221 as liability for defective premises. A landlord’s re- A lessor’s liability for defects arises However, the contractual and delictual from two sources: the lease contract and responsibilities described above are not sponsibility for damages caused F the law of delict, or tort. First, implied unalterable. Instead, a lessor may shift some by defects in the premises can sig- in every lease is a warranty against vices liability for the condition of the premises nificantly increase the cost of doing and defects, according to which a lessor’s to a lessee who agrees to hold the lessor business. And for tenants, the pros- liability is “strict” — the warranty extends harmless for any injury to the lessee or third pect of injury to person or property to all defects whether known or unknown parties. The primary provision governing to the lessor.2 Second, the lessor’s delictual these liability-shifting clauses is La. R.S. can be sobering. As a result, clauses liability arises principally from the lessor’s 9:3221, which was first enacted in 1932. In in a lease that attempt to shift or oth- custody of the leased thing or the lessor’s pertinent part, the statute reads as follows: erwise limit this liability are critical. status as the owner of a building.3 Since However, the law governing these 1996, a lessor’s tort liability requires neg- [T]he owner of premises leased under clauses is not optimized for most ligence — failure to exercise reasonable a contract whereby the lessee assumes care to prevent damage caused by a defect responsibility for their condition is leases. Arguably, the current regime of which the lessor knew or should have not liable for injury caused by any fails to sufficiently protect both com- known.4 Because the law imposes contrac- defect therein to the lessee or anyone mercial landlords and residential tual and delictual obligations upon landlords on the premises who derives his right tenants. Perhaps more disturbing, concurrently, injured tenants may recover to be thereon from the lessee, un- 5 the law governing the parties’ power under either theory, or both. Non-tenants less the owner knew or should have instead have only the tort theory at their known of the defect or had received to waive or transfer landlord liabil- disposal, although an exception to this rule notice thereof and failed to remedy ity is not only unbalanced, but also exists for family members and roommates it within a reasonable time.7 confusing and unsettled. This article of a residential lessee.6 Thus, in general, a provides guidance for practitioners lessor is strictly liable to tenants for dam- By its letter, this statute appears to permit attempting to navigate the treacher- ages caused by defects in the premises, and a lessor-owner to shift liability for defective liable to third parties only for negligence. premises to the lessee, provided the lessor ous territory of landlord premises did not act negligently by failing to remedy liability.1

260 December 2015 / January 2016 a defect of which the lessor knew or should time.12 Therefore, when the lease contained contractual freedom.20 have known. For decades, courts have ap- a liability-shifting clause, the statute reduced Although 9:3221 no longer serves the plied this statute to nearly all cases involving a lessor’s delictual premises liability from purpose for which it was originally en- lessors’ attempts to shift both contractual and strict liability to negligence. acted, it has not been repealed. In 1996, the delictual responsibility for the condition of The statute’s reduction in the standard prevailing belief was that 9:3221 provided the premises to their lessees.8 of care was an important protection for important protections for lessors in the realm Unfortunately, since 9:3221 was first landlords — at least until 1996. In that year, of contract.21 This mistaken understanding enacted, courts, legislators and practitioners the Louisiana Legislature enacted sweep- of the statute resulted in its retention, even have struggled to appreciate the statute’s ing tort reform by reducing a lessor’s tort after its utility to lessors had ended. proper role and application within the liability from strict liability to negligence.13 broader framework of the law. In particular, After this change in the law, 9:3221, which Shifting a Lessor’s Liability recent legislative reforms of tort and lease also reduced a lessor’s standard of care in Contract law have caused this statute to operate from strict liability to negligence, ceased in a manner far different from what the to serve a protective function for lessors. Whereas 9:3221 was once a sensible Legislature initially intended. Its continued For example, if today a defective stairway rule in the tort setting, the statute has always application impedes both the contractual railing in a leased building fails, causing the fit poorly with contract law. In the 1930s, freedom of the parties to a lease and impor- lessee’s guest to fall and suffer harm, the the implied warranty against vices and tant public policies embedded in the Civil lessor is liable only if (1) the lessor knew, defects was freely waivable by the parties Code. Indeed, when read in pari materia or in the exercise of reasonable care, should to the lease.22 However, 9:3221 negates with basic principles of obligations law, have known of the defect in the railing, (2) the effect of a warranty waiver when the this statute is impossible to sensibly apply. the damage could have been prevented by lessor knew or should have known of the the lessor’s exercise of reasonable care defect and failed to make timely repairs.23 Shifting a Lessor’s in repairing the defect, and (3) the lessor 14 Because a broad interpretation of the statute Liability in Tort failed to exercise such reasonable care. was inconsistent with the law’s purpose, in Although the lessor may attempt to shift this the years following its enactment, courts The Legislature’s aim in enacting 9:3221 responsibility in tort to the lessee, 9:3221 and commentators applied 9:3221 only to was narrow. By the 1930s, the jurispru- negates any such attempt when the lessor (1) waivers of a lessor’s tort liability.24 dence on lessor premises liability and its knew or should have known of the defect or In 1981, the Supreme Court altered the had received notice thereof, and (2) failed susceptibility to waiver was well settled. 15 trajectory of the statute by applying it to Relying on French jurisprudence, Louisiana to remedy it in a reasonable time. Thus, negate a waiver of the warranty against courts held uniformly that parties to a lease under present law, the same showing that vices and defects. In Tassin v. Slidell Mini- were free to broaden or restrict the lessor’s gives rise to a third party’s action against Storage, Inc., lessees of a storage unit sued liability by contract, even with respect to the lessor likewise negates the effect of their lessor, seeking compensation for water 9 any attempt to shift this responsibility to the warranty against vices and defects. Fur- 16 damage to their personal property caused thermore, according to the Supreme Court, the lessee. by a defect in the storage unit doors.25 The a lessor’s tort liability could be negated by Also by 1996, another reason existed for lessor defended by relying on the lease the victim’s assumption of the risk.10 The 9:3221’s repeal. In 1985, the Legislature contracts, which absolved the lessor from obligations of the lessor, no matter the enacted Louisiana Civil Code article 2004, any liability resulting from water dam- dealing with exculpatory clauses and limita- 26 source, were therefore freely waivable by 17 age. The court found the waivers invalid, any party who might suffer harm. However, tions of liability. Article 2004 places only applying 9:3221 and concluding that the the Supreme Court jurisprudence placed an two limitations on exculpatory provisions, lessee knew or should have known that important limitation on this waiver — the both derived from public policy. First, par- the doors would leak.27 Following Tassin, 11 ties may not agree in advance to exclude or rule of contractual privity. Thus, a lessee’s 18 courts have applied 9:3221 in nearly every agreement to assume responsibility for the limit a party’s intentional or gross fault. case involving an attempted waiver of the premises could have no effect on a lessor’s Second, parties may not agree in advance lessor’s contractual warranty obligations, to exclude or limit a party’s liability for responsibility to a third party. 19 despite its clear tort-based origins. The Legislature’s response to this limita- physical injury. The text and structure of While the approach of Tassin is certainly tion was to enact 9:3221. According to that the article both suggest that, aside from these contrary to the original intent of 9:3221, it rule, when a lessee assumed responsibility limitations, parties are free to waive the ob- has allowed courts to introduce public policy for the condition of the premises, the lessor ligations of another. The retention of 9:3221 limitations on warranty waivers where none could not be held liable for injuries suffered in 1996 perpetuated an important anomaly otherwise existed in the law. The Legislature by the lessee or anyone on the premises in lease law. Although under article 2004 later introduced its own limitations on war- with the lessee’s consent unless the lessor parties to a contract are free to negate their ranty waivers in the 2005 revision of the knew or should have known of the defect liability for negligence, under 9:3221 this Civil Code title on Lease. Article 2699 now and failed to remedy it within a reasonable is not possible in a lease. Thus, this statute provides that although the lessor’s warranty unintentionally became an impediment to

Louisiana Bar Journal Vol. 63, No. 4 261 against vices and defects may be waived, generally enforceable if it is clear and unam- 6. La. Civ.C. art. 2698. this may be accomplished only “by clear biguous and brought to the attention of the 7. La. R.S. 9:3221. 8. See generally, Terrenova v. Feldner, 28 So.2d and unambiguous language that is brought lessee. Once properly executed, the waiver 287 (La. App. Orleans 1946); Tassin v. Slidell Mini- to the attention of the lessee.”28 Moreover, an is invalid only if its application violates the Storage, Inc., 396 So.2d 1261 (La. 1981). otherwise valid waiver is ineffective under rules of public policy articulated in article 9. See, e.g., Pecararo v. Grover, 5 La. App. 676, three distinct circumstances: 2699. Under 9:3221, on the other hand, 678 (La. App. Orleans 1927); Cordona v. Glenny, 1 Teiss 22, 24 (La. App. 1903). the lessor remains responsible for damage 10. See, e.g., Clay v. Parsons, 81 La. 597, 597 (1) To the extent it pertains to caused by any defect of which he knew or (1919). YOUR ADVOCATE. vices or defects of which the lessee should have known and failed to timely 11. Klein v. Young, 111 So. 495, 496-97 (La. did not know and the lessor knew repair. This excessive limitation undermines 1926). 12. 1932 La. Acts 552. or should have known; the intent of most commercial leases, in 13. 1996 La. Acts 710. (2) To the extent it is contrary to which sophisticated parties routinely shift 14. La. Civ.C. arts. 2317.1, 2322. YOUR PARTNER. the provisions of Article 2004; or responsibility for the premises to the lessee 15. La. R.S. 9:3221 (3) In a residential or consumer to the fullest extent permitted by law. 16. Compare La. Civ.C. arts. 2317.1, 2322 with La. R.S. 9:3221. lease, to the extent it purports to Second, in residential leases, 9:3221 is 17. 1984 Acts No. 331. YOUR LSBA COMMITTEE. waive the warranty against vices or insufficiently protective of lessees. Article 18. La. Civ.C. art. 2004. defects that seriously affect health 2699 negates the waiver of any defects that 19. Id. or safety.29 “seriously affect the health or safety” of 20. After 1996, there is no conflict between 9:3221 and article 2004’s limitation on exculpation residential tenants. 9:3221 contains no such of liability for physical injury, as the facts giving rise Despite Article 2699’s comprehensive restriction, negating a waiver only when the to a lessee’s claim would simultaneously negate any regulation of warranty waivers, 9:3221 lessor fails to remedy a defect of which he attempted waiver of that right of action. was not repealed in 2005 and was instead, knew or should have known. By holding 21. Lonegrass, supra note 1, at 464 & n. 256. 30 22. See supra note 9. shockingly, amended and reenacted. Fur- that 9:3221 supersedes the article 2699, 23. La. R.S. 9:3221. thermore, an introductory phrase suggests courts have denied lessees the protection 24. See Lonegrass, supra note 1, at 452-53. that 9:3221 must operate as an exception to of legislation carefully crafted to ensure the 25. 396 So.2d 1261, 1261 (La. 1981). the Civil Code.31 As in 1996, the statute’s safety of residential dwellings. 26. Id. 27. Id. at 1264. preservation appears to be an error. A com- 28. La. Civ.C. art. 2699. The Legal Malpractice Insurance Committee Your LSBA Committee serves you by ensuring: ment to 2699 inaccurately claims that 9:3221 Conclusion 29. Id. applies only to “delictual or quasi-delictual 30. 2004 La. Acts 2614. of the Louisiana State Bar Association holds the 31. La. R.S. 9:3221 (“Notwithstanding the provi- obligations incurred as a result of injury Complete clarity will come to the law endorsed malpractice insurance carrier to a high • A strong policy offering essential coverages. 32 sions of Louisiana Civil Code Article 2699 . . . .”). occurring in the leased premises.” While of the lessor’s premises liability only when 32. La. Civ.C. art. 2699, cmt. (h). standard of accountability for the benefit of all its this statement may have been correct at the the Legislature finally repeals 9:3221. 33. See, e.g., Wells v. Norris, 46,458, pp. 6-7 (La. members. • An opportunity for coverage for the majority of time of the statute’s enactment, it has not Principles of the Civil Code, and not an App. 2 Cir. 8/10/11), 71 So.3d 1165, 1169; Stuckey v. Louisiana attorneys. been accurate since 1981, when courts first Riverstone Residential SC, LP, 2008-1770, p. 10 (La. outmoded and defunct statutory relic, App. 1 Cir. 8/5/09), 21 So.3d 976-77. applied 9:3221 to contract claims. should govern here. In the interim, courts 34. See, e.g., Wells v. Norris, 46,458 (La. App. 2 • Continuous oversight to ensure adequate and fair 9:3221’s reenactment resulted in dis- should apply 9:3221 restrictively so as to Cir. 8/10/11), 71 So. 3d 1165, 1169; Greely v. OAG order and confusion in the jurisprudence. minimize confusion and conflict in the Props., LLC, 44,240 (La. App. 2 Cir. 5/13/09), 12 premium rates for a stable program. So.3d 490, 495. Courts, reading article 2699 and 9:3221 in law. In the tort setting, article 2004 — not pari materia, have tended to hold that the 9:3221 — should regulate liability waivers. 33 Melissa T. Lonegrass is statute supersedes the Code. Attempting And, in light of new article 2699, 9:3221 has the Harriet S. Daggett- to find some purpose for this statute in de- no place in the enforceability of waivers of Frances Leggio Landry lict, numerous courts have now concluded the lessor’s contractual obligations. Coher- Professor of Law and — quite wrongly — that a case involving Bernard Keith Vetter Pro- gilsbarpro.com 800.906.9654 ence and stability must be reintroduced to fessor of Civil Law Studies personal injuries, even when predicated on this vital area of the law and, in turn, to the at Louisiana State Uni- the warranty against vices and defects, is lessor-lessee relationship. versity Paul M. Hebert necessarily an action in “tort.”34 Moreover, Law Center. She joined 9:3221’s application in lieu of 2699 has im- the LSU Law faculty in FOOTNOTES 2008. She received her BS peded the carefully constructed policies of degree, magna cum laude, the new code provision on warranty waivers. 1. This essay is adapted from Professor Melissa in 2001 from Millsaps College and her JD degree in While examples of the conflicts between T. Lonegrass’ article, “The Anomalous Interaction 2005 from Tulane University Law School (Order of 9:3221 and article 2699 are numerous, two Between Code and Statute — Lessor’s Warranty and the Coif, Tulane Law Review). She teaches courses in Louisiana civil law, including obligations, sales warrant special mention. Statutory Waiver,” 88 Tul. L. Rev. 423 (2014). 2. La. Civ.C. arts. 2696, 2697. and leases, and successions, donations and trusts. First, in commercial leases, 9:3221 un- 3. La. Civ.C. arts. 2317.1, 2322. ([email protected]; Louisiana State necessarily restricts the contractual freedom 4. 1996 La. Acts 710. Prior to 1996, owners and University Paul M. Hebert Law Center, 318 Law of the parties to the lease. Under the Civil custodians were strictly liable in tort. Center, Baton Rouge, LA 70803-1000) Code, a waiver of the lessor’s warranty is 5. Traditionally, lessees have favored the contract theory. See Lonegrass, supra note 1, at 444. 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262 December 2015 / January 2016 YOURYOURYOUR ADVOCATE. ADVOCATE. ADVOCATE. YOURYOURYOUR PARTNER. PARTNER. PARTNER. YOURYOURYOUR LSBA LSBA LSBA COMMITTEE. COMMITTEE. COMMITTEE.

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Louisiana Bar Journal Vol. 63, No. 4 263 Portraits & Perspectives: Louisiana Supreme Court Associate Justices

One on One with Louisiana Supreme Court Associate Justice Greg G. Guidry

Interviewed by Margaret E. Judice

264264 DecemberDecember 2015 2015 / /January January 2016 2016 Associate Justice Greg G. Guidry has served on the Louisiana Supreme Court since January 2009. Previously, he was a judge on the Louisiana 5th Circuit Court of Appeal and a district court judge for the 24th Judicial District Court in Jefferson Parish. He was employed in the New Orleans office of Liskow & Lewis, A.P.L.C., as a member of the commercial litigation section. For nearly 10 years, beginning in 1990, he served as an assistant United States attorney with the U.S. Attorney’s Office for the Eastern District of Louisiana. Justice Guidry is a past president of the Judge John C. Boutall American Inn of Court and the Louisiana 5th Circuit Judges Association. He was appointed to the Louisiana Sentencing Commission by Louisiana Gov. Bobby Jindal. He Louisiana Supreme Court Associate Justice Greg G. Guidry and his wife Cathy Guidry on election is the Supreme Court’s representative night. Photo provided by the Guidry Family. to the Louisiana State Law Institute and the Louisiana Commission of Law Enforcement and Administration of a specific idea of exactly what I wanted to daily basis are important and difficult. The Criminal Justice. do as a lawyer, but that is when I decided high volume of work makes it even more He is a 1985 graduate of Louisiana to go to law school. I really never strayed challenging. Yet, the Supreme Court is a State University Paul M. Hebert Law from that goal. Even back then, I could wonderful place to work. Center where he was inducted into the see that lawyers played an integral role in I have been blessed in that I have Order of the Coif and selected for the public life, and I wanted to be a part of that. enjoyed every one of my jobs. I was a Louisiana Law Review. In 2010, he earned It was an easy decision for me. district court judge for six years. Nothing a master’s degree in judicial studies from is more interesting than presiding over a the National Judicial College. Journal: Do you have any lawyers in jury trial. There are critical moments in your family? a trial that are absolutely fascinating to Journal: Tell us a little bit about Guidry: No, my background is much watch. The court of appeal was equally yourself. more blue-collar. One of my grandfathers rewarding. Guidry: I was born and raised in was born on a sugar plantation in Lafourche I must say that I also found my campaign Jefferson Parish where I attended public Parish. He was taken out of school in the to be quite rewarding. My current district schools from the first grade all the way first grade and put to work bringing water covers both sides of Lake Pontchartrain through high school. I attended Louisiana to people working in the cane fields. He from the Mississippi/Louisiana state line State University for my undergraduate later became one of the first bulldozer in the north to the west bank of Jefferson studies and law school. I also earned a operators for Boh Brothers Construction Parish in the south. I now have wonderful master’s degree from the National Judicial Co. in New Orleans. He loved that company friends in six parishes that I remain in close College in judicial studies. and worked well into his 80s. My other contact with. The campaigns allowed me grandfather was an Italian barber. He loved to understand the people and culture of my Journal: What was your undergraduate being with his family and making wine election district in a manner that could not degree? from Japanese plums. be duplicated. Guidry: My major was political science Before I became a judge, I was a with a minor in classical civilizations. I Journal: I noticed in your biography federal prosecutor with the United States was fortunate to be able to study subjects on the website that you have served as a Attorney’s Office in New Orleans. I that interested me. court of appeal judge and now a justice of was there for almost 10 years and could the Supreme Court. What made you decide have made it my career. It was a difficult Journal: At what point in your life did to run for the Louisiana Supreme Court? decision to leave. I prosecuted scores of you decide you wanted to become a lawyer? Guidry: I wanted to serve the people cases involving political corruption, fraud Guidry: In high school. I did not have of Louisiana in the most meaningful way and civil rights violations. Many resulted possible. The decisions we make on a

Louisiana Bar Journal Vol. 63, No. 4 265 in federal jury trials, and I argued cases fines and fees are always moving in before the United States 5th Circuit Court only one direction — up. A first offense of Appeals. I served as a supervisor, ethics misdemeanor charge could lead to a officer and grand jury coordinator. massive financial obligation for someone I began my career in the New Orleans of meager means. Sometimes, we are office of Liskow & Lewis where I was able setting people up to fail. to learn good habits from some of the best lawyers in the nation. Journal: Is there any kind of movement that the judges are pushing for with the Journal: Which judicial position has Legislature to try and make it somewhat been the most challenging? more affordable for the indigent or the Guidry: They are each challenging in lower socioeconomic people? their own way. District court judges are Guidry: Yes. Our Judicial Council is in the middle of the action. They interact currently reviewing each and every cost with the public much more than appellate imposed in criminal cases. It is my hope that court judges on matters that are extremely some could be reduced or eliminated. In the important to the people appearing in their civil context, there is a continuing effort to courts. I have tremendous respect for, and raise money for free legal representation. confidence in, our jury system. It was an Our attorneys have been generous in honor for me to serve as the guide and host donating their time on a pro bono basis. I for jurors while they served in my court. We am extremely proud of them. should never take them for granted. They are called upon to make difficult decisions, Journal: Do you have any advice for and this pressure takes a toll on them. lawyers who are preparing to argue before However, I never met a juror who did not the Supreme Court? Louisiana Supreme Court Associate Justice Greg find the experience gratifying or who did G. Guidry has been riding and showing Western Guidry: Lawyers should be organized, not walk away with a greater appreciation performance horses since he was nine years old. concise and completely accurate in for our system of justice. Photo provided by the Guidry Family. everything they represent to the Court. We Of course, the Supreme Court is much do read the briefs. We do delve into the quieter. However, it is a misconception that work put into these cases by the dedicated record. A misleading or false statement will we live an isolated existence. We interact attorneys involved. They are all difficult inevitably be revealed. Attorneys should with each other, and the members of our and interesting in their own way, but we be able to attribute every factual statement staff, on a daily basis. The Supreme Court are required to pick and choose from the they make to the record on appeal. A enjoys an incredibly bright and dedicated thousands of writ applications we receive surprising number of attorneys cannot group of employees. Quite the opposite every year in accordance with our rules. answer the simple question of whether or from being alone, I am part of a very not a fact they referenced is in the record. impressive team. Journal: I’ve noted that you have basically been in the judicial system since Journal: What part of your seven years Journal: Have any of the cases you the year 2000. Have there been any changes on the Supreme Court have you enjoyed have heard during your service as a or anything noteworthy or significant in the most? Louisiana Supreme Court justice been the practice of law or any other area in the Guidry: I enjoy our collegiality. There particularly significant or stand out in past 15 years? are seven of us, and all seven discuss and your mind? Guidry: The cost of accessing our court vote on every matter that comes before Guidry: The ones that stand out to system has risen to a level which I believe the Court, no matter how important or any judge are those involving the death is not acceptable. Hiring an attorney, and insignificant. We have quite different penalty and the termination of parental litigating a case through the justice system, personalities and philosophies, but we rights. These are the two categories of is beyond the financial reach of many are required to work with each other. We cases that are most likely to cause me to people. I believe that is why the majority know each other’s families, hobbies, likes lose sleep at night because of their extreme of cases settle before trial. It appears to me and dislikes, and it makes us close. This consequences. However, every case is that attorneys and members of the public helps us get through the rough spots. This critically important to those involved. are selectively using our district court collegial atmosphere extends beyond the Our work at the Supreme Court includes judges to resolve significant pre-trial issues justices to include the members of our staff. civil cases involving hundreds of millions on an inevitable path towards settlement. They are all part of the Supreme Court of dollars, matters of constitutional Very few civil cases actually go to trial. family. We have a tremendous amount of importance, and all types of criminal With regard to criminal cases, we respect for each other, and this has been cases. I try to never lose sight of the hard cannot ignore the fact that court costs, very rewarding.

266266 DecemberDecember 2015 2015 / /January January 2016 2016 Journal: If you had not been a lawyer, children. My wife is from Canada. We Journal: Do your children share your what other career do you think you would met while I was in South Africa. She love of horses? have chosen? is an emergency room nurse. She loves Guidry: My children were brought up Guidry: I would have chosen a career in Louisiana! My daughter recently graduated around horses in a way that I could not have the foreign service. In fact, I was offered a from Louisiana State University and is imagined when I was young. But the love position as a Foreign Service Officer with beginning her career as a teacher with the of horses is like the love of sailing or riding the United States Department of State but St. Tammany Parish Public School System. motorcycles. You are either born with that turned it down to become a judge. I love My son is in high school. He has always affection or you are not. If you are, nothing traveling and suffer from wanderlust. wanted to be a firefighter, and I believe that can replace it. They have little interest in When I was in law school, I was awarded he will actually become one. He is only riding horses at all, but my wife does. So a Rotary Foundation Scholarship for 16, but he has already been taken in by there were many times over the years when International Understanding. I spent a our local fire department. He works entire the kids were inside watching television year in South Africa where I studied shifts and goes on calls. However, he is while we were outside riding horses. Can classical civilizations and Roman law not allowed to go into a burning building, you imagine that? at the University of the Witwatersrand. much to his chagrin. His parents have no This was where Nelson Mandela earned problem with that restriction. Both of our Journal: How many horses do you have? his law degree many years earlier. When children are public service-oriented, and Guidry: We have three horses, two dogs, I was with the United States Department that makes us proud. three cats, four chickens and about 30 cows of Justice, I served as a legal advisor and on a farm in St. Tammany Parish. Do you trial advocacy instructor to the Republic of Journal: Is there anything fun or think that is enough? South Africa and the United States Virgin interesting about you that we do not know Islands. I have also helped to train judges that you care to share with us? Margaret E. Judice is a and prosecutors in the African nation of Guidry: Most people do not know that partner in the Franklin law firm of Aycock, Horne Malawi as they come to grips with complex I have been riding and showing Western & Coleman. She has been financial fraud and corruption cases. performance horses since I was nine years a member of the Louisiana old. It has been the greatest constant in my Bar Journal’s Editorial Journal: I would like to lighten things life and something I could not do without. It Board for several years. (margaretjudice@cox- up a bit. Tell us about your family. is my great passion and the perfect escape. internet.com; P.O. Box 592, Guidry: I am married and have two Franklin, LA 70538-4101)

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

Louisiana Bar Journal Vol. 63, No. 4 267 Book Review Dictionary of the Civil Code Translation under the supervision of Alain A. Levasseur and Marie-Eugénie Laporte-Legeais

Reviewed by Benjamin West Janke

he year 2014 was a busy one for legal lexicographers. Bryan Garner’s extensive undertaking of adding 7,500 new entries to his fourth unabridged edition of Black’s Law Dictionary (10th ed.) illustrates that the work of defining the law is never complete. But there is Tanother impressive work of legal scholarship that should be particularly appealing to the Louisiana lawyer: the Dictionary of the Civil Code. At its root, the Dictionary of the Civil Code is an English translation of more than 1,600 civil law concepts in the French Vocabulaire juridique, first published in 1936 under the direction of Henri Capitant and later revised extensively under the supervision of Gérard Cornu, dean of the University of Poitiers Law School. The Vocabulaire juridique was translated into the Dictionary of the Civil Code under the supervision of Alain A. Levasseur, leading the Louisiana team, and Marie-Eugénie Laporte-Legeais, leading the Poitiers-Juriscope team at the University of Poitiers. A close study of the Dictionary reveals that it is so much more than a translation: it is an essential tool for exploring the civil law of France through a Louisiana lens.

