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Combined LSBA Annual Meeting and LSBA/LJC Summer School Don’t delay – Register today! Why pay full price? Register by May 24 to enjoy these highlights and more:

► Engaging CLE programming on issues involving criminal, civil, family and other specialty courts (drug courts, reentry courts, sobriety courts and mental health courts) ► Nationally recognized speakers ► Highly knowledgeable CLE presenters from Louisiana (Bench and Bar) ► Award presentations and officer installations ► Business meetings, networking and entertaining social events with colleagues ► Law school alumni parties, children’s activities…and fireworks! ► Judges Best Practices & Great Debates ► Track programming and much, much more. June 2-7, 2013 • Sandestin Golf & Beach Resort • Destin, FL For more information, or to register online, visit www.lsba.org/annualmeeting Louisiana Bar Journal Vol. 60, No. 6 449 450 April / May 2013 ®

April / May 2013 Volume 60, Number 6

Departments Features

Ipse Dixit...... 456 About this Issue: Louisiana Supreme Court Marks 200th Anniversary President’s Message...... 458 By Louisiana Supreme Court Associate Justice Greg G. Guidry...... 460 Association Actions...... 492 The Supreme Court of Louisiana at 200 Year of the Solo...... 498 By Dr. Warren M. Billings...... 462 Lawyers Give Back...... 499 Lawyers Assistance...... 501 History of the Louisiana Bar: Kingfish’s Legacy? By E. Phelps Gay...... 466 Puzzle...... 502 Focus on Professionalism..... 503 François-Xavier Martin Revisited: Louisiana Views on Codification, Jurisprudence, Legal Education and Practice Discipline Reports...... 504 By Prof. Olivier Moréteau...... 474 Recent Developments...... 508 Judicial Review in Louisiana: Young Lawyers...... 526 A Bicentennial Minute Entry La. Center for Law By Prof. Paul R. Baier and Georgia Chadwick...... 480 and Civic Education...... 528 The Louisiana Supreme Court and Civil Rights: Judicial Notes...... 529 A Fickle Courtship By Chief Judge Ulysses Gene Thibodeaux, Louisiana 3rd Circuit...... 484 People...... 531 News...... 535 Louisiana Supreme Court Celebrates 200th Anniversary in March 1 Ceremony By Miriam Childs, Law Library of Louisiana...... 488 Classified...... 540 Lucid Intervals...... 544 Also Inside

SOLACE...... 453 Member Services...... 454 Justices of the 2013 Louisiana Letters Policy...... 455 Supreme Court during the bi- Alcohol/Drug Abuse Hotline.. 502 centennial ceremonies. From left, Justice Marcus R. Clark, Justice Advertisers’ Index...... 542 John L. Weimer, Justice Jeffrey P. Victory, Chief Justice Bernette Joshua Johnson, Justice Jean- nette Theriot Knoll, Justice Greg G. Guidry and Justice Jefferson D. Hughes. Photo provided by the Louisiana Supreme Court.

Louisiana Bar Journal Vol. 60, No. 6 451 ® Editorial Board

 Edward J. Walters, Jr. Officers 2012-13 Editor  Gerald J. (Jerry) Huffman, Jr. President (225)236-3636 (504)524-8556 John H. Musser IV • (504)599-5964

President-Elect  Adrejia L. Boutte  Margaret E. Judice Richard K. Leefe • (504)830-3939 (504)561-5700 (337)828-1880 Secretary

Edward J. Walters, Jr. • (225)236-3636  John S. (Chip) Coulter  John H. Musser V Treasurer (225)382-3183 (504)523-0400 Steven G. (Buzz) Durio • (337)233-0300 Immediate Past President  Anthony M. DiLeo  Roy H. (Hal) Odom, Jr. James J. Davidson III • (337)237-1660 (504)274-0087 (318)227-3762

Board of Governors 2012-13  Brendan P. Doherty  Maggie Trahan Simar First District (832)255-6019 (337)394-6133 Barry H. Grodsky • (504)599-8535 H. Minor Pipes III • (504)589-9700  Stephen I. Dwyer  Gail S. Stephenson Second District (504)838-9090 (225)771-4900, x216 Stephen I. Dwyer • (504)838-9090 Tyler G. Storms Third District  Barry H. Grodsky  Dona Kay Renegar • (337)234-5350 (504)599-8535 (318)255-7805 Fourth District Jack K. Whitehead, Jr. Winfield E. Little, Jr. • (337)430-0907  J. Lee Hoffoss, Jr.  (337)439-5788 (225)303-8600 Fifth District Darrel J. Papillion • (225)236-3636 Sixth District Robert G. Levy • (318)443-7615 The Louisiana Bar Journal (ISSN 0459-8881) is published bimonthly by Seventh District the Louisiana State Bar Association, 601 St. Charles Avenue, New Orleans, Thomas M. Hayes III • (318)387-2422 Louisiana 70130. Periodicals postage paid at New Orleans, Louisiana and additional offices. Annual subscription rate: members, $5, included in dues; Eighth District nonmembers, $45 (domestic), $55 (foreign). Canada Agreement No. PM Karelia R. Stewart-Green • (318)226-6998, x1070 41450540. Return undeliverable Canadian addresses to: P.O. Box 2600, Chair, Young Lawyers Division Mississauga, ON, L4T 0A8. Lawrence J. Centola III • (504)581-9065 At-Large Members Postmaster: Send change of address to: Louisiana Bar Journal, 601 St. Franchesca L. Hamilton-Acker • (337)237-4320 Charles Avenue, New Orleans, Louisiana 70130. Daniel A. Cavell • (985)449-7500 Julie H. Kilborn • (225)219-9305 Subscriber Service: For the fastest service or questions, call Darlene M. Loyola University College of Law LaBranche at (504)619-0112 or (800)421-5722, ext. 112. Monica Hof Wallace • (504)861-5670 Southern University Law Center Editorial and Advertising: Donald W. North • (225)771-3333 Publication of any advertisement shall not be considered an endorsement Louisiana State Law Institute of the product or service involved. Submissions are welcome and will be John Wayne Jewell • (225)638-3311 considered for publication by the Editorial Board. For submission guide- lines, go online at www.lsba.org, click on “Publications,” then “Louisiana House of Delegates Liaison Chair Bar Journal.” Copyright © by Louisiana Bar Journal. All rights reserved. George B. Recile • (504)833-5600 Reproduction in whole or part without permission is prohibited. Views expressed are those of the authors only. Editorial Staff Executive Director Luminary Award 2003 Loretta Larsen, CAE National Association of Bar Executives Communications Director Communications Section Kelly Wells Ponder Excellence in Regular Publications Publications Coordinator/Managing Editor Darlene M. LaBranche Communications Coordinator International Barbara D. Baldwin Association of Business Public Relations Society Communications Assistant ommunicators C of America Krystal Bellanger Rodriguez New Orleans New Orleans Chapter Advertising Booking Questions? Chapter Award of Call (504)619-0131. Bronze Quill Award of Merit

452 April / May 2013 LOUISIANA HORNE LLP PROUDLY Bar Today CONGRATULATES Jeffrey N. Aucoin, Get the latest CPA, CFF, CFE, CIA Louisiana State ON RECENTLY Bar Association BEING NAMED news in the free, FRAUD, FORENSIC biweekly emailed & LITIGATION SERVICES PARTNER update. It’s easy Baton Rouge, LA to subscribe.

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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 Bridget Verret (318)222-3643 Lafayette Susan Holliday (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. 60, No. 6 453 ® 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.

 Alternative Dispute Resolution Program New Orleans  Client Assistance Fund  Bienville House, (800)535-9603  Continuing Legal Education Program e-mail: [email protected]  Ethics Advisory Service www.lsba.org/GoTo/BienvilleHouse

 Lawyers’ Substance Abuse Hotline • (866)354-9334  Hilton Garden Inn, (504)324-6000  Legal Specialization Program  Hilton St. Charles, (504)524-8890  Loss Prevention Counsel  Hotel InterContinental, (877)866-9005 Johanna G. Averill, Lindsey M. Ladouceur and Elizabeth LeBlanc Voss • (800)GILSBAR e-mail: [email protected] SOLACE (Support of Lawyers/Legal Personnel All Concern Encouraged)  Hotel Monteleone, (800)535-9595  e-mail: [email protected] www.lsba.org/GoTo/HotelMonteleone Publications  Hyatt French Quarter, (504)565-4552  Louisiana Bar Journal  Hyatt Place, (888)492-8847  Hyatt Regency New Orleans, (888)591-1234  “Bar Briefs” (online) www.hyatt.com, Corporate #95147  Louisiana Bar Today (online newsletter)  JW Marriott New Orleans • www.jwmarriottneworleans.com  Le Pavillon Hotel, (800)535-9095 • http://bit.ly/LPLSBAR Online Services  Loews New Orleans Hotel • (504)595-5370, (866)211-6411  Louisiana Bar Today Opinion Service  Lending Library  Marriott Courtyard Downtown www.courtyardneworleansfrenchquarter.com  Membership Directory  Twitter Fastcase (free online legal research) Facebook  New Orleans Marriott   www.lsba.org/GoTo/NewOrleansMarriott  Law Office Management Assistance Program  New Orleans Marriott at the Convention Center www.lsba.org/GoTo/MarriottCC Young Lawyers Division  Renaissance Pere Marquette www.renaissanceperemarquette.com  Bridging the Gap  Choose Law Mentor Program  The Ritz-Carlton, (800)826-8987, (504)670-2845   Barristers for Boards e-mail: [email protected]  Young Lawyers’ Directory  Wills for Heroes  The Roosevelt New Orleans • (504)335-3138, 1(800)WALDORF  Sheraton New Orleans, (800)937-8461 Insurance through Gilsbar  Westin Canal Place, (800)937-8461  The Whitney Wyndham, (504)581-4222  Group Insurance Major Medical  Windsor Court, (800)262-2662, (504)523-6000  e-mail: [email protected]  Disability  Wyndham Riverfront New Orleans, (504)524-8200  Malpractice e-mail: [email protected] (800)GILSBAR • (504)529-3505 • See inside back cover Baton Rouge

 Courtyard Baton Rouge Acadian Thruway Car Rental Programs www.courtyardbatonrouge.com • (Corporate Code: ABA) The following car agencies have agreed to discount rates for LSBA members.  Crowne Plaza Baton Rouge, (225)925-2244, (225)930-0100 e-mail: [email protected] Avis – (800)331-1212 • Discount No. A536100   Hilton Baton Rouge Capitol Center, (800)955-6962, (225)344-5866  Budget Rent-a-Car – (800)527-0700 • Discount No. Z855300 Corporate ID #0921780 • www.lsba.org/GoTo/HiltonBRCapitol  Hertz – (800)654-2210 • Discount No. 277795  Sheraton Baton Rouge, (225)378-6177 e-mail: [email protected] Other Vendors Lafayette The following vendors have agreed to discount rates for LSBA members.  SpringHill Suites Lafayette South at River Ranch www.lsba.org/GoTo/SpringHill ABA Members Retirement – (800)826-8901 LexisNexis – (800)356-6548   Lake Charles CoreVault – (866)945-2722  LawPay - (866)376-0950   Best Western Richmond Suites, (337)433-5213  Geico - (800)368-2734  United Parcel Service – (800)325-7000 Shreveport Clarion Shreveport Hotel, (318)797-9900 *  National Hotel Chains  Hilton Garden Inn and Homewood Suites, (318)759-1950  Holiday Inn, (800)HOLIDAY  LaQuinta Inns & Suites, (866)725-1661  The Remington Suite Hotel, (318)425-5000 Use ID No. 100381739 www.LQ.com www.remingtonsuite.com Use corporate rate code LABAR

*Discounts not guaranteed at every hotel property within a national chain. Contact specific property to inquire about availability of LSBA discounted rates.

454 April / May 2013 Louisiana Bar Journal Letters to the Editor Policy 1. At the discretion of the Editorial 4. Letters should be typewritten, signed representatives may respond to letters to Board (EB), letters to the editor are and, if applicable, include LSBA member clarify misinformation, provide related published in the Louisiana Bar Journal. number, address and phone number. background or add another perspective. Letters from non-members of the LSBA 2. If there is any question about whether also will be considered for publication. 7. Letters may pertain to recent a particular letter to the editor should be Unsigned letters are not published. articles, columns or other letters. Letters published, the decision of the editor shall responding to a previously published be final. If a letter questioning or criticizing 5. Not more than three letters from letter should address the issues and not Louisiana State Bar Association (LSBA) any individual will be published within be a personal attack on the author. policies, rules or functions is received, one year. the editor is encouraged to send a copy 8. No letter shall be published that of that letter to the appropriate entity for 6. Letters also may be clarified or contains defamatory or obscene material, reply within the production schedule of the edited for grammar, punctuation and violates the Rules of Professional Conduct Louisiana Bar Journal. If the editor deems style by staff. In addition, the EB may or otherwise may subject the LSBA to it appropriate, replies may be printed with edit letters based on space considerations civil or criminal liability. the original letter, or in a subsequent issue and the number and nature of letters of the Louisiana Bar Journal. received on any single topic. Editors 9. No letter shall be published that may limit the number of letters published contains a solicitation or advertisement 3. Letters should be no longer than on a single topic, choosing letters for a commercial or business purpose. 200 words. that provide differing perspectives. Authors, editorial staff or other LSBA

At the end of the day... If you answered no to any of these questions, Who’s Really Watching Your Firm’s 401(k)? contact the ABA Retirement Funds Program And, what is it costing you? by phone (866) 812-1510, on the web at www.abaretirement.com or by email [email protected] to learn how we keep a close watch over your 401(k).

Who’s Watching Your Firm’s 401(k)?

YES NO Does your firm’s 401(k) feature no out-of-pocket fees?

The American Bar Association Members/Northern Trust Collective Trust (the “Collective Trust”) has filed a registration Does your firm’s 401(k) include professional statement (including the prospectus therein (the “Prospectus”)) with the Securities and Exchange Commission for the offering of Units representing pro rata beneficial interests in the collective investment funds established under the investment fiduciary services? Collective Trust. The Collective Trust is a retirement program sponsored by the ABA Retirement Funds in which lawyers and law firms who are members or associates of the American Bar Association, most state and local bar associations and their employees and employees of certain organizations related to the practice of law are eligible to participate. Copies of the Prospectus may be obtained by calling (866) 812-1510, by visiting the website of the ABA Retirement Funds Is your firm’s 401(k) subject to quarterly Program at www.abaretirement.com or by writing to ABA Retirement Funds, P.O. Box 5142, Boston, MA 02206-5142. This communication shall not constitute an offer to sell or the solicitation of an offer to buy, or a request of the recipient to reviews by an independent board of directors? indicate an interest in, Units of the Collective Trust, and is not a recommendation with respect to any of the collective investment funds established under the Collective Trust. Nor shall there be any sale of the Units of the Collective Trust in any state or other jurisdiction in which such offer, solicitation or sale would be unlawful prior to the registration or qualification under the securities laws of any such state or other jurisdiction. The Program is available through the Please visit the ABA Retirement Funds Booth at the upcoming Louisiana State Louisiana State Bar Association as a member benefit. However, this does not constitute an offer to purchase, and is in no way a recommendation with respect to, any security that is available through the Program. Bar Association for a free cost comparison and plan evaluation. C12-0201-010 (2/12) June 2-7, 2013 • Sandestin Golf and Beach Resort, Destin, FL

Louisiana Bar Journal Vol. 60, No. 6 455 Ipse Dixit

By Edward J. Walters, Jr. Looking Back . . . Looking Forward Gene Thibodeaux’s excellent article in this plan? What did they have to do in order his is my issue — “The Louisiana Supreme Court to be successful? Get rid of the lawyers. and Civil Rights: A Fickle Courtship” — Why? They had to eliminate the defend- last “Ipse shows the struggle at the Supreme Court ers of the system to accomplish anarchy. for civil rights. We were there as well and Who in our society continues to stand Dixit” social change would not have occurred but up and fight to protect and preserve the for the hard work of the lawyers. basic rights and freedoms we as Ameri­ column And the struggle continues. As I write cans fought and died for . . . and still die for the Louisiana Bar this article, I am watching two lawyers — for? It’s us — the lawyers. T David Boies and Ted Olson — holding a As you read about the 200-year history post-argument press conference outside of our Louisiana Supreme Court, remind Journal. I have enjoyed of the United States Supreme Court. In yourself that it is our history as well. my tenure here and I the 2000 election — no matter who you thought should have won — who were the In This Issue… am happy to pass the people charged with the peaceful transi- Among the feature articles in this issue tion of power for the greatest democracy celebrating the Supreme Court’s 200th reins over to Barry known to man? The lawyers. Who else anniversary: could we entrust with our constitutional ► An introduction by Louisiana Su- Grodsky. I know he democracy? Today we see these same preme Court Associate Justice Greg G. two adversaries, who argued opposite Guidry, who served as chair of the Court’s will do an excellent job sides in Bush v. Gore, teaming up to Bicentennial Committee. advocate that an equal right to marry is ► A history of the Louisiana Supreme as editor. basic to American liberty and that a ban Court by Dr. Warren M. Billings. on same-sex marriage should be struck ► “History of the Louisiana Bar: down as unjust discrimination against In this issue, we commemorate and Kingfish’s Legacy?” by E. Phelps Gay. gays and lesbians. applaud the 200th anniversary of our ► “François-Xavier Martin Revisited: The Court will decide the case, but it Louisiana Supreme Court. Louisiana Views on Codification, Juris- would never have gotten there without As we take this long look back, we prudence, Legal Education and Practice” the lawyers. However you feel the case see all of the struggles that faced the by Prof. Olivier Moréteau. should be decided, we should never lose Louisiana Supreme Court. The focus, ► “Judicial Review in Louisiana: A sight of OUR importance to OUR system of course, is on the cases that the Court Bicentennial Minute Entry” by Prof. Paul of justice. decided. But, let’s not forget, standing R. Baier and Georgia Chadwick. Yes, we are easy targets. Lawyer jokes before that Court presenting these cases ► “The Louisiana Supreme Court abound. We even tell them ourselves. But were the lawyers — us. We have reason and Civil Rights: A Fickle Courtship” by what do we do when we hear someone to be proud of our contribution as attor- Chief Judge Ulysses Gene Thibodeaux. say, “The first thing we do, let’s kill all the neys to the public good. Included in this ► An article on the Court’s March 1 lawyers”? In Shakespeare’s King Henry 200-year history of our Supreme Court Bicentennial Ceremony by Miriam Childs VI, two anarchists wanted to destroy the is the honorable and noble history of the with the Law Library of Louisiana. government and take over. What was their Louisiana legal profession. Judge Ulysses

456 April / May 2013 It’s Time to Book a Listing in One price gets ‘Who’s Who in ADR 2013’ you in the print directory and The print version of the directory for arbitrators and mediators will be mailed with the on the Web! October/November 2013 Louisiana Bar Journal. View the 2012 For the one low price of $125, your listing is first published in the print directory, then the directory is uploaded to the LSBA Web site in interactive PDF format directory at (e-mail addresses and Web site URLs are activated and instantly accessible). www.lsba.org/ADR The Web version of the directory remains active for one full year!

The special Arbitrators and Mediators Directory will feature brief articles and photographs of arbitrators and mediators (INDIVIDUALS ONLY). The articles should be 150 words MAXIMUM. Provide your address, phone, fax, e-mail address and Web site infor- mation at the end of the listing (not part of the word count). Submit either original photos or digital photos. Digital photos should be submitted separately from the article, in either .tif, .jpg or .eps format (the order of preference). DO NOT submit digital photographs embedded in word processing pro- grams; send the photograph as a separate file. High-resolution digital photos work best (at least 300 DPI/dots per inch).

Deadline is July 31 for all listings and photos! Directory/Web Combo price is $125.

Articles and photographs must be for individuals only. No group articles or group photographs will be used. But, as an ADDED BONUS, firms which have three or more arbitrators/mediators purchasing individual listings will receive a free firm listing in the section. (Firms are responsible for submitting the additional information, 150 words maximum.) If you would like to repeat a prior listing and photo, you may send us a photocopy of that listing along with your check; please provide the year the listing appeared. (Digital photos appearing in ADR directories are archived back to 2000.) It’s easy to reserve space in the directory! • E-mail your listing and photo to Publications Coordinator Darlene M. LaBranche (e-mail: [email protected]). Then mail your check for $125 (payable to Louisiana State Bar Association) to: Publications Coordinator Darlene M. LaBranche, 601 St. Charles Ave., New Orleans, La. 70130. • Or, mail your listing, photo, disk and check to the above address. For more information, contact Darlene M. LaBranche (504)619-0112 or (800)421-5722, ext. 112.

Louisiana Bar Journal Vol. 60, No. 6 457 President’s message

By John H. Musser IV Hearing Voices . . . Access to Justice

voices, but also to hear and, hopefully, defender offices have had to lay off s I con- understand the voices of others. If we attorneys and cut other expenditures clude my can learn to hear all the voices around us, in order to keep serving every client we will be in a better position to ensure appointed to their office. Despite the term as a vibrant and informed profession that is $10 fee increase last year, local revenues able to more successfully respond to the are not up as projected, once again your presi- needs of our clients and our community. demonstrating that until Louisiana dent, my thoughts turn It is a form of self-awakening to realize addresses its mechanism for funding A this and make the effort to truly “hear!” public defense, the state will never be able This leads me to a second point, which to leave crisis-mode in favor of delivering to areas of our profes- is our responsibility to ensure equal access the effective assistance of counsel that the sion where we might to justice for all of our fellow citizens. Constitution requires. When we recite the Pledge of Allegiance Likewise, access to justice in the continue to work to- to our flag, we conclude with the phrase, civil arena continues to be underfunded, “with liberty and justice for all.” Do we despite the fact that economic studies have gether to strengthen really mean it? Are we, as the profession, repeatedly shown an economic benefit charged with the protection of our system over two times the cost for providing help our justice system, of justice, doing all that we can to make to indigents. Louisiana is one of only four this pledge a reality? Are we hearing the states which provides no appropriation which is the true foun- voices of those who are most affected by nor dedicates a statewide court fee or dation of our country this problem? fine to its Legal Services Programs. At Those words are vital for they embody the same time, our federal government as we know it. the concept on which our whole justice continues to cut back the amount of system is founded. We say that we believe funding it will provide. Only one other As we are growing up, we are sensitized that all our citizens, or even residents, are state (West Virginia) and the District to only hear certain voices . . . generally entitled to be treated fairly and equally . . . of Columbia will experience greater ones that sound the most like our own. no matter what their station in life happens percentage reductions in federal funding We don’t usually realize this is happening, to be. This concept is sorely challenged than Louisiana. In some areas of the state, but it does, and it occurs across all parts when we reduce our system’s ability to it is projected that federal LSC funding of our society. Rich, poor, black, white, provide even minimal representation to could be reduced by as much as 40 percent brown, geographically different . . . each the poor and underprivileged of our state. in the next couple of years. While the has its own voice which is peculiar to its Funding for criminal defense is at a Louisiana Bar Foundation has struggled own segment. Perhaps the real problem is critical point. Last year, the state public to strengthen IOLTA funding, decreasing we don’t understand we are not “hearing” defender board received less than 80 interest rates have meant reductions in these different voices. We all say that we percent of its annual budget request and, yet another source of revenue for Legal are paying attention, listening carefully, despite a $10 special fee increase, there Services programs. but the truth of the matter is that we are aren’t enough local dollars to close the We must, therefore, as a profession, filtering these “other” voices through our budget gap. In most districts across the continue to work and even demand own. Our personal challenge is to learn state, caseloads are climbing as public adequate funding for all segments of our to listen carefully not only to our own

458 April / May 2013 justice system — our courts, our probation and the profession as we serve our clients. need in such a way that our Pledge of officers, our police, our juvenile justice Our solos are our base and they should be Allegiance is truly meant . . . “with liberty system, our prosecutors and those who proud of their day-to-day contributions to and justice for all!” defend the poorest of our citizens. the daily operation of our justice system. As many good things often do, my time In addition to our responsibilities We can meet this goal of both improving with you has come to an end. You have to our communities, we also have a our profession and our justice system if been foremost in my thoughts this year, and responsibility to continue to find ways to we but try. Our strength is in our numbers, will always be. My thanks also go to your strengthen our profession and to make it and that we move forward together. Let us outstanding Board of Governors, Sections relevant to each member in this new and do so now, arm in arm, to jointly lift each and Committees. Special thanks to Loretta demanding century. other and our communities. Individually, Larsen and the Bar Center staff . . . Looking inwardly for a moment, I call we can do little; collectively, we can do they are remarkable in all that they take your attention to two professional areas much. We should do this, not only for on and do in such a superb and efficient in need of development. Technological ourselves, but for those we serve, our manner. Most of all, my thanks to a very issues continue to intrude on our time- clients. understanding wife! Thank you for the honored ways of practicing law. There is As I started this column, so let me end privilege of serving you, and thanks for a tendency among older lawyers to take it by stressing our urgent need to hear all the memories. the attitude that we can just ignore this the voices in our state and country and and continue to practice as we always to address the unmet needs of our poor have. That is no longer a luxury available and underprivileged. They have no voice to us. We must stay current, not just with but ours. Let us all call on our state and the law, but with technology. national political leaders to meet this We are now at the point where we are encountering legal malpractice problems for a lapse in judgment or knowledge ro ono eroes: roviding Justice for All of technology and how it relates to our P B H P representation of a particular client. Are we up-to-date? Do we have proper My pro bono work with Louisiana safeguards for our work? We are past the point of “I don’t have to do this if I Appleseed allows me to focus on don’t want to.” We need to stay current and take advantage of Bar programs to something I’m passionate about, make help us do so. The other professional area relates connections in the legal, civic and business to young lawyers. With a scarcity of legal jobs available, more and more communities and use my legal training to young attorneys are being forced out into the workplace as solo practitioners. advocate for food-insecure children on a Unfortunately, our current forms of legal education do not prepare them for this systemic level. I feel fulfilled at the end of the day undertaking. As a result, there is a need to revisit how we train students to be lawyers. knowing the work I have done As a corollary, we need a more aggressive approach to mentoring, particularly in the will hopefully help thousands of first year of law practice. To address this, your Bar is, having received Supreme Louisiana’s children. Court approval, embarking on three pilot programs to address this need. This is a multi-year endeavor, but one that is critical for the absorption of our younger members – Allison Berger Tiller as they transition from student to lawyer. The Berger Company, Inc. and volunteer with Louisiana Appleseed What more can I say? We are in this New Orleans, LA together as a profession, and collectively we are the backbone of our country. We ustice F Pro ding J or A need each other and our country needs us. vi ll We are a noble profession and we should Access to Justice Louisiana State Bar Association aspire to continue to improve ourselves www.lsba.org/ATJ

Louisiana Bar Journal Vol. 60, No. 6 459 (Top) Justices of the 2013 Louisiana Supreme Court during the bicenten- nial ceremonies. From left, Justice Marcus R. Clark, Justice John L. Weimer, Justice Jeffrey P. Victory, Chief Justice Bernette Joshua John- son, Justice Jeannette Theriot Knoll, Justice Greg G. Guidry and Justice Jefferson D. Hughes. Photo provided by the Louisiana Supreme Court. Justices of the 1913 Louisiana Su- preme Court during the centennial ceremonies. From left, Justice Alfred D. Land, Justice Frank A. Monroe, Chief Justice Joseph A. Breaux, Jus- tice Olivier O. Provosty and Justice Walter B. Sommerville. Photo pro- vided by the Louisiana Supreme Court. 460 April / May 2013 Louisiana Supremeth Court

By Louisiana Supreme Court Associate Justice Greg G. Guidry MarksChair, Louisiana200 Supreme AnniversaryCourt Bicentennial Committee

he Louisiana Supreme Court turned 200 years old on March 1, 2013. The Court is excited to have reached this milestone and is pleased to be able to Tshare the commemoration with the Bar and the public. This issue of the Louisiana Bar Journal features articles discussing various aspects of the Court’s richly textured history.

Dr. Warren M. Billings, Bicentennial retrospective of the career of François- Court of Appeal reviews the Louisiana Court historian and University of New Xavier Martin. Martin was the Court’s Supreme Court’s record on civil rights. Orleans Distinguished Professor of first reporter and an early presiding judge. Also included throughout the feature History, Emeritus, provides an overview Moréteau’s article focuses on Martin’s section are historical photos and documents of the Court’s 200-year history, from its views about codification, jurisprudence, and photos from the March 1 Bicentennial formation to the present. legal education and practice in Louisiana. ceremonies. E. Phelps Gay, an attorney with the Paul R. Baier, the George M. Armstrong, It is the sincere hope of the justices of the New Orleans law firm of Christovich & Jr. Professor of Law at Louisiana State Louisiana Supreme Court that readers will Kearney, L.L.P., and former president of the University Paul M. Hebert Law Center, enjoy these articles, and, more importantly, Louisiana State Bar Association, discusses and Georgia Chadwick, director of the learn something new about the Court’s the not-so-straightforward history of Law Library of Louisiana, cover the topic history. The Bicentennial is not only a professional bar associations in Louisiana. of judicial review in Louisiana, examining milestone to be proud of but also a time to Professor Olivier Moréteau, the Russell a provision of Louisiana’s first Constitution humbly remember those who devoted their B. Long Eminent Scholars Academic that has heretofore received little attention. lives to the improvement of Louisiana’s Chair at Louisiana State University Finally, Chief Judge Ulysses Gene justice system. Paul M. Hebert Law Center, provides a Thibodeaux of the Louisiana 3rd Circuit

Louisiana Bar Journal Vol. 60, No. 6 461 The Supreme Court of Louisiana at 200

This 1901 photograph of the Louisiana Supreme Court’s courtroom at the Cabildo, where the Court sat from 1853-1910, reveals the first known look at the Court’s portrait collection of justices, jurists and other distinguished members of bench and bar. When the Court moved to the 400 Royal Street location, the portraits followed, and are now displayed along the building’s hallways. Image courtesy of the Collections of the Louisiana State Museum.

By Dr. Warren M. Billings

ounded in 1813, the Supreme Court of Louisiana has fashioned and ornamented state law ever since. Its 200th anniversary bids revisiting how Fit hammered out a regime quite distinct from those in other states and yet very much a part of the federal system that is the American legal order. This essay is such a recollection.

462 April / May 2013 In its original guise, the Court barely tions of Louisiana’s legal system. Initially, sion, the Louisiana equivalent of resembled the one familiar to us. Conceived the Court designed rules for bar admissions, Marbury v. Madison, strengthened as part of an American-style judiciary, it got which qualified newcomers as well as law- the Court with an Anglo-American written into the Constitution of 1812 as a yers who practiced before Louisiana was a tincture, and it guaranteed that the political necessity that assured Louisiana’s state.6 Its subsequent regulations established blending of American, British, French, admission to the Union. None of its architects standards of legal education that lasted until Roman and Spanish law would continue. quite grasped its purposes or its possibili- the 1920s.7 Early on, the judges also nar- That Mathews and Martin wielded such ties. Some perceived it as a threat to their rowed their jurisdiction by deciding they sway says as much about their longevity as legal ways, which sprang from the laws of lacked constitutional warrants to receive their outlook. Younger colleagues — most Spain and France, whereas others saw it as cases from the defunct territorial Superior notably Alexander Porter, Henry Adams a likely device for melding those traditions Court or to hear Bullard, George with American law into a serviceable sys- criminal appeals.8 Strawbridge and tem for the new state. This lack of common Similar questions George Eustis — understanding resulted in the sparest of of jurisdiction held similar views, frameworks for the high court in the new touched the great- but their time on Constitution.1 Up to five judges composed er matter of mix- the high bench that court. As gubernatorial appointees, ing American and was far shorter they kept their seats for life but could be civilian legal pre- and therefore less impeached. Their jurisdiction extended to cepts into a steady, influential than it civil disputes that exceeded $300, and they reliable legal or- otherwise might rode circuit throughout two statewide ap- der. Mathews have been. pellate districts. and Martin, both Architectural Model of the Poor health The Judiciary Act of 1813 added flesh trained American Government House of the French dogged Mathews, to these bones, but only just. It set the size lawyers, likened Colony of Louisiana Martin went blind, of the bench at three judges, any two of civil and common Thompson & Foster, c. 1933 and both stubborn- whom made a quorum. It specified being law to comple- ly resisted efforts “learned in the law” as the sole criterion for mentary facets of The Government House of the French to improve the office and assigned the judges precedence the same legal Colony of Louisiana, home of the French Court’s efficiency. according to the dates of their commissions. gemstone instead Superior Council, was built in 1761 By the 1840s, a Finally, it invested the Court with rulemaking of rivals. For that at Toulouse and Decatur Streets in the combination of authority and power over the lower courts reason, they ac- French Quarter, about 200 feet from the a mountainous and the bar. So long as the judges did not knowledged civil- Mississippi River. After statehood, the backlog of unre- stray beyond these limits, they were free to ian tenets as the Government House was occupied by the solved appeals, 2 conduct themselves as they saw fit. pith of private law Louisiana Legislature and then became the pressure to take With little fanfare, the Court sat for the in Louisiana but Louisiana State Capitol until it burned in criminal appeals, first time on March 1, 1813, at Government looked to other 1828. This model was built by Thompson and a scandal 3 House in New Orleans. Two of its newly sources as well. and Foster in the Louisiana State Museum involving Judge minted judges, Dominick Augustin Hall Moreover, studio in 1933 and aids in preserving the Rice Garland con- and George Mathews, showed up. After a both prided an history of the French Superior Council, the tributed mightily public reading of their commissions from independent ju- first governing body of Louisiana. The first to a statewide out- Gov. William C.C. Claiborne and swear- diciary, so they sitting of the Louisiana Supreme Court was cry that spawned ing the oath of office, they adjourned. The resisted being ex- at Government House on March 1, 1813. the Constitution third judge, Pierre Augustin Bourguignon clusively bound of 1845 and a re- 4 5 Image courtesy of the Collections of the Louisiana Derbigny, joined them a week later. Hall, by by the Civil Code State Museum. formed Supreme virtue of being commissioned first, became of 1825. They Court. Gone was presiding judge. He resigned before the went so far as to the old one, re- year was out, whereupon Mathews became ignore post-1825 repealing statutes that placed by a chief justice and three associ- president and stayed until he died in 1836. invalidated all foreign law in force at the ate justices who served eight-year terms. Derbigny left in 1820 for an unsuccessful time of the Purchase, the Digest of 1808, These justices still rode circuit and retained bid for governor, by which time François- and every territorial or state act that had been supervisory powers, but their jurisdiction Xavier Martin had joined the Court. Martin revised by the Civil Code, which clouded extended to both civil and criminal appeals. remained for 31 years and took the center an already muddled situation. Martin finally George Eustis returned to the Court as its first seat after Mathews’s death. clarified the muddle in 1839 when, in the case chief justice. He oversaw the clearing of the The Court went about adjudicating a of Reynolds v. Swain,9 he asserted the Court’s caseload and instituted a thorough reorga- swelling volume of business that grew after right to say what was law in Louisiana, nization of procedures. The Constitution of 1813, and, as it did, it formed the founda- and who ultimately declared it. His deci- 1852 included no substantive jurisdictional

Louisiana Bar Journal Vol. 60, No. 6 463 changes; however, it reduced unlim- galvanized a lengthy campaign to build the efforts at modernization met with his studied ited oral arguments to a total of four Court a permanent home that culminated in resistance, especially after he presided at the hours, it erected an elective judiciary, 1910 with the opening of the massive Beaux impeachment trial of Gov. Huey P. Long in it raised the number of justices from four Arts-style courthouse at 400 Royal Street in 1929. O’Niell devoutly loathed everything to five, and it lengthened their terms from the heart of the French Quarter.14 about the Kingfish, so he regarded modern- eight years to 10.10 Three years later, the Court celebrated its ization as little more than a lightly veiled Civil war and its aftermath wrought a centennial. Speakers — some brief, some attack upon him. He was not wholly wrong Supreme Court of a different sort. After New not — treated an enthusiastic audience to given that modernization’s most persistent Orleans fell to Union troops in April 1862, addresses that touched upon aspects of the advocate was fellow Justice John B. Fournet, Chief Justice Edwin T. Merrick decamped Court’s first 100 a ferocious Long for Opelousas and then to Shreveport, but years. In response, partisan who went the Confederate court did little business that Chief Justice to the Court after we know of. It lost its archives to federal Joseph A. Breaux his highly contro- soldiers who carted them off to Washington, exclaimed that, in versial election in D.C., where they remained in the custody of Louisiana, “two 1934.16 the War Department until the 1880s.11 The systems of law, Fournet made return of white home rule, the coming of civil and common, little headway so Jim Crow, and more structural modifications were blended.” As long as O’Niell characterized the Supreme Court of the post- a result, he contin- stayed, but he Reconstruction years. Constitutional revi- ued, “the labors of did persuade sions in 1864 and 1868 abolished slavery and the bench and bar The Cabildo, where the Court sat from 1853- the Legislature promised civil rights for black Louisianans. of that period are 1910. Provided by Russell Desmond, Arcadian in 1938 to fund Books & Prints. The Court, led by its first native-born Chief still felt. Although the hiring of law Justice John T. Ludeling, re-bounded its a century has clerks as a means jurisprudence accordingly. Not everyone passed, during all of speeding up greeted its alterations kindly, most certainly these years, these the production of not white attorneys who fiercely abominated united systems opinions, and that Ludeling’s rulings on “racial and public of laws, civil and was a first for the questions,” even though the Court’s opinions common, have Court. Behind the encouraged rising racial animosities.12 After come down to us scenes, Fournet 1877, the Court usually sided with white with the impress actively worked supremacists in the Legislature, most notably placed upon them The Louisiana Supreme Court at 400 Royal St., with Gov. Earl where the Court sat from 1910-1958 and 2004 to when it validated the doctrine of “separate in the early years present day. Provided by Law Library of Louisiana. K. Long to pass a but equal” treatment of black Louisianans, of the century.”15 statute requiring a rule that became the law of the land after After 1913, judges to retire at 1896 when it received the imprimatur of Breaux’s successors faced the challenge of age 75, allowing him to succeed O’Niell the Supreme Court of the United States in fitting his “united system of laws” to suit in 1949.17 As chief, he relied upon the jus- Plessy v. Ferguson.13 the consequences of tumultuous changes in tices’ rulemaking power and deft political A new Constitution, promulgated in the economy, politics and the social fabric maneuvering to revolutionize the Court’s 1879, recreated an appointive court, with that epitomized 20th-century Louisiana. relationship to the judiciary as a whole. In the governor naming the chief and picking Three chief justices — Charles A. O’Niell, the 1950s, he invented the Judicial Council all five justices from four judicial districts. John B. Fournet and Pascal F. Calogero, and created a judicial administrator whose (Two seats went to Orleans and its surround- Jr. — stand out because their combined staff supplied him with detailed data on ing parishes.) Then, too, the Constitution tenure amounted to two-thirds of a century the courts that he used when he lobbied eased the Court’s caseload by adding two of service. Incumbent for 27 years, O’Niell the Legislature to streamline the appellate intermediate benches to hear civil appeals arguably presided over the most partisan system and to add more judgeships in the involving less than $2,000. Provisions in Court before or since. He earned plaudits for lower courts. Tidying up the Supreme Court the Constitution of 1898 retained the ap- the incisive beauty of his opinions but had docket, he also secured appropriations for a pointive judiciary but dictated that the office little taste for court reform, calls for which new courthouse that sat at 301 Loyola Ave. of chief justice would henceforth be based had grown louder by the 1920s. His hostility in New Orleans. Consequently, when he left on seniority of service. (A 1904 constitu- kept a top-to-bottom reorganization of the in 1970, “the Court” signified more than tional amendment also restored the right of entire judiciary out of the Constitution of justices who ruled on cases. By his hand, electing the Court to the voters.) Two other 1921, though he did agree to increasing the the bench turned into a potent entity and modifications relieved the justices from rid- size of the Court to seven in the expectation collection of related agencies that supervised ing circuit and designated New Orleans as that more justices equated with greater ef- every phase of the entire judicial branch and the Court’s sole seat. The latter stipulation ficiency, which proved a vain hope. Later made the chief justice the system’s premier

