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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. 61, No. 3 169 170 October / November 2013 ®
October / November 2013 Volume 61, Number 3
Departments Features Editor’s Message...... 175 Patricia Gilley and Henderson v. United States: A Shreveport Small-Firm Lawyer’s Path to Victory in the U.S. Supreme Court President’s Message...... 176 By S. Christopher Slatten...... 178 Association Actions...... 196 For Whom the Clock Tolls? Practice Management...... 200 Louisiana’s New Law on Tolling Agreements Lawyers Assistance...... 202 By Ronald J. Scalise, Jr...... 182 Focus on Diversity...... 203 Book Review Puzzle...... 204 Flood of Lies: The St. Rita’s Nursing Home Tragedy by James A. Cobb, Jr. Focus on Professionalism..... 205 Reviewed by Pascal F. Calogero, Jr...... 186 Discipline Reports...... 206 Lawyers Assistance Program, Inc. Establishes Free Depression Recovery Recent Developments...... 209 Groups Statewide Young Lawyers...... 226 By J.E. (Buddy) Stockwell...... 190 La. Center for Law LSBA Supports Local Pro Bono Efforts with October Month of Service and Civic Education...... 228 ...... 194 Judicial Notes...... 229 Who’s Who in ADR 2013 People...... 230 Check out the separate supplement News...... 232 Who’s Who mailed with this issue! Classified...... 237 in ADR The Last Word...... 240 2013 Also Inside
Member Services...... 174 Alcohol/Drug Abuse Hotline.. 204 SOLACE...... 227 Advertisers’ Index...... 239 Supplement to the Louisiana Bar Journal Volume 61, No. 3 Louisiana Bar Journal Vol. 61, No. 3 Who’s Who in ADR 2013 1
Shreveport attorneys, from left, Harold C. Gilley, Jr., Patricia A. Gilley and Tristan P. Gilley on the steps of the U.S. Supreme Court in Washington D.C. Photo provided by the Gilley Family. Read more on page 178.
Louisiana Bar Journal Vol. 61, No. 3 171 ® Officers 2013-14 President Editorial Board Richard K. Leefe • (504)830-3939 Barry H. Grodsky President-Elect Editor John H. Musser V Joseph L. (Larry) Shea, Jr. • (318)934-4017 (504)599-8535 (504)523-0400 Secretary Adrejia L. Boutte Barry H. Grodsky • (504)599-8535 Christopher K. Odinet (504)561-5700 Treasurer (225)346-0285 Steven G. (Buzz) Durio • (337)233-0300 Erin O. Braud Roy H. (Hal) Odom, Jr. Immediate Past President (504)837-7050 (318)227-3762 John H. Musser IV • (504)599-5964 John S. (Chip) Coulter Maggie Trahan Simar Board of Governors 2013-14 (225)382-3183 (337)394-6133 First District Anthony M. DiLeo Gail S. Stephenson H. Minor Pipes III • (504)589-9700 (504)274-0087 (225)771-4900, x216 David W. Leefe • (504)556-4137 Brendan P. Doherty Second District Tyler G. Storms (832)255-6019 (318)255-7805 Stephen I. Dwyer • (504)838-9090
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172 October / November 2013 BUILDING ON 50 YEARS OF SERVICE TO THE LEGAL COMMUNITY. The ABA RETIREMENT FUNDS PROGRAM is proud to celebrate its 50th year of providing comprehensive and affordable retirement plans exclusively to the legal community. Your membership has made the Program a success. Thank You. Find out what thousands of Program member firms already know about saving for retirement.
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Louisiana Bar Journal Vol. 61, No. 3 173 ® 601 St. Charles Ave. New Orleans, La. 70130 Member Web site: www.LSBA.org (504)566-1600 (800)421-LSBA Services Fax (504)566-0930 Louisiana Hotels Programs The following hotels have agreed to corporate discount rates for For information about these LSBA programs, contact the Bar Office by calling (504)566-1600 LSBA members. Call, e-mail or check the website link for the or (800)421-LSBA. If you have questions regarding the negotiated corporate rates offered at current discounted rates. When making reservations, you must the hotels listed, contact Kayuyum Koban for assistance. identify yourself as an LSBA member.
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*Discounts not guaranteed at every hotel property within a national chain. Contact specific property to inquire about availability of LSBA Shreveport discounted rates. Clarion Shreveport Hotel, (318)797-9900 The Remington Suite Hotel, (318)425-5000 www.remingtonsuite.com
174 October / November 2013 Editor’s Message
By Barry H. Grodsky Vince, Thanks for Making Us Smile! text message acronyms (my favorite was lthough I But, alas, all good “PIH,” Plattsmier Is Holding). hope one things must come to Vince will be missed, but the last page an end and it is with will carry on. While “Lucid Intervals” will day to do sadness that Vince will be no more, the Journal will have “The Last not be contributing his Word” to grace its final page. The tone will so, I have “Lucid Intervals” seg- be a bit different. We will have articles from ment for the Journal Bar members dealing with humor, personal never met Vince For- any longer. A perspectives, human interest and just plain How many times Vince Fornias old “feel good” pieces. The authors will vary; nias. I really would like have we heard at- the next few Journals will have contributions to. We all know Vince torneys say they are “looking at the back from our Editorial Board. We certainly wel- of the Bar Journal?” The standard joke, of come contributions from lawyers and judges as the author of “Lucid course, was to see who was in the disciplin- alike (remember, though, no lawyer jokes). ary report. However, just as often, it was to So now we bid a fond farewell to Vince Intervals,” the often ir- read “Lucid Intervals” first before digging Fornias. We thank him for his contributions into the substance of the Journal. and hard work and for making us smile and reverent, ever witty last Vince’s wit and wisdom made us smile, often laugh out loud. Realizing he wanted to made us think and made us chuckle. He spend time doing other things was apparently page of the Louisiana didn’t cross the line to simply spew lawyer indeed his final “Lucid Interval.” jokes, which are actually demeaning to the Bar Journal. Anyone profession and generally not very funny. He wrote to truly humor us. who can write like he I recall two particularly funny articles does would be great, not he wrote — one titled “Electile Dysfunc- tion” was the official guide to Louisiana to mention fun, to meet. elections, and the other provided a list of Ethics Advisory Service For assistance with dilemmas and decisions involving legal ethics, take full advantage of the LSBA’s Ethics Advisory Service, offering - at no charge - confidential, informal, non-binding advice and opinions regarding a member’s own prospective conduct.
Eric K. Barefield, Ethics Counsel LSBA Ethics Advisory Service, 601 St. Charles Ave., New Orleans, LA 70130-3404 (504)566-1600, ext. 122 • (504)619-0122 toll-free: (800)421-5722, ext. 122 • Fax: (504)598-6753 www.lsba.org/goto/EthicsAdvisory • Email: [email protected]
Louisiana Bar Journal Vol. 61, No. 3 175 President’s message
By Richard K. Leefe The New Class of Lawyers n October 2013, ence to learn the nuances of the practice It is my hope that as of law. It was certainly my experience we welcomed that attorneys truly learn to practice law practicing attorneys we after they graduate from law school and a new class actually engage in the practice. all become involved An effort to engage the experienced of attorneys attorneys in solving these issues is a in helping these new worthy project. These efforts have been Ito the practice of in the organizational stages in Louisiana attorneys get their feet for several years and already are underway law in Louisiana. in a number of states. As I have discussed on the ground and learn in previous President’s Messages, the test Each one became a mentoring program approved on May 15, new member of the the practical elements 2013, by the Louisiana Supreme Court as Transition Into Practice (TIP) is moving Louisiana State Bar of the practice which toward implementation on Jan. 1, 2015. This program is certainly a step in the Association (LSBA). are not apparent until right direction and we all need to give it as much support as we can. We will need It is our obligation to an attorney is in the mentors. Please support the program and volunteer to be a mentor. provide the assistance trenches and gains true As LSBA president, I attended the experience. National Conference of Bar Presidents in they need to get their August 2013 and heard the countrywide practices going — discussion of the issues facing state bar Having discussed these issues at associations. The issues we have are not whether it is in their length with the judiciary in Louisiana, unusual to Louisiana; the other states are it has become clear to me that when we seeing the same questions. new employment or declare newly admitted attorneys as ready Each state expressed concern over the to represent the public on their own, we lack of employment of new attorneys, whether it is helping are doing a disservice to the public. This concern over new attorneys’ preparedness them move past is not meant as a criticism of the law for actual practice, as well as considerable schools or the new attorneys. The simple discussion of the lack of understanding unemployment (as, fact is that, just as doctors are required of young lawyers by the older attorneys. to complete a residency after medical We all need to keep in mind that the new unfortunately, many school before they are certified as truly lawyers are who they are — they are the ready to treat the public on their own, future of the profession. We may not agree will face). lawyers need practical help and experi- with all that the younger set is about, but
176 October / November 2013 they are who they are and we need to judicial districts are working together to for that goal. ensure that the profession continues to offer and man “Ask-A-Lawyer” desks at As president, the LSBA membership provide a fair and honest system for the their courthouses to help self-represented has made me very proud of the outpouring public. Complaining about attitude, lack litigants gain access to justice that is often of offers to help. From Lake Charles to of respect, dress, appearance, dedication, out of their reach. We need to show the Monroe, from New Orleans to Shreveport, etc., does not change the fact that times willingness of Bar members to make the it has been amazing how many attorneys are changing. This, along with the new justice system available to all and show have offered their help and come through digital age of practice, is now a fact of the new attorneys that public service is when asked. The judiciary has expressed life that must be recognized. something we all need to participate in. its appreciation and help in making a dif- It is my hope that as practicing attor- If we all do our part, the effort is spread ference to those who are overwhelmed neys we all become involved in helping over more people and the effort needed by the system and unable to afford the these new attorneys get their feet on the from each individual is lessened. When legal assistance they need. Be one of the ground and learn the practical elements of some do not help, it raises the burden on attorneys who show the public that our the practice which are not apparent until those who do. We have not always been profession is a good and honorable one. an attorney is in the trenches and gains very good at emphasizing the good that true experience. Bar members do every day; this is an By the time you read this, the LSBA- opportunity to show the public as well as established “Month of Legal Service” new attorneys that bringing justice to all for the members of the bench and bar is a part of our system that we take seri- will be well underway. Local bars and ously and are willing to give of ourselves Pro Bono Heroes: Providing Justice for All In our country, the Justice System thrives because we do allow access to all, regardless of income or circumstances. Providing pro bono service to those in need is a privilege not to be taken lightly. It is a means to give back to the community and thereby strengthen it. I often hear from pro bono clients an appreciation for not being treated as second-class citizens but rather being treated as persons of dignity who will both be listened to and represented in their legal issue. I am grateful I am able to provide such services in addition to my work as a partner in our firm and hope to continue to do so many years into the future.
– Linda Law Clark DeCuir, Clark & Adams and volunteer with Baton Rouge Bar Association 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. 61, No. 3 177 Patricia Gilley and Henderson v. United States: A Shreveport Small-Firm Lawyer’s Path to Victory in the U.S. Supreme Court
By S. Christopher Slatten
178 October / November 2013 ttorney Patricia A. (Pat) Gilley Pat says they love doing what they do, but of Shreveport briefed and ar- her favorite cases are the federal criminal gued a case in the United States appointments she receives as a member of Supreme Court in 2012 — a the Criminal Justice Act (CJA) panel. Her Arare event in itself for a Louisiana small- first jury trial was on a CJA appointment to firm practitioner. In February of this year, represent a member of the Bottoms Boys she learned that she prevailed in that case, gang in a lengthy multi-defendant trial in Henderson v. U.S., 133 S.Ct. 1121 (2013). Shreveport in 1994. Almost 20 years later, Her legal career and her solo effort before her eyes still flash when she insists that her the high court were both along roads less client never should have been charged as traveled. During an interview at her family part of the conspiracy. law firm, Gilley & Gilley in Shreveport, Pat’s appellate experience has been pri- she discussed her personal history and the marily in CJA cases, and she has argued a experience of presenting an argument to few times before the 5th Circuit. The cases the Supreme Court. (She works with her take a lot of preparation, but Pat says she husband, Harold C. Gilley, Jr., and their son, finds the work rewarding and important. Tristan P. Gilley. All are referenced by their “Important” is a word Pat uses often to first names for the remainder of the article.) describe the causes of her clients. She knows Pat’s interest in the law began at a it aggravates some courts when she “stirs young age as she grew up in small-town them up” with motions and arguments that Streator, Ill., as the oldest of five children of others might forego, but she says, “I’m go- a lawyer. She fondly recalls tagging along ing to do what I think is important.” with her father for court appearances and Shreveport attorney Patricia A. Gilley. Photo One of these important clients was being impressed when he walked through provided by the Gilley Family. Armarcion Henderson, indicted for being the bar and joined others with business a felon in possession of a firearm after before the court. the United States to individuals who had the Haynesville chief of police stopped a Pat considered another career path — staked out homesteads and claims in the truck in which Henderson was a passenger a religious convent — but her life took a wilderness. The couple had their first of and found an SKS rifle and 20 rounds of different turn when, in 1968, she sat be- three children in 1980, and Pat gave up her ammunition beneath the passenger-side side young Harold Gilley in a class at the job to be a mother and homemaker for the seat. Pat received a CJA appointment to University of Illinois. It took Harold until next 10 years. represent Henderson. She filed a motion the second semester to ask Pat out — to a The Gilley family landed in the Shreve- to suppress that was hotly contested, yet Supremes concert — but Pat knew by the port area in 1986 after Harold was trans- ultimately unsuccessful. second date that she would marry him. They ferred to Barksdale Air Force Base. Pat After losing the motion, Henderson married in 1971. soon persuaded Harold to retire after 20 pleaded guilty, subject to the right to appeal Harold was committed to the Air Force years of service so the family could settle the suppression ruling, which made the after college, but he wanted to go to law in the area. They both worked for a time case look just like scores of other felon- school. Uncle Sam told him he was going for Support Enforcement, but Pat wanted in-possession cases that pass through the to Thailand instead — unless he quickly to start a law firm. federal court every year. There was certainly confirmed admission to law school. Pat The Gilleys took the risk and opened nothing about it that would make anyone started working the phones. The couple had their firm, with their beginning civil practice predict it would reach the Supreme Court. no ties with Louisiana, but she was able to supplemented with income Pat earned as a Then came the sentencing. persuade the chancellor of Louisiana State part-time conflicts attorney for the Caddo The sentencing guidelines suggested a University Law School to admit them both. Parish Public Defender Board, where she range of 33 to 41 months of incarceration. The Illinois natives drove to Baton Rouge saw her first courtroom work. The firm There was evidence Henderson suffered in 1974 to begin their indoctrination in the gained clients through the Shreveport Bar from a substance abuse problem. The Bu- civil law. After graduation, Harold was Association’s attorney referral service reau of Prisons has a highly regarded drug transferred to England Air Force Base in and referrals from area attorneys. Among treatment program, but it is often unavail- Alexandria, and Pat clerked for 3rd Circuit those referrals were civil rights cases from able to prisoners who are in for a short term. Judge William A. Culpepper. Shreveport attorney Henry C. Walker, The district judge sentenced Henderson to The Air Force then decided that Harold which gave the Gilleys their first experi- 60 months in prison for the stated purpose was needed in Alaska, and the couple lived ences in federal court. that he could obtain drug rehabilitation. in Anchorage for five years. Pat worked Gilley & Gilley now has a broad gen- Pat did not raise a procedural objection, for the Bureau of Land Management as eral practice that handles everything from but she later filed a motion to correct the a land-law examiner, where she found adoptions to successions. The Gilleys’ son, sentence based on language in 18 U.S.C. § it thrilling to issue original patents from Tristan P. Gilley, recently joined the firm. 3582(a). The statute says that certain fac-
Louisiana Bar Journal Vol. 61, No. 3 179 tors are to be considered in determining a 2004-10 showed sentence, “recognizing that imprisonment that specialists, in- is not an appropriate means of promoting cluding law school correction and rehabilitation.” The district clinics, won a sig- court denied the motion as untimely and said nificantly greater the issue would be left to the appellate court. percentage of their Pat appealed. With the appeal pend- cases than nonspe- ing, Tapia v. U.S., 131 S.Ct. 2382 (2011), cialists. Criminal interpreted § 3582(a) and held 9-0 that it defendants, civil is error for a court to “impose or lengthen plaintiffs and immi- a prison sentence to enable an offender to grants represented complete a treatment program or otherwise by specialists pre- to promote rehabilitation.” The 5th Circuit vailed in 67 percent Court of Appeals said Pat was correct that of the cases in which the district court erred, but the lack of a they were petition- timely objection meant the appellate court ers and 32 percent as could change the result only if it was “plain respondents. Such error” within the meaning of Federal Rule litigants represent- of Criminal Procedure 52(b). ed by nonspecialists The error had not been “plain” before won only 48 percent Tapia, but it was “plain” afterward. The of cases as petition- question was whether the error had to ers and 14.5 per- be plain when the district court imposed cent as respondents. the sentence, or when the appellate court Within the ranks of decided the appeal. the specialists, law The 5th Circuit panel held that the error school clinics per- had to be plain at the time the district court formed well. Their imposed the sentence. Pat applied for en clients won 70 per- banc rehearing, but the court denied her cent as petitioners petition by a 7-10 vote. and 35 percent as Many law school clinics and Supreme respondents. See, Court practitioners watch for likely can- Jeffrey L. Fisher, didates to make it to the high court. The “A Clinic’s Place in federal circuits were split on the issue in the Supreme Court Henderson, which made it a strong con- Bar,” 65 Stanford tender. Pat’s phone began to ring and emails Law Review 137 came pouring in immediately after the en (2013). banc denial. She was overwhelmed with Pat first declined offers from clinics and other specialists who the many offers to wanted to take over the case and apply for take over the case, certiorari. She received DVDs, brochures but then she re- Shreveport attorneys, from left, Harold C. Gilley, Jr., Patricia A. Gilley and and other material touting the experience ceived an offer from Tristan P. Gilley on the steps of the U.S. Supreme Court in Washington D.C. of various volunteers. Professor Michael Photo provided by the Gilley Family. In the 19th century, argument before the F. Sturley, a former The Supreme Court granted Hender- Supreme Court was dominated by a handful Justice Powell law clerk who directs a son’s petition in June 2012. By that time, of attorneys such as Daniel Webster and Supreme Court clinic at the University of the law students who helped earlier had Frances Scott Key, some of whom argued Texas (UT). He offered to have his students graduated or gone home for the summer, hundreds of cases. A strong Supreme Court help but allow Pat to remain as lead counsel. but there were still volunteers who wanted specialist bar has returned in recent years. She accepted. The students, along with to help review the merits brief, and they put Richard J. Lazarus, “Advocacy Matters attorneys in Houston, Texas, and Wash- pressure on Pat to issue an early draft. She Before and Within the Supreme Court: ington, D.C., went to work on the petition gathered multiple binders of research mate- Transforming the Court by Transforming for certiorari. rials, practically lived at the office, stopped the Bar,” 96 Georgetown Law Journal The Supreme Court receives about taking new clients, and devoted herself to 1487 (2008). 10,000 petitions for certiorari each year. the brief, but she still could not produce one These specialists, moreover, appear to Around 80 to 100 — less than 1 percent — to her satisfaction under the time demands be winning. A review of merits cases from have been granted in recent terms.
180 October / November 2013 of her volunteers. She eventually parted close to the long bench. Pat said she felt ways with them and, again taking a road like her head was on a swivel, searching less traveled, wrote the brief on her own. for the face of the justice who asked the She read, about two weeks before the brief last question. was due, a comment from Justice Antonin Thirty minutes is allowed for each side Scalia indicating that the justices cringe to argue. A white light comes on after 25 when ordinary trial lawyers come before minutes, and an attorney may reserve some the Court. That did little to calm her nerves. of the remaining time for rebuttal. A red The briefing process did have its pleas- light comes on after 30 minutes, which antness. The Solicitor General represents usually signals the last word. Pat says she the United States before the Supreme Court, was so in the moment that neither she nor and Assistant Solicitor General Jeffrey B. Harold saw either light come on. Professor Wall was assigned to Henderson. Pat and Baier told her she managed to get an extra Wall talked on the phone often and got 17 seconds, which is quite rare, before the along well with regard to various exten- Patricia and Harold Gilley, right, with William K. Chief Justice ended it with, “Thank you, sions and preparing the joint appendix. Suter, clerk of the U.S. Supreme Court. Suter, a counsel.” The briefing process was also different Tulane Law School graduate who was admitted to Pat returned from D.C. and moved on the Louisiana State Bar in 1962, retired from the because the Court requires briefs be printed, clerk’s position on Aug. 31, 2013, after 22 years to other clients and cases. Pat said she much like a paperback book. (If you find of service. Photo provided by the Gilley Family. never checked on the resolution of the case yourself before the Supreme Court, Cockle because she knew she would win. When Law Brief Printing will find you and offer her big day arrived. She said her lack of she arrived at work on Feb. 20, 2013, her its services if you ever have a case before nerves was due to months of preparation and 42nd wedding anniversary, her email inbox the Court. They will check your citations her confidence that she would win because was filled with messages of congratulation. and proofread the brief, but the service is her position was “so right.” She wondered how the people at UT and not cheap. Pat’s printing bill was $2,800.) Pat and Harold were both able to sit at the lawyers scattered around the country knew William K. Suter, a retired Army major counsel table, with the rest of the family in it was her anniversary, but when she opened general and Tulane Law School graduate, the viewing gallery. Two quill pens, a Court the first message she saw that she had won has been the clerk of the Supreme Court for tradition, were on the desk for them and can Henderson’s case by a 6-3 vote. more than 20 years. Pat says the members now be seen in their Shreveport offices. Pat’s legal career, with a decade passing of his staff could not be nicer, although the Wall arrived in the formal morning coat that between her clerkship and her next job as members of her firm did call one deputy members of the Solicitor General’s office a lawyer, has taken an unusual path. She clerk “the drill instructor” because she traditionally wear when before the Court. has now marked that career with a special often called and told them exactly what Pat stood to shake his hand on meeting him distinction and she achieved it in her own to do, and when to do it, so as to keep the for the first time, but he gave her a big hug way. Pat would agree that she often seeks case on track. and some advice: “Have fun.” the road less traveled, not only in law but Oral argument was scheduled for the Pat approached the lectern. Professor also in life. Whatever path she takes, Pat Wednesday after Thanksgiving. Pat’s Paul R. Baier, constitutional law professor fights for the causes which she believes are preparation included a practice argument at LSU Law Center and a Judicial Fellow “important,” but, even more significantly, at Louisiana State University Paul M. at the Court in 1975-76, had advised Pat to she enjoys every minute of it. Hebert Law Center. Two weeks before the show that she knew what she was doing by argument, she traveled to the University of reaching for the hand crank on the side of S. Christopher (Chris) Texas, where students portrayed the justices Slatten, a 1990 graduate the lectern and adjusting the height. Fortu- of Louisiana State Univer- and grilled her about the issues. The next nately, Pat had mentioned this to General sity Paul M. Hebert Law week, she traveled to Georgetown Law Suter during a visit, and he quickly begged Center, serves as law clerk School for a well-known moot court pro- her not to touch the ancient and delicate to Magistrate Judge Mark gram offered to attorneys with cases before L. Hornsby, U.S. District mechanism. Mistake avoided. Court, Western District of the Supreme Court. Two professors and Pat barely got started before the ques- Louisiana, in Shreveport. three experienced criminal law attorneys tions flew. Chief Justice John G. Roberts, He is a member of the put Pat through her paces. Jr. and Justices Antonin Scalia, Ruth Bader Louisiana Supreme Court’s Pat, Harold, Tristan and six other family Committee on Bar Admis- Ginsburg, Anthony M. Kennedy, Samuel sions. He is co-chair of the members traveled to Washington, D.C. for A. Alito, Jr., Stephen G. Breyer and Sonia Editorial Board of The Bar Review, published by the the oral argument. The three lawyers in the Sotomayor all had questions or comments Shreveport Bar Association. A version of this article family were able to view an argument the during Pat’s argument. Justice Elena Kagan first appeared in the April 2013 issue of that publica- day before. Pat, who said she used to get tion. (U.S. District Court, Ste. 1148, 300 Fannin St., weighed in during Wall’s argument. Justice Shreveport, LA 71101-3122) sick when she gave a presentation in school, Clarence Thomas was not moved to break admits to being only a little nervous when his famous silence. The attorneys stand
Louisiana Bar Journal Vol. 61, No. 3 181 For Whom the Clock Tolls? Louisiana’s New Law on Tolling Agreements
By Ronald J. Scalise, Jr.
