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Louisiana Bar Journal Vol. 57, No. 6 361 SSEERRVVI INNGG LLOOUUIISS II AA NN A L A WW YYEERRSS SSIINNCCEE 11999900 ™
362 April / May 2010
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April / May 2010 Volume 57, Number 6
Departments Features LSBA Launches New Logo, Incorporates New Tagline: Statements President’s Message...... 368 of Service ...... 372 Association Actions...... 390
Lawyers Give Back...... 397 Insurance “Bad Faith” Law, Revisited Committees FYI...... 399 By Dean A. Sutherland...... 374 Puzzle...... 401 Discipline Reports...... 404 No Excuses: Hurricanes and the “Act of God” Defense to Breach of Recent Developments...... 407 Contract Claims Young Lawyers ...... 422 By Christopher T. Chocheles...... 380 Judicial Notes...... 425 People...... 426 Classified...... 430 News...... 432 Lucid Intervals ...... 440
Also Inside Member Services...... 366 SOLACE...... 365 Alcohol/Drug Abuse Hotline.. 401
Continuing the Diversity Journey: 3rd Conclave on Diversity in the Legal Profession Charts Highest Attendance to Date By Kelly McNeil Legier...... 386
Louisiana Bar Journal Vol. 57, No. 6 363 Editorial Board ™ Officers 2009-10
President Carrick B. Inabnett Garrett P. LaBorde Kim M. Boyle • (504)566-1311 Editor (866)263-2376 President-Elect (318)340-5107 Michael A. Patterson • (225)922-5110 Roy H. Odom, Jr. Secretary J.Patten Brown III (318)227-3762 (212)709-8295 Carrick B. Inabnett • (318)340-5107 Aimee M. Quirk Treasurer John S. (Chip) Coulter (504)582-8256 Jack K. Whitehead, Jr. • (225)303-8600 (225)382-3183 Immediate Past President Gail S. Stephenson
Elizabeth Erny Foote • (318)445-4480 Michael L. DeShazo (225)771-4900, ext. 216 (504)524-0206 Board of Governors 2009-10 Tyler G. Storms First District Brendan P. Doherty (318)255-7805 Beth E. Abramson • (504)582-3800 (504)561-0400 Katherine Tonnas John H. Musser IV • (504)599-5964 Warren A. Goldstein (504)289-0618 Second District (504)566-4990 Richard K. Leefe • (504)830-3939 Edward J. Walters, Jr. Third District Shannan L. Hicks (225)236-3636 Lawrence P. Simon, Jr. • (337)232-7424 (318)677-2504 Fourth District Jack K. Whitehead, Jr.
John F. (Jack) Robichaux • (337)433-0234 Gerald J. Huffman, Jr. (225)303-8600 Fifth District (504)957-9114 James E. Boren • (225)387-5786 Sixth District Margaret E. Judice Charles D. Elliott • (318)442-9533 (337)828-1880 Seventh District Charles L. Kincade • (318)388-4205 The Louisiana Bar Journal (ISSN 0459-8881) is published bimonthly by the Louisiana State Bar Association, 601 St. Charles Avenue, New Orleans, Eighth District Louisiana 70130. Periodicals postage paid at New Orleans, Louisiana and Ronald J. Miciotto • (318)424-0200 additional offices. Annual subscription rate: members, $5, included in Chair, Young Lawyers Section dues; nonmembers, $45 (domestic), $55 (foreign). Canada Agreement No. Melanie Mabile Mulcahy • (504)837-1230 PM40063731. Return undeliverable Canadian addresses to: Station A, P.O. At-Large Members Box 54, Windsor, Ontario N9A 6J5. E-mail: [email protected]. Dana M. Douglas • (504)556-4097 Cloyd Benjamin, Jr. • (318)352-7575 Postmaster: Send change of address to: Louisiana Bar Journal, 601 St. Karelia R. Stewart • (318)226-6998, x 3023 Charles Avenue, New Orleans, Louisiana 70130. LSU Paul M. Hebert Law Center John M. Church • (225)578-8701 Subscriber Service: For the fastest service or questions, call Darlene M. Tulane Law School LaBranche at (504)619-0112 or (800)421-5722, ext. 112. Tania C. Tetlow • (504)862-8812 Louisiana State Law Institute Editorial and Advertising: Publication of any advertisement shall not be considered an endorsement John David Ziober • (225)387-6966 of the product or service involved. Submissions are welcome and will be House of Delegates Liaison Chair considered for publication by the Editorial Board. For submission guide- Jeffrey A. Riggs • (337)237-6062 lines, go online at www.lsba.org, click on “Publications,” then “Louisiana Bar Journal.” Copyright © by Louisiana Bar Journal. All rights reserved. Editorial Staff Reproduction in whole or part without permission is prohibited. Views Executive Director expressed are those of the authors only. Loretta Larsen, CAE Communications Director Luminary Award 2003 Kelly Wells Ponder National Association of Bar Executives Publications Coordinator/Managing Editor Communications Section Darlene M. LaBranche Excellence in Regular Publications Communications Coordinator Barbara D. Baldwin In t e r n a t i o n a l Communications Assistant As s o c i a t i o n o f Krystal L. Bellanger Bu s i n e s s Pu b l i c Re l a t i o n s So c i e t y o m m u n i c a t o r s C o f Am e r i c a Advertising Questions? Ne w Or l e a n s Ne w Or l e a n s Ch a p t e r Ch a p t e r Krystal L. Bellanger • (504)619-0131 Aw a r d o f Br o n z e Qu i l l Aw a r d o f Me r i t
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SOLACE Support of Lawyers/Legal Personnel — All Concern Encouraged The Louisiana State Bar Association/Louisiana Bar Foundation’s Community Action Committee supports the SOLACE program. Through the program, the state’s legal community is able to reach out in small, but meaningful and compassionate ways to judges, lawyers, court personnel, paralegals, legal secretaries and their families who experience a death or catastrophic illness, sickness or injury. For assistance, contact a coordinator. Area Coordinator Phone E-mail Alexandria Area Elizabeth Erny Foote (318)445-4480 [email protected] Baton Rouge Area Ann G. Scarle (225)214-5563 [email protected] Covington/Mandeville Area Suzanne E. Bayle (504)524-3781 [email protected] Denham Springs Area Mary E. Heck Barrios (225)664-9508 [email protected] Houma/Thibodaux Area Danna Schwab (985)868-1342 [email protected] Jefferson Parish Area Pat M. Franz (504)455-1986 [email protected] Lafayette Area Susan Holliday (337)237-4700 [email protected] Lake Charles Area Chantell Marie Smith (337)475-4882 [email protected] Monroe Area John C. Roa (318)387-2422 [email protected] Natchitoches Area Peyton Cunningham, Jr. (318)352-6314 [email protected] Cell (318)481-5815 New Orleans Area Helena N. Henderson (504)525-7453 [email protected] Opelousas/Ville Platte/Sunset Area John L. Olivier (337)662-5242 [email protected] (337)942-9836 (337)232-0874 River Parishes Area Jude G. Gravois (225)265-3923 [email protected] (225)265-9828 Cell (225)270-7705 Shreveport Area Sandra Haynes (318)222-3643 [email protected]
For more information, go to: www.lsba.org/2007InsideLSBA/solace.asp.
Louisiana Bar Journal Vol. 57, No. 6 365 MembeServicesr Total LSBA MEMBERS: 20,442
™ 601 St. Charles Ave. Louisiana Hotels Shreveport New Orleans, La. 70130 Clarion Shreveport Hotel The following hotels have (318)797-9900 (504)566-1600 agreed to corporate discount (800)421-LSBA Nationwide rates for LSBA members. WATS line/members only Call the hotel for the current Chain Hotels Fax (504)566-0930 discounted rates. When making Web site: www.LSBA.org reservations, you must identify The following national yourself as an LSBA member. hotel chains have agreed to corporate discount rates New Orleans for LSBA members. Call
Bienville House for the current discounted Programs (504)378-1113 rates. For information about these LSBA programs, contact the Bar Office (800)535-7836 Holiday Inn by calling (504)566-1600 or (800)421-LSBA. Hotel InterContinental (504)525-5566 (800)HOLIDAY Alternative Dispute Resolution Program Use ID No. 100381739 Iberville Suites Client Assistance Fund (504)523-2400 for reservations. La Quinta Continuing Legal Education Program Loews New Orleans Hotel (504)595-5370 (866)725-1661 Ethics Advisory Service (866)211-6411 www.lq.com Lawyers’ Substance Abuse Hotline • (866)354-9334 Rate Code: LABAR The Ritz-Carlton Legal Specialization Program (504)524-1331 Car Rental Programs Loss Prevention Counsel Johanna G. Averill, Lindsey M. Ladouceur and The Roosevelt (504)648-5481 Elizabeth LeBlanc Voss The following car agencies (800)GILSBAR Sheraton New Orleans (888)627-8389 have agreed to discount SOLACE (Support of Lawyers/Legal Personnel rates for LSBA members. W Hotel All Concern Encouraged) French Quarter Avis (888)627-8389 Discount No. A536100 333 Poydras St. (800)331-1212 Publications (888)627-8389 Budget Rent-a-Car Louisiana Bar Journal Westin New Orleans Discount No. Z855300 Canal Place “Bar Briefs” (online) (800)527-0700 (888)627-8389 Hertz Louisiana Bar Today (online newsletter) The Whitney Wyndham Discount No. 277795 (504)581-4222 (800)654-2210 Online Services Windsor Court (504)523-6000 Louisiana Bar Today Opinion Service Other Vendors Membership Directory Baton Rouge The following vendors have Crowne Plaza Fastcase (free online legal research) agreed to discount rates for (225)925-2244 Law Office Management Assistance Program LSBA members. Sheraton Hotel &
Convention Center ABA Members Young Lawyers Section (225)242-2600 Retirement Program Bridging the Gap Choose Law Hilton Capitol Center (800)826-8901 (800)955-6962 Mentor Program Barristers for Boards Bank of America (800)441-7048 Lafayette Young Lawyers’ Directory Wills for Heroes CoreVault Hilton Garden Inn (866)945-2722 Lafayette/Cajundome Law Firm Merchant Account Insurance through Gilsbar (337)291-1977 (866)376-0950 Hilton Lafayette and Tower Group Insurance Lexis/Mead (337)235-6111 Major Medical Data Central (800)356-6548 Disability Lake Charles Best Western United Parcel Service Malpractice (800)325-7000 (800)GILSBAR • (504)529-3505 • See inside back cover Richmond Suites (337)433-5213
366 April / May 2010 LG_Yellb_AD_8.5x10.875_4c_LA.qxd 2/12/10 2:49 PM Page 1
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The American Bar Association Members/State Street Collective Trust (the “Collective Trust”) has filed a registration statement (including the prospectus therein (the “Prospectus”)) with the Securities and Exchange Commission for the offering of Units representing pro rata beneficial interests in the collective investment funds established under the Collective Trust. The Collective Trust is a retirement program sponsored by the ABA Retirement Funds in which lawyers and law firms who are members or associates of the American Bar Association, most state and local bar associations and their employees and employees of certain organizations related to the practice of law are eligible to participate. Copies of the Prospectus may be obtained by calling (877) 947-2272, by visiting the Web site of the American Bar Association Retirement Funds Program at www.abaretirement.com or by writing to ABA Retirement Funds, P.O. Box 5142, Boston, MA 02206-5142. This communication shall not constitute an offer to sell or the solicitation of an offer to buy, or a request of the recipient to indicate an interest in, Units of the Collective Trust, and is not a recommendation with respect to any of the collective investment funds established under the Collective Trust. Nor shall there be any sale of the Units of the Collective Trust in any state or other jurisdiction in which such offer, solicitation or sale would be unlawful prior to the registration or qualification under the securities laws of any such state or other jurisdiction. The Program is available through the Louisiana State Bar Association as a member benefit.Louisiana However, thisBar does Journal not constitute Vol. 57,an offer No. to 6 purchase, 367 and is in no way a recommendation with respect to, any security that is available through the Program. C09-1005-035 (10/09) President’s message
It’s Been an Extraordinary Year and Our Work Will Continue By Kim M. Boyle
his is it . . . my final President’s have met with the Louisiana Supreme to encourage more involvement by our Message! As an association, we Court and with the Louisiana Judicial members. have had an extraordinary year Council of the National Bar Association These efforts also include our outreach to date. We have continued suc- in Shreveport and Monroe. As one part of to the public through the various media cessfulT initiatives started by past presidents this effort, the LSBA’s Public Information events ongoing this spring. Through of our great association and we have insti- Committee, chaired by Julie Baxter, has coordination by the Public Information tuted a number of projects that hopefully drafted the Judicial Ability to Comment Committee, I have met with local media will have longevity with the Louisiana Statement to be issued to the media to in Baton Rouge (speech before the Baton State Bar Association (LSBA). make clear the limitations on the bench Rouge Press Club), Houma (article pub- At the beginning of my term and in my in commenting on pending cases. I have lished in local paper), Alexandria (article first President’s Message, I explained that met with members of the federal bench in published in local paper) and New Orleans, our goals for the year included focusing on New Orleans and Baton Rouge, as well as and will meet with the media in Lafayette, outreach to the bench and particularly to with the Attorney General’s Office and the Shreveport and Monroe soon to discuss our members, access to justice, diversity federal prosecutors’ office in New Orleans the LSBA, our programming and activi- and professionalism issues, as well as a to address issues related to the LSBA. ties, access to justice issues, diversity, and number of other issues that impact our Our focus on improving relations be- other issues important to our membership. association. The LSBA’s officers, board tween the bench and the bar is ongoing As this is the third prong of our outreach members, members of the House of and I have attempted to continue the work efforts, we are truly focused on educating Delegates, section and committee chairs of my predecessors in this area. Our ef- members of the lay public about the bar, and members have worked hard on behalf forts are further reflected by the fact that lawyers and judges to continue to improve of this association, such that our LSBA this is the second year for the joint LSBA the public image of lawyers and the legal has shown great progress. Summer School/Louisiana Judicial Col- profession. As outgoing president, please grant lege event slated for June in Destin, Fla. me one final opportunity to briefly recap We are excited to continue this important Access to Justice Issues these efforts. collaboration. As part of the outreach to our members, We have focused strongly on efforts to Outreach to the Bench and I have traveled across the state attending attempt to return the $500,000 in funding LSBA Members various openings of court, local bar events, to the four legal services programs in galas and similar activities to continue to Louisiana this year. Part of the LSBA’s The outreach efforts have allowed me advise our members of what we are do- goal is to be “an effective, unified voice to crisscross the state many times over ing and how we are attempting to provide on issues affecting the administration of and meet with a number of our members services to all LSBA members. I have met justice,” and access to justice and ap- and receive relevant input. Over the past with a number of local and specialty bar propriate legal representation for those two years, I have traveled to meet with associations in New Orleans, Jefferson in need is a significant aspect of our each of the five circuit courts in the state Parish, Terrebonne Parish, Baton Rouge, mission. Through the collaboration of to discuss the LSBA, issues important to Lafayette, Shreveport, Monroe, Lake the Access to Justice Committee and the the profession, and relations between the Charles, Alexandria, and other cities and Legislation Committee, chaired by former bench and bar. I have met with a number towns in our great state. This has included LSBA President Mike McKay, we have of the trial courts en banc, including meetings with managing partners in firms scheduled and participated in Legislative courts in Orleans Parish, Jefferson Parish in New Orleans, Baton Rouge, Lafayette Breakfasts in New Orleans, Lafayette, (24th JDC), Baton Rouge (19th JDC), and other towns, meetings at firms in Monroe and Shreveport with attorneys Opelousas, St. Tammany, Lake Charles New Orleans, as well as attendance and in those areas (including attorneys and and others to discuss similar topics. I speeches in many venues, always to directors from the four legal services discuss the LSBA and its services and programs) and the respective legislative
368 April / May 2010 delegations discussing legal services and benefits for those legally entitled to receive policy issues, discussing best practices the importance of this funding. We have such benefits is even more pressing. We and fostering cross-system collaboration traveled to Baton Rouge a number of times have met with the four directors of the related to criminal justice in Louisiana. before and during the current legislative legal services programs several times to This summit will include presentations session to meet with members of the continue this important collaboration. The from leading practitioners and elected Appropriations Committee and the vari- LSBA’s commitment to access to justice officials, workshops highlighting innova- ous caucuses to discuss the necessity of issues is also reflected in the important tive approaches and critical information this funding. We will continue this work work of the Children’s Law Committee, about current law and practice issues. Most throughout this legislative session and in chaired by Allen Miller and Parris Taylor. importantly, this summit will provide our future sessions. The committee has developed an innova- criminal justice community with an op- The Access to Justice Committee, tive video to introduce children to foster portunity to identify shared policy goals chaired by former LSBA President Marta- care proceedings in a way to remove any and opportunities for reform. Ann Schnabel, was restructured this year associated anxiety. We plan to introduce Also under the access to justice um- to create a Steering Committee to better this landmark video to our members during brella, our House of Delegates in January focus on these important issues of client the 2010 Annual Meeting. approved a resolution from the joint Right access for those in Louisiana who need Through the work of the Right to Coun- to Counsel and Access to Justice Language it, consistent with our mission and goals. sel Committee, chaired by Judge Milton Access Subcommittee supporting the The committee was also restructured to Moore and Jean Faria, outreach and access Language Access Guidelines for Louisi- increase the important involvement of the to justice initiatives will dovetail during the ana courts. The guidelines are designed private bar in these efforts. As stated at the May 10 statewide Criminal Justice Summit to guarantee competent interpretation of beginning of this bar year, because of the at the Hilton Hotel in Baton Rouge. This court proceedings and ensure compliance national and state economic issues, the summit will bring together law enforce- with federal civil rights laws. I am proud need for legal representation for families ment, government officials, members to say that the LSBA is at the forefront of and individuals in Louisiana in the areas of the judiciary, lawyers, public policy addressing these important issues for our of wrongful evictions, custody matters experts, criminal justice practitioners and members and the Louisiana community. and securing Social Security and other community leaders to focus on identifying Continued next page Pro Bono Heroes: Providing Justice for All In these tough economic times, some attorneys fi nd it diffi cult to handle pro bono cases and may only take paying Trina Chu Shreveport, LA clients. My experience is that pro bono work pays off on many Northwest Louisiana Pro Bono Project volunteer levels. Not only are my pro bono cases emotionally satisfying, but because I handled a pro bono case, I was referred a corporate client. Though I wasn’t expecting it, “doing good” paid great returns.
– Trina Chu, Shreveport Northwest Louisiana Pro Bono Project volunteer
ustice F ™ Providing J or A Access to Justice ll www.lsba.org/ATJ Louisiana State Bar Association
Louisiana Bar Journal Vol. 57, No. 6 369 President’s Message at the National Bar Association Annual in by the LSBA. I would particularly like continued from page 369 Meeting in San Diego last August. to thank our immediate past president, Beth We have worked closely with the Foote, for her leadership and commitment Martinet chapters across the state, such to our association. I would like to thank our Diversity Efforts that the statewide Martinet organization incoming president, Mike Patterson, for his will be formally revitalized by the end dedication and leadership to the LSBA. I Through the excellent work of the of this bar year. Our close collaboration truly look forward to working under Mike’s Diversity Committee, chaired by former is further reflected by our upcoming at- leadership. Also, for the first time in recent LSBA President Wayne Lee and Judge tendance and role at the National Bar years, each committee drafted an action Ricky Wicker, we had our best and most Association’s Annual Meeting in August plan at the beginning of the bar year, gave highly attended Conclave on Diversity in New Orleans. As the great writer Ralph a midyear report during the Midyear Meet- in the Legal Profession in New Orleans Ellison said, “America is woven of many ing and will submit a final written report on in March and we have also begun a series strands; I would recognize them and let it their activities through the end of the bar of mini diversity conclaves in other parts so remain . . . . Our fate is to become one, year. Accordingly, what is outlined in this of the state (Lafayette, Baton Rouge, and yet many — This is not prophecy, but message is only a small sampling of the Lake Charles and Alexandria). Because description.” Our association is commit- work of the LSBA and the various sections the word is out about the LSBA’s role in ted to this important issue of diversity in and committees this year. addressing this issue, a number of elected the profession. We clearly cannot be successful without officials and business leaders have partici- the cooperation and collaboration of the pated in these conclaves. Professionalism Issues Louisiana Supreme Court and its affiliate The Statement of Diversity Principles agencies, as well as the cooperation and has been signed by more than 73 law firms Through the Committee on the Profes- participation of members of the bench (to date) across the state and we continue sion, well-chaired by Barry Grodsky, we statewide. The LSBA also cannot succeed to encourage other firms to sign. Our continue to focus upon important issues and move forward without the hard work work in diversity has become a model of professionalism by presenting various of our member volunteers. I thank them all, across the country — LSBA Director of programs in the law schools and working as well as the excellent LSBA staff led by Member Outreach and Diversity Kelly with the Louisiana Attorney Disciplinary Executive Director Loretta Larsen. McNeil Legier was asked to present a Board to present free joint programming President John F. Kennedy said that diversity program at the American Bar on ethics and professionalism issues. “[f]or those to whom much is given, much Association (ABA) Midyear Meeting; I Also, the work of our Public Information is required. And when at some future date served on a diversity panel at the ABA Committee through the media meetings is the high court of history sits in judgment Midyear Meeting; the Michigan Bar As- focused upon the public image of lawyers. on each of us — recording whether in our sociation president referred to our efforts Professionalism is important because it brief span of service we fulfilled our re- in his recent President’s Page; and I was makes us mindful of our roles as “officers sponsibilities. . . — our success or failure, in invited to address the members of the of the Court, advocates, counselors, nego- whatever office we hold, will be measured Indiana State Bar Association on diversity tiators, and problem solvers,” and further by the answers to four questions: First, were issues in September. asks us to “commit to the improvement of we truly men [and women] of courage . . . . We continue to support and work the law, the legal profession, and access Secondly, were we truly men [and women] through our local and specialty diverse bar to that legal system.” (Illinois Supreme of judgment . . . . Third, were we truly men associations across the state, including the Court Commission on Professionalism, [and women] of integrity . . . . Finally, were various Louis A. Martinet Legal Society, Professionalism CLE Guidelines.) The we truly men [and women] of dedication.” Inc. chapters, the Louisiana Hispanic Law- LSBA will continue to focus upon this Those important questions are answered in yers Association and the Association for critical issue of professionalism and im- the affirmative by the dedicated members Women Attorneys (AWA). I attended the proving the public image of lawyers in of the LSBA. Martinet galas in Lafayette (gave the key- the community. It has truly been my honor and privilege note address), in New Orleans (received to serve as president of our association a framed resolution from the State Sen- Thanks to All composed of 21,000 members and I thank ate from the various Martinets), in Baton you all for this wonderful opportunity. We Rouge (gave welcome remarks) and met Finally, I must thank members of the have the best bar association in the country with Martinet leaders in Shreveport and bench, the officers, the Board of Governors, thanks to the hard work, commitment and Monroe. I was the keynote speaker at the members of the House of Delegates, sec- dedication of our members. Baton Rouge AWA luncheon in November tion and committee chairs and co-chairs, and one of the keynote speakers at the committee members and all LSBA member LSBA Young Lawyers Section’s Diver- volunteers for their hard work this year, sity Luncheon during the LSBA Midyear reflected in the number of activities engaged Meeting. I also spoke at a Louisiana dinner
370 April / May 2010 ™ Continuing Legal Education In 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 one-hour ethics classes. Check online for the most up-to-date list of upcoming seminars at www.lsba.org/CLE. Upcoming LSBA CLE Seminars Summer School for Lawyers Motion Practice June 6–9, 2010 October 8, 2010 Destin, FL New Orleans
Ethics & Professionalism Summer Re-Run Appeals: Experts of the Bench & Bar June 18, 2010 October 15, 2010 New Orleans New Orleans
Employment Law Seminar 50th Annual Bridging the Gap August 20, 2010 October 18–19, 2010 New Orleans New Orleans
Technology CLE Taxation Issues CLE August 27, 2010 October 22, 2010 New Orleans New Orleans
E-Discovery CLE Voodoo Fest CLE - September 10, 2010 Trials: Not A Halloween Surprise! New Orleans October 29, 2010 New Orleans Ethics & Professionalism September 14, 2010 Ethics & Professionalism Lafayette November 5, 2010 Bossier City Trial Techniques From Bench & Bar September 17, 2010 Workers’ Comp Seminar New Orleans November 11, 2010 Baton Rouge 17th Annual Admiralty Symposium September 24, 2010 Scientific Evidence CLE New Orleans November 12, 2010 New Orleans Ethics & Professionalism October 1, 2010 Immigration CLE Seminar New Orleans November 19, 2010 New Orleans For more information or to register online, visit www.lsba.org/CLE
Louisiana Bar Journal Vol. 57, No. 6 371 372 April / May 2010 LSBA Launches New Logo, Incorporates New Tagline: Statements of Service
Louisiana State Bar Association (LSBA) members will notice a new logo ™ and a new tagline emblazoning print, online and direct-mail material. The new tagline — Serving the Public. Serving the Profession. — was submitted by LSBA President-Elect Michael A. Patterson of Baton Rouge. Patterson will assume the LSBA presidency this June. Patterson says the phrase is more than just a catchy slogan. Rather, the idea of serving the public good is the founda- tion of the legal profession. Patterson gives further insight into his submission below: “The notion of serving the public good, something larger than private self-interest, is at the root of the legal practice, and yet many lawyers have take on special responsibilities. This professional is that we receive a license little idea of what it means or what it correlates with the privileges we are to engage in our work. We are given a requires them to do. given as lawyers. These privileges im- monopoly over the practice, to the point “The preamble of the American Bar pose obligations on others. For example, that it is a crime for non-licensed indi- Association (ABA) Model Rules of when a fireman turns on his siren to viduals to practice law. Additionally, we Professional Conduct states, in part: A head to a fire, he is entitled to speed are given the right to self-regulate our lawyer, as a member of the legal profes- and ignore red lights. We expect others profession. We are required to give some- sion, is a representative of clients, an to obey the traffic laws, but the fireman, thing in return for the autonomy granted officer of the legal system and a public by virtue of his privilege as a fireman, to us by society. After all, we are given the citizen having special responsibility for is allowed to violate those laws and we exclusive reliance by society to oversee the quality of justice. As a public citi- are obligated to accommodate him. We the justice system. Or stated another way, zen, a lawyer should seek improvement allow this activity to occur to achieve we are an unregulated legal monopoly of the law, access to the legal system, a social purpose, here to get to the fire with respect to legal services. the administration of justice and the as fast as possible. We would not allow “We are the legal guardians of law. quality of service rendered by the legal this conduct if the fireman used his siren Service to the public and service to the profession. and ran red lights to hurry back to the profession are our obligations by virtue “RPC 6.1 mandates that every lawyer firehouse with a pizza. of the privileges we are given as lawyers. has a responsibility to provide legal “Our goal as lawyers is to promote If we fail to incorporate the obligation services to those unable to pay. But, justice. We are charged with the responsi- to serve in our professional lives, we despite this ABA directive, pro bono bility of zealously protecting the rights of run the real risk that society will no statistics from 2008 indicate that the our clients. This is true even if our crimi- longer allow us the privileges we enjoy number of Louisiana lawyers handling nal client admits guilt to us. We operate as lawyers. pro bono cases is far outdistanced by on a principal of non-accountability. We “Serving the Public. Serving the the number of underprivileged people are not held accountable for the moral Profession. is not just a catchy slogan, needing these services — a group of failures of our clients. a meaningless tagline. It is our charge to citizens whose numbers have sharply “What is it that distinguishes us as each other to give back and to ensure that escalated as economic downturn chal- lawyers from other groups? It is in part our justice system is not just a system lenges are faced. because we are part of a profession. The but is truly just.” “In assuming a role as a lawyer, we most distinguishing feature of being a
Louisiana Bar Journal Vol. 57, No. 6 373 Insurance “Bad Faith” Law, Revisited By Dean A. Sutherland
374 April / May 2010 nsurance “bad faith” law1 is codified 43,617 (La. App. 2 Cir. 10/29/08), 997 statutory penalties can be imposed against in La. R.S. 22:1892 (formerly La. So.2d 675, 679, explained: the insurance company. R.S. 22:658) and La. R.S. 22:1973 La. R.S. 22:1892A(2) requires an in- (formerly La. R.S. 22:1220).2 While The phrase “arbitrary, capricious, surer “to pay the amount of any third-party theI statutes contain several similar provi- or without probable cause” is syn- property damage claim and of any reason- sions, differences between them can af- onymous with “vexatious.” Both La. able medical expenses claim due any bona fect the imposition of bad faith statutory R.S. 22:658 and 22:1220 describe fide third-party claimant within thirty days penalties. an insurer whose willful refusal of after written agreement of settlement of the a claim is not based on a good faith claim from any third-party claimant.” [By Payment of Uncontested defense. Louisiana Maintenance its terms, La. R.S. 22:1892A(2) only ap- Amounts of Insured Losses Services, Inc. v. Certain Underwrit- plies to written settlements with third-party ers at Lloyd’s of London, 616 So.2d claimants. An insurance company that fails — La. R.S. 22:1892A(1) and 1250 (La.1993) . . . . to pay its insured property damages and La. R.S. 22:1973B(5) reasonable medical expenses within 30 In Louisiana Bag Co., Inc. v. Audubon days of a written settlement agreement is La. R.S. 22:1892A(1) requires an insur- Indem. Co., 08-0453 (La. 12/2/08), 999 not subject to the La. R.S. 22:1892 statu- ance company to pay its insured the uncon- So.2d 1104, 1121-1122, the Supreme Court tory penalties.] tested amount of a covered loss within 30 held that proof of specific acts or proof of La. R.S. 22:1973B(2) requires insurers days after receiving a satisfactory proof of the insurer’s state of mind is not required to to pay a settlement within 30 days after loss from the insured or any party in interest. establish that insurer conduct is “arbitrary, the agreement is reduced to writing. By La. R.S. 22:1973B(5) requires an insurance capricious or without probable cause.” its terms, La. R.S. 22:1973B(2) applies company to pay the amount of any claim to all written settlement agreements (with due any person insured by the contract Other Sections Requiring first-party insureds and with third-party within 60 days after receipt of satisfactory “Arbitrary, Capricious or claimants). proof of loss from the claimant. Unlike La. R.S. 22:1892A(2), the La. The prohibited conduct under La. R.S. Without Probable Cause” R.S. 22:1973B(2) 30-day time period does 22:1892A(1)/R.S. 22:1892B(1) and La. Conduct not contain the “arbitrary, capricious or R.S. 22:1973B(5) is virtually identical: “the without probable cause” standard. If the failure to timely pay a claim after receiving Only La. R.S. 22:1892A(1), (2) and (4) insurer’s failure to pay the amount of any satisfactory proof of loss when that failure [because of R.S. 22:2892B(1)] and La. R.S. written settlement agreement within 30 to pay is arbitrary, capricious, or without 22:1973B(5) and (6) [by their own terms] days is “knowingly committed,” La. R.S. probable cause.”3 The primary difference is require that the insurer’s statutory failure 22:1973B(2) is violated and R.S. 22:1973C that R.S. 22:1892A(1) requires the insurer meet the “arbitrary, capricious or without statutory penalties may be imposed.8 to pay the claim within 30 days of receiving probable cause” standard before statutory Louisiana Citizens Property Insurance satisfactory proof of loss, rather than the penalties can be imposed. Corporation is not exempt from these longer 60-day period allowed under La. An insurance company’s violation of statutes.9 R.S. 22:1973B(5).4 any other section(s) of these bad faith Both provisions apply to claims by statutes may support the imposition of Oral Settlement Agreements insureds, not to third-party claims. Statu- statutory penalties, even if the insurer was tory penalties may be imposed when the not “arbitrary, capricious or without prob- Dictated into the Court insurance company’s failure to comply with able cause.”7 Record these statutory duties is “arbitrary, capri- cious or without probable cause.”5 Payment of Written Tension exists between the Civil Code articles on compromise (La. Civ.C. arts. Settlement Agreements — What is “Arbitrary, 3071-3078) and La. R.S. 22:1892A(2) La. R.S. 22:1892A(2) and La. and La. R.S. 22:1973B(2).10 Are La. R.S. Capricious or Without R.S. 22:1973B(2) 22:1892A(2) and La. R.S. 22:1973B(2) Probable Cause” violated when an insurance company fails Misconduct? La. R.S. 22:1892A(2) and La. R.S. to timely pay a settlement agreement that 22:1973B(2) obligate an insurance com- is dictated into the record in open court, An insurer’s misconduct meets the pany to pay the amount of a settlement but not reduced to a written settlement “arbitrary, capricious or without probable agreement within 30 days after the settle- agreement? cause” standard when the insurer’s actions ment agreement is reduced to writing. These The court in Chateau Living Center, are unjustified, lack a reasonable basis or provisions differ concerning: (1) the party L.L.C. v. Hanover Ins. Co., Civ. No. are without probable cause or excuse.6 to whom the duty is owed, and (2) the 06-3211, 2008 WL 4432368 (E.D. La. The court in Riser v. Shelter Mut. Ins. Co., standard of misconduct required before 9/25/08), noted a split between Louisiana
Louisiana Bar Journal Vol. 57, No. 6 375 courts on whether a settlement agreement, Initiate Loss Adjustment — 03-1375, 03-1382 (La. 12/12/03), 860 dictated into the record in open court pursu- La. R.S. 22:1892A(3) So.2d 1149; Arvie v. Safeway Ins. Co. of ant to La. Civ.C. art. 3072, complies with Louisiana, 06-1266 (La. App. 3 Cir. 2/7/07), the statutory “written” settlement require- La. R.S. 22:1892A(3) requires an insur- 951 So.2d 1284, writ denied, 957 So.2d ment of La. R.S. 22:1892A(2) and La. R.S. ance company to “initiate loss adjustment 181, 07-0797 (La. 6/1/07); and Dufrene 22:1973B(2). Batson v. South. La. Medical of a property damage claim and of a claim v. Gautreau Family, L.L.C., 07-467 (La. Center, 97-1382 (La. App. 1 Cir. 9/25/98), for reasonable medical expenses” within App. 5 Cir. 2/22/08), 980 So.2d 68, 85, writ 724 So.2d 782, 789, writ granted in part, 14 days after notification of loss by the denied, 08-0629 (La. 5/9/08), 980 So.2d judgment amended on other grounds, 98- claimant in ordinary cases and within 30 694, and 08-0628 (La. 5/9/08), 980 So.2d 2709 (La. 1/8/99), 734 So.2d 649, held days after notification of loss in the case of 698. In these cases, misrepresentations of that a settlement agreement recited in “catastrophic loss.”12 The violation of La. pertinent facts about issues other than insur- open court was not “reduced to a writing” R.S. 22:1892A(3) subjects the insurer to the ance coverage issues were found to justify until the transcription was entered into the penalties provided by La. R.S. 22:1973C. the imposition of La. R.S. 22:1973B(1) record. Fruge v. Classic Communications, La. R.S. 22:1892A(3) obligates the statutory penalties. Inc., 04-1348 (La. App. 3 Cir. 2/2/05), 893 insurer to take “some substantive and In Arvie, the court affirmed the impo- So.2d 222, 226, writ denied, 05-0518 (La. affirmative step to accumulate the facts sition of the excess policy limits liabil- 4/29/05), 901 So.2d 1068, held that a settle- necessary to evaluate the claim.”13 Merely ity against the liability insurer, as well as ment agreement was reduced to writing opening a file is insufficient.14 $2,000 in La. R.S. 22:1973C penalties. when it was orally entered into the record La. R.S. 22:1973 contains no similar The insurer’s consistent failure to commu- in open court. Citing Revision Comment statutory provision. However, in Clark v. nicate important information concerning 11 “B” to La. Civ.C. art. 3072, Chateau fol- McNabb, 04-0005 (La. App. 3 Cir. 5/19/04), the claim to its insured violated La. R.S. 16 lowed Batson. 878 So.2d 677, 684, the 3rd Circuit con- 22:1973B(1). In Yaukey v. Teachers Ins. Co., Civ. cluded that La. R.S. 22:1973B(5) was broad In Dufrene, the failure to produce two No. 07-291, 2009 WL 1211033 (E.D. La. enough to encompass a duty to initiate a insurance policies in response to formal dis- 5/4/09), the filing of the transcription of a loss adjustment and to timely complete the covery constituted a La. R.S. 22:1973B(1) 17 dictated settlement agreement into the court claims investigation. misrepresentation of coverage. record triggered the La. R.S. 22:1973B(2) 30-day period. Misrepresentations by What If an Insurance The Louisiana Supreme Court denied Company Violates More than writ applications in both Batson, supra, Insurance Company — La. and Fruge, supra. Whether the general R.S. 22:1973B(1) One Statutory Provision? provisions of La. Civ.C. art. 3072 regard- ing acceptable forms of compromises If a denial of coverage results from Calogero addressed the insurance com- fulfill the specific requirement of a written the insurance company “misrepresenting pany’s untimely payment of claims in viola- settlement agreement contained in La. R.S. pertinent facts or insurance policy provi- tion of La. R.S. 22:1892A(1) and La. R.S. 22:1892A(2) and La. R.S. 22:1973B(2) sions relating to any coverages at issue,” 22:1973B(5). Unfortunately, the frequently remains an open question. La. R.S. 22:1973B(1) has been violated. quoted language from that decision did not The “arbitrary, capricious or without prob- identify these specific subsections: able cause” standard does not apply to a Written Settlement Offer — [W]here La. R.S. 22:1220 provides La. R.S. 22:1892A(4) misrepresentation claim. La. R.S.22:1892 contains no similar provision. the greater penalty, La. R.S. 22:1220 Does the phrase “relating to any cov- supersedes La. R.S. 22:658 such that La. R.S. 22:1892A(4) obligates an erages at issue” modify only “insurance Calogero cannot recover penalties insurance company to make a written of- policy provisions” or also modify “perti- under both statutes. 735 So.2d at 820. fer to settle any property damage claim, nent facts?” However, because La. R.S. 22:1220 including a third-party claim, within 30 The court in Strong v. Farm Bureau Ins. does not provide for attorney fees, days after receipt of satisfactory proofs of Co., 32,414 (La. App. 2 Cir. 10/29/99), 743 Calogero is entitled to recover at- loss of that claim. A violation of La. R.S. So.2d 949, 953, writ denied, 99-3362 (La. torney fees under La. R.S. 22:658 for 22:1892A (4) must meet the “arbitrary, 2/4/00), 754 So.2d 229, limited the La. R.S. Safeway’s arbitrary and capricious capricious or without probable cause” 22:1973B(1) provision to misrepresenta- failure to pay his claim within 30 standard of La. R.S. 22:1892B(1) before tions concerning pertinent facts concerning days of receiving satisfactory proof statutory penalties are imposed. 18 coverage issues.15 of loss. La. R.S. 22:1973 contains no obligation However, the courts in three other cases for an insurance company to make a written reached the opposite conclusion: McGee This partial citation has led to the incor- settlement offer to any claimant. v. Omni Ins. Co., 02-1012 (La. App. 3 rect conclusion that an insurance company Cir. 3/5/03), 840 So.2d 1248, writ denied, can be liable for penalties under only one of
376 April / May 2010 the two bad faith insurance statutes.19 Whether multiple penalties can be imposed from violations of different obli- gations contained in La. R.S. 22:1892 and La. R.S. 22:1973 was not decided in Calog- ero. Once it concluded that the insurance company did not misrepresent the policy provisions, the court specifically declined to address the validity of the lower court’s award of multiple penalties pursuant to La. R.S. 22:1973C.20 Other than situations in which the questioned conduct is prohibited by more than one subsection of La. R.S. 22:1892 and La. R.S. 22:1973 [as in Calogero], there appears to be no reason why multiple penalties should not be imposed against an insurance company which violates more than one provision of La. R.S. 22:1892 and/or La. R.S. 22:1973.