268 December 2015 / January 2016 While the enormity of this translation was adopted. tion series, to Planiol’s Civil Law Treatise project is self-evident, the difficulty is un- Purists will especially appreciate the in- and to the Dictionary of the Civil Code — derscored by Cornu’s preface of the Vocab- clusion of translations to avoid. For the law- one might be misled into thinking that the ulaire: “Monolingual and monolithic, this yer who maligns the square peg/round hole origin of any civilian expression is exclu- work draws only from the French language organization of Louisiana legal concepts in sively French. To the contrary, other ambi- and expresses only the French juridical the West Key Number System (see, e.g., tious endeavors such as the Louisiana Civil system.” In other words, “keep out” if you predial servitudes under “easements”), re- Code Translation Project by the Center of are not the intended audience. spite can be found in the direction to avoid Civil Law Studies at Louisiana State Uni- The lexicographer’s pursuit of preci- the term “joint and several” under solidari- versity Paul M. Hebert Law Center dem- sion is often at odds with the limits of literal té, or “merger” under confusion. onstrate that the civil law originates — and translation. This tension is clear in the way Should the Louisiana lawyer shelve evolves — in multiple languages. As the courts interpreted Louisiana’s 1808 Digest Black’s in preference to this bespoke dic- translators proudly observe: “After all, we of Civil Laws and the 1825 Civil Code, tionary for the civilian? Not exactly. The are, and have long been, English-speaking both of which were originally drafted in Dictionary of the Civil Code will not help civilians!”7 French and translated into English. Even the bemused law student to understand Readers will find that the Dictionary of though there was no legislative provision what it means to say that “[t]he propinqui- the Civil Code is much more than a trans- for the resolution of conflicts between the ty of consanguinity is established by the lation of a dictionary. While it will surely French and English texts of the 1825 Code, number of generations,”4 but Black’s will. find its way into the footnotes of countless the prevailing view among courts was that In fairness to West Publishing, the influ- briefs where a lawyer “just needs a defini- the original French text was controlling.1 ence and contributions of Louisiana jurists tion,” the enlightened jurist will use it as a As Louisiana’s adherence to French au- who have served on its panel of academic springboard for further exploration of the thority eroded, and the influence of the contributors are evident. But, the audience civil law. common law in Louisiana reached its for “the most widely cited lawbook in the peak, E.D. Saunders sought to rekindle the world”5 is not the same as that of the Vo- FOOTNOTES French connection as he wrote in his Pref- cabulaire juridique or of the Dictionary of ace to the 1909 edition of the Louisiana the Civil Code. For the Louisiana lawyer, 1. A.N. Yiannopoulos, The Civil Codes of Louisi- Civil Code: “There is probably no legal the Dictionary of the Civil Code is a helpful ana, in the La. Civ.C. LVII (2015). 2. E.D. Saunders, The Law of Louisiana, in La. literature in the world so rich and instruc- companion to Black’s. Civ.C. xxxv-xxxvi (1909). tive as that of modern France.”2 A hundred The Dictionary of the Civil Code should 3. Alain A. Levasseur and J. Randall Trahan, Our years later, in spite of the “monolingual” be regarded for what it is and not confused Approach to Translation, in Dictionary of the Civil and “monolithic” nature of the Vocabu- with what it is not. It is not, strictly speak- Code XIII (2014). 4. La. Civ.C. art. 900. laire, translators Levasseur and J. Randall ing, a primary source of Louisiana law. 5. Bryan A. Garner, “The Tortuous Tale Behind Trahan acknowledge and adopt in their ap- Likewise, it is not a compendium of every the 10th Edition of the Most Widely Cited Lawbook proach to translation the more encouraging civilian concept found in the Louisiana ju- in the World,” ABA Journal (May 2014). and inviting words of Cornu, who wrote risprudence. To consider it as such neglects 6. Alain A. Levasseur and J. Randall Trahan, Our Approach to Translation, in Dictionary of the Civil that “language of the law is a public, social the multiple sources from which Louisiana Code XIII (2014). language, a civic language” and that “the law is drawn and the evolution of certain 7. Alain A. Levasseur and J. Randall Trahan, Our language of the law is, to a major extent, a concepts that are indigenous to Louisiana. Approach to Translation, in Dictionary of the Civil legacy of tradition.”3 It is, however, a window to understand- Code XIII (2014). Instead of lamenting the shortcomings ing civil law terminology in a format that Benjamin West Janke is an of literal translations, the translators in- invites the reader to learn more about the attorney in the New Orleans clude fundamental and essential meanings foundations from which much of Louisi- office of Baker, Donelson, of the entries, together with reference to the ana law was built. The translators’ reasons Bearman, Caldwell & Berkowitz, P.C., where he subject matter and related concepts, and ci- for including references to the Louisiana focuses in business litiga- tation to French and Louisiana authorities. Civil Code in the otherwise “monolithic” tion and intellectual prop- This is where the work of the translators Vocabulaire “are meant to stress that the erty law. He received a BS truly shines, and where the reader can em- French juridical system, at least insofar as degree, magna cum laude, in 2004 from Vanderbilt bark upon a deeper study more suitable for the ‘civil law’ part of it is concerned, is not University, a master of edu- the Louisiana legal scholar. A citation to the only juridical system to be expressed cation degree in 2005 from peremption, for example, invites the reader in the Vocabulaire and, further, that the Vanderbilt University and to compare the concepts of forclusion, dé- French language is not the only language his JD/BCL degrees, magna cum laude, in 2008 from Louisiana State University Paul M. Hebert Law Center chéance, prescription extinctive, and cadu- in which the concepts/notions addressed in (Order of the Coif and Law Review). He is treasurer of cité. Turn a few pages back and the entry the Vocabulaire may be expressed.”6 the Louisiana Supreme Court Historical Society and a for Paulien (for a Paulian action) gives Given the continued efforts to translate member of the Louisiana Chapter of the Association reference to Louisiana Civil Code article the French civil law into English over the Henry Capitant. ([email protected]; Ste. 3600, 201 St. Charles Ave., New Orleans, LA 70170) 2036 (on revocatory actions), and the Ro- past several decades — from the Louisiana man praetor Paulus for whose namesake it State Law Institute’s Civil Law Transla-

Louisiana Bar Journal Vol. 63, No. 4 269 Association Actions ATJ... MCLE... Specialization

Louisiana Justice Community Conference Focuses on Innovation and Technology The 12th annual Louisiana Justice Com- with a pre-conference focused on enhancing munity Conference (LJCC) in October in child advocacy skills in dependency cases. Baton Rouge focused on innovation and The Louisiana Bar Foundation sponsored technology. and hosted a training event for board mem- When advances in technology and bers of their grantee organizations on the innovation are changing the way people second day of the conference. think and work, almost daily, civil legal aid New this year, two civil legal aid awards providers are learning and incorporating were presented. new methods of delivering legal services Sachida R. Raman, managing attorney that directly increase access to justice. Some of the Family Law Unit at Acadiana Legal come in the form of new models, such as Services Corp., received the Legal Service Southeast Louisiana Legal Services’ “Single Two awards were presented at the 12th annual Loui- Excellence in Advocacy Award for his siana Justice Community Conference. Sachida R. Stop Project” that offers direct legal services Raman, left, managing attorney of the Family Law dedication to representing vulnerable clients on-site at Delgado Community College to Unit at Acadiana Legal Services Corp., received the for more than 20 years and his outstand- at-risk students, including financial planning Legal Service Excellence in Advocacy Award for ing work in increasing access to the court consultation and expungements. Others his dedication to representing vulnerable clients system. Raman’s development and review for more than 20 years. Southeast Louisiana Legal come in the form of new technology such as Services, represented by Jay Welch, right, received of form pleadings provided at court-based, Justice and Accountability Center of Loui- the Legal Service Innovation Award for its Single self-help desks and 11 individual court siana’s “Clean Jacket” app that helps users Stop Project that offers direct legal services on-site websites throughout the state have changed determine whether they can get a criminal at Delgado Community College to at-risk students. the landscape for self-represented litigants conviction expunged under Louisiana law. Innovation Clinic at Loyola University Col- in Louisiana. These innovators, along with more than 150 lege of Law, delivered the keynote address, The Legal Service Innovation Award public interest attorneys and advocates from discussing technology and the future of legal was presented to Southeast Louisiana Legal around the state, participated in the annual services. He also answered the top-of-mind Services’ “Single Stop Project,” discussed conference. question: “Are Robots Coming for Your above. To date, Single Stop has helped nearly Hosted by the Louisiana State Bar Asso- Jobs?” Fortunately, he answered with a firm 1,000 students stay on track by addressing ciation’s (LSBA) Access to Justice Program, “no” while recognizing the improvements a legal crisis. the two-day statewide conference joins all made to the practice of law through the use Also new this year, TED-style talks aspects of the civil legal aid community to of technology. with four short presentations on innovative discuss and address issues related to the Additional programming covered models for delivering legal services were delivery of legal services in Louisiana to substantive, public-interest-focused topics presented over an hour time period. The low-income residents. ranging from new eviction protection laws presentations were designed to be precise On the heels of the initiatives of LSBA for domestic violence victims to public and inspire attendees on ways in which President Mark A. Cunningham, the focus of benefits and interdiction law. The conference new models can be developed to address this year’s conference was the transformative provided effective advocacy skills training the legal needs of Louisiana’s most vulner- power of the legal profession and civil legal on such topics as advanced direct and cross- able citizens. aid with an eye toward new and innovative examination and communication skills for The conference hosted participants from methods for delivering legal services. trial and beyond. In keeping with the theme, the state’s three legal service programs and The conference opened with welcome a panel on technology showed attendees how nonprofit public interest firms, including remarks from Cunningham and Louisiana apps are not only increasing access to justice, the Advocacy Center, Greater New Orleans Bar Foundation President H. Minor Pipes III. but also increasing efficiency. Fair Housing, the Louisiana Civil Justice R. Judson Mitchell, clinical professor On the first day, the conference offered Center, AIDSLaw and the Mental Health and creator of the Technology and Legal Children in Need of Care (CINC) attorneys Advocacy Center.

270 December 2015 / January 2016 Supreme Court Establishes Access to Justice Commission The Louisiana Supreme Court, by court ongoing work with the creation of this about the importance of equal access to order, established the Louisiana Access commission. Through the ATJ Commis- justice and the challenges many face in ef- to Justice (ATJ) Commission, said Chief sion, the Supreme Court and the LSBA fectively accessing the civil justice system Justice Bernette Joshua Johnson. will work in concert, promoting effective in Louisiana; The mission of the ATJ Commission is and economical civil legal services delivery ► developing a strong statewide civil to ensure continuity of policy and purpose for low and moderate income citizens of legal services delivery system by licensed in the collaboration between the Louisi- Louisiana,” Chief Justice Johnson said. attorneys; ana State Bar Association (LSBA), the The ATJ Commission will operate as ► developing and recommending courts and the civil justice community in a standing committee of the LSBA, con- initiatives intended to maximize resources furtherance of the goal to ensure that all sisting of 21 voting members appointed and funding for access to justice in civil Louisiana citizens have access to equal by the LSBA president and the Supreme matters and to encourage efficient use of justice under the law. Court chief justice. Members will represent the available resources; “Recognizing the importance of civil diverse ethnic, gender and geographic com- ► recommending initiatives to reduce equal justice to the proper functioning of munities of Louisiana. Lawyers serving on systemic barriers to access to justice, our democracy, and the need for leadership the commission will have demonstrated a including enhancing resources for self- and effective coordination of civil justice commitment to access to justice issues and represented litigants; and efforts in our state, the Supreme Court was will reflect the various types of legal aid ► encouraging members of the bar to pleased to support the outstanding work of providers in Louisiana. provide pro bono legal services as a regular the LSBA’s Access to Justice Committees Some of the commission’s goals are: component of their practices. and to encourage the continuation of that ► educating the people of Louisiana LBLS Accepting Requests for Applications The Louisiana Board of Legal Specialization, a Louisiana State ► Tax Law — 20 hours of Specialization (LBLS) is currently Bar Association member in tax law. accepting requests for applications for good standing who has been ► Bankruptcy Law January 2017 certification in five areas — engaged in the practice of — CLE is regulated by bankruptcy law (business and consumer), law on a full-time basis for the American Board of estate planning and administration, family a minimum of five years Certification, the testing law and tax law. The deadline to submit may apply for certification. agency. applications for consideration for estate Further requirements are Regarding applications planning and administration, family that each year a minimum for business bankruptcy law law and tax law certification is March of 35 percent of the attorney’s and consumer bankruptcy law 31, 2016. Applications for business practice must be devoted to the area certification, although the written bankruptcy law and consumer bankruptcy of certification sought, passing a written test(s) is administered by the American law certification will be accepted through examination applied uniformly to all Board of Certification, attorneys should Sept. 30, 2016. applicants to demonstrate sufficient apply for approval of the Louisiana Board With the expanding complexity of the knowledge, skills and proficiency in the of Legal Specialization simultaneously law, specialization has become a means area for which certification is sought, and with the testing agency in order to avoid of improving competence in the legal five favorable references. Peer review delay of board certification by the LBLS. profession and thereby protecting the shall be used to determine that an applicant Information concerning the American public. An increasing number of attorneys has achieved recognition as having a Board of Certification will be provided are choosing to be recognized as having level of competence indicating proficient with the application form(s). special knowledge and experience by performance handling the usual matters Applications are mailed. Anyone becoming certified specialists. As a matter in the specialty field. interested in applying for certification of practical necessity, most lawyers In addition to the above, applicants should contact LBLS Executive Director specialize to some degree by limiting must meet a minimum CLE requirement Barbara M. Shafranski, email barbara. the range of matters they handle. Legal for the year in which application is made [email protected], or call (504)619- specialization helps the general public and the examination is administered: 0128. For more information, go to the locate a lawyer who has demonstrated ► Estate Planning and Administration LBLS website at: https://www.lascmcle. ability and experience in a certain field Law — 18 hours of estate planning law. org/specialization. of law. ► Family Law — 18 hours of family In accordance with the Plan of Legal law.

Louisiana Bar Journal Vol. 63, No. 4 271 LBLS Amends MCLE Committee Can Assist with LSBA Plan of Legal Hardship Provisions for MCLE Credits Specialization to Add Preliminary transcripts of 2015 at- Hymel — fax (504)828-1416; email kit- Appellate Practice torney MCLE credits were mailed at the [email protected]; or regular mail to end of November. MCLE Committee, Ste. 355, 2800 Veter- Specialty LSBA members facing undue hard- ans Memorial Blvd., Metairie, LA 70002. ships (such as disability, sickness or Members are required to provide minor An amendment to the Louisiana State other clearly mitigating circumstances) documentation, including the basis for Bar Association’s (LSBA) Plan of Legal that are preventing them from earning the requests. The requests are reviewed Specialization to add a new specialization their CLE hours before year’s end should by a three-person subcommittee. All certification in Appellate Practice was ap- contact the MCLE Committee. Depend- requests are confidential. The committee proved by the Louisiana Supreme Court. ing on the severity of the situation, the is currently reviewing requests, so there An Appellate Practice Advisory Com- committee can grant extensions of time, is no need to wait until next year before mission has been appointed and is currently credit substitutions, late-fee waivers and seeking assistance. working on implementing the specialty. sometimes a complete waiver of the yearly If problems are financial, the committee The Louisiana Board of Legal Special- requirement. But the committee needs to will direct members to free or low-cost ization (LBLS) anticipates accepting be aware of the specific situations as soon CLE programs. Availability of these pro- applications for certification in Appellate as possible. grams at the end of the year is limited, so Practice in 2016. Members needing assistance should members are encouraged to contact the A copy of the amended Plan of Legal contact MCLE Committee Director Kitty committee as soon as possible. Specialization and the Appellate Practice Standards may be downloaded from the LBLS website at https://www.lascmcle. org/specialization. For more information or if you are interested in applying for this certification, email LBLS Executive Director Barbara LSBA Launching Online M. Shafranski, barbara.shafranski@lsba. org. TECHCENTER in January Preparations are underway for the January 2016 launch of the Louisiana Bar 101 State Bar Association’s (LSBA) online online video series TECHCENTER, a virtual comprehensive resource just a click away on the LSBA’s To see Bar 101 videos, visit website. Accessible to all LSBA members, tech training through the Chicago Bar www.lsba.org/Members/bar101.aspx from the tech savvy to the not-so-tech Association’s online “How To” video savvy, the TECHCENTER will become library. the one-stop shop for legal technology ► Registering for tech-related CLE The Bar 101 Video Series offers a news and guidance to improve the and non-CLE programming and tech quick look inside different aspects efficiency and productivity of law webinars. of the LSBA. Learn about new and practices. The TECHCENTER is an initiative of noteworthy LSBA projects, free Through the TECHCENTER, LSBA LSBA President Mark A. Cunningham. professional services offered by members will be offered assistance in: “Technology is dramatically affecting the Bar, and how the Association ► Choosing the right technology for lawyers and the practice of law, and can aid in everyday practice law practices via product directories, this powerful trend will continue for the management. Everyone can learn product reviews by lawyers, video clips foreseeable future,” Cunningham said. something new from this series, and podcasts by lawyers, articles and “Lawyers in Louisiana who need help from the newest LSBA members to books. integrating technology into their practices the most seasoned attorneys. ► Accessing general tech training can benefit from the TECHCENTER, with free, anywhere, anytime, on-the-spot which promises to be a practical, videos and written materials. comprehensive resource for learning how ► Accessing detailed, lawyer-centric to harness digital technology.”

272 December 2015 / January 2016 PracticeManagement By Johanna G. Averill Malpractice policy enhancements

he Louisiana State Bar Asso- such Insured’s attendance at the gal research materials or the ciation (LSBA) has approved Company’s written request . . . presenter of legal seminars several enhancements proposed not to exceed $50,000 ...... where such services are by CNA to the bar-endorsed 2. Disciplinary Proceedings — performed without compensa- LawyersT Professional Liability insurance The Company will reimburse tion or compensation . . . is less policy form. New and renewal policies the Named Insured up to than $25,000. processed Nov. 1, 2015, or after will be $50,000 for each Insured . . . for more robust. A few of the improvements attorney fees and other reason- 5. The Insuring Agreement Settlement are listed below. able fees paid to third parties . . . section has deleted the “hammer clause” In the event of a determination so that if an insured refuses to settle a claim 1. The Risk Management Incentives of No Liability . . . the Company acceptable to the company and claimant, section of the policy was amended to read: shall reimburse fees, including the insured is no longer personally liable those in excess of the $50,000 for any amounts of a later judgment in Engagement Letters — If the Insured cap, up to $100,000. excess of the proposed settlement. utilized an engagement letter in connection with the legal services that are the subject 3. The definition of “Insured” has been 6. The Limits of Liability & Deduct- of a claim . . . then the Insured’s deductible expanded and now provides: ible section added a provision that no applying to such claim will be reduced by deductible will be charged for malpractice 50% up to a $25,000 maximum reduction, “Insured” means: claims arising from firm preapproved pro provided the engagement letter includes: A. any lawyer (including a gov- bono work. 1. a specific description of the ernment affairs advisor or scope of legal services to be lobbyist), partnership, profes- 7. Pro bono work and acting solely performed by the Insured; sional corporation . . . who is as a mediator or arbitrator will not be 2. the identity of all clients for or becomes a partner, officer, considered the “private practice of law” whom the Insured agreed to director, stockholder-employee, for purposes of terminating the Non- perform such legal services; associate, manager, member or Practicing Extended Reporting Period. 3. the fee arrangement for such employee . . . . legal services; . . . To see these actual enhancements and 4. a description of the Named F. the spouse or domestic partner policy language, make sure you read the Insured’s file retention and of an Insured, but only to the policy when it first arrives or at renewal. destruction policy; and extent that such Insured is These enhancements will allow you to 5. was signed by all clients provided coverage under this practice with fewer worries. identified in such engagement Policy. letter prior to the Insured’s com- Johanna G. Averill is mencement of representation of 4. The definition of “Legal Services” professional liability loss prevention counsel for such clients . . . but in no event has also been expanded and now provides: the Louisiana State Bar more than thirty (30) days after Association and is em- the commencement . . . . “Legal Services” means: ployed by Gilsbar, L.L.C., D. . . . services performed . . . as in Covington. She received her BS degree in marketing 2. The Supplementary Payments sec- an expert witness, provided in 1982 from Louisiana tion of the policy increased the reimburse- Insured was retained to offer State University and her JD ment and now reads: expert opinion on issues related degree in 1985 from Loyola to the law, legal procedure or University Law School. In her capacity as loss prevention counsel, she lectures 1. Loss of Earnings — The practice, or the legal profes- on ethics as part of Mandatory Continuing Legal Company will reimburse each sion; or Education requirements for attorneys licensed to Insured up to $500.00 for loss E. . . . services performed . . . as practice law in Louisiana. Email her at javerill@ of earning for each day . . . of an author or publisher of le- gilsbar.com.

Louisiana Bar Journal Vol. 63, No. 4 273 lawyAssistanceers By J.E. (Buddy) Stockwell LAP is now JLAP

he Lawyers Assistance Program, Judges and Lawyers Assistance This letter provides a direct view of many Inc. (LAP) is now the Judges and of the core issues that JLAP encounters Lawyers Assistance Program, Program, Inc. (JLAP) every day in helping members of the profes- Inc. (JLAP). The program has Your call is absolutely confidential sion: 1) the power of alcoholism can kill if as a matter of law. alwaysT helped both lawyers and judges and left untreated; 2) material success as a lawyer now the new name formally recognizes that Toll-free (866)354-9334 will not provide a defense to alcoholism nor JLAP provides direct, confidential services www.louisianajlap.com will it buy happiness; and 3) reaching out to the judiciary. Email: [email protected] for help from JLAP can be hard, even when Members of the bench and bar are en- the person has had a near death experience couraged to contact JLAP for confidential Dear Buddy: and knows he/she needs help. assistance in addressing any concerns What JLAP sees foremost in the above about the mental health of a member of I thank you and all of your staff for miracle, and many more like it, is one the judiciary. Early intervention is the key your help over the last couple of years. simple truth: If an alcoholic or addict will to saving lives and careers and the key to Due in no small part to your efforts, I am just have faith for that one moment and protecting the public and the profession. happy and healthy, both personally and reach out to JLAP, a seemingly irreparable JLAP also has introduced its new web- professionally, for the first time in decades. and broken life can often be fully restored. site: www.louisianajlap.com. No matter how far down the scale one has The comprehensive website has infor- My story is not uncommon. I started fallen into alcoholism or addiction, there mation for judges, lawyers, law firms, law drinking as a teen and continued until is a confidential path at JLAP that can lead students and family members. The site has mid-2013. Through innate talent and a lot back to health and happiness. links and resources on the most common of hard work, I built a law practice that Visit the website at www.louisianajlap. mental health issues challenging the legal was very successful, both professionally com and know that JLAP’s confidential profession, allowing those seeking infor- and financially, despite the booze. It had help and assistance is one simple call or mation to discretely investigate issues on its effect in the social and family spheres, email away! their own in total privacy. There are links but I stayed out of trouble with my peers to “self-tests” that members of the bench and the legal system. I also frittered away J.E. (Buddy) Stockwell is and bar can individually utilize to explore an awful lot of money in my attempt to buy the executive director of happiness. My alcoholism finally caught the Judges and Lawyers the possibility that they or someone they Assistance Program, Inc. know may be experiencing difficulty and up with my practice about five years (JLAP) and can be reached should reach out to JLAP. ago, leaving me broke, despondent and at (866)354-9334 or via Day in and day out, behind the scenes physically ill. I found myself in a hospital, email at LAP@louisian- alap.com. and absolutely out of anyone else’s view, almost dead. JLAP works tirelessly to literally save lives, families and legal careers. When I was discharged from the hos- Due to strict confidentiality, and rightly pital, several friends recommended that so, the public and the profession do not I speak with you. After a lot of initial have direct views of the genuine miracles resistance on my part, I finally came to of personal recovery that have taken place see you. An afternoon with you and Leah at JLAP. literally changed my life. At your sugges- JLAP receives a volume of confidential tion, I sought inpatient rehab. While I was “thank you” letters and notes. The majority there, you even came to visit. That meant Your call is of people prefer to keep their mental health a lot to me. I am now able to practice and issues private, but, once in a great while, a to live and deal with the stresses that occur absolutely person wants to share the JLAP experience. in life without using. This “thank you” letter is from a person confidential as who had an extremely close brush with Again, many thanks. If I can ever help death and finally reached out to JLAP: in any way, please call me. a matter of law.

