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1100 Poydras Street • 34th Floor • Energy Centre • New Orleans, LA 70163 Telephone (504) 561-0020 • Facsimile (504) 561-0023 • http://www.legier.com Louisiana Bar Journal Vol. 61, No. 4 241 242 December 2013 / January 2014 ®
December 2013 / January 2014 Volume 61, Number 4
Departments Features Judicial Interest Rate...... 245 Implementation of LSBA’s Mentoring Program Underway: Another Milestone on the Road to Professionalism for New Admittees Editor’s Message...... 247 By Barry H. Grodsky...... 250 President’s Message...... 248 Association Actions...... 270 The Last Stand of the Duty to Sit: Recusal in Louisiana Lawyers Assistance...... 274 By Roy J. Rodney, Jr. and John K. Etter...... 254 Quality of Life...... 275 The Foreign Corrupt Practices Act: Puzzle...... 277 Through the Lens of Azerbaijan and the Republic of Georgia Focus on Professionalism..... 278 By Peter G. Strasser...... 260 Discipline Reports...... 281 Portraits & Perspectives: Louisiana Supreme Court Associate Justices Recent Developments...... 283 One on One with Louisiana Supreme Court Associate Justice Jefferson D. Hughes III Young Lawyers...... 302 By Brendan P. Doherty...... 266 La. Center for Law and Civic Education...... 305 Judicial Notes...... 306 People...... 308
News...... 312 Check out the separate supplement Classified...... 317 mailed with this issue: 2014 The Last Word...... 320 ► 2014 Expert Witness, Consultant and eXPert WitNeSS, Legal Services Directory coNSULtaNt & LegaL Also Inside ServiceS DirectorY
Member Services...... 246 SOLACE...... 275 Alcohol/Drug Abuse Hotline.. 277 Advertisers’ Index...... 318
Supplement to Louisiana Bar Journal
Supplement to the Louisiana Bar Journal 1
Louisiana Bar Journal Vol. 61, No. 4 243 ® Officers 2013-14 President Editorial Board Richard K. Leefe • (504)830-3939 Barry H. Grodsky President-Elect Editor John H. Musser V Joseph L. (Larry) Shea, Jr. • (318)934-4017 (504)599-8535 (504)523-0400 Secretary Adrejia L. Boutte Barry H. Grodsky • (504)599-8535 Christopher K. Odinet (504)561-5700 Treasurer (225)771-4900 Steven G. (Buzz) Durio • (337)233-0300 Erin O. Braud Roy H. (Hal) Odom, Jr. Immediate Past President (504)837-7050 (318)227-3762 John H. Musser IV • (504)599-5964 John S. (Chip) Coulter Maggie Trahan Simar Board of Governors 2013-14 (225)382-3183 (337)394-6133 First District Anthony M. DiLeo Gail S. Stephenson H. Minor Pipes III • (504)589-9700 (504)274-0087 (225)771-4900, x216 David W. Leefe • (504)556-4137 Brendan P. Doherty Second District Tyler G. Storms (832)255-6019 (318)255-7805 Stephen I. Dwyer • (504)838-9090
Third District Stephen I. Dwyer Dylan Tuggle Thriffiley Dona Kay Renegar • (337)234-5350 (504)838-9090 (504)620-3187 Fourth District Gerald J. (Jerry) Huffman, Jr. Edward J. Walters, Jr. Shayna L. Sonnier • (337)436-1600 (504)524-8556 (225)236-3636 Fifth District
Michael E. Holoway • (985)871-3924 Margaret E. Judice Jack K. Whitehead, Jr. Sixth District (337)828-1880 (225)303-8600 Robert G. Levy • (318)443-7615 Seventh District The Louisiana Bar Journal (ISSN 0459-8881) is published bimonthly by Thomas M. Hayes III • (318)387-2422 the Louisiana State Bar Association, 601 St. Charles Avenue, New Orleans, Eighth District Louisiana 70130. Periodicals postage paid at New Orleans, Louisiana and Karelia R. Stewart • (318)226-6998, ext. 1070 additional offices. Annual subscription rate: members, $5, included in dues; Chair, Young Lawyers Division nonmembers, $45 (domestic), $55 (foreign). Canada Agreement No. PM Kyle A. Ferachi • (225)383-9000 41450540. Return undeliverable Canadian addresses to: P.O. Box 2600, Mississauga, ON, L4T 0A8. At-Large Members Daniel A. Cavell • (985)449-7500 Postmaster: Send change of address to: Louisiana Bar Journal, 601 St. Julie H. Ferris • (225)219-9305 Charles Avenue, New Orleans, Louisiana 70130. Mickey S. deLaup • (504)828-2277 LSU Paul M. Hebert Law Center Subscriber Service: For the fastest service or questions, call Darlene M. John M. Church • (225)578-8701 LaBranche at (504)619-0112 or (800)421-5722, ext. 112. Tulane Law School Editorial and Advertising: Ronald J. Scalise, Jr. • (504)865-5958 Publication of any advertisement shall not be considered an endorsement Louisiana State Law Institute of the product or service involved. Submissions are welcome and will be Marguerite L. (Peggy) Adams • (504)556-4142 considered for publication by the Editorial Board. For submission guide- House of Delegates Liaison Chair lines, go online at www.lsba.org, click on “Publications,” then “Louisiana Jeffrey A. Riggs • (337)326-5777 Bar Journal.” Copyright © by Louisiana Bar Journal. All rights reserved. Reproduction in whole or part without permission is prohibited. Views