464 April / May 2013 administrative traffic cop. Put another way, joined the Court in 1997, so the bench then 3. Located at Toulouse and Levee Fournet convinced lawyers, legislators and consisted of three women and four men. Streets, Government House was the first state capitol building. It housed the Office voters that better administration at every When Justice Kimball succeeded Calogero of the Governor, the Legislature and the level resulted in the speedier, more honest in 2009, she became the first female chief Supreme Court but was abandoned in 1827 for more and equitable dispensation of justice, while justice of Louisiana; she retired in January commodious accommodations. infusing the Court with a marked willingness 2013. Justice Bernette Joshua Johnson was 4. Because the state Senate and Gov. Claiborne were at odds over Derbigny’s nomination, the to experiment with new ways of improving sworn in as the new chief justice on Feb. 1, senators held up his confirmation until March 8. its expanded responsibilities. 2013, becoming the Court’s first African- 5. Sybil A. Boudreaux, ed., The First Minute That penchant for experimentation American chief justice. Book of the Supreme Court of the State of Louisiana, gained national In 1813, no 1813 to May 1818: An Annotated Edition, 13-15 and 20-21. (1983) (unpublished M.A. thesis, University recognition for the one knew what of New Orleans) (on file with the Law Library of Court, and innova- the future of the Louisiana). tion was common- Supreme Court 6. The Historic Rules of the Supreme Court of place throughout held. For certain, Louisiana, 1813-1879, at 1-2 (Warren M. Billings, ed., 1985). the 1970s and no one could have 7. Warren M. Billings and Mark F. Fernandez, 1980s. No one imagined how, A Law Unto Itself?: Essays in the New Louisiana among the justices from that day to Legal History, 25-40 (2001); Warren M. Billings, thought it should this, its jurists Magistrates and Pioneers: Essays in the History of American Law, 301-303 (2011). be otherwise be- would stamp deep 8. Bermudez v. Ibanez, 3 Mart. (o.s.) 2 (1813); cause as one noted, impressions upon Laverty v. Duplessis, 3 Mart. (o.s.) 52 (1813). “[Our] system of the law and make 9. Reynolds v. Swain, 13 La. 193 (1839). justice is never the Court into the 10. Mark F. Fernandez, From Chaos to Continuity: The Evolutions of Louisiana’s Judicial finished. It must The Presbytere, where the Court sat from 1822- linchpin of the System, 1712-1862, at 89-109 (2001). be conditioned and 1853. Provided by Library of Congress. judicial branch. At 11. All the captured records bear a War improved.” Chief most, they likely Department identification mark stamped in blue ink. Justice Calogero expected an in- Edward Douglass White, who served on the Court from 1879-80, secured their return. clearly shared this stitution they did 12. Henry Plauché Dart, “The History of the view.18 not understand Supreme Court of Louisiana,” 133 La. liii (1913). Calogero, who completely to 13. Ex Parte Plessy, 45 La. Ann. 80 (1892); came to the Court forge a workable Plessy v. Ferguson, 163 U.S. 537 (1896). 14. Carol D. Billings and Janice K. Shull, The in 1973, moved The Louisiana Supreme Court at 301 Loyola Ave., legal system. By Louisiana Supreme Court: An Historical Guide, 10- to the center chair where the Court sat from 1958-2004. Provided by twists and turns, 12 (2004). 17 years later and State Library of Louisiana. hope translated 15. The text of Breaux’s remarks forms part of gave it up in 2008. into reality over the entire record of the ceremonies that appears in Volume 133 of the Louisiana Reports. A committed reformer, the course of two cen- 16. Billings supra note 7, at 371-99. As I learned as chief he oversaw creation of the Louisiana turies. In the words of Chief Justice Kimball, when I interviewed him in the 1970s, the advance Indigent Defender Board, regular strategic “[The] work of the Court to make our vision of years did absolutely nothing to change his mind. planning across the judiciary, reforms to of an efficient, fair, and timely judiciary a 17. John B. Fournet, “The Reorganization of the 19 Louisiana Judicial System,” 17 Sw. L.J. at 78-85 the juvenile court system, and a community reality” continues. (1963). relations department, among other improve- 18. Joe B. Sanders quoted in Billings and Shull, ments. His most visible accomplishment This article is excerpted from a longer version supra note 14, at 78. published in conjunction with the Court’s was bringing off the renovation of the 19. C.J. Catherine D. Kimball, “Message from celebration of its bicentennial in March 2013. the Chief Justice,” Ann. Rep. Jud. Council Sup. Ct. Royal Street courthouse that allowed the The author thanks Justice Greg G. Guidry for La. 1 (2011). Court and its departments to return to their encouraging him to write the article. For their assistance, thanks are due to the Court’s law former home in 2004. There were dramatic Dr. Warren M. Billings, librarians Georgia Chadwick, Miriam D. Childs, Bicentennial Court changes in the composition of the Court on Tara C. Lombardi, Marie Erickson and Katherine Historian of the Louisiana his watch as well. B. Nachod; to the library’s summer intern and Supreme Court, was Tulane law student Emily Wojna; and to Sybil A. In 1992, the Court got its first female also historian of the Boudreaux and Florence M. Jumonville, librarians member after voters elected Catherine D. Louisiana Supreme Court at the Department of Louisiana and Special from 1982-2005. He is Kimball to a seat. The next year, as a result Collections at the University of New Orleans. of a federal consent decree, the late Revius Distinguished Professor of History Emeritus at the O. Ortique, Jr. became the first African- FOOTNOTES University of New Orleans American justice, and, upon his retirement, and Visiting Professor Justice Bernette Joshua Johnson became 1. In Search of Fundamental Law: Louisiana’s of Law at the College of Constitutions, 1814-1974, at 6-21 and 155-58 the first African-American woman to be William and Mary Law School in Williamsburg, VA. (Warren M. Billings and Edward F. Hass, eds., 1993). (12 Swallow St., New Orleans, LA 70124) elected. Justice Jeannette Theriot Knoll 2. 1812 La. Acts 2nd session 18.

Louisiana Bar Journal Vol. 60, No. 6 465 History of the Louisiana Bar:

Kingfish’s Huey P. Long. Portrait File, Louisiana Research Collection, Tulane University. Used with permission. Legacy?By E. Phelps Gay dmission to the bar, codes of profes- sional conduct, continuing education, discipline, court rules, client protec- tion, pro bono service, laws affect- ingA the administration of justice, communication and collegiality among members of the bar and the judiciary — all important issues facing the legal profession. Yet a look back through the history of the Louisiana Bar reveals the not-so- surprising fact that they have always been with us.

466 April / May 2013 ed in 1878 in Saratoga, N.Y., by Connecticut attorney Simeon E. From one perspective, I suppose this Baldwin and 74 other lawyers, the means these problems have never been ABA encouraged the “translation of “solved;” from another, it suggests they state and local bar associations from social will (and should) always remain matters of clubs into bodies that lobbied Congress, concern to those who care about the legal state legislatures, and courts in behalf of profession and the public we serve. Verily, lawyers’ vocational interests.” It sought there is nothing new under the sun. “to set universal standards for admission So how did it all start? to the bar, legal education, the ethics of As far as the Louisiana State Bar As- practice, and law reform.”6 Under this vi- sociation (LSBA) is concerned, on July sion, legal education would be modern- 9, 1940, Gov. Sam Houston Jones signed ized into a “science,” and a degree from a law that “memorialized” the Supreme a university-based law school would be- Court of Louisiana “to create an Associa- come a prerequisite for practicing law, as tion to be known as the Louisiana State the country moved from an agrarian to an Bar Association, which Association shall industrial economy.7 Here it may be worth be self-governing and may be organized remembering that, during the 19th cen- as a corporation upon complying with the tury, many of our best lawyers and judges, general corporation laws of this state.”1 like John Marshall, Daniel Webster and The Supreme Court thereafter created Program from 1899 Louisiana Bar Associa- Abraham Lincoln, either didn’t finish or an advisory committee to help organize tion Annual Dinner. New York Public Library. never went to law school. the LSBA. Chaired by Shreveport’s Pike http://menus.nypl.org/menus/21559/explore By the late 19th century, the old New Hall, who has a fair claim to be called the Orleans Law Association had fallen on Father of the Modern Bar, the committee “habitually sought the advice of associa- hard times. As prominent lawyers like submitted proposed Articles of Incorpo- tion members in setting standards for le- Henry Plauché Dart, Thomas Jenkins ration in February 1941. On March 12, gal education or in devising proce- Semmes and William Wirt Howe 1941, the Court issued an Order formally dural rules.” Certain members joined the ABA (Semmes and creating the Louisiana State Bar Associa- of this voluntary association Howe served as ABA presi- tion. A week later, the Court appointed the screened prospects for the dents) and supported its Bar’s first Board of Governors.2 bar examination, admin- goals, membership in the But events occurring over the six or istered by the Court. The Law Association declined. seven years leading up to the Bar’s cre- association also “actively Its library sat in “squalid ation tell a more dramatic and colorful touted candidates for judi- quarters near the roof” of story of Louisiana history — one suitably cial office in openly parti- 4 the New Orleans court- laced with political and judicial intrigue, san ways.” house. By the time Dart inevitably starring the irrepressible Huey By all accounts, the became president of the Law Pierce Long. New Orleans Law Asso- Association, it was in need of To go way back, in 1847 several New ciation consisted of an “elite” resuscitation. With help from Orleans attorneys formed their own Law group of lawyers, including luminaries like Judah Ben- Henry Plauché Dart. Semmes and Howe, Dart re- Association. In 1855, they incorporated Provided by Louisiana Su- vamped the organization, so themselves under a statute encouraging jamin, Pierre Soulé, John R. preme Court. that it re-emerged in 1899 as private citizens to form “literary, educa- Grymes and Christian Rose- the Louisiana Bar Association tional, or charitable bodies.” Similar as- lius. It did not seek to recruit every attor- (LBA).8 sociations were springing up around the ney in New Orleans or around the state, Then as now, the bar association was country during the first half of the 19th nor did it purport to “speak for the entire located in New Orleans. Any lawyer “in century. The New Orleans group’s pur- practicing bar on any issue, political or 5 good standing” was eligible for either pose was to establish a law library and to professional.” “full” or a “library” membership, assum- “promote the interest, integrity and honor After the Civil War, lawyers across the ing that lawyer received a favorable vote of the Bar of New Orleans.”3 country began to abandon these private on his nomination. As an example of how According to historian Dr. Warren M. groups, opting instead to create bar asso- some issues never go away but simply re- Billings, this newly-formed law society ciations which would openly advocate on surface in different contexts, the corporate succeeded in accumulating a substantial issues of professional concern. This move- charter of the LBA committed the associa- library. Its members “strove diligently to ment started in New York City and spread tion to induce the authorities to “provide ingratiate themselves with the Supreme throughout the Northeast and Midwest. a proper courthouse in the city of New Court of Louisiana.” In turn, the Court Eventually, its “main engine” became the American Bar Association (ABA). Found- Orleans.”9

Louisiana Bar Journal Vol. 60, No. 6 467 Tracking ABA goals, the LBA empowered, statewide entity to which Into the breach stepped Sen. Huey charter included a code of eth- every attorney must belong. In Louisi- P. Long, who, as we know, did not stop ics.10 It also called upon lawyers to ana, the issue came up during the Bar’s running things in Louisiana merely be- improve legal education, raise admission Annual Meeting in 1929. Although cause he now held forth in the halls requirements, and assist in the trial and certain bar leaders like Walker of Congress. Bent on stopping punishment of misbehaving lawyers.11 B. Spencer supported it, on Porter’s ascension to the high In 1929 , the LBA changed its name to the whole, the LBA was court, Huey wasted no time. the Louisiana State Bar Association to “slow to heed the call.”16 He asked his supporters on “emphasize the state-wide character of We turn now to the the 3rd District Executive the Association.”12 summer of 1934. Win- Committee to solicit an Dart “perceived the LBA code of ston Overton of Lake opinion from Attorney ethics as applying to all Louisiana law- Charles, associate justice General Gaston L. Porte- yers,” even non-members of the LBA. of the Louisiana Supreme rie on the validity of Por- Although not legislatively authorized, Court and older brother of ter’s election. Porterie, it Dart persuaded the Louisiana Supreme U.S. Sen. John Overton, should be noted, had been Court, pursuant to its rule-making au- was “locked in a strenuous expelled from the LSBA a thority, to grant power to the LBA to bid to hold his seat and to year earlier on grounds that discipline attorneys who failed to meet keep Senator Huey P. Long Winston Overton. Provid- he had improperly supplanted 13 ed by Louisiana Supreme the code’s standards. Thus, a voluntary master of the Louisiana Su- Court. Orleans Parish District Attor- Bar Association asserted control over preme Court.”17 Overton’s ney Eugene Stanley in order to the entire bar. The LBA board of ex- opponent was Thomas F. prevent prosecution of certain aminers could determine who would or Porter, Jr., a Yale Law School Long supporters charged with would not become a lawyer. During the graduate, respected judge election fraud.20 Thus, there 1920s, the Bar’s Committee on Legal on the 14th Judicial Dis- was no love lost between Education suggested to the high court trict Court, and no friend Attorney General Porterie that a law school diploma should be re- of the Kingfish. Porter and the LSBA. quired for admission to practice, a view considered Long a dan- Upon due consider- unsurprisingly endorsed by the deans of gerous dictator. The ill ation, Porterie concluded Tulane and LSU law schools.14 feeling was apparently that because Winston Supported in part by the LBA, the mutual, Long having once Overton had died only 36 Beaux Arts court building at 400 Royal said of Porter: “If I owned hours before voters went to St. in New Orleans opened for business a whorehouse, I wouldn’t let the polls, the election was in 1910. Inside, space was reserved for him pimp for me.”18 invalid. A new election had the LBA and its valuable law library, Things began to go awry Thomas F. Porter, Jr. to be held. This opinion con- Provided by Louisiana Su- fulfilling a dream of Dart’s. Historian on Sept. 9, 1934, when the preme Court. veniently overlooked a statute Billings notes that a private organiza- 64-year-old Overton suf- providing that if a candidate tion thus obtained housing in a publicly- fered a cerebral hemorrhage died within seven days of the funded building. The LBA backed can- and died. The primary election for primary, the remaining candidate didates for judicial office and sought to associate justice went forward would win the nomination.21 exert its influence during the 1913 and as scheduled two days later, Thereafter, the Kingfish 1921 constitutional conventions. with Judge Porter winning maneuvered to replace T. As one might expect, certain Louisi- by a margin of two to Arthur Edwards as chair ana lawyers began to mistrust the LBA. one. T. Arthur Edwards, of the 3rd District Execu- Country attorneys, in particular, “sus- Executive Committee tive Committee, and, dur- pected the motives of a society whose chairman of the Demo- ing its meeting on Sept. members were overwhelmingly New cratic Party in the 3rd 15, the new chairman, a Orleanians,” and many chose not to Supreme Court District, staunch Longite, called become members.15 During this period, pronounced that Jus- upon Attorney General the idea of an “integrated bar” began to tice Overton’s “lamented Porterie, who explained take root across the nation. Designed to death” was tantamount to a that nominating Judge Por- foster greater comity among attorneys, withdrawal or disqualifica- ter under these circumstances Gaston L. Porterie. Pro- integrated bars were heavily promoted tion, and, therefore, Judge vided by Louisiana Su- would be illegal. The commit- by the American Judicature Society, Porter would be certified at preme Court. tee voted to schedule a new which drafted a model bill. In contrast a meeting on Sept. 15 as the primary election for the as- to a voluntary group of “elites,” the inte- party’s nominee for the Louisiana Su- sociate justice position on Oct. 9. Judge grated bar would be a single, statutorily- preme Court.19 Porter, having shown up at the meeting

468 April / May 2013 to watch himself be nominated, “now re- staying further proceedings in this case come a dues-paying member. alized the trap that had been prepared for will result in depriving Judge Porter of Reflecting the Kingfish’s desire him.”22 Livid, and recognizing that in a his nomination, and of the office to which for control, it created a governing second primary election he would have he aspires, no matter how the court may board “unique in the history of legal to face Huey’s handpicked candidate, eventually decide the case on its mer- organizations.” Members of the SBL Lt. Gov. John B. Fournet, Porter jumped its.”27 board, although initially appointed by the up on a chair and protested vehemently. Sure enough, with Long’s support, governor, would thereafter be elected not Long leveled a finger at him and shouted: John B. Fournet defeated Porter in the by the lawyers residing in each congres- “You’re afraid to face the people!”23 Oct. 9 primary election.28 Attorney Gen- sional district, but by the entire voting Judge Porter decided to take his case eral Porterie then moved to dismiss Judge public!33 to court. Given the law, he thought, no Porter’s case pending in the Supreme In perhaps a special dig at LSBA lead- reasonable jurist could rule against him. Court as moot. Motion granted. Case ership, the Act provided that candidates Who were the eminent lawyers lined closed. Huey triumphs again. who ran for the SBL’s Board of Gover- up on Judge Porter’s side? They included Here is where the old voluntary LSBA nors would be required to file an affidavit U.A. Bell of Lake Charles, president of comes in. Upset about this turn of events, listing the names of any private corpora- the Louisiana State Bar Association, and on Oct. 19, 1934, eight of its members tions which had employed them during other Bar leaders like Luther E. Hall, Jo- lodged a complaint with the LSBA Ex- the preceding five years and the amount seph W. Carroll, P.G. Borron, C.F. Hardin ecutive Committee seeking to remove of money received as a result.34 Anoth- and T. Arthur Edwards.24 from association membership the three er provision directed the new SBL not On Sept. 25, despite a plea from At- Supreme Court justices — Brunot, Land to prescribe for admission to the bar “a torney General Porterie to “let the people and Higgins — who, they contended, higher general educational qualification participate and select their candidate,” had unfairly denied Judge Porter a time- than a high school course or the equiva- East Baton Rouge Parish district Judge ly hearing. Because those justices had lent thereof.”35 W. Carruth Jones ruled in favor of violated their oath of office, they Extraordinary powers were granted Porter, enjoining a second pri- were “unfit to remain members to the SBL’s board, including the power mary election. Judge Jones of this Association . . . .”29 to regulate admissions, determine stan- asked: “Is it fair to make the Although this complaint dards for legal education, promulgate man who made a campaign would be dismissed by the rules of professional conduct, and punish make it all over again with Executive Committee in lawyers who violated the rules. The law different candidates and April 1935,30 the fact that effectively (and, many observed, uncon- different issues?”25 Plain- it was filed, together with stitutionally) diminished the role of the ly not. the Bar’s earlier expulsion Louisiana Supreme Court in regulating Porterie immediately of Gaston Porterie, appar- the legal profession, and it “severed the appealed to the Louisiana ently energized the Long tie” between the court and the voluntary Supreme Court. He directed forces into taking retaliatory LSBA.36 his prayer for relief to three action against both the volun- As for spite, Williams writes that the pro-Long justices: Harney tary LSBA and the Louisiana new State Bar Act was “aimed at the F. Brunot, John R. Land and Oscar K. Allen. Photo in Supreme Court.31 state bar association for expelling Attor- Archibald T. Higgins. They public domain. On Nov. 12, 1934, Long’s ney General Porterie during his contro- promptly granted a writ of successor, Gov. Oscar K. Al- versy with Eugene Stanley.”37 Historian certiorari and suspended len, called the Legislature Billings suggests the law’s passage was Judge Jones’ ruling until a hear- into special session. Forty-four also “payback” for the LSBA Executive ing could be held. Not nec- bills were introduced, every Committee’s complaint against the three essarily unusual in a fast- one of them designed to pro-Long justices who had denied Judge moving, high-profile case, increase the power of the Porter a hearing in his election suit.38 It but there was a catch: Long organization over seems likely both factors came into play. the justices set the return its enemies. One measure, So, who became the first president of date on the writ for Nov. according to biographer T. this new Huey Long-created, integrated 26, 1934 — six weeks Harry Williams, was intro- State Bar of Louisiana? Attorney General after the primary election duced out of “pure spite.” Gaston L. Porterie. would be held on Oct. 9, It sought to create a brand Commenting on the new association, and three weeks after the new bar association, a public Porterie said it would prevent lawyers general election!26 corporation to be known as the from “one part of our State” from con- Dissenting, Chief Justice John B. Fournet. Provided State Bar of Louisiana (SBL). trolling the rest. The overall intent of 32 Charles O’Niell observed by Louisiana Supreme The State Bar Act compelled the law, according to Billings, was to “the granting of the order Court. every licensed attorney to be- “demolish” the LSBA and marginalize

Louisiana Bar Journal Vol. 60, No. 6 469 Huey Long’s opponents on the replaced by Wilkinson.42 Disciplinary selection of members of the governing Louisiana Supreme Court. As it charges came up at several meetings, board is relegated to ordinary popular happened, things did not quite play and, during one meeting, the SBL board election methods.”47 out that way. wrestled with allegations of cheating on Undeterred and unapologetic, in April Surviving records of the SBL from the bar exam. 1935, the LSBA held its annual conven- 1934 to 1940 can be found in one An- In 1938, David M. Ellison tion at the Hotel Bentley in Alexan- nual Report and in a collection of board took over as president of the dria, U.A. Bell presiding. Calling minutes maintained at the current Loui- SBL.43 The next year, he the SBL a “pseudo-organiza- siana Bar Center. The SBL held its first, was replaced by Warren tion,” former President Zach and apparently only, annual meeting at W. Comish of Pontcha- Spearing of New Orleans the Heidelberg Hotel in Baton Rouge on toula, who later served rhetorically asked whether Nov. 1-2, 1935. Hermann Moyse of the as a judge on the 21st the LSBA would submit to Baton Rouge Bar welcomed attendees Judicial District Court. “being destroyed” by the with this comment: “I sincerely feel that Minutes show that cer- new State Bar. His answer: an integrated bar, of which every prac- tain board members “No, no, a thousand times, titioner must be a member, is a blessing kept suggesting the SBL no. I would rather be dead both to the lawyers themselves and to the hold another annual meet- than say yes.”48 people of the state; for the life and hap- ing, but so far as I can tell Reporting for the LSBA piness of virtually every citizen depends this never happened. Histo- U.A. Bell. Photo provided Committee on Integrating the in part on the integrity of the bench and rian Billings characterizes by Louisiana State Bar Bar, Walker B. Spencer said its bar.” Leon O’Quin of Shreveport ob- the SBL as having largely Association archives. members had reached no con- served that “Louisiana is now with the failed to carry out its mis- clusion yet “as to the wisdom more progressive states in having a per- sion.44 or desirability of an incorporated Bar.” manent integrated Bar.” O’Quin praised Meanwhile, the voluntary But he denounced the State Bar Act the “democratization” of the bar through LSBA did not go gently into as an unconstitutional “invasion integration and the benefits to be derived that good night. Although of the right of the judiciary to from the “mass mind” of the profes- forced to remove its offic- regulate and control admis- sion.39 es and cherished library sions.” Monte M. Lemann The SBL’s first vice president, Hugh from the Royal Street of New Orleans offered a Wilkinson of New Orleans, delivered court building, it contin- resolution expressing the a eulogy for Huey Long, who had just ued to meet and to en- Association’s disapproval been assassinated. “One of his monu- joy the support of Chief of the State Bar Act. It ments,” Wilkinson said, “will be the in- Justice Charles O’Niell. passed unanimously.49 corporation of the state bar, a form of It apparently used its However, during the organization in keeping with the most ties with the ABA to pre- 1936 meeting in Monroe, advanced thought, sought after for many vent the national organiza- the tone seemed to change. years by the leaders of the profession tion from recognizing the LSBA President John D. Miller 45 John D. Miller. Photo pro- in Louisiana, and finally accomplished SBL. In December 1934, vided by Louisiana State expressed “the hope of most, if 40 about one year before his death . . . .” editors of the ABA Journal Bar Association archives. not all, of us that we will have SBL board minutes show that on frowned upon Louisiana’s in this State an integrated bar Dec. 27, 1934, membership fees were “plan to make a political body whose officers will be selected by fixed at $3 per year.41 In January 1935, out of the State Bar Board.”46 and responsible to its members.” the board decided to hold its first bar The American Judica- There was, he added, “good exam; in March, the minutes reflect ture Society also con- reason to anticipate the early that 41 applicants for admission passed, demned creation of the realization of that hope.” while 37 failed. The board established a SBL. In 1935, it noted The Committee on Integra- “disbarment committee” consisting of that “even the numerous tion of the Bar recommend- three people. Many of these meetings members of the profes- ed creation of a new self- were held either in the State Capitol or sion who favored bar governing Bar, subject to in Hugh Wilkinson’s New Orleans of- integration by statute the control of the Supreme fice, with seven to nine members attend- will be affronted by an Court, in which every law- ing. Mostly, they record routine matters, act which is designed to yer in the state should be a such as who took, passed or failed the confer bar management member. bar exam (often identifying those per- and control upon political Eugene Stanley. Photo Reports from the next two sons by name). In March 1936, Gaston leaders or factions — the provided by Louisiana State LSBA presidents, Robert E. Porterie stepped down as president, obvious intent when the Bar Association archives. Brumby of Lafayette (1936-37)

470 April / May 2013 and Monte M. Lemann of New Orleans resolution to present this bill to the Leg- members, $3 for those admit- (1937-38), suggest further movement islature, and, thereafter, the Legislature ted less than three years. Hall toward reconciliation between the two adopted Act 54 of 1940. LSBA members expected about 2,370 lawyers Bars, with widespread support for abol- then worked cooperatively with the Su- to register with the Association, of ishing election of board members by the preme Court to create the new integrated which 200 would be inactive. The Bar’s public. In 1939, LSBA President Bar.54 charter, he noted, could be amended Charles V. Porter of Baton The final meeting of the by majority vote of the state’s lawyers, Rouge, after lamenting the voluntary LSBA was held in which remains true today. Going for- Association’s troubled fi- Lake Charles on April 18, ward, Hall said, “The great learned pro- nancial condition and the 1941, Pike Hall presiding. fession of this state will express itself in need to sell off its library, Since the Court had just unison.”57 said, “There is no serious created the new LSBA, Reform Gov. Sam Houston Jones, objection to an integrated the old organization was who disapproved of the power wielded bar.” Legislative efforts to be liquidated. No doubt by the Long machine in the 1930s and to amend the State Bar reflecting the sentiments whose election no doubt contributed Act, however, had appar- of the established bar, Hall significantly to these events, expressed ently been rebuffed by “the concluded: “I don’t think I elation at the creation of the new Bar. dominant political faction.”50 could be human and preside “Through the tumult and the chaos,” he According to Billings, Monte M. Lemann. Photo at this occasion and not feel . said, “has come a finer Louisiana State during the late 1930s, while provided by Louisiana State . . in the deepest way that one Bar Association.” Envisioning a “hope- the two bar associations Bar Association archives. of the greatest institutions that filled future,” he said the occasion competed, “behind the has ever been created in our “marks, officially, the end of an order scenes younger members of both societ- State has now achieved a new purpose, that was unsought and underserved, and ies worked quietly to effect a merg- has brought about a new thing, in its place the establishment of an orga- er between them.”51 By April has fought the good fight, and nization integrating all members of the 1940, at its Annual Meeting has done a splendid job, and legal profession in Louisiana toward the in Shreveport, LSBA Presi- has preserved unimpaired advancement of the science of jurispru- dent Eugene Stanley (the and unsmeared the record dence, the promotion of the administra- aforementioned district of the lawyers of this tion of justice, and the general welfare attorney, who became the State, and will always of the profession, and finally toward the state’s attorney general) remain one of the finest encouragement of cordial intercourse presented a resolution, things in the tradition of among its members. The sword may adopted by the Executive the legal profession of now be unsheathed.”58 Committee, to repeal the Louisiana.”55 Ten months earlier, on July 30, 1940, State Bar Act. That Act, it Having phased out one shortly after the Legislature had repealed said, had weakened, if not organization, in the next the State Bar Act of 1934, Hugh Wilkin- destroyed, the constitutional Pike Hall. Provided by moment Hall presided over son hosted the last board meeting of the power of the Supreme Court Louisiana Supreme Court. the first Annual Meeting of State Bar of Louisiana “for the purpose to regulate the Bar and to the newly-formed LSBA, of closing out the business of the SBL.” control admissions and dis- with LeDoux Provosty of Its books were closed; its property and cipline. During the preceding five years, Alexandria serving as vice president funds turned over to the State Treasurer. the SBL “has never properly func- and St. Clair Adams of New Orleans By law, the Treasurer was directed to tioned,” and it “lacks the support and as secretary-treasurer. Hall was par- transfer those books and funds to the approval of the profession as a whole.” ticularly pleased that bar leaders would Louisiana State Bar Association.59 The SBL had failed to submit a record henceforth be chosen by lawyers, not Of the disputed 3rd Supreme Court of its revenues and disbursements as the public at large. Associate Justice District election of 1934, historian Bill- required, and its inactivity in matters Wynne A. Rogers of the Louisiana Su- ings asks these questions: “Had Huey of attorney discipline “was flagrant.” preme Court was on hand to express Long broken the law and stolen a seat on Not surprisingly, the resolution passed support for the integrated bar, observing the supreme court that Porter believed unanimously.52 that the voluntary Bar Association never rightfully belonged to him? Or had the Along with the resolution to repeal enjoyed more than one-sixth of the bar Kingfish, with lots of help from his sub- the State Bar Act, Benjamin Taylor of membership. Although the court would alterns, manipulated the law, the courts, Baton Rouge, on behalf of what was supervise the new Bar’s operations, “the and the voters to outwit his enemies?” then called the Junior Bar, read a pro- members of the court feel it is your As- Whatever one thinks of Huey Long (a posed bill to integrate the Louisiana sociation.”56 debate which will never end), one must Bar.53 The assembled members passed a Annual dues were set at $5 for senior acknowledge he was rarely outwitted.

Louisiana Bar Journal Vol. 60, No. 6 471 Although not a professional his- that Article 85 of the Constitution of 1898 vested the States District Court, Western District of Louisiana, torian, I might respectfully sug- Supreme Court with jurisdiction over charges of pro- from 1939 until his death in 1953. fessional misconduct. 43. Ellison was appointed Attorney General in gest one way to look at these events 14. Id. 1939 after Porterie became a federal judge. would be to ask this question: If Huey 15. Origins, at p. 397. 44. Billings, Origins, p. 399. Long, O.K. Allen and Gaston Porterie 16. Id. at 397-98, fn. 22. 45. Minutes, LSBA Executive Committee, Oct. sought to replace the elite voluntary bar 17. Billings, Politics Most Foul? Winston Over- 10, 1936, pp. 506-507. ton’s Ghost and the Louisiana Judicial Election of 46. “An Extraordinary Bar Integration Bill,” in 1934 as part of an effort to “democ- 1934, 97 Law Libr. J. 133 (2005), p. 134. 20 A.B.A. J. 710 (1934), p. 769. In the same issue, ratize” the state bar association, so that 18. Id., p. 137. T. Harry Williams, Huey Long the ABA Journal noted that in most respects “Sena- lawyers across the state could speak and (Alfred A. Knopf, 1969), p. 734. tor Long’s Louisiana Bar Act” resembled “those in act in unison, even if Long’s actions 19. T. Harry Williams, Huey Long (Alfred A. force in a number of states, but the differences are Knopf, 1969), p. 734. important.” Id. at p. 687. stemmed from vengeful motives and an 20. Id. at 655. The Executive Committee of the 47. Statutory Organization for Louisiana Bar, 18 insatiable appetite for control, who’s to LSBA recommended that Porterie be expelled on J. Am. Jud. Soc. 110 (1934-35). say the Kingfish was wrong? grounds that by his actions in ensuring the grand 48. “The Louisiana State Bar Association — Its jury returned a no true bill against those charged Past, Its Future,” Reports of the Louisiana State Bar with election fraud, he had violated legal ethics. Por- Association for 1935-1941, Vol. 34, p. 14 (Feb. 11, FOOTNOTES terie tried to resign just before being expelled. But 1942). On Jan. 5, 1935, the LSBA Executive Com- the LSBA refused his resignation and expelled him mittee passed a resolution providing that, despite 1. Act No. 54 of 1940. Louisiana Acts, 1940 for unprofessional conduct. Baton Rouge Morning passage of the State Bar Act of 1934, the Association (Baton Rouge, 1940), p. 365. The Act passed unani- Advocate, June 25, 1933, p. 1. See also, Harnett T. “should be maintained.” mously in the Senate and with only one negative vote Kane, Louisiana Hayride (Pelican Publishing Com- 49. Reports of the Louisiana State Bar Associa- in the House. For much of the information in this arti- pany, 1998), p. 249. How the underlying “battle of tion, 1935-1941, Vol. 34, pp. 46-48. cle, I am indebted to the distinguished legal historian, the ballot boxes” played out is vividly recounted in 50. Id. at 178. Warren M. Billings, author of A Bar for Louisiana: the Williams biography at pp. 654-661. 51. Billings, Politics Most Foul, p. 148. See, e.g., Origins of the Louisiana State Bar Association, 41 21. Billings, Politics Most Foul, at p. 140. T. Minutes of LSBA Executive Committee, May 9, La. Hist. 389 (2000), and Politics Most Foul? Win- Harry Williams, Huey Long (Alfred A. Knopf, 1969), 1936, regarding meetings with SBL board members ston Overton’s Ghost and the Louisiana Judicial p. 734. on drafting new Bar legislation, and a letter from the Election of 1934, 97 Law Libr. J. 133 (2005). On 22. Williams, p. 735. New Orleans Bar Association to Gov. Richard W. matters pertaining to our 40th governor, the T. Harry 23. Williams, p. 735. Leche, dated May 19, 1936, advocating “adjustment Williams biography, Huey Long (Alfred A. Knopf, 24. Billings, Politics Most Foul, at p. 141. of existing differences in the Bar.” 1969), proved indispensable. The author wishes to 25. Judgment of Judge Jones in case file of Porter 52. Reports of Louisiana State Bar Association, thank Georgia Chadwick, head librarian of the Loui- v. Conway, 159 So. 725 (La. 1934), cited by Billings 1935-41, Vol. 34 (Feb. 11, 1942), p. 247. siana Supreme Court, and Loretta Larsen, executive in Politics Most Foul at p. 144. 53. Id. at pp. 245-246. director of the Louisiana State Bar Association, for 26. T. Harry Williams, Huey Long (Alfred A. 54. Id. at pp. 247-248. making available books and records on which this Knopf, 1969), pp. 735-736. 55. Id. at 251-252. article is based. 27. Porter v. Conway, 159 So. 725, 726 (La. 56. Report of Louisiana State Bar Association for 2. Billings, A Bar for Louisiana: Origins of the 1934) (O’Niell, C.J. dissenting). 1941, p. 3-4. Louisiana State Bar Association, 41 La. Hist. 389 28. John Baptiste Fournet served as associate jus- 57. Id. at p. 19. (2000), pp. 400-401. Report of Louisiana State Bar tice of the Louisiana Supreme Court from 1935-49 58. Id. at pp. 30, 40. Association for 1941, pp. 92-99. and as chief justice from 1949-70. 59. Minute Book, State Bar of Louisiana, July 3. Louisiana Acts Nos. 185-186 (1855). See also, 29. Minutes, Executive Committee, Louisiana 30, 1940. Act No. 55 of 1940 repealed the State Bar Address by J. Zach Spearing, The Louisiana State State Bar Association, Oct. 20, 1934, pp. 377-380. Act. Bar Association — Its Past, Its Future, Reports of The complainants were Edwin T. Merrick, J. Blanc the Louisiana State Bar Association, 1935-1941, Vol. Monroe, Burt W. Henry, Charles E. Dunbar, J. Zach E. Phelps Gay has prac- 34, p. 11 (Feb. 11, 1942). Spearing, Monte M. Lemann, Charles F. Fletchinger ticed law for 33 years at 4. Billings, A Bar for Louisiana: Origins of the and Esmond Phelps. the firm of Christovich & Louisiana State Bar Association, 41 La. Hist. 389, 30. Id., April 13, 1935, pp. 406-417, and June 15, Kearney, L.L.P. He also 391 (2000). 1935, pp. 429-433. is affiliated with the- ar 5. Id. 31. Billings, Politics Most Foul at p. 147-148. bitration and mediation 6. Id. at 392. 32. Louisiana Act 10 of 1934. firm, Patterson Resolu- 7. Id. at 392-393. 33. Act 10, Section 8. tion Group. He obtained 8. Henry Plauché Dart, “Presidential Address, 34. Act 10, Section 13. his undergraduate degree 1899,” Proceedings of the Louisiana Bar Asso- 35. Act 10, Section 30. from Princeton University ciation, 1898-1899, p. 148. These proceedings are 36. Act 10, Sections 22, 25, 29, 30. Billings, in 1975 and his JD degree published in a volume called The Transactions of Politics Most Foul, p. 148. from Tulane Law School the Louisiana Bar Association (The Graham Press, 37. Williams, Huey Long, p. 739. in 1979. He is a member 1899). Dart was the last president of the New Or- 38. Billings, Politics Most Foul, pp. 147-148. of the Louisiana State (1979) and Texas (1993) Bar leans Law Association and the first president of the 39. Report of the State Bar of Louisiana, 1934- Associations. He served as president of the Louisiana Louisiana Bar Association, serving in that capacity 35, pp. 15-18. State Bar Association during the 2000-2001 term. from 1898-1901. 40. Id. at 108. (Ste. 2300, 601 Poydras St., New Orleans, LA 70130) 9. Id., pp. 19-28. 41. Minute Book, State Bar of Louisiana, Dec. 10. Id. at p. 20. This Code consumes less than 27, 1934. This was the SBL’s initial, organizational a page and reads much like today’s LSBA Code of meeting. Dues were set in accordance with Act 10, Professionalism. Section 34, which empowered the board to increase 11. Id. at p. 21. them to a sum not exceeding $5. 12. Report of the Louisiana State Bar Associa- 42. Minute Book, State Bar of Louisiana, March tion for 1929, p. 120. 13, 1936. Porterie became a federal judge. Appoint- 13. Billings, Origins, at p. 395. Billings notes ed by President Roosevelt, he served on the United

472 April / May 2013 Notes from theLouisiana’s Law first Civil Code,Library published of Louisiana in 1825, reflected a mixture of French and Spanish civil law influences, a result of Louisiana’s heritage as a colony of both nations. Colonial laws that weren’t in accordance with the law of the United States were abolished shortly after the Louisiana Purchase in 1803. The remaining laws became codified in the 1825 Louisiana Civil Code. The drafters of the 1825 Civil Code, Louis Moreau-Lislet, Edward Livingston, and Pierre Derbigny, used the format and much of the wording of the French Code Civil of 1804 (a groundbreaking codification of Roman civil and French customary law concepts) to write the articles in Louisiana’s civil code. -Miriam Childs, Law Library of Louisiana Code Civil Français (also known as the “Napole- Las Siete Partidas (The Seven Parts of the Law), 1767. onic Code”), 1804. Provided by the Law Library of Provided by the Law Library of Louisiana. Louisiana.