Differences Between Potential Penalties, Attorneys’ Fees and insurer to mandatory statutory penalties La. Civ.C. art. 1998, which provides: Damages and, except for the time period when the 2003 amendment to La. R.S. 22:1892 Damages for nonpecuniary loss may The potential statutory penalties, dam- was in effect, to an award of reasonable be recovered when the contract, ages and attorneys’ fees are different under attorneys’ fees. because of its nature, is intended La. R.S. 22:1892 and La. R.S. 22:1973. In Sher v. Lafayette Ins. Co., 07-2441 to gratify a nonpecuniary interest (La.4/8/08), 988 So.2d 186, 196-199, the and, because of the circumstances La. R.S. 22:1892 Supreme Court declined to apply the current surrounding the formation or the (formerly La. R.S. 22:658) version of La. R.S. 22:1892, when the bad nonperformance of the contract, the La. R.S. 22:1892 was amended in 2003 faith claim arose prior to the effective date obligor knew, or should have known, and 2006.21 Prior to the 2003 amendment, of the 2006 amendment. that his failure to perform would La. R.S. 22:1892 provided for a mandatory However, the court recognized that the cause that kind of loss. 10 percent penalty and the recovery of current version of La. R.S. 22:1892 would reasonable attorneys’ fees for the prosecu- apply to a Hurricane Katrina claim if the Regardless of the nature of the con- tion and collection of the claim. The 2003 plaintiff first made a satisfactory proof tract, these damages may be recov- amendment to La. R.S. 22:1892 increased of loss after the Aug. 15, 2006, effective ered also when the obligor intended, the statutory penalty from 10 percent to date of the 2006 amendment to La. R.S. through his failure, to aggrieve the 25 percent but eliminated the recovery of 22:658/22:1892 or if the plaintiff later feelings of the obligee. attorneys’ fees. discovered new damages and made a new The 2006 amendment to La. R.S. satisfactory proof of loss, which the insurer La. R.S. 22:1973 22:1892 increased the mandatory statu- failed to pay timely.22 (formerly La. R.S. 22:1220) tory penalty from 25 percent to 50 percent In the absence of one of these two Unlike La. R.S. 22:1892, La. R.S. and reinstated the recovery of “reasonable exceptions, the 2003 version of La. R.S. 22:1973 authorizes the recovery of dam- attorneys’ fees and costs.” The pre-2003 22:1892B(1) is applicable to Hurricane ages that may be sustained as a result of an limitation of reasonable attorneys’ fees Katrina/Rita claims.23 insurer’s breach of its obligations under that “for the prosecution and collection of the For all bad faith claims arising after Aug. statute, in addition to statutory penalties. claim” was not retained. 15, 2006, La. R.S. 22:1892 provides for a La. R.S. 22:1973A provides in part: La. R.S. 22:1892 has never authorized mandatory 50 percent statutory penalty and “Any insurer who breaches these duties the recovery of general or specific damages reasonable attorneys’ fees and costs. shall be liable for any damages sustained that may result from the insurance com- General damages for mental anguish as a result of the breach.” pany’s breach of its statutory obligations. pursuant to La. R.S. 22:1892 were rejected La. R.S. 22:1973C provides: Violations of La. R.S. 22:1892 subject the by the Supreme Court in Sher, pursuant to
Louisiana Bar Journal Vol. 57, No. 6 377 In addition to any general or special and La. R.S. 22:1973B(5) are both violated, We hold that Art. 1998 is, as a mat- damages to which a claimant is en- the insured can recover the greater of the ter of law, inapplicable to § 22:1220 titled for breach of the imposed duty, statutory penalties provided by La. R.S. and does not bar the award of mental the claimant may be awarded penal- 22:1892B(1) or by La. R.S. 22:1973C. The anguish damages under this statute: ties assessed against the insurer in an insured may also recover attorneys’ fees Damages for mental anguish may be amount not to exceed two times the pursuant to La. R.S. 22:1892B(1), even awarded under § 22:1220 for breach- damages sustained or five thousand if La. R.S. 22:1973C provides a greater es of the duty of good faith.25 dollars, whichever is greater. . . . statutory penalty.24 Scope of Damages Upon These two provisions authorize the Are Mental Anguish Which La. R.S. 22:1973C recovery of compensatory damages (both Damages Recoverable general and special), and a discretionary Statutory Penalties Are statutory penalty with maximum limits Under R.S. 22:1973C? Calculated of $5,000 or two times the amount of the damages sustained, whichever is greater, The applicability of La. R.S. 22:1973 Despite the seeming limitation on the from an insurance company that violates was not at issue in Sher. In Dickerson v. scope of La. R.S. 22:1973 general and its La. R.S. 22:1973B obligations. Lexington Ins. Co., 556 F.3d 290, (5 Cir. special damages upon which the La. R.S. Attorneys’ fees are not recoverable pur- 2009), the United States 5th Circuit Court 22:1973C penalties are calculated, i.e., suant to La. R.S. 22:1973. Where the over- of Appeals, after noting that the Louisiana damages sustained as the result of the lapping provisions of La. R.S. 22:1892A(1) Supreme Court did not address this issue insurance company’s breach of its La. in Sher, held: Pro Bono Heroes: Providing Justice for All
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378 April / May 2010 R.S.22:1973 obligations, a number of FOOTNOTES on Insurance and the House Committee on recent decisions have applied the La. R.S. Insurance, voting separately. Failure to comply with the provisions of this Paragraph shall 1. For a general discussion of these two statutes 22:1892 and La. R.S. 22:1973 statutory subject the insurer to the penalties provided (under their pre-2009 designations, La. R.S. 22:658 “bad faith” penalties on the total amount in R.S. 22:1973. and La. R.S. 22:1220), see Sutherland, “Insurance of the insured’s damages, including the ‘Bad Faith’ Law After the Hurricanes: Duties Owed 13. McClendon v. Economy Fire & Cas. Ins. unpaid insured loss. by Insurance Companies and Potential Penalties for Co., 98-1537 (La. App. 3 Cir. 4/7/99), 732 So.2d Violation of Those Duties,” 54 La. B.J. 2, 90-93 In Louisiana Bag Co., the Supreme 727, 730-731. (August-September 2006). Court stated: 14. Hollier v. State Farm Mut. Auto. Ins. Co., 01- 2. Acts 2008, No. 415, § 1, effective Jan. 1, 2009, 0592 (La. App. 3 Cir. 10/31/01), 799 So.2d 793, writ renumbered the entire Insurance Code, including these denied, 01-3163 (La. 2/22/02), 810 So.2d 1135. Moreover, we briefly note that an two provisions. No substantive changes were made 15. Accord Moxley v. Cole, 97-1582 (La. App. by that 2008 Act. insurer need only fail to tender one 3 Cir. 2/3/99), 736 So.2d 249, 255, writ denied, 3. Reed v. State Farm Mutual Ins. Co., 03-0107 undisputed portion of the claim to be 99-0632 (La. 5/7/99), 740 So.2d 1284; George v. (La. 10/21/03), 857 So.2d 1012, 1020, citing Calogero Allstate Ins. Co., 32,899 (La. App. 2 Cir. 4/5/00), subject to penalties on the difference v. Safeway Ins. Co. of La., 99-1625 (La. 1/19/00), 758 So.2d 373. between the amount paid or tendered 753 So.2d 170, 174. 16. Arvie, 951 So.2d at 1286. 4. Calogero, 753 So.2d at 174. and the amount found to be due. La. 17. Dufrene, 980 So.2d at 85. 5. Tabor v. Anco Insulations, Inc., 08-694 (La. App. R.S. § 22:658. In the case sub judice, 18. Calogero, 753 So.2d at 174. 3 Cir. 12/10/08), 999 So.2d 258, writ denied, 09-0082 19. See, e.g., Neal Auction Co., Inc. v. Lafayette Audubon failed to tender timely pay- (La. 4/3/09), 6 So.3d 769 and 09-0145 (La. 4/3/09), Ins. Co., 08-0574 (La. App. 4 Cir. 4/29/09), 13 So.3d ment of the undisputed portions of 6 So.3d 770; Arceneaux v. Amstar Corp., 06-1592 1135, reh’g denied, (6/5/09), writ denied, 2009-1499, (La. App. 4 Cir. 10/31/07), 969 So.2d 755, 782-784, the stock, building, contents and EDP 2009-1606 (La. 11/6/09), 21 So.2d 313. reh’g denied (11/28/07), writ denied, 07-2486 (La. claims, any one of which would have 20. Calogero, 753 So.2d at 174, n. 3. 3/24/08), 977 So.2d 952 and 08-0053 (La. 3/24/08), 21. Acts 2003, No. 790, § 1 and Acts 2006, No. been sufficient to render Audubon li- 977 So.2d 953. 813, § 1. able under La. R.S. § 22:658 for the 6. Reed, 857 So.2d at 1020-1021. 22. Sher, 988 So.2d at 199. 7. See, Sultana Corp. v. Jewelers Mut. Ins. Co., difference between the amount paid, 23. Royal Cloud Nine, L.L.C. v. Lafayette Ins. Co., 03-0360 (La. 12/3/03), 860 So.2d 1112, 1119. $1,000,000, and the amount found to 08-0034 (La. App. 4 Cir. 6/11/08), 987 So.2d 355, writ 8. Sultana, 860 So.2d at 1119; Esurance Ins. Co. v. 26 denied, 08-1551 (La. 10/10/08), 993 So.2d 1286 and be due, $3,266,309. Meade, 08-1975 (La. App. 1 Cir. 5/8/09), not reported 08-1568 (La. 10/10/08), 993 So.2d 1287. in So.3d, 2009 WL 1272386. 24. Calogero, 753 So.2d at 174. 9. Reed v. Louisiana Citizens Property Insurance In Neal Auction Co., Inc. v. Lafayette 25. Dickerson, 556 F.3d at 304. Corp., 07-1592 (La. App. 4 Cir. 3/5/08), 980 So.2d Ins. Co., 08-0574 (La. App. 4 Cir. 4/29/09), 26. Louisiana Bag Co., 999 So.2d at 122. 754, writs denied, 08-744, 08-748 (La. 10/24/08), 25 13 So.3d 1135, reh’g denied (6/5/09), writ So.3d 777. denied, 09-1499, 09-1606 (La. 11/6/09), 10. La. Civ.C. art. 3072 provides: “A compromise Dean A. Sutherland 21 So.2d 313, the 4th Circuit majority shall be made in writing or recited in open court, in is of counsel in the increased La. R.S. 22:1973C penalties which case the recitation shall be susceptible of be- New Orleans office ing transcribed from the record of the proceedings.” from $5,000 to $1,332,022. That amount 11. This article preserves the requirement of Article of Jeansonne & Re- is twice the amount of the total $666,011 3071 of the Louisiana Civil Code of 1870 that a com- mondet, L.L.C. His damages (including both covered and non- promise must be reduced to writing. It is not intended practice includes covered losses) awarded pursuant to La. to change the law. “When the parties reach a valid oral insurance coverage settlement in court, they may mutually compel each R.S. 22:1973A. other to reduce the agreement to writing.” disputes, admiralty In Grilletta v. Lexington Ins. Co., 558 12. Acts 2009, No. 448, amended this section to and maritime law and F.3d 359, 369-371 (5 Cir. 2009), the United provide a mechanism to extend the time to respond construction litiga- States 5th Circuit Court of Appeals held that to claims during an emergency or disaster. La. R.S. tion. In addition to his active legal practice, 22:1892A(3) now provides: a homeowner’s insurer’s failure to timely he is an adjunct faculty member at Loyola tender the undisputed portion of claim for (3) Except in the case of catastrophic loss, University Law School in New Orleans, the loss of the insured’s house subjected it the insurer shall initiate loss adjustment of where he teaches insurance law, and to a penalty as to entire claim, not just the a property damage claim and of a claim for Louisiana State University Paul M. Hebert reasonable medical expenses within fourteen undisputed portion. days after notification of loss by the claimant. Law Center, where he teaches maritime French v. Allstate Indem. Co., C.A. In the case of catastrophic loss, the insurer shall personal injury law, admiralty law and the 06-8251, 2009 WL 1668486, (E.D. La. initiate loss adjustment of a property damage advanced torts litigation seminar. For more 6/12/09), relying on Grilletta, rejected the claim within thirty days after notification of than 25 years, he has taught in numerous loss by the claimant except that the commis- insurer’s argument that Louisiana Bag sioner may promulgate a rule for extending trial advocacy programs sponsored by the required penalties to be applied only to the the time period for initiating a loss adjustment American Bar Association, the National disputed amount and not the total claim. for damages arising from a presidentially Institute for Trial Advocacy, the Louisiana declared emergency or disaster or a guberna- Association of Defense Counsel and the torially declared emergency or disaster up to an additional thirty days. Thereafter, only one LSU Law Center. (Ste. 3170, 365 Canal additional extension of the period of time for St., New Orleans, LA 70130-1167) initiating a loss adjustment may be allowed and must be approved by the Senate Committee
Louisiana Bar Journal Vol. 57, No. 6 379 No Excuses: Hurricanes and the “Act of God” Defense to Breach of Contract Claims By Christopher T. Chocheles
380 April / May 2010 eil LaBute’s play, The Mercy Seat, of a “sacred” contract. So as another begins in New York City on the hurricane season approaches, contracting Nmorning of Sept. 11, 2001. The parties should be aware that, as shown narcissistic protagonist, Ben, should be below, courts strictly adhere to the dic- in his office in the Twin Towers, but he tate that the only acceptable excuse for decided to start his day with an illicit ren- a hurricane-related breach of contract is dezvous at his mistress’ apartment. After the impossibility of performance. the hijacked planes crash into and collapse the buildings, Ben realizes that he will be Sickinger v. Board of presumed dead and ponders whether to Directors of Public Schools use this epic disaster to leave town and escape his familial obligations. for the Parish of 3 For dramatic purposes, real-life legal New Orleans disputes pale in comparison to the imagin- Several years before hurricanes were The School Board contended that a ings of a top playwright. But the theme of given names whose mere utterance could “fortuitous event or irresistible force” The Mercy Seat — that people will cite cause shudders, a “windstorm” from the prevented it from completing the transfer public tragedies as an excuse to breach Carribean Sea made landfall in New of Sickinger’s house from one lot to the private obligations — is familiar to Loui- Orleans on Sept. 29, 1915, resulting in other. The district court ruled in favor of siana courts, albeit on far less scandalous wind velocity greater than had ever been the School Board and dismissed Sick- and emotionally charged topics. recorded by the city’s weather bureau. inger’s suit. Whereas New York will forever be as- These winds practically destroyed a house On appeal, the Louisiana Supreme sociated with terrorism, Louisiana’s great owned by Adam Sickinger.4 Court analyzed an exception to the general misfortune is to be famous for hurricanes. At the time the storm passed, Sick- rule set forth in Art. 1933. According to While Louisiana litigants have rarely, if inger’s house stood on blocks, timber and this exception, even if a fortuitous event ever, raised terrorism as a defense to a jackscrews. In a May 17, 1915, contract hindered a debtor from completing his breach of contract claim, courts have had with the Orleans Parish School Board obligations, he would still be liable for numerous occasions to consider whether (School Board), Sickinger sold his lot in the “inexecution” of the contract if he im- a hurricane excuses the non-performance exchange for the School Board’s agree- pliedly or expressly assumed the risk of the of an obligation. Based on the decisions in ment to dismantle and then reassemble fortuitous event.7 To determine whether these hurricane cases, contractual parties his house on an adjacent lot. Despite the School Board assumed the risk, the should not rely on the storms, no matter the School Board’s promise to move Louisiana Supreme Court focused on the how devastating, to absolve them of the Sickinger’s house promptly, the contrac- parties’ admission of certain meteorologi- duties imposed by the contract. tor retained by the School Board, Abry cal facts about “hurricane season”: Louisiana law posits that all persons Bros., did not begin to work on the house “of lawful age and competent understand- until Sept. 20, 1915. After more than a It is admitted that the phenomena ing shall have the utmost liberty of con- week of work, Abry Bros. had moved variously known as tropical cy- tracting, and their contracts, when freely the house onto temporary structures on clones, hurricanes, or equinoctial and voluntarily made, are not lightly to the adjacent lot. Those structures were storms are of common occurrence in be interfered with by the courts.”1 Such no match, however, for the record force this locality, and most usually occur contracts “must be held sacred,”2 and no of the Carribean “windstorm.”5 in the period of the year between matter how disruptive a hurricane may Following the destruction of his house, the 15th of August and the 10th of be, courts are extremely hesitant to allow Sickinger sued the School Board to com- October. By this admission, it is not that disruption to justify a party’s breach pel it to reassemble the house on the new intended to be understood that these lot in the same condition it was before the storms or cyclones occur annually, removal. Citing Louisiana Civil Code Art. but it is intended to admit that they 1933, the School Board denied that it owed are well-known phenomena.8 any further obligation to Sickinger. At the time, Art. 1933 provided that: The parties conceded a general aware- ness of the dangers posed during “hurri- [w]here, by fortuitous event or cane season,” but there was no evidence irresistible force, the debtor is hin- that the parties understood specifically dered from giving or doing what he that a tropical cyclone could imperil the has contracted to give or do . . . no transfer of plaintiff’s house. Regardless, damages can be recovered for the the Supreme Court relied on this general inexecution of the contract.6 awareness to conclude “that the school board did intend to assume the risk of
Louisiana Bar Journal Vol. 57, No. 6 381 the $800 deposit.14 provided for an automatic extension of In the lawsuit, Schenck, like the Or- the closing date for 60 days if the house leans Parish School Board in Sickinger, required repairs.20 cited Art. 1933 to excuse his performance Like many houses in St. Tammany of obligations under the contract. Schenck Parish, the subject property in Payne argued that Hurricane Betsy made it was not flooded but rather damaged by “‘economically’ impossible . . . to do wind and rain. In the Payne case, the what [he] had contracted to do, i.e., pay damages were estimated by the seller as the sum of $2,260 for a new addition to $60,000.21 Meanwhile, the buyers, who the home when the home itself was in had evacuated to Missouri, desperately need of repair and the family had lost tried to contact the seller to arrange for most of their personal possessions.”15 The an extension of the closing date. On trial court rejected Schenck’s claims and Sept. 20, 2005, the seller responded that rendered judgment in favor of Capri. it would take months to repair the house the storm.”9 Because the School Board In affirming the trial court’s decision, and that he was “not interested in selling assumed the risk of the storm, it owed the the Louisiana 4th Circuit Court of Appeal the house for the same amount when and duty either “to move the building before observed that Schenck’s home “remained if I decide to sell my house.” The seller the season of danger or move it in such a in sufficiently sound condition so as to then stated that “[n]aturally, the house way as to avoid the danger.”10 Thus, while permit the addition contemplated by the goes up in value every day.”22 acknowledging that the hurricane in- contract.”16 As phrased by the 4th Circuit, Two weeks later, the buyers filed suit, creased the expense of moving the house, Schenck based his claim not on storm demanding specific performance of the the Supreme Court ruled that the School damage but on the “economic feasibil- purchase agreement. The case proceeded Board still owed the “duty... to reconstruct ity” of paying Capri when the money set to trial, where the seller noted that no the building after the storm.”11 aside to pay Capri “is and will be needed repairs had been made by the original to repair the home.”17 The 4th Circuit closing date and that, at the time of trial Schenck v. Capri expressed “sympath[y]” for Schenck’s (May 8, 2006), repairs had still not been Construction Co.12 economic plight, but held that Art. 1933 completed.23 The district court ruled for For many residents of St. Bernard only excused performance if the fortuitous the buyer and the seller appealed, claim- Parish, Hurricane Betsy trails only Hur- event rendered performance impossible, ing that an “Act of God” had rendered ricane Katrina on the list of the damaging not just “more difficult or more burden- the obligations in the purchase agreement 18 storms. One of those residents, Joseph some.” Hurricane Betsy did not, there- null and void. Schenck, entered into a contract with fore, excuse Schenck from paying $452 By the time the Louisiana 1st Circuit Capri Construction on Aug. 29, 1965, to to Capri for canceling the contract. Court of Appeal decided Payne, Art. 1933 build an addition to his home in Chalmette had been reproduced as Louisiana Civil for $2,260. Pursuant to this agreement, if Payne v. Hurwitz19 Code art. 1873, which provides that an Schenck canceled the contract after Capri In the immediate aftermath of Hur- “obligor is not liable for his failure to Construction began work on the addition, ricane Katrina, the dawning realization perform when it is caused by a fortuitous Schenck would owe 20 percent of the that New Orleans residents would not event that makes performance impos- amount of the contract [i.e., $452] plus be returning home by Labor Day led to a sible.” The seller argued that he could 10 percent of the amount of the contract mad scramble for office space and hous- not complete the sale because Hurricane in attorneys’ fees.13 After Schenck paid ing in Baton Rouge and other dry areas Katrina made it impossible to repair the an $800 deposit, Capri started work on in southeast Louisiana. It was a “seller’s property by the closing date or within the house. market,” as houses in those areas increased the automatic 60-day extension. The 1st On Sept. 9, 1965, Hurricane Betsy dramatically in price. Not surprisingly, Circuit rejected the seller’s argument, struck the area and inundated Schenck’s sellers tried to take advantage of the new reasoning that the parties could have home with nearly six feet of water, market conditions. An apparent example agreed on a “mutual extension of the 24 severely damaging sheetrock, flooring, of such an attempt is found in Payne v. closing deadline.” But the seller, who, windows, doors and most of the home’s Hurwitz. as held by the trial court, wanted to “profit contents. Schenck immediately canceled The story in Payne begins on Aug. 22, from Katrina’s destruction by insisting on 25 the contract with Capri and asked for 2005, when the owner of a home in Madi- a higher sales price,” was unwilling to the return of the $800 deposit. Capri re- sonville, La., signed a purchase agreement “pursue reasonable alternatives to render 26 sponded by offering to apply the deposit with a buyer that set the purchase price at performance in a different manner.” to repair work that was now necessary $241,500. The purchase agreement set a Finding that this unwillingness stemmed for the entire home. Schenck refused closing date of Sept. 26, 2005, or sooner from the seller’s bad faith, the 1st Circuit this offer and instituted suit to recover if the parties mutually agreed. It also ordered the seller to convey the property to the buyer at the agreed-upon price.
