PUTTING the PUZZLE TOGETHER Protecting Clients’ Benefits: a Litigator’S Guide to Special Needs Trusts

PUTTING THE PUZZLE TOGETHER Protecting Clients’ Benefits: A Litigator’s Guide to Special Needs Trusts

Ancillary Estate Planning and 5 Critical Questions

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Supplement to the Louisiana Bar Journal 11 Louisiana Bar Journal August / September 2021 113 Vol. 69, No. 2 www.lsba.org Louisiana Bar Journal August / September 2021 113 Vol. 69, No. 2 www.lsba.org

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August / September 2021 Volume 69, Number 2 Departments Features Editor’s Message...... 118 Protecting Clients’ Benefits: President’s Message...... 120 A Litigator’s Guide to Association Actions...... 148 Special Needs Trusts By Sean M. Morrison...... 122 Practice Makes Perfect...... 154 Practice Management...... 156 Lawyers Assistance...... 158 Focus on Diversity...... 160 Puzzle...... 162 Ancillary Estate Planning and 5 Focus on Professionalism..... 164 Critical Questions Discipline Reports...... 166 By J. Grant Coleman...... 126 Recent Developments...... 169 Young Lawyers...... 180 La. Center for Law and Civic Education...... 182 Judicial Notes...... 184 Supported Decision-Making for People...... 187 Adults with Disabilities News...... 190 By Joel A. Mendler...... 130 Classified...... 198 The Last Word...... 200 Also Inside 2022 Expert Directory...... 119 Recap: 2021 Annual Meeting/ Summer School Upcoming LSBA CLEs...... 147 Officers Installed; Awards Presented....134 SOLACE...... 162 Member Services...... 195 Special Assistant AG Minimum Qualifications ...... 197 Advertisers’ Index...... 199

On the Cover:

Louisiana Bar Journal August / September 2021 114 Vol. 69, No. 2 www.lsba.org Louisiana Bar Journal August / September 2021 115 Vol. 69, No. 2 www.lsba.org ® Officers 2021-22 President Editorial Board H. Minor Pipes III • (504)322-7101 þ C.A. (Hap) Martin III þ Roy H. (Hal) Odom, Jr. President-Elect Editor (318)227-3762 Stephen I. Dwyer • (504)838-9090 (318)388-4700 þ Kelly M. Rabalais Secretary (985)898-5837 C.A. (Hap) Martin III • (318)388-4700 þ Rachel P. Dunaway (225)326-6300 þ Valerie T. Schexnayder Treasurer (225)921-9122 John E. McAuliffe, Jr. • (504)840-4909 þ Stephen I. Dwyer þ Kimberly R. Silas Immediate Past President (504)838-9090 (504)702-1719 Alainna R. Mire • (318)449-5046 þ Laura S. Gravener (504)322-7495 þ Maggie Trahan Simar Board of Governors 2021-22 (337)394-6133 þ Senae D. Hall First District (318)226-6829 x1009 þ Gail S. Stephenson Lawrence J. Centola III • (504)581-9065 (225)771-4900, x 216 Scott L. Sternberg • (504)324-1887 þ Mark A. Hill (504)526-4337 þ Scott L. Sternberg Second District (504)324-1887 Erin O. Braud • (504)836-2780 þ Michael D. Lane (504)581-3300 þ Tyler G. Storms Third District (318)255-7805 Dwazendra J. Smith • (337)948-8008 þ Winfield E. Little, Jr. þ Adrejia Boutté Swafford Fourth District (337)430-0907 (225)219-2318 Todd S. Clemons • (337)477-0000 þ John E. McAuliffe, Jr. Fifth District (504)840-4909 þ Patrick A. Talley, Jr. (504)584-9220 Kelly M. Rabalais • (985)898-5837 þ Claire McDaniel-Ojeh Adrian G. Nadeau • (225)922-5110 (504)408-2206 þ Edward J. Walters, Jr. Sixth District (225)236-3636 þ John H. Musser V Charles D. Elliott • (318)704-6511 (504)523-0400 þ Jack K. Whitehead, Jr. Seventh District (225)303-8600 W. Michael Street • (318)322-9700 The Louisiana Bar Journal (ISSN 0459-8881) is published bimonthly by Eighth District the Louisiana State Bar Association, 601 St. Charles Avenue, New Orleans, Curtis R. Joseph, Jr. • (318)221-1600 Louisiana 70130. Periodicals postage paid at New Orleans, Louisiana and Chair, Young Lawyers Division additional offices. Annual subscription rate: members, $5, included in dues; Graham H. Ryan • (504)582-8370 nonmembers, $45 (domestic), $55 (foreign). Canada Agreement No. PM At-Large Members 41450540. Return undeliverable Canadian addresses to: 4240 Harvester Tina L. Suggs • (504)442-8591 Rd #2, Burlington, ON L7L 0E8. Adrejia Boutté Swafford • (225)219-2318 Postmaster: Send change of address to: Louisiana Bar Journal, 601 St. Blake R. David • (337)233-2323 Charles Avenue, New Orleans, Louisiana 70130. LSU Paul M. Hebert Law Center Subscriber Service: For the fastest service or questions, call Darlene M. John M. Church • (225)578-8701 LaBranche at (504)619-0112 or (800)421-5722, ext. 112. Tulane University Law School Ronald J. Scalise, Jr. • (504)865-5958 DISCLAIMER: Contributions to the Louisiana Bar Journal are welcomed, but the right Louisiana State Law Institute is reserved to select material to be published. Publication of any article or Lila Tritico Hogan • (985)542-7730 statement is not to be deemed a statement or an endorsement of the views House of Delegates Liaison Chair expressed therein by the LSBA or any member of the LSBA, nor shall Ann S. Siddall • (318)481-1059 publication of any advertisement be considered a statement or an endorsement of the product or service involved by the LSBA or any member of the LSBA. Editorial Staff Views expressed are those of the authors and contributors only. Executive Director Submissions are welcome and will be considered for publication by the Loretta Larsen, CAE Editorial Board. For submission guidelines, go online at www.lsba.org, Communications Director click on “Publications,” then “Louisiana Bar Journal.” Copyright © by Kelly Wells Ponder Louisiana Bar Journal. All rights reserved. Reproduction in whole or part Publications Coordinator/Managing Editor without permission is prohibited. Darlene M. LaBranche Luminary Award Winner Communications Coordinator/Graphic Design National Association of Bar Executives Communications Section Barbara D. Baldwin Excellence in Regular Publications International Communications Assistant Association of Krystal Bellanger Rodriguez Business Communicators Public Relations Society of America Advertising Booking Questions? New Orleans New Orleans Chapter Chapter Call (504)619-0131. Award of Bronze Quill Award of Merit

Louisiana Bar Journal August / September 2021 116 Vol. 69, No. 2 www.lsba.org 28th AnnuAl lOuISIAnA StAtE BAR ASSOCIAtIOn ADmIRAltY SYmpOSIum

SEptEmBER 17, 2021 – nEw ORlEAnS

Richard J. Arsenault, Seminar Chair Please join respected members of the Bench and Academia, along with experienced Admiralty practitioners from both sides of the “V” as they provide unique insight into key maritime issues.

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Hon. Jane Triche Milazzo • Hon. Daniel E. Knowles III (ret.) • Hon. Jay Zainey Hon. Richard T. Haik, Sr. (ret.) • Prof. Tom Galligan • Lindsey Cheek • Dustin Carter • Blake David Jeff Tillery • Steve Herman • Alan Breaud • Jerome Moroux • Richard T. Haik, Jr. J. Christopher Zainey, Jr. • Kenneth Engerrand • Wesley J. Gralapp • Richard Stanley Peggy Giglio • Leslie Schiff • Lynn Luker • Michael S. Koch • John Yadamec • J. Michael Veron • Charles Plattsmier Eric D. Holland • Dawn M. Chmielewski • Jeffrey M. Bassett • Kathryn W. Munson For more information and to register online, please visit: www.lsba.org/CLE

Louisiana Bar Journal August / September 2021 116 Vol. 69, No. 2 www.lsba.org Louisiana Bar Journal August / September 2021 117 Vol. 69, No. 2 www.lsba.org Editor's Message

Ages and Stages

By C.A. (Hap) Martin III

his Editor’s Message may Division is actually quite young. The Privilege” as a result of the COVID-19 ramble, but there will be Senior Lawyers Division did not come pandemic and its effect on the entrance a point, so stick with me. into being until 2012 when the Young into the practice of law, including the Several things I have expe- Lawyers, originally a Section, became requirement that all applicants complete Trienced over the last few weeks have the Young Lawyers Division, and the the TIP Mentoring Program. made me consider some issues. This is- Senior Lawyers Division was creat- The problem with membership in sue of the Louisiana Bar Journal will be ed. An interesting point is that Young a group by mere status is that many of dealing with some elder law matters. I Lawyers and Senior Lawyers are almost us do not recognize that we are auto- also have spent time recently with good equal in number in the LSBA. There are matically members of the group and friends from college and their spouses. 5,745 members of the Young Lawyers fail to make the most of that status. Three people in this group are lawyers, Division and 5,556 members of the Unfortunately, on this point, I must ad- representing more than 120 years of Senior Lawyers Division. mit my own guilt. However, with rec- legal experience. I think that is impres- The purpose of the Senior Lawyers ognition can come new understanding sive, but not unusual in our Bar. Division was to keep older lawyers and a resolution to do better. The Senior Our discussions made me consider nearing retirement active in the LSBA Lawyers Division constitutes almost 25 both “seasoned” lawyers and the “new and to make the most of their exten- percent of the LSBA. Granted, many of kids on the block,” legally speaking. sive experience (such as the 120 years us are looking at retirement longingly, The Louisiana State Bar Association of experience I spoke of previously). but there is life in the old dinosaurs still. (LSBA) consists of a total Bar of 23,092 More importantly, the Senior Lawyers The point of this message is a plea to the lawyers at last count. Within the LSBA, Division focuses on the mentoring of Senior Lawyers of the LSBA to make there are only two groups in which at- younger lawyers and giving those new the most of your knowledge and expe- torneys are automatically members lawyers the benefit of the hard-earned rience, pick up the gauntlet, and help merely by reason of their status. Those knowledge of the older lawyers. Yes, with the important mentoring of young two groups are the Young Lawyers that mentoring may include “war sto- lawyers. The practice of law and our Division and the Senior Lawyers ries” from the good old days of the law, service to the public will benefit from Division. The Young Lawyers are those but those stories hold many truths. I was your experience and from your failures, members of the LSBA less than 39 years fortunate to have in my firm a senior as well as from your successes. If noth- of age or who have practiced fewer partner who, when I joined the firm, ing else, it will give you the chance to than five years, whichever is later. The had been practicing law not only gener- tell some of those war stories that you Senior Lawyers are those members of ally but from the same office for almost love so much. the LSBA in good standing who are 65 60 years. I was also fortunate to have years of age or older.1 As stated previ- him continue his practice with me for FOOTNOTE ously, both groups obtain their members an additional 15 years. Therefore, I un- merely by status under the provisions of derstand the benefits of senior lawyers 1. I am still waiting and hoping for a unicorn to the LSBA Bylaws. mentoring young lawyers. appear, an LSBA member who passes the Bar late in life (after age 60), who can then be a member of The Young Lawyers have been The Senior Lawyers Division plac- both the Young Lawyers Division and the Senior around for a long time and do great es an emphasis on the mentoring of Lawyers Division at the same time. work, as can be seen from the activities younger lawyers, as it should, particu- listed on the Division’s LSBA webpage larly since the creation of the Transition and from their activities described in Into Practice (TIP) Voluntary Mentoring each issue of the Louisiana Bar Journal. Program in 2015. Mentoring became While older lawyers have been with us even more important after the institution for a long time, the Senior Lawyers of the requirements under the “Diploma

Louisiana Bar Journal August / September 2021 118 Vol. 69, No. 2 www.lsba.org 2022 EXPERT WITNESS, CONSULTANT AND LEGAL SERVICES DIRECTORY

The Louisiana State Bar Association is publishing its Expert Witness, Consultant and Legal Services Directory. The supplement FREE to the Louisiana Bar Journal will be printed separately and shrink- text listing in December wrapped for mailing with the December 2021/January 2022 Louisiana Louisiana Bar Journal Bar Journal. The directory is published annually, guaranteeing a year’s worth of exposure in print and on the LSBA Web site. Service ! Directory ► Reach 21,000+ practicing attorneys Act Now ► Listings indexed THREE ways: alphabetical, geographical & by category ► View last year’s publication at www.lsba.org/expertwitness Technical Details ► Publication size: 8 ½ inches wide x 10 7/8 inches tall ½-page display ad...... 3.5 inches wide x 9.5 inches tall ½-page CV ad...... 300 words max, not including contact info Full-page display ad. . .7.25 inches wide x 9.5 inches tall (no bleeds!) Full-page CV ad...... 600 words max, not including contact info ► Display ads must be provided camera-ready in PDF format. ► For text/CV ads, supply text in an editable word-processing format. ► For CV ads, submit original or digital headshot photos separately from the text, in .jpg or .tif format (high-resolution digital photos of at least 300 dpi work best). ► E-mail or mail ads on a disk to the addresses provided below. ► DON’T FORGET TO PROVIDE YOUR 5 INDEXING CATEGORIES. Contact Info, Deadlines & Pricing To reserve space in the directory, mail and/or e-mail your display ad or text listing/photo, contact Krystal Bellanger Rodriguez via email at [email protected] and mail check (payable to the Louisiana State Bar Association) to: Communications Assistant Krystal Bellanger Rodriguez Louisiana State Bar Association, 601 St. Charles Ave., New Orleans, LA 70130-3404 If you prefer to charge your listing (Visa, Mastercard or Discover only), please call (504)619-0131 or (800)421-5722, ext. 131. Early Bird Deadline Final Deadline EARLY-BIRD SPECIAL! Sept. 3, 2021 Oct. 18, 2021 ½-page, black & white ...... $425...... $500 Book your ad by Sept. 3 ½-page, color...... $475...... $760 & add FULL color for only Full-page, black & white...... $750...... $900 $100/Full page or $50/Half page Full-page, color ...... $850...... $1135 Contact Krystal for details! For more information, visit www.lsba.org/expertwitness

Louisiana Bar Journal August / September 2021 118 Vol. 69, No. 2 www.lsba.org Louisiana Bar Journal August / September 2021 119 Vol. 69, No. 2 www.lsba.org President's Message INSTALLATION SPEECH: Thoughts on My Path to the Legal Profession By H. Minor Pipes III

(Editor’s Note: Excerpts from the nomically I could afford. I accepted a Frank Neuner, Guy deLaup, Kim Boyle, June 10 Installation Speech delivered by full scholarship to LSU, walking away Beth Foote, Marta Schnabel and my 2021-22 Louisiana State Bar Association from the long history of Tulane heritage partner at Stone Pigman, Wayne Lee, President H. Minor Pipes III.) in the family, and started on the path of were all very involved. All these lead- my legal career. This road has been an ers took on the role of president of this I was born and raised in Houma as a amazing one, and I am grateful to many amazing organization. fifth-generation lawyer. I was the third who have supported me along the way. I quickly realized that Bar leadership by name and the fifth by occupation, They, along with my father, have taught was not only a lot of work, but it was a but the one thing I always knew was me how to be a lawyer. chance to work side-by-side with some that I never wanted to be a lawyer. The After I graduated from LSU, I took of the best, most committed lawyers reason for that is simple. As a child, I a job at Stone Pigman where I first be- and judges in our state. Not to mention was one of three Minors. There was Mr. gan to understand what it meant to be a staff headed by Loretta Larsen, Cheri Minor, my grandfather, and there was a lawyer. On my first day, I met many Grodsky, Annette Buras, and everyone Big Minor, my father. If you ever knew barons of the Bar who became mentors at the Bar who are second to none. my father, at 6’5” and well over 300 to me, personally and professionally. In 2008, I got a call from Beth Foote, pounds, he easily fit the name. Finally, People like Phil Whitman, Campbell who asked me if I would step up and, there was me, Little Minor. Because my Hutchinson, David Stone and my first along with Judge Ricky Wicker, take grandfather and my father were both secretary, Joan Anthony. They each over running the Summer School. attorneys with a small general practice taught me that, as lawyers, we not only Ricky is an amazing judge on the 5th in Houma, everyone assumed, since I had an obligation to do great work, to Circuit and one of the hardest working shared their name, I would also follow put in the time and effort that our - cli people you will ever meet. She imme- in their footsteps. I, of course, wanted to ents both demanded and deserved, but diately made me feel comfortable by carve my own path. I think, for that, my also that we had obligations to the Bar, regaling me with stories of the time she father would be proud. to the justice system, and to society as a worked with my father. Beth had cre- No one ever pushed me to be an at- whole. We were professionals and that ated a match made in heaven. Ricky torney. I made the decision to go to was something we needed to take seri- and I worked hand-in-hand for the next law school two years after I graduated ously. 13 years, along with our co-chair, my from Penn State, while I was running a It was at Stone Pigman that I first good friend Bob Kutcher. Our goal was McDonalds in Alexandria, Va. At that started attending this Summer School. to unify the lawyers and judges and to time, my father, who was one of the My children have come almost every make Summer School a program of most joyous, loving and beloved human year since they were born. I am very which we could all be proud. beings I have ever known, suddenly lucky. I have an amazing wife of 22 A few years later, I became more passed away at the age of 50. I was 23 years, Jill. We have three sons: Henry, involved with the Louisiana Bar years old. 18; Charlie, 16; and George, 14. They Foundation, ultimately serving as presi- My father left my mother with six have grown up around this Annual dent. When you work at the LBF, you children. We later adopted my amazing Meeting/Summer School. understand that civil legal aid is more sister, Lea, and now there are seven of After practicing at Stone Pigman for than just divorce work for poor people. us. My mother, all of 48 years old, was seven years, I left to start a new firm. Instead, the LBF is the largest funder of left to pick up the pieces. Mom is an In 2002, Larry Feldman, Jr. appointed civil legal aid in this state. It helps bat- amazing woman. She has always been me to the inaugural Leadership LSBA tered women, foster children and others the glue that holds us together, but it Class. We were being taught for the first most in need of legal assistance. It was was clear she needed help. I moved back time what it meant to be involved with during that time that I felt the most like a home that Christmas, took the LSAT in our profession. I met an amazing group lawyer. Whether I was talking to volun- February, and did the only thing eco- of Bar leaders. In addition to Larry, teers, delivering grants to a legal service

Louisiana Bar Journal August / September 2021 120 Vol. 69, No. 2 www.lsba.org organization or discussing a new proj- your friends and colleagues of different ect that allowed more people access to races and try to be understanding and the justice system that we all have taken supportive of their fears or concerns. an oath to uphold, we were doing good All people, no matter their race, should work. feel safe. They should not have to worry Finally, I was elected to the LSBA’s that, because of their race, they will be Board of Governors, then as trea- singled out. Most importantly, we, in surer and now as president. I again our positions as lawyers and judges, worked with great leaders, including should ensure they are treated equally Darrel Papillion, Dona Renegar, Barry under the law. Grodsky, Alainna Mire, Larry Shea, This also applies to sexual discrimi- Richard Leefe, Mike Patterson and Bob nation. I have five sisters, all amazing Kutcher. women. But I have no doubt they have Now I want to talk about things that been in situations where they were made really matter to me and to our profes- to feel uncomfortable because they were sion. These are professionalism itself called sweetheart or honey. One of my and the idea that all of us, despite our female partners told me that on more differences, are equal. I also want to talk about equality, than one occasion opposing counsel in a Professionalism is something that we which is a hard issue, and I do not mean deposition has assumed she is the court all assume we have. Who has ever met from a political perspective. We may reporter. We have all witnessed sexual someone who admitted they are unpro- agree or disagree on trade issues, immi- discrimination. I hope that, in the future, fessional? It is similar to what Justice gration, criminal justice or even social if any of us witnesses sexual discrimina- Potter on the Supreme Court once said issues. But I believe that every man, tion, we will have the courage to speak about obscenity: We all know it when we woman and child has equal rights. That up. As my mother always told me, you see it. When I think of professionalism, I does not mean everyone is the same. We have five sisters; respect them and make think of lawyers like Phil Whitman, who are all individuals. We come from dif- sure others do, too. could be in trial with someone on Friday ferent backgrounds. These differing cir- We are lawyers. We are the ones and fishing with them on Saturday. You cumstances do not make one better than whose job it is to make sure that the took the gloves off and you fought for the other. Socioeconomic issues are one laws exist to protect everyone equally, your clients ethically and within the of the things that differentiate people that the scales of justice are fair and bal- facts and the law as they exist. You did it in this country, right or wrong, and our anced. I am asking that we make sure in a way that your opponents respected job as lawyers is to make sure that the the laws are fair and enforced properly, you, and you respected them. I have al- laws are not unequally applied to people so that this country and its citizens can ways tried to be that kind of lawyer. based on their socioeconomic status. be proud of our profession. We are hired to represent our clients Similarly is the issue of race. I was I am not here to do this alone. I am ethically, responsibly and as forcefully very lucky growing up because my fa- going to call on many of you, whether as the facts and the law will allow us, ther grew up in Houma with a father as a Summer School speaker, a commit- but that does not mean we must lose the who grew up on a plantation and un- tee member, or when I need your advice. human side of who we are. When my derstood the importance of the issue of I have always attempted to do my best father passed away in 1982, I remem- race. Throughout my life, we had family both ethically and professionally and I ber seeing many of the lawyers in our friends of all races. My father had black will serve in this role as your president small town whom he had very tough le- friends who were mentors to me. One of with the same goals in mind. gal battles with over the years. Lawyers these friends, upon hearing of my accep- I am here if you need me. I have many who he disagreed with vehemently on tance to Penn State and fearing I would plans for this year and I would like your cases came to his funeral with tears in not complete my degree, told me em- support in helping to continue to have their eyes and sadness in their hearts. I phatically, “Go get your piece of paper. one of the strongest Bar Associations in knew from that moment not only was They can’t take it back once you get it.” the country, with the best relationships he a good father, but he obviously lived This country is currently addressing with our judges and the Supreme Court, a good professional life. My recom- very important issues of race. I cannot for a Bar that we can all be proud of. mendation is to take that to heart, think say I understand what the black com- about it when you are in a case and the munity has gone through, and continues opportunity presents itself to do some- to experience, but I can say I empathize thing that may be advantageous to you with their fears and anger. It is not ac- or your client but you know is question- ceptable in 2021 for these issues to con- able. Take a step back and think, “Do I tinue. For those of you who do not un- want to be remembered for this act?” derstand this issue, I ask that you talk to

Louisiana Bar Journal August / September 2021 120 Vol. 69, No. 2 www.lsba.org Louisiana Bar Journal August / September 2021 121 Vol. 69, No. 2 www.lsba.org Protecting Clients’ Benefits: A Litigator’s Guide to Special Needs Trusts

By Sean M. Morrison

Louisiana Bar Journal August / September 2021 122 Vol. 69, No. 2 www.lsba.org Clients are complex. It’s one thing to Christina’s family sued Tom for mal- Security Administration (but is not the navigate the legal system. It’s another practice, claiming he did not properly same thing as Social Security retire- to understand the complexities of your advise them about how structured set- ment or SSDI). To be eligible for SSI, clients’ lives. But as attorneys, we have tlements and special needs trusts could the person must be disabled (using the an ethical obligation to work in their be used to help them. Ultimately, Tom same criteria as Social Security disabil- best interests. Clients with special needs settled the case for $4.1 million.2 ity), have assets less than $2,000 (with or disabilities are particularly vulner- This is not a hypothetical and these some exceptions, including a house and able and often introduce litigators to cases continue to happen. Your mal- car)3 and a low monthly income.4 SSI the complexities of government benefits practice insurance carrier is certainly provides only relatively minor benefits. laws. This article explores the pitfalls of aware of these risks. Winning a great Currently, in Louisiana, it only pays a managing a client’s reliance on govern- settlement for your client is no longer maximum of $794 per month for a sin- ment benefits in the context of litigation, enough. It is vital to be knowledgeable gle individual.5 and offers some tools for litigators in about settlement methods that can pro- Due to the asset limits, windfalls can planning for their settlements and judg- tect your client, especially if they re- be particularly dangerous. A sudden in- ments. ceive government benefits. flux of income that pushes assets above the $2,000 limit can eliminate many The Terrible Tragedy of The Pitfalls of Means- benefits. This is common when a person Tom Pettiette Tested Benefits receives an inheritance or gift or wins a judgment or settlement. Fortunately, we Tom Pettiette was a seasoned trial at- For many people with special needs have legal tools to protect clients from torney in Texas. He recognized a good or disabilities, government assistance losing their benefits due to windfalls case when he saw one. Christina Grillo is crucial. Often, housing, medical care such as these. and her mother brought him a good and specialized education is only avail- case. Christina had been born with se- able with assistance. While there are Special Needs Trust vere brain damage, quadriplegia, blind- myriad government benefit programs, Overview ness and seizures allegedly due to the both at the state and federal level, liti- doctor’s negligence at her birth. Tom gation proceeds tend to impact “means- Of the tools attorneys can use to pro- helped Christina and her mother sue the tested” benefits. tect their clients’ benefits, the most com- hospital. Eligibility for various benefits pro- mon and most powerful is the special Christina’s lifecare plan said she grams varies greatly, but these programs needs trust. Assets placed in a special would need about $20 million in medi- can generally be broken down into two needs trust do not count as available as- cal care over the course of her life. Tom categories: means-tested and universal sets for purposes of means-tested ben- used that to secure a $1.2 million struc- benefits. Means-tested programs are those efits programs like SSI and Medicaid. tured settlement offer from the hospital. which stipulate income or asset limits Special needs trusts were created in 42 But Tom knew he could do better for the to those who are eligible. Examples of U.S.C. § 1396p(d)(4) to provide protec- family. He pushed and eventually the means-tested programs include Medicaid, tions for individuals with special needs hospital agreed to a $2.5 million lump- Supplemental Security Income (SSI), so that their healthcare needs did not sum settlement — more than double the SNAP (food stamps) and Federally force them to be either independently original offer. It was a big win. Assisted Housing (Section 8). Universal wealthy or stuck in poverty. However, as personal injury attor- programs are all the rest, such as Social Like all trusts, special needs trusts neys know, clients spend their settle- Security retirement, SSDI and Medicare. have a settlor, a trustee and a beneficia- By Sean M. Morrison ments quickly. A study of accident vic- The two programs of most conse- ry. Special needs trusts must be irrevo- tims receiving settlements showed that quence for litigators are Medicaid and cable, for the sole benefit of the benefi- 25-30% completely spent their settle- SSI. For clients with special needs or ciary, and the beneficiary cannot be the ments within two months, and 90% are disabilities, losing Medicaid essentially trustee. Typically, the trustee is institu- fully spent within five years.1 means they lose their healthcare. SSI tional, or somebody trained in managing The Grillos were no different. Tom’s benefits are modest, but the program special needs trusts due to their unique settlement disqualified Christina for is very important because a person eli- requirements. Medicaid. Instead, the family had to pay gible for SSI is automatically eligible Special needs trusts can pay only for medical costs out-of-pocket at the high- for most other means-tested benefits, certain expenses. While the list is quite est billing rate (called “fee-for-service”) including Medicaid. Conversely, losing extensive, they are generally barred from rather than the negotiated or free rates SSI eligibility can mean clients also lose paying for food, housing or medical ex- offered by Medicaid. The money Tom their healthcare, Section 8 housing, food penses already covered by Medicaid — had won for his client was gone in just a stamps, and so on. basically anything that the government few years and his win became a liability. SSI is administered by the Social benefits are already providing.

Louisiana Bar Journal August / September 2021 122 Vol. 69, No. 2 www.lsba.org Louisiana Bar Journal August / September 2021 123 Vol. 69, No. 2 www.lsba.org There are three types of special needs Early planning is better. Medicaid Wheelchair-accessible vehicles, ramps trusts — first-party, third-party and may place a lien on lawsuits which takes for the house or accessible bathrooms pooled trusts. A first-party special needs before attorney fees, but this lien affects have high price tags and can spend down trust is created by the beneficiary’s as- only injuries that Medicaid has paid for. funds very quickly. Other permissible sets and he or she must be under 65 There is often room for negotiation if expenditures include prepaid funeral ex- years old when the trust is created. This discussions are begun early. penses, paying off debt and mortgages, is the most common in the context of Even late planning is not too late. education and entertainment expenses, litigation because a settlement or judg- Once the client is in actual or construc- vacations and best of all — attorney fees. ment is considered the client’s funds. tive possession of the settlement funds, A third-party trust is funded by his/her benefits will be impacted. But ABLE Accounts someone other than the beneficiary. This a trust can still be established. In those The pseudo-alternative to special is common in estate planning, where a situations, it is best to contact a special needs trusts are ABLE accounts. These parent or grandparent bequeaths to the needs planning attorney right away to relatively new tools were introduced trust rather than to the child. The pri- help mitigate the impacts. in 2014 through the Achieving a Better mary difference between the first- and Life Experience Act. They operate third-party is that in a first-party trust, Other Planning Tools similarly to 529 college savings ac- on the beneficiary’s death, the remain- counts (they are 529A accounts). In der of the trust assets must first reim- Special needs trusts are not always Louisiana, they are managed by the burse Medicaid for any healthcare ex- appropriate. The cost of establishing a Louisiana Office of Student Financial penses from the beneficiary’s life. If special needs trust and the expenses of Assistance.6 Originally, they were de- the beneficiary had significant medical management may not make sense for signed as an alternative to special needs needs, there is usually nothing left for smaller settlements. There is no specific trusts. However, the restrictions on the the contingent beneficiaries. dollar amount that would act as a cutoff, accounts have led them to be far less uti- Finally, a pooled trust is managed by though anything under $15,000 might lized than originally intended. a special nonprofit organization which be put in an ABLE Account (see below). Like a special needs trust, funds manages many of these trusts at the Conversely, a settlement large enough in ABLE accounts do not count as as- same time. The remainder of the trust at to cover both medical expenses and a sets for purposes of SSI and Medicaid the child’s death is left to the organiza- satisfying lifestyle may not warrant the eligibility and have similar spending tion’s pooled fund to help others. restrictions of a special needs trust. restrictions. But there is no trustee, so While special needs trusts are the the beneficiary can manage his/her own Where Special Needs most powerful and useful of the tools, account. This is very important to those Trusts Fit in Litigation they are not the only protection for ben- who have the capacity to manage their efits. By understanding the myriad regu- money, but still rely on benefits. Special needs trusts should be cre- lations involving the individual benefits, The downside is the ABLE account ated during litigation to avoid interrup- combined with financial planning and restrictions. First, the disability must tions in benefits. Even funds sitting in other legal tools, it’s possible to create have occurred before the client turned your IOLTA account are considered to spending and savings plans that meet 26 years old to qualify. Second, the con- be in the client’s “constructive receipt” your clients’ goals without jeopardizing tribution limit is just $15,000 per year, and will count against their eligibility. their benefits. and the account can hold a maximum That is why planning must begin before of only $100,000. Finally, like the first- the settlement agreement or judgment is Spend-Down Options party special needs trust, any funds left in place. One option is to simply spend the over after the beneficiary’s death are Plaintiffs’ attorneys should ensure money before it impacts benefits. SSI subject to Medicaid reimbursement. that the settlement agreement states that is based on the client’s assets at a par- the proceeds be paid to the trustee of the ticular time each month. But there can Pooled Trusts special needs trust rather than to the cli- be variation within the month. If a client As described above, pooled special ent directly. In the case of a judgment, gains a windfall, it is possible to spend needs trusts are another tool that can be the court must be aware of the need for down the money on qualified expenses used. Because pooled trusts are already a special needs trust so that the damages before the review date. However, the established, they have significantly de- can be awarded accordingly. While it spend-down technique requires plan- creased set-up costs. Some examples is no longer required that the court es- ning because there are limits on how of organizations that manage pooled tablish the trust, it is beneficial to do so. the money can be used. A common mis- special needs trusts in Louisiana are It adds legitimacy to the trust, and this step is to gift the money to family mem- the Commonwealth Community Trust, may help satisfy SSA or Medicaid scru- bers, which causes a penalty period that Louisiana Pooled Trust and the National tiny. counts against the benefits. Foundation for Special Needs Integrity.