expressed are those of the authors only. Editorial Staff Executive Director Luminary Award 2003 Loretta Larsen, CAE National Association of Bar Executives Communications Director Communications Section Kelly Wells Ponder Excellence in Regular Publications Publications Coordinator/Managing Editor
Darlene M. LaBranche International Communications Coordinator Association of Business Barbara D. Baldwin Public Relations Society Communicators Communications Assistant of America New Orleans New Orleans Chapter Krystal Bellanger Rodriguez Chapter Award of Advertising Booking Questions? Bronze Quill Call (504)619-0131. Award of Merit
244 December 2013 / January 2014 2014 Judicial Interest Rate is 4% Pursuant to authority granted by La. R.S. 13:4202(B)(1), as Judicial Interest Rates amended by Acts 2001, No. 841, the Louisiana Commissioner of Financial Institutions has determined that the judicial rate of inter- Through 2014 est for calendar year 2014 will be four (4.0%) percent per annum. La. R.S. 13:4202(B), as amended by Acts 2001, No. 841, and Date Rate Acts 2012, No. 825, requires the Louisiana Commissioner of Financial Institutions to determine the judicial interest rate for the Prior to Sept. 12, 1980...... 7.00 percent calendar year following the calculation date. The commissioner Sept. 12, 1980 to Sept. 10, 1981...... 10.00 percent has determined the judicial interest rate for the calendar year 2014 in accordance with La. R.S. 13:4202(B)(1). Sept. 11, 1981 to Dec. 31, 1987...... 12.00 percent The commissioner ascertained that on Oct. 1, 2013, the first Jan. 1, 1988 to Dec. 31, 1988...... 9.75 percent business day of the month of October, the approved discount rate of the Federal Reserve Board of Governors was three-quarters Jan. 1, 1989 to Dec. 31, 1989...... 11.50 percent (.75%) percent. Jan. 1, 1990 to Dec. 31, 1990...... 11.50 percent La. R.S. 13:4202(B)(1) mandates that on and after Jan. 1, 2002, the judicial interest rate shall be three and one-quarter percentage Jan. 1, 1991 to Dec. 31, 1991...... 11.00 percent points above the Federal Reserve Board of Governors-approved Jan. 1, 1992 to Dec. 31, 1992...... 9.00 percent discount rate on Oct. 13, 2013. Thus, the effective judicial interest rate for the calendar year 2014 shall be four (4.0%) percent per annum. Jan. 1, 1993 to Dec. 31, 1993...... 7.00 percent La. R.S. 13:4202(B)(2) provides that the publication of the com- Jan. 1, 1994 to Dec. 31, 1994...... 7.00 percent missioner’s determination in the Louisiana Register “shall not be considered rulemaking within the intendment of the Administrative Jan. 1, 1995 to Dec. 31, 1995...... 8.75 percent Procedure Act, R.S. 49:950 et seq., and particularly R.S. 49:953.” Jan. 1, 1996 to Dec. 31, 1996...... 9.75 percent Therefore, (1) a fiscal impact statement, (2) a family impact state- ment, and (3) a notice of intent are not required to be filed with the Jan. 1, 1997 to July 31, 1997...... 9.25 percent Louisiana Register. Aug. 1, 1997 to Dec. 31, 1997...... 7.90 percent — John P. Ducrest, CPA Jan. 1, 1998 to Dec. 31, 1998...... 7.60 percent Commissioner of Financial Institutions Jan. 1, 1999 to Dec. 31, 1999...... 6.73 percent Date: October 16, 2013 Jan. 1, 2000 to Dec. 31, 2000...... 7.285 percent Jan. 1, 2001 to Dec. 31, 2001...... 8.241 percent Judicial Interest Rate Jan. 1, 2002 to Dec. 31, 2002...... 5.75 percent Calculator Online! Jan. 1, 2003 to Dec. 31, 2003...... 4.50 percent Jan. 1, 2004 to Dec. 31, 2004...... 5.25 percent Need to calculate judicial interest? Jan. 1, 2005 to Dec. 31, 2005...... 6.00 percent Check out the Judicial Interest Rate Jan. 1, 2006 to Dec. 31, 2006...... 8.00 percent Calculator (courtesy of Alexandria Jan. 1, 2007 to Dec. 31, 2007...... 9.50 percent attorney Charles D. Elliott) on the Jan. 1, 2008 to Dec. 31, 2008...... 8.50 percent Louisiana State Bar Association’s website. Jan. 1, 2009 to Dec. 31, 2009...... 5.50 percent Jan. 1, 2010 to Dec. 31, 2010...... 3.75 percent Go to: www.lsba.org/Members/ Jan. 1, 2011 to Dec. 31, 2011...... 4.00 percent JudicialInterestRate.aspx. Jan. 1, 2012 to Dec. 31, 2012...... 4.00 percent Or visit the “For Members” page and find it under the “Member Tools and Services” box on the Jan. 1, 2013 to Dec. 31, 2013...... 4.00 percent www.LSBA.org website. Jan. 1, 2014 to Dec. 31, 2014...... 4.00 percent