382 April / May 2010 Unlike in Schenck, where the terms of other vehicles into garages before they the contract plainly required Schenck to evacuated. When the levees breached, pay a portion of the contract amount for floodwaters inundated the garages and canceling the job, the obligations of the damaged the vehicles inside, including the seller in Payne to consummate the sale are Titan.33 National Automotive Insurance not so obvious. The contract mentioned Co. (National Automotive), which insured only an automatic 60-day extension to the Titan, asserted a claim in subrogation complete repairs. There were no unam- against Champ’s. biguous provisions to force the seller to Champ’s had entered into a contract consent to an additional extension. of deposit with the owner of the Titan. In Ordinarily, a court would defer to a such a contract, a depositor (the owner) party’s free choice to decline to extend delivers a movable thing to the depositary the repair deadline where there is no ex- (Champ’s) for “safekeeping under the press provision requiring him to extend obligation of returning it to the depositor obligation to safeguard the Titan. Champ’s the deadline.27 But, in this case, where the upon demand.”34 Because the car owner responded that it “could not be held liable seller gave “disingenuous” reasons for paid Champ’s to keep the car, Champ’s for the destruction” of a vehicle caused exercising that choice, the court wrote that was “bound to fulfill its obligations with by “an unprecedented disaster.”36 Unlike the “nonperformance of a contract is not diligence and prudence.”35 the obligors in Sickinger, Schenck and excused by a fortuitous event where it may Following Hurricane Katrina, Champ’s Payne, who unsuccessfully relied on be carried into effect, although not in the could not return the Titan to its owner. In “unprecedented” hurricanes as a defense manner contemplated by the obligor at the its lawsuit, National Automotive asserted to breach of contract claims, the district time the contract was entered into.”28 that Champ’s negligently breached its court and appeals court accepted Champ’s Notably, in reaching its decision, the 1st Circuit relied not on any explicit contractual provision, but on the implicit J 29 ro ono eroes: roviding ustice for All duty to perform contracts “in good faith.” P B H P Hurricane Katrina may have made it impossible to repair the house within 60 days of the closing date, but it was not impossible for the seller to agree to an extension of the repair deadline. The I have been associated with the Central seller’s failure to do so was, according to the 1st Circuit, “volitional in nature, rather Louisiana Pro Bono Project for longer than the type of insurmountable obstacle “I have been necessary to invoke the defense of force than I can remember. The Pro Bono majeure.”30 In sum, extending the repair associated with deadline would have been a reasonable Project gives me a structured way to fulfi ll alternative to voiding the contract, but the Central the seller refused to make such an ac- my ethical obligations to provide services commodation. The courts seized on this Louisiana Pro refusal to justify an order that compelled to the needy, and it keeps the seller to perform its obligations under Bono Project the contract. those cases in my pipeline. for longer than National Automotive For that I am grateful. Insurance Co. v. I can remem- Champ’s New Orleans ber. The Pro Collision Center31 In Champ’s, the owner of a Nissan Titan – Charles Elliott, Alexandria Bono Proj- brought his car into a Champ’s repair shop Volunteer with Central Louisiana Pro Bono Project “prior to August 29, 2005.”32 By the time Hurricane Katrina approached, the Titan tice ™ Pr ng Jus For had been disassembled and could not be ovidi Al driven away. Employees from Champ’s Access to Justice l Louisiana State Bar Association moved the Titan and approximately 60 www.lsba.org/ATJ
Louisiana Bar Journal Vol. 57, No. 6 383 argument. case of Schenck, may have become im- 25. Id. at 1007, n. 5. As recognized by the 4th Circuit, a measurably more burdensome to fulfill 26. Id. at 1005. 27. See, e.g., American Bank & Trust of Cous- depositary is “not answerable . . . for due to the damage wrought by a hurricane. hatta v. Federal Deposit Ins. Corp., No. 91-2268 accidents produced by overpowering Although these attempts may have been (W.D. La. Sept. 16, 1993), 1995 WL 363432, * force, unless he has delayed improperly understandable, they were doomed to be 4 (finding that courts are “not concerned with the to restore the deposit.”37 The court found unsuccessful, as a hurricane is often no wisdom or folly of a contract and cannot annul or amend the contract simply to avoid some hardship no delay on the part of Champ’s and held match for the obligations created in a “sa- arising therefrom.”) that Champ’s was powerless to protect cred” contract. At least with respect to its 28. Payne, 978 So.2d at 1005. the Titan from the “unforeseeable and ability to alter a contractual relationship, 29. Id. at 1006. unprecedented . . . devastation” caused then, a hurricane’s power is limited. Let’s 30. Id. 31. 06-1144 (La. App. 4 Cir. 2/28/07). by Hurricane Katrina. Concluding that hope we can say the same thing about all 32. Id at 198. Hurricane Katrina relieved Champ’s the storms of 2010. 33. See id. of its obligation to return the Titan, the 34. See La. Civ.C. art. 2926. 4th Circuit affirmed the district court’s 35. Champ’s, 954 So.2d at 199, quoting La. FOOTNOTES Civ.C. art. 2930. dismissal of Champ’s. 36. Id. at 198. Because the obligee in Champ’s asked 1. Salles v. Stafford, Derbes & Roy, 173 La. 37. Id. at 199. As stated in the comments to Art. the impossible of the obligor — that the 361, 364, 137 So. 62, 63 (1931). 1873, Louisiana courts make no distinction between 2. Id. obligor protect heavy property from the concepts of an irresistible, or overpowering, force 3. 147 La. 479, 85 So. 212 (1920). and a fortuitous event “despite strenuous doctrinal flooding in an area that could be accessed 4. Sickinger, 147 La. at 482-85, 85 So. at efforts to distinguish” the two concepts. The term by boat only — courts did not penalize 212-14. “fortuitous event” is used in the article because it Champ’s for its failure to work a miracle. 5. See id. “implicitly encompasses the companion concept.” 6. Id., 147 La. at 485, 85 So. at 214. See La. Civ.C. art. 1873, comment (a). But when the obligee’s demand remained 7. Id. in the realm of the possible, such as the 8. Id., 147 La. at 487, 85 So. at 214. 9. Id. Christopher T. Chocheles is a member of Sher buyer’s request in Payne that the seller Garner Cahill Richter Klein & Hilbert, L.L.C. extend the repair deadline, courts refuse to 10. Id. 11. Id., 147 La. at 489, 85 So. at 215. He joined Sher Garner excuse the obligor for a failure to comply 12. 194 So.2d 378 (1967). in 2000 after graduating with that demand. 13. See id., 194 So.2d at 379. from Louisiana State 14. See id. University Paul M. 15. Id. Hebert Law Center, Conclusion 16. Id. where he served on the 17. Id. at 379. Louisiana Law Review. The Mercy Seat presents a person’s 18. Id. He practices primarily in twisted and selfish reaction to an immense 19. 07-0081 (La. App. 1 Cir. 1/16/08), 978 the areas of commercial So.2d 1000. and devastating event. There is nothing litigation and toxic 20. See id. at 1002. torts. (909 Poydras St., 21. See id. so unforgivable about the attempts of the 28th Flr., New Orleans, 22. Id. obligors in Sickinger, Schenck and Payne LA 70112) to avoid obligations that, at least in the 23. See id. at 1004. 24. Id. at 1006.
Need some help managing your law office?
The Louisiana State Bar Association (LSBA) has established the Law Office Management Assis- tance Program (LOMAP, for short). This program is designed to assist lawyers in increasing the quality of the legal services they provide. Questions or comments about LOMAP may be sent to Shawn L. Holahan, shawn.holahan@lsba. org or call (504)619-0153 or (800)421-5722, ext. 153. And don’t forget about the LSBA’s other programs assisting lawyers... Fastcase for free online legal research, accessible from the LSBA’s home page, www.lsba.org. Lawyer Fee Dispute Resolution Program for quick, inexpensive, informal and final resolution of attorney/client and attorney/attorney fee disputes. Contact Bill N. King at [email protected] or call (504)619-0109 or (800)421-5722, ext. 109.
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For more information on all of the LSBA’s programs, go to www.lsba.org.
384 April / May 2010 Don’t leave us in a
DONATE BLOOD
LSBA Blood Drive Week Monday, May 10 – Friday, May 14, 2010 Wednesday, May 12 Thursday, May 13 New Orleans Area*: 10 a.m. – 2 p.m. Alexandria Area: 8 a.m. – 6 p.m. Louisiana State Bar Association LifeShare Blood Center 601 St. Charles Avenue, New Orleans 2051 North Mall Drive, Alexandria LSBA/CAC Staff Liaison: Krystal Bellanger LifeShare Contact: David Broussard 504-619-0131; [email protected] [email protected] 318-445-7439 Baton Rouge Area*: 10 a.m. – 2 p.m. Baton Rouge Bar Association Lake Charles Area: 8 a.m. – 5 p.m. 544 Main Street, Baton Rouge LifeShare Blood Center Baton Rouge YLS Liaison: Amanda Stout 214 Dr. Michael DeBakey Drive 225-383-9000; [email protected] Lake Charles LifeShare Contact: Heather Gray Lafayette Area*: 10 a.m. – 2 p.m. 337-436-4932 Lafayette Bar Association 2607 Johnston St., Lafayette Friday, May 14 LSBA/CAC Liaison: Cynthia Simon Shreveport Area*: 11 a.m. – 4 p.m. 337-232-5170; [email protected] Bloodmobile or Ruthie Toce Caddo Parish Clerk of Court 337-237-4700; [email protected] 501 Texas St., Shreveport Monroe Area: 8:30 a.m. – 5 p.m. LifeShare Blood Center *To make an appointment in New Orleans, Baton Rouge, 2909 Kilpatrick Blvd., Monroe Lafayette or Shreveport, contact Krystal Bellanger at 318-322-4445 (LifeShare) (504)619-0131 or e-mail [email protected]. LSBA/CAC Liaison: Clint Hanchey
Louisiana Bar Journal Vol. 57, No. 6 385 Continuing the Diversity Journey: 3rd Annual Conclave on Diversity in the Legal Profession Charts Highest Attendance to Date
Honoré’s Keynote Address Wows Participants
By Kelly McNeil Legier LSBA Director of Member Outreach and Diversity
Participating in a Diversity Conclave session were, from left, Louisiana State Bar Association Diversity Committee Co-Chairs Hon. Fredericka (Ricky) Homberg Wicker and Wayne J. Lee, LSBA Treasurer Jack K. Whitehead, Jr. and Diversity Conclave Chair Chauntis T. Jenkins. Photo by Adrejia Boutte.
386 April / May 2010 t. Gen. Russel L. Honoré, USA (Ret.), cast his gaze over the 170 or so participants gathered for the Louisiana State Bar As- sociation’sL (LSBA) third annual Conclave on Diversity in the Legal Profession on March 5 in New Orleans and bellowed, “Diversity? Yes, we need it!” Honoré, as keynote speaker for the conclave’s networking lunch, was only one of the dynamic speakers assembled for the conclave, which charted the high- est number of participants to date. With the theme “The Professional Workplace: Diagnosing the Issues and Finding the Cure,” this conclave was structured to Diversity Conclave speakers included, from left, Louisiana Supreme Court Associate Justice Bernette build upon the diversity discussions begun Joshua Johnson, Hon. Wendell Griffen (Ret.), Manny Brandt and Lt. Gen. Russel L. Honoré, USA (Ret.). Photo by Adrejia Boutte. during the last two conclaves. The annual event, approved for CLE professionalism then, they didn’t call it diversity,” Honoré the past “to take the collective learning to credit, brings together attorneys and judges explained. “They brought people to the avoid making the same mistakes again” to discuss issues regarding racial, ethnic, table who could contribute and make a in the future. gender, sexual orientation, disability and difference and, in doing so, they saved this Honoré next shifted his discussion to generational diversity. city, and this state, and this entire region. future diversity concerns and solutions. Honoré mesmerized participants with New Orleans was defended by an army He said there are “three streets in America: the impact of diversity on Louisiana history, built on diversity.” Wall Street, Main Street and Railroad the military, and the future of the children Honoré further explained that diversity Street. Wall Street refers to the financial on “Railroad Street,” where the poorest has affected the history of America in other business people and Main Street to the of society reside. He provided historical ways. “Diversity has been bought and working people. Railroad Street is not just a examples of how Louisiana has benefited paid for with a piece of paper called the metaphor. It’s a real place, where a third of from diversity and inclusion, and how the Declaration of Independence,” he said. Americans live.” Moreover, Railroad Street legal profession also can benefit from it “The word freedom cannot be ignored in “has everything to do with diversity,” he and act to improve diversity. that document. The slaves who fought in said, because the next challenge regarding Dubbed “that John Wayne Dude” the Revolutionary War fought for freedom. diversity should focus on Railroad Street by New Orleans Mayor C. Ray Nagin, They fought for a promise and a concept and the poor children who live there. Honoré’s name became synonymous with that they had never known.” Honoré gave He described the “class” and “eco- the rebuilding of Louisiana in the days several other examples of wars fought nomic” diversity issues that impact all of immediately following Hurricane Katrina by the United States with armies built on society. The children on Railroad Street in 2005. diversity. Not only were these wars fought are not distinguished by the color of their In his address, Honoré detailed how with armies comprised of racially and skin. Rather, they are the poor children and the history of New Orleans demonstrates ethnically diverse soldiers, they also have children who have dropped out of school. the value of diversity. “If it were not for been comprised of diverse female units. diversity, and the people living in New Honoré reminded participants to look at Continued next page Orleans at the time, the British would have captured New Orleans during the Battle of New Orleans,” he said. History shows that the British fleet, which had burned the United States Capitol, was heading to New Orleans. Andrew Jackson arrived in New Orleans with a small army. He had to col- laborate with Jean Lafitte, a pirate who had broken the laws many times, to defend the city. Jackson also had to collaborate with the free men of color, slaves, the Cajun army and other indigenous men of the area. Presenting the Diversity Conclave panel discussion, “Smart Business Managers Are About Diversity,” “None of them had trained together, but they were, from left, Trudy R. Bennette, Robert Johnson, moderator Judy Perry Martinez, Matthew T. came together with a common cause. Back Butler and Dominique R. Bright-Wheeler. Photo by Adrejia Boutte.
Louisiana Bar Journal Vol. 57, No. 6 387 “We must invest in that human capital,” he said. Honoré warned that the children on Railroad Street have less than a 50 percent chance of graduating from high school and a 35 percent chance of having a run-in with the law by the time they are 15 years old. “We must invest in Railroad Street. That’s where we must take diversity in the future,” he explained. “Those children on Railroad Street who don’t graduate from high school, who don’t get additional training, they’re going to be ‘don’ts.’ They are not going to be doers. They are going to be takers. They will not be givers.” Attorneys can definitely impact this With the Diversity Conclave luncheon keynote speaker Lt. Gen. (Ret.) Russel L. Honoré, far left, are diversity issue, Honoré said, urging Louisiana State Bar Association Diversity Committee Co-Chair Wayne J. Lee, Louisiana Supreme Court Associate Justice Bernette Joshua Johnson, Diversity Conclave Chair Chauntis T. Jenkins and participants to invest in the Louisiana Louisiana State Bar Association President Kim M. Boyle. Photo by Adrejia Boutte. communities that are underserved and to reach out and support the poor children matter to you but matter to someone else), daily practice. Panelists were Jeremy M. within Louisiana, especially those who and received tools to develop a cultural Bolton (associate, Irwin Fritchie Urquhart need encouragement to stay in school or competency compass. & Moore, L.L.C., New Orleans), Cesar get back in school. In the afternoon, two panel discussions R. Burgos (managing partner, Burgos & This third conclave, using the first two allowed participants to see the cultural Evans, L.L.C., New Orleans), Susan K. events as a foundation, was more interactive competence interplay with legal situations Jones (Franklin attorney-at-law), Patricia and allowed participants to gain skills to in everyday practice. A. Krebs (partner, King, Krebs & Jurgens, address everyday diversity issues in their The first panel discussion, “Enhancing P.L.L.C., New Orleans) and Scott J. Spivey offices and in their practices. Highly cre- Professionalism and Our Practices Through (general counsel, Hammerman & Gainer, dentialed facilitators, Hon. Wendell Griffen Acknowledgment of Our Differences,” fea- Inc., Lutcher), with moderators Danatus N. (Ret.) and Manny Brandt, led exercises tured Louisiana practitioners with diverse King (owner, Danatus N. King & Associ- during a three-hour workshop to improve backgrounds addressing hot-button topics ates, New Orleans) and Charles F. Seemann participants’ cultural awareness and skills of race, gender, religion, sexual orientation III (senior counsel, Proskauer Rose, L.L.P., in cross-cultural situations. Participants and disability that impact the professional- New Orleans). learned the difference between diversity ism of attorneys, office dynamics, and the The second panel discussion, “Smart and inclusion, gained an understanding ability to attract and keep clients. The panel- Business Managers Are About Diversity,” of the diversity challenge (i.e., that differ- ists offered practical suggestions regarding featured in-house counsel and executive ences matter, especially those that do not how to address these important issues in managers from major Louisiana and inter- national businesses discussing the powerful impact of diversity in their organizations, how the lack of diversity initiatives can impact an organization’s productivity and financial health, and how it impacts their outside counsel hiring decisions. They also addressed the benefits of diversity committees and diversity strategic plans within major businesses. Panelists were Trudy R. Bennette (associate counsel and vice president, Whitney National Bank, Houston, Texas), Dominique R. Bright- Wheeler (vice president and in-house counsel, Capital One Bank, New Orleans), Matthew T. Butler (senior vice president, The Shaw Group) and Robert Johnson (managing counsel, McDonald’s Corpo- ration in Illinois), with moderator Judy More than 170 people attended the Diversity Conclave, with the theme “The Professional Workplace: Perry Martinez (assistant general counsel Diagnosing the Issues and Finding the Cure.” Photo by Adrejia Boutte.
388 April / May 2010 Thanks to Our Sponsors! The Louisiana State Bar Association thanks its generous sponsors of the 3rd annual Conclave on Diversity in the Legal Profession.
Gold Federal Bar Association, New Orleans Chapter Irwin Fritchie Urquhart & Moore, L.L.C. (Brian P. Quirk, New Orleans) Jones, Walker, Waechter, Poitevent, Carrère & Denègre, L.L.P. (William H. Presenting the Diversity Conclave panel discussion, “Enhancing Professionalism and Our Practices Hines, New Orleans) Through Acknowledgment of Our Differences,” were, from left, Scott J. Spivey, moderator Charles Kean, Miller, Hawthorne, D’Armond, F. Seemann III, Patricia A. Krebs, moderator Danatus N. King, Susan K. Jones, Jeremy M. Bolton McCowan & Jarman, L.L.P. (Gary A. and Cesar R. Burgos. Photo by Adrejia Boutte. Bezet, Baton Rouge) litigation, Northrop Grumman Corporation, Association; and Shreveport-Bossier Black King, Krebs & Jurgens, P.L.L.C. Avondale). Lawyers Association. (Patricia A. Krebs, New Orleans) The audience fully engaged the panels McCranie, Sistrunk, Anzelmo, Hardy in enriching discussions that addressed Fourth Annual Conclave & McDaniel, pc (Isidro René DeRojas, practical issues facing lawyers and judges Planning Underway Metairie) every day. They seemed particularly Planning for the fourth Annual Conclave interested in gaining information from on Diversity in the Legal Profession has al- Silver Bolton, who is hearing impaired and who ready begun. The next conclave is scheduled Adams and Reese, L.L.P. (Deborah presented a wealth of information regard- for March 18, 2011, at the New Orleans B. Rouen, New Orleans) ing his experiences in the profession with Marriott at the Convention Center. Blue Williams, L.L.P. (Mary K. Pey- this challenge. Additionally, Mini Diversity Conclaves ton, Metairie) (half-day programs) are scheduled or are Louisiana Association of Defense Collaborating Organizations being scheduled in Lafayette (Aug. 25); Counsel The event was hosted in cooperation Baton Rouge (Fall date, TBA); Monroe Porteous, Hainkel & Johnson, L.L.P. with 20 other organizations this year, (Fall date, TBA); and Shreveport (TBA). (James S. Thompson, New Orleans) topping seven co-hosts in 2008 and 12 co- Successful mini conclaves have already Stone Pigman Walther Wittmann, hosts in 2009. Co-hosting the event were been conducted in Baton Rouge, Lafayette L.L.C. (Wayne J. Lee, New Orleans) Louisiana Supreme Court; 4th Judicial and Lake Charles. Whitehead Law Firm (Jack K. White- District Court Bar Association; 18th Judicial Anyone interested in assisting with head, Jr., Baton Rouge) District Court Bar Association; American planning future programs or offering sug- Inn of Court of Acadiana; Association for gestions should contact LSBA Director Bronze Women Attorneys, New Orleans Chapter; of Member Outreach and Diversity Kelly Gordon Arata McCollam Duplantis Baton Rouge Bar Association; Federal McNeil Legier, call (504)619-0129 or e- & Eagan, L.L.P. (Demarcus J. Gordon, Bar Association, New Orleans Chapter; mail [email protected]. New Orleans) Greater Baton Rouge Louis A. Martinet Liskow & Lewis, L.L.C. (Dana M. Legal Society, Inc.; Greater New Orleans Douglas, New Orleans) Louis A. Martinet Legal Society, Inc.; His- McGlinchey Stafford, P.L.L.C. (Larry panic Lawyers Association of Louisiana; Feldman, Jr., New Orleans) Jefferson (Parish) Bar Association; Louis Phelps Dunbar, L.L.P. (Kim M. Boyle, A. Martinet Legal Society, Inc., Greater New Orleans) Alexandria Chapter; Louis A. Martinet Proskauer Rose, L.L.P. (Howard Legal Society, Inc., Greater Lafayette Shapiro, New Orleans) Chapter; Louisiana Asian Pacific American Bar Association; Louisiana Association of (Individual lawyers are designated Defense Counsel; New Orleans Bar As- by the law firm as responsible for sociation; Northeast Louisiana Louis A. Diversity Conclave Chair Chauntis T. Jenkins, left, advertising content.) Martinet Legal Society, Inc.; Southwest and LSBA Director of Member Outreach and Diver- Louisiana Bar Association; Shreveport Bar sity Kelly McNeil Legier. Photo by Adrejia Boutte.
Louisiana Bar Journal Vol. 57, No. 6 389 Association Actions Midyear meeting... Awards
LSBA Recognizes 70-, 60-, 50-Year Members at Midyear Meeting Reception
Louisiana State Bar Association (LSBA) members who have reached half a century and beyond in their professional careers were honored during the LSBA’s Midyear Meeting in January. During a special reception, 192 Bar members were recognized for their years of service to the legal profession. Of the 192 recognized, 60 honorees attended in person to receive their certificates and pose for photographs with LSBA President Kim M. Boyle and Louisiana Supreme Court Associate Justice Bernette Joshua Johnson.
60-Year Members These LSBA members were admitted to the Bar in 1950. They are listed with their law schools. Milton F. Anton New Orleans...... Tulane Salvador Anzelmo Metairie...... Loyola Jack C. Benjamin, Sr. New Orleans...... Tulane Fred G. Benton, Jr. Baton Rouge...... LSU Harney S. Bogan, Jr. New Orleans...... LSU Joseph R. Bossetta Mandeville...... Loyola Frank S. Bruno New Orleans...... Tulane Jack C. Caldwell Baton Rouge...... LSU Walter Carroll, Jr. New Orleans...... Tulane William Kearney Christovich New Orleans...... Tulane Hon. Philip C. Ciaccio New Orleans...... Tulane Sam B. Cobb, Jr. New Orleans...... LSU Hon. Luther F. Cole Baton Rouge...... LSU The 70-year Louisiana State Bar Association members attending the Hon. Leland H. Coltharp, Jr. De Ridder...... LSU reception were, from left, Jackson B. Davis of Shreveport and Abe B. Hon. George C. Connolly, Jr. New Orleans...... Loyola Kupperman of New Orleans. Photo by J.F. Bergeron Studio and Gallery. Robert J. Conrad, Sr. New Orleans...... Loyola Arline L. Coopersmith New Orleans.New York Univ. 70-Year Members Louis D. Curet Baton Rouge...... LSU These LSBA members were admitted to the Bar in 1940. Elmer D. Davies, Jr. New Orleans...... Tulane They are listed with their law schools. Warren C. deBrueys Covington...... Tulane William Joel Blass Gulfport, MS...... LSU Harvey P. Delaune Bossier City...... LSU Fernando J. Cuquet, Jr. Wayside, MS...... Tulane Hon. Louis A. DiRosa Metairie...... Loyola Herschel M. Downs Shreveport...... LSU William James Curry, Jr. Metairie...... Loyola Hon. Edward B. Dufreche Springfield...... LSU Jackson B. Davis Shreveport...... LSU George Farrell III New Orleans...... Tulane Dorothy P. Deloteus New Orleans...... Tulane Walter R. Fitzpatrick, Jr. Trophy Club, TX...... Loyola Hon. Isom J. Guillory, Jr. Eunice...... LSU Kennedy J. Gilly St. Louis, MO...... Tulane Yvette S. Jackson New Orleans...... Tulane Lovell Eugene Hayden III Monroe...... LSU Abe B. Kupperman New Orleans...... Tulane Milton Joseph C. Hero New Orleans...... Tulane Sabin P. Landry, Jr. New Orleans...... Tulane Henry G. Hobbs Minden...... LSU Hon. Floyd W. Newlin New Orleans...... Tulane E. Bradford Holbrook, Jr. Durham, NC...... Tulane F.H. O’Neal New Orleans...... LSU Richard K. Ingolia Metairie...... Tulane Edward J. Villere New Orleans...... Loyola Joseph J. Jacobs New Orleans...... Tulane
390 April / May 2010 Among the 60-year Louisiana State Bar Association members attending the reception were, seated from left, Henry C. Sevier, Jr., George W. Pugh, Hon. George C. Connolly, Jr., Hon. Bernard N. Marcantel and Frank S. Bruno. Standing from left, Jack C. Caldwell, Robert L. Kleinpeter, Julian J. Rodrigue, Louis D. Curet and Salvador Anzelmo. Photo by J.F. Bergeron Studio and Gallery. Ingard O. Johannesen Metairie...... Tulane William J. Wise, Jr. Lake Charles...... LSU Thomas F. Jordan New Orleans...... Yale Monty M. Wyche Bossier City...... LSU Harold B. Judell New Orleans...... Tulane Donald J. Zadeck New Orleans...... LSU Robert L. Kleinpeter Baton Rouge...... LSU Alfred Smith Landry New Iberia...... Tulane 50-Year Members Elton C. Lasseigne McAllen, TX...... Tulane These LSBA members were admitted to the Bar in 1960. Glynn A. Long Donaldsonville...... LSU They are listed with their law schools. William M. Lucas, Jr. New Orleans...... Tulane Stuart Douglas Lunn Shreveport...... LSU Hon. Douglas A. Allen Roseland...... Tulane Hon. Bernard N. Marcantel Jennings...... Tulane James H. Allen Memphis, TN...... Tulane Emile E. Martin III Belle Chasse...... LSU Hon. Richard D. Alvarez Metairie...... Tulane Warren L. Mengis Baton Rouge...... LSU James S. Arceneaux Metairie...... Loyola J. Mart Mitchell Houston, TX...... Baylor Richard J. Arnold New Orleans...... Loyola Paul A. Monju New Orleans...... Loyola William F. Baldwin Shreveport...... Tulane Laurice Dean Napper Ruston...... LSU Carl W. Bauer Lafayette...... LSU Joseph W. Nelkin Baltimore, MD...... Tulane Roy L. Beard Shreveport...... Loyola David R. Normann Metairie...... Tulane William H. Beck, Jr. White Sulphur Springs, WV...... Tulane James P. Norris, Jr. Monroe...... LSU Andrew J. Bennett, Jr. Baton Rouge...... LSU James D. O’Brien Fort Washington, MD...... LSU Joel L. Borrello New Orleans...... Loyola W. Dean Pfeiffer New Orleans...... Tulane Frederick R. Bott New Orleans...... Tulane Hon. Peter C. Piccione, Sr. Lafayette...... Tulane Armand J. Brinkhaus Sunset...... Loyola Hon. Rosemary T. Pillow Baton Rouge...... Tulane Philip Schoen Brooks, Sr. New Orleans...... Loyola Russell M. Porter Paris, France...... Tulane Bernard E. Burk Plantation, FL...... Tulane Michel O. Provosty Mandeville...... Tulane Peter G. Burke New Orleans...... Tulane George W. Pugh Baton Rouge...... LSU Lawrence K. Burleigh, Sr. Lafayette...... Loyola William B. Ragland, Jr. Lake Providence...... Tulane David L. Campbell Folsom...... Tulane Joseph M. Rault, Jr. Metairie...... Tulane Carlos A. Chavier New Orleans...... Tulane Charles W. Richard Lake Charles...... LSU RonaldAlphonse Chevis Metairie...... Loyola James D. Rives, Jr. Covington...... Tulane James W. Coburn New Orleans...... Loyola Julian J. Rodrigue Covington...... LSU PaytonR. Covington Lake Charles...... LSU Henry C. Sevier, Jr. Covington...... LSU Robert C. Cudd III New Orleans...... Tulane William S. Stone New Orleans...... Tulane Hon. W. Peyton Cunningham, Jr. Natchitoches...... LSU John Taylor Baton Rouge...... LSU Justin J. David Shreveport.... Univ. of Miss. Wilmer J. Thomas, Jr. Salisbury, CT...... Tulane Hon. W. Eugene Davis Lafayette...... Tulane Allen J. Tillery Metairie...... LSU Richard A. Deas Metairie...... Loyola George H. Van Geffen Metairie...... Loyola Kenneth J. deBlanc Lake Charles...... LSU Bennett J. Voorhies, Jr. Lafayette...... Tulane Continued next page
Louisiana Bar Journal Vol. 57, No. 6 391 Among the 50-year Louisiana State Bar Association members attending the reception were, seated from left, Ross Scaccia, William M. Stevenson, Hon. W. Eugene Davis, George Griffing, Hon. Richard D. Alvarez, James W. Hailey, Jr., John Marshall Page, Jr., Charles K. Reasonover and Roy L. Beard. Standing from left, William J. Oberhelman, Jr., Philip Schoen Brooks, Sr., Gus C. Marcotte, Hon. Frans J. Labranche, Jr., Raoul P. Seré, Robert J. Landry, James C. Hanchey, Donald S. Zuber, Jack M. Webb, Joseph E. Friend, Ernest L. O’Bannon, Thomas E. Schafer III, Adolph J. Levy, Roy H. Maughan, Sr., Kenneth J. deBlanc, Hon. Lewis Ray Sleeth, Jared Y. Evans and Leroy J. Falgout. Photo by J.F. Bergeron Studio and Gallery. Veil David Devillier Baton Rouge...... LSU Robert Louis Menard Metairie...... Loyola Billy R. Dickerson New Orleans....Univ. of Texas Hon. Andrew G.T. Moore II Wilmington, DE...... Tulane Theodore G. Dimitry Houston, TX...... Tulane Donald R. Mullins New Orleans...... Tulane Edgar H. Drum New Orleans...... Tulane Max Nathan, Jr. New Orleans...... Tulane Frank M. Edwards, Jr. Amite...... LSU Ernest Lynwood O’Bannon New Orleans...... Tulane Jared Y. Evans Shreveport...... LSU William J. Oberhelman, Jr. New Orleans...... Loyola Leroy J. Falgout Kenner...... Loyola John D. O’Connell Metairie...... Loyola Kenneth G. Fink, Jr. Zwolle...... LSU Edward W. O’Friel Lafayette...... Loyola John R. Frenkel Plantation, FL...... Loyola C. Michael Osborne New Orleans...... Tulane Joseph E. Friend New Orleans...... Tulane Lamar E. Ozley, Jr. New Orleans...... LSU James K. Gaudet Gretna...... Loyola John Marshall Page, Jr. New Orleans...... Tulane Juan B. Gerala Huntsville, AL...... Tulane J. Carl Parkerson West Monroe...... LSU Hugh M. Glenn, Jr. New Orleans...... Tulane Billy R. Pesnell Shreveport.New York Univ. John B. Gooch, Jr. New Orleans...... Tulane Allen B. Pierson, Jr. Ponchatoula...... LSU George Griffing Pineville...... LSU Richard H. Pipes Monroe...... LSU Hon. Carl A. Guidry Baton Rouge...... LSU John Dale Powers Baton Rouge...... LSU James W. Hailey, Jr. Metairie...... Tulane Hon. Charley Quienalty Lake Charles...... LSU James C. Hanchey Lake Charles...... LSU Charles K. Reasonover Metairie...... Tulane David J. Harris Atlanta, GA...... Tulane James H. Roan, Jr. Metairie...... Tulane Ike F. Hawkins, Jr. Shreveport...... Tulane SidneyF. Rothschild Portland, OR...... Tulane Gerald I. Hebert Lafayette...... Loyola Warren D. Rush Lafayette...... LSU Fredrick J. Herzog New Orleans...... Loyola Ross Scaccia Santa Rosa Beach, FL...... Tulane William T. Iglesias Jacksonville, FL...... Loyola Thomas E. Schafer III New Orleans...... Loyola Hon. A. Clayton James, Jr. Franklinton...... LSU Leslie J. Schiff Opelousas...... LSU Richard M. Janopaul New Orleans...... Tulane James W. Schwing, Sr. New Iberia...... Loyola Elizabeth Spink Karmazin Charlotte, NC...... Tulane John S. Sciambra Baton Rouge...... Loyola Robert F. Kennon, Jr. Baton Rouge...... LSU Raoul P. Seré New Orleans...... Loyola William R. Klein New Orleans...... Tulane Eustace J.J. Shearman III New Orleans...... Loyola Hon. William F. Kline, Jr. Clinton...... LSU Hon. Lewis Ray Sleeth Comanche, OK...... LSU Hon. Frans J. Labranche, Jr. Mandeville...... Loyola Hon. A. Gaynor Soileau Ville Platte...... LSU Robert J. Landry New Orleans...... Loyola William M. Stevenson New Orleans...... Tulane Robert F. LeBlanc Tulsa, OK...... LSU Lawson L. Swearingen, Jr. Hammond...... Tulane Robert E. Lee, Sr. Marrero...... Tulane Alexander R. Tamke New Orleans...... Tulane Marvin R. LeGrande Parkersburg, WV...... Loyola Frank H. Taylor New Orleans...... Tulane Adolph J. Levy New Orleans...... Tulane Hon. Charles A. Traylor II West Monroe...... LSU Henri Loridans Chapala Jalisco, Mexico...... Tulane Terry O. Trowbridge Tegernsee, Germany...... Tulane John M. Mamoulides Metairie...... Tulane Ralph T. Troy Wilmington, NC...... Tulane Gus C. Marcotte Shreveport...... Loyola Robert W. Troyer Ponchatoula...... Loyola Ward N. Marianos Plymouth, MI...... Loyola Leonard Alvin Washofsky Metairie...... Tulane Roy H. Maughan, Sr. Baton Rouge...... LSU P. Bruce Waters Bowman, GA...... Tulane Richard K. Mazeau Longboat Key, FL...... Loyola Jack M. Webb Chalmette...... Tulane L. Howard McCurdy, Jr. New Orleans...... Tulane James E. Young, Jr. North Little Rock, AR...... Southern Charles S. McKendrick, Jr. Franklin, TN...... Tulane Donald S. Zuber Baton Rouge...... LSU
392 April / May 2010 Midyear Meeting Schiff Receives Louisiana State Bar Association’s Professionalism Award Opelousas attorney Leslie J. Schiff the Lawyers in Transition Committee received the Louisiana State Bar As- and the Subcommittee to Advise Law sociation (LSBA) Committee on the Students on Bar Admissions. Profession’s Professionalism Award Schiff served as the president of during the LSBA’s Midyear Meeting the St. Landry Parish Bar Association in New Orleans Jan. 23. in 1969-70 and as vice chair of the Schiff, who served as LSBA presi- Louisiana Bar Foundation in 1986-87. dent in 1989-90, received the award for He has served on the Louisiana Trial his outstanding leadership, guidance and Lawyers Association/Louisiana Asso- assistance in the creation and implemen- ciation for Justice’s Board of Governors tation of the law school professionalism since 1979, also holding the positions orientation programs and the LSBA’s of secretary in 1977-78, president-elect character and fitness programs and for in 1978-79, president in 1979-80 and as his lifelong dedication to the bench, bar a member of various substantive and and profession. Barry H. Grodsky, chair legislative committees. He also serves of the Committee on the Profession, on the Association of Professional Re- presented the award. Opelousas attorney Leslie J. Schiff, left, received sponsibility Lawyers. The LSBA’s Committee on the Pro- the Louisiana State Bar Association Committee He is a frequent lecturer on ethics on the Profession’s Professionalism Award on fession annually presents law school Jan. 23. Schiff received the award from Barry issues at continuing legal education professionalism programs to first-year H. Grodsky, committee chair. Photo by Louisiana seminars and serves as a judge for Loui- law students at the state’s four law State Bar Association. siana State University Paul M. Hebert schools to instill the importance of Law Center moot court competitions. professionalism as early as possible the Task Force on Advertising, the He also is a member of the LSU Paul M. in the students’ legal studies. The Bar Long-Range Planning Committee, the Hebert Law Center’s Board of Trustees Admissions Education Initiative (the Law Reform Committee, the Commit- and the Chancellor’s Council. character and fitness component) is tee on Rules of Professional Conduct, designed to help focus future lawyers on the absolute importance of guarding Midyear Meeting their ethical and professional character and reputation. Schiff, a 1954 graduate of Opelousas High School, received his law degree in 1960 from Louisiana State University Law School, where he was a contributor to the Louisiana Law Review. He has a general practice of law in Opelousas (The Schiff Law Corporation), with concentration on lawyer ethics, gov- ernmental ethics and judicial ethics issues. He has served the legal profession in various local and state capacities throughout his career. His service to the LSBA is particularly extensive. He served on the LSBA Board of Governors Victoria McCardell, second from left, a social studies teacher at Mount Carmel Academy in New Orleans, was the 2010 recipient of the Louisiana Center for Law and Civic Education (LCLCE)/ from 1977-79 and again from 1981-83 Louisiana State Bar Association (LSBA) President’s Award for achievements in teaching civics and and as president-elect in 1988-89, presi- law-related education. She received her award from LCLCE Past President Val P. Exnicios, far right, dent in 1989-90 and past president in at the LSBA Midyear Meeting in January. In addition to receiving a plaque, McCardell received funds 1990-91. He also has served on several to purchase law-related materials for her classroom. Also attending the event were LSBA President Kim M. Boyle, left, and Louisiana Supreme Court Associate Justice Bernette Joshua Johnson. Mc- LSBA committees, including the Medi- Cardell received a BA degree in history, summa cum laude, in 2006 from Loyola University in New cal-Legal Interprofessional Committee, Orleans. Photo by J.F. Bergeron Studio and Gallery.
