Think Before You Sign: Notarial Liability in Louisiana

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Supplement to the Louisiana Bar Journal 11 Louisiana Bar Journal Vol. 66, No. 6 393

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April / May 2019 Volume 66, Number 6 Departments Features Editor’s Message...... 397 Think Before You Sign: Notarial Liability in Louisiana Letters...... 398 By Ryan K. French...... 402 President’s Message...... 400 End-of-Life Decisions: Living Wills, Association Actions...... 421 Healthcare Powers of Attorney and Other Issues Practice Management...... 427 By Laura E. Fine...... 406 Lawyers Assistance...... 428 Personal Reflections on Certain Lawyers Give Back...... 430 Intersecting Ethical Obligations of Lawyers and Judges Focus on Diversity...... 433 By Judge John W. deGravelles...... 410 Puzzle...... 434 Ethics Opinion 19-RPCC-021: Lawyer’s Use Discipline Reports...... 436 of Technology Client Assistance...... 440 By Rules of Professional Conduct Committee...... 455 Recent Developments...... 441 Recap: Midyear Meeting 2019 Young Lawyers...... 453 Recognition and Awards...... 421 Ethics Opinion...... 455 LSBA Annual Meeting & LSBA/ Judicial Notes...... 459 Louisiana Judicial College Joint Summer School People...... 461 Registration Open...... 416 News...... 465 Classified...... 470 The Last Word...... 472

Also Inside LJC / LSBA JOINT SUMMER SCHOOL & Letters to the Editor Policy.... 397 2019 LSBA ANNUAL MEETING Member Services...... 409 SOLACE...... 434 Sandestin Golf and Beach Resort ADR Directory...... 442 Advertisers’ Index...... 471 Destin, Florida

Louisiana Bar Journal Vol. 66, No. 6 395 ® Officers 2018-19 President Editorial Board Barry H. Grodsky • (504)599-8535 þ John E. McAuliffe, Jr. þ C. A. (Hap) Martin III President-Elect Editor (318)388-4700 Robert A. Kutcher • (504)830-3820 (504)840-4909 þ Alainna R. Mire Secretary (318)449-5046 þ Christopher D. Cazenave John E. McAuliffe, Jr. • (504)840-4909 (504)582-8408 þ Claire McDaniel-Ojeh Treasurer (225)622-2005 þ John S. (Chip) Coulter Shayna L. Sonnier • (337)436-1600 (225)362-2445 þ John H. Musser V (504)523-0400 Immediate Past President þ Anthony M. DiLeo (504)274-0087 þ Roy H. (Hal) Odom, Jr. Dona Kay Renegar • (337)234-5350 (318)227-3762 þ Brendan P. Doherty þ Maggie Trahan Simar (832)255-6019 Board of Governors 2018-19 (337)394-6133 First District þ Stephen I. Dwyer þ Kristine D. Smiley (504)838-9090 D. Skylar Rosenbloom • (504)556-5507 (225)298-0770 þ Laura S. Gravener Darryl J. Foster • (504)596-6304 þ Gail S. Stephenson (504)554-5807 Second District (225)771-4900, ext. 216 þ Mark A. Hill þ Scott L. Sternberg Stephen I. Dwyer • (504)838-9090 (504)581-1301 Third District (504)324-2141 þ Gerald J. (Jerry) Huffman, Jr. þ Shannon Seiler Dartez • (337)233-1471 Tyler G. Storms (504)957-9114 (318)255-7805 Fourth District þ Carrie L. Jones þ Adrejia L. Boutte Swafford J. Lee Hoffoss, Jr. • (337)433-2053 (225)346-1461 (504)561-5700 Fifth District þ Margaret E. Judice þ Patrick A. Talley, Jr. Edward J. Walters, Jr. • (225)236-3636 (337)828-1880 (504)584-9220 þ Robert A. Kutcher Valerie Turner Schexnayder • (504)813-3633 þ Edward J. Walters, Jr. (504)830-3820 Sixth District (225)236-3636 þ Winfield E. Little, Jr. Edward L. Tarpley, Jr. • (318)487-1460 þ Jack K. Whitehead, Jr. (337)430-0907 (225)303-8600 Seventh District Paul L. Hurd • (318)323-3838 The Louisiana Bar Journal (ISSN 0459-8881) is published bimonthly by Eighth District the Louisiana State Bar Association, 601 St. Charles Avenue, New Orleans, Patrick J. Harrington • (318)458-5839 Louisiana 70130. Periodicals postage paid at New Orleans, Louisiana and additional offices. Annual subscription rate: members, $5, included in dues; Chair, Young Lawyers Division nonmembers, $45 (domestic), $55 (foreign). Canada Agreement No. PM Dylan T. Thriffiley • (504)842-4517 41450540. Return undeliverable Canadian addresses to: 4240 Harvester At-Large Members Rd #2, Burlington, ON L7L 0E8. Jermaine Guillory • (225)389-8846 Postmaster: Send change of address to: Louisiana Bar Journal, 601 St. Monique Y. Metoyer • (318)729-1880 Charles Avenue, New Orleans, Louisiana 70130. Lynn Luker • (504)669-0322 Subscriber Service: For the fastest service or questions, call Darlene M. LSU Paul M. Hebert Law Center LaBranche at (504)619-0112 or (800)421-5722, ext. 112. John M. Church • (225)578-8701 Tulane University Law School Editorial and Advertising: Ronald J. Scalise, Jr. • (504)865-5958 Publication of any advertisement shall not be considered an endorsement of the product or service involved. Submissions are welcome and will be Louisiana State Law Institute considered for publication by the Editorial Board. For submission guide- L. Kent Breard, Jr. • (318)387-8000 lines, go online at www.lsba.org, click on “Publications,” then “Louisiana House of Delegates Liaison Chair Bar Journal.” Copyright © by Louisiana Bar Journal. All rights reserved. Sandra K. Cosby • (504)452-7719 Reproduction in whole or part without permission is prohibited. Views expressed are those of the authors only. Editorial Staff Executive Director Luminary Award 2003 Loretta Larsen, CAE National Association of Bar Executives Communications Director Communications Section Kelly Wells Ponder Excellence in Regular Publications Publications Coordinator/Managing Editor Darlene M. LaBranche International Communications Coordinator/Graphic Design Association of Barbara D. Baldwin Business Public Relations Society Communications Assistant Communicators of America New Orleans Krystal Bellanger Rodriguez New Orleans Chapter Chapter Advertising Booking Questions? ward of Bronze Quill A Call (504)619-0131. Award of Merit

396 April / May 2019 EDITOR’S MESSAGE

By John E. Guten Abend McAuliffe, Jr.

his is it — the very last time torneys. I am sorry if I annoyed you or professionalism is evident in our “final you will hear from me as your badgered you about submissions. (No, I product” every two months. They make editor. (I can hear the joy in am not.) Be warned, Pat may continue to the job of editor that much easier and en- Mudville tonight!) send me out trolling for content. joyable. TI want to thank our members for al- The members of the Journal Editorial Finally, I want to thank my wife, Jean. lowing me to serve as secretary of the Board also deserve our continuing Through my three years on the Board of Louisiana State Bar Association (LSBA) thanks. They are dedicated to this publi- Governors and the last two years as sec- and as editor of the Louisiana Bar cation and to you, the membership. Many retary, she has always supported me, the Journal. The trust you have placed in me of our Editorial Board members have LSBA and, in turn, all of our members. is humbling. I hope I have performed to served for several years and have the Without complaint, she accompanied me your expectations. I know I am leaving experience to edit and polish submitted to the various functions and meetings. the Journal in very good hands. Patrick articles. They are all quick to volunteer to She knows when to kick me under the A. Talley, Jr. will soon be your secretary take on that one additional article. They table (or in public). I suspect (actually I and editor. Pat and I have known each also form the “collective” voice behind know) that all members of the Board of other since we served on the Board of decisions on the submissions to be pub- Governors have tolerated me only be- Governors together. He possesses the in- lished in the Journal. cause of her. She has been happily “edit- telligence, judgment and energy to keep Of course, along with me, all of our ing” my life and those of our children for this Journal as a vibrant legal periodical. members should thank the LSBA staff these many, but fast-moving, years. I also must thank the many lawyers members who (behind the scenes) are who have contributed articles over the most responsible for putting together past two years. It is only through their each issue. They meet every deadline. unselfish work that we are able to fill They work several issues in advance. each issue with interesting and current They keep every editor focused. They features on the law and our lives as at- rein us in. They know their craft and their Letters to the Editor Policy 1. At the discretion of the Editorial Board 3. Letters should be no longer than 200 words. differing perspectives. Authors, editorial staff (EB), letters to the editor are published in the 4. Letters should be typewritten, signed and, or other LSBA representatives may respond to Louisiana Bar Journal. if applicable, include LSBA member number, letters to clarify misinformation, provide related 2. If there is any question about whether a address and phone number. Letters from non- background or add another perspective. particular letter to the editor should be published, members of the LSBA also will be considered for 7. Letters may pertain to recent articles, the decision of the editor shall be final. If a letter publication. Unsigned letters are not published. columns or other letters. Letters responding to questioning or criticizing Louisiana State Bar 5. Not more than three letters from any a previously published letter should address the Association (LSBA) policies, rules or functions individual will be published within one year. issues and not be a personal attack on the author. is received, the editor is encouraged to send a 6. Letters also may be clarified or edited 8. No letter shall be published that contains copy of that letter to the appropriate entity for for grammar, punctuation and style by staff. defamatory or obscene material, violates the reply within the production schedule of the In addition, the EB may edit letters based on Rules of Professional Conduct or otherwise may Louisiana Bar Journal. If the editor deems it space considerations and the number and nature subject the LSBA to civil or criminal liability. appropriate, replies may be printed with the of letters received on any single topic. Editors 9. No letter shall be published that contains original letter, or in a subsequent issue of the may limit the number of letters published on a solicitation or advertisement for a commercial Louisiana Bar Journal. a single topic, choosing letters that provide or business purpose.

Louisiana Bar Journal Vol. 66, No. 6 397 JOIN US IN NEW ORLEANS. Our speakers include… the nation’s leading LETTERS academicians, jurists, and members of the Bar from both sides of the “V.” These are the folks that are presiding over, writing about, and litigating the most significant READER RESPONDS cases in the country.

Remembering Attorney General Guste Richard Arsenault has been recognized as one of America’s Top 50 I was saddened to learn of the pass- When awareness of environmen- pay for our coastal land loss dilemma. Influential Trial Lawyers by Trial Lawyer Magazine. He has been involved in ing of one of Louisiana’s political icons, tal affairs in Louisiana was just begin- General Guste was a fearless and over 25 Multidistrict litigation proceedings with the NY Times noting Arsenault longtime Attorney General Billy Guste. ning to take root, he created within the compassionate leader. He was a friend has “repeatedly played a leading role in mass tort cases.” As Actos MDL Lead The splendid article by his daughter Louisiana Department of Justice his of Louisiana, its citizens and our envi- Anne Guste recapping some of his major Environmental Enforcement Section ronment. He may be gone, but his spirit counsel, a $9 billion verdict was followed by a $2.4 billion settlement. In the career accomplishments was enlighten- that successfully initiated and prosecut- and tenacity lives on in all who had the Pinnacle MDL where Arsenault serves on the Executive Committee and Trial ing and empowering (December 2018/ ed litigation to stop shell dredging in honor of serving with him. One of his Team, three trials have resulted in verdicts exceeding $1.75 billion. The Wall January 2019 Louisiana Bar Journal, Lake Pontchartrain and ban the rampant many great gifts to Louisiana was his Street Journal has described Richard as having “national notoriety” and as a Louisiana’s Legal Legends.) and indiscriminate discharge of toxic- visionary action to save our coast. “big gun” amongst attorneys in competition for leadership roles. BusinessWeek The “General,” as we his staff affec- produced water and drilling fluid into described him as “a Dean of the Louisiana Tort Bar” and the NY Times tionately referred to him, used his office coastal waters. William W. Goodell, Jr. described him as one of the “big players” in the legal community. to promote the public interest across a Twenty-five years later, others have Former Assistant Attorney General, broad spectrum of issues — in particu- now picked up the baton from General Environmental Enforcement lar, matters involving Louisiana’s frag- Guste to hopefully, finally, make those Lafayette Richard Arsenault ile and disappearing coast. entities and other responsible parties Seminar Chair What’s all the jazz about 26TH ANNUAL LOUISIANA STATE BAR ASSOCIATION Sept. ADMIRALTY SYMPOSIUM th Last year’s speakers included: 13 IMMIGRATION? Hon. Jane Triche Milazzo • Hon. John W. deGravelles • Hon. Dee D. Drell • Hon. Daniel E. Knowles III Friday, April 26, 2019 Hon. Jay Zainey • Hon. Richard T. Haik, Sr. (ret.) • Lindsey Cheek • Dustin Carter • Blake David Louisiana Bar Center | 601 St. Charles Ave. | New Orleans Jeff Tillery • Darleen Jacobs • J. Neale deGravelles • Steve Herman • Alan Breaud • Jerome Moroux PROGRAM AGENDA: 8:00 A.M. – 4:15 P.M. Jean Paul Overton • Richard T. Haik, Jr. • J. Christopher Zainey, Jr. • Kenneth Engerrand Networking Reception Wesley J. Gralapp • Richard Stanley • Peggy Giglio • Leslie Schiff • Chase Gore • Lynn Luker Caravans? Asylum Seekers? 4:15-5:30 p.m. • Ace Hotel Michael S. Koch • John Yadamec • Special Master Gary Russo Updates from the Southern Border Sponsored by the LSBA Immigration Law Section

Taking it to the Next Level: 19TH ANNUAL LOUISIANA STATE BAR ASSOCIATION Litigating for Your Client in Federal Court Nov. Hon. Paul Schmidt | Washington, DC What’s Going on in Jena? Julie Brown White | Baton Rouge COMPLEX LITIGATION SYMPOSIUM th Access to Counsel in Remote Detention Centers R. Andrew Free | Nashville, TN 8 Michael W. Gahagan | New Orleans Last year’s speakers included: Crimmigration Issues before the Immigration Court Philip J. Hunter | Baton Rouge Hon. Ken Starr • Hon. Eldon Fallon • Hon. Sarah Vance • Hon. W. Royal Furgeson • Hon. Patrick Hanna | Hon. Mary Wiss • Hon. Glenn Norton • Hon. Lisa Page • Hon. Beth Hogan • Hon. James Stanton Ins and Outs of Appellate Advocacy Jeremy Jong New Orleans Susan Kalmbach | Baton Rouge Hon. Carl Barbier • Mark Lanier • Prof. James Wren • Prof. Lynn Baker • Prof. Tom Galligan The Ethics of Dealing with a Bar Complaint (Ethics) Alex Lubans-Otto | Cincinnati, OH Prof. Jaime Dodge • Prof. Francis McGovern Prof. James Underwood • Special Master Kenneth DeJean For more information or to register, visit Dr. Alicia Triche | Memphis, TN Alexander Calfo • John Sherk • Shean Williams • Raymond Silverman • Rachel Lanier • James Williams Rick Vetters | New Orleans Douglas Marvin • Jane Lamberti • Eric Holland • Tony Clayton Jayne Conroy • Mark Robinson www.lsba.org/cle Kathryn Snapka • Nicholas Drakulich • Special Master Gary Russo • Lori Cohen • Melanie Muhlstock Ethan Lange • Ginger Susman • John Hooper • Neil Overholtz • Joe Rice • Lynn Luker

398 April / May 2019 More information coming soon to www.lsba.org/CLE JOIN US IN NEW ORLEANS. Our speakers include… the nation’s leading academicians, jurists, and members of the Bar from both sides of the “V.” These are the folks that are presiding over, writing about, and litigating the most significant cases in the country.

Richard Arsenault has been recognized as one of America’s Top 50 Influential Trial Lawyers by Trial Lawyer Magazine. He has been involved in over 25 Multidistrict litigation proceedings with the NY Times noting Arsenault has “repeatedly played a leading role in mass tort cases.” As Actos MDL Lead counsel, a $9 billion verdict was followed by a $2.4 billion settlement. In the Pinnacle MDL where Arsenault serves on the Executive Committee and Trial Team, three trials have resulted in verdicts exceeding $1.75 billion. The Wall Street Journal has described Richard as having “national notoriety” and as a “big gun” amongst attorneys in competition for leadership roles. BusinessWeek described him as “a Dean of the Louisiana Tort Bar” and the NY Times described him as one of the “big players” in the legal community.

Richard Arsenault Seminar Chair 26TH ANNUAL LOUISIANA STATE BAR ASSOCIATION Sept. ADMIRALTY SYMPOSIUM th Last year’s speakers included: 13 Hon. Jane Triche Milazzo • Hon. John W. deGravelles • Hon. Dee D. Drell • Hon. Daniel E. Knowles III Hon. Jay Zainey • Hon. Richard T. Haik, Sr. (ret.) • Lindsey Cheek • Dustin Carter • Blake David Jeff Tillery • Darleen Jacobs • J. Neale deGravelles • Steve Herman • Alan Breaud • Jerome Moroux Jean Paul Overton • Richard T. Haik, Jr. • J. Christopher Zainey, Jr. • Kenneth Engerrand Wesley J. Gralapp • Richard Stanley • Peggy Giglio • Leslie Schiff • Chase Gore • Lynn Luker Michael S. Koch • John Yadamec • Special Master Gary Russo 19TH ANNUAL LOUISIANA STATE BAR ASSOCIATION Nov. COMPLEX LITIGATION SYMPOSIUM th Last year’s speakers included: 8 Hon. Ken Starr • Hon. Eldon Fallon • Hon. Sarah Vance • Hon. W. Royal Furgeson • Hon. Patrick Hanna Hon. Mary Wiss • Hon. Glenn Norton • Hon. Lisa Page • Hon. Beth Hogan • Hon. James Stanton Hon. Carl Barbier • Mark Lanier • Prof. James Wren • Prof. Lynn Baker • Prof. Tom Galligan Prof. Jaime Dodge • Prof. Francis McGovern Prof. James Underwood • Special Master Kenneth DeJean Alexander Calfo • John Sherk • Shean Williams • Raymond Silverman • Rachel Lanier • James Williams Douglas Marvin • Jane Lamberti • Eric Holland • Tony Clayton Jayne Conroy • Mark Robinson Kathryn Snapka • Nicholas Drakulich • Special Master Gary Russo • Lori Cohen • Melanie Muhlstock Ethan Lange • Ginger Susman • John Hooper • Neil Overholtz • Joe Rice • Lynn Luker

More information coming soon to www.lsba.org/CLELouisiana Bar Journal Vol. 66, No. 6 399 PRESIDENT’S MESSAGE

“And Thanks...” By Barry H. Grodsky

had a feeling this would happen. I’m at my last President’s Message and not sure what to write. This is at least the third draft, so here goes.I At first I wanted to write about the unfounded attacks on our judiciary. This issue has been addressed by American Bar Association leadership and, as lawyers, we must uphold the integrity of our courts and always promote and enforce the Rule of Law. Then I wanted to write about the national challenges to man- I am thankful for all my friends at the ment of the Bar and ensuring that we are datory bars. This is a real and ongoing Bar, starting with Loretta Larsen, our progressing forward. These members concern of which all bar leaders are ever outstanding executive director. Our near serve unselfishly and their role is vital to mindful but it is still a bit of a moving 23,000 members would be shocked to a successful Bar. target. Then I wanted to write about my learn of the work the staff puts in to keep I am thankful for members of our “56” professionalism speech. 56 cents is this organization running so smoothly judiciary, not just for the support and the daily amount it costs to be a member and to be so successful. encouragement they give to the Bar but of the Louisiana State Bar Association I am thankful for our Executive also for their direct participation and (LSBA). Best bargain anywhere! Then Committee — Dona Renegar, Bob involvement in Bar programs. The col- I wanted to write about how the theme Kutcher, Eddie McAuliffe, Shayna legiality shown by our judges in work- for my year as president, “Changes in Sonnier and recent additions Pat Talley ing with the LSBA is amazing and truly Attitude, Changes in Latitude,” played and Alainna Mire. This is a great team unique. I have been surprised at how out. I am pleased to see so many proof individuals who epitomize leadership many state Bars do not share such a grams develop and so proud that the and are dedicated to the Bar. wonderful relationship with their judi- amended Code of Professionalism is in I am thankful for all of our commit- ciary. This truly starts at the top and I place and the Long-Term Strategic Plan tees and their chairs. So much is ac- appreciate the support and friendship of is being implemented, plus other goals complished by these committees, gener- Louisiana Supreme Court Chief Justice which were met. ally with little fanfare. They create and Bernette Joshua Johnson. But that’s just not it. Then it came to implement programs which keep the I am thankful, as I set out in my last me and it was so simple. Thanks. Just LSBA out in front as Bar leaders. message, for all those people whose thanks. I have been truly blessed and so I am thankful for our sections which, paths I’ve crossed. The friendships fortunate to have had the opportunity to under the leadership of Val Exnicios, established this past year have been serve as president and there is so much I have stepped up to create leadership op- remarkable and I know many will be am thankful for. So my final message is portunities for our young lawyers — to- long-lasting. Without Bar involvement, truly simple — THANKS! morrow’s leaders — with their Section this never would have happened. LSBA I am thankful to all who encouraged Scholarship Program and with sponsor- leadership is well-recognized with other me to take on this challenge and for all ships. Bars, particularly in our great relation- of those, particularly past presidents, I am thankful for our Board of ship with the Southern Conference of who gave me guidance and advice so Governors and our House of Delegates Bar Presidents, of which I had the honor patiently and kindly. — volunteers committed to the advance- of serving as president this past year.

400 April / May 2019 I am thankful for all of our affiliated groups, including the Louisiana Bar Foundation and the Judges and Lawyers Assistance Program (JLAP), as well as the strong continued relationship with our law schools. Reaching out to those not yet admitted is critical to promote professionalism and offers the LSBA the opportunity to introduce them to other exciting programs, such as the TIP men- toring program once they are admitted into practice. I am thankful for all members of our Bar who have understood the importance of the balance of work and life and have taken a deep breath when dealing with the stress of our profession. Everyone needs a step away to recharge his/her batteries to even better appreciate what we as lawyers do. I actually finished a novel I was writing (anyone know a good agent?). I am thankful for every one of our volunteers. Your efforts and participation are truly helpful and meaningful. Whether giving a CLE, serving at a self-help desk or participating in a law school program, the success of a Bar is dependent on its volunteers. I am thankful for President-Elect Bob Kutcher and President-Elect Designee Alainna Mire whose dedication and knowledge will serve them to be the great leaders I know they will be. On a personal note, I am thankful for my assistant Courtney. If you have ever dealt with me, you’ve no doubt dealt with her. She has been indispensable to me. And, last, but certainly not least, I am so very thankful for my wife Cheri and daughter Caroline. They have had to put up with all of the duties and obligations of serving as president. I never could have done it without them. So, as I now ride off into the sunset, I do so being very appreciative of all who have taken this ride with me. You’ve all made this trip so very special. And to all, I say: “Thanks.”

Sandestin Golf and Beach Resort µ Destin, Florida

Louisiana Bar Journal Vol. 66, No. 6 401 Think Before You Sign:

Notarial Liability in Louisiana By Ryan K. French

402 April / May 2019 ar associations and practitio- ligation to properly administer oaths and articulated a “standard of care for a no- ners do a fine job of warn- certify sworn statements.6 A lesser known tary:” ing new lawyers about the duty is the obligation to record any nota- consequences of practicing rized act of sale, exchange, donation or [S]o long as [a notary] exercises Blaw — the stressful tediousness of bill- mortgage of immovable property in the the precaution of an ordinarily pru- able hours, the increased likelihood of relevant parish records within 15 days dent business man in certifying to substance abuse and the ethical pitfalls, unless excused in writing.7 It is also nota- the identity of the persons who ap- among other things. What new lawyers ries to whom the law exclusively entrusts pear before him, it may be doubted are left woefully unprepared for, how- the authority to pass an authentic act,8 whether he has any other function ever, is their newfound power to nota- validate a donation9 or substantiate cer- to discharge.16 rize. Not only is this notarial authority a tain wills.10 In each of these contexts, the source of significant responsibility, but, presence of a notary is meant “to ensure In light of the existence of a distinct to the surprise of many lawyers, it is also the validity of a signature on a document legal standard and the pervasiveness of a source of significant liability. and that the person whose name appears notarial acts, there are surprisingly few thereon is the person who actually signed published judicial decisions considering Attorney-Notary Authority the document.”11 the liability of a notary. What makes the Despite this most basic function of absence of case law even more surprising Louisiana attorneys are not automati- the notary public, notarization is often is the willingness of courts, when given cally licensed as Louisiana notaries. But perceived to be a separate, stand-alone the chance, to hold notaries liable for an attorney’s bar admission does auto- formality that can be satisfied at any failing to perform their duties. Generally matically exempt him or her from the time. Before or after obtaining all of the speaking, these notarial negligence cases notary public examination, the only sub- relevant signatures, a well-intentioned fall into two categories — (1) “imposter stantive hurdle to a notarial commission.1 party will often present a document to cases,” in which a signatory is present, al- Armed with a Louisiana bar admission, an attorney for “independent notariza- though the signatory is not who he claims the only other things an attorney needs to tion.” While in the words of one court, to be; and (2) “absent-signor cases,” in do to become a licensed notary is to com- “[s]uch a procedure would defeat the en- which the signatory is not physically plete an “Application to Qualify,” submit tire purpose of the [notarization] require- present when the document is notarized. two oaths, submit a “Certificate of Good ment,”12 attorneys are often pressured to Standing” and pay $35 to the Louisiana simply endorse the already-signed docu- Imposter Cases: Secretary of State’s office.2 Ironically, ment for everyone’s convenience. In the Negligence Liability though excused from taking the formal vast majority of cases, the signatures are notarial exam, an attorney-notary’s state- ultimately authentic, no one is inconve- With respect to notarial liability in an wide commission is far more expansive nienced, and the attorney becomes a little imposter case, the Louisiana 5th Circuit’s than the parish-based commission held more convinced of the meaninglessness decision in Collins v. Collins17 is illustra- by traditional notaries.3 of notarial acts. Every once in a while, tive. In Collins, the plaintiff alleged that As word of the attorney’s notarial au- however, something different happens. his ex-wife had appeared at the notary’s thority then spreads, friends and acquain- office with a man purporting to be the tances — and sometimes people who are Notary Liability in Louisiana plaintiff; that the notary failed to confirm neither — suddenly begin to show them- his identity; that the man forged the plain- selves, papers in hand. Vehicle title cer- Though it imposes various registra- tiff’s name on an act of sale; and that the tificates, professional certification appli- tion, bonding and other requirements, the plaintiff thereby lost property in which cations and acts of donation appear from Louisiana notary statute does not itself he had an interest.18 Construing the “pru- nowhere and in extraordinary numbers. create a general cause of action against dent notary” standard, the Collins court If the attorney is feeling particularly loy- notaries public.13 It, nonetheless, presup- first explained, “[A] notary is liable both al to a friend, he might even find himself poses that a notary is liable “for the fail- for deliberate misfeasance in the course sitting outside of a Bob Seger concert in ure to perform his duties” by specifying of his official duties and for negligence another city, waiting for a certain concert that bonding does not affect a notary’s in performing those duties.”19 Under this patron to exit and execute a notarial act liability for such failures.14 Elsewhere, standard, the court then held a notary of correction.4 the notary statute provides prescriptive could certainly be liable for failing to With respect to all of an attorney’s and peremptive periods for any action for confirm the identity of a signatory.20 professional and extracurricular notarial damages “occasioned by [a] notary pub- In contrast to Collins, there are two activities, he or she remains bound to lic in the exercise of the functions of a decisions (Howcott and Quealy)21 declin- “perform all the duties incumbent upon notary public.”15 ing to hold a notary liable for notarizing [him or her] as Notary Public.”5 Perhaps Filling the void left by the notarial a false signature. Like Collins, both of the most obvious notarial duty is the ob- statute, the Louisiana Supreme Court has those decisions involved an “imposter”

Louisiana Bar Journal Vol. 66, No. 6 403 who physically appeared before the notary.22 In both of these decisions, however, the imposter was introduced and vouched for by someone with whom the relevant notary had a significant pre- existing relationship.23 Where a notary is less familiar with someone, though, the notary’s reliance upon an introduction has been found to be a “serious deviation from safe business practices” and, therefore, negligent.24 Another noteworthy decision is the Louisiana 2nd Circuit’s opinion in Webb v. Pioneer Bank & Trust Co.25 Indeed, the Webb court considered the liability of a notary in the circumstances arguably most likely to face a busy attorney — while a notarized signature was later shown to be forged, the notary simply could not remember the specific facts surrounding the transaction.26 The notary’s inability to offer an explanation (some five years after the transaction) was fatal; faced with only a forged signature, the court had to presume that the notary was negligent in ment, as notary, he was telling the the plaintiffs did not appear be- certifying its authenticity.27 world that the parties had appeared fore him and acknowledge their before him and affixed their sig- signatures on the deed, nor did natures in his presence. Thus, he he require that they do so . . . . Absent-Signor Cases: committed fraud in that he pur- [By] signing the acknowledgment Fraud Liability posely let third parties rely on a clause, [the attorney-notary]’s ac- document purporting to be genuine tions were a deliberate misrepre- While it is one thing to fail to verify but actually without validity as an sentation.33 the identity of a signor that is physically authentic act. The “proof” of valid- present, it is an entirely different thing to ity he supplied was misleading to Put another way, an attorney who no- notarize the signature of someone who all who relied on the contract.30 tarizes a signature he or she did not wit- was never seen. This distinction, it turns ness commits fraud, even if the signature out, is the difference between a finding of The 1st Circuit reaffirmed this rea- is authentic. negligence and a finding of fraud. soning in McGuire v. Kelly, which also Squarely before the Louisiana 1st concerned an attorney’s notarization of Consequences of Notarial Circuit in Summers Bros., Inc. v. Brewer 31 an absent party’s signature. Like the Malfeasance (1982) was an attorney’s “independent Summers court before it, the McGuire notarization,” or the certification of a sig- court determined that to notarize an ab- The consequences of notarizing an il- nature that was not physically witnessed sent party’s signature is tantamount to 28 legitimate signature can be severe. The by the attorney-notary. The notarized, falsely representing that a party personal- forged document then served as the ba- most obvious consequence, of course, is ly appeared, presented identification and the potential liability for resulting dam- sis for various commitments of money 32 inscribed a signature. In other words, ages. Where an aggrieved party can ad- and equipment, ultimately costing the the McGuire court explained, such a no- 29 equately demonstrate its reliance upon an aggrieved party more than $10,000. tarization is the definition of fraud: Emphasizing the deception inherent in illegitimate notarization, courts have not the notarization of an absent party’s sig- hesitated to attribute all resulting dam- Regardless of whether [the attor- 34 nature, the court stated: ages and expenses to the notary. ney-notary] was aware of Kelly’s Notarial malfeasance has the addi- scheme and his forgery of the tional, unique consequence of exposing Even if [the attorney-notary] did plaintiffs’ signatures, [the attorney- not know that the signatures on the the notary to liability to anyone who notary] knew that his acknowledg- might come to rely upon the tainted doc- contract were forgeries, he knew ment was false . . . . Furthermore, that by authenticating the docu- ument. As the title notary public might [the attorney-notary] knew that suggest, the very function of a notary is