274 December 2015 / January 2016 FocusDiversity on Recapping Events

Presenters for “The Impact of Obergefell v. Hodges: What Does the Future Hold?,” included, from left, Rachel W. Wisdom, Stone Pigman Walther Wit- tman, L.L.C.; Scott J. Spivey, Landry & Spivey; and Ryan P. Delaney, Delaney & Robb.

The final CLE in a five-part diversity series with the Louisiana Attorney Disciplinary Board was Sept. 30 in Alexandria. Front row from left, Alexandria Mayor Jacques M. Roy and presenter Travis J. Broussard. Free CLE Addresses Back row from left, Louisiana State Bar Association Secretary Alainna R. Mire and presenter Lynn Luker. Obergefell v. Hodges The Louisiana State Bar Association Fifth CLE in Diversity Series Presented Diversity Committee’s LGBT Subcom- The fifth and final CLE program in the seminars, coordinated the team of LSBA mittee sponsored a free CLE, “The Impact five-part diversity series with the Louisiana facilitators to bring the seminar to more of Obergefell v. Hodges: What Does the Attorney Disciplinary Board (LADB) was than 1,400 attorneys in five locations across Future Hold?,” on Oct. 8 in New Orleans, conducted on Sept. 30 in Alexandria. Louisiana. addressing the developing issues resulting Attorneys Lynn Luker with the Law The first program was in April in Shreve- from the landmark U.S. Supreme Court Offices of Lynn Luker, L.L.C., and Travis port, facilitated by attorney I.J. Clark-Sam. decision allowing gay couples to marry. J. Broussard with Durio, McGoffin, Stagg In May, Administrative Law Judge Kelly Seminar presenters Professor Paul R. & Ackermann facilitated the presentation McNeil Legier and attorney Chauntis T. Baier (Louisiana State University Paul “Minimizing the Impact of Unconscious Jenkins spoke about generational differ- M. Hebert Law Center), Ryan P. Delaney Bias in Decision Making.” ences to the attendees in Baton Rouge. (Delaney & Robb), Scott J. Spivey (Landry In partnership with the LADB, the In June in Kenner, attorneys Cherrilynne & Spivey) and Rachel W. Wisdom (Stone Diversity Committee’s Diversity Integra- Washington Thomas and Luker discussed Pigman Walther Wittmann, L.L.C.) dis- tion Subcommittee presented the series of the impact of unconscious bias. The fourth cussed topics including adoption, divorce, one-hour diversity CLE seminars. Luker, CLE in July in Lafayette was facilitated by step-parent adoption, estate planning and a frequent presenter of LSBA diversity Luker and Broussard. employment benefits.

Save the dat e

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

Louisiana Bar Journal Vol. 63, No. 4 275 Crossword Puzzle By Hal Odom, Jr. A Two-Way Street

1 2 3 4 5 6 7 ACROSS DOWN

1 Kind of property that may be 1 Imitate (5) pledged (7) 2 Easily bought, as a politician (5) 8 5 Breast or intimacy (5) 3 Succumbs to flames, as a house (5, 4) 8 Such as Libertarian, Green or 4 Threaten to harm someone, Bull Moose (8, 5) for a price (6) 9 __-de-sac (3) 5 A swat in the head; early form of jazz (3) 9 10 11 10 Give up, as for adoption (9) 6 Long, vigorous steps (7) 12 The correlative of “loan” 7 Pertaining to the chief executive of or “lend” (6) a city or town (7) 12 13 14 14 Type of engine, fuel or 11 Pertaining to the outer layer of locomotive (6) the skin (9) 15 16 Baseless or unsound, as a 12 “__-__ Law,” former name of legal argument (9) Louisiana Securities Law (4-3) 16 17 18 17 “___ Talks,” a trendy conference 13 Round building, loosely used to describe of 18-minute lectures (3) dome of the Old State Capitol (7) 19 Bilateral, as a civil-law 15 Fancy word for “get” (6) contract (13) 17 The losing side in an infamous 19 20 21 Fifty-two week periods (5) Rwandan conflict (5) 22 Invalidity that may be absolute 18 Wooden duck (5) or relative (7) 20 Miles of LSU football (3)

21 22

Answers on page 319.

Alcohol and Drug Abuse Hotline Director J.E. (Buddy) Stockwell III, 1(866)354-9334 1405 W. Causeway Approach, Mandeville, LA 70471-3045 • email [email protected]

Alexandria Steven Cook...... (318)448-0082 Lake Charles Thomas M. Bergstedt...... (337)558-5032

Baton Rouge Steven Adams...... (225)921-6690 Monroe Robert A. Lee.....(318)387-3872, (318)388-4472 . (225)926-4333 David E. Cooley...... (225)753-3407 New Orleans Deborah Faust...... (504)304-1500 John A. Gutierrez...... (225)715-5438 Donald Massey...... (504)585-0290 .(225)744-3555 Dian Tooley...... (504)861-5682 . (504)831-1838 Lafayette Alfred “Smitty” Landry...... (337)364-5408 . (337)364-7626 Shreveport Michelle AndrePont ...... (318)347-8532 Thomas E. Guilbeau...... (337)232-7240 Nancy Carol Snow...... (318)272-7547 James Lambert...... (337)233-8695 William Kendig, Jr...... (318)222-2772 .(337)235-1825 .(318)572-8260 (cell) Steve Thomas...... (318)872-6250

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

276 December 2015 / January 2016 FocusProfessionalism on 16th round of orientations

160+ Attorneys, Judges Participate in Law School Professionalism Orientations or the 16th consecutive year, the Guidry, Jefferson D. Hughes III and John L. Following the opening remarks, the law Louisiana State Bar Association’s Weimer; 5th Circuit Court of Appeal Judge students were divided into smaller groups, (LSBA) Committee on the Profes- Fredericka H. Wicker; LSBA Committee on where they discussed various ethics and sion hosted law school orientations the Profession Chair Barry H. Grodsky and professionalism scenarios with attorney Fon professionalism at Louisiana’s four law committee member Bobby J. Delise; and and lawyer volunteers. schools. More than 160 attorneys and judges American Bar Association representative This orientation program, inaugurated in from across the state participated in the Maurine W. Laborde. August 2000, has been institutionalized as programs in August. Also addressing students were Louisi- a yearly project for the LSBA and the law LSBA President Mark A. Cunningham ana State University Paul M. Hebert Law schools. The deans and admissions staffs of led an impressive list of speakers addressing Center Associate Dean Gregory Smith, the law schools have been accommodating first-year law students at the outset of the Loyola University College of Law Interim in assisting with the logistical challenges of programs. Other speakers included LSBA Dean Lawrence W. Moore, S.J., Southern putting this program together. Immediate Past President Joseph L. (Larry) University Law Center Interim Chancellor Attorneys and judges volunteering their Shea, Jr.; Louisiana Supreme Court Justices, John K. Pierre and Tulane Law School Dean services this year were: Marcus R. Clark, Scott J. Crichton, Greg G. David D. Meyer.

Louisiana State Judge Randall L. Bethancourt S. Guy deLaup John Clay Hamilton University Paul M. Judge James J. Brady Bobby J. Delise Lila T. Hogan Hebert Law Center Jessica G. Braun Bridget B. Denicola Michael E. Holoway Lisa M. Africk Travis J. Broussard L. Paul Foreman Philip J. House Bradley J. Aldrich Andrew M. Casanave John M. Frazier Katherine L. Hurst Jesse H. Bankston, Jr. Judge Marilyn C. Castle Todd E. Gaudin Susan R. Kalmbach Judge (Ret.) Jerome J. Barbera III Mark A. Chavez Stephen W. Glusman Judge (Ret.) Charles W. Kelly IV Leah A. Barron Angelina Christina Tyler P. Gray Gary P. Kraus Russell W. Beall Jeffrey K. Coreil Barry H. Grodsky Continued next page

Louisiana State University Paul M. Hebert Law Center: Associate Dean Gregory Smith opened the orientation program. Other panelists included Louisiana State Bar Association (LSBA) Immediate Past President Joseph L. (Larry) Shea, Jr., LSBA Committee on the Profession Chair Barry H. Grodsky and committee member Bobby J. Delise, and Louisiana Supreme Loyola University College of Law: Louisiana Supreme Court Justice Jefferson Court Justices Marcus R. Clark and Scott J. Crichton. D. Hughes III participated in one of the breakout sessions.

Louisiana Bar Journal Vol. 63, No. 4 277 Southern University Law Center: Participants included, from left, Vice Tulane University Law School: Dean David D. Meyer opened the orientation Chancellor Russell L. Jones, Academic Affairs; Barry H. Grodsky, chair of program. Also on the panel were, from left, ABA Representative Maurine the Louisiana State Bar Association’s (LSBA) Committee on the Profession; W. Laborde, 5th Circuit Court of Appeal Judge Fredericka H. Wicker, LSBA President Mark A. Cunningham; Interim Chancellor John K. Pierre; Louisiana Supreme Court Justice Greg G. Guidry, Louisiana State Bar As- Louisiana Supreme Court Justice John L. Weimer; SULC SBA President sociation (LSBA) President Mark A. Cunningham and LSBA Committee on Patrick Harrington; and Vice Chancellor Roederick White, Student Affairs. the Profession Chair Barry H. Grodsky.

Paulette P. LaBostrie Caitlin R. Byars Southern University Judge Jerry A. Brown Robert C. Lehman Michael G. Calogero Law Center Christopher E. Carey David A. Lowe Sandra K. Cosby Rashida D. Barringer Lauren E. Checki Gregory K. Moroux Bobby J. Delise Virginia G. Benoist Kevin J. Christensen Gregory K. Moroux, Jr. Judge Dee D. Drell Alfreda T. Bester Leonard A. Davis Judge William A. Morvant Ashley A. Edwards Judge Paul A. Bonin S. Guy deLaup Judge Pamela A. Darryl J. Foster Harley M. Brown Judge Dee D. Drell Moses-Laramore Lauren E. Godshall Monique M. Edwards Richard M. Exnicios Frank X. Neuner, Jr. Barry H. Grodsky Douglas K. Foster Judith A. Gainsburgh Tammy P. Northrup Judge (Ret.) John C. Grout, Jr. Lisa A. Freeman Lauren E. Godshall Charles B. Plattsmier Hunter P. Harris IV E. Phelps Gay David Greenberg Judge Patrick F. Robinson Jessica W. Hayes Eugene G. Gouaux III Judge Piper D. Griffin Sera H. Russell III Christy M. Howley Judge Roxie F. Goynes Barry H. Grodsky Rene I. Salomon Teresa D. King Barry H. Grodsky Mark E. Hanna Judge John D. Saunders Nahum D. Laventhal Michael E. Holoway Michael E. Holoway Robert E. Shadoin Robert C. Lehman Raushanah S. Hunter Robert C. Lehman Joseph L. (Larry) Shea, Jr. Melissa M. Lessell Johanna P. Kyles Lynn Luker Anthony J. Staines Judge Lynn L. Lightfoot Judge Quintillis K. Lawrence Gregory J. McDonald Kristen Stanley-Wallace James H. Looney Robert C. Lehman Brian J. Munson Chais L. Sweat John E. McAuliffe, Jr. Wendell Jay Luneau Julian R. Murray, Jr. Marsha M. Wade Carl D. Michel Martin K. Maley, Sr. Mark A. Myers Edward J. Walters, Jr. Emily S. Morrison Jackie M. McCreary James R. Nieset John R. Whaley Francis B. Mulhall Charlotte M. McGehee James R. Nieset, Jr. Thomas M. Womack Bryan A. Pfleeger Ashley Mitchell H. Philip Radecker, Jr. John David Ziober Cassie E. Preston Elisa S. Randall John C. Saunders, Jr. Judge Scott U. Schlegel Deidre D. Robert Mark P. Seyler Loyola University Judge Raymond S. Steib, Jr. La Koshia R. Roberts Judge Raymond S. Steib, Jr. College of Law Tina L. Suggs Adrejia B. Swafford Roger A. Stetter Georgia N. Ainsworth Patricia A. Traina Marsha M. Wade Christopher R. Teske Pierce C. Azuma Laura Tuggle Judge Max N. Tobias, Jr. Kay B. Baxter Georgia G. Turgeau Tulane University Laura Tuggle Rebecca J. Beck Barbara M. Weller Law School Sheila M. Wilkinson Judge Raylyn R. Beevers Colby F. Wenck Judge Roland L. Belsome, Jr. Judge Fredericka H. Wicker Shayna Lynn Beevers Robert M. White Jack C. Benjamin, Jr. John G. Williams Tracey R. Bryan Sheila M. Wilkinson Alan G. Brackett

278 December 2015 / January 2016 Discipli Reportsne REPORTING DATES 10/4/15 & 10/7/15

REPORT BY DISCIPLINARY COUNSEL

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

Decisions 2015. Gist: Seeking to influence a judge Sept. 1, 2015. JUDGMENT FINAL and by means prohibited by law; ex parte EFFECTIVE on Sept. 15, 2015. Gist: James Ward Davis, Shreveport, communications with a judge during the Commission of a criminal act reflecting (2015-OB-1284) Permanent resigna- proceeding; violating or attempting to adversely on the lawyer’s honesty, trust- tion from the practice of law in lieu of violate the Rules of Professional Conduct; worthiness or fitness as a lawyer; engaging discipline ordered by the court on Sept. engaging in dishonesty, fraud, deceit in conduct involving dishonesty, fraud, 11, 2015. JUDGMENT FINAL and or misrepresentation; and engaging in deceit or misrepresentation; engaging EFFECTIVE on Sept. 11, 2015. Gist: conduct prejudicial to the administration in conduct prejudicial to the administra- Commission of a criminal act; engaging of justice. tion of justice; and violating the Rules of in conduct involving dishonesty, fraud, Donald R. Pryor, New Orleans, Professional Conduct. deceit and misrepresentation; and vio- (2015-B-0243) Suspended one year and one day ordered by the court on lating or attempting to violate the Rules Continued on page 280 of Professional Conduct. Frank T. Fradella, Gretna, (2015-B- 0981) Disbarred, retroactive to April 26, 2013, the date of the suspension Callihan Law Firm, LLC imposed in In re: Fradella, 13-0461 Representation in lawyer disciplinary complaints and proceedings (La. 4/26/13), 116 So.3d 649, ordered by the court on Aug. 28, 2015. JUDG- MENT FINAL and EFFECTIVE on Damon S. Manning Sept. 11, 2015. Gist: Neglected a cli- Former Investigator, Prosecutor & 1st Assistant Disciplinary Counsel ent’s legal matter; failed to place an 15 years experience with ODC (1998–2014) advance payment of fees into his client trust account; failed to return $3,000.00 14465 Wax Road, Suite A in unearned fees or provide an account- Baton Rouge, LA 70818 ing to show the fees were earned; and (225)261-6929 failed to cooperate with the ODC in its [email protected] investigation. Darryl Brent Johnson, Jr., Nixa, MO, (2015-B-0891) Reciprocal disci- ChristoviCh & Kearney, llp pline of suspension indefinitely from attorneys at law the practice of law ordered by the court on Aug. 28, 2015. JUDGMENT FINAL Defense of ethics complaints anD charges and EFFECTIVE on Sept. 11, 2015. Gist: Engaged in a conflict of interest by at- e. phelps Gay Kevin r. tully tempting to initiate a sexual relationship; elizabeth s. Cordes and commingled client funds. arter arshall Joyce Nanine McCool, Mandeville, h. C M (2015-B-0284) Disbarment ordered by the court on June 30, 2015. Rehearing (504)561-5700 denied on Aug. 28, 2015. JUDGMENT 601 poydras street, suite 2300 FINAL and EFFECTIVE on Aug. 28, new orleans, la 70130

Louisiana Bar Journal Vol. 63, No. 4 279 DISCIPLINARY REPORT: UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA The following is a verbatim report of the matters acted upon by the United States District Court for the Eastern District of Louisiana, pursuant to its Disciplinary Rules. This information is published at the request of that court, which is solely responsible for the accuracy of its content. This report is as of Oct. 7, 2015. Respondent Disposition Date Filed Docket No. Gerald Joseph Asay [Reciprocal] Interim suspension. 9/24/15 15-3113 Diedre Pierce Kelly Suspended. 7/2/15 15-1285 John Roumain Peters III Suspended. 9/8/15 15-2070 William Clifton Stoutz [Reciprocal] Interim suspension. 9/8/15 15-2069

Discipline continued from page 279 Admonitions (private sanctions, often Reasonable efforts to ensure that a person with notice to complainants, etc.) is- who is not a member of the bar does not Richard C. Teissier, New Orleans, sued since the last report of misconduct engage in the unauthorized practice of (2015-B-1435) Interim suspension involving: law...... 1 ordered by the court on July 28, 2015. JUDGMENT FINAL and EFFECTIVE No. of Violations Represented a client with interests on July 28, 2015. materially adverse to those of a prospective Commingling, conversion and misuse of Michael Coleman Weber, Baton client in the same or a substantially related trust...... 1 Rouge, (2015-B-0982) Disbarred or- matter after receiving information from dered by the court on Aug. 28, 2015. the prospective client that could be Conduct prejudicial to the administration significantly harmful to that person in the JUDGMENT FINAL and EFFECTIVE of justice...... 1 on Sept. 11, 2015. Gist: Neglect of a matter...... 1 legal matter; failure to communicate with Failure to act with reasonable diligence Responsibilities regarding non-lawyer a client; conversion of client funds; and and promptness when representing a assistants...... 1 failure to cooperate with the ODC in its client...... 1 investigation. TOTAL INDIVIDUALS Failure to communicate and comply with ADMONISHED...... 5 reasonable requests for information...... 1 MEMBERS ALPHABETICALLYMEMBERS Advice and counsel concerning legal and judicial ethics

Defense of lawyer and judicial discipline matters

Representation in bar admissions proceedings

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

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280 December117 W. Landry 2015 /Street January 2016 SERVICES & EXPERT Opelousas, Louisiana 70570 Phone 337.942.9771 • Fax 337.942.2821 [email protected]

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

JULIE BROWN WHITE Former Prosecutor, Office of Disciplinary Counsel (1998-2006) 11404 N. Lake Sherwood Ave., Suite A Baton Rouge, Louisiana 70816 Phone 225-293-4774 • Fax 225.293.6332 [email protected] Rece nDevelopmentst ADR to Taxation

“either/or” provision regarding dispute performance to arbitrate disputes arising resolution. Option B stated that the agree- out of the agreement as authorized by La. Alternative ment was governed by Louisiana law and C.C.P. art. 1927. Dispute that the parties must engage in mediation before resorting to arbitration or other FAA is Reverse Resolution methods of dispute resolution, while Op- tion 2B contained only the choice-of-law Preempted by MFA provision. Both parties signed the agree- and Inapplicable to Arbitration Provision ment without selecting either option. DAS Consented to by filed a petition for declaratory judgment Insurance Issues seeking a determination that the parties Performance had no agreement to arbitrate. Although Courville v. Allied Prof’l Ins. Co., 13-0976 the court of appeal found that the agree- (La. App. 1 Cir. 6/5/15), 174 So.3d 659. Delta Admin. Servs., L.L.C. v. Limousine ment was ambiguous because it contained A foreign insurer of a chiropractor Livery, Ltd., 15-0110 (La. App. 4 Cir. both provisions, it held that considering refused to participate in a medical-malprac- 6/17/15), ____ So.3d ____, 2015 WL extrinsic evidence of the parties’ post- tice lawsuit filed against the chiropractor, 3814456. contract actions and the legislative policy his clinic and the insurer. The insurer The parties entered into an adminis- favoring arbitration, the trial court did not filed a motion to compel arbitration and trative services agreement containing an err in finding that the parties consented by stay proceedings based on the arbitration

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Louisiana Bar Journal Vol. 63, No. 4 281 agreement between the insurer and chiro- State Court Lacks arbitration rather than by a state court. State practor. The district court ruled valid the courts do not have subject matter jurisdiction arbitration clause, which stated that even if Jurisdiction over regarding the arbitration of fee disputes when a non-party claimant invoked rights under Arbitration Ordered by arbitration has previously been ordered by a the policy against the insurer, all disputes federal district court. arising therefrom “shall be resolved by the Federal Court binding arbitration” governed by California Law Office of Paul C. Miniclier, P.L.C. v. Mere Error of Fact or law. Moreover, the McCarran-Ferguson Act La. State Bar Ass’n, 14-1162 (La. App. 4 (MFA), which established a federal policy Law Cannot Invalidate an Cir. 5/27/15), 171 So.3d 1013. of deferring to state regulation of insurance A law office’s client terminated her Arbitral Award matters, effectively “overturns the normal relationship with the law firm and retained rules of preemption.” Thus, the MFA “re- associate attorneys who resigned from the Crescent Prop. Partners, L.L.C. v. Am. verse preempted” the Federal Arbitration law office while working on her case. The Mfrs. Mut. Ins. Co., 14-0969 (La. 1/28/15), Act, rendering it inapplicable to insurance firm filed an intervention in the former client’s 158 So.3d 798. issues. Also, the federal Liability Risk Reten- lawsuit seeking fees and costs associated with A property owner and a builder entered tion Act of 1986 preempted La. R.S. 22:868, its representation of the client. The federal into a construction contract to build multiple which prohibits enforcement of arbitration district court compelled the client to arbitrate, structures. Alleging defects in the builder’s provisions for insurance disputes, and made and a petition to arbitrate legal fees was filed performance, the property owner moved the Louisiana Direct Action Statute, which with the Louisiana State Bar Association for arbitration pursuant to the contract’s gives the injured person or his survivors a (LSBA). After the LSBA dismissed the arbi- arbitration provision. The last certificate of right of direct action against the insurer, tration, the law office filed a separate lawsuit occupancy was issued on July 24, 2003, at inapplicable to foreign insurers. The court against the LSBA in state court seeking to which time La. R.S. 9:2772 provided for of appeal affirmed the trial court’s judgment, compel the LSBA to reinstate the arbitration a seven-year peremptive period for con- allowing arbitration among the insurer, the pursuant to the federal court’s order. The struction claims. However, the statute was chiropractor and his clinic, but reversed as LSBA responded by filing an exception of amended in August 2003, decreasing the to the judgment mandating that the plaintiffs lack of subject matter jurisdiction. The state seven-year peremptive period to five years. arbitrate because the arbitration agreement court found that any procedural challenge The builder’s motion for summary judgment was not executed between the plaintiffs and regarding arbitration of the fee dispute among alleging that the claims were perempted be- the clinic or chiropractor, but only between the law firm, its former law associates and cause they were not timely filed was granted the chiropractor and the insurer. its former clients must be determined by the by the arbitration panel and confirmed by the federal district court that had ordered the

NOTICE / Attorney Fee Review Board 2001 Louisiana Acts 208 created the Attorney Fee Review Board. The Act allows for payment or reimbursement of legal fees and expenses incurred in the successful defense Shorten of state officials, officers or employees who are charged with criminal conduct or made the the distance! target of a grand jury investigation due to conduct arising from acts allegedly undertaken Easily join LSBA meetings in the performance of their duties. without leaving the room - use your The Board is charged with establishing hourly rates for legal fees for which the State office computer, iPad, iPhone, or may be liable pursuant to R.S. 13:5108.3. Pursuant to R.S. 13:5108.4, the rates “shall be Android device and connect with sufficient to accommodate matters of varying complexity, as well as work of persons of others who may be on a wide varying professional qualifications.” range of video systems. Attend a The Board met on October 6, 2015, and decided that requests for payment or video conferencing meeting with reimbursement of legal fees should be evaluated on a case-by-case basis in accordance the help of the Louisiana State Bar with the factors set forth in Rule 1.5 of the Louisiana Rules of Professional Conduct. As Association. Visit www.lsba.org/ directed by statute, the Board set a minimum rate of $125 per hour and a maximum rate goto/BlueJeans to find out more of $425 per hour. These rates will remain in effect through 2017. information on how to schedule Attorneys who represent state officials and employees should be prepared to provide your next meeting. their clients and the Board with sufficient information to enable the Board to assess the Another benefit of membership reasonableness of attorney fees and expenses. from the Louisiana State Bar Association Any questions regarding the Attorney Fee Review Board should be addressed to Louisiana Supreme Court Deputy Judicial Administrator Richard Williams, 1600 N. 3rd St., 4th Floor, Baton Rouge, LA 70802.