Louisiana Bar Journal Vol. 57, No. 6 393 Association Actions Nominations Sought ABA Award Recipient Justice Bernette Joshua Johnson for Members of Honored at LSBA Reception Leadership LSBA 2010-11 Class The Louisiana State Bar Association (LSBA) and President Kim M. Boyle Louisiana State Bar Association hosted a Feb. 23 reception at Arnaud’s (LSBA) President-Elect Michael A. Pat- Restaurant in New Orleans to honor terson is seeking nominations for mem- Louisiana Supreme Court Associate bers of the Leadership LSBA 2010-11 Justice Bernette Joshua Johnson, a 2010 Class. Deadline for return of nominations recipient of the American Bar Associa- is Tuesday, June 15. tion Commission on Racial and Ethnic This program was created in 2002- Diversity in the Profession’s Spirit of 03 during the term of LSBA President Excellence Award. Justice Johnson re- Larry Feldman, Jr. The program provides ceived the ABA award on Feb. 6 for her exposure to how the LSBA functions as unwavering commitment to enhancing well as the pressing issues that face the diversity in the legal profession. At the association and the legal profession. It Feb. 23 reception, Boyle presented Justice also provides participants with general in- Johnson with a resolution from the LSBA formation on responsibilities of volunteer Board of Governors, highlighting her leaders. Through at least one class project, career milestones and commemorating the program strives to further develop her achievements. Louisiana State Bar Association President Kim young attorneys’ leadership skills and Justice Johnson epitomizes community M. Boyle, left, presented a Board of Governors to provide them with opportunities for resolution to Louisiana Supreme Court Associate statewide networking. (Previous class service and has been committed to helping Justice Bernette Joshua Johnson during a Feb. the disadvantaged from her early days as a 23 reception in Justice Johnson’s honor. Justice projects have included a high school art community organizer for the National As- Johnson is a 2010 recipient of the American contest, a “Coming of Age” brochure for sociation for the Advancement of Colored Bar Association Commission on Racial and high school seniors and a networking Ethnic Diversity in the Profession’s Spirit of event for first-time attendees at the Annual People Legal Defense and Educational Excellence Award. Photo by Louisiana State Bar Fund. As a justice for the highest court Association. Meeting.) Patterson would like to appoint in Louisiana, she has been a champion 10 members to the class this year. for increasing diversity in the profession. Orleans Parish Civil District Court bench When considering candidates for Her courage and determination serve as and, subsequently, as the first African- nomination, be certain the candidates inspiration for everyone committed to a American woman elected to the Louisiana have the time and ability to commit to the more diverse profession. Supreme Court. completion of the class requirements. By As an African-American woman from Justice Johnson’s commitment to en- conclusion of FY 2010-11 (which ends a working-class family, Justice John- suring diversity in the legal profession was on June 10, 2011), participants will be son has overcome substantial barriers made early on when, as a newly elected required to: throughout her career. She navigated the judge, she resolved to hire law clerks from ► attend one meeting of the Board then-segregated school system of New diverse backgrounds. Her commitment to of Governors; Orleans, graduating as her high school’s diversity continued through her work as ► attend one meeting of the House valedictorian. She attended Spelman co-chair of the Louisiana State Bar As- of Delegates; College in Atlanta, Ga., on a full aca- sociation’s Task Force on Diversity in the ► attend one meeting of the Young demic scholarship before attending law Profession, where she focused on ensuring Lawyers Section Council; school at Louisiana State University. She retention of diverse lawyers. ► attend one Budget Committee was one of only two African-American She is the recipient of countless meeting; students in her first-year class at LSU. awards, including the Margaret Brent ► attend one meeting of the Access Post-graduation, she became a manag- Women Lawyers of Achievement Award to Justice Committee; ing lawyer with the New Orleans Legal from the ABA Commission on Women in ► attend one meeting of an LSBA Assistance Corp., where she delivered the Profession, the Distinguished Jurist committee of their choice; legal services to more than 3,000 clients Award from the Louisiana Bar Founda- ► work with your class to develop from socio‑economically deprived com- tion, the National Nobel Woman Award and implement at least one class project munities. Justice Johnson has been a role of the Organization of Black Elected Leg- with the help of staff and other young model and a trailblazer in other ways, islative Women and the Medal of Honor leaders; and serving as the first elected woman on the from the City of New Orleans. Continued next page
394 April / May 2010 Leadership LSBA Legal Specialization Available in Bankruptcy Law Continued from page 394 The Louisiana Board of Legal Special- the testing agency. ization (LBLS) is accepting applications Regarding applications for business ► commit to serve on an LSBA com- for 2011 certification in business bank- bankruptcy law and consumer bankruptcy mittee for 2011-12. ruptcy law and consumer bankruptcy law law certification, although the written At the conclusion of the year, class through September 2010. test(s) is administered by the American members who have completed all require- In accordance with the Plan of Legal Board of Certification, attorneys should ments will be recognized at the LSBA Specialization, any Louisiana State Bar apply for approval of the LBLS simulta- Annual Meeting. Association member who has been en- neously with the testing agency in order The first class event will be an orien- gaged in the practice of law on a full-time to avoid delay of board certification by tation on Thursday, Aug. 19, and Friday, basis for a minimum of five years may ap- the LBLS. Information concerning the Aug. 20. ply for certification. The five-year practice American Board of Certification will be LSBA members should send names requirement must be met for the period provided with the application form(s). of nominees (in order to compile the best ending Dec. 31, 2010. A further require- To apply for certification, complete possible class with diverse representation, ment is that each year a minimum of 35 and mail the form below. For more in- members are encouraged to submit more percent of the attorney’s practice must be formation, go to the Louisiana Board of than one nominee), along with biographi- devoted to the area of certification sought. Legal Specialization’s Web site at www. cal information (brief biographical sketch, For bankruptcy law, the CLE is regulated lascmcle.org/specialization. CV, résumé, etc.), no later than Tuesday, by the American Board of Certification, June 15, to: Danielle Boveland, Executive Assistant, Louisiana State Bar Associa- Legal Specialization Application tion, 601 St. Charles Ave., New Orleans, Applications for business bankruptcy law and consumer bankruptcy law will be LA 70130-3404; fax (504)566-0930; or accepted through September 2010. To receive an application, complete the following. e-mail [email protected]. (Please print or type.) Nomination forms are available on- line at: www.lsba.org/2007documents/ Name ______LeadershipSurvey.pdf. Address______City / State / Zip______Please indicate area of certification desired______
Mail or e-mail to: Megan Landry, Executive Director Louisiana Board of Legal Specialization 601 St. Charles Ave., New Orleans, LA 70130-3404 Or e-mail: [email protected].
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 Vol. 57, No. 6 395
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396 April / May 2010 Lawyers GiveBack Crystal Gavel Award Winners
Louisiana State Bar Association instructor with the YMCA Adult Literacy preparing for a career in law as a middle members throughout the state give back to Program. He was paired with an older or high school student by making good their communities in many ways and for a gentleman and worked with his student grades and smart choices. Under Alona’s variety of reasons. Some take on pro bono for more than a year to help him achieve leadership, about 500 students have par- cases, some volunteer to raise money for proficiency in reading, writing and problem ticipated in the program,” said Kelly T. disease cures, some build houses and offer solving. “Mickey was particularly drawn Scalise, an attorney in the New Orleans nourishment for the needy — and most to this volunteer program as a vehicle office of Liskow & Lewis, P.L.C. never seek public recognition for their to enlighten and empower a single indi- contributions. The Louisiana Bar Journal vidual,” said fellow Lowe, Stein attorney Desiree Duhon Dyess, an attorney wants to acknowledge the work of these Alicia M. Bendana. with the Dyess Law Firm in Natchitoches, outstanding community servants. If you received the award for her involvement in know someone who should be recognized, Kathleen Richard Callaghan, a staff several service organizations in Natchi- contact LSBA Publications Coordinator attorney with the Louisiana Department toches, including her work as a charter Darlene M. LaBranche, e-mail of Health & Hospitals in Baton Rouge, member and president of Court Appointed [email protected] or call (504)619- received the award for her years of service Special Advocates for Children (CASA) 0112 or (800)421-5722, ext. 112. to charitable causes and civic activities in of Natchitoches and as a board member Baton Rouge. As a survivor of two separate of Domestic Violence Ended (DOVE). In 2001, the Louisiana State Bar As- violent attacks, she has an intense com- “Desiree has made a magnificent impact sociation (LSBA) instituted the Crystal mitment to personal safety causes. Since on the community where she lives and Gavel Awards to recognize outstanding 1999, she has presented personal safety works,” said Dayna O’Con of CASA of lawyers and judges who have served seminars at no charge to civic and social Central Louisiana, Inc. their local communities in any number groups, discussing how to avoid becoming of ways — aiding the administration of a victim of violent crime. She coordinated Melanie Sue Fields, an assistant district justice; assisting groups or individuals a series of seminars on women’s issues attorney practicing juvenile law for the 19th on a volunteer basis in a non-legal capac- with the Capital Area YMCA, including Judicial District Court in Baton Rouge, ity; educating the public and/or students classes on personal safety, self-defense, received the award for her commitment about legal matters; providing pro bono domestic violence, cyber-crime, and club to educating students about legal matters, legal services in a matter of a significant and date rape drugs. “Kathleen’s continu- including leading law-related presentations nature or in a significant number of cases; ing efforts to improve our community for elementary and high school students providing pro bono legal services in a often go unheralded. Yet she perseveres in with the Louisiana Center for Law and way that significantly changed the life of working to provide a voice for those who Civic Education and being a driving force one person or group; or, working with the have no voice and to provide guidance behind the development of Teen Court in court system, making it more welcoming, for those who need a strong mentor,” said East Baton Rouge. “It is Melanie’s gentle inviting and understandable for jurors, John A. Broussard, a statewide systems spirit and desire to improve her community witnesses or victims of crime. analyst with the Louisiana Division of that serves as the impetus for the countless In 2009, 11 Crystal Gavel Awards Administration. hours she volunteers to impact Louisiana’s were presented to Bar members across children both in schools and through the the state. Read on for brief profiles of Alona R. Croteau, an attorney with the justice system,” said Hon. Karen Wells these outstanding Bar members. To Gray Casualty & Surety Co. in Metairie, Roby, U.S. magistrate judge for the Eastern be truly inspired, read the full profiles received the award for her work as chair District of Louisiana in New Orleans. online at www.lsba.org/2007InsideLSBA/ of the Choose Law Committee of the New CrystalGavelAwards.asp. Orleans Bar Association Young Lawyers Tracey E. Flemings, a judge in Orleans Section. The Choose Law program was de- Parish Juvenile Court, formerly with the Michael R. Allweiss, a partner in the veloped by the American Bar Association New Orleans office of Phelps Dunbar, New Orleans firm of Lowe, Stein, Hoff- to introduce the legal profession to minority L.L.P., received the award for her volun- man, Allweiss & Hauver, L.L.P, received students in middle and high school. “[Stu- teerism, dedication to mentoring youth the award for his volunteerism as an dents] are counseled that they must begin and pro bono work. Following Hurricane
Louisiana Bar Journal Vol. 57, No. 6 397 Katrina, she volunteered for the Young Hon. Lonny A. Myles, a Zachary City of the Louisiana Family Recovery Corps, Leadership Council’s Recreate New Court judge and an attorney with Myles, which addressed the needs of victims of Orleans program. She became a teach- Cook & Day, received the award for his hurricanes Katrina and Rita. “There are ing assistant with the Self Employment pro bono legal services toward the found- few civic organizations in our city that Initiative Project, assisting recipients of ing of the Zachary Community School Ralph has not positively impacted by his Aid to Families with Dependent Children District. He spearheaded the effort, per- long-term commitment to make our city in developing marketing and financial formed legal research on the founding of better for the disadvantaged,” said Ann plans for prospective small businesses. school districts, helped guide community G. Scarle, executive director of the Baton She provided pro bono legal work for the leaders through the process, and helped Rouge Bar Association. New Orleans Pro Bono Project’s Child in raise money to place the issue on the local Need of Care program. “Tracey is smart, ballot. “Throughout the creation of our Hon. Trudy M. White, a civil court energetic, personable and committed to independent school board, Lonny helped judge in the 19th Judicial District Court in making New Orleans a better place, for form committees, wrote letters to get the Baton Rouge, received the award for her her own family and for all who appreciate word out to people, and was always there efforts in the production of the historical New Orleans as much as she does,” said to support each and every task at hand,” documentary, “Baton Rouge’s Troubled LSBA President Kim M. Boyle. said Lynda Coleman, a past president of the Waters: Brooks Park and Beyond,” which Zachary Community School Board. aired on Louisiana Public Broadcasting Mary Terrell Joseph, an attorney with stations in 2007. She also worked for McGlinchey Stafford, P.L.L.C., in Baton Ralph J. Stephens, a director in the many years with the Miracle Believer’s Rouge, received the award for her volunteer Tax Services Group at Postlethwaite & Educational Tour, in which female inmates efforts in the Baton Rouge community, Netterville in Baton Rouge, received the tell their life stories to school students to among them, serving as Capital Area award for his years of community service educate them about life-altering decisions United Way campaign chair and board to Baton Rouge organizations. He was a and their consequences. chair, serving on the Alexis de Tocqueville founding member of several local chapters Community Chest Society Planned Giving of non-profit organizations, including Nominations for the next round of Committee, and serving on the Stop-Rape Boys Hope/Girls Hope of Baton Rouge, Crystal Gavel Awards are currently Crisis Center Task Force. “Mary’s signifi- Big Buddy, the Children’s Charter School, being accepted. The deadline to submit cant contributions over the past 40 years Hospice of Baton Rouge and the Greater a nomination is Wednesday, June 30. See to the Baton Rouge community set an Baton Rouge Community Clinic. He also page 400 for a nomination form. incredible standard by which to judge vol- is a founding member and past president unteerism and she continues to volunteer her leadership skills for the greater good,” said Ann G. Scarle, executive director of the Baton Rouge Bar Association. SandestinDestin, Golf & Florida Beach Resort Andrew R. Lee, a partner in the New Orleans office of Jones, Walker, Waechter, Poitevent, Carrère & Denègre, L.L.P., received the award for his work on the board of directors of the New Orleans Area June 9-11, 2010 Habitat for Humanity (NOAHH). During th his term as NOAHH vice president, he 69 Annual Meeting was granted special responsibility over Operation Home Delivery, Habitat Inter- June 9-11, 2010 national’s program to build new houses in the wake of Hurricane Katrina. He also This Year’s Highlights: led negotiations with the Orleans Parish ► Joint Summer School with the Louisiana ► First-time attendee reception School Board to obtain the old Joseph Kohn Judicial College ► CLE Great Debates Junior High School site, now the location ► House of Delegates & Board of Governors ► Jr. Jam Festival for kids! of NOAHH’s Musicians’ Village. “Andy meetings ► Law School alumni parties has exemplified the best in civic engage- ► Dinner featuring installation of officers & Networking breaks ment by working tirelessly to build houses Board of Governors ► ► Award presentations in partnership with people in need and ► Joint reception with Louisiana Judicial eliminate the scourge of poverty housing College ► Finale fireworks! from the New Orleans area,” said NOAHH For more information, visit www.lsba.org/AnnualMeeting Past President Dennis P. Kehoe.
398 April / May 2010 CommitteesFYI Crystal Gavel
In each issue of the Louisiana Bar have been unsung heroes and heroines made it more welcoming, inviting and Journal, the Louisiana State Bar Asso- in their communities by performing understandable for jurors, witnesses or ciation (LSBA) will highlight the work volunteer services out of duty, victims of crime. There is no limit to of its many committees. The work of Bar responsibility and professionalism. the number of awards presented each committees is a critical component in year, as the LSBA wants to recognize the overall successful operation of the Project Update all deserving individuals. Association. For this article, the LSBA In 2001, the LSBA instituted the Crys- In 2009, 11 Crystal Gavel is focusing on the work of the Crystal tal Gavel Awards to recognize outstand- Awards were presented. See brief Gavel Committee. ing lawyers and judges who have aided profiles of recipients on page 397. the administration of justice; assisted Full profiles are available online Crystal Gavel Committee groups or individuals on a volunteer at: www.lsba.org/2007InsideLSBA/ basis in a non-legal capacity; educated CrystalGavelAwards.asp. Chair: Richard L. Becker the public and/or students about legal Nominations for the next round of Mission: The mission is to solicit and matters; provided pro bono legal services awards are currently being accepted. review nominations for the Crystal Gavel in a matter of a significant nature or in a The deadline to submit a nomination is Awards and to make recommendations significant number of cases; provided pro Wednesday, June 30. See page 400 for to the Board of Governors for recipients bono legal services in a way that signifi- a nomination form. of these awards. The awards recognize cantly changed the life of one person or outstanding lawyers and judges who group; or, working with the court system,
Pro Bono Heroes: Providing Justice for All I have enjoyed accepting Pro Bono clients for many years. The Shreveport Bar’s pro bono program has done an outstanding job of formalizing and meeting the needs of people who cannot afford counsel, and those receiving service are appreciative.
– T. Haller Jackson III Bradley Murchison Kelly & Shea LLC ustice F ™ Providing J or A Access to Justice ll www.lsba.org/ATJ Louisiana State Bar Association
Louisiana Bar Journal Vol. 57, No. 6 399 Nomination Form Louisiana State Bar Association Crystal Gavel Award
Send to: Executive Assistant Louisiana State Bar Association 601 St. Charles Ave. New Orleans, LA 70130-3404
Date: ______, 20____
Name of Nominee:______Office Address:______Phone/Fax:______E-mail:______
Name of nominator (if different from the nominee; self-nominations are permitted) Name of Nominator:______Office Address:______Phone/Fax:______E-mail:______
Category of Nomination Awards are given in the following categories. Please check the appropriate area in which you are making the nomination:
____ Aiding the administration of justice. ____ Assisting groups or individuals on a volunteer basis in a non-legal capacity. ____ Educating the public and/or students about legal matters. ____ Providing pro bono legal services: in a matter of a significant nature; or in a significant number of cases; or in a way that significantly changed the life of one person or group. ____ Working in conjunction with the court system to make it more welcoming, inviting and understandable for jurors, wit- nesses or victims of crime.
Please attach a signed, written statement describing the work of the nominee in the category selected, along with a detailed description of why the nominee should be considered for the Crystal Gavel Award.
Recipients of the Crystal Gavel Award will be notified by the Louisiana State Bar Association and will be presented with the awards in their local communities.
Nomination deadline is Wednesday, June 30, 2010.
The Crystal Gavel Awards are presented to attorneys and judges who have performed public services out of a sense of duty, responsibility and professionalism. Because the LSBA wishes to acknowledge these unsung heroes and heroines in the communi- ties where they live and work, the nominator(s) is responsible for selecting a forum for the nominee to receive his/her award and for facilitating the event.
400 April / May 2010 Crossword Puzzle By Hal Odom, Jr. tHE hONEYCUTT BIOGRAPHY
1 2 3 4 5 6 7 ACROSS DOWN
1, 4 Four-term governor, subject 1 Northern ___, indecent ___ (8) of a sensational biography by 2 Meaure of electric power (7) 8 9 Leo Honeycutt (5,7) 3 No contest pleas (5) 8 Kneecap (7) 4 One Across’s first wife (6) 9 One Across’s second wife (5) 5 Early spelling of parish in 10 11 10 Pokes with a knife (5) which Monroe is located (7) 11 Unwanted sounds (6) 6 Washer cycle (5) 12 13 Only opponent to whom One 7 Underground waterway of
13 14 15 16 Across ever conceded an myth (4) election (6) 12 Agent for change (8) 17 15 Buzzword, once associated with 14 Survived (7) Hindu meditation (6) 16 ___ Park, noted South Korean 18 19 20 18 Moviemaking facility (6) businessman and donor to
21 20 Kind of military government (5) Four Down/One Across (7) 22 Should you type ___ two spaces 17 U.S. Attorney who successfully 22 23 after a period? (3,2) prosecuted One Across (6) 23 1980s-era primetime soap (7) 19 One Across’s 1971 GOP opponent, 24 Did the second part of Timothy 1979 winner against Lambert (5)
24 25 Leary’s catch phrase (5, 2) 20 Bob ___, One Across’s 1975 25 Corps législatif à Paris (5) Democratic opponent (5) 21 ___ Worth, home of One Across Answers on page 434. from 2002-04 (4) Alcohol and Drug Abuse Hotline Director William R. Leary 1(866)354-9334 Ste. 4-A, 5789 Hwy. 311, Houma, LA 70360 Area Committee Contact Phone Area Committee Contact Phone
Alexandria Stephen E. Everett...... (318)640-1824 Lake Charles Thomas M. Bergstedt...... (337)558-5032 .(318)443-6312 Nanette H. Cagney...... (337)437-3880
Baton Rouge Steven Adams...... (225)753-1365 Monroe Robert A. Lee.....(318)387-3872, (318)388-4472 .(225)924-1510 Nancy Carol Snow...... (318)366-1820 David E. Cooley...... (225)751-7927 .(225)753-3407 New Orleans Deborah Faust...... (504)304-1500 John A. Gutierrez...... (225)715-5438 Donald Massey...... (504)585-0290 .(225)744-3555 Dian Tooley...... (504)861-5682 .(504)831-1838 Houma Bill Leary...... (985)851-0611, (985)868-4826 Shreveport Michelle AndrePont ...... (318)347-8532 Lafayette Alfred “Smitty” Landry...... (337)364-5408, William Kendig, Jr...... (318)222-2772 .(337)364-7626 .(318)572-8260 (cell) Thomas E. Guilbeau...... (337)232-7240 Steve Thomas...... (318)872-6250 James Lambert...... (337)233-8695 .(337)235-1825
The Lawyers Assistance Program, Inc. provides confidential assistance with problems such as alcoholism, substance abuse, mental health issues, gambling and all other addictions.
Louisiana Bar Journal Vol. 57, No. 6 401 LAWYERS IN THE CLASSROOM JUDGES IN THE CLASSROOM
April 2010
To Members of the Louisiana State Bar Association:
The Louisiana Center for Law and Civic Education (LCLCE) is partnering with the Louisiana State Bar Association and the Louisiana District Judges Association to promote the Lawyers in the Classroom and Judges in the Classroom programs.
Our goal is to compile a pool of volunteer professionals from the legal community who are willing to go into classrooms and present on law related topics. Students will benefit from having members of the legal community share their practical and real world experiences.
The Lawyers in the Classroom and Judges in the Classroom programs have materials available on a wide variety of topics in the area of civics and law related instruction, appropriate for elementary, middle and high school levels. Please refer to the illustrative listing of the many topics/lessons that may be used to assist in classroom presentation; these 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 form. The LCLCE will attempt to match your schedule with a classroom in your area that has requested a presentation.
Law Day 2010 is coming up May 1st and we hope to assist many Louisiana classrooms with presentations through the Lawyers in the Classroom and Judges in the Classroom programs.
If you have any questions, please utilize the contact information found on the enrollment form included with this letter. We look forward to hearing from you.
Sincerely,
Hon. C. Wendell Manning Ms. Kim M. Boyle Hon. Madeleine M. Landrieu President, Louisiana Center President, Louisiana State President, Louisiana District For Law & Civic Education Bar Association Judges Association
™
402 April / May 2010 LAWYERS IN THE CLASSROOM LAWYERS IN THE CLASSROOM LAWYERSLAWYERSJUDGES IN ININ THE THETHE CLASSROOM CLASSROOMCLASSROOM JUDGES IN THE CLASSROOM JUDGESJUDGES ININ THETHE CLASSROOMCLASSROOM
™
Volunteer to Visit a Classroom in your Area! Volunteer to Visit a Classroom in your Area! Would you like to make a law-related presentation in a classroom in your area? PleaseVolunteerVolunteer feel free to toreferto VisitVisit to the attached aa ClassroomClassroom list of topics for inin presentation youryour Area!Area! ideas. Would you like to make a law-related presentation in a classroom in your area? WouldWouldPlease you you feel like like free to to make tomake refer a a law-related tolaw-related the attached presentation presentation list of topics in in a a forclassroom classroom presentation in in your your ideas. area? area? Name of Judge/Lawyer: PleasePlease feel feel free free to to refer refer to to the the attached attached list list of of topics topics for for presentation presentation ideas. ideas. Name of Judge/Lawyer: Address: NameName of of Judge/Lawyer: Judge/Lawyer: Address: City: Zip: Address:Address: City: Zip: Primary Email Address: City:City: Zip: Zip: Primary Email Address: Secondary Email Address: PrimaryPrimary Email Email Address: Address: Secondary Email Address: Phone: Best time to call: SecondarySecondary Email Email Address: Address: Phone: Best time to call: ExamplesPhone:Phone: of teachers’ requests: Best Best time time to to call: call: • I am going to review the three branches of government with my 5th graders the week of April 2, 2010. I would like a member Examples of teachers’ requests: of the legal community to address my class that week. ExamplesExamples• I amof of teachers’ teachers’going to reviewrequests: requests: the three branches of government with my 5th graders the week of April 2, 2010. I would like a member •• Iof Iwouldam amthe going goinglegal like to communityato Constitutionreview review the the to three threeaddressDay branches presentationbranches my class of of government governmentthatfor my week. second with with graders my my 5th 5th ongraders graders September the the week week 17, of2010. of April April 2, 2, 2010. 2010. I Iwould would like like a a member member ofof the the legal legal community community to to address address my my class class that that week. week. • • I havewould no like specific a Constitution topic in mindDay presentationbut would appreciate for my second the opportunity graders on to Septemberhave someone 17, 2010.from the legal community visit my •• middleI Iwould would schoollike like a a Constitution classroomConstitution the Day Day first presentation presentation week of October. for for my my second second graders graders on on September September 17, 17, 2010. 2010. • I have no specific topic in mind but would appreciate the opportunity to have someone from the legal community visit my •• Imiddle Ihave have no schoolno specific specific classroom topic topic in in themind mind first but but week would would of appreciateOctober. appreciate the the opportunity opportunity to to have have someone someone from from the the legal legal community community visit visit my my Specific topicmiddlemiddle you school school would classroom classroomlike to present: the the first first week week of of October. October. Specific topic you would like to present: Grade level preference: Elementary School Middle School High School SpecificSpecific topic topic you you would would like like to to present: present: Grade level preference: Elementary School Middle School High School Please indicate two or more days of week that work best for you: GradeGrade level level preference: preference: Elementary Elementary School School Middle Middle School School High High School School Please indicate two or more days of week that work best for you: Please indicate month/time of year that works best for you: PleasePlease indicate indicate two two or or more more days days of of week week that that work work best best for for you: you: Please indicate month/time of year that works best for you: As requests are received from educators across the state, Please indicate month/time of year that works best for you: Please indicate month/timeLCLCE will of contact year that lawyers works and/or best for judges you: in the appropriate area to discuss scheduling a school visit. As requests are received from educators across the state, LCLCE will contact lawyersAs requests and/or judgesare received in the fromappropriate educators area across to discuss the state, scheduling a school visit. For an illustrative list ofPlease the Asmany return requests topics to Kandisare and received lessonsShowalte from that r,educators LCLCE may be Program across used theto Coordinator assiststate, in classroom presentation LCLCE will contact lawyers and/or judges in the appropriate area to discuss scheduling a school visit. (availableEmail to: toLCLCE [email protected] will and contact attorneys lawyers upon and/or orrequest), Faxjudges to: in (504)528-9154go the to: appropriate http://www.lsba.org/LCLCE/Illustrative-List-of-Topics.pdf area toFor discuss additional scheduling information: a school (504)619-0141 visit. Please return to Kandis Showalter, LCLCE Program Coordinator Email to: [email protected] return return to orto Kandis FaxKandis to: Showalte (504)528-9154Showalter,r, LCLCE LCLCE Program Program For additional Coordinator Coordinator info rmation: (504)619-0141 EmailEmail to: to: [email protected] [email protected] or or Fax Fax to: to: (504)528-9154 (504)528-9154 For For additional additional info information:rmation: (504)619-0141 (504)619-0141
Louisiana Bar Journal Vol. 57, No. 6 403 Discipline Reports REPORTING DATEs 2/1/10 & 2/4/10
REPORT BY DISCIPLINARY COUNSEL
Public matters are reported to protect the public, inform the profession and deter misconduct. Reporting date Feb. 4, 2010.