182 October / November 2013 agreements to voluntarily extend liberative extensions must be committed to writing. ffective Aug. prescriptive periods and to make specific To constitute a “writing,” an act can be 1, 2013, recommendations for authorizing agree- either in authentic form or under private ments to extend liberative prescriptive signature.6 Louisiana periods.”1 The resolution noted that tolling Again, for proof purposes, extensions, agreements are valid in some states and even those in writing, must be “express” for the first observed that parties in Louisiana must to be effective. The term “express” in this time allows tolling often needlessly file suit to preserve their context is used in opposition to “tacit” and E rights against the running of a short pre- to indicate that ambiguous statements that scriptive period. Although not limited to might be construed as intending an exten- agreements. Popular tort suits, the problem is particularly vex- sion are not sufficient. Magic words are in other states, tolling ing in delictual actions where the general not required, but clear intent is. Although prescriptive period is only one year.2 Louisiana has no prior experience with agreements are The primary stumbling block to tolling tolling agreements, the law of other states agreements in Louisiana has always been may be helpful. Statements that the “ap- contracts by which Article 3471 of the Civil Code, which plicable prescriptive period will be tolled” states that “[a] juridical act purporting to or that the “relevant period of limitation parties involved in exclude prescription, to specify a longer will be extended” should thus be effective period than that established by law, or to and enforced under the new legislation. a dispute agree to make the requirements of prescription The goal is to allow extensions but to extend the relevant more onerous, is null.”3 Because a tolling avoid evidentiary contests. Thus, within agreement would give an obligee a longer the ambit of the code articles, any state- liberative prescriptive time to sue than provided for by legisla- ment in proper form that clearly indicates tion, tolling agreements have always been the intent to extend prescription should be period. For a variety treated as “specifying a longer period than given that effect. that established by law” and thus viewed Despite the subtitle to this article, an of reasons, however, as ineffective.4 “agreement” is not necessary to extend a After detailed study, the Law Institute prescriptive period, although one would tolling agreements recommended and the Legislature enacted certainly be allowable. Rather, the legis- have not, until now, a much needed change. The change now al- lation requires only a juridical act by the lows parties to extend a prescriptive period obligor. As explained in the Civil Code, been enforceable in rather than wastefully filing suit to interrupt a juridical act is “a lawful volitional act the prescriptive period, only to dismiss the intended to have legal consequences.”7 A Louisiana. By effect suit later after settlement negotiations are juridical act “may be a unilateral act, such fruitful. Now, prescriptive periods can be as an affidavit, or a bilateral act, such as a of Act 88 of 2013, the extended; negotiations can proceed; and, contract.”8 The rationale for not requiring in many instances, resolutions can occur, an agreement is simple: an obligee will previous preclusions without unnecessarily incurring filing fees always favor more time to sue and thus in Louisiana law no and needlessly wasting judicial resources. his consent to an extension of prescription should not be required. longer apply, and How to Extend Prescription The Limits of an Extension parties are now free, Although the new law allows for the of Prescription within limits, to extend extension of liberative prescription, parties must comply with certain prerequisites Although the new legislation allows for a liberative prescriptive to do so. Most notably, for an extension parties effectively to extend a prescriptive of liberative prescription to be granted, it period, it is not without limitations. First, an period. must be both express and in writing — extension of prescription may occur only requirements that are not uncommon in after a cause of action accrues, not before. Background and Purpose the Civil Code.5 Oral extensions are not Parties may not extend a prescriptive pe- allowable, and the comments to the new riod prospectively or before prescription The Prescription Committee of the articles make clear that the form require- has begun to run.9 Contracts that attempt Louisiana State Law Institute was formed ments for an extension are imposed for at the time of formation to create a longer in 2011 to address House Concurrent proof purposes. Casual statements during prescriptive period than that established Resolution 28. Specifically, the resolution settlement negotiations should not be relied by legislation for a cause of action that requested that the Law Institute “study upon to effectuate an extension; rather all has not yet arisen are still unenforceable
Louisiana Bar Journal Vol. 61, No. 3 183 under the new legislation and still violative of Article 3471.10 Second, an extension of prescription may be granted for up to a one-year period, but not longer. The goal is to grant flexibil- ity to parties but not to allow overreaching and to “prevent[ ] an obligor from rashly granting an excessively long or indefinite extension” that, after cool reflection, would obviously work to his prejudice.11 If, as in some cases, a year-long extension is still not enough time to resolve a dispute, the parties may always grant another year-long extension to continue their talks. Although there is no limit on the number of extensions that can be granted, each extension can only be granted for up to one year, and the The Effects of an Extension ligation, a surety obviously cannot grant year time period commences to run from an extension that is effective against his “the date of the juridical act granting it.”12 In addition to the requirements for principal, at least not without the consent Thus, parties cannot sign several ex- granting an extension of prescription, the of the principal.19 In fact, to the extent the tensions at the same time in an attempt effects of an extension must also be closely principal obligation prescribes because the to frustrate the year limitation and in the considered. As a preliminary matter, the obligor has not granted an extension, not hopes of achieving a multi-year exten- effects of an extension are obvious: An only could the principal obligor not be sued sion. Similarly, parties are not allowed obligee has additional time (up to one but also the surety — even the one who to execute acts with separate “calendar year) to sue an obligor who has granted the putatively granted an extension — would dates” and “effective dates” in an attempt extension. In situations involving multiple likewise be immune from suit. Thus, for to extend a prescriptive period beyond a obligors, however, more complexity exists an extension of prescription to be effec- year or to create a series of extensions that if only one obligor grants an extension but tive with respect to a surety, the principal take effect after the expiration of others. is bound jointly or solidarily together with obligor must be involved in the granting Each extension takes effect on its day of others for a debt. Consider, for instance, of the extension. execution. Clever attempts to frustrate the multiple borrowers who have defaulted on This does not mean, however, that limitations of the law should be viewed as a loan repayment. If, rather than sue the only the principal obligor should grant unenforceable and in violation of both the borrowers, the lender obtains an extension the extension. Although it is true that the language and intent of the new legislation. to sue and eventually negotiates with the grant of an extension of prescription by Once a period of prescription has been borrowers on a new repayment schedule, the principal obligor would be effective effectively extended, however, the exten- the lender must be sure to obtain the ex- as to his sureties,20 the surety may have sion is itself treated as a prescriptive period tension from all the borrowers. Otherwise, a defense under suretyship law and, in and thus can be subject to interruption or prescription will run with respect to the certain circumstances, be able to termi- suspension, just as any prescriptive period borrowers who did not grant the extension, nate the suretyship entirely. In the context could be.13 Consequently, the acknowledg- and the lender will be left with recourse of an ordinary suretyship, Article 3062 ment of a debt during a period of extension against only the borrower who granted the extinguishes a suretyship if there has will serve to reset the prescriptive clock as extension. In short, although an interrup- been a “modification or amendment of it would have had it occurred during the tion in prescription, such as might occur the principal obligation . . . in a material original prescriptive period.14 by virtue of an acknowledgment of a debt, manner and without the consent of the Finally, periods of time that are desig- is effective against solidary obligors and surety.”21 To the extent the suretyship is a nated as preemptive are not subject to exten- joint obligors of indivisible obligations, an commercial one, the obligation is similarly sion as those periods of time are “fixed by extension granted by one obligor is not. extinguished but only “to the extent the law for the existence of a right,” rather than The approach of the new legislation is surety is prejudiced by the action of the merely the enforceability of a right.15 At the deliberatively conservative to ensure that creditor, unless the principal obligation is end of a preemptive period, a right ceases the extension, although possible, operates one other than for the payment of money, to exist and cannot be extended by juridical only against those obligors who know of and the surety should have contemplated act or contract.16 Thus, parties may not, for it and approve. that the creditor might take such action instance, extend a period to bring a claim Further complexities, however, exist in the ordinary course of performance of for lesion17 or to seek spousal support18 or in the context of sureties who may be the obligation.”22 Comment (c) to Article for any other claim that is characterized as bound for the debt of the principal obligor. 3505.3 reminds the reader that the new peremptive rather than prescriptive. Because a suretyship is an accessorial ob- prescription articles, like all articles in the
184 October / November 2013 Civil Code, should not be read in a vacuum also clarified that, despite some erroneous 8. Id. but interpreted in pari materia with other jurisprudence, shortening of prescription 9. Id. art. 3505, cmt (a). 10. Id. art. 3471. articles in the Civil Code on relevant topics. is allowed. In fact, agreements shortening 11. Id. art. 3505, cmt (c). With respect to multiple obligees, the prescription have long been allowable in 12. Id. art. 3505.2. situation is very different. Unlike an ob- Louisiana and in a variety of other civil law 13. Id. art. 3505.4. ligor, an obligee will always benefit from jurisdictions and common law states.24 A few 14. Id. arts. 3464, 3466 & 3505.4. 15. Id. art. 3458. an extension of prescription. Consequently, Louisiana courts, however, have mistakenly 16. Id. the concern in ensuring that every affected found agreements shortening prescription to 17. Id. art. 2595. obligor consent to an extension does not be “more onerous” and thus invalid under 18. Id. art. 117. exist with respect to multiple obligees. In Article 3471.25 The term “more onerous” 19. Id. arts. 3035 & 1913. 20. Id. art. 3505.3. fact, for the same reasons that the consent of in Article 3471, however, refers to actions 21. Id. art. 3062. the obligee is not required for an extension, or agreements that make the invocation of 22. Id. the benefits that arise from an extension of prescription more difficult for the obligor. 23. La. Civ.C. arts. 1793 & 1789. prescription should redound to the benefit For example, agreements not to plead pre- 24. See, e.g., Green v. Peoples Benev. Indus. Life Ins. Co., 5 So.2d 916 (La. App. 1941); Car- of all solidary obligees and all those joint scription, to interrupt prescription, to delay raway v. Merchants’ Mut. Ins. Co., 26 La. Ann. 298 obligees of an indivisible obligation, even the commencement of prescription, or to (La. 1874); Code Civil (Fr.) art. 2220 (1804); BGB those who did not consent to or have knowl- provide for additional causes of interruption § 202; Austrian Civil Code § 1502; Dutch Civil Code edge of the extension. In this instance, the are “more onerous” because they make the art. 3:322, para. 3; Principles of European Contract Law art. 14:601; Unidroit Principles art. 10.3; Bee- effects of an extension mirror those of an accrual of prescription more difficult for the son v. Schloss, 192 P. 292, 294 (1920); Zalkind v. interruption in prescription.23 obligor, the party primarily protected by the Ceradyne, Inc., 194 Cal. App. 4 1010 (2011); City accrual of prescription.26 of Hot Springs v. Nat. Sur. Co., 531 S.W.2d 8 (Ark. Unfortunately, the proposed changes to 1975); Hepp v. United Airlines, Inc., 540 P.2d 1141 Unfinished Business (Colo. App. 1975); Smith v. Auto-Owners, Inc. Co., Article 3471 were excised by the Legisla- 877 N.E.2d 1220 (Ind. App. 2007). Despite the success of Act 88, work re- ture, and the confusing cases persist in Loui- 25. See, e.g., Contours Unlimited v. Board of lated to prescription remains to be done. In siana. Nonetheless, for the reasons stated Comm’rs, 630 So.2d 916 (La. App. 4 Cir. 1993); above, agreements shortening prescription Cameron v. Bruce, 42-873, 42-983 (La. App 2 Cir. addition to the enactment of Articles 3505 4/23/08), 981 So.2d 204; Prestridge v. Bank of through 3505.4 concerning extensions are and should continue to be allowable. Jena, 05-545 (La. App. 3 Cir. 3/8/06), 924 So.2d of prescription, the proposed legislation Moreover, despite the deletion of the express 1266 (finding an agreement regarding a substantive also included a revision to Article 3471, cross reference in a proposed comment, element of a cause of action to be “more onerous” Article 3471 as it currently stands should not and thus violative of Article 3471). But see, Groue v. which would have amended the article to Capital One, 10-0476 (La. App. 1 Cir. 9/10/10), 47 read as follows: be viewed to continue to preclude voluntary So.3d 1038 (finding that a contractually shortened extensions of prescription. Rather, Article period to notify a bank of an altered check not to be A provision in a juridical act purport- 3505-3505.4 should be appropriately read violative of Article 3471). as more specific and later expressions of 26. See, e.g., Constantine Semanteras, General ing to specify a different prescrip- Principles of Civil Law § 1036 (4th ed.) (in Greek). tive period than that established by the legislative will than that embodied in 27. La. Civ.C. arts. 10 & 13. legislat[ion], to exclude prescription, Article 3471. The continuing prohibition or to make the requirements for the in Article 3471 against “specify[ing] a Ronald J. Scalise, Jr. is vice dean for academic af- longer [prescriptive] period” can properly fairs and the A.D. Freeman Professor of Civil Law accrual of prescription more onerous at Tulane Law School. He is absolutely null. Nevertheless, par- be understood as continuing to prohibit is the reporter for the Pre- ties may agree in writing to shorten prospective extensions of prescription, as scription Committee of the a prescriptive period to a stated Article 3505 allows for extensions only after Louisiana State Law Insti- a cause of action arises, not before. Such a tute. He also is serving as amount of time that is reasonable the faculty representative and is in no event less than one year. reading gives meaning and respect to the for Tulane Law School on literal language and intent of both Articles the Louisiana State Bar The purpose of the proposed revision 3471 and 3505, as well as comporting Association’s Board of Governors. The views ex- to Article 3471 was manifold. First, the with well-accepted techniques of statutory 27 pressed herein are attrib- proposed revision corrected some minor interpretation and common sense. utable solely to the author. semantic inaccuracies in the original article, (6329 Freret St., New Orleans, LA 70118) such as by stating that only a “provision in FOOTNOTES a juridical act” in violation of the article would be “absolutely null” rather than the 1. HCR 28 (2011). entire “juridical act” itself. Second and more 2. La. Civ.C. art. 3492. 3. Id. art. 3471. importantly, the proposed comments made 4. Id. clear that the new legislation in Articles 5. Id. arts. 3038 & 963, 3450. See also, La. 3505-3505.4 was excepted from the prohibi- Civ.C. art. 3505.1 cmts. (a) & (b). tory scope of the article. Third, the proposal 6. La. Civ.C. arts. 1833 & 1837. 7. Id. art. 3471, cmt (c).
Louisiana Bar Journal Vol. 61, No. 3 185 Book Review
Flood of Lies: The St. Rita’s Nursing Home Tragedy By James A. Cobb, Jr. (Pelican Publishing Co., Gretna, La., published July 26, 2013, 320 pages, available in hardcover and e-book).
Reviewed by Pascal F. Calogero, Jr.
o you remember why you went to law school? Would you like a reminder of how your practice can — indeed, should — embody the most noble aspectsD of our profession? Reading Flood of Lies: The St. Rita’s Nursing Home Tragedy by James A. Cobb, Jr., a fellow Louisiana lawyer, will inspire your inner Atticus Finch and fuel your passion for the practice of law.
186 October / November 2013 My friend and colleague Jim Cobb has penned a page-turner about one of the most publicized tragedies of Hurricane Katrina: the death of 35 elderly patients at St. Rita’s Nursing Home and the subsequent pros- ecution for negligent homicide and elder abuse of the home’s owners, Sal and Mabel Mangano. No doubt you know the havoc of Katrina because you and yours lived it. You prob- ably also recall the news stories about the trial, and perhaps its outcome. Regardless, I can assure you will be riveted to Flood of Lies because Cobb cuts through the media’s imagination and invective to tell the real story of State of Louisiana v. Salvador Mangano et al. — from his own perspective as lead defense attorney for the Manganos. That real story is about heroism, commitment and sacrifice — first by the Manganos, who faced life imprisonment despite having risked their own lives in the care of their residents, and then, too, by Cobb himself, who, in the face of great personal and professional sacrifice, led the defense team that undertook the desperate challenge of defending the Manganos, an elderly couple pilloried by the politicians, the press and the public. Cobb’s telling of the story is masterful, and you will read into the wee hours because you will crave every twist and turn behind the scenes. But it is the essence of Cobb’s decision to undertake representation of Sal and Mabel Mangano, who were vilified as Public Enemy No. 1 in the wake of the storm, that makes this book essential reading for every lawyer and aspiring lawyer. Why? Because Flood of Lies proves that ad- vocacy matters. It matters to our clients, whether saints or scoundrels in the court of public opinion. It matters to justice, as as his inspiration to represent the Manganos, Eight British soldiers were charged its judges and officers of the court strive despite facing public opprobrium himself. with murder of the five dead colonists. A to uphold the law. It matters to the public, Recall your grade-school studies of the Bos- propaganda war raged on both sides of the who rely on — and, indeed, deserve — ton Massacre — the 18th century one, not Atlantic. Supporters of the Crown decried professional representation to protect their the recent act of terrorism at the Marathon. the colonists’ refusal to recognize the British rights. In sum, we members of the Bar are In 1770, the colonists were becoming restive authority. The colonists rallied that redcoats custodians of the law, those ideals of our under British rule, which led to the Crown could not quell the Spirit of Liberty. Against society enshrined by the Legislature. We stationing its troops in Boston. One fateful that backdrop of revolutionary fervor, few must not shirk our responsibility to enforce evening, a few patriotic colonists taunted the advocated for a fair trial of the men charged those ideals, even for — nay, especially for British sentries with insults, then snowballs. with murder. Indeed, several lawyers out- — unpopular causes and unpopular people. Their superior officer, Captain Preston, was right refused to represent Captain Preston Just as I hold up Cobb’s masterpiece summoned. Meanwhile, the crowd grew or his men. Flood of Lies to you as an example to inspire into a mob. Tensions mounted. The soldiers Then John Adams, ardent American all of us in our law practice, Cobb himself fired their muskets. Five colonists died and patriot and future President of the United cites America’s founding father John Adams more were wounded. States, stepped up to defend Captain
Louisiana Bar Journal Vol. 61, No. 3 187 Preston and his detachment of men. To do Cobb’s decision to represent the Manganos will make you weep. He will make you rail. so, he first had to step away from his own following Hurricane Katrina. As the politi- But, most importantly, his gripping narrative political leanings and personal ambition. cal powers scapegoated the Manganos for of the St. Rita’s trial of the Manganos in St. By all accounts, Adams did so because he their own foibles, and as the international Francisville reminds us of the nobility in believed fervently in the principle of a fair press shredded the Manganos’ upstanding law. Like John Adams, Jim Cobb proves trial; certainly Adams had no interest in the reputation as hard-working caregivers for that good lawyering is more than doing British cause. Moreover, Adams acted in the the most vulnerable members of our aging everything right; it is doing the right thing. absence of any constitutional imperative to families, Cobb stepped up. In the face of We should all be so bold in our practice. do so. It was 1770: there was as yet no United every possible legal and political shenanigan States of America, no U.S. Constitution, (no spoilers here — read the book for the James A. Cobb, Jr. is a no Sixth Amendment right to counsel. But dramatic details), he and his team advo- 1978 graduate of Tulane Law School. For nearly 30 Adams recognized that convicting a man cated for the Manganos, overcoming the years, he was a litigator and for a crime — especially a crime as serious widespread presumption of their guilt and partner in the New Orleans as murder — required a fair trial, and a fair securing full acquittals on all 118 counts firm of Emmett, Cobb, trial required representation by a lawyer. against them in a court of law. Waits & Henning. He was an adjunct professor and So where others stepped away, Adams Cobb did so notwithstanding his own director of Tulane’s Trial stepped up. He advocated the law and the personal travails. All of us face the demands Advocacy Program for 31 facts on behalf of his clients: the soldiers of family and making a living. As we know, years. Most recently, he has who had fired were not killing innocent these demands were compounded expo- been an invited member of the Harvard Law School faculty, teaching and lectur- bystanders, but rather were defending nentially in the wake of Hurricane Katrina. ing in the school’s Trial Advocacy Workshop for the themselves against an angry mob of “saucy Cobb himself lost his home and his office past six years. boys.” The jury of colonists who lived in was displaced — with no income on the ho- a town steeped with revolutionary rhetoric rizon. Financial security for himself and his Hon. Pascal F. Calogero, Jr., retired chief justice of against the British defendants ultimately family was in peril. Nonetheless, he fulfilled the Louisiana Supreme agreed with Adams. Six soldiers were his professional duty — not only by wield- Court, was admitted to acquitted and two were found guilty of a ing his legal acumen to provide diligent, the Louisiana bar in 1954. lesser charge. But for Adams’ principled competent representation of two criminal After serving 36 years on the Supreme Court, Chief defense of the British soldiers, justice would defendants, but, even more importantly, by Justice Calogero retired not have prevailed on the eve of our revolu- his accepting an unpopular representation and returned to the private tion. As Mr. Adams recounted in his diary, against seemingly insurmountable odds. practice of law by opening “Judgment of death against those soldiers It is Cobb’s commitment to his clients his own practice, Pascal F. Calogero, Jr., A.P.L.C., would have been as foul a stain upon this and to our profession and its ideals that in New Orleans. He also is of counsel to the firm of country as the executions of the Quakers or inspires me to recommend Flood of Lies to Ajubita, Leftwich & Salzer, L.L.C., in New Orleans. witches, anciently.” you. His prose is passionate and profane. (1500 Energy Centre, Ste. 1500, 1100 Poydras St., The same principle was at stake in He is irascible and charming in turns. He New Orleans, LA 70163) LSBA Member Services One focus of the Louisiana State Bar Association’s multi-faceted mission is to assist and serve its members in the practice of law. To this end, the LSBA offers many worthwhile programs and services designed to complement members’ careers, the legal profession and the community. Fastcase Ethics Advisory Service Lawyers’ Assistance Program www.lsba.org/fastcase www.lsba.org/ethicsadvisory www.louisianalap.com • (866)354-9334 A free Web-based legal research tool For assistance with dilemmas and LAP provides confidential assistance to that provides unlimited access to all decisions involving legal ethics, take members of the Bar and their families state and federal court cases. full advantage of the LSBA’s Ethics who experience problems with alcohol, Advisory Service, offering - at no drugs, gambling and other addictions, charge - confidential, informal, non- as well as mental health issues; call binding advice and opinions regarding 1-866-354-9334 for assistance. a member’s own prospective conduct. For more information, visit www.lsba.org
188 October / November 2013 Save the dates!
n the legal community the more you know, the faster you’ll get ahead. That’s why the Louisiana State Bar Association offers a variety of seminars on a wide range of legal topics. Enrolling in them will help you stay competitive and keep up with the ever-changing laws. The Continuing Legal Education Program Committee sponsors more than 20 programs each year, ranging from 15-hour credit Iseminars to one-hour ethics classes. Check online for the most up-to-date list of upcoming seminars at www.lsba.org/CLE. Upcoming LSBA CLE Seminars
Consumer-Mortgage Law: CLE & Social! Sponsored by Senior Lawyer Division The Players, Procedures, Practices, and Pitfalls & Young Lawyers Division Foreclosure rates have increased nationally by more than The LSBA’s Senior Lawyers Division and Young Lawyers 200% since 1980!! Since the start of the real estate crash and Division are joining forces to present their first joint CLE the consequent foreclosure crisis, there have been several program, scheduled from noon-6:45 p.m. The CLE will feature developments in the tactics used to defend, delay and stop both credit and non-credit programs. The following sessions residential and commercial foreclosures. are approved for 3 CLE credit hours: Retirement and Estate November 15, 2013 Planning; Social Media and Technology Today; and Mentoring. Hyatt French Quarter • New Orleans Non-credit sessions will cover wellness and wine-tasting. December 2, 2013 Hyatt French Quarter Hotel • New Orleans DWI: What Everyone Should Know BUT No One Would Tell You!! Take advantage of this seminar which will present a Ethics & Professionalism: comprehensive and practical view of DWI, featuring Watch Your P’s & Q’s experienced professionals in the field of the Intoxilyzer, Don’t wait til the end of the year! Satisfy your CLE requirements Standard Field Sobriety Test, and Toxicology. before the Dec. 31st deadline by getting your ethics or November 15, 2013 professionalism credit. This program offers your choice of Hyatt French Quarter • New Orleans attending just one hour, multiple hours or the full day. December 6, 2013 Sheraton New Orleans Hotel 13th Annual Class Action/Complex Litigation Symposium Complex litigation unquestionably presents high stake challenges for litigants. The good news is that it also provides Moving Your Cases Through Court!! both the bench and bar with an opportunity for creative Motion Practice CLE thinking. RICHARD J. ARSENAULT, seminar chair, brings Motions can move, stop or change the direction of a case. together power hitters from around the country, as well as Spend the day with HON. RONALD J. SHOLES & HON. leaders from both sides of the complex litigation bar, and CARL J. BARBIER, seminar co-chairs, and an impressive esteemed members of the judiciary, to share ideas and explore roster of knowledgeable members of the bench & Bar as they critical developments, trends and perspectives. provide the nuts & bolts to get your motion practice in gear! November 22, 2013 December 10, 2013 Westin Canal Place Hotel Westin Canal Place Hotel
New York, New York CLE 25th Summer School Revisited New York is... Great Sightseeing, Museums & Galleries, Fall is approaching, but the LSBA is hanging on to Summer! World Class Music and Broadway Shows, Radio City Music Join us for Summer School Revisited, a multi-topic CLE Hall Christmas Extravaganza, Festivals & Street Fairs, Macy’s program that highlights presentations from the Summer Thanksgiving Parade, Spectacular Shopping, Awesome Dining, School held in Sandestin. and much more!! New York City has it all. Experience it again! December 12 - 13, 2013 November 23 - 25, 2013 Sheraton New Orleans Hotel Millennium Broadway Hotel • New York
For up-to-date information,Louisiana visit Bar Journal Vol. 61, No. 3 189 www.lsba.org/CLE Lawyers Assistance Program, Inc. Establishes Free Depression Recovery Groups Statewide
By J.E. (Buddy) Stockwell
he Louisiana Lawyers Assistance Program, Inc. (LAP) has established free Depression Recovery Groups statewide. These groups, facilitated by local mental Thealth professionals, are open to lawyers, judges and law students and are currently offered in Shreveport, Baton Rouge and New Orleans. The groups are absolutely confidential and participation does not create any medical records. There is no obligation incurred by participants other than the simple promise of adhering to strict confidentiality and group decorum.