Louisiana Bar Journal August / September 2021 124 Vol. 69, No. 2 www.lsba.org For smaller settlements, or clients because his parents’ income is too high to clients and protect you from a costly who are over 65 years old when the trust qualify. The settlement is $100,000. malpractice claim. It is no good to fight is created, pooled trusts provide a great Analysis: Even though the client and win for your client, only to have the alternative to the legal and trustee fees does not currently receive SSI, he may settlement burned up with medical costs associated with other types of special be eligible when he turns 18. His dis- when it could easily be protected. needs trusts. ability — both autism and his new phys- When you have a client on means- ical disability — must first be accepted tested benefits, you should present them Hypotheticals by the Social Security Administration. with the benefits of a special needs trust Assuming he qualifies, a special needs or other planning measures. If they de- Clients are complex, and unique. A trust would make sense financially. cline to use these planning tools, then client without cognitive disabilities may However, there may be other planning you should outline the risks in a letter want more control. A client with high options. reiterating your recommendation and up-front needs may utilize more spend- Since his injuries require a wheel- seeking their waiver of the options. downs. A client with a shorter life expec- chair, he may want to purchase a wheel- These waivers are aptly called Grillo tancy may have more concern over what chair van, a ramp for his house and build letters. happens to the assets on his/her passing. an accessible bathroom. These may cost Proper planning often uses a combina- $55,000 up front. His disability oc- FOOTNOTES tion of tools to fit a client’s needs. A few curred before he was 26, so he could hypotheticals may illustrate how plan- open an ABLE account. A structured 1. William F. Flahaven et al., California ning can meet various needs. settlement could make annual contribu- Practice Guide: Personal Injury (The Rutter Group tions up to the $15,000 limit for the next ©1992), Ch. 4. 2. Josephine Grillo, As Guardian and As Next Hypothetical 1 three years. This would avoid a special Friend for Christina Grillo, A Minor v. Tom L. A 45-year-old man with Down syn- needs trust completely. Alternatively, Pettiette, T.E. Swate, and Hardy Milutin & Johns, drome is involved in a slip-and-fall case. the remaining funds not otherwise spent 96th District Court, Tarrant County, TX, No. 96- down could be placed in a pooled trust 145090-92. Settlement amounts as reported in He already receives SSI, Medicaid and Lawyers Weekly, 8/2/2001. other means-tested government benefits to avoid the expenses of creating and 3. These are the 2021 numbers for a single in- because Down syndrome is automati- managing a first-party special needs dividual. The asset limit for a married couple is cally classified a disability by the Social trust. $3,000. As income or assets increase, there is an offset to SSI benefits, which can get complicated. Security Administration. You settle the There are income exclusions, forms of income that case for $150,000. Hypothetical 3 do not count against benefits, and dollar-for-dollar Analysis: The client is already cat- Your client is on both Medicaid and decreases in benefits. This article is not the place egorized as disabled and receives Medicare (called dual eligibility). You to dig into the complexities of SSI benefits. Suffice help her obtain a recovery in a worker’s it to say that if that decrease in benefits reaches $0 means-tested benefits. Without plan- for the month, all other benefits programs attached ning, he would be forced to spend the compensation case. The Department of to SSI eligibility are also suspended. entire settlement on ongoing medical Health and Human Services determines 4. Determining the income limit is more com- expenses, whether due to the injury or that a Medicare Set Aside (MSA) ac- plicated than the assets. It includes income from count is appropriate. various sources, but also accounts for a number his underlying condition. After a couple of exclusions. SSI income limits are beyond the of years paying out-of-pocket for medi- Analysis: The funds put into the scope of this article. cal care, the settlement money is gone. MSA must be spent down before the 5. As of 2021. The amount is $1,191 for a Ultimately, the whole case was a wash client will receive future Medicare ben- couple. 6. https://www.able.osfa.la.gov/. as it left the client no better than before. efits. However, the MSA account is considered an available asset that counts This is a prime case for a structured Sean M. Morrison is an settlement paying directly into a special against the client for her Medicaid ben- attorney in Slidell prac- needs trust. The client would continue efits. In this situation, the MSA account ticing business and es- to enjoy Medicaid and SSI, but he could can actually be placed in a special needs tate planning. He helps trust to protect the Medicaid benefits. families of individuals now use the assets in the special needs with special needs create trust for vacations, education or debt special needs trusts and payments. Your work with the client im- Conclusion manage disability ben- proved his lifestyle. efits so they can rest as- sured their child is cared Financial planning for clients with for. ([email protected]; Hypothetical 2 special needs or disabilities is usu- Ste. 305, 155 Robert St., A 17-year-old man with autism is in- ally the last thing a litigator wants to Slidell, LA 70458) jured such that his legs no longer work. His deal with. However, proper planning family does not receive SSI at the moment can have a significant impact on your

Louisiana Bar Journal August / September 2021 124 Vol. 69, No. 2 www.lsba.org Louisiana Bar Journal August / September 2021 125 Vol. 69, No. 2 www.lsba.org Ancillary Estate Planning and

Critical Questions

By J. Grant Coleman

Louisiana Bar Journal August / September 2021 126 Vol. 69, No. 2 www.lsba.org lmost every lawyer un- tions of IRAs and qualified plans such The springing or conditional power derstands the importance as 401(k) plans. of attorney only goes into effect when of a will. However, cli- ► List of all digital assets or digital the client is determined to be incapaci- ents are often surprised accounts, with user IDs and passwords. tated. Thus, it is extremely important at the priority of inheri- ► Copies of life insurance policies to have a mechanism for determining tanceA in intestate successions. Clients and beneficiary designations of life in- incapacity. La. R.S. 9:3890 authorizes a also can be unpleasantly surprised when surance policies. conditional power of attorney if two li- a loved one becomes incapable of han- ► Copies of acts of sale or deeds of censed physicians provide notarized af- dling her financial or other affairs for real estate owned (if real estate is locat- fidavits attesting to the client’s inability extended periods of time (or perma- ed out of state, consider transferring it to handle her affairs. Springing powers nently), as the administration of assets to a revocable trust or a family entity to of attorney are commonly acceptable to can be tricky without proper advanced avoid ancillary probate). third parties if they are accompanied by Ancillary planning. ► List of bank and brokerage ac- statements of two licensed physicians, While this goal can be accomplished counts. and the incapacity as so determined is through jointly owned or administered ► List and location of other valuable consistent with the statutory require- accounts, the prospect of an interdiction assets. ments. In this regard, it is extremely hearing is unpleasant and can easily be ► Location of bank safe deposit box important that the method of determi- avoided by the use of relatively simple (and key). nation of incapacity is consistent across powers of attorney as ancillary docu- ► Copies of ownership agreements all ancillary documents, particularly if a ments to the will. It is noted that clients relating to closely-held businesses revocable trust is used. can also use a revocable “pour-over” (shareholders’ agreements, operating If a client owns real estate in a state trust approach to estate planning, where agreements, partnership agreements, other than Louisiana, it may be neces- the trust is funded prior to the death or buy/sell agreements). sary to have a power of attorney which incapacity of the client, which can ame- ► Addresses or contact information complies with that state’s law regarding liorate the need for powers of attorney. for legatees or beneficiaries. the handling of real estate transactions. However, such a trust adds a level of complexity to the estate planning that is Financial Management Healthcare Management 1 beyond the scope of this article. Documents Documents

Helping Your Client Absent the revocable trust approach In addition to financial management Organize the Estate to Help discussed briefly above (where sub- documents, it also is recommended that Questions the Executor stantially all of the assets of the client the client have a health care power of are placed into a revocable trust prior attorney which is immediately effective. There are a few simple things that to death or incapacity), it is highly rec- This is very useful if the agent needs to your client can do in advance to make ommended that clients have in place obtain the determination of incapacity life easier for those who will be han- financial management documents prior documentation from the treating physi- dling the estate after she has passed to incapacity. These consist of either an cians, as, depending on the relationship away or become incapacitated. Helping immediate or “springing” power of at- of the agent to the principal, federal your client organize for estate planning torney for financial matters. The power medical privacy laws may prevent the can very effectively simplify the admin- of attorney would authorize appropri- providers from advising the agent re- By J. Grant Coleman istration of her succession. This can be ate family members or other advisors garding the capacity of the principal to extremely important in the context of a to handle a broad range of financial and allow for the effectiveness of the power client who is not married or whose fam- business transactions on behalf of the of attorney. ily is not in the local area. Following is a client. An additional document which com- list of items or documents that the client If the client is healthy and is not in any plements the foregoing is the so-called should collect and identify the location need of immediate assistance, the power living will or advance directive, which of to the executor or agent in advance: of attorney can be contingent on the cli- is authorized under La. R.S. 40:1151, et ► Copies of and location of origi- ent’s incapacity. Otherwise, the power seq. This document provides for certain nal executed estate planning documents of attorney can be immediate and the end-of-life decisions to be made by the (will, general power of attorney, health appointed agent can begin handling the client rather than pursuant to a medicare power of attorney, living will). affairs as may be necessary on behalf of cal power of attorney or other author- ► Information on advance funeral the client. Louisiana powers of attorney ity. Careful attention should be made in arrangements. (mandates) are governed by Louisiana drafting and executing the living will as ► Copies of beneficiary designa- Civil Code Article 2989 et. seq. the Louisiana statutory form provides

Louisiana Bar Journal August / September 2021 126 Vol. 69, No. 2 www.lsba.org Louisiana Bar Journal August / September 2021 127 Vol. 69, No. 2 www.lsba.org for a choice between withholding all treatment or withholding all treatment except for nutrition and hydration.2 There was a well-known case in South Florida a few years ago where the patient was removed from a ventilator but continued to live for a long period of time through an artificial feeding method. There followed a lengthy court battle over who had the authority to terminate her artificial feeding, raising fundamental issues of right to life.3 Miss Schiavo suffered a heart attack at a relatively young age and, due to a lack of oxygen during the episode, suffered irreversible brain damage. After several months, she was determined to be in a persistent veg- etative state and kept alive only through the use of a feeding tube. After several years, her husband petitioned the courts to remove her feeding tube but he was opposed by her parents. There followed a series of legal actions including multiple trials and appeals in both state and Louisiana Organ Procurement Agency FOOTNOTES federal courts and both state and federal 4 legislation. The ultimate result was her is advised. In addition, any desired fu- feeding tube was permanently removed neral instructions should be in writing, 1. For an excellent overview on the use of revocable trusts, see Louisiana Estate Planning, and she died. This case is a lesson for if not handled in advance by the client, and include the person who has the au- Will Drafting and Estate Administration, Section why a living will is essential so that dis- 10.1 (Matthew Bender), authored by Max Nathan putes between family members regard- thority to manage the funeral, especially and Carole Neff. ing actions to take in similar situations in situations where the classic husband/ 2. See, La. R.S. 40:1151.2 for form. 3. See, Schindler v. Schiavo (In re Schiavo), will not be necessary. wife relationship does not exist. Funeral instructions should not be kept in a safe 916 So.2d 814 (Fla. Dist. Ct. App. 2005) (outlin- Most clients will opt to have all arti- ing this matter’s extensive legal history). ficial means of support terminated, but deposit box, which likely will not be 4. The Louisiana Organ Procurement Agency the occasional client, either for religious opened under after the funeral. (LOPA) is an independent, not-for-profit organ and tissue recovery agency. Its website is located reasons or otherwise, does not want nu- at https://www.lopa.org. trition and hydration withheld and some Conclusion do not wish to have an advance direc- J. Grant Coleman, a tive at all. Indeed, the author had one When discussing estate planning member in the New with your clients, one should consider Orleans office of King & client who proclaimed he wanted all of Jurgens, LLC, practices his wealth (which was substantial) to be the following critical questions: primarily in the areas used to prolong his life, even cryogen- ► Is the appointed executor ade- of taxation, estate plan- ics, as long as possible, in hopes that a quately prepared to handle the adminis- ning, fiduciary litigation tration of the succession? and business law. He future cure may be found. has been certified by the ► Is there a plan for dealing with Louisiana Board of Legal After Death Organ financial and health care management Specialization as a tax for the client in the event of incapacity law specialist since the Donation, Custody of before death? inception of the Louisiana Specialization Program in 1985. He also is a Fellow in the American Remains ► Is there a mechanism to determine College of Trust and Estate Counsel. (jcoleman@ the client’s incapacity under the finan- kingjurgens.com; 201 St. Charles Ave., 45th Flr., If the client wants to have an organ cial management documentation? New Orleans, LA 70170) or tissue donation, it is very important to ► Has the client made an educated have written documents to provide for decision regarding end-of-life issues? that in order to make certain the client’s ► Who will be in charge of the fu- wishes are upheld. Registration with the neral?

Louisiana Bar Journal August / September 2021 128 Vol. 69, No. 2 www.lsba.org WeWe got got insurance insurance forfor that.that.

GilsbarPRO.com/Get-a-quoteGilsbarPRO.com/Get-a-quote Louisiana Bar Journal August / September 2021 128 Vol. 69, No. 2 www.lsba.org Louisiana Bar Journal August / September 2021 129 Vol. 69, No. 2 www.lsba.org Supported Decision-Making for Adults with Disabilities By Joel A. Mendler

Louisiana Bar Journal August / September 2021 130 Vol. 69, No. 2 www.lsba.org ouisiana has adopted a propriate.6 Furthermore, the petition in ships and restoration of rights.11 Several Supported Decision-Making any interdiction now must set forth, to states have adopted SDM laws which Agreement Act to provide a the extent known after making a reason- widely vary on the requirements of an less restrictive option over able effort to obtain such information, SDM agreement (SDMA). Louisiana’s Linterdiction for adults with disabilities a description with particularity of the SDMA Act (a/k/a Dustin Gary Act) is who need assistance with making their petitioner’s efforts to use less restrictive designed to allow an adult with a dis- own decisions regarding daily living.1 means before seeking the interdiction, ability12 to choose a trusted person or Supported decision-making (SDM) is including all of the following: (a) the persons (supporter) to support the adult a process of supporting and accommo- less restrictive means for meeting the in making the adult’s own decisions and dating such individuals to make their defendant’s needs that were considered exercising the adult’s legal capacity by own life decisions without impeding or implemented; (b) if a less restrictive authorizing the supporter to gather and their right of self-determination, includ- means was not considered or imple- present relevant information, to help the ing decisions related to where the adult mented, the reasons why; and (c) the adult understand and weigh decisions, wants to live, the services and support reason a less restrictive means is insuf- including potential risks, options and the adult wants to receive,2 with whom ficient to meet the defendant’s needs.7 likely outcomes and consequences, and the adult wants to live, where the adult Some less restrictive alternatives in- to communicate the adult’s decisions to wants to work, and management of fi- clude: third parties and/or assist in implement- nancial and medical affairs. Judges, ► powers of attorney;8 ing such decisions.13 The execution of lawyers and disability and elder rights ► trusts (supplemental needs trust, a SDMA does not preclude the ability advocates should consider SDM as the asset management trust or an inter vivos of the adult to act independently of the alternative to a court-based interdiction trust); agreement.14 It should be noted that the in appropriate circumstances to avoid ► representative payeeship for fact that an adult with disabilities makes unnecessary deprivation of the indepen- Social Security or SSI benefits; an imprudent or poor decision as to his dence, autonomy and inclusion of adults ► consumer credit counseling; or her person and/or property does not with disabilities within the limitations of ► reverse mortgage; mean that the adult is unfit to make deci- their decision-making abilities. ► prepaid credit cards (True Link sions altogether. The supporter does not Interdiction is a harsh remedy, de- Financial VISA); make decisions on behalf of the adult priving the interdict of personal deci- ► medical consent laws;9 with a disability but is required only to Adults with sion-making in favor of the substituted ► home healthcare services; support the will and preference of the judgment of a curator based upon the ► community mental health center adult and not the supporter’s opinion curator’s own determination of the in- programs or partial hospitalization proof the adult’s best interests.15 The sup- terdict’s best interests, not necessar- grams; porter is limited to exercising only the ily upon the interdict’s own values and ► Alzheimer Association services; authority granted under the SDMA.16 Disabilities preferences. Full interdiction requires ► adult daycare or other daycare The SDMA can specify the decisions clear and convincing evidence due to an programs; about which the adult does not want the infirmity that the adult is unable to con- ► Council on Aging programs supporter’s assistance. sistently make reasoned decisions (or (transportation, companion services, The SDMA must be by authentic act communicate those decisions) as to both homemakers, Meals on Wheels); signed by the adult and must contain a the adult’s personal care and property.3 It ► programs sponsored by religious separate declaration signed by each sup- has been characterized as a pronounce- institutions; porter named in the agreement indicat- ment of civil death and as a last resort.4 ► pharmacy and grocery delivery ing the supporter’s relationship to the A limited interdiction may be available services; adult, willingness to act as a supporter, if the adult, due to an infirmity, is unable ► assistive technology devices; and acknowledgement of the duties of to consistently make reasoned decisions ► service animals; and the supporter.17 Sample SDMAs used in (or communicate those decisions) as to ► Louisiana’s Adult Protection other states can be downloaded from the either personal care or property matters, Services (for cases of abuse, neglect or Internet. The SDMA may be revoked by or any aspect of either.5 However, both financial exploitation).10 authentic act at any time by the adult or types of interdiction are unavailable if The American Bar Association has by a supporter.18 The adult can change the court determines that the adult’s in- urged states to require that SDM be the SDMA as needed, such as by adding terests can be protected by less restric- identified and fully considered as a less or eliminating supporters or by having a tive means. restrictive alternative to guardianship different type of help in making certain The petition in a full interdiction and has urged courts to consider SDM kinds of decisions. The SDMA termi- proceeding must state with particular- before granting guardianship as well as nates under a variety of circumstances, ity why a limited interdiction is inap- grounds for termination of guardian- including by the adult’s execution of a

Louisiana Bar Journal August / September 2021 130 Vol. 69, No. 2 www.lsba.org Louisiana Bar Journal August / September 2021 131 Vol. 69, No. 2 www.lsba.org valid power of attorney (except to the 6. La. C.C.P. art. 4541A(4). extent the power expressly continues, 7. La. C.C.P. art. 4541A(11), as amended by Act No. 258 (2020). in whole or in part, the SDMA) or by 8. La. Civ.C. arts. 2989 et seq. (mandate); La. a competent court’s appointment of a R.S. 9:3890 (conditional procuration); La. R.S. temporary or permanent curator for the 28:223 (mental health advance directive); La. R.S. adult (unless the court’s order of ap- 9:3861 et seq. 9. La. R.S. 40:1159.1, et seq. pointment expressly modifies but con- 10. La. R.S. 15:1501, et seq. tinues the SDMA and limits the powers 11. ABA Resolution 113 and 105, adopted and duties of the curator).19 Aug. 14, 2017, and Aug. 3-4, 2020, and accompa- The SDMA may grant the supporter nying Report to ABA House of Delegates. 12. An adult with a disability is broadly de- access to personal information, includ- fined under the Americans with Disabilities Act of ing protected health and educational re- 1990 (42 U.S.C. § 12102) as either a person who cords, relevant to a decision authorized has a physical or mental impairment that substan- under the SDMA.20 The supporter must tially limits one or more major life activities, who has a history of such impairment or who is per- ensure all information is kept privileged ceived by others as having such impairment. and confidential, as applicable, and is Conclusion 13. La. R.S. 13:4261.201. not subject to unauthorized access, use 14. La. R.S. 13:4261.102(3)(c). or disclosure.21 A supporter is prohibited A SDMA is one of several less re- 15. La. R.S. 13:4261.201(1) and strictive alternatives to an interdiction. 13:4261.203(1). from obtaining information acquired for 16. La. R.S. 13:4261.203(3). a purpose other than assisting the adult It has the advantage of potentially in- 17. La. R.S. 13:4261.205C and D. in making a specific decision authorized creasing the self-determination of cer- 18. La. R.S. 13:4261.206A and B. by the SDMA unless the adult consents.22 tain adults with disabilities, empowering 19. La. R.S. 13:4261.207. them to retain their dignity and personal 20. La. R.S. 13:4261.208A and B. Likewise, the adult’s consent is required 21. La. R.S. 13:4261.208B. for the supporter to obtain nonpublic per- autonomy in some or all of the decisions 22. La. R.S. 13:4261.204(2). sonal financial information furnished by regarding their daily lives. The SDMA 23. La. R.S. 13:4261.204(4). the adult to a financial institution.23 should be coupled with springing health 24. La. R.S. 13:4261.201. care and financial powers of attorney 25. La. R.S. 13:4261.203(2) and (4). One concern about SDM is that the 26. La. R.S. 13:4261.204(1) and (3). supporter could use a SDMA to unduly which become effective upon the adult’s 27. La. R.S. 13:4261.207A(5). influence or exploit the adult decision- inability to make his or her own deci- 28. La. R.S. 13:4261.302. Any person who maker. However, the adult with a dis- sions, even with the advice and assis- knowingly and willfully fails to report to APS tance of designated supporters.29 may be subject to criminal penalties. La. R.S. ability must voluntarily enter into the 14:403.2A. Provisions related to immunity from SDMA without undue influence or co- civil and criminal liability for good faith support- ercion.24 The supporter is required to act FOOTNOTES ers and third parties in H.R. 361 were deleted in honestly, diligently and in good faith the final bill. 29. La. R.S. 13:4261.207A(7). within the scope set forth in the SDMA 1. La. R.S. 13:4261.101-301, et seq. (Act No. 25 258 2020). and to avoid conflicts of interest. The 2. Support services means a coordinated sys- Joel A. Mendler is a supporter is prohibited from exercising tem of social or other services supplied by pri- member in the New undue influence upon the adult or acting vate, state, institutional or community providers Orleans office of Baldwin outside the scope of authority provided designed to help maintain the independence of an Haspel Burke & Mayer, 26 adult with a disability, including homemaker-type LLC. He is a board- in the SDMA. A competent court may services (including house repair, home cleaning, certified tax specialist terminate the SDMA if it determines laundry, shopping and meal provisions), compan- and estate planning and that the supporter has used it to com- ion-type services (including transportation, escort administration special- mit financial exploitation, abuse or ne- and facilitation of written, oral and electronic ist, as certified by the 27 communications), visiting nurse and attendant Louisiana Board of Legal glect of the adult. Finally, if a person care, healthcare provisions, physical and psycho- Specialization. He coun- who receives a copy of the SDMA or is logical assessments, legal assessments and advise- sels families and their aware of its existence and has cause to ment, and hands-on treatment of care, including attorneys on financial and legal planning for per- believe that the adult is being abused, assistance with activities of daily living and care sons with disabilities, including preservation of planning. governmental benefits with special needs trusts, neglected or exploited by a supporter, 3. La. Civ.C art. 389. interdictions and Medicaid eligibility. (jmendler@ then such person is required to report 4. Doll v. Doll, 156 So.2d 275, 278 (La. App. bhbmlaw.com; Ste. 3600, 1100 Poydras St., New the alleged abuse, neglect or exploita- 4 Cir. 1963); Revision Comment (e) to La. Civ.C. Orleans, LA 70163) tion to the appropriate authorities, such art. 389. as Adult Protective Services.28 5. La. Civ.C. art. 390.

Louisiana Bar Journal August / September 2021 132 Vol. 69, No. 2 www.lsba.org 21ST ANNUAL LOUISIANA STATE BAR ASSOCIATION COMPLEX LITIGATION SYMPOSIUM

NOVEMBER 5, 2021 – NEW ORLEANS

Richard J. Arsenault, Seminar Chair Our speakers include the nation’s leading complex litigation academicians, jurists, and members of the bar from both sides of the “ V.” These are the folks that are presiding over, writing about, and litigating the most significant cases in the country. They are the who’s who of the complex litigation bench and bar. Speakers Include:

Hon. Eldon Fallon • Hon. Carl Barbier • Hon. Glenn Norton • Hon. Ken Starr • Hon. W. Royal Furgeson, Jr. Hon. R. David Proctor • Hon. Karen K. Caldwell • Hon. John Garvey • Hon. Sarah Vance • Hon. Ed Kinkeade Hon. James Stanton • Khaldoun Baghdadi • Mark Lanier • Rachel Lanier • Tony Clayton • James Murdica Joe Rice • James Williams • Prof. Elizabeth Fraley • Rick Meadow • Lindsey Cheek • Scott Partridge William Dodero • Blake Deady • Scott Freeman • Robert Dassow • Paul Pennock • Shannon Pennock Mike Morgan • Jayne Conroy • Kurt B. Arnold • Jason Itkin • Aaron Heckaman • Grant Davis Prof. Lynn Baker • Lori Cohen • Eric Holland • Lana Varney • Bob Drakulich • Nick Drakulich Raymond Silverman • Melanie Muhlstock For more information and to register online, please visit: www.lsba.org/CLE

Louisiana Bar Journal August / September 2021 132 Vol. 69, No. 2 www.lsba.org Louisiana Bar Journal August / September 2021 133 Vol. 69, No. 2 www.lsba.org a new JUNE 6-11, 2021 ideas abound destin, florida 2021 lsba annual meeting & joint lsba/ljc summer school

H. Minor Pipes III, left, a founding member of the New Orleans law firm Pipes Miles Beckman, LLC, was installed as the 81st LSBA president by Louisiana Supreme Court Chief Justice John L. Weimer. Photo by Matthew Hinton Photography.

Louisiana Bar Journal August / September 2021 134 Vol. 69, No. 2 www.lsba.org The Louisiana State Bar Association’s 2021-22 officers and members of the Board of Governors. Seated from left, Lila T. Hogan, Louisiana State Law Institute; Ann S. Siddall, House of Delegates Liaison chair; John E. McAuliffe, Jr., treasurer; Alainna R. Mire, immediate past president; H. Minor Pipes III, president; Stephen I. Dwyer, president-elect; Erin O. Braud, District 2; Tina L. Suggs, at-large; and Dwazendra J. Smith, District 3. Standing from left, John M. Church, Louisiana State University Paul M. Hebert Law Center; Graham H. Ryan, Young Lawyers Division chair; Todd S. Clemons, District 4; Keenan K. Kelly, House of Delegates Liaison member; Scott L. Sternberg, District 1; Blake R. David, at-large; Curtis R. Joseph, Jr., District 8; Charles D. Elliott, District 6; Adrian G. Nadeau, District 5; W. Michael Street, District 7; and Lawrence J. Centola III, District 1. Photo by Matthew Hinton Photography. LSBA Installs 2021-22 Officers and Board of Governors

The Louisiana State Bar Association’s Louisiana Bar Journal. cipal member of the New Orleans law (LSBA) 2021-22 officers and - mem John E. McAuliffe, Jr., an attorney firm of Martzell, Bickford & Centola. bers of the Board of Governors were in the Metairie office of Frederick A. ►Scott L. Sternberg, managing installed June 10 at a ceremony at the Miller & Associates, is beginning his partner of the law firm of Sternberg, LSBA’s Annual Meeting in Destin, Fla. second year of a two-year term as trea- Naccari & White, LLC, with offices in H. Minor Pipes III, a founding surer. New Orleans and Baton Rouge. member of the New Orleans law firm Alainna R. Mire, chief resilience of Pipes Miles Beckman, LLC, was in- officer and an assistant attorney for the Second District stalled as the 81st LSBA president by City of Alexandria, will continue her ► Erin O. Braud, staff counsel Louisiana Supreme Court Chief Justice service to the LSBA as the 2021-22 im- for The Hartford Insurance Co. (Law John L. Weimer. mediate past president. Offices of Julie E. Vaicius) in Metairie. Stephen I. Dwyer, a founding Graham H. Ryan, a partner in the member and managing partner of the New Orleans office of the law firm of Third District Metairie law firm of Dwyer, Cambre Jones Walker LLP, was installed as ► Dwazendra J. Smith, a partner in & Suffern, APLC, was installed as the 2021-22 chair of the LSBA Young the Opelousas office of the law firm of 2021-22 president-elect. He will assume Lawyers Division. Doran & Cawthorne, PLLC. the presidency in 2022-23. Members of the 2021-22 Board of C.A. (Hap) Martin III, a member Governors also were installed by Chief Fourth District in the Monroe law firm of Shotwell, Justice Weimer. ► Todd S. Clemons, founder of the Brown & Sperry, APLC, is beginning law firm of Todd Clemons & Associates the first year of a two-year term as sec- First District in Lake Charles. retary. He also serves as editor of the ► Lawrence J. Centola III, a prin- Continued next page

Louisiana Bar Journal August / September 2021 134 Vol. 69, No. 2 www.lsba.org Louisiana Bar Journal August / September 2021 135 Vol. 69, No. 2 www.lsba.org Louisiana Supreme Court Chief Justice John L. Weimer, far right, administered the oath of office to members of the 2021-22 Board of Governors. Photo by Matthew Hinton Photography.

Installation Eighth District Tulane Law School / continued from page 135 ► Curtis R. Joseph, Jr., a partner Faculty Representative in the Shreveport law firm of Winchell & ► Ronald J. Scalise, Jr., the John Fifth District Joseph, LLC. Minor Wisdom Professor of Civil Law at ► Kelly M. Rabalais, assistant vice Tulane Law School in New Orleans. president of strategic planning and im- At-Large Members plementation for St. Tammany Health ► Tina L. Suggs, in-house counsel Louisiana State Law System in Covington. for State Farm Insurance Co. in Metairie. Institute Representative ► Adrian G. Nadeau, an equity ► Adrejia Boutté Swafford, a ► Lila Tritico Hogan, a partner in the partner in the Baton Rouge law firm of member of the Legal Department of the Hammond law firm of Hogan Attorneys. Long Law Firm, LLP. State Office of Community Development in Baton Rouge. House of Delegates Sixth District ► Blake R. David, a founding part- Liaison Committee ► Charles D. Elliott, a solo practi- ner of the Lafayette law firm of Broussard ► Chair Ann S. Siddall, a sole prac- tioner at the law firm of Charles Elliott & & David, LLC. titioner in Vidalia and assistant district at- Associates, LLC, in Alexandria. torney for the 7th Judicial District. Louisiana State University ► Member D. Skylar Rosenbloom, Seventh District senior counsel for Entergy Services, ► W. Michael Street, a partner in the Paul M. Hebert Law Center / LLC, in New Orleans. Monroe law firm of Watson, McMillin & Faculty Representative , a professor of Member , an at- Street, LLP, and a member of Marathon ► John M. Church ► Keenan K. Kelly law at Louisiana State University Paul torney in the Natchitoches law firm of Title Co., LLC. M. Hebert Law Center in Baton Rouge. Kelly & Townsend, LLC.

Virtual, Socially Distant and In-Person CLE back at 2021 Joint LSBA/LJC Summer School

Many options for a variety of comfort levels were available at the 2021 Joint LSBA/LJC Summer School. The Virtual Learning option, new this year, granted access to the live video CLE presentations in the Magnolia ABC Ballroom. Attendees practiced social distancing where possible. This CLE session on Monday, June 7, led by R. Ashby Pate, Birmingham, AL, in the Magnolia Ballroom was well attended both virtually and in-person. Photo by Matthew Hinton Photography.

Louisiana Bar Journal August / September 2021 136 Vol. 69, No. 2 www.lsba.org Four President’s Awards Presented Three Louisiana State Bar Association (LSBA) members and the LSBA staff received 2021 President’s Awards. Recipients were chosen by 2020-21 LSBA President Alainna R. Mire and were recognized for services to the association. Recognized were attorney Val P. Exnicios, New Orleans; Louisiana Supreme Court Chief Justice (Ret.) Bernette Joshua Johnson, New Orleans; attorney Robert A. Kutcher, Metairie; and the LSBA Staff, New Orleans. Val P. Exnicios, senior trial counsel and managing counsel in the New Orleans law firm Liska, Exnicios & Nungesser, was recognized for his ongoing exemplary service and accomplishments as a leader in service to the LSBA’s Sections, House of Delegates, numerous committees and the entire Chief Justice (Ret.) Bernette Joshua Johnson, right, received the 2021 LSBA President’s LSBA. He chairs the LSBA’s Mass Val P. Exnicios Award from 2020-21 LSBA President Alainna R. Mire. Torts, Class Action & Complex Litigation Section, is a co-chair of the LSBA’s Section Council and is a member of the Bar Governance, Rules of Professional Conduct, Ethics Advisory and Legislation committees. He is a long-time member of the LSBA’s House of Delegates. Louisiana Supreme Court Chief Justice (Ret.) Bernette Joshua Johnson was recognized for her exemplary assistance and myriad kindnesses to the LSBA and its President as Chief Justice of the Louisiana Supreme Court. Chief Justice Johnson was the Court’s 25th Chief Justice, its second female Chief Justice and its first African-American Chief Justice. She was elected to serve on the Louisiana Supreme Court in 1994 and was re-elected without opposition in 2000 and 2010. As the senior justice on the Court, she was sworn in as Chief Justice on Feb. 1, 2013. She retired on Dec. Robert A. Kutcher, left, received the 2021 President’s Award from 2020-21 LSBA President 31, 2020. In 2016, the Louisiana State Bar Association Alainna R. Mire. All photos by Matthew Hinton Photography. combined the Trailblazer and Human Rights Awards into the “Louisiana State Bar Association Chief Justice Bernette Joshua Johnson Trailblazer Award.” Robert A. Kutcher, managing partner in the Metairie law firm Kutcher Tygier & Luminais, LLP, was recognized for his exemplary leadership and myriad accomplishments during the COVID pandemic. Kutcher served as LSBA president in 2019-20 and treasurer in 2014-16. He has served in the House of Delegates and on the Legislation Committee, the Committee on the Profession, the Nominating Committee, the Rules of Professional Conduct Committee and the Audit Committee. LSBA staff members attending the Annual Meeting accepted the President’s Award on The LSBA staff was recognized for its leadership, behalf of the entire staff from 2020-21 LSBA President Alainna R. Mire. All photos by dedication and resilience during the COVID pandemic. Matthew Hinton Photography.