404 April / May 2019 to “purposely let third parties rely on a misrepresentative, dishonest and decep- 1913); Quealy v. Paine, Webber, Jackson & Curtis, document.”35 The improper discharge of tive. For precisely these reasons, the Inc., 464 So.2d 930, 938 (La. App. 4 Cir. 1985), aff’d in relevant part, revd in part on other grounds, notarial duties, therefore, permits the no- Louisiana Supreme Court has ordered a 475 So.2d 756 (La. 1985). tary “to be held liable to anyone who may range of disciplinary actions in response 22. Quealy, 464 So.2d at 938; Howcott, 63 So. be thereby injured.”36 to similar conduct.42 376 at 379. For those who face fraud liability, the 23. Quealy, 464 So.2d at 938; Howcott, 63 So. 376 at 379. consequences of notarial misconduct are Conclusion 24. Levy v. W. Cas. & Sur. Co., 43 So.2d 291, even more severe. In some cases, the 294 (La. App. 2 Cir.1949). mutual misrepresentations of the notary Like many articles, this one was in- 25. 530 So.2d 115, 118 (La. App. 2 Cir. 1988). and the party submitting the false signa- 26. Id. at 117. spired by real events and a very real law- 27. Id. at 118. ture — even though the notary was not suit. Despite the shortage of litigation on 28. 420 So.2d 197, 201 (La. App. 1 Cir. 1982). necessarily aware of the forgery — can the topic, the severity with which the law 29. Id. at 203. constitute concerted action sufficient to has punished careless notarial conduct 30. Id. at 204. 31. 2010-0562, 2012 WL 602366 (La. App. 1 make the notary solidarily liable for all is startling. To those attorneys who con- 37 Cir. 1/30/12). resulting damages. tinue to serve as notaries, the Louisiana 32. Id. at *11-12. Perhaps more practically damning Supreme Court’s 141-year-old statement 33. Id. at *12. is the effect of a fraud finding upon an in Rochereau v. Jones remains both re- 34. See, e.g., Summers Bros. v. Brewer, 420 attorney-notary’s insurance coverage. So.2d 197, 204 (La. App. 1 Cir. 1982). markably relevant and the best summary 35. Id. at 204. Because many malpractice insurance of the responsibilities: 36. Harz v. Gowland, 52 So. 986, 987 (La. policies exclude coverage for claims aris- 1910) (emphasis added); see also, Summers, 420 ing out of fraudulent or deceptive acts, an High and important functions are en- So.2d at 204 (“A notary is responsible to all persons attorney sued over a notarial act could . . . .”). trusted to notaries; they are invested 37. McGuire, 2010-0562, 2012 WL 602366 at conceivably have no source of indemnity. with grave and extensive duties . . . . *12. Indeed, this is precisely what happened Their responsibility is as high as 38. Id. at *13-14. in McGuire, where the Louisiana 1st their trust, and a notary who official- 39. See, Riggins v. Dixie Shoring Co., 590 Circuit determined that the professional So.2d 1164, 1168 (La. 1991). ly certifies as true what he knows to 40. See, 11 U.S.C. § 523(a)(6). liability insurer owed no coverage to the be false violates his duty, commits a 41. See, La. R.S. 35:604. attorney-notary who notarized the signa- crime, forfeits his bond, binds him- 42. See, e.g., In re Hollis, 2013-2568 (La. ture of an absent party.38 From here, it is self, and binds his sureties.43 3/14/14), 135 So.3d 596, 599 (ordering attorney not difficult to argue that notarial malfea- discipline based, in part, on “notarizing [an] af- fidavit outside of the presence of the affiant”); In sance justifies piercing the corporate veil FOOTNOTES re Porter, 2005-1736 (La. 3/10/06), 930 So.2d 875, of the attorney-notary’s law firm39 and 876-77; In re Landry, 2005-1871 (La. 7/6/06), 934 40 even creates a non-dischargeable debt. 1. See, La. R.S. 35:191(C)(3)(c). So.2d 694, 699. As if the legal consequences of no- 2. See generally, La. R.S. 35:191. 43. Rochereau v. Jones, 29 La. Ann. 82, 86 (La. 1877). tarial malfeasance were not enough, 3. See, La. R.S. 35:191(A), (F)-(O). such conduct is also ripe for professional 4. Yes, this happened. Ryan K. French re- 5. See id. ceived his JD degree, discipline. In fact, the notary statute ex- 6. La. R.S. 35:2, 35:3. summa cum laude, in pressly contemplates that attorney-no- 7. La. R.S. 35:199 (48 hours in Orleans Parish). 2012 from Louisiana taries will at all times remain subject to The same statutory provision establishes a $200 State University Paul M. “the authority of the Louisiana Supreme penalty and a cause of action in favor of all parties Hebert Law Center. He to the instrument. 41 also earned an account- Court to regulate the practice of law.” 8. La. Civ.C. art. 1833. ing degree from LSU. He In turn, Rule 8.4 of the Louisiana Rules 9. La. Civ.C. art. 1541. passed the CPA exam and of Professional Conduct makes it pro- 10. La. Civ.C. art. 1577. now focuses in commer- fessional misconduct for an attorney to 11. See, Zamjahn v. Zamjahn, 02-871 (La. App. cial litigation at the law 5 Cir. 1/28/03), 839 So.2d 309, 315. firm Taylor, Porter, Brooks “engage in conduct involving dishonest, 12. Id. & Phillips, L.L.P., in Baton Rouge. His practice fraud, deceit or misrepresentation.” 13. See, La. R.S. 35:1 et seq. includes the representation of plaintiffs and defen- By definition, mere negligence in 14. See, La. R.S. 35:198(A). dants in matters involving financial and economic the course of notarial work should not 15. La. R.S. 35:201. damages, commercial torts, business valuation, 16. Howcott v. Talen, 63 So. 376, 379 (La. complex contractual matters and closely-held busi- constitute a violation of the Rules of 1913); Quealy v. Paine, Webber, Jackson & Curtis, ness disputes. ([email protected]; 450 Professional Conduct. If the legal analy- Inc., 475 So.2d 756, 761 (La. 1985) (quoting Laurel St., 8th Flr., Baton Rouge, LA 70801) sis applied in Summers and McGuire is Howcott). any indication, however, the notarization 17. 629 So.2d 1274 (La. App. 5 Cir. 1993), writ denied, 635 So.2d 1110 (La. 1994). of an absent party’s signature is not mere- 18. Id. at 1276. ly negligence. Given the sole purpose of 19. Id. notarial attestation, such an “indepen- 20. Id. at 1277. dent notarization” certainly seems to be 21. Howcott v. Talen, 63 So. 376, 379 (La.

Louisiana Bar Journal Vol. 66, No. 6 405 End-of-Life Decisions Living Wills, Healthcare Powers of Attorney and Other Issues

By Laura E. Fine

406 April / May 2019 iscussing end-of-life plan- becomes effective upon the occurrence that the power of attorney prepared by ning with clients is a very dif- of a condition, such as the principal’s in- the practitioner will be accepted by the ficult, but necessary, topic for capacity. There are many difficulties that financial institution. any practitioners involved in can arise when using springing powers As a final note, clients should be ad- Destate planning. This is particularly true if of attorney, with the most obvious be- vised to place the power of attorney with a client is facing a life-threatening illness. ing how to define and confirm incapac- other important legal documents (or give Decisions regarding end-of-life care are ity. One common method of proving the them to the agent), but should not place deeply personal and clients should talk principal is incapacitated is to require that the power of attorney in a safety deposit to loved ones, healthcare providers and such incapacity be certified by two physi- box as the agent will need the power of advisors regarding their wishes as this is cians. A springing power of attorney also attorney to enter the safety deposit box. crucial to ensuring those desires are car- presents difficulties when the agent at- ried out. If a client does the appropriate tempts to use the power of attorney, since Medical Power of Attorney planning, he or she will be able to focus the agent will have to prove to third par- on spending time with loved ones rather ties that the principal is incapacitated. While the power of attorney discussed than dealing with unexpected issues. It is often advisable to have more than above can include the power to make one agent acting as power of attorney for medical decisions on behalf of the princi- Powers of Attorney and the principal. The reasoning is that if one pal, it is common for the medical power Living Wills agent is unavailable, incapacitated or pre- of attorney to be a separate document. deceases the principal, another individual The medical power of attorney speci- The existence of a durable power of can act as agent. Clients may have con- fies the person or people the principal attorney can often mean that relatives cerns regarding naming someone other wishes to make his or her healthcare de- will not have to institute interdiction than their spouse as agent, as the pos- cisions in the event the principal is unable proceedings if the individual becomes sibility of conflict increases when more to make those decisions. If the principal incapacitated, as durable powers of attor- than one person is authorized to act on wants to name more than one person as ney will continue even if the individual behalf of the principal. The question is the agent, the drafter should consider is incapacitated. La. Civ.C. art. 3026. A also whether the multiple agents should how conflicts between the two (or more) person with a durable power of attorney be required to act jointly, or whether they agents will be resolved. It is advisable to (hereinafter the “agent”) can act on the should be allowed to act independent- name one person whose decisions will be behalf of the individual (hereinafter the ly. Requiring joint action complicates binding on the healthcare professionals “principal”) in legal and financial mat- the actual use of the power of attorney in the event of conflict among the agents. ters and can perform all acts incidental to since two signatures will be required. Unlike the durable power of attorney, the or necessary for the performance of the However, naming more than one agent, medical power of attorney will only be power of attorney. La. Civ.C. art. 2995. especially if those agents are children of able to be used by the agent when the The power of attorney will terminate the principal, may reduce family conflict principal is incapacitated. The issues upon the death or interdiction of the prin- since both agents will have access to fi- around “springing” powers of attorney cipal. La. Civ.C. art. 3024. The principal nancial information. The agents are also do not apply with medical powers of at- may terminate the power of attorney at less likely to abuse the power of attor- torney since the incapacity of the princi- any time unless the parties agreed to its ney if another agent is looking over their pal is easily ascertained by medical staff. irrevocability. La. Civ.C. art. 3025. The shoulder. The medical power of attorney can be agent may terminate the power of at- In the event that the principal is inter- a blanket statement giving the agent the torney by notifying the principal of the dicted, the principal can designate his or ability to act on the behalf of the prin- agent’s resignation. At the termination her preference for a curator in the power cipal for all medical decisions, but the of the power of attorney, the agent has of attorney. La. C.C.P. art. 4561(C)(1)(a) medical power of attorney also can ad- an obligation to account for his or her states that the court will first consider as dress the principal’s desires in specific performance to the principal unless the curator a person designated in a writing medical situations. For example, one of duty to account has been expressly dis- by the proposed interdict when he or she the most difficult decisions for an agent pensed with by the principal. La. Civ.C. still had sufficient ability to communicate to make is whether to consent to a “Do art. 3032. a preference. Not Resuscitate” order. It is preferable Some clients may be uncomfortable Some financial institutions, particu- for the principal to have considered this giving such broad authority to one or larly large financial institutions, can be question prior to incapacity and to have more individuals if it is immediately ef- reluctant to accept powers of attorney stated his or her decision so that the chil- fective upon execution. It is not uncom- prepared by someone other than their dren or a spouse cannot contradict the mon to have clients ask to have the power own legal department. The practitioner principal’s desires. of attorney be a “springing” power. A should advise his or her client to con- In the absence of a medical power of springing power of attorney is one that tact the financial institution and confirm attorney, La. R.S. 40:1159.4 states that

Louisiana Bar Journal Vol. 66, No. 6 407 the people who can consent to medi- person they would like to be in charge of Generally, the policy will be triggered cal treatment are (in this order): spouse the funeral services. Having such a will when the client can no longer perform (not judicially separated), adult child of or notarized document can prevent con- two or more activities of daily living, patient, parent, patient’s sibling, the pa- flict among family members and give such as bathing, eating, dressing, us- tient’s other ascendants or descendants, clear direction for the funeral home. ing the bathroom and walking. Clients adult friend, person standing in loco pa- In speaking with multiple funeral should make sure that the policy will be rentis for a minor, person chosen by an homes in the New Orleans area, it be- triggered by the onset of mental impair- interdisciplinary team, or person chosen came clear that the area of most conflict ment, such as Alzheimer’s or dementia. by an ad hoc team assembled by an in- was the decision to cremate. La. R.S. While the statistics vary depending terested person. 37:876 provides a long list of individuals on the source, it is clear that the majority authorized to serve as the agent for the of people will need some form of long- Living Will deceased with regards to the decision to term care after age 65. Women are more cremate and requires majority consent likely to need long-term care than men A living will is a document wherein in the event that the deceased’s surviv- and to need it for longer. the client expresses his or her desires re- ing children or grandchildren are the in- Medicare does not pay for long-term garding continuing medical care in the dividuals whose consent is required. If care. It is intended to only pay for medi- event the client is in a permanent and the required authorization cannot be ob- cally necessary care and acute care such irreversible coma. For loved ones, the tained, i.e. if a majority of the surviving as doctor visits, drugs and hospital stays. decision to terminate life support is par- children or grandchildren won’t consent Medicare will cover short-term care in ticularly difficult. The decision to termi- to cremation, a final judgment from a a skilled nursing facility for conditions nate life support also must encompass court will have to be obtained. which are likely to improve, such as the decision to terminate hydration and physical therapy after a fall or a stroke. nutrition through the removal of a feed- Long-Term Care Insurance, Medicare will pay 100 percent of the ing tube. As wrenching as these deci- Medicare/Medicaid and costs for a 20-day stay at a skilled nursing facility, hospice or home health care sions are, if the client has expressed his Hospice Care or her wishes in a living will, the family if the patient had a recent hospital stay of at least three days, the patient was will be able to effect the decision know- Planning for long-term care in the ing that they are acting in accordance then admitted to a Medicare-certified event a client becomes incapacitated nursing facility, and the patient requires with their loved one’s wishes. or disabled is a vital part of end-of-life La. R.S. 40:1151.2 states that any skilled nursing or therapy. For days 21 planning. The cost of long-term care through 100, the patient pays for the adult person can make a written state- can be astronomical and many clients ment directing that life-sustaining pro- costs of the facility up to $164.50 per are interested in purchasing insurance day, with Medicare paying for any costs cedures be withheld if that person is in to cover those costs, as health insur- a terminal and irreversible condition. that exceed $164.50 per day. ance doesn’t cover this type of care and Medicare also will pay for part-time The declaration must be signed in the Medicare only covers this type of care presence of two witnesses. The declara- or intermittent skilled nursing care, for a short period of time. Long-term physical therapy, speech therapy, occu- tion can be made orally or nonverbally care can meet a variety of patient needs, after the diagnosis of the terminal and pational therapy, medical social services from help with everyday activities to to help cope with an illness, medical irreversible condition so long as the skilled nursing care. declaration is made in the presence of supplies and durable medical equipment This type of insurance is generally if such services are medically necessary. two witnesses. The statute also provides not inexpensive, and the cost will climb a sample form for the declaration. The Medicare will continue to pay for these the longer a client waits to buy a policy. services indefinitely as long as the treat- declaration can be registered with the The policies will offer different cover- Secretary of State for a small fee. ing physician reorders the services ev- age options. Depending on the coverage ery 60 days. options chosen by the client, the policy Directives Regarding Burial The vast majority of nursing home will pay for at-home care or care in an residents pay for their care through and Cremation assisted living facility. Some policies Medicaid. Qualifying for Medicaid can also will pay for adult day care, care be a tricky business for clients who have Many clients have specific desires coordination, and modifying the client’s assets or income in excess of the feder- for the disposition of their remains and home so the client can continue living al/state set limitations. While qualifying those desires can be outlined in either there. for Medicaid is often an important part the will or a notarized declaration. In the In order to start receiving benefits of finding a nursing home, the topic is will, or notarized document, the client from the long-term care policy, the cli- complex and beyond the scope of this can specify desires regarding the type ent will have to meet certain standards article. of service, music, etc. and also name the set out by the insurance company.

408 April / May 2019 The client or the client’s family also should start to gather important documents and information regarding the client’s assets and debts. These documents will be invaluable when the succession is opened. The client or family should get information regarding all financial assets, including bank accounts, life insurance, retirement accounts, annuities, pensions (especially if the pension has survivor- ship benefits), real estate descriptions and all debts.

Laura E. Fine is a partner in the New Orleans firm of Lehmann Norman & Marcus, L.C. She received her bachelor’s degree in 2001 in psychology from Hospice General Advice Centenary College of Louisiana, her JD degree Hospice care is covered by most in 2006 from Thomas Each end-of-life planning discus- Jefferson School of Law private insurance plans, Medicare and sion is different. The conversation with in San Diego, Calif., Medicaid. The focus of hospice care is a young, healthy client is very different and an LL.M degree in to manage the pain of the patient and from a conversation with a client who comparative and international law in 2007 from treat the symptoms of the terminal ill- Tulane University Law School. She practices in has received a terminal diagnosis. estate planning, estate administration and business ness, rather than attempting to cure the When a client has received a termi- law and is admitted to practice in California and illness. The patient can receive hospice nal diagnosis or has a life-threatening Louisiana. She is a member of the Louisiana State care at home, a nursing home, a hospi- illness, the practitioner’s first job is to Bar Association’s Access to Justice Committee. She tal or a stand-alone, Medicare-approved is board-certified as a specialist in estate planning review all documents currently in place and administration by the Louisiana Board of Legal hospice care facility. Hospice will create to see if they still conform to the client’s Specialization. She also is an accredited estate an interdisciplinary team that consists of wishes. If the client is either new or new planner through the National Association of Estate a nurse, hospice volunteer, social worker, documents must be drafted, care must be Planners and Councils. ([email protected]; Ste. 2050, 400 Poydras St., New Orleans, LA 70130) home health aide and chaplain. The team taken to execute them while the client will work with the family to create a plan still retains capacity and is not adversely of care for the patient. impacted by medications. LSBA Member Services – Business Services

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Louisiana Bar Journal Vol. 66, No. 6 409 Personal Reflections on Certain Intersecting Ethical Obligations of Lawyers and Judges

By Judge John W. deGravelles

410 April / May 2019 Editor’s Note: The original ar- advice of U.S. District Court Judge John Canon 1: A Judge Should Uphold ticle was first presented by the author L. Kane when he wrote: “The robe is the Integrity and Independence of in conjunction with the 2018 Tulane black and unadorned to subordinate the the Judiciary. University Admiralty Law Institute’s personality of the person wearing it. It is seminar. A shortened version of the ar- not just a symbol of authority; it is a uni- Canon 2: A Judge Should Avoid ticle is published in this issue with perform of anonymity.”2 Impropriety in All Activities. mission from Tulane University and the This I have tried to do. Since becom- Admiralty Law Institute. ing a judge, however, I have learned Canon 3: A Judge Should Perform what Paul Harvey described as “the the Duties of the Office Fairly, he federal court in which I rest of the story.” During my four years Impartially and Diligently. practiced as a young lawyer on the bench, despite my determination was not a kind, gentle or for- to remain constant to my pledge, I con- Canon 4: A Judge May Engage in giving place. As I approached fess my eyes were opened to the kind of Extrajudicial Activities That Are theT federal courthouse, even on some be- conduct that may have caused the judges Consistent with the Obligations of nign and unimportant matter, my stom- before whom I practiced to be (putting Judicial Office. ach would churn and my palms would it quite mildly) . . . grumpy. I have seen sweat. The judges seemed unnecessar- lawyer conduct that, while not justifying Canon 5: A Judge Should Refrain ily hostile and antagonistic, even when it, at least explains what I perceived as from Political Activity. all “t’s” were crossed and “i’s” dotted. I unnecessary harshness. Let’s just say my felt my battle as a litigator was as much perspective has broadened. Mechanism for Filing against the court as it was against my op- Judges and lawyers are part of an in- Complaints ponent. tegrated system carefully designed to My experience in state court was usu- achieve justice, but they have very sepa- The perception among some members ally much different. Judges were gener- rate roles and goals. Sometimes those of the Bar and public is that there is little, ally friendly and accommodating. They roles and goals clash. When they do, if any, accountability for federal judges went about their business of deciding is- abiding by the ethical obligations apply- who engage in unethical or unprofession- sues and cases with no apparent hostility ing to each profession helps maintain the al conduct. Complaints in the 5th Circuit towards lawyers. Quite the opposite. So smooth working of the system. It is the are filed with the chief judge of the 5th it was no surprise that when efforts were purpose of this article to discuss a few Circuit Court of Appeals. made to change Louisiana’s judicial se- of these intersecting ethical, as well as If a complaint is not dismissed by the lection system from elected to appointed professional, obligations of lawyers and chief judge (say, for example, as frivo- judges, I instinctively reacted against it. judges — specifically, some selected in- lous), “the chief judge must promptly When asked to debate the issue in pub- stances where the ethical duties of the appoint a special committee to investi- lic fora, I always began by quoting Lord presiding judge interface with those of gate the complaint or any relevant por- Acton: “Power tends to corrupt. Absolute the lawyer practicing in his court. In do- tion of it and to make recommendations power corrupts absolutely.” Thus, I ar- ing this, I will try to alert you to some to the Judicial Council.”4 The Special gued, lifetime appointments with little ethics rules about which you may be un- Committee consists of “the chief judge or no mechanism for accountability bred aware, remind you of some rules about and equal numbers of circuit and district judges who were arrogant, rude and had which you are likely aware but empha- judges,”5 and “[a]ll actions by a special no empathy for the demands made on size their importance and, finally, provide committee must be by vote of a majority busy law practitioners. some tips and practical advice regarding of all members of the committee.”6 The It is not without a certain irony, there- ethics, professionalism and practice in Special Committee conducts an investi- fore, that after 39 years as a civil litiga- federal court. gation it deems appropriate “in light of tor, I was appointed for life to my present the allegations of the complaint and its position. After confirmation, recalling Judicial Code of Conduct preliminary inquiry,” and it may hold my many days in the trenches, I vowed hearings to receive evidence or hear ar- that I would never acquire that dreaded Members of the federal judicial gument. Both the subject judge and the disease, “robe-itis,” defined quite accu- branch, including judges, clerks of court, complainant have certain rights during rately as “an affliction suffered by some other court personnel and public defend- the process, including the right to no- robed judges [who] assume a god-like ers, are bound by the Judicial Code of tice and to present or provide evidence. attitude and power, forgetting that he or Conduct. Federal judges are specifically 1 The Special Committee then prepares a she is a servant to the law and the facts.” bound by the Code of Conduct for United “comprehensive report of its investiga- Rather, I would model myself on those States Judges. It begins with five straight- tion, including findings and a recommen- judges who defied my early experience forward canons:3 dation for council action.”7 and treated all before them with dignity, Within 21 days of the Special fairness and respect. I would follow the

Louisiana Bar Journal Vol. 66, No. 6 411 Committee’s report, the subject judge as one of its local rules Louisiana’s Rules evidentiary support or, if specifi- can file a written response to the Judicial of Professional Conduct: cally so identified, will likely have Council, which must provide to the sub- evidentiary support after a reason- ject judge an opportunity to present ar- This Court adopts the Rules able opportunity for further inves- gument. The Judicial Council may take of Professional Conduct of the tigation or discovery; and certain discretionary actions, such as dis- Louisiana State Bar Association, (4) the denials of factual con- missing the complaint, concluding that as . . . may be amended from time tentions are warranted on the evi- “appropriate corrective action has been to time by the Louisiana Supreme dence or, if specifically so identi- taken,” referring the matter to the Judicial Court.11 . . . [E]very attorney per- fied, are reasonably based on belief Conference with the Judicial Council’s mitted to practice in this court or a lack of information. recommendation or taking remedial ac- shall be familiar with these Rules. tion, such as censuring or reprimand- Willful failure to comply with any A district court opinion neatly and ing the judge.8 But, “[a] judicial council one of them . . . shall be cause for with uncommon common sense summa- must refer a complaint to the Judicial such disciplinary action as the rizes the essence of Rule 11. Conference if the council determines that court may see fit, after notice and a circuit judge or district judge may have hearing.12 Think before you speak. Look both engaged in conduct that: (A) might con- ways before you cross the street. stitute ground for impeachment; or (B) This means, in practical terms, that Haste makes waste. Measure in the interest of justice, is not amenable if a lawyer violates an ethical rule while twice, cut once. Countless max- to resolution by the judicial council.”9 If practicing in the Middle District, the ims underscore a simple truth: ac- the Judicial Conference determines that court is empowered, even obliged, to tion which precedes deliberation consideration of impeachment may be take action. Even without this formal is both dangerous and potentially warranted, it must transmit the record of adoption of Louisiana’s ethical rules, “a wasteful. The Federal Rules of all relevant proceedings to the Speaker of federal court has the power to control Civil Procedure codify this tru- the House of Representatives. admission to its bar and to discipline at- ism in Rule 11. At its most basic In those cases not referred to the torneys who appear before it.”13 premise, Rule 11 counsels attor- Judicial Conference, the Judicial But, remember, even if a federal court neys to think before they act. Rule Council’s decision may then be appealed chooses not to rely on Louisiana’s Rules 11 requires that attorneys conduct to the Committee on Judicial Conduct of Professional Conduct, federal courts a basic inquiry into the facts and and Disability, which reviews for “errors have other tools at their disposal to en- law underlying the case before of law, clear errors of fact, or abuse of sure ethical and professional conduct, in- demanding the resources of other discretion.” “Except in extraordinary cir- cluding Federal Rule of Civil Procedure parties and the Court in resolving cumstances, the Committee will not con- 11, which states, in pertinent part: a dispute.14 duct an additional investigation,” and, “[t]here is ordinarily no oral argument By presenting to the court a But the inimitable Yogi Berra may or appearance before the Committee,” pleading, written motion, or other have said it best: “Foresight is always though written submissions “may” paper — whether by signing, filing, better, afterward.” be allowed. After a decision from the submitting, or later advocating it — Committee, “[t]he Judicial Conference an attorney or unrepresented party Courtroom Etiquette may, in its sole discretion, review any certifies that to the best of the per- such Committee decision, but a com- son’s knowledge, information and The obligations of the judge and plainant or subject judge does not have a belief, formed after an inquiry rea- lawyer sometimes arrive on a colli- right to this review. … All orders of the sonable under the circumstances: sion course in the courtroom. A lawyer Judicial Conference or of the Committee (1) it is not being presented for must not “engage in conduct intended (when the Conference does not exercise any improper purpose, such as to to disrupt a tribunal.” While the judge its power of review) are final.”10 harass, cause unnecessary delay, “should be patient, dignified, respectful, or needlessly increase the cost of and courteous to litigants, jurors, wit- Intersection of Louisiana litigation; nesses, lawyers,” the canon also counsels Rules of Professional (2) the claims, defenses, and that he or she “should require similar other legal contentions are war- Conduct and Federal conduct of those subject to the judge’s ranted by existing law or by a non- control, including lawyers to the extent Practice frivolous argument for extending, consistent with their role in the adversary modifying, or reversing existing process.”15 The cited canon recognizes The United States District Court for law or for establishing new law; that the court must give attorneys some the Middle District of Louisiana adopted (3) the factual contentions have latitude “consistent with their role in the

412 April / May 2019 you ask, do lawyers file them? Is it ig- norance of the issue? Is it the quest for billable hours? Is it to please a demanding client? Is it to harass the lawyer’s opponent? This judge doesn’t know the answer but can say this with certainty: no good can come of it. The biggest area of abuse in filing unnecessary and non-meritorious motions, at least in my court, is in the realm of Daubert19 and motions in limine. In almost every case involving experts, all sides challenge their opponent’s experts under the Daubert rubric. Yet many, if not most, of these motions are not chal- lenging the methodology or foundation used by the expert but are simply chal- lenging the strength of the expert’s opinion, a job rightly given to the jury. As a judge in the Eastern District explained, “Notwithstanding Daubert, the adversary process,” i.e., the court must Ethics of Motion Practice Court remains cognizant that ‘the rejec- understand that lawyers are “not potted 16 tion of expert testimony is the exception plants.” Discerning the line where zeal- Over the course of my 39 years as a and not the rule.’”20 The court noted that: ous representation becomes disruptive litigator, the unmistakable and unfortu- behavior is not always easy. But it is the nate trend has been for judges to supplant [I]ts role as a gatekeeper does job of the judge to make that discernment juries as the ultimate decision makers not replace the traditional adver- and take the necessary steps to maintain in civil cases. Noted procedural scholar sary system and the place of the the necessary courtroom decorum. Arthur R. Miller decries this develop- jury within the system. . . . As the The Middle District’s Local Rules ment: “[P]rocedural changes . . . have Daubert Court noted, “[v]igorous require and prohibit conduct more spe- resulted in earlier and earlier disposi- cross-examination, presentation cific than any of the above-quoted rules, tion of litigation, often eviscerating a of contrary evidence, and careful listing 18 separate courtroom mandates. citizen’s opportunity for a meaningful instruction on the burden of proof Among those sometimes forgotten by adjudication on the merits of his or her are the traditional and appropriate 17 counsel in the heat of battle are “[a] grievance.” The “most unfortunate” means of attacking shaky but ad- ddress all remarks to the Court, not to result is that “[m]ost courtrooms in fed- missible evidence.” . . . The Fifth opposing counsel,” “avoid disparaging eral courthouses are empty much of the Circuit has added that, in determin- personal remarks or acrimony toward time as judges try fewer and fewer casing the admissibility of expert tes- 18 opposing counsel and remain wholly de- es.” The primary procedural change timony, a district court must defer tached from any ill feeling between the to which Professor Miller refers is the to “‘the jury’s role as the proper litigants or the witnesses” and “admon- ever-increasing disposition of cases by arbiter of disputes between con- ish all persons at counsel table, including motion. Whether we like it or not, mo- flicting opinions. As a general rule, the client, . . . the client’s representatives, tion practice consumes the vast majority questions relating to the bases and witnesses, friends and family of parties of the professional lives of both lawyers sources of an expert’s opinion af- that gestures, facial expressions, audible and judges. fect the weight to be assigned that comments, or the like, as manifestations Here I provide a few tips from a for- opinion rather than its admissibil- of approval or disapproval during the tes- mer litigator and current judge that I hope ity and should be left for the jury’s timony of witnesses, or at any other time, will help you avoid a show cause order consideration.”21 are absolutely prohibited.” or at least avoid the judge’s ire. First, When this kind of conduct occurs, it think before you file. A huge percentage A second major area of motion abuse is the responsibility of the judge, with of the hours in a typical day in the life is in the area of motions in limine. My or without objection from the opposing of a judge is spent poring over seemingly complaint is that some lawyers file these lawyer, to correct this conduct. How this endless pages of motions and memoran- reflexively and without thought. A real is done is obviously the product of the da. A significant number of these motions example follows. In a motion in limine circumstances and the judge’s discretion. have no serious chance of success. Why, that contained 32 specific requests for the