282 December 2015 / January 2016 district court, but reversed by the court of entered in favor of Wellness awarding over appeal, which held that the 2003 amendment $650,000 in attorney’s fees. could not retroactively apply to perempt the In 2009, Sharif filed for Chapter 7 property owner’s claims. The Louisiana Bankruptcy bankruptcy. Wellness obtained a loan Supreme Court disagreed, concluding that Law application that Sharif had filed in 2002 a wrong interpretation of the law does not listing more than $5 million in assets. provide sufficient grounds for vacating the Sharif informed Wellness and his Chapter arbitration panel’s award. In the absence of 7 trustee that he had lied on the application, evidence indicating the arbitrators’ willful Knowingly and and that those assets were actually owned misconduct, imperfect execution of their by a trust that he operated on behalf of, and authority, dishonesty, bias, bad faith or any Voluntarily Consenting for the benefit of, certain relatives. conscious attempt of the panel to disregard to Stern Claims Wellness filed a five-count adversary Louisiana law, a mere error of fact or law complaint against Sharif in bankruptcy cannot invalidate an otherwise fair and hon- In Wellness International Network, Ltd. court, objecting to the discharge of the est arbitral award. v. Sharif, 135 S.Ct. 1932 (2015), the Su- debts (Count I-IV) because, among other preme Court analyzed whether bankruptcy reasons, Sharif had concealed assets using —Ilijana Todorovic judges may adjudicate Stern claims where the trust, and sought a declaratory judgment Law Student, the parties knowingly and voluntarily (Count V) that the trust was Sharif’s alter Under the Supervision of consent to waive their Article III rights. ego, and that the assets should be treated Professor Bobby M. Harges Wellness International is a producer as part of the bankruptcy estate. Member, LSBA Alternative Dispute of health and nutrition products. Respon- Sharif continued to ignore discovery Resolution Section dent Sharif agreed to distribute Wellness’ requests, and Wellness filed a motion for Loyola University New Orleans products; however, the relationship quickly sanctions or, in the alternative, a motion to College of Law deteriorated. In 2005, Sharif initiated suit compel. After Sharif failed to fully comply 7214 St. Charles Ave., CB 901 against Wellness but repeatedly ignored with the court’s order, the bankruptcy court New Orleans, LA 70118 discovery requests, as well as his other issued a ruling denying his request to dis- legal obligations. A default judgment was charge his debts. The bankruptcy court also

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Louisiana Bar Journal Vol. 63, No. 4 283 entered a default judgment against Sharif After granting certiorari, the Supreme allowing them to decide Stern claims would in the adversary proceeding and declared Court held that bankruptcy judges can not threaten the integrity of the judiciary that the assets allegedly held in the trust adjudicate Stern claims with the parties’ or “usurp the constitutional prerogatives were actually part of the bankruptcy estate. knowing and voluntary consent. The of Article III courts.” Sharif appealed the decision to the Supreme Court noted that adjudication The Supreme Court noted that its deci- district court, which denied as untimely by consent is nothing new and was com- sions in Stern, and its predecessor, North- Sharif’s motion to file a supplemental brief monly in practice. Modern cases explain ern Pipeline Constr. Co. v. Marathon Pipe on the Stern issue and affirmed the bank- that Article III’s guarantee of an impartial Line Co., 102 S.Ct. 2858 (1982), would ruptcy court’s judgment. On appeal, the 7th and independent federal adjudication is a not alter the result in this case. Both of Circuit acknowledged that the Stern objec- personal right that can be waived. those cases turned on the parties’ lack of tion would ordinarily be waived because Reserving a limitation to its holding, consent to have their claims adjudicated Sharif failed to raise it timely. However, the Supreme Court noted that Article III in non-Article III courts. The question because the argument concerned “the al- serves an important role in the system of presented here did not involve an objecting location of authority between bankruptcy checks and balances. To the extent that a defendant being forced to litigate before a courts and district courts,” the general case implicates this structural principle, the non-Article III court. rule would not apply. Because the Stern parties’ consent would not cure the con- Finally, the Supreme Court held that objection raises an issue of separation of stitutional problem. Apart from structural the parties’ consent to adjudication need powers, the 7th Circuit held that litigants concerns, the parties’ consent to opt out not be express, but still must be knowing cannot waive it. The 7th Circuit affirmed of the Article III protections would have and voluntary. Again analogizing this case Counts I through IV of the adversary full effect and will not offend separation of to the role of the magistrates, the Supreme complaint; however, it determined that powers as long as Article III courts retain Court noted that the parties’ consent to use Count V raised a “Stern claim” because it supervisory authority over the process. a magistrate judge need not be express, was “designated for final adjudication in In its reasoning, the Supreme Court so to require express consent in a bank- the bankruptcy court as a statutory matter, analogized the bankruptcy court judges to ruptcy proceeding would be improper. but prohibited from proceeding in that way the role of magistrate judges, stating that a The Supreme Court remanded the issue as a constitutional matter.” The 7th Circuit bankruptcy court hears matters only on the of whether Sharif’s consent was knowing thus held that the bankruptcy court lacked district court’s reference just as the district and voluntary. constitutional authority to enter a final court decides to invoke a magistrate judge’s judgment on Count V. assistance. The Court also pointed out that —Cherie Dessauer Nobles the scope of traditional Article III claims Member, LSBA Bankruptcy Law Section that a bankruptcy court can resolve is quite and KKayay E. DDonnellyonnelly limited, and the federal judiciary retains the Tristan E. Manthey & Associates power to take jurisdiction over the matter. Chair, LSBA Bankruptcy Law Section & Associates Because of the vast control that the Heller, Draper, Patrick, Horn district courts retain over the selection of & Dabney, L.L.C. CertiﬁedCertiﬁed Court ReportersReporters bankruptcy judges and the cases they adju- Ste. 2500, 650 Poydras St. FullFull ServiceService CourtCourt Reporting FirmFirm dicate, the Supreme Court determined that New Orleans, LA 70130 CompleteComplete Litigation Support Support 2424 HOUR HOUR SERVICE SERVICE

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284 December 2015 / January 2016 gave notice to his insurer and the auction allowing a cause of action for negligent house that he would like the wrecked spoliation. It repeatedly referred to the loss Civil Law vehicle preserved in its current state as as “speculative” and recognized the cost and evidence. The auction house subsequently that such a duty would impose on society Litigation disposed of the wrecked vehicle on behalf as a whole. of the insurer, and the plaintiff filed claims The court did not limit its ruling to third- against both for negligent spoliation of party spoliation and expressly found that evidence. These defendants filed excep- the same rationale applies to parties in a Negligent Spoliation tions of no cause of action, which were pending lawsuit. With respect to negligent granted by the trial court and affirmed by spoliation by parties to a lawsuit, it found of Evidence the 1st Circuit. The Louisiana Supreme discovery sanctions, criminal sanctions Court granted a writ and agreed with the and the adverse presumption to be equally Reynolds v. Bordelon, 14-2362 (La. courts below that no cause of action ex- effective and far more practical remedies. 6/30/15), 172 So.3d 589. ists in Louisiana for negligent spoliation With respect to negligent spoliation by third On June 30, 2015, the Louisiana Su- of evidence. parties, the court found that, unless and until preme Court held that Louisiana law does This holding was based on the court’s the Legislature establishes a preservation not recognize a cause of action for negligent refusal to recognize any general duty to pre- duty, plaintiffs should take proactive steps spoliation of evidence. This resolved a serve evidence in the context of negligent — such as entering a contract or obtaining highly disputed issue of Louisiana law. spoliation. Specifically, the court found that a court order — to protect any relevant In this case, the plaintiff was involved none of the policy considerations support- evidence outside their possession. in a multi-vehicle accident that totaled his ing the imposition of such a legal duty — vehicle. After the accident, the plaintiff’s deterrence of future conduct, compensation —Emma E. Kingsdorf insurer took possession of the wrecked of the victim, predictability, satisfaction of Barrios, Kingsdorf & Casteix vehicle and transported it to a local auction the community’s sense of justice, proper Ste. 3650, 701 Poydras St. house for sale. The plaintiff then filed suit allocation of judicial resources, and leg- New Orleans, LA 70139 against the other driver and the manufac- islative will/intent — weighed in favor of turer of his wrecked vehicle and allegedly

Louisiana Bar Journal Vol. 63, No. 4 285 laws and corporate law. Also, concerned by Employees’ Action Against allegations at pretrial conferences that new Employer’s Officer members were being brought in for purposes Corporate and of litigation rather than for religious reasons, Blank v. Equisol, L.L.C., 14-1462 (La. App. Business Law the court determined the voting membership 1 Cir. 6/18/15), 2015 La. App. LEXIS 305 as of immediately before the first suit was (not designated for publication). filed, which was several months earlier, ef- Two brothers, the Blanks, entered into fectively setting that date as the record date employment agreements with Equisol, Corporations for a meeting of members to decide whether L.L.C., a Pennsylvania limited liability and Religion to dismiss the leader of one faction as pastor. company, to be employed as president and After reviewing jurisprudence to the vice president of its affiliate, Gulf States effect that civil courts may not interfere in Fairchild Pentecostal Church v. John- Chlorinator and Pump, Inc. (GSC). Par- ecclesiastical matters of a religious group, son, 15-0068 (La. App. 3 Cir. 6/3/15), 170 rish was president of Equisol. Three years but may interpret and enforce corporate So.3d 357. later, Parrish left his position at Equisol and articles and bylaws in conjunction with state A church, incorporated as a Louisiana became the CEO of the parent company of corporate law to resolve non-ecclesiastical non-profit corporation, split into two fac- Equisol and GSC. A year later, both Blanks corporate governance issues, the appellate tions when its pastor sought to retire and resigned and sued Equisol, GSC and Par- court affirmed, concluding that the trial a new pastor took over. When the retired rish. Trial proceeded without the defendants court analyzed the church’s regulations pastor purported to sell the church property, present, and they were found liable in solido along with state law “without interfering multiple lawsuits were filed, resulting in to both brothers. in ecclesiastical matters,” and noting the “a Kafkaesque labyrinth of pleadings.” In their petition, the Blanks alleged: “trial court’s careful adherence to the law The major issue was whether the church where the court repeatedly stopped ques- members followed proper procedure in Parrish owed a fiduciary duty tions and comments by the lawyers that determining who was the pastor. to Equisol, and thus to [GSC], to involved church doctrine.” Recognizing The trial court held a hearing to deter- discharge his duties in good faith, that the Louisiana non-profit corporation mine the membership for voting purposes. with diligence, care, judgment and law provides that a board of directors may One faction argued that certain persons skill in order to protect and promote set a record date only in advance and no were not members because they had not the success of the company. Instead, earlier than 60 days before a meeting (but attended regularly, had not tithed, had turned whether through his gross negligence, does not address what a court may do), the in their keys or were regularly attending intentional tortious conduct, or in- appellate court concluded the trial court’s church elsewhere. Opining that these fac- tentional breaches of duty, Parrish approach “was a reasonable and equitable tors involved ecclesiastical determinations has failed to discharge his duties solution, and perhaps the only solution that were beyond the authority of the court, as required by law and thus stands where the membership dynamic had be- the trial court determined the membership responsible for the acts taken by him come a moving target.” based purely on the corporate articles, by- as alleged herein.

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286 December 2015 / January 2016 Parrish argued, among other things, that was no evidence that Ansted had agreed the Blanks had no right of action. The ap- to the sale. The court thus granted partial pellate court disagreed, reasoning that “the summary judgment declaring the agreement Blanks claim that actions by the defendants null and invalid with respect to the sale of Environmental caused business to be inconvenienced and the TPSI stock for, among other things, Law suffered damages due to breaches of contract the complete lack of corporate formalities. and fiduciary duties,” and, “[d]ue to Mr. The appellate court reversed, noting Parrish’s close involvement with Equisol,” that Ansted’s articles provided that (1) the Blanks had a right of action. the affirmative vote of 51 percent of the The MRGO outstanding shares was necessary for the Corporate Formalities sale of the major part of the assets of the State v. U.S. Army Corps of Eng’rs, ____ Tracer Protection Servs., Inc. v. Burton, corporation and (2) whenever the affirma- F.Supp.3d ____ (E.D. La. 2015), 2015 14-1111 (La. App. 1 Cir. 6/5/15), 2015 tive vote of the shareholders was required WL 5083683. WL 3545616 (unpublished), writ denied, to authorize or constitute corporate action, Following Hurricane Katrina, Congress 15-1313 (La. 10/2/15), ____ So.3d ____, written consent to that action signed by only took a particular interest in the Mississippi 2015 WL 6113902. “the shareholders holding that proportion of River-Gulf Outlet (the MRGO) — the well- In 2004, Redlich signed an agreement the total voting power on the question that is known and much-maligned commercial- in his individual capacity in which he required by law or these Articles of Incorpo- access route from the Gulf of Mexico to purportedly sold, among other things, all ration, [whichever] is the higher requirement, the Port of New Orleans. Specifically, Con- of the stock in Tracer Protection Services, shall be sufficient for the purpose, without gress recognized the devastating impacts Inc. (TPSI) to Burton, even though the stock necessity for a meeting of the shareholders.” that this underused, poorly designed and was actually owned by Ansted, Inc. Redlich, largely unmaintained channel had caused however, claimed to be the sole shareholder —Michael D. Landry and the need for the federal government of Ansted, and the stock in TPSI appears to Reporter, LSBA Corporate and to act swiftly to mitigate the potential fu- have been the major asset of Ansted. The Business Law Section ture harm from this waterway. Congress trial court found that Redlich was not the Stone Pigman Walther Wittmann, L.L.C. acted. The MRGO was a component of soleLaPorte shareholder LSJB Ad'15_Layout of Ansted and1 9/8/15 that there2:09 PM Page 1 546 Carondelet St. at least three acts of Congress between New Orleans, LA 70130 2005 and 2007, all of which contained

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Louisiana Bar Journal Vol. 63, No. 4 287 various directives to the U.S. Army Corps of closing the MRGO and restoring its pay nearly $1 billion toward the MRGO of Engineers (the Corps) to decommission ecosystem turned on questions of statu- closure and ecosystem restoration were the MRGO and to undertake the closure tory interpretation and whether, in the arbitrary and capricious and were vacated and ecosystem restoration of the land three primary post-Katrina enactments, and remanded to the Corps for reconsid- devastated by the navigation project. The Congress left any ambiguity with regard eration. channel was closed by the construction to this issue in which the Corps was en- of a rock dike in 2009, and, in 2012, the titled to interpretational deference under —Ryan M. Seidemann Corps reported that the cost of restoring Chevron v. National Resources Defense Member, LSBA Environmental the ecosystem damaged by the construc- Council, 104 S.Ct. 2778 (1984). Law Section tion and poor maintenance of the MRGO Although the three laws — supple- Louisiana Department of Justice was approximately $2.9 billion. mental spending bills in 2005 (119 Stat. Lands & Natural Resources Section The question of who was responsible 2680) and 2006 (120 Stat. 418) and the 1885 North Third St. for paying this massive cost was at the Water Resources Development Act of Baton Rouge, LA 70802 heart of a lawsuit brought by the State 2007 (121 Stat. 1041) — did not contain of Louisiana in 2014 against the Corps. one concise directive on the MRGO clo- Case Alleging DuPont Under the Corps’ interpretation of the sure and ecosystem restoration funding, Covered Up Toxic Gas relevant law, the State was obliged to Judge Africk found a clear progression share in the costs of the restoration to of congressional intent and expression in Leaks Gets Second Chance the tune of approximately $975 million. the series of laws, noting that “[t]here is Before a Jury Louisiana disagreed with this interpreta- nothing that requires Congress to legislate tion, alleging that Congress had mandated using the clearest possible language, and In a surprising turn of events, a False full federal funding of the MRGO closure although the benefit of hindsight often Claims Act suit filed by a whistleblower and ecosystem restoration. reveals that legislation could have been employee at a DuPont plant in Ascension This dispute was submitted to Judge more precisely worded, such retrospection Parish was revived after a judge set aside Lance Africk of the Eastern District of does not inject ambiguity into a statute a jury verdict favoring DuPont. Louisiana via cross motions for summary that contains none.” (Op. at *9). Because The case, Simoneaux v. E.I. duPont de judgment in July 2015. On Aug. 27, 2015, Judge Africk concluded that Congress had Nemours & Co., No.12-219 (M.D. La. two days shy of the 10th anniversary of clearly articulated that the MRGO closure 6/25/15), 2015 WL 3905069, involved Hurricane Katrina’s landfall, Judge Af- and restoration was to be fully federally former DuPont employee Jeffrey M. rick rendered his decision, granting the funded, he held that the Corps’ contrary Simoneaux, who filed under the False State’s motion for summary judgment and interpretation of the law was not entitled Claims Act (FCA) alleging that DuPont declaring that, under the Administrative to Chevron deference. Accordingly, the knowingly violated the Toxic Substances Procedure Act and other laws, the federal Corps’ conclusion that Congress intended Control Act by leaking carcinogenic sulfur government was mandated to fully fund for the State to shoulder a third of the trioxide gas for five months. The FCA, 15 the closure and restoration of the MRGO MRGO closure and restoration costs and U.S.C. § 2601 et seq., allows individuals to and its ecosystem. the Corps’ transmission of funding recom- sue on the government’s behalf and receive The ultimate question of whether the mendations to Congress for appropriation a share of funds recovered through the State is responsible to share in the cost contingent on Louisiana’s agreement to lawsuit, if any. In his petition, Simoneaux claimed that he noticed a leak in the system at the sulfuric acid plant in Burnside, La., and that the company both failed to Securities Arbitration/Litigation take action and retaliated against him for attempting to document the leak and his inability to repair it. JAMES F. W ILLEFORD By the time the case reached the jury, it was undisputed that DuPont’s process equipment did leak and DuPont employed Representing investors in disputes with temporary measures — i.e., a vacuum-hose recovery system to capture the leaks while stockbrokers and brokerage houses the plant continued to operate. The jury was presented with the question: Do you find by a preponderance of the evidence New Orleans 504/582-1286 that DuPont obtained information that [email protected] reasonably supported the conclusion that the leaks of chemicals or chemical mixtures at its Burnside facility presented

288 December 2015 / January 2016 a substantial risk of injury to health or the important to the case — and bad for newly discovered leak calculations and the environment? DuPont — because DuPont had argued that OSHA citation were called for in discovery, Had the jury answered “yes,” it would “dose makes the poison” and Simoneaux and that “DuPont’s failure to produce have been directed to answer another had no evidence of the dose or quantity them is misconduct for the purposes of question as to whether DuPont knowingly and concentration of the gas leaks at the Rule 60(b)(3).” The court found that the concealed information about the leaks in plant. The court found that the information “unavailability of this evidence impacted order to avoid paying fines. However, on on the spreadsheets, which would have the integrity of the trial process and Jan. 23, 2015, the jury answered “no,” and provided additional information about prevented [Simoneaux] from fully and the case against DuPont was dismissed. the size, scope and duration of the leaks, fairly presenting his case.” (Op. at *7). (The jury also found that there had been would have enhanced Simoneaux’s ability The reversal of a jury verdict is a major no retaliation against Simoneaux for his to fully and fairly present his case. upheaval and enormously costly, which the efforts to disclose the leaks.) Likewise, the court took a dim view of court acknowledged: “The Court is loathe Plaintiff then filed a motion for relief DuPont’s failure to disclose five OSHA to set aside the hard work and deliberative from judgment under Rule 60(b)(3), violations issued approximately two process of the jury, and the Court does not alleging that (1) DuPont failed to disclose months before trial. DuPont argued that do so lightly, but the Court’s duty to uphold “newly discovered leak calculation there was no intent or effort to hide the the integrity of the judicial process requires spreadsheets” and (2) DuPont failed to citation, which had been publicly posted the result reached herein.” disclose a recent OSHA citation, both of at the plant and made available on the which had been called for in discovery. Internet. Simoneaux argued that DuPont’s —Lauren E. Godshall The newly discovered leak-calculation failure to disclose the OSHA citation made Member, LSBA Environmental spreadsheets provided “significantly more it impossible for him to rebut DuPont’s Law Section quantifiable information about the subject defense that it had not been subject to Curry & Friend, P.L.C. leaks than the calculations previously regulatory action on the leak issue despite Ste. 1200, Whitney Bank Bldg. made available to Relator . . . regarding being highly regulated. The court agreed, 228 St. Charles Ave. leak quantity, concentration, duration holding that Simoneaux had established New Orleans, LA 70130 and capture rates.” (Op. at *3). This was by clear and convincing evidence that the

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Louisiana Bar Journal Vol. 63, No. 4 289 to manage the entity as it had been man- Interim Spousal Support aged, the motion for summary judgment was also reversed. LaRocca v. LaRocca, 14-0255 (La. App. 5 Family Cir. 10/29/14), 164 So.3d 207, writ denied, Law Durden v. Durden, 14-1154 (La. App. 4 14-2512 (La. 2/27/15), 159 So.3d 1068. Cir. 4/29/15), 165 So.3d 1131. Ms. LaRocca’s motion to extend the Ms. Durden’s response to a request for period for the payment of interim spousal admissions that Mr. Durden owned his support, which was filed more than 180 Community Property home, land and a shed prior to their mar- days after the parties’ divorce, was not Wood v. Wood, 14-0405 (La. App. 5 Cir. riage was insufficient on its own to prove untimely, as the statute does not establish 11/25/14), 165 So.3d 181. his ownership of the land. He presented no a time period within which such a motion Ms. Wood filed a petition alleging that other documentation evidencing he actu- must be filed. Mr. LaRocca argued that Mr. Wood had mismanaged and closed ally owned the land on which the parties once the interim spousal support termi- the former community business and had built a home during their marriage using nated as a matter of law, it could not be established a new business in the same community property. Thus, the court of resurrected by a motion filed more than location, performing the same services. appeal, on its own, found that his motion 180 days after the divorce. Good cause to The trial court sustained his exceptions for return of separate property failed to extend the interim-spousal-support period of no cause of action and vagueness and state a cause of action and reversed the trial past 180 days can be found for compel- granted his motion for summary judg- court’s order declaring that the property ling reasons — circumstances beyond the ment. The court of appeal reversed and was his and evicting her from the home. parties’ control — and can be based upon remanded, finding that the allegations Moreover, because she had previously the parties’ “age, work history, and educa- were sufficient to state a cause of action been granted use of the home under La. tion.” Moreover, “the initial assessment because La. Civ.C. art. 2369.3 not only ap- R.S. 46:2135, the legal implication was of the eligibility requirements under La. plied to spouses, but continued to apply to that the home was not his separate property C.C. art. 113 for interim spousal support the parties, even after they were divorced; as that statute does not allow one spouse are not the same as for the extension of and that the entity was “former commu- to be awarded use of the other spouse’s support.” The dissent argued that once the nity property” because even though the separate property. Admissions are di- right to support had been extinguished, it community regime had been terminated, rected toward facts, not ultimate legal could not be revived. the property had not yet been partitioned. conclusions, and must address specific The allegations were also sufficient to put facts, rather than the general reference to Custody/Co-Domiciliary Mr. Wood on notice of the claims against “land.” Moreover, the ownership of the him and were not vague. His claim that property was clearly at issue throughout Parents he had no continuing duty to prudently the pleadings. Finally, the trial court also manage the former community entity erred in not following the mandates of La. Hodges v. Hodges, 14-1575 (La. App. 1 under La. Civ.C. art. 2369.3 because it R.S. 9:2801 in determining the ownership Cir. 3/6/15), 166 So.3d 348. could no longer be managed consistently of contested property, as there had been The 1st Circuit addressed the split with the way it had been managed prior neither descriptive lists nor traversals between the circuits regarding whether to termination of the regime was without filed, and the determination that the a trial court can designate the parents merit. Because a genuine issue of material land belonged to him was, effectively, a as co-domiciliary parents, finding that fact existed as to his ability to continue piecemeal partition. when the court awards equal physical custody it can designate the parents as co- domiciliary parents if in the best interest of the child; but the court must also render a joint-custody-implementation order or A Fresh Perspective find that there is good cause not to issue On Your Case an implementation order. That order must address the parents’ responsibilities for the child’s health, education and welfare, not just the physical custody schedule. The Louisiana Supreme Court has granted a writ, which should resolve this circuit split. Hodges v. Hodges, 15-0585 (La. 5/15/15), 169 So.3d 380.