190 October / November 2013 These groups are designed to directly address the epidemic of depression in the legal profession. Depression has long surpassed alcoholism and addiction as the most predominant mental health disorder affecting lawyers and judges. An alarming number of legal professionals — our peers — are lost to suicide each year. Depres- sion is a very serious condition that can impair the executive function in a lawyer or judge. If left untreated, depression can lead to the intensification of other mental health disorders, including but not limited to substance use disorders. For many years, the LAP has provided comprehensive mental health care sup- port. The LAP-approved facilitation of confidential assessments, treatment, re- covery support, and LAP recovery moni- toring are offered in ALL mental health areas, not just cases involving alcoholism and addiction. The LAP continues to see a marked increase in the numbers of law students, lawyers, judges and their family Lawyers Helping Lawyers members who reach out to LAP regarding mental health issues not involving any Take full advantage of LAP’s professionally moderated Depression alcohol or drug abuse problems. Whatever Recovery Groups in New Orleans, Baton Rouge and Shreveport. the mental health issue, confidential LAP Remember, all barriers to entry have been removed: assistance is available. As to the LAP’s new Depression ► There is no cost for participation Recovery Groups, it has long been es- ► No medical records are kept tablished that participation in a quality ► No waiting for weeks or months to get an appointment support group can significantly increase a person’s chances of long-term recovery in most cases. Experts opine that group To participate in the Depression Recovery Groups in the participation renders a demonstrable in- New Orleans, Baton Rouge, Shreveport and surrounding areas: crease in coping skills that develop more quickly in a group setting. ► call (985)778-0571 or (866)354-9334 Group participation is particularly advantageous in depression cases because ► email [email protected] depression is a disease rooted in isolation. fathom the level of stress and pressure sonally experiencing them. That is why Group participation can be instrumental experienced in the rough-and-tumble there is no substitute for the invaluable in helping depressed individuals break practice of law. “Lawyers Helping Lawyers” foundation through their isolation, begin to share In fact, oftentimes when a lawyer or of LAP. When lawyers and judges reach experiences and learn from other’s experi- judge comes in to the LAP, and then agrees out and join together in recovery, an ir- ences, and become valuable participants in to be referred to a LAP-approved resource, replaceable synergy occurs. These groups a fellowship that generates hope and trust. the lawyer or judge will skeptically add: often provide lawyers and judges with The LAP has always recognized that “I’ll go, but I don’t have much faith in the comfort zone needed to take off their legal professionals are much more recep- clinical help because there is no way that a “legal armor,” trust clinical help and the tive to participating in confidential groups doctor or therapist can appreciate what my group process, and respect feedback from that only involve members of the legal life as a lawyer (or judge) is really like.” the group. Within groups of their peers, profession. Beginning with training in law On some level, that is accurate. It is members learn by example (both good school, and then reinforced in the course fair to say that law school, the bar exam and bad) from those working together to of practicing law, legal professionals tend and the practice of law are situations that meet the challenges of recovery. to believe that only a fellow law student, cannot be fully understood without per- Of course, a depression problem must lawyer or judge can possibly begin to
Louisiana Bar Journal Vol. 61, No. 3 191 be identified before help can begin. Law- and judges to accept, there is no way to yers and judges are often ill-equipped to Know the Signs That “lawyer” or think your way out of depres- recognize within themselves the symp- Can Save a Life! sion: It requires clinical help. toms of depression. More often than Also, it remains very difficult to beat not, lawyers and judges confidentially Depression Warning Signs include down the strong stigmas that impede reaching out to LAP report they cannot difficulty concentrating, remembering people’s ability to seek and offer help explain anything truly different occurring details and making decisions; fatigue regarding depression. There must be a at work other than they just cannot seem and decreased energy; feelings of guilt, call to arms within the legal profession to function at the same high level they worthlessness and/or helplessness; feel- to those who are suffering, encouraging used to. They report an uncharacteristic ings of hopelessness and/or pessimism; them to reach out confidentially to the propensity for procrastination and a new insomnia, early-morning wakefulness LAP for help. Even more important, those feeling of being overwhelmed because or excessive sleeping; irritability and who see a peer suffering or in trouble are they have not stayed on top of their docket restlessness; loss of interest in activities encouraged to reach out confidentially to or practice. or hobbies once pleasurable; overeating LAP on that peer’s behalf. For many, there is a common concern or appetite loss; persistent aches or pains, People willing to reach out on behalf that they have simply become unhappy headaches, cramps or digestive problems of another can actually make the biggest with practicing law. Many times they attri- that do not ease even with treatment; difference of all in terms of helping the bute these symptoms to general “burnout” persistent sad, anxious or “empty” feel- person before the depression problem be- or becoming weary after many years of ings; and thoughts of suicide or suicide comes severe. The person suffering from high-pressure practice. In truth, however, attempts. depression may not be aware of it, may the person may actually be suffering from be in denial, or may be afraid to face it. In depression. Suicide Warning Signs include think- many cases the person does not reach out As to the statistical basis for the level of ing or talking about things such as wanting until severe consequences are incurred or concern devoted to combating depression to die; feelings of hopelessness or having a true crisis has been reached. In some of in the legal profession, it has long been no reason to live; feelings of being trapped those cases, the help will not come soon established that the legal profession suf- or in unbearable pain; and being a burden enough to avert a tragedy. fers the highest rates of depression — at to others. Also, beware of behavior that Take full advantage of LAP’s profes- least 30 percent. Some say those rates are includes increased use of alcohol or drugs; sionally moderated Depression Recovery now even higher. Conservatively speak- being anxious, agitated or reckless; sleep- Groups in New Orleans, Baton Rouge ing, at an absolute minimum, there are at ing too little or too much; withdrawing and Shreveport. Remember, all barriers least 5,000 Louisiana lawyers and judges or isolating from others; showing rage or to entry have been removed: There is no suffering from some form of depression. talking about seeking revenge; or display- cost for participation, no medical records This is no surprise, considering the ing extreme mood swings. are kept, and those seeking help do not large numbers of lawyers competing for have to wait for weeks or months to get clients, stress and pressure from infor- Suicide Risk Factors that particularly an appointment. mation overload while practicing in a affect lawyers and judges include mood Those wanting to participate in the high-speed technology world, financial disorders such as depression and anxiety Depression Recovery Groups in the New challenges in today’s uncertain economic disorders; alcohol and substance disor- Orleans, Baton Rouge, Shreveport and climate, and the increased propensity of ders; hopelessness; aggressive tendencies; surrounding areas should call (985)778- clients to lodge complaints against their job or financial loss; loss of relationship; 0571 or (866)354-9334, or email LAP@ lawyers. lack of social support and sense of iso- louisianalap.com. The question is not whether depression lation; and the stigma associated with As always, you do not have to give is a severe problem in the legal profes- asking for help. your name when you call LAP. Pursuant sion, but rather how can the suffering and to La R.S. 37:221, all calls to the Lawyers suicides in the ranks be effectively fought out, nothing can be done about it. Assistance Program are confidential as a and prevented. First, awareness must be It is important to acknowledge that matter of law. raised about the problem of depression no one is immune to depression. It can and depression must be normalized as attack anyone at any time. Mental health J.E. (Buddy) Stockwell a health issue. The LAP has produced issues such as depression have absolutely is the executive direc- tor of the Lawyers As- a new CLE presentation on depression nothing whatsoever to do with intelli- sistance Program, Inc. that explains what it is, delineates the gence, competence, tenacity or willpower. (LAP) and can be reached symptoms, provides information on how Whether the depression is primarily situ- at (866)354-9334 or via to recognize it, and encourages people to ational or resulting from a physiological email at LAP@louisian- alap.com. reach out to help themselves or someone imbalance of brain chemistry, depression they are concerned about. Unless the is a health issue and not the least bit rooted problem is detected and someone reaches in character. As hard as it is for lawyers
192 October / November 2013 Procrastination, Inability to open mail Feelings of bafflement, file stagnation & or answer phones, confusion, loneliness, neglect, inability to “emotional paralysis” isolation, desolation meet professional or and being overwhelmed personal obligations or deadlines Drug or alcohol Persistent abuse Changes apathy or in energy, “empty” feeling eating or sleep habits Loss of interest or pleasure, dropping Trouble hobbies concentrating or remembering things Guilt, feelings of hopelessness, helplessness, worthlessness, or A Johns Hopkins study foundlow self-esteem that lawyers suffer from depression at a rate 3.6 times higher than the general employed population.
We Can Help. The signs of depression aren’t easy to read. No one is completely immune. If you or a colleague experiences signs of depression, please call.
Your call is absolutely confidential as a matter of law. Toll-free (866)354-9334 • Email: [email protected] • www.louisianalap.com
Louisiana Bar Journal Vol. 61, No. 3 193 FREE LEGAL ADVICE
Local Lawyers will provide Free legal advice to those who cannot afford legal fees. Get answers to your legal questions about: ► divorce/Custody/Visitation ► debts ► bankruptcy ► Foreclosure LSBA Supports Local► Pro Landlord/Tenant Bono Issues ► domestic Violence Efforts with October Month of Service
he Louisiana State Bar Associa- ccess to A Jus tion chose October as its Month of A Sponti Sored by: B c Service in order to coincide with S e L
T and support local efforts during National Celebrate Pro Bono Week. Celebrate Pro Bono Week, held the last full week
of October, is a national effort to meet w g the ever increasing needs of our most w r w .o vulnerable citizens by encouraging local o .c n support of volunteer legal service efforts. el bo Yearly, low-income households in ebratepro Louisiana are expected to experience approximately one civil legal need, but only one in five of those low-income Providing information and advice to individuals in the court house households will have the benefit of being not only addresses an immediate legal need, but makes unrepresented represented by an attorney in that legal litigants aware of the importance of having good legal advice and matter. This means approximately 80 assures them that the courts can truly provide relief. percent of the state’s most vulnerable citizens have no representation as they attempt to secure the most basic – LSBA President Richard K. Leefe legal needs, like protection from an abusive spouse or access to affordable leaders to work with, and alongside, local of providing volunteer legal services. housing. These individuals often turn to organizations to help make a difference Louisiana’s legal community has an Louisiana’s network of civil legal aid in their communities by providing inspiring tradition of public service and providers for help. However, this safety assistance to benefit those most in in 2012 alone, Louisiana’s attorneys network of legal service and pro bono need. Specifically, local bars and legal reported providing more than 132,000 organizations, has recently experienced organizations were encouraged to give hours of pro bono service. However, its own difficulties because of reductions their time and experience by providing even with donations of thousands of of financial support during these difficult legal advice or help to unrepresented hours of volunteer time and thousands economic times. individuals at local courts. of clients served, there is still much work The National Celebration of Pro Bono “Providing information and advice to be done. provides an opportunity for local legal to individuals in the court house not “The National Celebration of Pro organizations across Louisiana to take only addresses an immediate legal Bono and LSBA Month of Service the next step in their efforts to provide need, but makes unrepresented litigants provide support and acknowledgement high quality legal services to those living aware of the importance of having good of the great work being done in pro bono on the social margins. legal advice and assures them that the in Louisiana, but it takes more than one The LSBA supports these local efforts courts can truly provide relief,” said week, or even a month, to promote and by providing information, resources, LSBA President Richard K. Leefe. Bar improve pro bono programs. Louisiana publicity items, a coordinated state leaders and local pro bono coordinators pro bono organizations need your help calendar of events and advice through conducted legal advice events throughout every day of the year to ensure the legal its Access to Justice Program. LSBA the state, some of the events breaking needs of our fellow citizens are met,” said President Richard K. Leefe designated ground as “firsts” in local court houses. LSBA Access to Justice Director Monte October as Louisiana’s “Month of Legal A list and photos of events held during Mollere. For more information about pro Service” for LSBA members in order the month of October can be found at: bono volunteer opportunities, contact a to coincide with, and culminate in, the www.lsba.org/goto/MonthofService. pro bono organization near you. A list of National Celebrate Pro Bono Week, Louisiana’s pro bono organizations organizations who could use your help Oct. 20-26. The goal of the “Month of are to be commended for their ongoing, can be found at: www.lsba.org/goto/ Legal Service” was for attorneys and bar untiring efforts to face the challenge MonthofService.
194 October / November 2013 Louisiana Celebrates Month of Pro Bono Work Numerous events were scheduled across the state for the October Month of Legal Service.
Tuesday, October 1, 2013 ►19th JDC Self Help Resource Center. The East Baton Rouge Family Court hosts an ongoing Self-Help Resource Center at the 19th JDC every Tuesday and Thursday. Wednesday, October 2, 2013 ► Orleans Parish Self Help Resource Center. The Civil District Court in New Orleans hosts its ongoing SRL efforts conducted by Baker Donelson, Entergy, Adams and Reese, and Bruno & Bruno every Monday and Wednesday. Tuesday, October 8, 2013 ► Arts and the Law. Attorneys discussed Jennifer Johnson, Alan Briethaup, Lamar Walters, Ashley Smith and Kim Lanier Lawrence stand legal issues with local artists and musi- ready to assist visitors to the 4th JDC Ask-a-Lawyer event. cians. Topics discussed were sales tax, permits and licenses. Several events were scheduled across the Statewide Day of Service Wednesday, October 9, 2013 state during National Pro Bono Week, ► Veterans’ Ask-a-Lawyer Day. The Oct. 20-26. Thursday, October 24, 2013 Shreveport Bar Association organized a ► Wills and Power of Attorney Clinic. Monday, October 21, 2013 one-day free legal advice for veterans. The Central Louisiana Pro Bono Project ► “Divorce Workshop.” The Pro Bono hosted a free Wills and Power of Attorney Friday, October 11, 2013 Project along with volunteer attorneys Clinic at the Rapides Parish Main Library. ► 9th JDC Self-Help Resource Center. from the Capital One Legal team con- Attorneys were available to prepare wills, The Central LA Pro Bono Project hosted a ducted a divorce workshop for clients. both living and simple, and Power of Self-Help Resource Center at the 9th JDC. Clients received help from a volunteer Attorneys, both durable and healthcare. attorney reviewing, signing, attesting to, Wednesday, October 16, 2013 ► Free Legal Clinic. The Jefferson Bar ► ADR Section School Outreach and notarizing divorce pleadings. 40-50 people were scheduled at the workshop. Association held a free legal clinic for Program. Members of the ADR Council unrepresented persons of Jefferson Parish. gave presentations targeted to third and ► “Senior Clinic.” The Pro Bono Project sixth graders at schools in Baton Rouge. hosted a free walk-in legal advice clinic ► “Wills for Heroes.” The LSBA Young on all topics targeted toward the elderly Lawyers Division, with the Shreveport Friday, October 18, 2013 at the Metairie Senior Center. Bar Association, participated in a Wills for ► “Ask-A-Lawyer Day.” The Orleans Heroes event at the Shreveport Bar Center. Civil District Court hosted a free walk-in Wednesday, October 23, 2013 legal clinic on all topics. ► Financial Literacy Seminar. Baton ► “Thirst for Justice.” The Baton Rouge Rouge volunteer attorneys presented in- Bar Association organized a free walk-in Saturday, October 19, 2013 formation on reverse mortgages, debtors’ legal advice clinic held at St. Vincent de ► “Ask-A-Lawyer Day.” The Baton rights and debtor issues pertinent to senior Paul in Baton Rouge covering all topics. Rouge Bar Foundation’s Pro Bono Project citizens at the Delmont Service Center in Friday, October 25, 2013 hosted a free walk-in legal advice clinic Baton Rouge. ► “Ask a Lawyer Day.” The Northshore on all topics at the Main Library in Baton Pro Bono Project of Southeast Louisiana Rouge. ► “Thirst for Justice.” The Baton Rouge Legal Services hosted an “Ask-A-Law- ► Hispanic Community Legal Clinic. Bar Association organized a free walk-in yer” event free-of-charge. The Pro Bono Project hosted a free walk-in legal advice clinic held at St. Vincent de legal advice clinic on all topics targeted Paul in Baton Rouge covering all topics. Saturday, October 26, 2013 toward the Hispanic community at the ► Consumer Clinic. The Pro Bono Hispanic Resource Center. Project hosted a free walk-in legal advice clinic on consumer topics at St. Peter Claver Church. For a complete list of events, visit www.lsba.org/goto/MonthofService LouisianaLouisiana Bar Bar Journal Journal Vol. Vol. 61, 61, No. No. 3 3 195195 Association Actions AWARD... Specialization... ATJ
“Suit Up for the Future” Program Receives National ABA Award The “Suit Up for the Future” High School Summer Legal Institute and Internship Program, a joint project of the Louisiana State Bar Association (LSBA) and the Just the Beginning Foundation, was one of three recipients of the 2013 American Bar Association (ABA) Partnership Award. The ABA’s Standing Committee on Bar Activities and Services presented the award Aug. 9 during a joint luncheon of the National Conference of Bar Presidents, the National Association of Bar Executives and the National Conference of Bar Foundations, in conjunction with the ABA Annual Meeting in San Francisco. The award recognizes outstanding The “Suit Up for the Future” High School Summer Legal Institute and Internship Program received programming and related work to increase the 2013 American Bar Association Partnership Award. Attending the Aug. 9 award presentation were, diversity across all spectrums of the legal from left, Louisiana State Bar Association (LSBA) President-Elect John L. (Larry) Shea, LSBA President Richard K. Leefe, LSBA Member Outreach and Diversity Director Kelly McNeil Legier, LSBA Executive profession. Director Loretta Larsen, CAE, and LSBA Immediate Past President John H. Musser IV. The Suit Up Program, a first-of-its- kind program at its inception in 2011, with law-related field trips and daily guest and present an oral argument to three sitting was recognized for being “an excellent speakers, the students receive instruction on judges on Louisiana state and federal courts. pipeline initiative, well-developed and law school courses, legal research, writing Also receiving the Partnership Award well-executed.” skills, group collaboration for mock cases, were the Dallas Bar Association for its The multi-week program introduces high oral arguments and basic office etiquette and Diversity Summit and the Monroe County school juniors, seniors and recent graduates attire. At the conclusion of the program, the (N.Y.) Bar Association for its Rochester to all aspects of the legal profession so they students complete a draft résumé, personal Legal Diversity Clerkship Program. might consider a future legal career. Along college statement and legal memorandum, LSBA Executive Director to Serve on NABE Board Louisiana State Bar Association (LSBA) she is a member of the American Society She was the 2011 chair of the board of Executive Director Loretta Larsen, CAE, of Association Executives (ASAE) and the directors of AIDSLaw of Louisiana, Inc. was installed Aug. 8 as a state bar director Louisiana Society of Association Executives and has served since 2007 as secretary of on the National Association of Bar Execu- (LSAE). She chaired the NABE Adminis- the board of the Louisiana Center for Law tives (NABE) Board of Directors. She will tration and Finance Section in 2011-12 and and Civic Education. She recently joined the serve a two-year term. served on the NABE Program Committee for board of the Louisiana Civil Justice Center. An association executive for nearly the 2012 Midyear Meeting in New Orleans. She has presented programs for NABE, 30 years, Larsen became the LSBA’s first She has previously chaired the NABE Chief the National Conference of Bar Presidents woman and first non-lawyer executive Staff Executives (1997-98) and Surveys and the Louisiana Society of Association director in 1991. Under her leadership, the (1993-95) committees, and has been a mem- Executives on topics including leadership, LSBA has expanded to include initiatives ber of the Bylaws Committee (2003-04) and disaster response, finances, communica- such as disciplinary diversion, a statewide Program Committee (2006-08). tions, human resources and event plan- access to justice program, law office man- Larsen served as LSAE president in ning. She received the CAE (Certified As- agement, professionalism and diversity. 2002, after having served as vice president sociation Executive) designation in 2005. In addition to her membership in NABE, and as a member of its board of directors.
196 October / November 2013 Third Legal Internship Program for High School Students Completed The Louisiana State Bar Association (LSBA) partnered with the Just the Begin- ning Foundation to complete the third “Suit Up for the Future” High School Summer Legal Institute and Internship Program this past summer. This year, 25 high school juniors, seniors and recent high school gradu- ates participated in the June 10-28 program. Programming included lectures on var- ious legal topics, discussions about ethics, field trips to the courts (including Orleans Parish Criminal District Court, Orleans Parish Civil District Court, Orleans Par- ish Municipal Court and the United States The Louisiana State Bar Association partnered with the Just the Beginning Foundation to complete District Court, Eastern District of Louisi- the third “Suit Up for the Future” High School Summer Legal Institute and Internship Program this ana), field trips to law schools, and several past summer. This year, 25 high school juniors, seniors and recent high school graduates participated in the program. A visit to the Louisiana Supreme Court was one of many activities. Photo by LSBA Staff. Law Firm Internship days. The program ended on June 28 with students with a realist preview of the legal Louisiana State University Paul M. Hebert mock oral arguments in the courtroom of profession and a pathway to accomplish Law Center, Southern University Law Cen- Magistrate Judge Karen Wells Roby, Unit- their goal of becoming a lawyer,” said ter and Tulane University Law School. ed States District Court, Eastern District of Chauntis T. Jenkins, co-chair of the LS- The program expenses were underwrit- Louisiana. BA’s Diversity Committee. ten in part by a grant from the Minority “The summer internship program pro- “The Suit Up Summer Internship Pro- Corporate Counsel Association. vides students with practical, hands-on gram affords students the unique opportu- experience of what it takes to get into law nity to gain a bird’s-eye view of the chal- school, and what it’s like to be a law stu- lenges and rewards of becoming an attor- dent and lawyer. As they assess their ca- ney,” said Hon. Karen K. Herman, judge Board-Certified reer options in high school, no other such in Orleans Parish Criminal Court and co- opportunity in any other profession can be chair of the LSBA’s Diversity Committee. Specialists Need found,” said Judge Roby, a coordinator of “There is no other program like it, and the the internship program and a member of experience gained by the students involved CLE Compliance both sponsoring organizations. is without measure.” “The effect of the Suit Up Program in The program organizers gave special In accordance with the requirements of the community is unparalleled. It provides thanks to Loyola University College of Law, the Louisiana Board of Legal Specialization (LBLS), as set forth in the individual stan- dards for each field of legal specialization, LSBA Director to Chair NABE Diversity Committee board-certified attorneys in a specific field of Louisiana State Bar Association (LSBA) peals. She also practiced law with Stone, law must meet a minimum CLE requirement Member Outreach and Diversity Director Pigman, Walther, Wittmann & Hutchin- for the calendar year ending Dec. 31, 2013. Kelly McNeil Legier was named chair of son, L.L.C.; Shook Hardy & Bacon, L.L.P. The requirement for each area of specialty the National Association of Bar Executives (a Kansas City-based firm); and Proskauer is as follows: (NABE) Diversity Development Committee Rose, L.L.P. (a New York-based firm). ► Estate Planning and Administration during the NABE Annual Meeting in August. Legier is a member of the board of di- Law — 18 hours of estate planning law. The committee assists local and state bar rectors of the New Orleans Chapter of the ► Family Law — 18 hours of family law. leaders in gathering information, resources Federal Bar Association and the Bureau of ► Tax Law — 20 hours of tax law. and skills needed to address and manage a Governmental Research. She is a Fellow of ► Bankruptcy Law — CLE is regulated broad range of minority involvement issues. the Louisiana Bar Foundation. She served by the American Board of Certification. Legier received her BA degree, magna on the LSBA’s Board of Governors and on CLE credits will be computed on a cum laude, in 1989 from Loyola Universi- the American Bar Association Presidential calendar year basis and all attendance ty in New Orleans and her JD degree, cum Diversity Report Next Steps Subcommit- information shall be delivered to the laude, in 1993, from Loyola University tee in 2010. She is an instructor for the Mandatory Continuing Legal Education College of Law. National Institute of Trial Advocacy and (MCLE) Department. The deadline for filing Before accepting the LSBA position, the Louisiana State University Trial Advo- annual CLE is Jan. 31 of the following year. she worked in the Staff Attorney’s Office of cacy Program and is a volunteer for the Pro Failure to timely report specialization CLE the United States 5th Circuit Court of Ap- Bono Project and Teen Court Program. hours will result in a penalty assessment.
Louisiana Bar Journal Vol. 61, No. 3 197
Small BP Deepwater Horizon Claims Can Be Referred to Public Interest Organizations By Linton W. Carney and Darin S. Britt The Pro Bono Project, New Orleans Offering Statewide Professional Mediators, Arbitrators, Umpires & Special Master Services or more than three years, residents of the Gulf Coast and Baton Rouge South Louisiana coastal states have lived with the economic and emotional Fconsequences of the BP Deepwater Horizon spill. Within days of the spill’s occurrence, public interest organizations in the region began collaborating with the aim of preventing the spill effects from devastating their low-income clients, the people most likely to suffer without John Perry Jr. Daniel Balhoff Robert Burns Jr. Jay Dardenne Matthew Block Patrick Briney Robert Dampf redress. The multistate consortium, spearheaded by the Mississippi Center for Justice and including entities from Alabama, Florida and Louisiana, continued to advocate for assistance to the most vulnerable and eventually received funding to assist them Carey Guglielmo William Helm Glen Scott Love Doug Moreau H. Ward Fontenot Richard Hymel Thomas Juneau Sr. from the Gulf Coast Claims Facility. This Judge, Ret. Judge, Ret. funding was continued by the Settlement Authority when it took over handling claims last year. Louisiana Civil Justice Center law clerks Amy Duncan and Mia Lewis assisted those affected by the BP In the past year, the consortium has oil spill at the Terrebonne Parish Library in Dulac. helped more than 5,400 people in the four states with a full range of claims, including the region have stepped up outreach to were particularly receptive and told how those for wage earners, small businesses, the potential clients through innovative they were still suffering three years after Michael Ponder Bert Robinson Keely Scott Myron Walker Jr. Katherine Loos Andrew McGlathery Emmett Sole Patrick Wartelle boat owners, cleanup workers, coastal clinics, canvassing and referrals. the spill; one owner said his company was Judge, Ret. Arbitrator property owners, and others affected by In Louisiana, the Louisiana Civil still down $30,000 every month compared the disaster. Justice Center’s (LCJC) Enjolie Dawson to before the spill. North Louisiana But with the April 2014 deadline led a canvassing expedition in Terrebonne But increased outreach alone won’t New Orleans & Northshore looming, and a determined effort by BP to Parish on June 20, 2013, with the ensure that everyone gets a chance to be challenge the Settlement’s compensation assistance of two LCJC interns and compensated. To help make sure that the terms coupled with a public relations Jacqueline Aaron, an intern at The Pro poor get a fair deal from the Settlement, campaign calling into question the Bono Project. The canvassing expedition members of the private bar can refer their ethics of the Settlement Authority, many was conducted to increase awareness small claims to members of the Louisiana advocates have expressed concern that of a free legal aid clinic set for the nonprofit community for representation. low-income residents of the area may following week at the Chauvin Library. Louisiana agencies working together Robert Burns Sr. Pascal Calogero Jr. James Cobb, Jr. James Dagate Michael Helm Richard Kingrea A. J. Krouse Donald Armand, Jr. Brian Crawford have become discouraged from seeking The participants distributed brochures include the Louisiana Civil Justice Judge, Ret. Justice, Ret. the help that is available to them. At the at bait shops, strip malls, banks, hotels, Center, The Pro Bono Project, Southeast same time, these advocates realize that individual businesses and restaurants. Louisiana Legal Services, the Gulf Coast a huge influx of last-minute claims will At each location, they worked in teams Center for Law and Policy, and the overtax the private bar with small claims of two, talking with business managers Louisiana Justice Institute. Practitioners that aren’t economically attractive either to inform them of the clinic and asking can contact one of those agencies directly due to complexity or (more often) to the them to display the outreach handouts to refer a case, but the preferred method is small amount involved. for their employees and customers. Many to contact the LCJC at 1-800-310-7029. To prevent this collision of interests, managers agreed to promote the clinic. Peggy Landry Andrew Lemmon Daniel Lund III Christopher Moody Michael Pulaski David Shea Brian Homza Hodge O’Neal III Chet Traylor the public interest organizations across Businesses related to the seafood industry Justice, Ret.
721 Government Street, Suite 102 Baton Rouge, Louisiana 70802 198 October / November 2013 225-389-9899 Phone 225-389-9859 Fax 866-389-9899 Toll-Free www.perrydampf.com
Offering Statewide Professional Mediators, Arbitrators, Umpires & Special Master Services
Baton Rouge South Louisiana
John Perry Jr. Daniel Balhoff Robert Burns Jr. Jay Dardenne Matthew Block Patrick Briney Robert Dampf
Carey Guglielmo William Helm Glen Scott Love Doug Moreau H. Ward Fontenot Richard Hymel Thomas Juneau Sr. Judge, Ret. Judge, Ret.
Michael Ponder Bert Robinson Keely Scott Myron Walker Jr. Katherine Loos Andrew McGlathery Emmett Sole Patrick Wartelle Judge, Ret. Arbitrator
New Orleans & Northshore North Louisiana
Robert Burns Sr. Pascal Calogero Jr. James Cobb, Jr. James Dagate Michael Helm Richard Kingrea A. J. Krouse Donald Armand, Jr. Brian Crawford Judge, Ret. Justice, Ret.
Peggy Landry Andrew Lemmon Daniel Lund III Christopher Moody Michael Pulaski David Shea Brian Homza Hodge O’Neal III Chet Traylor Justice, Ret.