Louisiana Bar Journal Vol. 61, No. 4 245 ® 601 St. Charles Ave. New Orleans, La. 70130 Member Web site: www.LSBA.org (504)566-1600 (800)421-LSBA Services Fax (504)566-0930 Louisiana Hotels Programs The following hotels have agreed to corporate discount rates for For information about these LSBA programs, contact the Bar Office by calling (504)566-1600 LSBA members. Call, e-mail or check the website link for the or (800)421-LSBA. If you have questions regarding the negotiated corporate rates offered at current discounted rates. When making reservations, you must the hotels listed, contact Kayuyum Koban for assistance. identify yourself as an LSBA member.
Alternative Dispute Resolution Program New Orleans Client Assistance Fund Bienville House, (800)535-9603 Continuing Legal Education Program e-mail: [email protected] Ethics Advisory Service www.lsba.org/GoTo/BienvilleHouse
Lawyers’ Substance Abuse Hotline • (866)354-9334 Hilton St. Charles, (504)524-8890 Legal Specialization Program Hilton Garden Inn, (504)281-4004 Loss Prevention Counsel email: [email protected] Johanna G. Averill, Lindsey M. Ladouceur and Elizabeth LeBlanc Voss • (800)GILSBAR www.neworleansfrenchquartercbd.hgi.com SOLACE (Support of Lawyers/Legal Personnel All Concern Encouraged) Hotel InterContinental, (877)866-9005 e-mail: [email protected]
Hotel Monteleone, (800)535-9595 Publications e-mail: [email protected] Louisiana Bar Journal www.lsba.org/GoTo/HotelMonteleone Hyatt Regency New Orleans, (888)591-1234 “Bar Briefs” (online) www.hyatt.com, Corporate #95147 Louisiana Bar Today (online newsletter) Hyatt French Quarter, (504)281-4004 email: [email protected] Online Services www.frenchquarter.hyatt.com Louisiana Bar Today Opinion Service Lending Library Hyatt Place, (504)281-4004 email: [email protected] Membership Directory Twitter www.hyattplaceneworleansconventioncenter.com Fastcase (free online legal research) Facebook JW Marriott New Orleans • www.jwmarriottneworleans.com Law Office Management Assistance Program Le Pavillon Hotel, (800)535-9095 • http://bit.ly/LPLSBAR Loews New Orleans Hotel • (504)595-5370, (866)211-6411 Young Lawyers Division Marriott Courtyard Downtown www.courtyardneworleansfrenchquarter.com Bridging the Gap Choose Law Mentor Program New Orleans Marriott Barristers for Boards www.lsba.org/GoTo/NewOrleansMarriott Young Lawyers’ Directory Wills for Heroes New Orleans Marriott at the Convention Center www.lsba.org/GoTo/MarriottCC Insurance through Gilsbar Renaissance Pere Marquette www.renaissanceperemarquette.com Group Insurance Major Medical The Ritz-Carlton, (800)826-8987, (504)670-2845 e-mail: [email protected] Disability The Roosevelt New Orleans • (504)335-3138, 1(800)WALDORF Malpractice Sheraton New Orleans, (504)595-6292 (800)GILSBAR • (504)529-3505 • See inside back cover e-mail: [email protected]
Westin Canal Place, (504)553-5110 e-mail: [email protected] Car Rental Programs The Whitney Wyndham, (504)581-4222 The following car agencies have agreed to discount rates for LSBA members. Windsor Court, (800)262-2662, (504)523-6000 e-mail: [email protected] Avis – (800)331-1212 • Discount No. A536100 Wyndham Riverfront New Orleans, (504)524-8200 Budget Rent-a-Car – (800)527-0700 • Discount No. Z855300 Hertz – (800)654-2210 • Discount No. 277795 Baton Rouge Courtyard Baton Rouge Acadian Thruway www.courtyardbatonrouge.com • (Corporate Code: ABA)
Other Vendors Crowne Plaza Baton Rouge, (225)925-2244, (225)930-0100 The following vendors have agreed to discount rates for LSBA members. e-mail: [email protected]
Hilton Baton Rouge Capitol Center, (800)955-6962, (225)344-5866 ABA Members Retirement – (800)826-8901 LexisNexis – (800)356-6548 Corporate ID #0921780 • www.lsba.org/GoTo/HiltonBRCapitol CoreVault – (866)945-2722 LawPay - (866)376-0950 Sheraton Baton Rouge, (225)378-6177 Geico - (800)368-2734 United Parcel Service – (800)325-7000 e-mail: [email protected] Lafayette * National Hotel Chains SpringHill Suites Lafayette South at River Ranch Holiday Inn, (800)HOLIDAY LaQuinta Inns & Suites, (866)725-1661 www.lsba.org/GoTo/SpringHill Use ID No. 100381739 www.LQ.com Lake Charles Use corporate rate code LABAR Best Western Richmond Suites, (337)433-5213
*Discounts not guaranteed at every hotel property within a national chain. Contact specific property to inquire about availability of LSBA Shreveport discounted rates. Clarion Shreveport Hotel, (318)797-9900 The Remington Suite Hotel, (318)425-5000 www.remingtonsuite.com
246 December 2013 / January 2014 Editor’s Message