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290 December 2015 / January 2016 Child Support/ tion for new trial, filed before his motion trial court denied her rule for contempt, Abandonment for abandonment, evidenced “an intent to finding that he was entitled to the offset. seek judicial resolution of the dispute on The court of appeal reversed, finding that Adams v. Adams, 14-0387 (La. App. 1 the merits and a willingness or consent the strong policy of the state required Cir. 3/11/15), 166 So.3d 1066. to achieve judicial resolution.” Thus, he court intervention before a child-support After a partial hearing in 1998, the had waived his right to claim abandon- judgment could be modified without the court continued the matter but orally ment due to his own actions. The court express agreement of both parties. It dis- awarded interim child support. In 2013, noted, in a footnote, “Having found that tinguished Saunier v. Saunier, 47 So.2d Ms. Adams filed a motion to make past- Mr. Adams revived the action, we preter- 19 (La. 1950), a Louisiana Supreme Court due child support executory, for contempt mit discussion as to whether there was a case that had allowed a partial setoff, and and to modify the child support award. Mr. final, appealable judgment that precluded also found that statutory developments Adams filed an exception of no cause of abandonment.” since then provided great protection for action. The court then signed a judgment child-support awards. In sum, self-help is ruling that the prior support award was Procedure/Contempt not allowed, and he should have sought an interim order, but remained in effect. judicial intervention before unilaterally Mr. Adams’ motion for new trial was Hedlesky v. Hedlesky, 15-0117 (La. App. modifying the support award. denied. Before Ms. Adams’ motions were 3 Cir. 6/3/15), 166 So.3d 1221, writ de- set, Mr. Adams filed an ex parte motion nied, 15-1308 (La. 10/2/15), ____ So.3d —David M. Prados to have the court acknowledge that her ____, 2015 WL 6114354. Member, LSBA Family Law Section proceedings had been abandoned, which After obtaining a community-prop- Lowe, Stein, Hoffman, Allweiss the court signed, dismissing the case erty-partition judgment against Ms. & Hauver, L.L.P. without prejudice. On appeal, the court Hedlesky for $263,485.10, Mr. Hedlesky Ste. 3600, 701 Poydras St. reversed the dismissal, finding that his stopped paying child support, claiming New Orleans, LA 70139-7735 exception of no cause of action and mo- an offset of the two judgments. The

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Louisiana Bar Journal Vol. 63, No. 4 291 Under the collateral source rule, a attorney-negotiated discounts do not fall tortfeasor may not benefit, and an injured within the ambit of the collateral source Insurance, Tort, plaintiff’s tort recovery may not be reduced rule because to do otherwise would invite Workers’ because of monies received by the plaintiff a variety of evidentiary and ethical dilem- Compensation & from sources independent of the tortfea- mas for counsel.” Admiralty Law sor’s procuration or contribution. The rule has ancient roots in the common law. In —John Zachary Blanchard, Jr. The Propeller Monticello v. Mollison, 58 Past Chair, LSBA Insurance, Tort, Collateral Source Rule U.S. (17 How.) 152, 15 L.Ed. 68 (1854), Workers’ Compensation and two ships, Propeller and Northwestern, Admiralty Law Section Hoffman v. 21st Century N. Am. Ins. Co., collided, sinking the Northwestern, whose 90 Westerfield St. 14-2297 (La. 10/2/15), ____ So.3d ____, insurer paid for the loss of the ship and Bossier City, LA 71111 2015 WL 5776131. its cargo. The issue before the Supreme Hoffman, injured when his vehicle was Court was whether the owner of the other Insurance Claims rear-ended by Elzy, sued for damages. In ship was released from liability because a bench trial, the court found Elzy 100 of the payment. The court held that “the Kelly v. State Farm Fire & Cas. Co., 14- percent at fault, and awarded $4,500 in contract with the insurer is in the nature of 1921 (La. 5/5/15), 169 So.3d 328. general damages and $2,478 for special a wager between third parties, with which The Louisiana Supreme Court was medical expenses. Hoffman appealed, al- the trespasser has no concern. The insurer tasked with answering two certified ques- leging that the amount for special medical does not stand in the relation of a joint tions from the U.S. 5th Circuit: 1) whether expenses was erroneous, noting that he had trespasser, so that satisfaction accepted an insurer could be found liable for a presented evidence of expenses totaling from him shall be a release of others.” bad-faith failure-to-settle claim when the $4,528. The appellate court found that the Originally a common-law doctrine, the insurer never received a firm settlement trial court, having been presented with two rule has been accepted jurisprudentially by offer; and 2) whether an insurer could be conflicting medical bills, chose the lesser, Louisiana courts, though not incorporated found liable for misrepresenting or failing which choice was not manifestly errone- in Louisiana statutes. Several public-policy to disclose facts that are not related to the ous, and affirmed the judgment. purposes are served. A tortfeasor should not insurance policy’s coverage. Included in the medical expenses were gain an advantage from outside benefits Kelly was injured after being struck in two MRIs at $1,500 each. In fact, Hoff- provided to the victim independently of any a motor-vehicle accident with Thomas, a man’s attorney had negotiated with the act of the tortfeasor. The rule promotes tort driver insured with State Farm. Kelly’s imaging center for a $950 reduction in the deterrence and accident prevention. Absent attorney attempted to settle the claim with charge, and the company accepted payment such a rule, victims would be dissuaded State Farm but ultimately rejected its offer. of $2,050 rather than $3,000. Hoffman from purchasing insurance or other forms Kelly eventually obtained an excess judg- contended that, under the collateral source of reimbursement available to them. ment against Thomas and State Farm. After rule, he was entitled to the total billed The court applied the principle of La. State Farm paid its policy limits, Kelly amount, without reduction for adjustments Civ.C. art. 2315 that the wrongdoer is entered into a compromise with Thomas or write-offs. The Louisiana Supreme responsible only for the damages she has whereby Thomas assigned to Kelly his Court granted certiorari to determine the caused. Hoffman suffered no diminution rights to pursue a bad-faith action against res nova issue of whether the collateral of his patrimony to obtain the write-off, State Farm. Kelly brought claims against source rule applies to the “written-off” and Elzy cannot be held responsible for State Farm for failing to notify Thomas portion of a medical expense when the any medical expenses Hoffman did not of Kelly’s settlement letter and failing to plaintiff’s attorney negotiated the write-off. actually incur and need not repay. The settle the claim. court adopted “a bright-line rule that such Breaking down the first certified question into two operative clauses, the Su- preme Court first asked whether an insurer could be held liable for a bad-faith failure- to-settle claim. The court articulated that insurers owe their insureds the duty to act Your call is absolutely confidential in good faith when dealing with claims as a matter of law. against their insureds. Further, the court instructed that, under jurisprudence and the plain language of La. R.S. 22:1973(A), Call toll-free (866)354-9334 both the insured and third-party claimants Email: [email protected] are entitled to enforce this duty through or visit www.LouisianaJLAP.com bad-faith failure-to-settle claims. Kelly,

292 December 2015 / January 2016 169 So.3d at 338-39. in a complaint lodged at the Irish Data Turning to the second component of Protection Commissioner. Schrems is an the first question, the court held that a firm International Austrian national residing in Austria and settlement offer is not required in order to Law a Facebook social media user since 2008. hold an insurer liable due to the insurer’s Some or all of his personal data is trans- affirmative duty to conduct a thorough ferred from Facebook’s Irish subsidiary to investigation, “to adjust claims fairly and Facebook servers in the U.S. for processing. promptly,” and “to make a reasonable ef- This personal-data transfer triggers several fort to settle claims with the insured or the United States important E.U. privacy safeguards that were claimant, or both.” In arriving at this con- examined in the complaint. clusion, the court wrote that the insurer’s Department of Commerce, International Schrems’ complaint surrounds the 2013 duty should not be subject to whether the Trade Administration, 80 Federal Register revelations made by Edward Snowden insurer received a firm settlement offer, but 46793-46795 (8/6/15). regarding U.S. law enforcement and intel- instead is based on the evidence the insurer The U.S. Department of Commerce, In- ligence activities involving personal data. develops during the claims process. Id. at ternational Trade Administration, published In particular, the complaint asserts that U.S. 341; see also, Smith v. Audubon Ins. Co., a Federal Register notice of determination law and practice does not ensure sufficient 95-2057 (La. 9/5/96), 679 So.2d 372, 377. indicating how it intends to apply certain protection of his personal data transferred Proceeding to answer the second certi- statutory directives contained in the Trade to Facebook servers, and the surveillance fied question, the court undertook a statu- Preferences Extension Act of 2015. activities in the U.S. violate his fundamental tory analysis of La. R.S. 22:1973(B)(1), This legislation provides a number rights. Schrems, at 28. The Irish authority which provides: “Any one of the following of amendments to the U.S. antidumping rejected the complaint, in part, on the ground acts, if knowingly committed or performed (AD) and countervailing duty (CVD) laws, that the U.S.-E.U. “safe harbor” agree- by an insurer, constitutes a breach of the including: (1) modification of the provisions ment ensures the U.S. provides adequate insurer’s duties imposed in Subsection addressing adverse facts available in AD or protection to personal data. Id. at 29, citing A: (1) Misrepresenting pertinent facts or CVD proceedings; (2) modification of the European Commission Decision 2000/520/ insurance policy provisions relating to any “material injury” definition applicable in AD EC (July 26, 2000). coverages at issue.” The court read the or CVD proceedings; (3) changes to “ordi- Schrems challenged the Irish Commis- “or” language of the statute as disjunctive nary course of trade” and “particular market sioner’sLA Bar decisionJournal at Ad the 9/21/11Irish High 3:44Court. PM Page and held that the statute prohibits both the situation” definitions in AD proceedings; misrepresentation of “pertinent facts” and (4) alteration to the treatment of distorted the misrepresentation of “insurance policy prices or costs in AD cases; and (5) changes SCHAFER GROUP LTD provisions relating to any coverages at is- to the procedures for accepting mandatory Certified Public Accountants sue,” thereby separating the requirement respondents in AD and CVD proceedings. that the misrepresentation of pertinent facts The legislation does not contain dates of When you need a forensic accountant, relate to coverages at issue. Accordingly, application for any of the amendments. call on a professional. the court answered the second question The Department of Commerce issued in the affirmative, finding that an insurer the Federal Register notice to notify litigants “Knowledge of business, finance can be held liable for misrepresenting or that it will implement the amendments and accounting may be needed failing to disclose facts that are not related immediately. Immediate application will at any stage of the litigation to the insurance policy’s coverage. Kelly, certainly raise some scrutiny, for example process. Therefore, we can be 169 So.3d at 343-44. where a remand determination is made after an important member of any By opening up the requirements for implementation of the changes. a bad-faith claim, the Kelly opinion will successful litigation team. have implications across the spectrum of From contemplation of action to insurers, their insureds and third-party Court of Justice of the expert testimony, we can complement attorneys in claimants. However, this decision is not ex- European Union ways that increase the likelihood of a desired outcome. pected to open the floodgates of insurance We can support your litigation efforts to save you time bad-faith claims. As the court remarked in Schrems v. [Irish] Data Protection and strengthen your case.” Comm’r, C-362/14 (Oct. 6, 2015). dicta , “tight [reins] must be kept on a cause —Kernion T. Schafer, CPA of action for insurer settlement practices.” The European Court of Justice (ECJ) issued a significant decision on a request Id. at 343, n. 34. S OUTH S HORE AND N ORTH S HORE O FFICES for preliminary ruling from the Irish High METAIRIE MANDEVILLE —Michael S. Finkelstein Court. The ECJ invalidated the U.S.-E.U. 701 Aurora Avenue • Suite A 435 Girod Street • Suite B Metairie, Louisiana 70005 Mandeville, LA 70448 Wolfe, Begoun & Pick, L.L.C. “safe harbor” agreement regarding the 504.837.6573 985.626.4066 Ste. 100, 818 Howard Ave. transfer of personal data between the E.U. Forensic Accounting • Emerging Issues • Financial Services Litigation Services • Legal Services • Emerging Business New Orleans, LA 70113 and U.S. The case was initiated by Schrems

Louisiana Bar Journal Vol. 63, No. 4 293 The High Court criticized the “significant ment. Some observers suggest that only derlying formations. Plaintiffs alleged in over-reach” of U.S. intelligence activities comprehensive surveillance reform in the their petition that it was Evolution’s plan, and the lack of procedures for E.U. citizens U.S. can address the deficiencies outlined following the sale to Denbury, to retain to address indiscriminate surveillance. The by the ECJ. certain royalty interests obtained from High Court further found that the “mass plaintiffs and profit therefrom on about 9 and undifferentiated accessing of personal —Edward T. Hayes to 14 million barrels of oil. Evolution also data is clearly contrary to the principle of Chair, LSBA International Law Section did not tell any of the royalty owners about proportionality and fundamental values Leake & Andersson, L.L.P. the proven reserves underlying the Delhi protected by the Irish Constitution.” Id. at Ste. 1700, 1100 Poydras St. Unit. Because Evolution failed to disclose 33. The case before the Irish High Court New Orleans, LA 70163 this information, plaintiffs argued that the presented an issue of E.U. law insofar as sale should be rescinded. Schrems’ complaint raises the legality of Evolution filed a peremptory excep- the E.U.’s “safe harbor” decision. Id. at tion of no cause of action. The trial court 35. Accordingly, the High Court stayed granted that exception. Plaintiffs appealed the proceeding and referred the question to the 2nd Circuit, which reversed and of whether it has authority to investigate a Mineral remanded the case to the district court complaint raised by an E.U. citizen that a Law with instructions requiring plaintiffs to third country does not afford an adequate amend and restate their causes of action. level of personal-data protection. Id. at 36. See, McCarthy v. Evolution Petroleum The ECJ accepted the referral and ruled Corp., 47,907 (La. App. 2 Cir. 2/27/13), that the U.S.-E.U. “safe harbor” agreement Mineral Lessee’s 111 So.3d 446, writ denied, 13-1022 (La. contained in Decision 2000/520 is invalid 6/28/13), 118 So.3d 1097 (McCarthy I). and violates the fundamental rights provided Obligations to Its Plaintiffs amended their petition, and to E.U. citizens under the Charter of Funda- Lessor Evolution again filed an exception of no mental Rights of the European Union (E.U. cause of action. It was also granted. Plain- Charter) and community law. McCarthy v. Evolution Petroleum Corp., tiffs appealed, again, to the 2nd Circuit. The ECJ first ruled that no provision 14-2607 (La. 10/14/15), ____ So.3d ____, See, McCarthy v. Evolution Petroleum of the “safe harbor” directive prevents the 2015 WL 5972515. Corp., 49,301 (La. App. 2 Cir. 10/15/14), national supervisory authorities from inde- The Louisiana oil and gas industry 151 So.3d 148 (McCarthy II). Plaintiffs pendently examining whether the transfer of watched this case with bated breath. Mc- alleged that the exception should not have one person’s data to a third country complies Carthy involves the interpretation of a been granted because it was clear from with E.U. law. Id. at 63-65. The ECJ then mineral lessee’s obligations to its lessor, the pleadings that Evolution purposefully found that the European Commission’s “safe pursuant to article 122 of the Louisiana omitted production valuation information harbor” decision fails to make an adequate Mineral Code. Article 122 specifically viz. the Denbury deal in order to undervalue determination regarding the level of protec- states that a mineral lessee does not owe its offer(s) to purchase plaintiffs’ royalty tion of fundamental rights afforded by the a “fiduciary obligation” to his lessor. interests. The 2nd Circuit found that the U.S. Id. at 75. The Court specifically criti- However, the Louisiana 2nd Circuit Court failure to disclose such information could cized the Commission’s failure to address the of Appeal concluded, in McCarthy II constitute fraud by silence given the min- fact that U.S. law allows national security, (discussed below), that lessees might owe eral lessor/lessee relationship between public interest and law enforcement rights an implied duty to disclose information to the parties. The appellate court further to prevail over the “safe harbor” scheme their lessor regarding the future develop- found that because Evolution was plan- without limitation when a conflict arises. Id. ment of minerals. ning a long-term development plan, as a at 86. The ECJ added that U.S. legislation Plaintiffs are former mineral royalty reasonably prudent operator, Evolution allowing public authorities broad access to owners. They claimed that Evolution Pe- was obligated to inform its lessors about electronic communications compromises troleum, the lessee, fraudulently induced those plans and not remain silent. the very essence of the fundamental right the sale of plaintiffs’ royalty interests by Evolution appealed McCarthy II to to respect for private life. Id. at 87. misrepresenting the future value of the the Louisiana Supreme Court. Evolution The ECJ directed the Irish authority to minerals. According to plaintiffs, Evolu- argued that the 2nd Circuit’s ruling was not examine the merits of Schrems’ complaint, tion did not tell the royalty owners (who supported by current law, nor was it sup- and decide whether Facebook’s transfer were elderly or unsophisticated in oil- ported by the express words of Louisiana of European subscribers’ data to the U.S. and-gas matters) that it was in the process Mineral Code article 122. Following full should be suspended for lack of adequate of negotiating a sale of the Delhi Unit to briefing by both sides and oral argument, protection. The decision caused immediate Denbury, another oil-and-gas company the Louisiana Supreme Court agreed. On waves on both sides of the Atlantic. U.S.- that would later perform tertiary recovery Oct. 14, 2015, the court reversed the 2nd E.U. negotiators are frantically working of about 30 to 40 million barrels of oil Circuit’s decision in McCarthy II and re- on a new safe-harbor data-sharing agree- by injecting carbon dioxide into the un- instated the ruling of the trial court.

294 December 2015 / January 2016 The Supreme Court found that, under the deal they struck with Evolution (after certain eligibility requirements, and a fee article 122, a lessee does not have an obli- the fact), the court would not step in to will be associated with the application for gation to disclose information about future unwind that deal. expedited consideration, which will be development to his lessor. That is not part determined by the Commissioner. of the panoply of obligations of a reason- Expedited Permit The proposed rules may be found at ably prudent operator under Louisiana Louisiana Register, Vol. 41, No. 8, Aug. 20, law. Further, the clear and unambiguous Processing Rules 2015, pp. 1569-1572. A public hearing was language of article 122 states as much. held on Sept. 28, 2015, and comments were Thus, in the absence of a contractual duty The Louisiana Department of Natural submitted by the public on Sept. 30, 2015. between the parties requiring the lessee Resources, Office of Conservation, has to disclose such information, article 122 proposed rules relating to an Expedited Per- —Keith B. Hall cannot impliedly create such a duty. As to mit Processing Plan (LAC 43:XIX, Subpart Member, LSBA Mineral Law Section the claim of fraud by affirmative misrep- 20, Sections 4701, 4703, 4705, 4707 and Louisiana State University resentation, the court found that plaintiffs’ 4709, as authorized by Act 362 of the 2015 Paul M. Hebert Law Center petition fails to establish such a claim in Legislative Session). Applicants/operators 1 E. Campus Drive the absence of a fiduciary duty owed by the will be able to request that the Office of Baton Rouge, LA 70803 lessee. The court, relying in part on legisla- Conservation expedite the processing of and tive history and prior jurisprudence, found permits, modifications, orders, licenses, Colleen C. Jarrott that Louisiana law historically sought to registrations or variances. Whether such Member, LSBA Mineral Law Section protect a mineral lessee’s valuation of its expedited consideration will be provided Slattery, Marino & Roberts, A.P.L.C. future business prospects. Therefore, just is at the discretion of the Commissioner Ste. 1800, 1100 Poydras St. because plaintiffs were not happy with of the Office of Conservation. There are New Orleans, LA 70163 Pro Bono Heroes: Providing Justice for All

We are members of a profession; we are not just in the business of law. As a member of this noble profession, I feel a duty to offer my legal services to the members of our community who cannot afford legal help. Additionally, my family has been very blessed, and I want to help those who need assistance. I encourage all of the members of our profession to help the poor of our communities. – Michael D. Ferachi, J.D. Member with McGlinchey Stafford and volunteer with Baton Rouge Bar Foundation’s Pro Bono Project Baton Rouge, LA ustice F Providing J or A Access to Justice ll www.lsba.org/ATJ Louisiana State Bar Association

Louisiana Bar Journal Vol. 63, No. 4 295 The 5th Circuit agreed that there was state” and that plaintiffs can recover any relief no triable question regarding the patient’s to which they are entitled under the plead- informed consent, and thus the issue was ings and evidence. Though plaintiffs did not Professional irrelevant and should have been excluded. specifically plead loss of chance of survival, Liability However, the court declined to consider the claim was properly asserted because “whether irrelevant evidence of informed plaintiffs claimed the patient died as a result of consent in a medical malpractice is per se defendants’ malpractice. The 5th Circuit thus prejudicial.” The court noted that although held that the trial court erred in omitting the Panel Opinion, other jurisdictions “regularly” address jury instruction on loss of chance of survival. Informed Consent whether informed-consent evidence might But, as with the 5th Circuit’s finding on the and Pleading Loss of prejudice a jury when informed consent is admission of informed consent evidence, this not at issue at the trial, “Louisiana appellate holding was likewise issued with limitations: Chance of Survival courts have not substantively addressed this issue.” The court likewise declined to opine on As discussed above with regard to Matranga v. Parish Anesthesia of Jefferson, whether the admission of informed-consent evidence of [the patient’s] informed L.L.C., 14-0448 (La. App. 5 Cir. 5/14/15), evidence is per se prejudicial where informed consent, we decline to opine as to 170 So.3d 1077, writ denied, 15-1168 (La. consent is not an issue at trial. It noted, how- whether the trial court’s refusal to 9/18/15), ____ So.3d ____. ever, that “the danger of jury confusion was instruct the jury on lack of chance Plaintiffs appealed the admissibility of especially acute because of the factual issues of survival, in isolation, constitutes the panel opinion and a jury verdict in favor which predominated at trial” and found that reversible error. However, in this case, of medical-malpractice defendants, wherein this error, in conjunction with the trial court’s in which evidence of [the patient’s] the jury was given an unredacted copy of the failure to instruct the jury on loss of chance advanced age and declining health underlying panel opinion. Plaintiffs asserted of survival, mandated reversal. was a persistent theme throughout trial, that the opinion should have been redacted Defendants also argued that the trial court we find that the trial court’s failure to to exclude the panel’s findings of fact, which erred in excluding from its jury instructions instruct the jury on loss of chance of unduly confused and prejudiced the jury. Pur- an explanation of Louisiana law on the loss of survival probably contributed to the suant to La. R.S. 40:1299.47(G), whenever chance of survival. Defendants contended that jury’s verdict. This prejudicial error, a medical-review panel is confronted with a because the petition did not explicitly assert together with the admission of the material issue of fact that bears on liability, a loss-of-chance-of-survival claim, plaintiffs portion of the Medical Review Panel the panel is required to “simply acknowledge could not recover under that theory, citing on informed consent, contributed to the the material issue and defer to the factfinder’s Smith v. State, Department of Health & Hos- verdict to the extent that the jury was consideration.” Plaintiffs contended that pitals, 95-0038 (La. 6/25/96), 676 So.2d 543, unable to dispense justice, mandating where a medical-review panel oversteps that 547. Defendants asserted that Smith held that reversal of the jury’s verdict. limitation, those factual findings should be “loss of chance of survival is not recoverable redacted from its opinion before it may be as an element of damage in either a wrongful The jury’s verdict was reversed and the admitted as evidence in a subsequent civil death or survival action.” Matranga, 170 case was remanded for a new trial. action. The 5th Circuit agreed, holding that So.3d at 1094. Thus, defendants argued, a the trial court committed a prejudicial error loss-of-chance-of survival claim could not Summary Judgment and of law by admitting the unredacted opinion be “read into” those causes of action. La. R.S. 9:2794 into evidence. The 5th Circuit rejected defendants’ Although plaintiffs’ original claim was argument, including their interpretation of LeBoeuf v. Hospital Serv. Dist. No. 1, 14- based on a lack of informed consent, the Smith, stating: parties later stipulated that informed consent 1730 (La. App. 1 Cir. 9/21/15), 2015 WL would not be an issue at trial. In the panel opin- 5547469. Smith does not stand for the propo- Ms. LeBoeuf passed away following ion, the panelists concluded that “the medical sition that plaintiffs in a wrongful death records indicate that a consent form was a complicated, and contested, course of or survival action are prohibited from medical care. Her children filed a request signed by the patient, and risks for anesthesia supporting their theory of recovery were discussed with the patient.” Plaintiffs for a medical-review panel regarding the with regard to causation using the propriety of her treatment and the cause of her argued that this finding was not probative to loss of chance of survival doctrine. any triable, material fact of the case. They death. The panel issued a unanimous opinion Instead, Smith revolves around the favorable to the defendants and her children further argued that allowing the jury to review method of calculating damages in a the panel’s opinion on informed consent was then filed suit. The defendants moved for case where a plaintiff claims loss of summary judgment, based on the plaintiffs’ “inherently confusing and prejudicial to the chance of survival. jury,” as it was improperly suggestive that the lack of any expert medical opinion to sub- patient was willing to risk injury and death stantiate their claims. Defendants supported The court then observed that “it is well their own position with the unanimous panel to undergo preoperative anesthesia. established that Louisiana is a fact pleading

296 December 2015 / January 2016 opinion and asserted that if plaintiffs did not from the tax levied pursuant to R.S. 47:331 submit expert medical testimony contradict- for sales of steam, water, electric power ing it, the claim must be dismissed. During or energy, and natural gas, including but oral argument in the trial court, “plaintiffs’ Taxation not limited to the exemptions found in counsel admitted they had no expert nor did R.S. 47:305(D)(1)(b), (c), (d) and (g), and they have any intention of obtaining one.” any other exemptions provided in those Plaintiffs conceded that they could not prove portions of Chapter 2 of Subtitle II of Title defendants caused Ms. LeBoeuf’s death; 47 of the Louisiana Revised Statutes of nevertheless, they claimed that they could Constitutional Challenge 1950, which provide for exemptions for maintain a loss-of-chance-of-survival claim, business utilities from state sales tax. The which they asserted need not be supported to HCR No. 8 of 2015 effective date of the suspension of these by expert testimony. Regular Session exemptions was July 1, 2015. The trial court granted defendants’ sum- The business-utilities exemptions sus- mary judgment. On Aug. 13, 2015, the Louisiana pended by HCR 8 are as follows: Plaintiffs appealed, relying primarily on Department of Revenue (LDR) issued La. R.S. 9:2794(B), which provides that “(a) Statement of Acquiescence No. 15-001 to I. Utilities listed under La R.S. party . . . shall have the right to subpoena any announce that the LDR will acquiesce in 47:305(D)(1)(b),(c), (d) and (g) as physician . . . for a deposition or testimony a final, non-appealable judgment rendered follows: at trial, or both, to establish the degree of by a court of competent jurisdiction in the (b) Steam. knowledge or skill possessed, or degree of matter of Louisiana Chemical Ass’n v. (c) Water (not including mineral care ordinarily exercised” as described in State, 19th Judicial District Court, Docket water or carbonated water or any La. R.S. 9:2794(A). Plaintiffs asserted that No. 640501, Section 24, regarding the water put in bottles, jugs or contain- the use of the word “shall” in this statutory constitutionality of House Concurrent ers, all of which are not exempted). subsection is mandatory, thus concluding Resolution No. 8 (HCR 8) of the 2015 (d) Electric power or electric that this provision grants the parties in Regular Session of the Legislature. The energy and any material or energy any medical-malpractice proceeding “the Louisiana Chemical Association (LCA) sources used to fuel the generation of absolute right to proceed to trial and once sued the State, alleging that the passage electric power for resale or used by there, the right to subpoena a physician to of HCR 8 was unconstitutional by as- an industrial manufacturing plant for satisfy their burden of proof.” How, then, serting that the legislation passed was self-consumption or cogeneration. they argued, could summary proceedings be not in conformity with constitutional (g) Natural gas. used to deprive them of an absolute right? procedural requirements. Although the The 1st Circuit rejected this argument on LDR disagrees that the passage of the II. Utilities in La. R.S. 47:305(D) multiple procedural grounds, first noting that legislation at issue was unconstitutional, (1)(h), which are all energy sources La. C.C.P. art. 966(A)(2) expressly provides the LDR’s Statement of Acquiescence when used for boiler fuel, except that the summary judgment mechanism is was issued in the event that there is a refinery gas. permitted in “every action, except those final, non-appealable judgment holding disallowed by Article 969.” C.C.P. art. 969 that HCR 8 is unconstitutional. III. Utilities in La. R.S. 47:305.51, explicitly states that summary judgment is HCR 8 of the 2015 Regular Session of which are those utilities used by impermissible only regarding certain matters the Legislature suspended the exemptions steelworks and blast furnaces. ancillary to divorce proceedings. Second, the court rejected plaintiffs’ interpretation of La. R.S. 9:2794(B), finding that it constituted an improper interpretation of the intent of INSURANCE & the totality of that statute, especially when considered in pari materia with article FINANCIAL CONSULTING 966. Accordingly, the court found La. R.S. WAYNE CITRON 9:2794 “does not grant a party in a medical malpractice case the absolute right to satisfy Expert Insurance Testimony his burden of proof at trial, thereby prohibiting disposition by summary judgment.” CMC A Leading Firm in Life, Health, Disability, Property and —Robert J. David ADVISORS Casualty Insurance for Gainsburgh, Benjamin, David, 1-800-CITRON1 Over 44 Years Meunier & Warshauer, L.L.C. (1-800-248-7661) Ste. 2800, 1100 Poydras St. Insurance Law and Regulations New Orleans, LA 70163-2800 www.citronagency.com