721 Government Street, Suite 102 Baton Rouge, Louisiana 70802 225-389-9899 Phone 225-389-9859 Fax 866-389-9899 TollLouisiana-Free Bar Journalwww.perrydampf.com Vol. 61, No. 3 199 PracManagementtice By Carol M. Rider Minimize Breach of Law Firm Data
ou know your ethical respon- sibilities regarding protection of confidential client data.1 You know you have to take reasonableY precautions in preventing disclosure when emailing your client, or when saving sensitive information on your computer. But how do you proceed in safeguarding this information? You cannot rely on your IT person to maintain security since you also are required to reasonably supervise non-lawyers.2 This article discusses the nuts-and-bolts of computer safety, derived from an online article by John W. Simek and Sharon D. Nelson (published in the American Bar Association’s online Law Practice Magazine, January/February 2012, Vol. 38, No. 1):3
► Have a strong password of at least 12 characters. No matter how strong an eight-character password is, it can now be cracked in about two hours. A strong 12-character password takes roughly 17 years to crack (estimate at the time this article was written). Even better is the use of a passphrase, generally 20-30 characters long, which is a series of words that create a phrase personal to the user. ► Don’t use the same password ev- erywhere. If they crack you once, they’ve software or hardware installation. Apple ► Backup media, a huge source of got you in other places, too. isn’t immune either, since there are default data leaks, should be encrypted. If you use ► Change your passwords regularly. values for their products as well. an online backup service, which means This will foil anyone who has gotten your ► Your laptop should be protected you’re storing your data in the cloud, password. with whole disk encryption — no excep- make sure the data is encrypted in transit ► Do not have a file named “pass- tions. Stolen and lost laptops are one of and while being stored. Also, be sure that words” on your computer. Do not have the leading causes of data breaches. Many employees of the backup vendor do not your password on a sticky note under of the newer laptops have built-in whole have access to decrypt keys. your keyboard or in your top right drawer disk encryption. To state the obvious, ► Thumb drives, which are easy to (most common locations)! make sure you enable the encryption lose, should be encrypted. You may want ► Change the defaults. It doesn’t or your data won’t be protected. Also, to log activity on USB ports, because it is matter if you are configuring a wireless encryption may be used in conjunction common for employees to lift data via a router or installing a server operating with biometric access. As an example, thumb drive. Without logging, you cannot system. In all cases, make sure you change our laptops require a fingerprint swipe prove exactly what was copied. any default values. The default user ID to power on. Failure at that point leaves ► Keep your server in a locked rack in and passwords are well known for any the computer hard drive fully encrypted. a locked closet or room. Physical security
200 October / November 2013 is essential. ► Be wary of social media applica- personnel. None of these safeguards are ► Most smartphones write some tions, as they are now frequently invaded hard to implement. Unfortunately, even amount of data to the phone. Opening by cybercriminals. Giving another ap- if you implement them all, new dangers a client document may write it to the plication access to your credentials for will arise tomorrow. The name of the smartphone whether or not you save it. Facebook, as an example, could result game in information security is “constant The iPhone is particularly data rich. Make in your account being hijacked. Even vigilance.” sure you have a PIN for your phone. This though Facebook now sends all hyperlinks is a fundamental protection. Don’t use through Websense first (a vast improve- An attorney’s ethical duties of confi- “swiping” to protect your phone as thieves ment), be wary of clicking on them. dentiality and safekeeping are paramount can discern the swipe the vast majority of ► Consider whether you need cyber to maintaining the integrity of the legal the time due to the oils from your fingers. insurance to protect against the possible profession. Regular use of the aforemen- Also make sure that you can wipe the data consequences of a breach. Most insur- tioned tips will certainly increase protec- remotely if you lose your phone. ance policies do not cover the cost of tion of your client’s data. ► Solos and small firms should use investigating a breach, taking remedial a single integrated product to deal with steps or notifying those who are affected. FOOTNOTES spam, viruses and malware. For solos and ► Have a social media and an incident small firms, we recommend using Kasper- response policy. 1. Rules of Professional Conduct 1.6 and 1.15. sky Internet Security 2012, which contains ► Let your employees know how to 2. Rule of Professional Conduct 5.3. 3. To review the full article by John W. Simek firewall, anti-virus, anti-spyware, rootkit use social media as safely as possible, and Sharon D. Nelson, go to: www.americanbar. detection, anti-spam and much more. For and if an incident happens, it is helpful org/publications/law_practice_magazine/2012/ larger firms, we are fans of Trend Micro. to have a plan of action in place. january_february/hot-buttons.html . ► Wireless networks should be set ► Dispose of anything that holds data, Carol M. Rider is pro- up with the proper security. First and including a digital copier, securely. For fessional liability loss foremost, encryption should be enabled computers, you can use a free product like prevention counsel for on the wireless device. Whether using DBAN to securely wipe the data. the Louisiana State Bar Wired Equivalent Privacy (WEP) 128- ► Make sure all computers require Association and is an em- ployee of Gilsbar, Inc. in bit or WPA encryption, make sure that screen saver passwords, and that the Covington, La. She earned all communications are secure. WEP is screen saver gets invoked within a reason- her JD degree from Loyola weaker and can be cracked. The only able period of inactivity. University Law School in wireless encryption standards that have ► Use wireless hot spots with great 1983. She is a me mber of the Louisiana State Bar not been cracked (yet) are WPA with the care. Do not enter any credit card informa- Association and has lec- AES (Advanced Encryption Standard) tion or login credentials prior to seeing tured on professionalism or WPA2. the https: in the URL. and ethics as part of Mandatory Continuing Legal ► Make sure all critical patches are ► For remote access, use a VPN or Education requirements for attorneys licensed to practice law in the Louisiana. She also has published applied. This may be the job of your IT other encrypted connection. several articles for the Louisiana Bar Journal. She provider, but too often this is not done. ► Do not give your user ID and can be emailed at [email protected]. ► If software is no longer being sup- password to anybody. This includes ported, its security may be in jeopardy. your secretary and even the IT support Upgrade to a supported version to ensure that it is secure. ► Control access. Does your secretary really need access to Quickbooks? Prob- ably not. This is just another invitation to a breach. ► If you terminate an employee, make A Fresh Perspective sure you kill the ID and immediately cut all On Your Case possible access (including remote) to your network. Don’t let the former employee have access to a computer to download personal files without a trusted escort. ► Using cloud providers for software applications is fine, provided that you made reasonable inquiry into their secu- rity. Read the terms of service carefully and check your state for current ethics Mediation | Jury Focus Groups | Special Master opinions on this subject. www.tomfoutzadr.com
Louisiana Bar Journal Vol. 61, No. 3 201 lawyAssistanceers By J.E. (Buddy) Stockwell The High-Functioning Alcoholic
s judges and lawyers, we of- person’s private life is often in shambles. ten exhibit personality traits Lawyers Assistance As time marches on, family members, that help us succeed as law Program, Inc. (LAP) friends and coworkers often ignore and students and, later, as legal Your call is absolutely confidential minimize the HFA’s problem drinking Aprofessionals. as a matter of law. because they feel that they “have no proof” Review these traits to see whether you Toll-free (866)354-9334 that the person is really an alcoholic. They recognize any of them in yourself or others Email: [email protected] also may feel that because the person is still in the legal profession: 1) outgoing and functioning at the moment “it must not be gregarious personality; 2) strong ability to staff members who cover up mistakes and that bad.” In truth, it is very bad because function in “survival mode;” 3) exceptional clean up messes. The HFA’s alcoholism the disease worsens over time. HFAs may “people skills;” 4) desire to make others progresses undetected as a result. Also, be successful in delaying consequences but happy; 5) need to prove themselves; 6) hefty professional salaries often provide they rarely escape them. Alcoholism is a high level of physical energy; 7) meticulous HFAs with ample resources to hide or chronic, progressive and, if left untreated, work ethic; 8) very likable; 9) physically “fix” damages caused by their continued potentially fatal disease. The HFA’s ability strong; 10) desire to succeed materially; 11) problem drinking. to compartmentalize drinking, combined competitive nature; 12) high professional/ For the HFA’s personal view, excessive with others’ hesitation to address the HFA’s academic standards; 13) ability to compart- alcohol use is often considered an appropri- drinking, often makes matters worse for mentalize professional and or academic ate reward. The catchphrase “work hard, HFAs because the problem often grows life from personal life; 14) attachment to play hard” is often employed by HFAs to until an overwhelming avalanche of con- external success; and 15) desire to exceed rationalize problem drinking. Further, to sequences comes crashing down. parental levels of success. try and normalize problem drinking, HFAs The results can range from severely Believe it or not, this list does not delin- often befriend other heavy drinkers who damaging to deadly. Approximately one eate successful traits of legal professionals. also “play hard.” third of people who attempt and complete Instead, it is a list of traits common among Unsuccessful at alcohol moderation, suicide meet diagnosable criteria for alcohol High-Functioning Alcoholics (HFAs). HFAs often engage in mind games by abuse or dependence. That statistic, com- That’s not to say that these traits automati- claiming the alcohol content of their drinks bined with the legal profession’s already cally make someone an alcoholic, but it is is not that high or by drinking expensive high rates of substance abuse and suicides, interesting to learn that some of the traits that alcoholic beverages so as to aver they are places those of us in the legal profession propel legal professionals toward success connoisseurs rather than problem drinkers. at very high risk. By reaching out to the also can disguise the disease of alcoholism. As HFAs expend great effort to appear Lawyers Assistance Program (LAP), you In the United States, 18 million people normal, many secretly suffer painful per- can tap into valuable resources that literally meet the criteria for substance use disorders sonal distress: shame and remorse from can save lives. and up to 50 percent of diagnosable alcohol- drunken behavior; frustration over failed If you have a problem, call LAP! If you ics are HFAs. A mere 9 percent of alcoholics attempts to control drinking; and the pain know someone with a problem, call LAP! are stereotypically drinking cheap booze of abstaining for months or years only to Your call is confidential as a matter of law from a bottle in a paper bag. In reality, a “fall off the wagon” and become a problem and you do not have to give your name. huge number of alcoholics are found on drinker again. LAP can be reached at (866)354-9334, by the job each day, appearing to successfully Early in the HFA conversation, someone email [email protected], or on the web manage their professional and public lives always asks: “If the person is successful at: www.louisianalap.com. despite their ongoing drinking problems despite problem drinking, why not leave that, in their minds, are compartmentalized them alone?” In answering that question, it J.E. (Buddy) Stockwell is and under control. the executive director of is paramount to first understand that despite the Lawyers Assistance HFAs may not admit it but their drinking an HFA’s best efforts to contain alcoholism Program, Inc. (LAP) and negatively impacts their work performance within his or her personal life, if left un- can be reached at (866)354- at times and they simply get away with it. treated, alcoholism will eventually impact 9334 or via email at LAP@ louisianalap.com. Many HFAs are professionals who are not the person’s professional performance closely supervised and have loyal support and public life. By that time, however, the
202 October / November 2013 Focus on Diversity By Paul S. Balanon and Michael R. Robinson LGBT Subcommittee’s ‘I THee Wed’ CLE
he Lesbian, Gay, Bisexual and same-gender couples coming through the Transgender (LGBT) Subcom- Mission Statement: court system, the ballot box, as well as state mittee of the Louisiana State Bar Diversity Committee’s legislatures. Sears also discussed the two Association’s (LSBA) Diversity LGBT Subcommittee Supreme Court cases in detail, beginning CommitteeT hosted a well-attended roundta- with their backgrounds, the significance ble of practitioners (and non-practitioners) The Mission Statement of the of the rulings, and where he believes the on July 18 in New Orleans to discuss the Diversity Committee’s Lesbian, Gay, country is headed from here. ramifications of two U.S. Supreme Court Bisexual and Transgender Subcom- The roundtable discussion was led by opinions affecting the LGBT community mittee is: Professor Todd Brower, judicial educa- — the opinions issued just weeks before “To unite attorneys, judges, profes- tion director at the Williams Institute. The the program. sors, law students, paralegals and other open-forum format allowed attendees to For the roundtable, three scholars af- members of the legal profession in voice their thoughts, ask questions and filiated with UCLA’s Williams Institute on Louisiana around issues facing LGBT engage in debate covering real-life sce- Sexual Orientation Law & Public Policy individuals; promote solidarity and narios that practitioners might encounter. discussed United States v. Windsor, holding support among LGBT individuals in Topics ranged from community property, unconstitutional Section 3 of the federal the law; encourage law firms to offer succession, divorce, child custody and Defense of Marriage Act (DOMA) that had domestic partnership benefits to em- immigration, and how these complicated prohibited federal recognition of valid mar- ployees; educate the general public, issues might be resolved by the practitioner riages between persons of the same gender; legal profession and courts about legal in the current legal climate. and Hollingsworth v. Perry, holding that issues facing LGBT individuals; pro- The response from attendees was appellants lacked standing to challenge a mote the expertise and advancement of overall very positive. The LGBT Sub- lower court ruling that the State of Cali- LGBT legal professionals in the legal committee is in the process of developing fornia could not change its Constitution to profession; work with LGBT organi- future programs, aimed at advancing the deny marriage rights between persons of zations, community groups and other principles set forth in its Mission State- the same gender. As of July 18, 13 states progressive allied groups and individu- ment (see sidebar). For more information and the District of Columbia allow mar- als to gain equal rights for all people; on the subcommittee’s work or to become riage of same gender couples.1 Louisiana promote the creation of coalitions a member, go to: www.lsba.org/diversity, does not. This state is constrained from with other legal bar associations and or email LSBA Member Outreach and doing so by its so-called “Mini-DOMA.” organizations; encourage the adoption Diversity Director Kelly McNeil Legier Dr. Gary Gates, a recognized demogra- of non-discrimination policies in law at [email protected]. pher of the LGBT population in the United firms protecting both sexual orientation States, used the most recent federal census and gender identity; and encourage and data to explain the population dynamics of empower LGBT individuals to choose FOOTNOTE the LGBT community. It is estimated that law as a career.” more than 110,000 LGBT individuals live 1. In addition to 13 states and the District of Co- in Louisiana. An estimated 8,000 same-sex the effects of DOMA and identified 1,100 lumbia, several countries provide marriage rights couples live in the state, with the majority for same-gender couples, including South Africa, or so federal benefits and obligations Canada, New Zealand, Argentina, Uruguay, numer- living in Orleans, Lafayette, Caddo and withheld from couples in same-gender ous countries in Europe, and certain states in Brazil East Baton Rouge parishes. A significant marriages. In light of Windsor, differential and Mexico. portion of these couples have been or plan treatment in such areas as immigration, to be married in a state that grants such federal employee benefits, military and Paul S. Balanon is an attorney with the New Or- rights to persons of the same gender, but leans office of Ogletree, Deakins, Nash, Smoak & veteran spousal benefits, Medicare ben- Stewart, P.C. (Ste. 3500, 701 Poydras St., New Or- then return to Louisiana, which does not efits and federal taxes will no longer be leans, LA 70139) legally recognize their relationship status. constitutional. He described how marriage Professor R. Bradley Sears, assistant equality developed in the United States Michael R. Robinson is an attorney with the Irpino dean at UCLA School of Law and executive Law Firm in New Orleans. (2216 Magazine St., and the rest of the world over the past 15 New Orleans, LA 70130) director of the Williams Institute, explained years, with expansion of marriage rights to
Louisiana Bar Journal Vol. 61, No. 3 203 Crossword Puzzle By Hal Odom, Jr. The Biggest Conspiracy
1 2 3 4 5 6 7 ACROSS DOWN
8 1 ___ Shaw, charged with (and 1 Texas governor of 11/22/63 (8) acquitted of conspiracy of 11/22/63 (4) 2 Maturation (5) 9 10 3 Dallas hospital of 11/22/63 (8) 4 Revises, as a contract or a statute (6) 9 Innocence or credulity (7) 5 Home country of Barack 10 Explosive, familiarly (5) Obama Sr. (5) 11 Prefix meaning “British” (5) 6 Architectural style of Louisiana 11 12 12 Plaza of 11/22/63 (6) State Capitol (3, 4) 14 ___ Baines Johnson, sworn in as 7 “Good to the last ___” old ad 13 president on 11/22/63 (6) slogan (4) 14 15 16 17 16 Site of Louisiana State 13 Photographer of 11/22/63 (8) Penitentiary (6) 15 More inclement (7) 18 19 Assassin (?) of 11/22/63 (6) 17 Japan, in corporate names (6) 21 Parsimonious person (5) 18 Very slow, musically (6) 19 20 21 22 24 Cholula chum (5) 20 Provençal garlic sauce (5) 25 Become tiresome (4, 3) 22 Grassy ___, where shots may have 23 26 Orleans D.A. who prosecuted (and emanated on 11/22/63 (5) failed to convict) 1 Across (8) 23 Fruit-flavored drink taken on 24 25 27 Make indistinct (4) Gemini flights (4)
26 27 Answers on page 239.
Alcohol and Drug Abuse Hotline Director J.E. (Buddy) Stockwell III, 1(866)354-9334 1405 W. Causeway Approach, Mandeville, LA 70471-3045 • e-mail [email protected]
Alexandria Steven Cook...... (318)448-0082 Lake Charles Thomas M. Bergstedt...... (337)558-5032
Baton Rouge Steven Adams...... (225)753-1365 Monroe Robert A. Lee.....(318)387-3872, (318)388-4472 . (225)924-1510 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 Houma Bill Leary...... (985)868-4826 Shreveport Michelle AndrePont ...... (318)347-8532 Lafayette Alfred “Smitty” Landry...... (337)364-5408, Nancy Carol Snow...... (318)272-7547 . (337)364-7626 William Kendig, Jr...... (318)222-2772 Thomas E. Guilbeau...... (337)232-7240 .(318)572-8260 (cell) James Lambert...... (337)233-8695 Steve Thomas...... (318)872-6250 .(337)235-1825
The Lawyers Assistance Program, Inc. provides confidential assistance with problems such as alcoholism, substance abuse, mental health issues, gambling and all other addictions.
204 October / November 2013 Focuson Professionalism By Lauren E. Godshall Professionalism: Now With Homework
awyers frequently discuss the field, caring about both your work product concept of “professionalism” in and your team, and completing every task the context of interacting with in a timely fashion, and so forth. As for other lawyers or judges. This “interaction,” there was repeated mention Lmay be a natural byproduct of the inten- across multiple definitions of maintain- sity and high stakes that often accompany ing and demonstrating both honesty and lawyer-lawyer interactions. The presence integrity; displaying respect for everyone — or absence — of a truly professional else in the office; and maturity and being demeanor in one’s opponent can be striking. accountable for one’s mistakes. Perhaps But it is important to remember, too, that most dauntingly, it also was mentioned that the concept of “professionalism” embraces a true professional maintains these qualities much more than only lawyer-to-lawyer during the most difficult and extraordinary interactions and, in fact, should be a part situations. As one submission concluded: of every interaction in a well-functioning “At the end of the day, a true professional office environment, regardless of setting. is exhausted!” Recently, Phillip Hearn, a paralegal I At the end of his presentation, Phillip work with, was asked to give a presentation left us with his own definition of profes- to our entire firm on the topic of “profes- sionalism — and some homework. He said sionalism.” In preparing for the talk, Phillip his understanding of the term involved the started out by consulting the well-known important element of choice. We can choose and well-worn authorities (Google, of Preparation, planning and timeliness how to conduct ourselves and how to treat course) on the subject. But then he was were frequently mentioned as qualities others. A professional, Phillip said, chooses struck by an idea — instead of telling us inherent to professionalism. Appropriate to treat others the way he or she would want what the great thinkers, authors, lawyers grooming and attire were the focus of a and expect to be treated, regardless of the and politicians have said about profes- few. Sincerity, humility, modesty were recipient’s circumstances and regardless sionalism and what it means, he would highlighted in several submissions, as of their response. ask us what professionalism means. In the were the somewhat oppositional concepts And then there was the homework. weeks before his presentation, he quietly of taking pride in your work and valuing We even got worksheets — and perhaps circulated an email to a cross section of the your role in the organization. Empathy it would be unprofessional to disregard people in the office — partners, associates, for others was balanced with a need for his assignment? It was simple enough . . . paralegals, secretaries, nurses, administra- high-quality, careful work. Many ideas one question followed by blank space. tive staff and accounting staff. He reached were similar — but, interestingly, it was “What is professionalism to me?” A good out to longtime firm members and new impossible to tell, from reading each of the question for all of us and one I pass along hires — younger and older employees alike. submitted definitions, whether they had now: If you had to put it into words, what Phillip’s email asked each person to simply been written by the most senior partner or would you say? define the word “professionalism” in his/ the most junior accounting clerk. Lauren E. Godshall is a her own way: “What is ‘professionalism’ In reviewing all of the definitions to- to you?” Then he presented the resulting member of the Louisiana gether, I was struck by a few trends. The State Bar Association’s definitions to all of us, without letting us definition of “professionalism,” as my co- Committee on the Profes- know who had said what. workers had variously defined it, seemed sion. She practices envi- ronmental litigation as a The compiled definitions provided to be a combination of two fundamental us a little peek into what our co-workers senior associate in the New elements: the “work product” element and, Orleans office of Curry & consider most important, giving guidance what I inelegantly called, the “interaction” Friend, P.L.C. (Ste. 1200, on what we would like to see both from element. Under “work product,” my co- Whitney Bank Building, ourselves and from each other as we all 228 St. Charles Ave., New workers spoke of the importance of atten- Orleans, LA 70130) work together day in and day out. tion to detail, staying competent in your
Louisiana Bar Journal Vol. 61, No. 3 205 Discipline Reports REPORTING DATEs 8/1/13 & 8/4/13
REPORT BY DISCIPLINARY COUNSEL
Public matters are reported to protect the public, inform the profession and deter misconduct. Reporting date Aug. 4, 2013.