Louisiana Bar Journal August / September 2021 136 Vol. 69, No. 2 www.lsba.org Louisiana Bar Journal August / September 2021 137 Vol. 69, No. 2 www.lsba.org Two Members Receive LBF’s Boisfontaine Award Adrianne L. Baumgartner of Covington received the 2020 Louisiana Bar Foundation’s Curtis R. Boisfontaine Trial Advocacy Award. Timothy G. Schafer of New Orleans received the 2021 Louisiana Bar Foundation’s Curtis R. Boisfontaine Trial Advocacy Award. Adrianne L. Baumgartner of Covington has been a member of the law firm of Porteous, Hainkel & Johnson, LLP, since 1978, current- Adrianne L. ly practicing in the firm’s Covington office. Baumgartner Her litigation practice covers personal injury and insurance defense. She has tried judge and jury trials representing carriers and their insureds in automobile and premise liability cases. She has served on the LSBA’s Nominating Committee, Timothy G. Schaefer, left, received the 2021 Louisiana Bar Foundation Curtis R. Boisfontaine Trial Advocacy Award. Presenting the award was Legislation Committee and Transitioning Lawyers Committee. 2021-22 Louisiana Bar Foundation President Christopher K. Ralston. She was a hearing officer for the Louisiana Attorney Disciplinary Photo by Matthew Hinton Photography. Board and is presently serving as a probation officer and fee dispute arbitrator. She has been a Louisiana Bar Foundation Fellow on six occasions. His trial experience involved insurance personal since 2008 and serves on the Northshore Community Partnership injury litigation, ranging from death, brain injuries, serious burns Panel and Grants Committee. and quadriplegia, and insurance bad faith, massive fires, hurricane Timothy G. Schafer founded his New Orleans law firm damage, contracts, coverage issues, product liability, premises li- Schafer & Schafer in 1974. In his 56 years of practice, he tried ability, property disputes and construction matters. He served as 145 civil jury trials to verdict, appeared in more than 120 appel- president of the Louisiana Chapter of the American Board of Trial late court cases and argued before the Louisiana Supreme Court Advocates, holding the rank of diplomate.

Judge (Ret.) Marabella is Recipient of Kimball Award Judge (Ret.) Anthony J. Marabella, Jr. of Baton Rouge received the 2021 Catherine D. Kimball Award for Advancement of the Administration of Justice. He retired from the 19th Judicial District Court in 2018 and currently serves as a member of the Louisiana Board of Pardons and the Louisiana Committee on Parole. He served for 16 years as a 19th JDC criminal trial judge and presided over the 19th JDC Drug Court for 14 years. He was a member of the East Baton Rouge Parish Indigent Defense Board for 20 years (chair for five years) and was appointed as chair of the Louisiana Indigent Defense Assistance Board in 2002. He has been an adjunct faculty member at LSU Paul M. Hebert Law Center for the past 12 years, teaching criminal litigation practice. He served in the Louisiana State Bar Association’s House of Delegates from 1978-2003. He served on the Baton Rouge Bar Association board from 1987-96 (president in 1994) and on the Hon. Anthony J. Marabella, Jr. (Ret.), left, received the 2021 Catherine board of The Ecumenical House (federal halfway house) for 10 D. Kimball Award for the Advancement of the Administration of Justice. years (president for three years). Presenting the award was 2020-21 LSBA President Alainna R. Mire. Judge Marabella was a founding member of both the Baton Judiciary Commission (2010-14) and chair for one-and-a-half Rouge Criminal Defense Lawyers (president in 1983-85) and the years; a board member of the Louisiana Association of Drug Court Louisiana Association of Criminal Defense Lawyers (LACDL) Professionals; and a member of the Executive Committee for the (president in 1999). He was elected as a Fellow of the American Louisiana District Judges Association. He was the 2016 recipient Board of Criminal Lawyers in 1994. of the Chief Justice Pascal F. Calogero, Jr. Lifetime Achievement He was a member of the inaugural Louisiana Supreme Court Award, presented by the LACDL. Judicial Leadership Class (2010); a member of the Louisiana

Louisiana Bar Journal August / September 2021 138 Vol. 69, No. 2 www.lsba.org Judge Stewart and Judge Reese Receive Trailblazer Awards U.S. 5th Circuit Court of Appeals Judge Carl E. Stewart of Shreveport received the 2020 Chief Justice Bernette Joshua Johnson Trailblazer Award. Orleans Parish Civil District Court Judge Kern A. Reese of New Orleans received the 2021 Chief Justice Bernette Joshua Johnson Trailblazer Award. U.S. 5th Circuit Court of Appeals Judge Carl E. Stewart of Shreveport began his judicial service in 1985 as a judge for the 1st Judicial District Court in Caddo Parish. In 1991, he was elected to the Louisiana 2nd Circuit Court of Appeal in Shreveport. In 1994, he was appointed to the U.S. 5th Circuit. He was the first African-American to serve on the Circuit Court. In 2012, he became the first African-American chief judge to serve on the court. Throughout his judicial career, he exhibited an unwavering commitment to enhancing diversity and inclusion in the legal profession. He served as strategic planning coordinator for the Judicial Conference of the United States and led the adoption of core value and strategies that promote workforce From left, 2020-21 LSBA President Alainna R. Mire, Hon. Carl E. diversity, inclusion and respect within the 2020-2025 Strategic Stewart, Chief Justice (Ret.) Bernette Joshua Johnson, Hon. Kern A. Plan for the Federal Judiciary. During his 27 years as a federal Reese, and Diversity Committee Co-Chair J. Dalton Courson. Photo by appellate judge, he has employed 94 judicial law clerks of all Matthew Hinton Photography. races and ethnicities. Tulane Law School in 1984, promoting effective trial advocacy. Orleans Parish Civil District Court Judge Kern A. Reese He coached a Loyola University College of Law trial advocacy of New Orleans began his legal career by working at the New team to an American Bar Association national championship in Orleans Legal Assistance Corp. He also taught at the Urban 2007. He also coached Loyola’s Black Law Students Association League’s New Orleans Plan, which helped individuals become team to a national championship in 2012. He helped found the skilled tradesmen. He became an associate adjunct professor at mock trial team at Dillard University.

Rabalais Receives Victory Memorial Award Kelly M. Rabalais of Covington received the 2021 Stephen T. Victory Memorial Award, recognizing outstanding contributions to the Louisiana Bar Journal. She was recognized for her article, “Celebrating Women in Leadership and the 100th Anniversary of the 19th Amendment.” Rabalais, assistant vice president of strategic planning and implementation for St. Tammany Health System, represents the Kelly M. Rabalais Fifth Board District on the Louisiana State Bar Association’s (LSBA) Board of Governors. She was elected Patrick A. Talley, Jr., left, 2019-21 LSBA secretary, presented the Victory to the LSBA’s Nominating Committee in 2018, 2019, 2020 and Award to Kelly M. Rabalais for her Journal article. All photos by Matthew 2021 and is a member of the Committee on the Profession and Hinton Photography. the Louisiana Bar Journal Editorial Board. She is a member of the Federal Bar Association New Orleans Women in Law chair and 2019 Community Outreach chair for Chapter’s board of directors. She is serving a 2018-21 term on the 22nd Judicial District Bar Association. She received the the Lawyer Disciplinary Committee of the U.S. District Court, 2016 BGR (Bureau of Governmental Research) Excellence in Eastern District of Louisiana. She served as 2017 and 2018 Government Merit Award.

Louisiana Bar Journal August / September 2021 138 Vol. 69, No. 2 www.lsba.org Louisiana Bar Journal August / September 2021 139 Vol. 69, No. 2 www.lsba.org Beau S. Brooks, left, received the Leah Hipple McKay Memorial Award for Outstanding Volunteerism. Presenting the award was 2020-21 President Alainna R. Mire and Louisiana Supreme Court Chief Justice John L. Weimer. Photo by Matthew Hinton Photography. Henry (Hank) C. Perrett, Jr., left, received the Leah Hipple McKay Memorial Award for Outstanding Volunteerism and the Citizen Lawyer Award. Presenting the awards was 2020-21 President Alainna R. Mire. Brooks, Perret Receive Leah Hipple McKay Award Beau S. Brooks of Thibodaux received the 2019 Leah Hipple Upside Downs, supporting the Down Syndrome community McKay Memorial Award for Outstanding Volunteerism. Henry and raising Down Syndrome awareness. C. (Hank) Perret, Jr. of Lafayette received the 2020 Leah Henry C. (Hank) Perret, Jr. has engaged in the private Hipple McKay Memorial Award for Outstanding Volunteerism. practice of law in the Lafayette firm of Perret Doise, LLC, for Beau S. Brooks practices in the area of family law at Brooks more than 40 years. Following the loss of their 8-year-old to Law Office, APLC, in Thibodaux. He also is the city attorney brain cancer, he and his wife established Games of Acadiana, a for the City of Thibodaux. Shortly after his son was born with family-oriented day of fun honoring cancer survivors. He also Down Syndrome, he co-founded the non-profit organization helped found the Community Foundation of Acadiana.

Robert is Recipient of Committee on Diversity in the Legal Profession Award

Deidre Deculus Robert of Baton Rouge received the 2020 Committee on Diversity in the Legal Profession Award. Robert, executive counsel for the Louisiana Department of Transportation and Development, joined the Louisiana State Bar Association’s Diversity Committee in 2015 and served as co-chair from 2017-19. She assisted with the implementation of committee programming, including the Conclave on Diversity in the Legal Profession and Suit Up for the Future High School Summer Legal Institute and Intern program. She also regularly participates and coordinates CLE programming that highlights the work of the committee in the area of diversity, equity and inclusion. She serves as a board member for the Louisiana Bar Foundation, the Southern University System Foundation and the Access to Justice Commission. She is a member of the Baton Rouge Bar Association, the American Bar Association, the National Bar Association, the Baton Rouge Association of Women Attorneys and the Louis A. Martinet Legal Society, Inc. Deidre Deculus Robert, left, received the 2020 Committee on Diversity in Greater Baton Rouge Chapter. She is the founder of the Baton the Legal Profession Award. Presenting the award was 2020-21 President Rouge Chapter Louis A. Martinet Legal Society’s “Reading from Alainna R. Mire. All photos by Matthew Hinton Photography. the Start” program, a program that places lawyers and law students in classrooms monthly to read to East Baton Rough Parish Distinguished Female Attorney in Government Award (National Head Start students. Bar Association, Women in Law Division); and the recipient Robert is a recipient of the 2019 Distinguished Alumni of the 2011 Outstanding Member and Service Award (Louis A. Award (Southern University Law Center); 2018 nominee for the Martinet Legal Society, Inc., Baton Rouge Chapter).

Louisiana Bar Journal August / September 2021 140 Vol. 69, No. 2 www.lsba.org A special Citizen Lawyer Award presentation was held at Phelps Dunbar in New Orleans. In attendance were former LSBA President Kim M. Boyle, Citizen Lawyer Award recipient Marshall M. Redmon, 2021- Warren A. Perrin, left, received the Citizen Lawyer Award. Presenting the 22 LSBA President H. Minor Pipes III and Louisiana Bar Foundation award was 2020-21 President Alainna R. Mire. Photo by Matthew Hinton President Christopher K. Ralston. Photo by Catherine Richard. Photography. Four Members Receive Citizen Lawyer Awards Four Louisiana State Bar Association Warren A. Perrin, with the Lafayette law (LSBA) members received Citizen Lawyer firm of Perrin, Landry, deLaunay, is chair of the Awards for services to their communities and LSBA’s Francophone Section. In 1990, he es- the legal profession. Recognized were attor- tablished the Acadian Museum which created ney Betty A. Maury, Gretna; attorney Henry the Order of Living Legends, honoring individ- C. (Hank) Perret, Jr., Lafayette; attorney uals who shaped the French culture. In 2012, Warren A. Perrin, Lafayette; and attorney he founded the New Acadia Project, an ar- Marshall M. Redmon, New Orleans. cheology project that located the first Acadian Betty A. Maury of Gretna is law clerk settlement. In 2020, he was named to the Papal for 24th Judicial District Court Judge Lee V. Commission charged with writing the history Faulkner, Jr. in Jefferson Parish. She currently of Charlene Marie Richard and August Robert 2021-22 LSBA President H. Minor serves as website manager for the Jefferson Pelafigue for their canonizations. Pipes III presented Betty Ann Maury Bar Association (JBA). In response to the Marshall M. Redmon, managing partner with the Citizen Lawyer Award at the Louisiana Bar Center. Photo by COVID-19 pandemic, she rallied for free vir- in the New Orleans office of Phelps Dunbar, Christopher Clarkson. tual CLE programs to help ease the transition LLP, was one of the founders of a weekly from in-person to virtual law practice for all brainstorming call among 30 New Orleans New Orleans’ food and music in- Louisiana attorneys. She collaborated with law firm leaders about how to protect employ- dustries. He also formed a partner- judges, attorneys and legal organizations to ees, stabilize firms and continue legal services ship between Phelps Dunbar and create, administer and host programs that ad- unhindered during the COVID-19 crisis. The Tulane University’s A.B. Freeman dressed virtual practice topics, such as sched- group created L.I.G.H.T (Lawyers’ Initiative School of Business to pilot artificial uling and appearances, working remotely, and Giving Hospitals Thanks), raising money to intelligence (AI) programs that will meeting pro bono hours during the pandemic. feed frontline healthcare workers and support improve legal services.

Judge (Ret.) Conque Receives Hernandez Award Judge (Ret.) Durwood W. Conque ments written and Moncton School of Law in 1990, the Sixth of Lafayette received the 2021 John read aloud in French. Annual Civil Law Seminar sponsored by A. “T-Jean” Hernandez III Memorial He presented talks CODOFIL, the Centre International de Award, presented for achievements in (in French) at several la Common Law en Francaise, and the Francophone leadership. Francophone semi- Lafayette Bar Association in 1996. Now retired from the 15th Judicial nars and conferences, As a judge, he officiated at several wed- District Court (first elected in 1987), he including the first dings entirely in French. He also presented began law practice in Abbeville, hired seminar on civil law an original French poem at the 18th Annual primarily for his ability to read, write and for Louisiana lawyers French Acadian Music Festival and has, on speak French to accommodate clients who and judges sponsored Hon. Durwood W. occasion, been persuaded to sing a Cajun wanted to have their last wills and testa- by the Universite de Conque (Ret.) song or two at Francophone gatherings.

Louisiana Bar Journal August / September 2021 140 Vol. 69, No. 2 www.lsba.org Louisiana Bar Journal August / September 2021 141 Vol. 69, No. 2 www.lsba.org Two Guardian of Diversity Awards Presented Kean Miller Connection of Baton Rouge received the 2020 Guardian of Diversity Award. Tulane Law School of New Orleans received the 2021 Guardian of Diversity Award. Kean Miller Connection is the diversity pipeline Linda P. Clark, left, accepted the Guardian of Tulane Law School Dean David Meyer, left, and Lezlie A. Griffin, right, initiative launched Diversity Award on behalf of the Kean Miller accepted the Guardian of Diversity Award on behalf of Tulane Law School. Connection. Presenting the award was 2020- Presenting the award was 2020-21 President Alainna R. Mire, center. by Kean Miller Law 21 President Alainna R. Mire. Firm in Baton Rouge. Tulane Law School launched several innovative and suc- The firm’s attorneys organize, host and produce a law school cessful initiatives to recruit and support diverse students, en- preparatory program for college students who are from groups gage alumni, educate the community, and embrace a culture traditionally underrepresented in law schools and the profes- of diversity, equity and inclusion. In 2019, Tulane hosted its sion. The workshop provides mock law school classes, law inaugural Black Law Alumni Reunion Weekend. Tulane Law school admission standards, career opportunities, speakers established scholarships for diverse students. In 2020, a virtual from all facets of the profession, and information designed to discussion series focused on racial justice and equity. The law demonstrate that a career in the profession is attainable. school established an Anti-Racism Task Force. A new course on Anti-Racist Lawyering was presented in fall 2020.

Leadership LSBA Classes Recognized

The Leadership LSBA Classes received certificates of completion and recognition. Presenting the certificates was 2020-21 President Alainna R. Mire. From left, members of the Leadership LSBA 2019-20 Class John W. Bihm, Lafayette; Jennifer G. Lampton, New Orleans; Sowmya Mandava, Gretna; Jared E. Nelson, Abbeville; Teresa D. King, Houma; 2020-21 LSBA President Alainna R. Mire; and members of the Leadership LSBA 2020-21 Class ReAzalia Z. Allen, Baton Rouge; Brittany B. Arvie, Shreveport; Elizabeth B. Bloch, Lafayette; and Iriane B. Lee, Laplace.

Louisiana Bar Journal August / September 2021 142 Vol. 69, No. 2 www.lsba.org 2021 LSBA Annual Meeting All photos by Matthew Hinton Photography.

Louisiana Supreme Court Associate Justice Piper D. Griffin at the Opening Reception in the Exhibit Hall during the LSBA Annual Meeting and LSBA/LJC Joint Summer School in Destin, Fla.

Louisiana Supreme Court Chief Justice John L. Weimer, left, inducted 2021-22 LSBA President H. Minor Pipes III and 2021-22 YLD Chair Graham H. Ryan at the installation luncheon during the Annual Meeting in Destin, Fla.

LSBA Past President Darrel J. Papillion, Chief Justice (Ret.) Bernette Joshua Johnson, and LSBA Past President Kim M. Boyle prior to the General Assembly and House of Delegates Meeting in Destin, Fla.

Fireworks were a popular event at the conclusion of the Beach Bash on LSBA President-Elect Stephen I. Dwyer, LSBA Past President Alainna R. Mire Thursday, June 10 during the LSBA Annual Meeting and LSBA/LJC and LSBA President H. Minor Pipes III just after the installation luncheon on Joint Summer School in Destin, Fla. Thursday, June 10 during the LSBA Annual Meeting in Destin, Fla.

Louisiana Bar Journal August / September 2021 142 Vol. 69, No. 2 www.lsba.org Louisiana Bar Journal August / September 2021 143 Vol. 69, No. 2 www.lsba.org Graham H. Ryan is sworn in as 2021-22 Young Lawyers Division chair by Louisiana Supreme Court Chief Justice John L. Weimer. LSBA Young Lawyers Division’s 2021-22 Officers, Council Installed

The Louisiana State Bar Association Chief Justice Weimer also installed Amond, LLP, in New Orleans. Young Lawyers Division’s (LSBA YLD) members of the 2021-22 YLD Council. District 2: Rachal Cox Cassagne, an 2021-22 officers and Council were- in District 1: Collin R. Melancon, a assistant United States attorney for the stalled June 10 at the LSBA Annual partner/owner of the law firm Mansfield, Eastern District of Louisiana in New Meeting in Destin, Fla. Louisiana Supreme Melancon, Cranmer & Dick, LLC, in Orleans; and Rory V. Bellina, an associ- Court Chief Justice John L. Weimer ad- New Orleans; and Kristen D. Amond, a ate in the Metairie office of the law firm ministered the oath of office. founding member of the law firm Mills & Chehardy, Sherman, Williams, Murray, Graham H. Ryan, a partner in the New Orleans office of the law firm Jones Walker LLP, was installed as 2021-22 YLD chair. Other officers sworn in include: ► Chair-Elect Danielle L. Borel, a partner in the Baton Rouge office of the law firm Breazeale, Sachse & Wilson, LLP (she will assume the chair position in 2022-23). ► Secretary Senae D. Hall, an assistant district attorney in the Caddo Parish District Attorney’s Office in Shreveport and the Human Trafficking Victims Diversion coordinator. ► Immediate Past Chair Carrie LeBlanc Jones, chief legal officer and general counsel for the Louisiana State YLD Council members sworn in at the Installation Luncheon by Louisiana Supreme Court Chief Board of Nursing in Baton Rouge. Justice John L. Weimer included Graham H. Ryan (on stage), Jessica L. Fitts, Josef P. Ventulan, Camille E. Walther, Megan S. Peterson, Loren Shanklin Fleshman, Justin S. Brashear, Carrie L. Jones, Senae D. Hall, and Danielle L. Borel.

Louisiana Bar Journal August / September 2021 144 Vol. 69, No. 2 www.lsba.org Recile, Stakelum & Hayes, LLP. District 3: Megan E. Réaux, an associate in the law firm Hill & Beyer, APLC, in Lafayette. District 4: Justin S. Brashear, founder of the law firm Brashear Law, LLC, in Lake Charles. District 5: Loren Shanklin Fleshman, a partner in the law firm Smith Shanklin Sosa, LLC, in Baton Rouge; and Camille E. Walther, a financial advisor with The Walther-duPassage Group at Morgan Stanley in Mandeville. District 6: Joshua J. Dara, Jr., an associate in the law firm Gold, Weems, Bruser, Sues & Rundell, APLC, in Alexandria. District 7: Jessica L. Fitts, a family YLD Council members at the Installation Luncheon included Danielle L. Borel, Camille E. Walther, law attorney with the Monroe law firm of Senae D. Hall, Graham H. Ryan, Carrie L. Jones, Loren Shanklin Fleshman, Megan S. Peterson, Jessica L. Fitts and Justin S. Brashear. Cummins & Fitts, LLC. District 8: Elizabeth P. (Liza Beth) Grozinger, an assistant attorney general District of Louisiana in Baton Rouge. Young Lawyer Member/American with the Louisiana Department of Justice, American Bar Association Young Bar Association House of Delegates: based in the Shreveport office. Lawyers Division Representative: Josef Megan S. Peterson, a partner at the law At-Large Representative: Justin A. P. Ventulan, staff attorney for Judge Lisa firm Simon, Peragine, Smith & Redfearn, Jack, an assistant United States attorney for M. Woodruff-White of the Family Court LLP, in New Orleans. the U.S. Attorney’s Office for the Middle of East Baton Rouge.

Presidental! Current, former and future LSBA Presidents: Guy S. DeLaup, Robert A. Kutcher, Barry H. H. Minor Pipes III recognizes Alainna R. Mire’s Grodsky, Alainna R. Mire, H. Minor Pipes III, Stephen I. Dwyer, Richard K. Leefe and Joseph L. (Larry) parents, Edward and Sarah Mire, during the Shea, Jr. at the LCLCE Reception. Installation Luncheon.

(Right) Louisiana Supreme Court Associate Justices Scott J. Crichton and Justice Jay B. McCallum during a quiet moment at the Annual Meeting.

(Far right) New JLAP Executive Director Dr. Angela White-Bazile, Esq. and LSBA President Alainna R. Mire in the Exhibit Hall.

Louisiana Bar Journal August / September 2021 144 Vol. 69, No. 2 www.lsba.org Louisiana Bar Journal August / September 2021 145 Vol. 69, No. 2 www.lsba.org After the awards ceremony, Hon. Karelia Stewart, Hon. Carl Stewart, Chief Justice (Ret.) Bernette YLD Chair Carrie L. Jones during the Installation Joshua Johnson, Hon. Rachael Johnson, Hon. Kern A. Reese and his wife, Dorothy (Dotty) Reese. Luncheon.

One more look at the people, events and activities at the Annual Meeting.

All photos by Matthew Hinton Photography.

LSBA President Alainna R. Mire addresses the House of Chief Justice John L. Weimer congratulates newly installed YLD Delegates during the General Assembly. Council members, including Josef P. Ventulan and Jessica Fitts.

Tennis Tournament. LCLCE Booth in the Exhibit Hall. W. Michael Street during the House of Delegates.

H. Minor Pipes III with members of his firm, Pipes Miles Beckman, LLC, after his H. Minor Pipes III with his wife Jill and sons at the induction as LSBA President at the Installation Luncheon during the LSBA Annual Installation Luncheon during the LSBA Annual Meeting. Meeting.

Louisiana Bar Journal August / September 2021 146 Vol. 69, No. 2 www.lsba.org Louisiana Bar Journal August / September 2021 147 Reg LE ister today at www.lsba.org/C

n the legal community the more you know, the faster you’ll get ahead. That’s why the Louisiana State Bar Association offers a variety of seminars on a wide range of legal topics. Enrolling in them will help you stay competitive and keep up with the ever-changing laws. The Continuing Legal Education Program Committee sponsors more than 20 programs each year, ranging from 15-hour credit seminars to Ione-hour ethics classes. Check online for the most up-to-date list of upcoming seminars at www.lsba.org/CLE. 2021-2022 LSBA CLE Calendar Back to Basics Depositions Webinar – PART 1 & PART 2 Webinar – PART 1 & PART 2 Aug. 20, 2021 Oct. 8, 2021 Medical Malpractice E-Discovery Webinar – PART 1 & PART 2 Webinar – PART 1 & PART 2 Sept. 3, 2021 Oct. 15, 2021 Back to Basics 14th Annual Dispute Resolution Seminar Webinar – PART 3 & PART 4 Oct. 22, 2021 Sept. 10, 2021 Renaissance Baton Rouge Hotel 28th Annual Admiralty Symposium Hanging Out Your Own Shingle Webinar Webinar – PART 1 & PART 2 & 61st Bi-Annual Bridging the Gap Webinar Sept. 17, 2021 Oct. 2021 Ethics & Professionalism 21st Annual Complex Litigation Symposium Webinar Nov. 5, 2021 Sept. 24, 2021 Windsor Court Hotel “The Middle of the Night Client Calls” – Mental Health & Crime Causation DWI/Criminal Law Webinar – PART 1 & PART 2 Webinar – PART 1 & PART 2 Nov. 10, 2021 Oct. 1, 2021

DISCLAIMER: The LSBA’s inclusion of a program in its CLE programming is not to be deemed a statement or an endorsement of the views expressed therein by the LSBA or any member of the LSBA. Speakers on LSBA programs were carefully selected for their knowledge, but neither the LSBA nor the speaker warrant that the presentations or materials were free of errors, or will continue to be accurate. Statements in the presentations and their materials should be verified before relying on them. Opinions expressed are those of the speakers and do not necessarily reflect opinions of the LSBA, its sections, or committees. Views expressed are those of the authors and contributors only.

For more information, visit www.lsba.org/cle

Louisiana Bar Journal August / September 2021 146 Vol. 69, No. 2 www.lsba.org LouisianaLouisiana Bar Bar Journal Journal August August / September/ September 2021 2021 147147 Vol.Vol. 69, 69, No. No. 2 2 www.lsba.org www.lsba.org Association ACTIONS ELECTIONS... ATJ... SPECIALIZATION... MCLE

Nominating Committee to Meet Aug. 26 to Nominate President-Elect, Treasurer he Nominating Committee of the The Nominating Committee report will parishes of Plaquemines, St. Bernard and Louisiana State Bar Association be submitted to the Board of Governors on St. Tammany, one member; District 2A, (LSBA) will meet on Thursday, Saturday, Aug. 28. East Baton Rouge Parish, two members; Aug. 26, in New Orleans to On Monday, Sept. 20, notice of the ac- District 2B, Jefferson Parish, two - mem Tnominate a president-elect for the 2022-23 tion of the Nominating Committee and bers; District 2C, parishes of Ascension, term and a treasurer for the 2022-24 term. self-qualification forms for positions on Assumption, East Feliciana, Iberville, The president-elect will automatically as- the Board of Governors, LSBA House of Lafourche, Livingston, Pointe Coupee, sume the presidency in 2023-24. Delegates, Nominating Committee, Young St. Charles, St. Helena, St. James, St. According to the president-elect rotation, Lawyers Division and American Bar John the Baptist, Tangipahoa, Terrebonne, the nominee must have his/her preferred Association House of Delegates will be Washington, West Baton Rouge and mailing address in Nominating Committee provided to the membership. West Feliciana, one member; District 3A, District 3 (parishes of Acadia, Allen, Deadline for return of nominations by Lafayette Parish, one member; District 3B, Avoyelles, Beauregard, Bienville, Bossier, petition and qualification forms is Monday, parishes of Acadia, Beauregard, Calcasieu, Caddo, Calcasieu, Cameron, Caldwell, Oct. 18. First election ballots will be avail- Cameron, Iberia, Jefferson Davis, St. Catahoula, Claiborne, Concordia, DeSoto, able to members on Monday, Nov. 15. Martin, St. Mary and Vermilion, one East Carroll, Evangeline, Franklin, Grant, Deadline for electronically casting votes is member; District 3C, parishes of Allen, Iberia, Jackson, Jefferson Davis, Lafayette, Monday, Dec. 13. Avoyelles, Evangeline, Grant, LaSalle, LaSalle, Lincoln, Madison, Morehouse, Natchitoches, Rapides, Sabine, St. Landry Natchitoches, Ouachita, Rapides, Red Other Positions Open and Vernon, one member; District 3D, River, Richland, Sabine, St. Landry, Other positions to be filled in the 2021- parishes of Bossier and Caddo, one mem- St. Martin, St. Mary, Tensas, Union, 22 elections are: ber; and District 3E, parishes of Bienville, Vermilion, Vernon, Webster, West Carroll Caldwell, Catahoula, C laiborne, Board of Governors (three-year terms and Winn). beginning at the adjournment of the 2022 Concordia, DeSoto, East Carroll, Franklin, According to the treasurer rotation, LSBA Annual Meeting and ending at the Jackson, Lincoln, Madison, Morehouse, the nominee must have his/her pre- adjournment of the 2025 LSBA Annual Ouachita, Red River, Richland, Tensas, ferred mailing address in Nominating Meeting) — one member each from the Union, Webster, West Carroll and Winn, Committee District 1 (parishes of First, Fourth and Fifth Board Districts. one member. Orleans, Plaquemines, St. Bernard and St. LSBA House of Delegates (two-year Young Lawyers Division Secretary Tammany). terms beginning at the commencement (2022-23 term), nominee shall be a resi- Any member interested in seeking the of the 2022 LSBA Annual Meeting and dent of or actively practicing law in the position of president-elect or treasurer ending at the commencement of the 2024 parishes of Orleans, Jefferson, St. Bernard should contact members of the Nominating LSBA Annual Meeting) — one delegate or Plaquemines, based on preferred mail- Committee. Go online to: www.lsba.org/ from each of the First through Nineteenth ing address. Petitions for nomination must GoTo/NominatingCommittee. Judicial Districts, plus one additional del- be signed by 15 members of the Young Lawyers Division. Also to be elected, one Election Schedule egate for every additional district judge in each district. representative each from the First, Second, Third, Fifth and Seventh districts (two- For the 2021-22 election cycle, bal- Nominating Committee (15 members, loting will be conducted electronically one-year terms beginning at the adjourn- year terms). only, as approved by the LSBA’s Board ment of the 2022 LSBA Annual Meeting American Bar Association House of Governors and provided for in the and ending at the adjournment of the 2023 of Delegates (must be members of the Association’s Articles of Incorporation. LSBA Annual Meeting) — District 1A, American Bar Association) — two dele- No paper ballots will be provided. Orleans Parish, four members; District 1B, Continued next page

Louisiana Bar Journal August / September 2021 148 Vol. 69, No. 2 www.lsba.org LASC Amends LBLS Accepting Bankruptcy Online CLE Law Certification Applications Carry-Over Through Sept. 30 he Louisiana Board of Legal for the year in which application is made Limit Specialization (LBLS) will be and the examination is administered. he Louisiana Supreme Court accepting applications for busi- Bankruptcy Law CLE is regulated by the issued an order on April 27 ness bankruptcy law and con- American Board of Certification, the test- stating: “In addition to lift- Tsumer bankruptcy law certification from ing agency. ing the cap on ‘self-study’ now through Sept. 30, 2021. Approved specialization CLE courses Tcredits . . . attorneys shall be permitted In accordance with the Plan of Legal can be viewed on the LBLS Approved to carry forward a maximum of four Specialization, a Louisiana State Bar Course Calendar at: www.lsba.org/MCLE/ (4) ‘self-study’ credits to compliance Association member in good standing who MCLECalendar.aspx?L=S. Check off year 2022.” Review the order at: www. has been engaged in the practice of law on your specialization and click on “Search lsba.org/documents/News/LSBANews/ a full-time basis for a minimum of five Courses” to find approved specialization MCLEOnlineCarryForward.pdf. years may apply for certification. Further CLE. Previously, in consideration of the requirements are that each year a mini- With regard to applications for busi- continuing need to take measures to stop mum percentage of the attorney’s practice ness bankruptcy law and consumer bank- the spread of COVID-19, the Louisiana must be devoted to the area of certifica- ruptcy law certification, although the writ- Supreme Court on Jan. 13 issued an or- tion sought, passing a written examina- ten test(s) is administered by the American der lifting the cap on self-study manda- tion to demonstrate sufficient knowledge, Board of Certification, attorneys should tory continuing legal education credits skills and proficiency in the area for which apply for approval of the Louisiana Board for calendar year 2021. The “self-study” certification is sought, and five favorable of Legal Specialization simultaneously credits were increased to 12.5 hours an- references. Peer review shall be used to with the testing agency in order to avoid nually for 2021. determine that an applicant has achieved delay of board certification by the LBLS. Rule 5(b) of Supreme Court Rule recognition as having a level of compe- Information concerning the American XXX was also modified to permit ex- tence indicating proficient performance Board of Certification will be provided cess hours earned in the 2019 com- handling the usual matters in the specialty with the application form(s). pliance year to be carried forward to field. Refer to the LBLS standards for the Anyone interested in applying for compliance year 2020, 2021 or 2022. applicable specialty for a detailed descrip- certification should contact LBLS Review the court order at: www.lsba. tion of the requirements for application: Specialization Director Mary Ann org/documents/News/LSBANews/ www.lsba.org/documents/Specialization/ Wegmann, email maryann.wegmann@ LASCOrder2021OnlineMCLE.pdf. LSBAPlanofLegalspecialization2017.pdf. lsba.org, or call (504)619-0128. For more For more information on mandatory In addition to the above, applicants information, go to the LBLS website: CLE, go to: www.lsba.org/mcle. must meet a minimum CLE requirement www.lsba.org/specialization/.

Elections continued from page 148 Board-Certified Specialists: Forward up gates from the membership at large and one to 4 hours of approved specialization delegate from that portion of the membership not having reached their 35th birthday “self-study” credits to 2022 by Aug. 3, 2022 (the Young Lawyer delegate). The delegates will serve two-year n April 27, the Louisiana Board-certified specialists may carry terms, beginning with the adjournment of Supreme Court amended its forward up to eight hours of approved the 2022 ABA Annual Meeting and expir- Jan. 13 order, stating: “In specialization credits to 2022, but only ing at the adjournment of the 2024 ABA addition to lifting the cap on four of those hours may be approved Annual Meeting, as provided in Paragraph ‘self-study’O credits . . . attorneys shall be specialization “self-study” credits. Read 6.4(e) of the ABA Constitution. permitted to carry forward a maximum more at: www.lsba.org/specialization/. For more information on the election of four (4) ‘self-study’ credits to compli- procedures and the schedule, go to: www. ance year 2022.” lsba.org/goto/elections.