Louisiana Bar Journal Vol. 63, No. 4 297 In response to the passage of HCR disallowed a portion of the taxpayer’s No. 8, the LCA filed a declaratory judg- inventory-tax credit on the basis that Code of ment action alleging various procedural rental property could not be held for sale rofessionalism constitutional arguments. The LCA has and could not qualify as “inventory.” The P attempted to file suit on behalf of alleged taxpayer filed a petition for refund with ► My word is my bond. I will never industrial, chemical and petrochemical the Board of Tax Appeals, which agreed intentionally mislead the court or other manufacturers with facilities and opera- that the taxpayer was entitled to the full counsel. I will not knowingly make tions within Louisiana. amount of the credit, and the Department statements of fact or law that are untrue. Pending the outcome of the lawsuit, appealed. ► I will clearly identify for other coun- taxpayers may pay the sales taxes as they La. R.S. 47:6006 allows manufactur- sel changes I have made in documents become due and then file an administrative ers, distributors and retailers to claim submitted to me. claim for refund under La. R.S. 47:1621, a credit against Louisiana income or ► I will conduct myself with dignity, using the LDR Claim for Refund of corporation franchise tax for ad valorem civility, courtesy and a sense of fair Overpayment Form (R-20127). If a final, taxes paid on inventory. On appeal, the play. non-appealable judgment is issued by a Department argued that “inventory” for ► I will not abuse or misuse the law, court of competent jurisdiction declaring purposes of this tax credit applies only to its procedures or the participants in the HCR No. 8 to be unconstitutional, then items sold and not those leased or rented judicial process. LDR will acquiesce that the sales tax and that the taxpayer was not a “retailer” ► I will consult with other counsel payments made pursuant to HCR No. 8 when it leased the equipment because the whenever scheduling procedures are re- are overpayments within the meaning of taxpayer was not engaged in a sale. While quired and will be cooperative in sched- La. R.S. 47:1621 regardless of whether the La. R.S. 47:6006 defines “retailer” as a uling discovery, hearings, the testimony taxpayer initiated its own lawsuit or paid person engaged in the sale of products of witnesses and in the handling of the under protest. All claims for refund must to the ultimate consumer, it does not entire course of any legal matter. be filed in accordance with the prescrip- define “inventory.” However, under the ► I will not file or oppose pleadings, tive period imposed by La. R.S. 47:1623. ad valorem tax statutes, all goods held in conduct discovery or utilize any course inventory as finished goods by retailers of conduct for the purpose of undue de- —Antonio Charles Ferachi are considered “inventory,” without any lay or harassment of any other counsel Member, LSBA Taxation Section other restrictions. The court explained or party. I will allow counsel fair oppor- Director, Litigation Division that courts cannot add restrictions to tax tunity to respond and will grant reason- Louisiana Department of Revenue statutes that are not present, and nothing able requests for extensions of time. 617 North Third St. in the statute restricted the credit only ► I will not engage in personal attacks Baton Rouge, LA 70821 to those goods that have only been sold on other counsel or the court. I will sup- without being rented first. The court also port my profession’s efforts to enforce Inventory Tax Credit relied on precedent in Southlake Develop- its disciplinary rules and will not make ment Co. v. Sec. of Dep’t of Rev., 98-2158 unfounded allegations of unethical con- Permitted on Equipment (La. App. 1 Cir. 11/5/99), 745 So.2d 203, duct about other counsel. Rented Prior to Sale in allowing the use of the definition of ► I will not use the threat of sanctions “inventory” for purposes of ad valorem as a litigation tactic. In Louisiana Machinery Co. v. Bridges, taxes since La. R.S. 47:6006 does not ► I will cooperate with counsel and the 15-0010 (La. App. 1 Cir. 9/18/15) (not define the term. Upon finding (1) that court to reduce the cost of litigation and designated for publication), 2015 WL the taxpayer was engaged in the sale of will readily stipulate to all matters not 5515156, Louisiana’s 1st Circuit ruled on products to the ultimate consumer and, in dispute. a taxpayer’s ability to receive inventory- therefore, a “retailer,” and (2) that the ► I will be punctual in my communi- tax credits on equipment that the taxpayer equipment at issue was held for sale in the cation with clients, other counsel and rented while holding for sale. The taxpayer ordinary course of its business, even if it the court, and in honoring scheduled in this case held all of its equipment for had been previously rented, and, therefore, appearances. sale at any time, but it rented some of its was “inventory,” the court affirmed the equipment in order to reduce the purchase decision of the Board of Tax Appeals. Following approval by the Louisiana State Bar price so that more customers could afford Association House of Delegates and the Board to purchase the equipment. The taxpayer —Christie B. Rao of Governors at the Midyear Meeting, and Member, LSBA Taxation Section approval by the Supreme Court of Louisiana included the equipment in inventory for on Jan. 10, 1992, the Code of Professionalism purposes of ad valorem taxes and claimed McGlinchey Stafford, P.L.L.C. was adopted for the membership. The Code a credit under La. R.S. 47:6006 for inven- 601 Poydras St., 12th Flr. originated from the Professionalism and tory taxes paid on its equipment. After New Orleans, LA 70130 Quality of Life Committee. an audit, the Department of Revenue

298 December 2015 / January 2016 Young Lawyers Chair’s Message... Spotlight... Awards

ethical standards, imagination, judgment CHAIR’S MESSAGE and diligence. Each encounter you have with another attorney, judge or client either builds on or detracts from your Exciting Events and reputation. You want to be regarded as reliable, intelligent, diligent, practical, Opportunities Ahead in 2016 talented and trustworthy. By Erin O. Braud Another great New Year’s resolution. . . Attend an upcoming Young Lawyers Division (YLD) event! There are sev- Happy New rude or disrespectful. eral Wills for Heroes events coming up, Year! 2016 is Remember as members of the Louisiana including in New Orleans, Lafayette starting out with a State Bar Association, we agree to abide and Baton Rouge. If you are interested lot of exciting events by the Code of Professionalism. Among in volunteering or want to have an event and opportunities other things, the Code requires us to in your city, email Adam P. Johnson at ahead. Eat healthy, conduct ourselves with dignity, civility, [email protected], or Kristi work out, stop courtesy and a sense of fair play, and to W. Richard at [email protected]. procrastinating, cooperate with counsel. Now is a good We have other exciting events learn Spanish — and time to read (or reread) the Code. Erin O. Braud happening this spring, including the state take time to make Being courteous and nice does not High School Mock Trial Competition your New Year’s mean rolling over or allowing yourself to on Saturday, March 12, 2016, at the resolutions. One big resolution you should get sandbagged. Acting like a courteous 19th Judicial District Courthouse, 300 add to your list is to improve your legal attorney will get better results for your North Blvd., Baton Rouge. Volunteers career by being more professional. clients, not worse. A Juris Doctor is are always needed. If you are interested Be a nice lawyer. The temptation is a professional degree — so act like a in participating, email Carrie L. Jones at to react to jerky opposing counsel with professional. [email protected] or Kassie L. Hargis equal hostility. Do not go there. Don’t Your reputation will be comprised of at [email protected]. use zealous advocacy as an excuse to be your skill, talent, personality, integrity, Young Lawyers Division News

Y Get the latest Young Lawyers L Division news online D Go to: www.lsba.org/YLD

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

Louisiana Bar Journal Vol. 63, No. 4 299 inducted into the Order of Barristers. He munity, participating in the SBA Young Young Lawyers served on a successful Presidential Search Lawyers Section’s Adopt-a-School Pro- S potlight Committee while at Morehouse and on a gram and for pro bono projects, including successful student subcommittee of the the LSBA Young Lawyers Division’s Wills Marcus E. Edwards Law School Dean’s Search Committee for Heroes Program. He was a member of Shreveport while at Tulane. He interned for the U.S. the 2012-13 Leadership LSBA Class. He State Department Office of War Crimes Is- participated in the Community Foundation The Louisiana sues and for U.S. 5th Circuit Chief Judge of North Louisiana’s 2012 Community State Bar Associa- Carl E. Stewart. After law school, he re- Leaders Program and served as a 2014 co- tion’s Young Law- turned to Shreveport to begin a clerkship chair of the SBA Law Day Program. yers Division is spot- in the 1st Judicial District Court, gaining Edwards also has been involved in lighting Shreveport valuable experience working in the cham- the Hugh O’Brien Youth (HOBY) World attorney Marcus E. bers of Judge Leon L. Emanuel III and Leadership Congress for more than a de- Edwards. Judge Ramona L. Emanuel. cade. HOBY is a student leadership orga- An associate at Edwards currently serves on the nization that inspires and develops youth Mayer, Smith & Shreveport Bar Association’s (SBA) Ex- and volunteers to a life of leadership, ser- Roberts, L.L.P., in Marcus E. Edwards ecutive Board, the SBA’s Professionalism vice and innovation. He has been selected Shreveport, Edwards Committee and the Louisiana State Bar to serve as chair of the 50th HOBY World devotes a majority of his practice to civil Association’s (LSBA) Legislation Com- Leadership Congress in 2017, where more defense litigation, focusing on workers’ mittee. He is a team leader for the Harry than 400 HOBY leaders from all 50 states compensation defense, premises liability, V. Booth/Judge Henry A. Politz American and more than 10 countries will meet for a personal injury and successions. Inn of Court, focusing on legal technol- week of intensive training in Chicago, Ill. He earned a BA degree in political sci- ogy. He also is a member of the Louisiana This past April, Edwards married Jab- ence from Morehouse College, where he Association of Defense Counsel and the rina Clayton Edwards, a 2012 graduate of served as Student Government president. Shreveport-Bossier Black Lawyers’ As- the University of Mississippi School of He earned his JD degree from Tulane Uni- sociation. Law. She is an attorney with Legal Ser- versity Law School with a Certificate in In- Over the past five years, he has consis- vices of North Louisiana and is admitted ternational and Comparative Law, and was tently given his time in service to the com- to practice in Mississippi and Louisiana.

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

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

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

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

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

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

300 December 2015 / January 2016 Nomination Deadline is Feb. 12, 2016: Young Lawyers Division Awards Nomination Form The Young Lawyers Division is accepting nominations for the following awards: ► Hon. Michaelle Pitard Wynne Professionalism Award. This award is given to a young lawyer for commitment and dedication to upholding the quality and integrity of the legal profession and consideration towards peers and the general public. ► Outstanding Young Lawyer Award. This award is given to a young lawyer who has made outstanding contributions to the legal profession and his/her community. ► Service to the Public Award. This award is given to a young lawyer local affiliate organization that has implemented a program or provided a service to that local community by which the non-attorney public has been helped. The program or service must be sponsored by the young lawyer local affiliate organization. ► Service to the Bar Award. This award is given to a young lawyer local affiliate organization that has implemented a program or provided a service that has benefited and/or enhanced the attorney community in that area. The program or service must be sponsored by the young lawyer local affiliate organization. ► YLD Pro Bono Award. This award is given to a young lawyer for commitment and dedication to providing pro bono services in his/her community. All entries must include a nomination form, which may not exceed 10 pages. In addition, entries should include a current photo and résumé of the nominee, newspaper clippings, letters of support and other materials pertinent to the nomination. Nomination packets must be submitted to Dylan T. Thriffiley, Chair, LSBA Young Lawyers Division Awards Committee, c/o Ochsner Health System, 1201 Dickory Ave., Harahan, LA 70123. Any nomination packet that is incomplete or is not received or postmarked on or before Feb. 12, 2016, will not be considered. Please submit detailed and thorough entries, as nominees are evaluated based on the information provided in the nomination packets. All winners will be announced at the combined LSBA Annual Meeting and LSBA/LJC Summer School in Destin, Fla., in June 2016. 1. Award nominee is being nominated for: (Individuals/local affiliate organizations may be nominated for more than one award. Please check all that apply. Candidates will only be considered for the award(s) for which they have been nominated.) ____ Hon. Michaelle Pitard Wynne Professionalism ____ Outstanding Young Lawyer ____ Service to the Public ____ Service to the Bar ____ YLD Pro Bono 2. Nominator Information: Name______Address/State/Zip______Telephone/Fax ______E-mail______

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

4. Describe the nominee’s service to the public for the past five years (or longer, if applicable). Include details as to the nature of the service, value to the public, amount of time required, whether nominee’s activities are a part of his/her job duties, and other pertinent information. 5. Describe the nominee’s service to the Louisiana State Bar Association Young Lawyers Division for the past five years. 6. Describe the nominee’s service to the legal profession for the past five years. 7. Describe the nominee’s particular awards and achievements during his/her career. 8. Provide a general description of the nominee’s law practice. 9. Describe what has made the nominee outstanding (answer for Outstanding Young Lawyer Award only). 10. Has the nominee overcome challenges (handicaps, limited resources, etc.)? 11. Why do you believe your nominee deserves this award? 12. Provide other significant information concerning the nominee.

For more information, contact Dylan T. Thriffiley at (504)842-4517 or email [email protected].

Louisiana Bar Journal Vol. 63, No. 4 301 Louisiana Center for

LouisianaCENTER FOR LCLCE Law & C ivicEducation LAW & CIVIC EDUCATION Events and awards

Lawyers/Judges in the Classroom Programs Reach 2,800+ Students on Constitution Day n observance of Constitution Day on Sept. 17, the Louisiana Center for Law and Civic Education (LCLCE) organized 76 in-school presentations statewide,I reaching more than 2,800 students. The presentations were organized Judge C. Wendell Manning, third from left, is the through the Lawyers/Judges in the Class- recipient of the first Louisiana Center for Law room Programs. and Civic Education’s (LCLCE) Judge Benja- State representatives, judges and lawyers min Jones Judges in the Classroom Award. From participating in Constitution Day activities left, Judge Benjamin Jones, Louisiana Supreme Court Justice Marcus R. Clark, Judge Manning included: Rep. Frank A. Hoffmann, Judge and LCLCE President Barbara Windhorst. E. Adrian Adams, Judge Dawn Amacker, Attorney Damon J. Baldone conducted an in- Judge Candice Bates Anderson, Judge school Constitution Day presentation at Mulberry Ernestine L. Anderson-Trahan, Judge Elementary School in Houma. Judge Manning Reginald T. Badeaux, Judge Paul P. Bonin, tary School, Folsom Junior High School, Judge John E. Conery, Judge June Berry Gethsemane Christian Academy, Gramercy Receives First Darensburg, Judge Lee V. Faulkner, Jr., Elementary Magnet School, Helen Cox Judge Benjamin Judge Andrea P. Janzen, Judge Sandra C. High School, Holy Ghost School, Hun- Jenkins, Judge Marc E. Johnson, Judge tington High School, Jefferson Chamber Jones Judges in the Benjamin Jones, Judge Keva M. Landrum- Foundation Academy, Lake Shore Middle Johnson, Judge John J. Lee, Jr., Judge School, Lawrence Crocker College Prepa- Classroom Award Michael A. Pitman, Judge Curtis Sigur, ratory School, Live Oak Middle School, Judge C. Wendell Manning, a judge in Judge Sheva M. Sims, Judge Charles G. Mulberry Elementary School, New Iberia 4th Judicial District Court, is the recipi- Tutt, Judge Zorraine J. Waguespack, Alison Senior High School, Park Forest Middle ent of the first Louisiana Center for Law C. Bondurant, Damon J. Baldone, Charles School, Renew Charter Organization’s and Civic Education’s (LCLCE) Judge C. Bourque, Jr., Jessica G. Braun, John F. Therapeutic Program, Roseland Elementary Benjamin Jones Judges in the Classroom Dillon, Jackie Dove Broussard, Richard C. Montessori School, SJP Science & Math Award. Judge Manning was recognized Drew, Henri P. Dufresne, C. Berwick Duval Academy, Southside Junior High School, for his contributions to the law-related II, Shytishia (Sam) M. Flugence, A. Spencer St. Augustine High School, St. Helena education of Louisiana’s youth. Gulden, Felicia M. Hamilton, Thomas J. College & Career Academy, St. James Louisiana Supreme Court Justice Hogan, Jr., Misael A. Jimenez, Jr., Kendra High School, Sylvanie Williams College Marcus R. Clark presented the award to S. Joseph, Laura H. Katzenmeyer, Tanner Preparatory Charter School, West Monroe Judge Manning at the 2015 Fall Judges D. Magee, Jackie M. McCreary, Brittany High School, Westgate High School and Conference in New Orleans. L. Myers, Mark Myers, DeVonna M. Pon- Woodlawn Leadership Academy. Judge Jones, the award’s namesake, at- thieu, Edward F. Rudiger, Jr., Brad P. Scott, The Louisiana Center for Law and Civic tended the inaugural presentation. Judge Celeste H. Shields, Jessica L. Thornhill and Education partners with the Louisiana State Jones began the Judges in the Classroom J. Richard Williams. Bar Association and the Louisiana Dis- Program several years ago. Between Participating schools included Allen trict Judges Association to bring lawyers, April and September 2015, more than Ellender School, Archbishop Hannan judges and educators together to deliver 8,300 Louisiana students benefited from High School, Bayou Blue Middle School, interactive, law-related presentations to the Lawyers/Judges in the Classroom Boyet Junior High School, Cohen College Louisiana schools through the Lawyers/ Program, a joint venture of the Louisiana Preparatory School, East Iberville School, Judges in the Classroom Programs. For State Bar Association, the Louisiana Dis- Eden Gardens Magnet School, Edna Karr more information, visit the LCLCE website, trict Judges Association and the LCLCE. High School, Emily C. Watkins Elemen- www.lalce.org.

302 December 2015 / January 2016 Teachers participating in the 2015 Justice Catherine D. Kimball Summer Institute at the Louisiana Supreme Court this past summer. LCLCE Hosts 2015 Justice Catherine D. Kimball Summer Institute The Louisiana Center for Law and Civic peals; Chief Judge Sheral C. Kellar, Louisi- Education (LCLCE) conducted several ana Department of Labor; Judge Madeleine professional development programs for M. Landrieu, Louisiana 4th Circuit Court Louisiana teachers this past summer. of Appeal; Judge C. Wendell Manning, 4th In addition to three back-to-school teach- Judicial District Court; Judge Rebecca M. er training workshops for St. James Public Olivier, 1st Parish Court; Jack C. Benjamin, School educators, the LCLCE coordinated Sr., Gainsburgh, Benjamin, David, Meunier the Justice Catherine D. Kimball Summer & Warshauer, L.L.C.; Kim M. Boyle, Phelps Institute, a four-day teachers’ workshop Dunbar, L.L.P.; Danatus N. King, Danatus offering instruction in and educational N. King & Associates; Thomas O. Lind, materials for law-related curricula such Canal Barge Company, Inc. (Ret.); and as “We the People: The Citizen and the Joseph B. Stahl. Also participating were Constitution” and “iCivics.” The Institute LCLCE board member Val P. Exnicios, is offered at no cost to teachers. Emily Held, a 2014-15 senior at Haynes Academy Liska, Exnicios & Nungesser; Valerie S. As an adjunct to the Institute, the LCLCE for Advanced Studies in Metairie, is the recipient Willard, Louisiana Supreme Court deputy conducted “Order in the Court.” Taught by a of the 2015 Civics in Action Award. Her award judicial administrator, community relations; was presented by Louisiana Supreme Court distinguished faculty of Louisiana state and Justice John L. Weimer at the Justice Catherine and Georgia D. Chadwick, director of the federal judges, administrative law judges D. Kimball Summer Institute. The award recog- Law Library of Louisiana. and hearing officers, “Order in the Court” nizes a middle or high school student who has The second portion of the Institute in- provided attendees a better understanding demonstrated outstanding civic virtue and included a presentation by Stacie Schrieffer of the various courts in the judicial system volvement in the community. LeBlanc on “Teens, Sex and the Law” and and further insight into the structure of “Louisiana Mandatory Reporting Laws.” the government. Twenty-eight teachers, Judge Candice Bates-Anderson, Orleans LeBlanc is the department head of the Au- representing six Louisiana congressional Parish Juvenile Court; Judge Peter H. Beer, drey Hepburn CARE Center of Children’s districts at the elementary, middle and high U.S. District Court, Eastern District of Hospital. Additional instruction and peda- school levels, participated. Louisiana; Orleans Parish District Attorney gogy on law-related curricula were provided The “Order in the Court” portion of the Leon A. Cannizzaro, Jr.; Judge Bernadette by Vickie Hebert, Ann Majeste, Michelle Institute was hosted at the Louisiana Su- G. D’Souza, Orleans Parish Civil District Molina, Chris Totaro and Elizabeth Tullier. preme Court. The faculty included Justice Court/Domestic Section; Judge James E. John L. Weimer, Louisiana Supreme Court; Graves, Jr., U.S. 5th Circuit Court of Ap-

Louisiana Bar Journal Vol. 63, No. 4 303 JUDICIAL Notes By David Rigamer, Louisiana Supreme Court New JudgeS... Appointments

New Judges his JD degree, cum versity Law School. Prior to her election laude, in 2003 from to the bench, she maintained a private John C. Reeves Southern Univer- law practice. She served as an assistant was elected judge, sity Law Center. He city attorney and administrative hearing Division B, 7th served 11 years as officer for the City of New Orleans and as Judicial District an assistant district a staff attorney for Southeast Louisiana Court. He earned attorney in East Legal Services. She also was an adjunct his BA degree in Baton Rouge Par- professor at Southern University New 1978 from Louisi- ish. Judge Higgin- Orleans and Delgado Community Col- ana Tech and his botham is married Beau M. lege. Judge Cook-Calvin is the mother JD degree in 1984 to Carrie Madge Higginbotham of three children. from Southern Uni- John C. Reeves Higginbotham and Gary K. Hays versity Law Center. they are the parents of two children. was elected judge He began his legal career in his family’s E. Charles of Pineville City law practice with his father and two Jacobs was elect- Court. He earned brothers-in-law. In 1989, he became an ed judge, Division his BS degree in assistant district attorney and served in D, 26th Judicial 1988 from North- that capacity for 18 years. He is past District Court. He east Louisiana president of the 7th Judicial District Bar earned his bach- University and his Association. Judge Reeves is married to elor’s and JD de- JD degree in 1993 Debbie McClure Reeves and they are the grees in 1992 and from Southern Uni- Gary K. Hays parents of two children. 1995, respectively, versity Law Center. William Mitch- from Louisiana E. Charles Jacobs He served as a law clerk for 9th Judicial ell Redd was elect- State University District Court Judges Alfred A. Man- ed judge, Division and LSU Paul M. Hebert Law Center. sour and W. Ross Foote from 1993-94 A, 14th Judicial He began his legal career in the law before joining Smith & Farrar law firm District Court. He office of his predecessor, Judge John as a staff attorney. He began his solo earned his bach- M. Robinson. He served 11 years as a practice in Pineville in 1997. He served elor’s degree in part-time assistant district attorney in as Pineville city prosecutor from 1998- 1987 from Loui- the 26th JDC and 15 years as the city 2014 and as magistrate for the town of siana Tech and his attorney for Springhill. He also served Ball from 2012-14. Judge Hays is mar- JD degree in 1990 William Mitchell as city attorney for the towns of Cullen ried to Michelle Hays and they are the from Louisiana Redd and Sarepta in Webster Parish. Judge parents of two children. State University Paul M. Hebert Law Jacobs is married to Melanie McCon- Center. He was a partner in the firm nell Jacobs and they are the parents of Appointments of Liles & Redd in Lake Charles for one child. 16 years before becoming managing Desiree Cook- ► John C. Anjier was appointed, by partner of W. Mitchell Redd, L.L.C. Calvin was elected order of the Louisiana Supreme Court, He served as city attorney for Sulphur judge, Section E, to the Committee on Bar Admissions as from 2010-14. Judge Redd is married Orleans Parish Ju- an examiner for Business Entities and to Dawn Ferguson Redd and they are venile Court. She Negotiable Instruments for a term of office the parents of two children. earned her BA de- which ends on Sept. 15, 2020. Beau M. Higginbotham was elected gree in 1991 from ► Allen P. Jones and J. Kevin Stelly judge, Division M, 19th Judicial Dis- Carnegie Mellon were reappointed, by order of the Louisiana trict Court. He earned his bachelor’s University and her Supreme Court, to the Louisiana Board of degrees, with honors, in 1998 and 1999 JD degree in 1994 Desiree Cook-Calvin Legal Specialization for terms of office from Louisiana State University and from Tulane Uni- which end on June 30, 2018.