Decisions on April 26, 2013. Gist: Convicted of the trust account. crime of battery and for failing to cooperate Marvin C. Gros, Donaldsonville, (10- Frank D. Barber III, New Orleans, with the Office of Disciplinary Counsel in DB-080) Public reprimand ordered by the (2013-B-1132) Suspended for two years, its investigation. Louisiana Attorney Disciplinary Board on retroactive to his March 28, 2012, in- Hilliard Charles Fazande III, New May 14, 2013. JUDGMENT FINAL and terim suspension, ordered by the court Orleans, (2013-B-0847) Suspended for EFFECTIVE on May 28, 2013. Gist: Neg- as consent discipline on June 21, 2013. six months, fully deferred, subject to ligently failing to supervise an attorney and JUDGMENT FINAL and EFFECTIVE two years’ probation with conditions, run his office; negligently failed to receive on June 21, 2013. Gist: Commission of ordered by the court as consent discipline and respond to court notices and deadlines; a criminal act, especially one that reflects on May 17, 2013. JUDGMENT FINAL and negligently failed to sufficiently explain adversely on the lawyer’s honesty, trust- and EFFECTIVE on May 17, 2013. Gist: the significance of the prescription defense Overdraft in and improper use of client worthiness or fitness as a lawyer in other Continued next page respects; and violating or attempting to violate the Rules of Professional Conduct. Scott David Beal, Chicago, Ill., (2013- Elizabeth A. Alston B-0972) Suspended for two years ordered Counselor, advocate and expert witness by the court on June 21, 2013. JUDGMENT Practice limited to matters involving legal and judicial ethics FINAL and EFFECTIVE on July 5, 2013. Gist: Neglected legal matters; settled cases Chair, Disciplinary Board, 1991 – 1992 without his clients’ approval; and failed to AV-rated (Martindale-Hubbell) for twenty years disburse settlement funds to a client. Russell W. Beall, Baton Rouge, (2013- Alston Law Firm, LLC B-1122) Public reprimand ordered by the 322 West 26th Avenue, Covington, LA 70433 court as consent discipline on June 14, 2013. 985-809-6779 or toll-free: 877-809-6779 JUDGMENT FINAL and EFFECTIVE on http://EthicsByAlston.com June 14, 2013. Gist: Improperly split fees with a disbarred attorney. Darryl M. Breaux, New Orleans, (2013-B-1123) Suspended for six months, fully deferred, subject to a one-year probationary period, ordered by the court as consent discipline on June 14, 2013. JUDGMENT FINAL and EFFECTIVE on June 14, 2013. Gist: Mishandled his client trust account by maintaining personal funds in the account and allowing it to become overdrawn. Thomas L. Crabson, Margate, Fla., formerly of Louisiana, (2013-B-0312) Suspended for one year and one day ordered by the court on April 12, 2013. JUDGMENT FINAL and EFFECTIVE
206 October / November 2013 and the reasons for filing, then dismissing, on the lawyer’s honesty, trustworthiness or tendance of 2 hours of additional CLE the appeal of the judgment sustaining the fitness as a lawyer in other respects. ordered by the board as final discipline prescription exceptions, resulting in the Frank E. Lemaire, Sulphur, (2013-OB- on May 22, 2013. JUDGMENT FINAL complainant losing her opportunity to liti- 1380) Transferred to disability inactive and EFFECTIVE on June 5, 2013. Gist: gate her medical malpractice claim. status ordered by the court on June 19, 2013. Negligent failing to act with diligence and Joseph B. Harvin, Slidell, (2013- JUDGMENT FINAL and EFFECTIVE on conflict of interest. B-0685) Suspended for three months June 19, 2013. Helene Melissa Sugar (Gold), Shreve- with all but 30 days deferred, subject to David M. Mark, Covington, (2013-B- port, (2013-B-0874) Suspended for 30 one-year unsupervised probation and 1097) Interim suspension ordered by the months, retroactive to June 2, 2010, the condition of Ethics School, ordered by court on consent on May 22, 2013. date of her interim suspension, ordered by the court on May 24, 2013. JUDGMENT Michael Kevin Powell, Lake Charles, the court as consent discipline on May 31, FINAL and EFFECTIVE on June 7, 2013. (2013-B-1264) Suspended for one year 2013. JUDGMENT FINAL and EFFEC- Gist: Meritorious claims and contentions; and one day, retroactive to his April 25, TIVE on May 31, 2013. Gist: Neglected candor toward the tribunal; violating the 2012, interim suspension, ordered by the legal matters; failed to communicate with Rules of Professional Conduct; and engag- court as consent discipline on June 21, clients; failed to refund unearned fees; ing in conduct involving dishonesty, fraud, 2013. JUDGMENT FINAL and EFFEC- failed to properly supervise a non-lawyer deceit or misrepresentation. TIVE on June 21, 2013. Gist: Commis- assistant; engaged in conduct involving Nelvil B. Hollingsworth, Zachary, sion of a criminal act, especially one that dishonesty, fraud, deceit or misrepresenta- (2013-B-1225) Suspended for one year reflects adversely on the lawyer’s honesty, tion; and failed to cooperate with the ODC and one day, retroactive to his May 30, trustworthiness or fitness as a lawyer in in its investigations. 2012, interim suspension, ordered by the other respects; and violating or attempting Andre F. Toce, Broussard, (2013-B- court as consent discipline on June 21, 2013. to violate the Rules of Professional Con- 1086) Suspended for one year and one JUDGMENT FINAL and EFFECTIVE on duct. day, fully deferred, subject to conditions, June 21, 2013. Gist: Commission of a crimi- H. Brenner Sadler, Alexandria, ordered by the court as consent discipline nal act, especially one that reflects adversely (12-DB-032) Public reprimand and at- on May 31, 2013. JUDGMENT FINAL and EFFECTIVE on May 31, 2013. Gist: Violating or attempting to violate the Rules chrIstoVIch & KearneY, llp of Professional Conduct; and violating Rule 8.4(b) (DWI). attorneYs at law Continued next page M E B R S
EFENSE OF THICS OMPLAINTS AND HARGES M E B R S D E C C A L P H B E T I C A L P H B E T I C e. phelps GaY KeVIn r. tullY A L A L Y
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Louisiana Bar Journal Vol. 61, No. 3 207 DISCIPLINARY REPORT: UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA The following is a verbatim report of the matters acted upon by the United States District Court for the Eastern District of Louisiana, pursuant to its Disciplinary Rules. This information is published at the request of that court, which is solely responsible for the accuracy of its content. This report is as of Aug. 1, 2013. Respondent Disposition Date Filed Docket No. Chris L. Bowman Reinstated. 6/18/13 13-644 Hilliard Charles Fazande III [Reciprocal] Suspension. 7/16/13 13-4275 Frank T. Fradella [Reciprocal] Suspension. 7/16/13 13-3679 Joseph B. Harvin [Reciprocal] Suspension. 7/16/13 13-4810
Discipline continued from page 207 lawyer in other respects...... 1 Made an arrangement for, charged and collected an unreasonable fee...... 1 Admonitions (private sanctions, often Conflict of interest...... 1 with notice to complainants, etc.) is- Misconduct...... 1 sued since the last report of misconduct Conflict of interest regarding a prospective involving: client...... 1 Regarding bar admission and disciplinary No. of Violations matters...... 1 Engage in conduct involving dishonesty, Allowed a non-lawyer to routinely sign fraud, deceit or misrepresentation...... 1 Regarding candor toward the tribunal.....1 checks issued from the IOLTA account....1 Failed to cooperate with the Office of Regarding competence...... 1 Business transaction with a client...... 1 Disciplinary Counsel in its investigation of any matter before it except for an Regarding declining or terminating Commission of a criminal act, especially openly expressed claim of a constitutional representation...... 1 one that reflects adversely on the lawyer’s privilege...... 1 TOTAL INDIVIDUALS honesty,LSJB Ad5c trustworthiness '11_Layout 1 8/16/11 or fitness 1:27 PM as Page a 1 ADMONISHED...... 9 A Louisiana Leader in providing Litigation Services, Forensic Accounting, Business Valuation, and Law Firm Management
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208 October / November 2013 Recent Developments ADR to TAXATION
In answering a question about same- lawsuit by Prejean against the executive sex marriage during the 2009 Miss USA directors, among others. Alternative pageant, reigning Miss California Carrie The parties went to mediation in Dispute Prejean expressed her belief that marriage November 2009 with JAMS, signed “in my country, in my family . . . should be a JAMS confidentiality agreement, Resolution between a man and a woman, no offense and reached a settlement that included to anybody out there.” The controversy an agreement by the parties and their that ensued led to Prejean finishing second attorneys to maintain “the strictest Mediation in the pageant; personal attacks against confidentiality” regarding the mediation Confidentiality Trumps Prejean by the executive directors of and settlement agreement. A day after the the Miss California USA pageant; the conclusion of the mediation conference, First Amendment resignation of one of those directors when TMZ reported details of the agreement, Rights Donald Trump refused to strip Prejean including that Prejean dropped her of her Miss California crown; Prejean monetary demands after being shown a LiMandri v. Wildman, Harrold, Allen becoming the darling of family-oriented compromising sex video that she made. & Dixon, No. B234460 (Cal. App. 2d conservative groups; Prejean ultimately In subsequent reports, more details of Dist., June 6, 2013), 2013 WL 2451322 being stripped of her Miss California the mediation conference continued to be (unpublished). crown; and, inevitably, a defamation aired in the media: Prejean first denied that
Louisiana Bar Journal Vol. 61, No. 3 209 she was the female on the tape, then was claims dismissed through the application speech. The act of signing a confidentiality “rendered speechless” when the camera of California’s Strategic Lawsuit Against provision does “[prevent] a party from angle changed to show her face; her Public Participation (SLAPP) provision disclosing the circumstances surrounding mother was present in the room and turned (Code Civ. Proc. § 425.16). The intent of a settlement agreement.” Further, the court “sheet white” when the video was played; the anti-SLAPP statute is to protect the noted that the “confidentiality provision and the amount of fees paid to Prejean’s valid exercise of the constitutional right of the Settlement Agreement expressly attorney, Charles LiMandri. Given that of freedom of speech in matters involving applies to the attorneys for the parties.” one of the defendants and his attorney public significance from lawsuits brought As such, even though the defense attorney were the only members of the defense in primarily to chill that right. The defendants did not sign the settlement agreement as a the room during the video showing, the argued that since Prejean is a public person party, he “is bound by the confidentiality court noted that the list of who leaked the and the disclosures regarding her sex tape provision to the same extent as [his] information was “considerably limit[ed].” were made on television (a public forum), client.” Therefore, the defense attorney’s In November 2010, Charles LiMandri they were within their First Amendment statements to TMZ and other media outlets filed suit on his own behalf for breach of rights to disclose that information. about Prejean were not protected speech, the JAMS confidentiality agreement and The California 2nd District Court and the lawsuit could proceed. of the settlement agreement, among other of Appeal agreed with the defendants claims. His argument was that he agreed that Prejean was a public person and —Paul W. Breaux to less than his usual fee in the settlement the disclosures were made in a public Chair, LSBA Alternative Dispute agreement in order to prevent his client forum; however, it affirmed the trial Resolution Section from being “essentially blackmailed court’s decision to deny the motion Peacemakers Mediation Service, L.L.C. with the private photos and videos” and to strike plaintiff’s claims. The court 16643 S. Fulwar Skipwith Rd. that he had a “right to financial privacy pointed out that it is possible to waive Baton Rouge, LA 70810 in the amount of his fee award.” The constitutional rights by contract, even defendants attempted to have LiMandri’s the First Amendment right to freedom of
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210 October / November 2013 market rate of 9.3 percent, arising from in calculating a 5 percent cramdown rate the prime rate with an upward adjustment as proposed by the debtors, but noted that of 6.05 percent to account for the “nature this formula is not the only, or even the Bankruptcy of the security interest.” Wells Fargo then optimal, method for calculating the Chapter Law adjusted the blended rate in accordance 11 cramdown rate. with the remaining Till factors, making a downward adjustment of 1.5 percent to Absolute Priority Rule account for the sterling “circumstances Calculating the of the bankruptcy estate” and an upward Applies to Individual adjustment of 1 percent to account for the Chapter 11 Debtors Cramdown Rate in plan’s tight feasibility. Chapter 11 The 5th Circuit looked to the decision in In re Philip Reed Lively, 771 F.3d 406 Till, where a plurality of the U.S. Supreme (5 Cir. 2013). Wells Fargo Bank Nat’l Ass’n v. Texas Court ruled that “bankruptcy courts must In his Chapter 11 case, the debtor, Grand Prairie Hotel Realty, L.L.C., 710 calculate the Chapter 13 cramdown rate Philip Reed Lively, proposed a plan F.3d 374 (5 Cir. 2013). by applying the prime-plus formula.” of reorganization that allowed him to Texas Grand Prairie Hotel Realty, Id. at 331. Till’s “prime-plus” method of retain all of his property by paying his L.L.C. (debtor) obtained a loan secured calculating the cramdown rate stated that unsecured creditors an amount exceeding by debtor’s hotel properties. Debtor the court should: (1) take the national prime the liquidation value of his assets. It subsequently filed for Chapter 11 and rate, and then (2) add a supplemental “risk was alleged, and Lively did not dispute, submitted a plan of reorganization. The adjustment” to account for “such factors that Lively’s plan violated the absolute secured creditor of the debtor, Wells Fargo, as the circumstances of the estate, the priority rule as it permitted him to retain rejected the proposed plan, and the debtor nature of the security, and the duration and valuable, non-exempt, prepetition assets. sought to cramdown its plan under Section feasibility of the reorganization plan.” Till, The majority of the unsecured creditors 1129(b). Both parties stipulated that the 124 S.Ct. at 1961. While Till observed that voted against the plan, forcing the cramdown rate should be determined “Congress [likely] intended bankruptcy bankruptcy court to assess whether the by applying the “prime-plus” formula judges and trustees to follow essentially the absolute priority rule applied, which would endorsed by the United States Supreme same [formula] approach when choosing LA Bar Journal Ad 9/21/11 3:44 PM Page Court in Till v. SCS Credit Corp., 124 S.Ct. an appropriate interest rate under [Chapter 1951 (2004). In Till, the Supreme Court 11],” footnote 14 qualified that extension. used the prime rate and then added a risk Id. at 1959. Footnote 14 states that as adjustment to account for such factors as SCHAFER GROUP LTD “efficient markets” for exit financing often Certified Public Accountants “the circumstances of the [debtor’s] estate, exist in business bankruptcies, a “market the nature of the security, and the duration rate” approach might be more suitable for When you need a forensic accountant, and feasibility of the reorganization plan.” making the cramdown rate determination call on a professional. Id. at 1961. under Section 1129(b) in those instances. The prime rate at the time was 3.25 Id. However, markets for exit financing “Knowledge of business, finance percent. The debtor proposed a cramdown will be considered “efficient” only if and accounting may be needed rate of 5 percent, applying an upward risk they offer a loan with a term, size and at any stage of the litigation adjustment of 1.75 percent based on the Till collateral comparable to the forced loan process. Therefore, we can be factors. Wells Fargo, however, proposed a contemplated under the cramdown plan. an important member of any cramdown rate of 8.8 percent. Wells Fargo As there was no such comparable successful litigation team. devoted the majority of its cramdown rate loan to the one contemplated under the analysis to determining the rate of interest debtor’s plan, the “market rate” approach From contemplation of action to that the market would charge to finance an was inappropriate to assess the cramdown expert testimony, we can complement attorneys in amount of principal equal to the cramdown rate as to Wells Fargo. The 5th Circuit ways that increase the likelihood of a desired outcome. loan. Wells Fargo argued that there was no recognized that while Wells Fargo was We can support your litigation efforts to save you time market for loans comparable to the forced correct that no willing lender would have and strengthen your case.” loan contemplated under the cramdown extended credit on the terms it was forced —Kernion T. Schafer, CPA plan; therefore, the market rate should be to accept under the cramdown plan, this calculated by “taking the weighted average “absurd result” is the natural consequence S OUTH S HORE AND N ORTH S HORE O FFICES of the interest rates the market would charge of the prime-plus method, which sacrifices METAIRIE MANDEVILLE for a multi-tiered exit financing package market realities in favor of simple and 701 Aurora Avenue • Suite A 435 Girod Street • Suite B Metairie, Louisiana 70005 Mandeville, LA 70448 comprised of senior debt, mezzanine debt, feasible bankruptcy reorganizations. 504.837.6573 985.626.4066 and equity.” Wells Fargo, 710 F.2d at 334. Forensic Accounting • Emerging Issues • Financial Services The 5th Circuit affirmed the bankruptcy Litigation Services • Legal Services • Emerging Business This calculation yielded a “blended” court’s use of Till’s “prime-plus” formula
Louisiana Bar Journal Vol. 61, No. 3 211 effectively prevent confirmation unless the favorable terms than in Chapter 13. dissenting, impaired unsecured creditors While a Chapter 13 debtor’s post-petition were crammed down. The bankruptcy disposable income would be subject to court held the absolute priority rule applied, creditors’ claims, a Chapter 11 debtor Criminal denied confirmation and certified the issue would only have to satisfy the absolute Law for immediate appeal. priority rule with assets that were “property The 5th Circuit, reviewing the issue de of the estate” as of the filing date. novo, began by analyzing the text of section Congress remedied this inequity by 1129(b)(2)(B)(ii). Lively asserted that the including section 541 within section 2013 Louisiana provision carves out an exception through 1115, effectively adding the debtor’s post- which an individual debtor is entitled to petition property and earnings to Chapter Legislature retain property “included in” the debtors’ 11. Congress was then required to modify Act 239 of 2013 (effective Aug. 1, estate under 11 U.S.C. §§ 1115(a) and 541. the absolute priority rule so that debtors 2013) enacts Louisiana Code of Criminal Taking the more “narrow” approach to would not be saddled with committing all Procedure article 878.1 to provide for a interpretation, the 5th Circuit agreed with post-petition property to satisfy creditor’s sentencing hearing to determine parole the bankruptcy court that the exception to claims. The 5th Circuit determined that the eligibility for juvenile homicide offenders the absolute priority rule plainly covers most natural reading of these amendments who will be sentenced to life, and amends “only the individual debtor’s post-petition renders no Bankruptcy Code provision Louisiana Revised Statutes 15:574.4 to earnings and post-petition acquired superfluous, thereby supporting the narrow establish conditions for parole eligibility property.” The 5th Circuit further opined approach that individuals are subject to for those juveniles determined by the that “even if the statutory language is the absolute priority rule. Therefore, the judge at the article 878.1 hearing to ambiguous, the ‘narrow view’ must prevail, 5th Circuit affirmed the judgment of the be entitled to parole eligibility. (These because the opposite interpretation leads bankruptcy court, holding that the Chapter procedures are in response to Miller v. to a repeal by implication of the absolute 11 absolute priority rule, 11 U.S.C. § Alabama, 132 S.Ct. 2455 (2012), which priority rule for individual debtors.” 1129(b)(2)(B), does apply to individual the Louisiana Supreme Court applied Reasoning that repeals by implication debtor cases. retroactively in State ex rel. Landry v. are disfavored, the court determined that State, 11-0796 (La. 1/18/13), 106 So.3d standard statutory construction mandates —Tristan E. Manthey 106 (per curiam), without discussion of the the narrow approach to interpreting section Chair, LSBA Bankruptcy Law Section retroactivity issue. In State v. Huntley, 13- 1129(b)(2)(B)(ii). and 0127 (La. App. 3 Cir. 7/10/13), 118 So.3d The 5th Circuit went on to review the Alida C. Wientjes 95, 2013 WL 3442136, the Louisiana 3rd legislative history surrounding the absolute Heller, Draper, Patrick & Horn, L.L.C. Circuit held Miller v. Alabama does not priority rule for individual Chapter 11 Ste. 2500, 650 Poydras St. apply retroactively on collateral review.) debtors. Prior to the 2005 amendments, New Orleans, LA 70130 Act 250 substantially amends pretrial an individual Chapter 11 debtor could discovery articles to provide for discovery reorganize in Chapter 11 under more of statements by codefendants and state witnesses, rap sheets of codefendants and witnesses, and law enforcement reports. The amendments establish standards for expert reports, provide for extensive reciprocal discovery, and create a mechanism to protect a Your call is witness’s identity if the witness’s safety may be compromised by disclosure. The absolutely confidential amendments apply prospectively to cases billed or indicted after Jan. 1, 2014, unless as a matter of law. the parties stipulate otherwise. Act 251 (effective Aug. 1, 2014) provides for mandatory dismissal of certain Call toll-free repetitive applications for postconviction relief and requires “diligence” in the (866)354-9334 discovery of postconviction claims. Claims based on the facts-not-known exception to the time limit of Louisiana Email: [email protected] Code of Criminal Procedure article 930.8
212 October / November 2013 must be submitted within two years of the trial.” With consent of the district attorney, Sentencing discovery of the new evidence. a defendant may waive his right to a jury Act 261 (effective Aug. 1, 2013) trial within 45 days of trial. A jury trial State v. Dickerson, 48,308 (La. App. 2 amends Louisiana Code of Criminal waiver may not be withdrawn. Cir. 8/2/13), ____ So.3d ____, 2013 WL Procedure article 334.4 to create a 3969612. rebuttable presumption that any defendant Involuntary DNA La. R.S. 15:308(C) provided the who has previously been released on his statutory authority for certain inmates own recognizance or on the signature of Evidence to seek modification of their sentences any other person on a felony charge, and by application to the Louisiana Risk Maryland v. King, 133 S.Ct. 1958 (2013). who has either been arrested for a new Review Panel, which had the authority The Fourth Amendment does not felony offense or has at any time failed to to recommend clemency. The repeal of prohibit the collection and analysis of appear in court on a felony offense after Subsection (C) does not entitle inmates to DNA samples from persons arrested, having been notified in open court, shall seek resentencing under the more lenient but not yet convicted, on felony charges. not be released on his own recognizance or penalty provisions. The reduction of a final During a routine booking procedure, on the signature of any other person. The sentence is the equivalent of commutation, the police took the defendant’s DNA presumption may be overcome if the judge which is a power reserved to the executive sample by using a buccal swab, and the determines, after contradictory hearing in branch of state government. open court, that a review of the relevant DNA matched to a rape from six years earlier. “When officers make an arrest factors warrants this type of release. —Janis L. Kile supported by probable cause to hold for Act 343 (effective June 17, 2013) Member, LSBA Criminal Law Section a serious offense and bring the suspect amends Louisiana Code of Criminal and to the station to be detained in custody, Procedure article 780 regarding exercise Steffan M. Jambon taking and analyzing a cheek swab of of the right to waive trial by jury. The Louisiana 1st Circuit Court of Appeal the arrestee’s DNA is, like fingerprinting jury trial waiver must be in the form of a Central Staff and photographing, a legitimate police written motion (signed by defendant and P.O. Box 4408 booking procedure that is reasonable counsel) filed “not later than forty-five Baton Rouge, LA 70821 days prior to the date the case is set for under the Fourth Amendment.”
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Louisiana Bar Journal Vol. 61, No. 3 213 that allocates water among Louisiana, La. 7/1/13), 2013 WL 3305658. Arkansas, Texas and Oklahoma, as During a March 2012 inspection of a preempting state laws pertaining to the floating oil and gas production platform Environmental appropriation or diversion of Oklahoma moored to the floor of the Gulf of Mexico Law water outside the state. The district 45 miles off the coast of Louisiana, contended that the compact gave it a right government officials discovered a to the Oklahoma water in a provision that concealed metal tube connected to a says as long as enough water is flowing dispersant tank. The tank added chemical Supreme Court: through to Arkansas, each state has “equal dispersant to oil discharges in an outfall rights” to the resource as long as none pipe after the point where compliance Texas Has No Right to takes more than 25 percent of the water in testing was performed in an attempt to mask Neighboring State’s Water excess of the base line. Oklahoma disputed surface sheen that would have resulted that the provision intended to “allocate” from the excess oil discharges into the Tarrant Regional Water Dist. v. Herrmann, water inside the state of Oklahoma for ocean. In a suit filed in the Eastern District, 133 S.Ct. 2120 (2013). appropriation or diversion to another the Department of Justice (DOJ) alleged In 2007, the regional water district in signatory state. that the company had been conducting this Tarrant County, Texas, sought a permit The battle over water made its way to unlawful discharge and dispersant activity from neighboring Oklahoma’s Water the Supreme Court, and, in a unanimous since at least October 2010, continuing Resources Board to allow the Texas water decision, the Court rejected the district’s until the March 2012 inspection, resulting district to divert water from the Kiamichi claims, specifically determining that the in Clean Water Act (CWA) violations for River in Oklahoma upstream from where Red River Compact between the four the oil discharge, the dispersant discharge it flows into the Red River for the intended states in the Red River Basin did not create and violation of the facility’s water- purpose of meeting the annual water supply cross-border rights of the sort sought by the discharge permit, a potential penalty that needs of a portion of its North Central Texas district. Therefore, the state laws governing could approach $55 million. In response, water district customers. The district was appropriation and diversion of Oklahoma ATP filed a motion to dismiss the claims aware that Oklahoma law would likely water were not preempted. for which the government sought fines, foreclose the issuance of the permit sought. penalties and injunctive relief. In denying Thus, concurrent with the submittal of its CWA Suit May Proceed ATP’s motion to dismiss, U.S. District permit application, the district filed suit in Judge Nannette J. Brown found, based federal court seeking to enjoin the state of Against Offshore Oil on the DOJ’s claims, that ATP did not fall Oklahoma from enforcing state statutes & Gas Production into any of the exceptions in the CWA governing the taking or diverting of water that would have exempted it from those from within Oklahoma’s borders by an Platform claims. Judge Brown further stated that out-of-state applicant. the U.S. Supreme Court has recognized The district cited the Red River United States of America v. ATP Oil & that district courts have broad authority to Compact, a 1980 interstate water compact Gas Corp., ____ F.Supp.2d ____ (E.D. grant injunctive relief such as that sought Mediation Arbitration Celebrating LEARN FROM THE mapsProfessional Systems, Inc. 25 EXPERTS ... the leader in resolution Years Free Breakfast CLEs ETHICS & PROFESSIONALISM
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214 October / November 2013 by the DOJ to enjoin any further use of effect such a conclusion would the dispersant tube scheme, when public have on encouraging cooperation interests are involved. between parents with joint custody. Family Keri should not be penalized for President Signs Executive Law attempting to foster an amicable relationship with her ex-spouse Order on Improving and to allow her son extra time Chemical Facility Safety with his father. and Security Custody/Relocation Community Property Moore v. Moore, 47,947 (La. App. 2 Cir. In the wake of chemical facility 3/6/13), 111 So.3d 1120. explosions in Texas and Louisiana, on Aug. Blanchard v. Blanchard, 12-0106 (La. The court of appeal found that the trial 1, 2013, President Barack Obama signed App. 1 Cir. 12/31/12), 112 So.3d 243, court did not err in naming the mother as an Executive Order aimed at improving the writ denied, 13-0488 (La. 4/12/13), 111 the domiciliary parent and allowing her to safety and security of chemical facilities So.3d 1013. relocate to Houston with the parties’ three and reducing the risks of hazardous Mr. and Ms. Blanchard as part of their minor children. After reviewing both La. chemicals to workers and communities. community property settlement agreed R.S. 9:355.12 and La. Civ.C. art. 134, the The order will result in the creation of the that Ms. Blanchard would be entitled to court found that the children would have Chemical Facility Safety and Security one-third of a pending personal injury a more stable living environment with Working Group to improve coordination settlement on behalf of Mr. Blanchard their mother and her parents in Texas and and sharing of information between the and that he would pay her spousal support that it was more likely that she would federal, state and local agencies that until he settled the claim, after which she facilitate the children’s relationship with regulate and inspect chemical facilities. waived any rights to support. After he the other parent, in addition to her being The working group also will be charged settled the suit and his attorneys calculated the children’s primary caretaker. It also with developing regular reports outlining and paid to her what they claimed to be found that Mr. Moore’s testimony was recommendations for improving chemical her share, she sued him and the attorneys, not credible and he had deficiencies in his plant safety in the United States. objecting to the calculation. The court parenting skills. Furthermore, his access Amid public criticism that often unclear found that she had a cause of action against to the children should be supervised due and overlapping regulatory oversight and the attorneys but that she was bound to the to past issues of “pushing and shoving” responsibility effectively create an obstacle terms of a letter that her attorney sent to the and the potential for violence between to ensuring the necessary government personal injury attorneys even though she the spouses. Notably, the court of appeal agencies have the information needed claimed he did not sign it on her behalf. stated that visitation has an independent to properly assess safety and security at The court further held that although the basis from custody and that Bergeron chemical facilities and are a contributor Family Court for East Baton Rouge Parish is not applicable to a motion to modify to chemical facility accidents, the order had subject matter jurisdiction over the visitation. requires the Occupational Safety and claims between the Blanchards, it did not Health Administration, the Environmental have subject matter jurisdiction over the Protection Agency and the Department Custody matters relating directly to the calculation of Homeland Security to lead an effort of the personal injury suit proceeds to better coordinate and work together to Cormier v. Cormier, 12-1340 (La. App. 3 because that claim was not “between improve safety and security with a specific Cir. 4/24/13), 112 So.3d 1073, writ denied, former spouses;” it also involved the timeline of expectations. 13-1561 (La. 7/19/13), ____ So.3d ____, personal injury attorneys. It thus ordered 2013 WL 4045955. that that portion of the suit be transferred —Michelle Marney White The trial court rejected Mr. Cormier’s to the 19th Judicial District Court. Council Member, LSBA Environmental attempt to modify the custody schedule, Law Section finding that he failed to a show a change of Martin v. Martin, 12-0549 (La. App. 5 Taylor, Porter, Brooks & Phillips, L.L.P. circumstances. Particularly, her allowing Cir. 3/13/13), 113 So.3d 323, 13-0783 451 Florida St. him additional visitation did not establish (La. 5/24/13), ____ So.3d ____. Baton Rouge, LA 70801 a material change of circumstances or a Following a conference with the “voluntary modification” on her part. The domestic commissioner at which both court stated: parties were represented, a community property settlement agreement was typed We strongly disagree with and signed by the parties, their attorneys this contention and shudder to and the domestic commissioner. Mr. think of the potential chilling Martin’s attorney subsequently submitted
Louisiana Bar Journal Vol. 61, No. 3 215 to the court a judgment containing the the assets was fair, and the compromise not extinguish one’s interest in property,” terms of the settlement pursuant to La. was binding. the trial court’s judgment was vacated District Court Rule 9.5, which the trial and the matter was remanded for a new judge signed. Ms. Martin, who had Armand v. Armand, 12-1394 (La. App. trial in accordance with La. R.S. 9:2801. previously filed an unsigned objection to 3 Cir. 4/3/13), 113 So.3d 1168. the hearing officer’s recommendations, In this community property partition, Valuation now filed a motion to vacate the judgment. the trial court ruled that Mr. Armand’s After a hearing, the trial court ruled post-termination bankruptcy resulted Fancher v. Prudhome, 47,575 (La. App. that the original agreement was a valid in a community with no value, such 2 Cir. 2/27/13), 112 So.3d 909. compromise and that the judgment that, although Ms. Armand had a “legal A withdrawing member’s interest in submitted was in proper form. The court of claim” to a portion of the community, a closely held LLC was valued at book appeal held that the trial court did not err in and although Mr. Armand had made a value. The market approach was rejected denying her motion for a new trial without reimbursement claim of his own regarding because the entity was a small, closely held a hearing as the court found that it had debts he paid in the bankruptcy, neither LLC, and its profits were “tied to the skill already heard all of her arguments. The was to receive anything in the partition. of its members, so that plaintiff’s interest trial court also did not err in allegedly not The court of appeal found that because was indistinguishable from himself.” The providing her a hearing on her objection the bankruptcy records were not in the income/discounted cash flow method was because it considered her objections record, although the transcripts indicated rejected because the company’s future at the hearing on her motion to vacate. that the parties were to make them part cash flow was indeterminable because Finally, although she testified that she of the record, it could not consider the the withdrawing member provided was coerced into signing the agreement matter. Moreover, as the trial court did not almost all of the company’s business. The and did not understand or agree to it, the actually partition the assets and address adjusted book value/fair market value evidence showed that she did understand the reimbursement claims because “a approach was rejected because plaintiff and agree to it. Moreover, the division of bankruptcy only discharges debt and does failed to provide satisfactory evidence