Decisions and one day, with all but 30 days de- practice of law ordered by the court on ferred, subject to one-year supervised Nov. 20, 2009. JUDGMENT FINAL and Steven E. Adams, Baton Rouge, probation, with conditions, ordered by EFFECTIVE on Nov. 20, 2009. (2009-B-2246) Suspension of 90 days, the court on Jan. 8, 2010. JUDGMENT Robert E. Clark, Vidalia, (2009-B- fully deferred, subject to conditions FINAL and EFFECTIVE on Jan. 22, 1631) Suspended for two years ordered (consent), ordered by the court on Dec. 11, 2010. Gist: Failure to act with reasonable by the court on Dec. 1, 2009. JUDGMENT 2009. JUDGMENT FINAL and EFFEC- diligence in representing clients; failure to FINAL and EFFECTIVE on Dec. 15, TIVE on Dec. 11, 2009. Gist: Engaging communicate with clients; failure to return 2009. Gist: Possession and used marijuana; in a consensual sexual relationship with client files upon termination; and failure gifting marijuana to a friend; and having a client. to expedite litigation. marijuana, other illegal drugs and drug Jacob J. Amato, Jr., Gretna, (2010- Joseph M. Bruno, New Orleans, paraphernalia in his home. OB-0112) Permanent resignation (2009-OB-2227) Reinstated to the Krystal, from the practice of law in lieu of I like the white print on black back- discipline ordered by the court on Jan. ground. But I would like to see it with 27, 2010. JUDGMENT FINAL and ch r I s t o v I c h & Ke a r n e Y , l l p following changes: EFFECTIVE on Jan. 27, 2010. Gist: a t t o r n e Y s a t l a w Conduct prejudicial to the administration - Make the LLP smaller of justice; assisting a judge in violation - List E.Phelps Gay and Kevin R. Tully on EFENSE OF THICS OMPLAINTS AND HARGES of the Canons of Judicial Ethics; and D E C C the same line violating or attempting to violate the - Use smaller font for telephone number. Rules of Professional Conduct. h e l p s a Y e v I n u l l Y Deborah H. Baer, Kerrville, TX, e. p g K r. t (2009-B-1795) Suspended for one year and one day, retroactive to the date of (504)561-5700 her interim suspension in In Re: Baer, 601 po Y d r a s st r e e t , su I t e 2300 07-0861 (La. 5/2/07), 955 So.2d 148, ordered by the court on Nov. 20, 2009. ne w or l e a n s , la 70130 JUDGMENT FINAL and EFFECTIVE on Dec. 4, 2009. Gist: Commission of a criminal act (multiple DWI); and violating or attempting to violate the Rules of Professional Conduct. Alton Bates, Baton Rouge, (2009- B-2780) Permanent disbarment ordered by the court on Jan. 29, 2010. REPRESENTATION FOR JUDGMENT FINAL and EFFECTIVE DISCIPLINARY MATTERS on Jan. 29, 2010. Gist: Criminal conviction of two counts of health care fraud; and two counts of paying illegal remuneration to Medicare beneficiaries. Francis C. Broussard, Monroe, (2009-B-1814) Suspension of one year
404 April / May 2010 Karen J. Cooper (a.k.a. Karen René of justice; assisting a judge in violation practice of law for a period of one year Johnson), New Orleans, (2009-B-1848) of the Canons of Judicial Ethics; and and one day and ordered to pay restitu- Permanent disbarment ordered by the violating or attempting to violate the tion ordered by the court on Oct. 30, 2009. court on Dec. 11, 2009. JUDGMENT Rules of Professional Conduct. JUDGMENT FINAL and EFFECTIVE on FINAL and EFFECTIVE on Dec. 28, Wayne G. Cresap, Chalmette, (2009- Nov. 13, 2009. Gist: Neglecting legal mat- 2009. Gist: Failure to provide competent OB-2674) Permanent resignation from ters; failing to communicate with clients; representation to a client; neglect of sev- the practice of law in lieu of discipline failing to timely account for or refund eral legal matters; failure to communicate ordered by the court on Jan. 22, 2010. unearned fees; and failing to fully cooperate with several clients; failure to account JUDGMENT FINAL and EFFECTIVE in the disciplinary investigation. for and refund unearned fees; converting on Jan. 22, 2010. Gist: Guilty plea in Richard Fisher, Shreveport, (2009-B- client and/or third-party funds; misuse of the United States District Court for 1607) Suspended for one year, with all her escrow account; committing criminal the Eastern District of Louisiana to but 90 days deferred, followed by one acts involving forgery and check-kiting; conspiracy to commit wire fraud. year of supervised probation, ordered by abandoning her law practice; failure to Victor J. Dauterive, Jr., Chalmette, the court on Dec. 18, 2009. JUDGMENT cooperate with the Office of Disciplinary (2009-OB-2487) Permanent resigna- FINAL and EFFECTIVE on Jan. 4, 2010. Counsel in its investigations; and failure to tion from the practice of law in lieu of Gist: Practicing law while ineligible. update her bar registration address. discipline ordered by the court on Jan. 5, Ramon John Fonseca, Jr., Lafayette, Robert G. Creely, Harahan, (2010- 2010. JUDGMENT FINAL and EFFEC- (2009-OB-2347) Reinstated to active OB-0111) Permanent resignation TIVE on Jan. 5, 2010. Gist: Guilty plea status from disability inactive status from the practice of law in lieu of in the United States District Court for the ordered by the court on Nov. 23, 2009. discipline ordered by the court on Jan. Eastern District of Louisiana to conspiracy JUDGMENT FINAL and EFFECTIVE 27, 2010. JUDGMENT FINAL and to commit wire fraud. on Nov. 23, 2009. EFFECTIVE on Jan. 27, 2010. Gist: Joanne S. Engum, Sudbury, MA, Ravindra Kanwal, Denver, CO, Conduct prejudicial to the administration (2009-B-1619) Suspended from the (2009-B-2192) Reciprocal discipline of one-year-and-one-day suspension ordered by the court on Dec. 18, 2009. JUDGMENT FINAL and EFFECTIVE Elizabeth A. Alston on Jan. 4, 2010. Gist: Practicing immi- Counselor, advocate and expert witness gration law while illegally present in the United States. Practice limited to matters involving legal and judicial ethics Thomas G. McHugh, St. Martinville, (2009-B-1706) Disbarment ordered by Alston Law Firm, LLC the court on Nov. 20, 2009. JUDGMENT 322 West 26th Avenue FINAL and EFFECTIVE on Dec. 4, 2009. Gist: Abandoned his law practice without Covington, LA 70433 protecting his client’s interests or promptly 985-809-6779 refunding unearned fees. Toll-free: 877-809-6779 Paul J. McMahon III, Lafayette, (2010-B-0029) Interim suspension or- http://EthicsByAlston.com dered by the court on Jan. 12, 2010. John Jewell Pace, Baton Rouge, (2009- B-2618) Suspended for one year and one day, retroactive to the date of his interim suspension in In Re: Pace, 08-1041 (La. 5/16/2008), 981 So.2d 686, ordered by the court on Jan. 22, 2010. JUDGMENT FINAL and EFFECTIVE on Jan. 22, 2010. Gist: Commission of a criminal act; and violating or attempting to violate the Rules of Professional Conduct. 2798 O’Neal Lane, Bldg E, Ste. 9 • Handling complaints of Jelpi P. Picou, Jr., New Orleans, Baton Rouge, LA 7081770809 ethical misconduct (2009-B-2594) Interim suspension 225-751-7955225-927-4774 • Representation in ordered by the court on Dec. 9, 2009. [email protected] disciplinary proceedings Brian J. Prendergast, Baton Rouge, (2009-B-2346) Suspended from the Continued next page
Louisiana Bar Journal Vol. 57, No. 6 405 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 Loui- siana, pursuant to its Disciplinary Rules. This information is published at the request of that court, which is solely responsible for the accuracy of its content. This report is as of Feb. 1, 2010.
Respondent Disposition Date Filed Docket No. Gordon Blackman, Jr. [Reciprocal] Interim suspension. 2/1/10 09-5618 “R” Harry J. Boyer, Jr. [Reciprocal] Interim suspension. 2/1/10 09-5491 “A” Nunzio S. Cusimano, Jr. [Reciprocal] Interim suspension. 2/1/10 09-7221 “A” Victor J. Dauterive, Jr. [Reciprocal] Interim suspension. 1/29/10 09-7223 “N” Hilliard C. Fazande III [Reciprocal] Suspension/readmitted. 1/13/10 09-7373 “C” Douglas H. Greenburg [Reciprocal] Suspension. 7/14/09 09-3798 “A” Bonnie Humphrey [Reciprocal] Disbarment. 9/29/09 05-939 “C” William J. Jefferson [Reciprocal] Interim suspension. 2/1/10 09-6993 “F” Scott Eason Meece [Reciprocal] Disbarment. 2/1/10 07-2956 “B” Peter M. Meisner [Reciprocal] Suspension. 2/3/10 09-3845 “L” Ahmad Muhammad aka Patrick Taylor [Reciprocal] Disbarment. 1/29/10 94-3814 “N” Gair Oldenburg [Reciprocal] Suspension. 12/9/09 09-7374 “B” Lexlee Overton [Reciprocal] Suspension. 1/11/10 09-7372 “S” Randy J. Ungar [Reciprocal] Suspension. 2/3/10 09-7483 “L” Michael Winsberg [Reciprocal] Public reprimand. 1/29/10 09-6596 “I”
Discipline continued from 405
practice of law for a period of 90 days, No. of Violations fully deferred subject to his successful Stating that the lawyer is a specialist in completion of an additional eight hours A lawyer who knows that another person is a particular area of law that has not been of continuing legal education, ordered by involved in a legal matter with the lawyer’s recognized or approved in accordance the court on Dec. 11, 2009. JUDGMENT client from contacting that person in that with the rules and procedures estab- FINAL and EFFECTIVE on Dec. 11, 2009. matter without the permission of the other lished by the Louisiana Board of Legal Gist: Engaging in an impermissible conflict person’s lawyer...... 1 Specialization...... 1 of interest through a consensual, intimate relationship with his client. Engaging in conduct prejudicial to the Violating or attempting to violate the Rules S. Judd Tooke, Shreveport, (2009-B- administration of justice...... 1 of Professional Conduct...... 1 1784) Permanent disbarment ordered by the court on Nov. 20, 2009. JUDGMENT Failing to disclose how the respondent TOTAL INDIVIDUALS FINAL and EFFECTIVE on Dec. 4, 2009. obtained the information prompting the ADMONISHED...... 6 Gist: Neglected legal matters; failed to communication...... 1 communicate with clients; failed to prop- erly supervise his non-lawyer assistant; Failing to include the word “Advertise- Who’s Who in engaged in conduct involving dishon- ment” on the self-mailing brochure...... 1 esty, fraud, deceit or misrepresentation; converted client funds to his own use by Making a false, misleading or deceptive ADR 2010! billing and receiving payment for non- communication about the lawyer, the existent expenses and legal fees; failed to lawyer’s services or the services of the It’s time to book a listing communicate a fee arrangement to a client; lawyer’s firm...... 2 in the annual arbitrators’ failed to refund unearned fees; failed to fulfill his obligations upon termination of Payment in advance of services shall be and mediators’ directory. representations; and engaged in conflicts subject to certain rules...... 2 For more information, of interest. Admonitions (private sanctions, often Practicing law in violation of the regula- see page 439. with notice to complainants, etc.) issued since tion of the legal profession in another the last report of misconduct involving: jurisdiction...... 1
406 April / May 2010 Recent Developments Animal law to trusts
nonperformance of the contract, the damages under Article 1998. obligor knew, or should have known, The 3rd Circuit first addressed the status that his failure to perform would of domestic animals, finding that Louisiana Animal Law cause that kind of loss. law is clear in that domestic animals are considered corporeal moveable property. Regardless of the nature of the con- The court then stated that a plaintiff may tract, these damages may be recov- recover for emotional distress from damage ered also when the obligor intended, to property under four recognized catego- Vet Liable for through his failure, to aggrieve the ries: (1) when the property was damaged Nonpecuniary Loss Under feelings of the obligee. by an intentional or illegal act; (2) when Contract of Deposit the property was damaged by acts giving The Smiths appealed citing the amount rise to strict or absolute liability; (3) when Smith v. University Animal Clinic, 09- awarded by the trial court of $800 as abu- the property was damaged by activities 0745 (La. App. 3 Cir. 2/10/10), ____ sively low, while the clinic appealed arguing amounting to a continuous nuisance; and So.3d ____. that the trial court erred in awarding any (4) under circumstances where the owner In Smith, the trial court ruled that the plaintiffs were entitled to emotional distress Mediation Arbitration damages under La. Civ.C. art. 1998, titled “Damages for Nonpecuniary Loss,” after maps Professional Systems, Inc. the clinic lost the Smiths’ pet cat. The 3rd ...the leader Circuit affirmed, finding that the Smiths 800.443.7351 866.769.4553 800.397.9533 were entitled to recover emotional distress New Orleans Baton Rouge Jackson, MS in resolution damages under the theory of breach of E-mail: [email protected] contract of deposit. Website: www.maps-adr.com
The Smiths boarded their five cats at 7:45am - 8:45am the University Animal Care Clinic for a Free monthly breakfast CLEs METAIRIE: period of eight days. While at the clinic, 3900 N. Causeway Blvd. • 2nd Floor someone within the clinic inadvertently May 20, 2010 switched one of the tags on one the Smiths’ Topic: Influence of Negotiator Styles cats with another cat. The clinic then re- Speaker: Robert A. Jenks leased the cat to the wrong client, and the June 17, 2010 cat later escaped from that client’s house, Topic: Evidence in the Personal Injury Update never to be seen again. The clinic waived Speaker: Michael J. Moran Robert A. all boarding and vaccination fees totaling Jenks BATON ROUGE: $800. The Smiths later sued for emotional 8550 United Plaza Blvd • 1st Floor damages against the clinic. May 28, 2010 The trial court ruled that the Smiths were Topic: Influence of Negotiator Styles entitled to emotional damages pursuant to Speaker: Robert A. Jenks
Article 1998. Article 1998 provides for June 25, 2010 recovery for nonpecuniary loss under a Topic: Evidence in the Personal Injury Update Michael J. Speaker: Michael J. Moran contract as follows: Moran See MAPS’ website or MCLE calendar for a complete listing of all our seminars. Damages for nonpecuniary loss may be recovered when the contract, . because of its nature, is intended to gratify a nonpecuniary interest Let maps help you resolve any type of dispute. and, because of the circumstances Speaker: Michael J. Moran surrounding the formation of the
Louisiana Bar Journal Vol. 57, No. 6 407 was present or nearby at the time the dam- held the Smiths were properly entitled to the injunction. age occurred. nonpecuniary damages from the clinic for The issue before the 5th Circuit was The court found that while the Smiths’ its breach of contract of deposit. whether remedial civil contempt powers claims did not meet any of the above four Finally, the court then noted that the extended to bankruptcy court injunctions criteria, the court agreed with the Smiths’ trial court’s award of damages is afforded that were not yet formalized in writing. The argument that a new, narrowly defined, great deference on review and therefore af- 5th Circuit held that the civil contempt power contractually based exception had been firmed the $800 award, but further awarded reached Beutel’s conduct despite the fact that created by the Legislature that would hold plaintiff costs of the appeal, including the the actions occurred before the written injunc- the clinic liable for damages as a depositary cost of a deposition. tion was entered. The 5th Circuit found that in breach in a nonpecuniary contract. Beutel intentionally avoided the injunction The court then addressed the Civil Code —Ariel K. DiGiulio hearing so that he could partake in transfer- articles dealing with deposit and noted that, Chair, LSBA Animal Law Section ring the assets even though he knew those per La. Civ.C. art. 2926: DiGiulio Utley, L.L.C. actions would be prohibited by the court, and 422 Notre Dame St. that he knew about the injunction. The 5th a deposit is a contract by which a New Orleans, LA 70130 Circuit also found that the bankruptcy court person, the depositor, delivers a provided clear notice of the injunction at the moveable thing to another person, hearing and that it later reduced the injunc- the depositary, for safekeeping under tion to writing. The 5th Circuit recognized the obligation of returning it to the Bankruptcy that the actions by Beutel are the “type of depositor upon demand. Law conduct contempt targets.” Also, the 5th Circuit recognized that The court concluded that the Smiths the bankruptcy court had the statutory au- contract easily fell within the definition thority to find Beutel in contempt because of deposit and noted that the depositary is Contempt Powers in accordance with 11 U.S.C. § 105(a), bound to use the same diligence he uses the contempt order was “necessary and in preserving his own property and even In In re Bradley, 588 F.3d 254 (5 Cir. appropriate to implement the bankruptcy more so if the depositary is compensated 2009), the bankruptcy court orally enjoined court’s ultimate injunction, and to prevent for his services. Bradley Beutel, the trustee of the Lazarus abuse of process.” The court analyzed comments (b) and Exempt Trust (the Trust), from transferring (c) of Article 1998, noting that nonpe- assets out of the Trust that were poten- Validity of Proofs of Claim cuniary loss means damage of a moral tially property of the debtor’s estate. The nature that does not affect a “material” or bankruptcy court did not, however, enter a In In re Jacobsen, 2010 WL 271419 (5 tangible part of a person’s patrimony and a written order until one month after the hear- Cir. 2010) (unpublished), the 5th Circuit contract involving matters of a sentimental ing in which it orally enjoined Beutel from affirmed the bankruptcy court’s order value could result in a nonpecuniary loss. transferring the assets. Despite the court’s overruling the debtor’s objection to John Ultimately, the court found that the clinic oral injunction, Beutel sold and transferred Sramek’s (creditor) proof of claim. In knew or should have known that its failure assets from the Trust. Beutel argued that he 2004, creditor loaned money to the debtor’s to perform would result in a nonpecuniary was not aware of the oral injunction since company, REJ Properties, Inc. (REJ). The loss. The court pointed to the clinic’s ad- he did not attend the hearing on the injunc- transaction eventually went “awry,” and vertisements wherein the clinic noted that tion. Despite this argument, the bankruptcy creditor filed a lawsuit against the debtor and pets “were like children.” As such, the court court found Beutel in contempt for violating REJ for fraud and other tort claims. In May 2007, the debtor filed for bankruptcy relief under Chapter 13 of the Bankruptcy Code, which was later converted to a Chapter 7 bankruptcy. In September 2007, creditor filed a proof of claim against the debtor. In support of its proof of claim, creditor at- tached a promissory note executed on behalf of REJ, other related loan documents, and an order from the lawsuit between creditor and the debtor granting summary judgment on breach of contract between creditor and REJ. The debtor objected to the proof of claim, arguing that the documents attached did not show that the debtor had any liability on the attached promissory note, only REJ. Creditor argued that the proof of claim was
408 April / May 2010 not based on the promissory note, but rather standard, some of the SIP requirements the lawsuit. associated with the old one-hour standard The issue before the 5th Circuit was were continued under the Clean Air Act’s whether the debtor rebutted the prima facie Environmental “anti-backsliding” provisions. The EPA evidence of the validity and amount of the Law action, known as a “Clean Data Policy claim. The 5th Circuit found that the debtor Determination,” formally suspends several did not rebut the prima facie evidence. The requirements associated with the Louisiana 5th Circuit reasoned that while the support- Department of Environmental Quality’s ing documents referenced REJ rather than EPA Recognizes (LDEQ) State Implementation Plan (SIP) the debtor, the documents clearly referenced Attainment of 1-Hour as long as the area continues to achieve the fraud lawsuit against the debtor, and Ozone Standard for the one-hour standard. These suspended clearly detailed the claim and the lawsuit’s requirements include “a severe attainment progress. The 5th Circuit also noted that Baton Rouge Area demonstration, a severe reasonable further the debtor could not dispute the validity of progress plan (RFP), applicable contin- The Feb. 10, 2010, Federal Register con- the fraud claim after he explicitly acknowl- gency measures plans, and other planning tains a notice of EPA’s final decision that the edged the fraud claim and the lawsuit in State Implementation Plan (SIP) require- Baton Rouge ozone nonattainment area “has his schedules. ments related to attainment of the 1-hour attained the 1-hour ozone National Ambi- ozone NAAQS.” ent Air Quality Standard (NAAQS).” (The —Tristan E. Manthey One of the areas EPA did not squarely ad- Baton Rouge area consists of the parishes Chair, LSBA Bankruptcy Law Section dress in the Feb. 10 decision was the issue of of Ascension, East Baton Rouge, Iberville, and whether Clean Air Act Section 185 penalty Livingston and West Baton Rouge.) EPA Cherie D. Nobles fees are among the suspended requirements; found that the ambient monitoring data Member, LSBA Bankruptcy Law Section however, EPA hinted that it would follow for 2006-08 demonstrated attainment and Heller, Draper, Hayden, recently issued guidance on that subject. noted there were no exceedances of the Patrick & Horn, L.L.C. The Federal Register notice states: standard in 2009. Although this one-hour Ste. 2500, 650 Poydras St. ozone standard was revoked in 2005 and New Orleans, LA 70130 EPA has issued final guidance on 185 replaced with a more stringent eight-hour
Louisiana Bar Journal Vol. 57, No. 6 409 fees entitled “Guidance on Develop- economic impact to the community. at issue when the damage occurred. The ing Fee Programs Required by Clean EPA and LDEQ are subject to a pending 4th Circuit held that the plaintiff, who did Air Act Section 185 for the 1-hour lawsuit filed by the Louisiana Environ- not own the property when it was allegedly Ozone NAAQS” (January 5, 2010). mental Action Network in the U.S. District damaged, did not have the personal right However, in today’s rulemaking pro- Court for the District of Columbia last year, to sue the defendants for pre-acquisition ceedings, EPA has not proposed and arguing that one or both of the agencies property damage. In addition, the court is not finalizing any action regarding should impose a Section 185 fee program, a held that trespass is not an exception to the the status of 1-hour section 185 fees one-hour severe NNSR program, and other subsequent-purchaser doctrine. requirements. As appropriate, EPA requirements of the old one-hour standard The plaintiff in Eagle Pipe & Supply will undertake a separate action to on sources within the Baton Rouge area. purchased the property at issue in 1998. address the status of 1-hour anti- The Baton Rouge Chamber of Commerce, The plaintiff did not know the property backsliding requirements for section the Louisiana Chemical Association and was contaminated when it acquired title to 185 fees program in the BR area. the Louisiana Mid-Continent Oil and Gas the property. In fact, the plaintiff learned Association have moved to intervene in about the contamination when the LDEQ The Jan. 5, 2010, Guidance referred to by that lawsuit. conducted a field interview. The plaintiff EPA clearly stated that once an area meets was informed that the property was con- either the old one-hour ozone standard or Property Contamination taminated with Technologically Enhanced the new eight-hour ozone standard, the ob- Decision Naturally Occurring Radioactive Materials ligation to have a Section 185 fee program and ordered to remediate the property. The is discontinued. Because the Clean Data The Louisiana 4th Circuit Court of Ap- plaintiff alleged that the property was con- Policy Determination in the Feb. 10 Federal peal recently issued an opinion in Eagle Pipe taminated as a result of operations that were Register confirms that the Baton Rouge area & Supply v. Amerada Hess Corp., 09-0298 conducted between 1981 and 1988 when has met the one-hour standard, it is expected (La. App. 4 Cir. 2/10/10), ____ So.3d ____, the property was owned by the plaintiff’s that EPA will soon make a determination that 2010 WL 487238, concerning the applica- predecessors-in-title. After being ordered to no Section 185 program is needed. Such a tion of the subsequent-purchaser doctrine remediate the property, the plaintiff filed a decisionRC_bar assn would ad #4 avoid #5:RC_Bar a significant assn ad 3/15/10 adverse 3:43 PMto a Page plaintiff 1 who did not own the property lawsuit for property damage against vari- ous companies who allegedly caused the contamination. The plaintiff argued that it paid fair mar- ket value for the property and should be able F O R M E M B E R S O F to sue for pre-acquisition property damage because it was unaware of the contamination T H E B A R when it acquired title. The plaintiff asserted W E ’ V E J U S T R A I S E D that the defendants hid their tortious conduct and that its predecessors-in-title did not O U R S suffer any damages. More significantly, the plaintiff argued that it had the right to bring a trespass claim because a claim in trespass is an exception to the subsequent-purchaser doctrine. The 4th Circuit rejected each of the plaintiff’s arguments and held that a claim for property damage is a personal right vested in the owner of the property at the time it was damaged.
—Maureen N. Harbourt R e c e i v e a r o o m u p g r a d e w h e n y o u b o o k w i t h Member, LSBA Environmental y o u r l a w y e r p r e f e r r e d r a t e . Law Section and Richard D. McConnell Member, LSBA Environmental 921 Canal Street | New Orleans, LA 70112 Law Section Reservations 800-241-3333 | www.ritzcarlton.com Kean, Miller, Hawthorne, D’Armond, Rates for single/double occupancy only; exclusive of taxes, McCowan & Jarman, L.L.P. gratuities,and other charges; do not apply to groups and can not be combined with any other offer. Blackout dates apply. Ste. 1800, 301 Main St. Baton Rouge, LA 70801
410 April / May 2010 to be named domiciliary parent. The trial Visitation at jail was not allowed because court denied his request, and the court of it had been distressing to the child in the appeal affirmed, finding that his completion past, but the mother could communicate by Family of a substance abuse program and sobriety mail. The mother did not have an absolute Law for three years was insufficient to establish right to be present at the hearing officer a material change of circumstances. The conference and had failed to take steps father had been sober for two of the three to be present and to timely object to the years at the time of the second consent hearing officer’s findings. Custody judgment, and was “asking [the court] to consider the dearth of a stumble on his part Child Support Piccione v. Piccione, 09-0300 (La. App. 3 as a material change of circumstances.” The Cir. 10/7/09), 20 So.3d 576. court found this had had no effect on the McRae v. McRae, 09-0289 (La. App. 3 Cir. The trial court granted Ms. Piccione’s child’s welfare but stated that continued 10/28/09), 21 So.3d 1098. exception of no cause of action to Dr. Pic- rehabilitation for a sustained period could Amendments to the original child sup- cione’s rule to increase visitation, finding possibly reach a point to establish a change port and custody judgment increased the that custody had previously been litigated of circumstances. support but left in place only that Mr. McRae to a considered decree, and that he thus had would not have to pay child support in June to meet Bergeron. He appealed, arguing that Richard v. Richard, 09-0299 (La. App. 1 when he had the child. there had been no considered decree and Cir. 6/12/09), 20 So.3d 1061. that Bergeron did not apply to his request The court of appeal affirmed the trial In re Succ. of Sessions, 08-1683 (La. App. for increased visitation. The court of appeal court’s modification of the domiciliary 1 Cir. 9/10/09), 23 So.3d 954. reversed, ruling that because he sought only parent from the mother to the father due La. R.S. 9:2801 does not apply to a parti- to change the visitation schedule, not to to the father’s better ability to care for tion between an ex-wife and the deceased change the custody arrangement, Bergeron the child’s educational and psychological ex-husband’s heirs; rather, the general rules did not apply. special needs, despite the father’s living of partition between co-owners, La. Civ.C. a homosexual lifestyle with his partner, art. 1323, et seq., apply. A partition of the Dalme v. Dalme, 09-0524 (La. App. 3 Cir. which was not shown to have a detrimental community property is premature until the 10/14/09), 21 So.3d 477. impact on the child. succession is completed, the legatee is put Six months after the second consent in possession of the deceased’s one-half judgment of joint custody between the ma- Leeper v. Leeper, 44,777 (La. App. 2 Cir. interest in the former community property ternal grandparents and the father, naming 9/23/09), 21 So.3d 1006. and the ex-wife is recognized in the judg- the grandparents as domiciliary custodians, After the mother was sentenced to ment of possession as the owner of the other the father sought to modify the judgment prison, the father was awarded sole custody. one-half interest in the former community. Ethics Advisory Service •Unsure of your ethical obligations as a lawyer? •Worried about doing the right thing or wrong thing? •Need some advice or just someone to bounce your ideas off of before going forward?
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Louisiana Bar Journal Vol. 57, No. 6 411 Thus, the court of appeal vacated the trial no implementation order to the contrary munity property partition agreement was court’s judgment of partition and remanded or other good cause shown, in accord with entitled to attorney’s fees and costs incurred for the trial court to consider the ex-wife’s La. R.S. 9:335(B)(1). The trial court also by her in that proceeding. He was entitled exception of prescription regarding the should have made the award of joint custody to contest the reasonableness of the fees, succession’s claim for reimbursement for final, not interim. but not her entitlement, which was provided payments of the house notes after their for in the contractual agreement. divorce and to conclude the succession Williams v. Williams, 09-0472 (La. App. as ordered. 3 Cir. 11/4/09), 22 So.3d 1165. —David M. Prados The one-year delay for filing a peti- Member, LSBA Family Law Section Divorce tion for nullity begins to run when one Lowe, Stein, Hoffman, Allweiss has knowledge of the facts alleged to be & Hauver, L.L.P. Hunter v. Hunter, 44,703 (La. App. 2 Cir. fraudulent or an ill practice, not when one Ste. 3600, 701 Poydras St. 9/30/09), 21 So.3d 1032. “discovers” the legal effect and conse- New Orleans, LA 70139-7735 Although the parties had issues during quence of such facts. Here, because she their marriage regarding Ms. Hunter’s was present when the divorce and child handling of their finances and issues of support judgments were rendered on the Insurance, Tort, general dissatisfaction in the relationship, purported fraudulent testimony, the delays Workers’ her conduct did not rise to the level of fault began running then, even though judgments Compensation & to preclude final support. His claim that were not signed until later. Admiralty Law they agreed that he could pay less interim support than awarded was rejected when Anderson v. Houston, 44,766 (La. App. 2 she denied an agreement, and he was found Cir. 9/23/09), 22 So.3d 1029. Admiralty: Privity or to be $49,000 in arrears. Ms. Houston’s counsel’s affirmative response to the trial court’s question that Knowledge and Limitation of Liability Procedure only Mr. Anderson’s rules would be tried was a judicial confession that waived her Graham v. Offshore Specialty Fabricators, Snowton v. Snowton, 09-0600 (La. App. rules, which were then dismissed without prejudice. The trial court did not err in 09-0117 (La. App. 1 Cir. 1/8/10), ____ 4 Cir. 9/30/09), 22 So.3d 1111. So.2d ____. La. C.C.P. art. 5186, providing that if modifying the joint custody plan on his rule in order to clarify and address problems Marshall Graham was employed by judgment is rendered in favor of one granted Offshore as a deckhand aboard a tugboat in forma pauperis status, the party against that had been occurring in the visitation schedule. engaged in returning a leased Cashman whom judgment is rendered shall pay the (CEC) deck barge to a barge fleet on the costs, supersedes La. C.C.P. art. 1920, Atchafalaya River near Morgan City. which allows the court to tax costs as it Property Pursuant to the operation, Graham was considers equitable. Because Ms. Snowton walking the deck of another CEC fleet barge, Gaden v. Galvin, 09-0335 (La. App. 4 Cir. obtained the judgment of joint custody by the Conical, an old dredge barge that had 9/25/09), 23 So.3d 282. default, instead of naming no domiciliary been partially dismantled. He fell through An attorney who represented herself parent, the trial court should have named a hole in the deck and was injured. Graham against her ex-husband to enforce the com- her domiciliary parent because there was filed Jones Act and unseaworthiness claims against Offshore and general maritime and Securities Arbitration/Litigation unseaworthiness claims against CEC in the 16th JDC. A jury found liability and awarded aggregate damages in the amount AMES ILLEFORD of $394,700, assigning 60 percent fault to J F. W CEC, 25 percent fault to Offshore and 15 percent fault to Graham for contributory PIABA member representing investors in disputes negligence, limiting CEC’s liability under federal maritime law to $160,000, Conical’s with stockbrokers and brokerage houses value. All parties filed appeals or cross- appeals, Offshore and Graham contending, inter alia, that the jury erred in finding that New Orleans 504/582-1286 CEC had no “privity or knowledge” of the [email protected] condition that caused Graham’s injury, i.e., the hole in Conical’s deck, thus limiting CEC’s liability to the value of the vessel.