Louisiana Bar Journal August / September 2021 148 Vol. 69, No. 2 www.lsba.org Louisiana Bar Journal August / September 2021 149 Vol. 69, No. 2 www.lsba.org Pro Bono Professionals Recognized at Virtual Pro Bono Publico & Children’s Law Awards Ceremony he Louisiana State Bar Association (LSBA) and the Louisiana Supreme Court con- vene each year to recognize the Toutstanding pro bono accomplishments of attorneys, public interest professionals, law students and community organizations. This year was no different. Though the pandemic prevented the ceremony from taking place in its usual setting at the Supreme Court, the event proceeded virtually on May 20 via Zoom. In her opening remarks, 2020-21 LSBA President Alainna R. Mire spoke about the importance of pro bono work, noting that Andrea M. Jeanmarie is the recipient of the Christopher K. Ralston is the recipient of the with nearly 900,000 Louisianans living Career Public Interest Award. David A. Hamilton Lifetime Achievement Award. under the poverty line, at least one in every Law Student Pro Bono Award five people who experiences a civil legal secure the return of state funding of legal Recipients Abeer M. Farid, Southern problem will not have the resources to seek aid in 2019 after nearly a decade. University Law Center; Constantino assistance from an attorney. Career Public Interest Award Raya, Jr., Tulane University Law School; In his welcoming remarks, Louisiana Recipient, Andrea M. Jeanmarie Cara Sullivan Tippett, Louisiana State Supreme Court Chief Justice John L. Jeanmarie has served the public as University Paul M. Hebert Law Center; Weimer further commended the attendees a civil legal aid attorney for more than and Jimmy Whitehead, Loyola University for donating their “time, talent and treasure” 24 years, first joining the New Orleans College of Law. in service of the goal that no Louisianan be Legal Assistance Corp. (NOLAC), now excluded from the legal system due to the called Southeast Louisiana Legal Services Friend of Pro Bono Award inability to afford an attorney. (SLLS), in 1997. Since starting with Recipients Kathleen A. Crapanzano, President Mire presented the 36th SLLS, she has provided critical legal MD, MACM; and Lindsay Meador Annual Pro Bono Publico & Children’s services to 10,320 people, achieving a Young, Lafayette. Law Awards to the following recipients. measured economic benefit of more than Pro Bono Publico Award $10 million. As longtime manager of the David A. Hamilton Lifetime Recipients Patricia R. Bonneau, Westbank (Gretna) office, she took on rep- Achievement Award Recipient, Mandeville; Andretta Breaux Atkins, resentation in an array of new disaster-re- Christopher K. Ralston Plaquemine; Kyle M. Brennan, Chicago, lated legal cases stemming from Hurricane Ralston is a partner in the New Orleans Ill.; Jonathan T. Jarrett, Lafayette; Derrick Katrina, including filing affirmative litiga- office of Phelps Dunbar, LLP. His contri- McCorey, Pride; Robert A. McKnight, New tion against shady contractors, taking on butions to pro bono and civil legal aid can- Orleans; LaKendra D. Sampson, Gonzales; Road Home denial of benefits cases, and not be overstated. In addition to spending Frances M. Strayham, Mandeville; and helping secure FEMA disaster assistance. the last decade volunteering for The Pro James J. Zito, Baton Rouge. Bono Project (and logging 100+ hours In addition to her ongoing daily case work in the past year alone), his year as chair and managing the Westbank office team, LA.FreeLegalAnswers.org Award for the Justice for All Ball was the most she staffs the St. Charles Parish Access to Recipient Brian R. Johnson, New successful in the event’s history. He also Justice Desk on a weekly basis and con- Orleans. works tirelessly to expand the volunteer ducts “Know Your Rights” events for the elderly in St. Charles and Plaquemines Century Club Award pool by recruiting his fellow members of Recipients Kyle M. Brennan, Chicago, the Bar, increasing volunteerism among parishes, serving at least 1,000 more people through these efforts. Ill.; W. Scott Brown, New Orleans; Joseph young lawyers and managing partners J. Cerise, New Orleans; Philip A. Franco, alike. Yet perhaps his greatest impact Children’s Law Award New Orleans; Ana E. Lopez, Mandeville; has been his efforts to advocate for- re Recipients Ramona G. Fernandez, New Derrick McCorey, Pride; Robert A. form and funding at the state level. He is Orleans; and Southeast Louisiana Legal McKnight, New Orleans; Alysson L. a fierce advocate for access to justice and Services Child in Need of Care Unit, New Mills, New Orleans; Beau P. Sagona, his participation on the Access to Justice Orleans. Metairie; Hugh R. Straub, New Orleans; Commission Funding Committee helped and James J. Zito, Baton Rouge.

Louisiana Bar Journal August / September 2021 150 Vol. 69, No. 2 www.lsba.org

MCLE DEPARTMENT AT 504‐566‐1600 or 1‐800‐421‐5722.

IF YOU NEED HELP FILLING OUT THE FORMS, OR HAVE ANY QUESTIONS, PLEASE CONTACT THE

https://www.lsba.org/MCLE/ReportingRequirements.aspx

For more in formation regarding your MCLE Reporting Requirements, please go to: 

Louisiana 70130.

documents, to Louisiana State Bar Association 601 St. Charles Avenue, New Orleans,

nd supporting conveniently pay online. Alternatively, you may mail your application a

documents, be emailed to [email protected] and we can create an invoice for you to

The MCLE department prefers the Out‐of‐State credit applications, including the supporting 

INCOMPLETE APPLICATIONS WILL NOT BE PROCESSED WITHOUT FURTHER CORRESPONDENCE .

COURSE (PLEASE NOTE IN YOUR CORRESPONDENCE IF YOU WOULD LIKE TO BE INVOICED).

$20 APPLICATION FEE, MADE PAYABLE TO THE LOUISIANA STATE BAR ASSOCIATION FOR EACH

A CERTIFICATE OF COMPLETION/ATTENDANCE

BRIEF SPEAKER INFORMATION (DO NOT SEND CV)

DESCRIPTIONS OF EACH SESSION (IF THERE ARE MULTIPLE SESSIONS)

A TIMED AGENDA OR COURSE DESCRIPTION (DO NOT SEND POWERPOINT PRESENTATIONS)

ALL OUT‐OF‐STATE CREDIT APPLICATIONS MUST INCLUDE: .

ALL OUT‐OF‐STATE CREDIT APPLICATIONS MUST BE COMPLETELY FILLED OUT .

do not hold all applications until the end of the year.

Please attorneys send in the Out‐of‐State applications as soon as the course is complete.

The time to send in your Out‐of‐State CLE applications is now! It is suggested that 

ATTENDED). taken have posted correctly to his/her transcript. (ONLY YOU KNOW WHAT YOU hours IMPORTANT NOTICE

It is the member’s responsibility to verify that all

your dues and assessments.

paying REGARDING YOUR 2021

Check your 2021 transcripts while you are updating your member profile information and

 MCLE REQUIREMENTS

WE ARE MORE THAN HALFWAY THROUGH THE YEAR AND THE LSBA MCLE DEPARTMENT WOULD LIKE TO REMIND ALL MEMBERS OF THE FOLLOWING: Check your 2021 transcripts whenever you log in to your member account. It is the member’s responsibility to verify that all hours taken have posted correctly to his/her transcript. (ONLY YOU KNOW WHAT YOU ATTENDED)

The time to send in your Out‐of‐State CLE applications is now! It is suggested that attorneys send in the Out‐of‐State applications as soon as the course is complete. Please do not hold all applications until the end of the year.

ALL OUT‐OF‐STATE CREDIT APPLICATIONS MUST BE COMPLETELY FILLED OUT ALL OUT‐OF‐STATE CREDIT APPLICATIONS MUST INCLUDE: A TIMED AGENDA OR COURSE DESCRIPTION (DO NOT SEND POWERPOINT PRESENTATIONS) DESCRIPTIONS OF EACH SESSION (IF THERE ARE MULTIPLE SESSIONS) BRIEF SPEAKER INFORMATION (DO NOT SEND CV) A CERTIFICATE OF COMPLETION/ATTENDANCE $20 APPLICATION FEE, MADE PAYABLE TO THE LOUISIANA STATE BAR ASSOCIATION FOR EACH COURSE (PLEASE NOTE IN YOUR CORRESPONDENCE IF YOU WOULD LIKE TO BE INVOICED). INCOMPLETE APPLICATIONS WILL NOT BE PROCESSED WITHOUT FURTHER CORRESPONDENCE

The MCLE department prefers the Out‐of‐State credit applications, including the supporting documents, be emailed to [email protected] and we can create an invoice for you to conveniently pay online. Alternatively, you may mail your application and supporting documents, to Louisiana State Bar Association, 601 St. Charles Avenue, New Orleans, Louisiana 70130.

For more information regarding your MCLE Reporting Requirements, please go to: https://www.lsba.org/MCLE/ReportingRequirements.aspx

IF YOU NEED HELP FILLING OUT THE FORMS, OR HAVE ANY QUESTIONS, PLEASE CONTACT THE MCLE DEPARTMENT AT 504‐566‐1600 or 1‐800‐421‐5722.

Louisiana Bar Journal August / September 2021 150 Vol. 69, No. 2 www.lsba.org Louisiana Bar Journal August / September 2021 151 Vol. 69, No. 2 www.lsba.org Judges in the classroom Lawyers in the classroom

August 2021

To Members of the Bar,

The Louisiana Center for Law and Civic Education (LCLCE) is partnering with the Louisiana State Bar Association, the Louisiana District Judges Association and the Louisiana Supreme Court to promote the Lawyers in the Classroom and Judges in the Classroom programs.

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

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

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

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

Sincerely,

Hon. John L. Weimer Hon. Shayna H. Minor Pipes III Hon. Brady O’Callaghan Chief Justice Beevers Morvant President President Louisiana Supreme Court President Louisiana State Bar Louisiana District Louisiana Center for Law Association Judges Association LLAAWWYYEERRandSS Civic II EducationNN TTHHEE CCLLAASSSSRROOOOMM JJUUDDGGEESS IINN TTHHEE CCLLAASSSSRROOOOMM LouisianaCENTER FOR LCLCE LAW & CIVIC EDUCATION April, 2012

To members of the Bar, Louisiana Bar Journal August / September 2021 152 Vol. 69, No. 2 www.lsba.org The Louisiana Center for Law and Civic Education (LCLCE) is partnering with the

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

presentations and are available to judges and attorneys upon request.

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

Sincerely,

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

Lawyers in the classroom Judges in the classroom

LouisianaCENTER FOR LCLCE LAW & CIVIC EDUCATION

Volunteer to Visit a Classroom in your Area! Would you like to make a law-related presentation in a classroom in your area? A list of topics for presentation ideas is available at the LCLCE.

Name: ______Address:______City: ______Zip: ______Primary Email Address: ______Secondary Email Address: ______Phone: ______Best time to call: ______Juris Doctorate (name of school): ______

Examples of teachers’ requests: • I am going to review the three branches of government with my 5th grade class the first week of April. I would like a member of the legal community to address my class that week. • I would like a Law Day presentation for my 2nd graders on or around Law Day (May 1st). • I would like a Constitution Day presentation for my 10th graders on or around Constitution Day (September 17th). • I have no specific topic in mind but would appreciate the opportunity to have someone from the legal community visit my middle school classroom during the first week in October. Please identify schools in your area (important): ______Specific topic you would like to present? Specify: ______Grade level preference: □ Elementary School □ Middle School □ High School Please indicate two or more days of the week that work best for you: ______Please indicate month/time of year that works best for you: ______

As requests are received from educators, the LCLCE will contact you to discuss scheduling a school visit.

Please return to: [email protected] or Fax: (504)528-9154; Phone: (504)619-0134 Mail: Louisiana Center for Law and Civic Education, 601 St. Charles Avenue, New Orleans, LA 70130 www.lalce.org

Louisiana Bar Journal August / September 2021 152 Vol. 69, No. 2 www.lsba.org Louisiana Bar Journal August / September 2021 153 Vol. 69, No. 2 www.lsba.org PRACTICEMakes Perfect By LSBA Practice Assistance and Improvement Committee FEE ARRANGEMENTS

The Louisiana Bar Journal’s sec- Contingency fee agreements are spe- separate until there is an accounting and tion — Practice Makes Perfect — fo- cifically prohibited in most domestic rela- severance of both persons’ interests. If the cuses on practice tips and general legal tions cases and all criminal matters. They amount of both persons’ interests is or be- information published in the Louisiana are most commonly utilized in plaintiff comes disputed, then you must keep sepa- State Bar Association Practice Assistance personal injury matters, where the courts rate the portion in dispute until the dispute and Improvement Committee’s Practice view the client as unsophisticated and vul- is resolved pursuant to Rule 1.15(e). Aid Guide: The Essentials of Law Office nerable. Accordingly, you should explain Often lawyers who enter into contin- Management, available 24/7 online at: all the provisions of the contingency fee gent fee contracts with their clients do www.lsba.org/PracticeAidGuide. contract to the client and be sure that she not feel the need to send an engagement The information discussed in this article understands the contract. The Practice Aid letter, too. Unfortunately, most contin- can be found in Section 3. To read the full Guide has a sample form for a contingency gent fee contracts do not cover all of the Section 3, and to access the referenced forms, fee contract. issues that are addressed in an engage- sample letters and checklists, go to: www. The entire amount of proceeds of settlement letter. If your contract does not pro- lsba.org/PracticeAidGuide/PAG3.aspx. ments or judgments received by you on be- vide the client with a complete outline of To access the Louisiana Rules of half of your client, if handled on a contin- the scope of representation, conflicts of Professional Conduct, go to: www.ladb.org/ gency fee basis, must be deposited into the interest, and a plan for communication, Material/Publication/ROPC/ROPC.pdf. trust account and disbursed only in accor- then the contract and a letter should be There are many different types of fee dance with Rule 1.15 and the contingency sent, outlining what you plan to do and arrangements. Here is a brief description fee contract. how you plan to communicate about it.2 of the most common types. Rule 1.5(c) requires that, upon conclusion of a contingent fee matter, you Retainers, Advance Deposits Contingent Fee provide the client with a written statement and Hourly Fee Agreements Arrangements indicating the outcome of the matter and, if there is a recovery, showing the remittance Sometimes lawyers mistakenly call According to Rule 1.5(c), a fee may be to the client and an itemization of the “advance deposits” by the name “retain- contingent on the outcome of a matter for fees and expenses incurred. If the client er.” The difference is important because which the service is rendered. A contingent has agreed to pay expenses such as court the money received from the client must fee arrangement must be in writing, and reporters, investigators, health care pro- be handled differently in the two -situa the writing must be signed by the client. viders, experts or others, Rule 1.15(d) re- tions. Advance deposit fee arrangements The writing must provide: quires that those funds be promptly paid are governed by Rule 1.5(f)(3). ► The method by which the fee is to from the proceeds of settlement or judg- A true retainer is an amount paid by be determined, including the percentage or ment. Also, you must pay any other person a client on an agreed-upon basis in order percentages that will accrue to the lawyer with a claim against the settlement or judg- to keep a lawyer generally available to in the event of settlement, trial or appeal; ment fund if (a) you have actual knowl- the client. When paid, the money may be ► The litigation and other expenses edge of that person’s interest; and (b) the deposited into the operating account, can that are to be deducted from the recovery; claim is (1) recognized by a statutory lien be used by the lawyer, subject to possible ► Whether the expenses are to be de- or privilege; (2) recognized in a final judg- refund if a dispute arises. ducted before or after the contingent fee is ment addressing disposition of the claim; An advance deposit, however, is mon- calculated; and or (3) contained in a written agreement ey which the client puts on deposit with the ► Any expenses for which the client (executed by the client or by you on behalf lawyer to ensure that future work can and of the client) guaranteeing payment out of will be liable, whether or not the client is 1 will be paid for. When paid, the money still the prevailing party. those funds or property. belongs to the client and must be deposited A copy of the contract must be given to If you come into possession of funds in the attorney’s trust account. The lawyer the client at the time of the agreement. If or property in which both you and another may only use the money as she works or financial assistance is provided to a client, person (such as a lawyer who previously incurs reasonable expenses and bills for a copy of Rules 1.8(e) must be given to the represented your client in the same matter) them. At agreed-upon intervals, the lawyer client as per Rule 1.4(c). claim interests, you must keep the property may withdraw a portion of the advance

Louisiana Bar Journal August / September 2021 154 Vol. 69, No. 2 www.lsba.org deposit to pay a fee/expense invoice. She When paid, this fee becomes the property may do so without obtaining the prior per- of the lawyer and may be deposited into mission of the client, but she is obliged to the operating account and spent. make periodic accountings to the client. The “true retainer” relationship is Detailed trust account records must somewhat unusual in this day and age. be kept. Withdrawals should not be made If you enter into such an agreement with from the trust account without issuing an the client, you must be sure to clarify, in invoice to the client, along with notifica- writing, what services are to be expected tion that money will be or has been within exchange for the general availability drawn from the trust account to pay the in- retainer and when “retainer” work ceases voice. The client should be updated on the Rule 1.5(f)(2) provides that a flat and “hourly” work commences. (As “true status of the advance deposit on a periodic fee or minimum fee becomes the prop- retainers” are rare, an example has not basis — ideally monthly. erty of the lawyer when paid and may be been provided in the Practice Aid Guide). Hourly fee agreements are often deposited into the operating account. The Any hourly work should also be separately used when it is difficult to determine the caveat, however, found under subsection formalized with an engagement letter or amount of time necessary to pursue the (f)(5), is that you must immediately refund contract signed by you and your client. legal matter. Detailed records should be any amount of an unearned fee when a fee kept as to the time spent on the matter, dispute arises. If there is a disagreement FOOTNOTES and the client should be invoiced at regu- as to what amount of the fee is unearned, lar intervals, preferably monthly. Use and you must immediately refund to the client 1. The discussion pertains to disbursement of personalize the sample hourly fee agree- the amount, if any, that you and the client funds obtained pursuant to a contingent fee contract. ment with advance deposit and the sam- agree has not been earned and deposit any There are special rules which apply to funds or prop- and all other amounts in dispute into your erty in which the client and/or third persons have ple hourly fee agreement with advance an interest. These rules are discussed more fully in deposit (domestic) that can be found in trust account pending resolution of the dis- Property Belonging to Third Persons, infra, in a later the Practice Aid Guide. pute. You are specifically prohibited from excerpt from the Practice Aid Guide. using retention of the disputed portion of 2. There is a conflict between the statute govern- the funds to coerce the client into accepting ing contingent fee contracts, La. R.S. 37:218 on the Flat Fee, Fixed Fee or one hand, and the Rules of Professional Conduct your contention as to the amount of the fee and prevailing Louisiana jurisprudence on the other Minimum Fee Agreements that is earned. hand. La. R.S. 37:218 states that a contingent fee As a practical matter, you may take and contract may stipulate that neither the attorney nor A lawyer may sell her future services use any fee that is fixed, flat, or minimum. the client may, without the other’s written consent, settle, compromise, release, discontinue, or otherwise for a specified price. For example, you However, you should do so only if you have may charge a set amount for handling a di- dispose of the suit or claim. According to the statute, the ability to deposit an equivalent amount any settlement, compromise, discontinuance, or vorce or a DWI defense. You may require immediately in trust should a dispute arise. other disposition of the suit or claim by either the that the flat fee be paid before you begin to Should the lawyer be discharged prior to attorney or the client, without the other’s written consent, is null and void; and the suit or claim work on the case. The only requirement is completion, the unearned portion of the fee that the fee not be “unreasonable” within shall be proceeded with as if no such settlement should be promptly returned. Retaining the or disposition has been made. This provision of the framework of Rule 1.5(a). You may unearned portion after discharge would be the statute is in direct contravention to Rule 1.2 of still have to justify the amount charged, so unreasonable under Rule 1.5(a) and may the Rules of Professional Conduct, as well as the Supreme Court’s decision in Hayes v. Saucier Dairy time records remain important even in flat subject the lawyer to discipline. fee situations. You can use and personal- Products, 373 So.2d 102 (La. 1978), and LSBA v. Ideally, attorneys in flat fee arrange- Edwins, 329 So.2d 437 (La. 1976). In Hayes, the ize the sample “flat fee” arrangement in the ments should obtain their client’s informal Supreme Court interpreted La. R.S. 37:218 as merely Practice Aid Guide. consent to the scope of the representation establishing a privilege guaranteeing payment of a fully-earned contingent fee to an attorney A hybrid of fixed or flat fee billing is a in writing, signed by the client, which “minimum fee” agreement. Generally, this discharged without cause. However, the Supreme directly addresses what particular ser- Court recognized that the statute could not and does sort of arrangement occurs when the law- vices the lawyer is agreeing to perform. not prevent the client from discharging his attorney, yer and the client agree that a matter will with or without cause, at any time, pursuant to Rule be handled until a particular point in the 1.2. The Hayes Court also reaffirmed its exclusive proceeding, or a particular date, or a par- True Retainers authority conferred by the Louisiana Constitution to regulate the practice of law (first recognized ticular event, for a set fee, fixed or flat. If Rule 1.5(f)(1) defines the old- in Edwins), confirmed that the Rules of Professional the matter is resolved by the pre-arranged Conduct have the force and effect of substantive point, then no additional amount is due fashioned “true retainer.” This is a sum law, and declared that only legislative enactments from the client. If, on the other hand, the of money paid by a client to ensure the which aid its inherent powers to regulate attorneys’ practices will be approved by the Court. Therefore, matter is not resolved by that point, then lawyer’s general availability to the client, such as serving as a bank’s general the clause in La. R.S. 37:218 which purports to nul- the client is charged (usually hourly) an lify any settlement reached by the client without additional amount for any additional work. counsel. The fee is not necessarily related the attorney’s approval is perhaps unenforceable. to any particular matter or litigation.

Louisiana Bar Journal August / September 2021 154 Vol. 69, No. 2 www.lsba.org Louisiana Bar Journal August / September 2021 155 Vol. 69, No. 2 www.lsba.org Congratulations to the

PRACTICEManagement By Ashley Flick Anglin CASELOADS: HOW MUCH IS TOO MUCH? 2021 GOOD APPLES Congratulations to the nfortunately, this is a very difficult question and there is no magic formula. The many Community Honoree Community Honoree variables to consider make it Campaign for Equity Michael Hecht Unearly impossible to triangulate a maximum caseload. There is some guidance New Orleans President & CEO, on caseload limits for public defenders 2021 GOOD APPLESGNO, Inc. and attorneys representing indigent persons, but that is all. However, all areas of practice are subject to the Rules of Professional Conduct which help identify some caseload parameters. According to the Rules of Professional tions could put you at risk for disciplin- hours a week to allow your pre-decided Community Honoree Community Honoree Conduct, every client is entitled to com- ary complaints and possibly malpractice work/life balance. Don’t let the market Campaign for Equity Michael Hecht petent, prompt and diligent representa- suits. decide your family time or down time. tion. If you are too busy, the client may The key to determining the optimal For individual attorneys, in addition New Orleans President & CEO, suffer; you may miss important steps and caseload is balance. Firm leaders and solo to balance, another important factor to not have time to communicate important attorneys should find the balance where managing your caseload is to know your Pro Bono Honoree GNO,Pro Bono Inc. Honoree information to your client, let alone ade- they are busy but not overwhelmed. This own limit and to recognize when enough quately represent your client. On the oth- can be tricky because there are times is enough. Ask yourself, “Can I take on Tonya Rhodes Jupiter Margaret Viator, er hand, you also have a duty to charge when you can be extremely busy and another case and devote the requisite Associate Director, Associate, the client a reasonable fee for services. If then there are times where it is slow and time to take the case to completion while you are not busy enough, you could end you are struggling to find work. With that being able to competently represent all Pro Bono & Advocacy Phelps Dunbar, LLP up billing a client for unnecessary work being said, you should consider adopt- clients and not over work?” The answer to meet billable-hour requirements. ing a caseload policy for you and other to this question will vary for each attor- Programs, Tulane Law Your caseload doesn’t just affect your lawyers in the firm. Encourage individual ney, depending on individual factors. School clients; it also can have a direct effect on attorneys to alert firm leaders when their Assessing and managing your case- your mental health. Too little work and caseloads are not optimal, whether un- load is a delicate balance and one that Pro Bono Honoree Pro Bono Honoree you stress that you won’t make enough manageable or too small. This would al- should not be taken lightly. A good case- to make ends meet or lose your job. low work to be shifted around to prevent load balance will allow you to be profit- Tonya Rhodes Jupiter Margaret Viator, Too much work and you can become burnout or potential malpractice. You able while also having time to maintain a Associate Director, Associate, overwhelmed, stressed and, over time, also may consider a personal number of good work/life balance. Special thanks to our Diamond and all our sponsors burn out. Operating under these condi- Pro Bono & Advocacy Phelps Dunbar, LLP Ashley Flick Anglin is professional liability Programs, Tulane Law loss prevention counsel for the Louisiana State School TULANE LAW SCHOOL CONGRATULATES Bar Association and is employed by Gilsbar, L.L.C. in Covington. She Chaffe McCall Kean Miller received her BA degree in political science in Galloway Johnson Phelps Dunbar 2005 from Southeastern Louisiana University and Irwin Fritchie Sher Garner her JD degree in 2010 JOINSpecial US NEXT thanks YEAR to our FOR Diamond THE 2022 and GOOD all our APPLE sponsors GALA FOR REACHING 100% PARTICIPATION from Loyola University College of Law. As loss IN THIS YEAR’S LAW FIRM CHALLENGE! prevention counsel, she lectures on ethics as part of Mandatory Continuing Legal Education re- ON THURSDAY, JANUARY 20, 2022 quirements for attorneys licensed to practice law in Louisiana. Email her at [email protected]. 6 TO 8PM AT THE SAZERAC HOUSE 101 MAGAZINE STREET, NEW ORLEANS, LOUISIANA

Louisiana Bar Journal August / September 2021 156 Vol. 69, No. 2 www.lsba.org WWW.LOUISIANA APPLE SEED.ORG JOIN US NEXT YEAR FOR THE 2022 GOOD APPLE GALA ON THURSDAY, JANUARY 20, 2022 6 TO 8PM AT THE SAZERAC HOUSE 101 MAGAZINE STREET, NEW ORLEANS, LOUISIANA

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Louisiana Bar Journal August / September 2021 156 Vol. 69, No. 2 www.lsba.org LouisianaWWW.LOUISIANA BarWWW.LOUISIANA Journal August / September 2021 157APPLEAPPLEVol. 69, SEED.ORGNo.SEED.ORG 2 www.lsba.org JOIN US NEXT YEAR FOR THE 2022 GOOD APPLE GALA ON THURSDAY, JANUARY 20, 2022 6 TO 8PM AT THE SAZERAC HOUSE 101 MAGAZINE STREET, NEW ORLEANS, LOUISIANA

WWW.LOUISIANA APPLE SEED.ORG Lawyers ASSISTANCE By Dr. Angela White-Bazile, Esq. ADDRESSING STRESS? DON’T GO IT ALONE

ack at work? Still working survey found that: from home? Vaccinated? Not ► 61% of adults reported experienc- yet or not at all? Mask or no ing undesired weight changes since the mask? start of the pandemic. BBefore you assess whether things Your call is absolutely ► 53% of adults said they have been seem different around you, take - amo confidential as a matter of law. less physically active. ► 67% said they are sleeping more ment to identify what may or may not be Toll-free (866)354-9334 going on within you. or less than they want to. Have you noticed: www.louisianajlap.com ► Nearly one in four adults (23%) ► A decrease in your energy and ac- Email: [email protected] reported drinking more alcohol to cope tivity levels? with their stress. This proportion jumps ► An increase in your alcohol, to- to more than half of adults (52%) who bacco use, or use of illegal drugs? as a “physical, mental, and emotional are parents with children 5-7 years old. ► An increase in irritability, with response to life’s changes and de- ► 48% of parents said the level of outbursts of anger and frequent arguing? mands.”2 There has been much change stress in their life has increased com- ► Trouble relaxing or sleeping? and uncertainty over the last year for pared with before the pandemic. More ► Crying frequently? everyone. Not only were we faced with than three in five parents with children ► Worrying excessively? COVID-19, social isolation and the loss who are still home for remote learning ► Blaming other people for every- of many lives, but 2020 also saw an in- (62%) said the same. thing? crease in racial and social unrest. It was ► 57% of Black Americans were ► Difficulty communicating or lis- also a huge election and transitional most likely to report feelings of concern tening? year. Then, days into 2021, there was a about the future compared to 51% of ► Difficulty giving or accepting riot at the U.S. Capitol. There have been Asians, 50% of Hispanics, and 47% of help? mass shootings, winter storms, flooding, Whites. ► Loss of appetite or overeating? high-profile divorces, and numerous ► Generation Z adults (46%) were ► Not caring about anything? civil rights trials. the most likely generation to say that ► Trouble remembering things? Stress cannot be avoided entirely as it their mental health has worsened com- ► Difficulty making decisions?1 is a natural part of everyday life and can pared with before the pandemic, fol- If you have experienced, or are ex- be healthy in small doses. It is constant lowed by Xers (33%), Millennials periencing, any of the above, you may and intense stress that can negatively (31%), Boomers (28%), and older adults 5 be stressed. It has only been a little over affect all aspects of a person’s life and (9%). a year since COVID-19 violated every lead to physical, mental and emotional Overall, “survey responses reveal corner, plan and system of the world. issues. Stress can cause elevated blood that physical health may be declining The pandemic mandated a worldwide pressure, increased heart rate, muscle due to an inability to cope in healthy 6 pause, which did not discriminate based tension and mood changes. Stress also ways with the stresses of the pandemic.” on race, age, gender, socioeconomic sta- can develop into depression or anxiety.3 The U.S. Centers for Disease Control tus, profession or geographic location. Stress and its effects have become a and Prevention confirms that increased The pandemic forced everyone to spend growing interest as more individuals and stress levels can cause health problems, time with families, significant others, professions are concerned with mental including nightmares, headaches, body and, more importantly, ourselves. We health. The American Psychological pains, stomach problems, skin rashes, were driven to self-reflect and notice Association has commissioned an an- and an increased use of alcohol, tobacco 7 some qualities that may or may not be nual nationwide survey — the Stress in and drugs. Various studies suggest that healthy. America survey — since 2007 to exam- attorneys battle substance abuse, anxi- Unquestionably, living in a world of ine the state of stress across the country.4 ety and depression at higher rates than uncertainty and unknown has caused The most recent Stress in America the general population. Thus, it is even many to encounter stress. The American survey of 3,000 adults was conducted in more important for us to address how Bar Association (ABA) defines stress February 2021 by The Harris Poll. The we deal with stress.