304 December 2015 / January 2016 ► Professor Nadia E. Nedzel was U.S. 5th Circuit Court of Appeals Judge was elected to the 21st JDC in 1980 and appointed, by order of the Louisiana Carl E. Stewart. served as judge until his retirement in 1997. Supreme Court, to the Equivalency ► Retired 34th Judicial District Court Determination Panel for a term of office Deaths Judge Richard H. Gauthier, 82, died July that ends on Sept. 5, 2019. 25. He attended Notre Dame University ► Retired 21st Judicial District Court from 1950-52 and graduated from Loui- Retirement Judge E. Brent Dufreche, 96, died Sept. 1. siana State University, receiving his law He earned both his undergraduate and law degree in 1956. He served two years of 2nd Circuit Court of Appeal Judge degrees from Louisiana State University. active duty in the U.S. Army where he was James E. Stewart, Sr. retired effective A WWII veteran of the 338 Field Artillery a captain JAGC, USAR. He practiced law Sept. 6. He earned his BA degree in 1977 Battalion, 88th Infantry Division, he was in Arabi for 10 years before his appointment from the University of New Orleans awarded the Bronze Star for heroic service and subsequent election to the 25th JDC and his JD degree in 1980 from Loyola in a combat zone. He also served during the in 1966. In 1979, the 25th JDC was split University College of Law. He served Korean Conflict as an artillery instructor at into two districts, creating the 34th JDC, eight years as an assistant district attorney Fort Sill, OK. After law school, he opened where Gauthier served as chief judge until before being elected to the 1st Judicial a practice in Ponchatoula and served as his retirement in 1984. An active member District Court in 1990. In 1994, he was Ponchatoula city attorney. He served as of the judiciary, he served as president of elected to the 2nd Circuit Court of Appeal, Hammond city judge from 1973-79 and the Louisiana District Judges Association. filling the position vacated by his brother as assistant district attorney in 1966. He

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Louisiana Bar Journal Vol. 63, No. 4 305 People LAWYERS ON THE MOVE . . . NEWSMAKERS

Couch, Conville & Blitt, L.L.C., in New Liskow & Lewis, A.P.L.C., announces LAWYERS ON Orleans announces that Benjamin G. that eight attorneys have joined the firm THE MOVE Lambert was named a partner. as associates — Philip R. Dore, Carson M. Haddow, Collin R. Melancon, Catherine Barrasso Usdin Kupperman Freeman & Deutsch Kerrigan, L.L.P., in New Orleans Sens Napolitano and Patrick B. Reagin in Sarver, L.L.C., in New Orleans announces announces that Cassie E. Preston and the New Orleans office; and Edward M. that Tori M. Bennette, Anna F. Cavnar, Kari M. Rosamond have joined the firm Duhe, Jr., Michael H. Ishee and Caleb J. Kelsey L. Meeks and Madison A. Sharko as associates. Madere in the Lafayette office. have joined the firm as associates. Dunlap Fiore, L.L.C., in Baton Rouge an- Meneray Family Law, L.L.C., has relocated Barrios, Kingsdorf & Casteix, L.L.P., nounces that Claire E. Sauls has joined its offices to 710 Carondelet St., New in New Orleans announces that Emma the firm as an associate. Orleans, LA 70130; phone (504)330-5522. E. Kingsdorf has joined the firm as an associate. Irwin Fritchie Urquhart & Moore, L.L.C., announces that Matthew W. Bailey has Preis, P.L.C., announces that Charmaine B. Borne has joined the firm’s Lafayette office. Caraway LeBlanc, L.L.C., has relocated its joined the firm as a member in the Baton offices to 3936 Bienville St., New Orleans, Rouge office. Sher Garner Cahill Richter Klein & Hilbert, LA 70119; phone (504)566-1912. King, Krebs & Jurgens, P.L.L.C., in New L.L.C., in New Orleans announces that Kevin M. McGlone, Jeffrey D. Kessler Cashe Coudrain & Sandage in Hammond Orleans announces that Andrew J. Reben- and Ryan O. Luminais have been elected announces that Patrick G. Coudrain has nack has joined the firm as an associate. as members in the firm. joined the firm as an associate. The Kullman Firm announces that Jessica Shields Mott, L.L.P. in New Orleans an- Coats, Rose, Yale, Ryman & Lee an- L. Marrero and Geoffrey A. Mitchell nounces that Jessica A. Roberts has joined nounces that Imtiaz A. Siddiqui has have joined the firm as associates in the the firm as an associate. joined the firm as of counsel in the New New Orleans office. Orleans office.

Richard J. Arsenault Matthew W. Bailey Tori M. Bennette Anna F. Cavnar Kaye N. Courington Lawrence N. Curtis

Blake R. David Lillian E. Eyrich Scott B. Kiefer Kevin P. Maney Jessica L. Marrero David A. Martinez

306 December 2015 / January 2016 Steeg Law Firm, L.L.C., in New Orleans Barry W. Ashe, a member in the New Kerry J. Miller, a shareholder in the New announces that Zachary I. Rosenberg has Orleans office of Stone Pigman Walther Orleans office of Baker, Donelson, Bear- joined the firm as an associate. Wittmann, L.L.C., received the John R. man, Caldwell & Berkowitz, P.C., was (Jack) Martzell Professionalism Award inducted into the International Academy Stone Pigman Walther Wittmann, L.L.C., from the New Orleans Chapter of the of Trial Lawyers. announces that Bryant S. York has joined Federal Bar Association for outstanding the firm as an associate in the New Orleans professionalism in the practice of law. MaryJo L. Roberts, an associate in the office. New Orleans office of Phelps Dunbar, J. Dalton Courson, a member in the L.L.P., received the Louisiana Association Claiborne P. (Clay) Tanner announces that New Orleans office of Stone Pigman of Defense Counsel’s inaugural Frank L. he has opened his firm Tanner Law Firm, Walther Wittmann, L.L.C., received the Maraist Award for her commitment to pro L.L.C., located at Ste. B, 4232 Bluebonnet 2015 Louisiana State Bar Association’s bono work, community service and profes- Blvd., Baton Rouge, LA 70809; phone Trailblazer Award for his contributions in sional excellence. (225)215-1900. promoting diversity and inclusion in the legal profession. Paul M. Sterbcow, managing partner Tranchina & Mansfield, L.L.C., in Coving- of the firm Lewis, Kullman, Sterbcow & ton announces that Kevin P. Maney has Blake R. David, a founding partner of Abramson in New Orleans, was inducted joined the firm as an associate. Broussard & David, L.L.C., in Lafayette, into the International Academy of Trial was named Maritime Section chair for the Lawyers. The Unglesby Law Firm and Jason Williams Louisiana Association for Justice. Judge Karelia R. Stewart, 1st Judicial & Associates have joined to form the litiga- District Court, Shreveport, is one of five tion firm Unglesby + Williams, based in New Donna Y. Frazier, parish attorney for Caddo recipients of the 2015 National Bar Asso- Orleans. Partners are Lewis O. Unglesby, Parish, was elected chair of the American ciation’s (NBA) Excellence in Leadership Lance C. Unglesby and Jason R. Williams. Bar Association’s Section of State and Lo- Award for her commitment to the legal The firm is located at 607 St. Charles Ave., cal Government Law for a one-year term. profession and her work on the bench as a New Orleans, LA 70130; phone (504)345- new judge. She also was recognized at the 1390; www.unglesbywilliams.com. Patricia A. Krebs, a member of King, Krebs NBA’s 40 Under 40 Awards Luncheon as & Jurgens, P.L.L.C., in New Orleans, one of the Nation’s Best Advocates. NEWSMAKERSNEWSMAKERS received the President’s Award from the New Orleans Chapter of the Federal Bar Frank P. Tranchina, Jr., a partner in the George Arceneaux, a shareholder in the Association for her contributions to com- firm of Tranchina & Mansfield, L.L.C., in Lafayette office of Liskow & Lewis, munity leadership. Covington, has become a member of the A.P.L.C., was named a Fellow of the Louisiana State Law Institute’s Marriage American College of Trial Lawyers. Persons Committee. Continued next page

Kelsey L. Meeks Geoffrey A. Mitchell Randy Opotowsky Barbara B. Ormsby Cassie E. Preston Jessica A. Roberts

MaryJo L. Roberts Kari M. Rosamond Zachary I. Claire E. Sauls Madison A. Sharko Imtiaz A. Siddiqui Rosenberg

Louisiana Bar Journal Vol. 63, No. 4 307 PUBLICATIONS Rieveschl, James H. Roussel, Danny G. rigan, Jr., Frederick Theodore Le Clercq, PUBLICATIONS Shaw, Margaret M. Silverstein, Danielle Charles E. Leche, Nancy J. Marshall, Best Lawyers in America 2016 L. Trostorff, Paul S. West, Anne Derbes Joseph L. McReynolds, Ellis B. Murov, Adams and Reese, L.L.P. (Baton Wittmann, Matthew A. Woolf and Adam Isaac H. Ryan, Charles F. Seemann, Jr., A. Rouge, New Orleans): Charles P. Adams, B. Zuckerman. Wendel Stout III, Kelly E. Theard, William Jr., Henry B. Alsobrook, Jr., E. Gregg Bar- Baldwin Haspel Burke & Mayer, E. Wright, Jr. and Marc J. Yellin. rios, Mark R. Beebe, Philip O. Bergeron, L.L.C. (New Orleans): David L. Carrigee, Flanagan Partners, L.L.P. (New Or- Charles A. Cerise, Jr., Robin B. Cheatham, Thomas J. Cortazzo, Joel A. Mendler, Je- leans): Sean P. Brady, Harold J. Flanagan V. Thomas Clark, Jr., O. Ray Cornelius, rome J. Reso, Jr., Leon H. Rittenberg, Jr., and Thomas M. Flanagan. Scott E. Delacroix, Kathleen F. Drew, Leon H. Rittenberg III, John A. Rouchell, Lewis, Kullman, Sterbcow & John M. Duck, Brooke Duncan III, Rich- William B. Schwartz, Paul N. Vance and Abramson (New Orleans): Paul M. ard B. Eason II, Mark S. Embree, Philip Karl J. Zimmermann. Sterbcow. A. Franco, A. Kirk Gasperecz, William Beirne, Maynard & Parsons (New Liskow & Lewis, A.P.L.C. (Lafayette, B. Gaudet, Charles F. Gay, Jr., C. Kevin Orleans): Ernest L. Edwards, Jr., William New Orleans): George Arceneaux III, Hayes, E.L. Henry, Edwin C. Laizer, Les- R. Forrester, Jr., Patrick Johnson, Jr., B. George Denegre, Jr., Jonathan A. Hunter, lie A. Lanusse, Francis V. Liantonio, Jr., Richard Moore, Jr., Benjamin R. Slater III, Robert B. McNeal, Leon J. Reymond III Don S. McKinney, Patricia B. McMurray, Scott J. Sonnier and Hal C. Welch. and and Richard W. Revels, Jr. Robert B. Nolan, Glen M. Pilié, Jane C. Breazeale, Sachse & Wilson, L.L.P. McGlinchey Stafford, P.L.L.C. (Baton Raiford, Edward J. Rice, Jr., Jeffrey E. (Baton Rouge, New Orleans): Robert L. Rouge, New Orleans): Richard A. Aguilar, Richardson, James T. Rogers III, Deborah Atkinson, Thomas M. Benjamin, Robert T. Rudy J. Aguilar, Jr., Brad J. Axelrod, Samuel B. Rouen, Robert C. Schmidt, Elizabeth A. Bowsher, Jude C. Bursavich, David R. Cas- A. Bacot, Stephen P. Beiser, Mark N. Bodin, Roussel, E. Paige Sensenbrenner, Ronald J. sidy, David M. Charlton, Murphy J. Foster Jaye A. Calhoun, Rudy J. Cerone, Katherine Sholes, Mark J. Spansel, Martin A. Stern, III, Gregory D. Frost, Alan H. Goodman, Conklin, Richard A. Curry, Larry Feldman, Mark C. Surprenant, Janis van Meerveld, Emily Black Grey, Paul M. Hebert, Jr., Scott Jr., Michael D. Ferachi, R. Marshall Grod- Roland M. Vandenweghe, Jr., Robert A. N. Hensgens, Michael R. Hubbell, Joseph R. ner, L. Eades Hogue, Ronnie L. Johnson, Vosbein and David M. Wolf. Hugg, David R. Kelly, Eve B. Masinter, Van Mary Terrell Joseph, Bennet S. Koren, Baker, Donelson, Bearman, Caldwell R. Mayhall, Jr., Trenton J. Oubre, Richard Christine Lipsey, Kathleen A. Manning, B. & Berkowitz, P.C. (Baton Rouge, Man- G. Passler, Claude F. Reynaud, Jr., Jerry Franklin Martin III, Colvin G. Norwood, deville, New Orleans, Englewood, Colo.): L. Stovall, Jr., Thomas R. Temple, Jr. and Jr., Jay M. O’Brien, Erin Fury Parkinson, Alissa J. Allison, Edward H. Arnold III, B. Troy Villa. R. Andrew Patty II, Jean-Paul Perrault, An- Gerardo R. Barrios, Alton E. Bayard III, Cook, Yancey, King & Galloway, thony J. Rollo, Jr., Michael H. Rubin, John Craig L. Caesar, Phyllis G. Cancienne, A.P.L.C. (Shreveport): Samuel W. Caver- F. Sieberth, Stephen P. Strohschein, Dan E. Roy C. Cheatwood, Stephen F. Chiccarelli, lee, Sidney E. Cook, Jr., J. William Flem- West, Kenneth A. Weiss, Constance Charles Christopher O. Davis, John B. Davis, ing, Albert M. Hand, Jr., Brian A. Homza, Willems and Gerard E. Wimberly, Jr. Nancy Scott Degan, Warner J. Delaune, Bernard S. Johnson, John T. Kalmbach, Sher Garner Cahill Richter Klein Jr., Robert S. Emmett, Donna D. Fraiche, William C. Kalmbach III, Robert Ken- & Hilbert, L.L.C. (New Orleans): Mary Mark W. Frilot, Monica A. Frois, Steven nedy, Jr., Kenneth Mascagni and Herschel Beth E. Akin, John T. Balhoff II, Darnell F. Griffith, Jr., Jan M. Hayden, William H. E. Richard, Jr. Bludworth, Elwood F. Cahill, Jr., Chris- Howard III, Errol J. King, Jr., Kenneth M. Law Office of Larry Curtis, A.P.L.C. topher T. Chocheles, Martha Y. Curtis, Klemm, Amelia Williams Koch, M. David (Lafayette): Lawrence N. (Larry) Curtis. Debra J. Fischman, Joshua S. Force, James Kurtz, Kent A. Lambert, Jon F. Leyens, Deutsch Kerrigan, L.L.P. (New M. Garner, Peter L. Hilbert, Jr., Karen T. Jr., Alexander M. McIntyre, Jr., Mark W. Orleans): Francis J. Barry, Jr., Keith J. Holzenthal, Steven I. Klein, Neal J. Kling, Mercante, Kerry J. Miller, Christopher Bergeron, Frederick R. Bott, Terrence L. Ryan O. Luminais, Thomas J. Madigan II, G. Morris, William N. Norton, Dickie W. Brennan, Bertrand M. Cass, Jr., Jimmy A. Continued next page Patterson, Anne E. Raymond, David C. Castex, Jr., John Jerry Glas, Robert E. Ker-

William J. Robert M. Steeg Paul M. Sterbcow Charles L. Stern, Jr. Judge Karelia R. Kelly E. Theard Sommers, Jr. Stewart

308 December 2015 / January 2016 David A. Marcello, Kevin M. McGlone, Wendt Wisdom, Phillip A. Wittmann and People Deadlines and Notes Alvin C. Miester III, Deborah J. Moench, Paul L. Zimmering. Marie A. Moore, Chad P. Morrow, Richard Deadlines for submitting People P. Richter, Amanda R. Schenck, Leopold Z. Chambers USA 2016 announcements (and photos): Sher and Robert P. Thibeaux. Beirne, Maynard & Parsons (New Publication Deadline Steeg Law Firm, L.L.C. (New Or- Orleans): Patrick Johnson, Jr.. April/May 2016 Feb. 4, 2016 leans): Lillian E. Eyrich, David A. Marti- June/July 2016 April 4, 2016 nez, Randy Opotowsky, Robert M. Steeg Louisiana Super Lawyers 2016 Aug./Sept. 2016 June 4, 2016 and Charles L. Stern, Jr. Beirne, Maynard & Parsons (New Stone Pigman Walther Wittmann, Orleans): William R. Forrester, Jr., Patrick Announcements are published free of charge for members of the Louisiana L.L.C. (Baton Rouge, New Orleans): Johnson, Jr., Benjamin R. Slater III and State Bar Association. Members may Hirschel T. Abbott, Jr., Barry W. Ashe, Hal C. Welch. publish photos with their announcements Carmelite M. Bertaut, Stephen G. Bullock, Courington, Kiefer & Sommers, at a cost of $50 per photo. Send Joseph L. Caverly, Douglas J. Cochran, L.L.C. (New Orleans): Kaye N. Cour- announcements, photos and photo John W. Colbert, Noel J. Darce, Mary L. ington, Scott B. Kiefer and William J. payments (checks payable to Louisiana Dumestre, John P. Farnsworth, Michael Sommers, Jr. State Bar Association) to: R. Fontham, James C. Gulotta, Jr., John Neblett, Beard & Arsenault (Alexan- Publications Coordinator M. Landis, Wayne J. Lee, Paul J. Masinter, dria): Richard J. Arsenault. Darlene M. LaBranche Heather Begneaud McGowan, Michael Louisiana Bar Journal W. McKay, C. Lawrence Orlansky, Laura New Orleans CityBusiness 2015 601 St. Charles Ave. Walker Plunkett, Michael R. Schneider, Deutsch Kerrigan, L.L.P. (New Or- New Orleans, LA 70130-3404 James E.A. Slaton, Susan G. Talley, Peter leans): Barbara B. Ormsby and Kelly M. Thomson, William D. Treeby, Michael E. Theard, 2015 Class of “Women of the or email W. Walshe, Jr., Scott T. Whittaker, Rachel Year.” [email protected] LSBA Member Services – Louisiana Hotels

he following hotels have agreed to corporate discount rates for LSBA members. Call, e-mail or check the website link Tfor the current discounted rates. When making reservations, you must identify yourself as an LSBA member. New Orleans  Loews New Orleans Hotel • (504) 595-5314 Baton Rouge [email protected]  Blake Hotel • (504) 962-7220 Crowne Plaza Baton Rouge [email protected]   Maison Dupuy Hotel • (504) 648-6117 (225)930-0100 [email protected]  Hampton Inn Hotels & Suites of New Orleans [email protected] [email protected]  Omni Hotels of New Orleans Hilton Baton Rouge Capitol Center (504) 529-5077  (504) 756-1141 • [email protected] (800)955-6962, (225)906-5754

 Hotel Monteleone • (504) 648-4717 Corporate ID #0921780 • [email protected]  The Ritz-Carlton • (504) 670-2845 [email protected] [email protected] www.lsba.org/GoTo/HiltonBRCapitol www.lsba.org/GoTo/HotelMonteleone The Roosevelt New Orleans Lafayette Hyatt French Quarter • (504) 266-6362   (504)335-3008 • Corporate ID #: 2742353  SpringHill Suites Lafayette South at River Ranch [email protected] [email protected] www.lsba.org/GoTo/SpringHill

 Hyatt Regency New Orleans  Sheraton New Orleans • (800) 937-8461 Lake Charles (888) 591-1234 • Corporate ID #: 95147 [email protected]  Best Western Richmond Suites • (337)433-5213  Intercontinental Hotel • (504) 585-4309  St. James Hotel • (504) 926-7720 [email protected] [email protected] Shreveport

 Clarion Shreveport Hotel • (318)797-9900  Le Meridien Hotel • (504) 207-5025  W French Quarter Hotel • (504) 207-5025 [email protected] [email protected]  The Remington Suite Hotel • (318)425-5000

*  Le Pavillon Hotel • (504) 620-4132  Westin New Orleans Canal Place National Hotel Chains (504) 553-5110 Holiday Inn • (800)HOL-IDAY • ID: 100381739 [email protected]   LaQuinta Inns & Suites • (866)725-1661  The Whitney Hotel • (504) 212-8688 www.LQ.com • Corp. rate code: LABAR [email protected]

 Windsor Court • (504) 596-4364 *Discounts not guaranteed at every hotel property within a national chain. [email protected] Contact specific property to inquire about availability of LSBA discounted rates.

For more information on LSBA Member discount business services, visit www.lsba.org/goto/businessservices

Louisiana Bar Journal Vol. 63, No. 4 309 News Red Mass... Local Bars... LBF

Update LSBA Members Inducted into Louisiana Justice Hall of Fame

Five Louisiana State Bar Association members were among nine people inducted into the Louisiana Justice Hall of Fame this past August. The Louisiana Justice Hall of Fame recognizes individuals who have made an impact on Louisiana’s criminal justice system. The 2015 inductees included Emma Louisiana Supreme Court justices, judges from throughout the state and members of the Louisiana State J. Devillier, assistant attorney general, Bar Association attended the Oct. 5 Red Mass at St. Louis Cathedral. Photo by Darryl Schmitt Photography. Baton Rouge; Louisiana Supreme Court Justice Jefferson D. (Jeff) Hughes III; Red Mass Celebrated at St. Louis Cathedral District Attorney Charles Rex Scott, Caddo Parish; District Attorney Joseph L. The 63rd annual Red Mass, organized Archbishop Gregory M. Aymond was Waitz, Jr, Terrebonne Parish; and Sheriff by the St. Thomas More Catholic Lawyers the principal celebrant. Bishop Fernand J. Craig Webre, Lafourche Parish. Association and Catholic bishops of Loui- Cherie III was the homilist. siana, was celebrated on Oct. 5 at St. Louis Following the Red Mass, the Louisiana Cathedral in New Orleans. The Red Mass State Bar Association conducted its annual U.S. Attorney’s signifies the traditional opening of the judi- Memorial Exercises at the Supreme Court, cial year, always the first Monday in October. recognizing all members of the bench and Office Participates Before the Mass, Louisiana Supreme bar who died in the past year. in Feds Feed Court justices and judges from throughout the state gathered at the Supreme Court Families Drive building and formed a procession to the The United States Attorney’s Offices cathedral. The Mass was con-celebrated by in Shreveport and Lafayette (Western numerous priests and attended by ministers District of Louisiana) collected more than of other faiths. 275 pounds of food and non-perishable items as part of the Feds Feed Families Drive in October, said U.S. Attorney Stephanie A. Finley. The donations were delivered to two food pantries — the Food Bank of Northwest Louisiana in Shreveport; and the FoodNet: The Greater Acadiana Food Bank in Lafayette. Archbishop Gregory M. Aymond, far left, was Donation boxes for the food drive the principal celebrant for the Oct. 5 Red Mass Louisiana Supreme Court Chief Justice Bernette at St. Louis Cathedral. From left, Julia C. Spear, Joshua Johnson, left, with Archbishop Gregory M. campaign were located at the federal Bishop Fernand J. Cherie III and Judge Raymond Aymond at the Oct. 5 Red Mass. Photo by Darryl courthouses in Shreveport and Lafayette. S. Steib, Jr. at the Supreme Court reception. Photo Schmitt Photography. by Darryl Schmitt Photography.

310 December 2015 / January 2016 LAJMembershipAd_Gold_withPaymentReference_Layout 1 10/19/2015 9:12 AM Page 1

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Louisiana Bar Journal Vol. 63, No. 4 311 The 73rd annual Louisiana State NAACP Conference was Sept. 24-26 in Chalmette. Among the participants were, from left, Michael W. McClanahan, JD; Judge (Ret.) Sharon K. Hunter; attorney Danatus N. King; In commemoration of the 10th anniversary of attorney Arthur R. Thomas; Louisiana State Bar Association President Mark A. Cunningham; Judge Hurricane Katrina, attorneys from the Houston, Pamela T. Taylor-Johnson; Judge Jules D. Edwards III; attorney Joyce Marie Plummer; attorney Taryn Texas, law firm of Beck Redden, L.L.P., participated C. Branson; attorney Alfreda Tillman Bester; and Judge Donald T. Johnson. in a Day of Service Sept. 19 in New Orleans. Firm members partnered with HandsOn New Orleans to prepare the Einstein Charter School’s Sarah Towles Reed Campus for its first academic year. Beck Redden lawyers and spouses painted the school’s bathrooms and hung bulletin boards. Participants included, from left, partner Alex Roberts, of counsel Gretchen Sween, associate Kate Skagerberg, associate Patrice Childress, Shane Burroughs, associate Chris Cowan, Emily Gannaway, Katie Cowan, partner Geoff Gannaway, associate Kyle Lawrence, Caitlin Lawrence, associate Leslie Honey Tronche and John Laurent Tronche.