Louisiana Bar Journal Vol. 66, No. 6 413 Court’s consideration, and without refer- Another understandable but unwise 12. M.D. La. LR 83(b)(10) (2015). ring to a specific document or anticipated practice is to engage in ad hominem at- 13. Chambers v. NASCO, Inc., 501 U.S. 32, 43 (1991); see also, United States v. Nolen, 472 F.3d testimony, one party asked the court to tacks on your opponent in briefing or oral 362, 371 (5 Cir. 2006) (“Courts enjoy broad dis- DEFENSE EXPENSES CLAIMS EXPENSES DEFENSE & CLAIMS EXPENSES prevent his opponent from “impeach[ing] argument. As a practicing lawyer, many cretion to determine who may practice before them . . . the plaintiff on any matters which are times I felt my opponent was engaging in and to regulate conduct of those who do.”) collateral to this lawsuit and which are unfair, unprofessional and perhaps even 14. Deters v. Davis, Civil Action No. 3:11-02- DCR, (E.D. Ky. June 13, 2011), 2011 WL 2417055. not relevant to the claims of plaintiff or unethical behavior. On occasion, I could 15. Code of Conduct for United States Judges defenses alleged by the defendants with- not resist the temptation to let the judge Canon 3(A)(3) (2014). YOUR out first demonstrating to the satisfaction know about it in briefing. From my new 16. In 1987, white-collar-criminal defense law- CARRIER YOUR POLICY LIMITS of the Court a predicate for the relevancy perspective as a judge, my advice is to re- yer Brendan V. Sullivan, defending Oliver North 22 in televised congressional hearings over the Iran- POLICY LIMITS of such matters.” The Court’s ruling sist the temptation. The judge wants sim- Contra scandal, was admonished for consistently summarizes the obvious difficulty with ply to solve the legal problem presented objecting to questions put to his client. He famously such a request: “The motion is DENIED. in the motion, not referee a fight. If the responded, “Well, sir, I’m not a potted plant. I’m The Court cannot issue a blanket ruling abuse is serious enough, report it through here as the lawyer. That’s my job.” 17. Arthur R. Miller, “Simplified Pleading, excluding all such impeachment material appropriate channels. If the conduct is Meaningful Days in Court, and Trials on the without knowing what the material is or sanctionable, file a motion for sanctions. Merits: Reflections on the Deformation of Federal the context in which it will be offered. If it isn’t, don’t make it a part of your ar- Procedure,” 88 N.Y.U. L. Rev. 268, 306 (2013). The Court will rule on specific objec- gument as it could potentially be grounds 18. Id. at 306-07. 19. Daubert v. Merrell Dow Pharmaceuticals, tions to particular impeachment material for an ethical violation but, even when it Inc., 509 U.S. 579 (1993). at trial.”23 isn’t, it rarely helps your cause. 20. Johnson v. Samsung Elecs. Am., Inc., 277 Another obvious matter of importance F.R.D. 161, 165 (E.D. La. 2011). is the quality of briefing. Because we live 21. Id. (quoting Scordill v. Louisville Ladder Conclusion Group, L.L.C. (E.D.La. Oct. 24, 2003), 2003 WL in the motion age, lawyers should place 22427981 at *3). special importance on writing effective Judges and lawyers share the solemn 22. The case citation is omitted to prevent em- and persuasive briefs. When I became a obligation to abide by the obligations barrassment of the lawyer involved. federal judge, I expected the quality to be 23. Id. A similar request from the same mo- set out in their respective ethical codes. tion asked the court to exclude “[q]uestions calling high and, for the most part, my expecta- While litigating cases will never be easy for privileged information under the attorney and tions were realized. But some briefs were and without stress for lawyers or judges, client, physician and patient, psychotherapist and surprisingly awful. While not rising to following the rules allows lawyers to patient, or counselor and client, or marital commu- Endorsed policy non-endorsed policies the level of an ethical violation, many nications privileges.” focus on representing their clients and 24. A.N. Yiannopoulos, The Civil Codes of briefs were, to say the very least, unhelp- judges to do their jobs in a respectful and Louisiana, 1 Civ. L. Comment. 1, 7 (2008). ful. dignified way. Another not uncommon abuse is the John W. deGravelles cur- NOT ALL MALPRACTICE POLICIES ARE rently serves as judge on misciting of cases. The reason lawyers do FOOTNOTES this may be easier to understand, but not the United States District Court for the Middle forgive. Lawyers are busy. It may not be 1. See, Barry Popik, “Robe-itis,” The Big Apple District of Louisiana. He intentional deception but rather the path (Dec. 9, 2015), https://www.barrypopik.com/index. received his BA degree in CREATED EQUAL of least resistance. Why not, reasons the php/new_york_city/entry/robeitis; see also, John L. 1971 from Louisiana State lawyer, pull a canned brief from the com- Kane, “From the Bench: Judicial Diagnosis: Robe- University and graduated, itis,” 34 Litigation 3 (Spring 2008). with honors, in 1974 from puter or a brief from an earlier case that 2. Kane, supra note 1, at 4. LSU Law School (Order involved similar issues? No need, thinks 3. Code of Conduct for United States Judges of the Coif). He has been the lawyer, to reinvent the wheel. Canon 1-5 (2014). a member of the adjunct DOES YOUR MALPRACTICE POLICY This is a serious mistake since the 4. 5th Circuit Judicial Council Rules for Judicial- faculty at LSU Paul M. Hebert Law Center since QUOTE SEPARATE DEFENSE LIMITS? Conduct and Judicial-Disability Proceedings, § 1994, where he currently teaches Federal Courts. judge and/or his clerk is actually going to 11(c), (f), available at: http://www.ca5.uscourts. He has been a faculty member of Tulane Law read the cases cited. A judge is tempted gov/docs/default-source/forms-and-documents- School’s Summer Session in Rhodes, Greece, since Attorneys know expenses start before a claim settlement is reached. Even a potential claim costs time and to call on the Spanish law that once ruled --clerks-office/rules/localjudicialmisconductrules. 1993, teaching Maritime Torts. In 2001, he was money. You may reach your coverage limit prematurely if defense costs are included in your coverage limit. Your Louisiana where “a lawyer who inten- pdf?sfvrsn=8. awarded a Fulbright Teaching Scholarship to teach 5. Id. § 12(a). American Maritime Private International Law at LSBA-endorsed policy can provide defense and claims costs outside of the damage limits. Compare policies and tionally miscited the law could be sent 6. Id. § 12(g). the Aristotle University of Thessaloniki Law School make sure you know all the facts. Remember, less premium may mean less coverage. to exile, and his property could be con- 7. Id. § 17. in Thessaloniki, Greece. (john_deGravelles@lamd. fiscated.”24 And while I’ve cited that pas- 8. Id. § 20(b)(1). uscourts.gov; Ste. 355, 777 Florida St., Baton sage tongue-in-cheek, the unhappiness 9. Id. § 20(b)(2). Rouge, LA 70801) 10. Id. § 21(a), (g). that this practice provokes in the judge 11. M.D. La. LR 83(b)(6) (2015). The same can only damage your chances and your is true in the Eastern and Western Districts of reputation. Louisiana. See, W.D. La. 83.2.4 (2016); E.D. La. LR 83.2.3(2014).

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800.906.9654800.906.9654 Louisiana Bar JournalGilsbarPRO.comGilsbarPRO.com Vol. 66, No. 6 415 800.906.9654800.906.9654 GilsbarPRO.comGilsbarPRO.com 416 April / May 2019 A Greeting from Robert A. Kutcher, 2019-2020 LSBA President

Dear LSBA Members:

Welcome to the Louisiana State Bar Association's 78th Annual Meeting and the LJC/LSBA Joint Summer School: "Evolution of the Profession – What a Long Strange Trip it’s Been." This year marks the 50th anniversary of Woodstock, a seminal event for my generation. Much like the world we live in, our profession has changed a lot since I was admitted to practice. It has, indeed, been a long, strange trip and to celebrate that fact we’ve incorporated the spirit of Woodstock into the 2019 conference theme!

This year’s conference will be returning to the Sandestin Golf and Beach Resort in sunny Destin, Florida, allowing participants to enjoy six days of substantive programming, exciting social events and fascinating speakers in a relaxed setting.

For everyone who has been to Destin, you know the value of it. For those of you who have never been, I encourage you to consider joining us at this always interesting and informative convention. The Annual Meeting and Joint Summer School is our collective opportunity to meet, mingle, learn and share, to see old friends and hopefully make new ones.

I hope to see you in Destin for six days of learning, socializing and fun! Sincerely, Robert A. Kutcher, 2019-2020 LSBA President To find out more, visit www.lsba.org/AnnualMeeting

Louisiana Bar Journal Vol. 66, No. 6 417 Great Reasons To see you in Destin

Strengthen your professional skills REGISTRATION OPTIONS No matter your experience level, you will learn innovative new practice information at the LJC/LSBA Joint Summer School. Nationally recognized speakers make for an engaging, substantive Summer School. Multi-track CLE programming will focus on the latest updates in criminal law, civil law, family law and other practice areas, including AI and cybersecurity.

Work and play with colleagues Destin is a beautiful setting with more than seven miles of sugar-white sand beaches and bay-front property, surrounded by championship golf courses, a pedestrian village and fine and casual dining, nightclubs and bars. Earn CLE hours during the mornings then sit back and enjoy the view at night! Join in the Annual Fun Run/Walk for exercise, fun and networking. If you’re looking for a little friendly competition for an enjoyable change of pace, sign up for the popular golf tournament.

Stay current The legal profession is changing faster than ever and new developments seem to emerge every day. Attending the LJC/LSBA Joint Summer School will help you and your legal practice stay ahead of the curve. The large Exhibit Hall gives attendees the chance to engage and interact with knowledgeable exhibitors presenting exciting new opportunities for your practice, no matter the size.

Expand your professional connections The LSBA Annual Meeting and Joint Summer School is a great place to check in with others in the profession to discover best practices, new legal innovations and so much more! In this week-long, casual setting, renowned professionals of the bench and bar are not just speaking on stage but also available for informal chats throughout the conference. Through alumni association parties, bar committee meetings and lively social events, including the Beach Bash and Back to the Bay, the conference presents many opportunities to meet new people with shared professional interests.

Let your voice be heard Meet the individuals in leadership positions on LSBA committees and sections and find out what is happening with your bar association. Watch the installations of the new bar officers of the Board of Governors and YLD Council. Network with the LSBA Award honorees before the General Assembly and weigh in on the debates at the House of Delegates Meeting.

418 April / May 2019 In response to REGISTRATION OPTIONS popular demand, a Registration Options April 30 May 24 On-Site 4-day registration category is again Lawyers...... $825...... $875...... $925 offered this year! Registration Options April 27 May 25 ThisOn-Site economical option Lawyers 4-Day...... $750...... $795...... $850 allows you to attend Lawyers...... $825...... $875...... only$925 four days of the Judges...... Lawyers 4-Day...... $695...... $750$750...... $795$795...... conference$850 (your choice of days!) for a steep Judges 4-Day ...... $650...... $675...... $695 discount to the Judges...... $695...... $750...... $795 Legal Services/Gov’t/ on-site fee. Academia/YLD Judges member** 4-Day...... $695...... $750$650...... $675$795...... $695 Legal Services/Gov’t/ Legal Services/Gov’t/ Academia/YLD member**Academia/YLD 4-Day member** ...... $650...... $675$695...... $750$695...... $795

Legal Services/Gov’t/Registration is for LSBA member and spouse/guest when indicated on Registration Form. Academia/YLD member** 4-Day ...... $650...... $675...... $695 ► includes seminar registration, programs, business meetings and admission to Lawyers’ Expo; ► electronic version of the seminar materials for attendees to download; ► daily continental breakfast/coffee/refreshment breaks; ► up to two adult tickets to the receptions, dinners, installations and other events planned as part of the Annual Meeting & Joint Summer School. Check back on the website at www.lsba.org/AnnualMeeting for an up-to-date agenda. * Spouse/guest name must be indicated on the Registration Form to receive tickets included in registration. Additional tickets for children and guests are available for purchase for the social functions. *To purchase additional tickets for events, please contact: Bridget Berins, CLE Secretary, Louisiana State Bar Association, [email protected] or call (504)619-0137 or call tollfree (800)421-LSBA, ext. 137.

CANCELLATIONS, REFUNDS & COURSE MATERIALS Cancellation of registration must be received in writing by the LSBA no later than Friday, May 17, 2019. Cancellations will receive a full refund, less a $30 administrative charge. Absolutely no refunds will be made after Friday, May 17, 2019. Requests should be mailed to the Louisiana State Bar Association, 601 St. Charles Ave., New Orleans, LA 70130-3404; faxed to (504) 598-6753; or e-mailed to aburas@lsba. org. Any questions, please contact Annette Buras, CLE Coordinator, (504)619-0102. ATTENTION! To access and view the written CLE materials for each CLE presentation for Summer School, check back here shortly before the event to save the materials to your electronic device. Please note that Internet access WILL NOT be available in the Conference Center. It is suggested that you download/print OR download/save prior to arriving in Sandestin.

Louisiana Bar Journal Vol. 66, No. 6 419 2019 Registration Form

□ Judge Bar Roll Number ______First Name for Badge ______□ Ms. □ Mr. Name ______Firm Name______Address ______City/State/Zip ______Office Phone ______Fax______□ I am a local bar association president. □ I am a local bar association officer. □ I am a first-time attendee. □ Please register my spouse/guest for social events at no additional charge. (Spouse/guest must be registered to receive tickets.) Spouse/Guest Name______First Name for Badge______

In response to popular demand, a 4-day registration category is again offered this year! This economical option allows you to attend only four days of the conference (your choice of days!) for a steep discount to the on-site fee.

Registration Options April 30 May 24 On-Site Subtotal Lawyers...... $825...... $875...... $925 ______Lawyers 4-Day...... $750...... $795...... $850 ______

Judges...... $695...... $750...... $795 ______Judges 4-Day ...... $650...... $675...... $695 ______

Legal Services/Gov’t/ Academia/YLD member**...... $695...... $750...... $795 ______Legal Services/Gov’t/ Academia/YLD member** 4-Day ...... $650...... $675...... $695 ______

**Special Pricing applies to judges, lawyers employed full-time by local, state, or federal government, and lawyers employed full-time by legal aid agencies or indigent defense agencies or those lawyers who are members of the LSBA Young Lawyers Division. Members of the YLD are considered: Every member of the Louisiana State Bar Association who has not reached the age of thirty-nine (39) years or who has been admitted to the practice of law for less than five (5) years, whichever is later, is by virtue thereof a member of the Young Lawyers Division. (Article I, Section 1, Bylaws of the Louisiana State Bar Association, Young Lawyers Division). *Important Note: A link to the seminar materials will be emailed to you prior to the event; we suggest you print the materials in advance and bring them with you. The link will be sent to the email address of record you provided to the LSBA. If you choose to review the materials from your laptop, we strongly suggest you charge your laptop battery, as electrical outlets may be limited. Internet access will not be available in the meeting room. PLEASE NOTE: Printed materials will not be available. Any questions? Contact To purchase additional tickets for events, contact Annette Buras, CLE Coordinator Bridget Berins, CLE Secretary Louisiana State Bar Association Louisiana State Bar Association [email protected] or call (504)619-0102 [email protected] or or call tollfree (800)421-LSBA, ext. 102 call (504)619-0137 tollfree (800)421-LSBA, ext. 137 □ Pay by Check: Make checks payable to the Louisiana State Bar Association. Amount Enclosed $______□ Pay by Credit Card: The LSBA accepts MC, Visa & Discover. Please visit www.lsba.org/AnnualMeeting to pay by credit card. □ Check here or contact the LSBA if you have a disability which may require special accommodations at this conference. The LSBA is committed to ensuring full accessibility for all registrants. Please return this form with your remittance to: Seminar Registration – Louisiana State Bar Association 601 St. Charles Ave. • New Orleans, LA 70130-3404 (504)619-0137 • (800)421-5722 • fax (504)598-6753

420 April / May 2019 Association ACTIONS MIDYEAR MEETING... ATJ... SPECIALIZATION

LSBA 50-, 60-, 70-Year Members Recognized at 2019 Midyear Meeting

ouisiana State Bar Association Midyear Meeting in January in Baton and Louisiana Supreme Court Chief (LSBA) members who have Rouge. During the reception, the honor- Justice Bernette Joshua Johnson. reached half a century and be- ees received medals presented by LSBA The following Bar members were yond in their professional ca- President Barry H. Grodsky. The honor- recognized. Lreers were honored during the LSBA’s ees also posed for photos with Grodsky

Among the 50-year honorees attending the ceremony were, seated from left, Kenneth L. Riche, Sr.; Joseph W. Greenwald; Carol Anne Blitzer; Douglas L. Hebert, Jr.; Peter F. Brandt; Leon J. Reymond, Jr.; Ernest L. Jones; John J. Burke; Jack L. Simms, Jr.; Morton H. Katz; Thomas M. Young; Hon. Jerome J. Barbera III; and David M. Cambre. Standing from left, Richard J. Putnam, Jr.; John G. Poteet, Jr.; Sidney M. Blitzer, Jr.; Michael J. Uter; Guy A. Modica, Sr.; John F. Robichaux; Donald R. Abaunza; John H. Musser IV; Jim Ortego; Michael A. Britt; Hon. Don C. Burns; Hon. Eugene W. Bryson, Jr.; Henley A. Hunter; John C. Blackman IV; Octave (Henry) Deshotels III; David R. Lestage; and Richard R. Storms. Photo by Matthew Hinton Photography. 50-Year Honorees Frank E. Beeson III...... New Orleans John J. Burke...... New Orleans Admitted in 1969 Patrick J. Berrigan...... Slidell Sean G. Burke...... Mandeville John C. Blackman IV...... Baton Rouge Hon. Don C. Burns...... Grayson Donald R. Abaunza...... New Orleans Carmack M. Blackmon...... Baton Rouge Hon. Robert J. Burns, Sr...... Baton Rouge Elaine Durbin Abell...... Lafayette John Michael Blanchard...... New Orleans Hon. Curtis A. Calloway...... Baton Rouge W. Arthur Abercrombie, Jr...... Baton Rouge Carol Anne Blitzer...... Baton Rouge David M. Cambre...... River Ridge Jesse R. Adams, Jr...... New Orleans Sidney M. Blitzer, Jr...... Baton Rouge J. Norris Cantrelle...... Raceland Roy Francis Amedee, Jr...... New Orleans Fred A. Book, Jr...... Lake Charles Charles R. Capdeville...... Mandeville Alex L. Andrus III...... Opelousas Lloyd T. Bourgeois...... Thibodaux Paul J. Carmouche...... Shreveport Bertrand F. Artigues...... New Orleans James G. Boyle...... Austin, TX John W. Carpenter...... Orlando, FL Leroy J. Aucoin...... Belle Chasse Joseph Alison Brame...... Conroe, TX John O. Charrier, Jr...... St. Francisville Walter M. Babst...... Mandeville Peter F. Brandt...... New Orleans Hon. Alma L. Chasez...... Robert Robert E. Badger...... Bentonville, VA Richard E. Britson, Jr...... Metairie Richard E. Chaudoir...... Baton Rouge William F. Banta...... New Orleans Michael A. Britt...... Metairie Carl J. Ciaccio...... Metairie Hon. Jerome J. Barbera III...... Thibodaux Galen S. Brown...... New Orleans Michael K. Clann...... Houston, TX Robert E. Barkley, Jr...... New Orleans Richard W. Brown...... Bogalusa Robert T. Cline...... Rayne Homer E. Barousse, Jr...... Crowley Henry B. Bruser III...... Alexandria Edward B. Cloutman III...... Dallas, TX James L. Bates, Jr...... Slidell Hon. Eugene W. Bryson, Jr...... Shreveport Continued next page

Louisiana Bar Journal Vol. 66, No. 6 421 Among the 60-year honorees attending the ceremony were, from left, Hon. James E. Glancey, Jr.; Hon. Joseph F. Grefer; J. Peyton Parker, Jr.; Isaac E. Henderson; Hon. Steven R. Plotkin; N. Buckner Barkley, Jr.; Hon. Jerry A. Brown; Hon. William N. Knight; Kermit M. Simmons; Boris F. Navratil and Anthony J. Capritto. Photo by Matthew Hinton Photography. Honorees continued from page 421 J. Reginald Coco, Jr...... Baton Rouge M. Shael Herman...... New Orleans Conrad Meyer IV...... Metairie James J. Coleman, Jr...... New Orleans Allen C. Hope, Jr...... Washington, DC Joseph Meyer, Jr...... New Orleans L.V. Cooley IV...... Slidell Hon. Henley A. Hunter...... Alexandria Jack H. Miller...... Horseshoe Bay, TX Charles C. Culotta, Jr...... Patterson Hon. L.J. Hymel, Jr...... St. Amant James M. Miller...... Oak Grove Robert J. David...... New Orleans Hon. Glen Allen James...... Sulphur Martin O. Miller II...... Metairie Louis R. Davis...... Lafayette Hon. Bernette Joshua Johnson... New Orleans Guy A. Modica, Sr...... Baton Rouge Howell A. Dennis, Jr...... Lafayette J. Clayton Johnson...... Baton Rouge Oliver S. Montagnet, Jr...... Pass Christian, MS Octave Henry Deshotels III...... Kaplan Ronald A. Johnson...... New Orleans Steve J. Mortillaro...... Metairie Ronald T. Duggan...... Fort Lauderdale, FL Hon. Ernest L. Jones...... New Orleans Dean M. Mosely...... Jena Lawrence J. Duplass...... Metairie M.L. Juran...... Metairie Raymond J. Munna...... Metairie R. Lee Eddy III...... Metairie Morton H. Katz...... New Orleans John H. Musser IV...... Covington Jack B. Edrington...... Houston, TX Frank J. Kenner...... Kenner Walter K. Naquin, Jr...... Thibodaux Richard L. Edrington...... New Orleans Kenneth W. Kennon...... St. Francisville Peter A. Nass...... Gretna Calvin C. Fayard, Jr...... Springfield John R. Keogh...... Sulphur Michael E. Nolan...... New Orleans Anthony A. Fernandez, Jr...... St. Bernard Robert E. Kerrigan, Jr...... New Orleans William E. O’Neil...... New Orleans Paul S. Fiasconaro...... Harahan Hon. Jeannette Theriot Knoll...... Marksville William D. O’Regan III...... Laplace L. Albert Forrest...... New Iberia John E. Koerner III...... New Orleans W. James (Jim) Ortego...... Phoenix, AZ Robert J. Fritz...... Houston, TX S. Allen Lackey...... Houston, TX Raymond A. Osborn, Jr...... Harvey Theodore M. Frois...... Houston, TX T. Robert Lacour...... Kenner Woodrow Lee Overton...... Clinton James M. Funderburk...... Houma Hon. Ross P. LaDart...... West Monroe James Michael Percy...... Alexandria Servando C. Garcia III...... Covington Frank E. Lamothe III...... New Orleans Calvin L. Perilloux...... Laplace Philip A. Gattuso...... Gretna David R. Lestage...... Deridder Joseph A. Perrault, Jr...... Baton Rouge Judith Arnette George...... Gulf Breeze, FL W. Stanley Lockard...... Shreveport Continued next page Richard E. Gerard, Jr...... Lake Charles Albert E. Loomis III...... Monroe Robert S. Glass...... New Orleans Thomas A. Lussen, Jr.....Hot Springs Village, AR William P. Golden, Jr...... Laplace George F. Madison...... Monroe David B. Graham...... Williamsburg, VA John M. Madison, Jr...... Shreveport Richard L. Greenland...... Covington Charles N. Malone...... Baton Rouge Joseph W. Greenwald...... Shreveport F. Barry Marionneaux...... Plaquemine L. Edwin Greer...... Shreveport Paul Marks, Jr...... Baton Rouge Michael E. Guarisco...... New Orleans Steven J. Mason...... Nashville, TN Wayne C. Guidry...... Baton Rouge James D. Maxwell...... Kenner Larry J. Gunn...... Houston, TX Charles B. Mayer...... New Orleans Ronald W. Guth...... Goshen, IN Kenneth P. Mayers...... Lafayette Theodore M. Haik, Jr...... New Iberia Michael L. McAlpine...... New Orleans W. Marvin Hall...... Metairie John E. McFall...... Dallas, TX Charles E. Hamilton III...... Keswick, VA Patrick C. McGinity...... Metairie Louisiana Supreme Court Chief Justice William J. Hamlin...... Abita Springs Blaine G. McMahon...... Fayetteville, AR Bernette Joshua Johnson, Hon. Steven R. Dorothy Amman Hardy...... Crowley David J. McMahon...... Metairie Plotkin and Louisiana State Bar Association Jack R. Harger...... Santa Fe, NM Michael Arthur McNulty, Jr...... Metairie President Barry H. Grodsky posed for a photo Jonathan Curry Harris...... Baton Rouge Steven O. Medo, Jr...... New Orleans at the LSBA’s 50-, 60- and 70-year Honoree Douglas L. Hebert, Jr...... Kinder Dan E. Melichar...... Alexandria Reception. Chief Justice Johnson was recog- Carl E. Heck, Jr...... Thibodaux Anthony R. Messina...... Covington nized as a 50-year member as well. Photo by Robert Henderson...... Edmond, OK Eugene V. Meunier, Jr...... New Orleans Matthew Hinton Photography.

422 April / May 2019 Honorees continued from page 422

Earl G. Perry, Jr...... New Orleans Harvey P. Perry...... Monroe Norman A. Pettingill...... New Orleans Cpt. A. Richard Philpott...... Honolulu, HI William R. Pitts...... Metairie John G. Poteet, Jr...... Lafayette Richard J. Putnam, Jr...... Abbeville Hon. Thomas P. Quirk...... Lake Charles Paul E. Ramoni, Jr...... New Orleans Gerard A. Rault, Jr...... New Orleans Leon J. Reymond, Jr...... New Orleans John W. Cox, left, and G. Harrison Scott, both 70-year members of the Louisiana State Bar Kenneth L. Riche, Sr...... Baton Rouge Association, were recognized at the Midyear Meeting. Photo by Matthew Hinton Photography. Philip Riegel, Jr...... Metairie George F. Riess...... New Orleans William W. Messersmith III...... New Orleans Peter C. Rizzo...... New Orleans 60-Year Honorees Eugene J. Murret...... Denver, CO William M. Roach...... Sherman Oaks, CA Admitted in 1959 Boris F. Navratil...... Baton Rouge Bradford R. Roberts II...... Metairie William M. Nolen...... Lake Charles John F. Robichaux...... Lake Charles Hon. J. Donald Aaron, Jr...... Lafayette J. Peyton Parker, Jr...... Baton Rouge Robert E. Rougelot...... Mandeville Johnny X. Allemand...... Thibodaux M. Arnaud Pilie...... Covington L. Lane Roy...... Lafayette N. Buckner Barkley, Jr...... Marrero Ronald Francis Plaisance...... New Orleans John E. Ruiz, Jr...... New Orleans Hon. C. Thomas Bienvenu, Jr...... St. Martinville Hon. Steven R. Plotkin...... New Orleans Rhett R. Ryland...... Baton Rouge Hon. Jerry Allen Brown...... New Orleans Llewellyn A. Proctor, Sr...... Baton Rouge Fred E. Salley...... Covington James G. Burke, Jr...... New Orleans Charles W. Rea...... Baton Rouge Donald M. Sarrat, Jr...... Metairie Peter J. Butler...... Metairie Harry S. Redmon, Jr...... New Orleans Benjamin B. Saunders...... Mandeville Hope H. Camp, Jr...... San Antonio, TX Leon H. Rittenberg, Jr...... New Orleans Hon. John D. Saunders...... Ville Platte Anthony J. Capritto...... New Orleans Christopher J. Roy, Sr...... Alexandria William J. Scheffler III...... Gretna Oliver Provosty Carriere, Jr...... Metairie Paul P. Rutledge...... Metairie Charles W. Schmidt III...... Metairie Peter J. Casano III...... Diamondhead, MS Charles W. Salley...... Shreveport Earl J. Schmitt, Jr...... New Orleans Joel T. Chaisson, Sr...... Destrehan Gasper J. Schiro...... New Orleans Karen M. Serwich...... Chicago, IL Joan Elaine Chauvin...... New Orleans John B. Scofield...... Lake Charles Hon. Jack L. Simms, Jr...... Leesville Francis M. Coates, Jr...... Baton Rouge Thomas A. Self...... Leesville Alvin D. Singletary...... Slidell Lillian M. Cohen...... Slidell Kermit M. Simmons...... Winnfield J. Michael Small...... Alexandria James Joseph Cox...... Lake Charles John F. Simon...... Alexandria Dudley P. Spiller, Jr...... Denver, CO John M. Currier...... New Orleans Hon. Penrose C. St. Amant...... Gonzales Sue A. Spilsbury...... New Orleans Robert G. Dawkins...... Ruston Emile L. Turner, Jr...... Metairie P. Brian Spurlock...... Metairie Harris Myron Dulitz...... Metairie Dean R. Veatch...... Shreveport John E. Stephens, Jr...... Ft. Lauderdale, FL James Farrier...... Baton Rouge Sue C. Watson...... Lake Charles Hon. Richard R. Storms...... Ruston Hon. Peter Anthony Feringa, Jr...... New Orleans David L. Zuber...... Metairie Preston M. Summers...... Abbeville Marcel Garsaud, Jr...... New Orleans William E. Thoms II...... Grand Forks, ND James D. Garvey, Sr...... New Orleans Craig H. Tolbert...... New Orleans Hon. James E. Glancey, Jr...... Pass Christian, MS 70-Year Honorees Ronald W. Tweedel...... Covington Hon. Joseph F. Grefer...... Gretna Admitted in 1949 Michael J. Uter...... Baton Rouge Albert H. Hanemann, Jr...... Cornelius, NC W.W. van Benthuysen, Jr...... New Orleans Claude R. Hazel...... Houston, TX Virginia M. Carmouche...... Lake Charles Rene W. Van Zanten...... Austin, TX Isaac E. Henderson...... Houston, TX Ben E. Coleman...... Shreveport Paul H. Waldman...... New Orleans Lloyd E. Hennigan, Jr...... Jena John W. Cox...... Pass Christian, MS Phillip K. Wallace...... Mandeville William A. Hunter...... Dalhart, TX Edmond L. Deramee, Jr...... Thibodaux Charles S. Weems III...... Alexandria William J. Jones, Jr...... Covington Ben Foster...... New Orleans Truett Lynn West...... El Dorado, AR Richard B. Jurisich...... River Ridge Alvin B. Gibson...... Covington William G. Whatley...... Marksville Donald Kent...... Lafayette Twain K. Giddens, Jr...... Shreveport Claudius E. Whitmeyer...... Little Rock, AR Hon. William N. Knight...... Jennings Eugene E. Huppenbauer, Jr...... Metairie Norris S.L. Williams...... New Orleans August J. LaNasa...... New Orleans John P. Laborde...... New Orleans Robert J.A. Williams...... New Orleans John Ladd Lanier...... Thibodaux René Lehmann...... New Orleans Rose Polito Wooden...... Baton Rouge Lee R. Leonard...... New Orleans Charles G. Merritt...... New Orleans Robert L. Yeager III...... Allen, TX Henry O. Lestage III...... Deridder G. Harrison Scott...... New Orleans R. Brent Young...... Shreveport C. Jerre Lloyd...... Oxnard, CA James H. Stroud...... Shreveport Thomas M. Young...... Metairie Louis E. Mailhes...... Conroe, TX Hon. Thomas C. Wicker, Jr...... Metairie Robert R. McBride...... Lafayette G. Edward Merritt...... New Orleans

Louisiana Bar Journal Vol. 66, No. 6 423 Judge Pittman Receives Judge Benjamin Jones Judges in the Classroom Award rleans Parish Criminal District Court Judge Robin D. Pittman is the recipient of the Louisiana Center for LawO and Civic Education’s (LCLCE) Judge Benjamin Jones Judges in the Classroom Award. The award was presented by LCLCE President Judge Randall L. Bethancourt during the Louisiana State Bar Association’s (LSBA) Midyear Meeting in January. Judge Pittman has served as judge for Orleans Parish Criminal District Court, Section F, since 2009. She received a BA degree, cum laude, in so- ciology in 1991 from Loyola University New Orleans and earned her JD degree in 1996 from Loyola University College of Law. Prior to taking the bench, she worked as an assistant district attorney, Orleans Parish District Attorney’s Office; as a deputy disciplinary counsel, Office of Louisiana Center for Law and Civic Education’s President Judge Randall L. Bethancourt presented Disciplinary Counsel; and as an associ- Orleans Parish Criminal District Court Judge Robin D. Pittman with the Judge Benjamin Jones ate, Baldwin Haspel Burke & Mayer, Judges in the Classroom Award. Photo by Matthew Hinton Photography. L.L.C. She was appointed by the Louisiana and the Hon. Michaelle Pitard Wynne District Court. Court Watch NOLA Supreme Court to the Louisiana Judicial Professionalism Award. She was com- commended her for consistently taking College’s Board of Governors and is mended by the Metropolitan Crime the bench in a prompt manner and run- serving as president-elect of the Loyola Commission for having the best overall ning a transparent court. University College of Law’s board of judicial efficiency ranking for Criminal directors. She is a member of the American Bar Association, the National Bar Association, the Louisiana Judicial Council, the Louisiana State Bar Association’s Criminal Law Section, the Louisiana District Judges Association, the National Association of Women Judges, the New Orleans Bar Association, the Fourth Circuit Judges Association, the Louis A. Martinet Legal Society, Inc. and the Association of Women Attorneys. She is the recipient of the A.P. Tureaud Achievement Award, the YMCA Role Model Award, the New Orleans City Business Power Generation Award, the Amanda G. Hall, a teacher at Franklinton High School in Franklinton, is the recipient of the President’s Community Action Hero Award for Award for Outstanding Law-Related Education Teacher, presented jointly by the Louisiana Center Total Community Action, Inc., the City for Law and Civic Education and the Louisiana State Bar Association. Presenting the award was Business Leadership in Law Award Robert A. Kutcher, 2018-19 LSBA president-elect. Photo by Matthew Hinton Photography.