Cornerstone ceremony program, 1908. Provided Cornerstone ceremony for the “New Courts Building,” 400 Royal Street, 1908. by the Law Library of Provided by the Louisiana Supreme Court. Louisiana, gift of James Dart.

Supreme Court History Available Online This image, originally printed on the back of the program for the Court’s The Louisiana Supreme Court has created a website celebrating 1913 centenary celebration, represents the Court’s bicentennial at www.lasc.org/Bicentennial/home.aspx. 100 years of the rule of law in Louisi- ana. Depicted are the seminal Martin’s Featured historical documents include digitized copies of François- Reports, old and new series. Xavier Martin’s original 12-volume set of Superior Court of the Territory of Orleans and Louisiana Supreme Court opinions from Image courtesy of Dart & Dart Collection, 1809-1830 and the Louisiana Supreme Court Minute books from Earl K. Long Library, University of New Orleans. 1813-1823.

Louisiana Bar Journal Vol. 60, No. 6 473 474 April / May 2013 François-Xavier MartinLouisiana Views Revisited: on Codification, Jurisprudence, Legal Education and Practice By Prof. Olivier Moréteau

n March 21, 1810, François-Xavier Martin, then judge in the Territory of Mississippi, was transferred to New Orleans to sit on the bench of theO Superior Court of the Territory of Orleans. Five years later, in 1815, he would begin a 31-year tenure as one of the very first judges of the Louisiana Supreme Court, leaving the court in 1846, the year of his death.

Portrait of François-Xavier Martin. Image provided by the Louisiana Supreme Court.

Louisiana Bar Journal Vol. 60, No. 6 475 He was appointed as a federal time, he surpassed judge by James Madison in his master. He saved 1809, just after the new President’s money to buy his inauguration. He spent less than one year own press and started in Biloxi before moving to New Orleans a profitable printing where he resided until the end of his life. and publishing busi- Martin was 48 years old when he ness. He published arrived in New Orleans. The story of his books on subscrip- fascinating life is well documented.1 A tion, almanacs and a summary of his formative years helps weekly newspaper, understand how French-born Martin turned The North Carolina into an American printer and self-taught Gazette (1786-97). 18th century jurist, later to be celebrated as The Gazette focused the “Father of Louisiana Jurisprudence”2 on events in France, for his judicial contribution to the unique especially during the identity of the Louisiana legal system in French Revolution. the early 19th century. His mastery of both He translated and pub- the civil and the common law traditions lished popular French and his understanding of the convergence novels, continuing to of both systems regarding underlying do translation work principles and sources of the law make later in life.3 him an inspiring model for the 21st Martin printed le- century, well worth being revisited as the gal forms and pub- Louisiana Supreme Court commemorates lished treatises on Portrait of François-Xavier Martin. Provided by the Louisiana its Bicentennial. He indeed epitomizes North Carolina law. Supreme Court. clear Louisiana views on codification, Justice of the Peace jurisprudence, legal education and practice. handbooks were pop- This work gave Martin grounding in the ular at the time, and plagiarism was com- civil law tradition, years before he came A Self-Taught Jurist monplace. Judges and attorneys needed to Louisiana. He indeed had received no small books they could carry by their saddle legal education or training before leaving François-Xavier Martin was born in when riding from town to town. Martin France. Marseilles, France, on March 17, 1762, wrote or copied and published several In 1803, Martin planned to publish a into a wealthy merchant family. As the third law books; he came to be known as an Digest of all reported cases in the United son, he was destined to become a priest. He honest businessman. Piracy of books was States, showing a unitary vision of the had received a solid liberal education and probably needed in those days because of common law that he shared with Judge knew Latin and Italian. He was 17 when the scarcity of information. He published Joseph Story. The plan failed due to a he left France. He would not become a collections of English statutes and English shortage of subscriptions,7 and the idea priest, though his lifestyle would be akin to law reports of the 17th century, the first of a general common law was to be later that of a monk: an austere bachelor, living ones to be printed in the United States. He defeated.8 It can be difficult to make very simply, spending as little as possible. also published the first collection of North business with futuristic views, but Martin He sailed to Martinique where his uncle Carolina cases (1796). unknowingly predicted the National had a flourishing business, provisioning He found a copy of the famous Traité Reporter System, Lexis and Westlaw. the French fleet. When his uncle sold the des obligations by the French legal scholar Meanwhile, Martin had received legal business to retire in France, Martin sailed Robert Pothier (first published in Orléans in training from a great attorney of North to America. He spent 1782-83 in New 1761) and published an English translation Carolina, Abner Nash, and was admitted York, unsuccessfully attempting to recover in 1802.4 According to legend, Martin to the Bar in 1789. In 1806, he was elected a family debt that would have helped set the type as he translated rather than to represent New Bern in the North him create a business. He enrolled in the using a handwritten draft.5 However, the Carolina state Legislature. He served on Continental Army in Virginia during the translation is of great quality.6 Featuring the committee charged with the duty of final years of the American Revolution, but both Roman law and French customary receiving President Washington when he was dismissed due to his feeble eyesight. law, this book had a great influence on visited the state. In New Bern, N.C., Martin survived on the drafting of the French Civil Code. odd jobs, teaching French and selling old Available in English, the book also A Judge of Vision newspapers. inspired learned common law judges Martin was hired by James Davis, one during the 19th century on matters not When Martin reached New Orleans in of the few printers in the Carolinas. In no previously addressed by English courts. March 1810, he found a world of clashing

476 April / May 2013 Martin’s reports on display in the Rare Book Room at the Law Library of Louisiana. Provided by the Law Library of Louisiana.

cultures,9 halfway between the New and Their labor would have been much French authors such as Dumoulin, Domat the Old Worlds, with the heat, smells more beneficial to the people, than or Pothier (of course, in French, though and sounds of Africa and the Caribbean. it has proved, if the legislature . . . the latter had been partly translated into Educated people conversant both in had given it their sanction as a English by Martin himself). The rest French and English were not that many. system, intended to stand by itself, is history: a Louisiana Civil Code was Martin was familiar with the English and and be construed by its own context, adopted in 1825, this time with a proper American common law; he was already by repealing all former laws on abrogation clause, strengthened in 1828. acquainted with the civil law at least matters acted upon in this digest. Martin was in favor of a clean through his translation work. Martin’s Anterior laws were repealed, so abrogation clause, as it is the best way to talents as translator were much in use far only, as they were contrary to, make the law predictable for the citizen to during the transition period from territorial or irreconcilable with any of the whom it is to be applied.16 Yet he believed administration to statehood. provisions of the new. . . . In practice, that such a clause would only repeal the He served as federal judge at the end of the work was used, as an incomplete positive laws adopted by a legislature.17 the Territorial period, later to be appointed digest of existing statutes, which still In Reynolds v. Swain,18 a case decided in the first Attorney General of the State of retained their empire; . . . Thus, the 1839 when Martin was the chief judge, he Louisiana in 1813. In 1815, he was made people found a decoy, in what was said that the Legislature cannot abrogate a judge of the Louisiana Supreme Court, held out as a beacon.12 unwritten law such as natural law or the then composed of three judges. The other law of nations: two were George Mathews and Pierre He shows great civilian lucidity and Derbigny. In 1837, when Mathews left full understanding of what a civil code is The repeal spoken of in the code, the Court, Martin served as the chief judge by his opposition to the Court’s practice and the act of 1828, cannot extend until the day he left the Court in 1846.10 of keeping the old laws alive wherever beyond the laws which the legislature During his fertile 36 Louisiana years, they were not contradicted by the Digest.13 itself has enacted . . . . It cannot be he developed remarkable views on He dissented in Cottin v. Cottin (1817),14 extended to those unwritten laws codification, jurisprudence and legal where Pierre Derbigny decided that the which do not derive their authority education. Digest provision to the effect that “abortive from the positive institution of any children are such as by an untimely people, as the revealed law, the Codification and Natural Law birth, are either born dead, or incapable natural law, the law of nations, the of living”15 did not contradict and did laws of peace and war, and those The Digest of the Civil Laws now in not repeal the old Spanish law that said laws which are founded in those force in the territory of Orleans (1808) to inherit, the child must live at least 24 relations of justice that existed in was in force when Martin took office, with hours. This made legal practice extremely the nature of things, antecedent to its French text and English translation. In complex. Wherever the Digest was found any positive precept.19 The History of Louisiana, a two-volume too general or silent (a matter of much book that Martin wrote and published in debate), one had to dig into ancient Spanish There is no clearer statement in 1827,11 he regrets that the Digest was not a laws (of course, in Spanish), Roman law Louisiana jurisprudence that the law is Code. Praising the two draftsmen, he wrote: (of course, in Latin), or comments by grounded on universal principles. After

Louisiana Bar Journal Vol. 60, No. 6 477 all, those who deny the existence both common law strongly relies on of natural law nonetheless recognize and civil law. He the work of the the supremacy of human rights and no doubt trusted highest courts, fundamental rights, and are willing to ac- the work of the finding their de- cept that they may only be defined in the Court and had cisions persuasive context of a case. Whatever the name and an acute sense especially when wherever such rights receive constitutional of what stare repeated, yet not support, we accept that judges may strike decisis means in regarding one down legislative provisions unreasonably a common law unique decision denying their protection.20 We are willing to setting. He also as a binding prec- accept that positive civil or municipal laws, had a clear and edent.33 as defined by Justinian and Blackstone,21 20th century per- are just conducive of local variations.22 ception of what On Legal The reference to equity and natural law in jurisprudence Education and the gap-filling provision of the Digest and means in the civil Practice Codes of 1825 and 1870,23 copied from law tradition. It the French Projet and yet abandoned in the feels as if he had Martin wished French Code civil, supports Martin’s view, read François all attorneys prac- and the omitted reference to natural law Gény more than ticing in Louisi- 24 in the revised article 4 may be regretted. 80 years before The granite tomb of François-Xavier Martin in St. Louis ana to be trained 30 Cemetery No. 2 in New Orleans. Photo by Viçenc Feliu, published both in the civil The first judges who sat on the Louisiana it was written. with permission. Supreme Court were not positivists, and He published the law and the com- the Louisiana civil law consistently differs first reports of mon law. Warren 34 from the French in this respect. They show the cases decided by the Superior Court Billings explains that, in 1840, Chief an open-minded view of what the law is. In of the Territory of Orleans and the Loui- Judge Martin molded a rule of court re- Orleans Navigation Company v. Mayor of siana Supreme Court in a set of at least forming legal education for prospective New Orleans,25 Mathews (C.J.) stated that 18 volumes. In the foreword to the Old attorneys, prescribing the study of over in the court’s opinion: Series, he wrote: a dozen treatises ranging from theory to practice of the law in general and the law . . . and here it may be observed In matters of practice [the judge] of Louisiana in particular. The list includes that, in our view, it is very immate- will at times conform himself to Robert Pothier, Jean Domat, Joseph Story, 35 rial whether we named things by what has been already done, though, Sir William Blackstone and James Kent. the common law or civil law, if the had there been no determination, This was a bijural curriculum avant la names are proper according to the he might have suspended his as- lettre, making Martin the grandfather of rules of common sense or common sent. General and fixed rules are the present Louisiana State University parlance; and it is quite unnecessary, in this respect a great desideratum. model, though the grandchild sadly moves being the same in both systems of law, At all events, a knowledge of the away from doctrinal sources. to enquire whether they have been decisions of the court will tend to Martin was a man of immense learning established by the dictum of a Roman the introduction of more order and and a great legal mind. There is evidence praetor, the edict of an emperor, or regularity in practice, and unifor- that he loved arguing by asking questions denominated by a learned English mity in determination.31 and mastered the Socratic method. He 36 law writer.26 was compared to Lord Mansfield. His The foreword emphasizes words like Court has been recognized as “one of the While this kind of discourse may lead “order,” “regularity” and “uniformity” ablest courts of last resort in the United 37 to common law contamination27 and places and expresses a clear preference for “gen- States.” He achieved a lot with limited great confidence into what the judge says,28 eral and fixed rules.” In Smith v. Smith, means, proving that vision can to some 38 it goes beyond the civil law/common law a case decided in 1839,32 he states that extent supplement technical hardship. divide and reveals a belief in the universal- “more than one decision of the supreme He remained on the bench though totally ity of the law that prospered in the United judicial tribunal is required to settle the blind, and yet a lucid chief judge. He left States under the influence of Judge Story jurisprudence on any given point or the Court in 1846, as the state Constitution 39 and would be defeated by Erie Railroad question of law.” This might be the first had been changed, and died in December Co. v. Tompkins.29 expression ever of the doctrine of juris- that year. The whole bar and bench and prudence constante. It came under the pen many distinguished officials accompanied On Jurisprudence of a judge who appears to be a remarkable him to his last abode that may still be comparative law scholar. He understood visited in St. Louis Cemetery. Martin was a true scholar, at ease with 100 years before others that the civil law

478 April / May 2013 Conclusion book, reprinted in 2000, remains a leading source State Law Institute; the first edition was on the history of our state. Citations are to the 2000 published in 1899). edition. 31. François-Xavier Martin, “Preface,” The Universities of Harvard and 12. Martin, History of Louisiana, supra note 11, 1 Orleans Term Reports or Cases Argued and Nashville awarded Martin honorary at 344. Determined in the Superior Court, at vii (1811). doctorates. He was named a foreign 13. Olivier Moréteau, “De revolutionibus, The 32. Smith v. Smith, 13 La. 441, 445 (1839). Place of the Civil Code in Louisiana and in the 33. As clearly stated by Robert A. Pascal and W. member of the Marseilles Academy. He Legal Universe,” 5 J. Civ. L. Stud. 31 (2012), first Thomas Tête, “The Work of the Louisiana Appellate is fondly remembered, in Louisiana and published in Le droit civil et ses codes: parcours à Courts for the 1969-70 Term: Law in General,” 31 beyond, 203 years after his arrival in New travers les Amériques, 1 (Jimena Andino Dorato, La. L. Rev. 185 (1971), the opinion once expressed Orleans. May his work keep inspiring Jean-Frédérick Ménard & Lionel Smith, eds., by the Louisiana Supreme Court that when “the Thémis, Montreal, 2011). question is not regulated by statute, the law is what new generations of attorneys and judges 14. Cottin v. Cottin, 5 Mar. (O.S.) 93 (1817). this Court has announced it to be” (Johnson v. St. as our state and its Supreme Court move 15. Digest of 1808, Book 1, Title 1, Article 6 Paul Mercury Insurance Co., 236 So.2d 216 (La. towards a third century of existence. Martin (www.law.lsu.edu/digest). 1970)) is inconsistent with the legislation of this state. understood that codes are made for the 16. On a citizen-centered approach of the Civil In Pringle-Associated Mortgage Corp. v. Eames, Code, see Robert A. Pascal, “Of the Civil Code 254 La. 705, 714, 226 So.2d 502, 505 (1969), the people, that they do not repeal but must and Us,” 59 La. L. Rev. 301 (1998); Moréteau, Court had gone as far as saying that a single previous 40 remain connected with natural law, and “De revolutionibus,” supra note 13. On a digest- decision construing legislation is obligatory on lower must not be manipulated but kept alive based approach and the confusion it generates, see courts (Pascal and Tête, at 187). by judges educated in both civil law and Vernon Valentine Palmer, The Louisiana Civilian 34. Warren M. Billings, “The Supreme Court of Experience: Critiques of Codification in a Mixed Louisiana and its Chief Justices,” 89 Law Libr. J. 449 common law. More so than these words, Jurisdiction (2005). (1997). a simple look at the magnificent bust of 17. In the citation above, he refers to a “digest of 35. Billings, supra note 35, at 456. François-Xavier Martin at the Louisiana existing statutes.” 36. Howe, supra note 1, at xlii: “He has been Supreme Court will tell the reader that 18. Reynolds v. Swain, 13 La. 193 (1839). called the Mansfield of the southwest.” 19. At 198. 37. Howe, supra note 1, at xlvii, referring to the inspired vision comes from the inside. 20. The first Constitution of the state of period of 1821-33. Howe gives much detail on the Louisiana, Art. VI, section 25, reads: “All laws man and his life, his being a miser, his neglected FOOTNOTES contrary to this Constitution shall be null and void.” looks and dusty home, located 915 Royal St. in New See Paul R. Baier and Georgia Chadwick, “Judicial Orleans. 1. William Wirt Howe, “Memoir of François- Review in Louisiana: A Bicentennial Exegesis,” 5 J. 38. In the “Preface” of 1811, supra note 32, at iv- Xavier Martin,” in François-Xavier Martin, Civ. L. Stud. 7 (2012). v, he wrote: “No one could more earnestly deplore, The History of Louisiana (1827, new ed. 1882), 21. Both cited by Martin in his judgment. for no one more distressingly felt, the inconvenience reprinted in 2000, pp. xxxi-lxii (written in 1881); 22. See Pascal, “Of the Civil Code and Us,” of our present judicial system. From the smallness Edward Laroque Tinker, “Jurist and Japer, François- supra note 16. of the number of the Judges of the Superior Court, Xavier Martin and Jean Leclerc, With a List of 23. Louisiana Civil Code 1870, art. 21: “In all the remoteness of the places where it sits, and the their Publications in this Library and Elsewhere,” civil matters, where there is no express law, the multiplicity of business, it has become indispensable 39 Bulletin of The New York Public Library 675- judge is bound to proceed and decide according to to allow a quorum to consist of a single judge, who 697 (1935); Michael Chiorazzi, “François-Xavier equity. To decide equitably, an appeal is to be made often finds himself compelled, alone and unaided, Martin: Printer, Lawyer, Jurist,” 80 Law Libr. J. 63- to natural law and reason, or received usages, where to determine the most intricate and important 97 (1988); Kathy Dugas, “An Immigrant’s Journey positive law is silent.” questions, both of law and fact, in cases of greater to Wealth and Power: The Story of François-Xavier 24. The reason given in comment (b), “The term magnitude . . .,” explaining further that “a number Martin,” Louisiana History, The Journal of the ‘natural law’ in Article 21 of the 1870 Code has no of foreign laws are to be examined and compared, Louisiana Historical Association, Vol. L, No. 3, defined meaning in Louisiana jurisprudence,” is and their compatibility with the general constitution 321-340 (2009). See also, “Remembering François- shameful and wrong. and laws ascertained — an arduous task anywhere, Xavier Martin,” 38 La. Bar J. 177 (1990). 25. Orleans Navigation Company v. Mayor of but rendered extremely so here, from the scarcity of 2. Chiorazzi, supra note 1, at 63 and 77. New Orleans, 2 Mart. (O.S.) 214 (La. 1812). works of foreign jurists.” 3. For more details on Martin as a printer and 26. Id. at 228. 39. In 1845. publisher, see Chiorazzi, supra note 1. 27. Olivier Moréteau, “Mare Nostrum as the 40. Or fundamental rights, as per the discussion 4. Treatise of the Law of Obligations Considered Cauldron of Western Legal Traditions: Stirring above. in a Moral and Legal View, Translated from the the Broth, Making Sense of Legal Gumbo whilst French of Pothier, Martin & Ogden, New Bern, Understanding Contamination,” 4 J. Civ. L. Stud. Professor Olivier Moréteau N.C., 1802. 516 (2011). is the first holder of the 5. Howe, supra note 1, at xxxiv. Chiorazzi, supra 28. In Reynolds v. Swain, Martin concludes Russell B. Long Eminent Scholars Academic Chair at note 1, at 77, is silent on this publication. “that the legislature did not intend to abrogate those Louisiana State University principles of law which had been established or 6. It is unmatched by a later translation: A Paul M. Hebert Law Center. Treatise on the Law of Obligations, or Contracts, settled by the decisions of courts of justice.” As will A professor of law, he is by M. Pothier (translated by William David Evans, be seen below, this is not recognition of stare decisis director of the Center of Philadelphia) (1853). (as wrongly understood by Mark F. Fernandez, From Civil Law Studies at LSU 7. Chiorazzi, supra note 1, at 75. Chaos to Continuity, The Evolution of Louisiana’s Law Center, editor-in-chief 8. Erie Railroad Co. v. Tompkins, 304 U.S. 64 Judicial System 1712-1862, 81-88 (2001); see of the Journal of Civil Law (1938). Sean P. Donlan, “Clashes and Continuities: Brief Studies and associate vice 9. George Dargo, Jefferson’s Louisiana: Politics Reflections on the ‘New Louisiana Legal History,’” chancellor for interna- and the Clash of Legal Traditions (Rev. ed. 2009). 5 J. Civ. L. Stud. 67 (2012)), but of the supremacy tional programs. The author 10. Robert B. Fisher, Jr., “The Louisiana of natural law. thanks Paul R. Baier, Georgia Chadwick, Alexandru- Daniel On, Michael McAuley and Robert A. Pascal for Supreme Court, 1812-1846: Strangers in a Strange 29. 304 U.S. 64 (1938). their help and support. (Paul M. Hebert Law Center, 30. François Gény, Méthode d’interprétation et Land,” 1 Tul. Civ. L. F. 1 (1973). 1 E. Campus Dr., Louisiana State University, Baton 11. François-Xavier Martin, The History of sources en droit privé positif, Critical Essay (1963) Rouge, LA 70803) Louisiana (1827). This remarkably documented (translation of the 2d ed. 1954, by the Louisiana

Louisiana Bar Journal Vol. 60, No. 6 479 Judicial Review Ain Bicentennial Louisiana:By Prof. Paul R. Baier and Minute Georgia Chadwick Entry

This court, and every court in this state, not only possesses the right, but is duty bound, to declare void every act of the legislature which is contrary to the constitution.

— François-Xavier Martin, Busts of François-Xavier Martin, foreground, and John Marshall at the Louisiana Supreme Court 1828 Museum. Photo by David Rigamer, courtesy of curator’s office, Louisiana Supreme Court Museum.

480 April / May 2013 Préface: 1812-2012 tions, that a law the leg- repugnant to the islature, No scholar of Louisiana’s public law constitution is you attempt that we can find has trumpeted a “general void [.]” Mar- worse than a provision” of Louisiana’s Constitution of bury v. Madison, vain thing; for, 1812 that has since disappeared. This was a 1 Cranch 137, although, you long time ago. Louisiana joined the United 180 (1803). cannot succeed, States of America on April 30, 1812, exactly After 200 you set an ex- nine years after the Louisiana Purchase of years we pro- ample, which 1803 — the year of Marbury v. Madison. pose a Bicen- may convulse John Marshall was Chief Justice of the tennial Minute society to its United States in 1812. War with Britain entry essaying centre. Nay raged. General Andrew Jackson triumphed the origin of ju- more, if the in the Battle of New Orleans. But the dicial review in whole legisla- Constitution triumphed over the General. Louisiana. We ture, an event to This was the last skirmish of the War of throw Bicen- be deprecated, 1812, another Bicentenary to celebrate — or tenary light on should attempt to lament — depending on one’s view of the what is a vital, to overstep the facts and the law. Here is an early chapter, yet completely bounds, pre- the earliest we can find, in the annals of overlooked, now scribed to them judicial review in Louisiana. We mean lost, provision by the people, I, judicial control by way of the Great Writ of Louisiana’s in administering first “Constitu- The 1812 Constitution of Louisiana, originally the public jus- of Habeas Corpus of the executive branch, written in French, was printed in English and of the commander in chief. tion ou Forme de sent to Washington to satisfy requirements set tice of the coun- Gouvernement by Congress for statehood. The eagle is a nod to try, will meet the Louisiana becoming the 18th state of the Union. Le Texte de L’État de La united powers at Louisiane.” Provided by the Law Library of Louisiana. my seat in this Article VI. Sect. 25. The lost provision is tribunal; and, the last of 25 “Dispositions Générales,” to François-Xavier Martin, pointing to the constitution, will say, to quote the French version. It appears almost them, here is the limit of your authority; George Wythe 2 as an afterthought: “All laws contrary to this and, hither, shall you go, but no further. Constitution shall be null and void.” Or, to Doubtless there was talk of Montes- Virginia’s Chancellor Wythe also taught quote the French version: “Les lois contraires quieu’s De l’esprit des lois in Vieux Carré à cette Constitution seront nulles.” law at the College of William and Mary; for coffeehouses in the founding days of Loui- a brief time, one of his students was John siana’s public law. François Martin, a jurist Marshall. The Lost Provision of indefatigable scholarship, undoubtedly nursed himself on Montesquieu and John Section 25 disappeared from Loui- Marshall. He hardly slept for all the books Il Emperor Napoleon, siana’s public law with the adoption of he read. He spent his nights preparing his General Andrew Jackson the Constitution of 1845. It has never astounding Orleans Term Reports (1809- appeared in any Louisiana Constitution 1812) and his Louisiana Term Reports The Civil Law celebrates legislation — thereafter. Why? We suppose that after (1813-1830), to say nothing of his night “c’est mon Code civil,” says Napoleon. But a generation on the books, by 1845, it watches reading law tirelessly, endlessly. We whence judicial review in Louisiana? What was generally accepted that Louisiana’s can easily imagine François Martin reading enables a common-law judge to hold General fundamental law, voiced by the judiciary, George Wythe’s monumental opinion in Andrew Jackson in contempt? United States controls the legislative and the executive Commonwealth v. Caton1 by candlelight in District Court Judge Dominick A. Hall of magistracies. François-Xavier Martin in his Vieux Carré lodgings. We are sure he New Orleans so held. This was the fiery his painstaking History of Louisiana, read it. Here is Chancellor Wythe’s renowned judicial climax of the War of 1812. Jackson From the Earliest Period (Vol. I, 1827; passage announcing judicial condemnation ordered Judge Hall arrested for issuing a writ Vol. II, 1829) blithely passes over Section of a legislative act: of habeas corpus challenging the General’s 25 in his detailed description of the provi- declaration of martial law. Jackson con- sions of Louisiana’s first Constitution. To I shall not hesitate, sitting in this place, to sidered New Orleans his military camp. us, it jumps off the page. It reminds us of say, to the general court, Fiat justitia, ruat The General was above the law. He was John Marshall’s immortal principle, “sup- cœlum; and, to the usurping branch of beyond judicial control, according to the posed to be essential to all written constitu- Jurisprudence of the Camp.

Louisiana Bar Journal Vol. 60, No. 6 481 Judge Dominick A. Hall be shadows, their laws delusions, and Monday next the 13th instant — their liberty a dream; but it should be why the parties should not proceed Not so at all. Judge Hall had the last exercised with the utmost caution, in this case notwithstanding the act word — for the moment at least — duly and when great and serious doubt passed by the Legislature on the 18th recorded in United States v. Major General exists, this tribunal should give to the december last[.] 3 Andrew Jackson. Jackson’s arrest of Hall people the example of obedience to was held a contempt of court. The General the will of the legislature.5 We quote the minute entry of March 7, was fined $1,000. 1815. The case is James Johnson v. Duncan Here, then, is the earliest chapter in the A Bicentennial Minute Entry et al.’s Syndics. life of judicial review in Louisiana, recently On the same page of the Minute Book ap- revisited as a highlight of the Bicentennial We come full circle, back to the future, pears the entry of Monday, March 13, 1815: of the United States District Court, Eastern back to Cases Argued and Determined in The parties aforesaid having appeared District of Louisiana, New Orleans, online the Supreme Court of the State of Louisiana, by their attorneys in conformity with at: www.laed.uscourts.gov/200th/main.php. Eastern District. February Term, 1815, 3 Martin (1813-1815). We mean the clash be- a rule taken in this case on the 7th Louisiana’s tween the General instant & the ar- guments thereon Marbury v. Madison and the Judge pre- viously rehearsed. being closed the Mayor v. Morgan4 is Louisiana’s This time, however, Court took time Marbury v. Madison. François Martin we draw the legal to decide. — assuredly, Louisiana’s John Marshall historian’s attention — delivered the opinion of the Court. to the Minute Book Next, on the The case: The mayor and City Council of of the Louisiana same leaf of the New Orleans refused obedience to a writ Supreme Court. It Minute Book, this of mandamus issued by a court of first plainly shows that for Monday, March instance commanding the mayor et al. to Louisiana’s Judge 20, 1815: seat a person on the Council whose election François Martin, was drawn into question. An act of the not United States The Court now Legislature declared that the City Council District Court Judge delivered their “shall be the judge” of the election of its Dominick Hall, first opinion in writ- members. Judge Martin reasoned that if trumpeted the au- ing on the motion the Legislature had the power to grant to thority of judicial made in this cause the municipal corporation of New Orleans review in the an- on the 7th instant the right to determine the validity of the nals of Louisiana’s and ordered that elections of its members, the district court public law. The title page of the original Minute Book of the same be over- was without jurisdiction to issue the writ Here are the the Louisiana Supreme Court. Photo courtesy of ruled. Historical Archives of the Supreme Court of Louisiana, of mandamus. Held: The Legislature had facts, a matter of Earl K. Long Library, University of New Orleans. What is this case the power to render the City Council the reported chronol- about? “judge of the validity of their elections, and ogy. Martin, J., explains the case in his report, prohibit courts of justice from interfering At the opening of the February Term, 3 Martin 530. Remember, the din of war with its decisions;” the provision of the Act Eastern District, 1815, a commission was raged. Here is the terse opening of Judge of 1816 in question was constitutional. Thus read by which François Martin, then at- Martin’s opinion of the Court: the writ of mandamus was void. Morgan, torney general of the state, was appointed the sheriff, who seized the revenues of the a judge of the Supreme Court of Louisiana, Martin, J. A motion that the Court City in execution of the judicial orders, was a together with a certificate of his having taken might proceed in this case, has been trespasser liable in damages. There is plainly the oaths required by the Constitution and resisted on two grounds: an echo of John Marshall in Judge Martin’s law, whereupon he took his seat. “The din 1. That the city and its environs opinion in Mayor v. Morgan: of war prevented any business being done, were by general orders of the officer, during this term.”6 A month later, at the This court, and every court in this commanding the military district, put opening of the March Term 1815, before state, not only possesses the right, on the 15th of December last, under the Hon. Pierre Derbigny and the Hon. F.-X. but is duty bound, to declare void strict Martial Law. Martin, the Minute Book shows: every act of the legislature which 2d. That by the 3d sec. of an act of assembly, approved on the 18th of is contrary to the constitution. The On motion of Mr. Duncan of counsel due exercise of this power is of the December last, all proceedings in any for the appellees it is ordered that civil case are suspended. utmost importance to the people, and the appellant — to show cause on if it did not exist their rights would

482 April / May 2013 Judge Martin first addresses the Here is the closing part of Judge Mar- order that we can find. argument of General Jackson. Listen to tin’s rejection of Major General Jackson’s 4. 7 Martin (N.S.) 1 (1828). 5. Id. at 7. the voice of Louisiana’s Judge François claim: “How preposterous then the idea 6. 3 Martin V 3 [529]. Martin — Bicentennial fireworks on the that a military commander may, by his own 7. Ex parte Bollman and Ex parte Swartwout, 4 levee (3 Martin 532-533): authority, destroy the tribunal established Cranch 75 (1807). by law as the asylum of those oppressed 8. 3 Martin at 537. 9. The original Minute Book of the Louisiana We are told that the commander of by military despotism!”8 the military district is the person Supreme Court, which includes the minute entries in Johnson v. Duncan, is housed in the archives of the who is to suspend the writ, and is End of the Journey Supreme Court of Louisiana, Earl K. Long Library, to do so, whenever in his judgment University of New Orleans. In celebration of the the public safety appears to require We reach the end of our Bicentennial Bicentennial of the Louisiana Supreme Court, the Law it: that, as he may thus paralyze the sojourn, a final minute entry. Library of Louisiana has had the first two minute books reprinted (Book 1, 1813-1818; Book 2, 1818-1823) and arm of the justice of his country in the The Minute Book of the Louisiana 9 catalogued. They are now available to the public and most important case, the protection Supreme Court shows that Judge Martin interested scholars in the Law Library of Louisiana. of personal liberty of the citizen, it rendered judgment on Monday, March 20, 10. Françis-Xavier Martin, History of Louisiana, follows that, as he who can do the 1815. On the other hand, the contempt pro- From The Earliest Period, Vol. II (1829), p. 416; Pelican ceedings against Major General Andrew Pub. Co. Reprint 1975, p. 405. The Hill Memorial more can do the less, he can also Library of Louisiana State University holds two original suspend all other functions of the Jackson commenced the next day, March editions of Martin’s History under lock and key, and civil magistrate, which he does by 21, 1815.10 Amazingly, our Bicentennial under the watchful eye of Elaine Smyth, curator of his proclamation of Martial Law. Minute Entry shows that Judge Martin books. The Law Library of Louisiana holds an original appears first in the chronology of judicial edition of Vol. I of Martin’s History. The Law Library This mode of reasoning varies toto celo of Louisiana has recently acquired a copy of Vol. II of review in Louisiana. F.-X. Martin’s contemporaneously written history of from the decision of the Supreme Court of Judge Martin himself, in his Louisiana the earliest years of Louisiana’s sovereignty. the United States, in the case of Swartout Term Reports, appends a note (3 Martin See Eberhard P. Deutsch, “The United States [sic] and Bollman, arrested in this city in 557) to his report of Johnson v. Duncan Versus Major General Andrew Jackson,” A.B.A. 1806 by General Wilkinson. The Court J. 46: 966 (Sept. 1960), for the chronology of the et al.’s Syndics. We leave the last word to contempt proceedings with New Orleans’s precision there declared, that the Constitution had Reporter F.-X. Martin — his enduring gift and scholarship. Mr. Eberhard is identified in the exclusively vested in Congress the right to the American Republic: “The doctrine A.B.A. J. as “of the Louisiana Bar (New Orleans).” of suspending the privilege of the writ established, in the first part of the opinion We commend his home-grown article to the reader. of Habeas Corpus, and that body was of the Court, in the above case, is corrobo- Paul R. Baier is the George the sole judge of the necessity that called rated by the decision of the District Court of M. Armstrong, Jr. Professor for the suspension. “If, at any time,” said the United States for the Louisiana District, of Law at Louisiana State the Chief Justice, “the public safety shall in the case of United States v. Jackson, University Paul M. Hebert require the suspension of the powers Law Center. A graduate in which the defendant, having acted in of Harvard Law School, vested in the Courts of the United States opposition to it, was fined $1,000.” (Our he teaches constitutional by this act, (the Habeas Corpus act,) it is Bicentennial emphasis — corroborated.) law. He is in his 40th year for the Legislature to say so. This question Requiescat in pace, F.-X. Martin. of teaching, filmmaking depends on political considerations, on and theater production at LSU. His play, “Father which the Legislature is to decide. Till the The full version of Professor Paul R. Baier’s and Georgia Chadwick’s article, titled “Judicial Review in Chief Justice”: Edward Legislature will be expressed, this Court Louisiana: A Bicentennial Exegesis,” was published Douglass White and the Constitution,” has been can only see its duties, and must obey the in a Bicentennial edition of the Journal of Civil performed in several state and national venues. law.” 4 Cranch 101. Law Studies, Vol. 5, No. 1 (2012), the publication He is secretary of the Supreme Court of Louisiana of the Center of Civil Law Studies, Louisiana State Historical Society. (LSU Paul M. Hebert Law Center, Swartwout and Bollman,7 you might University Paul M. Hebert Law Center. The Louisiana Baton Rouge, LA 70803-1000) surmise, is the voice of Chief Justice John Bar Journal thanks Professor Olivier Moréteau with the Center for allowing publication of this excerpt. Georgia Chadwick, head Marshall. librarian with the Law Thus, John Marshall is brought home to FOOTNOTES Library of Louisiana, our Bicentennial table as a surprise guest. earned her BA degree at Newcomb College, New The Great Chief Justice is here courtesy 1. 4 Call 5 (1782). 2. Id. at 8. Orleans, and her MA of Louisiana’s great jurist François Martin. 3. No. 791, United States District Court, Dist. of La. degree at the University of It is a nice touch to our way of seeing (1815), unreported. Judge Hall’s handwritten orders in Denver Library Science things that John Marshall and F.-X. Mar- Andrew Jackson’s contempt proceedings are preserved School. She is the executive director of the Supreme tin’s marble busts face each other, today, in digital copy, U.S. National Archives & Records Admin., ARA’s Southwest Region (Fort Worth, TX), Court of Louisiana after 200 years, guarding the portal to the ARC Identifier 251606, a cover page and four pages of Historical Society and Louisiana Supreme Court Chamber, fourth digital copy of Judge Hall’s rulings. The authors have curator of the Supreme Court of Louisiana Museum, floor, 400 Royal St., in the heart of the Vieux examined these documents carefully. To their chagrin, 400 Royal St., New Orleans (open to the public). For a tour, contact Chadwick at (504)310-2402. (400 Carré — open to the public. there is no written finding of contempt and imposition of a fine of $1,000 by Judge Hall in any manuscript Royal St., 2nd Flr., New Orleans, LA 70130-2104)

Louisiana Bar Journal Vol. 60, No. 6 483 The Louisiana Supreme Court and Civil Rights:

ABy FickleChief Judge Ulysses GeneCourtship Thibodeaux Louisiana 3rd Circuit Court of Appeal

A young swallow had built her nest under the eaves of a Court of Justice. Before her young ones could fly, a serpent gliding out of his hole ate them all up. When the poor bird returned to her nest and found it empty, she began a pitiable wailing. A neighbor suggested, by way of comfort, that she was not the first bird who had lost her young. “True,” she replied, “but it is not only my little ones that I mourn but that I should have been wronged in that very place where the injured fly for justice.