Louisiana Bar Journal August / September 2021 158 Vol. 69, No. 2 www.lsba.org According to Rebecca Simon, a well- health or addiction issue, contact the ness consultant and former law school professional clinical staff at JLAP at professor, “the coronavirus crisis has a (985)778-0571, email jlap@louisiana- particular impact on the types of people jlap.com, or visit the website at: www. lawyers tend to be — people who like louisianajlap.com. Remember, we are a data, control and predictability.”8 She Safe Haven of Healing. also stated that the default mind of lawyers is to push through the emotions and FOOTNOTES do the work.9 DON’T GO IT In a survey of more than 1,000 1. Substance Abuse and Mental Health Services judges across the United States be- Administration, “Coping with Stress During Infectious Disease Outbreaks,” www.americanbar. fore COVID-19, “about one-third or org/content/dam/aba/administrative/lawyer_assis- more reported fatigue and low energy, tance/sma14-4885.pdf. sleep disturbance or disturbed atten- JLAP CAN SHOW 2. “Stress,” American Bar Association, Jan. 13, tion and concentration.”10 The ABA 2021, www.americanbar.org/groups/lawyer_assis- YOU THE WAY. tance/resources/stress/. released these results of the National 3. “Stress Effects on the Body,” American Judicial Stress and Resiliency Survey in Your call is absolutely Psychological Association, www.apa.org/topics/ December 2020. confidential as a matter of law. stress/body. Between September and October 4. “Stress in America Press Room, Stress in America 2021: Pandemic Stress One Year On,” 2020, the ABA surveyed more than www.louisianaJLAP.com American Psychological Association, www.apa.org/ 4,200 of its members, finding, “Roughly Toll-free (866)354-9334 news/press/releases/stress. 40% feared that they were going to get Email: [email protected] 5. “One Year Later, A New Wave of Pandemic laid off or furloughed, and 52% said Health Concerns,” American Psychological Association, March 11, 2021, www.apa.org/news/ that generating business from new cli- press/releases/stress/2021/one-year-pandemic-stress. ents was more difficult.”11 Results also 6. Id. appear to show that women have had a 7. “Coping with Stress,” Jan. 22, 2021, Centers more difficult time coping with employ- for Disease Control and Prevention, www.cdc.gov/ avoid drugs and alcohol.13 coronavirus/2019-ncov/daily-life-coping/managing- ment and caregiver duties and main- The current circumstances are chal- stress-anxiety.html. taining the household, with “roughly 8. Lizzy McLellan, “Lawyer Mental Health lenging for everyone, and unprecedented 22% of women responding that they is Facing Its Greatest Challenge, But Increased change is a part of life. But know that are ‘very’ or ‘extremely’ concerned that Empathy May Be the Byproduct,” Oct. 2, 2020, you are not alone, as everyone experi- www.law.com/americanlawyer/2020/10/02/lawyer- if they continue to work remotely that ences stress. You are only one person, mental-health-is-facing-its-greatest-challenge-but- they would be considered uncommitted increased-empathy-may-be-the-byproduct/?slre- and you cannot do everything all the to their firm.”12 turn=20210405141408 . time. Gradually, implement one or more Law students and recent graduates 9. Id. of these tips to create balance in your 10. “ABA Releases Comprehensive Survey also have experienced stress transition- life. Prioritizing your well-being will im- Report Revealing Key Drivers of Judicial Stress,” ing to virtual classes and remote bar ex- American Bar Association, Dec. 23, 2020, www. prove the culture of the legal profession ams on top of concerns about their own americanbar.org/news/abanews/aba-news-ar- and also enhance the experience of every health and the health of their loved ones. chives/2020/12/aba-releases-comprehensive-survey- individual you come into contact with. report-revealing-key-drivers-o/. Some students also had internship and Intentionally make time for yourself 11. Dylan Jackson, “Women and Minority job offers rescinded and are likely wor- Lawyers Worry ‘The Pandemic Will Define Their as we slowly return to our pre-pandemic ried about their futures. Career,’” The American Lawyer, April 26, 2021, ac- routines and be encouraged to seek pro- So, what do you do when you are un- cessed via LexisNexis.com. fessional help when necessary. There is 12. Id. able to push through the emotions and no shame in seeking help. We must take 13. “Healthy Ways to Handle Life’s Stressors,” do the work? How do you handle stress? American Psychological Association, Nov. 1, 2019, care of ourselves to be able to provide Some great tips to reduce or man- www.apa.org/topics/stress/tips. the best services. age stress include breathing exercises; Even though things may look very meditate; regular physical exercise Dr. Angela White-Bazile, different than we planned, we made it Esq., is the executive di- and healthy eating; recite affirmations; through last year, another school year, rector of the Louisiana make a list of things you are thankful Judges and Lawyers and another fiscal year. If you need help for; guide your thoughts into a positive Assistance Program, managing your stress, JLAP is here to environment; take control over your Inc. (JLAP) and can be serve and support you. You do not have reached at (985)778- schedule by setting healthy boundar- to address it alone. 0571, toll-free (866)354- ies; surround yourself with optimistic 9334 or by email at To learn more or to seek confidential and encouraging people; disconnect [email protected]. help with stress or any type of mental from electronic devices; rest; laugh; and

Louisiana Bar Journal August / September 2021 158 Vol. 69, No. 2 www.lsba.org Louisiana Bar Journal August / September 2021 159 Vol. 69, No. 2 www.lsba.org Focus on DIVERSITY AWARD... SPECIALTY BARS

Williams Receives 2020-21 Committee on Diversity in the Legal Profession Award

Sharonda R. has gone above and beyond the com- tors for the Louisiana Endowment for Williams, general mittee role to address the needs of un- the Humanities and the Greater New counsel and di- derrepresented groups of public interest Orleans Fair Housing Action Center. She rector of govern- causes. also chairs the Board of Commissioners ment affairs for Williams, a native of Lake Charles, for the Regional Transit Authority. Loyola University joined the Diversity Committee in Williams received the Louis A. New Orleans, has 2016. Since joining, she has served Martinet Legal Society, Inc. Award for been selected as on the LSBA’s Pipeline to Diversity Outstanding Service in 2005 and the the 2020-21 re- and Outreach Subcommittee and the National Bar Association’s President’s cipient of the Sharonda R. Integration Subcommittee. She also Award in 2009. She was listed in the Louisiana State Williams served as a panelist on committee pro- 2012 Best Lawyers in America. Bar Association’s gramming including the empowering She is a trial advocacy instruc- (LSBA) Committee on Diversity in the Superwomen CLE. She assisted with tor at Tulane University Law School. Legal Profession Award. The award the Law Student Resume Workshop and She is a graduate of Xavier University recognizes a current member of the participated in the Suit Up for the Future New Orleans, the University of North Diversity Committee who has demon- Program. Carolina School of Medicine and Loyola strated a commitment to diversity and She serves on the board of direc- University College of Law.

The Louisiana State Bar Association Diversity Committee’s Specialty Bars Subcommittee sponsored the June 7 Specialty Bar Reception at Hotel Effie Sandestin. The event featured an evening of networking during the LSBA’s Annual Meeting. Among those attending were Among those attending the June 7 Specialty Bar Reception were, from left, Sheryl Smith; Judge Bradley J. Tate, left, and Judge Rachael D. Clinton W. Smith, Jr., Orleans Parish Juvenile Court; Tina L. Suggs, Frederick A. Miller & Associates; Johnson, Orleans Parish Civil District Court. Everett Suggs; and Judge Rhonda J. Goode-Douglas, Orleans Parish Criminal District Court.

Louisiana Bar Journal August / September 2021 160 Vol. 69, No. 2 www.lsba.org We Design-Build Resolution! Mediation & Arbitration Construction Panel

Joe Hassinger Melanie Mulcahy Hon. Wm. Knight (ret.) Albert Dale Clary Kathryn Wiedorn Thomas Usdin

Rocky Seydel, Jr. Elizabeth Ryan Howard Murphy Roger Javier Harold Adkins

T. Peter Breslin Bobby Harges Brad Luminais Cherrell Taplin Hon. Paul Bonin (ret.) Jay Ginsberg “My client is looking forward to trying this construction defect case!” #277 from Things No One Has Ever Said, 2021. LOUISIANA • MISSISSIPPI • TEXAS • NATIONWIDE

Louisiana Bar Journal August / September 2021 160 Vol. 69, No. 2 www.lsba.org 800.443.7351Louisiana Bar Journal | August [email protected] / September 2021 161 Vol. 69, No. 2 www.lsba.org | maps-adr.com Crossword PUZZLE By Hal Odom, Jr. MIND THE AMPERSANDS

1 2 3 4 5 6 7 ACROSS DOWN

1 Descriptor of community 1 __ & pains (5) property (7, 1, 5) 2 Majorities (5) 8 9 10 8 It appeared on Bikini in 1954 (1-4) 3 Beset by difficulties (9) 9 Family at Buckingham Palace (7) 4 Witnessed (3) 11 __ & Sirloin, popular 5 __ & tonic (3) restaurant theme (3) 6 Covered, in a way (7) 11 12 13 14 15 13 In the manner of an educator (9) 7 Aerosol (7) 16 Descriptor of defamation (5, 1, 7) 10 Abbr. similar to Ltd. (3.) 19 Like a clear sky (9) 12 Giant Manning (3) 16 17 18 21 Son-gun link (2, 1) 14 Bridal path (5) 23 Astonish (7) 15 Funerary monument (9) 26 Skips (5) 16 Of few words (7) 27 Kind of danger, overriding First 17 Gooey chocolate square (7) 19 20 21 22 Amendment protections (5, 1, 7) 18 Pixie (3) 20 Fightin’ Tigers of the SEC (3) 21 Suppose or presume (5) 22 __ & liability, type of 23 24 25 26 tax accounting (5) 24 Paper sz. (3) 25 __ & see, new-baby party (3)

27 Answers on page 199.

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/Sunset 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. Cell (318)332-7294 [email protected] Covington/ Suzanne E. Bayle (504)524-3781 [email protected] Mandeville Area [email protected] New Orleans Area Helena N. Henderson (504)525-7453 Denham Springs Area Mary E. Heck Barrios (225)664-9508 [email protected] [email protected] Houma/Thibodaux Area Danna Schwab (985)868-1342 River Parishes Area Judge Jude G. Gravois (225)265-3923 [email protected] Jefferson Parish Area Pat M. Franz (504)455-1986 [email protected] (225)265-9828 [email protected] Cell (225)270-7705 Lafayette Area Pam Landaiche (337)237-4700 [email protected] Shreveport Area Dana M. Southern (318)222-3643 Lake Charles Area Melissa A. St. Mary (337)942-1900 [email protected] [email protected] For more information, go to: www.lsba.org/goto/solace.

Louisiana Bar Journal August / September 2021 162 Vol. 69, No. 2 www.lsba.org Louisiana Bar Journal August / September 2021 162 Vol. 69, No. 2 www.lsba.org Louisiana Bar Journal August / September 2021 163 Vol. 69, No. 2 www.lsba.org FOCUSProfessionalism ON By Michael E. Holoway THE NEW NORMAL

he past year of the pandemic nalize admission to the Bar. As a practical as a mentor if you have the time and desire has wrought many challenges. adjunct to the Bar exam, the completion to do so. You also can view the manual These include challenges to of both could do nothing but improve the and the articles and materials available for conduct business in general as knowledge and success of new members mentors and mentees. If possible, get in- Twell as to practice law effectively, -effi of the Louisiana Bar. Perhaps we can take volved in your local bar association, Inns ciently and professionally. Underlying all the disruption and uprooting caused by of Court and the LSBA to add your knowl- these challenges are numerous smoldering this pandemic and further streamline and edge, skill and experience to the ongoing social and political issues, which likely positively evolve our methodology to bet- evolution, refinement and improvement to have been brought more to the forefront as ter test and prepare our future colleagues our system of justice and the practice of a result of the events of the past year. for the ever-changing and challenging law in Louisiana. In my view, the two most striking ac- practice of law.4 commodations or changes regarding the The use of the Zoom platform for court FOOTNOTES practice of law were cancellation of the hearings and appearances has allowed 1. Order of the Louisiana Supreme Court issued 1 Bar exam in 2020 and the use of the the courts to avoid a total shutdown dur- June 16, 2020. Zoom Internet platform for court appear- ing the pandemic. Any trial lawyer likely 2. The mentor must be a practicing Louisiana ances and hearings. has a healthy suspicion regarding appear- lawyer who has practiced 10 or more years and who The Louisiana Supreme Court can- ances via Internet, and with good reason. has completed a two-hour CLE course. The mentor is supplied with a Mentoring Manual and a list of re- celled the Bar exam because of the pan- It’s certainly difficult (if not impossible) to sources and references for the various activities. demic restrictions, and all 2020 law read body language and inflection of tone 3. Louisiana Supreme Court Order issued Nov. school graduates who had already passed in a head-and-shoulder view of a witness 29, 2018: “1. The voluntary mentoring program des- the character and fitness prerequisites on a computer screen. There is no way of ignated as the Transition into Practice program established by this Court on May 15, 2013, and expanded were allowed to become practicing attor- knowing if someone outside the camera to include new Bar admittees statewide by Order of neys and members of the Louisiana Bar view is coaching or otherwise directing this Court dated February 23, 2017, is hereby ex- without sitting for the Bar exam. At first the witness. The witness may have refer- tended for an additional two years, until December blush, this appeared to be a most fortunate ence notes or prompts outside the camera 31, 2020.” 4. Rule 6.2(k) of the Rules for Louisiana and lucky windfall for the class of 2020. view. The use of exhibits or documen- District Courts incorporates the Louisiana Code of The quid pro quo requirement was that tary evidence and submission of them to Professionalism, two bullet points of which are apro- the graduates enroll in, and complete, the the court and witness is more difficult. pos: “I will work to protect and improve the image of Louisiana State Bar Association’s (LSBA) However, the trade-off of having no hear- the legal profession in the eyes of the public; and, I will be supportive of new members in the profession.” mentoring program — the Transition Into ings at all is perhaps even more unaccept- Practice (TIP) Program. The program is able and troubling. Michael E. Holoway, cur- designed to extend for a year with four On the other hand, while I have nothing rently a sole practitioner quarterly mandatory and voluntary activi- other than anecdotal information, the con- in the New Orleans and Northshore New Orleans 2 ties, supervised by a mentor. venience to the participants and lawyers to areas, received his JD de- The TIP Program was initially en- attend hearings from their homes, their of- gree in 1983 from Tulane visioned and developed by the LSBA’s fices and, in some instances, their cars is a Law School. Active in Committee on the Profession as a man- real plus even though some (or all) of the the Louisiana State Bar Association (LSBA), datory program. The Louisiana Supreme decorum of physical presence in court is he is a former co-chair Court implemented it first as a pilot pro- diminished or absent as a result. It will be and longtime member gram in limited areas of the state. After interesting to see if this is something that of the Committee on the the pilot program, in 2017, the Louisiana will remain in some format as an alterna- Profession, a former chair of the Joint Subcommittee on Mentoring Supreme Court implemented it through- tive to in-person attendance at hearings. and a member of the Practice Assistance and out the state as a voluntary program only.3 I hope all of you find the time and the Improvement Committee. He is a former member Now, for the first time, the TIP Program inclination to visit the mentoring informa- of the LSBA’s Board of Governors and is current- can fulfill its true potential. Our -oppor tion on the LSBA’s website: www.lsba. ly a member of the House of Delegates. He also served on the board of directors for the Louisiana tunity now is to retain completion of the org/Mentoring/. There you can view the Bar Foundation. ([email protected]; mentoring program as a prerequisite to fi- training video (2 CLE credits) and sign up P.O. Box 327, Folsom, LA 70437)

Louisiana Bar Journal August / September 2021 164 Vol. 69, No. 2 www.lsba.org MEDIATION AND ARBITRATION of COMPLEX DISPUTES

Martin Coady Guy deLaup Larry Feldman W. Ross Foote E. Phelps Gay Thomas Hayes, III

Mike McKay Patrick Ottinger Mike Patterson Larry Roedel Marta-Ann Schnabel

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BATON ROUGE | LAFAYETTE | MONROE | NEW ORLEANS | NORTH SHORE | SHREVEPORT : 866.367.8620 : [email protected] : pattersonresolution.com Louisiana Bar Journal August / September 2021 164 Vol. 69, No. 2 www.lsba.org Louisiana Bar Journal August / September 2021 165 Vol. 69, No. 2 www.lsba.org DISCIPLINE Reports REPORTING DATES 6/4/21 & 6/4/21

REPORT BY DISCIPLINARY COUNSEL Public matters are reported to protect the public, inform the profession and deter misconduct. Reporting date June 4, 2021.

Decisions order of the Louisiana Supreme Court on year supervised probation period, with March 23, 2021. JUDGMENT FINAL conditions, by order of the Louisiana Michael Peter Arata, New Orleans, and EFFECTIVE on March 23, 2021. Supreme Court on April 13, 2021. (2020-B-01487) Disbarred from the Paul John Barker, formerly of New JUDGMENT FINAL and EFFECTIVE practice of law, retroactive to his Feb. Orleans, (2021-B-00187) Consented to on April 27, 2021. 17, 2016, interim suspension, by order suspension from the practice of law for Donald R. Dobbins, Baton Rouge, of the Louisiana Supreme Court on one year and one day, fully deferred, (2020-B-1403) Suspended from the April 20, 2021. JUDGMENT FINAL subject to probation and conditions, by practice of law for a period of three and EFFECTIVE on May 4, 2021. Gist: order of the Louisiana Supreme Court on years, retroactive to the effective date Convicted of multiple felony counts April 20, 2021. JUDGMENT FINAL and of the suspension imposed by the involving conspiracy and wire fraud EFFECTIVE on April 20, 2021. Gist: Louisiana Supreme Court in In Re: arising from fraudulent claims to obtain Respondent neglected legal matters; Dobbins, 19-1346 (La 1/29/20), ____ tax credits for expenditures relative to the failed to communicate with clients; failed So.3d ____, by order of the Louisiana film industry. to refund unearned fees; and failed to Supreme Court on May 13, 2021. Gerald Joseph Asay, Baton Rouge, reconcile his client trust account at least JUDGMENT FINAL and EFFECTIVE (2021-OB-0069) Reinstated to the quarterly. on May 27, 2021. Gist: Multiple DWI practice of law, with conditions, by Jennifer M. Bonneau, Mandeville, incidents; failure to provide competent order of the Louisiana Supreme Court on (2021-OB-00411) Transferred to representation; neglect of a legal matter; April 7, 2021. JUDGMENT FINAL and disability inactive status by order of failure to adequately communicate with EFFECTIVE on April 7, 2021. Gist: Mr. the Louisiana Supreme Court on April a client, including failure to adequately Asay has proven by clear and convincing 7, 2021. JUDGMENT FINAL and explain fee arrangement; and failure to evidence that he satisfies the criteria for EFFECTIVE on April 7, 2021. Gist: account for and/or return an unearned reinstatement to the practice of law in the Ms. Bonneau may not practice law until fee. state of Louisiana. further orders from the Court. Hilliard Charles Fazande III, New Paul John Barker, formerly of New Lillian Matena Brown-Singh, Orleans, (2020-B-1415) Permanently Orleans, (2021-OB-00184) Transferred Bogalusa, (2021-OB-00138) Reinstated disbarred from the practice of law to active status, with conditions, by to the practice of law, subject to a two- by order of the Louisiana Supreme Court on March 24, 2021. JUDGMENT FINAL and EFFECTIVE on April 7, 2021. Gist: Respondent neglected a legal Christovich & Kearney, llp matter; failed to communicate with a attorneys at law client; failed to refund an unearned fee; Defense of Ethics Complaints and Charges practiced law while ineligible to do so; and failed to cooperate with the Office of Disciplinary Counsel in its investigation. E. Phelps Gay Kevin R. Tully William C. Gore, Baton Rouge, (2021-B-0348) Suspended, by consent, H. Carter Marshall from the practice of law for 18 months, with six months deferred, retroactive to (504)561-5700 Sept. 8, 2020, the date of respondent’s 601 Poydras Street, Suite 2300 interim suspension, followed by two New Orleans, LA 70130 years of supervised probation, by order of the Louisiana Supreme Court

Louisiana Bar Journal August / September 2021 166 Vol. 69, No. 2 www.lsba.org 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 June 4, 2021. Respondent Disposition Date Filed Docket No. Justin Alsterberg Public reprimand. 6/2/2021 20-2717 Bryan Joseph Haydel [Reciprocal] Interim suspension. 4/27/2021 21-380 Sally Harrison Longmire Hingel [Reciprocal] Disbarment. 6/2/2021 20-3383 Kevin P. Kleinpeter [Reciprocal] Suspension (fully deferred). 4/27/2021 21-227 Donald Joseph Melancon [Reciprocal] Suspension (partially deferred). 5/19/2021 21-365 Morris W. Reed [Reciprocal] Suspension (fully deferred). 6/2/2021 21-600 Richard L. Reynolds [Reciprocal] Interim suspension. 4/5/2021 21-158

Discipline continued from page 166 Robert C. Jenkins, Jr., New Orleans, failed to communicate with clients, failed on April 20, 2021. JUDGMENT FINAL (2021-B-0293) Suspended, by consent, to refund unearned fees, and failed to and EFFECTIVE on April 20, 2021. Gist: from the practice of law for a period of properly terminate the representation of Respondent neglected a client’s legal one year and one day, with all but six clients, in two separate counts. matter; failed to communicate with his months deferred, subject to probation, Sanford Kutner, Luling, (2021-B- client; misled opposing counsel regarding by order of the Louisiana Supreme Court 00364) Consented to 18 months from the status of the matter; and concealed on April 7, 2021. JUDGMENT FINAL seeking admission to the Louisiana his misconduct from his client and his and EFFECTIVE on April 7, 2021. Gist: bar or seeking admission to practice in supervising attorney. Respondent neglected legal matters, 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]

Louisiana Bar Journal August / September 2021 166 Vol. 69, No. 2 www.lsba.org Louisiana Bar Journal August / September 2021 167 Vol. 69, No. 2 www.lsba.org Discipline continued from page 167 and EFFECTIVE on April 27, 2021. JUDGMENT FINAL and EFFECTIVE Clarence T. Nalls, Jr., Baton Rouge, on April 7, 2021. Gist: Respondent Louisiana on a temporary or limited (2020-B-01126) Disbarred by order practiced law during a period of basis, including, but not limited of the Louisiana Supreme Court on suspension. pro hac vice to, seeking admission March 24, 2021. Rehearing denied on Kemic Alan Smothers, New Orleans, for a Louisiana court pursuant to May 13, 2021. JUDGMENT FINAL (2020-B-01412) Suspended from the Supreme Court Rule XVII, § 13, or and EFFECTIVE on May 13, 2021. practice of law for one year and one seeking limited admission as an in- Gist: Recognizing that respondent is day by order of the Louisiana Supreme house counsel pursuant to Supreme already disbarred and engaged in the Court on March 16, 2021. JUDGMENT Court Rule XVII, § 14, by order of unauthorized practice of law indicates FINAL and EFFECTIVE on March the Louisiana Supreme Court on April that respondent lacks the moral fitness to 30, 2021. Gist: Respondent engaged in 20, 2021. JUDGMENT FINAL and practice law and is a threat to his clients, the practice of law during a period of EFFECTIVE on April 20, 2021. Gist: the legal profession and the public. ineligibility. Respondent acknowledges that he Walter P. Reed, New Orleans, (2021- Albert A. Thibodeaux, New neglected his client’s legal matter; failed OB-0367) Permanently resigned from Orleans, (2021-B-00290) Consented to communicate with his client; failed the practice of law in lieu of discipline to a six-month period of suspension, to promptly refund unearned fees; and by order of the Louisiana Supreme fully deferred, by order of the Louisiana engaged in the unauthorized practice of Court on April 20, 2021. JUDGMENT Supreme Court on April 7, 2021. law. FINAL and EFFECTIVE on April 20, JUDGMENT FINAL and EFFECTIVE Phillip J. LaFleur, Mandeville, 2021. Gist: Convicted by a federal jury on April 7, 2021. Gist: Respondent (2021-B-0265) Suspended, by consent, of multiple counts of conspiracy, mail signed his client’s name to a pleading, from the practice of law for one year and wire fraud, money laundering, and notarized the signature, and then filed the and one day, fully deferred, subject making and subscribing false income tax pleading into the court record. to a two-year period of supervised returns. Kathleen Wilson, Baton Rouge, , by order of the Louisiana probation David S. Scalia, New Orleans, (2021- (2020-B-01488) Suspended for one Supreme Court on April 7, 2021. B-0301) By consent, suspended from year and one day, with all but 90 JUDGMENT FINAL and EFFECTIVE the practice of law for one year, fully days deferred, subject to conditions, on April 7, 2021. Gist: Respondent deferred, subject to probation, by by order of the Louisiana Supreme mismanaged his client trust account. order of the Louisiana Supreme Court Court on May 13, 2021. JUDGMENT Kimuel W. Lee, Baton Rouge, (2021- on May 11, 2021. JUDGMENT FINAL FINAL and EFFECTIVE on May 27, OB-0366) Reinstated to the practice and EFFECTIVE on May 11, 2021. Gist: 2021. Gist: Respondent was sanctioned of law, subject to a two-year period of Commission of a criminal act. for violating Rule 8.4(b), following her , by order of probation, with conditions Mark G. Simmons, Baton Rouge, arrest for first offense DWI, where there the Louisiana Supreme Court on May (2020-B-1139) Suspended from the was subsequent medical evidence of an 11, 2021. JUDGMENT FINAL and practice of law for a period of three unresolved alcohol use disorder. EFFECTIVE on May 11, 2021. years, retroactive to Oct. 16, 2017, , Lafayette, James Elwood Moore, Jr. the date of his suspension in In re: Admonitions (private sanctions, (2020-B-01376) Interimly suspended Simmons, 17-1043 (La. 10/16/17), 226 often with notice to complainants, etc.) by order of the Louisiana Supreme Court So.3d 1102, by order of the Louisiana issued since the last report of misconduct on April 27, 2021. JUDGMENT FINAL Supreme Court on March 24, 2021. involving:

Violation of Rule 7.7(c) — Failure to file an advertisement with the LSBA (2 incidents).

Violation of Rule 1.15 — Failure to promptly disburse to third parties undisputed fiduciary funds in the respondent’s possession (2 incidents).

Violation of Rule 8.1(b)(c) — Failure to cooperate with the Office of Disciplinary Counsel in its investigation.

Louisiana Bar Journal August / September 2021 168 Vol. 69, No. 2 www.lsba.org RECENTDevelopments BANKRUPTCY TO TAXATION

a “valid bankruptcy purpose.” Concluding to reorganize or restructure the affairs of it is not, Judge Hale held the NRA had the Association for the purposes of cost- filed in bad faith, “cause” existed to dis- minimization, regulatory compliance or Bankruptcy miss the debtor’s case under 11 U.S.C. § otherwise.” However, there was no dis- Law 1112(b), and that it was in the best interest cussion of the possibility of bankruptcy, of creditors to dismiss the debtor’s case Chapter 11, or a possible restructuring at without prejudice rather than to appoint a the board meeting. The NRA’s board ap- trustee or an examiner. proved the employment agreement. Eight NRA’s Bankruptcy Case Prior to the NRA’s bankruptcy filing, days later, LaPierre unilaterally employed the New York attorney general filed a the above authority granted to him to put Dismissed; Avoiding complaint in New York state court against the NRA into bankruptcy. Dissolution Through the NRA seeking, among other things, Several parties in interest, including State Regulatory Action its dissolution on the bases that the NRA the attorney general, moved to dismiss had (1) exceeded the authority granted it the NRA’s case as a bad faith filing pur- Not a Valid Bankruptcy by the state; and (2) certain directors and suant to section 1112(b) or for the court Purpose officers in control of the NRA,- includ to appoint a trustee or an examiner. The ing its vice president, Wayne LaPierre, court, considering the motions together, In re Nat’l Rifle Ass’n of Am., ____ B.R. had looted corporate assets and perpetu- began by observing that, pursuant to In ____ (Bankr. N.D. Tex., 5/11/21), 2021 ated the non-profit corporation solely for re Little Creek Development. Co., 779 WL 1970738. their personal benefit. Six months later, F.2d 1068, 1072-73 (5 Cir. 1986), a find- Judge Harlin D. Hale of the Bankruptcy the NRA’s board of directors was asked ing that the debtor’s filing is not in good Court for the North District of Texas as- to pass a resolution approving an em- faith constitutes “cause” to dismiss a case sessed whether, under the 5th Circuit’s ployment agreement for LaPierre. The under section 1112(b). And furthermore, Little Creek “totality of the circumstances” agreement contained language permitting courts find “a Chapter 11 petition is not test, filing a Chapter 11 petition to avoid LaPierre to “exercise corporate authority filed in good faith unless it serves a val- the “existential threat” of a state regulatory in furtherance of the mission and interests id bankruptcy purpose.” Off. Comm. of action seeking dissolution of the debtor is of the NRA, including without limitation Unsecured Creditors v. Nucor Corp. (In re

Ronald E. Corkern, Jr. Brian E. Crawford Steven D. Crews Herschel E. Richard Joseph Payne Williams J. Chris Guillet

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Louisiana Bar Journal August / September 2021 168 Vol. 69, No. 2 www.lsba.org Louisiana Bar Journal August / September 2021 169 Vol. 69, No. 2 www.lsba.org SGL Carbon Corp.), 200 F.3d 154, 165 (3 sought as a remedy in a state regu- Cir. 1999). latory action. It has been asserted Accordingly, it was necessary for that this case is about preserving the the court to first determine which of the NRA as a going concern, which is a Corporate and debtor’s many proffered reasons for- fil very common good faith reason for Business Law ing was its primary motivation, based on filing bankruptcy. There is a differ- an objective review of the evidence. The ence, however, between a lawsuit court rejected all of the NRA’s purported in which a party seeks a monetary reasons for filing — to reduce operating judgment that would pose an ex- Shareholders’ Failed costs, to address burdensome executory istential threat to a debtor and one contracts and unexpired leases, to mod- where the attorney general of a state Business Judgment ernize the NRA’s charter and organization is specifically seeking dissolution of Rule Challenge in structure or to obtain a “breathing spell.” a debtor under the state’s laws and Merger First, according to testimony of the NRA’s therefore required to satisfy stan- employees, the debtor was in “its stron- dards and requirements that specifi- Moulton v. Stewart Enters, Inc., 20- gest financial condition in years,” a fact cally justify dissolution. 0090 (La. App. 4 Cir. 5/5/21), ____ So.3d supported by the debtor’s stated intent to ____, 2021 WL 1806598. pay all allowed claims in full. The court found that the type of disso- In 2013, minority shareholders of a Second, since LaPierre made the deci- lution sought by the attorney general was corporation alleged the breach of fiduciary sion to file unilaterally (indeed, “surrepti- not one the Bankruptcy Code was intend- duties by the corporation’s board of direc- tiously” according to the court), the court ed to protect against. This made the case tors in a merger where all the shares of the found LaPierre’s testimony to be credible before the court less a “traditional bank- corporation were sold to an acquiring cor- and “the most direct” and “the most com- ruptcy case in which a debtor is faced with poration. pelling evidence for why the NRA filed financial difficulties or a judgment that it Until the 1990s, the corporation was for bankruptcy.” LaPierre testified that the cannot satisfy” and more like cases where closely held by the family of the chair of NRA “filed the Chapter 11 to — because a debtor seeks “unfair advantage in liti- the board of directors at the time of the the New York State attorney general is gation or to avoid a regulatory scheme.” merger. The chair held shares representing seeking dissolution of the NRA and [sei- Accordingly, the court found the debtor to 36% of the voting power and 11% own- zure of] its assets, and we believe it’s not be in bad faith and cause existed to dis- ership of total shares of the corporation. a fair, level playing field.” On these bases, miss the case. The court declined requests His voting power allowed him to block the court found that “the primary purpose to appoint a trustee or an examiner as not any corporate action requiring a two-thirds of the bankruptcy filing was to “avoid in the interest of creditors. vote of the shareholders. Years prior to potential dissolution” in the attorney gen- the merger, the chair had expressed to the eral’s case. —Coleman L. Torrans board of directors that, in the event prop- Turning to whether this was a “valid Member, LSBA Bankruptcy erty or operations of the corporation had bankruptcy purpose,” the court opined: Law Section to be divested during any future merger to Lugenbuhl, Wheaton, Peck, comply with federal antitrust regulations, The Court has great concern about Rankin & Hubbard he wanted an option to purchase such this case because its purpose is Ste. 2775, 601 Poydras St. properties first. to avoid dissolution that is being New Orleans, LA 70130 In 2012, the acquiring corporation made an offer to the board of directors to purchase all the corporation’s stock for $10 per share. The board of directors formed a special committee to consider the offer and strategic options, specifically excluding the chair and one other director who may have been presented with actual or potential conflicts of interest in evaluating the offer and strategic options. The special committee retained a reputable financial advisor and law firm to advise it on the potential merger and met several times from January to May 2013. At an April 18, 2013, board meeting, the chair formally requested that he be granted an option to purchase the divesti-

Louisiana Bar Journal August / September 2021 170 Vol. 69, No. 2 www.lsba.org tures of any corporate property or opera- proved the merger and recommended that fair” to the shareholders of the corporations. The board instructed him to leave, the shareholders approve the merger. Prior tion under former La. R.S. 12:84 (2013). met immediately in executive session and to the shareholders’ vote on the merger, the The district court granted summary judg- declined his request. The board also in- minority shareholders sought an injunc- ment in favor of the board of directors and structed the chair not to speak to anyone tion in district court to stop the merger, corporation, finding there was no conflict at the acquiring corporation regarding the which was denied. On Aug. 13, 2013, the of interest, dismissing the minority share- transaction. Further, the board required the merger was approved by more than 99% holder claims and upholding the applica- acquiring corporation to represent in the of the corporation’s shareholders, well in tion of the business-judgment rule to the merger agreement that it had no separate excess of the two-thirds requirement for board’s decision-making regarding the agreements of any kind with the chair. mergers under former La. R.S. 12:112(C) merger. On April 26, 2013, the special com- (2)(2013). The merger was approved by The appellate court found that the chair, mittee unanimously resolved that, prior to the FTC; however, the FTC required that having no involvement or interest in the approving the merger, two directors would certain properties of the acquiring corpo- acquiring corporation, was not an inter- speak with the chair to ascertain whether ration be divested after the merger. These ested director; therefore, the application he would vote in favor of the merger at a properties were later acquired in part by a of former La. R.S. 12:84 (2013) was not share price of $13 or higher, and the chair corporation in which the chair had made appropriate. The appellate court held in- agreed. The special committee negotiated an equity investment of less than 5%. stead that former La. R.S. 12:91(C)(2013) to increase the purchase price to $13.25 per After the merger, the minority share- should apply and that the minority share- share and permitted the chair to speak with holders amended their petition to challenge holders failed to present adequate evidence executives of the acquiring corporation re- the transaction on the grounds of conflicts to meet their burden of proof to show an garding company culture and to sign a vot- of interest by the board and the chair as an “alleged breach of duty” by the board such ing agreement to the effect that he would interested director; bad faith; and breach that the business-judgment rule would not not block the vote in favor of the merger. of the duty of loyalty by the board, argu- apply, holding: On May 28, 2013, the special committee ing that the business-judgment rule should unanimously recommended that the board not apply under the circumstances and that We are reluctant to interfere in the approve the merger, and the board unani- the corporation and board had the burden corporate matters involved in this mously accepted the recommendation, ap- of proving that the merger was “inherently case and refrain from substituting