Just What Is My Job? By Barry H. Grodsky
tings. I want to publish those stories, toot our do wonder how many of the nearly 22,000 hen I horn and brag about such accomplishments. lawyers admitted into practice here caught became Certainly I realized, by making such a this error; to them, I especially apologize. request, the bad would come in with the The content of the message (I did not re- Loui- good. That’s fine. If there is a need, concern, turn the call) was rather intense, questioning issue or complaint, let’s air it out, have con- what my grammar school English teacher siana structive and meaningful discussions, and would have thought about it and ended with State Bar Association perhaps something positive can ultimately the admonition of “DO YOUR JOB.” W result from the effort. At least a problem Which brings me back to where this all can be addressed and this is often done in started . . . . Exactly what is my job? As (LSBA) secretary, I letters to the editor. editor, I have the responsibility to present to knew fairly well the Recently, I received two calls, one on a our members a Journal that is informative, “good” issue and one on a “bad” issue. The relevant, enlightening and current. I want to components of my job. “good” issue was a call from an attorney report on trends in the law, highlight what who told me about the great participation our members are accomplishing, trumpet One part was to be the of those in the legal profession for service personal achievements, present themed performed at Covenant House. While this issues on interesting topics, advise about editor of the Louisiana was not a story about lawyers’ legal achieve- LSBA activities and keep our members ments, it was about lawyers giving back to up-to-date. My job is (fortunately) to have Bar Journal, something the community in a truly meaningful and a great LSBA staff with whom I work and I happily anticipated. special way. (An upcoming article will tell know they will handle the “heavy lifting.” the whole story in the Journal’s “Focus on My job is to encourage and rely upon the Spending two years on Professionalism” section.) It is a story of volunteer Editorial Board which serves what we do as professionals — selflessly without compensation and consistently the Editorial Board pro- giving to those who are so grateful and does an excellent job. My job is to have our appreciative. Sure, it sounds like the typi- members tell me what they want the full Bar vided me with insight, cal “feel good” story, but I am happy to let to know. It is also my job to be responsible everyone know just how wonderful and for the Journal’s content, so if something guidance and ideas as meaningful it was. goes wrong — such as a grammatical er- to what goals I wanted Then came the “bad” issue. I received ror — it being on my watch, it is my job to a call from an attorney who I could only take responsibility. to achieve as editor and describe as agitated. He left me a detailed Please do not take this as my being message but without a request to return his thin-skinned (no such luck after 31 years to define the parameters call. He was incensed because I made the of practice). Also, don’t hesitate to tell me error of allowing in the Journal a sentence if something goes wrong. I do think it is my of the job. in which an adjective was used when there job to do the best work I can. If the worst One of the goals I want to achieve is should have been an adverb. First and thing that happens to me in my tenure as hearing from you. There is a lot of good and foremost, that is part of my job. I then took secretary is this poor word usage, then I bad in our profession; we need to address the time to actually research the sentence’s think the Journal staff, Editorial Board and I both and there is no better place to do this usage and it turns out that, as written, it was (notice I did not say “me”) are indeed doing than in the Journal. In previous columns, I an acceptable, albeit not preferred, usage. a pretty good job. have asked for everyone to let me know of Perhaps it was a clever bit of poetic license your achievements and those of others in our or a play on words, but, nonetheless, it was profession, both in legal and non-legal set- not the grammatically preferred method. I
Louisiana Bar Journal Vol. 61, No. 4 247 President’s message