—Aesop, Fables

484 April / May 2013 It is impossible to fully synthesize a could inherit, and also the property she and her eight children through comprehensive treatment of civil rights was inheriting. This duality became further his will.8 He also left all nine of issues rendered by the Louisiana Supreme complicated when the slave owner died them as his universal legatees. His Court within the space limitations of this with forced heirs because if the slave was legal heirs attacked the will, claiming article, and a consistent thematic approach worth more than the disposable portion of that the slaves could not be emancipated is difficult. One constant, nevertheless, the deceased owner’s estate, then she could because of the Act of 1857, even though seems to emerge; specifically, the Loui- not be freed and had to be included in the it had been legal for Hyde to emancipate siana Supreme Court has not embraced estate’s assets for distribution.6 his slaves when he died. The Court held its institutional policy-making function In Vail v. Bird, Vail died and, through his that the slaves’ rights to emancipation were to advance the salutary purposes of civil will, emancipated his female slave, Jane, conditioned upon certain regulations and rights issues. Several cases in representa- and bequeathed to her two promissory laws regarding manumission and, since the tive categories illustrate this thesis. notes for $100 each.7 Vail’s heirs attacked Act of 1857 made emancipation illegal, the legacy on several grounds, including Hyde’s slaves had no legal standing in Slave Period that Jane was Vail’s concubine and, as such, Court on any matter. Vail could not donate to Jane an immovable The slave’s status under the law The Louisiana Supreme Court’s exami- or movables over one-tenth of the value of dumbfounded the Court for as long as nation of civil rights must begin by examin- Vail’s estate. Further, since the disposition the institution existed. Once slavery was ing the institution that made the recognition to Jane of her freedom was a disposition abolished, however, that confusion did of those rights essential: slavery. The high of immovable property, it was prohibited. not dissipate; it merely transferred to the Court struggled to find the appropriate The Court determined that Jane was difficulty of defining the civil rights that place for slaves within the legal system. immovable property and that she was Vail’s freed blacks were afforded. Consequently, these individuals occupied concubine, despite the Court’s admission a position somewhere between property that a slave is subject to the power of her Early Civil Rights and person. This dichotomy continually master and thus could not consent to a confused the Court, as the justices could concubinage relationship. According to Slaves gained freedom when the Civil neither deny a slave’s humanity nor grant the Court, the law of concubinage applied War ended in 1865; however, it was clear them full civil personhood.1 to all persons, that all free men This confusion manifests itself in a regardless of were not created case from 1850, in which the defendant color or status. equal. The Re- landowner was convicted of manslaughter Since Jane was construction era for killing a slave.2 He appealed and argued immovable prop- immediately fol- that the only crime for which he could be erty, Vail could lowed the Civil convicted was that of willful and malicious not have donated War and saw murder because the crime of manslaughter her freedom to southern legis- did not apply to slaves. The Court upheld her. The inherent latures passing the conviction, holding that “slaves are illogical nature code noirs, or regarded both as persons and property,” and of the Court’s “black codes,” the law is intended to give “the most ample reasoning illus- that severely re- protection, both to the person of the slave, trates the diffi- stricted and con- and to the property of the citizen.”3 Several culty in defining trolled the rights decisions throughout the 1800s present a a slave’s legal Louisiana Acts 1894, no. 54 amended Louisiana of freed blacks.9 contrast to the recognition of the person- status, especially Civil Code article 94 by adding a sentence Soon after this hood of a slave. Notably, slaves could be, in the context of about prohibiting marriage between whites period, however, and persons of color. Provided by Law Library and often were, the object of redhibitory other state laws. the South entered of Louisiana. actions to rescind a contract. If the Court The Court’s the Radical Re- found a slave was defective and that the willingness to construction era, slave’s defect, whether it was mental or bend the law to accommodate this unusual during which blacks gained a stronger physical, existed at the time of the sale or system was often irrational. For instance, political presence by winning elections shortly thereafter, the buyer could get the after the Legislature made emancipation in southern legislatures. This political mo- sale rescinded.4 illegal in 1857, the Court declared that mentum waned a decade later when white Until 1857, when emancipation became the act applied retroactively. Therefore, supremacy groups reacted by attempting illegal in Louisiana, it was common for after 1857, if a slave owner emancipated to strip blacks of any political capital they slave owners, upon death, to free their his slave through testament executed had gained. The Louisiana Supreme Court slaves. The Court defined this practice as before 1857, the slave would be denied was not immune to this political tug-of-war. “a donation of [a slave’s] value to her.”5 his freedom. In one case, the deceased, Anti-miscegenation laws were enacted A slave became, therefore, someone who Hyde, emancipated his slave mistress in the early 20th century. Before these laws

Louisiana Bar Journal Vol. 60, No. 6 485 came into effect, freed blacks and whites could legally marry because blacks were afforded the same rights by default. In 1874, the Court decided a case in which Cornelia Hart, a black woman, married a white man 18 months before his death.10 The two had lived together for several years and had children together. Mr. Hart’s relatives challenged the children’s rights to inherit from Mr. Hart by claim- ing that the marriage was absolutely null because Cornelia was black. The Court upheld the marriage because Cornelia was a free woman and she was conferred with all of the privileges and civil rights as anyone else under federal law and, therefore, had the right to enter into the contract of marriage. Seventy years later, the Court decided a case under the newly enacted anti-mis- cegenation laws. These laws cropped up after the Radical Reconstruction era when Depicted are documents from the record in Ex Parte Plessy. Courtesy of Historical Archives of the Supreme Court of Louisiana, Earl K. Long Library, University of New Orleans. white supremacist groups sought to curb the rights of black citizens. For instance, of his being a colored man,” which was closed, and the defendants were asked to the Court considered a case involving Tony 13 Rice, a white man, and Azelia Barthelmy, unconstitutional. Contrast this with the leave. They refused to leave and were ar- a black woman, who were married and famous case of Ex parte Plessy, in which rested and charged with criminal mischief. lived together for more than 20 years.11 the Court held that separate but equal ac- The defendants asserted that the statute commodations were not only legal, but was unconstitutional in its application; that Barthelmy recorded a declaration in the 14 mortgage records stating that the home necessary. In that case, a black man was is, the statute was only enforced against they shared was a family home. Rice and denied entrance onto a railroad car reserved blacks and those acting in concert with Barthelmy separated but did not legally for whites only. The Court declared that them. The Court held, however, that be- divorce, and Rice sold the home that he separate but equal accommodations were cause the statute allowed the proprietor of had purchased during the marriage. The “in the interest of public order, peace, and the business the sole discretion to allow new owner attempted to evict Barthelmy comfort” and did not impair the rights of someone to remain in the business, there either race.15 The Court effectively ushered was no state action to violate the 14th and eventually sued to effectuate the evic- 18 tion when Barthelmy refused to leave. in the Jim Crow era and officially sanc- Amendment. Barthelmy claimed she was Rice’s wife tioned legally-imposed segregation, which and that he could not sell the property endured until a unanimous United States Contemporary Civil Rights without her consent. Supreme Court overturned this principle The Court held that Rice and Barthelmy in Brown v. Board of Education, 74 S.Ct. Racial discrimination continues to re- were not legally married and the house 686, 347 U.S. 483 (1954). quire the Court’s attention; however, other was Rice’s alone. At that time, Civil Code State v. Goldfinch was one of the first areas of civil rights also have emerged in the Louisiana Supreme Court cases to deal battle for equality. One such area is gender Article 94 stated that marriages between 16 whites and blacks were absolutely null. with the modern civil rights movement. discrimination. In Albright v. Southern Therefore, the marital community never The consequence of the retaliation fol- Trace,19 female members of a country club existed and no legal effects flowed from lowing Radical Reconstruction was the sued the owners of the club for refusing the marriage. Barthelmy was ordered to need to create laws to specifically combat them access to the dining room, which leave the property. racial discrimination. The 14th Amend- was reserved for men only. The plaintiffs The laws of “separate but equal” also ment served as the starting point to those alleged a violation of Louisiana Constitution were a post-Reconstruction era concept. laws. In Goldfinch, the defendants entered Article 1, Section 12, which provides that In 1876, the Court sided with a black a restaurant and took seats at the counter in access to public areas, accommodations reserved for “whites only,” instead of the and facilities, every person shall be free man who was refused entry into a public 17 theater in New Orleans.12 The Court held counter reserved for “colored persons.” from discrimination based on sex. Since that the plaintiff “was rudely denied ad- The defendants were refused service, discrimination was obvious, the case hinged mission to the theatre solely on account the manager was called, the counter was on whether the country club was a public

486 April / May 2013 facility subject to the constraints of the tion to provide greater protection than President Andrew Johnson and was Constitution. On that issue, the Court held the 14th Amendment, the Court actually an attempt to restore the political environment of the South. Johnson’s that the country club was a public facility limited its application. policies, however, reflected racist sentiments because there was no selectiveness in the and a fervent belief in states’ rights that resulted in addition of new members; bulk mailings Conclusion the tight restriction of African-American rights. were sent out to solicit members; and no Northern voters were unhappy with Johnson’s policies, leading Congress to initiate Radical membership requirements existed, other Whether the Louisiana Supreme Reconstruction, under which blacks enjoyed than paying dues. Court’s history in the civil rights landscape increasing political power in various areas of After the progress made for women’s has been a response to public opinion or government. Wall, Bennett, H., Ed. Louisiana: A rights, the Court again regressed by es- History. Wheeling, IL: Harlan Davidson, 2008. shaped by legislative enactments is yet (5th ed.) sentially eliminating affirmative action to be answered. This article is simply a 10. Hart v. Hoss, 26 La. Ann. 90 (La. 1874). under state law. In Louisiana Association condensation of the opinions heretofore 11. Ryan v. Barthelmy, 32 So.2d 467 (La. 1947). of General Contractors, Inc. v. State of issued by the Louisiana Supreme Court.24 12. Joseph v. Bidwell, 28 La. Ann. 382 (La. Louisiana,20 the Association of General 1876). 13. Id. at 1. Contractors brought suit challenging the The author gratefully acknowledges the 14. 18 L.R.A. 639 (La. 1892). constitutionality of the Louisiana Minor- assistance of law clerk Emily Ross in the 15. Id. at 951. ity and Women’s Business Enterprise Act. preparation of this article. 16. 132 So.2d 860 (La. 1961). The Act required that a certain percent- 17. Id. at 861. FOOTNOTES 18. This decision was overturned by the United age of funds spent on public works be States Supreme Court in Lombard v. State of La., designated solely for participation by 1. See, Gomez v. Bonneval, 6 Mart. (o.s.) 656 373 U.S. 267 (1963). The Supreme Court held that, certified minority and women’s business (La. 1819) (describing slaves as “mere passive although no specific ordinance existed prohibiting enterprises. In order to meet the percent- beings who are disposed of according to the will of the desegregation of dining establishments, Louisiana had achieved the same result through age, a certain number of public works the different state legislatures”). The Court attempted to clarify the slave’s status compared to that of a free official commands. The restaurant manager asked contracts were set aside for bidding only man. “A free man of color is capable of contracting. the petitioners to leave in accordance with directives by minority and women’s businesses. He can acquire by inheritance and transmit property from city officials. The Court held that this amounted The Court held that the Act violated the by will. He is a competent witness in all civil suits. to state action and was unconstitutional. Id. 19. 03-3413 (La. 7/6/04), 879 So.2d 121. equal protection clause of the Louisiana If he commits an offence against the laws, he is to be tried with the same formalities, and by the same 20. 95-2105 (La. 3/8/96), 669 So.2d 1185. Constitution, which the Court interpreted tribunal, as the white man.” State v. Harrison, a 21. Id. at 1196. as providing greater protection than the Slave, 11 La. Ann. 722, 724 (La. 1856). A slave, on 22. 98 S.Ct. 2733, 438 U.S. 265 (1978). equal protection clause of the federal the other hand, “is the object of contracts, not a legal 23. 123 S.Ct. 2325, 539 U.S. 306 (2003). 24. For further reading on this subject, refer Constitution. The wording of Louisi- party to contracts. He may be sold or mortgaged, but he cannot sell or mortgage. He can neither inherit, to: Judith Kelleher Schafer, “Details Are of a Most ana’s clause, according to the Court, is nor make a will, because he can possess nothing as Revolting Character: Cruelty to Slaves as Seen in clear and unambiguous and “on its face owner. He is inadmissible as a witness in any civil Appeals to the Supreme Court of Louisiana,” in absolutely prohibits any state law which suit whatever. And if accused of a crime, he is tried Slavery and the Law 240 (Paul Finkelman, ed., 2002); Judith Kelleher Schafer, Slavery, the Civil discriminates on the basis of race.”21 The by a special tribunal, to which the safeguards of the common law are unknown.” Id. Law, and the Supreme Court of Louisiana (1994); Court interpreted this to mean that the law 2. State v. Seaborne, 8 Rob. (LA) 518 (La. 1843). An Uncommon Experience: Law and Judicial must be applied regardless of race and 3. Id. at 521. The Court did not always Institutions in Louisiana in The Louisiana Purchase with no scrutiny at all. Breaking from recognize a slave’s humanity. One such blind spot Bicentennial Series in Louisiana History Volume XIII (Judith Kelleher Schafer and Warren M. United States Supreme Court precedent, was the law applicable to caretakers who were cruel to their slaves. The legal system was often Billings, eds., 1997). the Louisiana Supreme Court determined unable to adequately adjudicate cases concerning that it was irrelevant whether a racially cruelty to slaves for several reasons. Slaves were discriminatory law was designed to rem- unable to testify against whites, which meant a case Judge Ulysses Gene Thibodeaux, a graduate edy past discrimination. A compelling for cruelty often could not be heard in court at all, unless other witnesses stepped forward. Further, of Dartmouth College and state interest, e.g. diversity and increased even if criminal charges were brought, juries were Tulane Law School, where participation by minority-owned busi- composed of the caretaker’s peers, which meant a he was an Earl Warren nesses, was irrelevant to the inquiry. This jury was unlikely to hand down a guilty verdict. Scholar, is the chief judge Judith Kelleher Schafer, “Details Are of a Most of the Louisiana 3rd Circuit decision was in stark contrast to Regents Court of Appeal. He has 22 Revolting Character: Cruelty to Slaves as Seen in of University of California v. Bakke and Appeals to the Supreme Court of Louisiana,” in served as president of the 23 Grutter v. Bollinger, in both of which the Slavery and the Law 240 (Paul Finkelman, ed., National Council of Chief Court held that the use of race in school 2002). Judges and as chair of the Conference of Appellate admissions should be subject to strict 4. Buhler v. McHatton, 9 La. Ann. 192 (La. 1854). Court Judges in Louisiana. He practiced law for 17 scrutiny; that is, the policy should be 5. Prudence v. Bermodi, 1 La. 234, 241 (La. years in New York City and Lake Charles before his upheld if it is narrowly tailored to serve a 1830). election to the 3rd Circuit in 1992. He chaired the compelling governmental interest. While 6. Id. Task Force on Judicial Independence and co-chaired the Louisiana Supreme Court Task Force on Racial the Louisiana Supreme Court claimed it 7. 6 La. Ann. 223 (La. 1851). 8. Price v. Ray, 14 La. Ann. 697 (La. 1858). and Ethnic Fairness in the Courts. (1000 Main St., was interpreting the Louisiana Constitu- 9. Reconstruction officially began under Lake Charles, LA 70615)

Louisiana Bar Journal Vol. 60, No. 6 487 Louisianath Supreme Court Celebrates 200 AnniversaryBy Miriam Childs, in Law Library ofMarch Louisiana 1 Ceremony

he Louisiana Supreme Court cel- ebrated its T200th anniversary on March 1. To com- memorate the Court’s two centuries of legal heritage, the justices presided over the Bi- centennial Ceremony as a special session of court, conducted in the Court’s courtroom in New Orleans. Jus- tice Greg G. Guidry chaired the Court’s Bicentennial Commit- tee, which planned the ceremony. Louisiana Lt. Governor Jay Dardenne, Chief Justice Bernette Joshua Johnson and Justice Greg G. Guidry on March 1, 2013, at the Supreme Court. Photo by Bernie Saul Photography, Inc.

488 April / May 2013 Foundation” by Prof. Richard Campanella, Tulane University’s School of Architecture; ► “The Civilian Aspects of Louisiana Law” by Prof. John Randall Trahan, the Louis B. Porterie Professor at Louisiana State University Paul M. Hebert Law Center; ► “The Role of the Louisiana Supreme Court in the Early Civil Rights Movement” by Prof. Emeritus Raphael Cassimere, Jr., University of New Orleans; and ► “The History of the Louisiana Supreme Court” by Prof. Emeritus Warren M. Billings, University of New Orleans Emeritus Distinguished Professor of History and Bicentennial Court historian. Students from the International High School of New Orleans took the stage following the speakers to present a short, trilingual play titled “An Uncommon On hand for the Bicentennial Ceremony were three Chief Justices, from left, former Chief Justice Birth: Shaping Louisiana’s Legal Catherine D. Kimball, former Chief Justice Pascal F. Calogero, Jr. and current Chief Justice Bernette Tradition for Statehood.” Joshua Johnson. Photo provided by the Louisiana Supreme Court. At the conclusion of the ceremony, Justice Jeannette Theriot Knoll led the Master of ceremonies Louisiana Lt. Shelton J. Fabre gave the invocation, and audience in a stately rendition of the Gov. Jay Dardenne provided the opening Chief Justice Bernette Joshua Johnson National Anthem. address. The Washington Artillery delivered welcoming remarks. The Lusher Charter High School Jazz presented the colors, followed by the Four speakers discussed various Band provided lively entertainment at Pledge of Allegiance led by Donna D. aspects of the Court’s history: the reception following the ceremony. Fraiche, president of the Supreme Court ► “A Walk Through the Streets of of Louisiana Historical Society. Bishop New Orleans at the Time of the Court’s Continued next page

Speaker Prof. Emeritus Warren M. Billings, left, was made the official historian of the Louisiana Supreme Court Bicentennial. He is shown with Justice Greg G. Guidry, chair of the Supreme Students from the International High School of New Orleans presented a short, trilingual play titled Court’s Bicentennial Committee. Photo by Bernie “An Uncommon Birth: Shaping Louisiana’s Legal Tradition for Statehood.” Photo by Bernie Saul Saul Photography, Inc. Photography, Inc.

Louisiana Bar Journal Vol. 60, No. 6 489 Louisiana Supreme Court Ceremony continued

Justices of the 2013 Louisiana Supreme Court, along with five retired Justices, during the bicentennial ceremonies. From left, Justice John L. Weimer, retired Justice James L. Dennis, Justice Jeffrey P. Victory, retired Justice Chet D. Traylor, Justice Marcus R. Clark, retired Chief Justice Catherine D. Kimball, Chief Justice Bernette Joshua Johnson, retired Chief Justice Pascal F. Calogero, Jr., Justice Greg G. Guidry, Justice Jeannette Theriot Knoll, retired Justice Harry T. Lemmon and Justice Jefferson D. Hughes. Photo by Bernie Saul Photography, Inc.

Speaker Prof. John Randall Trahan. Photo by Bernie Saul Photography, Inc.

Attending the ceremony, from left, Judge Daniel L. Dysart, Louisiana 4th Circuit Court of Appeal; Prof. Paul R. Baier; Louisiana State Bar Association President-Elect Designate Joseph L. (Larry) Shea, current President- Elect, Richard K. Leefe; and current Treasurer Steven G. (Buzz) Durio. Photo by Bernie Saul Photography, Inc.

490 April / May 2013 Speaker Prof. Richard Campanella. Photo by Bernie Saul Photography, Inc.

Speaker Prof. Emeritus Raphael Cassimere, Jr. The event was well-attended. Photo by Bernie Saul Photography, Inc. Photo by Bernie Saul Photography, Inc.

Justice Jeannette Theriot Knoll led the audience in a stately rendition The Washington Artillery presented the colors during the Bicentennial of the National Anthem. Photo provided by the Louisiana Supreme Court. Ceremony. Photo by Bernie Saul Photography, Inc.

Louisiana Bar Journal Vol. 60, No. 6 491 Association Actions Midyear Meeting... LCLCE Programs

LSBA Recognizes 70-, 60- and 50-Year Members at Midyear Meeting

ouisiana State Bar were recognized for their years Association (LSBA) of service. Several honorees members who have attended in person to receive reached half a century their certificates and pose for andL beyond in their professional photographs with LSBA President careers were honored during John H. Musser IV and Louisiana the LSBA’s Midyear Meeting Supreme Court Chief Justice Aline Nobile Thompson, center, of Harahan was in January. During the Jan. 18 Catherine D. (Kitty) Kimball. recognized as a 70-year member of the Louisiana reception, 180 Bar members State Bar Association. With her are LSBA President John H. Musser IV and Louisiana Supreme Court Chief Justice Catherine D. (Kitty) Kimball. Photo by Matthew Hinton Photography. 70-Year Members Martha Jo B. Chandler...... Lafayette...... Tulane Armando I. Hernandez...... New Orleans...... Tulane These LSBA members were admitted Stephen P. Coco...... Jennings...... LSU Lynn Piazza Jackson...... New Orleans...... Tulane Dellon E. Coker...... Great Falls, VA...... LSU Hon. Antoine J. Kling, Jr...... Sorrento...... LSU to the Bar in 1943. They are listed with Robert B. Deane...... New Orleans...... LSU Hon. Charles A. Kronlage, Jr..New Orleans..Loyola their law schools. Carr Thomas Dowell III...... Covington...... LSU John D. Lambert, Jr...... New Orleans...... Loyola Marc Dupuy, Jr...... Marksville...... LSU Thomas Berthelot Lemann.New Orleans....Harvard William Joseph Guste, Jr....New Orleans...... Loyola Clarence F. Favret, Jr...... Tillamook, OR...... Loyola Harold A. Levey, Jr...... New Orleans...... Tulane Gladstone Phillips...... New Orleans...... Loyola John W. Fontenot...... New Orleans...... Tulane Angel M. Martin...... New Orleans...... Tulane Melvin I. Schwartzman...... New Orleans...... Tulane William A. Glennon, Jr...... New Orleans...... Loyola Nadia St. Paul Moise...... New Orleans...... Tulane Aline Nobile Thompson...... Harahan...... Tulane Robert K. Guillory...... Lafayette...... LSU Douglas A. Molony...... New Orleans...... Loyola Oscar J. Tolmas...... Metairie...... Tulane Charlotte A. Herman.....Bentonville, AR...... Tulane Edgar G. Mouton, Jr...... Lafayette...... Tulane

60-Year Members These LSBA members were admitted to the Bar in 1953. They are listed with their law schools.

Robert Bailey Acomb, Jr....New Orleans...... Tulane John N. Anton...... New Orleans...... Tulane Blake G. Arata, Sr...... New Orleans...... Loyola William B. Baggett, Sr...... Lake Charles...... LSU William Michael Barnett....New Orleans...... Tulane William W. Bell, Jr...... New Orleans...... LSU Thomas H. Benton, Sr...... Baton Rouge...... LSU Fallon Wigginton Bentz...... Metairie...... Tulane William O. Bonin...... New Iberia...... Tulane Winfred G. Boriack...... Houston, TX...... LSU George A. Bourgeois...... Santa Barbara, CA...... LSU William C. Bradley...... Freeport, FL...... LSU David E. Brown...... New Orleans...... Loyola Harry A. Burglass..... Diamondhead, MS...... Tulane Maurice L. Burk...... Kenner...... Tulane Among the 60-year Louisiana State Bar Association members attending the reception were, seated Joaquin Campoy...... Metairie...... from left, Robert K. Guillory, William O. Bonin, Kenneth V. Ward and Marc Dupuy, Jr. Standing ...... Northwestern/Chicago from left, Hon. Charles A. Kronlage, Jr., Thomas Kenneth Watkins, Hon. Patrick M. Schott, Hon. John D. Caruthers, Jr...... Shreveport...... LSU Louis P. Trent and Thomas H. Benton, Sr. Photo by Matthew Hinton Photography.

492 April / May 2013 Among the 50-year Louisiana State Bar Association members attending the reception were, seated from left, John B. Williams, James T. Capretz, Paul M. Lapeyre, Thomas W. Sanders, Gordie Ray White, Hon. Harry T. Lemmon, Charles R. Sonnier, H.F. Sockrider, Jr., Cyrus J. Greco, Kenneth V. Ward (60-year), James R. Coxe III and Raymond M. Allen. Standing from left, Daniel Lund, Robert K. Guillory (60-year), Keith M. Whipple, Vincent J. Ciolino, Gunther J. Michaelis, Cameron C. Gamble, C. Gordon Johnson, Jr., Jack J. Charbonnet, Edward C. Abell, Jr., W. Gerald Gaudet, Sydney B. Nelson, Hon. Louis P. Trent (60-year), Willie D. Maynor and Joel Mack Sermons. Photo by Matthew Hinton Photography.

Louise B. Nordstrom...... New Orleans...... William M. Detweiler...... Metairie...... Loyola Leon L. McIntire...... Fortson, GA...... Tulane ...... Univ. of Calif. Jimmy N. Dimos...... Monroe...... Tulane Michael C. McKeogh...... New Orleans...... LSU Dosite Hugh Perkins, Jr...... Shreveport...... Tulane Stephen A. Duczer...... Madisonville...... Loyola Lawrence L. McNamara...... Metairie...... Loyola Edwin J. Prinz, Jr...... New Orleans...... Loyola Lawrence A. Durant...... Baton Rouge...... LSU Jacqueline McPherson...... New Orleans...... Loyola Edgar N. Quillin...... Chalmette...... Tulane Anthony C. Fleming..... Jacksonville, FL...... Loyola Gunther R. Michaelis...... New Orleans...... Tulane Louis S. Quinn...... Baton Rouge...... LSU Howard L. Franques, Jr...... Lafayette...... LSU Pierre V. Miller...... Metairie...... Tulane Robert E. Rust...... Spring, TX...... Tulane Cameron C. Gamble...... New Orleans...... Tulane Neil H. Mixon, Jr...... Baton Rouge...... LSU Hon. Patrick M. Schott...... New Orleans...... Loyola James C. Gardner...... Shreveport Gordon L. Moise...... Houston, TX Aldrich L. Singletary, Jr.....New Orleans...... Loyola ...... Centenary ...... South Texas Ralph Slovenko...... Detroit, MI...... Tulane W. Gerald Gaudet...... Lafayette...... Tulane George E. Mouledoux...... New Orleans...... Loyola Arthur E. Sparling...... New Orleans...... LSU Douglas M. Gonzales...... Baton Rouge...... LSU Lee Sterling Mudd...... Shreveport.Centenary George T. Swaim, Jr...... New Orleans...... Tulane Hon. Anthony J. Graphia....Baton Rouge...... LSU S.W. Murphy...... Natchez, MS...... Tulane Thomas W. Thorne, Jr...... New Orleans...... Tulane Cyrus J. Greco...... Baton Rouge...... LSU Sydney B. Nelson...... Shreveport...... LSU Hon. Louis P. Trent...... Slidell...... Tulane Frank J. Gremillion...... Baton Rouge...... LSU Howard N. Nugent, Jr...... Alexandria...... LSU Miguel A. Valldejuli-Pele.... New Orleans...... Tulane Carey J. Guglielmo, Sr...... Baton Rouge...... LSU J.L. Peck...... New Orleans John C. Wagnon...... Lafayette...... LSU James T. Guglielmo...... Opelousas...... LSU ...... Univ. of Texas Kenneth V. Ward...... New Orleans...... Loyola James E. Guirard, Jr...... Washington, DC...... LSU Samuel W. Plauche III...... Lafayette...... LSU Thomas Kenneth Watkins...... Houma...... Loyola Charles J. Hanemann, Jr...... Houma...... Tulane Michael Pell Porter...... New Orleans...... Tulane Philip B. Watson, Jr...... St. Joseph...... Tulane James Hanemann, Jr...... New Orleans...... Tulane Richard T. Regan...... Slidell...... Tulane H. Hunter White, Jr...... New Orleans...... Tulane Samuel O. Henry III...... West Monroe...... LSU William V. Renaudin, Jr...... Metairie...... Loyola Jack B. Wise...... Thibodaux...... LSU Harley B. Howcott, Jr...... New Orleans...... Tulane Hugh T. Roberts...... New Orleans...... Loyola Hon. Edwin R. Hughes.... Longview, TX...... Tulane William Carl Roberts...... New Orleans...... LSU Harry R. Hull, Jr...... Pass Christian, MS...... Loyola Bert K. Robinson...... Baton Rouge...... LSU 50-Year Members Campbell C. Hutchinson....New Orleans...... Tulane Thomas W. Sanders...... Lake Charles...... LSU These LSBA members were admitted Wellborn Jack, Jr...... Shreveport...... LSU Richard T. Sandlin...... New Orleans...... Tulane to the Bar in 1963. They are listed with Robert E. Jackson...... Johns Island, SC...... Tulane Timothy G. Schafer...... New Orleans...... Loyola their law schools. Donald O. Jansen...... Houston, TX...... Loyola John Schwab...... Oscar...... LSU C. Gordon Johnson, Jr...... New Orleans...... Tulane Joel Mack Sermons...... Shreveport...... LSU Leroy G. Johnson...... Thibodaux...... Tulane William E. Shaddock, Jr.....Lake Charles...... LSU Edward C. Abell, Jr...... Lafayette...... LSU Lowell P. Johnston...... Tulsa, OK H.F. Sockrider, Jr...... Shreveport...... LSU M. Douglas Adkins...... Dallas, TX...... Tulane ...... South Texas Charles R. Sonnier...... Abbeville...... Tulane James L. Alcock...... Houma...... Loyola Hon. Charles E. Joiner...... West Monroe..... Studies Jude St. Romain...... Baton Rouge...... LSU Raymond M. Allen...... Lafayette...... LSU Andrew J.S. Jumonville...... Mandeville...... LSU Joseph B. Stahl...... New Orleans...... Tulane James R. Alliston...... New Orleans Donald W. Kanuk...... Springfield, VA...... Loyola Robert G. Stassi...... Metairie...... Tulane ...... Georgetown Edna S. Killian...... Metairie...... Loyola Ernest C. Thayer III...... New Orleans...... Loyola Gilbert V. Andry III...... New Orleans...... Tulane Roland C. Kizer, Jr...... Baton Rouge...... LSU James B. Thompson III...... Baton Rouge...... LSU Fred C. Arto...... New Orleans...... Loyola Omer F. Kuebel, Jr...... New Orleans...... Tulane C.N. Tilton...... New Orleans Lawrence A. Balser, Jr...... Mandeville...... Loyola Paul M. Lapeyre...... New Orleans...... Loyola ...... Univ. of Fla. Charles F. Barbera...... Washington, DC...... Tulane A. Claude Leach, Jr...... Lake Charles...... LSU Thomas N. Todd...... Chicago, IL...Southern Robert E. Becker...... Metairie...... Loyola Hon. Sam A. LeBlanc III....St. Francisville Jamie F. Veverica...... Diamondhead, MS...... Loyola Benjamin J. Birdsall, Jr...... New Orleans...... Loyola ...... Georgetown John G. Villarrubia...... Metairie...... Loyola Edward Sidney Bopp...... Mandeville...... Loyola Hon. Harry T. Lemmon...... New Orleans...... Loyola Guerdon A. Wallesverd...... New Orleans...... Tulane Paul G. Borron III...... Plaquemine...... LSU Jon L. Levy, Sr...... Scottsdale, AZ...... Tulane William F. Wessel...... New Orleans...... Tulane William C. Broadhurst...... Crowley...... LSU Eduardo Lopez...... Los Angeles, CA...... LSU Keith M. Whipple...... Bourg...... LSU Robert B. Butler III...... Baton Rouge...... LSU Daniel Lund...... New Orleans...... Tulane Gordie Ray White...... New Iberia...... LSU Frederick L. Cappel...... Lake Charles...... LSU W. Eric Lundin III...... Belle Chasse...... Tulane Jack A. Williams...... Shreveport...... Loyola Richard B. Cappel...... Lake Charles...... LSU Rodney J. Madere...... Metairie...... Loyola John B. Williams...... Baton Rouge...... LSU James T. Capretz..... Newport Beach, CA...... Loyola Robert J. Martin...... Mandeville...... Loyola Richard P. Wolfe...... New Orleans...... Tulane Jack J. Charbonnet...... New Orleans...... Loyola Henry L. Mason III...... New Orleans...... Loyola Thomas J. Wyllie...... Lacombe...... Tulane Vincent J. Ciolino...... Covington...... Tulane Willie D. Maynor...... Baton Rouge...... LSU William H. Cooper, Jr...... Baton Rouge...... LSU Hon. Aaron Frank McGee III...... Eunice...... Tulane James R. Coxe III...... Baton Rouge...... LSU

Louisiana Bar Journal Vol. 60, No. 6 493 House Approves Resolutions, Seats Committee Members at Jan. 19 Meeting The Louisiana State Bar Association’s Board of Legal Specialization amending In other business, the House elected (LSBA) House of Delegates unanimously its rules and regulations to impose penalties Jeffrey A. Riggs (15th Judicial District) approved four resolutions and seated three for the late payment of its annual dues and to chair the House of Delegates Liaison members to committees at its Jan. 19 meeting to create a mechanism for an exemption Committee for the 2013-14 term. The in New Orleans. from specialization CLE in the event of committee chair is a voting member of the The House unanimously approved: hardship related to illness, disability or other Board of Governors. ► a resolution establishing the John mitigating circumstance; and Also, Tricia R. Pierre (15th Judicial Ashby Hernandez III Memorial Award for ► a resolution from the Young Lawyers District) was elected as a member of the Francophone Leadership, to be presented Division amending the LSBA’s bylaws to House of Delegates Liaison Committee for annually to the person whose activities change the Law Student Membership dues the 2013-16 term. Thomas C. Cerullo (24th in the prior year most contributed to the from $40 per year to a one-time fee of $40 Judicial District) was elected to the Budget perpetuation and enhancement of the and to provide for electronic distribution Committee for the 2013-15 term. Francophone legal tradition; only of the Louisiana Bar Journal to law ► two resolutions from the Louisiana student members.

Mitzi Murray of West Monroe High School, second from left, was the recipient of the 2013 President’s Award for Outstanding Law-Related Education, an annual award jointly presented by the Louisiana State Bar Association (LSBA) and the Louisiana Center for Law and Civic Education (LCLCE). The award recognizes an outstanding Louisiana elementary, middle or high school teacher who imparts knowledge of law and civic education and who demonstrates interactive learning techniques that make a difference in student learning. Murray was honored at the LSBA’s Midyear Meeting reception in January. She received her award from Louisiana Supreme Court Justice Marcus R. Clark. From left, LCLCE board member Judge C. Wendell Manning, Murray, Robert Lancon (LCLCE Civics in Action Award winner), Justice Clark and LCLCE board member State Rep. Frank Hoffmann. Photo by Matthew Hinton Photography. LCLCE Presents Civics in Action Award to New Iberia Student Robert Lancon, a senior at Highland the 4-H secretary of the State Citizenship Christie Guillory, a social studies teacher Baptist Christian School in New Iberia, is Board and as an officer of the 4-H Executive at the school. the recipient of the 2012 Civics in Action Committee. He also chaired two LYAC “I have observed Robert in many Award, presented by the Louisiana Center committees. In 2012, he was instrumental in settings, from providing leadership to a for Law and Civic Education (LCLCE). getting two LYAC resolutions submitted into board meeting, to presenting workshops, Lancon received his award from Louisiana the legislative process, authored by the chair to working with younger youth during Supreme Court Justice Marcus R. Clark of both the House and Senate Committees special interest programs, to facilitating during the Louisiana State Bar Association’s on Education. These resolutions addressed a discussion, to talking to legislators and Midyear Meeting in January. the engagement of high school students in university officials, to serving as a camp The award recognizes outstanding community service and both bills passed. counselor. In all cases, Robert was a major middle or high school students who have Lancon also served as coordinator of 2012 contributor who always went beyond the call demonstrated outstanding civic virtue and Global Youth Service Day. of duty. He is truly one in a million,” said involvement in the community. Lancon “is a leader today, growing Janet Fox, Ph.D, Louisiana State University Lancon, an active member of the 4-H toward what I’m certain will be a leader professor and associate department head for Club and the Louisiana Legislative Youth for tomorrow as his life impacts our 4-H Youth Development. Advisory Council (LYAC), has served as community and state for the positive,” said June 2-7, 2013 Sandestin Golf and Beach Resort • Destin, Florida

494 April / May 2013 John Dean being sworn in before Congress. The Watergate CLE: John Dean and the Ultimate Lawyer’s Ethical Dilemma Don’t miss this fascinating CLE! The Watergate conspiracy and obstruction of justice raised classic, timeless and tough legal and ethical issues for attorneys. This seminar, featuring John Dean live and in person, examines cover- up crimes and activities, analyzing them under the post-Watergate ethical rules and standards.

Dean’s experience as White House counsel will be used to explore an attorney’s obligations under today’s rules of professional conduct when they uncover wrongdoing within an organization. Hear Dean recount his conversations during the week following the Watergate break-in with those involved. These conversations serve as a case study to illuminate, compare and contrast the applicable rules in 1972 with the reformed rules that arose.

This seminar has received glowing reviews for its engaging presentation and its relevance to the most current rules of legal ethics. See it for yourself on June 2! Continuing Legal Education (CLE)

In keeping with the educational objectives of the Louisiana Judicial College and the Louisiana State Bar Association, attendees have the opportunity to earn CLE credits on substantive trends and developments in the law in one of multiple tracks. The six half-days of outstanding CLE programming are offered in a casual atmosphere, providing an optimal learning experience and the chance to relax from the frenetic pace of everyday life. There are many benefits to attending CLE seminars in person – network with other lawyers, build contact lists, and learn up-to-date information about the law. CLE seminars can help make busy practitioners more confident in their everyday practices. Register today by visiting www.lsba.org/annualmeeting

Combined LSBA Annual Meeting and LSBA/LJC Summer School June 2-7, 2013 Sandestin Golf and Beach Resort • Destin, Florida

Louisiana Bar Journal Vol. 60, No. 6 495 Judges in the classroom Lawyers in the classroom April, 2013

To Members of the Bar,

The Louisiana Center for Law and Civic Education (LCLCE) is partnering with the Louisiana State Bar Association and the Louisiana District Judges Association to promote the Lawyers in the Classroom and Judges in the Classroom programs. Our goal is to compile a pool of volunteer professionals from the legal community who are willing to go into classrooms and present on law related topics. Students will benefit from having members of the legal community share their practical and real world experiences. The Lawyers in the Classroom and Judges in the Classroom programs have materials available on a wide variety of topics in the area of civics and law related instruction, appropriate for elementary, middle and high school levels. Contact the LCLCE for an illustrative listing of the many topics/ lessons that may be used to assist in classroom presentations and are available to judges and attorneys upon request. If you would like to volunteer to participate in the Lawyers in the Classroom and Judges in the Classroom programs, please complete and return the attached form. The LCLCE will attempt to match your schedule with a classroom in your area that has requested a presentation. If you have any questions, please utilize the contact information found on the enrollment form. We look forward to hearing from you. Sincerely,

Mark Cunningham John H. Musser IV Hon. Harry F. Randow President President President Louisiana Center for Law Louisiana State Bar Louisiana District and LL CivicAA EducationWW YYEERRSS AssociationIINN TT HHEE CCLLAAJudgesSS SAssociationSRROOOOMM JJUUDDGGEESS IINN TTHHEE CCLLAASSSSRROOOOMM CENTER FOR Louisiana LCLCE LAW & CIVIC EDUCATION April, 2012

To members of the Bar, 496 April / May 2013 The Louisiana Center for Law and Civic Education (LCLCE) is partnering with the

Louisiana State Bar Association and the Louisiana District Judges Association to promote the Lawyers in the Classroom and Judges in the Classroom programs.

Our goal is to compile a pool of volunteer professionals from the legal community who are willing to go into classrooms and present on law related topics. Students will benefit from having members of the legal community share their practical and real world experiences.

The Lawyers in the Classroom and Judges in the Classroom programs have materials available on a wide variety of topics in the area of civics and law related instruction, appropriate for elementary, middle and high school levels. Contact the LCLCE for an illustrative listing of the many topics/lessons that may be used to assist in classroom

presentations and are available to judges and attorneys upon request.

If you would like to volunteer to participate in the Lawyers in the Classroom and Judges in the Classroom programs, please complete and return the attached form. The LCLCE will attempt to match your schedule with a classroom in your area that has requested a presentation.

If you have any questions, please utilize the contact information found on the enrollment form. We look forward to hearing from you.

Sincerely,

Mark Cunningham James J. Davidson III Hon. Scott Crichton President President President Louisiana Center for Law Louisiana State Bar Louisiana District and Civic Education Association Judges Association

Judges in the classroom Lawyers in the classroom

LouisianaCENTER FOR LCLCE LAW & CIVIC EDUCATION

Volunteer to Visit a Classroom in your Area! Would you like to make a law-related presentation in a classroom in your area? See www.lalce.org for a list of suggested topics.