424 April / May 2019 Louisiana Bar Journal Vol. 66, No. 6 425 Access to Justice Topics Highlighted During LSU Apprenticeship Week

Louisiana State University Paul M. Hebert Law Center once again offered the Apprenticeship Week Program begin- ning on Jan. 7. Apprenticeship Week offers LSU Law Center upper-class students the opportunity to participate in hands-on mini-courses that provide them with focused, practical training intended to mir- ror the actual experience of practicing law. These courses are taught by master lawyers and judges. This year, Marta-Ann Schnabel, managing director in the New Orleans law firm O’Bryon & Schnabel, P.L.C., and a former Louisiana State Bar Association (LSBA) president, taught “Serving the Public and the Profession,” a course which asked the question, “What is Justice?” The course focused on the civil legal needs of Louisiana’s most vulnerable populations (Above) New Orleans attorney Judy Perry and explored the challenge of representing Martinez, the American Bar Association presi- those clients, serving justice and respect- dent-elect, discussed access to justice issues during ing the rule of law in today’s legal system. the January Louisiana State University Paul M. Hebert Law Center’s Apprenticeship Week. Photo Schnabel, together with LSBA Access by LSU Law Center/Real Life Photography. to Justice Director Monte T. Mollere, introduced the 2Ls to the intersection between poverty and justice. Discussions included Judge (Ret.) W. Ross Foote opened the Serving the Public and the Profession Apprenticeship how lack of economic resources can im- Week class with a question for the students: pact one’s access to legal representation “What is Justice?” and the ways in which the LSBA is working with civil legal aid groups to increase access to free and affordable legal services. Woodruff-White’s courtroom in the East picture than just legal obligations, busi- Several guest speakers participated Baton Rouge Family Court. She explained ness entities, etc.” “I originally went to in the program, including Judge (Ret.) procedures and laws impacting those who law school because I wanted to do this W. Ross Foote, Patterson Resolution cannot afford counsel. Attorneys Samuel J. type of work, helping real people to solve Group; Christopher D. Kiesel, Office Ford, JaQuay M. Gray, R. Shane Bryant, their problems. In the meantime, I feel like of Disciplinary Counsel; Amanda L. Janell M. McFarland-Forges and Sherry A. I’ve been pulled in other directions, have Hass, Law Office of William B. Most; Watters offered role-play in client simula- focused a lot on academics and theory, and Adrienne K. Wheeler, executive direction activities involving various practice have clerked for large firms with mostly tor of Louisiana Appleseed; and Talya J. areas. Each student learned the process of business clients. This week gave me a lot Bergeron, directing attorney at Southeast representing a “client” from the initial con- to think about in terms of what I want to do Louisiana Legal Services. sultation to a hearing before the “court,” and where I want to spend my time.” New Orleans attorney Judy Perry courtesy of O’Bryon & Schnabel partner “I confess to some trepidation when Martinez, the American Bar Association Kathleen E. Simon, who reviewed all the I walked into the classroom. Law stu- president-elect, also spoke to the class. The pleadings and presided as the “judge” over dents are a tougher audience than juries class was dazzled by the depth of her knowl- motion arguments. and judges! But I soon re-discovered that edge about access to justice issues as evi- Many students said the program was those drawn to an education in the law denced in her presentation and discussion. beneficial and inspiring. “Listening to hold a fundamental respect for justice. It On the practical side, students spent you and other guest lecturers speak . . . was a privilege to have participated in the a morning observing Judge Lisa M. provided a much bigger, more important, course,” Schnabel said.

426 April / May 2019 PRACTICEManagement By Elizabeth LeBlanc Voss WORK CAN BE OUTSOURCED, RISK CANNOT

or busy law firms, legal outsourc- requires the lawyer to reasonably believe LPO to confirm it is checking for conflicts. ing can be a welcome reprieve that the other lawyers’ services will con- To satisfy the ethical obligation to provide for over-burdened attorneys and tribute to the competent and ethical rep- competent representation while outsourc- staff. Legal process outsourcing resentation of the client. (See Comment 6, ing, it is recommended that attorneys Fis delegating work outside of the firm and ABA Model Rule 1.1.) conduct reference checks when choosing ranges from purely administrative (copy- The reasonableness of the decision to an LPO; interview the principal lawyers ing services, payroll services, IT support retain or contract with outside lawyers and assess their suitability for the work; and corporate records management) to depends upon the circumstances of each investigate the security of the provider’s legal work including document review, representation. It necessarily must include premises and computer network/system; research and writing, and e-discovery critical evaluation of the education, experi- assess the country to which services are compliance. Law firms of any size and ence and reputation of the outside lawyers. being outsourced for legal training, ju- corporate legal departments can benefit by It also demands a thorough review of the dicial system, legal landscape, disciplin- strategically cutting specific time-intensive legal protections, professional conduct ary system and core ethical principles; tasks while retaining clients. rules and ethical environments of the juris- disclose the outsourced relationship and Referring clients to an outside firm is dictions in which the services will be per- obtain informed consent; verify that the an age-old practice among attorneys. But formed, particularly relating to confiden- LPO is checking for conflicts; take steps to retaining the client and the representation tial information. Before outsourcing work protect confidentiality and verify that the while outsourcing portions of the legal to lawyers outside the United States, care- LPO is protecting client matters; supervise work to be performed through legal pro- fully consider whether the legal education the work and thoroughly evaluate the fi- cess outsourcing (LPO) companies is a and training of those lawyers is compara- nal work product; communicate regularly newer, growing trend. Outsourcing can ble to domestic legal education and train- with the LPO and with the client; charge be a way for firms to lighten the working, and whether there are adequate ethical a reasonable fee; and document due dili- load, handle complex or time-consuming safeguards governing lawyers in the juris- gence efforts in writing. projects on a budget and accept cases that diction where the work will be performed. Almost nothing brings more relief that would otherwise be too large to handle, or While competency is the baseline knowing an onerous task can be delegated. to make rates more competitive by sub- concern when outsourcing, keep in mind As with most good things, there are trad- contracting reduced-rate legal services. the obligation to supervise work under eoffs. Carefully examine the benefits of Outsourcing essentially provides the ben- Louisiana Rule of Professional Conduct outsourcing while keeping in mind the efits of a larger team without hiring full- 5.1. Do not rely on the LPO provider to obligations that remain regardless of who time employees. evaluate its own level of skill or work actually does the work. As the client’s at- A significant amount of legal work is product. The lawyer must be able to criti- torney, the attorney and the firm remain now being performed by someone other cally and independently evaluate the work duty-bound to fulfill all obligations under than the attorney hired to do it. Guidance product received because the firm is ul- the Rules of Professional Conduct. from the American Bar Association (ABA) timately responsible for the quality of its reminds attorneys that, even when work work. Elizabeth LeBlanc Voss has been delegated outside of the firm, When outsourcing, note the ongo- serves as loss prevention supervisor and loss ethical obligations to the client remain. ing duty to maintain client confidential- prevention counsel for The duty to provide competent rep- ity under Rule 1.6. In ABA Formal Ethics the Louisiana State Bar resentation is a primary obligation for all Opinion 08-451, the ABA writes: “Where Association (LSBA) un- attorneys in every representation. The del- the relationship between the firm and the der the employment of Gilsbar, Inc. She received egation of work to an outside individual individuals performing the service is at- her BA degree in political or firm does not sever obligations under tenuated, as in a typical outsourcing rela- science from Louisiana Louisiana Rule of Professional Conduct tionship, no information protected by Rule State University and her 1.1. Commentary on the ABA model rule 1.6 may be revealed without the client’s JD degree from South Texas College of Law-Houston. She is a member of directs lawyers to obtain informed consent informed consent.” the LSBA and the State Bar of Texas. She writes and from the client before retaining or con- Finally, the duty to avoid conflicts of presents ethics and professionalism CLE programs tracting with outside lawyers and further interest demands the proper vetting of the on behalf of the LSBA. Email: [email protected].

Louisiana Bar Journal Vol. 66, No. 6 427 LAWYERSAssistance By J.E. (Buddy) Stockwell EMOTIONAL INTELLIGENCE

re there people you will inten- and behavior to adjust those emotions and Emotional Intelligence (ABA Publishing, tionally try to avoid in public successfully adapt to environments. ABA Section of Dispute Resolution, because prior experience dic- With the awakening of the legal profes- 2017).1 tates that once a conversation sion to the benefits of wellness and mind- According to Muir, “probably no other startsA with them it will be impossible to get fulness initiatives, there has been a fresh profession relies so heavily on cognitive a word in edgewise and painfully difficult look at emotional intelligence as it specifi- intelligence as law. Law schools rely on to escape a long, drawn-out experience? cally relates to the legal profession. LSATs to find the most logical applicants These people may be very smart and well- In an October 2017 Persuasive Litigator and then rigorously use the Socratic method intended but they seem oblivious to the article, Dr. Ken Broda-Bahm explains that in classrooms to ferret out any nonrational non-verbal cues of others. emotional intelligence helps lawyers: 1) see tendencies that remain. Law firms and law Good manners prevent most of us from beyond logic and the law; 2) work better as departments hire the top law school gradu- interrupting someone. Instead, we rely on a team; 3) use effective non-verbal -com ates and then enforce cultures of strict ratio- sending non-verbal cues such as looking munication; 4) navigate between assertive- nality. Emotion is what we in the law busi- at our watch and stepping back. But these ness and aggressiveness: 5) create empathy ness have been intent on eliminating.” people tend to ignore the routine, non-ver- with a judge or jury; 6) develop credibility; But Muir recognizes that lawyers are bal cues most of us use in such situations. and 7) identify and empathize with clients’ human beings and eliminating emotions You ask, “Why are they like that?” needs and interests. may not always be the best approach. Even if they have a very high IQ, they Dr. Broda-Bahm offers three ways to “While some lawyers flourish in their work, could be suffering from a very low EQ boost emotional intelligence: troubling data has been accumulating for (a.k.a., emotional intelligence). 1) Recognize that law is about people, years. Extremely high rates of suicide and Another example is a lawyer who not just outcomes. The best way to human- substance abuse (both still underreported), spends more time talking about his/her ize a case is to talk to the humans as often divorce, and health issues among lawyers successes and accomplishments with a pro- as possible. Use mock trials, poll juries, and testify to a degree of personal dysfunction spective client than listening to and watch- communicate as much as possible within that is astonishing.” According to Muir, ing the non-verbal communications of the the bounds of ethics and learn to be more emotionally intelligent lawyers become prospective client. Truly learning about and emotionally intelligent. happier and they become better negotiators empathizing with the client is just as impor- 2) Be a renaissance person. Lawyers can and litigators. tant, if not more so, than touting the law- benefit from broadening their understand- If you want to learn more or need confi- yer’s own accomplishments. ing of human relationships by participating dential help with any type of mental health Paying attention to others is critical, but in art, culture and recreation outside of the or addiction issue, contact the professional it’s only half of the entire EQ puzzle. It is legal profession. This provides a broader clinical staff at JLAP at (985)778-0571, equally important to improve one’s self- understanding of human motives and com- email [email protected] or visit the awareness and become more cognizant of plexities. website at: www.louisianajlap.com. one’s own emotions and how those emo- 3) Practice good reaction hygiene. tions can affect behaviors toward others. Emotional intelligence comes down to how FOOTNOTE The concept of emotional intelligence one reacts to ideas and others. Lawyers was first explored in the 1960s but was have “intellectual hair triggers” and, when 1. www.americanbar.org/products/inv/ book/289815790/. brought to the mainstream in author Daniel they hear an argument, they often automati- Goleman’s book, Emotional Intelligence: cally generate a response. Dr. Broda-Bahm J.E. (Buddy) Stockwell Why It Can Matter More Than IQ (Bantam, said it’s better to pause, identify your emo- is the executive director October 1995). tions and how you are feeling, and ask oth- of the Louisiana Judges ers what they think before you take a posi- and Lawyers Assistance Emotional intelligence refers to one’s Program, Inc. (JLAP) capability to recognize both one’s own tion. “Take time to think and observe. Don’t and can be reached at emotions and the emotions of others, dis- force yourself to react in the moment.” (866)354-9334 or email cern between different feelings and label An in-depth book on emotional intel- [email protected]. them correctly, and then use emotional in- ligence by Ronda Muir is available for formation to productively guide thinking lawyers, Beyond Smart: Lawyering with

428 April / May 2019 Louisiana Bar Journal Vol. 66, No. 6 429 LAWYERSGive Back CITIZEN LAWYER AWARDS

LSBA Presents 8 Citizen Lawyer Awards

he Louisiana State Bar Association (LSBA) presented eight members with Citizen Lawyer Awards on Jan. 19. The awards were present- Ted by LSBA President Barry H. Grodsky at a ceremony during the LSBA Midyear Meeting in Baton Rouge. The Citizen Lawyer Awards, originally named the Crystal Gavel Awards, were created in 2001 to recognize outstanding lawyers and judges who have been unsung heroes and heroines in their communities. Recipients are selected based upon service Jasmine N. Brown, right, received the Louisiana Steven J. Farber, right, received the Louisiana in their local communities and in local or- State Bar Association’s (LSBA) Citizen Lawyer State Bar Association’s (LSBA) Citizen Lawyer ganizations. Award during the Midyear Meeting in January. Award during the Midyear Meeting in January. Presenting the award was LSBA President Barry Presenting the award was LSBA President Barry Recipients included Jasmine N. H. Grodsky. H. Grodsky. Brown, New Orleans; Steven J. Farber, Denham Springs; Judge Peter J. Garcia, once a month to minister to inmates. degree in 1979 from Louisiana State Covington; Britney A. Green, Shreveport; Steven J. Farber is the deputy director University Paul M. Hebert Law Center. In G. Trippe Hawthorne, Baton Rouge; of administration/general counsel for the 1998, the same year he started one of the Elizabeth S. Sconzert, Mandeville; Scott Metropolitan Human Service District in first drug courts in Louisiana, he attended L. Sternberg, New Orleans; and Judge New Orleans. He received his JD degree the first national training of Drug Court Lisa M. Woodruff-White, Baton Rouge. in 1998 from Southern University Law Judges at American University through Jasmine N. Brown practices in the Center. He also has worked for the Office the National Association of Drug Court Metairie office of Blue Williams, L.L.P. of Juvenile Justice and the Louisiana Professionals. He presided over a division She received her JD degree in 2016 from Department of Public Safety. He chairs of drug court for 15 years and concomi- Louisiana State University Paul M. Hebert the LSBA’s Government and Public Law tantly over a division of juvenile drug court Law Center. She is involved in community Section, serves in the LSBA House of for three years. He started a Behavioral efforts targeting homelessness, women’s Delegates and is a member of the LSBA Health Court in 2011 to provide case man- empowerment and mass incarceration. She Section Council and the Children’s Law agement and judicial supervision of indi- is the founder of a mentorship program, Committee. He also is a member of the viduals with co-occurring mental health Beautifully You, for young women who Greater New Orleans Human Trafficking and addictive disorders within the criminal have experienced homelessness, sexual Task Force and the Greater New Orleans justice system. He is a former member of trauma, gun violence and teen pregnancy. Labor Trafficking Prevention Committee. the St. Tammany board of directors of the She co-led Project 300, an initiative feeding He provides notarial services at homeless National Alliance on Mental Illness. From homeless men and women, and volunteered outreach centers in East Baton Rouge, 2015-16, he served as committee chair of with other organizations serving the home- Livingston and Orleans Parishes. A li- the St. Tammany Parish Behavioral Health less, including Grace at the Greenlight, the censed minister, he performs free marriage Task Force. New Orleans Mission and the Baton Rouge ceremonies for people who cannot afford a Britney A. Green is an assistant district Dream Center. She has served as a facilita- ceremony. attorney and chief of domestic violence in tor of a street law class at the Orleans Parish Judge Peter J. Garcia has served on the 1st Judicial District in Caddo Parish. Juvenile Detention Center and is a speaker the bench of the 22nd Judicial District She received her JD degree from Florida at the Rivarde Juvenile Detention Center. Court for St. Tammany and Washington International University College of Law. She visits the Louisiana State Penitentiary parishes since 1996. He received his JD Continued on page 432

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Louisiana Bar Journal Vol. 66, No. 6 431 Judge Peter J. Garcia, right, received the Louisiana Britney A. Green, right, received the Louisiana Elizabeth S. Sconzert, right, received the Louisiana State Bar Association’s (LSBA) Citizen Lawyer State Bar Association’s (LSBA) Citizen Lawyer State Bar Association’s (LSBA) Citizen Lawyer Award during the Midyear Meeting in January. Award during the Midyear Meeting in January. Award during the Midyear Meeting in January. Presenting the award was LSBA President Barry Presenting the award was LSBA President Presenting the award was LSBA President Barry H. H. Grodsky. Barry H. Grodsky. Grodsky. She has served as a diversity trainer, edu- board of directors and is active with the representing individuals whose rights have cating lawyers and judges about issues of Burden Museum and Gardens, particularly been violated by the government or who diversity and equal opportunity. She was the LSU Rural Life Museum. are seeking access to their government. He a volunteer with the Justice Teaching Elizabeth S. Sconzert is a partner in the also represents individuals and media out- Initiative, instructing high school students Mandeville office of Blue Williams, L.L.P. lets in seeking government documents. As about the legal system. She provides pro She received her JD degree from Loyola a board member of the Louisiana Center for bono legal services to homeless clients of University College of Law. She volunteers Law and Civic Education, he counsels col- HOPE Connections. She served as vice at James Store House, facilitating dona- lege journalists on legal and ethical issues. president of the National Association tions and advocating for families in prepa- He has taught media law at LSU Paul M. of University Women, commissioning ration for court hearings. She serves on the Hebert Law Center and Loyola University and installing Mansfield’s first and only Northshore Court Foundation board and College of Law. He was a key volunteer in Little Free Library, providing books to works with judges, the bar association and the Federal Bar Association’s first Court children. She organized and presented an the St. Tammany Parish executive counsel Camp and helmed its mock trial program. Expungement Seminar for DeSoto Parish to identify nontraditional legal needs of Judge Lisa M. citizens to assist them with expunging individuals navigating the specialty court Woodruff-White criminal convictions and arrests. system. She assists the local hospital with has served on the G. Trippe Haw- mental health legal issues. In the past two East Baton Rouge thorne is a partner in years, she has served as counsel for two pro Parish Family Court the Baton Rouge of- bono clients needing legal assistance in en- bench since 2008. fice of Kean Miller, suring the wellbeing of their children who She received her L.L.P. He received suffer with mental illness and disability. JD degree from his JD degree in 1995 She also is working with the St. Tammany Southern University from Louisiana State Parish executive counsel to devise a legal Law Center. She is Judge Lisa M. Woodruff-White University Paul M. help desk at the Safe Haven Project. the president of the Hebert Law Center. Scott L. Sternberg Louisiana District Judges Association, He works with Baton G. Trippe is a founding partner chair of the Strategic Planning Committee Hawthorne Rouge’s homeless and of the firm Sternberg, and former chair of the Self-Represented near homeless population through Open Naccari & White, Litigant Committee. In furtherance of her Air Ministries, a collaboration of Baton L.L.C., with offices passion for ensuring court access to all Rouge area churches and nonprofit -or in New Orleans and citizens, she is a member of the Louisiana ganizations, including the YMCA of the Baton Rouge. He Access to Justice Commission. She is Capital Area and St. Vincent DePaul. In also is general coun- active on the National Board of Public 2006, Open Air started a bike repair pro- sel to the Louisiana Allies, a nationwide organization commit- gram where twice a month he and other Press Association and Scott L. Sternberg ted to advancing social justice and equity volunteers set up a pop-up bike repair other media entities in by galvanizing the leadership capacities of shop. He also collects donated bicycles to the state. He received his JD degree from young people. Active in the protection and refurbish and distribute. Since 2006, he has Louisiana State University Paul M. Hebert welfare of children, she chaired the Child assisted Open Air in repairing and distrib- Law Center. His First Amendment practice Support Committee of the Louisiana State uting more than 1,000 bicycles. He also is has led him to spend hundreds of hours of Law Institute and the Louisiana Child a member of the Baton Rouge Symphony contingent, “low bono” or pro bono work Support Guidelines Review Committee.

432 April / May 2019 FOCUSDiversity ON EVENTS RECAP

The Louisiana State Bar Association (LSBA) Natchitoches Session 3, Diversity Committee’s Specialty Bars “Social Security,” was presented by Julia L. Subcommittee conducted the Natchitoches Lights Deal with Ellen Cronin CLE program on Dec. 14, 2018, in Natchitoches. Badeaux, L.L.C., in Covington.

Natchitoches Session 1, “LADB Recent Decisions,” was presented by Gregory L. Tweed, second from Natchitoches Session 5, “LSBA: Who We left, first assistant disciplinary counsel, Louisiana Are and How We Serve Our Members,” was Attorney Disciplinary Board. Session 2, “Defending Natchitoches Session 4, “LGBT Law: 2018 Year presented by, from left, Michael B. Victorian Disciplinary Action,” was presented by, from left, in Review,” was presented by, from left, Andrea with Phelps Dunbar, LLP, Baton Rouge; and Yolanda Cezar, deputy disciplinary counsel, Louisiana L. Rubin with Delaney, Robb & Rubin, L.L.C., Patrick J. Harrington with Law Offices of J. Dhu Attorney Disciplinary Board; William N. King, LSBA Metairie; and J. Dalton Courson with Stone Thompson, APLC, Shreveport. professional programs practice assistance counsel; Pigman Walther Wittmann, L.L.C., New Orleans. and Richard P. Lemmler, Jr., LSBA ethics counsel. The Louisiana State Bar Association (LSBA) Diversity Committee’s Pipeline to Diversity and Outreach Subcommittee hosted three CLEs on Jan. 17 in conjunction with the LSBA’s Midyear Meeting in Baton Rouge — Part III of the Disabilities Series and the Women’s Personal and Professional Development Workshop.

The Women’s Personal and Professional Develop- ment Workshop Session 2, “Take Command, Be Empowered, and Own Your Future,” was presented by, from left, Judy Perry Martinez, 2018-19 Ameri- can Bar Association president-elect, Simon Peragine Part III of the LSBA Disabilities Series, “Social Se- Smith & Redfearn, LLP, New Orleans; Baton Rouge The Women’s Personal and Professional Develop- curity: Overview of the Law, Operating Terms and Mayor-President Sharon Weston Broome; and ment Workshop Session 1, “Navigating the Storms,” Procedure,” was presented by, from left, Monica Marta-Ann Schnabel, O’Bryon & Schnabel, PLC, was presented by Jade Brown Russell, principal, Ferraro and Suzette Tagesen Murphy, both with 2006-07 LSBA president, New Orleans. The JBR Firm, New Orleans. Workers’ Compensation, LLC, Metairie.

Louisiana Bar Journal Vol. 66, No. 6 433 Crossword PUZZLE By Hal Odom, Jr. THE HIGHS AND THE LOWS

1 2 3 4 5 ACROSS DOWN

6 7 1 Crème de la crème (5, 5) 1 Insufficient appropriations (12) 8 Legacy airline once based 2 Survey of jury to confirm each 8 9 in Monroe (5) member's vote (4) 9 Rabbi (7) 3 Not an idealist (7) 10 Avoiding petty or personal 4 Gag, as from nausea (5) attacks (4-6) 5 Hindu spiritual guide; mystic (5) 10 11 12 With the latest, like a 6 One of many hanging in newsflash (2, 2, 3, 6) Florida in 2000 (4) 15 Lincoln/Webster Parish town that 7 Metric off personal finance, 12 13 14 sounds like a sad place to visit (10) the higher the better (6, 6) 20 Very recent, as a baby (7) 11 '60s war zone (3) 21 Japanese ideographic 13 Hold title to (3) writing system (5) 14 Fancy fabric for a rain slicker (7) 15 16 17 18 22 Like a private, or a rookie cop (3-7) 16 Knocks their socks off (4) 17 Sports replay feature (3-2) 19 18 Not outer (5) 19 One against (4) 20 21

22 Answers on page 471.

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

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

434 April / May 2019 LEADER IN RESOLUTION

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800.443.7351 | maps-adr.com | [email protected] Louisiana Bar Journal Vol. 66, No. 6 435 DISCIPLINE Reports REPORTING DATES 2/4/19 & 2/6/19

REPORT BY DISCIPLINARY COUNSEL Public matters are reported to protect the public, inform the profession and deter misconduct. Reporting date Feb. 4, 2019.

Decisions terim suspension of July 21, 2015, by Respondent mishandled the use of his cli- order of the Louisiana Supreme Court ent trust account. David W. Ardoin, Thibodaux, (2018- on Jan. 18, 2019. JUDGMENT FINAL Paul E. Brown, Houma, (2017-B- B-1810) Suspended by consent for a and EFFECTIVE on Jan. 18, 2019. Gist: 1930) Suspended for one year and one period of one year and one day, fully Commission of a criminal act; and violat- day, with all but 90 days deferred, sub- deferred, subject to probation, by or- ing or attempting to violate the Rules of ject to a two-year period of probation, der of the Louisiana Supreme Court Professional Conduct. by order of the Louisiana Supreme Court on Jan. 8, 2019. JUDGMENT FINAL Michael A. Betts, Denham Springs, on Sept. 18, 2018. Rehearing denied and EFFECTIVE on Jan. 8, 2019. Gist: (2018-B-1870) Suspended for a year and on Dec. 5, 2018. JUDGMENT FINAL Commission of a criminal act. a day by consent, fully deferred, subject and EFFECTIVE on Dec. 5, 2018. Gist: Gerald J. Asay, Baton Rouge, to two years of supervised probation, Respondent pleaded no contest to first of- (2018-B-2002) Suspended by consent by order of the Louisiana Supreme Court fense DWI, careless operation of a motor from the practice of law for a period on Jan. 14, 2019. JUDGMENT FINAL vehicle and vehicular negligent injuring. and EFFECTIVE on Jan. 14, 2019. Gist: of three years, retroactive to his in- Continued next page

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

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

436 April / May 2019 Discipline continued from page 436 of the matters. subject to probation, by order of the Ella C. Goodyear, Abita Springs, Louisiana Supreme Court on Jan. 8, 2019. Gregory Cook, Baton Rouge, (2018- (2018-B-2032) Suspended by consent JUDGMENT FINAL and EFFECTIVE B-1076) Suspended for six months, with from the practice of law for a period on Jan. 8, 2019. Gist: Commission of a all but 30 days deferred, subject to a of one year and one day by order of the criminal act, particularly one that reflects one-year period of unsupervised proba- Louisiana Supreme Court on Jan. 28, 2019. adversely on the lawyer’s honesty, trust- tion, by order of the Louisiana Supreme JUDGMENT FINAL and EFFECTIVE worthiness or fitness as a lawyer. Court on Dec. 5, 2018. JUDGMENT on Jan. 28, 2019. Gist: Commission of a Brian P. Quirk, New Orleans, (2018- FINAL and EFFECTIVE on Dec. 19, criminal act; and violating or attempting to B-1857) Disbarred by consent from the 2018. Gist: Respondent engaged in a con- violate the Rules of Professional Conduct. practice of law by order of the Louisiana flict of interest. James Paul Johnson, New Orleans, Supreme Court on Jan. 14, 2019. Connie M. Easterly, Baton Rouge, (2018-B-1660) Disbarred by consent, JUDGMENT FINAL and EFFECTIVE (2018-B-2090) Interimly suspended retroactive to May 24, 2017, the date on Jan. 14, 2019. Gist: Conduct involving from the practice of law by order of the of his interim suspension, by order of dishonesty, fraud, deceit and misrepresen- Louisiana Supreme Court on Jan. 8, 2019. the Louisiana Supreme Court on Dec. tation; and violating or attempting to vio- JUDGMENT FINAL and EFFECTIVE 17, 2018. JUDGMENT FINAL and late the Rules of Professional Conduct. on Jan. 8, 2019. EFFECTIVE on Dec. 17, 2018. Salvador R. Perricone, New Orleans, David Cartan Loker Gibbons, Jr., Kirby Dale Kelly, Shreveport, (2018- (2018-B-1233) Disbarred from the New Orleans, (2018-B-1793) Suspended B-2113) Interimly suspended from the practice of law by order of the Louisiana by consent for one year and one day, practice of law by order of the Louisiana Supreme Court on Dec. 5, 2018. Rehearing with six months deferred, by order of the Supreme Court on Jan. 14, 2019. denied on Jan. 30, 2019. JUDGMENT Louisiana Supreme Court on Jan. 8, 2019. JUDGMENT FINAL and EFFECTIVE FINAL and EFFECTIVE on Jan. 30, JUDGMENT FINAL and EFFECTIVE on Jan. 14, 2019. 2019. Gist: Making extrajudicial state- on Jan. 8, 2019. Gist: Neglected a client’s Sean P. Mount, New Orleans, (2018- ments by means of public communication legal matters, some of which had pre- B-1823) Suspended by consent from that had a substantial likelihood of materi- scribed; failed to communicate with his the practice of law for a period of client and timely disclose his malpractice; one year and one day, fully deferred, and misled his client regarding the status Continued next page

Legal & Judicial Ethics

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

Louisiana Bar Journal Vol. 66, No. 6 437 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. 6, 2019. Respondent Disposition Date Filed Docket No. Chantell M. Boutte [Reciprocal] Disbarment. 12/17/18 18-9592 Robert B. Evans III [Reciprocal] Interim suspension. 12/17/18 18-9260 Ronald B. Manning [Reciprocal] Disbarment. 12/17/18 18-9416 Neil Dennis William Montgomery [Reciprocal] Suspension (fully deferred). 11/23/18 18-9034 Joseph Burchman Rochelle [Reciprocal] Public reprimand. 11/23/18 18-9033

Discipline continued from page 437 Louisiana Supreme Court on Dec. 17, 2018. Court on Dec. 3, 2018. JUDGMENT JUDGMENT FINAL and EFFECTIVE on FINAL and EFFECTIVE on Dec. 17, 2018. ally prejudicing an adjudicative proceeding Dec. 17, 2018. Mr. Sepcich has proven by Gist: Respondent practiced law for a signif- and of heightening public condemnation of clear and convincing evidence that he satis- icant period of time while he was ineligible the accused; conduct prejudicial to the ad- fies the criteria for readmission to the prac- to do so. ministration of justice; conflict of interest; tice of law in the state of Louisiana. Greta L. Wilson, New Orleans, (2018- and violating or attempting to violate the Bernadette L. Thomas, Houston, B-1800) A disbarred attorney, adjudged Rules of Professional Conduct. Texas, (2019-OB-0002) Transferred to guilty of additional violations warrant- Michael S. Reid, Lafayette, (2018- disability/inactive status by order of the ing discipline, which shall be considered B-0849) Disbarred, retroactive to Dec. Louisiana Supreme Court on Jan. 16, 2019. in the event she seeks readmission after 9, 2016, the date of his interim suspen- Shannon Jay Thomas, Baton Rouge, becoming eligible to do so. It is further sion, by order of the Louisiana Supreme (2018-B-2067) Interimly suspended ordered that for the misconduct which Court on Dec. 5, 2018. Respondent shall from the practice of law by order of the occurred outside the time frame of In Re: provide accounting and make restitu- Louisiana Supreme Court on Dec. 20, 2018. Wilson, 17-0622 (La. 6/5/17), 221 So.3d tion to the clients who are the subject of JUDGMENT FINAL and EFFECTIVE on 40, the minimum period for seeking re- the formal charges and/or to the Client Dec. 20, 2018. admission from her disbarment shall be Assistance Fund. JUDGMENT FINAL Rebecca Lynn Vishnefski, Shreveport, extended for a period of two years, by and EFFECTIVE on Dec. 19, 2018. Gist: (2018-OB-1801) Reinstated to active order of the Louisiana Supreme Court on Respondent neglected legal matters; failed status by order of the Louisiana Supreme Jan. 14, 2019. JUDGMENT FINAL and to communicate with clients; failed to re- Court on Dec. 3, 2018. JUDGMENT EFFECTIVE on Jan. 28, 2019. Gist: Failure fund unearned fees; allowed his trust ac- FINAL and EFFECTIVE on Dec. 3, 2018. to communicate and collect funds due a cli- count to become overdrawn on four occa- George Allen Roth Walsh, Baton ent; and failure to return unearned fees. sions; and failed to cooperate with ODC in Rouge, (2018-B-1232) Suspended for six its investigations. months, with all but 30 days deferred, Admonitions (private sanctions, often Michael S. Sepcich, Metairie, (2018- subject to one year of unsupervised pro- with notice to complainants, etc.) issued OB-1783) Readmitted to the practice bation and attendance at LSBA’s Ethics since the last report of misconduct involving: of law, with conditions, by order of the School, by order of the Louisiana Supreme Violation of Rule 1.7(a) — Engaging in a concurrent conflict of interest among cli- Christovich & Kearney, llp ents where the representation of one client attorneys at law was directly adverse to another client. Defense of Ethics Complaints and Charges Violation of Rule 3.1 — A lawyer shall not bring or defend a proceeding, or assert E. Phelps Gay Kevin R. Tully or controvert an issue therein, unless there H. Carter Marshall is a basis in law and fact for doing so that is not frivolous, which includes a good faith Mary Beth Meyer argument for an extension, modification or (504)561-5700 reversal of existing law. 601 Poydras Street, Suite 2300 Violation of Rule 8.4(a) — Violating New Orleans, LA 70130 or attempting to violate the Rules of Professional Conduct.