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216 October / November 2013 of the entity’s inventory and accounts states that the invoices are attached.” receivable. He also failed to show the This bill became effective Aug. 1, 2013. amount of cash the company actually Fidelity, held as of the date of his withdrawal. Surety and Senate Bill 183 No discounts were applied. Plaintiff’s Construction An additional step has always been one-third interest was valued at one-third Law required for lessors of “movables,” which of the unadjusted book value. The other would include heavy equipment such as two members were not personally liable cranes and other typically rented equipment to him because their actions in making Work of the 2013 such as scaffolding, to preserve their ability a loan on behalf of the entity, and in to assert lien rights on a private project in issuing distributions to themselves after Louisiana Legislature Louisiana. Historically, that step consisted suit was filed, were not grossly negligent of delivering a copy of the full lease to the In its 2013 Regular Session, the or committed with reckless disregard or owner of the project, and, if the items are Louisiana Legislature passed several bills indifference to the best interest of the leased to a subcontractor, then a copy of of interest to the construction industry in entity. the lease was required to be delivered to Louisiana. Some of the more important the general contractor as well, not more changes in the law are discussed below. Final Spousal Support than 10 days after the leased items are first placed at the site of the work. The House Bill 190 change in the law now eliminates the Olsen v. Olsen, 12-0737 (La. App. 5 Cir. La. R.S. 9:4822(G), governing the requirement for delivery of a copy of the 3/13/13), 113 So.3d 274. requirements for written liens on private lease and provides instead that “notice” In a consent judgment, Mr. Olsen construction projects, was amended in an (obviously, written notice) to the required agreed to pay Ms. Olsen periodic spousal apparent effort to clarify the “reasonable parties is to be provided. The “notice” support of $700 per month. Five years itemization” requirement set forth in the must contain the following information: later, he filed a motion to extinguish that statute. Per subpart (G)(4) of the statute, the address of the lessor, the address of the obligation on the grounds that she was lien claimants have historically been lessee, “a description sufficient to identify cohabitating with a man in the manner of required to “reasonably itemize the the movable property placed at the site of married persons. She filed an exception elements” comprising the lien claim, the immovable for use in the work,” the of res judicata, arguing that the consent “including the person for whom or to “term of rental” (presumably, this means judgment had become final. The trial whom the contract was performed, material court correctly denied her exception of supplied, or services rendered.” Various res judicata, finding that their original courts have dealt with this “reasonable agreement did not state that all alimony itemization” requirement, including the KKayay E. DDonnellyonnelly issues were compromised, and did not Louisiana 4th Circuit Court of Appeal in & AssociateAssociatess waive his right to seek to terminate the the case of Jefferson Door Co. v. Cragmar support pursuant to La. Civ.C. art. 115. Construction, L.L.C., 11-1122 (La. App. 4 CeCertifiedrtified CourtCourt ReportersReporters Further, the trial court’s finding that she Cir. 1/25/12), 81 So.3d 1001, writ denied, FFullull SServiceervice was cohabitating was affirmed, as the trial 12-0454 (La. 4/13/12), 85 So.3d 1250. In CouCourtrt RReportingeporting FirmFirm court found that “this is more than two (2) Jefferson Door, the court declared invalid CompleteComplete Litigation Support Support friends living together with ‘benefits.’” a lien that purported to itemize its elements 2424 HOUR HOUR SERVICE SERVICE by specific reference to the invoices of the —David M. Prados claimant — when, in fact, those invoices VVideoideo D Depositionsepositions Member, LSBA Family Law Section never got attached to and recorded with VideoVideo Confe Conferencingrencing Lowe, Stein, Hoffman, Allweiss the lien. RRealeal T Timeime T Transcriptionranscription & Hauver, L.L.P. Ordinarily, when crafting legislation in CompleteComplete Computeri Computerizedzed ServicesServices Ste. 3600, 701 Poydras St. response to court decisions, legislatures ConfeConferencerence RRoomoom New Orleans, LA 70139-7735 strive to draft changes to the law to address a perceived problem created by KKnowledgeablenowledgeable the jurisprudence. Here, however, the Efficient Louisiana Legislature simply undertook Efficient to codify the ruling in Jefferson Door, Deedicateddicated amending subpart (G)(4) of the statute to declare that the requirement to “reasonably SuiteSuite 2025 2025 Energy Energy CentreCentre Phone: 504.229.8220504.299.8220 itemize” does not require a claimant to 11001100 Poydras Poydras Street Street TollFree:Toll Free: 866.301.8220 attach copies of its invoices, “unless the NewNew Orleans, Orleans, LA 7016370163 Fax:Fax: 504.504.299.8219229.8219 statement of claim or privilege specifically email:email: [email protected]@bellsouth.net
Louisiana Bar Journal Vol. 61, No. 3 217 the duration of the rental), the “terms of (a) Generally. — Except as otherwise payment,” and the signatures of both the expressly provided by Act of Congress, lessor and lessee. Insurance, Tort, any civil action brought in a State In view of the new requirement — and Workers’ court of which the district courts the fact that the change in the law potentially Compensation & of the United States have original disallows use of the actual lease document Admiralty Law jurisdiction may be removed by the to serve as the statutorily required notice, defendant or the defendants to the even though the lease document likely district court of the United States for contains all of the information required in Jurisdiction the district and division embracing the the notice — lessors of movables for use on Ryan v. Hercules Offshore, Inc., ____ place where such action is pending. private construction projects in Louisiana F.Supp.2d ____, 2013 WL 1967315 (b) Removal based on diversity of should have notice forms pre-drafted and (S.D.Tex. May 13, 2013). require those forms to be executed by lessees citizenship. — (1) In determining The estate of a crewman, who died whether a civil action is removable in connection with execution of a lease, in while constructing an offshore oil well, order to avoid running afoul of the 10-day on the basis of the jurisdiction un- brought admiralty, Death on the High Seas der section 1332(a) of this title, the notice deadline set forth in the statute. Act (DOHSA) and Sieracki claims against (We note that a similar provision in the citizenship of defendants sued under an offshore drilling firm, among other de- fictitious names shall be disregarded. Louisiana Public Works Act — La. R.S. fendants. The action was originally brought 38:2242(C)(1) — was not amended and in state court and subsequently removed (2) A civil action otherwise removable still requires for public projects that lessors to federal court. The plaintiffs moved for solely on the basis of the jurisdiction provide a full copy of the lease in order to remand on the basis that their claims were under section 1332(a) of this title may preserve their rights against the statutory general maritime claims that were histori- not be removed if any of the parties in payment bond.) cally barred from removal pursuant to 28 interest properly joined and served as This bill became effective Aug. 1, 2013. U.S.C. § 1441. The court denied plaintiffs’ defendant is a citizen of the State in motion to remand, holding that recent which such action is brought. Other Legislative Notes amendments to 28 U.S.C. § 1441 permitted ► Draft legislation seeking to further (Emphasis added.) removal of the plaintiffs’ maritime claims. amend the Louisiana Private Works Act (proposing to double the standard The previous version of 28 U.S.C. § 1441 The Ryan court found that when Con- periods of time for the filing of liens, and provided, in pertinent part: gress amended section 1441, it retained the language in section 1441(a) that permitted concerning the matter of the currently- (a) Except as otherwise expressly required escrowing of private project a party to remove a case in which a federal provided by Act of Congress, any retainage pursuant to La. R.S. 9:4815) did district court has original jurisdiction un- civil action brought in a State court of not make it out of committee. less prohibited by an “Act of Congress.” which the district courts of the United ► Readers are reminded that, based However, Congress deleted the text in sec- States have original jurisdiction may upon legislation enacted in 2012, the tion 1441(b) upon which courts in the 5th be removed by the defendant or the Louisiana Private Works Act (at La. R.S. Circuit had previously relied as being an 9:4823) — effective as of Aug. 1, 2013 defendants, to the district court of “Act of Congress” that precluded removal — has been amended to provide a shorter the United States for the district and of admiralty cases that did not meet the other time period for filing suit to enforce a lien division embracing the place where requirements of section 1441(b). Specifi- on a private project. As of the Aug. 1, such action is pending . . . . 2013, effective date, lien claimants must cally, the court referenced the long line of file suit to enforce their Private Works Act (b) Any civil action of which the dis- jurisprudence holding that admiralty cases liens within one year following the date on trict courts have original jurisdiction do not arise under “the Constitution, treaties which the lien was filed (as opposed to the founded on a claim or right under or laws of the United States” for the purposes soon-to-be superseded law, which provides the Constitution, treaties or laws of of federal question jurisdiction and are thus that suits to enforce liens must be filed no the United States shall be removable not removable pursuant to section 1441(b). later than one year from the expiration of without regard to the citizenship or When interpreting the 2011 amendment, the relevant deadline for filing liens). residence of the parties. Any other the court opined that the current version such action shall be removable only if of section 1441(b) is no longer an “Act —Daniel Lund III none of the parties in interest properly of Congress” prohibiting federal district Member, LSBA Fidelity, Surety and joined and served as defendants is courts from exercising original jurisdiction Construction Law Section a citizen of the State in which such in admiralty cases involving nondiverse Shields Mott Lund L.L.P. action is brought. parties. Thus, because the court had original Ste. 2600, 650 Poydras St. jurisdiction over plaintiffs’ admiralty claims New Orleans, LA 70130 (Emphasis added.) The statute was pursuant to 28 U.S.C. § 1333(1) (district amended in 2011. The current version courts “have original jurisdiction, exclusive provides: of the courts of the States, of . . . [a]ny civil
218 October / November 2013 action of admiralty or maritime jurisdic- the owner of the platform, Energy XXI decision in Ryan v. Hercules Offshore, Inc., tion, saving to suitors in all cases all other GOM, L.L.C. (Energy), and the operator ____ F.Supp.2d ____, 2013 WL 1967315 remedies to which they are entitled”) and of the platform, Island Operating Company, (S.D.Tex. May 13, 2013), the court found that original jurisdiction with regard to plaintiffs’ Inc. (Island). The defendants subsequently plaintiff’s claims were removable whether DOHSA and Sieracki claims, which were removed the matter, asserting that pursu- viewed under the OCSLA or viewed as found to sound in admiralty, the court held ant to recent amendments to 28 U.S.C. § general maritime claims. Although the court that removal was proper pursuant to section 1441, general maritime claims are remov- ultimately found that the claims against 1441(a). It additionally noted the “saving able. Specifically, Energy and Island first Energy and Island were federal question to suitors” clause in section 1333(1) does argued that there was original jurisdiction claims arising under the OCSLA, making not preclude federal courts from exercising under the Outer Continental Shelf Lands them removable, the court went on to opine jurisdiction over admiralty claims originally Act (OCSLA) that allowed the entire case that even assuming general maritime law brought in state court. to be removed, while requiring severance applied, pursuant to the rationale set forth and remand of the nonremovable Jones Act in Ryan, the action would nonetheless be Jurisdiction claim to state court. The two defendants also removable based on the recent amendments argued that even if the claims against them to 28 U.S.C. § 1441. Accordingly, the court Wells v. Abe’s Boat Rentals Inc., 2013 were in fact general maritime claims, they denied plaintiff’s motion to remand as to WL 3110322 (S.D.Tex. June 18, 2013) were removable under the amended version Energy and Island and severed and remanded (unpublished). of 28 U.S.C. § 1441. plaintiff’s Jones Act claim. This case arises from an injury that As to the nonremovable Jones Act claim occurred while the plaintiff was working asserted against the plaintiff’s employer, —Tyler D. Trew for Abe’s Boat Rentals on a vessel off the the court noted that pursuant to 28 U.S.C. Member, LSBA Insurance, Tort, Louisiana shore. Particularly, the plaintiff § 1441(c), the claim could be severed and Workers’ Compensation and was injured while participating in a transfer remanded to state court, assuming that the Admiralty Law Section of cargo from the vessel to a fixed platform claims against Energy and Island were Gieger, Laborde & Laperouse, L.L.C. via a crane on the platform. Plaintiff brought removable. Addressing the claims against One Shell Square suit in state court asserting a Jones Act Energy and Island, relying almost exclu- 701 Poydras St., 48th Flr. claim against his employer and negligence sively on the reasoning set forth in the court’s New Orleans, LA 70139 claims under general maritime law against
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Louisiana Bar Journal Vol. 61, No. 3 219 in the United States; U.S. consumers; and and organized 24 working groups to negoti- U.S. foreign relations. The USTR’s Aug. ate the comprehensive and ambitious agenda International 3 letter overturning the ITC decision cites intended to, in part, spark growth in Europe Law unspecified concerns regarding competitive and consolidate the U.S. economic recovery. conditions in the U.S. economy and the Among the specific areas discussed effect of the ban on U.S. consumers. The were disciplines on investment, government Samsung patent was a Standard-Essential procurement, cross-border services, textiles, Patent subject to fair-reasonable and non- rules of origin, energy and raw materials, and Office of the U.S. Trade discriminatory commitments. The owner legal issues. Sanitary and phytosanitary (sps) of such a patent is generally obligated to measures were also taken up, but neither side Representative allow reasonable access to the technology provided any details on how sps measures so as not to engage in “patent hold-up” would fall within the broader agricultural Certain Electronic Devices, Including that may be against the best interests of negotiations. The next round of negotiations Wireless Communication Devices, Portable consumers or the economy. The President is scheduled for Brussels in mid-October. Music and Data Processing Devices and was apparently convinced that Samsung Tablet Computers, Inv. No. 337-TA-794. was engaging in “patent hold-up” in order to On Aug. 3, 2013, the Office of the U.S. Latin America obtain an elevated price for patents that Apple Trade Representative (USTR) executed a needed for certain wireless devices. Some rarely used statutory prerogative to unilater- Declaration of the First Ministerial Meet- commentators believe Samsung filed the ally overturn a decision of the International ing of the Latin American States Affected case simply as retribution for a prior Apple Trade Commission (ITC). The ITC ruled on by Transnational Interests, Guayaquil, patent victory at the ITC. Regardless of the June 4, 2013, that Apple violated Section 337 Ecuador (April 22, 2013). motive, this is the first time since 1987 that of the U.S. Tariff Act by importing certain Latin American nations have been sub- the President has overturned an ITC decision. smartphones and tablet computers that in- ject to increasing numbers of investor-state fringed a patent owned by Samsung. The ITC disputes brought under Bilateral Investment ordered the exclusion from importation of all TransAtlantic Trade and Treaties or Free Trade Agreements. As subject Apple devices and issued a cease and Investment Partnership previously reported in this column, Ecuador desist on domestic sales of devices already in and Argentina have received large judg- the market. The ban applied to iPhone 4 and Agreement ments against them for expropriation and iPad 2 devices using a particular technology other claims cognizable under international patented by Samsung. Negotiations have begun on what would treaty law. In an effort to thwart the rising Section 337 of the U.S. Tariff Act grants be the largest bilateral free-trade zone in tide of adverse judgments, ministers from the President, acting through the USTR, the the world. Washington, D.C., was the site 12 Latin American countries gathered in ability to overturn ITC decisions that are of the first round of negotiations in the so- Ecuador to establish a new coalition to ad- contrary to the best interests of the United called TransAtlantic Trade and Investment dress the increasing number of investor-state States with respect to: public health and Partnership (TTIP). Approximately 160 disputes. Seven of the countries adopted a welfare; competitive conditions in the U.S. negotiators, regulators, attorneys and other declaration agreeing to form a conference economy; production of competitive articles personnel identified 15 market-access areas of states impacted by transnational interests. While the declaration does not establish any specific course of action and does not seek Mark your calendar! withdrawal from or reformation of existing Seventh Annual Conclave on Diversity in the Legal Profession treaties, it does create an international obser- Inclusive Professionalism: vatory to monitor and analyze investment Harnessing the Power of Our Differences cases and report on potential problems. The declaration likewise calls for the establish- March 21, 2014 ment of a regional arbitration center for Hilton New Orleans Riverside settling investment disputes. This move is 2 Poydras St., New Orleans, LA likely to counter the recent awards given by the International Center for Settlement of For up-to-date information, Investment Disputes in Washington, D.C. visit www.lsba.org/Diversity Seeking sponsors! Commit by Dec. 15, 2013 to —Edward T. Hayes appear in Conclave mailer. For more infor- Member, LSBA International Law Section mation on sponsorship levels, contact LSBA Leake & Andersson, L.L.P. Program Coordinator/Marketing and Sections Ste. 1700, 1100 Poydras St. Christine A. Richard, (504)619-0105, e-mail New Orleans, LA 70163 [email protected].
220 October / November 2013 sent a letter to one of the lessees, notifying are “incorporeal immovables” and (2) it of the plaintiffs’ ownership interest in the agreements transferring rights relating to leased land. Within 30 days of receiving immovables generally must be in writing. Mineral the letter, the lessees sent payment to the Therefore, the parties could not have created Law plaintiffs for the full amount owed, plus a voluntary unit through their conduct. interest. The plaintiffs refused to accept The court discussed the fact that a well payment and filed suit, seeking a judgment had been drilled from a surface location on that the lease had terminated by operation the northern tract prior to the servitude on Whether Royalties Are of the resolutory condition contained in the that tract having prescribed, but the well 1921 amendment. The trial court entered was a directional well and the bottom-hole Owed on Hedging Profits judgment for the plaintiffs. location was not beneath the northern tract. The 2nd Circuit reversed, holding that The 1st Circuit held that the bottom-hole Cimarex Energy Co. v. Chastant, ____ the 1935 amendment had eliminated the location from which oil and gas would be F.Appx. ____, (5 Cir. 2013), 2013 WL resolutory condition. Under the Mineral produced, not the surface well site, is the 3964121 (unpublished). Code articles governing royalty claims, critical location for determining whether The United States 5th Circuit affirmed a lease termination was improper because the drilling interrupts prescription. Therefore, decision of the United States District Court lessee had paid the full amount due within the drilling had not interrupted prescription for the Western District of Louisiana, previ- 30 days of receiving notice of nonpayment. and the servitude was prescribed. Thus, the ously reported in the Louisiana Bar Journal’s Triches were entitled to the royalties. April/May 2013 Recent Developments/ Mineral Law Section (Vol. 60, No. 6), that Formation of Voluntary a mineral lessee’s hedging activities (trading Units Solution Mining in oil futures) is a purely financial activity Legislation and that the lessee does not owe royalties Midnight Drilling, L.L.C. v. Triche, 12- on any profits earned from such activity. 1043 (La. App. 1 Cir. 6/19/13), ____ So.3d Acts 2013, No. 368 amends La. R.S. 30:3 ____, 2013 WL 3149456. to add definitions of “solution mined cav- Lease Interpretation Midnight Drilling completed a well from ern” and “solution mining injection well,” which it began to produce oil and gas in 2009. and also amends La. R.S. 30:4 to direct the Ross v. Enervest Operating, L.L.C., 48,299 After two rival groups each claimed to be Office of Conservation to promulgate rules (La. App. 2 Cir. 6/26/13), ____ So.3d ____, entitled to the royalties from such production, to regulate solution mining. 2013 WL 3197465. Midnight filed a concursus action. Acts 2013, No. 369 enacts La. R.S. The plaintiffs owned an interest in land One group, the “Triches,” owned two 30:23.1 to require that the owner or operator in Morehouse Parish. They sued, seeking a noncontiguous tracts of land, one located of a solution-mined cavern must record the judgment that a 1916 mineral lease granted to the north of the Intercoastal Waterway survey plat of the well location for the solu- by their ancestors in title had terminated. and the other located to the south. The other tion mining injection well in the mortgage The lease had been amended in 1921 and group, the “Coles,” had inherited mineral and conveyance records of the parish in 1935. The 1921 amendment stated that the servitudes covering each tract. Midnight’s which the cavern is located. Acts 369 also lease would terminate automatically if the new well was located on the northern tract. amends La. R.S. 9:3198 to require sellers of lessee did not make an annual payment of The question of which group had the right to residential property to disclose “whether or $3,000 to the lessor by Jan. 10 of each year. the disputed royalties depended on whether not a cavity created [by solution mining] lies The 1935 amendment required the lessee the servitude covering the northern tract had underneath the property” and whether the to pay royalties on natural gas at a specified prescribed. property is within one-half mile of a solution rate, but also provided that the minimum There had been no activity on the tract mining injection well. amount due each year would be $3,000. itself or in any compulsory unit that would The $3,000 minimum payment would be have interrupted prescription. Further, the —Keith B. Hall due by Jan. 10, and any additional amount parties had not created any voluntary unit Member, LSBA Mineral Law Section owed for the year would be due in February — at least not by written agreement. The Louisiana State University of the following year. The 1935 amendment Coles claimed, however, that the parties had Paul M. Hebert Law Center did not state that the lease would terminate treated an earlier well as if it “was produced 1 E. Campus Dr. if any payment was not made timely. on a unit basis” and that they had created a Baton Rouge, LA 70803 After ownership of the land changed, voluntary unit that included the northern and the lessees lost track of the identity of the tract through their conduct. They claimed Colleen C. Jarrott owners. The lessees mailed checks in order that production from that voluntary unit had Member, LSBA Mineral Law Section to make the minimum annual payment, interrupted prescription. Slattery, Marino & Roberts, A.P.L.C. but some checks were sent to the wrong The Louisiana 1st Circuit rejected that Ste. 1800, 1100 Poydras St. persons. In 2009, the plaintiffs’ attorney argument, noting that (1) mineral servitudes New Orleans, LA 70163
Louisiana Bar Journal Vol. 61, No. 3 221 that requires a de novo standard of review, claimant’s failure to specify in what way requiring courts to determine the legislative it failed to provide proper care was also a intent of the statute and apply it as written, deficiency. The appellate court citedPerritt Professional if it is unambiguous and its application does v. Dona, 02-2601 (La. 7/2/03), 849 So.2d 56, Liability not lead to absurd consequences. a case that predated the 2003 amendments to The court observed that the Louisiana section 47. The Supreme Court in Perritt said Medical Malpractice Act (MMA) provides panel requests were not formal petitions and for a limitation on liability and other had no required format. Furthermore, a claim Panel Request advantages to health-care providers that are need only present sufficient information in derogation of the rights of tort victims, for the panel to make a determination as Requirements which requires that the MMA be strictly to whether the defendant is entitled to the construed. One of the advantages is pre-suit protection of the MMA. Ward v. Vivian Healthcare & Rehab. panel review. The Watson court ruled that the “brief Ctr., 47,649 (La. App. 2 Cir. 5/15/13), 116 The Watson court found section 47(A) description” of the alleged malpractice So.3d 870. (1)(b) unambiguous as to what information amendment comports with the pre- The plaintiff mailed a letter on July 2, must be provided in a panel request. The amendment law of Perritt insofar as the 2010, requesting the formation of a medical- statute is silent, however, as to the penalty for claimant need only present information for review panel. The request listed the “Date of failure to comply with all the informational the panel to determine whether the defendant Occurrence” as July 8, 2009, and described requirements, whereas the penalty for is entitled to the protection of the MMA, the alleged negligence and injury as failing to failure to timely pay the filing fee is specific following which the panel renders an opinion “provide proper care for Mr. Mancil Watson and renders “the request for review of a based not on the initial panel request but which caused his death.” malpractice claim invalid and without on the submission of written evidence to The PCF returned the letter, advised the effect.” La. R.S.40:1299.47(A)(1)(e). the review panel, as provided by La. R.S. plaintiff it was inadequate because it failed to The defendant acknowledged the 40:1299.47(D). The court found that the provide the date of death or a brief description statute does not expressly provide that allegation that the defendant did not provide of the alleged malpractice, adding that to a panel request lacking in one or more care, which caused Mr. Watson’s death: “maintain” her original filing date, she was of the minimum requirements renders it obliged to return the “corrected panel request “invalid and without effect,” but argued suffices as notice to the defendant that within thirty (30) days of the date of this that no express provision is necessary — a malpractice claim is being asserted letter.” The $100 filing fee was not returned. the statute defines what constitutes a valid based on its failure to provide proper The plaintiff’s follow-up letter of Aug. 19 request; therefore, failure to comply with that care to Mr. Watson. The details of that stated that Mr. Watson died on July 8 while a definition should render it invalid. alleged failure will be made clear upon patient at respondent’s nursing home due to When section 47 was amended in 2003 to the submission of written evidence to a stroke that resulted in his inability to walk; require panel requests to provide additional the medical review panel. the staff allowed bedsores to develop and information and payment of a filing fee as failed to provide proper nutrition, causing prerequisites for a valid complaint, it did The court ruled that the initial request Watson’s death. not include any language of a penalty for was timely filed, appeared to comply with The defendant filed an exception of the failure to comply with the additional- the minimum requirements of the statute, prescription, claiming the panel request information amendment. The Watson and even if the request failed to comply with was untimely because the original filing defendant did not contend it was prejudiced those requirements, the statute contained failed to satisfy the requirements of La. R.S. by the initial request, and the court noted no penalty provision that would render it 40:1299.47(A)(1)(b) and the PCF had no that it was not job of the judiciary to insert invalid and without effect, so as to prevent authority to extend the prescriptive period by penalty provisions into a statute where the its suspending prescription. The trial court’s granting another 30 days for the plaintiff to Legislature had not. judgment was affirmed, precluding the file corrections, adding that the plaintiff filed Having strictly construed the statute, the need for the appellate court to address the 31 days after the PCF’s letter. The plaintiff court could not conclude the July 7 request defendant’s issues concerning the authority answered that the amended request “related “was invalid and without effect and did of the PCF to grant additional time to file a back” to the timely filed request. not suspend prescription on the underlying corrected request. The trial court denied the defendant’s malpractice claim.” Furthermore, the initial exception of prescription, and the 2nd Circuit letter included the date of death, which was —Robert J. David denied the application for supervisory referred to as the “Date of Occurrence.” The Gainsburgh, Benjamin, David, Meunier review. The Supreme Court, however, court noted that a strict construction of the & Warshauer, L.L.C. remanded to the appellate court for “briefing, statute revealed no explicit requirement for Ste. 2800, 1100 Poydras St. argument and a full opinion.” the listing of the date of death but required New Orleans, LA 70163-2800 An exception of prescription involving only the date of the alleged malpractice. an interpretation of a statute is a legal issue The defendant also argued that the
222 October / November 2013 filed exceptions of no cause of action, no jurisdictional arguments — i.e., that the right of action and lack of subject matter Board did not have jurisdiction based upon jurisdiction. The district court sustained La. R.S. 47:1621(F) which addresses the Taxation the Department’s exception of no cause of Secretary’s ability to approve a refund action and as a result held the remaining based on the Secretary’s misinterpretation exceptions moot. The taxpayer appealed of the law or rules and regulations and to the 1st Circuit, which affirmed the trial provides for taxpayer remedies of payment court’s decision. under protest and suit to recover or appeal “Final” State Tax The taxpayer asserted it had the right to the BTA in instances where such appeals Assessments Cannot Be to pay the taxes under protest and file lie — the Board noted that La. R.S. 47:1625 suit for refund at any time pursuant to grants taxpayers the right to appeal to the Paid Under Protest La. R.S. 47:1576. Finding that La. R.S. BTA on the denial of a claim for refund 47:1576 and La. R.S. 47:1561 are clear and gives the BTA jurisdiction to determine Devon Energy Prod. Co. v. Bridges, 12- and unambiguous, and are to be read the correct amount of tax. The Board cited 0809 (La. App. 1 Cir. 6/3/13), ____ So.3d together, the 1st Circuit held that after a tax the Louisiana Supreme Court’s discussion ____, 2013 WL 2423898. assessment becomes final, a taxpayer may in TIN, Inc. v. Washington Parish Sheriff’s The 1st Circuit Court of Appeal no longer use the payment-under-protest Officeand its recent ruling in KCS Holdings affirmed a trial court’s decision granting statutes to challenge the assessment. I, Inc. v. Bridges and held that “the logical the Louisiana Department of Revenue’s construction of R.S. 47:1621(F) allows exception of no cause of action and —Antonio Charles Ferachi taxpayer appeals to the Board under R.S. dismissal of Devon Energy Production Member, LSBA Taxation Section 47:1625.” Co.’s payment-under-protest lawsuit Louisiana Department of Revenue Also, because the taxpayer filed a claim because the state tax assessments at issue 617 North Third St. against the state and did not separately serve had already become final. Baton Rouge, LA 70821 the Attorney General, the Attorney General The Department audited the severance- filed exceptions of nonjoinder of a party, tax activities for a number of production insufficiency of service of the petition, and sites of Devon’s predecessor entity Recent Board of and found a number of deficiencies. Tax Appeals Opinions Accordingly, the Department issued The Tax Section of the separate Notices of Proposed Assessment Several interesting opinions have been Louisiana State Bar Association in accordance with La. R.S. 47:1562(B). issued by the Louisiana Board of Tax The taxpayer had 30 days to protest the Appeals (BTA). assessments in accordance with La. R.S. In General Electric Capital Svcs., Inc. acknowledges and thanks 47:1563. No protest was filed. After the v. Barfield, BTA Docket No. 7337 (La. expiration of the 30-day protest period, the Bd. Tax App. 6/19/13), 2013 WL3465284, Department issued Notices of Assessment the BTA overruled numerous exceptions Rudolph R. Ramelli and Notice of Right to Appeal to the filed by the Department of Revenue and of Jones Walker Louisiana Board of Tax Appeals (Final the Attorney General in response to a for his service as Assessments). The taxpayer then had 60 taxpayer’s petition on denial of a refund days to pay the taxes under protest or appeal claim. The taxpayer filed its petition with Chair of the Section of Taxation to the Louisiana Board of Tax Appeals. The the BTA requesting a refund of taxes of the American Bar Association Final Assessments notified the taxpayer under the provisions of La. R.S. 47:1625 for the 2012-2013 Term that the assessments would become final 60 (appeal of refund denial) and, alternatively, calendar days from the date of the notice. under La. R.S. 47:1481 (claim against The notices also advised that to avoid the the state), claiming it was not subject to and congratulates distraint procedure, it would be necessary Louisiana corporate franchise tax in light to either: (1) pay the assessment in full to of UTELCOM, Inc. & UCOM, Inc. v. the Department, (2) pay the assessment Bridges, 10-654 (La. App. 1 Cir. 9/12/11), Jaye A. Calhoun under protest, or (3) file a formal petition 77 So. 3d 39 (which held that LAC of McGlinchey Stafford with the Board. Still no action was taken 61:I.301 was invalid as it pertained to the on her appointment as by the taxpayer. taxpayer because it exceeded the statute After the expiration of the 60-day it purported to interpret). The Department Chair-Elect of the State and period, Devon paid the assessments filed exceptions of lack of subject matter Local Tax Subcommittee in the total amount of $1,250,134.33 jurisdiction, no cause of action, and no of the American Bar Association under protest and filed suit to challenge right of action, all of which were overruled. the Final Assessments. The Department In rejecting one of the Department’s for the 2013-2014 Term
Louisiana Bar Journal Vol. 61, No. 3 223 prescription. The Board also overruled held that Rule 13 of its Rules of Procedure a final product, applied to the taxpayer’s these exceptions and stated that although and Practice provides for the computation purchases of clay, which was in furtherance it is the Board’s practice to have service of time set forth in La. C.C.P. art. 5059, of its contract with the U.S. Army Corp of on the Attorney General in claims against and, therefore, the date of the notice is not Engineers to build levees, because title of the state, the Attorney General is not an to be counted in determining the due date the clay, a corporeal movable, passed to indispensable party in this nonadversarial of a taxpayer’s petition. the Corp of Engineers upon delivery to the “claim” and is not required by law to Finally, in the case of Odebrecht worksite, which was prior to incorporation participate in the Board’s deliberation of Construction, Inc. v. Secretary, Dep’t of of the clay into the final product. any claim presented. Revenue and State of Louisiana, BTA In another opinion, Dugal v. Dep’t of Docket No. 7404 (La. Bd. Tax App. —Jaye A. Calhoun Revenue, BTA Docket No. 7058 (La. Bd. 6/20/13), the BTA granted a taxpayer’s Member, LSBA Taxation Section Tax App. 4/9/13), 2013 WL2480989, request for a sales tax refund on the basis and the BTA again denied the Department’s that the exclusion from tax under La. Christie B. Rao exception of prescription where the R.S. 47:301(10)(g), pertaining to sales of Member, LSBA Taxation Section Department argued that the date on which corporeal movable property intended for McGlinchey Stafford, P.L.L.C. a notice of assessment is issued should future sale to the United States government 601 Poydras St., 12th Flr. be counted in determining whether a or its agencies when title of such property New Orleans, LA 70130 taxpayer’s petition is timely filed. The BTA is transferred prior to its incorporation into Discovery & Depositions: The Discovery Trek The Next Generation Friday, Dec. 13, 2013 Westin New Orleans Canal Place Hotel • 100 Iberville St.