Name of Judge/Lawyer: ______Address:______City: ______Zip: ______Primary Email Address: ______Secondary Email Address: ______Phone: ______Best time to call: ______

Examples of teachers’ requests: • I am going to review the three branches of government with my 12th graders the week of September 16, 2013. I would like a member of the legal community to address my class that week. • I would like a Law Day presentation for my second graders on May 20, 2013. • I have no specific topic in mind but would appreciate the opportunity to have someone from the legal community visit my middle school classroom the first week of November, 2013. Specific topic you would like to present: ______Grade level preference: □ Elementary School □ Middle School □ High School Please indicate two or more days of week that work best for you: ______Please indicate month/time of year that works best for you: ______

As requests are received from educators across the state, the LCLCE will contact lawyers and/or judges in the appropriate area to discuss scheduling a school visit. Please return to Kandis Showalter, LCLCE Program Coordinator Email to: [email protected] or Fax to: (504)528-9154 For additional information: (504)619-0141 Mail to: Louisiana Center for Law and Civic Education, 601 St. Charles Avenue, New Orleans, LA 70130 www.lalce.org

Louisiana Bar Journal Vol. 60, No. 6 497 Year of the Solo By Charles J. Lowry Fastcase mobile

t is axiomatic that lawyers need to keep the Fastcase press release when the mobile 1) On your mobile device (iPhone, iPad, up-to-date. For decades, the way law synchronization ability was first offered: android), go to the app store and download, was practiced in Louisiana, across the at no charge, the Fastcase app. United States and, indeed, throughout “The company recently launched 2) Open your LSBA page, go to Fastcase theI wider world seemed to be immune Fastcase Mobile Sync, which allows and click Settings. from being buffeted by change. Keeping full integration of its mobile apps 3) Under Settings, click Mobile Sync and follow the easy instructions to link “up-to-date” back then largely meant being with the desktop version of Fastcase. Mobile Sync securely synchronizes a up your LSBA account and your Fastcase aware of new cases, new statutes, new mobile account. interpretations and new secondary materials. user’s favorite documents and search The what slowly evolved, but the how history between mobile apps and Then go ahead and save a case in the remained comfortably constant. Then came desktop versions of Fastcase, whether office Tuesday afternoon on your desktop the technological revolution. Computers through an enterprise firm subscription and look at it in court Wednesday morning replaced typewriters much more abruptly or through a state bar association.” on your mobile device: another part of the than typewriters had replaced fountain changing world conquered, thanks to LSBA Is it complicated? Is it costly? It could and Fastcase! pens; searchable files and knowledge not be easier, and it could not — literally — management systems replaced filing Charles J. Lowry is an enterprise sales representative be cheaper. To match up your desktop and for Fastcase, the LSBA member benefit for research. cabinets and form books; online databases mobile results by employing Fastcase mobile He also has given presentations at the Louisiana State replaced shelf space; the cloud replaced file sync, you need only follow three easy steps: Bar Association’s Solo and Small Firm Conference. He rooms; email and electronic filing replaced may be emailed at [email protected]. messengers and date/time stamps . . . to note only the most obvious changes. An innovation in technology which can make lawyers’ lives easier or harder, simpler or more complex, concerns locale. Lawyers no longer go to the office to practice law. McLaughlin Mediation Lawyers can now practice law wherever they find themselves. As Louisiana State Bar Association (LSBA) members, you have the ability to take Fastcase, your Bar-supplied member benefit, with you on the road, through the range of Fastcase mobile apps. MEDIATOR - - SPECIAL MASTER From the outset, Fastcase mobile has been recognized as an effective and efficient mobile platform. The very first Fastcase mobile app for the iPhone won the “new BERNARD H. McLAUGHLIN, JR. product of the year” award in 2010 from the American Association of Law Libraries. More recently, Mobile Lawyer placed Fastcase number one on the list of five legal apps for attorneys, and the American 713 Kirby Street Bar Association’s Law Technology Today Lake Charles, Louisiana 70601 named Fastcase’s android app among the (337)310-1609 Office top five in that category. Fastcase makes this mobile app freely (377)493-2052 Fax available, but to law firm and bar association E-mail: [email protected] customers there is a not inconsiderable extra: mobile synchronization. I can’t offer a better description than the one offered in

498 April / May 2013 LawyeGiver sBack Crystal Gavel Award Recipients

ive Louisiana State Bar Asso- ciation members were selected as recipients of 2012-13 Crystal Gavel Awards. Three recipients — Fattorney Ryan E. Gatti of Bossier City, law professor John K. Pierre of Baton Rouge and attorney Michael S. Walsh of Baton Rouge — are profiled in this issue. The other two recipients — attorney Wilson C. Boveland of New Orleans and Judge James R.E. (Jim) Lamz of Slidell — were profiled in the February/March 2013 Louisiana Bar Journal.

Ryan E. Gatti maintains a solo practice in Bossier City. He was selected to receive a Crystal Gavel Award for his commendable efforts in aiding the administration of justice Ryan E. Gatti of Bossier City recently received the Crystal Gavel Award from Louisiana State Bar by gathering and reviewing a significant Association District 8 representative Karelia Stewart during a ceremony on April 9 at the Bossier numbers of cases on behalf of the 26th Parish courthouse. Photo provided by Gatti Law Firm. Judicial District Court. records and contacted each of the clients by selected to receive a Crystal Gavel Award Two separate Bossier solo practitioners mail to inform them of the situation and of for his outstanding work and efforts in within a six-week period were suspended the need to seek out additional legal repre- educating individuals about legal matters from the practice of law and the court was sentation. A conservative estimate is that he through the Volunteer Income Tax Assis- asked to appoint an attorney to take posses- and his staff spent more than 40 hours to tance program. sion of their files and contact their clients. accomplish this notification. Subsequently, Pierre’s strong background in tax ac- The situation was exacerbated by months he spoke with former clients of the affected counting led to a passion for helping families of neglect of the files by the suspended attorneys as they made contact with him. learn about and ultimately achieve financial attorneys, as well as the fact that one of “This court was extremely impressed, stability and independence. To that end, he the attorneys had relocated to Texas and but not surprised, by the professional has established a Volunteer Income Tax the other suffered from psychological and and ethical manner in which Mr. Gatti Assistance (VITA) program site hosted substance abuse problems. After the first performed,” said Hon. Parker Self, chief by the Low-Income Taxpayer Law Clinic attorney’s suspension, the court reached judge of the 26th Judicial District Court. at SULC. He also worked to establish an out to the Bossier Bar in hopes of forming “Mr. Gatti’s sense of honor and duty are Earned Income Tax Credit (EITC) Day a committee to address the predicament, so well known in this community. I am certain each year at the law center, a special day set that the burden would not fall on the shoul- that his efforts served to restore the faith in aside with the goal of reaching large groups ders of one attorney alone. Gatti’s immediate the legal profession of those persons who of people with an annual income under response was that he’d be happy to assume had been adversely affected by the actions $50,000 from wages, self-employment responsibility for the gathering and review of these attorneys.” or farming income to assist them with tax of the files. When the second attorney was Gatti earned his law degree from Loui- preparation issues. Because of his foresight, suspended within six weeks, Gatti again siana State University Paul M. Hebert Law the SULC VITA site was named the Best in immediately stepped up to volunteer his Center. the Baton Rouge Area Coalition and was services to the court by taking possession chosen as VITA Site of the Year in 2010. of the client files. John K. Pierre is a law professor and Pierre also received special recognition for Gatti quickly began the task of collecting Vice Chancellor for Institutional Account- his outstanding public service through the the files, spread over several locations and ability and Evening Division at Southern Stakeholder Partnerships, Education and storage areas. He thoroughly reviewed the University Law Center (SULC). He was Communication (SPEC); VITA; and Tax

Louisiana Bar Journal Vol. 60, No. 6 499 Two 2012-13 Crystal Gavel Award recipients, law professor John K. Pierre of Baton Rouge, left, and attorney Michael S. Walsh of Baton Rouge, right, recently received their awards from Louisiana State Bar Association President-Elect Richard K. Leefe. Photo by LSBA Staff.

Counseling for the Elderly (TCE) programs. Pierre earned his law degree from South- tion of the Battered Women’s Shelter. Additionally, Pierre was instrumental ern Methodist University School of Law in Walsh was a long-standing volunteer in in establishing SULC as a part of The Dallas, Texas. the Louisiana attorney disciplinary system, Path to Financial Independence Strategies initially on the Hearing Committee level. National Consortium of Historically Black Michael S. Walsh is a partner in the He served for six years on the Louisiana Colleges and Universities which provides Baton Rouge law firm of Lee & Walsh. Attorney Disciplinary Board after being asset building strategies and techniques to He was selected to receive a Crystal Gavel appointed by Louisiana Supreme Court neighboring communities. Through this Award for his noteworthy efforts in aiding Chief Justice Catherine D. Kimball, and consortium, SULC improves the economic the administration of justice and assisting was eventually chair of the Board. He is well-being of families through building fam- groups and individuals on a volunteer ba- the 2012 chair of the Louisiana State Bar ily income and assets and helping families sis through charity work and board mem- Association’s Criminal Law Section and is understand strategies for growing a more berships. a past president of the Louisiana Associa- sound economic foundation to increase Walsh has taken extended mission trips tion of Criminal Defense Lawyers. He also financial stability. The Financial Indepen- to Honduras on several occasions and to is a past president of the Baton Rouge Bar dence Program at SULC integrates the the Appalachian Mountains to perform of Criminal Justice and a member of the VITA, EITC and Individual Development charity work in the form of constructing National Association of Criminal Defense Account (IDA) programs with financial houses and installing sewer facilities. He Lawyers. He is serving as the 2012-13 education training to successfully move is a past chair of the Catholic Diocese of president of the Baton Rouge Bar Associa- working families from poverty to increased Baton Rouge Youth Protection Commit- tion and the Baton Rouge Bar Foundation. financial stability. tee and currently serves on the Louisiana “[Mr. Walsh] is always available and “The Baton Rouge Bar Association is Commission on Law Enforcement and willing to assist an attorney who calls him pleased to submit the nomination of John the Baton Rouge Children’s Advocacy and needs service or assistance,” said at- K. Pierre,” said Ann K. Gregorie, executive Center. He is a member of the Executive torney Jamie Elizabeth Fontenot, who director of the Baton Rouge Bar Associa- Board of the Istrouma Area Council of nominated Walsh for the award. “In my tion. “By way of a successful career and the Boy Scouts of America, and he has opinion, Mike Walsh epitomizes what the a giving, compassionate spirit, hard work chaperoned numerous Boy Scout trips in- recipient of this award should possess. I and determination, John has been a shining volving strenuous physical outings with a am always amazed at both the quantity example for his son, Toussaint, who is in total lack of modern comforts. He also is and quality of public service he performs.” his second year of law school at SULC and the past chair of the Capital Area Family He earned his law degree from Louisi- shares his father’s passion for the law and Violence Intervention Center, Inc., having ana State University Paul M. Hebert Law volunteerism.” served in that capacity during the acquisi- Center.

500 April / May 2013 lawyAssistanceers By J.E. (Buddy) Stockwell Planting International Seeds

s the executive director of the After my presentation, however, I Lawyers Assistance Program, Lawyers Assistance was pleased when the judges had lots of Inc. (LAP), I conduct dozens Program, Inc. (LAP) questions and were extremely interested of presentations across the Your call is absolutely confidential in the subject matter. Their comments Astate each year. But last October, I was as a matter of law. and questions reflected they were paying very excited to receive an unexpected Toll-free (866)354-9334 keen attention despite all the cross-talk. invitation to speak to a group of visiting Email: [email protected] Their interest in LAP had been piqued. judges from Kazakhstan! The visiting judges completely related to As part of an Open World Delegation, completely deny the true seriousness of the difficulty of getting lawyers and judges several judges from Kazakhstan spent their condition(s). to surrender and ask for help. a week in Louisiana to learn about our I also spoke about how LAP could not The judges explained that, at present, legal system. A day-long presentation at be nearly as effective as it is without the they perceive that impairment problems the Louisiana Bar Center in New Orleans Louisiana Supreme Court’s recognition in Kazakhstan’s legal profession emanate was part of their visit and various officials of effective treatment facilitation and primarily from alcoholism. Depression from the Louisiana State Bar Association recovery monitoring through LAP, is not something they have focused on. (LSBA) addressed the judges. I had the supporting legislation and court rules that After hearing about our general statistics privilege of speaking on behalf of LAP. I provide confidentiality to those who reach in the legal profession both in Louisiana explained to the judges the various services out to LAP, and the support of the LSBA and and the United States where depression LAP offers to confidentially address the its Committee on Alcohol and Drug Abuse rates exceed alcoholism rates, the judges high substance abuse and depression rates that makes it possible to carry out LAP’s articulated an interest in becoming better found in the legal profession. mission statewide. LAP’s successful efforts able to recognize and help depressed Prior to the presentation, I reviewed reflect indispensable support from many lawyers and judges in their country, too. Kazakhstan’s history and culture to better people and entities within our profession. At the end of the event, the judges said know my audience. One never knows I explained that I rely on, and exchange they had never heard of, nor envisioned, what cultural differences might present the information with, other LAP programs a program like LAP. They think it is a danger of a terrible slip-of-the-tongue faux nationwide to help further LAP’s mission fantastic idea and greatly needed in their pas or other unintended misunderstanding in Louisiana. legal profession too. One judge said: by an innocent choice of words. While addressing the judges, I tried my “Please know that we will remember this After careful consideration, I saw no best to speak slowly so the two interpreters day and that we learned about LAP here reason to edit my general LAP presentation could accurately translate and transmit during our visit to Louisiana. Thank you!” covering mental impairment statistics in my comments into the judges’ electronic While LAP has planted a seed of hope in the legal profession, the treatable disease ear pieces. Soon into my presentation, Kazakhstan, its attention remains focused aspects of alcoholism, addiction and the judges began cross-talking quite a bit upon the large number of lawyers and depression, etc., and a thorough overview and in a language I obviously could not judges who still suffer in Louisiana. For of the concept of “lawyers helping lawyers” understand, even seemingly ignoring me confidential help, call LAP at (866)354- that launched LAP over two decades altogether at one point. 9334, email [email protected], or ago. I also explained that LAP’s mission The cross-talk amongst the judges visit LAP online at www.louisianalap.com. now extends to “judges helping judges.” got so unnerving to me that I stopped to We face an ever-increasing challenge of politely ask if I should wait to continue J.E. (Buddy) Stockwell is reaching many who still suffer. the executive director of speaking and whether everything was the Lawyers Assistance I explained that reaching out is not alright. A rapid-fire exchange of many Program, Inc. (LAP) and always easy because lawyers and judges are words between the visiting judges and the can be reached at (866)354- professionally trained never to surrender interpreters garnered only a simple “no 9334 or via email at LAP@ louisianalap.com. and never to ask for help. In many cases, problem, everything is fine.” Honestly, impaired lawyers or judges in denial I did not know how it was going and the will not initially accept help. Instead, body language of the judges was very they will attempt to greatly diminish or hard to read!

Louisiana Bar Journal Vol. 60, No. 6 501 Crossword Puzzle By Hal Odom, Jr. Is it a crime?

1 2 3 4 5 6 7 ACROSS DOWN

8 1 One of five in the Controlled 1 Intentional and repeated following Dangerous Substances law (8) to harass someone (8) 9 10 5 Bad thing to jump, if you’re a 2 The usual object of 24 Across (5) criminal (4) 3 Individual acts of 9 Source of groundwater (7) misappropriation (12) 10 Fiery crime (5) 4 Sz. of printer paper (3) 11 12 11 What a principal might do in a 6 An attempt to commit 15 Down (7) bank robbery (4, 2, 3, 3) 7 “Uncle Earl” (4) 13 14 Capture, as a criminal (3) 8 Yegg’s specialty (12) 14 15 16 17 16 Interior design (5) 12 Large theme park near Orlando (5) 17 Common article (3) 13 One form of distribution of 18 Nasty bacteria that infect controlled dangerous substances (8) the throat (12) 15 Intentional use of force or violence 18 19 21 Representative (5) on someone (7) 22 Logically, only assisting or 19 Tableware (5) 20 encouraging this act is a crime 20 Nonconsensual intercourse (4) in Louisiana (7) 22 Someone who’s broke has’t a ___ (3) 21 22 23 “Orinoco Flow” songstress (4) 24 Breaking and entering (8)

23 24 Answers on page 542.

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502 April / May 2013 Focon Professionalismus By Sharonda R. Williams It’s Just Good Manners

f you ask a lawyer what advance,” is much better than “Send me of opposing counsel. Do not say anything professionalism means, you likely your edits today.” if you do not have something nice to say. will get a lot of different answers. When you later meet opposing counsel, Some might say it means civility ► Wait your turn and do not whether in a professional or social setting, toI other lawyers. Some might say it interrupt other people when they are shake hands and be gracious. means exhibiting integrity. Others speaking. Judges hear arguments and might say that last hour of continuing make decisions based on those arguments. ► Respect differences. Parties have legal education squeezed in at the end Judges should not be put in the position opposing views, and it is our duty to of every calendar year. When you think of refereeing lawyers’ tirades. Exercise represent those clients. We should not about it, professionalism really is not that courtesy and respect for opponents who allow those different positions to lead us to complicated. It’s just good manners. If we are speaking and presenting their clients’ act unprofessionally. We cannot allow the take a minute to remember a few important positions. Judges are able to intervene and differences in positions taken in zealously and basic lessons that our parents taught ensure that lawyers give each other the representing our clients to threaten our us, those lessons can be applied to the respect they deserve, but what happens level of professionalism. If opposing legal profession to ensure that we exercise when this situation occurs outside the counsel fails to act professionally, the civility that the profession deserves courtroom? We must be mindful that what do not stoop. Maintain the utmost and demands. others say is just as important as what we professionalism even when the other side have to say, particularly when someone refuses to do so. ► Say “Please” and “Thank you” else presents a viewpoint in an intelligent often. It shows respect and appreciation. and respectful way. Professionalism is essential to In addition, if you are thanked, then maintaining the integrity and enhancing say, “You’re welcome.” Niceties go a ► No name calling. Litigation often the reputation of the legal profession. long way and can foster a wonderful becomes very contentious, but we must However you define professionalism, it is working relationship, even with opposing be careful to be good advocates without easy to exhibit it. Just mind your manners. counsel. When asking opposing counsel becoming overly emotional. Calling for a professional courtesy such as an opposing counsel or litigants names must Sharonda R. Williams is a extension of time, do not demand the be avoided — no matter how contentious chief deputy city attorney for the City of New extension, but ask nicely and say “thank the litigation becomes and even if Orleans. She is a member you” when it is given. This rule applies someone calls you a name. of the Louisiana State Bar equally to email correspondence. When Association’s Committee sending an email to colleagues requesting ► Good sportsmanship. After the on the Profession and chair of the LSBA’s Minority a response, it is professional to include verdict, settlement or deal, no matter the Involvement Section. (Ste. the word “Please.” For example, saying, outcome, be pleasant. Do not gloat or 5E03, 1300 Perdido St., “Please send me your edits by the close show off, but be kind. Don’t sulk or get New Orleans, LA 70112) of business tomorrow. Thanking you in mad, but be a good sport and speak well

Important Reminder: Lawyer Advertising Filing Requirement Per Rule 7.7 of the Louisiana Rules use/dissemination. Written evaluation process, the required filing fee(s) and the of Professional Conduct, all lawyer for compliance with the Rules will be pertinent Rules are available online at: http:// advertisements and all unsolicited written provided within 30 days of receipt of a www.lsba.org/LawyerAdvertising. communications sent in compliance with complete filing. Failure to file/late filing Inquiries, questions and requests for Rule 7.4 or 7.6(c) — unless specifically will expose the advertising lawyer(s) to risk assistance may be directed to LSBA exempt under Rule 7.8 — are required to be of challenge, complaint and/or disciplinary Ethics Counsel Richard P. Lemmler, Jr., filed with the LSBA Rules of Professional consequences. [email protected], (800)421-5722, Conduct Committee, through LSBA Ethics The necessary Filing Application Form, ext. 144, or direct dial (504)619-0144. Counsel, prior to or concurrent with first information about the filing and evaluation

Louisiana Bar Journal Vol. 60, No. 6 503 Discipline Reports REPORTING DATEs 2/1/13 & 2/4/13

REPORT BY DISCIPLINARY COUNSEL

Public matters are reported to protect the public, inform the profession and deter misconduct. Reporting date Feb. 4, 2013.

Decisions inactive status ordered by the court on Gist: Failure to timely remit funds to third- Dec. 12, 2012. JUDGMENT FINAL and party medical providers. Dele Akintade Adebamiji, Baton EFFECTIVE on Dec. 12, 2012. Katherine Guste, Metairie, (2012-B- Rouge, (2012-B-2411) Public reprimand, Guy J. D’Antonio, Lacombe, (2012- 1434) Suspended for two years ordered with conditions to attend Ethics School, B-2429) Interim suspension ordered by by the court on Dec. 4, 2012. Rehearing ordered by the court as consent discipline the court on Nov. 21, 2012. denied on Jan. 25, 2013. JUDGMENT on Jan. 11, 2013. JUDGMENT FINAL Demetrie Ford, Gretna, (2012-B- FINAL and EFFECTIVE on Jan. 25, and EFFECTIVE on Jan. 11, 2013. Gist: 2643) Suspended for a year and a day, 2013. Gist: Failed to communicate with Failed to obey orders of the court; and fully deferred, subject to two years’ her client; failed to withdraw from the engaging in the unauthorized practice of probation, ordered by the court as consent representation when she was discharged; law in another jurisdiction. discipline on Jan. 18, 2013. JUDGMENT failed to provide an accounting or refund Seth J. Bloom, New Orleans, (2012- FINAL and EFFECTIVE on Jan. 18, 2013. the unearned portion of the fee she was B-2298) Suspended for one year and one day, fully deferred, subject to two years’ supervised probation, ordered Elizabeth A. Alston by the court as consent discipline on Counselor, advocate and expert witness Nov. 16, 2012. JUDGMENT FINAL Practice limited to matters involving legal and judicial ethics and EFFECTIVE on Nov. 16, 2012. Gist: Failure to adequately maintain Chair, Disciplinary Board, 1991 – 1992 the financial records of his client trust AV-rated (Martindale-Hubbell) for twenty years account, which resulted in a negligent conversion of funds. Alston Law Firm, LLC Aaron F. Broussard, New 322 West 26th Avenue, Covington, LA 70433 Orleans, (2012-OB-2194) Permanent 985-809-6779 or toll-free: 877-809-6779 resignation from the practice of law http://EthicsByAlston.com in lieu of discipline ordered by the court on Oct. 24, 2012. JUDGMENT FINAL and EFFECTIVE on Oct. 24, 2012. Gist: Commission of a criminal act (guilty plea to conspiracy and theft charges). Raymond Canzoneri, Jr., Metairie, (2012-B-2406) Suspended for 18 months, with all but nine months deferred, retroactive to Aug. 7, 2012, the date of his interim suspension, ordered by the court as consent discipline on Dec. 14, 2012. JUDGMENT FINAL and EFFECTIVE on Dec. 14, 2012. Gist: Facilitated the unauthorized practice of law by a suspended lawyer. John Conry, Kenner, (2012-OB- 2544) Transfer to interim disability

504 April / May 2013 paid; failed to return the client’s file; and by the Louisiana Attorney Disciplinary Gist: Neglected legal matters; failed to charging an excessive fee. Board on Oct. 10, 2012. JUDGMENT communicate with her clients; failed to Edward Hebert II, New Orleans, FINAL and EFFECTIVE on Oct. 30, promptly deliver funds owed to clients (2012-B-2102) Suspended for 18 months 2012. Gist: Failed to comply with bar and third person; and failed to cooperate ordered by the court on Nov. 16, 2012. membership requirements; practiced with ODC in its investigation of the JUDGMENT FINAL and EFFECTIVE on law while ineligible; and using false, complaints filed against her. Nov. 30, 2012. Gist: Neglected legal matters; misleading or deceptive firm name, logo, Claire P. Sharp, Shreveport, (2012-B- failed to communicate with his clients; letterhead, professional designation, trade 2463) Public reprimand ordered by the failed to refund unearned fees; and failed name or service mark. court as consent discipline on Jan. 11, 2013. to cooperate with ODC in its investigation Darlene Sansone Ransome, Baton JUDGMENT FINAL and EFFECTIVE on of the complaints filed against him. Rouge, (2012-B-1823) Suspended for 18 Jan. 11, 2013. Gist: Respondent continued Rebecca J. King, Atlanta, Ga., months with all but six months deferred, to employ an attorney subsequent to his formerly of New Orleans, (2012-B-2409) subject to condition of Ethics School, permanent disbarment in violation of Rule Suspended for three years and to make ordered by the court on Jan. 11, 2013. 5.5 of the Louisiana Rules of Professional restitution ordered by the court as consent JUDGMENT FINAL and EFFECTIVE on Conduct. discipline on Dec. 14, 2012. JUDGMENT Jan. 25, 2013. Gist: Engaging in conduct Owen J. Trahant, Jr., New Iberia, FINAL and EFFECTIVE on Dec. 14, 2012. involving dishonesty, fraud, deceit or (2012-B-1435) Suspended for six Gist: Neglected a legal matter; failed to misrepresentation. months, followed by a one-year communicate with a client; failed to refund Krystal Denise Richardson, Baton supervised probation plus Ethics unearned fees; failed to timely remit funds Rouge, (2012-B-2299) Suspended for School and restitution, ordered by the owed to a third-party medical provider; and three years, retroactive to July 29, 2011, court on Dec. 14, 2012. JUDGMENT failed to cooperate in the investigation of the date of her interim suspension, FINAL and EFFECTIVE on Dec. 28, complaints filed against her. ordered by the court as consent discipline 2012. Gist: Abdicating his professional Daarina H. Phillips, Baton Rouge, on Nov. 16, 2012. JUDGMENT FINAL responsibilities to others in his law office (11-DB-073) Public reprimand ordered and EFFECTIVE on Nov. 16, 2012. who facilitated a pattern of fraudulent real estate closings; and for failing to refund an unearned fee and ordered to pay restitution. hrIstoVIch earneY llp c & K , Continued next page attorneYs at law

M E B R S M E B R S

DEFENSE OF ETHICS COMPLAINTS AND CHARGES 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 elIzaBeth s. cordes Y

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Former Special Counsel, & STEVEN SCHECKMAN [email protected] S E R FormeJudiciaryr Special Cou Commissionnsel, Judiciary Co (1994-2008)mmission (1994-2008) 82982 9Baronne Baronne S tStreetreet V I C E S NewNS eOrleans,TwE OVrEleNansS, LouisanaCLoHuEisCanKaM 70A 170113N13 FormerPhone SpeciPah l504.581.9322o Cnoe u5n04se.5l8, 1J.u9d32ic2i a•• rF yFaxa xC 5o0 m504.581.76514.m58i1s.s7i6o5n1 (1994-2008) [email protected] [email protected] Baronne Street New Orleans, Louisana 70113 JULIE BROWN WHITE Phone u50l4ie.581.9rown322 • Fax 504hite.581.7651 Former ProsecJutostr,e Ovfe f@iBces sowf Deitshcipcslil naWawry.c Coomunsel (1998-2006) 11404 FormerN. Lake Sh Prosecutor,erwood Ave., S uite A Office of BDisciplinaryaton Rouge, Lo uCounselisiana 708 1(1998-2006)6 Phone 2U2L5-IE293-4R7O74W •N Fax 22H5.I2T9E3.6332 11404 N.J Lakejulie@ BSherwoodsswethicslaWw.c oAve.,m Suite A Former ProsecBatonutor, O Rouge,ffice of D Louisianaisciplinary C70816ounsel (1998-2006) Mediation | Jury Focus Groups | Special Master Phone114 0225-293-47744 N. Lake Sherw •o oFaxd A v225.293.6332e., Suite A [email protected] Rouge, Louisiana 70816 www.tomfoutzadr.com Phone 225-293-4774 • Fax 225.293.6332 [email protected]

Louisiana Bar Journal Vol. 60, No. 6 505 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 Feb. 1, 2013. Respondent Disposition Date Filed Docket No. Seth J. Bloom [Reciprocal] Suspension. 12/20/12 12-2843 Aaron F. Broussard Permanent resignation. 12/20/12 12-2705 Walter Brent Pearson Permanently disbarred. 12/20/12 12-2748 Thomas G. Wilkinson [Reciprocal] Interim suspension. 12/27/12 12-2704

Discipline continued from page 505 Admonitions (private sanctions, Compliance with Supreme Court’s Rules James David Turnage, New Hebron, often with notice to complainants, etc.) regarding payment of bar dues, payment MS, (2012-B-2008) Permanent issued since the last report of misconduct of disciplinary assessment and disclosure disbarment ordered by the court on involving: of trust account information...... 1 Nov. 16, 2012. JUDGMENT FINAL and No. of Violations Failure to maintain a reasonable level of EFFECTIVE on Nov. 30, 2012. Gist: communication...... 1 Engaged in the unauthorized practice of A lawyer may deposit the lawyer’s own law following disbarment. funds in a client trust account for sole Failure to personally sign all checks written Maurice Tyler, White Plains, NY, purpose of paying bank service charges on from the attorney/client trust account.... 1 formerly of Metairie, (2013-OB-0161) that account or obtaining a waiver of those Unauthorized practice of law...... 1 Transfer to disability inactive status charges, but only in an amount necessary ordered by the court on Jan. 23, 2013. for that purpose...... 1 TOTAL INDIVIDUALS JUDGMENT FINAL and EFFECTIVE ADMONISHED...... 3 on Jan. 23, 2013. Thomas G. Wilkinson, Gretna, (2012- B-2123) Interim suspension ordered by the court on Oct. 24, 2012.

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the union displayed its disapproval of article/SB100014241278873243072045 the cuts by striking in 24 of 33 Hostess 78129282170898870.html. Alternative Bakeries. Nick Brown and Martinne Before Judge Robert Drain of the Dispute Geller, “Twinkies Not Dead Yet, Judge Federal Bankruptcy Court of the Southern Resolution Tries To Save Hostess Jobs,” Reuter (Nov. District of New York would grant the 19, 2012), http://www.reuters.com/ar- liquidation, he wanted both sides to try ticle/2012/11/20/us-hostess-bankruptcy- one last time to attempt to reach some Hostess, Inc. Mediates hearing-idUSBRE8AI0XS20121120 and sort of compromise. Judge Drain found in Hopes of Avoiding Greenhouse, supra. the Bakers Union decision to strike fol- Hostess was not in a financial posi- lowing its silence in court regarding the Liquidation tion to weather this strike. It was forced contract changes “illogical.” Troy Bennett, to immediately close its plants and went “Mediation Fails in Negotiations Between In re: Hostess Brands, Inc., 2012 WL to court seeking liquidation. Jaqueline Hostess and Union Workers,” Bangor 5983096. Palank, Rachel Feintzeig and Mike Daily News (Nov. 20, 2012), http://ban- Hostess Brands, Inc. filed for Chapter Spector, “Hostess, Bakers Union Agree gordailynews.com/2012/11/20/business/ 11 bankruptcy in January 2012. Struggling to Mediation,” The Wall Street Journal mediation-fails-in-negotiations-between- with large debts, Hostess needed to make (Nov. 19, 2012), http://online.wsj.com/ hostess-and-union-workers/. extensive labor cuts in order to avoid liquidation. Stephen Greenhouse and Michael J. De. La Merced, “At Judge’s Urging, Hostess and Union Agree to Mediation,” Dealbook (Nov. 19, 2012), http://dealbook.nytimes.com/2012/11/19/ hostess-and-bakers-union-agree-to- mediation/. Hostess thus attempted to renegotiate LEARN FROM THE EXPERTS Free Breakfast CLEs contracts with its unions, including its two main unions, Bakers Union and the Inter- Premises Liability in Louisiana national Brotherhood of Teamsters. Both unions blamed Hostess’ poor financial Joe Hassinger, JD situation on its years of mismanagement, and both unions struggled with accept- June 20 • Metairie 7:45-8:45 am ing any contract changes. Nevertheless, One Lakeway Center following eight months of negotiations, 2nd Floor Conference Room • 3900 N. Causeway Blvd. Teamsters agreed to settle on a new con- tract that cut pay and health contributions Family and Divorce Mediation and suspended pension contributions until 2015. The Bakers Union and Hostess, Kenneth Henke, JD however, were never able to agree on a June 28 • Baton Rouge new contract. 7:45-8:45 am In October 2012, Hostess filed a mo- Burden Conference Center tion in court to impose wage and benefit at the Rural Life Museum • 4560 Essen Lane cuts to the Bakers Union contract, and the court granted the changes. In re maps continues to offer FREE CLEs and CEs at any firm or office. Hostess Brands, Inc., 2012 WL 5983096. www.maps-adr.com OR CALL 800-443-7351 The Bakers Union never objected to the New Orleans 800.443.7351 • Northshore 800.503.4537 • Baton Rouge 866.769.4553 changes in court. However, on Nov. 9, Register at www.maps-adr.com or [email protected]

508 April / May 2013 Concerned about the potential loss of possible reasons could have contributed Union believed were inefficient for the of more than 18,000 jobs, Judge Drain to the mediation’s failure. The Bakers company and would also lead to the com- believed it was “worthwhile for both the Union blamed mismanagement, large debt pany’s downfall. Adams, supra. Though union and debtors to explore why this and big raises that Hostess executives got the Bakers Union remained “respectful of happened.” Id. Judge Drain also stated last year as the reasons that the company the judge’s decision to mediate,” the presi- that mediation would allow the Bakers reached such financial failure, and did dent of the Bakers Union also commented Union and Hostess to work out their not seem interested in making any con- that he was not too optimistic about the differences in private, avoiding a more cessions prior to the mediation. Michael mediation. Palank, supra and Winter, public and expensive resolution. Brown, Winter, “Hostess Mediation Fails, So supra. Hostess also might have seen no supra. Judge Drain believed a resolution Twinkies Company To Liquidate,” USA room for compromise. Heather Lennox, was possible and served as the mediator Today (Nov. 21, 2012), http://www.usato- an attorney for Hostess, said she thought himself. Id.; Rachel Feintzeig, “Hostess day.com/story/news/nation/2012/11/20/ the financial damage from the Bakers Plans to Liquidate after Mediation Fails,” hostess-union-mediation-fail-liquida- Union strike was beyond repair. Palank, The Wall Street Journal (Nov. 20, 2012), tion/1718231/; and Susan Adams, “Why supra. Likewise, Hostess CEO Gregory http://online.wsj.com/article/SB100014 Hostess Had to Die,” Forbes (Nov. 21, Rayburn said the strike was their “death 2412788732371310457813150237882 2012), http://www.forbes.com/sites/ knell.” Winter, supra. Others speculated 1868.html. susanadams/2012/11/21/why-hostess- that, mediation or not, Hostess would Unfortunately, Hostess and the Bakers had-to-die/. still be liquidating, not because of poor Union were unable to reach an agreement Hostess previously did not agree to administration, but because of its products through this mediation, and Hostess any contractual changes because it was and its lack of change and innovation was forced to proceed with liquidation. fearful that the debt of the company was over the years. Hand Cardello, “Media- Feintzeig, supra. already too deep, and taking any additional tion Could Never Have Saved Hostess: Because of the confidentiality of the concessions would only delay liquidation Its Problems Ran Much Deeper,” Forbes mediation process, it is unknown what and not ultimately save Hostess. Green- (Nov. 21, 2012), http://www.forbes.com/ exactly transpired during the mediation. house, supra. Also, when the Teamsters sites/forbesleadershipforum/2012/11/21/ Neither side has commented on why the Union agreed to new contract conditions, mediation-could-never-have-saved- mediation was unsuccessful, but a number it agreed to work rules that the Bakers hostess-its-problems-ran-much-deeper/.

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Louisiana Bar Journal Vol. 60, No. 6 509 What exactly occurred during the bankruptcy. ASARCO also sought to pay mediation may never be known, but it is $1 million for additional services relating to not unreasonable to conclude that, in this three pending fraudulent-transfer cases on case, the effort to mediate was doomed Bankruptcy which Lehman had worked. The bankruptcy before it began. Nevertheless, Judge Drain Law court approved the $1 million compensation insisted on the mediation because to not do for additional services, but denied the so “would have left a huge question mark requested changes to the engagement letter in the case.” Winter, supra. The use of and the increase in fees. mediation ensured that all avenues of reso- Professionals Bound by Thereafter, Lehman filed its own lution were explored before 18,500 jobs Compensation Agreements bankruptcy and Barclays Capital Inc. bought were put on the line with the liquidation Approved at Bankruptcy Filing Lehman’s business. Barclays refused to of the company, showing the increasingly proceed under the terms of the engagement important role mediation plays in today’s ASARCO, L.L.C. v. Barclays Capital Inc. letter with ASARCO, and the bankruptcy legal and business disputes. (In the Matter of ASARCO, L.L.C.), 702 court permitted the revision to the engagement F.3d 250 (5 Cir. 2012). letter and the increase in compensation. Once —Monique Daley The chapter 11 debtor, ASARCO, ASARCO’s bankruptcy plan was confirmed, 2nd-Year Student, LSU Paul M. Hebert L.L.C., retained Lehman Brothers as its the court praised Barclays for its work in Law Center, Civil Mediation Clinic financial advisor and investment banker “one of the most successful bankruptcies in Under the Supervision of pursuant to 11 U.S.C. § 328(a). Section U.S. history.” After confirmation, Barclays Paul W. Breaux, LSU Adjunct 328(a) allows a professional seeking to requested approval for fees relating to Clinical Professor, and represent a bankruptcy estate to obtain additional unanticipated services, a success Chair, LSBA Alternative Dispute prior court approval of its compensation fee and an auction fee. The court awarded Resolution Section agreement. Years later, ASARCO sought to the unanticipated services fee, but denied the 16643 S. Fulwar Skipwith Rd. retroactively increase the monthly amounts success fee and auction fee. Both ASARCO Baton Rouge, LA 70810 paid to Lehman under its engagement letter and Barclays appealed, and the district court and for authority for Lehman to apply for affirmed. LSJB Ad5c '11_Layout 1 8/16/11 1:27 PM Pageadditional 1 fees based on the outcome of the In determining whether a professional

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510 April / May 2013 can be compensated beyond what is agreed a plan under which there would be a 100 certified its order for direct appeal to the to at the onset of the case, the 5th Circuit percent return to all creditors with new 5th Circuit. interpreted section 328(a) to mean that: equity interests given to the debtors’ The 5th Circuit held that Perdue did prepetition shareholders. After the plan not overrule the 5th Circuit jurisprudence [a] professional may be retained was confirmed, CRG sought to recover that “bankruptcy courts have discretion on any reasonable terms; but, once its fees based on the lodestar method and, to enhance fees for professionals when those terms have been approved upon the recommendation of the debtors’ their superior performance produce[s] pursuant to section 328(a), the board of directors, an additional $1 million outstanding results.” Under the 5th Circuit court may not stray from them fee enhancement. While no party objected case law, a bankruptcy court must first at the end of the engagement to the fees, the U.S. Trustee objected to calculate the lodestar. Then the court unless developments subsequent the fee enhancement, arguing that CRG may adjust the lodestar up or down based to the original approval that were was adequately compensated under the on the factors contained in section 11 incapable of being anticipated render fees alone. U.S.C. § 330 and those listed in Johnson the terms improvident. The bankruptcy court denied the fee v. Georgia Highway Express, Inc., 488 enhancement, finding that while CRG’s F.2d 714 (5 Cir. 1974). The 5th Circuit The 5th Circuit found that in order to services contributed to the outstanding found that while bankruptcy courts have meet this high burden, the professional result of the case, CRG had failed to satisfy “considerable discretion” when adjusting must do more than show the adjustment the strict requirements of the United States the lodestar amount, upwards adjustments in compensation is appropriate and must Supreme Court case Perdue v. Kenny should be rare and exceptional. As Perdue prove that subsequent developments were A. ex rel Winn, 130 S.Ct. 1662 (2010). did not indicate that it was to extend beyond “incapable of being foreseen” such that an In Perdue, the Supreme Court held that federal fee-shifting cases, the 5th Circuit increase should be approved. courts could increase compensation based concluded that it does not explicitly apply to The 5th Circuit found Barclays could have on the lodestar method under the federal bankruptcy cases. The court thus held that discovered the poor management structure fee-shifting statute, 42 U.S.C. § 1988, Perdue did not overrule the more liberal of ASARCO and the resulting increase because of superior performance under jurisprudential standards for professional in work. Barclays had unintentionally three exceptional circumstances: (1) when fee enhancements in bankruptcy cases. damaged itself in using section 328(a) “the hourly rate employed in the lodestar Accordingly, the 5th Circuit affirmed the rather than section 330(a), which offers calculation does not adequately measure $1 million fee enhancement awarded by less of a compensation guarantee, but more the attorney’s true market value;” (2) “if the bankruptcy court. flexibility as the amounts are computed at the attorney’s performance includes an the end of the representation. Under 328(a), extraordinary outlay of expenses and the —Tristan E. Manthey Barclays was guaranteed payment, but the litigation is exceptionally protracted;” or Chair, LSBA Bankruptcy Law Section amount would and could not be adjusted at (3) when there is an “exceptional delay in and the end of the representation to reflect the the payment of fees,” especially “where the Alida C. Wientjes value of the work actually completed. As delay is unjustifiably caused by the defense.” Heller, Draper, Patrick & Horn, L.L.C. to the success fee, since it was not provided The district court reversed and Ste. 2500, 650 Poydras St. for in the engagement letter, which also remanded, finding that the Perdue decision New Orleans, LA 70130 prohibited the use of section 330, the 5th is not binding authority in a bankruptcy Circuit determined the bankruptcy court proceeding. On remand, the bankruptcy did not err in declining to use section 330 court awarded the fee enhancement and to award the success fee.