438 April / May 2019 MEDIATION AND ARBITRATION of COMPLEX DISPUTES

Guy deLaup Ross Foote Phelps Gay Thomas Hayes, III

Mike McKay Mike Patterson Larry Roedel Marta-Ann Schnabel

Patrick Ottinger’s professional practice includes an emphasis on oil and gas. He has organized and spoken at numerous continuing legal education seminars on oil and gas in Louisiana and Texas and serves as Chair of the Advisory Council of the Institute on Mineral Law, Baton Rouge. He is the Reporter for the Mineral Law Committee of the Louisiana State Law Institute. He has also served as Chair of the Section on Mineral Law of the Louisiana State Bar Association. He is an experienced arbitrator and mediator in oil and gas matters, having completed formal training through the Straus Institute for Dispute Resolution, Pepperdine University School of Law.

BATON ROUGE | NEW ORLEANS | LAFAYETTE | SHREVEPORT | MONROE : 866.367.8620 : [email protected] : pattersonresolution.com Louisiana Bar Journal Vol. 66, No. 6 439 Client ASSISTANCE Fund FUND PAYMENTS

CLIENT ASSISTANCE FUND PAYMENTS - SEPTEMBER & NOVEMBER 2018 Attorney Amount Paid Gist Raymond C. Burkart III $12,848.38 #1799 — Conversion in a personal injury matter Raymond C. Burkart III $2,500.00 #1792 — Unearned fee Kevin M. Dantzler $2,730.00 #1884 — Unearned fee in a child custody matter Olita Magee Domingue $1,250.00 #1878 — Unearned fee in a child support matter Harold D. Register, Jr. $6,300.00 #1886 — Unearned fee in a criminal matter Harold D. Register, Jr. $9,000.00 #1863 — Conversion in a community property matter Michael Sean Reid $1,025.00 #1760 — Unearned fee in a custody matter Michael Sean Reid $6,000.00 #1780 — Unearned fee in a custody/child support matter Michael Sean Reid $1,500.00 #1766 — Unearned fee Roy J. Richard, Jr. $3,800.00 #1882 — Unearned fee in a criminal matter

LOUISIANA CLIENT ASSISTANCE FUND

Who can, or cannot, qualify for the Counsel or to obtain a complaint form, Q A Fund? write to: Disciplinary Counsel, 4000 South What is the Louisiana Client Almost anyone who has lost money due to Sherwood Forest Blvd., Suite 607, Baton Assistance Fund? a lawyer’s dishonesty can apply for reim- Rouge, LA 70816-4388. Client Assistance The Louisiana Client Assistance Fund bursement. You do not have to be a United Fund applications are available by calling was created to compensate clients who States citizen. However, if you are the or writing: The Client Assistance Fund, lose money due to a lawyer’s dishonest spouse or other close relative of the lawyer 601 St. Charles Ave., New Orleans, LA conduct. The Fund can reimburse clients in question, or the lawyer’s business part- 70130-3427, (504)566-1600 or (800)421- up to $25,000 for thefts by a lawyer. It ner, employer or employee, or in a busi- 5722. Applicants are requested to complete covers money or property lost because ness controlled by the lawyer, the Fund an Application for Relief and Financial a lawyer was dishonest (not because the will not pay you reimbursement. Also, the Information Form. lawyer acted incompetently or failed Fund will not reimburse for losses suffered to take certain action). The fund does by government entities or agencies. Who decides whether I qualify for reim- not pay interest nor does it pay for any bursement? damages done as a result of losing your How do I file a claim? The Client Assistance Fund Committee money. Because the Client Assistance Fund decides whether you qualify for reimburse- Committee requires proof that the lawyer ment from the Fund, and, if so, whether How do I qualify for the Fund? dishonestly took your money or property, part or all of your application will be paid. Clients must be able to show that the you should register a complaint against The committee is not obligated to pay any money or property came into the law- the lawyer with the Office of Disciplinary claim. Disbursements from the Fund are at yer’s hands. Counsel. The Disciplinary Counsel’s of- the sole discretion of the committee. The fice will investigate your complaint. To file committee is made up of volunteer lawyers a complaint with the Office of Disciplinary who investigate all claims.

440 April / May 2019 RECENTDevelopments BANKRUPTCY LAW TO TRUSTS & ESTATE

the U.S. Bankruptcy Code following the note agreements and the credit facility pro- crash of oil prices in 2015. Prior to filing, vided for a contractual default interest rate Attorney Amount Paid Gist the debtors issued unsecured notes worth that was above the federal judgment rate. Bankruptcy $1.46 billion to various noteholders and The plan proposed by the debtors did Raymond C. Burkart III $12,848.38 #1799 — Conversion in a personal injury matter Law took out an additional $999 million in a not include the Make-Whole Amount or Raymond C. Burkart III $2,500.00 #1792 — Unearned fee revolving credit facility. Shortly after filing the post-petition interest rate as set forth in the petition in April 2016, oil prices rose the note agreements and the credit facility. Kevin M. Dantzler $2,730.00 #1884 — Unearned fee in a child custody matter again, resulting in a solvent debtor and al- Rather, the plan provided that the debtors Olita Magee Domingue $1,250.00 #1878 — Unearned fee in a child support matter Make-Whole Amount; lowing a plan wherein all creditors would would pay: 1) the outstanding principal; 2) be paid in full. pre-petition interest at a rate of 0.1 percent; Harold D. Register, Jr. $6,300.00 #1886 — Unearned fee in a criminal matter Post-Petition Interest Under the note agreements, the note and 3) post-petition interest at the federal Harold D. Register, Jr. $9,000.00 #1863 — Conversion in a community property matter Rate holders were entitled to a “Make-Whole judgment rate. The unsecured noteholders Amount” to compensate them for lost fu- were labeled “unimpaired,” thereby pre- Michael Sean Reid $1,025.00 #1760 — Unearned fee in a custody matter Ultra Petroleum Corp. v. Ad Hoc Comm. ture interest. The note agreements also venting them from objecting to the plan. of Unsecured Creditors (In re Ultra Michael Sean Reid $6,000.00 #1780 — Unearned fee in a custody/child support matter provided that the Make-Whole Amount The unsecured noteholders argued that Petroleum Corp.), 924 F.3d 533 (5 Cir. was triggered upon filing bankruptcy. because they were deprived of the Make- Michael Sean Reid $1,500.00 #1766 — Unearned fee 2019). Similarly, the credit facility had an accel- Whole Amount and the contractual default Roy J. Richard, Jr. $3,800.00 #1882 — Unearned fee in a criminal matter Ultra Petroleum Corp. and several af- eration clause that was also triggered upon rate (as opposed to the judgment rate), they filiates filed for relief under Chapter 11 of filing bankruptcy. Both provisions in the were “impaired” and would be “unim-

Louisiana Bar Journal Vol. 66, No. 6 441 It’s Time to Book a Listing in One price gets ‘Who’s Who in ADR 2019’ 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 2019 Louisiana Bar Journal. View the 2018 For the one low price of $125, your listing is first published in the print directory, directory at then the directory is uploaded to the LSBA website in interactive PDF format (email addresses and website URLs are activated and instantly accessible). www.lsba.org/goto/ The Web version of the directory remains active for one full year! adrdirectory

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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. It’s easy to reserve space in the directory! • Email your listing and photo to Publications Coordinator Darlene M. LaBranche (email: [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. 70130-3404. • Or, mail your listing, photo, disk and check to the above address. For more information, contact Darlene M. LaBranche [email protected] (504)619-0112 or (800)421-5722, ext. 112.

442 April / May 2019 paired” only if granted the Make-Whole source of the impairment, as opposed to matured interest. Section 502(b)(2) disal- Amount and post-petition interest at the the plan itself, there is no impairment un- lows any claim “to the extent that . . . such contractual default rate. der § 1124. claim is for unmatured interest.” 11 U.S.C. The bankruptcy court concluded that Next, the court embarked on an exten- § 502(b)(2). Thus, the Make-Whole unimpairment “requires that creditors sive review of English bankruptcy law and Amounts would be unallowed by virtue receive all that they are entitled to under the Bankruptcy Code’s adoption of the of the Bankruptcy Code, not the plan. state law.” In re Ultra Petroleum Corp., same. Under English bankruptcy law, the However, the court also noted the possi- 575 B.R. 361, 372 (S.D. Tex. 2017). “Solvent-Debtor Exception” allowed in- bility that because the Code is otherwise Finding that New York law, which gov- terest to continue to accrue on a creditor’s silent on interest for unimpaired, unse- erned the contracts, allowed the Make- claim post-commission (petition) where cured creditors in Chapter 11, the Solvent- Whole Amounts, the bankruptcy court a contract providing for such interest and Creditor Exception may have survived in concluded that the unsecured noteholders sufficient funds in the debtor’s estate ex- the penumbra of the modern Bankruptcy were impaired by the plan and, thus, en- isted. The court concluded that § 726(a)(5) Code, in which case it would act as a titled to further payment to make them codified a version of the Solvent-Debtor carve-out to section 502(b)(2). This deter- unimpaired. Additionally, the bankruptcy Exception, but not an identical version to mination was left to the bankruptcy court court held that the Bankruptcy Code did it. Under 11 U.S.C. § 726(a)(5), a creditor on remand. not limit contractual default interest rates may receive “payment of interest at the le- As to the post-petition interest rate, the and, therefore, post-petition interest would gal rate from the date of the filing of the pe- court presented two possibilities. The rate be awarded at the contractual interest rate tition, on any claim paid under paragraph could be based on the general post-judg- and not the federal judgment rate. (1), (2), (3), or (4) of this subsection.” The ment interest statute, 28 U.S.C. § 1961, or The 5th Circuit granted the direct ap- court initially noted that under 11 U.S.C. based on the bankruptcy court’s inherent peal and reversed the bankruptcy court’s § 1129(a)(7), the best-interest test, as out- equitable powers, which would allow it to ruling that to be unimpaired under 11 lined in § 726(a), is available only to im- apply the contractual default interest rate U.S.C. § 1124(1), a creditor must receive paired creditors in Chapter 11 cases, not if determined to be equitable. Because the all that it is entitled to under state law. unimpaired creditors, as the unsecured bankruptcy court never reached this ques- Section 1124(1) states that a claim is not creditors were here. Thus, § 726 could not tion, that too was left open on remand. impaired if “the plan . . . leaves unaltered be used by these creditors. However, the the legal, equitable, and contractual rights court noted that the Code was otherwise —Michael E. Landis and to which such claim or interest entitles the silent as to interest on unimpaired claims Cherie D. Nobles holder of such claim or interest” (empha- in Chapter 11. Members, LSBA Bankruptcy sis added). The 5th Circuit focused on the On remand, the court suggested that Law Section use of the term “the plan” and followed because the Make-Whole Amounts were Heller, Draper, Patrick, Horn the 3rd Circuit’s holding in In re PPI only triggered upon filing bankruptcy and & Manthey, L.L.C. Enterprises (U.S.), Inc., 324 F.3d 197, 207 were intended to compensate the notehold- Ste. 2500, 650 Poydras St. (3 Cir. 2003), which held that when the ers for the loss of future unmatured interest New Orleans, LA 70130 Bankruptcy Code (or other statute) is the on the notes, they were themselves un-

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Louisiana Bar Journal Vol. 66, No. 6 443 period. But to help district engineers deter- court held that “any claim asserted under § mine what these circumstances should be, 7475(a) accrues at the moment unpermit- the memorandum directs the Corps to draft ted construction commences. ”Id. at 884. Environmental guidance immediately establishing criteria On the second issue, the 5th Circuit Law for identifying reasonable timeframes in joined the 10th and 11th Circuits in hold- which the states must act. The memoran- ing that actions brought by the government dum provides that the type of proposed in its sovereign capacity are exempt from activity and the complexity of the site that the application of the concurrent-remedies Clean Water Act will be impacted are factors that may deter- doctrine. In so reasoning, the court cited to mine the reasonableness of the timeframe. the U.S. Supreme Court’s holding in E.I. Du On Dec. 13, 2018, the Assistant Of further note is that a state’s request for Pont De Nemours & Co. v. Davis, 44 S.Ct. Secretary of the Army for Civil Works is- additional time will no longer be approved 364, 366 (1924), that “an action on behalf sued a policy directive memorandum to the automatically. Requests by the state for a of the United States in its governmental ca- Chief of Engineers for the Army Corps of longer timeframe based on workload or pacity . . . is subject to no time limitation, Engineers establishing a 60-day default pe- resource issues or insufficient information in the absence of congressional enactment riod in which states must act on requests for will not be considered. clearly imposing it.” Finding no such con- Water Quality Certifications (WQC) under This memorandum is the latest effort gressional enactment, the 5th Circuit held Section 401 of the Clean Water Act (CWA) to make the WQC process more predica- that “the district court erred in dismissing (33 U.S.C. § 1344). The memorandum also ble in light of WQC issues impacting re- the government’s equitable-relief claims directs the development of guidance con- cent projects under the jurisdiction of the under Rule 12(b)(6) based on the concur- cerning the criteria district engineers should Federal Energy Regulatory Commission. rent-remedies doctrine.”Luminant at 887. use in identifying reasonable timeframes for In addition, although with a more aggres- The decision does not address the merits of requiring states to act. sive timeline, this memorandum is con- the government’s injunction action. Section 404 of the CWA authorizes the sistent with S. 3303 introduced by U.S. Dissenting in part, Judge Jennifer Department of the Army through its Chief Sen. Joe Barasso titled the “Water Quality Walker Elrod disagreed with the majority’s of Engineers to issue permits for the dis- Certification Improvement Act.” ruling on the injunction issue, arguing that charge of dredged or fill material into wa- the forms of injunctive relief requested by ters of the United States, including wetlands Clean Air Act the government in this case “are really just (404 permit). 33 U.S.C. § 1344. Before the time-barred penalties in disguise.” Id. at Corps can issue a 404 permit, however, Luminant Generation Co. and Big 891. Judge Elrod reasoned that “[b]ecause Section 401 of the CWA requires that the Brown Power Co. have requested a rehear- the statute is concerned only with the con- state in which the discharge originates grant ing en banc by the 5th Circuit Court of struction or modification of a facility, and a WQC. 33 U.S.C. § 1341(a)(1). According Appeals of matters that were the subject of not its subsequent operation, there is no to the general permitting procedure outlined an opinion issued on Oct. 1, 2018. ongoing or future unlawful conduct to en- in the CWA and the federal regulations, af- In United States v. Luminant Generation join.” Id. at 889. ter an application for a 404 permit is sub- Co., 905 F.3d 874 (5 Cir. 2018), the 5th The United States and the Sierra Club as mitted to the Corps, the Corps then requests Circuit examined two important issues on intervenor plaintiff have opposed the Texas a WQC from the state. From receipt of the first impression — first, the court - deter power plants’ request for rehearing in briefs WQC request, the state has 60 days to act, mined when a 42 U.S.C § 7475(a) violation filed on Feb. 12, 2018. The 5th Circuit has not unless the district engineer determines a accrues as a matter of law; and, second, the yet ruled on the defendants’ petition. Because shorter or longer period is reasonable. 33 court considered whether the federal gov- of the importance of the issues at stake, this C.F.R. § 325.2(b)(ii). This longer period ernment’s injunctive relief claims are sub- case warrants continued monitoring. cannot exceed one year from the date the ject to the five-year statute of limitations state receives the request. Id. and 33 U.S.C. set by 28 U.S.C. § 2462.18 as it applies to —Alex P. Prochaska § 1341(a)(1). If the state does not act within an action to recover civil penalties for vio- Secretary, LSBA Environmental the permitted timeframe, then the require- lation of the preconstruction requirements Law Section ment for the state to issue a WQC is waived of § 7475(a). Jones Walker LLP and the Corps may issue the 404 permit. On the first issue, the 5th Circuit re- Ste. 1600, 600 Jefferson St. The Assistant Secretary acknowledges jected the United States’ argument that a Lafayette, LA 70501 in the memorandum that it has become new five-year clock begins to run each day and normal practice for the Corps to give the a modified facility operates without a per- Elise M. Henry states one year to act on the WQC request. mit. Finding that § 7475(a) relates to con- Member, Environmental Law Section To remedy this practice, the memorandum struction only and not to post-construction Jones Walker LLP establishes a default timeframe of 60 days operation, the court joined the 3rd, 7th, 8th, Ste. 5100, 201 St. Charles Ave. in which the states must issue a WQC. The 10th and 11th Circuits in holding that a vi- New Orleans, LA 70170 district engineer may still determine, how- olation of the § 7475(a) occurs during the ever, that circumstances require a longer construction period. More specifically, the

444 April / May 2019 court did not err in reducing his child sup- E.R. v. T.S., 18-0286 (La. App. 5 Cir. port, using Schedule B. 10/11/18), 256 So.3d 551, writ denied, 18- 1843 (La. 2/18/19), ____ So.3d ____, 2019 Family O’Neal v. Addis, 52,377 (La. App. 2 Cir. WL 927614 (Mem). Law 9/26/18), 256 So.3d 493. Although, during the course of the mat- On the mother’s rule to modify cus- ter, there were allegations of sexual abuse tody, the trial court found, and the court in different incidents against both children, of appeal affirmed, that there had been the trial court did not err in maintaining Custody no material change of circumstances. joint custody, rather than awarding sole Although the father had moved 90 miles custody to the father, as it was in the chil- Lewis v. Lewis, 18-0378 (La. App. 4 Cir. away, worked on weekends and left the dren’s best interest that the joint-custody 10/3/18), 255 So.3d 1216. child with his mother, and the parents had arrangement remain, albeit with the father The trial court did not err in increasing a record of poor communication, the trial named as the domiciliary parent. The trial Mr. Lewis’ physical custody with the chil- court ordered that they maintain the alter- court made a credibility call, based on the dren to a 50/50 schedule, as he had retired nating weekly schedule, attend parenting parties’ testimony, and discounting a re- and moved from Shreveport to Slidell, clos- classes and use Our Family Wizard, a port from DCFS validating a complaint er to Ms. Lewis’ residence in New Orleans, co-parenting app. Moreover, the court of that the mother had abused the parties’ such that he was able to ensure the chil- appeal affirmed the trial court’s setting a son, which the trial court found not to be dren’s attendance and participation at their six-month review hearing to monitor the accurate. Moreover, the complaint was school. The court confirmed that the time child’s situation with the alternating-week not otherwise validated. Further, the other parents who have joint custody spend with custody. Although the trial court did not child’s therapist testified that it was in the their children is “physical custody,” not assign a domiciliary parent, the court of child’s best interest that the joint-custody “visitation.” The court further found that his appeal found that, given the parties’ com- arrangement remain, as the child would retirement from the military was forced, due munication issues, one should have been benefit by having both parents in her life to his medical condition, and, therefore, he appointed and remanded to the trial court on a regular basis. Further, the trial court was not voluntarily unemployed. The trial to name a domiciliary parent. properly applied the Bergeron standard in

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Louisiana Bar Journal Vol. 66, No. 6 445 finding that, although there may have been were prescribed, under La. C.C.P. art. 424, public school projects. After completion a change of circumstances, it was not in the a prescribed claim can be used as an offset of its work, the claimant filed two sworn children’s best interest to change the legal or a defense. statements of claims alleging that it had custody status as the changes as a whole not been paid in full in connection with the did not rise to the Bergeron standard. The Paternity two projects. The claimant sent two emails trial court also did not improperly prevent to the attorney for the general contractor. the parties from eliciting expert testimony, McLaren v. Foster, 18-0136 (La. App. 3 Attached to the emails were letters from the even allowing testimony regarding previ- Cir. 9/26/18), 256 So.3d 383. claimant to the respective project owners on ous incidents that were part of a previous Mr. McLaren filed a petition to disavow the projects stating that it had not been paid. res judicata judgment. paternity, and the minor children filed a Thereafter, the claimant filed suit against general denial as well as several excep- the general contractor and the payment Interim Spousal Support tions, including a challenge to the consti- bond surety alleging unjust enrichment and tutionality of La. Civ.C. arts. 185, 186, 187 nonpayment under the Louisiana Public Holly v. Holly, 18-0207 (La. App. 3 Cir. and 189. After the trial court denied the Works Act (the LPWA). 9/26/18), 255 So.3d 1158. children’s exceptions and ordered DNA In the lawsuit, the general contractor and Because Ms. Holly did not have a mo- tests, the children appealed. The court of surety filed a motion for summary judgment tion for final spousal support pending at the appeal found that, as the judgment was seeking dismissal of the claims asserted time the judgment of divorce was granted, not a final judgment or an appealable in- against them, arguing that the claimant did her interim spousal support terminated terlocutory judgment, the court did not not provide the notice required under the upon the granting of the judgment of di- have appellate jurisdiction over the matter. LPWA. Specifically, the general contrac- vorce. La. Civ.C. art. 113. The court found Moreover, the court chose not to exercise tor and surety argued that La. R.S. 38:2247 that Ms. Holly’s general prayer for relief its supervisory jurisdiction to convert the requires second-tier claimants to provide “as law, equity or the nature of the case per- appeal to an application for supervisory written notice of a claim to the general con- mit” did not constitute a pending claim for writs because there was no evidence in the tractor within 45 days of the recordation of the sworn statement and mail such notice final spousal support under art. 113. record, and, thus, the court could not determine the issues in any event. However, im- by registered or certified mail to the general contractor’s Louisiana office. The district Spousal Support Arrears portantly, the court stated: “This does not preclude the minor children from assert- court granted the motion for summary judg- ing the same arguments in an appeal once ment, concluding that the notice provided by Waites v. Waites, 17-0499 (La. App. 4 Cir. the claimant was insufficient and dismissing 10/10/18), 256 So.3d 539. a judgment on the disavowal of paternity claim is rendered.” the LPWA claim. The claimant appealed. After Ms. Waites filed a motion seeking On appeal, the claimant contended that spousal support arrears, Dr. Waites filed a the general contractor had actual notice motion to terminate his support obligation —David M. Prados Member, LSBA Family Law Section of its claim, which was sufficient to sat- based on alleged extrajudicial agreements; isfy the requirements of La. R.S. 38:2247. and, in the alternative, alleged that he was Lowe, Stein, Hoffman, Allweiss & Hauver, L.L.P. In so arguing, the claimant relied on prior entitled to a credit for accelerated pay- Louisiana appellate decisions including Bob ments he claimed to have made between Ste. 3600, 701 Poydras St. New Orleans, LA 70139-7735 McGaughey Lumber Sales, Inc. v. Lemoine 1993 and 1996. After the court granted Co., 590 So.2d 664 (La. App. 3 Cir. 1991); his request for credit, she appealed, and “K” Constr., Inc. v. Burko Constr., Inc., 629 the court of appeal affirmed. She claimed So.2d 1370 (La. App. 4 Cir. 1993), writ that he had made no additional payments at denied, 634 So.2d 391 (La. 1994); and Nu- all during that period of time. He claimed Fidelity, Lite Electric Wholesalers, L.L.C. v. Axis that they had agreed that, while she was at- Surety and Constr. Group, Inc., 17-1204 (La. App. 1 tending law school for these three years, he Construction Cir. 4/9/18), 249 So.3d 10, writ denied, 18- would provide her additional funds, but he Law 0914 (La. 9/28/18), 253 So.3d 153. had no written evidence of his payments. The U.S. 5th Circuit Court of Appeals The trial court made a credibility decision, rejected the claimant’s argument. It stated: believing him and his current wife that Notice of Claim by payments had, indeed, been made. The Certified Mail Required Section 2247 prescribes a specific, court of appeal accepted the trial court’s two-prong method by which notice credibility determination. Further, she filed 84 Lumber Co. v. Cont’l Cas. Co., 914 F.3d must be given: (1) by registered or an exception of prescription in the court 329 (5 Cir. 2019). certified mail (2) to the general con- of appeal, claiming that his alleged credit In this case, a second-tier subcontrac- tractor’s Louisiana office. It says was prescribed. However, the court of ap- tor (the claimant) provided labor and ser- nothing about actual notice, much peal found that even if the claim for credit vices to a subcontractor on two Louisiana less email to the general contractor’s

446 April / May 2019 lawyer. Because the LPWA “must be the EEOC against a pair of Washington strictly construed,” and the notice re- State fruit growers for racial and national quirements are “clear and unambigu- International origin discriminatory treatment of for- ous” and do not lead to absurd con- Law eign workers under Title VII. The growers sequences, we must apply § 2247 as hired a labor contractor to supply tempo- written. rary workers to assist with labor shortages in their orchards. The labor contractor re- The court acknowledged the conflict- cruited workers from Thailand and brought ing Louisiana cases law, with some cases United States them to the United States under the H-2A requiring a strict interpretation and others visa program. The H-2A program imposes seemingly holding that actual notice was U.S. EEOC v. Global Horizons, Inc., 915 various requirements on employers, insufficient. However, the court stated that the F.3d 631 (9 Cir. 2019). cluding the provision of housing, meals claimants in the other cases were closer to The U.S. 9th Circuit Court of Appeals and transportation (non-wage benefits) to complying with Section 2247 than the case issued a sweeping decision with potentially the foreign workers. The growers’ contract here, and the issue of whether actual notice wide-ranging effects on employers using with the labor contractor delegated to the was received was disputed in this case. The foreign seasonal labor. Many Louisiana contractor the responsibility for housing, court affirmed the judgment of the district agriculture and non-agriculture businesses transportation, food and wages. court and held that an emailed notice to the use temporary foreign labor to satisfy acute The Thai workers complained of various prime contractor’s lawyer was not sufficient seasonal labor needs. The sugar cane, rice, discriminatory and exploitative behavior notice under La. R.S. 38:2247. crawfish, shrimp, lawn care and hotel indus- both during their recruitment in Thailand tries are just a few examples of Louisiana and at the orchards, including false prom- —Kaile L. Mercuri businesses that use seasonal foreign labor ises of large wages, excessive recruitment Member, LSBA Fidelity, Surety under either the federal H-2A (agriculture fees for the opportunity to work, poor work- and Construction Law Section workers) or H-2B (non-agriculture working conditions, uninhabitable housing, inad- Simon, Peragine, Smith ers) programs. equate and dangerous transportation, and & Redfearn, L.L.P. This case involves charges brought by lack of food. The district court and circuit 1100 Poydras St., 30th Flr. court of appeal divided the allegations into New Orleans, LA 70163