By Richard K. Leefe Words of Advice and Encouragement for Our Newest Attorneys They now become part of an important on the street, on the concrete, in support n Oct. 24, element of our society and the judicial of the homeless children helped by the 2013, 407 branch of government as protectors of the wonderful work of Covenant House in New rule of law. They have proven that they Orleans. Led by Patricia A. Krebs, chair of new attor- have a body of knowledge that is special Covenant House and a former president of to those who hold that license. It is now the Louisiana Bar Foundation, this group of neys were their obligation, as it is for all of us, to use individuals gave up their time and comfort that knowledge not only to earn a living to show the children that people care and Osworn in to practice but also to help those less fortunate in this that they are, in fact, important to us and world who do not know the law and to the community. The love and care they in Louisiana, thereby be their protection and access to justice. receive at Covenant House is certainly It is up to every attorney to ensure that worth this show of unity. Barry H. Grodsky, becoming new mem- clients are provided justice. We all say a LSBA secretary and Louisiana Bar Journal bers of the Louisiana Pledge of Allegiance to the United States editor, recently pointed out in the Journal as a country that provides “justice for all.” that we as attorneys fail to trumpet much State Bar Association Unfortunately, even though this is an ideal of the good work attorneys provide in the that hopefully we all believe in and strive community, often anonymously. We need (LSBA). That day start- toward, we know that we are far from to tell the public. This effort was a good accomplishing total “justice for all.” It is example of how judges, attorneys and ed a new chapter in now their obligation, as it has been for all business leaders in our community are attorneys, to help us live up to that ideal willing to show that they care. their lives as licensed and make this a system that does provide We hope that our new attorneys remem- equal justice for all, regardless of a per- ber that their interest in any matter they attorneys. The LSBA son’s social status, assets, station in life, handle is secondary to that of their clients. welcomes each of them race, religion, connections or any other Every attorney must always remember that special factor. These new attorneys will the client comes first and the client makes to the practice and con- play a large part in making this happen; the decision on the situation; attorneys can this system does not work if it is not for advise but should not dictate. Attorneys gratulates them on their everyone and with equal application to all. must use their knowledge of the law to I hope the new attorneys take a lesson educate clients so the clients can make accomplishment. They from some of our older leaders. On the their own informed decisions. It is not the night of Nov. 14, 2013, three Louisiana attorney’s position to make that decision. worked hard for it and federal judges, six Orleans Parish district The LSBA is here to help those new judges, one 4th Circuit Court of Appeal attorneys with many services. The LSBA deserve credit for their judge and several Louisiana attorneys and provides the Bridging the Gap program to perseverance. business leaders spent the night sleeping help in the transition into practice. Fastcase,
248 December 2013 / January 2014 an online legal research tool, is offered as a take it seriously. The attorneys involved ing new law students on professionalism. free service to LSBA members. The LSBA in the testing process will continue efforts As the LSBA pointed out to these new provides meeting rooms for use by attor- to improve the process to make this a fair Louisiana attorneys on their first day of neys, offers many CLE options, negotiates test and be proud to assure the public that law school several years ago, their repu- discounts for various services and mate- it is a true test of competence to practice. tation follows each of them. They should rial, and on and on. There are committees We owe that to the public. For those who be sure it is one of honesty and integrity. and sections addressing numerous areas prefer to claim the pass rate of the bar Abusing the system will not serve them of the law, community service activities exam is the result of a conspiracy to keep in the long run. Professionalism is some- provided through the Young Lawyers Divi- the number of Louisiana attorneys down, thing to be strived for. Professionalism is sion, and many opportunities to contribute I can assure you this is not the case from like a