412 April / May 2010 The Limitation of Liability Act, 46 to the owner. president, testified that it was his custom U.S.C. §§ 30505-30513 states, in pertinent to “eyeball” his company’s purchases, and part: Graham notes the U.S. 5th Circuit’s he had viewed Conical from the riverbank, discussion in Brister v. A.W.I., Inc., 946 F.2d noting no holes in her deck. He did not recall (a) In general. Except as provided 350, 355-58 (5 Cir. 1991), of the application instructing any of his employees to inspect in section 30506 of this title, the of these provisions: the vessel. CEC’s two operations managers liability of the owner of a vessel for disclaimed responsibility for management any claim, debt, or liability described In a limitation proceeding, once of the unclassed barge fleet. in subsection (b) shall not exceed an injured seaman establishes that The court of appeal reversed the the value of the vessel and pending negligence or unseaworthiness limitation of liability, stating: freight. . . . caused his injuries, the burden shifts (b) Claims subject to limitation. to the vessel owner to establish Based on this evidence, we conclude Unless otherwise excluded by law, lack of privity or knowledge of the that the jury erred in finding that CEC claims, debts, and liabilities subject dangerous condition that caused the had no privity or knowledge of the to limitation under subsection (a) are injury. . . . Privity or knowledge does dangerous condition on the deck of those arising from any . . . act, matter, not necessarily require a showing the Conical that caused Graham’s or thing, loss, damage, or forfeiture, of actual knowledge. It is deemed accident. Mr. Cashman was the done, occasioned, or incurred, to exist if the shipowner has the owner and president of the company, without the privity or knowledge of means of obtaining knowledge, so his knowledge is imputed to the the owner. or if he would have obtained the corporation, as is [the operations knowledge by reasonable inspection. manager’s] knowledge.... According In a claim for personal injury or Knowledge is not only what the to his own testimony, Mr. Cashman death, the privity or knowledge of the shipowner knows, but what he is did not view the CONICAL after master or the owner’s superintendent charged with discovering. he purchased it for his company, or managing agent, at or before the nor did he assign responsibility for beginning of each voyage, is imputed Michael Cashman, CEC’s owner and the vessel to any of his employees.
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Louisiana Bar Journal Vol. 57, No. 6 413 His comments indicate that he just by Mr. Ciolino on May 9, 2005. A cover O’Brien negligently failed to point out that bought it and forgot it. . . . CEC’s letter from Powell instructed the insured’s the policy in question differed significantly lack of knowledge is attributable to representative, Steven Ciolino, to review from previous policies. CEC’s failure to exercise reasonable the policy, which he did not do. Hurricane The court of appeals reversed the diligence — or any oversight at all Katrina struck on Aug. 29, 2005, causing summary judgment, finding that reasonable — after buying the CONICAL. . . damage to and interruption of the Ciolino minds could differ on whether Mr. Ciolino . Therefore, we conclude the jury businesses. The insureds filed claims under should have more carefully scrutinized erred in finding that CEC did not the policy, which Pacific refused to pay, his policy, and whether Powell, through have privity or knowledge, and thus based upon a coinsurance provision of its agent Mr. O’Brien, should have called allowing CEC to limit its liability the policy requiring the insured to obtain his attention to the new and significantly . . . . 90 percent of coverage for the value of 12 different provision. months of business interruption in order Peremption: to be fully compensated for losses, a new —John Zachary Blanchard, Jr. Duty of Insured and Insurer feature of the policy. Mr. O’Brien, Ciolino’s Member, LSBA Insurance, Tort, long-standing insurance agent, had not Workers’ Compensation C’s Discount Pharmacy v. Pacific Ins. Co., explained this to him. and Admiralty Law Section 09-0217 (La. App. 5 Cir. 1/26/2010), ____ On Aug. 28, 2006, the insureds sued 90 Westerfield St. So.2d ____, 2010 WL 291759. Powell, Westrope and Pacific, alleging that Bossier City, LA 71111 C’s Discount Pharmacy and Ciolino the policy’s coverage was not what he had Pharmacy purchased an insurance policy requested. Powell and Westrope’s motions for summary judgment, urging that the International from Powell Insurance Agency covering Law losses due to property damage and one-year preemptive period began running business interruption. Powell obtained the on May 9, 2005, were granted by the trial policy from an intermediary, Westrope & court, over Mr. Ciolino’s argument that he Associates, and the policy was issued by had relied upon Mr. O’Brien’s judgment in obtaining insurance over the years and Mr. Pacific Insurance Co., Ltd., and received World Trade Organization
United States-Measures Affecting Im- 10% OR MORE OFF WHAT YOU OWE ports of Certain Passenger Vehicle and THE STATE OF LOUISIANA Light Truck Tyres from China (WT/ DS399). As reported in the December 2009/ January 2010 Louisiana Bar Journal, President Obama became the first U.S. president to utilize Section 421 of the Trade Act of 1974 to impose tariffs on WHILE SUPPORTING imports of certain passenger vehicle and light truck tires from China. On Sept. 14, THE LOCAL FILM INDUSTRY 2009, China requested consultations with the United States at the WTO to discuss PURCHASE MOTION PICTURE TAX CREDITS the import tariffs. China alleges that the tariffs are inconsistent with Article I:1 of THROUGH THE CELTIC GROUP the GATT 1994, not justified under Article - Reduces personal or corporate income tax liability XIX of the WTO Agreement on Safeguards - Buying directly from the source means NO brokerage fees and inconsistent with several articles of China’s WTO Accession Protocol. Con- TO L L F R E E : 8 7 7 . 7 5 2 . 2 3 5 9 sultations did not bear fruit, and China w w w. C e l t i c Ta x C r e d i t s . c o m requested a dispute-settlement panel on Dec. 9, 2009, to adjudicate the legality of the import tariffs. United States Supreme Court Noriega v. Pastrana, 130 S.Ct. 1002 (2010) (cert. denied) (Thomas, J., dissenting). On Jan. 25, 2010, the U.S. Supreme
414 April / May 2010 Court denied certiorari in a case involving parole, Noriega filed a habeas corpus peti- U.S. courts without an act of transforma- the former Panamanian General Manuel tion in anticipation of extradition to France tion. The 11th Circuit accepted Noriega’s Noriega that would have decided, inter for prosecution of criminal charges there. designation as a POW but confirmed the alia, the question of whether certain Noriega relied on his POW designation district court’s interpretation of MCA § 5(a) Geneva Conventions are self-executing in alleging that the United States violated that prohibits Noriega from invoking the treaties under U.S. law and therefore can the Geneva Convention when it agreed Geneva Conventions as a source of rights be invoked by individuals as a source of to extradition because he is entitled to in a habeas proceeding. rights in a habeas corpus proceeding. Jus- repatriation after serving his time. The Noriega’s petition to the Supreme Court tice Thomas issued a dissenting opinion, district court denied his request but stayed challenged the 11th Circuit’s interpretation joined by Justice Scalia, contending that extradition pending appeal and resolution of MCA § 5(a) and the provision’s consti- the court has a compelling duty to address of the question of first impression regarding tutionality. The constitutional challenge the issue in order to provide guidance how Noriega’s POW status implicates the involved the Supremacy Clause, which to the other branches of government for Geneva Conventions. dictates that treaties (here the Geneva discharging their responsibilities over On appeal, Noriega contended that Conventions) are the supreme law of the detainee cases. extradition would violate several provi- land. Justice Thomas would have granted General Noriega was indicted by a fed sions of the Third Geneva Convention. certiorari to address the validity of MCA § eral grand jury in 1988 and was thereafter The United States countered that the 5(a) and to “provide courts and the politi- convicted in Florida on numerous federal court lacked jurisdiction over the ques- cal branches with much needed guidance narcotics offenses. Noriega was sentenced tion because Section 5(a) of the Military on . . . questions in Guantanamo or other to 30 years’ imprisonment, but obtained Commissions Act of 2006 (MCA) es- detainee litigation arising out of the conflict Prisoner of War (POW) status under the tablishes that “[t]he Geneva conventions with Al Qaeda.” Third Geneva Convention in response to are not self-executing” or enforceable in concerns that he would not receive ap- habeas corpus actions. No federal court U.S. Department of propriate care while serving time in the of appeals had previously held that the Commerce custody of the Bureau of Prisons. In July Geneva Conventions are self-executing 2007, two months prior to his release on and therefore judicially enforceable in Institution of Five-Year Sunset Review
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Louisiana Bar Journal Vol. 57, No. 6 415 of Certain Frozen Warm-water Shrimp a review of volume, price effect and impact from Brazil, China, India, Thailand and of imports on the domestic industry before Vietnam. the orders were in place. As required by the Marrakesh Agree- Mineral ment Establishing the World Trade Louisiana 2009 Export Law Organization and Section 751(c) of the Performance Tariff Act of 1930 (19 U.S.C. § 1675(c)), on Jan. 4, 2010, the International Trade According to a report from the New Mineral Code Article 137 Administration and International Trade Orleans World Trade Center based on data Commission instituted the five-year sun- provided by the NAICS database, Louisi- Mineral Code Article 137’s notice set review of the antidumping duties on ana’s exports reached the second-highest requirement does not prevent a lease frozen warm-water shrimp imported from level ever in 2009, despite the global from terminating automatically upon the five countries. The antidumping duties economic downturn. Export sales to China occurrence of a resolutory condition. were enacted to offset unfairly dumped were particularly impressive, increasing In Stream Family Ltd. Partnership v. shrimp that placed domestic shrimp at a by 55 percent to reach $5.4 billion for the Marathon Oil Co., 09-0561 (La. App. 3 competitive disadvantage. These orders year. Louisiana’s top five export markets Cir. 12/23/09), 27 So.3d 354, the lessors’ are particularly important to the shrimp include China, Japan, Mexico, Canada and ancestor-in‑title granted a mineral lease industry in Louisiana, which by far har- South Korea. Louisiana ranks as the eighth to TXO Production, which later became vests and processes the largest amount of largest export state, exporting primarily Marathon Oil Co. After Marathon drilled domestic, wild-caught shrimp. agricultural, petroleum, coal, chemical a productive well, it began assigning The International Trade Administra- and food products. tion is charged with determining whether partial interests in the lease. Marathon eventually assigned its entire lease interest revocation of the orders would be likely —Edward T. Hayes to others. The lessors expressly consented to lead to continuation or recurrence of Member, LSBA International to Marathon’s assignments, though always dumping of the subject product. Dumping Law Section with the qualification that Marathon would is loosely defined as selling products in an Leake & Andersson, L.L.P. not be relieved of any liabilities under the export market at less than normal value, Ste. 1700, 1100 Poydras St. lease. defined roughly as the value the same New Orleans, LA 70163 product would sell in the home market. The One of the assignees reassigned its International Trade Commission is charged interest to La Mesa Production. From 1992 with determining whether revocation of the through 2004, La Mesa operated the well orders would be likely to lead to continu- and produced minerals, but it failed to pay ation or recurrence of material injury to royalties from 1998 through 2004. In March the domestic industry within a reasonable 2004, the lessors sent a letter to Marathon time. The material injury analysis includes and the assignees of rights under the lease,
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416 April / May 2010 demanding payment. later that year, the lessors filed suit, seeking royalties from De Novo Review 1998 forward. Based on prescription, the trial court dismissed the lessors’ claims as to Article 312 does not require de novo Professional any royalties that were due more than three review when a factfinder finds there were Liability years before the lessors filed suit. no environmental damages. The resolution of the lessors’ remaining In Meaux v. Hilcorp Energy Co., 09- claims turned on Mineral Code Articles 133 0591 (La. App. 3 Cir. 12/9/09), 26 So.3d and 137. Article 133 provides that a lease 875, landowners filed suit against mineral Request for Multiple Caps will terminate upon the occurrence of a lessees, claiming that the lessees’ activities Denied resolutory condition stated in the lease. The had contaminated the plaintiffs’ land. A jury lease in Stream Family contained a clause found that the lessees had not caused any Singer v. Jarrott, 08-1562 (La. App. 1 Cir. stating that the lease would terminate “in environmental damage to the plaintiffs’ 7/29/09), 15 So.3d 384 (table), writs denied, instances of willfully or persistently late land, and plaintiffs appealed. 09-2230 (La. 1/8/10), 24 So.2d 873, 874. or improper payment.” But Article 137 On appeal, the landowners argued that The surviving parents of a deceased generally requires a lessor to give a lessee the jury’s verdict should be reviewed de chronic-pain patient filed one medical- notice before filing suit seeking damages or novo. The landowners relied on La. R.S. review-panel request against Dr. Jarrott, al- lease cancellation for failure to pay royalties 30:29(c)(6)(b), which is part of Act 312. That leging that he over-prescribed medications timely or in the proper amount. statute provides that an appellate court will on multiple occasions, which ultimately The facts suggested that La Mesa’s undertake a de novo review in the appeal of caused their daughter’s death. The review failure to pay had been persistent, and a final judgment in which a trial court adopts panel concluded that Dr. Jarrott should have perhaps even had been willful. Marathon a plan of remediation under the provisions of referred the patient for comprehensive pain moved for summary judgment, arguing that Act 312. The 3rd Circuit held that, because management. La Mesa’s persistent failure to pay royalties the final judgment inMeaux did not adopt The plaintiffs then filed 10 separate caused the lease to terminate automatically a plan of remediation, R.S. 30:29(c)(6) lawsuits seeking survival damages because in 1998. The lessors argued that parties (b)’s provision for a de novo review did of the pain and suffering their daughter ex- to a mineral lease cannot contractually not apply. The standard rules of appellate perienced as a result of each drug overdose. exclude application of Article 137’s notice review, therefore, applied. Accordingly, the They also filed a wrongful death claim. The requirements, and that the lease therefore jury’s factual findings would be reviewed plaintiffs then consolidated all of the actions had not terminated in 1998. under the manifest error standard. The 3rd and stipulated that the damages in each of The district court agreed with Marathon Circuit went on to affirm the trial court’s the survival actions were limited to no more that Article 137 does not prevent parties judgment. than $50,000. A bench trial was held, and from contracting that the occurrence of the court found in favor of the plaintiffs in a resolutory condition automatically will —Keith B. Hall four of the survival claims and awarded terminate a lease, without the necessity Member, LSBA Mineral Law Section a total of $50,000 in each. The parents of notice. The court dismissed the lessors’ Stone Pigman Walther Wittmann, L.L.C. were also each awarded $250,000 for their claims on summary judgment, holding 546 Carondelet St. daughter’s wrongful death. The Louisiana that the lease expired in 1998, so that no New Orleans, LA 70130 Patient’s Compensation Fund settled with lease obligations were due from periods the plaintiffs. Dr. Jarrott appealed. after that time. Based on the court’s prior The damages in the four survival actions decision, royalty claims from before the totaled $200,000. The wrongful death dam- 1998 lease termination were prescribed. The 3rd Circuit affirmed, noting that the lease made improper or late payment of royalties a resolutory condition that automatically would result in lease cancellation, that the resolutory condition had occurred in 1998, and that Mineral Code Article 133 expressly recognizes that a lease can terminate upon the occurrence of a resolutory condition stated in the lease. Thus, Marathon had no liability. The 3rd Circuit noted in dicta that La Mesa’s status was that of a trespasser for periods subsequent to the lease termination in 1998, and that the lessors could pursue a claim against La Mesa on that basis.
Louisiana Bar Journal Vol. 57, No. 6 417 ages totaled $500,000. With respect only 44,435 (2 Cir. 9/23/09), 21 So.3d 1000 (on summary judgment on the issue of liability to the $500,000 wrongful death award, rehearing, 11/4/09), writ denied, 09-2603 that does not speak to causation results in the trial court limited Dr. Jarrott’s liability (La. 2/5/10), 27 So.3d 305. an improper division of the issues and thus to $100,000. As to the survival actions, In the course of this medical malprac- summary judgment was improper. the plaintiffs argued for the applicability tice litigation, the plaintiffs were granted In a per curiam opinion on rehearing of multiple caps, citing Crump v. Sabine a partial summary judgment against the on the issue of whether the hospital’s ap- River Authority, 98-2326 (La. 6/29/99), hospital only on the issue of liability. The peal of the partial summary judgment was 737 So.2d 720, for the proposition that hospital filed a notice of appeal, but prior to moot, the court of appeal reversed itself. the operating causes of the injuries were filing briefs, the parties settled the claim for The court noted that the MMA provides not continuous but rather “a multiplicity less than $100,000, reserving the plaintiffs’ for two instances in which the PCF cannot of causes of action and of corresponding rights against the PCF. contest liability: prescriptive periods.” Dr. Jarrott countered In the petition for court approval of the that La. R.S. 40:1299.42(B)(2) limited the settlement, it was alleged that the hospital’s (1) where there is a settlement for a total amount the plaintiffs could recover to appeal would be dismissed absent objec- minimum of $100,000; and $500,000, and he could be responsible for tion by the PCF. The PCF objected to the (2) where there is a judgment only $100,000 of that amount. Dr. Jarrott grant of summary judgment against the following trial in the amount of also pointed out that Crump was a property hospital, and the court of appeal held that $100,000 or more. . . . damage case and, therefore, not compa- it had the right to object. The court relied rable to a medical malpractice case. on Dodson v. Community Blood Center, Therefore, the court concluded that The court of appeal agreed that each 92-2068, (La. App. 1 Cir. 11/24/93), 633 partial summary judgment is not binding negligent prescription for pain medication So.2d 252, writs denied, 93-3158, 93-3174 on the PCF and has no res judicata effect. constituted a “separate and distinct act of (La. 3/18/94), 634 So.2d 850, 851, in stating The court included in its opinion on rehear- malpractice producing independent dam- that the PCF, when it enters the lawsuit, ing the following language regarding the ages.” Nevertheless, it agreed with Dr. “takes the proceedings as it finds them.” plaintiff’s demand: Jarrott that the total amount recoverable for Here, the PCF “found” the proceedings all malpractice claims to a single patient with a partial motion for summary judg- [It was] against a wholly different “within a continuous course of treatment” ment on the issue of liability, which was an defendant, the PCF. It logically fol- was statutorily limited to $500,000, and issue that the PCF had a statutory right to lows, therefore, that the PCF does Dr. Jarrott’s liability could not exceed contest. The PCF could not have contested not “stand in the shoes” of Willis- $100,000. Thus, the trial court erred in liability earlier because it was not involved Knighton for purposes of appealing awarding multiple caps, and the judgment in the lawsuit until the petition for court the partial summary judgment. was amended so that it complied with the approval was filed. To disallow the PCF Rather, the appeal is moot, as Willis- $500,000 cap on damages and limited Dr. from contesting the grant of summary Knighton, after taking the appeal, Jarrott’s responsibility to $100,000, plus judgment would abrogate its statutory settled with the Cubleys. interest and costs. right to contest liability. Hence, the court found that the appeal was not moot and The court then concluded that in light Partial Summary Judgment the partial summary judgment was then of its decision that the current appeal is on Liability reviewed. Relying on Jones v. LSUSHSC, moot, it would not address the merits of 39,292 (La. App. 2 Cir. 9/2/04), 880 So.2d the appeal concerning the alleged improper Cubley v. Willis-Knighton Med. Ctr., 269, the Cubley court ruled that a partial division of issues in the partial summary judgment because the PCF was entitled to contest liability in the trial court. The court noted, additionally, that the PCF was A Fresh Perspective not required to proceed with the appeal of a partial summary judgment “rendered On Your Case against a different defendant.” It should be noted that the court provided no authority for its statement that the PCF can ever be considered a “defendant.”
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10014.FTZ_LSBA_NEW_ .indd 1 1/12/10 2:58:22 PM 418 April / May 2010 participate in pooling their capital to invest Exemption Statute and in developer partnerships and receive Exemption Certificate state tax credits in return, the investors Taxation had a valid business purpose and that the In CHL Enterprises v. State., 09-0487 form of the investors’ contributions and (La. App. 3 Cir. 1/4/09), 23 So.3d 1000, the the resulting allocations of tax credits 3rd Circuit upheld an exemption based on accurately reflected the substance of the a plain reading of La. R.S. 47:305.25(A) transactions. (1), which was held to apply to the taxpay- Tax Court Rules that State This decision by the Tax Court is sig- er’s sales of tractors and related equipment Historic Tax Credit nificant in that it affirms the legitimacy of to customers other than farmers because Investors Are Partners historic-tax-credit-investment structures the statute, unlike R.S. 47:305.25(A)(4), in general. did not restrict the exemption to such In a recent decision, Virginia Historic equipment when purchased for use “for Tax Credit Fund 2001 LP v. Commis- La. Supreme Court Holds agricultural purposes in the production of sioner, T.C. Memo. 2009-295 (12/21/09), that BTA May Hear Class food and fiber.” Further, the taxpayer was 2009 WL 4980488, the U.S. Tax Court Actions allowed to rely on customer-exemption ruled that state historic tax credit inves- certificates claiming the benefits of R.S. tors were partners for federal tax purposes In St. Martin v. State, 09-0935 (La. 47:305.25(A)(4), even though the exemp- and that transactions between tax-credit 12/1/09), 25 So.3d 736, the Louisiana Su- tion was suspended when the purchases investors and the partnership were valid preme Court, considering a split decision were made, because the Department of contributions and allocations, rather than of the 1st Circuit Court of Appeal, held Revenue published exemption certificates disguised sales under Section 707 of the that the Louisiana Board of Tax Appeals for taxpayer use that did not notify tax- Internal Revenue Code. has jurisdiction to certify and hear a class payers that the exemption was actually Virginia’s Historic Rehabilitation action. In this case, the petitioners sought suspended. Tax Credits, equal to 25 percent of a determination under the “Overpayment eligible rehabilitation expenses, are not Refund” procedure of La. R.S. 47:1621, transferable. However, taxpayers are al- et seq., one of three statutory remedies lowed to disproportionately allocate the enacted by the Legislature pursuant to credits to partners and other investors Article VII, § 3(A), which mandates the Construction in pass-through entities pursuant to the Legislature to “provide a complete and partnership agreement. Virginia Historic adequate remedy for the prompt recovery Fund used a state tax-credit partnership of an illegal tax paid by a taxpayer.” (The Expert structure wherein capital was provided by other two remedies are the Claims Against • Over 15 years of Construction Experience investors to the partnership; the Virginia the State procedure under R.S. 47:1481, Historic Fund partnership then contrib- et seq., and the Payment Under Protest • Licensed General Contractor – LA, AL & FL uted the capital to developer partnerships procedure of R.S. 47:1576, et seq.). The • Louisiana Licensed Real Estate Appraiser to help cover rehabilitation costs. After petitioners brought suit claiming that the the project was certified by the Virginia state had underpaid interest owed on tax • Construction Defect Evaluations Department of Historic Resources, the refunds, on their own behalf and on behalf developer partnerships allocated a major- of all other similarly situated taxpayers. • Replacement & Reproduction Cost ity of the credits to the Virginia Historic The Supreme Court noted that the Board Estimates - Insurance Fund, which in turn allocated the credits of Tax Appeals had, in the past, entertained • Narrative Reports & Expert Deposition to the investors. a class action and its rules allowed class Testimony The IRS determined that the inves- actions. Moreover, the court, quoting R.S. tors were not partners for federal tax 47:1401, stated that under the Louisiana purposes. The IRS further determined Constitution, the board operates as a court that the investors’ capital contributions of first impression with respect to factual to the partnership and receipt of state and legal determinations as it was created tax credits in return were instead sales of by the Legislature to “act as an appeal CONSTRUCTION state tax credits. The IRS argued in the board to hear and decide... disputes... alternative that these transactions were between a taxpayer and the collector of disguised sales between the partnerships revenue.” STEPHEN FLEISHMANN and their respective partners. The Tax [email protected] Court, however, concluded that by joining 504-455-5411 in Virginia Historic Funds as partners to www.titanconstruction.com
Louisiana Bar Journal Vol. 57, No. 6 419 Parish Taxing Authority and to “Willard Houston Vickers.” The amend- Language of the Applicable ment described the error as a “clerical” one. Trusts, Estate, A few months later, Mrs. Vickers moved Ordinance Probate & that her judgment be made executory and Immovable requested a writ of fieri facias be issued to In Scientific Drilling International v. the LaSalle Parish sheriff. Prior to the sale, Meche, 09-1120 (La. App. 3 Cir. 2/3/10), Property Law Homeland intervened and asserted that its ____ So.3d ____, 2010 WL 363868, mortgage was superior to Mrs. Vickers’ Lafayette Parish lost its bid to collect use Incorrect Identity of judicial mortgage. tax from a corporate taxpayer on equip- Mortgagor is Not The pertinent language regarding acts of ment purchased out-of-state and brought correction is found in La. R.S. 35:2.1(A), into the parish only for storage purposes. “Clerical Error” which states that a: Distinguishing the case of Word of Life Following his 2001 divorce, a former Christian Center v. West, 04-1484 (La. husband granted a collateral mortgage clerical error in a notarial act affect- 4/17/06), 936 So.2d 1226, the 3rd Cir- in favor of Homeland Federal Savings ing movable or immovable property cuit held that the property at issue could Bank in 2005, encumbering his separately or any other rights . . . may be correct- not have had a “taxable moment” in the owned property located in LaSalle Parish. ed by an act of correction executed parish because the parish sales-and-use Vickers v. Vickers, 09-0280 (La. App. 3 by the notary or one of the notaries tax ordinance contained no provision Cir. 11/18/2009), 25 So.3d 210. The col- before whom the act was passed, or authorizing the imposition of use tax on lateral mortgage, however, incorrectly by the notary who actually prepared property that was stored but not used in identified the mortgagor of the property the act containing the error. the parish. as Automotive Trucks & Tractors, L.L.C., a company solely owned by Mr. Vickers. The statute further provides that the: —Jaye A. Calhoun Mr. Vickers signed the mortgage on behalf Member, LSBA Taxation Section of Automotive Trucks & Tractors, L.L.C., act of correction executed in com- and as its president. pliance with this section shall be Jennifer Taylor Chick Meanwhile, in 2006, the former Mrs. given retroactive effect to the date McGlinchey Stafford, P.L.L.C. Vickers recorded in the mortgage records of recordation of the original act. 601 Poydras St., 12th Flr. of LaSalle Parish a judgment awarding her However, the act of correction shall New Orleans, LA 70130 $92,000 as full settlement of her community not prejudice the rights acquired by property claims against her former husband. any third person before the act of In 2007, Homeland’s collateral mortgage correction is recorded where the was amended by a notarial act of correction third person reasonably relied on to change the name of the mortgagor from the original act. “Automotive Trucks & Tractors, L.L.C.”