Louisiana Bar Journal Vol. 66, No. 6 447 “orchard-related” and “non-orchard relat- offer provided to all potential H-2A work- 1337 (4 Cir. 1996); McKelvey v. Sec’y of ed” matters. The labor contractor failed to ers. The H-2A program thus expands the U.S. Army, 768 F.3d 491, 495 (6 Cir. 2014); appear to defend itself against the charges, employment relationship between an H-2A Moriarty v. Svec, 233 F.3d 955, 967 (7 Cir. and the district court entered a default judg- “employer” and its workers to encompass 2000); Haworth v. Nevada, 56 F.3d 1048, ment. The growers conceded responsibility housing, meals, and transportation, even 1052 (9 Cir. 1995); and Dalal v. Alliant for the orchard-related work condition although those matters would ordinarily fall Techsystems, Inc., 182 F.3d 757, 761 (10 legations, but disputed responsibility for outside the realm of the employer’s re- Cir. 1999). non-orchard-related matters involving sponsibility. In Gurule, four employees who worked housing, transportation and meals. Id. at 639-40 (citations omitted). at a Houston nightclub filed suit against The district court granted the growers’ The terms of the contract between the their employer, alleging that the com- motion to dismiss the non-orchard-related growers and the labor contractor did not pany had violated the minimum wage and allegations because the EEOC had not change the analysis. The 9th Circuit ac- overtime requirements of the Fair Labor plausibly alleged that the growers were knowledged the contractual delegation of Standards Act (FLSA). One of the employ- joint employers of the Thai workers. The non-orchard-related responsibility to the ees settled his claims shortly after the case court found that non-orchard-related mat- labor contractor, but the growers’ legal ob- was filed, and two other plaintiffs’ claims ters like housing, feeding, transporting and ligations as “employers” under the H-2A were later dismissed on summary judg- paying were outsourced to the labor con- program arise as a matter of law and cannot ment. This left only one employee who pro- tractor, and the growers’ employment rela- be contractually avoided. Id. at 640. ceeded to trial on her FLSA claims. After a tionship with the workers extended only to one-day trial, the jury returned a verdict in orchard-related issues. —Edward T. Hayes favor of the plaintiff and awarded her a to- The 9th Circuit reversed the district Chair, LSBA International tal of $1,131.39 in compensatory damages, court’s finding that the growers were joint Law Section which the district court later doubled as liq- employers of the Thai workers for non-or- Leake & Andersson, L.L.P. uidated damages. The employee then filed chard-related matters. The 9th Circuit ad- Ste. 1700, 1100 Poydras St. a motion seeking an award of $129,565 in opted the common-law agency test for de- New Orleans, LA 70163 attorney’s fees pursuant to the FLSA’s fee- termining joint employers under Title VII shifting provision. See, 29 U.S.C. § 216(b). discrimination actions. The key element of The district court awarded only $25,089.30 the common-law agency test is control, and Labor and in attorney’s fees, citing, inter alia, the fact the 9th Circuit concluded that the growers that the damages awarded to the plaintiff were employers under the H-2A program. Employment were less than each of the four Rule 68 In a typical employment relationship, Law settlement offers she had received from the the employer does not have control over employer over the course of the litigation. non-workplace matters such as housing, An appeal followed. meals, and transportation. Employees are Courts Should Consider The 5th Circuit affirmed. In its opinion, usually expected to find their own housing, the court noted that the “degree of success” provide for their own meals, and arrange Rejected Settlement is commonly recognized as the most im- for their own transportation to and from Offers When Deciding portant factor in determining a reasonable work. Those matters ordinarily do not attorney’s fee. Id. at 261. “In measuring constitute terms and conditions of employ- Attorney’s Fees to that success,” the court continued, “a court ment, so if an employee experiences dis- Prevailing FLSA Plaintiff should ask whether the party would have crimination in obtaining adequate housing, been more successful had his attorney ac- for example, the employer would not be The U.S. 5th Circuit Court of Appeals cepted a Rule 68 offer instead of pressing liable for failing to stop that discrimination. held that district courts may consider a on to trial.” Id. In the case before it, the em- The H-2A program establishes a dif- plaintiff’s decision to reject a Rule 68 settle- ployee had spurned multiple Rule 68 offers ferent relationship between an employer ment offer more favorable than the judg- ranging from $1,500 to $5,000 and decided and the foreign guest workers it employs. ment she ultimately obtained at trial in to proceed to trial. Ultimately, however, As explained above, the H-2A regulations determining the amount of attorney’s fees she was able to recover only $1,131.39 in place on the shoulders of an “employer” that should be awarded. See, Gurule v. Land compensatory damages, meaning that her (a defined term to which we will return Guardian, Inc., 912 F.3d 252, 255 (5 Cir. efforts in the lawsuit had actually been fi- in a moment) the legal obligation to pro- 2018). In doing so, the 5th Circuit joined a nancially counter-productive. A court is not vide foreign guest workers with housing, number of other federal appellate courts — required to “close its eyes to the reality that transportation, and either low-priced meals including the 3rd, 4th, 6th, 7th, 9th and 10th plaintiff’s post-offer legal work produce[d] or access to cooking facilities. Under the Circuits — that have all adopted the same a net loss,” the panel concluded. Id. (quot- regulations, these benefits constitute “ma- view. See, Lohman v. Duryea Borough, 574 ing 12 Charles Alan Wright and Arthur R. terial terms and conditions of employ- F.3d 163, 167-69 (3 Cir. 2009); Sheppard v. Miller, Fed. Practice and Proc. § 3006.2 ment,” which must be stated in the job Riverview Nursing Ctr., Inc., 88 F.3d 1332, (3d ed. 2018)). Thus, because the district

448 April / May 2019 properly considered the rejected Rule 68 ing, casing, equipment, pipelines or other however, finding that Marlborough failed offers in ordering a substantial reduction to constructions situated on the lease. Baker to produce any evidence showing that the plaintiff’s fee award, the 5th Circuit af- Hughes denied that Marlborough was en- other wells (aside from the No. 1 and No. firmed the district court’s judgment. titled to this relief. In support of its position, 3 wells) were not maintaining the lease. Marlborough filed a motion for summary Because Marlborough failed to meet its —Wm. Brian London judgment. After a hearing, the trial court burden of proof on the expiration of the Member, LSBA Labor and Employment ruled in Marlborough’s favor, finding that lease, the appellate court refused to accept Law Section the Baker Hughes judgment did not have Marlborough’s argument. The appellate Fisher & Phillips, L.L.P. any effect as to: (1) Marlborough’s succes- court further found that Baker Hughes’ lien Ste. 3710, 201 St. Charles Ave. sors, lessees and assigns; and (2) the min- and judgment affected only the lessee’s in- New Orleans, LA 70170 eral servitude owned by Marlborough af- terests under the existing lease, not any hy- fecting the leased property described in the drocarbons owed to the lessor, nor would judgment. it affect any new lease that Marlborough Baker Hughes appealed to the Louisiana might grant. Mineral 1st Circuit Court of Appeal. Baker Hughes Law enumerated four assignments of error, but Interruption of only the first two assignments were considered by the appellate court. In its first Prescription of Non-Use; two assignments of error, Baker Hughes Shut-In Well contended that the trial court erred in grant- LOWLA Lien; Mineral ing summary judgment because the record Gilmer v. Principle Energy, L.L.C., 52, 218 Servitude showed that it fully complied with the re- (La. App. 2 Cir. 9/16/18), 256 So.3d 1139. quirements of LOWLA when it secured its In April 2008, plaintiff signed a royalty Marlborough Oil & Gas, L.L.C. v. Baker lien and obtained the judgment at issue. In conveyance of 50 percent of 1/5th of 8/8ths Hughes Oil Field Operations, Inc., ____ reviewing the statutory requirements set interest in six tracts to Regal Energy, L.L.C., So.3d ____ (La. App. 1 Cir. 11/14/18), 2018 forth in LOWLA, the appellate court agreed which later became Principle Energy, WL 5961770. and found that Baker Hughes did comply L.L.C. The conveyance provided that the Marlborough Oil & Gas, L.L.C., owned with all of the requirements of LOWLA deed “shall have a prescriptive period of a mineral servitude in the Baton Rouge area. — it filed its lien on time; its lien contained three years,” rather than the usual 10 years Two wells were located on the property — the proper lease description; etc. Thus, the provided by Louisiana mineral law. It also the Marlborough No. 1 and the Marlborough appellate court ultimately found that the provided that a shut-in well could perpetu- No. 3 (wells). Northwind Oil & Gas, Inc. Baker Hughes judgment, in fact, did affect ate the deed. obtained a lease from Marlborough to oper- the lease as a whole, not just the well for Six months later, XTO Energy spud- ate the wells. In 2012, Baker Hughes pro- which the services and materials were pro- ded the E.B. Brown No. 1 well on plain- vided certain labor, equipment, machinery vided (here, the No. 3 well). tiff’s property. When the well was tested, and materials to Northwind in connection Marlborough argued that the Baker it showed that it could produce 1,156 with its operation of the Marlborough No. Hughes judgment should not have any ef- MCF of gas per day, but it was never put 3 well (No. 3 well). Northwind failed to pay fect on the Marlborough servitude because into production because a pipeline was not Baker Hughes more than $412,000 for ser- the operating interest giving rise to Baker available. Thus, the well was shut-in. In vices rendered. Hughes’ lien and judgment expired. The May 2009, the Louisiana Commissioner Baker Hughes later filed a lien pursu- appellate court dismissed this argument, of Conservation created a compulsory unit, ant to the Louisiana Oil Well Lien Act (LOWLA, La. R.S. 9:4861-4873) in the mortgage records of West Baton Rouge Parish. It also filed a lawsuit and a notice of lis pendens regarding the lawsuit in the mortgage records. In 2013, Baker Hughes filed and prevailed on a motion for summary judgment against Northwind. Baker Hughes was awarded $412,415.54 in damages plus attorney’s fees, interest and costs by the trial court. Four years later, Marlborough sought a declaratory judgment that the Baker Hughes judgment did not affect or encum- ber Marlborough’s servitude or any tub-

Louisiana Bar Journal Vol. 66, No. 6 449 designating the Brown well as the unit well. Tort Claims Act (FTCA). The magistrate that found no standard of care had been The Davis well, a later-drilled producing judge disallowed one report but accepted breached. The defendant doctor’s re- well, was named as an alternate unit well. the testimony of the other expert over sponse to the appeal included the as- Plaintiff attempted to have the operator the defendant’s objection. The defendant sertion that the trial court had erred in release the deed on prescription grounds argued that Texas law required medical denying his exception of prescription, because more than three years had passed experts in malpractice suits to be “prac- contending that the patient had sued his since the royalty deed was conveyed and ticing medicine” at the time of the testi- employer (VA Hospital) but did not name there was no production. When that ef- mony or at the time the claim arose; how- him as a defendant until years later. The fort failed, plaintiff sued. The parties filed ever, the magistrate judge determined that prescription exception was denied prior cross-motions for summary judgment state law did not apply to a FTCA claim. to the trial, and the defendant’s writ to the based on prescription of non-use. The trial The district judge disagreed, ruling that a appellate court was denied. The appellate court found that prescription had been in- federal court hearing a malpractice claim court noted, however, that the previous terrupted pursuant to La. R.S. 31:90-91 by under the FTCA was required to apply writ denial did not preclude reconsidera- the Commissioner’s order creating a unit on Federal Rules of Evidence and state court tion of the issue on appeal, nor did it pre- which there existed a shut-in well capable rules of evidence when determining the vent the appellate court from reaching a of producing in paying quantities. Plaintiff competency of medical experts. Thus, different conclusion. appealed. The Louisiana 2nd Circuit Court both experts were stricken, and summary The patient had been treated by the de- of Appeal affirmed, holding that prescrip- judgment was granted. fendant at a VA hospital, and the hospital tion of non-use had been interrupted on The appellate court noted that one had been timely sued. The plaintiff did not (and had commenced anew from) the date section of Texas’ requirements allowed learn until more than a year later that the that the unit was created. courts to “depart from those criteria if, defendant doctor was not an employee of under the circumstances, the court deter- the VA but instead was an independent —Keith B. Hall mines that there is a good reason to admit contractor. However, the appellate court Member, LSBA Mineral Law Section the expert’s testimony.” Overall, the ap- noted that when the patient presented to Director, Mineral Law Institute pellate court reasoned that not all contin- the VA, he was treated by the defendant, Campanile Charities Professor gencies had been considered and wrote: “who was wearing VA medical center at- of Energy Law tire,” and that the VA defended against the LSU Law Center In summary, the district court patient’s claims until advising him, more 1 E. Campus Dr. was correct in its determination than a year after the claim was filed, that Baton Rouge, LA 70803-1000 that Federal Rule of Evidence 601 the defendant was not a VA employee. and requires that Coleman’s proffered Considering that it would not be necessary Colleen C. Jarrott expert witness must satisfy the to name the defendant doctor if he were Member, LSBA Mineral Law Section state law standards for expert wit- a VA employee, the appellate court found Baker, Donelson, Bearman, ness competency in addition to the that contra non valentem applied to stop Caldwell & Berkowitz, P.C. Federal Rule of Evidence 702 stan- the running of prescription, affirming the Ste. 3600, 201 St. Charles Ave. dards for the admissibility of ex- trial court’s denial of the defendant’s ex- New Orleans, LA 70170-3600 pert witness testimony. However, ception. Nevertheless, the appellate court because the district court erred in then decided that the jury verdict was its determination that it was un- neither manifestly erroneous nor clearly disputed that Coleman’s proffered wrong, and the jury’s no-breach verdict Professional expert failed to meet those state was affirmed. Liability law standards, and also [because the district court] failed to consider Admissibility of Panel whether there was “good reason” for excusing that requirement, we Opinions VACATE and REMAND for fur- Competency of Expert ther proceedings consistent with Sanderson v. Tulane Univ. Hosp. & Witnesses: Whose Rules this opinion. Clinic, 18-0588 (La. 6/15/18), 245 So.3d 1043. Apply? The trial court disallowed the intro- Prescription duction into evidence of the panel opin- Coleman v. United States, 912 F.3d 824 ion after deciding that there was a conflict (5 Cir. 2019). Mantiply v. Hoffman, 18-0292 (La. App. of interest between a panel member and In response to the defendant’s motion 3 Cir. 1/16/19), ____ So.3d ____, 2019 a defendant. In this 4-3 per curiam opin- for summary judgment, the plaintiff of- WL 208738. ion, the Louisiana Supreme Court opined fered reports from two medical experts The patient appealed a jury verdict that, absent “allegations that the medi- to support her claims under the Federal

450 April / May 2019 cal review panel superseded its statutory whether the electrodes were purchased show whether these things were con- authority,” the panel opinion is subject for the purpose of inclusion into the nected to their surrounding structures to “mandatory admission.” The major- taxpayer’s end product. The board held or if the things could be moved without ity concluded that “[t]he mere fact that a that the taxpayer’s use of the electrodes substantial damage to them. Based on member of the panel may not have dis- was to heat scrap metal, the taxpayer did the photographic evidence, the board closed a potential conflict of interest is not not show the electrodes were purchased concluded that the repairs to the electric- a ground for automatic exclusion of the for the purpose of adding carbon to the arc furnace were not taxable as the item panel’s opinion,” adding that the plaintiff taxpayer’s steel, and thus the addition was immovable because of its thorough would have “an adequate opportunity to of carbon from the electrodes was in- connection to the mill and substantial explore any potential bias” at the trial dur- cidental to the electrodes use as a heat damage would be caused by its removal. ing cross-examination, thus allowing the source. Therefore, the board held the factfinder to assign appropriate weight to electrodes did not qualify for the Further —Antonio Charles Ferachi the panel opinion. Processing Exclusion. Member, LSBA Taxation Section Second, the taxpayer sought quali- Director, Litigation Division —Robert J. David fication under the Further Processing Louisiana Department of Revenue Gainsburgh, Benjamin, David, Exclusion for various chemicals that 617 North Third St. Meunier & Warshauer, L.L.C. are injected into the scrap metal after Baton Rouge, LA 70821 Ste. 2800, 1100 Poydras St. the scrap metal melts into a liquid state, New Orleans, LA 70163-2800 after the taxpayer hired the third party Property Tax and Use to remove these excess chemicals from the taxpayer’s furnace (slag chemicals). Tax Developments Specifically, the issues raised were Keep Things Interesting whether the slag chemicals were “actually produced for resale, and whether the In a property tax sale case, Deichmann Slag Chemicals were purchased for the v. Moeller, 18-0358 (La. App. 4 Cir. purpose of inclusion in the Taxpayer’s Taxation 12/28/18), ____ So.3d ____, 2018 WL end-product.” The board first deter- 6823153, the 4th Circuit Court of Appeal mined that the agreement between the held that a tax sale was an “absolute nul- taxpayer and a third party was a sale for lity,” finding that the pre-sale tax-notifi- resale under Louisiana tax law because cation requirements were not met. The Steel: Further the taxpayer gave possession of the slag court of appeal was reviewing a district chemicals in exchange for valuable ser- court holding declaring the sale a “nul- Processing Exclusion vices. The taxpayer received a benefit in lity,” without further comment. The the form of cheap access to raw materi- district court also held that the tax-sale Arcerlor Mittal Laplace, L.L.C. v. St. als. Next, the board determined that the purchaser was entitled to recover taxes John the Baptist Par. Sch. Bd.., BTA slag chemicals qualified for the Further and costs paid as well as penalties and Docket No. L00187 (1/8/19). Processing Exclusion as they were pur- interest. Because the lower court’s deci- Arcerlor Mittal Laplace, L.L.C. (tax- chased for the purpose of inclusion in sion was premised on a finding that the payer) disputed the taxability of several the slag because the evidence showed an property was being redeemed, the appli- transactions surrounding its production intent to produce and exchange slag, and cable penalty rate was 5 percent and 12 of low-carbon steel at its mill in LaPlace, the taxpayer purchased the slag chemi- percent interest per year. As part of the La. The taxpayer raised three principle cals with the intention that they would lower court’s decision, the sale would be issues as detailed below. Based thereon, “oxidize with impurities in molten scrap null only if, within one year, the owner the taxpayer sought various refunds. metal and form Slag.” made full and complete payment to the First, the taxpayer asserted that sales Third, the taxpayer sought to classify purchaser. tax was excluded on its purchases of cy- the (1) electric-arc furnace, (2) natural- The court of appeal, however, re- lindrical carbon electrodes used to dis- gas-fired furnace, (3) caster, (4) flock- versed the lower court’s findings, spe- solve carbon into scrap metal under the ing tank and (5) truck scale located in cifically finding that the sale was an further-processing exclusion provided the steel mill as immovable property so “absolute nullity” on the basis that the by La. R.S. 47:301(10)(c)(i)(aa) (Further repairs to these items would be non-tax- pre-tax sale publication requirements Processing Exclusion). The Louisiana able services. First, the board concluded had not been satisfied, resulting in a vio- Board of Tax Appeals (board) held that that it could not be determined whether lation of the owner’s due process rights. the carbon from the electrodes was a the caster, flocking tank, natural-gas- As the sale was an absolute nullity, no “recognizable, identifiable and beneficial fired furnace and truck scale were im- penalty was applicable, and the interest component of the Taxpayer’s end prod- movable because the photographs of the rate was reduced to 10 percent. Finally, uct.” The board found the real issue was steel mill submitted as evidence did not

Louisiana Bar Journal Vol. 66, No. 6 451 the appellate court noted that there is separate ownership. The 3rd Circuit re- no requirement under the circumstances manded the case to the district court for that payment be made within one year Trusts, Estate, further proceedings on this issue. as, unlike governmental liens that must Probate & be repaid within one year, there is no Immovable How Much Incapacity Is similar requirement under the law for a Property Law repayment period in connection with an Required to Be Forced absolute nullity. Heir? For those following use-tax develop- Who Owns the Lift ments (generally, use taxes apply in those Station? In Succession of Heyd, 18-0385 (La. instances when sales taxes don’t), Frank’s App. 3 Cir. 12/6/18), 261 So.3d 74, a Int’l, L.L.C. v. Kimberly Robinson, BTA In Fontenot v. Town of Mamou, 18- will was challenged on the grounds that Dkt. No. 10050D (12/11/18), stands 0301 (La. App. 3 Cir. 12/19/18), 2018 a permanent incapacity rendered a child for the proposition that there is no use WL 6630268, the 3rd Circuit analyzed a forced heir. The will stated that the tes- tax on the importation of property if the ownership of a lift station that was tator had no forced heirs. Appellant pre- there is no “use” in the state. In Frank’s maintained by the Town that was lo- sented evidence that he was gored by a International, the Louisiana Board of cated primarily on Fontenot’s property. goat and had to undergo a craniotomy, Tax Appeals held that manufactured or Although nothing was filed in the con- which caused personality changes, cogni- purchased tools stored in the state for veyance records regarding the lift station, tive impairment, seizures and a determi- use in customer jobs or for the taxpayer’s the mayor stated he was unaware of any nation of disability by the Social Security own use in federal waters were entitled prior owner disputing the Town’s owner- Administration, the State of Louisiana to a use tax refund because the tools were ship or denying access to the lift station. and the insurer for his then-employer. not stored for use or consumption within The trial court held the Town acquired Notwithstanding, the trial court held that Louisiana. The board also concluded that ownership of the immovable property the appellant was not a forced heir. there were alternative grounds for ex- through 30-year acquisitive prescription The appellant’s doctor stated that the empting the tools from use tax because because the Town possessed and main- appellant had not refilled his seizure the manufactured tools were manufac- tained the lift station since 1982. medication in years and had no medical tured for export outside Louisiana, the A precarious possessor is one who ex- limitations placed on him. The doctor purchased tools were purchased for re- ercises possession with permission from further stated that appellant’s “disabil- sale or lease to the taxpayer’s customers, the owner, and only possesses for himself ity, if currently existent, is minimal and and the tools intended for use in federal after giving the owner actual notice of its does not materially affect the handling waters were exempt because they were intent to possess as owner. Acquisitive of his affairs.” Evidence was presented purchased or manufactured for first use prescription does not run in favor of a that appellant owned and operated an ex- offshore beyond the territorial limits of precarious possessor. While evidence otic animal breeding and sales business. any state. In so holding, the board also was presented that the landowners per- Another doctor stated the appellant was noted that the Department failed to re- mitted construction of the lift station and incapacitated only during the time of a quest or contest the taxpayer’s support- did not interfere with maintenance or op- seizure. Consequently, the 3rd Circuit af- ing documentation related to the refund eration of it, there was no evidence pre- firmed, finding that appellant was not a claim and that the Department apparently sented that the Town gave actual notice forced heir because of his ability to work. denied the refund claim solely because of of its intent to possess as owner; there- the taxpayer’s participation in a tax am- fore, the Town’s precarious possession —Amanda N. Russo nesty program. never terminated. Accordingly, the 3rd Member, LSBA Trusts, Circuit held the Town was not the owner Estate, Probate —Jaye A. Calhoun of the land beneath the lift station. and Immovable Property Section Member, LSBA Taxation Section Fontenot also asserted ownership of Sher Garner Cahill Richter Klein & Kean Miller, LLP the lift station on the grounds that build- Hilbert, L.L.C. Ste. 3600, 909 Poydras St. ings and other constructions permanently Ste. 2800, 909 Poydras St. New Orleans, LA 70112 attached to the ground are presumed to New Orleans, LA 70112 and be owned by the ground owner. If con- William J. Kolarik II structed on the land of another with his Kean Miller, LLP consent, the constructions belong to the Member, LSBA Taxation Section person who constructed them only if that Ste. 700, 400 Convention St. separate ownership is evidenced by an in- Baton Rouge, LA 70802 strument filed for registry. The appellate record contained no recorded evidence of

452 April / May 2019 Young LAWYERS CHAIR’S MESSAGE... SPOTLIGHT

CHAIR’S MESSAGE

This Has Been A Great Ride! By Dylan T. Thriffiley

t is hard to be- al and career development; message and not mention a few notes lieve that an- ► be a respected and effective ad- of gratitude. Thank you to Peter, other bar year vocate on behalf of young lawyers; and Thompson and Margot for all your has come and ► strengthen our governance ca- love and support this year. You may not Igone. This year was pacity to serve our members and our always understand what I’m doing or certainly the fast- vision. why but thank you for having my back, est, but I’ve been These four goals have been the driv- no matter what. told that this will ing force behind many of our actions Thank you to Brad Tate for setting continue to be true. this year, and we are grateful to the the stage for this Council to become Preparing this mes- Dylan T. Thriffiley LSBA and Board of Governors for al- what you knew it was capable of being, sage has prompted lowing us the opportunity to work with for making the leadership transition so me to reflect on the past year and con- Elizabeth to map it out. seamless and for being my best friend sider what our Young Lawyers Division We spent most of the fall prepar- since law school visit day in 2004. Still (YLD) Council has accomplished. ing for the Young Lawyers Conference can’t believe you beat me to the finish We kicked off the year with a great in January. I won’t bore you with my line . . . . first meeting at the Annual Meeting in accolades about that event again but, Thank you to Kelly Ponder, our Destin, Fla., and then promptly got to suffice it to say, that I have never been LSBA staff liaison and the backbone of work. In July, we surveyed the mem- prouder of the YLD Council than I was this Council. Without your dedication bership and were able to ask questions on that day. We will continue to refine (and organization!), we might not have specific to young lawyers, which pro- and develop the conference in the years made it past orientation this year. You vided us with incredible insight into to come and I can’t wait to see what it have become one of my dearest friends the interests and needs of our members. looks like in 2020 and 2021. and I have had so much fun working Perhaps the most important takeaway Our executive team has functioned with you. for all of us was the significant lack of as a true team this year and we have had Thank you to Marsha McNulty, awareness among young lawyers of the a great time working together. Council who might be the ONLY person in the depth and breadth of the benefits that meetings have been substantive and state of Louisiana who actually reads the association and the YLD can pro- productive, our district reps and other my Chair’s Message and who always vide. council members have been engaged, makes my day when she sends her In September, we held the first-ever and we have all benefitted from the mo- daughter a note to say, “I saw Dylan in LSBA Young Lawyers Division strate- mentum. As I pass the baton to Scott the Bar Journal!” gic planning session and, with the help Sternberg, I know that this group of in- Last, but certainly not least, thank of consultant Elizabeth Derrico, had a dividuals is going places and I’m happy you to Mike Patterson and Christine great time mapping out the plan for the to have had the opportunity to play a Lipsey for the encouragement back in next three years of the YLD. We devel- very small part in it. 2008 to get involved with the LSBA. oped four goals for the YLD to guide us As many of you know, writing this This has been a great ride and I’m through 2021, which are: message every other month has prob- proud of what we have accomplished. ► provide young lawyers with an ably been my least favorite part of the Thank you all for the opportunity to opportunity for meaningful service and job and I’m happy to see that respon- serve. engagement; sibility come to an end. But I would ► foster young lawyers’ profession- be remiss to wrap up my last chair’s

Louisiana Bar Journal Vol. 66, No. 6 453 YOUNG LAWYERS SPOTLIGHT Stephanie Bond Hulett handling Civil Service discipline and ing her community through her work Denham Springs appeals, and occasionally assisting in with Jefferson Baptist Church, where prosecution of the city’s criminal cases. she is Missions Minister and Women’s The Louisiana She is proud to serve her hometown and Minister. She leads mission teams State Bar Assoc- witness firsthand its recovery from the around the globe, sharing the Gospel iation’s Young Great Flood of 2016. with people of all ages and nationali- Lawyers Division She earned a BS degree in psy- ties. She enjoys teaching women’s Bible Council is spotlight- chology in 2006 from Louisiana State studies and assisting her husband with ing Denham Springs University and her JD degree in 2010 the church’s Student Ministry. attorney Stephanie from LSU Paul M. Hebert Law Center. In her free time, she travels with her Bond Hulett. Prior to serving as city attorney, she family and writes in partnership with Hulett has practiced with deGravelles, Palmintier, her aunt. Their first children’s book, served as city at- Holthaus & Fruge in Baton Rouge and The Animals’ Secret Krewe, celebrates Stephanie Bond clerked for Judge John W. deGrav- Louisiana wildlife and culture. torney in Denham Hulett Springs since 2015. Her practice is elles, U.S. District Court for the Middle Hulett lives in Baton Rouge with her varied, including drafting city ordi- District of Louisiana. husband, Jeff, and their daughter. nances and ensuring their enforcement, Hulett is passionate about serv- CLE during Using Themes & Headlines to Persuade the Jury

Friday, April 26, 2019 - Sheraton New Orleans Hotel • 500 Canal St.

Voir Dire: Selling Themes and his year’s CLE during Jazz Fest program focuses on Deselecting Jurors Speakers the art of persuasion. Respected and experienced trial James A. Brown lawyers share their hard earned knowledge on the best The First Movement: Thematic Seminar Co-Chair Opening Statements Liskow & Lewis • New Orleans tips and techniques for successful persuasion. Speakers Hon. Randall L. Bethancourt willT explore strategies for persuading juries, persuading judges Themes and Headlines in 32nd Judicial District Court • Houma through motions and oral arguments, and the persuasive use of experts. Direct and Cross Examination Hon. Paul A. Bonin JAMES BROWN, seminar chair, coordinated this program to help Orleans Parish Criminal District Court • New Orleans lawyers of all skill levels obtain the necessary skills for a successful Simplifying Expert Testimony Hon. Walt I. Lanier III trial outcome. Young lawyer or seasoned veteran, plaintiff or defense with Headlines and Themes 1st Circuit Court of Appeal • Thibodaux counsel, this program will benefit from this valuable seminar. Don’t Hon. M. Lauren Lemmon miss this day of persuasive skills that will make you more effective in The Final Movement: Thematic 29nd Judicial District Court • Hahnville Closing Arguments Hon. Juan W. Pickett your practice. Earn a maximum of 6.5 hours of CLE credit, including 32nd Judicial District Court • Houma the required 1 hour of professionalism! Professionalism From the Trial Timothy F. Daniels Irwin Fritchie Urquhart Bench: What Works and Doesn’t & Moore • New Orleans Work in Jury Trials J. Jerry Glas Deutsch Kerrigan • New Orleans Kent A. Lambert Baker, Donelson, Bearman, Caldwell & Berkowitz • New Orleans Using Themes and Amy Groves Lowe Headlines Taylor, Porter, Brooks & Phillips • Baton Rouge to Persuade Cherrell Simms Taplin the Jury Liskow & Lewis • New Orleans

For more information or to register, visit www.lsba.org/CLE

454 April / May 2019 ETHICSOpinions By Rules of Professional Conduct Committee PUBLIC OPINION 19-RPCC-021

PUBLIC Ethics PUBLIC Opinion protect client information and confiden- 1 tiality. Lawyers also have an obligation Advisory Opinions 19-RPCC-021 to diligently weigh the use of potential technology considering variables such These Public Opinions have been pre- Lawyer's Use of as risk and a client’s individual capacity pared by the Publications Subcommittee Technology or availability to use that technology. of the Louisiana State Bar Association’s This Committee has considered the ethical ramifications stemming from (LSBA) Rules of Professional Conduct A lawyer must consider the benefits and a lawyer’s use of technology when Committee. The issues and topics cov- risks associated with using technology practicing law. In its consideration, the ered within these opinions originate in representing a client. When a lawyer Committee believes that the Louisiana from actual requests for ethics advi- uses technology in representing a client, Rules of Professional Conduct most sory opinions submitted to the Ethics the lawyer must use reasonable care to likely5 implicated by a lawyer using Advisory Service by lawyer members protect client information and to assure technology are Rules 1.1(a),6 1.3,7 1.4,8 of the Association. that client data is reasonably secure and 1.6,9 1.15(a)10 and 5.3.11 In selecting topics and issues for pub- accessible by the lawyer.2 lication, the Publications Subcommittee has reviewed opinions referred to it Technology is constantly evolv- Competence and Diligence by Ethics Counsel and/or panel mem- ing and changing the practice of law. bers of the Ethics Advisory Service for Lawyers’ practices and the tools they When a lawyer contemplates the purposes of determining whether the use have changed. Consider typewrit- use of technology, that lawyer should opinions submitted address issues of ers versus computers, or regular mail remember Rules 1.1 and 1.3 of the interest, importance and/or significance and fax machines as compared to email. Louisiana Rules of Professional Conduct to the general bar and which are not Some reasons for a lawyer to consider requiring competence and diligence. highly fact-sensitive. The Publications the benefits of accepting technological The lawyer should carefully evaluate Subcommittee has made every effort to changes and adopting different methods whatever technology is being consid- promote and maintain confidentiality of to practice law include “saving money, ered and whether client information will the parties involved in the original re- saving time, or improving quality.”3 be reasonably secure and retrievable by quests. Technology and the Internet can modify the lawyer. Whether it might be a disas- Questions, comments or suggestions the way a lawyer practices, affecting ter like a flood or fire or even a breach regarding the opinions, the publication communication, practice management, by a hacker, a lawyer using technology process or the Ethics Advisory Service handling evidence and data storage. should evaluate risks to a client’s files may be directed to Eric K. Barefield, How a lawyer should handle various and information, as well as the lawyer’s Professional Programs Ethics Counsel, aspects of technology, including but not ability to practice without an incapaci- Louisiana State Bar Association, 601 limited to email communication with tating interruption. For instance, does St. Charles Ave., New Orleans, LA clients or others and the handling of dig- the lawyer have “back-up” systems to 70130; direct dial (504)619-0122; fax ital or electronic client files or informa- retain/recover digital information in the (504)598-6753; email ebarefield@lsba. tion, has been discussed in ethics opin- event of a service interruption? org. ions and articles around the country.4 An article in GPSOLO Magazine To review Published Opinions (to The consensus is that if a lawyer is quotes the Director of the FBI in 2012 date) online, go to: www.lsba.org/goto/ going to use technology, that lawyer when he stated at a conference that “I EthicsOpinions. Click on “Published has a duty to comply with Rules 1.1, am convinced there are only two types Opinions.” 1.3, 1.4, 1.6 and 1.15 of the American of companies; those that have been 12 Bar Association (ABA) Model Rules hacked and those that will be.” As an of Professional Conduct. Lawyers must example, in 2016, a District Attorney’s use technology competently and dili- office in Pennsylvania paid ransom gently. Lawyers have an obligation to to regain access to its computers. The criminals used malware to hold the