smile; it is contagious. We should and make a difference. I encourage new my experience. In one area, the LSBA each be the first to show leadership and attorneys (and not-so-new attorneys) to has begun investigating the possibility be a professional. Practicing law can be take advantage of these and many other of the LSBA providing an affordable and a fulfilling and wonderful career. I hope services offered by the LSBA. hopefully Louisiana-oriented bar review the new attorneys enjoy it, make a good The LSBA has started the process for a course. We hope the LSBA can be a part living, are proud to be an attorney, and do mentoring program in the state. Slated to of helping students better prepare for the some good for the world. begin in January 2015, the initial voluntary bar exam in the future. mentoring program will be operative in the The LSBA was the leader in the United New Orleans, Baton Rouge and Shreveport States in initiating a program of address- areas and will offer each new attorney the opportunity to have a mentor during his/ her first year of practice. Every attorney ro ono eroes: roviding ustice for All is required to be a member of the LSBA P B H P J and I hope they all take advantage of all the LSBA has to offer. Volunteering my time to projects that are The pass rate results of the July 2013 bar examination were surprising and not designed to help make it easier for low what we had hoped for, and I have been further disheartened by hearing people cite income individuals to access our judicial system is incorrect actual percentages by law school. The results as published on the website of the Louisiana Supreme Court are relative to incredibly gratifying. I have enjoyed using my skills all who took the test — 763 took the exam. Since the system was revised effective in and experience in a way that has benefitted others July 2012, there is no longer a possible result of “conditioned.” A taker either as well as provided me with the opportunity to learn passes or fails the exam. Each of the nine tests forming the examination is provided something new. In this profession, one person really a number grade between 0 and 100. The sum of the nine test grades must reach 650 to pass the exam. Those who have failed can make a difference and to do so previous tests who decide to retake the exam are required to take the entire exam feels wonderful. again. The results for first-time takers may be a better indicator of the application of the test. I have been advised that these pass rates were: LSU, 72 percent; Loyola, 64 percent; Southern, 41 percent; Tulane, 69 – Ashley Payne Gonzalez percent; other, 47 percent — for an overall Ochsner Health System. pass rate of 60 percent. This is better than and volunteer with Louisiana Appleseed New Orleans, LA when you include those retaking the test. Those who passed should be proud of their achievement. Those who took ustice F Pro ding J or A the exam and did not pass should keep vi ll working toward their goal. Those who Access to Justice www.lsba.org/ATJ Louisiana State Bar Association will take the exam in the future need to
Louisiana Bar Journal Vol. 61, No. 4 249 Implementation of LSBA’s Mentoring Program Underway: Another Milestone on the Road to Professionalism for New Admittees
By Barry H. Grodsky
250 December 2013 / January 2014 he Louisiana State Bar Asso- that he or she is receiving sufficient men- LSBA Board of Governors and the House ciation’s (LSBA) new admittee toring when first starting out in practice. of Delegates. Before implementation, the mentoring program, Transition The COTP also took into consideration program was submitted to, and reviewed Into Practice (TIP), has been that law schools do not always provide by, the Supreme Court. Further revisions approvedT by the Louisiana Supreme Court sufficient practical application of the law were made but the result was the creation and steps are underway for its implementa- in everyday practice. of the TIP program for new admittees, by tion. The creation of the TIP program was Further, the COTP understands that order of the Supreme Court in May 2013. a collaborative effort of the Supreme Court there are several aspects of the practice and the LSBA through its Committee on the of law which many practitioners take for Implementation Profession (COTP). This innovative pro- granted but which can be of major concern gram will begin in January 2015 for those to a newly admitted attorney. It is easy to The TIP program will first be made who are admitted into practice