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Louisiana Bar Journal Vol. 60, No. 6 511 damages in excess of the amount required This Section shall not preclude an to fund the most feasible remediation plan owner of land from pursuing a judicial adopted by the court unless excess reme- remedy or receiving a judicial award Environmental diation damages were expressly allowed for private claims suffered as a result Law by contractual agreement. The trial court of environmental damage, except as granted defendants’ motion, and the 3rd otherwise provided in this Section. Circuit reversed. Nor shall it preclude a judgment Defendants argued that the plain lan- ordering damages for or implemen- Oilfield Legacy Lawsuits guage of La. R.S. 30:29(D)(1) caps damages tation of additional remediation in at the amount required to fund the most excess of the requirements of the State v. La. Land & Exploration Co., 12- feasible plan. That provision reads: plan adopted by the court pursuant 0884 (La. 1/30/13), ____ So.3d ____, 2013 to this Section as may be required WL 360329. Whether or not the department or in accordance with the terms of an The Louisiana Supreme Court held that the attorney general intervenes, and express contractual provision. Any plaintiffs in oilfield legacy lawsuits may except as provided in Subsection H of award granted in connection with the recover damages in an amount greater than this Section, all damages or payments judgment for additional remediation the cost of implementing the “most feasible in any civil action, including interest is not required to be paid into the regis- plan” for remediation under Act 312, La. thereon, awarded for the evaluation try of the court. This Section shall not R.S. 30:29. or remediation of environmental be interpreted to create any cause of The State of Louisiana and the Vermillion damage shall be paid exclusively action or to impose additional implied Parish School Board sued various oil and into the registry of the court in an obligations under the mineral code or gas exploration and production companies interest-bearing account . . . . arising out of a mineral lease. for remediation of alleged environmental damages caused by the defendants’ opera- The court disagreed with defendants’ The court noted that Act 312 is pro- tions. Defendants Union Oil Company of interpretation and found that subsection cedural in nature and does not alter the California and Union Exploration Partners (D) should not be read in isolation from substantive rights that were available to moved for partial summary judgment, con- the rest of Act 312, particularly subsection property owners before its enactment. Based tending that Act 312 precluded recovery of (H), which states: on what it and the appellate court considered

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512 April / May 2013 the “clear language of the statute,” the court in which it would release larger volumes of that depends upon several factors, including affirmed the 3rd Circuit’s decision and held water, resulting in long-term flooding of the (1) the duration of flooding; (2) the degree to that a plaintiff may recover damages above downstream Management Area during the which flooding is an intended or foreseeable the cost of implementing the most feasible fall. The Commission maintained that the result of authorized government action; (3) plan if it is otherwise entitled to such dam- flooding destroyed timber in the Manage- the character of the land and the owner’s ages based on a defendant’s contract, the ment Area, led to the growth of invasive “reasonable investment-backed expecta- Civil Code or Mineral Code obligations. plant species and required the Commission tions” regarding the land’s use; and (4) the Justice Guidry, concurring, wrote sepa- to undertake costly remediation efforts. severity of flooding. rately to “question whether the legislature The government argued that Supreme intended that a landowner, in the absence Court jurisprudence classified flooding —Roy L. Bergeron, Jr. of a contract to the contrary, may recover as a taking only when it is “permanent or Member, LSBA Environmental Law Section remediation damages in excess of, or in inevitably recurring.” The court disagreed, Phelps Dunbar, L.L.P. addition to, those required to fund the fea- citing several cases recognizing that a taking II City Plaza sible plan for remediation selected by the need not be permanent to be compensable. Ste. 1100, 400 Convention St. trial court pursuant to La. Rev. Stat. 30:29.” However, the court recognized that a deter- Baton Rouge, LA 70802 Justice Victory, dissenting, found that mination of whether temporary but recurring the plain language of Act 312 permits re- flooding requires compensation under the covery of additional remediation damages Fifth Amendment is a case-specific inquiry only by express contractual agreement and would have reversed the 3rd Circuit’s decision “because it is uncontested there was no private contract providing for any remediation which would have exceeded Rule 29B standards.”

SCOTUS Finds No Exemption from Takings Clause Liability for Temporary Flooding

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12013-FL-LaBarJournal.indd 1 Louisiana Bar Journal Vol. 60, No. 6 4/2/12513 3:39 PM mother, even though its calculation (done parties’ stipulation in an earlier consent incorrectly) showed that the mother would judgment to be bound by Bergeron was owe the father child support, because the against public policy, stating: “Thus, Family trial court’s “deviation” was in her favor. parties cannot shield themselves from Law The court of appeal also made the award custody modifications by stipulating retroactive to the date of her demand in her to Bergeron in cases where there has initial pleading, which the trial court had been no judicial assessment of parental failed to do. Because, the court of appeal fitness.” Applying the lesser standard Custody found, she was the domiciliary parent and applicable to consent judgments, it found Mr. Poole’s child support obligation did that the mother failed to show a change Poole v. Poole, 12-0220 (La. App. 3 Cir. not exceed 50 percent of the total child of circumstances to modify the earlier 10/3/12), 100 So.3d 352. support obligation (although he was pay- judgment. Although the evidence showed The court of appeal reviewed the ing her, when she should have been paying that the child had been sexually abused, facts, including the father’s deafness, him), it reversed the trial court’s award there was no proof that either parent or the mother’s allegations that the father alternating the tax-dependency deduc- their family members were the abuser. had used drugs, the mother’s lack of tions for the two children, and awarded Nevertheless, rather than resuming the credibility concerning her allegations them to her in each year. The court of prior physical-custody schedule, the court against the father, and her thwarting of his appeal found no error in the trial court’s of appeal found that there should be a access to the children, and affirmed the order that all reimbursement issues for period of gradual reinstatement of the trial court’s award of joint custody, equal payments made by each pre-judgment father’s custodial access due to the pas- physical custody based on his seven-day- were to be addressed in the community- sage of time since he had custody of the on/seven-day-off work schedule and the property partition. child because of the pending allegations. designation of the mother as domiciliary parent. The court of appeal affirmed the Rodriguez v. Wyatt, 11-0082 (La. App. 5 Duplessy v. Duplessy, 12-0069 (La. App. trial court’s award of $100 per month child Cir. 12/12/11), 102 So.3d 109. 5 Cir. 6/28/12), 102 So.3d 209. support to be paid from the father to the The court of appeal found that the The trial court did not err in qualifying

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514 April / May 2013 the custody evaluator as an expert even denied reimbursement for her share of marriage and that its cause was her de- though she used the wrong standard of “best insurance proceeds he received on a teriorating health, which changed the interest” rather than “substantial harm” in vehicle because she failed to establish activities she could do. Her statement this custody case between a parent and a the amount of the insurance he received. during an argument that she would “blow non-parent, because the trial court has the She also failed to prove that her separate his head off” did not support a finding ultimate duty to apply the proper standard. property funds from a lawsuit were not of fault because there was no evidence The court of appeal affirmed the trial commingled during the community. offered that he believed her or that court’s award of sole custody to the non- she had the ability to do so, and it was parent, reiterating the reasons stated by the Goutierrez v. Goutierrez, 12-0428 (La. made out of frustration in the heat of an trial court. The court of appeal remanded App. 3 Cir. 11/7/12), 102 So.3d 1047. argument. Her evidence of her inability to the trial court for a determination of The trial court did not exceed its au- to work was persuasive, and he did not whether visitation with the parent would thority in determining in the community- offer evidence sufficient to contradict it. be in the child’s best interest as the trial property-partition trial the ownership of The trial court’s admission of documents court did not rule on this issue. the former matrimonial domicile that each from her physician and her retirement spouse claimed as separate property. The system was “at most, harmless error,” Community Property court of appeal affirmed the trial court’s as there was other evidence submitted to finding that the parties’ written agreement show that she was disabled. The record Gallaty v. Gallaty, 11-1640 (La. App. 4 by authentic act to transfer sole owner- supported an award of $600 per month Cir. 10/3/12), 101 So.3d 501. ship of the matrimonial domicile from final spousal support. The trial court’s value of the commu- her to him was voided by a subsequent nity home in this partition was supported oral agreement that she would retain sole —David M. Prados by Ms. Gallaty’s expert’s appraisal, espe- ownership of the house. The trial court Member, LSBA Family Law Section cially because Mr. Gallaty failed to call an found her testimony to be credible, and Lowe, Stein, Hoffman, Allweiss appraiser or offer evidence of a different his not to be. & Hauver, L.L.P. value. Although both parties sought use Ste. 3600, 701 Poydras St. and occupancy of the former matrimonial Child Support New Orleans, LA 70139-7735 domicile, and each sought rent for the other’s use, no hearing was held to award State v. Charles, 11-1012 (La. App. 5 Cir. LA Bar Journal Ad 9/21/11 3:44 PM Page use and occupancy, and the matter was not 5/31/12), 102 So.3d 179. addressed until the partition trial when the The parties had joint custody of the trial court awarded Ms. Gallaty 14 months minor child, with the mother designated SCHAFER GROUP LTD of rent for Mr. Gallaty’s use of the home. as the domiciliary parent. Even though Certified Public Accountants The court of appeal found that there was the child was with Mr. Charles 56 percent an agreement between the spouses that of the time, the court found that they did When you need a forensic accountant, rent would be owed because each was not have shared custody. Thus, Worksheet call on a professional. “on notice” that the other had raised the A was appropriate for the child support claim, and the trial court had issued two calculation. Further, the trial court did “Knowledge of business, finance previous judgments preserving her claim. not err in not giving him a credit for his and accounting may be needed She also had been paying the house note time with the child. The trial court has at any stage of the litigation during his occupancy, so the potential discretion to determine what counts as a process. Therefore, we can be prejudice McCarroll warned against was day of physical custody for child support an important member of any not present. The trial court could award purposes. The child’s school uniforms successful litigation team. Ms. Gallaty in the partition funds from and school field trips were to be paid for From contemplation of action to Mr. Gallaty’s share of insurance proceeds by Mr. Charles, in addition to the child to satisfy a judgment of past-due child support he was providing. He was entitled expert testimony, we can complement attorneys in support he owed her. She was properly to credits against arrearages for child-care ways that increase the likelihood of a desired outcome. payments he made directly to the provider. We can support your litigation efforts to save you time LOUISIANA Bar Today and strengthen your case.” Get the latest LSBA news in the Final Spousal Support —Kernion T. Schafer, CPA free, biweekly emailed update. It’s easy to subscribe. Rusk v. Rusk, 12-0176 (La. App. 3 Cir. S OUTH S HORE AND N ORTH S HORE O FFICES 6/6/12), 102 So.3d 193. METAIRIE MANDEVILLE Go to: 701 Aurora Avenue • Suite A 435 Girod Street • Suite B www.lsba.org/goto/LBT The evidence supported the trial Metairie, Louisiana 70005 Mandeville, LA 70448 court’s finding that Ms. Rusk was free 504.837.6573 985.626.4066 Forensic Accounting • Emerging Issues • Financial Services from fault in the breakup of the parties’ Litigation Services • Legal Services • Emerging Business

Louisiana Bar Journal Vol. 60, No. 6 515 the owner’s subjective intent to moor the Tort: How Much is That home indefinitely was not relevant. The Doggy . . . ? Insurance, Tort, Supreme Court’s analysis also focused Workers’ on the term “capable.” In reversing the An article in the Jan. 10, 2013, issue Compensation & 11th Circuit’s ruling, the Supreme Court of The Wall Street Journal raised inter- Admiralty Law held that a structure does not fall within esting questions concerning damages for the statute’s purview “unless a reason- emotional anguish in the tortious loss of able observer, looking to the home’s a pet. It reported the sad story of Avery, Admiralty: What is a physical characteristics and activities, a 7-year-old spotted, mixed-breed mutt Vessel? would consider it designed to a practical that escaped from his backyard enclosure degree for carrying people or things over and was picked up by Fort Worth Animal Loman v. City of Riviera Beach, Fla., water.” The court distinguished its earlier Control. Despite the shelter’s assurance 113 S.Ct. 735 (2013). decision in Stewart v. Dutra Construction to the Medlens, Avery’s owners, that the The Supreme Court interpreted Section Co., 125 S.Ct. 1118 (2005), on the basis dog would be held for eight days to allow 3 of the Rules of Construction Act, which that the dredge at issue in that case was his reclamation, he was euthanized the defines a vessel, as including “every de- regularly, although not primarily, used and next day. The Medlens sued the shelter scription of watercraft or other artificial designed to be used to transport workers worker responsible for their dog’s death contrivance used, or capable of being and equipment over water. in Tarrant County Court, seeking dam- used, as a means of transportation on wa- ages for Avery’s “sentimental or intrinsic ter.” 1 U.S.C. § 3. The question before the —Brendan P. Doherty value,” recognizing that he had little or court was whether a non-self-propelled Member, LSBA Insurance, Tort, no market value but was irreplaceable. “floating home” fell within the terms Workers’ Compensation and The trial judge granted the defendant’s of that definition. The district court and Admiralty Law Section special exception that the Medlens had not the 11th Circuit Court of Appeals found Gieger, Laborde & Laperouse, L.L.C. pleaded a claim for damages recognized the home to be a vessel. Their rulings Ste. 4800, 701 Poydras St. at law, dismissing the suit. centered on the fact that the home was New Orleans, LA 70139 The Medlens appealed, arguing that capable of movement over water and that Expert Surgeon. Expert Witness.

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516 April / May 2013 the Texas Supreme Court “has repeat- only when the property is damaged edly held that where personal property 1) by an intentional or illegal act; 2) has little or no market value, damages by an act for which the tortfeasor International can be awarded based on the intrinsic will be strictly or absolutely liable; Law value of the personal property . . . . 3) by acts constituting a continuing Dogs are personal property under Texas nuisance; or 4) when the owner law.” Therefore, they should be able to is present or nearby and suffers recover the intrinsic value of their dog. psychological trauma as a result. U.S. Court of The court agreed, holding, “Because an (Citations omitted.) owner may be awarded damages based International Trade on the sentimental value of lost personal In deciding the damages award, the trial property, and because dogs are personal judge noted that the plaintiffs were nearby GPX Int’l Tire Corp. v. United States, Ct. property, the trial court erred in dismissing and immediately arrived at the accident Int’l Trade No. 2013-2, slip op. 2013-2 the Medlens’ action against Strickland.” scene to find their beloved dog deceased. (Jan. 7, 2013). Medlen v. Strickland, 335 S.W.3d 576 In affirming the decision, the court stated, The U.S. Court of International Trade (Ct. App. 2 Dist. Tx. 2011). “Although a pet is considered corporeal (CIT) addressed several constitutional The case is now before the Texas moveable property in Louisiana, clearly challenges to a 2012 statute allowing Supreme Court. The Medlens state that pets are not inanimate objects. This court U.S. international trade agencies to apply they “considered Avery a member of their takes judicial notice of the emotional bond countervailing duty laws to non-market family [and] brought this case to try to that exists between some pets and their economies. The statute was adopted create a legal incentive for people to take owners and the ‘family’ status awarded by Congress primarily in response to a good care of animals.” some pets by their owners.” decision by the Court of Appeals for the Wallace Jefferson, chief justice of the For a comprehensive overview on the Federal Circuit previously reported in this court, expressed concern that insurance state of this developing area of tort law column. The case, GPX Int’l Tire Corp. v. rates would skyrocket if the court al- in various jurisdictions, review “Fido United States, 666 F.3d 732, 745 (Fed. Cir. lowed sentimental damages for pet loss. is a Member of the Family: Collecting 2011), held that U.S. countervailing duty Elizabeth Choate, general counsel for the Emotional Damages for Wrongful Death laws could not be applied to non-market Texas Veterinary Medical Association, of Pets,” Stacy L. Sklaver, http://dcbalaw. economies based on the unambiguous mused, “My dog may be worth $1 mil- com/fido-is-a-member-of-the-family- language of the countervailing duty pro- lion to me — should that much money go collecting-emotional-damages-for- visions at issue. to an owner for pain and suffering . . . . wrongful-death-of-pets/ (Jan. 22, 2013). The statutory fix for the Federal Cir- Should cats be valued more than dogs, or cuit’s opinion requires, inter alia, coun- hamsters or goldfish?” —John Zachary Blanchard, Jr. tervailing duties on identifiable subsidies The most recent and relevant Louisiana Past Chair, LSBA Insurance, Tort, from non-market economies, except case on point is Barrios v. Safeway Ins. Workers’ Compensation and where the appropriate U.S. international Co., 11-1028 (La. App. 4 Cir. 3/21/12), 97 Admiralty Law Section trade agency is unable to identify and mea- So.3d 1019. Seventeen-year-old Matthew 90 Westerfield St. sure the subsidies because the economy Barrios was walking the family dog, Bossier City, LA 71111 of that country consists of a single entity Yellow, a 12-year-old Labrador retriever, under state control. GPX asserted statu- when they were struck by an admittedly tory unconstitutionality on three grounds: negligent driver, injuring Matthew and (1) ex post facto; (2) due process; and killing Yellow. The trial court found the (3) equal protection. The CIT upheld the driver negligent and Matthew’s claim was settled, leaving only his parents’ claim for damages for the loss of Yellow pending. The court awarded Sonny and Ellen Barrios $5,000 each for “the value of [their] pet and the mental anguish which [they] suffered.” On appeal, the 4th Circuit noted:

In Louisiana, a domestic animal is considered corporeal movable property. An award for mental anguish, allegedly resulting from property damage, is permissible

Louisiana Bar Journal Vol. 60, No. 6 517 constitutionality of the statute, rejecting International Trade been viable without the statutory fix all challenges. The decision is now subject Commission referenced in the preceding report, the to appellate review by the Federal Circuit. U.S. domestic shrimp industry success- In the meantime, the Department of Com- Countervailing Duty Investigation on fully obtained approval to investigate merce is fully authorized to countervail Certain Frozen Warmwater Shrimp from alleged illegal subsidies from seven for- identifiable and measurable subsidies in the People’s Republic of China, Ecuador, eign countries. The International Trade non-market economies, provided that the India, Indonesia, Malaysia, Thailand Commission (ITC) voted 5-1 on Feb. 7 International Trade Commission finds and Vietnam, (Inv. Nos. 701-TA-491- that there is a reasonable indication that requisite injury or threat of injury to the 497(P)) (Feb. 7, 2013). the U.S. shrimp industry is materially domestic industry. In a case that in part would not have injured by reason of illegally subsidized imports from seven countries. The ITC LSBA Member Services he mission of the Louisiana State Bar Association (LSBA) 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 your career, the legal Tprofession and the community. In the past several years, the legal profession has experienced many changes. The LSBA has kept up with those changes by maturing in structure and stature and becoming more diverse and competitive. As the premier organization serving Louisiana’s legal profession, the LSBA is working to advance its members’ goals and interests through unparalleled programming and a comprehensive benefits package. Listed below are a few benefits of membership:

Bar Center Services LSBA Professional Programs Lawyer Advertising Filing and Louisiana Bar Center Department Services Evaluation • [email protected] www.lsba.org/GoTo/BarCenter Client Assistance Fund This program provides screening [email protected] [email protected] of proposed lawyer advertising to Louisiana lawyers are invited to This program helps consumers by confirm compliance with the Supreme reserve any of the three Bar Center providing compensation to clients who Court’s advertising rules. For conference rooms for depositions have been defrauded by their lawyers. information/inquiries, contact LSBA or other meetings. The building For more information, contact Associate Ethics Counsel Richard P. Lemmler, is equipped with wireless Internet Executive Director Cheri Cotogno Jr. at [email protected] or (504)619- access as well as desktop computers Grodsky at [email protected] or 0144. available at no charge to members. (504)619-0107. Contact Operations Coordinator Mike Practice Assistance and Montamat at (504)619-0140 with any Fastcase Improvement • [email protected] questions. www.lsba.org/fastcase As mandated by the Louisiana In 2005, the LSBA launched Fastcase, Supreme Court, the Bar’s Practice Lawyers’ Assistance Program a free web-based legal research Assistance and Improvement Program (LAP) product that provides unlimited access offers alternatives to discipline via its Lawyers’ Assistance Program to all state and federal court cases. Attorney-Client Assistance Program www.louisianalap.com • (866)354-9334 To access the program, go to www. and the Diversion Program. The Office LAP provides confidential assistance to lsba.org and click on the Fastcase of Disciplinary Counsel diverts eligible members of the Bar and their families who icon. For more information, contact matters enabling these members experience problems with alcohol, drugs, Practice Management Counsel Shawn to avoid disciplinary proceedings. gambling and other addictions, as well as L. Holahan at shawn.holahan@lsba. For more information, contact mental health issues. Call 1(866)354-9334 org or (504)619-0153. Professional Programs Counsel for for assistance. Practice Assistance William N. King at [email protected] or (504)619-0109.

For more information, visit www.lsba.org

518 April / May 2013 preliminary determination paves the way World Trade Organization sought to “cross-retaliate” against the for a full investigation of injury by the United States by revoking privileges under ITC. The ITC preliminary decision also United States-Measures Affecting the the Agreement on Trade Related Aspects allows the U.S. Department of Commerce Cross-Border Supply of Gambling and of Intellectual Property (TRIPS), which to launch a full investigation of the illegal Betting Services (DS 285). governs copyrights, patents and other subsidies identified by the U.S. shrimp A dispute settlement case between the forms of intellectual property. AB received industry in its petition. The two agencies United States and the small Caribbean approval to “cross-retaliate” under TRIPS share responsibility for applying the U.S. nation of Antigua and Barbuda (AB) dat- and AB announced its intention to launch a countervailing duty laws. A final decision ing back to 2003 has reached a boiling pirate website that ignores U.S. copyrights is not expected until late 2013. point. AB obtained a favorable ruling by offering protected movies, television against various U.S. domestic measures shows, music and software to customers President of the prohibiting AB service suppliers from worldwide. United States providing gambling and betting services The WTO dispute settlement system in the United States. The WTO Appellate operates sui generis with each dispute President Obama announced during Body confirmed that the U.S. laws violated treated on its own merits. The WTO Ap- his State of the Union address on Feb. U.S. services commitments under the pellate Body does not operate under stare 12 that the administration plans to launch General Agreement on Trade in Services decisis, but nevertheless acts collegially in negotiations on a Transatlantic Trade and (GATS). After years of failed negotiations an effort to maintain consistency through- Investment Partnership with the European to amicably resolve the adverse decision, out its decisions. Many observers believe Union. The announcement follows the AB received approval on Jan. 28 to retali- the decision to allow AB to cross-retaliate Feb. 11 release of the Final Report of the ate against the United States. WTO rules by infringing on U.S. copyrights will have High Level Working Group on Jobs and require the losing Member to either bring significant consequences in other cases. Growth, which unequivocally calls for its domestic laws in conformity with the Many smaller WTO Members that are a comprehensive agreement addressing decision, or suffer retaliation in the form of generally unable to effectively retaliate a broad range of transatlantic trade and revocation of Most Favored Nation tariff in sufficient amounts against larger WTO investment issues. According to the U.S. privileges and similar discriminatory retali- Members will cite this result in future Chamber of Commerce, transatlantic ation. The rules generally require retalia- disputes. The United States has signaled trade has surpassed $5 trillion, account- tion on par with the amount of economic that it will not allow any nation to blatantly ing for 30 percent of world trade and 50 harm caused by the inconsistent law and violate copyright laws, irrespective of percent of world Gross Domestic Product retaliation in the same general economic whether it is part of a WTO dispute. (GDP). Elimination of tariffs alone would area (in this case, services). increase bilateral GDP by a combined AB claimed that the U.S. ban on gam- —Edward T. Hayes $180 billion in five years. bling services costs the island economy Member, LSBA International Law Section The benefits of eliminating transatlan- $3 billion a year. AB does not have a Leake & Andersson, L.L.P. tic tariffs and lowering non-tariff trade sufficiently large services economy to Ste. 1700, 1100 Poydras St. barriers are numerous, but the negotiations retaliate effectively in that area, so it New Orleans, LA 70163 will likely prove difficult. Agriculture will undoubtedly require delicate positioning on both sides of the Atlantic. Both the EU’s Common Agricultural Policy and the U.S. Farm Bill are highly sensitive Laura N. Buck domestic policy areas that must be ad- Attorney-at-Law dressed if any meaningful agreement can be reached. Turning the transatlantic into a free trade area also has wide-ranging  Visa and Naturalization Matters implications on the entire international economic system, and the WTO in par- ticular. The Most Favored Nation and  All Cases before the other benefits offered by the WTO could become immensely watered down, with U.S. Immigration Courts the organization transitioning into little more than a forum for resolution of trade disputes. Adam G. Young, PLC [email protected] 315 South College Road, Suite 163 (337)261-8800 Lafayette, Louisiana 70503

Louisiana Bar Journal Vol. 60, No. 6 519 owed because Cimarex included hedging mined that each unit could be efficiently profits in the commodity prices it reported drained by one well. Beginning in the 1990s, in certain filings with the Securities and companies requested approval for various Mineral Exchange Commission. Chastant also cited “alternate unit wells” to be drilled as addi- Law Frey v. Amoco Production, 603 So.2d 166 tional wells within existing units that already (La. 1992), in which the Louisiana Supreme had a unit well. The companies asserted Court held that a lessee owed royalties on that newer geologic evidence showed that a take-or-pay case settlement because the the existing unit wells were not economi- Royalties Claim on settlement was an “economic benefit accru- cally and efficiently draining their units. Hedging Profits ing from the leased land, generated solely After public hearings, the commissioner by virtue of the lease, and which is not approved numerous alternate unit wells, Cimarex Energy Co. v. Chastant, ____ F. expressly negated.” Id. at 174. Chastant’s several of which were drilled on land that Supp. 3d ____, 2012 WL 6652360 (W.D. arguments were rejected by the court, which is owned by the plaintiffs, but burdened by La. 11/18/12). held that Cimarex did not owe royalties on a mineral servitude. The parties disputed whether Cimarex its hedging profits. The plaintiffs filed suit, seeking a de- Energy (lessee) owed royalties to Chastant claratory judgment that the commissioner (lessor) on profits Cimarex earned through Alternate Unit Wells lacks authority to approve alternate unit “hedging,” a type of transaction in which a wells because La. R.S. 30:9 defines a unit company protects itself against the risk that a Walker v. J-W Operating Co., 2012 WL to be “the maximum area which may be commodity will drop in price by purchasing 6677913 (La. App. 1 Cir. 11/21/12) (un- efficiently and economically drained by futures contracts for that commodity. The published). one well.” The court noted, however, that lease required royalties to be paid based on The Commissioner of Conservation the issue was not the initial establishment the market price f.o.b for oil and the market established units in Caspiana Field follow- of a unit well, but what the commissioner value at the mouth of the well for natural ing the discovery of natural gas there in the has authority to do when evidence shows gas. Chastant argued that royalties were 1970s. The commissioner’s orders deter- that an existing unit well is not efficiently

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520 April / May 2013 draining the unit. The plaintiffs argued that In the decision discussed here, the the commissioner’s only option is to recon- 2nd Circuit merely granted supervisory figure units, but the Louisiana 1st Circuit writs to resolve certain procedural issues, disagreed, holding that the commissioner including whether the trial court erred Professional has discretion to approve alternate unit wells in denying plaintiffs’ leave to amend Liability in order to prevent the waste of resources. their petition to add mineral servitude owners as defendants. But the decision contains a noteworthy pronouncement Representation of State The Cap by Attorney General When that the duty to restore at the cessation of oil and gas operations may not be the Arrington v. ER Physician Group, Inc., Agency Seeks Damages same for a mineral servitude owner as it 12-0995 (La. App. 3 Cir. 2/6/13), ____ is for a mineral lessee. Mineral Code art. So.3d ____, 2013 WL 440142. State v. Gulfport Energy Corp., ____ 22 requires a mineral servitude owner to The Arrington case has a long proce- So.3d ____, 2012 WL 5417051 (La. App. restore the surface to its original condition dural history — the case itself began in 3 Cir. 11/7/12). at the earliest reasonable time; whereas, 1996. A recurring issue, again before the The Louisiana Department of Wildlife the duty of the mineral lessee is to act as 3rd Circuit, involved the constitutionality and Fisheries (DWF) filed suit on its own a reasonably prudent operator, which may of the MMA’s cap on damages. Following behalf, without being represented by the include restoration duties if the lessee has a Sibley evidentiary hearing in this most Louisiana attorney general, seeking a operated “unreasonably or excessively,” recent iteration, the trial court determined money judgment for damages to oyster and such duty may arise “immediately” that the cap was unconstitutional as viola- beds allegedly caused by the dredging if the contamination is interfering with tive of the equal protection and adequate and drilling activity of Gulfport Energy. the lessors’ surface use. Act 312 of 2006, remedy guarantees of the Louisiana Con- Gulfport filed an exception of no right although not at issue, emphasizes that les- stitution. The trial court relied on the 3rd of action, arguing that DWF lacked the sees, operators and servitude owners may Circuit’s opinion in Oliver v. Magnolia capacity to sue for tort damages. The trial have different obligations to evaluate and Clinic, 09-0439 (La. App. 3 Cir. 8/31/11), court granted the exception, holding that remedy contamination. the attorney general is the proper repre- 71 So.3d 1170, which concluded that the cap was unconstitutional to the extent it in- sentative of the state of Louisiana in such —Keith B. Hall cluded nurse practitioners within its cov- cases. DWF appealed. Member, LSBA Mineral Law Section erage. The Supreme Court subsequently DWF asserted various arguments in Louisiana State University reversed that ruling, Oliver v. Magnolia support of its contention that it had capacity Paul M. Hebert Law Center Clinic, 11-2132 (La. 3/13/12), 85 So.3d to bring suit. For example, DWF noted that 1 E. Campus Dr. 39, and in a per curiam “declared” that the La. R.S. 36:602 states that “[DWF] is cre- Baton Rouge, LA 70803 cap “is constitutional as it applies to all ated and shall be a body corporate with the and qualified health care providers, including power to sue and be sued.” The Louisiana Colleen C. Jarrott nurse practitioners.” 3rd Circuit rejected each of DWF’s argu- Member, LSBA Mineral Law Section Following the trial court’s ruling ments. As to R.S. 36:602, the 3rd Circuit Slattery, Marino & Roberts, A.P.L.C. in Arrington and the Supreme Court’s stated that suit can be brought on behalf Ste. 1800, 1100 Poydras St. opinion in Oliver, the defendant sought of DWF by the attorney general, but DWF New Orleans, LA 70163 cannot “file suit on its own behalf in the direct review from the Supreme Court, absence of representation by the Attorney which, in another per curiam, noted that General.” at the time of the district court’s ruling,

Surface Restoration Duties of Mineral Servitude Owner and Mineral Lessee

Walton v. Burns, ____ So.3d ____, 2013 WL 163739 (La. App. 2 Cir. 1/16/13). These consolidated legacy litigation cases raise issues at the intersection of Louisiana Mineral Code articles 11 (cor- relative rights), 22 (obligation of mineral servitude owner) and 122 (obligation of mineral lessee) as they relate to the duty to restore.

Louisiana Bar Journal Vol. 60, No. 6 521 “it did not have the benefit of our recent Court. Oliver, 85 So.2d at 44.” The dence and judicial beliefs to what is the opinion in Oliver v. Magnolia Clinic.” Supreme Court had in Oliver revisited clear pronouncement of the Louisiana The court proceeded to vacate the district Butler to “remind courts of this State of Supreme Court in Oliver v. Magno- court’s judgment and remanded to allow the last of expression of law relative to lia Clinic.” Thibodeaux concurrence the district court to reconsider its ruling the cap’s constitutionality” in reiterating available at: http://www.la3circuit.org/ “in light of Oliver.” its holding in Butler. Id. Opinions/2013/02/020613/12-0995opi. On remand, the trial court, following The Arrington plaintiffs predicated pdf. the edict of the Supreme Court, found their appeal on a number of bases, all the cap constitutional, stating, “Although of which the 3rd Circuit rejected. The Tainted Panel Opinion Oliver involves nurse practitioners, the plaintiffs asserted that neither Butler nor Supreme Court’s analysis begins with Oliver was applicable in this case because Fanguy v. Lexington Ins. Co., 12-0136 considering the statute’s constitutionality the Supreme Court did not specifically (La. App. 5 Cir. 11/13/12), 105 So.3d 848. ‘as applied to any health care provider.’” analyze their designated constitutional Fanguy first learned after a panel Thus, the court maintains the constitu- arguments. While the 3rd Circuit admitted rendered its opinion that the defendant tionality of the statute without qualifica- that the Oliver court focused on due pro- physician (Dr. Graham) and one of the tion. The trial judge wrote that “La. R.S. cess and equal protection considerations, panelists (Dr. Carriere) failed to disclose 40:1299.42(B) is fully constitutional.” it also “ruled in broad constitutional their financial relationship, in violation From the trial court’s ruling, the plain- terms, [when] referring to the underly- of La. R.S. 40:1299.47, a disclosure that tiffs appealed and requested an en banc ing policy considerations of the Medical she claimed would have disqualified the hearing. The en banc hearing request Malpractice Act.” panelist. Fanguy asked the trial court to was denied. The court of appeal commented on preclude the opinion from evidence as The appellate court viewed the plain- the “breadth” of the Supreme Court’s it “would be highly prejudicial to her tiff’s case as focusing on the “correctness” pronouncements, as well as its affirmance case due to Dr. Carriere’s taint.” She of the Supreme Court’s ruling in Butler of the trial court’s decree in Oliver that the also argued that the opinion did not meet v. Flint Goodrich Hosp., 607 So.2d 517 cap was “fully constitutional” and that it the requirements of La. C.C.P. art. 1425 (La. 1992), cert. denied, 113 S.Ct. 2338 “maintained the constitutionality of the because it failed to comply with the (1993), and whether that 1992 decision statute without qualification.” Hence, the minimum legal standards for an expert “appropriately addressed the question trial court’s judgment in Arrington was report and did not contain sufficient in- of adequacy of damages and whether it affirmed. One judge, “specially concur- formation to assist the trier-of-fact and sufficiently considered the difficulties ring,” maintained his position that the thus could not be deemed reliable. She malpractice plaintiffs face in recouping cap was unconstitutional as violative of further argued that because the opinion losses.” the constitutional guarantees of “equal was contaminated, the admission of the The 3rd Circuit noted that all lower protection, due process, and separation testimony of the remaining two panel courts “are bound to follow the last ex- of powers,” but conceded that he “must members would be improper. pression of law of the Louisiana Supreme sacrifice [his] intellectual indepen- The defendant’s answer was that there

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522 April / May 2013 was no evidence to suggest any bias or 2012 extended the shortened five-year contamination. It argued that because recognition period for computing built- Dr. Carriere signed an oath swearing he in gains. Under I.R.C. § 1374, a built-in could be impartial, this proved that he Taxation gains tax is imposed if an S corporation could act faithfully and without partiality, has a net recognized built-in gain for any further adding that there was no evidence taxable year beginning in its recognition to establish that he violated his oath. It period, which is generally defined as the also argued that panel opinions are not 10-year period beginning with the first judged by C.C.P. art. 1425, but rather by IRS Simplifies Home day of the first taxable year for which the MMA and La. R.S. 40:1299.47(H). Office Deduction a corporation became an S corporation. The trial court had granted Ms. Fan- As a result of the American Recovery guy’s motion in limine to exclude Dr. On Jan. 15, the IRS announced a sim- and Reinvestment Tax Act of 2009, the Carriere as a witness but had denied plified option that owners of home-based recognition period was reduced from 10 the exclusions of the panel opinion and businesses and home-based workers may to seven years for the tax years 2009 and testimony of the two other panelists. The use to figure their deductions for the 2010, and the Creating Small Business court of appeal said: business use of their homes effective for Jobs Act of 2010 reduced the recognition taxable years beginning on or after Jan. period from 10 years to five years for tax If the trial judge agreed with Ms. 1, 2013. The new optional deduction, years beginning in 2011. For tax years Fanguy’s position that Dr. Carriere capped at $1,500 per year based on $5 a beginning in 2012 and 2013, the recogni- was ineligible to serve on the panel, square foot for up to 300 square feet, will tion period will continue to be five years then it is illogical to allow the reduce the paperwork and recordkeeping rather than reverting to 10 years. Panel’s opinion, in which Dr. Car- burden on small businesses. riere participated, to be entered into Though homeowners using the new State Department of option cannot depreciate the portion of evidence at trial because the entire Revenue Audit Protest medical review process was tainted their home used in a trade or business, by Dr. Carriere’s participation. they can claim allowable mortgage inter- Bureau est, real-estate taxes and casualty losses In Revenue Information Bulletin In granting Ms. Faguy’s writ applica- on the home as itemized deductions on No. 13-007, the Louisiana Department tion, the appellate court ruled that the Schedule A to their return. These deduc- of Revenue announced the phase-out trial court committed error in denying tions need not be allocated between of the Audit Protest Bureau (APB), the motion to exclude the panel opinion personal and business use, as is required effective June 30, 2013. The APB dis- and in denying the motion to exclude the under the regular method. Business continued hearing new protests as of testimony of the remaining two members expenses unrelated to the home, such Jan. 18, 2013, although APB staff will of the panel “due to Dr. Carriere’s taint as advertising, supplies and wages paid continue to work on protests it currently of the entire medical review.” to employees, are still fully deductible. Current restrictions on the home- has. In a press release on June 28, 2010, the Department announced the APB as —Robert J. David office deduction, such as the requirement a new forum for dispute resolution in Gainsburgh, Benjamin, David, Meunier that a home office must be used regularly order to “resolve tax-related disputes & Warshauer, L.L.C. and exclusively for business and the limit at the earliest opportunity” and “find an Ste. 2800, 1100 Poydras St. tied to the income derived from the par- equitable solution for both the Depart- New Orleans, LA 70163-2800 ticular business, still apply under the new option. Further details on the new option ment and taxpayers without resorting to LOUISIANA Bar Today can be found in IRS Revenue Procedure costly and time-consuming litigation.” 2013-13. The Department stated its decision to Get the latest Louisiana discontinue the APB was “difficult, but State Bar Association —Caroline D. Lafourcade fiscally responsible” and is a “continua- tion of strategic series of decisions that news in the free, biweekly Vice-Chair, LSBA Taxation Section The Mayhall Law Firm will result in greater efficiency across the emailed update. It’s easy 19349 North 12th St. agency.” The Department’s Field Audit to subscribe. Covington, LA 70433 Service Division will once again conduct the audit-protest process. Go to: S Corporation Built-In Gains Tax Local Taxation: www.lsba.org/JoinLBT Timeliness of Appeals The American Taxpayer Relief Act of In a recent decision of consolidated