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Louisiana Bar Journal August / September 2021 170 Vol. 69, No. 2 www.lsba.org Louisiana Bar Journal August / September 2021 171 Vol. 69, No. 2 www.lsba.org our judgment for that Company’s for the disposal of chemicals and other under other laws,” thus confusing when Board of Directors. We review these waste. In 2002, the EPA sued Guam under plaintiffs can raise claims and when stat- business transactions guided by the Clean Water Act for “discharging pol- utes of limitations have begun to toll. Id. principles of fairness and balanced lutants . . . into waters of the United States at 1613. deliberation to achieve predictabil- without obtaining a permit.” The parties ity and flexibility in the application settled in 2004, with Guam required to 5th Circuit Finds of our business laws. We find that pay penalty fees and cover and close the the directors in this case decided dump. Formosa Needs Only to matters rationally, honestly, and In 2017, Guam brought suit against the Mitigate New Discharges without disabling conflicts of inter- United States to recover damages for the est; thus, we refrain from interfering cost of cleaning up the site. The complaint of Plastics into Lavaca with the business decisions of the invoked §§ 107 and 113 of CERCLA, Bay directors . . . . with Guam alleging the U.S. Navy was liable for removal costs as former dump op- San Antonio Bay Estuarine Waterkeeper The appellate court affirmed the judg- erators. The United States contended that v. Formosa Plastics Corp. Tex., 20-40575 ment of the district court. Guam could not invoke § 107 because § (5 Cir. April 30, 2021), 2021 WL 1726813. 113 was the exclusive remedy for parties The 5th Circuit Court of Appeals de- —Chelsea P. Fitzgerald that had already entered into “judicially- cided a case arising under the Clean Water Member, LSBA Corporate and approved settlements” with the United Act. Following a suit by the plaintiff and Business Law Section States. The United States argued that other environmental organizations, the Liskow & Lewis, APLC Guam’s 2004 agreement with the EPA district court found plastics manufacturer Ste. 5000, 701 Poydras St. qualified as a judicially approved settle- Formosa to be in violation of its Texas New Orleans, LA 70139 ment under § 113 and barred Guam from Pollutant Discharge Elimination System bringing a § 113 claim because the three- (TPDES) permit after plastics discharged year statute of limitations had passed. from its plant through runoff were found While the trial court found that the in Cox Creek and Lavaca Bay in numbers 2004 agreement between Guam and the exceeding the “trace amounts” permitted. Environmental EPA was not a judicially approved settle- The parties agreed to a consent decree set- Law ment, the D.C. Court of Appeals dis- tling the claims against Formosa for $50 agreed, finding that the 2004 agreement million and committing the company to had started the timer on a CERCLA con- mitigating new discharges, but then dis- tribution claim, and that the statute of limi- puted the meaning of three paragraphs CERCLA § 113 tations had lapsed. that were the case’s subject before the 5th The Supreme Court reversed the court Circuit. Contribution Claims of appeals, holding that because the EPA Paragraph 36 of the Consent Decree Arise Only After sued Guam under the Clean Water Act, stated that if Formosa, or the third party not CERCLA, the 2004 agreement had appointed to document the discharge of Settlement Resolves not qualified as a judicially approved the plastics, found discharges, Formosa CERCLA Liability settlement. “A settlement must resolve a would be in violation of its discharge CERCLA liability to trigger a contribution permit in accordance with paragraph 37. Territory of Guam v. United States, 141 action under § 113(f)(3)(B).” Id. at 1612. Paragraph 37 stated that concerned citi- S.Ct. 1608 (2021). Considering the greater context of § zens or groups could send documentation Before a party can bring a § 113(f)(3) 113(f), the Court found that if contribution of discharges of plastics to the third-party (B) contribution claim against another in- is a “tool” to apportion liability, the liabil- monitor, who could count them among dividual responsible for an environmen- ity must derive from the same action for those they documented. Paragraph 38 tal hazard, the Supreme Court has held which a party is seeking contribution. In stated that Formosa would be obligated that the party needs to have first settled the context of § 113(f), the liability must to report every discharge of plastics to all liability that arose under CERCLA. arise under CERCLA and cannot arise un- the Texas Commission on Environmental CERCLA gives the EPA broad authority der another source. Quality, which had issued them their to enforce hazardous-waste-management The Court ultimately reasoned that if it TPEDS permit. rules and establishes liability for respon- were to find that § 113(f)(3)(B) was satis- Formosa argued that the paragraphs sible parties. fied by the discharge of environmental li- in question are pertinent only to new dis- Guam and the United States are disabilities arising under other laws, it would charges of plastics. At the same time, San puting liability for the cost of remediating have the potential to turn § 113(f)(3)(B) Antonio Bay asserted that the mere pres- the Ordot Dump, a “280-foot mountain of into a “free-roving contribution right for ence of plastics proves that a discharge trash” first built by the U.S. Navy in 1940 a host of environmental liabilities arising occurred. The court ultimately determined

Louisiana Bar Journal August / September 2021 172 Vol. 69, No. 2 www.lsba.org that Formosa’s view was the more reason- that the gift letter evidenced her intent. able interpretation of the paragraphs in The court of appeal affirmed the trial question. court’s award of the reimbursement to The court determined that the language Family Ms. Vinet, finding (1) merely placing the used in the consent decree was “forward- Law funds into the joint checking account did looking,” given that elements considered not create a donation to Mr. Vinet; (2) were paragraph 36 with a force majeure he was never in sole possession of those clause, the present-tense term “discharg- funds, as the account was a joint account, es” used in paragraph 36 and 37, as well Community Property she could have withdrawn the funds from as the term “new discharges” in paragraph the account, and the check from the ac- 37. Given particular consideration was Vinet v. Vinet, 20-0387 (La. App. 5 Cir. count was written directly to the title that both paragraph 38 and the section of 4/14/21), ____ So.3d ____, 2021 WL company; (3) the gift letter was not an the consent decree where these paragraphs 1399000. authentic act; and (4) the funds were not are located were concerned with the oc- Ms. Vinet transferred her separate made community under La. Civ.C. art. currence of future events. funds into the parties’ joint checking ac- 2343.1 as there was no written stipulation The court also reasoned that the count, and then a cashier’s check was by authentic act supporting a gratuitous Consent Decree, if applicable to current written to the title company for a partial transfer. plastic discharges that are found later, payment for their purchase of a home She argued that she should be reim- would be at odds with the parties’ inten- during their community in their joint bursed for one-half of the total sum de- tions to enter into a “full and final settle- names. However, the bank required her posited to the joint checking account, ment” of the claims against Formosa for to sign a “gift letter” that stated that she $94,000, rather than only one-half of the the current releases into the creek and had given the funds to Mr. Vinet to be amount of the check written to the title bay. According to the court, Formosa’s applied toward the purchase of the home company, $91,695, because under Talbot responsibility after the Consent Decree because the promissory note to the bank v. Talbot, once she deposited her sepa- was signed was the mitigation of plastics for the remainder of the purchase price rate funds to a community account, the released after the date of the signing. was to be in Mr. Vinet’s name alone, and burden shifted to Mr. Vinet to show that because the parties would obtain better the community did not use the funds. The —Lauren E. Godshall loan terms if the loan were in his sole court held that Talbot was inapplicable Member, LSBA Environmental Law name. However, both parties signed the because the burden was on her as the par- Section mortgage and title documents for the ty making the reimbursement claim. The Tulane Environmental Law Clinic home. During their community property court held that because she stipulated that 6329 Freret St. partition, each claimed reimbursement funds remaining in the joint checking ac- New Orleans, LA 70118 for the funds used. She argued that she count as of the termination date of the and never intended to donate the funds to community were in excess of the amount Thomas Miller him; he argued that the funds were do- she claimed, those funds may have re- 2L, Tulane Law School nated to him as his separate property, and mained in the account, and she stipulated

Louisiana Bar Journal August / September 2021 172 Vol. 69, No. 2 www.lsba.org Louisiana Bar Journal August / September 2021 173 Vol. 69, No. 2 www.lsba.org that the account was a community asset. convert all of the funds therein to com- main supervised until she could provide Thus, she failed to prove that the funds munity property. a counselor’s report to the court stating were spent for a community purpose and that it was safe for her to be around the that the funds remaining in the account Procedure child. It further provided that after the were her separate property. The court of court received that report, her visita- appeal reversed the trial court’s value of Franks v. Franks, 20-1170 (La. App. tion from a prior judgment would be certain assets at a different value than the 1 Cir. 4/16/21), ____ So.3d ____, 2021 reinstated. On her appeal, the court of parties had stipulated, finding that once WL 1439541. appeal found that the judgment was not the parties stipulated to the values, the Mr. Franks moved to modify cus- a final appealable judgment and that it court had to accept those values. tody, seeking shared physical custody; lacked subject matter jurisdiction over reserved all claims for any other causes the appeal. Thus, it dismissed the ap- In re Interdiction of Gambino, 21-0267 of action; and prayed for all other re- peal. The appellate court found that (La. 4/20/21), 313 So.3d 1239. lief reasonable in the premises. After because it was not clear when the visi- The Louisiana Supreme Court grant- the parties began sharing physical cus- tation would resume, the judgment was ed writs, reversed the court of appeal tody, he claimed that he was entitled to not “precise, definite and certain.” The and reinstated the trial court’s judgment, a reduction in child support retroactive concurring judge noted that because the finding that Mr. Gambino proved by a to the date they began sharing physi- judgment was a partial final judgment, preponderance of the evidence that im- cal custody. He argued that his reserva- it could be amended at any time by the movable property was his separate prop- tion and prayer were sufficient to create trial court, which was able to determine erty, paid for with his separate funds, a retroactive child support right to the whether the conditions in the judgment using money received from his parents. date of his filing to modify the custody. were met, and the trial court could re- He introduced bank ledgers and traced The trial court and the court of appeal visit the issues being presented on ap- the funds used to purchase the property. rejected his argument, stating that the peal. The dissenting judge found that the The Supreme Court found that the trial reservation “was simply a reservation judgment was clear, as it contemplated a court did not err in weighing his cred- and not a demand.” Moreover, the res- later judgment reinstating her visitation ibility, and that the trial court was enti- ervation in the prayer did not put her on in accordance with the previous judg- tled to great deference on its credibility notice that he was actually seeking a re- ment after the counselor’s report was call. Moreover, not only did the Supreme duction in child support, as the motion provided to the trial court. Court find that Gambino’s testimony was did not mention specifically the child corroborated by his documentary evi- support obligation or otherwise seek a Paternity dence, but it also found that there were no modification thereof. documents that so contradicted his story Wetta v. Wetta, 21-0092 (La. App. 3 Cir. or facts that made it so internally incon- Custody 6/2/21), ____ So.3d ____, 2021 WL sistent or implausible that his testimony 2217030. should not be credited. Further, even if Niquiporo v. Hill, 20-0848 (La. App. 1 Although Mr. Wetta was clearly not some of the donations to Gambino from Cir. 5/27/21), 2021 WL 2213306. the biological father of the child, and his father were during his father’s inter- The trial court’s custody judgment both he and Ms. Wetta knew it, he signed diction, those transactions were relative awarded sole custody of the parties’ an acknowledgment of paternity. After nullities, and no one had moved to re- child to Mr. Niquiporo, provided for she filed for divorce and sought custody scind them. Further, the small amounts supervised visitation by Ms. Hill and and child support, he attempted to file of interest earned on his accounts did not ordered that her visitation would re- a petition to revoke the act of acknowledgment and to disavow his paternity. The court noted that La. R.S. 9:406(B) and La. Civ.C. art. 195 had to be read in conjunction, and that his action, at its very essence, was an attempt to disavow his paternity. He argued that he should not be held to the acknowledgment because he was clearly not the biological father, so the acknowledgment was Christopher M. Moody incorrect; thus, because the facts were SELA Mediation Partner wrong, the acknowledgment could not 985-602-3019 be used to establish a presumption of his [email protected] paternity. The court rejected his several seladisputeresolution.com arguments, concluding that a disavowal action had to be filed within the peremp-

Louisiana Bar Journal August / September 2021 174 Vol. 69, No. 2 www.lsba.org tive period under La. Civ.C. art. 195, opinion, joined only by Justices Gorsuch provide impartial tribunals or procedures and as he did not timely file his action, and Kavanaugh, goes further and suggests compatible with the due process of law.” he could not disavow his paternity. The that plaintiffs’ claims fail irrespective of the 2021 NY Slip. Op. at p. 7. The underly- court noted that even though he knew he location of corporate activity. The opinion ing dispute involved the alleged breach was not the biological parent, he accept- asserts that the ATS provides causes of of a repurchase agreement governed by ed the responsibility of being a parent action for only the three torts Congress Chinese law with a Beijing forum selec- to the child, and La. Civ.C. art. 195 pre- enumerated when it enacted the ATS in tion clause. The court in China found for vented him from abandoning his com- 1789, namely violation of safe conducts, the plaintiffs. Defendants were represent- mitment for his own convenience. infringement of the rights of ambassadors, ed by counsel in the case. No assets were and piracy. Justice Thomas would further located in China to enforce the judgment, —David M. Prados reject plaintiffs’ claims because they do not so plaintiffs sought redress in New York Member, LSBA Family Law Section invoke one of these three causes of action state court. Defendants moved to dismiss Lowe, Stein, Hoffman, Allweiss and the Court should not otherwise judi- the case because the Chinese judgment & Hauver, L.L.P. cially manufacture causes of action. was not rendered under a system of law Ste. 3600, 701 Poydras St. Supreme Court, New with impartial tribunals affording due pro- New Orleans, LA 70139-7735 cess. The court dismissed the case, rely- York County ing primarily on U.S. Department of State Annual Country Reports, finding, inter International Shanghai Yongrun Inv. Mgmt. Co. v. alia, that the Chinese judiciary does not Kashi Galaxy Venture Cap. Co., 2021 exercise judicial power independently. Law NY Slip Op. 31459(U) (April 30, 2021), 2021 WL 1716424. —Edward T. Hayes The New York Supreme Court is- Chair, LSBA International Law Section sued a decision declining to enforce a Leake & Andersson, LLP U.S. Supreme Court Chinese money judgment because it was Ste. 1700, 1100 Poydras St. “rendered under a system which does not New Orleans, LA 70163 Nestlé USA, Inc. v. Doe, 141 S.Ct. 1931 (2021). The U.S. Supreme Court issued an 8-1 decision narrowly construing the Alien Tort Statute (ATS). Plaintiffs were citizens of Mali who contended that they were il- legally brought into the Ivory Coast and forced to work on cocoa farms. Plaintiffs sued Nestlé and Cargill, both of whom are U.S. corporations that source cocoa from the Ivory Coast, alleging that they aided and abetted third parties engaged in forced labor practices. The only conduct purportedly occurring in the United States was general corporate activity, including corporate oversight and decision-making at their corporate headquarters. The question before the Court was whether the al- legations of general corporate activity in the United States were sufficient to invoke jurisdiction under the ATS. The ATS provides federal jurisdiction for aliens over claims for torts “committed in violation of the law of nations.” 28 U.S.C. § 1350. The Court declined to extend ATS jurisdiction to general corporate activity. In order to establish domestic application of the ATS, “plaintiffs must allege more domestic conduct than general corporate activity.” One section of Justice Thomas’

Louisiana Bar Journal August / September 2021 174 Vol. 69, No. 2 www.lsba.org Louisiana Bar Journal August / September 2021 175 Vol. 69, No. 2 www.lsba.org Watkins sued her former employer un- to 5th Circuit case law establishing that a der both Title VII and the FMLA, alleg- plaintiff may rely on “any evidence that Labor and ing that the sheriff (1) violated Title VII casts doubt on credence,” Judge Oldham Employment by treating her worse than Oubre, and (2) criticized the majority for trying “to smug- Law violated the FMLA by firing her in retalia- gle in the disparate-treatment evidence” tion for seeking medical leave. The sheriff without a proper comparator. moved for summary judgment, which the Judge Oldham also noted that, accord- district court, without explanation, granted ing to 5th Circuit precedent, temporal- Pretext Shown by Any based on a lack of competent evidence of proximity evidence, while carrying sig- pretext. nificant weight, cannot be used alone to Evidence that Casts The entire panel agreed that the district establish pretext. Characterizing the major- Doubt on Credence court erred in dismissing Watkins’ Title ity’s opinion as relying solely on evidence VII race claim because Oubre, a similarly of temporal proximity, Judge Oldham Watkins v. Tregre, 997 F.3d 275 (5 Cir. situated white employee, was treated more argued that the majority violated the 5th 2021). favorably when caught sleeping on the Circuit’s rule of orderliness, whereby one In a retaliation case, does temporal job. As a result, the court concluded that 5th Circuit panel may not overrule another. proximity combined with evidence that Watkins produced substantial evidence Prior panel decisions remain the law until does not rise to the level of disparate treat- of pretext based on disparate treatment. overruled by the 5th Circuit en banc. ment create a triable issue of fact? The Although the sheriff testified in his deposi- Responding in a footnote to Judge majority of a 5th Circuit panel concluded tion that he fired Watkins for a variety of Oldham’s dissent, Judge Jolly explained it does, triggering a partial dissent that ac- infractions, the only issue considered by that evidence need not be dispositive of cused the majority of improperly smug- the board was sleeping at work. The court pretext to be probative in determining gling in irrelevant disparate-treatment evi- refused to weigh the evidence or resolve pretext. Rather, pretext can be established dence and violating the 5th Circuit’s rule this dispute in the sheriff’s favor. by any evidence that casts doubt on an of orderliness. As to Watkins’ FMLA retaliation claim, employer’s proffered justification for the The plaintiff, Denise Watkins, was a the panel disagreed regarding whether the adverse employment action. By presenting dispatch supervisor for the St. John the district court erred. Writing for the major- evidence that sleeping on the job was not a Baptist Parish Sheriff’s Office. Watkins is ity, Judge Jolly reasoned that a plaintiff dischargeable offense, the plaintiff met her black and suffered from severe anxiety. may use any evidence that cast doubts on burden. At the end of January, Watkins’ supervi- the credence of the proffered reason for With regard to Judge Oldham’s conten- sor, Lieutenant Carmouche, commended an adverse employment action. Because tion that the majority’s opinion violated the her superb work. Ten days later, however, Watkins had supplied evidence that sleep- rule of orderliness, Judge Jolly countered Carmouche counseled Watkins on her per- ing on the job is not an infraction that that the majority had “done no such thing.” formance, including sleeping on the job. results in termination, a reasonable jury Instead the majority’s opinion was prop- Carmouche did not take further disciplin- could infer that unlawful retaliation oc- erly based on (1) evidence that the reason ary action. curred. Judge Jolly also noted the “near- for termination was unworthy of credence, In mid-February, Watkins gave immediate” timing between Watkins’ and (2) close temporal proximity. Carmouche a doctor’s note, which stated request for medical leave and her termi- Watkins clarifies that evidence of - cer she had been diagnosed with anxiety and nation. Such close temporal proximity, tain workplace practices may be proba- needed periodic time off from work. Two combined with Watkins’ other evidence tive of pretext even if that evidence does days later, Carmouche filed a disciplinary- of pretext, persuaded the majority that her not rise to the level of disparate treatment. review-board request regarding Watkins’ FMLA retaliation claim should survive Such evidence should not be discarded performance, including sleeping on the summary judgment. as irrelevant, particularly when courts are job. Judge Oldham dissented in part, argu- tasked with viewing all the evidence in On March 1, the disciplinary-review ing that Watkins’ FMLA retaliation claim its totality and in a light most favorable to board convened and reviewed only one failed because disparate-treatment evi- the non-moving party. A plaintiff, in fact, of the performance infractions cited by dence is probative of pretext only where may use any evidence that casts doubt on Carmouche — sleeping on the job. The the comparator employee is in the plain- an employer’s stated reason for an adverse board unanimously recommended that tiff’s protected class. Watkins failed to employment action to establish pretext. Watkins be fired. The next day, the sheriff produce evidence that Oubre requested approved the recommendation and fired leave. Because there was no compara- —Robert B. Landry III her. tor employee in Ms. Watkins’ protected Member, LSBA Labor and Watkins, however, was not the only dis- class, Judge Oldham deemed irrelevant Employment Law Section patch supervisor who had been discovered the sheriff’s testimony that he could not re- Robert B. Landry III, PLC sleeping. A white dispatch supervisor, Joe call having fired anyone who slept on the Ste. 303, 5420 Corporate Blvd. Oubre, was caught and simply counseled. job. Disregarding the majority’s reference Baton Rouge, LA 70808

Louisiana Bar Journal August / September 2021 176 Vol. 69, No. 2 www.lsba.org to the Office of Conservation to amend operation, and that an operation can con- its permit to designate its well as a unit stitute a unit operation even if the drilling well. The Office of Conservation later -is permit identifies the well as a lease well. Mineral sued an order designating the well as a Nunez v. Wainoco Oil & Gas, Inc., 488 Law unit well for each of the two units that So.2d 955, 964 n.28 (La. 1986). The 2nd included portions of the well’s horizon- Circuit also noted that the undisputed tal lateral. The order was effective March evidence showed that Range’s intent all 27, 2018. along was to drill to the LCV RA unit. Operator’s Intent In the plaintiffs’ trespass lawsuit, both Therefore, the drilling constituted a unit sides moved for summary judgment. operation even though the well had not Determined Whether Range submitted an expert witness affi- yet been designated as a unit well. Well Was a Unit Well or davit stating that it is an accepted practice Lease Well for the Office of Conservation to issue a Court Grants permit that authorizes an operator to drill Diamond McCattle Co., L.L.C. v. Range to a deep, non-unitized formation, even Preliminary Injunction La. Operating, LLC, 53,896 (La. App. 2 though the operator’s main objective is Against “Pause” on to test a shallower, unitized formation. Cir. 4/14/2021), ____ So.3d ____, 2021 Federal Oil and Gas WL 1396603. Another witness testified via affidavit The plaintiffs sued Range Louisiana that it is common practice to designate Leasing Operating, L.L.C., and its drill-site super- a well as a lease well so that an opera- visor (collectively, Range), asserting that tor can obtain a permit and begin drill- The President Biden Administration Range committed a subsurface trespass ing without waiting for the hearing that announced that it would unilaterally by drilling a horizontal well that intruded is needed to have a well designated as a “pause” the granting of new oil and gas into the subsurface of the plaintiffs’ land in cross-unit well. Range also submitted af- leases on federal lands and the Outer Jackson Parish. fidavit evidence that its intent all along Continental Shelf. Louisiana and 12 other The undisputed facts showed that was to drill a unit well to the LCV RA states filed suit in the U.S. District Court Range obtained a permit from the Formation, rather than a lease well to the for the Western District of Louisiana, Louisiana Office of Conservation to drill L-Gray Sand. contending that the “pause” is illegal a lease well to the L-Gray Sand, a forma- The state district court in Jackson under federal law. The court granted tion that is not pooled or unitized. Range Parish granted summary judgment in fa- a preliminary injunction enjoining the commenced drilling from a surface loca- vor of Range, relying on Nunez v. Wainoco Biden Administration from continuing its tion on land owned by Tri-Delta Timber Oil & Gas, Inc., 488 So.2d 955 (La. “pause.” The court noted that the Mineral Group, LLC, where Range had a right 1986). In Nunez, the Louisiana Supreme Leasing Act requires the federal govern- to operate. Range drilled to a total verti- Court held that the creation of a drilling ment to hold lease sales of federal lands cal depth of 14,243 feet, which is within unit alters property rights in such a man- “at least quarterly.” Further, the Outer the Lower Cotton Valley Formation, ner that a unit operator is not liable for Continental Shelf Lands Act requires Reservoir A (sometimes designated as subsurface trespass if a unit well intrudes the federal government to develop five- LCV RA). This formation is shallower into the subsurface of unleased land that is year plans for leasing areas of the Outer than the L-Gray Sand. located within the unit. Continental Shelf, and the current five- After reaching that total vertical depth, The plaintiffs appealed to the year plan calls for leasing of areas in the Range turned the drill bit and proceeded Louisiana 2nd Circuit. The plaintiffs Gulf of Mexico. Louisiana v. Biden, 2021 to drill in a horizontal direction for near- noted that Range did not have a lease to WL 2446010 (W.D. La.) (Doughty, J.). ly 5,000 feet. The last 1,443 feet of the operate on their land. Further, at the time resulting horizontal lateral was be- Range drilled and completed its well, the —Keith B. Hall neath the plaintiffs’ land. The Office of well had not been designated as a unit Member, LSBA Mineral Law Section Conservation previously had created well for the LCV RA Formation. Instead, Director, Mineral Law Institute drilling units for the LCV RA. The por- the well was permitted as a lease well for LSU Law Center tion of the horizontal lateral located be- the deeper L-Gray Sand. Indeed, Range 1 E. Campus Dr. neath the plaintiffs’ land was located had not even applied to amend its permit Baton Rouge, LA 70803-1000 within one of the pre-existing LCV RA at the time it drilled and completed the and units. The remainder of the horizontal well. Lauren Brink Adams lateral was within a separate LCV RA The 2nd Circuit rejected the plain- Member, LSBA Mineral Law Section unit. tiffs’ arguments. The court cited Nunez Baker, Donelson, Bearman, Range completed the well on Jan. 10, v. Wainoco for the proposition that the Caldwell & Berkowitz, P.C. 2018. The plaintiffs filed suit two days intent of the operator controls whether Ste. 3600, 201 St. Charles Ave. later. On Feb. 28, 2018, Range applied an operation is a unit operation or a lease New Orleans, LA 70170-3600

Louisiana Bar Journal August / September 2021 176 Vol. 69, No. 2 www.lsba.org Louisiana Bar Journal August / September 2021 177 Vol. 69, No. 2 www.lsba.org treating physicians found no objec- tient.” The district court granted the mo- tive evidence to support that the tion to exclude the affidavits. applicant suffered a brain injury in The appellate court noted it had recently Professional the accident, and that the testimony “addressed, as a matter of first impression” Liability from the Washington, D.C. physi- a district court’s ability to determine what cians was not credible because they evidence may be submitted to a panel. In were merely hired guns paid by the re Med. Rev. Panel for Brock, 19-0480 (La. applicant’s attorney. App. 4 Cir. 6/19/19), 274 So.3d 1275, the Excluded Testimony court decided it had no authority to decide Id. The Supreme Court found “conse- what is or is not allowable as evidence, Said v. Federated Rural Elec. Ins. Exch., quential error” that “tainted” the verdict, stating that the court had specified that 21-0078 (La. 4/20/21), 313 So.3d 1241. and, while a de novo review usually results “La. R.S. 40:1231.8(D)(2), places no re- Said suffered a brain injury in a 2011 in a decision by the reviewing court about strictions on the type of evidence that may accident and was treated by Dr. Hajmurad, who should prevail, the Court noted that be produced to the medical review panel.” “a local neurologist,” for about a year. some situations are best served by remand- In reversing the trial court, the appellate Although he remained symptomatic, he ing for a new trial. Given the duty of the court explained that “[t]he district court’s was told that a 2012 MRI was negative courts to protect the right to trial by jury limited role in facilitating the production of for brain injury. He moved to Washington, and Said’s exercise of that right, it remand- evidence does not permit the district court D.C., where another MRI was done in ed the case for a new trial during which the to act as a gatekeeper and determine what 2014. His then-treating physicians discov- “ends of justice would be served” allow- evidence the Medical Review Panel con- ered visible evidence of the injury on the ing the local treating physicians’ unlimited, siders.” Thus, the district court committed 2012 MRI that “was missed due to its loca- complete testimony concerning the 2012 reversible error in excluding the disputed tion on the film.”Id. at 1242. imaging. Id. at 1243. affidavits. Said’s witness list for trial designated his Washington physicians as “treating and Evidence Submitted —Robert J. David expert” witnesses and others as only “treat- Gainsburgh, Benjamin, David, ing” physicians. Defendants filed a - mo to Panel Meunier & Warshauer, L.L.C. tion in limine to limit the testimony of the Ste. 2800, 1100 Poydras St. physicians not labeled as experts. Despite In re Med. Rev. Panel of Berryhill v. New Orleans, LA 70163-2800 knowledge of the subsequent discovery on Dunham, 21-0099 (La. App. 4 Cir. the 2014 MRI and having changed their 4/28/21), ____ So.3d ____, 2021 WL initial diagnosis, the local physicians were 1676368. prevented from testifying that there was Berryhill’s request for a panel review objective evidence of brain injury in the included a claim for lack of informed con- Taxation earlier imaging, and, while the jury found sent. She contended that she signed a blank for the plaintiff, it made no award for fu- consent form, after which Dunham “wrote ture medical expenses, lost wages or per- in medical conditions that she did not have, manent disability. and listed surgical procedures and alterna- On appeal, the 3rd Circuit agreed with tive treatments that [Dunham] did not dis- Trucks and Trailers for Said that the trial court erred in not allow- cuss with her.” Transportation Do Not ing him to qualify his treating physicians Berryhill’s evidence to the medical- as experts and in limiting their testimony, review panel included affidavits from two Fall Under the MM&E but it decided that the error was harmless of Dunham’s former patients and from the Exclusion because the jury heard evidence of the husband of one former patient, each attest- brain injury from the Washington physi- ing “to their experience with [Dunham’s] CORA-TEXAS Mfg. Co., Inc. v. cian. Therefore, it affirmed the trial court use of consent forms in the context of their Robinson, 20-0972 (La. App. 1 Cir. judgment. The Louisiana Supreme Court care.” Dunham objected to the affidavits. 4/16/21), ____ So.3d ____, 2021 WL agreed that it was error to limit the testi- The attorney chair overruled the objection. 1439804. mony of the local treating physicians but Dunham filed a motion in district court CORA-TEXAS Mfg. Co., Inc. disagreed with the 3rd Circuit that the er- to exclude the affidavits, claiming that evi- (CORA) sought refunds for sales-and- ror was harmless and had no effect on the dence in Berryhill’s case should be about use taxes paid on its purchases and leases ultimate outcome of the trial, stating: her care. Berryhill countered that the af- of equipment CORA claimed were ex- fidavits proved that Dunham “had a habit cluded from the definition of “sale at The trial court’s ruling served to of filling in consent forms after the patient retail” pursuant to the Manufacturing bolster the narrative championed signed the form and including diagnoses Machinery and Equipment (MM&E) ex- by the respondent — that the local and treatment not discussed with the pa- clusion.