SLLS Receives LSC The newly established Specialty Bars Subcommittee’s inaugural meeting was Oct. 3 in Baton Rouge. Specialty bar representatives discussed their programs and challenges their organizations face. Louisiana Grant for Medical- State Bar Association (LSBA) President Mark A. Cunningham and LSBA staff also attended the event. From left, Eve Goudeau, LSBA staff; Demarcus J. Gordon, chair, LSBA Minority Involvement Section; Legal Partnership Cunningham; April D. Davenport, secretary, Greater New Orleans Louis A. Martinet Legal Society, Inc.; Patsy A. Randall, president, Greater Lafayette Louis A. Martinet Legal Society, Inc.; Mary L. Jackson, president, Shreveport-Bossier Black Lawyers Association; Rene DeRojas, treasurer, Hispanic Lawyers Southeast Louisiana Legal Services of Louisiana; George W. Britton III, president, Northeast Louisiana Louis A. Martinet Legal Society, Corp. (SLLS) received a 24-month Inc.; Christine T. Bruneau, president, Louisiana Asian Pacific American Bar Association; and Derrick $290,520 Pro Bono Innovation Fund grant D. Kee, president, Lake Charles Louis A. Martinet Legal Society, Inc. from the Legal Services Corp. (LSC) to launch a medical-legal partnership to integrate legal aid into eight community- based health clinics. Through a partnership with the Pro Bono Project in New Orleans and the Daughters of Charity Services of New Orleans, this project will allow legal volunteers to provide services on critical disability, Medicaid and housing issues to patients using those clinics. This new project will help remove access barriers for low-income clients through new and expanded pro bono services delivered by volunteer lawyers, paralegals and law students. The Pro Bono Innovation Fund is a The 2015-16 officers of the Greater New Orleans Chapter of the Louis A. Martinet Legal Society, Inc. were competitive grant program that invests installed on Oct. 6 at the U.S. District Court, Eastern District of Louisiana. Judges participating in the in projects that identify and promote swearing-in ceremony were Judge Ivan L.R. Lemelle, Judge Nannette Jolivette Brown and Judge Piper replicable innovations in pro bono for D. Griffin. Officers, from left, are Dana M. Douglas, president; Justin I. Woods, vice president; Ashley J. low-income legal aid clients. This is the Heilprin, corresponding secretary; April D. Davenport, recording secretary; Royce I. Duplessis, president- elect; and Cashauna M. Hill, immediate past president. Not in photo, James L. Moffett III, treasurer. second year LSC has awarded the funds.

312 December 2015 / January 2016 In recognition of the Louisiana State Bar Association’s Month of Service, on Oct. 3, two New Orleans law firms — Irwin Fritchie Urquhart & Moore, Judge (Ret.) Charles L. Porter, left, received the Legal Excellence and L.L.C., and Phelps Dunbar, L.L.P. —provided the lunch at Ozanam Inn, a Professionalism Award from the American Inn of Court, Inn of the Teche homeless shelter in New Orleans. The event was coordinated through the Chapter, on Sept. 24. Before his retirement from the bench, Judge Porter New Orleans Bar Association’s Public Service Committee. The law firms represented Division G in the 16th Judicial District, comprising the parishes purchased the ingredients, and the firms’ volunteers prepared, cooked and of Iberia, St. Martin and St. Mary. With him is his wife Jimmie Kay Porter. served more than 250 lunches that day.

The Baton Rouge Bar Association’s (BRBA) 30th annual Fall Expo and Conference was Sept. 17 at L’Auberge Casino and Hotel Baton Rouge. The event featured the BRBA’s September Bar Luncheon, three hours of CLE The Baton Rouge Bar Association’s (BRBA) 2015 annual softball and 34 exhibitor booths. A Q&A seminar titled “Lassoing with the Judges” tournament champion is a team from Breazeale, Sachse & Wilson, L.L.P. opened the event and featured a real cowboy/lawyer, E.I. Holden Hoggatt, Joseph J. Cefalu III, left, and Jordan L. Faircloth, representing the firm, who practices law in the Lafayette area, and four Baton Rouge judges. were presented with a custom-made bat from Marucci Bat Co. during the Hoggatt presented a lassoing demonstration. From left, 19th Judicial BRBA Fall Expo and Conference on Sept. 17. District Court Commissioner Quintillis K. Lawrence; Judge Trudy M. White, 19th JDC, Criminal Division; Hoggatt; Judge Pamela A. Moses- Laramore, Louisiana Office of Workers’ Compensation; and Judge Pamela J. Baker, East Baton Rouge Parish Family Court. Send your news! The Louisiana Bar Journal would like to publish news and photos of your activities and accomplishments. Email your news items and photos to: LSBA Publications Coordinator Darlene LaBranche at [email protected].

The Baton Rouge Bar Association’s (BRBA) Fall Expo and Conference was Or mail press releases to: Sept. 17. Attending, from left, BRBA President Robert J. (Bubby) Burns, Darlene LaBranche, 601 St. Charles Ave., New Jr., Law Expo Committee Chair Michael R. Brassett II, Mary Ann White Orleans, LA 70130-3404 and BRBA board member David Abboud Thomas.

Louisiana Bar Journal Vol. 63, No. 4 313 Lafayette Lawyers Inducted into Hall of Fame The Lafayette Bar Association (LBA) inducted seven of Lafayette’s outstanding legal professionals into the Hall of Fame during ceremonies in September. The LBA established its Hall of Fame to Attending the Sept. 9 Alexandria Bar Association’s recognize the contributions of outstanding annual cocktail reception were, from left, Bradley attorneys and members of the local bar. L. Drell, president, Alexandria Bar Association; Judge Patricia E. Koch, 9th Judicial District Court; Inclusion in the Hall of Fame recognizes an Michael S. Koch; Barbara Bell Melton, board exemplary career as an attorney, dedicated member, Alexandria Bar Association; Eugene P. service to the community, and participation Circardo, secretary, Alexandria Bar Association; in the Bar. and Aaron L. Green, vice president and president- elect, Alexandria Bar Association. The 2015 inductees are: ► James J. Davidson III is senior partner at Davidson, Meaux, Sonnier, McElligott, Fontenot, Gideon & Edwards, L.L.P. The Lafayette Bar Association inducted seven of Lafayette’s outstanding legal professionals into ► Joel E. Gooch is a founding partner the Hall of Fame during ceremonies in September. in the law firm Allen & Gooch. Seated from left, Joel E. Gooch and Timothy J. ► John A. Jeansonne, Jr. is a founding McNamara. Standing from left, John A. Jeansonne, partner in the law firm Jeansonne & Jr., James J. Davidson III and Patrick A. Juneau. Photo by Danny Landry. Remondet, L.L.C. Several new Bar admittees from Alexandria ► Patrick A. Juneau is a founding partner attended the Alexandria Bar Association’s annual Domengeaux were inducted posthumously. cocktail reception on Sept. 9. From left, Alexander in the law firm Juneau David, A.P.L.C. In addition to the Hall of Fame inductees, J. Baynham, Jerome Andries, Kenneth A. Doggett, ► Timothy J. McNamara currently Miles A. Matt received the LBA President’s Lauren M. Barletta, Nicole Morgan, Tamera N. works for the Onebane Law Firm, A.P.C. Award and Cliff A. LaCour received the Branham, Jeremiah J. Sams and Priya Kumar. ► J.J. Davidson, Jr. and James Outstanding Young Lawyer Award.

LBF Seeks 2016-18 Scholar in Residence The Louisiana Bar Foundation (LBF) system, and advance the reality of equal is accepting applications for a Scholar justice under the law. The SIR appointment Louisiana State Bar Association President-Elect in Residence (SIR) to serve a two-year is intended to enrich the academic and Darrel J. Papillion welcomed judges and attorneys to term beginning in July 1, 2016. A $7,500 intellectual perspective of the LBF’s the Rapides Parish annual court-opening ceremony at the Rapides Parish Courthouse on Sept. 9. honorarium will be paid to the scholar as efforts, to enhance the LBF’s overall consideration for his/her work product. educational program, and to support legal Over the term of the appointment, the education in Louisiana by bringing the scholar will produce for publication a practicing bar and Louisiana’s law schools scholarly quality written contribution on a closer together. subject and in a form agreed upon with the Applicants must submit a specific LBF, such as a law review article, book, proposal, including topic, prospectus, booklet, essay or other legal publication, suggested format, proposed timeline and including film, television projects, etc., applicant’s qualifications. Applications suitable for the intended LBF purpose. must be received by Friday, Feb. 19, 2016 The purpose of the SIR appointment is — by mail to Louisiana Bar Foundation, The 4th Judicial District Court conducted its annual to incorporate an academic and scholarly Education Committee, Ste. 1000, 1615 court-opening ceremony and reception on Sept. 11 dimension to the LBF’s overall efforts of Poydras St., New Orleans, LA 70112; in Monroe. The reception followed the ceremony at the Ouachita Parish Courthouse and the Red Mass preserving, honoring and improving the by fax (504)566-1926; or by email to at St. Matthew’s Catholic Church. From left, Judge system of justice by funding and promoting [email protected]. H. Stephens Winters, 4th JDC; Shereba L. Diaz, efforts that enhance the legal profession, For more information, contact Dennette immediate past president, 4th Judicial District Bar increase public understanding of the legal L. Young at the LBF at (504)561-1046. Association; and Thomas M. (Tommy) Hayes IV, president, 4th Judicial District Bar Association.

314 December 2015 / January 2016 Louisiana Bar Foundation President’s Message The Giving Season By President H. Minor Pipes III

‘Tis the season for spending time with in access to justice. ► Give children a voice in court. family and friends, eating delicious food Working together, ► Bring families back together. and, hopefully, reflecting on the spirit of we can meet the legal ► Provide education to youth about the season. Thank you to all our Fellows needs of our state’s the legal process. for your continued support. Please most vulnerable ► Bring communities together to identify legal needs in their areas. consider giving to the legal profession’s people. Please take the time during this busy best exemplar by making a year-end gift With your support, holiday season to reflect on the blessings to the Louisiana Bar Foundation (LBF). the LBF is able to: in your life and consider a gift to the Contributions to the LBF ensure justice is ► Help victims LBF. Make your gift online at www. a reality, not just for those who can afford in domestic violence H. Minor Pipes III raisingthebar.org/gift or mail directly to it, but for everyone in Louisiana. shelters. the LBF, Ste. 1000, 1615 Poydras St., New A gift to the LBF demonstrates your ► Protect children who need a stable home. Orleans, LA 70112. For more information, belief in our mission and will help ► Aid the elderly through financial contact Development Director Laura strengthen the programs we support, the crises. Sewell at (504)561-1046 or email laura@ services we provide, and the more than ► Assist families in retaining their raisingthebar.org. 70 grantees we help to fund. Support the homes. work of the LBF and make your investment Sponsors Sought for LBF’s 30th Anniversary Gala The Louisiana Bar Foundation (LBF) Ouachita Parish. Discounted rooms are available Thurs- will celebrate the 30th Anniversary Gala on Sponsorships are available at several day, April 7, and Friday, April 8, 2016, at Friday, April 8, 2016. The gala and live auc- levels: 30th Anniversary Circle; Benefactor; $229 a night. To make a reservation, call tion will be held at the Hyatt Regency New Cornerstone; Capital; Pillar; and Founda- the Hyatt at 1(888)421-1442 and reference Orleans, 601 Loyola Ave., New Orleans. tion. To learn more about each sponsorship the “Louisiana Bar Foundation” or go to: The LBF will honor the 2015 Distin- level, and to purchase sponsorships or in- www.raisingthebar.org. Reservations must guished Jurist Sarah S. Vance, Distinguished dividual tickets, go to: www.raisingthebar. be made before Monday, March 14. Attorneys Judy Y. Barrasso and Herschel E. org/gala2016/. For more information, contact Laura Richard, Jr., Distinguished Professor Alain Individual tickets to the gala are $150. Sewell at (504)561-1046 or email laura@ A. Levasseur and Calogero Justice Award Young lawyer individual gala tickets are raisingthebar.org. recipient, The Family Justice Center of $100.

LBF Seeking Nominations for 2016 Award Louisiana Bar The Louisiana Bar Foundation (LBF) [email protected] by the deadline. is seeking nominations for the 2016 Curtis The award will be presented at the Louisi- Foundation Announces R. Boisfontaine Trial Advocacy Award. ana State Bar Association’s Annual Meeting New Fellows Nominations must be received in the LBF in Destin, Fla., in June. The recipient will The Louisiana Bar Foundation office by Friday, Feb. 5, 2016. receive a plaque and $1,000 will be donated announces new Fellows: Nominations should include nominee’s in his/her name to a non-profit, law-related Jennifer E. Adams...... New Orleans name, contact information, a brief written program or association of his/her choice. statement on the background of the nominee, This trial advocacy award was estab- James D. Caldwell, Jr...... Baton Rouge as well as reasons why the nominee is pro- lished through an endowment to the Loui- Stephanie A. Cornay Dugan...... Lafayette posed as the award recipient. Nominations siana Bar Foundation in memory of Curtis should be forwarded to Dennette Young, R. Boisfontaine, who served as president of Trenton A. Grand...... Baton Rouge Communications Director, Louisiana Bar the Louisiana State Bar Association and the Prof. Alain A. Levasseur...... Baton Rouge Foundation, Ste. 1000, 1615 Poydras St., Louisiana Association of Defense Counsel. New Orleans, LA 70112, or emailed to S. Christie Smith IV...... Leesville

Louisiana Bar Journal Vol. 63, No. 4 315 Classified ads ONLINE at www.lsba.org CLASSIFIED NOTICES environment. 1) Environmental litigation Standard classified advertising in our regu- POSITIONS OFFERED attorney — Senior associate to join environmental legal team; minimum five lar typeface and format may now be placed Metairie law firm (AV-rated) seeks in the Louisiana Bar Journal and on the years’ civil litigation experience preferred LSBA Web site, LSBA.org/classifieds. an experienced health care regulatory with emphasis on complex litigation; A/V All requests for classified notices must attorney with a current book of business but rating preferred; environmental law, oil be submitted in writing and are subject with the capacity to take additional work to approval. Copy must be typewritten and gas law and/or toxic tort experience representing hospitals, medical practices preferred. 2) Environmental and toxic tort, and payment must accompany request. and other health care providers. Reply in Our low rates for placement in both are first-chair attorney to join environmental as follows: strict confidence to: Office Administrator, and toxic tort legal team — Minimum P.O. Box 931, Metairie, LA 70004-0931. eight years’ defense experience preferred RATES in first-chair civil jury trials, complex Metairie defense firm seeks seven-year to litigation and primary case management; CLASSIFIED ADS 10-year lawyer with excellent writing and A/V rating required; environmental, oil and Contact Krystal L. Bellanger at analytical skills to perform legal research gas and/or toxic tort experience preferred. (504)619-0131 or (800)421-LSBA, and document review, and to prepare ext. 131. Those interested in these positions should written analysis of complex legal issues. visit the Curry & Friend, P.L.C., website at: Non-members of LSBA Insurance coverage experience helpful. www.curryandfriend.com/careers. $85 per insertion of 50 words or less The position offers competitive salary $1 per each additional word and benefits. Email résumé toattycmte@ Minimum qualifications of defense $20 for Classy-Box number gmail.com. attorneys for the Patient’s Compensation Members of the LSBA Fund. In accordance with La. R.S. Metairie defense firm seeks four-year to $60 per insertion for 50 words or less 40:1299.41(J), attorneys appointed to $1 per each additional word six-year lawyer with excellent writing and defend PCF cases must meet the following No additional charge for Classy-Box analytical skills to perform legal research minimum qualifications as established number and document review, and to prepare by the Patient’s Compensation Fund written analysis of complex legal issues. Oversight Board: (1) Must be a defense- Screens: $25 The position offers competitive salary Headings: $15 initial headings/large type oriented firm with at least 75 percent of and benefits. Email résumé toattycmte@ practice dedicated to defense; (2) Defense BOXED ADS gmail.com. firm appointed to PCF cases shall have Boxed ads must be submitted camera ready NO plaintiff medical malpractice cases; by the advertiser. The ads should be boxed Curry & Friend, P.L.C., a growing New (3) Defense firm must provide proof of and 2¼” by 2” high. The boxed ads are $70 Orleans CBD and Northshore law firm, per insertion and must be paid at the time of Professional Liability coverage with a is seeking qualified candidates for two placement. No discounts apply. minimum limit of $1 million; (4) Defense positions. The firm offers competitive DEADLINE salary and benefits and an excellent work For the April issue of the Journal, all classified notices must be received with payment by Feb.18, 2016. Check and ad copy should be sent to: Forensic Document LOUISIANA BAR JOURNAL Examiner Adele A. Thonn Classified Notices Forensic Document Examiner 601 St. Charles Avenue Robert G. Foley Services include document examination, New Orleans, LA 70130 Handwriting • Typewriting • Copies analysis and opinions including, but not Ink/Paper Analysis & Dating limited to, questioned signatures and RESPONSES alleged alterations To respond to a box number, please address Certified & Court Qualified in Happily servicing the Greater New Orleans your envelope to: Federal, State, Municipal & area and surrounding parishes Journal Classy Box No. ______Military Courts since 1972 c/o Louisiana State Bar Association Phone: (504) 430-5117 Phone: (318) 322-0661 601 St. Charles Avenue Email: [email protected] www.robertgfoley.com New Orleans, LA 70130 www.thewriteconsultants.com

316 December 2015 / January 2016 counsel. Assistance in transfer of oil and attorney must have a minimum of five Services years’ experience in the defense of SERVICES gas properties and valuations. Statewide coverage. Jack Wilhelm and Edward medical malpractice cases; (5) Defense Texas attorney, LSU Law 1985. Wilhelm, 1703 West Ave., Austin, TX attorney must have completed three trials Admitted in Louisiana and Texas. I am 78701, (512)236-8400, www.wilhelmlaw. within the past three years. Presentation available to attend hearings, conduct net. of five submissions to a medical review depositions, act as local counsel and panel may be substituted for each of two accept referrals for general civil litigation For Rent trials. However, the defense attorney in the Houston area. Contact Manfred FOR RENT Covington must have tried at least one case in the Sternberg, Jr. at (713)622-4300; email COVINGTON past three years. Interested persons [email protected]. may submit written comments to Ken Executive office suites. Two blocks to Covington courthouse. Includes utilities, Schnauder, Executive Director, Patient’s Appellate briefs, motions, legal research. cleaning, conference room, library, Compensation Fund, P.O. Box 3718, Attorneys: the appellate process is your kitchen, off-street parking, fax, copier Baton Rouge, LA 70821. last chance to modify or defend your and wireless Internet. From $400/month. judgment. Lee Ann Archer, former Owner-broker: (985)867-0747 Or email: Shuart & Associates Legal Search & Louisiana Supreme Court clerk and [email protected]. Staffing. In today’s market, many law Tulane Law honors graduate, offers your firms are growing by lateral acquisition best chance, with superior appellate briefs, For Rent of partners/practice groups. Some outstanding legal research, pinpoint record FOR RENT Metairie partners are choosing to relocate to firms review and 20-plus years of appellate METAIRIE where their unique strengths are valued experience. Confidential; statewide Office on Ridgelake Drive, Metairie. and compensation competitive. This service; fast response. Call (337)474-4712 $585/month, plus cost sharing of fax requires broad knowledge of the existing (Lake Charles); email lee@leeaarcher. supplies, paper, copier and postage marketplace and insight into the culture com; visit www.leeaarcher.com. of local law firms. Shuart & Associates meter. Office suite with three other attorneys features a kitchen, bathroom, has a proven track record in providing Brief writing/legal research. Columbia two conference rooms and secretarial this service. All inquiries confidential. Law School graduate; former U.S. 5th area. Located on the second floor with (504)836-7595. www.shuart.com. Circuit staff attorney; former U.S. District elevator access and off-street parking. Court, Western District of Louisiana, Call (504)837-5242 for details. PositionsPOSITIO WantedNS WANTED law clerk; 16 years of legal experience; available for brief writing and legal For Sale Position sought. 19 years’ solo general research; references and résumé available FOR SALE practice in Chauvin/Cocodrie, Terrebonne on request. Douglas Lee Harville, Like new office furniture. Large Parish. Civil/criminal. Former English [email protected], selection. Desks, chairs, conference teacher, 17 years; building contractor, (318)222-1700 (Shreveport). 15 years. Position in/near Baton Rouge, tables, file cabinets, etc. Canal Furniture Liquidators, 3534 Toulouse St. (at the but have Toyota, will travel. Paul Brief writer available for writ end of Bayou St. John), New Orleans. Lapeyrouse, (985)594-7285, (225)753- applications, appellate briefs and research/ (504)482-6851. 5001, (985)855-1817 (mobile). Mail: writing-intensive motions. Writer has

5453 Hwy. 56, Cocodrie, LA 70344; 5536 history of appellate practice with many Notice Superior Dr., Baton Rouge, LA 70816. victories before state appellate courts NOTICE and the Louisiana Supreme Court. Notice is hereby given that Philip Search “Alan D. Alario, II” on Westlaw Lawrence is filing a petition and to view some cases I have handled at the application for reinstatement to the appellate level. Competitive, creative Louisiana State Bar Association. Any rates based on your particular attorney- person(s) concurring with or opposing the client fee agreement. Writing samples petition and application for reinstatement and references available upon request. may file notice of their concurrence or The Alario Law Firm, L.L.C., (504)832- opposition with the Louisiana Attorney 9942 (Metairie), [email protected]. Disciplinary Board, Ste. 310, 2800 Veterans Memorial Blvd., Metairie, LA Texas counsel: Louisiana attorney 70002, within 30 days. licensed in Texas since 1992 available to handle Texas ancillary probate proceedings and serve as local litigation

Louisiana Bar Journal Vol. 63, No. 4 317 Legal Services Directory To advertise in this directory, contact Krystal Bellanger-Rodriguez at (504)619-0131 or email [email protected]

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Louisiana Bar Journal Vol. 63, No. 4 319 The Last Word By Edward J. Walters, Jr. Ipse Dixit: Things I Wish I learned...

ere are a few things I wish I had Break projects down into manageable, or your client anything. You will quickly learned in law school. bite-sized pieces, then just take on one build up a bank of trust and credibility with In order to solve a problem, piece at a time. other lawyers. you must first identify the Take time just to sit, alone, and think When you learn a neat new trick, share problem.H about your cases. You’ll be surprised by it with others. Your character and integrity are your the ideas you get. Laugh when something funny happens, most valuable assets. Pick your battles. You don’t have to either in the office, in a deposition, or in There are four kinds of tasks: important fight every issue in every case. If you fight the courtroom. Keep your sense of humor. and urgent; important and non-urgent; un- too many issues, your important ones will Whether arguing to a judge or a jury, important and urgent; and unimportant and get lost. speak slower than you think you need to, non-urgent. If not important, don’t let the You decide what case you want to try, and don’t be afraid to pause and think before apparent urgency of the task draw you away not your opponent. If they choose what case answering questions. from those tasks that are truly important. you will try, you will not like it. Remember that until a witness does Attention to detail is the most important Be yourself. Don’t try to act like that something to turn the jury against him or her, trait of a good lawyer. Preparation beats tal- other lawyer with whom you were really the jury likes the witness more than they like ent 99 times out of 100 (and the one time it impressed. You’re not that good an actor. you. Handle the witness with that in mind. didn’t, talent just got lucky). Never turn in the first, second or third Don’t ever stop being nervous the Appreciate challenges. They make you draft of a brief, and, when a senior lawyer minutes before a hearing, deposition or a better and stronger person. asks you for a “draft,” he or she means your trial. Adrenaline is just your brain’s way Appreciate losses. They make you wiser very best final product. of getting you pumped up and ready to go. and also make you a better and stronger Proofread everything at least twice. Listen to the war stories that old(er) person. Many people (including judges and oppos- lawyers tell. You can learn a lot from other Appreciate victories. They hold you up ing counsel) will form their first impression people’s experiences (mistakes). between the challenges and losses. of you based upon your written work prod- Nothing is as simple as it seems, and Don’t be afraid of the big megafirms. uct. If your paperwork is sloppy, you will nothing is as complex, either. Some of the people there are not that smart. be perceived as unprepared and sloppy in You never know unless you try. Don’t underestimate the intelligence of all that you do. If you think you can’t, you’re right. that small-town bumpkin lawyer. He may When preparing a case, don’t become be much smarter than you are. so focused on liability that you forget about Edward J. Walters, Jr., When evaluating the merits of a case ei- damages. A clear liability case with zero a partner in the Baton Rouge firm of Walters, ther for the plaintiff or the defense, recognize proof of damages is worth . . . zero. Papillion, Thomas, Cul- that the case will look its best the day it first When preparing a case, don’t become so lens, L.L.C., is a former comes in — it’s all downhill from there. focused on damages that you forget about Louisiana State Bar As- Whenever possible, visit the scene and liability. A $10,000,000 case with zero li- sociation secretary and editor-in-chief of the take pictures if necessary. Whether you ability is worth . . . zero. Louisiana Bar Journal. are dealing with a personal injury case or In oral argument or at trial, treat opposing He is a current member a commercial dispute, being there gives counsel as you would treat your grandfather. of the Journal’s Editorial you insights that you can never get from Sharp remarks, even when deserved, will Board. He is the chair of the LSBA Senior Lawyers Division and editor of reading about it. make you seem petty and detract from the the Division’s e-newsletter Seasoning. (walters@ There is no such thing as dicta, what they force or substance of your argument. lawbr.net; 12345 Perkins Rd., Bldg. 1, Baton told you in law school notwithstanding. If it Never refuse opposing counsel a favor Rouge, LA 70810) appears in a relevant opinion, be prepared when it is within your ability to grant it, to deal with it substantively or lose. and granting the favor will not cost you

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

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