Louisiana Bar Journal Vol. 60, No. 6 523 cases concerning sales-and-use-tax due process requirements established assessments in Caldwell and Tensas in Mennonite. The appellate court ex- parishes, the Louisiana Supreme Court Trusts, Estate, plained that notice of a tax sale published determined that the tax collector’s writ Probate & in a newspaper alone is insufficient to application and the taxpayer’s underly- Immovable comply with due process requirements. ing appeal to the court of appeal were Property Law While the appellate court recognized that not timely filed. Caldwell Parish Sch. certified mail is a reasonable method of Bd. v. La. Machinery Co., 12-1383 (La. notifying the debtor, it reasoned that it 1/29/13), 94 So.3d 1039, 144. Louisiana Lack of Proper Notice to also follows that the address to which Supreme Court Rule X, § 5(a) provides Debtor of Tax Sale Results the certified mail is sent must be correct. that an application seeking to review a in Absolute Nullity As the notice was sent to the wrong ad- judgment of a court of appeal must be dress, the appellate court held that the filed within 30 days of the mailing of the Cititax Group, L.L.C. v. Gibert, 12- tax sale violated Gibert’s due process notice of the original appeal court judg- 0633 (La. App. 4 Cir. 11/7/12), ____ rights and was null. ment or, in instances in which a rehearing So.3d ____. The court also reversed the trial is allowed and a timely application for In the case of Cititax Group, L.L.C. v. court’s ruling that even if the tax collec- rehearing has been filed, within 30 days Gibert, the 4th Circuit Court of Appeal tor failed to properly notify Gibert of the of the mailing of the notice of denial of reversed the trial court and annulled the tax sale, this failure was a relative nullity rehearing or the judgment on rehearing. tax sale of property located on Iberville that was cured by the prescriptive period Because La. R.S. 47:337.61(3) prohibits Street in New Orleans. The subject prop- of five years, citing Article 7, Section rehearings in summary proceedings to erty was bought by Gibert in June 1995. 25(C) of the Louisiana Constitution, collect taxes, the 30-day period for ap- After the taxes on the property became La. R.S. 47:2266(4)(2), and Crain v. plying for a writ of certiorari runs from delinquent in 2000 and 2001, Cititax bid Vanderdoes Estate, 307 So.2d 157 (La. the date the court of appeal issues notice on and acquired the property at a tax sale App. l Cir. 1974). While the appellate of the judgment. The Supreme Court de- in November 2002. court recognized that the 1st Circuit in termined it lacked jurisdiction to consider Cititax filed suit to quiet title on Crain held the lack of notice of a tax the validity of the decision of the court March 2, 2010, well over the five-year sale to be a relative nullity that is cured of appeal because the tax collector filed statutory requirement. On Jan. 14, 2011, by the applicable prescriptive period, it its writ application less than 30 days after Gibert filed his own suit for redemption/ explained that Crain was decided well the court of appeal refused rehearing, annulment of tax sale. The two cases were before the Supreme Court issued its opin- but more than 30 days after the court of consolidated and tried at a bench trial. ion in Mennonite in 1983, which elevated appeal’s opinion in each case. The trial court ruled in favor of Cititax, the lack of notice in a tax sale to a due Also, under La. R.S. 47:337.61(3), finding that the service on Gibert was process violation rendering the tax sale suspensive appeals in summary proceed- reasonable, the sale was advertised in null and of no effect. Accordingly, the ings to collect taxes may be granted, but the newspaper as an additional notice, appellate court reversed the trial court’s they must be perfected within five calen- and the notice met the standard of Men- judgment in favor of Cititax, holding that dar days from the rendition of the judg- nonite Board of Missions v. Adams, 103 the tax sale deed was null and void in ment. The Supreme Court determined S.Ct. 2706 (1983). its entirety due to the failure to provide the court of appeal erred in holding that Service of notice of the tax sale was proper notice of the tax sale to Gibert. the taxpayers’ suspensive appeals were attempted on Gibert by certified mail, timely perfected because the taxpayers’ but the return receipt produced at trial —Christina Peck Samuels appeals were filed within five days of the had the wrong address for Gibert (38 Member, LSBA Trusts, Estate, Probate mailing of notice of judgment, but more Newcomb Blvd. instead of his correct and Immovable Property Law Section than five days from the signing of the address of 30 Newcomb Blvd.) and did Sher Garner Cahill Richter Klein judgment and therefore were untimely. not have a true signature. & Hilbert, L.L.C. The appellate court reversed the trial Ste. 2800, 909 Poydras St. —Jaye A. Calhoun court on its factual finding that notice New Orleans, LA 70112 Member, LSBA Taxation Section to Gibert was sufficient and met the and Christie B. Rao Member, LSBA Taxation Section McGlinchey Stafford, P.L.L.C. 601 Poydras St., 12th Flr. New Orleans, LA 70130

524 April / May 2013 Project2_Layout 1 2/20/2013 11:50 AM Page 1

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To learn more, call 225-383-5554 or viLouisianasit www Bar.la Journalfj.org . Vol. 60, No. 6 525 Young Lawyers Chair’s Message... Spotlight

competitions advanced to the final round CHAIR’S MESSAGE in Lafayette. Please be on the lookout in February Mock Trial Competitions: Nothing to Ridicule and March 2014 for the regional compe- tition that will take place in your area. By Larry Centola Again, volunteers are always needed. These high school competitors take the competition very seriously. It takes about Each year in High School Mock Trial two hours to judge a round, and the com- Louisiana, there are petitions are usually held on Saturdays. several mock trial On March 23, the Louisiana State Bar You will enjoy the experience as it is a competitions for Association’s Young Lawyers Division joy to watch smart, motivated students various education (LSBA-YLD) held the final round of the tackle a difficult case. levels. The organiz- annual Judge Richard N. Ware IV State Many of the high school students ers of the mock trial High School Mock Trial Competition dream about their chance to perform in competitions are al- at the United States District Court in the mock trial competition. This is their ways looking for Lafayette. Zachary High School won chance to shine and is literally their state Larry Centola volunteers to serve the state competition and the team will championship game. Next year, please as presiding judges, compete in the National High School help us provide this wonderful opportu- scoring judges, timekeepers and other Mock Trial Championship on May 9-11 nity to showcase the talents of our Louisi- important roles. If you did not volunteer in Indianapolis, Ind. ana high school students by volunteering this year or you have not volunteered Zachary High School had stiff com- for your regional competition and/or the before, I highly encourage you to partici- petition throughout its bid for the state state competition. pate next year. You will be amazed by the championship. Prior to the final round Often there are high school teams amount of preparation that the students in Lafayette, there were four regional looking for a lawyer coach. If you are put into the mock trial competitions. You competitions throughout the state, with interested in coaching a high school team, may even learn a thing or two about trial more than 30 teams participating. The express your interest to your LSBA-YLD practice from these motivated student- top two teams in each of the four regional district representative, and we will try to competitors. match you up with a team in your area. Speaking of the Louisiana High School Mock Trial, I had the privilege of meet- ing the competition’s namesake, Judge Young Lawyers Richard Ware IV, on a few occasions before he passed in 1996. Judge Ware DIVISION News was the district court judge for the 39th Judicial District Court in Louisiana. For nearly a decade, Judge Ware assisted the Get the latest Young Lawyers LSBA-YLD in the administration of its Division news online various public service projects. He was Go to: particularly devoted to serving each year as the presiding judge of the final round www.lsba.org/YLD of the Louisiana High School Mock Trial Competition. Despite the fact that The Young Lawyers Division Web site is a the competition was held in different public service of the LSBA-YLD Council, parishes around the state and at different providing YLD information to the public and communicating with YLD members. times each year, Judge Ware was always willing to clear his calendar and devote

526 April / May 2013 many hours to serve as a “real judge” competitions. We also thank the staff, for students who had worked so hard marshals and judges of the U.S. Western Young Lawyers in preparing and presenting their cases. District Courthouse for allowing us to Spotlight In 1998, the LSBA-YLD dedicated this hold the state competition there. Because program to Judge Richard N. Ware IV in of their generosity, along with that of our J. Marshall Rice honor and memory of his dedication and volunteers, students were able to present Shreveport efforts throughout the years. Judge Ware their cases in real courtrooms with real had a gregarious personality, and he was judges. They received excellent feedback The Louisiana truly a pleasure to be around. from practitioners. The high school State Bar Associa- The YLD thanks Laura Hart Bryan students could not obtain the wonderful tion’s Young Law- and Sara B. Rodrigue, this year’s LSBA- experience that is the mock trial competi- yers Division is spot- YLD High School Mock Trial co-chairs, tion without the support from everyone lighting Shreveport for their hard work in writing the prob- in the bench and bar. attorney J. Marshall lem, facilitating questions from coaches Rice. throughout the year, coordinating the Law School Mock Trial Rice, a partner various regional competitions, and run- with the law firm of ning the state competition. The YLD also On March 27, the LSBA-YLD held its Rice & Kendig in J. Marshall Rice thanks all of the local LSBA affiliates and annual Law School Mock Trial Competi- Shreveport, received the regional mock trial chairs, Carla D. tion at Louisiana State University Paul M. a BS degree in 2000 from Centenary Col- Gendusa, Lauren Byrd Reed, Shayna L. Hebert Law Center. Kellen J. Mathews of lege of Louisiana and his JD and bachelor Sonnier, Liz Fontenot and Andrell Cooper, Baton Rouge was this year’s Law School of civil law degrees in 2003 from Louisi- who ran the four regional competitions. Mock Trial chair for the LSBA-YLD. ana State University Paul M. Hebert Law Pulling off the mock trial competition Kellen did a remarkable job. Five teams Center. Following his law school gradua- takes a lot of effort and cooperation from from three schools participated, with tion, he returned to Shreveport to join his many fine folks throughout the state. The a team from LSU winning this year’s father, Carl Rice, and later joined by his YLD would especially like to thank the trophy. The winning team members were brother, Joel Rice, in the practice of law Lafayette Bar Association for recruit- Michael Heier, Donna Lee, Arthur Ber- where he practices exclusively in the area ing numerous volunteers for the state nard Mitchell IV and Reshonda Thomp- of personal injury. In this area of the law, competition. son. Kellen and the YLD are grateful to he believes that his practice promotes safe- Robert S. (Bob) Noel II, a practitioner all of the practitioners and judges who ty in the community through the enforce- from Monroe, deserves special recogni- volunteered for this year’s event. Please ment of the rule of law, and he has made tion. Bob is on the board of directors for volunteer next year for the Law School this the foundation for his representation of the National High School Mock Trial Mock Trial, held in either New Orleans injured persons. Championship and has a wealth of knowl- or Baton Rouge each spring. He is actively involved in the Shreve- edge regarding mock trials. Every year, port Bar Association (SBA) and the Loui- Bob compiles the scoring and provides AAJ Student Trial siana Association for Justice. In 2010, he assistance with the coordination of the served as president of the SBA’s Young state competition. The state mock trial Advocacy Competition Lawyers Division. Additionally, he served competition would not run as smoothly on the Louisiana Association of Justice’s as it does without Bob’s help. This year, the national finals of a Board of Governors in 2011. Currently, Bob was quoted in the UL-Monroe law school mock trial were held in New he is serving as a member-at-large on the newspaper, saying: “Academic com- Orleans. The finals of the American As- SBA’s Executive Council. petitions, such as a mock trial, provide sociation for Justice (AAJ), formerly Rice is heavily involved in the SBA’s students with the skills that enable them Association of Trial Lawyers of America community service projects. One of his to compete in this century.” The YLD (ATLA), Student Trial Advocacy Compe- proudest volunteering endeavors was his agrees with Bob that the mock trial pro- tition was held April 4-7. The Glorioso service at the Martin Luther King, Jr. Day vides students with the skills they need Law Firm in New Orleans hosted the of Service project providing living wills to compete in today’s marketplace, and finals, as the firm has done in previous and medical powers-of-attorney to those in the YLD and the thousands of high school years. Fourteen teams from all over the the community who are less fortunate. students over the years are forever in debt country battled it out in New Orleans, Outside of his law practice, Rice is an to Bob for his willingness to give so freely with the Notre Dame team coming out avid sportsman, where he hunts and fishes of his time and expertise. the winner. Many local practitioners and in his free time. He also volunteers as a den Last, and of course not least, the YLD judges volunteered for the event. Please leader for his nephew’s Tiger Cub Scouts would like to thank all of the members be on the lookout for this event next year group. He and his wife, Emily, are the par- of the bench and bar who volunteered as if you would like to volunteer. ents of a daughter. judges and timekeepers for the various

Louisiana Bar Journal Vol. 60, No. 6 527 Louisiana Center for

LouisianaCENTER FOR LCLCE Law & C ivicEducation LAW & CIVIC EDUCATION We the People

Haynes Academy Wins “We the People” State Finals tudents from Haynes Academy for Advanced Studies won the state “We the People” competition and will represent Louisiana in the nationalS competition. The Haynes team was led by teacher Chris Totaro. “We the People: The Citizen and the Constitution” (WTP) is a nationally recognized civics curriculum, whose culminating activity is the annual national simulated congressional hearing competition in Washington, D.C. Four Louisiana teams qualified to compete in the state competition in Baton Rouge. Also competing were teams from Helen Cox High School, Glenbrook School and John Ehret High School. Teachers Jonetta Jackson, Students from Haynes Academy for Advanced Studies won the state “We the People” competition and will represent Louisiana in the national competition. The Haynes team was led by teacher Chris Totaro. Bradley Kiff and Matthew Edwards also are to be commended on the outstanding performances of their teams. The distinguished panel of judges included Hon. Parris A. Taylor, Superintendent (Ret.) Darryl Kilbert, Louisiana WTP alumni representative Tyler Barker, Heather W. Angelico, Belinda M. Cambre, Allison Clarke, Tiffany E. Crane, Lauren E. Godshall, Nahum D. Laventhal, Thuy-Duynh Nguyen Le, Philip Lundy, Ann Majeste, W. Steven Mannear, Bryce Menge, Ben Miller, John North, Carla Powell, Charles Regnard, Mary Jo L. Roberts, Shirley A. Snyder and Betty Wilkerson. Guests attending the event included Louisiana House Rep. Edward (Ted) James II; WTP District Coordinators Robert Rome, Vickie Hebert and Michelle Molina; Glenbrook School Assistant Headmaster for Curriculum Naomi Coyle; Jefferson Parish Social Studies Consultant (Ret.) Carl Dermady; and Project Citizen State Coordinator John Alexander.

John Ehret High School’s “We the People” Outstanding Unit winners with state House Rep. Edward (Ted) James II, far left.

528 April / May 2013 JUDICIAL Notes By Robert Gunn, Louisiana Supreme Court Judges... appointments... retirements

New Judge Judges ► 24th Judicial District Court Judge Robert M. Murphy was elected to Division Ernestine L. ► Louisiana Supreme Court Justice G, 1st District, 5th Circuit Court of Appeal, (Teena) Anderson- Bernette Joshua Johnson, the first African- effective Jan. 1. Trahan was elected American woman elected to the court, took as judge of Second her oath as chief justice on Feb. 1, making Appointments City Court for Orleans her the state’s first African-American chief Parish, effective Jan. justice. ► Professor Kathryn V. Lorio, Professor 1. She earned a BA ► 1st Circuit Court of Appeal Judge Melissa T. Lonegrass, Vice Dean Ronald J. degree in 1988 from Jefferson D. Hughes III was elected to Scalise, Jr. and Professor Shawn D. Vance Loyola University and Louisiana Supreme Court District 5, were reappointed, by order of the Louisiana her JD degree, cum Ernestine L. effective Feb. 1. He took his first oath as Supreme Court, to the Bar Admissions laude, in 1991 from Anderson-Trahan judge on the 21st Judicial District Court in Advisory Committee for terms of office Southern University 1991 and was later elected to the 1st Circuit which end on Dec. 31, 2013. Law Center. While in law school, she served Court of Appeal, beginning his service in ► Professor James M. Klebba and as secretary of the Moot Court Board. She January 2005. Professor Jörg Fedtke were reappointed, began her legal career in 1991 as a law ► Orleans Parish Juvenile Court Judge by order of the Louisiana Supreme Court, clerk for Hon. Yada T. Magee in Orleans Tracey E. Flemings-Davillier was elected to to the Equivalency Determination Panel for Parish Civil District Court. In 1994, she was Section B, Orleans Parish Criminal District terms of office which end on Dec. 31, 2016. hired as in-house counsel for St. Paul Fire Court, effective Jan. 1. ► Judge Robin D. Pittman was & Marine Insurance Co. From 1997-2000, ► 16th Judicial District Court Judge appointed, by order of the Louisiana she worked as an associate with Middleberg, John E. Conery was elected to Section 3E, Supreme Court, to the Louisiana Judicial Riddle & Gianna. In 2000, she was hired by 3rd District, 3rd Circuit Court of Appeal, College Board of Governors for a term of Frederick Miller and Associates as in-house effective Jan. 1. office which ends on Sept. 30, 2015. counsel for State Farm Fire & Marine Insur- ► 24th Judicial District Court Judge ► Retired Judge Frank Foil was ance Co. In 2003, she opened her own law Hans J. Liljeberg was elected to Division appointed, by order of the Louisiana Supreme office, Trahan & Davis, L.L.C., with Clifton F, 1st District, 5th Circuit Court of Appeal, Court, to the Mandatory Continuing Legal M. Davis III. Judge Anderson-Trahan is the effective Jan. 1. Education Committee for a term of office former recipient of the Pro Bono Award. She ► 24th Judicial District Court Judge which ends on Dec. 31, 2015. is married to Kenneth Trahan and they are Stephen J. (Steve) Windhorst was elected ► Franchesca L. Hamilton-Acker was the parents of two children. to Division E, 1st District, 5th Circuit Court appointed, by order of the Louisiana Supreme of Appeal, effective Jan. 1. Court, to the Mandatory Continuing Legal Education Committee for a term of office which ends on Dec. 31, 2015.

FYI

► 1st Circuit Court of Appeal Judge Vanessa Guidry-Whipple, the first woman elected to that court in 1990, became chief judge of that court effective Jan. 1, making her the first woman to hold that position. ► 4th Circuit Court of Appeal Judge James F. McKay III became chief judge of that court effective Jan. 1. ► 5th Circuit Court of Appeal Judge Continued next page

Louisiana Bar Journal Vol. 60, No. 6 529 Susan M. Chehardy, the first woman elected Division A, 21st Judicial District Court, BA degree in education in 1970 from to that court in 1998, became chief judge of Livingston, Tangipahoa and St. Helena the University of Mississippi and her that court effective Jan. 1, making her the parishes. In 1982, he took his oath as JD degree in 1975 from Louisiana State first woman to hold that position. judge on the 1st Circuit Court of Appeal, University Law School. Prior to her becoming chief judge of that court in 1999. appointment as commissioner in 1996, Retirements ► 1st Circuit Court of Appeal Judge she served as law clerk to various judges Edward J. (Jimmy) Gaidry retired of the 19th JDC. ► Louisiana Supreme Court Chief effective Dec. 31, 2012. He earned his ► 24th Judicial District Court Judge Justice Catherine D. (Kitty) Kimball BS degree in 1964 from Louisiana State Patrick J. McCabe retired effective Dec. retired effective Jan. 31. Kimball, the University and his JD degree in 1967 31, 2012. He was elected to the Division first woman elected to the Supreme Court from LSU Law School. He was first F seat on the 24th JDC in 1987 and served in 1993, became the state’s first woman elected to Division A, 32nd Judicial there until his retirement. chief justice in 2009. She served as a District Court, Terrebonne Parish, in ► 2nd City Court of New Orleans judge of Division A, 18th Judicial District 1984, where he later served as chief Senior Judge Mary (KK) Norman retired Court, Iberville, West Baton Rouge and judge. He took his oath for the 1st Circuit effective Dec. 31, 2012. She was elected Pointe Coupee parishes, from 1983-92, Court of Appeal in 2002. to serve on that court in 1994. and served as chief judge from 1990-92. ► 3rd Circuit Court of Appeal Judge ► 1st Circuit Court of Appeal Chief Oswald A. Decuir retired effective Dec. Resignation Judge Burrell J. Carter retired effective 31, 2012. He earned his BS degree from Dec. 31, 2012. He received his JD degree Louisiana State University and his Orleans Parish Criminal District in 1958 from Louisiana State University LL.B. degree in 1966 from Tulane Law Court Judge Lynda Van Davis resigned Law School, where he was associate editor School. He served as a state senator in the effective Dec. 31, 2012. She was first of the Law Review and Order of the Coif. Legislature from 1976 until his election elected to the Division B seat in 2003. In 1974, he began serving as judge for to the 3rd Circuit Court of Appeal in 1992. ► 4th Circuit Court of Appeal Chief Death Judge Charles R. Jones retired effective Send your Dec. 31, 2012. He began service on the Retired 1st Judicial District Court 4th Circuit in 1992 and became chief Judge James E. (Jim/Buck) Clark died judge in 2012. He is a 1971 graduate of Dec. 23, 2012. He was a 1952 graduate news! Xavier University and a 1975 graduate of Louisiana Tech University and a 1957 of Loyola University Law School. He graduate of Louisiana State University previously worked in the Orleans Parish The Louisiana Bar Journal Law School, where he earned his LL.B Public Defender’s Office and served in degree. From graduation until taking his would like to publish news the Louisiana House of Representatives oath as judge, he practiced continuously from 1984-91. and photos of your activities and was a senior partner with the ► 5th Circuit Court of Appeal Shreveport firm of Cook, Clark, Egan, and accomplishments. Chief Judge Marion F. Edwards retired Yancey & King. In 1972, he was elected effective Dec. 31, 2012. He was elected to to the 1st JDC and served there until his the 24th Judicial District Court, Division Email your news items and retirement in 1990, which included two O, Jefferson Parish, in 1996, and the 5th terms as chief judge of that court. Judge photos to: Circuit Court of Appeal in 1998. Clark served as president of the Louisiana LSBA Publications ► 5th Circuit Court of Appeal Judge District Judges Association and was a Coordinator Darlene Clarence E. McManus retired effective delegate to the National Conference of Dec. 31, 2012. He was elected to the LaBranche at State Trial Judges of the American Bar 24th Judicial District Court, Division Association. He was one of the original [email protected]. E, Jefferson Parish, in 1982, and the 5th incorporators of the Caddo-Bossier Legal Circuit Court of Appeal in 1999. Aid Society, later serving as chair of the Or mail press releases to: ► 5th Circuit Court of Appeal Judge board. He also was an original board Walter J. Rothschild retired effective Darlene LaBranche member and chair of the Caddo Parish Dec. 31, 2012. He was elected to the Indigent Defender Program. He served 601 St. Charles Ave. 24th Judicial District Court, Division on active duty in the U.S. Marine Corps New Orleans, LA A, Jefferson Parish, in 1995, and the 5th and in the U.S. Air Force Reserve, from 70130-3404 Circuit Court of Appeal in 2001. which he was discharged as a captain. ► 19th Judicial District Court Commissioner Rachel Pitcher Morgan retired effective Jan. 4. She received a

530 April / May 2013 People LAWYERS ON THE MOVE . . . NEWSMAKERS

Ste. 2100, 301 Main St. Jerry N. Jones Elton F. Duncan III and Kelley A. Sevin, LAWYERS ON is leading the expansion in Baton Rouge. with Duncan & Sevin, L.L.C., in New THE MOVE Emory A. Belton, Jr. has joined the firm Orleans, announce that Harry E. Morse as special counsel. VI is a member of the firm. Anderson & Dozier in Lafayette announces that Nicholas A. Blanda has been named Carter Law Group, L.L.C., in New Orleans Robert S. Eitel, a Washington, D.C., a partner and the firm’s name is now announces that Janis W. Lemle has joined attorney, has been named the Vice President Anderson, Dozier & Blanda. the firm as an associate. of Regulatory Operations, Nationally Accredited Institutions, for Career Blue Williams, L.L.P., in Metairie and Chaffe McCall, L.L.P., announces that Terry Education Corp. in Schaumburg, Ill. Mandeville announces that Paul D. Q. Alarcon has joined the New Orleans Palermo, Cynthia Cleland Roth and office as of counsel. D’Juan M. Hernandez Flanagan Partners, L.L.P., in New Orleans Craig V. Sweeney have joined the firm and Christopher Martin have joined the announces that Anders F. Holmgren and as partners. Elizabeth S. Sconzert and firm’s New Orleans office as partners. Charles-Theodore Zerner have joined Kelly A. Dugas have been named partners. the firm as associates. Chehardy, Sherman, Ellis, Murray, Recile, Bradley Murchison Kelly & Shea, L.L.C., Griffith, Stakelum & Hayes, L.L.P., in Gieger, Laborde & Laperouse, L.L.C., announces that six new associates have Metairie announces that Patrick R. announces that William A. Barousse joined the firm: Brittan J. Bush, Steven Follette has joined the firm as an associate. and Michael E. Hill have been elected R. Hatcher, Jr., Anna W. O’Neal and Tara members in the New Orleans office. Also, L. Richard in the Shreveport office; and James C. Crigler, Jr., Joseph H. LeBeau III Eric S. Charleston, Tyler D. Trew and Benjamin J. Biller and David J. Topping and Leah D. Sumrall announce they have Jessica A. Roberts have joined the firm in the New Orleans office. Also, the firm formed a new law firm, Crigler, LeBeau as associates in the New Orleans office. announces it has opened an office in Baton & Sumrall, with offices in Monroe and Rouge, located at One American Place, Lake Providence. Continued next page

Richard J. Arsenault William A. Barousse Kari A. Bergeron Nicholas A. Blanda Jason R. Bonnet Tori S. Bowling

Joseph E. Cain Eric S. Charleston Lawrence N. Curtis Kelly A. Dugas Robert S. Eitel Campbell Bowman Fetzer, Jr.

Louisiana Bar Journal Vol. 60, No. 6 531 Herman, Herman & Katz, L.L.C., in New Randall L. Kleinman and Keene R. Kelley Middleberg Riddle & Gianna in New Orleans announces that Joseph E. (Jed) announce the formation of Kleinman & Orleans announces that Lee M. Rudin has Cain has been named an equity partner in Kelley, L.L.C., located at Energy Centre, joined the firm. the firm. Also, Campbell Bowman Fetzer, Ste. 2005, 1100 Poydras St., New Orleans, Jr. and Donald A. Mau have joined the LA 70163; (504)539-7100. Mouledoux, Bland, Legrand & Brackett, firm as associates. L.L.C., in New Orleans announces that Robert Leake & Andersson, L.L.P., in New N. Popich has been elected as a member. Jones Walker, L.L.P., announces that nine Orleans announces that Margaret F. attorneys have been elected to partnership: Swetman and Jason R. Bonnet have been Perrier & Lacoste, L.L.C., in New Orleans Kyle M. Bacon in the Lafayette office; named partners in the firm. announces that Magali A. Puente Martin Christopher M. Capitelli, R. Keith Colvin, has joined the firm as an attorney. Shawn H. Kiefer, Britton H. Seal, Susan Lemle & Kelleher, L.L.P., with offices in Phelps Dunbar, L.L.P., announces that Erik M. Tyler and Mary E. Ziegler in the New New Orleans and Baton Rouge, has merged C. Piazza has been elected to partner in the Orleans office; and Michael K. Leachman with Beirne, Maynard & Parsons, L.L.P., Baton Rouge office. and Christopher D. Martin in the Baton based in Houston, Texas. Benjamin R. Rouge office. Also, the firm announces Slater III is managing partner in the New Sessions, Fishman, Nathan & Israel, that Pauline F. Hardin, a partner in the New Orleans office. L.L.C., announces that Rose S. Sher has Orleans office, has been elected to the firm’s joined the firm as an associate in the New board of directors for a four-year term. Lewis Brisbois Bisgaard & Smith, L.L.P., Orleans office. announces that five attorneys have joined Keogh, Cox & Wilson, Ltd., in Baton the firm’s Lafayette office: partners Stone Pigman Walther Wittmann, L.L.C., Rouge announces that Tori S. Bowling Jennifer E. Michel, Jeffrey A. Riggs, announces that Justin P. Lemaire, Heather S. has been named a Danielle M. Smith and Tabitha R. Durbin; Lonian and John Mark Fezio have become partner. and associate Jaime F. Landry. Also, P. Alan members in the New Orleans office. Sanders has been named a partner in the King, Krebs & Houston, Texas, office. Stubbs Law Firm, L.L.C., in Lafayette Jurgens, P.L.L.C., announces that Charles T. (Tad) Hightower announces that Attorney Blaine W. Lindsey announces the has joined the firm as an associate. Joseph A. Devall, launch of Capra Health, a comprehensive Jr. and Megan C. healthcare reimbursement, regulatory Taylor, Porter, Brooks & Phillips, L.L.P., in Misko have been and compliance consulting firm in New Baton Rouge announces that Kari A. (Kiki) named members. Orleans. Lindsey will serve as president. Bergeron has become a partner in the firm. Harold J. Flanagan

Thomas M. Flanagan Patrick R. Follette Charles T. Hightower Michael E. Hill Anders F. Holmgren Brian D. Katz

Morton H. Katz Magali A. Puente Donald A. Mau Harry E. Morse VI Randy Opotowsky Paul D. Palermo Martin

532 April / May 2013 Wilson Elser Moskowitz Edelman & Brian D. Katz, a partner in the firm of L.L.P., was elected to the Fellows of the Dicker, L.L.P., announces that Gwendolyn Herman, Herman & Katz, L.L.C., in New American Bar Foundation. S. Frost, Shawn D. Golden and Laura S. Orleans, was honored by the United Way Rahman have joined the Houston, Texas, of Southeast Louisiana as a member of its Malcolm A. Meyer, a partner in the New office as of counsel. philanthropic leadership group, the Alexis de Orleans office of Adams and Reese, L.L.P., Tocqueville Society of Southeast Louisiana. received the 2012 Louisiana Land Title NEWSMAKERSNEWSMAKERS Association’s “Title Person of the Year” award. Morton H. Katz, of counsel in the firm of Richard J. Arsenault, with the firm of Herman, Herman & Katz, L.L.C., in New Randy Opotowsky, a partner in the Steeg Neblett, Beard & Arsenault in Alexandria, Orleans, was named president-designate Law Firm, L.L.C., in New Orleans, was was selected by the American Society of of the Jewish Federation of Greater New selected for the New Orleans CityBusiness Legal Advocates as one of the top 100 Orleans. Leadership in Law Class for 2013. litigation lawyers in Louisiana for 2013. Errol J. King, Jr., a shareholder in the Gregory F. Rouchell, a partner in the New V. Thomas Clark, Jr., partner in charge Baton Rouge office of Baker, Donelson, Orleans office of Adams and Reese, L.L.P., in the Baton Rouge office of Adams and Bearman, Caldwell & Berkowitz, P.C., is serving a two-year term on the board Reese, L.L.P., was accepted into the 2013 was named general counsel and an of directors of The Pro Bono Project in Class of Leadership Louisiana. initial member of the board of directors New Orleans. Jaimmé A. Collins, a partner in the New for the American Association of Payers, Administrators and Networks. John B. Saye, a partner with the firm Orleans office of Adams and Reese, L.L.P., Hayes, Harkey, Smith & Cascio, L.L.P., in was appointed chair of the firm’s Diversity Frank V. Liantonio, Jr., a partner in the New Monroe, is serving on the board of directors Committee. Orleans office of Adams and Reese, L.L.P., of Special Olympics Louisiana. O. Ray Cornelius, a partner in the New was appointed to the firm’s Executive Committee. Mark C. Surprenant, a partner in the New Orleans office of Adams and Reese, Orleans office of Adams and Reese, L.L.P., L.L.P., was elected president of the board Donald C. Massey, a partner in the New was selected by the Legal Services Corp.’s of the Louisiana Industrial Development Orleans office of Adams and Reese, L.L.P., board of directors to receive an award for Executives Association. was reappointed to the Hearing Committee of his commitment to pro bono legal services in Louisiana. Johnny L. Domiano, Jr., a partner in the the Louisiana Attorney Disciplinary Board. New Orleans office of Adams and Reese, Patricia B. McMurray, a partner in the Jennifer I. Tintenfass, an associate in Steeg L.L.P., was named chair of the Jefferson Baton Rouge office of Adams and Reese, Law Firm, L.L.C., in New Orleans, was Chamber of Commerce board of directors.

Robert N. Popich Jessica A. Roberts Cynthia Cleland Lee M. Rudin Elizabeth S. Sconzert Rose S. Sher Roth

Robert M. Steeg Charles L. Stern, Jr. Craig V. Sweeney Margaret F. Tyler D. Trew Charles-Theodore Swetman Zerner

Louisiana Bar Journal Vol. 60, No. 6 533 elected vice president of the University of W. Mercante, William N. Norton, Kathlyn E. Botnick, Steven W. Copley, Ewell E. Pennsylvania Alumni Club of Louisiana. G. Perez, Edward B. Poitevent II, David Eagan, Jr., Nina Wessel English, C. Peck C. Rieveschl, James H. Roussel, Nyka M. Hayne, Jr., Terrence K. Knister, Samuel Laurie B. Young, a partner in the New Scott, Danny G. Shaw, Brandy N. Sheely, E. Masur, John M. McCollam, Sara E. Orleans office of Adams and Reese, L.L.P., Danielle L. Trostorff, Paul S. West and Mouledoux, Cynthia A. Nicholson, Scott A. was named one of the “Women of the Year” Matthew A. Woolf. O’Connor, Louis M. Phillips and Howard by New Orleans CityBusiness. Baldwin Haspel Burke & Mayer, E. Sinor, Jr. L.L.C. (New Orleans): Jerome J. Reso, Jr., King, Krebs & Jurgens, P.L.L.C. (New PUBLICATIONSPUBLICATIONS Leon H. Rittenberg Jr., Leon H. Rittenberg Orleans): J. Grant Coleman, Henry A. King, III, John A. Rouchell, William B. Schwartz, Patricia A. Krebs and Douglas P. Matthews. The Best Lawyers in America 2013 Paul N. Vance, Wm. Daniel Wellons and Liskow & Lewis, P.L.C. (Lafayette, Flanagan Partners, L.L.P. (New Karl J. Zimmermann. New Orleans): Donald R. Abaunza, Neil C. Orleans): Harold J. Flanagan and Breazeale, Sachse & Wilson, L.L.P. Abramson, Marguerite L. Adams, Robert Thomas M. Flanagan. (Baton Rouge, New Orleans): Thomas S. Angelico, John C. Anjier, Wm. Blake King, Krebs & Jurgens, P.L.L.C. M. Benjamin, Bernard E. Boudreaux, Jr., Bennett, James A. Brown, George Denegre, (New Orleans): Patricia A. Krebs. Robert T. Bowsher, Peter J. Butler, Jr., Jr., Thomas P. Diaz, Dana M. Douglas, Stanley, Reuter, Ross, Thornton & David R. Cassidy, Cullen J. Dupuy, Alan H. James C. Exnicios, S. Gene Fendler, Joseph Alford, L.L.C. (New Orleans): Richard Goodman, Emily B. Grey, Paul M. Hebert, I. Giarrusso III, Collette R. Gordon, Don K. C. Stanley, Bryan C. Reuter, William M. Jr., Joseph R. Hugg, David R. Kelly, Eve B. Haycraft, Robert E. Holden, Jonathan A. Ross and Jennifer L. Thornton. Masinter, Van R. Mayhall, Jr., Thomas R. Hunter, R. Keith Jarrett, Philip K. Jones, Temple, Jr., James E. Toups, Jr. and Douglas Jr., Paul C. Kitziger, Cheryl M. Kornick, Chambers USA 2012 K. Williams. Mark D. Latham, David W. Leefe, Thomas Stanley, Reuter, Ross, Thornton & Coats, Rose, Yale, Ryman & Lee (New J. McGoey II, Joe B. Norman, Leon J. Alford, L.L.C. (New Orleans): Richard Orleans): Walter W. Christy, Clyde H. Jacob Reymond, Jr., George H. Robinson, Jr., C. Stanley. III, A. Kelton Longwell and Elizabeth H. Lawrence P. Simon, Jr. and John D. Wogan. Ryan. Stanley, Reuter, Ross, Thornton & Louisiana Super Lawyers 2013 Lawrence N. Curtis, P.L.C. (Lafayette): Alford, L.L.C. (New Orleans): Richard Adams and Reese, L.L.P. (Baton Lawrence N. (Larry) Curtis. C. Stanley. Rouge, New Orleans): Mark R. Beebe, Gordon Arata McCollam Duplantis Steeg Law Firm, L.L.C. (New Orleans): Charlie A. Cerise, Jr., Robin B. Cheatham, & Eagan, L.L.C. (Baton Rouge, Lafayette, Robert M. Steeg and Charles L. Stern, Jr. O. Ray Cornelius, Scott E. Delacroix, John New Orleans): Phillip J. Antis, Jr., Michael M. Duck, Brooke Duncan III, Richard B. Easterling, Mark S. Embree, Philip A. Franco, A. Kirk Gasperecz, William B. Gaudet, Charles F. Gay, Jr., Lisa M. Hedrick, Christopher J. Kane, Louis C. LaCour, Jr., People Deadlines & Notes Edwin C. Laizer, Leslie A. Lanusse, Donald Deadlines for submitting People announcements (and photos): C. Massey, Don S. McKinney, Patricia Publication Deadline B. McMurray, Malcolm A. Meyer, Glen August/September 2013 June 4, 2013 M. Pilie, Kyle L. Potts, Daniel K. Rester, October/November 2013 August 2, 2013 Edward J. Rice, Jr., William D. Shea, Tyson B. Shofstahl, Martin A. Stern, Mark Announcements are published free of charge for members of the C. Surprenant, Janis van Meerveld and Raymond P. Ward. Louisiana State Bar Association. Members may publish photos with their Baker, Donelson, Bearman, Caldwell announcements at a cost of $50 per photo. Send announcements, photos & Berkowitz, P.C. (New Orleans): Edward and photo payments (checks payable to Louisiana State Bar Association) H. Arnold III, Alton E. Bayard III, Gregory to: E. Bodin, Craig L. Caesar, Phyllis G. Publications Coordinator Darlene M. LaBranche Cancienne, Roy C. Cheatwood, Stephen F. Chiccarelli, Robert C. Clotworthy, Louisiana Bar Journal Christopher O. Davis, Nancy Scott Degan, 601 St. Charles Ave. Sean L. Finan, Donna D. Fraiche, Mark W. New Orleans, LA 70130-3404 Frilot, Monica A. Frois, Steven F. Griffith, or Jr., Jan M. Hayden, Benjamin West Janke, email [email protected]. Errol J. King, Jr., Amelia Williams Koch, Kent A. Lambert, Jon F. Leyens, Jr., Mark

534 April / May 2013 News Red robe... awards... lbf

Update Volunteers Recognized for Service Chief Judge Stewart Receives Red Robe Chief Judge Carl E. Stewart, the new The Pro Bono Project in New Orleans chief judge of the U.S. 5th Circuit Court recognized its volunteers at the annual of Appeals and the first African-American Volunteer Appreciation and Recognition judge to serve in the seat, was presented Awards Ceremony in December 2012. with the traditional chief judge’s “Red United States District Court Judge Susie Robe” in a Jan. 9 ceremony in the federal Morgan, with the Eastern District of Loui- court building in Shreveport. Several 5th siana, presided over the event. Circuit judges, as well as district, mag- Krebs, Farley & Pelleteri, P.L.L.C., re- istrate and bankruptcy judges from the ceived the 2012 Pro Bono Law Firm of the Western, Eastern and Middle Districts of Year Award. Judge Raymond S. Steib, Jr. Louisiana, attended the historic event. with 24th Judicial District Court in Gretna Following an invocation by Shreveport was honored as the 2012 Distinguished Ju- District Superintendent of United Meth- rist of the Year. odist Church Dr. Donald R. Avery and Also recognized were: remarks from Shreveport Bar Association ► Mark C. Surprenant, with Adams and President William F. Kendig, Circuit Ex- Reese, L.L.P., 2012 Distinguished Donor; ecutive Gregory A. Nussel presented the ► Justin I. Woods, with Woods, Bowers history of the 5th Circuit chief judges. Chief Judge Carl E. Stewart, left, the new chief & Woods, L.L.C., 2012 Friend of Pro Bono; judge of the United States 5th Circuit Court of U.S. Senior District Judge Tom Stagg, ► Mathilde Semmes, Loyola Univer- Appeals and the first African-American judge sity College of Law, 2012 Pro Bono Law Western District of Louisiana, shared the to serve in the seat, was presented with the tra- history of how the Red Robe tradition be- ditional chief judge’s “Red Robe” by U.S. Senior Student of the Year; and gan. He presented Judge Stewart with the District Judge Tom Stagg, Western District of ► Dana Sansone, The Project’s 2012 Louisiana, in a Jan. 9 ceremony in Shreveport. Paralegal of the Year. robe, which has been passed down to ev- Photo by Ross Foote. ery chief judge since Judge Charles Clark. The 2012 Distinguished Service Judge Jacques L. Wiener, Jr. with the Bar in 1974. He entered the U.S. Army and Awards were presented to attorneys Jenny U.S. 5th Circuit also provided remarks, served as a captain in the Judge Advocate A. Abshier, Mindy Brickman, Holly Gott- and Mrs. Jo Ann Stewart honored her hus- General Corps until October 1977. He next schalk and Chance C. White. band with a song, “Ordinary People.” served as a staff attorney with the Louisiana For complete details on the top award In true Judge Stewart fashion, he ad- Attorney General’s Office, an assistant U.S. winners, a complete listing of all honorees, dressed the audience with many remarks attorney, a special assistant city and district group photos and links to additional pho- that opened with a warning that he would attorney and a private practitioner. In 1985, tos, go online: http://probono-no.org. not be brief. Not only was the en banc he was elected as a judge for the 1st Judicial courtroom near capacity, two overflow District Court, Caddo Parish, and was re- Send your news! court rooms were filled with family, elected without opposition five years later. The Louisiana Bar Journal would like friends and colleagues. A reception at the In 1991, again without opposition, he was to publish news and photos of your Shreveport Convention Center immedi- elected to the Louisiana 2nd Circuit Court activities and accomplishments. ately followed the ceremony. of Appeal. He was appointed as U.S. Circuit Mail your news items and photos to: Chief Judge Stewart received his un- judge on May 9, 1994, by President William LSBA Publications Coordinator dergraduate degree, magna cum laude, in J. Clinton. As Circuit chief judge, he will Darlene LaBranche 1971 from Dillard University and his JD sit on the Judicial Conference of the United 601 St. Charles Ave. degree in 1974 from Loyola University Law States, which establishes policies for federal New Orleans, LA 70130-3404 School. He was admitted to the Louisiana courts nationwide. or email [email protected].