Louisiana Bar Journal August / September 2021 178 Vol. 69, No. 2 www.lsba.org CORA manufacturers sugar from repair, were taxable. La. R.S. 47:1990 because it was enforc- sugarcane at its sugar mill in Iberville In addition, the court affirmed the ing its 2016 ruling instead of reviewing Parish. CORA acquires raw sugar- BTA’s disallowance of the MM&E ex- the 2017 assessment. The Commission cane from farmers. The farmers are not clusion for nuts, screws, gaskets, seals then determined that the assessor was re- CORA’s employees. Combines are used and grease; a new roof constructed to quired to follow the 2016 revised value to harvest the sugarcane. The combines encase an exposed portion of a conveyor for 2017. feed the stalks into machinery that chop belt; and front-end loaders, excavators, The assessor argued that La. R.S. the stalks into small billets. CORA does dozers and cranes. 47:1990, as applied by the Commission not own, lease or operate the combines in this case, was unconstitutional because or machinery. —Antonio Charles Ferachi it violated La. Const. art. VII, § 18(D) The essential component of sugarcane Member, LSBA Taxation Section and (E), which provide that an assess- for manufacturing raw sugar is sucrose. Director of Litigation-General Counsel ment must be reviewed first by the board As cuts are made in the sugarcane, there Louisiana Department of Revenue of review and then by the Commission is exposure to bacteria. Bacteria will con- 617 North Third St. and that the parish assessors “shall deter- vert sucrose to dextran. The formation of Baton Rouge, LA 70821 mine the fair market value of property” dextran means there is less sucrose, which for purposes of property taxation. lowers the production of raw sugar. Louisiana Supreme The Louisiana Supreme Court When sugarcane reaches the sugar agreed with the parish assessor, holding mill, CORA extracts the sucrose and Court Holds Taxpayers that La. R.S. 47:1990 did not give the removes the bacteria. CORA’s success Could Not Appeal Commission jurisdiction to review the is dependent on transporting the bil- 2017 assessment because the taxpay- lets to the sugar mill as quickly as pos- Assessment Directly ers had not first appealed to the board sible. Trucks and trailers are used for to Louisiana Tax of review. The Court disagreed with the such transport. Farmers collect cane bil- Commission Commission’s argument that it was not lets and deliver them to CORA’s leased “reviewing” the 2017 assessment but in- trucks and trailers. The trucks and trailers The Louisiana Supreme Court held stead was simply enforcing its determi- bring the billets to the sugar mill. in Comeaux v La. Tax Comm’n, 20-1037 nation regarding the 2016 assessment. The main issue presented for re- (La. 5/20/21), ____ So.3d ____, 2021 However, the Court also found, based view was whether trucks, trailers and WL 2023073, that the Louisiana Tax on its prior holding in D90 Energy, LLC other transportation equipment used by Commission did not have jurisdiction to v. Jefferson Davis Par. Bd. of ,Review CORA in its business are MM&E under hear the appeal of the taxpayers’ 2017 20-0200 (La. 10/1/20), ____ So.3d ____, the MM&E exclusion. The majority of property tax assessment even though 2020 WL 6145158, that the Commission the refund claims at issue related to the the Commission accepted the appeal as did not exceed its rulemaking authority trucks and trailers. a way to enforce its 2016 ruling for the in requiring that the assessor apply the CORA claimed that the MM&E ex- same taxpayers. The Court determined 2016 valuation, as determined by the clusion applied to lease payments, re- that the Commission’s assertion of ju- Commission, in assessing the taxpayer pairs and parts for cane trucks and trail- risdiction over the appeal violated the for 2017. The Court reaffirmed that the ers. The court affirmed the Louisiana Louisiana Constitution because the tax- Commission has the authority pursu- Board of Tax Appeals (BTA) holding that payers had not first appealed to the par- ant to La. Const. Art. VII, § 18(D) and the MM&E exclusion does not include ish board of review. However, the Court under La. R.S. 47:1837(D) and La. R.S. property used to transport raw materials also determined that the Commission had 47:2323 to establish uniform rules relat- prior to the beginning of the manufactur- not overstepped its rulemaking authority ed to appraisal of property, the parish as- ing process. The court held the trucks and in requiring the assessor to abide by the sessors must abide by these rules, and the trailers are used by CORA for the trans- Commission’s ruling that the assessor rule at issue did not unconstitutionally in- port and/or storage of the sugarcane and must apply the 2016 valuation to the tax- fringe on the powers of the assessors pro- play no part as machinery that changes payer’s 2017 assessment. vided in La. Const. Art. VII, § 18(D) and the form of the sugarcane. Other than The fair-market value of the taxpay- did not unconstitutionally conflict with natural processes to the sugarcane that ers’ property had been lowered by the the requirements set forth in La. Const. CORA cannot alter, no physical changes Commission for 2016, but the Lafayette Art. VII, § 18(F). are made to the sugarcane when they are Parish assessor failed to use the lower being transported and stored in the trail- value for 2017. The taxpayers went back —Michael W. McLoughlin ers. The court held the trucks and trail- to the Commission to try to force the Kean Miller, LLP ers clearly do not fall under the MM&E assessor to use the lower valuation for Ste. 3600, 909 Poydras St. exclusion and the BTA correctly found 2017. The Commission ruled that it had New Orleans, LA 70112 that the vehicles themselves, as well as jurisdiction to hear the 2017 appeal under any parts used in their maintenance and

Louisiana Bar Journal August / September 2021 178 Vol. 69, No. 2 www.lsba.org Louisiana Bar Journal August / September 2021 179 Vol. 69, No. 2 www.lsba.org Young LAWYERS CHAIR’S MESSAGE... SPOTLIGHT

CHAIR’S MESSAGE Millennials and Boomers: A Symbiotic Relationship By Graham H. Ryan

he June/July 2021 issue of the work product in ex- on. Constructive feedback is necessary. Louisiana Bar Journal con- change for (and as a Support is necessary. To become a good tained my Chair’s Message result of) guidance, lawyer, a mentor and supporting profes- titled “7 Rules for Pursuing support and construc- sional relationships are necessary. TProfessional Fulfillment.” One of those tive feedback. Mentor-supervisors may be motived rules provides: “Establish a mentor or Not surprisingly, by similar underlying interests — the other supporting relationships grounded this tacit bargain for bottom line, long-term practice stabil- in mutual respect.” Today, those in a subjective value and ity and strength, developing business, or position to provide mentorship tend to resulting feedback furthering a mission (alongside altruism, be Baby Boomers and Gen Xers, and loop inures to the Graham H. Ryan of course). Investing in a young lawyer’s young lawyers tend to be Millennials. benefit of both the development through guidance and feed- In the legal profession, mentorship young lawyer and the mentor. This ar- back often evidences itself in high-quality is often a natural outgrowth of the rela- rangement is implicitly structured to pro- work product, productivity and results. tionship between boomer employers and duce a simple result in which the parties Productivity and results, of course, benefit millennial employees. This professional have a shared interest: the young lawyer’s the mentor-supervisor, and, in turn, pro- working relationship, however, extends development into a “good” lawyer — one vide the young lawyer with a currency to far beyond a simple bargain for financial who has a command of the legal frame- offer in exchange for secure employment, compensation in exchange for billable work that governs a particular set of facts, financial compensation, advancement and hours or other objective requirements. the vision to achieve client objectives, and opportunity. Young lawyers and their mentor-supervi- the grit and skillset to see it through. There This shared interest of developing sors each expect and demand something is no substitute for proficient skills-based young lawyers into “good” lawyers is more in terms of subjective value, which lawyering; mentors expect it, clients de- foundational to the symbiotic relationship gives rise to an unspoken modus operandi serve it, and the profession demands it. between boomer mentors and their mil- between generations. For instance, a mil- For young lawyers, being a good lennial mentees. It’s a win-win for each lennial young lawyer may value autonomy lawyer provides secure employment, de- party (and a win-win for clients and our and work-hour flexibility, and may secure mands financial compensation, opens profession more broadly). The message it in exchange for something a boomer su- doors for long-term advancement and op- for experienced lawyers: your support pervisor values — effective communica- portunity, and creates flexibility to pursue and guidance is appreciated and is an ir- tion, attentiveness and hard work. (In a re- a career that aligns with one’s passion or replaceable component of young lawyers’ cent study by the National Association for individual calling. These are the underly- professional success (and can also serve to Law Placement, only 29% of Gen Xers ing interests that motivate young lawyers. benefit your own practice, clients and the and 33% of Boomers agreed the younger But becoming a good lawyer is not easy. profession). The message for young law- generation of lawyers was working as There is a steep learning curve. And it’s yers: seek and embrace supporting pro- hard as they did when they were associ- exponentially more difficult to become a fessional relationships, and recompense ates.) Or the young lawyer may be more good lawyer without support, guidance that guidance by striving for professional motivated to produce consistent quality and projects to cut your professional teeth excellence.

Louisiana Bar Journal August / September 2021 180 Vol. 69, No. 2 www.lsba.org Opportunities for Mentorship

► Mentor-Supervisors. Some law firms have structured mentoring- pro grams. Other mentor relationships develop naturally. Young lawyers who feel that they do not have a go-to mentor may view their supervisor as a de facto mentor. For mentors, formal or de facto, young lawyers will often share the profound impact of periodic conversations about the young lawyer’s progress. “Checking in” and honest dialogue are important — even if that means simply creating an environment in which the young lawyer feels it the wisdom, character and experience of Development Seminar (January, Baton is appropriate to initiate those conversa- older lawyers to younger lawyers, but also Rouge). The YLD also has a number tions. Young lawyers often look toward to foster friendships and collegiality. of committees, including Barristers for someone with whom they can have this ► “Spot” Mentoring. The LSBA also Boards (training and connecting young dialogue as a mentor. has a “spot” mentoring program, which is lawyers with board openings for nonprofit ► Mentoring Programs. Structured a supplement to the TIP program that al- and community organizations); High mentoring programs allow young lawyers lows eligible attorneys to connect with a School Mock Trial (working with attor- to find mentors outside of one’s current volunteer mentor on various issues that neys, judges and courthouses to imple- employment setting. The Louisiana State young lawyers encounter. ment the region and statewide high school Bar Association (LSBA) for years has ► Networking through Bar mock trial competitions); Will for Heroes administered a “Transition into Practice” Involvement. CLEs, programming and (organizing events to provide free wills (TIP) Mentor Program for new lawyers, substantive law committees provide an and estate planning documents for first re- which was established by the Louisiana opportunity to connect with members sponders), among others. Supreme Court. The program matches a of the Bar in various fields of practice. It would be my pleasure to personally mentor with a mentee, allowing more ex- The Young Lawyers Division (YLD) assist any lawyer who may be interested in perienced attorneys to share their knowl- hosts a number of CLE and networking finding a mentor or serving as one. Please edge with those who are just starting their events throughout the year, including the do not hesitate to reach out: gryan@ careers. One of the main goals of the Louisiana Young Lawyer Conference joneswalker.com or (504)582-7370. mentoring program is not only to impart (spring, New Orleans) and the Professional

YOUNG LAWYERS SPOTLIGHT Allison P. Nowlin & Owens, handling leadership capacities within these orga- Alexandria estate planning nizations. She is also heavily involved and successions. in the Alexandria Bar Association and The Louisiana State Bar Association’s In May 2016, she Crossroads American Inn of Court- Young Lawyers Division Council is returned to the 9th Alexandria/Pineville Chapter. Within spotlighting Alexandria attorney Allison Judicial District the Alexandria Bar, she has served as (Allie) Paige Nowlin. Court. She current- secretary, vice chair and chair of its Nowlin, born and raised in ly serves as the se- Young Lawyers’ Section and currently Alexandria, graduated from Bolton nior law clerk and serves as the secretary of the Alexandria criminal staff attor- Bar Association. Within the Inn, she has High School in 2005, Louisiana State Allison P. Nowlin University-Baton Rouge in 2009 and ney for the court. served as secretary, vice-president and Southern University Law Center in After seven president. She also volunteers regularly 2012. From August 2012 to December years in Baton Rouge, Nowlin returned with the Central Louisiana Pro Bono 2014, she served as the law clerk to home and became involved in both law Project’s Self Help Desk. Chief Judge Harry F. Randow at the 9th and community service organizations. She and her husband, Matt, also an Judicial District Court. From January She is actively involved in the Bolton attorney, live in Alexandria with their 2015 to April 2016, she practiced as an High School Alumni Association and the son and 13-year-old beagle, Lucy. associate with the law firm of Crowell Kent House Board, serving in various

Louisiana Bar Journal August / September 2021 180 Vol. 69, No. 2 www.lsba.org Louisiana Bar Journal August / September 2021 181 Vol. 69, No. 2 www.lsba.org Louisiana Center for

LouisianaCENTER FOR LCLCE LAW & CIVIC Education LAW & CIVIC EDUCATION JUDGES IN THE CLASSROOM

LCLCE Joins Forces with Louisiana Supreme Court’s Judges in the Classroom Program

hortly after John L. Weimer students and the impact of that engagement on students. Judges and became the 26th Louisiana The more time judges Supreme Court Chief Justice, attorneys also received training he announced the formation spend in classrooms on Louisiana Supreme Court Sof the “Judges Imparting Knowledge, Associate Justice Scott J. instructing young Education and Skills Task Force.” The Crichton’s dynamic “Crime, “ Consequences and the Power Task Force is composed of, among oth- people about the of Choice” program which ers, members of the Louisiana Board consequences of of Elementary & Secondary Education, offers Power Point slides with the Louisiana Center for Law and Civic inappropriate video clips that are available for use by members of the ju- Education (LCLCE), the Louisiana behavior, the District Judges Association (LDJA) diciary in their classroom or and members of the judiciary. importance school assembly presentations. Judges often schedule stu- The Task Force is focusing on the of personal “Judges in the Classroom/Students in dent visits to their courtroom for the Courtroom” program in a campaign responsibility, the Constitution Day (September 17) and Law Day (May 1). Chief Justice Weimer to reach thousands of youth with in-per- value of education, and son visits this year. is encouraging judges to further engage On May 21, Chief Justice Weimer how all are equal in a in their local school systems. He is building on the initial program by ask- addressed the Louisiana Commission court of justice, the less on Civic Education, chaired by ing judges to not only invite students to District Judge Wendell Manning, on time young people may their courtrooms once or twice a year, but also to visit schools in their districts the Task Force’s strategy to encourage spend before the court, “ Louisiana’s judges to visit elementary, and invite students to state courthouses middle and high schools to present which is beneficial to the year-round. The role of the LCLCE in this ini- civic instruction. During his presenta- communities judges serve. tion, he mentioned retired 4th Judicial tiative is to coordinate the in-class District Judge Benjamin Jones, who, presentations between the legal vol- while he was the 2001 president of the – Chief Justice unteers and the classroom. Attorneys LDJA, developed a Louisiana “Judges John L. Weimer and judges are encouraged to complete in the Classroom” program. Judge Jones and submit a volunteer form (see page currently serves on the 2021 Task Force. 153 of this issue of the Louisiana Bar As a former teacher of law and eth- Journal). Volunteers will be contacted ics at Nicholls State University, Chief when a classroom presentation request Justice Weimer spoke about how inter- “Judges in the Classroom” initiative was for an in-person visit has been received actions in his community had made a included in a recent judicial education for their area. The LCLCE will assist difference in his life and he encouraged training seminar. An informative with everything from what topic to pres- others to go out into their communities video was filmed for use at ent to where to park! For more informa- to engage with current students. judicial trainings. Footage tion, email [email protected] Programming about the Task Force’s includes Louisiana judges instructing or call (504)566-1600, ext. 134.

Louisiana Bar Journal August / September 2021 182 Vol. 69, No. 2 www.lsba.org Louisiana’s most popular CLE event The last week of 2021 ... CLE LAST à la Carte CHANCE December 29-30, 2021 CLE Conference December 9-10, 2021

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Louisiana Bar Journal August / September 2021 182 Vol. 69, No. 2 www.lsba.org Louisiana442 Europe Bar Journal Street August• Baton / SeptemberRouge, Louisiana 2021 70802-6406183 • Vol.225-383-5554 69, No. 2 www.lsba.org • www.lafj.org • [email protected]

2021_DecemberCLEs.indd 1 6/23/2021 2:18:01 PM JUDICIALNotes By Trina S. Vincent, Louisiana Supreme Court NEW JUDGES

New Judges Louisiana Workforce Centers, Inc. from Roger P. 2001-03 and worked as a Louisiana Hamilton, Jr. was Donald E. State Senate law clerk in 2004. From elected 16th Hathaway, Jr. was 2005-06, she was a teaching assistant Judicial District elected 1st Judicial for Southern University Law Center Court (Division District Court Academic Support Programs. In 2006, H) judge, effective (Division A) judge, she served as a Louisiana State Senate Jan. 1. He earned effective Jan. 1. He legislative aide and as a judicial law his bachelor’s de- earned his bache- clerk at the 1st Judicial District Court. gree in 1998 from lor’s degree in 1988 In 2007, she worked as a staff attorney Nicholls State Roger P. from Louisiana for Legal Services of North Louisiana, University and his Hamilton, Jr. State University Inc. and as a contract attorney for the JD degree in 2001 Donald E. 6th Judicial District Public Defender’s from Louisiana State University Paul M. and his JD degree Hathaway, Jr. in 1991 from LSU Office from 2008-19. She was in private Hebert Law Center. He was a law clerk Paul M. Hebert Law Center. He worked practice from 2008 until her election to for the Louisiana Legislative Bureau in as a law clerk at the 2nd Circuit Court the bench. She was appointed as a court 2001 and a judicial law clerk for the 16th of Appeal from 1991-92 and served as magistrate for the Municipal Court, JDC from 2001-02. From 2002-07, he a Caddo Parish assistant district attor- Town of Lake Providence, from 2015- served as an assistant district attorney ney from 1992-98. From 1998-2006, he 20. She worked as a staff attorney for for the 16th Judicial District Attorney’s worked as an assistant attorney for the the Family Justice Center from 2018- Office. From 2007 until his election to U.S. District Court, Western District of 20. She worked as an interim district de- the bench, he worked as an assistant dis- Louisiana. In 2006, he joined the firm of fender at the 6th Judicial District Public trict attorney; track 2 leader, attorney to Fischer & Associates. In 2017, he joined Defender’s Office in 2019 and as district the Lafayette Parish School Board; and the firm of Sockrider, Bolin, Anglin, defender from 2019-20. Judge Claxton as an adjunct criminal justice professor Batte & Hathaway. Judge Hathaway is is the mother of one daughter. at Nicholls State University and South married to Camille Hathaway and they Valerie Gotch Louisiana Community College. He was are the parents of two children. Garrett was elect- a city attorney, City of Jeanerette, from Angela L. ed 15th Judicial 2016 until his election to the bench. Claxton was elect- District Court Judge Hamilton is the father of one child. ed 6th Judicial (Division B) judge, Anthony J. District Court effective Jan. 1. She Saleme, Jr. was (Division A) judge, earned her bache- elected 16th effective Jan. 1. lor’s degree in 1989 Judicial District She earned her from the University Court (Division of Southwestern F) judge, effective bachelor’s de- Valerie Gotch gree in 1995 from Louisiana (current- Garrett Jan. 1. He earned ly the University of his bachelor’s de- Louisiana Tech Angela L. Claxton University and Louisiana at Lafayette) and her JD degree in 1991 from her JD degree in gree in 1992 from Southern University the University Anthony J. 2006 from Southern University Law Law Center. She was in private practice of Southwestern Saleme, Jr. Center. She worked as a deputy clerk from 1993-2002. From 2002-11, she Louisiana (cur- of court in the Madison Parish Clerk worked as a partner at the law firm of rently the University of Louisiana at of Court’s Office from 1995-96. From Amos & Garrett, APLC. She returned to Lafayette) and his JD degree in 1994 1996-2001, she was a social services working in private practice from 2011 from Loyola University College of Law. case manager for the Office of Family until her election to the bench. Judge He worked as a law clerk from 1994- Support, State of Louisiana. She was Garrett is the mother of five children. 95 at the 16th JDC. From 1995-97, he a career coordinator for Northeast

Louisiana Bar Journal August / September 2021 184 Vol. 69, No. 2 www.lsba.org was an associate attorney for Nicholas as a staff attorney from 2008-09 and as JD degree in 2009 from Georgetown F. Larocca, Jr., Ltd. He worked at the a conflict panel attorney from 2009-20. University. From 2009-13, she worked 16th Judicial District Attorney’s Office, She was in private practice from 2009- as a public defender in Orleans and St. Martin Parish, as a felony prosecu- 20. From 2011-14, she was of counsel Calcasieu parishes. She worked as a tor from 1997-2004 and as a felony/ at Jason Rogers Williams & Associates staff attorney with the ACLU’s Capital misdemeanor prosecutor from 2004-20; and worked as a Tulane Law School as- Punishment Project from 2014-15. he was a chief prosecutor from 2013- sociate professor in trial advocacy from She served as assistant counsel at the 20. Judge Saleme is married to Mary 2012-17. From 2015-20, she worked for NAACP Legal Defense Fund from Bourgeois Saleme and they are the par- the U.S. District Court, Eastern District 2015-19. In 2020, she co-founded the ents of four children. of Louisiana, as a conflict panel attorney. Black Women Lawyers Collective, a Rhonda J. She has worked at Loyola University platform that provides continuing legal Goode-Douglas College of Law as an adjunct professor- education courses, taught by judges, was elected Orleans Criminal Law Seminar from 2017 to the with a framework to advocate for wom- Parish Criminal present. en, children and communities of color. District Court Marcus O. Jennifer M. (Division E) judge, DeLarge was elect- Medley was elect- effective Jan. 1. She ed Orleans Parish ed Orleans Parish earned her bach- Criminal District Civil District elor’s degree in Court (Division Court (Division 1992 from Tulane K) judge, effective F) judge, effective Rhonda J. University and her Goode-Douglas Jan. 1. He earned Jan. 1. She earned JD degree in 1995 his bachelor’s de- her bachelor’s de- from Tulane Law School. She was an gree in 2006 from gree in 1993 from assistant state’s attorney at the Cook Xavier University Xavier University Marcus O. DeLarge Jennifer M. Medley County State’s Attorney’s Office from of Louisiana and of Louisiana and 1995-2001. She was employed as a law his JD degree in 2011 from Southern her JD degree from clerk at the Louisiana Supreme Court University Law Center. He was an intern Loyola University College of Law. She from 2002-03 and as an assistant district at Sheurmann & Jones Law Firm from began her private law practice in 2002. attorney for the Orleans Parish District 2002-04 and an educator/coach at St. She served as an assistant attorney gen- Attorney’s Office from 2003-15. From Augustine High School from 2006-08. eral for the State of Louisiana from 2015-17, she was an assistant district In 2009 and 2010, he worked as a sum- 2004-09. She was appointed to serve attorney at the Jefferson Parish District mer associate at Porteous, Hainkel & as an assistant bar examiner for Code I Attorney’s Office. From 2017-18, she Johnson, LLP. In 2012, he worked as an of the Louisiana Bar Examination from was of counsel at Blue Williams, LLP. assistant district attorney for the Orleans 2010-19. From 2014-19, she served as She was staff counsel at the Law Offices Parish District Attorney’s Office. From an ad hoc judge on the Orleans Parish of Carl R. Danna from 2018-19. From 2013-16, he was employed by St. Juvenile Court. From 2017-20, she 2019-20, she worked as assistant chief Augustine High School as a director of worked as general counsel for DePaul counsel at the Department of Homeland athletics and activities. He was manag- Community Health Centers. Judge Security. Judge Goode-Douglas is mar- ing partner at DeLarge & Associates, Medley is the mother of one daughter. ried to Terry Douglas and they are the LLC, from 2012 until his election to the Lori W. Jupiter parents of one child. bench. He worked as a trial attorney at was elected Orleans Nandi F. John T. Fuller & Associates, LLC, from Parish Civil District Campbell was 2017-21. Judge DeLarge is married to Court (Division elected Orleans Angele DeLarge and they are the par- I) judge, effective Parish Criminal ents of two children. Jan. 1. She earned District Court Angel S. her bachelor’s de- (Division G) judge, Harris was elect- gree in 1993 from effective Jan. 1. ed Orleans Parish Xavier University of She earned her Criminal District Louisiana and her JD Lori W. Jupiter bachelor’s degree Court (Division degree in 1999 from in 2004 from the Nandi F. Campbell L) judge, effective Loyola University City University of Jan. 1. She earned College of Law. She began the practice New York and her her bachelor’s of law at Southeast Louisiana Legal JD degree in 2008 from the University degree in 2006 Services from 1999-01. From 2001-18, of Georgia School of Law. She served from Hampton Angel S. Harris she worked at the 4th Circuit Court of at the Orleans Public Defenders Office University and her Appeal as a research attorney for Chief

Louisiana Bar Journal August / September 2021 184 Vol. 69, No. 2 www.lsba.org Louisiana Bar Journal August / September 2021 185 Vol. 69, No. 2 www.lsba.org Judge Charles R. Jones and Judges Center. He served as a law clerk at the from 1996-97. He was in private practice Dennis R. Bagneris, Sr., Madeleine M. 26th Judicial District Court from 2006- from 1997 to his election to the bench. Landrieu and Terrel J. Broussard, pro 07. He worked at the District Attorney’s Stuart W. tempore. She worked in the Clerk of Office of the 26th Judicial District as an McMahen was Court’s Office, 4th Circuit Court of assistant public defender from 2009- elected Springhill Appeal, from 2012-14 and as a cen- 11 and as an assistant district attorney City Court judge, tral staff attorney from 2014-18. From from 2011-20. He has worked in private effective Jan. 2018-20, she worked as a research attor- practice from 2007 to the present. Judge 1. He earned his ney for Louisiana Supreme Court Chief Parks is married to Julianna Parks and bachelor’s de- Justice Bernette Joshua Johnson. Judge they are the parents of two children. gree in 2004 from Jupiter is married to Jerome Jupiter and Ronald C. Centenary College they are the parents of five children. Richard was of Louisiana and Stuart W. McMahen Santi A. elected Lake his JD degree in Parks was elect- Charles City 2008 from Vanderbilt University Law ed judge of City Court (Division School. He has worked in private prac- Court of Bossier B) judge, effective tice at Bell, Boyd and McMahen, PLLC, City, effec- Jan. 1. He earned from 2013 to the present. From 2014- tive Jan. 1. He his bachelor’s de- 20, he was a city attorney for the City earned his bach- gree in 1993 from of Springhill and an assistant district elor’s degree the University of attorney at the 26th Judicial District Ronald C. Richard in 2003 from Houston and his Attorney’s Office. He serves as a direc- Louisiana Tech JD degree in 1996 tor of compliance at Springhill Medical Santi A. Parks University and from Louisiana State University Paul M. Center, a position he has held since his JD degree in 2006 from Louisiana Hebert Law Center. He worked as a law 2015. Judge McMahen is married to Dr. State University Paul M. Hebert Law clerk at the 14th Judicial District Court Nancy Carey McMahen.

Virtual St. Thomas More Broadcast Catholic Lawyers will be Association available Invites All Members of the Bench and Bar Of All Faiths to Attend The Red Mass Monday, October 4, 2021 St. Louis Cathedral Guest Homilist Bishop Robert Barron, Auxiliary Bishop of the Archdiocese of Los Angeles Assembly 9:00 a.m. Procession 9:15 a.m. Mass 9:30 a.m. Followed by a Reception at Bourbon Orleans Hotel For those unable to attend, the Red Mass will be broadcast live on WLAE-TV Channel 32 and will be simulcast on TheDailyMass.com

Louisiana Bar Journal August / September 2021 186 Vol. 69, No. 2 www.lsba.org PEOPLE LAWYERS ON THE MOVE . . . NEWSMAKERS

Chaffe McCall, LLP, announces that Gordon Arata Montgomery Barnett LAWYERS ON David A. Pote has joined the firm’s New McCollam Duplantis & Eagan, LLC, THE MOVE Orleans office as an associate. announces that Marianna S. Knister has joined the New Orleans office as an as- Adams and Reese, LLP, announces that Couhig Partners, LLC, announces that sociate. Herschel T. Vinyard, Jr. has joined the Blair C. Constant has joined the firm’s firm’s Jacksonville, Fla., office as special New Orleans office as of counsel. Galen M. Hair and Alexander Shunnarah counsel. have partnered to open Hair Shunnarah The Derbes Law Firm, LLC, in Metairie Trial Attorneys located at Ste. 300, 3540 Baker, Donelson, Bearman, Caldwell & announces that Mark S. Goldstein has S. I-10 Service Road West, Metairie, Berkowitz, PC, announces that Elizabeth joined the firm as a partner. LA 70001. Also joining the firm are at- A. Liner and Amanda Spain Wells have torneys Lauren E. Checki, Meghann been elected shareholders in the firm’s Foley & Mansfield announces that Kenan Chonowski, Stephen Collins, Samuel Baton Rouge office. S. Rand, Jr. has joined the firm as a part- J. Ford, Sophia J. Johnson, Kristin M. ner in the New Orleans office. Lausten, Trent J. Moss, Ivy E. Perkins, Baldwin Haspel Burke & Mayer, LLC, Madison C. Pitre, David C. Spinner, announces that Alexandra Lamothe has Garvey, Smith & Nehrbass, Patent Mary K. Taliancich, Kyle C. Usner and joined the firm as a litigation attorney in Attorneys, LLC, announces it has re- Shane Welch. the New Orleans office. located its main office to the Hancock Whitney Center, Ste. 4310, 701 Poydras Lobman Carnahan announces that Erik Carver, Darden, Koretzky, Tessier, Finn, St., New Orleans, LA 70130; (504)835- L. Vollenweider has been named part- Blossman & Areaux, LLC, announces 2000; fax (504)835-2070; www.newor- ner in the New Orleans office. that Jami M. Becnel has joined the firm’s leanspatents.com. The firm also has an Belle Chasse office as an associate. office at 832 E. Boston St., Covington, LA 70433; (985)635-6892.

Richard J. Arsenault Jami M. Becnel Alan G. Brackett J. Patten Brown III W. Scott Brown Erika M. Cunningham

Trevor M. Cutaiar Blake R. David John Christopher Thomas M. Flanagan Mark S. Goldstein R. Marshall Dippel, Jr. Grodner

Louisiana Bar Journal August / September 2021 186 Vol. 69, No. 2 www.lsba.org Louisiana Bar Journal August / September 2021 187 Vol. 69, No. 2 www.lsba.org McGlinchey Stafford, PLLC, announces Christopher B. Prudhomme, associ- cookbook (available online from Barnes that Christine S. Tenley has joined the ates in Mouledoux, Bland, Legrand & and Noble, Amazon and Friesen Press firm’s New Orleans office as amem- Brackett, LLC, in New Orleans, were Bookstore). ber (partner). She is also licensed in accepted to the Leadership Council on Alabama and Georgia. Legal Diversity Pathfinder Program. George F. Indest III, president and managing partner of The Health Law Firm in Perrier & Lacoste, LLC, announces that J. Patten Brown III, managing part- Altamonte Springs, FL, was recognized W. Scott Brown has joined the firm as ner in the Law Offices of Pat Brown in as a nominee for the 2020 and 2021 of counsel and Erika M. Cunningham Avon, CT, was elected to the board of Florida Bar Award for Excellence in the has joined the firm as an associate, both the Louisiana Criminal Defense Lawyers Promotion of Board Certification. in the New Orleans office. Association. He also was recognized in the 2021 Connecticut Super Lawyers. Caroline D. Lafourcade, a member Schutte, Terhoeve, Richardson, in the New Orleans office of Gordon Eversberg, Cronin, Judice & Boudreaux, Blake R. David, senior partner at Arata Montgomery Barnett McCollam LLP, in Baton Rouge announces that Broussard & David in Lafayette, was Duplantis & Eagan, LLC, was appoint- John Christopher Dippel, Jr. has appointed as treasurer of the Louisiana ed to the 2021-22 Louisiana Board of joined the firm as a non-equity partner. Chapter of the American Board of Trial Legal Specialization Tax Law Advisory Advocates. Commission. NEWSMAKERSNEWSMAKERS Thomas M. Flanagan, partner in Louisiana State University Paul M. Richard J. Arsenault, a partner in the Flanagan Partners, LLP, in New Orleans, Hebert Law Center in Baton Rouge has Alexandria firm of Neblett, Beard & was selected as president-elect of the Bar granted the Professor Emeritus title to Arsenault, was awarded the Top Rating by Association of the Fifth Federal Circuit. three longtime and recently retired LSU Avvo.com for 2021. He also chaired the Law Center professors in honor of their Insurance, Tort, Workers’ Compensation Forman Watkins & Krutz, LLP, announc- distinguished careers and service to the and Admiralty Law Section CLE at the es that attorneys Erin W. Latuso, McCann Law Center: William E. (Bill) Crawford Louisiana State Bar Association Annual E. LeFeve, Margaret W. McLaughlin and (posthumously), Paul R. Baier and Meeting. Jordan B. Nixon in its New Orleans of- Wendell Holmes. fice have received its inaugural Pro Bono Alan G. Brackett, a member of Star Award, awarded to those who com- Claris E. Smith, an associate at Cooper Mouledoux, Bland, Legrand & Brackett, plete 25+ annual pro bono hours. Law Firm, LLC, in New Orleans, was LLC, in New Orleans, received the appointed to chair Diversity, Equity and Louisiana Bar Foundation’s President’s R. Marshall Grodner, a member in Inclusion at the Dartmouth Club of the Award and was accepted for member- the Baton Rouge office of McGlinchey Gulf Coast. ship in the Leadership Council on Legal Stafford, PLLC, was elected president Diversity. of the American College of Commercial Christine M. White, a shareholder in the Finance Lawyers. New Orleans office of Baker, Donelson, Trevor M. Cutaiar, a member of Bearman, Caldwell & Berkowitz, PC, Mouledoux, Bland, Legrand & Brackett, New Orleans attorney Anne D. Guste has earned certification as a civil- me LLC, in New Orleans, was accepted has published her book, Stories of My diator pursuant to La. R.S. 9:4106 of the for the Leadership Council on Legal Mother and the General’s Cookbook, Louisiana Mediation Act. Diversity Fellows Program. stories from the life of former Louisiana Attorney General and Mrs. William J. J. Edward McAuliffe III and Guste, Jr. and family and the General’s Continued next page

Caroline D. Alexandra Lamothe J. Edward David A. Pote Christopher B. Erik L. Vollenweider Lafourcade McAuliffe III Prudhomme

Louisiana Bar Journal August / September 2021 188 Vol. 69, No. 2 www.lsba.org Lugenbuhl, Wheaton, Peck, Rankin E.A. Slaton, Susan G. Talley, Scott T. PUBLICATIONSPUBLICATIONS & Hubbard (New Orleans): Alicia M. Whittaker, Rachel W. Wisdom, Phillip A. Bendana, Delos E. Flint, Jr., Benjamin Wittmann and Paul L. Zimmering. Chambers USA 2021 W. Kadden, Rose McCabe LeBreton and Breazeale, Sachse & Wilson, LLP (Baton Rouge, New Orleans): Thomas Stewart F. Peck. Acadiana Profile 2021 M. Benjamin, David R. Cassidy, Clay McGlinchey Stafford, PLLC (Baton Kean Miller, LLP (Lafayette): J. Countryman, Murphy J. Foster III, Rouge, New Orleans, Cleveland, OH): Robert M. Kallam, 2021 Top Lawyer in Gregory D. Frost, Emily Black Grey, Ricardo A. (Richard) Aguilar, Rodolfo Acadiana. David R. Kelly, John B. King, Steven B. J. (Rudy) Aguilar, Jr., Samuel A. Bacot, Loeb, Eve B. Masinter, Van R. Mayhall, J. Patrick Beauchamp, Stephen P. Beiser, Jr., Catherine B. Moore, E. Fredrick Magdalen Blessey Bickford, Rudy J. People Preis, Jr. and Claude F. Reynaud, Jr. Cerone, Katherine Conklin, Christine Lipsey, Jean-Paul Perrault, Michael H. Butler Snow, LLP (Baton Rouge, Ridgeland, MS): John A. Brunini, Lee C. Rubin, Robert W. Savoie and S. Jess Deadlines Kantrow and David S. Rubin. Sperry. (Baton Rouge, Carver, Darden, Koretzky, Tessier, Phelps Dunbar, LLP New Orleans, Houston, TX): M. Nan & Notes Finn, Blossman & Areaux, LLC (New Orleans): Raymond G. Areaux, M. Alessandra, Lee R. Adler, Jane E. Deadlines for submitting People Taylor Darden, William T. Finn, Frank Armstrong, Jeffrey M. Barbin, William announcements (and photos): A. Tessier, Robert P. Thibeaux and David R. Bishop, S. Dennis Blunt, Kim M. F. Waguespack. Boyle, Lindsay J. Calhoun, Philip deV. Claverie, Sr., Philip deV. Claverie, Jr., Publication Deadline Coats Rose, PC (New Orleans): Megan C. Riess and F. Christopher Mark A. Fullmer, Kelsey K. Funes, Dec. 2021/Jan. 2022 Oct. 4, 2021 Wootten. Susan W. Furr, Cecile L. Gordon, J. Alan Feb. / March 2022 Dec. 4, 2021 Harrell, David D. (Beau) Haynes, Gary Flanagan Partners, LLP (New April / May 2022 Feb. 4, 2022 A. Hemphill, Michael D. Hunt, Nathan Orleans): Thomas M. Flanagan. G. Huntwork, Thomas H. Kiggans, Errol June / July 2022 April 4, 2022 Gordon, Arata, Montgomery, J. King, Jr., David M. Korn, Kevin J. Barnett, McCollam, Duplantis & Announcements are published free of LaVie, Steven J. Levine, Daniel Lund III, Eagan, LLC (Lafayette, New Orleans): charge for members of the Louisiana Amanda W. Messa, Daniel T. Pancamo, Michael E. Botnick, Bobbie J. Duplantis, State Bar Association. Members David L. Patron, Christopher K. Ralston, Ewell E. (Tim) Eagan, Jr., C. Peck may publish photos with their Hayne, Jr., Cynthia A. Nicholson, Scott P. Ragan Richard, Ivan M. Rodriguez, Harry Rosenberg, Mary Ellen Roy, announcements at a cost of $50 per A. O’Connor, Howard E. Sinor, Jr. and photo. Send announcements, photos Marion Welborn Weinstock. Randy P. Roussel, John O. Shirley, James A. Stuckey and Alan C. Wolf. and photo payments (checks payable Kean Miller, LLP (Baton Rouge, to Louisiana State Bar Association) to: New Orleans): Isaac McPherson (Mack) Stone Pigman, Walther Wittmann, Gregorie, Jr., Maureen N. Harbourt, LLC (Baton Rouge, New Orleans): Publications Coordinator Darlene A. Edward Hardin, Jr., Erin L. Kilgore, Joseph L. Caverly, Noel J. Darce, Daria M. LaBranche, Louisiana Bar Leonard L. Kilgore III, Katherine W. B. Diaz, Michael R. Fontham, Wayne Journal, 601 St. Charles Ave., New King, Pamela R. Mascari, Russel O. J. Lee, Paul J. Masinter, C. Lawrence Orleans, LA 70130-3404 or email Primeaux, Carrie R. Tournillon and J. Orlansky, David C. Rieveschl, Michael [email protected]. Randy Young. R. Schneider, Dana M. Shelton, James