Thinking “same old stuff”? This is not last year’s seminar on discovery. We’re approaching a new galaxy, the next generation of discovery wars and battle plans. And it’s not just about “e-discovery,” but new discovery wars on all fronts. While some of the same old weapons are still firing and working, benefit from the insights of speakers on an updated list of do’s and don’ts, and discovery plans, deposition preparation, and production wars, as well as the views from the state federal benches.
Registration Fees*, Cancellations and Refunds Advance Registration ...... $320 After December 6 & On-Site...... $345 *Registration fee includes electronic course materials, seminar attendance and coffee/refreshment breaks. Register online at www.lsba.org/cle
224 October / November 2013 LastChance2013_FullPage_Final_Layout 1 8/20/2013 7:47 AM Page 1
LOUISIANA’S MOST POPULAR CLE EVENT
The Ultimate LAST CLE Experience C With 24 dynamic credit courses from CLE ConfeHreAncNeCE which to choose, it’s no wonder that LAJ’s Last Chance CLE Conference is Louisiana’s ultimate CLE experience. December 12-13, You can’t help but be impressed with the highly acclaimed national and Louisiana faculty that’s assembling for this conference. Hyatt Regency 2013 You choose the courses you want and earn 13 CLE credits, including Ethics New Orleans and Professionalism. LOCNAEW TION! For additional information, including pricing and registration details, visit www.lafj.org or call 225-383-5554.
Review of Louisiana Law to include:
Third-Party Observation of Neuropsychologists Voir Dire: The Scariest Day of Trial Discovery Rules Against Government Tom Anderson; Hammond, La. Edwin Dunahoe; Natchitoches, La. S. Christie Smith IV; Leesville, La.
Developing the Theory of the Case: PROFESSIONALISM Quantum Issues in Injury and Death Cases Methodology for Outlining the Trial Dennis Hennen; Monroe, La. Alonzo T. Stanga III; Metairie, La. to Get It and Keep It J. Robert Ates; Destrehan, La. ETHICS Trial Evidence: Getting It In and Keeping It Out Ethical Questions from the BP Oil Spill Litigation Edward J. Walters Jr.; Baton Rouge, La. Joseph M. Bruno Sr.; New Orleans, La. Stephen J. Herman; New Orleans, La. Use of Simulation Versus Animation at Trial Slip & Fall in the City: Suing Municipalities Hugh P. Lambert; New Orleans, La. James M. Williams; Metairie, La. D. Wayne Bush; Leesville, La. AWW Disputes in Workers’ Compensation — Louisiana Medical Malpractice Law Why I Should Have Taken and Procedure that Math Course in College Robert J. David; New Orleans, La. Mark L. Riley; Lafayette, La.
Winning with the Masters Faculty to include:
Recent Developments in Louisiana Tort Law Delivering the Knock-Out Punch — Depositions that Settle the Case and Thomas C. Galligan Jr.; New London, N.H. Making Your Closing Argument Count How to Take Them Jeffrey J. Kroll; Chicago, Ill. Dorothy Clay Sims; Ocala, Fla. Zen Trial Strategies; Winning in the Moment John H. Gomez; San Diego, Calif. Psychodrama in the Courtroom Examination of Expert Witnesses at Trial Joseph H. Low IV; Long Beach, Calif. Gerson H. Smoger, Ph.D. ,J.D.; Building the 21st Century Personal Injury Berkeley, Calif. Law Firm: Restructuring Your Trying a Case in a Small Town Law Practice to Succeed Randi McGinn; Albuquerque, N.M. Steven M. Gursten; Farmington Hills, Mich. Voir Dire Michael A. Kelly; San Francisco, Calif. Dennis P. Mulvihill; Cleveland, Ohio
Wisdom Is Scar Tissue in Disguise Case Story Images: What Should Randall L. Kinnard; Nashville, Tenn. Decision Makers Be Seeing & 442 Europe Street How Can You Get Them to See It? Baton Rouge, Louisiana 70802-6406 Eric Oliver; Canton, Mich. 225-383-5554 Louisiana Bar Journalwww.l a fVol.j.org 61,• inf oNo.@la f3j. org 225 Young Lawyers Chair’s Message... Spotlight
Events are scheduled throughout the CHAIR’S MESSAGE state to enable you to participate in orga- nized service and pro bono efforts. For more information on events, go to: www. Call to Action lsba.org/ATJ/LAMonthofService.aspx. I also invite you to participate in one By Kyle A. Ferachi of the upcoming Young Lawyers Divi- sion Wills for Heroes programs. We have Louisiana State make a difference in their communities by upcoming Wills for Heroes events in Bar Association providing assistance to benefit those most Shreveport, Oct. 24; Alexandria, Nov. 2; (LSBA) President in need. Local bars and legal organizations Baton Rouge, Nov. 16; and Lafayette, Dec. Richard K. Leefe has are encouraged to give their time and expe- 14. Volunteers are needed to assist with will designated October as rience by providing legal advice or help to drafting, notary services and coordination. Louisiana’s “Month unrepresented individuals at local courts. No estate planning experience is necessary of Legal Service” for I urge each of you reading to step up and CLE credit is available for the neces- LSBA members. The your pro bono efforts and contribute at sary one-hour training. Month of Legal Ser- least 10 hours this month assisting those Kyle A. Ferachi As always, the Young Lawyers Division vice coincides with, in need of legal services but who cannot is ready and willing to help with efforts and will culminate afford them. As President Leefe reminds around the state for our members. If you in, the National Celebrate Pro Bono Week us often, Equal Justice Under Law does know of a project or effort that needs as- from Oct. 20-26. The goal of the Month not apply only to those who can afford sistance, please let us know. of Legal Service is for attorneys to help access to justice.
CLE Opportunity Offered by LSBA Senior Lawyers Division & Young Lawyers Division The LSBA’s Senior Lawyers Division and Young Lawyers Division are joining forces to present their first joint CLE program, scheduled from noon-6:45 p.m., Monday, Dec. 2, at the Hyatt French Quarter Hotel in New Orleans. The CLE will feature both credit and non-credit programs. The following sessions are approved for 3 CLE credit hours: Retirement and Estate Planning; Social Media and Technology Today; and Mentoring. Non-credit sessions will cover wellness and wine-tasting. Registration is open to lawyers of all ages. Earn 3 CLE credits while networking with colleagues at this interesting event! Register today at www.lsba.org/cle
226 October / November 2013 (LSU), where he was on the Chancellor’s practice devoted to their defense. Young Lawyers Honor Roll for six consecutive semesters, A member of the Southwest Louisiana Spotlight was an Allstate Foundation Scholar and Bar Association (SWLBA), he serves on LSU Alumni Scholar for four years, and a the SWLBA’s Young Lawyers Section Ross M. Raley Top 100 Scholar in fall 2001. He received Executive Council. Lake Charles his MBA degree in 2010 from LSU, where In his community, Raley serves on the he received the MBA Outstanding Student board of directors of the American Red The Louisiana Award. He received his JD degree and Cross Southwest Louisiana Chapter, on State Bar Asso- diploma in civil law in 2010 from LSU the Chamber SWLA’s Small Business ciation’s (LSBA) Paul M. Hebert Law Center, where he Committee and on the Chamber’s com- Young Lawyers Di- received CALI Awards for achieving the mittee to select participants for the SEED vision is spotlighting highest grade in Civil Law Property, Busi- Center’s Business Incubator. He also Lake Charles attor- ness Associations I, Commercial Paper and volunteers with Big Brothers Big Sisters ney Ross M. Raley. Media Law Seminar. He was a Faculty of Lake Charles. Raley, an attor- Merit Scholar, received the Vinson & His hobbies include sports, movies, ney with the firm Elkins Scholarship for 2009-10, and was reading, traveling, running and spending Stockwell, Sievert, Ross M. Raley on the Chancellor’s List in spring 2009. time with family and friends. Viccellio, Clements He graduated in the top 9 percent of his & Shaddock, L.L.P., class and received the Order of the Coif. in Lake Charles, was born in Lafayette and His practice is primarily focused on raised in Lake Charles. He received his BS litigation and labor and employment law. degree in information system and decision He serves industrial, business, financial and sciences from Louisiana State University insurance clients, with a large part of his
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 Richard J. Arsenault (318)487-9874 Monroe John C. Roa (318)387-2422 [email protected] Cell (318)452-5700 [email protected]
Baton Rouge Ann G. Scarle (225)214-5563 Natchitoches Peyton Cunningham, Jr. (318)352-6314 [email protected] [email protected] Cell (318)332-7294
Covington/ Suzanne E. Bayle (504)524-3781 New Orleans Helena N. Henderson (504)525-7453 Mandeville [email protected] [email protected]
Denham Springs Mary E. Heck Barrios (225)664-9508 Opelousas/ John L. Olivier (337)662-5242 [email protected] Ville Platte/Sunset [email protected] (337)942-9836 (337)232-0874 Houma/Thibodaux Danna Schwab (985)868-1342 [email protected] River Parishes Judge Jude G. Gravois (225)265-3923 [email protected] (225)265-9828 Jefferson Parish Pat M. Franz (504)455-1986 Cell (225)270-7705 [email protected] Shreveport M’Lissa Peters (318)222-3643 Lafayette Heather Broussard (337)237-4700 [email protected] [email protected]
Lake Charles Chantell Marie Smith (337)475-4882 For more information, go to: [email protected] www.lsba.org/solace
Louisiana Bar Journal Vol. 61, No. 3 227 Louisiana Center for
LouisianaCENTER FOR LCLCE Law & C ivicEducation LAW & CIVIC EDUCATION Law Day 2013
82 Law Day Programs Presented Statewide he Louisiana Center for Law and Civic Education (LCLCE) strives to celebrate Law Day in schools statewide that may Tnot otherwise have a Law Day event. The LCLCE, through the “Lawyers in the Classroom/Judges in the Classroom” Program, organized multiple in-class presentations across the state during Law Week. This year, 82 Law Day presentations Judge Sheva M. Sims, far right, presented a Law Day program at Huntington High School in Shreveport. were conducted, reaching more than 3,500 students. Thanks to dedicated teachers, and attorneys and judges who volunteered their time and talent, these programs occurred in all seven congressional districts and at all grade levels. Several judges participated in the programs, including Judge Reginald T. Badeaux III, Judge Paul A. Bonin, Judge Judge Reginald T. Badeaux III, center, presented a Law Day program at Archbishop Hannan High Eirleen E. Brown, Judge Jeffrey S. Cox, School in Covington. Judge Lilynn A. Cutrer, Judge Clayton A. Davis, Judge Karen K. Herman, Judge Mark A. Jeansonne, Judge Sandra C. Jenkins, Judge Michael E. Lancaster, Judge C. Wendell Manning, Judge Michael A. Pitman, Judge D. Kent Savoie, Judge Robert L. Segura, Judge Sheva M. Sims, Judge Raymond S. Steib, Jr., Judge Parris A. Taylor, Judge Max N. Tobias, Jr., Judge Melise Trahan, Judge Kirk A. Williams and Judge Robert L. Wyatt. Several attorneys participated in the programs, including Denise A. Allemand, Damon J. Baldone, Danielle N. Brown, Kelly G. Carmena, Trina T. Chu, Albert Judge Max N. Tobias, Jr., back row, fourth from left, presented a Law Day program at Cabrini High D. Clary, John F. Dillon, J. Keith Gates, School in New Orleans. A. Spencer Gulden, Roger Hamilton, Jack With the continued support of the legal 501(c)(3) organization that coordinates, Harrison, Evan P. Howell, William Jones, community, Louisiana will remain a leader implements and develops law and civic J. Clay LeJeune, Kristi U. Louque, Gernine in the promotion of law and civic education education programs and trains others in M. Mailhes, Sarah S. Midboe, Ben Miller, in the classroom. the delivery of law and civic education Mark A. Myers, John C. Nickelson, Patti The “Lawyers in the Classroom/Judges programs throughout Louisiana. It is the W. Oppenheim, Corey P. Parenton, Thomas in the Classroom” Program is a partnership public education arm of the LSBA and is G. Robbins, Emilia L. Salas, Meghan B. of the Louisiana District Judges Association, funded in part by the Interest on Lawyers Shumaker, David Smith, Angel G. Varnado, the Louisiana State Bar Association (LSBA) Trust Accounts Program through the Jason M. Verdigets and Russell A. Woodard. and the LCLCE. The LCLCE is a non-profit Louisiana Bar Foundation.
228 October / November 2013 JUDICIAL Notes By Robert Gunn, Louisiana Supreme Court New Judge... Retirement
New Judge Association and the Louisiana 4th and 5th judicial appropriations bill providing for Circuit Judges Associations. the financial needs of the court system. Scott U. Schle- He served as chair, Judicial Budgetary gel was elected as Deaths Control Board; president, Baton Rouge Bar judge of Division D, Association; president, Louisiana District 24th Judicial District ► Retired Loui- Judges Association; chief judge, 19th JDC; Court, effective May siana Supreme Court chair, various Supreme Court committees; 18. He received a Justice Luther F. Cole, and vice chair, Judiciary Commission. BS degree in 1999 87, died July 26. He ► Retired Bastrop City Court Judge from Louisiana State was a U.S. Navy Frank Woodrow (Woody) Wilson, 89, died University and his JD veteran, serving as an July 8. He was a World War II veteran, degree, cum laude, Scott U. Schlegel officer in World War serving as an officer in the U.S. Navy. Prior in 2004 from Loyola II. He completed his to his military service, he attended what is University College of undergraduate stud- now the University of Louisiana-Monroe. Law. He served as Student Bar Associa- ies at Louisiana Tech Justice Luther F. Following his discharge, he received his tion president from 2003-04. He practiced University and re- Cole JD degree in 1949 from Louisiana State with McGlinchey Stafford, P.L.L.C., from ceived his JD degree University Law School. He returned to 2004-07 before joining the Jefferson Par- in 1950 from Louisiana State University Bastrop where he established a successful ish District Attorney’s Office. He worked Law School. He practiced law in Baton law practice, which he maintained until his as a prosecutor in the Family Violence Rouge for 16 years and served in the death. He served in the Louisiana House of Prosecution Unit from 2007-08 and as a Louisiana House of Representatives from Representatives from 1954-62. He served prosecutor in the Felony Division from 1964 until his election to the bench. His as judge of Bastrop City Court for 24 years 2009-12. He has been a member of the first judicial oath of office was in 1966 until his retirement in 1984. Louisiana State Bar Association’s Bill after being unopposed for election to the ► Retired 12th Judicial District Court of Rights Section since 2010 and served bench of the 19th Judicial District Court, Judge Benjamin C. (Clyde) Bennett, Jr., as the section’s secretary/treasurer. He is where he was reelected in 1972 and 1978. 88, died July 9. He began his practice of married to Laurie Schlegel and they are In 1979, he was elected for an unexpired law in 1948. From 1971-84, he served as the parents of one child. term on the bench of the 1st Circuit Court a Marksville City Court judge. In 1986, he of Appeal. He was reelected to that court took the oath as judge for the 12th JDC, Retirement for a full term in 1980. In 1986, he took his where he served until his retirement in oath as a Supreme Court associate justice 1989. He later served, by appointment of Orleans Parish Traffic Court Judge and was reelected without opposition in the Louisiana Supreme Court, as judge pro Ronald J. Sholes retired effective July 31. 1988 for a full term, serving until his retire- tempore in the 9th JDC. In 1998, he was elected to Division D of ment in 1992. Justice Cole represented the ► Retired Pineville City Court Judge Orleans Parish Traffic Court, serving from judiciary many times before Constitutional Jack Holt, 89, died June 25. Following his 1999-2013. He served as an Orleans Parish Convention and Legislative Committees, service in World War II as a B-24 bomber Civil District Court judge from 1991-98. particularly on issues of judicial tenure, pilot for the U.S. Army Air Corps, he gradu- He received a BS degree in 1976 from compensation and retirement and on ated from Louisiana College and earned Louisiana State University Medical Center, budgetary matters. He drafted and was his JD degree, with honors, in 1951 from a Master of Public Health degree in 1980 primarily responsible for the enactment of Tulane Law School. He was elected as from Tulane University School of Public Act 518 of 1976, establishing a contribu- Pineville’s first City Court judge in 1954 Health and his JD degree in 1984 from tory retirement system for judges and court and served 20 years in that position until Loyola University Law School. He is a past officers. Also, in 1987, as budget officer of his retirement in 1974. president of the Louisiana District Judges the Supreme Court, he initiated a separate
Louisiana Bar Journal Vol. 61, No. 3 229 People LAWYERS ON THE MOVE . . . NEWSMAKERS
Heller, Draper, Patrick & Horn, L.L.C., Long Law Firm, L.L.P., in Baton Rouge LAWYERS ON in New Orleans announces that Heather announces that Donald J. Cazayoux, Jr. THE MOVE Cheesbro has joined the firm as an associate. has joined the firm as of counsel andJ. Lane Ewing, Jr. has joined the firm as an associate. Barrasso Usdin Kupperman Freeman & Jones Walker, L.L.P., announces that Sarver, L.L.C., in New Orleans announces Richard F. Cortizas has rejoined the firm as Lugenbuhl, Wheaton, Peck, Rankin & that Andrew J. Graeve has joined the firm special counsel in the New Orleans office. Hubbard, A.L.C., announces that Shaundra as an associate. Also, John F. Fletcher has joined the firm M. Westerhoff has joined the firm as an as a partner in the Jackson, Miss., office. associate in the New Orleans office andC. Cashe Coudrain & Sandage in Hammond Austin Holliday has joined the firm as an announces that Callie D. Casstevens Laborde & Neuner law firm in Lafayette has associate in the Baton Rouge office. has become associated with the firm. changed its name to NeunerPate, effective She received an LLM in energy and July 1. Senior founding and managing Perrier & Lacoste, L.L.C., in New Orleans environmental law in 2012. partner Frank X. Neuner, Jr. will lead announces that J. Roumain Peters III has the firm along with senior partner James joined the firm as special counsel. Chehardy, Sherman, Ellis, Murray, Recile, L. Pate. The firm has expanded with new Griffith, Stakelum & Hayes, L.L.P., in offices: in Metairie through the acquisition Rainer Anding Talbot & Mulhearn in Metairie announces that Jeffrey D. Martiny of the firm deLaup & Enright, L.L.C.; and in Baton Rouge announces that R. Frederick has joined the firm as an associate. the Pan American Life Center, 601 Poydras Mulhearn has been named partner in the firm. St., New Orleans. Conroy Law Firm in Metairie announces Swanson, Martin & Bell, L.L.P., announces that Amanda D. Hogue has joined the firm Alyce B. Landry, A.P.L.C., and Alyce that Jennifer S. Kilpatrick has joined the as an associate. B. Landry, CPA, L.L.C., in Prairieville firm as a partner in the Chicago, Ill., office. announce that Nicholas R. Dunham has Duplass, Zwain, Bourgeois, Pfister & Taggart Morton, L.L.C., in New Orleans joined the firms as an associate attorney/ Weinstock, A.P.L.C., in Metairie announces announces that Dorothy L. Tarver has senior staff accountant. that Daniel M. Redmann is a partner in joined the firm as a member. the firm.
Richard J. Arsenault Judy Y. Barrasso Donald J. Heather Cheesbro Nicholas R. Dunham J. Lane Ewing, Jr. Cazayoux, Jr.
Andrew J. Graeve Amanda D. Hogue C. Austin Holliday Jeffrey D. Martiny Stephen L. Miles R. Frederick Mulhearn
230 October / November 2013 NEWSMAKERS McCollam, Duplantis & Eagan, L.L.C., PUBLICATIONS NEWSMAKERS was appointed to serve on the Council of PUBLICATIONS Adams and Reese, L.L.P., received the “Law the Louisiana Mineral Law Institute. Benchmark Litigation Firm Diversity Award” from the National Barrasso Usdin Kupperman Freeman Bar Association at the annual Corporate Kenneth M. Klemm, a shareholder in the & Sarver, L.L.C. (New Orleans): Judy Y. Barrasso, Top 250 Women in Litigation. Law Section convention in July. New Orleans office of Baker, Donelson, Bearman, Caldwell & Berkowitz, P.C., was The Best Lawyers in America 2014 Richard J. Arsenault, a partner in the reappointed as co-chair of the American Bar Baldwin Haspel Burke & Mayer, L.L.C. Alexandria firm of Neblett, Beard & Association’s Energy Litigation Committee. (New Orleans): David L. Carrigee, Joel A. Arsenault, chaired a Complex Litigation Mendler, Jerome J. Reso, Jr., Leon H. Rittenberg Symposium in Chicago, Ill., in May. He Lynn Luker, with Lynn Luker & Associates, III, John A. Rouchell, William B. Schwartz, also spoke on managing complex litigation L.L.C. in New Orleans, was elected as chair Paul N. Vance and Karl J. Zimmermann. at the 5th Circuit Judicial Conference in of the National Association of Minority and Bradley Murchison Kelly & Shea, L.L.C. Fort Worth, Texas. Women Owned Law Firms. (Baton Rouge, New Orleans, Shreveport): C. Wm. Bradley, Jr., Darryl J. Foster, Jerald N. David C. Coons, an attorney in the New Stephen L. Miles, an associate with Jones, David S. Kelly, Kay C. Medlin, Malcolm Orleans office of Adams and Reese, L.L.P., Barrasso Usdin Kupperman Freeman S. Murchison, Dwight C. Paulsen III, David was appointed to the Jefferson Parish & Sarver, L.L.C., in New Orleans, was E. Redmann, Jr., F. John Reeks, Jr., Joseph L. affiliate board of CASA (Court Appointed selected as a member of the Leadership (Larry) Shea, Jr. and David R. Taggart. King, Krebs & Jurgens, P.L.L.C. (New Special Advocates) for children. LSBA (Louisiana State Bar Association) Class of 2013-14. Orleans): Eric E. Jarrell, George B. Jurgens R. Marshall Grodner, a member in the Baton III, Patricia A. Krebs, Robert J. Stefani, Jr. and Rouge office of McGlinchey Stafford, Stephen G.A. Myers, a member in the David A. Strauss. Ogletree, Deakins, Nash, Smoak & P.L.L.C., was appointed as vice chair of New Orleans office of Irwin, Fritchie, Stewart, P.C. (New Orleans): Steven the Commercial Finance Committee of Urquhart & Moore, L.L.C., is a certified mediator and listed on the approved register Hymowitz, Mark N. Mallery, Christopher E. the American Bar Association’s Business Moore and Christine M. White. Law Section. of civil mediators by the Louisiana State Bar Association’s Alternative Dispute Chambers USA 2013 Jan M. Hayden, a shareholder in the Resolution Section. Bradley Murchison Kelly & Shea, L.L.C. New Orleans office of Baker, Donelson, (Baton Rouge, Shreveport): Jerald N. Jones, Bearman, Caldwell & Berkowitz, P.C., Frank X. Neuner, Jr., senior founding Joseph L. (Larry) Shea, Jr. and David R. Taggart. was named chair of the board of directors and managing partner of NeunerPate, Fowler Rodriguez (New Orleans): of The Pro Bono Project in New Orleans. headquartered in Lafayette, with offices Antonio J. Rodriguez and Norman C. Sullivan, Jr. She will serve an 18-month term. in Metairie and New Orleans, was invited to speak about disaster recovery of legal Gordon, Arata, McCollam, Duplantis Aimee Williams Hebert, a member in the systems at the World Justice Forum at The & Eagan, L.L.C. (Baton Rouge, Lafayette, New Orleans): Michael E. Botnick, P. Kevin New Orleans office of Gordon, Arata, Hague, Netherlands, in July. Colomb, Bob J. Duplantis, Ewell (Tim) E. Eagan, Jr., C. Peck Hayne, Jr., John M. McCollam, Scott A. O’Connor, Louis M. Phillips, Loulan J. Pitre, Gerald H. Schiff, Howard E. Sinor, Jr. and Marion W. Weinstock. Liskow & Lewis, A.P.L.C. (Lafayette, New Orleans): Donald R. Abaunza, Marguerite L. Adams, Robert S. Angelico, Wm. Blake Bennett, James A. Brown, James C. Exnicios, Joseph I. Giarrusso III, Don K. Haycraft, Joseph P. Hebert, Robert E. Holden, Jonathan A. Hunter, Stephen G.A. Myers Frank X. Neuner, Jr. James L. Pate J. Roumain Peters III R. Keith Jarrett, Greg L. Johnson, Philip K. Jones, Jr., James E. Lapeze, Thomas J. McGoey II, Robert B. McNeal, Kenneth Allen Polite, Jr., Richard W. Revels, Jr., Leon J. Reymond, Jr., Leon J. Reymond III, Lawrence P. Simon, Jr., Randye C. Snyder and John D. Wogan. Louisiana Super Lawyers 2013 Broussard & David, L.L.C. (Lafayette): Blake R. David and Richard C. Broussard. Martindale Hubbell Antonio J. Rodriguez Norman C. Dorothy L. Tarver Shaundra M. Law Offices of Joseph E. Ching (New Sullivan, Jr. Westerhoff Orleans): Joseph E. Ching, AV rating.