Louisiana Bar Journal Vol. 60, No. 6 535 Louisiana Appleseed Presents Awards

Louisiana Appleseed presented four Good Apple Awards at its Jan. 17 gala. The awards are presented to outstanding community members and organizations that have shown generosity and com- mitment to pro bono excellence. Award recipients are: ► Ashley P. Gon- zalez, with the law firm King, Krebs & Jurgens, P.L.L.C., for her pro bono work on an extensive white paper for the Loui- Southeast Louisiana Legal Services (SLLS) received the American Bar Association Government and Public siana State Bar As- Sector Lawyers Division’s 2012 Hodson Award for Public Service. SLLS’ Co-Director Mark A. Moreau, right, accepted the award on behalf of the agency. Presenting the award was Susan A. Low, then-chair of sociation on In Forma the ABA Government and Public Sector Lawyers Division. Pauperis (IFP) issues, Ashley P. Gonzalez which has been used as an educational resource for the justice Southeast Louisiana Legal Services, community. ► Alvin C. Mi- Co-Director Moreau Receive National Awards ester III, with the Southeast Louisiana Legal Services Income Taxpayer Clinic in 2000, received law firm Sher Gar- (SLLS) and its Co-Director Mark A. Moreau the National Taxpayer Advocate’s 2013 ner Cahill Klein & have received three national awards over Award for his work on behalf of low-income Hilbert, L.L.C., for the past few months for legal aid work un- taxpayers and for his leadership among leading the effort to dertaken on behalf of victims of Hurricane clinic directors and in disaster tax issues. draft a legal hand- Katrina, the Deepwater Horizon oil spill The SLLS’ clinic was one of the first Low- book for board mem- and other disasters, as well as for assistance Income Taxpayer Clinics in the nation run bers of public charter given to low-income taxpayers. by a legal aid program and assists Louisiana schools which will Alvin C. Miester III The SLLS received the American Bar low-income taxpayers with federal tax law serve as a resource Association (ABA) Government and Public problems. for pressing legal and Sector Lawyers Division’s 2012 Hodson Moreau pioneered the inclusion of tax as a organizational issues facing Louisiana Award for Public Service. The award legal services practice area and deepened tax charter schools. recognizes superior service or a specific law experience in the nation’s legal services ► Allison Berger remarkable accomplishment by a govern- community. He wrote a tax practice manual Tiller, of The Berger ment or public sector law office. The award for the nation’s legal services and pro bono Company, Inc., for honored SLLS for its legal aid and systemic attorneys. The manual helped legal aid at- her pro bono work advocacy in response to the multitude of torneys integrate tax law services into their as lead volunteer on Louisiana Apple- legal aid crises faced by tens of thousands of family, consumer and housing law work. He seed’s hunger and nu- Louisiana disaster victims. After Hurricane also wrote the first chapter on “Tax Issues trition project, which Katrina, SLLS staff helped victims with in Disasters” for the American Bar As- seeks to increase pub- disaster problems such as mass evictions, sociation’s tax practice treatise, Effectively lic school children’s disaster housing aid, FEMA claims, Road Representing Your Client Before the IRS. access to an adequate Allison Berger Tiller Home claims, title clearing for Road Home In January, Moreau also received the amount of nutritious grants, tax, domestic violence, child custody Janet Spragens Pro Bono Award from the food on a daily basis. and other legal problems. SLLS staff ob- American Bar Association’s (ABA) Section ► Louisiana State Bar Association’s tained millions of dollars in home rebuilding of Taxation. This award recognizes outstand- Access to Justice Committee for helping funds and disaster housing aid for Katrina ing and sustained achievements in pro bono to identify systemic barriers, for providing victims and helped man the Louisiana State legal services for low-income taxpayers in guidance on projects and for increasing access to justice for communities through- Bar Association’s emergency hotline and federal and state tax law matters. Moreau out Louisiana. FEMA disaster recovery centers. is the first legal aid attorney to receive this Moreau, who founded the SLLS’ Low- ABA award.

536 April / May 2013 LOCAL / SPECIALTY BARS LACDL Recognizes Attorneys, Firm, Agency at Ceremony The Louisiana Association of Crimi- received the LACDL Public Defender nal Defense Lawyers (LACDL) hosted Gideon Award; its 27th annual Justice Albert Tate, Jr. ► 10th Judicial District Public De- Awards Banquet in December 2012. fender T. Brett Brunson of Natchitoches Eight attorneys, a law firm and a legal received the LACDL President’s Award; services agency were recognized with ► Rep. Jeff Arnold of New Orleans several awards. received the LACDL Chief Justice Pas- Attorney John E. DiGiulio of Ba- cal F. Calogero, Jr. Lifetime Achieve- ton Rouge and New Orleans received ment Award; LACDL’s most prestigious award, the ► Gary P. Clements, director of the Justice Albert Tate Award, presented for Capital Post-Conviction Project of Loui- outstanding contributions to the Louisiana siana, received the LACDL Sam Dalton system of criminal justice and for dedica- Capital Defense Advocacy Award; tion to, or in defense of, constitutional ► Dwight M. Doskey, an attorney in principles. DiGiulio has been a full-time St. Tammany Parish and New Orleans, criminal defense lawyer for most of his received the LACDL Criminal Justice 40 years in practice. Since 2008, he has Act Panel Award; been the trial-level compliance officer ► Innocence Project New Orleans for the Louisiana Public Defender Board. Attorney John E. DiGiulio, trial-level compliance received the LACDL Trustees of Freedom Also recognized were: officer for the Louisiana Public Defender Board, Gideon Award; and ► Manasseh, Gill, Knipe & Belanger, received the Louisiana Association of Criminal ► H. Clay Walker V, director of ju- P.L.C., in Baton Rouge received the first Defense Lawyers most prestigious award, the venile services in Caddo Parish, received Justice Albert Tate Award. LACDL President’s Award of Apprecia- the LACDL Lucy McGough Juvenile tion; Justice Award. Service Award; ► 15th Judicial District Public De- ► Calcasieu Parish Public Defender fender G. Paul Marx of Lafayette received E. King Alexander of Lake Charles the LACDL Trustees of Freedom Lifetime

An Evening with Justice Holmes: Four justices of the Massachusetts Supreme Judicial Court joined Louisiana State University Paul M. Hebert Law Center Professor Paul R. Baier in a Boston production of his play, “Father Chief Justice”: Edward Douglass White and the Constitution.” The November 2012 produc- tion in the John Adams Courthouse, Pemberton Square, featured Act III, which takes place in Justice Holmes’s Washington, D.C., living room circa 1919. The cast, from left, included Justice Francis Spina as Justice Louis D. Brandeis; Justice Margot Botsford as Fanny Holmes; Professor Baier as Richard Henry Jesse, a close friend of E.D. White; Justice Ralph Gants as Chief Justice White; and Justice Robert Cordy as Holmes. The Boston production followed on the heels of the Library of Congress’s showing and previous runs in the Louisiana Supreme Court chamber. The Louisiana Bar Foundation is a sponsor of the play.

Louisiana Bar Journal Vol. 60, No. 6 537 LBF Honors Award Recipients at Annual Dinner The Louisiana Bar Foundation (LBF) and an LL.M. from A nationally known recognized the 2012 Distinguished Jurist, Yale University. He speaker, he is the Distinguished Attorney, Distinguished served as Louisiana author, co-author and Professor and Calogero Justice Award State Bar Association contributing author of recipient during its 27th Annual Fellows (LSBA) president in 13 books. He served Gala April 12, held in conjunction with 1985-86 and LBF as president of the the third Annual Assembly in New president in 1995. He American College of Orleans. Recognized at the gala were has received several Real Estate Lawyers, Distinguished Jurist Eldon E. Fallon; awards, including the the LSBA and the Distinguished Attorney Michael H. LSBA’s President’s Judge Eldon E. Southern Conference Michael H. Rubin Rubin; Distinguished Professor George Award in 1980 and Fallon of Bar Presidents. W. Pugh; and Calogero Justice Award 1988 and the LBF’s recipient Hon. Jay C. Zainey. Distinguished Attorney honor in 1989. ► Distinguished Brief profiles of the honorees are Professor George provided below. To review the full profiles ► Distinguished Attorney Michael H. W. Pugh online, go to: www.raisingthebar.org. Rubin Professor George Michael H. Rubin, a manager of W. Pugh, professor ► Distinguished Jurist Eldon E. Fallon McGlinchey Stafford, P.L.L.C., and a senior emeritus at Louisiana Judge Eldon E. Fallon was nominated by attorney in the Baton Rouge office, has State University President Bill Clinton and confirmed by the an active commercial litigation, appellate Paul M. Hebert Law Senate in 1995 to the U.S. District Court, and finance practice. He received his law Center, received his Eastern District of Louisiana. He received degree from Louisiana State University BA and JD degrees Prof. George W. Pugh his BA degree from Tulane University, Paul M. Hebert Law Center and his BA from Louisiana State his JD degree from Tulane Law School degree, with honors, from Amherst College. University, his JSD from Yale Law School and an honorary doctorate from the University of Aix- ro ono eroes: roviding Justice for All Marseille III, France. He began teaching law P B H P at LSU in 1950. He was made full professor in 1959 and Julius B. Nachman Professor Giving back is a value that has long in 1984. He is a longtime member of the Louisiana State Law Institute Council. been important in my family. As ►Calogero Justice Award, Hon. Jay C. lawyers, we should try to make a difference Zainey in the everyday lives of the less fortunate in Judge Jay C. Zainey, a 1975 our community. Touching individual lives in a graduate of Louisiana State University Law positive way provides enormous School, was appointed by President George personal satisfaction for which W. Bush to the U.S. Hon. Jay C. Zainey District Court for the there is no substitute. Eastern District of Louisiana in 2002. In 2011, U.S. Supreme Court Chief Justice John Roberts appointed – Nancy Sue Gregorie him to the Federal Judiciary Commission’s Attorney at Law and volunteer with the Codes of Conduct Committee. While Baton Rouge Bar Pro Bono Project Baton Rouge, LA serving as LSBA president, he created the Community Action Committee and the ustice Fo Legal Services for Persons with Disabilities Providing J r A Committee. He is a co-founder of the Access to Justice ll SOLACE program. In 2004, he organized www.lsba.org/ATJ Louisiana State Bar Association the Homeless Experience Legal Protection (H.E.L.P.) Program.

538 April / May 2013 Louisiana Bar Foundation President’s Message Interview of 2013-14 President Leo C. Hamilton Interviewed by 2013-14 Secretary E. Jane Sherman Sherman: Tell us about yourself and Bar Foundation. I was portunity for Louisiana attorneys to enhance your family. then appointed to the the overall standing of the legal profession Hamilton: I am a Baton Rouge native, board by Judge Marc in each of our communities. The LBF has i.e., born there, reared there, attended public Amy, then-president of programs that touch all Louisiana communi- elementary and secondary schools there, the Foundation. After ties: north and south, large and small, urban and attended LSU for undergraduate and serving on the board and rural. By supporting and participating law school degrees. My wife, Gwen, and I for a term, I was elected in the programs of the LBF, Louisiana at- will have been married for 40 years on June to continue my service torneys help all of us earn the respect of 23 of this year. We have three daughters: by the full board. our neighbors and NOT merely become the Malia, Kimberly and Christine. They’ve Leo C. Hamilton target of “lawyer jokes”! all graduated from high school and finished Sherman: What college. The oldest and the youngest of our role does the LBF play in promoting access Sherman: How can Louisiana lawyers girls, Malia and Christine, currently reside to the justice system? help the LBF beyond giving money? in New Orleans and our middle daughter, Hamilton: The LBF serves a primary Hamilton: First and foremost, each Loui- Kimberly, resides in Baton Rouge. Kimberly and direct role in promoting access to justice siana attorney should consider providing is the only one of our girls who is married. through its support of the Legal Services of- some volunteer time to one of the programs Her husband is Gary Jupiter, and they have fices and other direct legal service providers of the LBF. As busy as we all are, there is one daughter, Makenzye, who is 4 years old throughout the state. Unfortunately, financial the time to give a few hours to the better- and runs all of our lives. support for these programs is dwindling at ment of our profession and the community Despite my earlier pledge to not ever do the state and federal levels. This dwindling as a whole. Additionally, there are always so, I have practiced law with a major law support makes the LBF’s contribution even opportunities to offer suggestions on how firm, Breazeale, Sachse & Wilson, L.L.P., more vital. Indirectly, through financial sup- we can better provide access to justice for for more than 20 years and have really en- port of educational programs aimed at youth the most vulnerable among us. The LBF is joyed the experience. My areas of practice and the disadvantaged, the LBF enhances open to new approaches to and resources are labor and employment, administrative access by expanding the knowledge of the for the provision of services to the poor, law and constitutional law. I have had the general public to the rule of law and to their disadvantaged and other individuals or invigorating experience of representing the rights as citizens. groups unable to secure legal assistance to Louisiana Community and Technical Col- address critical problems. lege System since its inception and have Sherman: Are you satisfied by the re- really enjoyed the experience of watching sponse of Louisiana attorneys to the call to Sherman: What are your goals and your it grow. I truly believe that the existence of perform pro bono work? vision as LBF president? viable community and technical colleges Hamilton: No, I’m not satisfied. There is Hamilton: After serving in a leadership has greatly improved the postsecondary insufficient knowledge of the requirements capacity for some five years, I can only hope education options available to Louisiana’s of our oath. By this, I mean there is less of to maintain the standards established by youth and enhanced the growth in the an understanding among members of the past presidents and work toward expanding state’s economic development. Prior to my profession, especially younger attorneys, our membership; enhancing the delivery of involvement in the Louisiana Bar Founda- regarding the role of attorneys in the main- crucial legal services to the most vulner- tion (LBF), I was very much involved with tenance of our social order. When access able members of our communities; and the Baton Rouge Bar Association (BRBA), to justice is denied to the most vulnerable improving the image of Louisiana attorneys having served on its board of directors and of our community through adequate legal throughout this country. in officer capacities, including as president. representation, the rule of law is eroded. We must ensure that equal justice under the law LBF Announces New Fellows Sherman: How did you get involved is more than simply a phrase. We have to get The Louisiana Bar Foundation with the LBF? back to the fundamentals of our democracy. announces new Fellows: Hamilton: I was initially invited to be- Mark J. Ashby...... Atlanta, Ga. come a Fellow during my term as president of Sherman: Why is it important for Andrew B. Cooper...... Houston, Texas the BRBA; later, Mathile Abramson, a fellow Louisiana attorneys to lend their financial Linda Kay Ewbank...... Monroe member and past president of the BRBA, sug- support for the LBF? T. Frank Larson...... Alexandria gested that I continue my association with the Hamilton: The LBF offers the best op-

Louisiana Bar Journal Vol. 60, No. 6 539 Classified ads ONLINE at www.lsba.org CLASSIFIED NOTICES is toxic torts and general casualty. Standard classified advertising in our regu- POSITIONS OFFERED Salary is commensurate with experience. Please submit résumés to kcourington@ lar typeface and format may now be placed Shuart & Associates Legal Search & in the Louisiana Bar Journal and on the courington-law.com. All inquiries will be LSBA Web site, LSBA.org/classifieds. Staffing. In today’s market, many law kept strictly confidential. All requests for classified notices must firms are growing by lateral acquisition be submitted in writing and are subject of partners/practice groups. Some to approval. Copy must be typewritten Law firm seeking associate attorney partners are choosing to relocate to firms with at least five years of experience in and payment must accompany request. where their unique strengths are valued Our low rates for placement in both are commercial and tax litigation. Salary as follows: and compensation competitive. This depends on experience. Please send résumé requires broad knowledge of the existing to Office Manager, P.O. Box 81918, RATES marketplace and insight into the culture Lafayette, LA 70598-1918. of local law firms. Shuart & Associates CLASSIFIED ADS has a proven track record in providing Caddo Parish Communications District Contact Krystal L. Bellanger at this service. All inquiries confidential. (504)619-0131 or (800)421-LSBA, Number One. The Caddo Parish 9-1-1 (504)836-7595. www.shuart.com. Communications District Number One ext. 131. (Communications District) is seeking an Non-members of LSBA Suburban New Orleans AV-rated law attorney licensed to practice in the state $85 per insertion of 50 words or less firm seeks attorney to practice in the area of of Louisiana to provide legal services. $1 per each additional word insurance coverage and defense. Minimum The successful candidate will provide the $20 for Classy-Box number five years’ experience preferred but will Communications District with effective consider other applicants with excellent Members of the LSBA legal services, advice and representation, academic background. Competitive salary $60 per insertion for 50 words or less particularly with respect to laws, legal $1 per each additional word and benefits package. All replies held codes, court precedents, regulations, No additional charge for Classy-Box strictly confidential. Email résumé to executive orders, agency rules and number [email protected] or fax (504)362-5938. other aspects of local government and communications district laws. The selected Screens: $25 Mid-sized New Orleans litigation firm Headings: $15 initial headings/large type candidate will have the requisite training seeking lateral hire with book of business and experience to prepare and review BOXED ADS to join the firm’s Northshore office. Strict various legal documents such as contracts, Boxed ads must be submitted camera ready confidentiality will be maintained. Submit licenses, public bids, requests for proposals by the advertiser. The ads should be boxed résumé to: C-Box 266. and 2¼” by 2” high. The boxed ads are $70 and service agreements. He or she must per insertion and must be paid at the time of have experience in the interpretation Defense attorney. AV-rated New Orleans placement. No discounts apply. and implementation of statutes and law firm seeks defense attorney preferably rules governing political subdivisions DEADLINE with first-chair trial experience. Practice of the state of Louisiana, including, but For the August issue of the Journal, all classified notices must be received with payment by June18, 2013. Check and ad copy should be sent to: Computer Forensic Examiner TAGGART MORTON, LLC LOUISIANA BAR JOURNAL

Classified Notices Court Qualified Expert Witness Accepting Appellate Referrals 601 St. Charles Avenue Caddo, 1st Judicial District New Orleans, LA 70130 and Consultations Federal, W. District of LA RESPONSES Donald J. Miester, Jr. EnCase Certified Examiner To respond to a box number, please address Chair-Appellate Practice Section your envelope to: 1100 Poydras Street, Suite 2100 Journal Classy Box No. ______D. Wesley Attaway New Orleans, LA 70163 c/o Louisiana State Bar Association 318-797-4972 or 393-3289 (cell) 601 St. Charles Avenue [email protected] (504) 599-8500 New Orleans, LA 70130

540 April / May 2013

not limited to, Public Bid Laws, Public been retained by the City of Shreveport, Briefs/pleadings/legal research. Thirty- Meetings Laws and Public Records the Caddo Parish Commission, Caddo plus years of litigation and appellate Law. He or she will be familiar with Parish Sheriff, Caddo Parish Independent experience in Louisiana courts, U.S. 5th and keep informed of Attorney General Fire District or other Caddo Parish Circuit and U.S. Supreme Court. Law Opinions, Federal Communications governmental or public safety entities, Review; clerk for Louisiana Supreme Court; Commission Rules and Regulations, since the Communications District has AV-rated. Résumés available upon request. State Agency Rules and Regulations, intergovernmental or cooperative endeavor Contact Regel L. Bisso or Robert G. Miller, and State and Federal legislation, which agreements with many governmental Jr., Bisso & Miller, L.L.C., bissolaw@aol. govern or impact the Communications agencies. The selected attorney must com. (504)830-3401 (New Orleans). District. Selected counsel will serve as be licensed to practice law in the state legal advisor to Communications District of Louisiana and be a member in good Appellate briefs, motions, legal research. personnel in the drafting and negotiation standing with the Louisiana State Bar Attorneys: the appellate process is your last of lease, purchase and service agreements Association. Applicants should include chance to modify or defend your judgment. relating to communication equipment their Louisiana Bar Enrollment Numbers Lee Ann Archer, former Louisiana and technology, which is utilized by on their letters of interest. Attorneys Supreme Court clerk and Tulane Law the Communications District and the interested in representing the Caddo honors graduate, offers your best chance, public safety communications entities, Parish Communications District should with superior appellate briefs, outstanding which work in conjunction with the submit a letter of interest to Ms. Martha legal research, pinpoint record review and Communications District. Selected counsel Carter, 9-1-1 Administrator, 1144 Texas 20-plus years of appellate experience. will also be required to become familiar Ave., Shreveport, LA 71101, or it may Confidential; statewide service; fast with the current and emerging issues be emailed to [email protected] by response. Call (337)474-4712 (Lake relating to 9-1-1 emergency operations, May 31, 2013. Charles); email [email protected]; visit including Next Generation 9-1-1 (NG 9-1- www.leeaarcher.com. 1) and will participate in local and national ServicesSERVICES Accepting referrals of personal injury public safety communications associations claims and criminal cases arising in south such as the National Emergency Number Texas attorney, LSU Law 1985. Admitted Alabama. Licensed to practice law in both Association (NENA) and the Association in Louisiana and Texas. I am available Alabama and Louisiana with more than 30 of Public Safety Communications Officers to attend hearings, conduct depositions, years of experience. Fully insured. Contact (APCO) activities. As counsel to the act as local counsel and accept referrals Russell E. Bergstrom, 955 Dauphin St., Communications District Number One, for general civil litigation in the Houston Mobile, AL 36604; (251)433-4214; or he or she will work primarily under the area. Contact Manfred Sternberg, Jr. at email [email protected]. direction of the 9-1-1 Administrator, but (713)622-4300. will also attend the regular and special Briefs/Legal Research/Analysis meetings of the Board of Commissioners Brief writing/legal research. Columbia of Unusual or Problem Cases and provide legal analysis and counsel to Law School graduate; former U.S. 5th the Board. Ideally, the selected counsel Circuit staff attorney; former U.S. District JD with honors, federal judicial clerk, will have experience with the legislative Court, Western District of Louisiana, graduate of top 10 law school, 20 years’ process and will have worked on the law clerk; more than nine years of legal experience, federal and state litigation. development and passage of legislation, experience; available for brief writing Available for briefs, research, court preferably at the state government level. and legal research; references and résumé appearances, analysis of unusual or Candidates will be required to disclose available on request. Douglas Lee Harville, problem cases. References on request. any potential conflict of interest such as if [email protected], Catherine Leary, (504)436-9648, statewide they do or have represented or are or have (318)222-1700 (Shreveport). services, registered office Jefferson Parish.

Mississippi Attorney Vocational Expert Witness Forensic Document Carey R. Varnado Examiner Tulane Law 1976 Court Qualified Licensed Rehabilitation Counselor Robert G. Foley Selected to “Best Lawyers in America” Handwriting • Typewriting • Copies Since 2003 LA and MS • Federal & State Court Ink/Paper Analysis & Dating • Case Referrals Workers Comp/General Liability/ • Attend Depositions and Hearings Certified & Court Qualified in Personal Injury Federal, State, Municipal & Post Office Drawer 1975 Military Courts since 1972 Hattiesburg, MS 39403 SANDRA G. KREUTER, CDMS, LRC, CRC Phone: (318) 322-0661 (601) 544-1234 Phone: (985) 845-8856 www.robertgfoley.com [email protected] [email protected]

Louisiana Bar Journal Vol. 60, No. 6 541 Offices in centrally located Mid-City, For LEASE OR SALE New Orleans. Four offices from $500- For Lease or Sale INDEX TO ADVERTISERS $600/month, or rent entire space of 1,500 For lease or for sale by owner. Retiring square feet downstairs for $1,500/month. ABA Members Retirement Program...... 455 attorney selling historic home, previously Near Canal Street, above Jeff Davis, at the location of his established law practice Alston Law Firm, L.L.C...... 504 219-221 N. Clark. Off-street parking. in downtown Covington’s Historic District. Walk to restaurants. Kathleen Cresson, D. Wesley Attaway...... 540 Turnkey-ready and furnished. One (504)486-6666, or [email protected]. and a half blocks from the courthouse. David F. Bienvenu/Mediator...... 517 Contiguous to Covington Trailhead. Bourgeois Bennett...... 520 Office space for rent in downtown New Perfect for attorneys wanting to relocate. Orleans across from the federal courthouses Laura N. Buck...... 519 Many options. Owner financing available. with a spectacular view of the French Serious inquiries only. (985)264-4864. Christovich & Kearney, L.L.P...... 505 Quarter. Perfect for a law firm or other professional business. Approximately CMC Advisors...... 511 ForFOR Rent RENT 4,400 square feet, including custom- Gretna Corporate Realty...... 506 GRETNA made desks, secretarial stations and file Kay E. Donnelly & Associates...... 506 Practice with experience. For lawyer who cabinets. $6,000/month. Contact Ann at wants to rent amongst other experienced (504)310-2166. Flanagan Partners, L.L.P...... 512 attorneys and be within walking distance Robert G. Foley...... 541 of all Gretna courts, with all paid costs, NoticeNotice including paper, scan, fax, copier and Tom Foutz/ADR inc...... 505 phones, including library/conference room Scott M. Hawkins has filed a petition Gilsbar, Inc...... IBC usage, for $750. Contact (504)366-3551, and application for reinstatement of his ext. 14. No signed lease required. license to practice law. Individuals may Law Office of Deborah M. Henson, L.L.C....504 file concurrences or objections with the Horne, L.L.P...... 453 ForFOR Rent RENT Louisiana Attorney Disciplinary Board, D. Douglas Howard...... 513 NewNEW Orleans ORLEANS Ste. 310, 2800 Veterans Memorial Blvd., Metairie, LA 70002, or by calling Integrated Spine and Disc...... 521 Office space available in newly renovated (504)834-1488, within 30 days. four-story building located in the heart The Koerber Company, P.A...... 514 of the New Orleans CBD. Choose from Leonard E. Yokum, Jr. intends to file Sandra G. Kreuter...... 541 individual offices or suites up to 2,000 a petition seeking reinstatement of his square feet. Access to conference rooms, Laporte CPAs & Business Advisors...... 510 license to practice law in Louisiana. Any kitchen and other amenities included. Terms person(s) concurring with or opposing Legier & Company...... IFC negotiable depending upon space needed. this petition must file such within 30 days LexisNexis...... 450 Contact Stephen Barry at (504)525-5553 with the Louisiana Attorney Disciplinary or [email protected]. Louisiana Association for Justice...... 525 Board, Ste. 310, 2800 Veterans Memorial Blvd., Metairie, LA 70002. Louisiana Supreme Court Historical Society.529 Virtual office. Spend more time in New Orleans and write off your trip. Will MAPS, Inc...... 508 provide mailing address, conference room, McLaughlin Mediation...... 498 phone services, lobby receptionist, copy, fax, voice mail, Internet. 829 Baronne St. The Mediation Institute...... 507 Contact Cliff Cardone, (504)522-3333. ANSWERS for puzzle on page 502. Montague Pitman & Varnado...... 541 1 2 3 4 5 6 7 S c H E d U L E B A I L National Academy of Distinguished Neutrals... 509 8 EXAMINER OF T O E T S S O QUESTIONED DOCUMENTS 9 10 A Q U I F E r A r S O N Plastic Surgery Associates...... 516 WILLS • CHECKS L S r F A G 11 12 Schafer Group, Ltd...... 515 ALTERED RECORDS K E E P A N E y E O U T 13 DISPUTED SIGNATURES I U P c L d Schiff, Scheckman & White, L.L.P...... 505 14 15 16 17 Mary Ann Sherry, CDE N A B d E c O r T H E Mary Ann Sherry...... 542 G A M O A L Board Certifi ed • Court Qualifi ed 18 19 S T r E P T O c O c c I Taggart Morton, L.L.C...... 540 20 NADE DIPLOMATE r T N K H V 21 22 University of Alabama School of Law...... 522 Greater N.O. Area (504) 889-0775 A G E N T S U I c I d E Outside Greater N.O. (888) FORGERY P r S O N N r West, A Thomson Business...... Insert, OBC 23 24 www.maryannsherrycde.com E N y A B U r G L A r y

542 April / May 2013 To advertise in this directory, contact Krystal Bellanger-Rodriguez at (504)619-0131 or email [email protected] Legal Services Directory

Admiralty/Maritime. David E. Cole (retired U.S. The team discusses case facts, presents qualified Bêche-Thibodeaux, (337)856-5848, cell (337)781- Coast Guard commander) offers consultant and candidates and arranges introductory interviews. 0335, email [email protected]. expert witness services in maritime and admiralty Call (888)784-3978 or visit www.TRexpertwitness. since 1989. Qualified to testify in both federal and com/placement. Medical-Legal Consulting. Farmer Medical Legal state courts. OSHA, Rules of the Road, all types of Consulting (Pam Farmer, RN-BC, MSN, CLNC, 24 ships and boats, plaintiff and defendant. Nationwide Forensic Accounting. Bourgeois Bennett, L.L.C., years of professional experience) offers legal nurse (817)571-7731, or email [email protected]. CPAs and Consultants, has a full-time litigation consulting services, which includes medical record Website: www.davidecole-maritime.com. consulting and forensic accounting group, offering reviews, case screening and chronological timeline financial damage analysis, discovery assistance, summaries for medical malpractice, wrongful death Construction Expert. Titan Construction, business valuations, class action accounting and personal injury cases. Contact Pam Farmer at L.L.C., with more than 15 years of construction and administration, fraud and embezzlement (225)766-9595. Email: mail@farmermedlegal. experience, offers licensed general contracting investigations, among other services. Offices in com. Website: www.farmermedlegal.com. (Louisiana, Alabama and Florida), construction New Orleans, (504)831-4949; Houma, (985)868- defect evaluations, cost estimates/insurance for 0139; Northshore, (985)246-3022; and Thibodaux, Medical Malpractice. Medical Malpractice replacement and reproduction, real estate appraisals, (985)447-5243. Investigation, assisting Louisiana plaintiffs since narrative reports, expert deposition testimony and 2007, chart reviews for merit and strategies, other services. For more information, contact Forensic Engineering. Rimkus Consulting Group, medicolegal consulting from experienced MD, Stephen Fleishmann, (504)455-5411, stephen@ Inc. offers services in forensic engineering and medical expert witnesses, panel submissions written titanconstruction.com; www.titanconstruction.com. consulting, including experts for cases involving by doctor, deposition interrogatories, illustrations civil/structural, accident reconstruction, mechanical, and literature, client conferences. For more Consulting and Forensic Engineers. Quick & biomechanical and electrical issues, such as structural information on all services, visit website: www. 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Call (985)249-5130 or toll free (877)224- Scientific, L.L.C., offers scientific technical oil cases and provides expert witness services for 4500, or visit the web, www.quickforensics.com. assessment of potential cases, including cases admiralty and maritime cases. Offices in New involving civil and environmental engineering, Orleans and St. Petersburg, Fla. Contact Pazos at CPAs/Business Advisors. LaPorte CPAs & mineral boundary disputes, hydrology and (727)347-2556. Website: www.siterrific.com/pazos. Business Advisors is a Louisiana leader in providing hydraulics, navigability assessment, contamination, litigation services, forensic accounting, business and accident site mapping and analysis. For all Oil & Gas. S. Paul Provenza has 30-plus valuation and law firm management. For the full services, contact Frank L. 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Contact Provenza at (225)925-9658, cell firm offers technical expertise in mechanical, civil, and casualty insurance for more than 40 years, (225)772-2554 or email [email protected]. structural and electrical engineering, environmental has extensive knowledge in bad faith cases and and indoor air quality services, and fire cause and insurance laws and regulations. Expert in forensic Valuation/Litigation Services. The Koerber origin investigation. Several offices in southeastern reconstruction of insurance transactions. Contact Company, P.A., in Hattiesburg, Miss., offers United States. Call (888)873-6752 or email info@ Wayne Citron, New Orleans, 1-800-Citron1 or visit business valuations, personal injury and wrongful usforensic.com. Website: www.usforensic.com. the website: www.citronagency.com. death damage calculations, lost profit analysis, forensic accounting services, as well as assisting Expert Insurance and Actuarial Consulting. Jury/Trial Consulting. Tom Foutz with ADR inc in in shareholder disputes, family law cases and Bondy Advisors offers insurance, reinsurance and New Orleans offers trial consulting and assistance intangible asset valuations. For more information actuarial services, life settlements, annuities, life with jury focus groups and mock trials. He has on other services, call toll-free (888)655-8282. expectancy and mortality issues, asset valuation, worked as a mediator and special master and can Website: www.koerbercompany.com. economic loss. Responsible domestic and provide a fresh perspective on your case. Contact international experience spanning 40+ years. Fluent Foutz at (800)884-9939 or email TomFoutz@ Vocational Rehabilitation. Stokes & Associates, in Spanish and English. Contact Peter J. Bondy, ADRnola.com. Inc. offers services in vocational assessment, FSA, MAAA, at (225)323-5904 or email peter@ labor market wage and earning capacity, life care bondyadvisors.com. Legal Nurse Consulting. Theresa De Bêche & planning, disability cost analysis, spinal cord/ Associates provides a certified legal nurse consultant head injury/amputation, workers’ compensation, Expert Witness Search/Referral. The team for to interpret and evaluate medical issues of cases. maritime, medical malpractice and employment Thomson Reuters Expert Witness Services, an Services include interpreting medical records and discrimination. Also available for expert testimony. authority in expert witness search and referral, bills, preparing timelines and medical summaries, For all services, contact the Metairie office, (504)454- uses proven methodologies to screen more than and identifying strengths and weaknesses of cases 5009, email [email protected]. 1 million experts and finds the best matches. in relation to medical issues. Contact Theresa De Website: www.Stokes-Associates.com.

Louisiana Bar Journal Vol. 60, No. 6 543 Lucid INTERVALS By Vincent P. Fornias TMMAO

ost of us who kicking and screaming gradu- ated from corded rotary phones into the 21st century have failed to resist the infectious draw of text messaging as a medium of quickM and easy communication. We are all too familiar with the likes of “LOL,” “?4U” and the burgeoning list of TM contractions that mean little and save us the time of actually composing a cogent and significant response. Inevitably, the Text Messaging Subcommittee of your own LSBA’s Technology Section, after a painstakingly rigorous process involving statewide meetings and membership polling, has fashioned the following officially sanctioned TM messages suitable to our everyday lawyerly needs:

► IBFC — I’m Begging for a Continuance.

► PIH — Plattsmier is Holding.

► WWTCLEEE? — When Will This CLE Ever End?

► TMMBOA — The Mediator Must Be on Acid.

► QFMAE! — Quick. Find Me an Economist!

► WTF? — Where’s the File?

► WIJWOO? — Why Is the Judge Winking at Our Opponent?

► IITLFMS? — Is It Too Late for Medical School?

► SWWBS! — She Wants Writs by Sundown!

► INSTJIH — I’m Not Sure That Juror Is a Humanoid.

► OSJC — Our Server Just Crashed. ► LIUICC,M — Look It Up in the Civil Code, Mofo. ► ACDRP?? — Another Campaign Debt Retirement Party?? ► SYC — See You in Court.

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

544 April / May 2013

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