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Louisiana Bar Journal August / September 2021 188 Vol. 69, No. 2 www.lsba.org Louisiana Bar Journal August / September 2021 189 Vol. 69, No. 2 www.lsba.org NEWS NEW CLERK... LOCAL BARS... LBF

UPDATE We are a leading, independent, Louisiana Supreme Court Appoints First Female fiduciarywealth management firm. Clerk of Court in Court’s 208-Year History The Louisiana Supreme Court made Odinet Koclanes President for the Louisiana Legislature. history on May 27 when it appointed served as a law She earned her bachelor’s degree in attorney Veronica Odinet Koclanes as clerk/research at- 1985 from Louisiana State University its clerk of court. She becomes the first torney for five and her JD degree in 1991 from LSU female clerk of court in the Court’s 208- Louisiana Supreme Paul M. Hebert Law Center, where she year history. She will succeed current Court justices as was a member of the Moot Court and Clerk John Tarlton Olivier upon his re- well as a research Student Government secretary. She tirement at the end of this year. attorney for the joined the law firm of Milling, Benson, “Veronica is a well-respected attorney Civil Staff division Woodward & Hillyer and worked as an who has spent the past 23 years on staff of the Supreme Veronica Odinet associate attorney from 1992-95. She at the Supreme Court,” said Chief Justice Court. Additionally, Koclanes is admitted to the Louisiana Bar and John L. Weimer. “Her experience and she served as a law to practice in the U.S. District Court, knowledge of the Court and its processes clerk for three judges on the Louisiana Eastern District of Louisiana. will serve her well as she takes on the re- 4th Circuit Court of Appeal and a leg- sponsibilities of clerk of court.” islative clerk in the Office of Senate Gary Moore David Thibodeaux Jim Christman MARKET PRESIDENT - LOUISIANA VP & TRUST OFFICER - BATON ROUGE VP & TRUST OFFICER - LAKE CHARLES Law Library, Historical Society Co-Sponsor Civil Code CLE The Law Library of Louisiana and is a complex endeavor calling for expertise the Louisiana Supreme Court Historical in both the law and legal translation, thus Society recently co- sponsored a free a “jurilinguistic” exercise. The Louisiana CLE webinar, “Translating the Louisiana Civil Code, a unique piece of legislation Civil Code into Spanish: A Jurilinguistic that sets Louisiana apart, requires an ap- Exercise.” The webinar was attended by proach combining legal translation, com- 284 people, including 42 people from oth- parative law and legal history. Participants er countries. This is the latest translation in the CLE learned about the project’s his- project undertaken by the Louisiana State tory and the intricacies of the translation a free online University Paul M. Hebert Law School’s process. With a Spanish translation, CCLS Center of Civil Law Studies (CCLS). at LSU plans to make Louisiana’s flag- forum for Previous projects include translating the ship legal instrument available to the le- Jill Knight Nalty Ann Marie Mills Timothy D. Quinn Louisiana Civil Code into French and a gal Spanish-speaking community at large, BUSINESS DEV. OFFICER - NEW ORLEANS SENIOR VICE PRESIDENT - RUSTON SENIOR VICE PRESIDENT - SHREVEPORT new translation of the English version of while also paying homage to the years civil legal Louisiana’s 1825 Civil Code. in which the territory was part of Spain. For over 30 years, Argent has provided individuals and families with a broad range of The CLE was presented by Mariano Civil Code Books I and IV in Spanish questions (800) 269-0076 Vitetta, research associate at CCLS, where are now available on the Louisiana Civil wealth management services, including trust administration, estate planning, investment he is responsible for the translation of the Code Online trilingual database alongside management and oil and gas (mineral) management, as well as a variety of services for ArgentTrust.com Louisiana Civil Code from English into the English and the French translation, ac- businesses and institutions. Today, Argent is responsible for more than $30 billion of our Spanish under the leadership of Professor cessed at: www.law.lsu.edu/clo/louisiana- QEDC clients’ assets. Olivier Moréteau. Translating a civil code civil-code-online/.

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Gary Moore David Thibodeaux Jim Christman MARKET PRESIDENT - LOUISIANA VP & TRUST OFFICER - BATON ROUGE VP & TRUST OFFICER - LAKE CHARLES

Jill Knight Nalty Ann Marie Mills Timothy D. Quinn BUSINESS DEV. OFFICER - NEW ORLEANS SENIOR VICE PRESIDENT - RUSTON SENIOR VICE PRESIDENT - SHREVEPORT

For over 30 years, Argent has provided individuals and families with a broad range of wealth management services, including trust administration, estate planning, investment (800) 269-0076 management and oil and gas (mineral) management, as well as a variety of services for ArgentTrust.com businesses and institutions. Today, Argent is responsible for more than $30 billion of our QEDC clients’ assets.

Louisiana Bar Journal August / September 2021 190 Vol. 69, No. 2 www.lsba.org ALABAMA | ARKANSASLouisiana | FLORIDABar Journal | GEORGIA August | KENTUCKY / September | LOUISIANA 2021 | MISSISSIPPI191 | NORTHVol. CAROLINA 69, No. |2 OKLAHOMA www.lsba.org | SOUTH CAROLINA | TENNESSEE | TEXAS LASC Announces Amendments to Lawyer Advertising Rules The Louisiana Supreme Court an- and unsolicited written communications “This newly implemented searchable nounced the adoption of amendments to that have been filed with the LSBA shall public database, along with the addi- the Rules of Professional Conduct per- be made readily available to and search- tionally enacted rule changes, will offer taining to lawyer advertising, said Chief able by the public. the ability to review compliance with Justice John L. Weimer. ► All “non-exempt” advertisements rules governing attorney advertising in The amendments are the result of a and unsolicited written communications Louisiana, and will provide a safeguard study and recommendations to the Court (as defined in the Rules) shall contain a against false or misleading advertis- by the Louisiana State Bar Association’s “filing number” visible on the communi- ing for the public,” said Chief Justice (LSBA) Rules of Professional Conduct cation. The number will be provided by Weimer. Committee in response to Senate the LSBA at the time of the filing required The amendments to the Rules of Concurrent Resolution 57 of the 2020 by Rule of Professional Conduct 7.7. Professional Conduct will become effec- Regular Legislative Session, which re- ► Advertisements and unsolicited writ- tive on Jan. 1, 2022, in order to provide quested the implementation of a lawyer ten communications that contain a reference the LSBA with sufficient time to create advertisement review recognition program. or testimonial to past successes or results the public database and lawyers with Among the significant changes to the obtained must contain a disclaimer such as ample opportunity to evaluate the rule rules are: “Results May Vary” or “Past Results are not changes and review their advertising ► A database of all advertisements a Guarantee of Future Success.” practices.

Shreveport Law Day New Appointments Made to Judiciary Commission of Louisiana

Two new appointments were made to the Judiciary Commission of Louisiana — Orleans Parish Criminal District Court Deputy Chief Judge Robin D. Pittman and citizen Suzanne H. Stinson. Also, Louisiana 5th Circuit Court On behalf of the Shreveport Bar Association, from left, Judge John S. Hodge, U.S. Bankruptcy Court, of Appeal Judge John J. Molaison, Jr. Western District of Louisiana; Brandon Flanagan; Daniel L. Farris, The Law Office of Daniel Farris, was elected Commission chair and 1st LLC; and Luke D. Whetstone, Cook, Yancey, King, Galloway, APLC, presented “Advancing the Rule Judicial District Court Judge Brady D. of Law Now” to the Constitutional Law class at Louisiana State University-Shreveport on April 30. O’Callaghan was elected vice chair. Attorney David Becker was appointed Judiciary Commission counsel. Judge Pittman was appointed as judge-member of the Commission by the Louisiana Supreme Court for a four- year term. Stinson was appointed as a citizen-member of the Commission by the Louisiana District Judges Association for a four-year term. Judge Molaison will serve a one-year term as Commission chair. He is the appellate judge member of the Commission. Judge O’Callaghan will serve a one-year term as vice chair. Becker served as assis- The Shreveport Bar Association on May 7 hosted a mock trial based on the story of “The Three Little tant Commission counsel for six years and Pigs” at J.S. Clark Elementary/Middle School. The mock trial featured speakers, from left, Trinicia S. spent several years practicing appellate Leonard, Caddo Parrish District Attorney’s Office; Daniel L. Farris, The Law Office of Daniel Farris, law at Vinson & Elkins, LLP. LLC; Kendra S. Joseph, 2nd Circuit Court of Appeal; and attorney Audrius M. Reed.

Louisiana Bar Journal August / September 2021 192 Vol. 69, No. 2 www.lsba.org LAW DAY 40th JDC Holds First Virtual Law Day The 40th Judicial District Court in St. our part to uphold it.” consequences associated with these John the Baptist Parish held its first-ever Sgt. Danielle Falgoust, a D.A.R.E. laws. She shared with the students her virtual Law Day over Zoom on May 7. instructor for the St. John the Baptist personal experience of being bullied The program began with an introduction Parish Sheriff’s Office, shared a story of when she was in the seventh grade and of this year’s theme, “How to Deal with an eighth grader who took his own life explained the importance of having Haters, Cyberbullying NO MORE!,” by in 1993 as a result of severe bullying. G.R.A.C.E., which stands for Goals, Chief Judge J. Sterling Snowdy. The at- She explained that bullying has now ex- Respect, Accountability, Choices and tendees for this year’s program included panded to social media and through text Energy. She ended her presentation by seventh and eighth graders from St. messages. She reminded the students of challenging the students to think about John the Baptist Parish schools. the importance of standing up to bully- their future goals and how their virtual Judge Vercell F. Fiffie and Judge ing and to report any incident they see. image may hinder or help those goals. Snowdy both explained that “the law is Judge Nghana Lewis spoke about The 40th JDC hopes to have Law in every part of our life and we must do Louisiana’s anti-bullying laws and the Day in-person next year.

The 40th Judicial District Court judges presented talks to seventh and Judge Nghana Lewis, Chief Judge J. Sterling Snowdy and Judge Vercell F. eighth graders during the court’s first virtual Law Day 2021 event. From Fiffie of the 40th Judicial District Court in St. John the Baptist Parish and left, Chief Judge J. Sterling Snowdy, Division C; Judge Nghana Lewis, other speakers presented the court’s first-ever virtual Law Day on May 7 Division B; and Judge Vercell F. Fiffie, Division A. for seventh and eighth grade students. Shreveport Bar Hosts Law Day Facebook Live Event The Shreveport Bar Association District Attorney’s Office; Lesley Lacy, Farris, The Law Office of Daniel Farris, (SBA) on May 6 hosted a Facebook live Caddo Parish District Attorney’s Office; LLC; and Magistrate Judge Mark L. event titled “Do You Trust in the Rule Captain Darwin Jones, Caddo Parish Hornsby, U.S. District Court, Western of the Law.” The event featured speak- Sheriff’s Department; Antwoine White, District of Louisiana. ers Britney A. Green, Caddo Parish Shreveport Police Department; Daniel L.

Members of the Shreveport Bar Association (SBA) Law Day Committee, from left, Judge John S. Hodge, U.S. Bankruptcy Court, Western District of Louisiana; Cytheria Jernigan; Kendra S. Joseph, 2nd Circuit Court of Appeal; Dana Southern, SBA executive director; Sherron P. Williams, City of Shreveport Department of Human Resources; attorney Shan Jackson; attorney Audrius M. Reed; Donna Y. Frazier, Caddo Parish Government, SBA president 2021-22; Sarah R. Giglio, Gilmer and Giglio, LLC; and Daniel L. Farris, The Law Office of Daniel Farris, LLC.

Louisiana Bar Journal August / September 2021 192 Vol. 69, No. 2 www.lsba.org Louisiana Bar Journal August / September 2021 193 Vol. 69, No. 2 www.lsba.org Shreveport Bar Association Law Day Chair Attending the Shreveport Bar Association (SBA) Law Day Luncheon, from left, Judge Katherine Sherron P. Williams, City of Shreveport Clark Dorroh, 1st Judicial District Court; Sherron P. Williams, City of Shreveport Department of Department of Human Resources. Human Resources, SBA Law Day chair; Alainna R. Mire, 2020-21 Louisiana State Bar Association president; Judge Karelia R. Stewart, 1st Judicial District Court; and Donna Y. Frazier, Caddo Parish Government, 2021-22 SBA president. Shreveport Bar Association Hosts Law Day Luncheon The Shreveport Bar Association, President Alainna R. Mire presented Bell Award. The award honors a local in collaboration with the Booth-Politz “Win-Win: How Access to Justice citizen or organization who has demon- American Inn of Court, held its annual Partnerships can Benefit Your Court, strated a commitment to the community Law Day Luncheon on May 5. Firm and Community.” and has advanced the rule of law. During the luncheon, 2020-21 Additionally, Bonnie Moore was rec- Louisiana State Bar Association ognized as the recipient of the Liberty LBF Awards 8 Kids’ Chance Scholarships The Louisiana Bar Foundation (LBF) Awareness Week will be Nov. 9-12. The compensation communities. Since 2004, Kids’ Chance Scholarship program LBF is accepting donations for Kids’ the LBF has awarded 322 scholarships awarded $27,000 in scholarships to eight Chance care packages. Donations of totaling $784,100. students for the 2021-22 academic year. company swag items, as well as dona- For more information about Kids’ Scholarships are awarded to dependent tions for gift cards, will be accepted in Chance or to donate to the scholarship children of Louisiana workers killed or September and October. fund, contact Dee Jones at the LBF permanently and totally disabled in an The LBF Kids’ Chance Program office, (504)561-1046, email dee@ accident compensable under a state or was started in 2004 and is adminis- raisingthebar.org; or go to: https://rais- federal Workers’ Compensation Act or tered by the LBF and governed by a ingthebar.org/programs-and-projects/ law. committee representing a cross sec- kids-chance-scholarship-program. The National Kids’ Chance tion of the state’s legal and workers’ Brackett Receives 2021 LBF President’s Award Alan G. Brackett, managing mem- LBF Fellow since 2001 and has served ber of Mouledoux, Bland, Legrand & for many years on the LBF Greater Brackett in New Orleans, received the Orleans Community Partnership 2021 Louisiana Bar Foundation (LBF) Panel. He has served as a member on President’s Award from 2020-21 LBF the Grants, Development, Gala and President Harry J. (Skip) Philips, Jr. Communications committees. He is a Brackett received the award in rec- current member of the LBF board of di- Alan G. Brackett, left, managing member of ognition of his outstanding support, rectors and was recently sworn in as the Mouledoux, Bland, Legrand & Brackett in dedication and advancement of the 2021-22 vice president. New Orleans, received the 2021 Louisiana Bar LBF’s mission and goals. He has been a Foundation (LBF) President’s Award from 2020- 21 LBF President Harry J. (Skip) Philips, Jr.

Louisiana Bar Journal August / September 2021 194 Vol. 69, No. 2 www.lsba.org Ralston to Lead Louisiana Bar Foundation’s 2021-22 Board

Christopher K. Ralston, a litigation partner and litigation group coordinator in the New Orleans office of Phelps Dunbar LLP, was sworn in as the 2021-22 president of the Louisiana Bar Foundation (LBF) during the LBF’s annual Gala in April. Also sworn in were Vice President Alan G. Brackett, New Orleans; Treasurer Deidre Deculus Robert, Baton Rouge; and Secretary Hon. John C. Davidson, Alexandria. Ralston’s practice is focused on business disputes, including litigation of The 2021-22 Louisiana Bar Foundation officers were sworn in during the annual Gala. From left, real estate, intellectual property, tax and Immediate Past President Harry J. (Skip) Philips, Jr., President Christopher K. Ralston, Vice President licensing disputes. He received his un- Alan G. Brackett, Treasurer Deidre D. Robert and Secretary Hon. John C. Davidson. Photo by Matthew dergraduate degree from the College of Hinton Photography. William and Mary and his law degree Louisiana Attorney General’s Office. She I. Dwyer, Metairie; Hon. Cynthia Clay from Tulane Law School. obtained her BA degree from Louisiana Guillory, Lake Charles; Colleen C. Brackett is the managing member of State University and her law degree from Jarrott, New Orleans; Ashley Kelton Mouledoux, Bland, Legrand & Brackett Southern University Law Center, where (Kelly) Longwell, New Orleans; Michael in New Orleans, where his practice is fo- she serves as an adjunct professor. J. Mestayer, New Orleans; and Adrienne cused on representing clients in defense Judge Davidson is a 1988 graduate D. White, Mansfield. of maritime personal injury claims, in- of Louisiana State University Paul M. Other members of the 2021-22 board cluding federal longshore and Defense Hebert Law Center. He began his private of directors include Patricia R. Bonneau, Base Act workers’ compensation claims. practice in New Orleans working in the Mandeville; Hon. Guy E. Bradberry, Lake He obtained both his BA and JD degrees areas of complex commercial litigation Charles; Charles C. (Chuck) Bourque, from Tulane University. and bankruptcy. He moved to Alexandria Jr., Houma; Edmund J. Giering IV, Baton Robert is executive counsel for in 1992 and continued his private prac- Rouge; Wendy E.W. Giovingo, Monroe; Louisiana Department of Transportation tice in the areas of commercial litigation, Julie M. Lafargue, New Orleans; John C. and Development, where she serves as general defense work, personal injury Nickelson, Shreveport; Harry J. (Skip) the chief legal officer for the department. and domestic law. In November 2004, he Philips, Jr., Baton Rouge; H. Minor Pipes Prior to accepting this appointment, was elected as a judge for the 9th Judicial III, New Orleans; Maggie T. Simar, St. she served as general counsel for the District in Rapides Parish. Martinville; Hon. Raymond S. Steib, Jr., Southern University System and deputy New board members include Hon. Gretna; David E. Verlander III, Monroe; director of the Litigation Division of the Dana M. Douglas, New Orleans; Stephen and Zebulon M. Winstead, Alexandria. 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

Louisiana Bar Journal August / September 2021 194 Vol. 69, No. 2 www.lsba.org Louisiana Bar Journal August / September 2021 195 Vol. 69, No. 2 www.lsba.org LOUISIANA BAR FOUNDATION President’s Message The Most Inspiring Ideal of Our Society

By 2021-22 President Christopher K. Ralston

“Equal justice under law is not mere- Louisianans — re- Veronica E. Henry, Hon. Benjamin ly a caption on the facade of the Supreme gardless of their zip Jones (Ret.), Hon. William J. (Rusty) Court building; it is perhaps the most code, background Knight (Ret.), Hon. Patricia Evans inspiring ideal of our society. . . . or income level — Koch, Hon. Nancy Amato Konrad It is fundamental that justice should be have access to the (Ret.), Hon. Walter I. Lanier III, Hon. the same, in substance and availability, civil legal services Elizabeth C. Lanier, Hon. Ivan L.R. without regard to economic status.” — they need. Lemelle, Hon. Harry T. Lemmon (Ret.), Justice Lewis Powell, Jr. The follow- Hon. Mary Ann Vial Lemmon, Hon. ing judges have M. Lauren Lemmon, Hon. C. Wendell “The Louisiana Bar Foundation been named to Christopher K. Manning, Hon. Page McClendon, Hon. does so much for so many who have so the LBF’s 2021- Ralston Marla Elizabeth Mitchell Abel; Hon. little. The Foundation is altruistic, dem- 22 board of directors — Hon. John C. Susie Morgan, Hon. Joseph H.L. Perez- onstrating that the bar and the bench Davidson, 9th Judicial District Court; Montes, Hon. Candyce G. Perret, Hon. are very willing to serve others with Hon. Guy E. Bradberry, 14th Judicial Kerry L. Spruill, Hon. Max N. Tobias, their time, their talent and their trea- District Court; Hon. Dana M. Douglas, Jr. (Ret.), Hon. Cynthia Tregle Woodard sure.” — Louisiana Supreme Court U.S. District Court, Eastern District of (Ret.) and Hon. Robert L. Wyatt. Chief Justice John L. Weimer Louisiana; Hon. Cynthia Clay Guillory, If you are a Fellow, I thank you for 14th Judicial District Court; and Hon. your commitment. If you are not, it is Raymond S. Steib, Jr., 24th Judicial my honor and pleasure to extend an in- hile every American has District Court. vitation to you to become a Fellow. We a constitutional right to Additionally, the following judges hope you will accept and join this most an attorney in criminal are actively engaged on one or more distinguished group of bench and bar matters, when it comes committees and panels that work to car- members. Please note that, in 2015, the toW civil matters, access to an attorney is ry out the mission and objectives of the Louisiana Supreme Court clarified that not a fundamental right. Civil legal aid LBF — Hon. Barry W. Ashe, Hon. Paula LBF Judicial Fellow dues may be paid helps close the gap in our justice system A. Brown, Hon. Charlotte A.L. Bushnell through the judicial expense fund. and ensures equal justice and represen- (Ret.), Hon. Jeffrey Charles Cashe, We invite you to visit the LBF web- tation for all. Civil legal aid is free legal Hon. Marilyn C. Castle, Hon. Sylvia R. site at www.raisingthebar.org and be- assistance provided to help low-income Cooks, Hon. Suzanne M. DeMahy, Hon. come a Fellow today. Should you have people with non-criminal, civil legal Valerie Gotch Garrett, Hon. Piper D. any questions, contact Danielle Marshall needs. The Louisiana Bar Foundation Griffin, Hon. Vanessa Guidry-Whipple, at (504)561-1046 or email danielle@ (LBF) is the single statewide funder Hon. Lowell Christopher Hazel, Hon. raisingthebar.org. that is fully committed to ensuring that Louisiana’s civil justice system is accessible to all, no matter their economic status. Through grants, we partner with LBF Welcomes New 2021 Fellows a trusted network of more than 70 grant- ees and work with hundreds of volun- The Louisiana Bar Foundation welcomed the following new Fellows: teers from the bench and the bar that are leading community-driven efforts to Erica E. Cicero...... Mandeville help low-income families in need. Cornelius Troy Hall...... Baton Rouge We are proud of the increasing num- Lawrence K. Holcomb...... Edwardsville, IL ber of Judicial Fellows who are actively involved with the Foundation’s com- Prof. Donald W. North...... Zachary mittees, programs, success stories and Benjamin de Seingalt...... New Orleans board of directors. Their leadership is Alberto Enrique Silva...... New Orleans critical to our goal of ensuring that all

Louisiana Bar Journal August / September 2021 196 Vol. 69, No. 2 www.lsba.org Minimum Qualifications, Conditions and Procedures for Appointment as Special Assistant Attorney General in Risk Litigation The minimum qualifications, condi- 10.The requirements set forth in 8 and 9 may the attorney will be placed on probation tions and procedures for appointment as a be waived by the Attorney General, in as to medical malpractice defense as Special Assistant Attorney General in risk which event the attorney will be placed in provided in paragraph 10 above. litigation are listed below. a probationary status for a period of three years. During the period of probation, Conditions 1. The attorney shall be admitted to practice the attorney’s performance will be law in the state of Louisiana, unless evaluated annually by the State Risk 1. Any attorney appointed by the Attorney the action is pending in another state, Administrator-Claims and the Assistant General serves at the pleasure of the in which event the attorney shall be Director for Litigation Management of Attorney General and may be removed admitted to practice in the state where the Office of Risk Management or, if by the Attorney General at any time the action is pending. applicable, the Director for the Office without cause. 2. If the action is pending before a federal of Risk Management of the exempted 2. Office of Risk Management or, if court or other court with special admission institutions, and the Director of the applicable, exempted institutions, may requirements, the attorney shall be Litigation Program of the Louisiana only remove an attorney for cause. admitted to practice before such court. Department of Justice. 3. All contracts must comply with the 3. The attorney shall not be under In the event that the attorney’s Ethical Standards for Public Servants, suspension by the Louisiana Supreme performance is acceptable during the Title 42, Section 15, Part II of the Court or any court in which the action three-year probationary period, he Louisiana Revised Statutes, including, is pending. shall be removed from probationary but not limited to, La. R.S. 42:1113. 4. The attorney and any attorney with status. In the event the attorney’s whom he is engaged in the practice of performance is unsatisfactory, he may Procedures law shall not represent any plaintiff in be removed from the probationary list 1. In order to be considered for appointment any tort claim against the state and/or or, at the discretion of the State Risk as a Special Assistant Attorney General its departments, commissions, boards, Administrator-Claims, the Assistant in risk litigation, an attorney must agencies, officers, officials or employees Director for Litigation Management of provide proof to the satisfaction of the unless specifically waived in writing the Office of Risk Management or, if Attorney General that the firm meets by the Attorney General and the Office applicable, the Director for the Office the minimum qualifications. of Risk Management, or, if applicable, of Risk Management of the exempted the institutions exempted from the state institutions, and the Director of the 2. The Attorney General shall notify in risk management program pursuant Litigation Program of the Louisiana writing the Office of Risk Management or to La R.S. 17:3139.5(B)(2)(e)(i) and/ Department of Justice, the probationary the exempted institutions, if applicable, of or 17:3393(A)(2)(e)(i) (hereinafter period may be extended. the attorney assigned in all risk litigation. exempted institutions). The Office of Risk Management, or the exempted institutions, if applicable, 5. The attorney shall not have a conflict Additional shall advise the Attorney General of its of interest as provided by the Rules of Requirements for the concurrence of the attorney assignment Professional Conduct of the Louisiana in writing. Written concurrence by the State Bar Association. Defense of Medical Office of Risk Management or the 6. The attorney shall have and maintain exempted institutions, if applicable, professional malpractice insurance with Malpractice Claims constitutes notification of the contract minimum coverage of $1 million per 11. The attorney should have three years’ attorney assignment to the Attorney. claim with an aggregate of $1 million. experience in the defense of medical The Attorney General shall send a letter 7. The attorney must be a subscriber to an malpractice claims. to the attorney stating that the firm has electronic billing program designated 12. The attorney should have participated as been assigned as defense counsel. The by the Office of Risk Management or, counsel of record in at least two medical Attorney General’s appointment letter if applicable, the exempted institutions. malpractice trials. shall serve as signatory evidence of the 8. The attorney should have a Martindale- 13. Professional malpractice limits shall Attorney General’s approval for any Hubbell rating of “distinguished” or better. be at least $1 million per claim with an contract for legal services resulting from 9. The attorney should have been admitted aggregate of $1 million. the appointment. to and engaged in the practice of law for 14. Requirements 11 and 12 may be waived Effective 7/1/21 a minimum of three years. by the Attorney General, in which event

Louisiana Bar Journal August / September 2021 196 Vol. 69, No. 2 www.lsba.org Louisiana Bar Journal August / September 2021 197 Vol. 69, No. 2 www.lsba.org CLASSIFIED ADS ONLINE AT WWW.LSBA.ORG CLASSIFIED NOTICES

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Louisiana Bar Journal Vol. 64, No. 5 413 Louisiana Bar Journal August / September 2021 198 Vol. 69, No. 2 www.lsba.org Louisiana Bar Journal August / September 2021 199 Vol. 69, No. 2 www.lsba.org

0217_LBJ_JOURNAL_MAGAZINE.indd 413 12/20/2016 2:34:55 PM The Last Word Birthday, Good Friday, National Memorial Day, Confederate Memorial Day, Independence Day, Huey P. Long Day, Labor Day, Christopher Columbus Day, All Saints’ Day, Veterans’ Ipse Dixit: It’s Day, Thanksgiving Day, Christmas Day . . . . Is Confederate Memorial Day really a legal holiday . . . in 2021? Can Confederate Memorial Day REALLY save me? About Time Well, yes, if you read West v. State Boat Corporation, 443 So.2d 1171 (La. App. 3 Cir. 1984): “Accordingly, we find that June 3, Confederate Memorial Day, is a legal holiday within By Edward J. Walters, Jr. the contemplation of LSA C.C.P. art. 1974 and must be excluded in determining the delay for a new trial.” But, there’s a catch in 1:55 (E)(1)(a)(i) (again edited for readability):

o you wake up with a start. In a cold sweat. Each clerk of a district court, parish court, and city court You think that motion for new trial needed to be shall close his office on the following days: New Year’s Day, filed TODAY! Washington’s Birthday, Good Friday, Memorial Day, the What time is it? OMG, today turned into tomor- Fourth of July, Labor Day, All Saints’ Day, Veterans’ Day, Srow. It needed to be filed YESTERDAY! Thanksgiving Day and the next day, Christmas Eve Day, You get up, rush to your computer and realize it WAS due Christmas Day, New Year’s Eve Day. yesterday . . . but was it really due yesterday, or . . . is it due . . . today? Then you have to also read La. R.S. 1:55 E(3) which says: Your cold sweat continues, but there MAY be hope. The kids are still asleep, but Westlaw/Lexis/Fastcase are Only the enumerated holidays in Paragraph (1) of this wide awake waiting for you. (In the “olden” days, you would Subsection, days of closure under Paragraph (2) of this get dressed, get in your car, DRIVE to your office and look at Subsection . . . and all Saturdays and Sundays shall be con- the “Green Books.”) sidered as legal holidays for the purposes of Code of Civil So what do you find? Procedure Article 5059. You find there is a MAGIC statute you’ve never ever even heard of — La. R.S. 1:55 “Days of Public Rest and Legal Wait! This can’t BE! 1:55 says Confederate Memorial Day Holidays.” It is a statute with approximately 150 mind-numb- is a “Legal Holiday.” Read West. ing cryptic lines (depending on which computer research tool But in spite of the very helpful language in West, you need to you are using). Fortunately, time can’t run out on you if the last also read Magee v. Jefferson Rental, 434 So.2d 421 (La. App. 5 day is a legal holiday. Cir. 1983), which held that “only the days listed in subsection (E) are to be counted as holidays for purposes of Code of Civil A curiosity (among many) in 1:55: Procedure art. 5059 . . . . While it is evident at first glance that In addition, in the Parish of Vermilion, the Friday of the La. R.S. 1:55 is written in a particularly tortuous and difficult Cattle Festival in Abbeville shall be a legal holiday for the pur- manner, attorneys are held to a knowledge of its contents.” pose of authorizing the clerk of court of the Fifteenth Judicial One thing for sure: Should the Legislature ever act to elimi- District Court and the clerk of court of the City Court of nate some of these “Legal Holidays,” the Cattle Festival will Abbeville to close their offices in observance of that day, unless probably survive the cut. there is an election that requires their office to remain open. The moral of this story is, of course, file early and don’t rely on 1:55. You feel better, but you get no sleep. You get up, wear that coat and tie you never wear anymore, go to the office, act non- chalant and look for answers, ready to file this motion, timely, TODAY. Edward J. Walters, Jr., a partner in the Baton Rouge firm You double-check the law. The salient “holidays” are as fol- of Walters, Papillion, Thomas, Cullens, L.L.C., is a former lows (edited for readability): Louisiana State Bar Association secretary and editor-in- chief of the Louisiana Bar Journal. He is a current member of the Journal’s Editorial Board and chair of the LSBA The following shall be days of public rest and legal holidays: Senior Lawyers Division. ([email protected]; 12345 Sundays, New Year’s Day, Battle of New Orleans, Dr. Martin Perkins Rd., Bldg. 1, Baton Rouge, LA 70810) Luther King, Jr.’s Birthday, Robert E. Lee Day, Washington’s

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