Louisiana Bar Journal Vol. 61, No. 3 231 News Awards... local bars... lbf
Update Francophone Section LASC Historical Society Conducts June Meeting Hosts University of Moncton Law Professor
The Louisiana State Bar Association’s (LSBA) Francophone Section hosted Professor James E. Lockyer with the Uni- versity of Moncton School of Law, New Brunswick, Canada, at two events in June. On June 24, Louisiana 4th Circuit Court of Appeal Chief Judge James F. McKay III hosted Lockyer for a visit to the Louisiana Louisiana Supreme Court Chief Justice Bernette Joshua Johnson, far right, addressed board members Supreme Court. They visited the court’s ar- at the June meeting of the Supreme Court of Louisiana Historical Society. chives and were given a tour by Law Library of Louisiana librarian Georgia Chadwick. ouisiana Supreme Court Chief the court’s thanks for the Society’s good On June 25, Francophone Section Chair Justice Bernette Joshua Johnson work during the court’s Bicentennial Warren A. Perrin and Jean Robert Frigault welcomed the board of the Su- Year. L with CODOFIL (Council for the Devel- preme Court of Louisiana Historical So- Also during the meeting, the board opment of French in Louisiana) hosted ciety to its June meeting. She expressed discussed upcoming programming, the Lockyer in Lafayette. The group discussed development of its new website, and recruitment of Louisiana students to attend planning for its annual fall membership the University of Moncton Law School, a meeting. symposium to be hosted in New Bruns- Attending the meeting were Donna wick during the upcoming World Acadian D. Fraiche, board president; Judge Marc Congress in mid-August 2014, and the T. Amy, first vice president; Mathile W. Louisiana State Bar Association hosting the Abramson, second vice president; Ben- chief justice of the New Brunswick Supreme jamin W. Janke, treasurer; and Prof. Paul Court at an upcoming event. R. Baier, secretary. In connection with the Bicentennial of Other board members attending were the Louisiana Supreme Court, the Franco- Judge (Ret.) James H. Boddie, Jr.; Allen phone Section is organizing a November Danos, Jr.; Judge James L. Dennis; Dr. symposium focusing on three leaders of the Rachel L. Emanuel; E. Phelps Gay; Leo court during the last three decades of the 20th C. Hamilton, president of the Louisiana century. Also, the section is organizing an Bar Foundation; Richard K. Leefe, pres- International Law Symposium for mid-July ident of the Louisiana State Bar Asso- in Paris, France. ciation; and John H. Musser IV, immedi- ate past president of the Louisiana State Bar Association. Society member Prof. LOUISIANA Bar Today Ray Rabalais also attended on behalf of Get the latest Louisiana State Loyola University College of Law Dean Bar Association news in the free, Supreme Court of Louisiana Historical Society María Pabón López. biweekly emailed update. It’s easy President Donna D. Fraiche, left, with Louisiana to subscribe. State Bar Association President Richard K. Leefe during the Society’s June meeting. Go to: www.lsba.org/goto/LBT
232 October / November 2013 Local/Specialty Bars Hevron Receives FBA New Orleans Chapter’s President’s Award
The Louisiana State Bar Association’s Francophone Section hosted Professor James E. Lockyer, left, with the University of Moncton School of Law, New Brunswick, Canada, at two events in June. Louisiana 4th Circuit Court of Appeal Chief Judge James F. McKay III, right, accompanied Lockyer for a visit to the Louisiana Supreme Court. Marshall A. Hevron, right, an associate in the Litigation Practice Group in the New Orleans office of Adams and Reese, L.L.P., received the Federal Bar Association (FBA) New Orleans Chair, Vice Chair, Member Named to Chapter’s President’s Award in August. With him is FBA New Orleans Chapter outgoing Judiciary Commission President Eric R. Nowak. Marshall A. Hevron, an associate The Louisiana also is an adjunct in the Litigation Practice Group in the Supreme Court an- faculty member at New Orleans office of Adams and Re- nounced that 19th LSU Law Center. ese, L.L.P., received the Federal Bar As- Judicial District Jerry Edwards sociation New Orleans Chapter’s Presi- Court Judge An- received his law dent’s Award at its annual meeting and thony J. Marabella, degree in 2005 awards luncheon in August. Jr. and Shreveport from Vermont Law Hevron, a former Marine and Opera- attorney Jerry Ed- School. He has been tion Iraqi Freedom combat veteran, re- wards, Jr. were an associate with the ceived the award for his commitment to elected chair and Judge Anthony J. Shreveport firm of Jerry Edwards, Jr. serving veterans in New Orleans and for Marabella, Jr. vice chair, respec- Blanchard, Walker, reviving the Veterans of Foreign Wars tively, of the Judi- O’Quin & Roberts (VFW) Post. ciary Committee of since 2006. He is currently serving as He serves as commander of VFW Louisiana. the District 8 representative on the Lou- Post 8973 in New Orleans and helped Also, 15th Judi- isiana State Bar Association’s Young breathe new life into the Post last year cial District Court Lawyers Division Council. by increasing services to war veterans, Judge Jules D. Ed- Judge Edwards received his law de- such as a job and résumé workshop, job wards III was ap- gree in 1984 from Loyola University preparation and legal advice. More than pointed as a new College of Law. He also holds a master’s 100 veterans have joined the Post since member. in public administration from Louisiana its revival. Judge Marabella State University and a master’s in stra- The President’s Award was con- received his law de- Judge Jules D. tegic studies from the U.S. Army War Edwards III ceived by the FBA New Orleans Chap- gree in 1973 from College. He retired as a colonel of the ter in the aftermath of Hurricane Katrina Louisiana State Uni- Louisiana National Guard in 2007. He to recognize a lawyer for contributions versity Paul M. Hebert Law Center. He has presided over the 15th JDC’s drug to community and leadership outside the presides over a criminal docket in the court. practice of law. 19th JDC and over the drug court. He
Louisiana Bar Journal Vol. 61, No. 3 233 Linda Law Clark, center, was one of two attorneys honored by the Baton Rouge Bar Foundation Pro Bono Project earlier this year for donating 1,000 Baton Rouge Bar Association (BRBA) Young Lawyers Section Past Chair hours toward pro bono work. With her are Kenneth A. Mayeaux, left, Baton Jamie H. Watts, left, presented Catherine Saba Giering with the 2013 Judge Rouge Bar Association Pro Bono Committee chair for the past two years, Joseph Keogh Memorial Award earlier this year on behalf of the BRBA YLS and 2013 Pro Bono Committee Chair Emily P. Ziober. in recognition of outstanding service to the BRBA.
Rosenberg Receives Inns of court NOBA’s Presidents’ Award Acadiana Inn of Court Receives Top National Honors For the third consecutive year, the Harry Rosen- Acadiana Inn of Court this year achieved berg, a partner in the the Platinum Level Distinction from the New Orleans office American Inns of Court (AIC), the highest of Phelps Dunbar, commendation for a local Inn. L.L.P., received the Also recognized by the AIC was the Aca- New Orleans Bar As- diana Inn’s Team 1 — led by Assistant U.S. sociation’s (NOBA) Attorney Camille A. Domingue in Lafayette, Presidents’ Award in with co-team leader Frank X. Neuner, Jr. July. The Presidents’ with the firm NeunerPate in Lafayette — Award recognizes Harry Rosenberg receiving the Outstanding Program Award professional excel- for its presentation, “These Trying Times: lence and integrity, Contemporary Pressures on Contemporary along with dedication to community Jurors.” Franchesca L. Hamilton Acker, left, Acadiana service in the highest ideals of citizenship. During the past year, the Acadiana Inn has Inn of Court’s 2012-13 president, with Larry NOBA President Timothy F. Daniels Curtis (emeritus member). contributed to numerous charities, including commended Rosenberg “for his atten- donations of business suits to Northside High dance to professional ideals, his true Acadiana Inn’s 2012-13 president. Ex- School’s Moot Court team and donations of concern for the welfare of others and ecutive Committee members include Lisa food to Food Net. The organization also pro- his active commitment to community D. Hanchey, president-elect; Michael P. vided attorney volunteers to handle pro bono service.” Maraist, past president; Diane A. Sorola, legal assistance for Hurricane Isaac victims. Rosenberg was recognized for his secretary; Amy A. Lee, treasurer; Camille In May 2013, the Acadiana Inn presented work with the Court-Appointed Special A. Domingue, counselor; Steven C. Lanza, Team 4’s “Wizard of Lawz” program for the Advocates, the Innocence Project, the reporter; Mildred E. Methvin, program National Inns of Court Foundation sympo- Orleans Parish Public Defenders Program, chair; Shawn A. Carter, membership chair; sium in New Orleans. The program focuses the New Orleans Indigent Defense Board, Elena Arcos Pecoraro and Frank S. Slavich on a range of attorney conduct from “Rambo” the National Conference of Community III, membership; Holli K. Yandle, meeting to “Wimpy,” with intermediate stops at Zeal and Justice, the Milne Boys’ Home, among coordinator; and Blake R. David and Wil- and Civility. other organizations. liam W. Stagg, at-large members. Kenanne Franchesca L. Hamilton Acker is the Dooley is administrator of the Inn.
234 October / November 2013 Important Reminder: Lawyer Advertising Filing Requirement Per Rule 7.7 of the Louisiana Rules of Professional Conduct, all lawyer advertisements and all unsolicited written communications sent in compliance with Rule 7.4 or 7.6(c) — unless specifically exempt under Rule 7.8 — are required to be filed with the LSBA Rules of Professional Conduct Committee, through LSBA Ethics Counsel, prior to or concurrent with first use/dissemination. Written evaluation for compliance with the Rules will be provided within 30 days of receipt of a complete filing. Failure to file/late filing will expose the advertising lawyer(s) to risk of challenge, complaint and/or disciplinary consequences. The necessary Filing Application Form, information about the filing and evaluation process, the required filing fee(s) and the pertinent Rules are available online at: Judge Carl E. Stewart, right, chief judge of the U.S. 5th Circuit Court of Appeals, was the keynote http://www.lsba.org/LawyerAdvertising. speaker for the Crossroads American Inn of Court annual banquet in April in Alexandria. Kellen J. Inquiries, questions and requests for Mathews, left, an attorney in the Baton Rouge office of Adams and Reese, L.L.P., who served as 2012-13 assistance may be directed to LSBA Inn president, presented a gift to Judge Stewart. Judge Stewart, active in the American Inns of Court, stressed the importance of maintaining the Inn’s relevance in today’s legal environment and urged the Ethics Counsel Richard P. Lemmler, Jr., elder statesmen in the Inn’s ranks to seize the opportunity to mentor young attorneys, particularly in [email protected], (800)421-5722, professionalism. ext. 144, or direct dial (504)619-0144. Strengthening Our Profession Wednesday, Dec. 11, 2013 Sheraton New Orleans Hotel • 500 Canal St. Professionalism by the hour!! ollowing approval by the Louisiana State Bar Association’s House of Delegates and Board of Governors at the Midyear Meeting, and Fapproval by the Supreme Court of Louisiana on Jan. 10, 1992, the Code of Professionalism was adopted for the membership. How do we apply this Code during the practice of law in the various and different areas of law? Register and learn from highly skilled members in the various areas of the law! Get the required Professionalism credit at your convenience... throughout the day OR by the hour. This program offers your choice of attending just one hour, multiple hours or the full day. To register for one hour or multiple hours, simply add to your cart. Register for the full day for $320 and save $220! Register Online at www.lsba.org/CLE
Louisiana Bar Journal Vol. 61, No. 3 235 Louisiana Bar Foundation
President’s Message What is Civil Legal Aid and Why Does It Matter? By Leo C. Hamilton ivil legal aid is free legal system. profession, the obligation not only to care advice and representation to Legal aid helps about civil legal aid, but also to actively low-income and vulnerable people solve prob- do something about it. The Louisiana Bar people who cannot otherwise lems: Foundation (LBF) works every day to do Cafford legal help. Services can be as simple ► Women who just that. as educating clients about their rights are victims of domes- Since 1989, the LBF has granted $54.4 and responsibilities and giving advice. tic violence. million to support a network of nonprofit Complex problems may require more ► Children who organizations providing critical, free civil extensive attorney representation. For need a stable home legal aid services to women, children, the clients, these services mean the difference or special education. Leo C. Hamilton elderly, the working poor, people with between staying in a home and living on ► Homeowners disabilities, the newly unemployed and the street; between a safe family and a life facing foreclosure due to fraudulent those facing loss of their homes. If you are of fear and violence; between getting paid schemes. unable to personally aid in the delivery of earned wages and having nothing to eat. ► Elderly people whose economic civil aid to the defenseless or oppressed, a Without legal help, even relatively minor security or health care is in jeopardy. tax-deductible contribution to the LBF will problems can escalate. Often the failure to ► Disabled people denied opportunities. help ensure that justice is a reality — not resolve these issues can tear families apart ► Immigrants who work the lowest- just for those who can afford it, but for or drive them further into poverty. wage jobs without benefits or contracts. everyone in Louisiana. To find out how Under our criminal justice system, ► Tenants facing wrongful evictions. you can help, contact LBF Development low-income persons are constitutionally ► Consumers bankrupted by predatory Director Laura Sewell at (504)561-1046. guaranteed legal representation before the lenders. courts. No such guarantee is provided in ► Workers cheated out of wages or civil matters. Yet, I believe that our legal denied lawful benefits. Send your news! system lacks validity when the least among ► Communities devastated by natural us is not provided adequate representation disasters. The Louisiana Bar Journal in all matters, including civil disputes. As lawyers, we swore an oath to “never From the abused woman seeking safety reject, from any consideration personal to would like to publish news for herself and her children, to the elderly [ourselves], the cause of the defenseless and photos of your activities man unlawfully evicted from his home, or oppressed or delay any person’s cause and accomplishments. legal aid is necessary to ensure that all for [monetary gain] or malice.” I believe Americans have access to our civil justice that oath places upon all lawyers, as a Email your news items Louisiana Bar Foundation Announces New Fellows and photos to: LSBA Publications The Louisiana Bar Foundation announces new Fellows: Coordinator Darlene Marguerite L. Adams...... New Orleans Jeremy A. Hebert...... Lafayette LaBranche at Hon. C. Kerry Anderson...... DeRidder Hon. Karen K. Herman....New Orleans [email protected]. Hon. Randall C. Bethancourt.... Houma Michael E. Holoway...... Covington Hon. Vincent J. Borne...... Franklin Elizabeth H. Icamina...... Covington Or mail press releases to: Hon. G. Michael Hon. Ellen Shirer Kovach...... Gretna Darlene LaBranche Canaday...... Lake Charles Hon. Perry M. Nicosia...... Chalmette 601 St. Charles Ave. Hon. Charlene Hon. Scott U. Schlegel...... Gretna New Orleans, LA Charlet Day...... Baton Rouge Cynthia Hazel Taylor...... Baton Rouge 70130-3404 Hon. James T. Genovese...... Opelousas
236 October / November 2013 Classified ads ONLINE at www.lsba.org CLASSIFIED NOTICES or toxic tort experience preferred. 2) Standard classified advertising in our regu- POSITIONS OFFERED Environmental litigation research and writing associate attorney: Three-plus lar typeface and format may now be placed Shuart & Associates Legal Search & in the Louisiana Bar Journal and on the years’ environmental defense experience. Staffing. In today’s market, many law LSBA Web site, LSBA.org/classifieds. Must have excellent research and writing firms are growing by lateral acquisition All requests for classified notices must skills. Judicial clerkship experience be submitted in writing and are subject of partners/practice groups. Some preferred. To apply and for more to approval. Copy must be typewritten partners are choosing to relocate to firms information, visit the website at: and payment must accompany request. where their unique strengths are valued Our low rates for placement in both are www.curryandfriend.com/careers.html. as follows: and compensation competitive. This requires broad knowledge of the existing Downtown New Orleans law firm, marketplace and insight into the culture RATES with offices in Houston, is seeking of local law firms. Shuart & Associates experienced attorney (minimum three CLASSIFIED ADS has a proven track record in providing years’ experience) for New Orleans Contact Krystal L. Bellanger at this service. All inquiries confidential. office to work on a broad range of (504)619-0131 or (800)421-LSBA, (504)836-7595. www.shuart.com. ext. 131. insurance defense and general commercial litigation matters. Competitive salary Mid-sized New Orleans firm is currently Non-members of LSBA will be commensurate with experience seeking a highly-credentialed associate $85 per insertion of 50 words or less and qualifications. Email Beau LeBlanc, $1 per each additional word with two-four years of litigation experience [email protected]. $20 for Classy-Box number in insurance bad faith, coverage, catastrophe and general property and Members of the LSBA AV-rated commercial, litigation and casualty work. Only candidates with the $60 per insertion for 50 words or less transactional law firm, with offices in stated background will be considered. $1 per each additional word Lafayette and Houston, Texas, seeking Please send résumé, transcript and writing No additional charge for Classy-Box associate attorney for its Lafayette office. number sample to: [email protected]. Candidate must have a minimum of three-plus years’ experience. Excellent Screens: $25 Curry & Friend, P.L.C. A growing Headings: $15 initial headings/large type academic credentials and superb writing New Orleans CBD and Northshore law and research skills are required. Mail firm is seeking qualified candidates, BOXED ADS confidential résumé to: Administrator, Boxed ads must be submitted camera ready offering a competitive salary and benefits Gibson Gruenert, P.L.L.C., P.O. Box by the advertiser. The ads should be boxed and an excellent work environment. 1) 3663, Lafayette, LA 70502-3663. Or and 2¼” by 2” high. The boxed ads are $70 Environmental law/toxic tort litigation per insertion and must be paid at the time of email to: lblackburn@gibsongruenert. attorney: Must have seven years’ civil placement. No discounts apply. com. Website: www.gibsongruenert.com. litigation experience with emphasis on DEADLINE complex litigation. Environmental and/ For the February issue of the Journal, all classified notices must be received with payment by Dec.18, EXAMINER OF 2013. Check and ad copy should be sent to: QUESTIONED DOCUMENTS Forensic Document LOUISIANA BAR JOURNAL Examiner Classified Notices WILLS • CHECKS 601 St. Charles Avenue ALTERED RECORDS Robert G. Foley New Orleans, LA 70130 DISPUTED SIGNATURES Handwriting • Typewriting • Copies Ink/Paper Analysis & Dating RESPONSES Mary Ann Sherry, CDE To respond to a box number, please address Board Certifi ed • Court Qualifi ed Certified & Court Qualified in your envelope to: NADE DIPLOMATE Federal, State, Municipal & Military Courts since 1972 Journal Classy Box No. ______Greater N.O. Area (504) 889-0775 c/o Louisiana State Bar Association Outside Greater N.O. (888) FORGERY Phone: (318) 322-0661 601 St. Charles Avenue www.robertgfoley.com New Orleans, LA 70130 www.maryannsherrycde.com
Louisiana Bar Journal Vol. 61, No. 3 237 Attorney position serves as legal counsel tried at least one case in the past three years. statewide service; fast response. Call to the Coastal Protection and Restoration Interested persons may submit written (337)474-4712 (Lake Charles); email lee@ Authority of Louisiana (CPRA) and is comments to Ken Schnauder, Executive leeaarcher.com; visit www.leeaarcher.com. responsible for providing legal assistance Director, Patient’s Compensation Fund, to the CPRA. Work shall include but is P.O. Box 3718, Baton Rouge, LA 70821. Briefs/Legal Research/Analysis not limited to assisting CPRA with the of Unusual or Problem Cases performance of its duties in connection Middleberg Riddle & Gianna, a JD with honors, federal judicial clerk, with the Deepwater Horizon explosion that regional law firm, is interested in hiring graduate of top 10 law school, 20 years’ occurred on April 20, 2010, and its oil spill a lateral attorney with one to three years experience, federal and state litigation. aftermath; communicates and meets with of experience with motion practice, Available for briefs, research, court the staff of the Governor’s Office, other research and some business litigation appearances, analysis of unusual or state agencies and private industry attorneys, experience; a self-starter with excellent problem cases. References on request. regarding issues relating to oil spills and writing and verbal skills. Send résumé to: Catherine Leary, (504)436-9648, statewide the application of OPA and other relevant [email protected]. services, registered office Jefferson Parish. laws and regulations; performs other related legal work as assigned. Attorney should ServicesSERVICES ForFOR Rent RENT have a minimum of three to five years Texas attorney, LSU Law 1985. Admitted CovingtonCOVINGTON of experience. For information on duties, in Louisiana and Texas. I am available Professional, free-standing commercial qualifications and response procedures, to attend hearings, conduct depositions, office with reception, waiting, four separate email Chip Kline at [email protected]. act as local counsel and accept referrals offices, kitchen (with dishwasher), central for general civil litigation in the Houston atrium, phone/data room, bathroom, and Minimum qualifications of defense area. Contact Manfred Sternberg, Jr. at file storage on main floor and in large attic. attorneys for the Patient’s Compensation (713)622-4300. Excellent parking, easy access to Covington Fund. In accordance with La. R.S. and I-12. Triple net. Pre- wired for cable, 40:1299.41(J), attorneys appointed to Brief writing/legal research. Columbia phone, broadband Internet. Contact Paul defend PCF cases must meet the following Law School graduate; former U.S. 5th Lea, [email protected] or (985)807-3137. minimum qualifications as established Circuit staff attorney; former U.S. District by the Patient’s Compensation Fund Court, Western District of Louisiana, ForFOR Rent RENT Oversight Board: (1) Must be a defense- law clerk; more than nine years of legal NewNE OrleansW ORLEANS oriented firm with at least 75 percent of experience; available for brief writing practice dedicated to defense; (2) Defense and legal research; references and résumé Office space for rent in downtown New firm appointed to PCF cases shall have available on request. Douglas Lee Harville, Orleans across from the federal courthouses NO plaintiff medical malpractice cases; [email protected], with a spectacular view of the French Quarter. (3) Defense firm must provide proof of (318)222-1700 (Shreveport). Perfect for a law firm or other professional Professional Liability coverage with a business. Approximately 4,400 square feet, minimum limit of $1 million; (4) Defense Appellate briefs, motions, legal research. including custom-made desks, secretarial attorney must have a minimum of five Attorneys: the appellate process is your last stations and file cabinets. $15.50 per-square- years’ experience in the defense of medical chance to modify or defend your judgment. foot/year. Contact Ann at (504)310-2166. malpractice cases; (5) Defense attorney Lee Ann Archer, former Louisiana Supreme Court clerk and Tulane Law honors Virtual office. Spend more time in New must have completed three trials within Orleans and write off your trip. Will the past three years. Presentation of five graduate, offers your best chance, with superior appellate briefs, outstanding legal provide mailing address, conference room, submissions to a medical review panel phone services, lobby receptionist, copy, may be substituted for each of two trials. research, pinpoint record review and 20-plus years of appellate experience. Confidential; fax, voice mail, Internet. 829 Baronne St. However, the defense attorney must have Contact Cliff Cardone, (504)522-3333. Louisiana Legal Ethics www.lalegalethics.org
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238 October / November 2013 To advertise in this directory, contact Krystal Bellanger-Rodriguez at (504)619-0131 or email [email protected] Legal Services Directory
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Louisiana Bar Journal Vol. 61, No. 3 239 The Last Word By Edward J. Walters, Jr. RANT
s we all now know, sadly, our Years pass. After all discovery is your opponent’s position is ridiculous. good friend, Vince Fornias, completed — depos across the globe You go to the hearing. It is obvious late of “Lucid Intervals” — your opponent files a two-foot-high the judge hasn’t read it. Takes it under fame, decided that he would motion for summary judgment, which, I advisement. Same judge from Peeves noA longer enrich us with his much-beloved am sure, took MONTHS to prepare. You 4, 5 and 6. Louisiana Bar Journal column. have either eight days to respond or 21 After much pleading and cajoling, he days to respond. These are usually filed Pet Peeve No. 8: You wake up in the has steadfastly refused to come back to right before the Christmas holidays. middle of the night (November 14) and the table, crayon in hand. think, “Was the plaintiff’s accident on I cajoled, “Vince, even though you Pet Peeve No. 3: The non-uniform November 14 or December 14? You get went to Jesuit, you’re a really smart, uniform rules. 20 pages of “Uniform in your car and drive to the office. It was FUNNY guy. How hard can writing this Rules” and 225 pages of appendices. Try December 14. Whew! to find something in there. column BE? There are endless war stories Pet Peeve No. 9: It’s 9:30. The judge about humorous stuff that happens every Pet Peeve No. 4: The judge takes has 43 motions on the docket — ALL set day to lawyers. This column should write it under advisement. It’s still under for 9:30. You are number 34. Shouldn’t itself.” advisement. It’s STILL under advisement. SOME of these be set for 1:00? Vince replied, “Don’t be too sure of How do you politely break this logjam? that war story solution, Bunkie. For every You try: “Dear Judge, Please find enclosed Pet Peeve No. 10: Opening the decent one, there are 10 ‘you hadda be a copy of the Jones v. Smith case which Louisiana Bar Journal, going to the last there’ clunkers, and many are prone to may assist you in deciding the above- page, and not finding Vince. political incorrectness.” captioned matter.” (Which has now been We all miss you, Vince. I told Vince that I was asked to write on your desk for 10 months.) Doesn’t the last page for this issue and I asked him work. What now? Edward J. Walters, Jr., a for ideas. He said, “Just rant about a pet partner in the Baton Rouge peeve lawyers can relate to.” Pet Peeve No. 5: You drive several firm of Walters, Papillion, So I will. hundred miles to attend a pretrial Thomas, Cullens, L.L.C., conference or status conference. Trial is a former Louisiana State Pet Peeve No. 1: You spend hours Bar Association secretary counsel MUST attend in person. The and editor-in-chief of the toiling over that brief. It’s perfect. You conference is held by the judge’s law Louisiana Bar Journal. proudly sign it (with a flourish) and clerk. No judge in sight. He is a member of the send it out. You feel good. Proud. It Journal’s Editorial Board is a masterpiece. Weeks later, while Pet Peeve No. 6: You have to be in and the editor of the LSBA Senior Lawyers Division’s court at 9:30. The interstate looks like Edward J. preparing for your oral argument, you e-newsletter, Seasoning. reread your perfect brief and find the a parking lot. You break your neck and Walters, Jr. following sentence: “Plaintiff suggests get there for 9:30. The judge takes the that their is no proof in the record to bench at 11:30. support defendant’s position.” Damn Pet Peeve No. 7: You draft this spell checker. compelling brief, clearly laying out why Pet Peeve No. 2: You are in litigation. your position is the correct one and why
The Louisiana Bar Journal is looking for authors and ideas for future “The Last Word” articles. Humorous articles will always be welcomed. But Editor Barry H. Grodsky is broadening the scope of the section, including “feel-good” pieces, personal reflections, human interest articles or other stories of interest. If you have an idea you’d like to pitch, email Grodsky at bgrodsky@taggartmorton. com or LSBA Publications Coordinator Darlene M. LaBranche at [email protected].
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