Louisiana Bar Journal Vol. 66, No. 6 455 DA’s office computer network hostage placing phone calls and letters. Lawyers “cloud computing,” allowing a lawyer and were later arrested.13 In 2012, the first should be cognizant regarding a po- to be more mobile and potentially re- ABA amended Comment 8 to Rule 1.1 tential client’s capacity or ability to use ducing overhead costs. With Internet of the ABA Model Rules of Professional technology. In some cases, use of ad- access, lawyers can access client data Conduct to add language requiring that vanced technology with an elderly, un- and/or store data practically anywhere. competence included an expectation derprivileged, unknowledgeable or rural Cloud computing could be defined as that a lawyer should be knowledgeable client with limited Internet access might using the Internet for the electronic of both the benefits and risks of the use not be reasonable. A lawyer may want transfer of data and/or storage on a com- of technology.14 While Louisiana does to consider the benefit of advising - cli puter or server that is not located in a not have comments to its Rules, Rules ents regarding potential risks associated lawyer’s office but in an offsite- loca 1.1(a) and 1.3 are straight-forward even with using technology, such as having tion. As cited in Pennsylvania’s ethics without a specific technological compe- an inadequate password or other people opinion, a Maximum PC magazine ar- tence/diligence requirement. If a lawyer being aware of their password, as com- ticle described “cloud computing” as is not comfortable working with tech- pared to in-person consultations or tra- “a fancy way of saying stuff is not on nology, the lawyer should consider the ditional communication options. When your computer.”16 As client information benefits of obtaining advice from anoth- very sensitive information is being com- is sent offsite using the “cloud,” a law- er lawyer or consultant knowledgeable municated, it may be appropriate to con- yer has delegated to others some level about both technology and a lawyer’s sider encryption, as well as to provide of control and security of that data. As ethical and professional responsibili- the option of communicating by means a result, the ABA modified its rules in ties. If relying on a non-lawyer, Rule 5.3 of more traditional methods. If a lawyer recent years to address technological provides: “With respect to a non-lawyer elects to use technology, a lawyer has changes affecting the way lawyers prac- employed or retained by or associated an obligation to use that technology in a tice. Louisiana, following the ABA’s with a lawyer: . . . (b) a lawyer having manner that meets all reasonable ethical lead on this issue, amended Rule 1.6 direct supervisory authority over the and professional standards, as well as to of the Louisiana Rules of Professional non-lawyer shall make reasonable ef- advise a client regarding potential risks. Conduct in January 2015 specifically forts to ensure that the person’s conduct Many lawyers use computers to transmit to add Part “c”: “A lawyer shall make is compatible with the professional obli- email, pleadings or other documents. reasonable efforts to prevent the inad- gations of the lawyer;. . .” Accordingly, Whether using computers at the office or vertent or unauthorized disclosure of, or when a lawyer decides to use a non- using a mobile device, a lawyer should unauthorized access to, information re- lawyer technology service provider or always consider whether client informa- lating to the representation of a client.”17 computer consultant, that lawyer should tion is reasonably secure and retrievable Rules 1.6 and 1.15 of the Louisiana take reasonable steps to ensure that ethi- by the lawyer. Failure of a lawyer to use Rules of Professional Conduct require cal standards and responsibilities of the basic minimum standards for security, a lawyer to protect client confidentiality lawyer are met by the conduct of the such as secure passwords, firewalls and and client property, stating: “A lawyer service provider or consultant. Failure encryption, may put a lawyer at risk of shall not reveal information relating to to use technology competently could a potential violation of the Louisiana the representation of a client unless the put a law firm at risk both ethically and Rules of Professional Conduct. Strong client gives informed consent, the dis- financially if the conduct falls below the passwords should be used on all com- closure is impliedly authorized in order applicable standard of care. puters and mobile devices, such as smart to carry out the representation or the phones and tablets. When using mobile disclosure is permitted by paragraph Communication devices, a lawyer should consider how (b). . .” and “. . .(a) A lawyer shall hold secure a network might be and whether property of clients or third persons that Lawyers have a duty to communi- the option to secure or delete data re- is in a lawyer’s possession in connection cate with clients. Rules 1.4(a)(2) and (3) motely will be available if the mobile with a representation separate from the of the Louisiana Rules of Professional device is misplaced or stolen. If a data lawyer’s own property . . . Other prop- Conduct state the communication obli- breach of material client information erty shall be identified as such and ap- gations of a lawyer: “. . . a lawyer shall . . . were to occur, a lawyer would not only propriately safeguarded. . . .” (2) reasonably consult with the client need to take reasonable steps to address While there are always risks with about the means by which the client’s the problem, but also to disclose the fact the use of technology, a lawyer needs objectives are to be accomplished . . .;” of the breach to the client.15 to weigh the benefits of using technol- and “. . . (3) keep the client reasonably ogy versus any risks that are associated informed about the status of the mat- Confidentiality with its use. For example, sending digi- ter; . . . .” How lawyers choose to com- tal files in a non-secure format could al- municate with clients is changing, with The modern practice of law is evolv- low the inadvertent release of informa- emails and text messages sometimes re- ing with the use of technology, such as tion a lawyer or client would not want shared by the unintentional disclosure

456 April / May 2019 of “metadata,” which is information (b) a lawyer having direct supervisory tionship subject to international law? embedded in electronic documents. The authority over the non-lawyer shall The questions listed above are ex- ABA issued an ethics opinion regarding make reasonable efforts to ensure that amples for a lawyer to consider when those risks in 2006.18 Additionally, email the person’s conduct is compatible with deciding whether to use a particular “web bugs” could track lawyer-client the professional obligations of the law- type of technology, software or service communications. An Alaska ethics opin- yer;. . . .” Accordingly, when a lawyer provider. Updated information about ion has suggested that a lawyer’s surrep- decides to use a non-lawyer technology various types of technology and a law- titious use of email “bugs” or tracking service provider or computer consultant, yer’s practice can be found at the ABA’s of opposing counsel’s email communi- that lawyer should take reasonable steps Legal Technology Resource Center. 21 cations with his or her client would be to ensure that ethical standards and re- Additional resources and information an ethical violation.19 Irrespective of sponsibilities of the lawyer are also met about technology can be found on the the wisdom of this conclusion, lawyers by the conduct of the service provider or Louisiana State Bar Association’s web- must be aware that email “opens” and consultant. site.22 “forwards” may be tracked and act accordingly. There is always a risk that Issues to Consider When Conclusion a lawyer’s computer system could be Using a Vendor breached. Law firms face the same is- A lawyer must consider the benefits sues as other companies when it comes Technology continues to evolve, and and risks associated with using technol- to defending against cyber-attacks or a lawyer must use due diligence when ogy in representing a client. When a hacking and protecting confidential data. considering various technological op- lawyer uses technology in representing Additionally, lawyers have ethical rules tions or providers. For example, when a client, the lawyer must use reasonable that require confidentiality of client in- using various technology vendors for care to protect client information and to formation. Thus, if a lawyer chooses to things such as a cloud-based practice assure that client data is reasonably se- use technology in his/her practice, basic management system or for data stor- cure and accessible by the lawyer. issues must be addressed. The onus is on age, a lawyer must review and consider the lawyer to have technological compe- the service agreement. Some issues and FOOTNOTES tence or competent assistance to make questions a lawyer may want to consider sure clients’ confidential information were outlined in an ethics opinion from 1. The comments and opinions of the or files are reasonably secure and read- the Ohio State Bar:20 Committee — public or private — are not binding on any person or tribunal, including, but not ily accessible, asking questions such as: ► What safeguards does the vendor Are fundamental security measures be- limited to, the Office of Disciplinary Counsel have in place to prevent confidentiality and the Louisiana Attorney Disciplinary Board. ing met? Are there redundant back-up breaches? Public opinions are those which the Committee methods for the storage and retrieval of ► Does the agreement create an has published — specifically designated thereon as “PUBLIC” — and may be cited. Private opin- digital data? Has due diligence research enforceable obligation on the vendor’s been conducted on prospective service ions are those that have not been published by the part to safeguard the confidentiality of Committee — specifically designated thereon as providers? data? “NOT FOR PUBLICATION” — and are intended ► Do the terms of the agreement to be advice for the originally-inquiring lawyer only and are not intended to be made available for Supervision, Delegation or purport to give “ownership” of the data public use or for citation. Neither the LSBA, the Outsourcing to the vendor, or is the data merely sub- members of the Committee or its Ethics Counsel ject to the vendor’s license? assume any legal liability or responsibility for the Some lawyers are more comfortable ► How may the vendor respond to advice and opinions expressed in this process. 2. In addition to confidentiality issues, a law- working with and understanding tech- governmental or judicial attempts to ob- yer should consider what happens if a dispute nology than others. While a lawyer can- tain disclosure of your client data? arises with a service provider, what format the not relinquish the ultimate responsibil- ► What is the vendor’s policy re- data is in, and who owns or retains the rights to ity over a client’s case, nothing prohibits garding returning your client data at the the digital data. 3. Cloud Computing for Criminal Lawyers: It’s a lawyer from receiving assistance with termination of its relationship with your Not the Future Anymore (2016), Dane S. Ciolino, technology and related issues from a firm? Alvin R. Christovich Distinguished Professor of lawyer’s staff or consultants. For ex- ► What plans and procedures does Law, Loyola University New Orleans College of ample, a lawyer may need assistance re- the vendor have in case of natural di- Law. 4. Law Sites, 25 States Have Adopted Ethical garding eDiscovery or prevention of the saster, electronic power interruption or Duty of Technology Competence (March 16, spoliation of evidence involving tech- other catastrophic events? 2015); ABA Formal Opinion 06-442, Review and nology. However, if relying on a non- ► Where is the server located (par- Use of Metadata; Ethics Opinion 2011-200 from lawyer, Rule 5.3 provides: “With respect ticularly if the vendor itself does not Pennsylvania; Ethics Opinion 2012-13/4 from New Hampshire; and Informal Advisory Opinion to a non-lawyer employed or retained actually host the data, and uses a data 2013-03 from Ohio. by or associated with a lawyer: . . . center located elsewhere)? Is the rela- 5. A myriad of Louisiana Rules of Professional

Louisiana Bar Journal Vol. 66, No. 6 457 Conduct could be implicated depending on the 10. Rule 1.15 of the Louisiana Rules of able remedial action.” facts and situation, such as Rule 7.2, et. seq., in- Professional Conduct, in pertinent part, provides: 12. “What to Do When Your Data is volving lawyer advertising or solicitation. “. . . (a) A lawyer shall hold property of clients Breached,” GPSOLO, Jan./Feb. 2016, Nelson, 6. Rule 1.1(a) of the Louisiana Rules of or third persons that is in a lawyer’s possession Ries and Simek. Professional Conduct, in pertinent part, provides: in connection with a representation separate from 13. “Prosecutor’s Office Paid Ransom to “A lawyer shall provide competent representation the lawyer’s own property . . . Other property shall Regain Access to Computers; International to a client. Competent representation requires the be identified as such and appropriately safeguard- Network Busted,” ABA Journal, 12/6/16. legal knowledge, skill, thoroughness and prepara- ed . . . .” 14. “[8] To maintain the requisite knowledge tion reasonably necessary for the representation.” 11. Rule 5.3 of the Louisiana Rules of and skill, a lawyer should keep abreast of changes 7. Rule 1.3 of the Louisiana Rules of Professional Conduct provides: “. . . With respect in the law and its practice, including the benefits Professional Conduct, in pertinent part, provides: to a non-lawyer employed or retained by or asso- and risks associated with relevant technology, en- “A lawyer shall act with reasonable diligence and ciated with a lawyer: (a) a partner, and a lawyer gage in continuing study and education and com- promptness in representing a client.” who individually or together with other lawyers ply with all continuing legal education require- 8. Rule 1.4 of the Louisiana Rules of possesses comparable managerial authority in a ments to which a lawyer is subject.” Professional Conduct, in pertinent part, provides: law firm shall make reasonable efforts to ensure 15. ABA Formal Opinion 18-483, Lawyers’ “Communication. (a) A lawyer shall: . . . (3) keep that the firm has in effect measures giving rea- Obligations After an Electronic Data Breach or the client reasonably informed about the status of sonable assurance that the person’s conduct is Cyberattack. the matter;. . . (b) The lawyer shall give the client compatible with the professional obligations of 16. Quinn Norton, “Byte Rights,” Maximum sufficient information to participate intelligently the lawyer; (b) a lawyer having direct supervisory PC, September 2010, at 12. in decisions concerning the objectives of the rep- authority over the non-lawyer shall make reason- 17. This provision was first adopted by the resentation and the means by which they are to be able efforts to ensure that the person’s conduct is ABA after an Ethics 2020 report which considered pursued . . . .” compatible with the professional obligations of the changes in the practice due to technology. 9. Rule 1.6(a) and (c) of the Louisiana Rules of lawyer; and (c) a lawyer shall be responsible for 18. ABA Formal Opinion 06-442, Review and Professional Conduct, in pertinent part, provides: conduct of such a person that would be a violation Use of Metadata. “. . . (a) A lawyer shall not reveal information of the Rules of Professional Conduct if engaged 19. Alaska Bar Association Ethics Opinion relating to the representation of a client unless the in by a lawyer if: (1) the lawyer orders or, with No. 2016-1. client gives informed consent, the disclosure is the knowledge of the specific conduct, ratifies the 20. Ohio State Bar Opinion 2013-03, p. 4. impliedly authorized in order to carry out the rep- conduct involved; or (2) the lawyer is a partner or 21. www.americanbar.org/groups/depart- resentation or the disclosure is permitted by para- has comparable managerial authority in the law ments_offices/legal_technology_resources.html. graph (b) . . . (c) A lawyer shall make reasonable firm in which the person is employed, or has direct 22. www.lsba.org/PracticeManagement/ efforts to prevent the inadvertent or unauthorized supervisory authority over the person, and knows TechCenter.aspx. disclosure of, or unauthorized access to, informa- of the conduct at a time when its consequences can tion relating to the representation of a client.” be avoided or mitigated but fails to take reason- LBLS Accepting Requests for Certification Applications he Louisiana Board of Legal and proficiency in the area for which With regard to applications for busi- Specialization (LBLS) is certification is sought and provide five ness bankruptcy law and consumer accepting applications for favorable references. Peer review is bankruptcy law certification, although certification in the new spe- used to determine that an applicant the written test(s) is administered by Tcialty of health law through March 31, has achieved recognition as having a the American Board of Certification, 2019. The LBLS will accept applica- level of competence indicating profi- attorneys should apply for approval tions for business bankruptcy law and cient performance handling the usual of the LBLS simultaneously with the consumer bankruptcy law certification matters in the specialty field. Refer to testing agency to avoid delay of board through Sept. 30, 2019. the LBLS standards for the applicable certification by the LBLS. Information In accordance with the Plan of specialty for a detailed description of concerning the American Board of Legal Specialization, a Louisiana the requirements: www.lsba.org/goto/ Certification will be provided with the State Bar Association member in good specialization. application form(s) and can be viewed standing who has been engaged in the In addition to the above, applicants online at: www.abcworld.org. practice of law on a full-time basis must meet a minimum CLE require- Anyone interested in apply- for a minimum of five years may ap- ment for the year in which application ing for certification should contact ply for certification. Further require- is made and the examination is admin- LBLS Specialization Director Mary ments are that, each year, a minimum istered: Ann Wegmann, email maryann.we- percentage of the attorney’s practice ► Health Law — 15 hours of ap- [email protected], or call (504)619- must be devoted to the area of certi- proved health law. 0128. For more information, go to the fication sought, and the attorney must ► Bankruptcy Law — CLE is LBLS website link listed above. pass a written examination to dem- regulated by the American Board of onstrate sufficient knowledge, skills Certification, the testing agency.

458 April / May 2019 JUDICIALNotes By Trina S. Vincent, Louisiana Supreme Court NEW JUDGES... APPOINTMENTS

New Judges Klees of the Louisiana 4th Circuit Court 2005 from Louisiana of Appeal. From 1994 until his election to State University Walter I. Lanier the bench, he worked with the St. Bernard and his JD degree III was elected judge District Attorney’s Office. He serves as in 2008 from LSU of the Louisiana chair of the St. Bernard Council on Aging Paul M. Hebert Law 1st Circuit Court of and has served as a board member or of- Center. From 2008- Appeal, 1st District, ficer since 2016. Judge Roy and his wife, 10, he worked as an Election Section 2, Megan Suffern Roy, associate attorney Division A. He previ- are the parents of two at Watson, Blanche, ously served as judge children. Wilson & Posner, Christopher Hayden of the 17th Judicial Omar K. Mason L.L.P., in Baton Hester District Court, was elected judge Rouge. From 2009 Walter I. Lanier III Division C, from of Orleans Parish until his election to the bench in 2018, 2002-18. He earned Civil District Court, he worked as assistant district attorney his BA degree in 1990 from Nicholls State Division E. He for the East Baton Rouge Parish District University and his JD degree in 1993 earned his BA de- Attorney’s Office, where he served as from Louisiana State University Paul M. gree in 1996 from Omar K. Mason misdemeanor prosecutor from 2009-11, Hebert Law Center. From 1993-2002, he Louisiana State felony prosecutor from 2011-15, chief ho- worked in private practice focusing on University and his JD degree in 1999 from micide prosecutor and section chief of the civil litigation including personal injury Loyola University College of Law. Prior to Violent Crimes Unit from 2016-17 and and insurance defense. From 1998 until joining Lynn Luker & Associates, L.L.C., section chief from 2017-18. Judge Hester his first election to the bench in 2002, he in 2003, he practiced law with Carter & and his wife, Emily Hester, are the parents worked as an assistant district attorney Cates, A.P.L.C. From 2006-12, he prac- of one child. handling felony, misdemeanor and juve- ticed with Johnson DeLuca Kurisky & Erin Wiley nile matters. He was a Lafourche Parish Gould, P.C., in Houston, Texas. In 2012, Lanoux was elected Drug Court judge from 2013-18. He is a he returned to New Orleans practicing at judge of Ascension former president, vice president and sec- the law firm Montgomery Barnett, L.L.P. Parish Court. She retary-treasurer of the Lafourche Parish He was recognized as a Louisiana Super earned her BS de- Bar Association. He is a member of the Lawyers “Rising Star” in 2014 in business gree in 2000 from Thibodaux Volunteer Fire Department litigation and was selected for Louisiana Louisiana State and is a 2005 recipient of the Outstanding Super Lawyers in 2016 and 2017 in busi- University and her JD Judicial Award from Victims & Citizens ness litigation. He serves as chair of the degree in 2003 from Against Crime, Inc. Judge Lanier and his Philanthropy (Outreach) Committee of LSU Paul M. Hebert Erin Wiley Lanoux wife, Natalie Dufrene Lanier, are the par- the New Orleans Chapter of the Federal Law Center. From ents of two children. Bar Association, is an adjunct faculty 2003-07, she worked Darren M. Roy member at Louisiana State University as an associate at Phelps Dunbar, L.L.P. was elected judge Paul M. Hebert Law Center and Tulane She worked as city attorney in Gonzales of the 34th Judicial University Law School, is a certified skills from 2015 until her election to the bench. District Court, instructor with the National Institute for She has served on the board of directors Division D. He Trial Advocacy and is a diversity facilita- of the Ascension Chamber of Commerce earned his BS de- tor and CLE presenter for the Louisiana since 2014, was a member of the Baton gree in 1989 from State Bar Association. Judge Mason and Rouge Area Chamber board of directors Louisiana State his wife, Carla Bringier-Mason, are the from 2017-18 and was the 23rd Judicial University and his JD Darren M. Roy parents of two children. District Bar Association president in 2017. degree in 1993 from Christopher Hayden Hester was Judge Lanoux is married to Jay Lanoux Loyola University College of Law. He elected judge of Baton Rouge City Court, and they are the parents of three children. Division A. He earned his BA degree in worked as a law clerk for Judge Robert J. Continued next page

Louisiana Bar Journal Vol. 66, No. 6 459 Appointments People Deadlines & Notes Deadlines for submitting People announcements (and photos): ► Retired Judge Charles L. Porter was appointed, by order of the Louisiana Publication Deadline Supreme Court, to the Mandatory Continuing Legal Education Committee August/September 2019 June 4, 2019 for a term of office which began Jan. 1 October/November 2019 August 2, 2019 and will end on Dec. 31, 2020. ► Robert G. Pugh, Jr. was appoint- December 2019/January 2020 October 4, 2019 ed, by order of the Louisiana Supreme February/March 2020 December 4, 2019 Court, to the Mandatory Continuing April/May 2020 February 4, 2020 Legal Education Committee for a term of Announcements are published free of charge for members of the Louisiana State Bar office which ends on Dec. 31, 2019. Association. Members may publish photos with their announcements at a cost of ► Ron Christopher Stamps was . Send announcements, photos and photo payments (checks payable appointed, by order of the Louisiana $50 per photo to Louisiana State Bar Association) to: Supreme Court, to the Louisiana Judicial Publications Coordinator Darlene M. Louisiana Bar Journal, Campaign Oversight Committee for a LaBranche, 601 St. Charles Ave., New Orleans, LA 70130- term of office which began on March 1 3404 or email [email protected]. and will end on Feb. 28, 2022. JLAP offers REAL LIFE comprehensive services: ■ Licensed Professional Counselors on staff ■ Appropriate referrals to specialized treatment and therapy for professionals ■ Love First certified clinical interventionist on staff ■ Helping individuals demonstrate a good record of recovery through monitoring ■ Lawyer-only recovery support groups throughout the state ■ MCLE Opportunities offered throughout the year

Your call is confidential as a matter of law. www.LouisianaJLAP.com Toll-free (866)354-9334 Email: [email protected]

460 April / May 2019 PEOPLE LAWYERS ON THE MOVE . . . NEWSMAKERS

rejoined the firm’s New Orleans office Courington, Kiefer & Sommers, L.L.C., in LAWYERS ON as a partner and Mat M. Gray III has New Orleans announces that the firm has THE MOVE joined the New Orleans office in the liti- changed its name to Courington, Kiefer, gation section. Sommers, Marullo & Matherne, L.L.C. Adams and Reese, L.L.P., announces that Timothy M. Brinks and L. Cole Callihan Barrasso Usdin Kupperman Freeman & Daigle Fisse & Kessenich announces that have been elected to the partnership in Sarver, L.L.C., in New Orleans announc- Brittany J. Walker has joined the firm’s the firm’s New Orleans office. Talbot M. es that Lance W. Waters has joined the Covington office as an associate in the Quinn has joined the New Orleans of- firm as an associate. trust and estate practice. fice as an associate. James T. Rogers III, a partner in the New Orleans office, has Breazeale, Sachse & Wilson, L.L.P., Deutsch Kerrigan, L.L.P., announces that been appointed as the Litigation Practice announces that Jacob S. Simpson and five attorneys have been elevated to part- Group leader. Lee C. Reid, a partner in Jacob E. Roussel were named partners ner in the New Orleans office — Sloan the New Orleans office, has joined the in the firm’s Baton Rouge office. L. Abernathy, Andrew J. Baer, Megan firm’s Executive Committee. P. Demouy, Marianne W. Fletchinger Carver, Darden, Koretzky, Tessier, Finn, and Brian S. Schaps. Also, Caroline F. Baker, Donelson, Bearman, Caldwell & Blossman & Areaux, L.L.C., announces Bordelon has joined the firm as an asso- Berkowitz, P.C., announces that Captain that Seth E. Bagwell and Brandon T. ciate in the New Orleans office. Danielle M. Aymond has joined the firm’s Darden were promoted to partners in the Baton Rouge office as of counsel. Nyka firm’s New Orleans office. Domengeaux Wright Roy & Edwards, M. Scott returns to the firm as counsel in L.L.C., in Lafayette announces that the New Orleans office. Chaffe McCall, L.L.P., announces that Kaliste Joseph Saloom IV has joined Wade P. Webster has joined the firm’s the firm. Baldwin Haspel Burke & Mayer, L.L.C., New Orleans office as a partner. Continued next page announces that Matthew P. Miller has

Sloan L. Abernathy Nicole S. Adler W. Paul Andersson Andrew J. Baer Seth E. Bagwell Caroline F. Bordelon

James R. Todd G. Crawford Brandon T. Darden Megan P. Demouy Susan Fahey Marianne W. Chastain, Jr. Desmond Fletchinger

Louisiana Bar Journal Vol. 66, No. 6 461 Erlingson Banks, P.L.L.C., announces Lugenbuhl, Wheaton, Peck, Rankin Taylor, Porter, Brooks & Phillips, L.L.P., that Emmanuelle L. (Emma) Rollo has & Hubbard announces that Todd G. in Baton Rouge announces that Barrye joined the firm’s Baton Rouge office as Crawford has joined the New Orleans P. Miyagi and Jonathan A. Moore have an associate. headquarters as of counsel. Crawford also been elected partners in the firm. manages the firm’s newly opened office Irwin Fritchie Urquhart & Moore, in Gulfport, Miss. Also, Tyler J. Arbour NEWSMAKERSNEWSMAKERS L.L.C., announces that Troy L. Bell and has joined the firm’s New Orleans office Laura A. Leggette have joined the firm’s as an associate. Blake R. David, Sr., founding partner in New Orleans office as associates. the Lafayette firm of Broussard & David, McGlinchey Stafford, P.L.L.C., announc- L.L.C., was elected secretary of the Jackson Lewis, P.C., announces that es that Melissa M. Grand and C. Kieffer Louisiana Board of Regents and chair of Charles F. Seemann III has been Petree have been promoted to members the Regents’ Finance Committee. named office managing principal in New in the Baton Rouge office. Orleans. R. Andrew (Drew) Patty II and Mary Perrier & Lacoste, L.L.C., announces H. Drabnis, both members in the Baton Johnson Yacoubian & Paysse, A.P.L.C., that Dustin L. Poché and Michael W. Rouge office of McGlinchey Stafford, in New Orleans announces that Denise Robertson have become members in the P.L.L.C., were elected to leadership M. Ledet has joined the firm as spe- firm’s New Orleans office. positions in the American Intellectual cial counsel and Christopher B. Property Law Association. Patty was Prudhomme has joined the firm as an Perry Dampf Dispute Solutions announc- installed as vice chair of the Chemical associate. es the addition of four mediators/arbitra- Practice Committee, and Drabnis tors. James R. (Sonny) Chastain, Jr., a was named vice chair of the Patent The Kullman Firm announces that partner in the Baton Rouge office of Kean Cooperation Treaty Issues Committee. MaryJo L. Roberts, Nicole S. Adler Miller, L.L.P., has joined the mediation Both positions are for two-year terms. and Jessica L. Marrero have been panel. Rebecca K. Wisbar, a founding elected as shareholders in the firm’s New partner in Akers & Wisbar, L.L.C., in Jeffrey E. Richardson, a partner in the Orleans office. Baton Rouge, has joined the mediation New Orleans office of Adams and Reese, panel. Vincent P. Fornias has joined the L.L.P., and Leigh Ann T. Schell, special Locke Lord, L.L.P., announces that group as an arbitrator and early neutral counsel in the New Orleans office of Victoria M. de Lisle, a partner in its New evaluator. Daniel E. Knowles III, a re- Adams and Reese, L.L.P., earned the ap- Orleans office, has been elected co-chair tired U.S. magistrate judge, has joined pellate practice specialist designation, as of the firm’s board of directors. the mediation and arbitration panels. certified by the Louisiana Board of Legal Specialization.