www.louisianaappeals.com
420 April / May 2010 La. R.S. 35:2.1(B). 11/18/09), 24 So.3d 988, writ denied, 09- ality on the attorney general, affording him The trial court agreed with Homeland 2778 (La. 2/26/10), ____ So.3d ____, 2010 an opportunity to be heard on the issue. La. and held that its collateral mortgage was WL 934241. Years prior to the 2006 foreclo- R.S. 49:257(C) and La. C.C.P. art. 1880. superior to Mrs. Vickers’ judicial mortgage. sure sale of the property, a prior owner had Thus, the only issue before the court was The appellate court, however, disagreed granted in favor of the police jury a servitude whether the prescriptive period set forth in and reversed the trial court’s decision, of way for a public road. Following the sale, the statute was applicable in this case. The holding that the error at issue was indeed the police jury sought to invalidate the sale court held that the statute applied here. a substantive error. Citing Black’s Law based on the landmark case of Mennonite Dictionary, the court stated that a clerical Bd. of Missions v. Adams, 103 S.Ct. 2706 —Chad P. Morrow error is one “resulting from a minor mistake (1983), in which the United States Supreme Member, LSBA Trusts, Estate, Probate or inadvertence, esp. in writing or copying Court held that before a state may deprive and Immovable Property Law Section something on the record, and not from ju- a person of a legally protected right to life, Sher Garner Cahill Richter Klein & dicial reasoning or determination.” In this liberty or property, it must first provide Hilbert, L.L.C. case, there were repeated references to the notice that is reasonably calculated, under 909 Poydras St., 28th Flr. limited liability company as the mortgagor all circumstances, to apprise the interested New Orleans, LA 70112 throughout Homeland’s collateral mort- party of the pending action and affording gage. The court held that these references him an opportunity to object. evidence an express determination that the The policy jury argued that the servitude KKayay E. DDonnellyonnelly limited liability company be recognized as agreement conveyed to it a property interest & AssociateAssociatess the mortgagor. that entitled it to notice of the foreclosure Although the parties agreed that the proceedings, and that the failure to provide CeCertifiedrtified CourtCourt ReportersReporters misidentification was erroneous, that it with notice violated its due process rights FFullull SServiceervice alone did not justify classifying such an recognized by the Supreme Court in Men- CouCourtrt RReportingeporting FirmFirm error as “clerical” in nature. The listing of nonite. But the appellate court upheld the CompleteComplete Litigation Support Support the limited liability company as the mort- trial court’s dismissal of the police jury’s gagor was held to be a substantive error action as having prescribed under La. R.S. 2424 HOUR HOUR SERVICE SERVICE because there was no evidence to suggest 13:3886.1(A), which provides that any VVideoideo D Depositionsepositions that it resulted from a minor mistake or such claim must be instituted within one VideoVideo Confe Conferencingrencing inadvertence during the documentation year from the date of the sheriff’s sale. In- RRealeal T Timeime T Transcriptionranscription preparation process. terestingly, the court expressly declined to CompleteComplete Computeri Computerizedzed ServicesServices address the police jury’s argument that the ConfeConferencerence RRoomoom Procedural Misstep Rules trial court’s holding violated its 14th Amend- ment due process rights, categorizing that Out Constitutional Challenge nowledgeable argument as an indirect constitutional attack KKnowledgeable Efficient In Rapides Parish Policy Jury v. on the one-year prescriptive period set forth Efficient in R.S. 13:3886.1. The court stated that it Catahoula Duck Club & Lodge L.L.C., Deedicateddicated the Rapides Parish Police Jury sought to could not address the constitutionality of invalidate a foreclosure sale of property the one-year prescriptive period because Suite 2025 Energy Centre over which it enjoyed a predial servitude the police jury did not raise the statute’s Suite 2025 Energy Centre Phone: 504.229.8220 unconstitutionality of the statute at the trial 11001100 Poydras Poydras Street Street TollFree:Toll Free: 866.301.8220 because the police jury did not receive NewNew Orleans, Orleans, LA 7016370163 Fax:Fax: 504.504.229.8219229.8219 notice of the sale. 09-0064 (La. App. 3 Cir. level. Also, the police jury did not serve the email:email: [email protected]@bellsouth.net pleading attacking the statute’s constitution- LOUISIANA Bar Today Get the latest Louisiana State Bar Association news in the free, weekly e-mailed update. It’s easy to subscribe. Go to: www.lsba.org/JoinLBT
Louisiana Bar Journal Vol. 57, No. 6 421 Young Lawyers Message... Spotlight... Mock Trial
may already be undertaking. your knowledge with your colleagues. CHAIR’S MESSAGE While this may not seem like an intuitive 1. Be sure that your current clients resource to many, other lawyers can be Marketing is for Young understand your areas of practice, as well wonderful referral sources if a client ap- Lawyers, Too as those of the other attorneys within proaches them with a case that is outside your firm. This will encourage them to of their areas of practice. By Melanie Mabile Mulcahy keep you in mind as legal needs arise. Existing clients can be a fertile source 5. Return the favor. When a client Young lawyers of future business. approaches you with a case that is not are often overlooked within your areas of focus, consider in the marketing pro- 2. Watch more experienced rainmak- referring the case to a comrade who cess of many firms. ers in your firm or your profession. regularly does that type of work. Other A certain amount Consider whether you could import some attorneys will appreciate the referral and of grooming is re- of their more successful techniques into may keep you in mind when they have quired to assist to- your own repertoire. work to refer. day’s young lawyers with becoming to- 3. Develop a niche practice within 6. Interact with non-lawyers. Since Melanie Mabile morrow’s successful Mulcahy your firm. Depending on the particular most of us have demanding professional rainmakers. Begin- economic environment, many firms will lives, it is difficult to find ways to have ning that process early in an attorney’s notice an increasing flow of a particular face-time with potential clients. One career can lay an important foundation type of case into the firm. Take on the way to do this is to consider speaking for his or her future success and for the challenge. Study the law regarding that at a trade association or other specialty firm’s continued profitability. Young genre of case, and, perhaps, attend a CLE meeting on a topic related to your areas lawyers must consider marketing as an on the subject. It is beneficial to be recog- of practice. For example, if you are an investment in their future with their firms, nized by the other members of your firm employment lawyer, try approaching an one that may figure prominently into their for being the resident “authority” on the organization of office managers or an- potential partnership tracks. subject. Make sure the other lawyers in other related professional association to Most young lawyers understand that your firm are able to publicize this service speak at a luncheon regarding Wage and marketing is important but do not have to clients and potential clients. Hour laws or some other employment- a plan of action to accomplish those related topic. You might also consider goals, for good reason. Abraham Lincoln 4. Mix with other lawyers. Consider joining non-lawyer professional organi- was quoted as saying, “A lawyer’s time ways to interact professionally with zations related to your areas of practice, and advice are his stock in trade.” Mr. your law school classmates or to involve alumni associations, community service Lincoln was correct; a lawyer’s time is yourself in bar association activities. organizations, and church groups. Don’t one of his most valuable assets. Most Capitalize on your strengths. If you be shy to talk about what you do with young lawyers would gladly commit have a gregarious personality, you might the people you meet. themselves to marketing their services, try lecturing at a CLE or attending bar if only those efforts did not require that association meetings and luncheons It is never too early to begin inte- they turn their time and attention away in order to familiarize other attorneys grating marketing strategies into your from their practices. Additionally, young with your particular legal practice and practice and into your extracurricular ac- lawyers typically have little to no budget services. On the other hand, if you are tivities. You may be pleasantly surprised available to assist in their rainmaking more introverted, consider attending a by the results of your efforts. efforts. I will offer several suggestions CLE or perhaps writing an article in one for readers to capitalize on efforts they of your focus areas to assist in sharing
422 April / May 2010 Young Lawyers Spotlight Kellie J. Curry she received her JD degree and bachelor of personal involvement with the organiza- Shreveport civil law degree from LSU Paul M. Hebert tion, she has encouraged and organized Law Center. Following graduation from the participation of many other volunteers The Louisiana law school, she served as a law clerk to the in her area. She is involved with the State Bar Associa- judges in Bossier and Webster parishes. Shreveport-Bossier Rescue Mission and tion’s (LSBA) Young During her clerkship, she volunteered as is a leader in her local church. In 2009, Lawyers Section is a Court-Appointed Special Advocate for she served as a Louisiana Association spotlighting young Caddo Parish, and she participated in the of Non-Profit Organizations community lawyer Kellie J. Volunteers for Youth Justice Jump Start leader. Curry. Program as a motivational speaker to As a member of the Shreveport, Boss- A resident of troubled youth. She also began her role as ier and Louisiana State bar associations, Shreveport and a an instructor at Bossier Parish Community Curry is active with the Women’s Section College during that time period, teaching and the Young Lawyers Section. In addi- native of Monroe, Kellie J. Curry Curry is currently an legal ethics and business law, a role which tion, she serves on the board of directors associate at The Law she has continued to date in addition to and as a volunteer with the Northwest Office of Katherine Clark Dorroh, L.L.C. maintaining her legal practice. Louisiana Pro Bono Project, accepting pro Although her practice focuses mostly Curry has become actively involved in bono cases on a monthly basis and rarely on family law, she handles cases in the the Shreveport-Bossier community since turning down an opportunity to share her areas of estate planning, successions and moving to the area in 2005. She devotes services with those in need. personal injury as well. In 2008, she was time and energy to Community Renewal Curry is committed to serving her cli- recognized as one of the “Best Attorneys” International, an international organiza- ents with compassion, commitment and by Shreveport-Bossier Magazine. tion started in the Shreveport-Bossier area integrity, and she is passionate about bring- In 2002, Curry received a BA degree that restores neighborhoods through its ing positive changes to her community, from Louisiana State University. In 2005, philosophy of caring. In addition to her both personally and professionally. Di s p u t e Ov e r Le g a l Fe e s ?
The LSBA Lawyer Fee Dispute Resolution Program may be able to help. Avoid the pitfalls of legal fee disputes such as disciplinary complaints or civil litigation by submitting your legal fee to binding low cost fee arbitration with the Louisiana State Bar Association. For more information on the process, go to www.lsba.org/FeeDispute or simply contact Bill King, Practice Assistance Counsel, at 504-619-0109 or [email protected]. Quick, Inexpensive, Informal, and Final resolution of attorney/client and attorney/attorney fee disputes.
Louisiana Bar Journal Vol. 57, No. 6 423 UPDATE Jesuit High Wins State dealt with the 1927 Mississippi River mock trial competition. The competition flood and the decision to blow a hole in is financially assisted by the Louisiana Bar Mock Trial Competition the river levee at Poydras Plantation to Foundation’s Interest on Lawyers’ Trust prevent New Orleans from flooding. The Account (IOLTA) Program. The team from Jesuit High School in blasting at Poydras Plantation resulted The High School Mock Trial New Orleans is the winner of the 2010 in St. Bernard Parish being completely Competition is designed to introduce Richard N. Ware IV State High School inundated with flood waters, causing students to the art of advocacy, supplement Mock Trial Competition, a project tremendous losses in private property. their knowledge of the workings of sponsored by the Louisiana State Bar Barbara Bell Melton and Karelia R. the court system and provide them the Association’s Young Lawyers Section. Stewart are the 2010 coordinators of the opportunity to develop the skills of As the state champion, the Jesuit High School Mock Trial Competition. The teamwork and oral presentation. The team will next represent Louisiana at annual state competition is dedicated to students, working in teams, prepare cases the National Mock Trial Competition in the late Judge Richard N. Ware IV. For for the prosecution and the defense and Philadelphia, Pa., on May 6-8. nearly a decade, Judge Ware assisted the present these cases before a judge and The Jesuit team was one of eight Young Lawyers Section in the adminis- mock jury of performance judges at trial. regional winners competing for the tration of various public service projects, Other team members portray clients, state title March 20 in Alexandria. The particularly devoted to serving as the witnesses and other principals. competition is open to all Louisiana presiding judge of the final round of the public and private high schools. Also placing in the state competition were the team from Haynes Academy Local Affiliates for Advanced Studies, Metairie, second place; the team from St. Paul’s School, Covington, third place; and the team from Caddo Magnet High School, Shreveport, fourth place. Also competing were the four other regional winners: Lafayette High School, Lafayette; Southern University Lab School, Baton Rouge; Episcopal High School, Baton Rouge; and Louisiana School for Math, Science and the Arts, Natchitoches. The Most Outstanding Witness Award went to Ryan Acomb from Jesuit High School. The Most Outstanding Attorney Award went to Peyton Fine from Jesuit High School and to Leyondo Dunn from The New Orleans Bar Association’s Young Lawyers Section coordinated a firm-sponsored lunch in December 2009 at Ozanam Inn, a homeless shelter in New Orleans. This is one of a series of lunches Southern University Lab School in Baton hosted at the shelter by the Young Lawyers Section. For this event, two New Orleans law firms, Taggart Rouge. Morton, L.L.C., and Phelps Dunbar, L.L.P., paid for the food and attorneys and staff members, in The topic for the state competition photo, prepared, cooked and served the food. The firms and volunteers produced more than 300 fish dinners and lunches for the next day as well.
Young Lawyers Section News Get the latest Young Lawyers Section news online Go to: www.lsba.org/YLS
The Young Lawyers Section Web site is a public service of the LSBA-YLS Council, providing YLS information to the public and communicating with YLS members.
424 April / May 2010 JUDICIAL Notes By Robert Gunn, Louisiana Supreme Court New JuDGE... Appointments
New Judge order of the Louisiana Supreme Court, to ► Retired Orleans Parish Traffic Court the Louisiana Judicial College Board of Judge Oliver S. Delery, 85, died Jan. 23. Perry M. Nicosia Governors for terms of office which end He took his first oath of office as judge was elected to Divi- Sept. 30, 2012. of Division D of Traffic Court on Jan. 1, sion C, 34th Judicial ► Beau P. Sagona was appointed, by 1967, and served there 32 years until his District Court. He order of the Louisiana Supreme Court, retirement in 1998. During his time on the earned his under- to the Mandatory Continuing Legal bench, he was a member of a number of graduate degree from Education Committee for a term of of- local, state and national committees re- the University of New fice which began Jan. 1 and will end on lated to Traffic Courts and criminal justice. Orleans in 1989 and Dec. 31, 2012. He was a past president of the American his JD degree from Judges Association and the Louisiana Loyola University Perry M. Nicosia Deaths City Court Judges Association. He was Law School in 1992, involved in several civic, charitable and where he was a member of Moot Court. ► 3rd Circuit Court of Appeal Judge social organizations and served in many Following graduation from law school, he Michael G. Sullivan, 68, died Dec. 29, leadership positions within those groups. joined a law firm where he practiced for 2009. Judge Sullivan earned his BA de- He was a retired lieutenant commander nearly 10 years before opening his own gree from Spring Hill College in 1964. in the U.S. Navy and remained in the firm. In 2007, he was elected to the St. He served in the U.S. Army as a Thai Reserves where he was a pilot for more Bernard Parish School Board where he translator/advisor in N.E. Thailand from than 20 years. served before his election to the bench. 1966-69. Following his graduation from ► Retired 10th Judicial District Court He is married to Nicole Nicosia and they Loyola University Law School in 1973, Judge Julian E. Bailes, 95, died Feb. 1. He are the parents of three children. he was in the general practice of law until attended Louisiana State Normal College 1983 and was first elected to the bench as (now Northwestern State University) and Resignation a judge of Lafayette City Court in October Louisiana State University Law School of that year. He was re-elected without before practicing law from 1937-60. He Orleans Parish Juvenile Court Judge opposition in 1985 and 1991. He was served as a first lieutenant in the U.S. Louis F. Douglas resigned from the bench elected to serve on the 3rd Circuit Court Army during World War II and was part effective Jan. 31. of Appeal in 1995. He was a member of of the Battle of the Bulge, where he the Judicial Administration Division Traf- was wounded and awarded two Purple Hearts. He was elected as city judge of Appointments fic Court Committee and the Committee of Ethics and Judicial Responsibility of Natchitoches in 1948 and was re-elected in 1954. He was elected as a judge for the ► 1st Judicial District Court Judge Mi- the American Bar Association. He also 10th JDC in 1960 and served there until chael A. Pitman and Crowley City Court served as vice president of the Louisiana his retirement in 1972. Judge M’Elise Trahan were appointed, by City Judges Association.
LJC & LSBA Joint Summer School June 6-11, 2010 Annual MeetingFor more information, visit www.lsba.org/AnnualMeeting
Louisiana Bar Journal Vol. 57, No. 6 425
For a more detailed schedule, visit www.lsba.org/AnnualMeeting People LAWYERS ON THE MOVE . . . NEWSMAKERS
Deutsch, Kerrigan & Stiles, L.L.P., in Stephen C. Gaubert and Richard E. Smith LAWYERS ON New Orleans announces that Paul D. announce the formation of their firm, THE MOVE Hale, Joshua G. Keller and Charlotte Gaubert & Smith, with offices located at C. Meade have been named partners in Ste. 404, 600 Jefferson St., Lafayette, LA Adams and Reese, L.L.P., announces that the firm. 70501; phone (337)354-3000. E. Paige Sensenbrenner has been named senior partner in charge of the firm’s New Dodson, Hooks & Frederick, A P.L.C., an- Gieger, Laborde & Laperouse, L.L.C., Orleans office andV. Thomas Clark, Jr. nounces the relocation of its office to City announces that A. Simone Manuel, has been named partner in charge of the Plaza, Ste. 850, 445 North Blvd., Baton Jameson M. Taylor, Sarah Miller Johnson, firm’s Baton Rouge office. Rouge, LA 70802; phone (225)756-0222. Christopher R. Teske and Emily E. Eagan Affiliated with the firm are Richard J. have joined the firm as associates in the Carver, Darden, Koretzky, Tessier, Finn, Dodson, Kenneth H. Hooks III, Brent New Orleans office. Blossman & Areaux, L.L.C., in New P. Frederick, H. Price Mounger, Michael Orleans announces that Raymond G. Thiel Beckers and Michael A. Colomb Gordon, Arata, McCollam, Duplantis & Areaux has been elected to serve as the (of counsel). Eagan, L.L.P., announces that Sara E. managing member of the firm. Mouledoux has become a partner in the Galloway, Johnson, Tompkins, Burr & firm’s New Orleans office. Conroy Law Firm, P.L.C., in Metairie Smith, P.L.C., announces that Frederick announces that Tom D. Snyder, Jr. has W. (Billy) Swaim III and Michael D. Jones, Walker, Waechter, Poitevent, Car- become a partner of the firm. Lonegrass have become directors in the rère & Denègre, L.L.P., announces that firm’s New Orleans office. Also, Kath- Donald W. Washington has joined the Cook, Yancey, King & Galloway, A erine O. Burkart has joined the firm’s firm’s Lafayette office,Seth A. Levine has P.L.C., in Shreveport announces that Mandeville office. joined the firm’s New Orleans office as a Elizabeth M. Carmody has joined the firm as an associate.
Raymond G. William M. Sarah B. Belter Elizabeth M. V. Thomas Clark, Jr. R. Keith Colvin Areaux Backstrom, Jr. Carmody
Adrian A. D’Arcy Robert J. David Mollye M. Michael B. Donald Michael C. Drew Allen E. Frederic III Demosthenidy
426 April / May 2010 special counsel, and Mollye Monceaux E. Lapeze have been elected partners in Jessie Schott Haynes, with the firm of Demosthenidy has joined the firm’s New the firm’s New Orleans office. Galloway, Johnson, Tompkins, Burr & Orleans office as an associate. Louis S. Smith, P.L.C., in New Orleans, has re- Quinn is the practice group leader of the Phelps Dunbar, L.L.P., announces that ceived a peer review rating of “AV” from firm’s real estate practice group in Baton Taylor S. Carroll has been elected to LexisNexis Martindale-Hubbell.® Rouge. William M. Backstrom, Jr. is the partnership in the Baton Rouge office. practice group leader of the firm’s tax and Christine W. Marks, with Conroy Law estates practice group in New Orleans. Shields Mott Lund, L.L.P., in New Orleans Firm, P.L.C., in Metairie, has been cer- announces that Elizabeth L. Gordon, tified by the Louisiana Board of Legal Jones, Walker, Waechter, Poitevent, Car- Andrew G. Vicknair and Adrian A. Specialization as a board-certified estate rère & Denègre, L.L.P., announces that D’Arcy have been named partners. planning and administration specialist. seven attorneys have been elected to partnership: Sarah B. Belter, Michael Taylor Porter in Baton Rouge announces Lorraine P. McInnis, a litigator in the C. Drew, Allen E. Frederic III, Asher that Edward D. Hughes has become a New Orleans office of McGlinchey J. Friend, Neely Sharp Griffith and Wil- partner. Stafford, P.L.L.C., is serving as president liam P. Wynne, all in the New Orleans of the Jefferson (Parish) Bar Associa- office; and Michael B. Donald in the NEWSMAKERSNEWSMAKERS tion. Houston, Texas, office. Michael D. Carleton, a member of the Courtney C. Miller, an associate in Jones, Walker, Waechter, Poitevent, Car- Woodley, Williams Law Firm, L.L.C., in the New Orleans office of Adams and rère & Denègre, L.L.P., announces that F. Lake Charles, is serving as the Louisiana Reese, L.L.P., was appointed to the Rivers Lelong, Jr., partner in the New state chair for the American College of Supervisory Committee of the board of Orleans office, and James C. Percy, Mortgage Attorneys. directors of Shell New Orleans Federal partner in the Baton Rouge office, have Credit Union. been elected to the firm’s board of direc- R. Keith Colvin, head of the real estate tors for a four-year term. section of McGlinchey Stafford, P.L.L.C., Stephen J. Oats, a partner with the and practicing in the New Orleans office, Oats & Hudson Law Firm in Lafayette, Leake & Andersson, L.L.P., announces is serving as secretary of the American was elected 2010 chair of the Louisiana that Patrick M. Wartelle has been named College of Mortgage Attorneys. Also, Wildlife and Fisheries Commission. a member in the firm’s Lafayette office. Colvin was elected 2009-10 chair of the New Orleans Regional Leadership Monica C. Sanchez, managing partner Liskow & Lewis, A P.L.C., announces Institute board of directors. of The Sanchez Firm in Metairie, is one that Joseph I. Giarrusso III, and James Continued next page
Asher J. Friend John E. Galloway Joseph I. Elizabeth L. Neely Sharp Griffith Jessie Schott Haynes Giarrusso III Gordon
Edward D. Hughes James E. Lapeze F. Rivers Lelong, Jr. Seth A. Levine Michael D. Christine W. Marks Lonegrass
Louisiana Bar Journal Vol. 57, No. 6 427 of only five recipients nationwide of the Louisiana Super Lawyers 2010 John C. Blackman IV, John J. Broders, 2010 Top Lawyers Under 40 Award, Baker, Donelson, Bearman, Caldwell Robert R. Casey, Thomas A. Casey, Jr., J. presented by the Hispanic National Bar & Berkowitz, P.C. (Baton Rouge, Kelly Duncan, David F. Edwards, Mad- Association. Mandeville, New Orleans): Alton E. eleine Fischer, Elizabeth J. Futrell, Glenn Bayard III, Phyllis G. Cancienne, Roy C. G. Goodier, Harry S. Hardin III, Pauline Timothy Michael Warner, a partner in Cheatwood, James H. Daigle, Christopher F. Hardin, Miriam W. Henry, Cornelius the firm of Warner & Wintrode, P.A., in O. Davis, Nancy Scott Degan, Donna D. R. Heusel, William H. Hines, Thomas Panama City, Fla., is a recipient of the Fraiche, Amelia Williams Koch, Robert P. Hubert, Grady S. Hurley, William J. 2010 Florida Bar President’s Pro Bono W. Nuzum, James H. Roussel and Danny Joyce, Edward J. Koehl, Jr., Charles A. Service Award. Warner represents the G. Shaw. Landry, Michael G. Lemoine, Robert T. 14th Judicial Circuit. Cook, Yancey, King & Galloway, A Lemon II, Sidney F. Lewis V, Edward F. P.L.C. (Shreveport): Samuel W. Caver- Martin, Michael B. Mauldin, Louis S. PUBLICATIONSPUBLICATIONS lee, Bernard S. Johnson and Herschel E. Nunes III, David G. Radlauer, Rudolph Richard, Jr. R. Ramelli, Carl D. Rosenblum, Alex P. The Best Lawyers in America 2010 Deutsch, Kerrigan & Stiles, L.L.P. Trostorff, Richard J. Tyler, R. Patrick Baker, Donelson, Bearman, Caldwell (New Orleans): Francis J. Barry, Jr., Vance, Edward D. Wegmann and Robert & Berkowitz, P.C. (Mandeville): Danny Terrence L. Brennan, Bert M. Cass, Jr., B. Worley, Jr. G. Shaw, New Orleans Area Construction Robert E. Kerrigan, Jr., Charles E. Leche, Liskow & Lewis, A P.L.C. (Lafay- Lawyer of the Year 2010. Frederic Theodore Le Clercq, Nancy J. ette, New Orleans): Donald R. Abaunza, Gainsburgh, Benjamin, David, Marshall, Joseph L. McReynolds, Rich- Marguerite L. Adams, Robert S. Angelico, Meunier & Warshauer, L.L.C. (New ard B. Montgomery III, Ellis B. Murov, Wm. Blake Bennett, James A. Brown, Orleans): Robert J. David, Gerald E. Howard L. Murphy, Charles F. Seemann, James C. Exnicios, S. Gene Fendler, Don Meunier and Irving J. Warshauer. Jr., A. Wendel Stout III and William E. K. Haycraft, Robert E. Holden, Jonathan Jones, Walker, Waechter, Poitevent, Wright, Jr. A. Hunter, R. Keith Jarrett, Philip K. Carrère & Denègre, L.L.P. (New Or- Galloway, Johnson, Tompkins, Burr Jones, Jr., David W. Leefe, Thomas J. leans): Edward F. Martin, New Orleans & Smith, P.L.C. (New Orleans): John McGoey II, Joe B. Norman, Richard W. Employee Benefits Law Lawyer of the E. Galloway. Revels, Jr., Leon J. Reymond, Jr., George Year 2010; Rudolph R. Ramelli, New Jones, Walker, Waechter, Poitevent, H. Robinson, Jr., James F. Shuey, Law- Orleans Tax Law Lawyer of the Year Carrère & Denègre, L.L.P. (Baton rence P. Simon, Jr. and John M. Wilson. 2010; and Richard P. Wolfe, New Orleans Rouge, Lafayette, New Orleans): Robert Phelps Dunbar, L.L.P. (Baton Rouge, Corporate Lawyer of the Year 2010. B. Acomb, Jr., H. Mark Adams, Jennifer New Orleans): M. Nan Alessandra, Jane L. Anderson, William M. Backstrom, Jr., E. Armstrong, Brent B. Barriere, John A.
Edward F. Martin Lorraine R. Gerald E. Meunier Stephen J. Oats James C. Percy Louis S. Quinn McInnis
Rudolph R. Ramelli Monica C. Sanchez E. Paige Tom D. Snyder, Jr. Frederick W. Andrew G. Vicknair Sensenbrenner Swaim III
428 April / May 2010 Bolles, Kim M. Boyle, Patrick J. Butler, Mary Ellen Roy, Hugh R. Straub, James Nightingale’s Healthcare News 2009 :(.Kaler (Washington, D.C׀Jr., Philip deV. Claverie, Sr., Mark A. A. Stuckey and Brian D. Wallace. Ober Fullmer, George M. Gilly, George B. Hall, Taylor Porter (Baton Rouge): W. Richard W. Westling, Outstanding Health- Jr., Sessions Ault Hootsell III, Michael Arthur Abercrombie, Jr., Anne J. Crochet, care Litigator 2009. D. Hunt, H. Alston Johnson III, Thomas Vicki M. Crochet, Paul O. Dicharry, Brett H. Kiggans, Jeffery W. Koonce, David P. Furr, Cyrus J. Greco, Mary C. Hester, New Orleans City Business 2010 B. Lawton, Steven J. Levine, John P. John F. McDermott, W. Shelby McKenzie, Herman, Herman, Katz & Cot- Manard, Jr., Richard E. Matheny, Robert Erick Y. (Hiko) Miyagi, Harry J. (Skip) lar, L.L.P. (New Orleans): Leonard A. P. McCleskey, Jr., William J. Riviere, Phillips, Jr. and W. Luther Wilson. Davis and Stephen J. Herman, Top 50 Harry Rosenberg, Randy P. Roussel, Attorneys
Irving J. Warshauer Patrick M. Wartelle Donald W. Richard P. Wolfe William P. Wynne Washington
People Deadlines & Notes SandestinDestin, Golf & Florida Beach Resort Deadlines for submitting People announcements (and photos) : Publication Deadline Aug./Sept. 2010 June 4, 2010 June 6-11, 2010 Oct./Nov. 2010 Aug. 4, 2010 Dec. 2010 /Jan. 2011 Oct. 4, 2010 Higher Ground: Announcements are published The Louisiana Judicial College and the Louisiana State Bar Association Joint Summer School free of charge for members of June 6-9, 2010 the Louisiana State Bar Asso- 69th Annual Meeting ciation. Members may publish June 9-11, 2010 photos with their announce- ments at a cost of $50 per photo. Send announcements, This Year’s Highlights: ► Multiple-track programming including Evidence, Civil Litigation, Criminal Law, Issues for City photos and photo payments Courts, Office Practice, Family and Juvenile Law (checks payable to Louisiana ► Joint Summer School with the Louisiana Judicial College State Bar Association) to: ► Judges Best Practices ► Joint Reception – Wednesday, June 9 ► Great Debates Publications Coordinator ► National Speakers Darlene M. LaBranche, • Donna Brazile – Beyond Partisanship Louisiana Bar Journal, • Dr. Michelle McMurry Heath – Health Care Reform • Tamar Meekins – Lawyer Ethics 601 St. Charles Ave., D e • David Steelman – Case Management Forum onna Brazil New Orleans, LA 70130-3404 • Mark S. Curriden – Contempt of Court: A Lesson in Legal History or e-mail [email protected]. To view the Summer School Schedule, visit www.lsba.org/AnnualMeeting
Louisiana Bar Journal Vol. 57, No. 6 429 Classified ads ONLINE at www.lsba.org CLASSIFIED NOTICES firm with offices in multiple locations in Standard classified advertising in our regu- POSITIONS OFFERED Louisiana. Our firm has provided client service for more than 80 years. This associ- lar typeface and format may now be placed Oil and gas title attorney. AV-rated ate position is located in the Baton Rouge in the Louisiana Bar Journal and on the Shreveport firm is seeking an experienced office. We offer competitive salaries and LSBA Web site, LSBA.org. All requests oil and gas title attorney either at the as- comprehensive benefits. If interested, please for classified notices must be submitted sociate level or as a potential lateral. Reply in writing and are subject to approval. forward your résumé to P.O. Box 3197, to C-Box 255. Copy must be typewritten and payment Baton Rouge, LA 70821-3197 or e-mail must accompany request. Our low rates for [email protected]. placement in both are as follows: Environmental litigation attorney. Cook, Yancey, King & Galloway, A.P.L.C., Barkan Neff Handelman Meizlish, L.L.P., in Shreveport is seeking to expand its RATES seeks an associate attorney with zero to five environmental litigation practice and is years’ experience for its Social Security CLASSIFIED ADS seeking an environmental litigator with disability practice in New Orleans. Can- Contact Krystal L. Bellanger at at least 15 years’ experience as a potential didates should have a strong work ethic (504)619-0131 or (800)421-LSBA, lateral to assist in this expansion. Please and a desire to litigate matters. Previous ext. 131. contact Al Hand, Shareholder, (318)227- experience in Social Security, workers’ 7727, or Candace Simmons, Director of Non-members of LSBA compensation, labor, employment, or wage Marketing and Recruiting, candace.sim- $85 per insertion of 50 words or less and hour law beneficial though not required. $1 per each additional word [email protected], for additional Recent law school graduates encouraged $20 for Classy-Box number information. to apply. Travel is a significant component Members of the LSBA of this opportunity. We provide a collegial Curry & Friend, P.L.C., a growing New $60 per insertion for 50 words or less and supportive work environment as well Orleans CBD/Northshore AV-rated defense $1 per each additional word as competitive salary and benefits pack- firm is currently seeking two experienced No additional charge for Classy-Box age. Please fax or e-mail your cover letter number litigation attorneys with minimum five- and résumé to: [email protected] plus years’ defense experience in complex or fax to (504)525-0766, ATTN: Monica Screens: $25 litigation; environmental law/toxic tort Headings: $15 initial headings/large type Ferraro. experience preferred. The firm offers excellent work environment, competitive BOXED ADS Fisher & Phillips, L.L.P., is seeking a ju- Boxed ads must be submitted camera ready salary and benefits. E-mail résumé, writ- nior level associate with two-three years of by the advertiser. The ads should be boxed ing sample and reference to johnbattin@ experience for its New Orleans office. The and 2¼” by 2” high. The boxed ads are $70 curryandfriend.com. per insertion and must be paid at the time of candidate must have litigation experience placement. No discounts apply. and should have employment litigation Litigation attorney with at least three experience. Must have good legal research years of casualty litigation experience DEADLINE and writing skills. Must have finished in the For the August issue of the Journal, all classified needed to join a Baton Rouge-based law notices must be received with payment by June 18, 2010. Check and ad copy should be sent to: EXAMINER OF LOUISIANA BAR JOURNAL QUESTIONED DOCUMENTS Classified Notices WILLS • CHECKS 601 St. Charles Avenue ALTERED RECORDS New Orleans, LA 70130 DISPUTED SIGNATURES RESPONSES Mary Ann Sherry, CDE To respond to a box number, please address Board Certifi ed • Court Qualifi ed your envelope to: NADE DIPLOMATE Journal Classy Box No. ______Greater N.O. Area (504) 889-0775 c/o Louisiana State Bar Association 601 St. Charles Avenue Outside Greater N.O. (888) FORGERY New Orleans, LA 70130 www.maryannsherrycde.com
430 April / May 2010 top third of the law school class. Should be Ideal setup with small, well-managed AV barred in Louisiana. Please direct all inqui- ForFO RentR RENT law firm. Window office on 27th floor of ries to Sheryl McGowan at smcgowan@ MetairieMetairie 650 Poydras Building with shared use of laborlawyers.com. Fisher & Phillips is one reception and conference rooms, recep- of the oldest and largest labor and employ- Office for rent in prime Metairie location. tionist, modern telephone system, library, ment boutiques with 235 attorneys in 22 Space for secretary and use of common Westlaw, digital copiers and fax machines, offices across the country. areas including waiting room, kitchen and DSL Internet connection and kitchen fa- conference room as well as use of digital cilities. $1,100/month. Secretarial station ServicesSERVICES copier, fax machine, telephone equipment and bookkeeping and billing services also and wireless Internet access. Please contact available. Excellent referrals for lawyers Texas attorney, LSU Law 1985. Admitted Gerard Archer, (504)833-3036. practicing in bankruptcy, tax, trusts and in Louisiana and Texas. I am available to estates. Send letter in strict confidence to attend hearings, conduct depositions, act as ForFO RentR RENT C-Box 254 or [email protected] for local counsel and accept referrals for general NewNEW Orleans orleans more information. civil litigation in the Houston area. Contact Manfred Sternberg, Jr. at (713)622-4300. Great opportunity for lawyers/sole practi- Office space available in an historic 1848 tioners seeking a New Orleans CBD office Warehouse District office, located at 858 Brief writing/legal research. Columbia location. 616 Baronne St., Suite 301, offers Camp St., New Orleans. The office space Law School graduate; former U.S. 5th high-speed Internet access, cable, telephone consists of two large offices with a balcony Circuit staff attorney; former U.S. District and optional receptionist to answer calls. overlooking a beautiful French Quarter- Court, Western District of Louisiana, law This location has desks and all hookups style courtyard with fountain. Included in clerk; more than nine years of legal experi- available. This office space also has a confer- the rent is a receptionist, large conference ence; available for brief writing and legal ence room available for use. The space is in room, kitchen and a small conference room. research; references and résumé available move-in condition, clean environment, $1,500 per month. Parking is available in an on request. Douglas Lee Harville, lee.har- close to City Hall and the Civil Courts Build- adjacent lot for an additional monthly fee. [email protected], (318)222- ing. Easily accessible to all. Rent is $350 For further information, call (504)523-1986 1700 (Shreveport). per month without receptionist, $400 with or e-mail [email protected]. receptionist. If interested, please contact Ms. Photos may be viewed at: http://picasaweb. Legal research/briefs, drafts of pleadings Pamela Day at (504)561-1128. google.com/101623888811160306245/ carried out efficiently and promptly. Thirty OfficePhotos. years’ litigation and appellate experience; Offices availablein prestigious downtown AV-rated. Résumé available on request. For building, tastefully renovated. 829 Baronne NoticeNOTICE more information, contact Bonnie Zakotnik, St. Offices rent as a suite or individually. (504)296-6011 and (504)486-6011, zakot- Excellent referral system among lawyers. John J. Pace intends to file a petition seek- [email protected] (New Orleans). Includes secretarial space, receptionist, ing reinstatement of his license to practice telephones, voice mail, conference rooms, law within 30 days. Any person(s) concur- 35-year experienced plaintiff med-mal kitchen, Westlaw, office equipment and park- ring with or opposing this petition must file trial attorney available for any or all case ing. Walking distance of CDC, USDC and such within 30 days with the Louisiana evaluation, consultation, preparation, many fine restaurants. Call Cliff Cardone or Attorney Disciplinary Board, Ste. 310, record review, research and deposition Kim Washington at (504)522-3333. 2800 Veterans Memorial Blvd., Metairie, assistance from before filing through trial. LA 70002. For more information and rates, call or e-mail Edward P. Sutherland, Baton Rouge, (225)343-8024, e-mail [email protected].
Forensic Document Computer Forensic Examiner Mississippi Attorney Examiner Carey R. Varnado Court Qualified Expert Witness Tulane Law 1976 Robert G. Foley Caddo, 1st Judicial District Selected to “Best Lawyers in America” Handwriting • Typewriting • Copies 2003-08 Ink/Paper Analysis & Dating Federal, W. District of LA • Case Referrals Certified & Court Qualified in EnCase Certified Examiner • Attend Depositions and Hearings Federal, State, Municipal & Military Courts since 1972 D. Wesley Attaway Post Office Drawer 1975 318-797-4972 or 393-3289 (cell) Hattiesburg, MS 39403 Phone: (318) 322-0661 [email protected] (601) 544-1234 www.robertgfoley.com [email protected]
Louisiana Bar Journal Vol. 57, No. 6 431 News awards... local bars... LBF Gala
Update LSBA Members Receive Louisiana Appleseed Good Apple Awards
Louisiana State Bar Association mem- bers received Louisiana Appleseed Good Apple Awards during the organization’s gala in January. The awards honor mem- bers for their generosity and commitment to pro bono excellence. Andrew R. Capitelli, an associate with Sher Garner Cahill Richter Klein & Hilbert, L.L.C., in New Orleans, was recognized for his continued dedication to Louisiana Appleseed’s project to update the Disaster Resource Center manual for Crowley City Judge Marie B. (M’elise) Trahan, center, was awarded the Don E. Wydra Memorial pro bono attorneys, in cooperation with Award at the 30th annual Louisiana Governor’s Conference on Juvenile Justice in March. The the Louisiana State Bar Association. Governor’s Juvenile Justice and Delinquency Prevention Advisory Board honoured Judge Trahan The Louisiana Bar Foundation Fellows for her “extraordinary contribution to juvenile justice and delinquency prevention.” With her are Class of 2008, class project participants, Dr. Mary Livers, deputy secretary, Office of Juvenile Justice; and John Baker, supervisor, OJJD. and volunteers from New Orleans, Baton Rouge and Lafayette were recognized V. Brown, Donna D. Fraiche, Jan M. recognized the outstanding service of its for their pro bono assistance to ensure Hayden, Don K. Haycraft, Katherine volunteers during the annual Volunteer equitable allocation of funding for spe- A. Hoffman, Mark A. Moreau, Carole Appreciation and Recognition Awards cial needs students in Louisiana public Cukell Neff, Christopher K. Ralston, Ceremony in December 2009. Louisiana schools. Norman Rubenstein, Rafael Saddy and State Bar Association President Kim M. Louisiana Appleseed is part of a net- Marta-Ann Schnabel. Boyle presided over the event. work of 16 public interest justice centers Ex-officio board members are Mark The New Orleans office of Baker, in the United States and Mexico. C. Surprenant, past chair 2008; Marion Donelson, Bearman, Caldwell & D. Floyd, representing the Jefferson Berkowitz, P.C., was recognized as the New Orleans Pro Bono Bar Association; John E. McAuliffe, 2009 Law Firm of the Year. During 2009, Jr., representing the New Orleans the members of the firm provided more Project Announces 2010 Bar Association; Cynthia M. Petry, than 1,000 hours of volunteer service to Officers, Board Members representing the 22nd Judicial District The Project and its clients through the Court; J. Van Robichaux, representing participation of 15 attorneys who worked Justin I. Woods is serving as the the St. Bernard Bar Association; on 40 cases. In October 2009, the firm 2010 chair of The Pro Bono Project in and Rachel Piercey, executive partnered with The Project to present a New Orleans. Joining him as officers director, The Pro Bono Project. CLE program on professionalism duties are U.S. District Court Judge Jay C. and how pro bono work can fulfill these Zainey, first vice chair; Catherine E. Volunteers Recognized for obligations. Lasky, second vice chair; Orleans Parish Service to New Orleans Pro Orleans Parish Civil District Court Civil District Court Judge Robin M. Judge Michael G. Bagneris was Giarrusso, secretary/treasurer; and Mark Bono Project honored as the 2009 Jurist of the Year. A. Cunningham, immediate past chair. The Pro Bono Project in New Orleans Judge Bagneris was a volunteer for The Serving on the 2010 board are Marcus
432 April / May 2010 Project and served as chair in 1999. He continues to keep the interests of Local / specialty bars The Project close at hand as the court reviews and implements new operations and procedures. Mark A. Cunningham, immediate past chair of The Project, received the 2009 Leadership Award for leading The Project through the tough economic year and for his longtime commitment to The Project. The 2009 Distinguished Service Awards went to Michelle Egan, director, talent development, O’Melveny & Myers, San Francisco, Calif.; Lorien Golaski, Dechert Law Firm; Sherry Dolan, pro bono coordinator, Baker Donelson; John A. (Jack) Gordon, senior partner, Gordon, Arata, McCollam, Duplantis & The Louis A. Martinet Legal Society, Inc. Greater Baton Rouge Chapter and the Baton Rouge Bar Eagan, L.L.P.; and Skadden, Arps, Slate, Association hosted their annual joint luncheon on Feb. 4. Guest speaker was Superintendent John Meagher & Flom and associate Daniel Dilworth of the East Baton Rouge Parish School Systems. Dilworth discussed several topics, including children with special needs, year-round school and the importance of business support. From left, Zweben. Alejandro R. Perkins, president of the Louis A. Martinet Legal Society; Dilworth; Fred T. Crifasi, Also recognized were Right Hat, 2009 president of the Baton Rouge Bar Association; and Christopher Hebert, second vice president of the Pro Bono Corporate Partner; Loyola Louis A. Martinet Legal Society. Photo by Pamela Labbé. University College of Law, 2009 Law School of the Year; Desiree Giler Mann, Association for Women Eiselen, vice president of membership; 2009 Friend of Pro Bono; Homero Lopez, Attorneys Hosts Holiday Tea Kim Ngan Nguyen, vice president of 2009 Pro Bono Law Student of the Year; programs, development and community Reba Mackey, 2009 Paralegal of the Year; The Association for Women Attorneys relations; and Erick Y. (Hiko) Miyagi, and Sessions Fishman & Nathan, L.L.P., (AWA) New Orleans Chapter hosted its director. 2009 Distinguished Donor, for directing annual holiday tea in December 2009. The officers are in the process cy pres funds to The Project from a class- Members donated gifts for a family in of creating a Web site, obtaining action settlement that set aside money need as part of the AWA’s Community an organization e-mail address and for civic and nonprofits as a part of the Service Program. developing a meeting schedule. settlement. Since 1976, the AWA has been a For more information, contact Attorneys and other professionals resource for information and networking President Christine Changho Bruneau at were honored for their volunteer in the metropolitan legal community of (504)568-9393 or e-mail cbruneau@csa- services over 100 and 50 hours, as New Orleans and its environs. The AWA lawfirm.com. were 2009 Contributing Out-of-State membership consists of every sector of Law Firms and 2009 Contributing Law the legal community — public and private 2010 ABOTA Officers, Schools. The 2009 Pro Bono Honor practitioners in civil and criminal law, Chairs Installed Roll acknowledged the more than judges, professors, corporate counsel, 500 volunteer attorneys, paralegals, law clerks and law students. John A. Jeansonne of Lafayette was companies, professionals and other elected 2010 president of the Louisiana individuals who contributed legal or Louisiana Asian Pacific Chapter of the American Board of Trial other services. America Bar Association Advocates. For a complete listing, go to: http:// Installs Officers, Directors Other 2010 officers are Frank E. Lam- probono-no.org/2009volapp.html. For othe III of Covington, president-elect; S. more information on The Pro Bono Officers and directors of the newly Gene Fendler of New Orleans, secretary; Project, to volunteer or to donate, contact Michael T. Pulaski of Covington, treasurer; Rachel Piercey at (504)581-4043. formed Louisiana Asian Pacific America Bar Association have been installed. and Sharon Stickling of Baton Rouge, Christine Changho Bruneau is executive director. The 2010 chairs are Gra- president; Mike Trong Nguyen, executive cella Simmons of Baton Rouge, Masters vice president; Naomi Kim, secretary; in Trial Coordinator and Membership; and Eugene T. Rhee, treasurer; Carlina C. Charles R. Moore and Emile C. Rolfs III, both of Baton Rouge, program chairs.
Louisiana Bar Journal Vol. 57, No. 6 433 Ziegler Installed as 2010 Lafayette Bar Association President
Charles W. (Chuck) Ziegler IV, a sole practitioner, was installed as the 2010 president of the Lafayette Bar Association in November 2009. He was sworn into of- fice with his board of directors and fellow officers by Louisiana Supreme Court Chief Justice Catherine D. Kimball at a banquet held in his honor. Ziegler received his JD degree from Tulane Law School and began his legal career as a solo practitioner working in the areas of personal injury and real estate defense. Also serving on the 2009-10 board are Louisiana Supreme Court Chief Justice Catherine D. Kimball, center, installed the 2009-10 officers of President-Elect Andre Doguet, Secretary/ the Lafayette Bar Association, from left, President-Elect Andre Doguet, President Charles W. (Chuck) Ziegler IV, Immediate Past President Rebekah R. Huggins and Secretary/Treasurer Larry Curtis. Treasurer Larry Curtis, Immediate Past President Rebekah R. Huggins, and Aaron presented seven awards during its 24th capital defense advocacy in Louisiana. J. Allen, Tiffany C. Babineaux, Nicole annual Justice Albert Tate, Jr. Awards Paul C. Fleming, Jr. of New Orleans Breaux, Marianna Broussard, Ariel A. Banquet in December 2009. and Richard C. Goorley of Shreveport Campos, Sr., Shannon S. Dartez, Blake R. Jean M. Faria of Baton Rouge received both received the President’s Award, David, Cade A. Evans, Joseph C. Giglio, the Justice Albert Tate, Jr. Award for her presented by LACDL President Rick Jr., Tony Morrow, Tricia R. Pierre, Dona dedication and work in the criminal Schroeder. Fleming serves on the K. Renegar, Jeffrey A. Riggs, Maggie T. justice field. She currently works with LACDL Executive Committee and has Simar and Cynthia K. Simon. the Louisiana Public Defender Board. planned numerous CLE seminars for The 2009-10 section chairs are Mari- Samuel S. Dalton of New Orleans LACDL over the years. Goorley planned anna Broussard, Lafayette Volunteer received the Chief Justice Pascal F. a successful death penalty certification Lawyers; Nicole Breaux, Family Law Calogero, Jr. Lifetime Achievement seminar with statewide attendance and Section; and Cynthia K. Simon, Lafay- Award, jointly presented with the nationally known speakers. ette Young Lawyers Association. Louisiana Public Defender Association. He was recognized for dedicating his LBF Annual Fellows career to work on behalf of criminal Meeting in June La. Association of Criminal justice. Defense Lawyers Presents Kurt J. Goins of Shreveport received The Louisiana Bar Foundation (LBF) Justice Tate Awards the Public Defender Gideon Award. will hold its annual membership meeting Currently working with the Caddo at 8 a.m. Thursday, June 10, at the The Louisiana Association of Parish Public Defenders Office, Goins Sandestin Golf and Beach Resort in Criminal Defense Lawyers (LACDL) has represented the indigent for more Destin, Fla. The breakfast meeting is than two decades, defended capital cases held in conjunction with the Louisiana ANSWERS for puzzle on page 401. for 15 years, represented more than 100 State Bar Association’s 69th Annual
1 2 3 4 5 6 7 capital clients and tried 15 capital cases Meeting. E d W i N E d W A r d S to verdict. X A O L A i T 8 9 All LBF Fellows in good standing (LSBA P A T E L L A C A N d y Gerald J. Block of Lafayette received membership status and those making O T O i H S X the Criminal Justice Act Panel Award. A 10 11 S T A B S N O i S E S solo practitioner, Block was recognized an annual, unrestricted financial contri- 12 U G E T C for his commitment, professionalism bution) will receive a notice and atten- 13 14 15 16 r O E M E r M A N T r A and achievement in the appointed dance form, Board slate and committee 17 E N J O T representation of clients in Louisiana’s selection form in early May. Fellows in 18 19 20 S T U d i O J U N T A federal courts. good standing are entitled to one vote 21 F r U r O G L Michele Fournet of Baton Rouge at the annual membership meeting. 22 23 O N E O r d y N A S T y received the Sam Dalton Capital Defense r E E A E U S 24 Advocacy Award for her dedication to T U N E d i N 25S E N A T
434 April / May 2010 LAJ’SLAJ’S PoPoS t-LegiSLAtive RetR e At • June 27 – 30, 2010
Monterey 1 The spectacular, 400-acre Carmel Valley Ranch is a world-class destination unto itself. Golf, tennis, exceptional dining and luxurious guest quarters are but a few of the amenities enjoyed by those who visit the resort. All accommodations Carmel-by-the-Sea are finely appointed suites featuring fully stocked refreshment centers and large outside decks offering stunning vistas.
1 Carmel Valley Ranch Although you’ll find everything you could possibly need for an enjoyable stay on the resort property, you can still slip away to the quaint shops of nearby Carmel- by-the-Sea. Next, follow the scenic 17-mile drive through Pebble Beach and around the Monterey Peninsula to the town of Monterey. There you can visit the many bay-side attractions including the famous Monterey Bay Aquarium.
Enjoy it all and earn CLE credits To register and to learn more call (800) 354-6267 or visit www.lafj.org Tour Carmel Valley Ranch online at www.carmelvalleyranch.com
Louisiana Bar Journal Vol. 57, No. 6 435 Louisiana Bar Foundation LBF Recognizes Jurists, Attorney, Professor, Calogero Justice Award Recipient at Fellows Gala The Louisiana Bar Foundation (LBF) of the 1961 Southeastern Conference degree in 1970 from honored the 2009 Distinguished Jurists Champion baseball team. From 1962- Louisiana State Frank J. Polozola and Ralph E. Tyson, 65, he attended LSU Law School and University and his Distinguished Attorney Charles S. received his JD degree in 1965. In 1987, JD degree from LSU Weems III and Distinguished Professor he was inducted into the LSU Law Law School in 1973. Lucy S. McGough at the 24th annual Center Hall of Fame. He was admitted to Fellows Gala on April 9. The honorees He has held leadership positions the practice of law were selected by the LBF’s board of in several organizations that work to in Louisiana in 1973 directors for their contributions to their improve the administration of justice and subsequently legal communities. of the federal courts. Among them, was employed as Hon. Ralph E. Also honored was the Louisiana he served as president of the National special counsel and Tyson Public Defender Board (LPDB), Council of United States Magistrate assistant attorney the recipient of the Calogero Justice Judges and as president of the District general in the Louisiana Department Award for its significant contribution to Judges Association of the 5th Circuit. He of Justice, assistant district attorney for Louisiana’s justice system. also has served as a member of the 5th East Baton Rouge Parish and chief city The evening began with a patron Circuit Judicial Council, the Louisiana prosecutor for Baton Rouge. He also was party at the Ritz-Carlton New Orleans, State Bar Association Federal-State actively engaged in the private practice followed by a silent auction, dinner, Court Liaison Committee and was of law for 15 years, first with the firm of presentations, a live auction and appointed by U.S. Supreme Court Chief Pitcher & Tyson and then with the firm dancing. Justice Rehnquist to chair the Federal of Tyson, Avery & Cunningham. Brief profiles of the honorees follow. Judicial Center’s Committee on District In 1988, Judge Tyson was elected Judges Education. He is a member of to a vacant seat in Division B of the ► 2009 Distinguished Jurist Hon. the Baton Rouge Bar Association, the Baton Rouge City Court where he Frank J. Polozola Wex Malone American Inn of Court presided for more than five years. He Hon. Frank J. (former president), the Federal Judges was elected to serve as treasurer, then Polozola, United Association and the 5th Circuit District secretary, of the Louisiana City Judges’ States district judge Judges Association. He has been on the Association. In 1993, he was elected for the Middle faculty of the Federal Judicial Center without opposition to Division B of the District of Louisiana, since 1980. 19th Judicial District Court, where he was nominated by Judge Polozola has been instrumental presided over misdemeanor and felony President Jimmy in establishing the Louisiana National criminal trials. From 1997-98, he served Carter and sworn in Guard Youth Challenge Program and Job as the chief criminal judge of the 19th on May 29, 1980. Challenge Program for at-risk youths at Judicial District Court. He also served He served as chief Hon. Frank J. the Gillis W. Long Center in Carville, as judge pro tempore for six months in judge of the Middle Polozola La., and continues to support these two 1997 on the Louisiana 1st Circuit Court District from 1998- programs and the Job Corps Program, of Appeal by special appointment of the 2005 and became a senior judge in 2007. also at the Gillis W. Long Center. He Louisiana Supreme Court. Prior to his presidential appointment, has received numerous awards over his In 1998, President Clinton nominated he was appointed the first full-time career, most recently being inducted Judge Tyson to a newly created judgeship magistrate judge for the Middle District into the Louisiana Justice Hall of Fame in the United States District Court in 1973. He began his legal career as a law in 2008. for the Middle District of Louisiana clerk to United States District Judge E. in Baton Rouge. He became the first Gordon West of Baton Rouge. Following ► 2009 Distinguished Jurist Hon. African-American federal judge in the his clerkship, he entered private practice Ralph E. Tyson Middle District of Louisiana. In 2005, and subsequently became a partner in Hon. Ralph E. Tyson, Division C he became chief judge of the federal the law firm of Seale, Smith & Phelps in judge of the United States District Court court. Baton Rouge. for the Middle District of Louisiana, is a Judge Tyson was recognized as the Judge Polozola attended Louisiana native of Baton Rouge. After graduating 2009 Distinguished Alumnus of the State University on an athletic from Southern University Laboratory LSU Paul M. Hebert Law Center. scholarship where he was a member School in 1966, he received his BS
436 April / May 2010 ► 2009 Distinguished Attorney and Industrial Development District. A serving on the committee charged with Charles S. Weems III past president of the Central Louisiana rewriting the Accreditation Standards Charles S. Weems Chamber of Commerce, and the founder for American law schools. She has III is the president and initial chair of the Central Louisiana been actively involved in creating and and senior member Diversity Alliance, he is a current sustaining a clinical program at LSU. of the Alexandria member of the LSU Law Center Board of law firm of Gold, Trustees and the LSUA Foundation. He is ► 2009 Calogero Justice Award Weems, Bruser, Sues a past board member of the Louisiana Bar to the Louisiana Public Defender & Rundell, in which Foundation. Board he has practiced since The Louisiana 1971, after beginning ► 2009 Distinguished Professor Public Defender his career with the Charles S. Lucy S. McGough Board (LPDB) was Stone Pigman firm Weems III Professor Lucy created in 2007 to in New Orleans. He S. McGough is the serve the public, is a 1969 graduate of Louisiana State Vinson & Elkins support practitioners University Law Center, where he was Professor of Law across the criminal Louisiana Public editor-in-chief of the Louisiana Law at Louisiana State justice field and Defender Board Review and a member of the Order of the University Paul M. advocate for clients Coif. He is a member of the LSU Law Hebert Law Center. to ensure that Louisiana provides equal Center Hall of Fame and was selected by Prior to teaching at justice for all as guaranteed by the the board of trustees of the Law Center as LSU, she was the Constitution. It is an executive branch its Distinguished Alumnus in 2002. Charles Howard Prof. Lucy S. agency located within the Office of Weems is a board-certified tax Candler Professor McGough the Governor. Under Chair Frank X. attorney, having served as chair of the at Emory University Neuner, Jr., the LPDB is supervised by Specialization Board (Taxation), and Law School. A Phi Beta Kappa graduate a 15-member board of directors (and is a Fellow of the American College of of Agnes Scott College, she graduated two ex-officio board members) and is Trust and Estate Counsel. He has also with distinction from Emory Law School. supported by 18 staff working under state maintained a corporate practice and has She was a member of the Law Review public defender Jean M. Faria. been a frequent lecturer in the areas of tax, and the Order of the Coif. She was one LPDB administers the Public corporate law and commercial litigation. of only two women in her class in 1966. Defender Fund, which supports all 42 He served as president of the Louisiana She holds a master of law degree from judicial districts, and contracts with State Bar Association in 1996-97, after Harvard University. She was named a eight 501(c)3 non-profit organizations serving on the association’s Board of Kellogg National Fellow from 1981-84. that provide appellate representation, Governors. He was recognized by the She has written books and law articles capital representation at the trial level, LSBA with its Distinguished Service on family law and children’s law topics, capital post-conviction representation Award in 1998 and was selected to receive from delinquency to adoption. She also and representation of claims of innocence the Louisiana Bar Foundation’s Curtis R. has written interdisciplinary work on the for persons serving life sentences in Boisfontaine Trial Advocacy Award in cognitive development of children and Louisiana. 1999. He was twice elected chair of the their fragility as witnesses. Since 1991, LPDB collaborates with partners to LSU (System) Board of Supervisors, she has served as the reporter for the improve public awareness of the criminal serving on that board under five different revision of the Louisiana Children’s Code justice system, better leverage resources Governors from 1991-2007. for the Louisiana State Law Institute. for clients, and provide technical Weems currently serves as president She is a member of the Louisiana Public support to advance the community- of the Louisiana State Law Institute, Defender Board. oriented defender model. It pursues, and active as a Council member since 1985. Professor McGough has received administers, grant awards to achieve He is also chair of the England Economic the Distinguished Alumni Award these objectives. LPDB represents from Emory University Law School, Louisiana on the national level, through LBF Annual Report Available the Judge Richard Ware Award, the participation with Department of Justice National Adoption Excellence Award for subcommittees, the American Bar for Review Online Individual Contributions, an Angels in Association Standing Committee on The Louisiana Bar Foundation’s Adoption Award from Congress and was Legal Aid and Indigent Defense, the 2008-09 Annual Report is available for named (Louisiana) Adoption Advocate American Council of Chief Defenders, review online. To access the report, go of the Year for 2009. She has served on the Community Oriented Defender to www.raisingthebar.org and click on numerous committees of the Association Network and other national criminal “View the 2009 Annual Report.” of American Law Schools and the justice agencies/organizations. American Bar Association, currently
Louisiana Bar Journal Vol. 57, No. 6 437 Message from the Louisiana Bar Foundation Recapping a Successful Year of Service By Drew Ranier, 2009-10 President
One of my most rewarding experiences and legal proceedings and impacts litiga- as President has been to meet so many of Every member of the Bar tion and systemic legal reform on behalf our generous and hardworking Fellows, and the judiciary should of children. In a truly historic move judges and lawyers, and our grantees forward, the Bar Foundation now serves across the state. Our Fellows truly under- be a Fellow. It is a as the administrator for the State and the stand the importance of access to justice Supreme Court of the Child in Need of and legal representation for everyone in statement of commitment Care (CINC) Program, which provides Louisiana. If everyone is subject to the rule to our core professional legal representation to all children in of law, then everyone must have access to foster care, and which will put Louisiana the courts. Our dedicated volunteer Fel- principles. in the top tier of states in the country in lows exemplify the highest ideals of our this category. profession. Our grantees are organizations over the next 18 months. These grants As I come to the end of my term that provide legal aid to women, children, were made in the areas of legal assistance as President, I want to thank all of the the elderly, people with disabilities, the to the poor, law-related education, loan individuals who have supported the newly unemployed, those facing loss of repayment assistance, building capital Foundation during my year as President, their homes, and those in need of govern- development, community partnership especially Herschel Richard, Mathile ment services provided by law. These panels and children’s legal services. Abramson, Patricia Krebs and Leo organizations make a critical difference Another highlight of the year is our Hamilton. It is an honor and a privilege in the lives of countless Louisiana citizens focus on children, the most vulnerable to serve this collegial, effective and im- who have limited means. members of society. We established the portant organization. It makes me proud As the largest funder of legal aid in Children’s Legal Services Fund to provide to be a Louisiana Bar Foundation Fellow the state, we have awarded more than $40 special grants to give children access and a lawyer. Every member of the Bar million to deserving non-profit organiza- to special education and health-care and the judiciary should be a Fellow. It tions to help meet legal needs since 1989. services, mental health and foster care is a statement of commitment to our core In November, the Board approved more services. In addition, the fund provides professional principles. than $5 million in funding to be distributed support for advocacy in administrative
INDEX TO ADVERTISERS ABA Retirement Funds...... 367 Louisiana Association for Justice...... 435 ADR inc...... 413 MAPS, Inc...... 407 Alston Law Firm, L.L.C...... 405 Montague Pitman & Varnado...... 431 D. Wesley Attaway...... 431 Perry Dampf Dispute Solutions...... 396 Bourgeois Bennett...... 415 Mark D. Plaisance...... 420 Celtic Group...... 414 Plastic Surgery Associates...... 409 Christovich & Kearney, L.L.P...... 404 Ritz-Carlton...... 410 Kay E. Donnelly & Associates...... 421 Schafer Group, Ltd...... 408 Robert G. Foley...... 431 Mary Ann Sherry...... 430 Tom Foutz/ADR inc...... 418 Simon, Peragine Smith & Redfearn, L.L.P...... 416 Gilsbar, Inc...... IBC Template, Inc...... 361 Gulf Coast Aviation Charter...... 417 Texas Corp. Supplies...... 430 The Law Offices of Deborah M. Henson...... 404 Titan Construction...... 419 LaPorte Sehrt Romig Hand...... 365 West, A Thomson Business...... OBC Legier & Company...... IFC Law Office of Julie Brown White, L.L.C...... 405 LexisNexis...... 362 James F. Willeford...... 412
438 April / May 2010 It’s Ti m e t o Bo o k a Listing in One price gets ‘Wh o ’s Wh o in ADR 2010’ you in the print directory and The print version of the directory for arbitrators and mediators will be mailed with the on the Web! October/November 2010 Louisiana Bar Journal. View the 2009 For the one low price of $125, your listing is first published in the print directory, then the directory is uploaded to the LSBA Web site in interactive PDF format directory at (e-mail addresses and Web site URLs are activated and instantly accessible). www.lsba.org/ADR The Web version of the directory remains active for one full year!
The special Arbitrators and Mediators Directory will feature brief articles and photographs of arbitrators and mediators (INDIVIDUALS ONLY). The articles should be 150 words MAXIMUM. Provide your address, phone, fax, e-mail address and Web site infor- mation at the end of the listing (not part of the word count). Submit either original photos or digital photos. Digital photos should be submitted separately from the article, in either .tif, .jpg or .eps format (the order of preference). DO NOT submit digital photographs embedded in word processing programs; send the photograph as a separate file. High-resolution digital photos work best (at least 300 DPI/dots per inch).
De a d l i n e is Ju l y 30 f o r a l l listings a n d p h o t o s ! Di r e c t o r y /We b Co m b o p r i c e is $125.
Articles and photographs must be for individuals only. No group articles or group photographs will be used. But, as an ADDED BONUS, firms which have three or more arbitrators/mediators purchasing individual listings will receive a free firm listing in the section. (Firms are responsible for submitting the additional information, 150 words maximum.) If you would like to repeat a prior listing and photo, you may send us a photocopy of that listing along with your check; please provide the year the listing appeared. (Digital photos appearing in ADR directories are archived back to 2000.) It’s easy to reserve space in the directory! • E-mail your listing and photo to Publications Coordinator Darlene M. LaBranche (e-mail: [email protected]). Then mail your check for $125 (payable to Louisiana State Bar Association) to: Publications Coordinator Darlene M. LaBranche, 601 St. Charles Ave., New Orleans, La. 70130. • Or, mail your listing, photo, disk and check to the above address. • Prefer to pay by credit card? We accept Visa and MasterCard only. Contact Darlene M. LaBranche for more information on this payment method. For more information, contact Darlene M. LaBranche (504)619-0112 or (800)421-5722, ext. 112.
Louisiana Bar Journal Vol. 57, No. 6 439 Lucid INTERVALS By Vincent P. Fornias Jive Talk
ne of my favorite literary characters, the inimitable Ignatius J. Reilly of A Confederacy of Dunces fame, would demand that I write this call to arms. Like Ignatius, ever intolerant of society’s shortfalls, we as lawyers,O sworn to effectively communicate, should rail against the slanderous assault of our mother tongue. I specifically refer to the cryptic overuse of the following words and phrases:
Paradigm — What, as opposed to parasail or paragraph or paralegal? Who gives a paranickel? What ever happened to “concept” or “theme”?
It is what it is — No, it ain’t, and saying that doesn’t add a lick of credibility or wisdom to your position. By the way, who defined “is”?
Greening — Al Gore, what have you wrought upon us? The prospect of the greening of his bank account has caused us to swallow hard as we do our best to stay warm in this coldest of winters by sipping our brown hot cocoa in our white Styrofoam cups.
-challenged — The universal suffix of The Age of Political Correctness. The only problem is the pink elephant in the room is not going away.
Yada yada yada — Defined: I am way too lazy (or time- Ignatius J. Reilly, in bronze, Canal Street, New Orleans, LA. Photo by challenged?) to recite all the facts, so just trust me. Barbara Baldwin.
Twenty four/seven — Whatever happened to good old “round- Decommit — Seen usually in the context of college football the-clock”? recruits. I guess they can also de-promise, de-pledge, or just plain lie. Troop — When did one soldier become a “troop”? Remember F Troop? And what in Sam Hill do you do now with “trooper”? App — What happened? Did the printer run out of ink in mid-word? Someone call a service rep. Quic! Transparency — The acme of political rhetoric. Talk about Project — A buzz word for any organization that wants to your hall of fame of sound bites. How transparent can you sound über-cultural or advanced or New Age. get? Impacted — When did we go from dental and intestinal af- Journey — With all respect to the rock band of early 1980s flictions to corporate conversion of nouns to verbs? And what vintage, Self Importance 101 begins with replacing “career” did “influence” ever do wrong? or “stint” with something sounding much more significant in a Lewis-and-Clark sort of way. Got all that? Now . . . let’s roll.
If you have experienced, seen or heard something humorous in your day-to-day legal practice, or if you just have an idea for a Lucid Intervals column, by all means, let the Louisiana Bar Journal know. Mail, fax or e-mail your stories, anecdotes, quotes or ideas c/o Publications Coordinator Darlene M. LaBranche, Louisiana State Bar Association, 601 St. Charles Ave., New Orleans, LA 70130- 3404; fax (504)566-0930; e-mail [email protected]. She’ll make sure your “gems” get into the right hands. Keep smiling!
440 April / May 2010 In less than one hour, you can Get With The Program!
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