Vincent P. Fornias Mat M. Gray III Steven E. Hayes Fred L. Herman Daniel E. Knowles III Frank E. Lamothe III

Steven J. Lane Denise M. Ledet Jessica L. Marrero Conrad Meyer IV Matthew P. Miller Barrye P. Miyagi

462 April / May 2019 PUBLICATIONS Orleans, Top 25 Women), Kristen L. C. Bursavich, Peter J. Butler, Jr., David PUBLICATIONS Hayes, William H. Howard III, Benjamin R. Cassidy, Joseph J. Cefalu III, Carroll Best Lawyers in America 2018 and 2019 West Janke, Colleen C. Jarrott, Matthew Devillier, Jr., Murphy J. Foster III, Alan Herman, Herman & Katz, L.L.C. C. Juneau, Kenneth M. Klemm, Amelia H. Goodman, Druit G. Gremillion, Jr., (New Orleans): Steven J. Lane. Williams Koch, Kent A. Lambert, Jon F. Emily B. Grey, Scott N. Hensgens, Leyens, Jr., Elizabeth A. Liner, Alexander Rachael A. Jeanfreau, Eric B. Landry, Louisiana Super Lawyers 2018 M. McIntyre, Jr., Patricia B. McMurray, Eve B. Masinter, Christopher A. Mason, Courington, Kiefer, Sommers, Mark W. Mercante, Erin E. Pelleteri, Van R. Mayhall, Jr., Richard G. Passler, Marullo & Matherne, L.L.C. (New Lacey E. Rochester, Tessa P. Vorhaben, Thomas R. Temple, Jr. and Sunny Orleans): Kaye N. Courington, Scott B. Paul S. West, Matthew A. Woolf and Mayhall West. Kiefer and Dawn D. Marullo. Adam B. Zuckerman. Chaffe McCall, L.L.P. (New Herman, Herman & Katz, L.L.C. Baldwin Haspel Burke & Mayer, Orleans): Walter F. Becker, Jr., G. Wogan (New Orleans): Steven J. Lane, Top 50 L.L.C. (New Orleans): David L. Bernard, H. Michael Bush, Katharine New Orleans. Carrigee, Lawrence R. DeMarcay III, R. Colletta, E. Howell Crosby, Alan R. Brodie G. Glenn, S. Beaux Jones, Joel Davis, Leah Nunn Engelhardt, Adelaida Louisiana Super Lawyers 2019 A. Mendler, Jerome J. Reso, Jr., Leon J. Ferchmin, Thomas D. Forbes, Edward Baker, Donelson, Bearman, H. Rittenberg III, John A. Rouchell, N. George III, Douglas L. Grundmeyer, Caldwell & Berkowitz, P.C. (Baton Stephen P. Schott, William B. Schwartz, Douglas R. Holmes, Fernand L. Rouge, Mandeville, New Orleans): Andrew T. Sullivan, Matthew A. Laudumiey IV, Julie D. Livaudais, David Edward H. Arnold III, Brian M. Ballay, Treuting, Jeannette S. Waring and Karl J. J. Messina, Corinne A. Morrison, Amy Alton E. Bayard III, Craig L. Caesar, Zimmermann. L. McIntire, Sarah Voorhies Myers, John Laura E. Carlisle, Phyllis G. Cancienne Barrasso Udsin Kupperman F. Olinde, Robert S. Rooth, G. Phillip (Top 25 Women), Meghan E. Carter, Freeman & Sarver, L.L.C. (New Shuler III, Phillip B. Sherman, Daniel Roy C. Cheatwood, Matthew S. Orleans): Judy Y. Barrasso, Jamie L. A. Tadros, Brent A. Talbot and Derek A. Chester, Katherine L. Cicardo, Robert Berger, Celeste R. Coco-Ewing, George Walker. C. Clotworthy, Christopher O. Davis, C. Freeman III, John W. Joyce, Stephen Chehardy, Sherman, Williams, Nancy Scott Degan (Top 25 Women), H. Kupperman, Kelsey L. Meeks, Murray, Recile, Stakelum & Hayes, Daniel J. Dysart, Katie L. Dysart, Stephen L. Miles, H. Minor Pipes III, L.L.P. (Hammond, Metairie): Steven Matthew R. Emmons, Paula J. Estrada de Andrea Mahady Price, Richard E. Sarver, E. Hayes, Fred L. Herman, Conrad Martin, Mark W. Frilot, Monica A. Frois, Kyle W. Siegel, Steven W. Usdin and Meyer IV, Patrick K. Reso, David R. Steven F. Griffith, Jr. (Top 50 Louisiana, Charles-Theodore Zerner. Sherman, P.J. Stakelum III and James Top 50 New Orleans), Camalla K. Breazeale, Sachse & Wilson, L.L.P. M. Williams. Guyton, Christopher M. Hannan, Jan M. (Baton Rouge, New Orleans): Robert L. Forman Watkins & Krutz, L.L.P. Hayden (Top 10 Louisiana, Top 50 New Atkinson, Thomas M. Benjamin, Jude (New Orleans, Jackson, MS): Charles

Jonathan A. Moore Dustin L. Poché Christopher B. Patrick K. Reso MaryJo L. Roberts Michael W. Prudhomme Robertson

Emmanuelle L. Jacob E. Roussel Kaliste J. Saloom IV Brian S. Schaps Kristi S. Schubert Charles F. Rollo Seemann III

Louisiana Bar Journal Vol. 66, No. 6 463 H. Abbott, Mary R. Arthur, Melissa D. Rudy J. Cerone, Mark J. Chaney III, Patrick C. Morrow, Sr., P. Craig Morrow, Fuller, Erin W. Latuso, Elizabeth R. Penn Marshall T. Cox, Mark R. Deethardt, Jr., James P. Ryan and Kathleen E. Ryan. and T. Peyton Smith. Sarah Edwards, Larry Feldman, Jr., New Orleans Magazine Herman, Herman & Katz, L.L.C. Michael D. Ferachi, Zelma M. Frederick, 2018 and 2019

(New Orleans): Steven J. Lane, Top 50 Melissa M. Grand, Christine Lipsey, Herman, Herman & Katz, L.L.C. New Orleans. Kathleen A. Manning, Christopher S. (New Orleans): Steven J. Lane, Top Family Lawyers. Jackson Lewis, P.C. (New Orleans): Nichols, Colvin G. Norwood, Jr. (Top Susan Fahey Desmond and René E. 50 New Orleans), Erin Fury Parkinson, Thorne, both on the Top 25 Women in Kristi W. Richard, Michael H. Rubin, Louisiana. Eric J. Simonson, Charles S. Smith and Johnson Yacoubian & Paysse, Stephen P. Strohschein. A.P.L.C. (New Orleans): Robert B. Morrow, Morrow, Ryan, Bassett & Acomb III, Edward S. Johnson and Alan Haik (Lafayette, New Iberia, Opelousas): J. Yacoubian. Jeffrey M. Bassett, Taylor J. Bassett, Lamothe Law Firm, L.L.C. (New Richard T. Haik, Sr., Richard T. Haik, Jr., Orleans): Frank E. Lamothe III and David R. Sherman Kristi S. Schubert. Leake & Andersson, L.L.P. (New Orleans): W. Paul Andersson. Lugenbuhl, Wheaton, Peck, Rankin & Hubbard (Baton Rouge, New Orleans): Tyler J. Arbour, Ashley L. Belleau (Top 25 Women), Joseph P. Briggett, Christopher T. Caplinger, Daniel B. Centner, Stanley J. Cohn, Todd G. Crawford, Celeste D. Elliott, Jay Farmer, Delos E. Flint, Jr., Meredith Jacob S. Simpson P.J. Stakelum III René E. Thorne Brittany J. Walker S. Grabill, Joseph P. Guichet, Benjamin W. Kadden, Rose McCabe LeBreton, Stewart F. Peck (Top 50 New Orleans), Seth A. Schmeeckle, Heather N. Sharp, David B. Sharpe, S. Rodger Wheaton and Kristopher T. Wilson. McGlinchey Stafford, P.L.L.C. (Baton Rouge, New Orleans): Ricardo A. Aguilar, Stephen P. Beiser, Magdalen Blessey Bickford, Camille R. Bryant, Lance W. Waters Wade P. Webster James M. Williams Rebecca K. Wisbar LSBA Member Services The mission of the Louisiana State Bar Association (LSBA) is to assist and serve its members in the practice of law. The LSBA offers many worthwhile programs and services designed to complement your career, the legal profession and the community.

In the past several years, the legal profession has experienced many changes. The LSBA has kept up with those changes by maturing in structure and stature and becoming more diverse and competitive. For more information, visit www.lsba.org

464 April / May 2019 NEWS UPDATE... LOCAL BARS... LBF

UPDATE Centenary Signs Admissions La. District Judges Agreement with LSU Law Center Association Elects Centenary College signed a memo- undergraduate minor in legal studies, have New Officers randum of understanding with Louisiana an interest in public interest work, submit State University Paul M. Hebert Law their application by Dec. 1, and complete The Louisiana District Judges Center on Jan. 23 to create a partnership the LSU Law admissions requirements Association elected 2018-19 officers that will provide Centenary students who will receive priority consideration, auto- at its October 2018 meeting. The offi- meet LSU Law admission requirements matic financial aid consideration, an early cers will serve through Sept. 30, 2019. and who are interested in public interest admissions decision for the following President is Judge Lisa M. Woodruff- careers an opportunity for an expedited ad- year’s matriculating class, and will be pre- White, East Baton Rouge Family Court; missions review and notification process. sumptively admitted assuming they meet First Vice President Judge Guy E. “This public/private partnership LSU Law’s other admissions require- Bradberry, 14th Judicial District Court; also links an institution located in south ments. This arrangement offers a pathway Second Vice President Judge Brady Louisiana — the LSU Law Center — to admission with expedited consideration D. O’Callaghan, 1st Judicial District with one in north Louisiana — Centenary and early decision, but it does not guaran- Court; Secretary Judge Piper D. Griffin, College. Both schools have great traditions tee admission to all candidates who meet Orleans Parish Civil District Court; and bright futures,” LSU Law Center Dean the basic requirements. The LSU Law Treasurer Judge Scott U. Schlegel, 24th Thomas C. Galligan, Jr. said. “At the Law Center’s Admissions Committee still re- Judicial District Court; and Immediate Center, we have had many wonderful stu- views each candidate and reserves the Past President Judge C. Wendell dents from Centenary over the years. We right to approve or deny admission. Manning, 4th Judicial District Court. hope with this agreement that the number Seven Centenary graduates currently will grow.” are enrolled at the LSU Law Center, and With the agreement, graduating stu- more than 70 Centenary alumni have grad- SEND YOUR dents from Centenary who complete an uated from LSU Law since 1970. NEWS! The Louisiana Bar Journal would like to publish news and photos of your activities and accomplishments. Email your news items and photos to: LSBA Publications Coordinator Darlene LaBranche at [email protected]. Or mail press releases to: The Louisiana State Bar Association (LSBA) Diversity Committee’s Specialty Bars Subcommittee met Jan. 19 with 2018-19 LSBA President Barry H. Grodsky to discuss how the LSBA can continue to sup- Darlene LaBranche, port specialty bar initiatives. Attending, from left, Grodsky; Maria Pabon, president of the Hispanic Publications Coordinator Lawyers Association of Louisiana; Michael B. Victorian, co-chair, LSBA Outreach Committee; Ezra 601 St. Charles Ave. Pettis, Jr., president-elect of the Louis A. Martinet Legal Society, Inc. Lake Charles Chapter; Ebony S. New Orleans, LA 70130-3404 Morris, vice president of membership, Greater New Orleans Louis A. Martinet Legal Society, Inc.; and Mary L. Jackson, president of the Shreveport-Bossier Black Lawyers Association.

Louisiana Bar Journal Vol. 66, No. 6 465 LOCAL / SPECIALTY BARS

Members of the board of the New Orleans Chapter of the Federal Bar Association (FBA) include, seated from left, Erin K. Arnold, U.S. Bankruptcy Court; Megan M. Dupuy, U.S. District Court, EDLA; Chief Magistrate Judge Karen Wells Roby, U.S. District Court, EDLA; attorney Diana A. Mercer; attorney Steven F. Griffith, Jr.; attorney Kathryn M. Knight, 2018-19 president, FBA New Orleans Chapter; Chief Judge Nannette J. Brown, U.S. District Court, EDLA; Judge Susie Morgan, U.S. District Court, EDLA; Magistrate Judge Janis van Meerveld, U.S. District Court, EDLA; and Judge Mary Ann V. Lemmon, U.S. District Court, EDLA. Standing from left, attorney Lawrence J. Centola III; attorney Brian J. Capitelli; attorney Joelle F. Evans; attorney Claude J. Kelly III; attorney John T. Balhoff II; attorney Michael J. Ecuyer; attorney Alida C. Hainkel; attorney Stephen C. Myers; attorney Lesli D. Harris; attorney W. Raley Alford III, 2017-18 president, FBA New Orleans Chapter; attorney Donna P. Currault; attorney Bradley J. Schlotterer; attorney Andrea M. Price; Judge Carl J. Barbier, U.S. District Court, EDLA; attorney Diana C. Surprenant; attorney Stephen J. Herman; attorney Kelly M. Rabalais; and Judge Omar K. Mason, Orleans Parish Civil District Court. Federal Bar Association New Orleans Chapter Conducts Annual Meeting The New Orleans Chapter of the Federal Bar Association held its annual meeting and luncheon on Aug. 23, 2018, in New Orleans. Dean Erwin Chemerinsky, Berkeley Law/University of California, was the keynote speaker. During the luncheon, Immediate Past President W. Raley Alford III presented several awards. Receiving 2018 President’s Awards were Judge Omar K. Mason, Orleans Parish Civil District Court; Annie G. McBride, Stone Pigman Walther Wittmann, L.L.C.; and Paul M. Sterbcow, Lewis, Kullman, Sterbcow & Abramson. Ashley L. Belleau, with the firm Lugenbuhl, Wheaton, Peck, Rankin & Hubbard, received the John R. (Jack) Martzell W. Raley Alford III, fourth from left, immediate past president of the New Professionalism Award. David H. Williams with Southeast Orleans Chapter of the Federal Bar Association, presented several awards Louisiana Legal Services received the Camille F. Gravel, Jr. Public during the Chapter’s annual meeting and luncheon. Award recipients, from Service Award. left, Judge Omar K. Mason, President’s Award; Ashley L. Belleau, John Following the presentation of awards, new officers were in- R. (Jack) Martzell Professionalism Award; Paul M. Sterbcow, President’s Award; Alford; Annie G. McBride, President’s Award; and David H. stalled — Kathryn M. Knight, president; Judge Nannette J. Brown, Williams, Camille F. Gravel, Jr. Public Service Award. president-elect; Steven F. Griffith, Jr., treasurer; Michael J. Ecuyer, recording secretary; Donna P. Currault, membership chair; and The luncheon concluded with remarks from chapter President Sara A. Johnson, Young Lawyers Division chair. Kathryn M. Knight.

Several Louisiana attorneys received National Bar Association awards during the association’s Women Lawyers Division Achievement Awards Breakfast held in conjunction with the 93rd annual convention in July-August 2018 in New Orleans.

From left, Kim M. Boyle, Phelps Dunbar LLP, Hidden Figure Award From left, Ashley J. Heilprin, Phelps Dunbar LLP, recipient; Dana M. Douglas, Liskow & Lewis, A.P.L.C., Outstanding Outstanding Young Lawyer recipient; Royce I. Duplessis, Minority Partner in a Majority Firm recipient; Chief Judge Nanette Duplessis Law Firm, LLC, State Representative, District J. Brown, U.S. District Court, Eastern District of Louisiana, 93, YLD/Section of the Year Award recipient; and Dana Excellence in Judiciary Award recipient; and Sandra Diggs Miller, M. Douglas, Liskow & Lewis, A.P.L.C., Outstanding Entergy, Outstanding Corporate Counsel Award recipient. Minority Partner in a Majority Firm recipient.

466 April / May 2019 Greater Lafayette Martinet Chapter Celebrates 35th Anniversary

The Louis A. Martinet Legal Society, Inc. (LAMS) Greater Lafayette Chapter, formerly known as the Southwest Louisiana Lawyer Association, Inc., celebrated its 35th anniversary on Dec. 15, 2018, at a gala in Lafayette. The theme of the event was “Preserving our history, celebrating our present, and preparing for our future.” Keynote speaker was Dr. Adren O. Wilson, deputy chief of staff for program- The Louis A. Martinet Legal Society, Inc. ming and planning, Office of the Governor. (LAMS) Greater Lafayette Chapter cel- Event Committee Co-Chairs Orida B. ebrated its 35th anniversary on Dec. 15, 2018. Edwards and Glenn M. Lazard, along with Organizing the event were, from left, Orida B. Edwards, LAMS President Franchesca L. LAMS President Franchesca L. Hamilton- Hamilton-Acker and Glenn M. Lazard. Acker, organized the event. The Southwest Louisiana Lawyer One of the organization’s founders, Association, Inc. was formed on May 13, Lloyd Dangerfield, was acknowledged for 1983, with the purpose of promoting op- his vision and commitment to LAMS. portunities for professional affiliation for The anniversary celebration also in- African-American lawyers. In 2005, af- cluded a Senior Awareness Summit/ ter 22 years of existence, the association The Louis A. Martinet Legal Society, Inc. Community Service event on Dec. 14, changed its name to the Louis A. Martinet (LAMS) Greater Lafayette Chapter, formerly 2018, at the Clifton Chenier Community known as the Southwest Louisiana Lawyer Legal Society, Inc. Greater Lafayette Association, Inc., celebrated its 35th anniversary Center. The panel was moderated by Chapter. on Dec. 15, 2018. Lloyd Dangerfield, left, one of McKinley B. James, Jr., Community LAMS is a recipient of the Louisiana the organization’s founders, was acknowledged Service chair. Panelists Franchesca L. Bar Foundation Jock Scott Community for his vision and commitment to LAMS. LAMS Hamilton-Acker, Glenn M. Lazard and President Franchesca L. Hamilton-Acker pre- Partnership Panel Grant. Funds were used sented the award. Orida B. Edwards discussed advanced di- for the creation of an anniversary video com- rectives important to seniors and informa- memorating the history of the organization. tion on how to avoid scams.

The Louis A. Martinet Legal Society, Inc. Southwest Louisiana Chapter held its first CLE seminar and scholarship dinner cruise on Aug. 3, 2018, in Lake Charles. Louisiana Supreme Court Associate Justice James T. Genovese was the guest speaker. Among those attending the event were, from left, Ezra Pettis, Jr., president- elect, Southwest Louisiana Martinet Chapter; The New Orleans Bar Association’s Young Lawyers Section partnered with the New Orleans Area Shayna L. Sonnier, treasurer, Louisiana State Habitat for Humanity to hold its Bench and Bar Build in the Lower Ninth Ward of New Orleans in Bar Association; Chantell M. Smith, Louisiana October 2018. Several judge and lawyer volunteers spent the day working on the house that a single Workforce Commission; and Derrick D. Kee, mother would soon purchase and occupy with her children. president, Southwest Louisiana Martinet Chapter.

Louisiana Bar Journal Vol. 66, No. 6 467 LOUISIANA BAR FOUNDATION President’s Message Q&A with 2019-20 LBF President Amanda W. Barnett Interviewed by 2019-20 Secretary Alan G. Brackett Brackett: Tell us about yourself and funding for special promoting access to justice. No entity can your family. needs school children operate without reliable funding. Barnett: I am the youngest of four in various Louisiana daughters. My father was an attorney and school districts and Brackett: So, you’re in an elevator I spent many hours at his office, occasion- I volunteered to with a Louisiana lawyer who isn’t an LBF ally tagging along with him to court. He work on the project. Fellow. What do you say to that lawyer in a was a retired Army colonel and went to At that year’s Good few floors to convince him/her of the need Louisiana State University Law School Apple Gala, Mathile to support the LBF? after retirement, graduating in 1970 and Abramson, a past Barnett: I would recount how I be- opening an office as a sole practitioner in LBF president and Amanda W. Barnett came a Fellow, realizing that my time, ef- Amite, La., where I grew up. Amite was a former classmate forts and contributions would have a great- a place that fostered inclusion and caring at LSU, asked if I was a Fellow. She ex- er impact as a Fellow. The LBF provides a for, and knowing, your neighbor, values plained the LBF’s role and mission and I be- platform to more easily provide legal as- that have stayed with me. came a Fellow, volunteering on the Central sistance to the indigent than one can alone. I went to H. Sophie Newcomb College Community Partnership Panel. I am so glad We all have a duty to provide pro bono of Tulane University and then to Louisiana I did. I love being a part of the LBF. services in some way. Even if this duty is State University Paul M. Hebert Law not always keenly felt, we recognize the Center, where I met my husband, Barry Brackett: What role does the LBF play responsibility. Barnett. Our first date was a packed lunch in promoting access to the justice system? I would mention the cost effectiveness on the steps of the “old” law school build- Barnett: The LBF’s role in promot- of LBF donations. For every dollar investing across from the parade grounds, and ing access to the justice system is hard to ed in Louisiana’s civil legal aid providers, Professor Baier came and sat down with overstate — the LBF is the largest funder the state receives $9.13 in immediate and us — that was 34 years ago. of civil legal aid in Louisiana. The LBF long-term financial benefits, according We have four children — Katherine, supports non-profit organizations provid- to the LBF’s 2018 Economic Impact and a PhD candidate at Harvard; Lee, a PhD ing free, civil legal representation to the Social Return on Investment study. candidate at Johannes Kepler University indigent, law-related education to the pub- Lastly, I would discuss the fellowship in Austria; Marcus, a recent graduate of lic and administration of justice projects. enjoyed when meeting members across the LSU; and Lily, a freshman at Rhodes Since 1989, the LBF has distributed nearly state. We meet with a singlemindedness of College in Memphis. In 1995, we moved $78 million to hundreds of Louisiana purpose, helping the vulnerable of our state, from the New Orleans area, leaving firms non-profit organizations. We serve as the not as adversaries, litigants, legislators or there, to come to Alexandria, where we fiscal administrator for Louisiana’s Child judges. LBF volunteers work together. raised our children. I joined Gold, Weems, in Need of Care Program which provides Bruser, Sues & Rundell. Alexandria is free legal representation to children in fos- Brackett: When you look back on your home now. Since 2010, I have been gen- ter care. We also administer the Louisiana term as president of the LBF, what’s the eral counsel for Red River Bank and Red Supreme Court’s Interest on Lawyers’ one thing that you hope stands out as the River Bancshares, Inc. I’m lucky to be a Trust Accounts Program. greatest achievement? part of a company that truly believes in Barnett: After Katrina, I helped or- being a good corporate citizen. My com- Brackett: The LBF strives to provide ganize and staff legal help desks in the mitment to the Louisiana Bar Foundation consistent funding for civil legal aid. Why Alexandria FEMA shelters. I was struck is welcomed and supported. is this the LBF’s responsibility? by how difficult it was to get people in con- Barnett: The LBF’s mission is to tact with available resources. Technology Brackett: How did you get involved “Fund Civil Legal Aid and Promote has advanced light years since 2005. It’s with the Louisiana Bar Foundation (LBF)? Access to Justice.” We have a concomitant time for the civil legal aid community to Barnett: In 2008, at the Gold firm, I was responsibility to provide consistent fund- take advantage of the digital revolution. involved in complicated litigation representing to fulfill our mission. Much of our mis- I hope in this next year the LBF can suc- ing children with special needs and the right sion is carried out through our grantees. cessfully bring about the use of innovative to a free and appropriate public education. They desperately need consistent fund- technologies and digital initiatives to im- During that case, I heard about Louisiana ing; without it, it is difficult for grantees prove the statewide delivery of civil legal Appleseed’s project researching equitable to focus on providing civil legal aid and aid services.

468 April / May 2019 LBF Study Results: Civil Legal Aid is a Good Investment The “2018 Economic Impact and Social legal aid organizations is a measurement in significant future cost savings or ad- Return on Investment of Civil Legal Aid of the values delivered during the fiscal ditional income to the Louisiana and the Services for Louisiana” is complete. The year 2018. The Analysis revealed that number of volunteer, pro bono, hours of Louisiana Bar Foundation (LBF) engaged the net economic impact value resulting legal services delivered by attorneys in Community Services Analysis, L.L.C., to from Louisiana civil legal activities during Louisiana. conduct the study. Community Services the year totaled $95,124,000. These val- Investing in civil legal aid is a powerful Analysis is the leading provider of Social ues are based on the number of clients and way to help people solve critical problems Return on Investment Analysis (SROI) in types of legal matters handled during the and prevent events that are personally the United States, having completed more period. In fiscal year 2018, Louisiana’s harmful and expensive for society. As the than 220 economic impact and SROI civil legal aid organizations provided as- Analysis illustrates, investing in civil legal studies for local and state agencies around sistance in more than 100 types of civil aid causes a ripple effect, not only affect- the country, and serves as the exclusive legal problems, including family law, ing the families served, but the commu- provider of SROI services to the National housing, healthcare, consumer protection, nity at large. Schools, businesses, govern- Legal Aid & Defender Association. public benefits, employment and commu- ment agencies and the state benefit from SROI is an internationally standardized nity support issues. resolving civil legal problems. and accepted process for measuring and The total net social return on invest- The LBF is committed to serving all understanding the financial impact of a so- ment for Louisiana’s civil legal aid pro- Louisiana households in poverty. Society cial services organization. While SROI is grams during the 2018 fiscal year was 913 improves when people understand the law built on the logic of cost/benefit analysis, percent. Stated differently, for every $1 and have equal access to justice. The LBF it measures both the immediate value and invested in Louisiana’s civil legal aid hopes this Analysis will better educate long-term consequential financial values services, these programs deliver $9.13 in the public on the value of civil legal aid created by the organization through its de- immediate and long-term consequential to both the indigent and the state’s social, livery of services to the community. More financial benefits. The social return on economic and health conditions, and will than 40 civil legal aid organizations pro- investment for Louisiana’s civil legal aid lead to restored funding of civil legal ser- viding services in Louisiana participated organizations is higher than comparative vices for Louisiana’s most vulnerable in this analysis. values for many other types of social ser- citizens. With Louisiana having one of the The Social Return on Investment vice organizations based on the delivery highest poverty rates, the time for restored Analysis completed for Louisiana’s civil of many types of legal services that result civil legal funding is critical. More than $100,000 Awarded to Louisiana Non-Profits The Louisiana Bar Foundation (LBF) CASA of Terrebonne ...... $5,000 Northshore ...... $15,000 granted funding to several non-profits iden- The Haven ...... $5,000 Children’s Advocacy Center - tified by local panels throughout the state. Hope House ...... $9,000 The LBF has nine regional Community Central Region ...... $15,000 Family Promise of St. Tammany .... $2,500 Partnership Panels (CCP) which identify Teen Court of Avoyelles ...... $6,500 Southeast Louisiana Legal Services .....$3,000 areas of need. The CPPs foster collabora- Children’s Advocacy Network ...... $6,755 LBF Oral History Project ...... $500 tion, respond to arising community needs, LBF Oral History Project ...... $1,745 Northwest...... $11,575 and encourage local involvement in the Greater Orleans ...... $15,000 designation of grant funds. Each panel has Volunteers for Youth Justice ...... $10,000 CrescentCare ...... $3,500 LBF Oral History Project ...... $1,575 an annual budget of $15,000. Those CPPs Justice and Accountability Center ...... $3,500 that have not yet designated all of their Lower 9th Ward funding will do so by June 30. Grantees are Homeownership Association ...... $7,000 listed by region. Pink House ...... $1,000 LBF Announces New Fellows Acadiana ...... $13,900 Northeast ...... $15,000 Louis A. Martinet Society ...... $3,500 Acadiana Legal Service Corp...... $4,500 The Louisiana Bar Foundation The Extra Mile ...... $10,400 Pine Hills Advocacy Center ...... $10,000 welcomes the following new Fellows: Hon. Marcus L. Hunter...... Monroe Bayou Region ...... $15,000 LBF Oral History Project ...... $500 CASA of Lafourche ...... $5,000 Adrienne M. Wood...... Baton Rouge

Louisiana Bar Journal Vol. 66, No. 6 469 CLASSIFIED ADS ONLINE AT WWW.LSBA.ORG CLASSIFIED NOTICES

Standard classified advertising in our regu- The Metropolitan Council of the City lar typeface and format may now be placed POSITIONS OFFERED of Baton Rouge and Parish of East Baton in the Louisiana Bar Journal and on the Rouge is accepting résumés for the position LSBA Web site, LSBA.org/classifieds. AV-rated law firm with offices in New All requests for classified notices must of Parish Attorney. Prospective applicants Orleans, Lafayette and Houston seeks may contact the Council Administrator- be submitted in writing and are subject attorney with exceptional legal research to approval. Copy must be typewritten Treasurer’s office at (225)389-3123 to ob- and payment must accompany request. and writing skills for its insurance cov- tain a copy of the job description if they Our low rates for placement in both are erage practice area. Excellent fringe desire. Résumés and cover letters must be as follows: benefits and compensation opportunities submitted to the Council Administrator- commensurate with experience. Willing Treasurer’s Office (via courier or hand RATES to consider a flexible work schedule. delivery to 222 St. Louis St., Room 364, Replies held in strictest confidence. Mail Baton Rouge, LA 70802; or via mail P.O. CLASSIFIED ADS confidential résumé to: C-Box 282. Contact Krystal L. Bellanger at Box 1471, Baton Rouge, LA 70821). It is (504)619-0131 or (800)421-LSBA, the responsibility of the applicant to en- ext. 131. AV-rated maritime and insurance de- sure delivery of the résumé by the dead- fense firm with offices in Texas and line. Deadline for submission is 4 p.m. on Non-members of LSBA Louisiana seeks attorneys for its Lafayette $85 per insertion of 50 words or less Friday, May 17, 2019. No résumés will be office. Great opportunity for motivated accepted after this time. Contact Ashley $1 per each additional word and ambitious self-starter who is seek- $20 for Classy-Box number Beck, Council Administrator-Treasurer, at ing considerable hands-on experience, a (225)389-3123, or email [email protected] Members of the LSBA progression to partnership commensurate with any questions. $60 per insertion for 50 words or less with experience, excellent compensation $1 per each additional word and fringe benefits package. Mail confi- Associate attorney. Must have plaintiff No additional charge for Classy-Box dential résumé to: C-Box 283. number personal injury litigation experience. Experience in jury trials, expert and Screens: $25 Riess LeMieux, L.L.C., a rapidly grow- witness depositions, pleading prepara- Headings: $15 initial headings/large type ing New Orleans CBD law firm, is seek- tion (complaints/petition/motions), brief ing an attorney with five-plus years’ writing, party and third-party discovery BOXED ADS experience in commercial litigation, (preparation, response), federal courts. Boxed ads must be submitted camera ready with emphasis in construction litigation. by the advertiser. The ads should be boxed Handle own caseload, minimal super- and 2¼” by 2” high. The boxed ads are $70 Strong writing skills, including writing vision. Work on percentage of recov- per insertion and must be paid at the time of motions and memoranda, are of the ut- ery with draw. Location: Houston, TX. placement. No discounts apply. most importance. Email résumé to nmar- Contact Mary Kinsley, (713)344-0401, [email protected] for consideration. DEADLINE ext. 316, email [email protected]. For the August issue of the Journal, all classified notices must be received with payment by June 18, 2019. Check and ad copy should be sent to: LOUISIANA BAR JOURNAL Adele A. Thonn Classified Notices Forensic Document Examiner D WESLEY ATTAWAY 601 St. Charles Avenue [email protected] New Orleans, LA 70130 Services include document examination, analysis and opinions including, but not 318.393.3289 limited to, questioned signatures and RESPONSES Court Certified Expert Witness alleged alterations To respond to a box number, please address State and Federal Courts Happily servicing the Greater New Orleans your envelope to: Criminal Defense and Civil Litigation Journal Classy Box No. ______area and surrounding parishes c/o Louisiana State Bar Association Phone: (504) 430-5117 Data Retrieval Services Since 1995 601 St. Charles Avenue Email: [email protected] New Orleans, LA 70130 www.thewriteconsultants.com COMPUTERS AND CELL PHONES

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LouisianaLouisiana BarBar JournalJournal Vol.Vol. 66,64, No.No. 65 471413

0217_LBJ_JOURNAL_MAGAZINE.indd 413 12/20/2016 2:34:55 PM The Last WORD By Edward J. Walters, Jr. IPSE DIXIT: SO, WHO DO YOU TRUST?

o back in the 1990s, Johnny deGravelles — now Federal Judge John deGravelles — is trying a case in Baton Rouge inS front of 19th JDC Judge Kay Bates, who is now happily retired. Johnny had gotten the court reporter to type up the testimony so that he could blow up portions of it in his closing argument. His opponent, Frank Gremillion, objected and argued that because depositions can’t be taken into the jury room, and since the trial transcript is not available to the jury during deliberations, he shouldn’t be allowed to use it during closing. His response was: “First, that this is not going into the jury room, it is argument, and, second, would you rather me tell the jury what I think the witness said or tell them what — verbatim — he actually said?” some testimony, the other side will in- In spite of the above, they remained Judge Bates takes a break to think troduce some more, and ultimately the partners for a very long time — until about it. whole trial will be submitted TWICE to Johnny took the bench — and remain She goes into her chambers and the jury.” very good friends to this day. I’m sure quietly calls someone she trusts who She gets this opinion and goes back they rarely speak about this evidentiary really knows a lot about evidence, or to court. We now peek into the court- issue, since one of them is clearly wrong. she thought he did. He was, after all, room where the following ensues (or something like it): Edward J. Walters, Jr., Professor George Pugh’s research as- a partner in the Baton sistant for many, many years. Judge Bates: OK, we are back on the Rouge firm of Walters, Papillion, Thomas, She asks about this thorny eviden- record. I spoke to someone whose judg- tiary question. She, of course, doesn’t Cullens, L.L.C., is a for- ment I trust on evidentiary issues, and mer Louisiana State Bar tell him who the lawyers are. he told me that this transcript is inad- Association secretary His response was that Professor missible, so, objection sustained, I will and editor-in-chief of the Louisiana Bar Journal. He Pugh addresses this very issue in his keep it out. evidentiary course. He says, “Wigmore is a current member of the Journal’s Editorial Board says no because, like the ‘Golden deGravelles: Your Honor, respect- and chair of the LSBA Rule,’ the jury, which must rely on its fully, who did you call who gave you this Senior Lawyers Division. own memory, will tend to be misled obviously erroneous opinion? ([email protected]; 12345 Perkins Rd., Bldg. 1, by the belief that the typed testimony Baton Rouge, LA 70810) is superior to their own memory. Says Judge Bates: Frank Holthaus. Wigmore, the same recitation out of the advocate’s mouth does not suffer that deGravelles: Frank Holthaus? FRANK same risk. Plus, if one side introduces HOLTHAUS?!??? MY LAW PARTNER FRANK HOLTHAUS?!?!?!?!???

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