in 2014. understand how a new attorney who has available to those who are admitted into never been with a firm but decides to try practice in 2014. The Supreme Court order Background it on his or her own may struggle with allows for the program to take place over opening a trust account, preparing an a two-year period on a voluntary basis in The TIP program is part of the LSBA’s engagement letter, hiring a secretary or three areas: Shreveport, Baton Rouge and continued commitment to establish pro- paralegal or figuring out what happens on greater New Orleans. The LSBA is hopeful fessionalism programs with the goal of rule day. It is apparent that assisting these that, with the success of the program, it reaching lawyers and those seeking to new attorneys is not only important to them can expand in two ways — first, being become lawyers as early in their legal but imperative to the overall practice of offered to new admittees throughout the careers as possible. Through the COTP’s law. As such, the COTP believed it to be state and, second, becoming mandatory. efforts, professionalism programs have essential that this mentoring program be While not all states have implemented been established in all four of the state’s implemented in Louisiana. mentoring programs on a mandatory law schools and all programs have been Creating this program was only pos- basis, the COTP believes this program will well accepted by the law schools and the sible with the continued support of LSBA achieve its goals and become most effective students. This includes the LSBA’s two- leadership and the Supreme Court. Every if it does become mandatory. Only the part character and fitness program to assist LSBA president for the past several years Supreme Court can make the TIP program students with their admission process into has embraced the mentoring concept and mandatory. The mentoring program is the Bar. That program earned the LSBA the Supreme Court has been behind these designed to last one year (January through the American Bar Association’s (ABA) efforts. Unlike the LSBA’s law school December, regardless of when the new Smythe Gambrell Professionalism Award, character and fitness program, which was attorney is admitted into practice). the first ABA award received by the LSBA. created solely by the LSBA, the COTP Over the next several months, numerous With the law school programs firmly looked to other states for guidance in steps will be taken to implement the in place, the COTP turned its attention to creating the TIP program. The COTP’s program. continuing its professionalism efforts to Mentoring Subcommittee gathered infor- First, mentors are currently being those who are newly admitted to the Bar. mation from professionalism centers and sought and many attorneys have already Specific concerns for new admittees were bar associations in Ohio, Illinois, Texas, signed up to be mentors. But efforts are apparent and the COTP sought to address South Carolina and Georgia. Important being made statewide to create as large a them with the TIP program. contacts were made and information also group as possible of prospective mentors, Initially, many newly admitted at- was obtained through the ABA’s profes- in anticipation of the program eventually torneys are not able to find employment. sionalism symposiums. While it was pri- being expanded into other parts of the state. Many either individually or collectively marily Ohio’s program which offered the Becoming a mentor is very simple. Sign up are hanging out their own shingles. This is most guidance, the LSBA’s TIP program is online at: http://files.lsba.org/documents/ being done without the benefit of gaining based on critical elements from other states, SL/MentoringProgramFillInRegistration. any experience of the reality of practice in plus unique features developed through the pdf. a law firm. There are also newly admitted efforts of the Mentoring Subcommittee. Next, a mentor training manual is being attorneys in firms of all sizes which have After approximately two years of work, developed. This manual, to be provided to no mentoring programs at all or other the subcommittee submitted its recom- both the mentor and mentee, will ensure firms which have only a loosely structured mendations to the COTP, which made that the mentor has all the requisite mentoring program. Merely because a new certain revisions. Ultimately, the mentoring information he or she needs to review and admittee is in a firm, there is no assurance program was approved unanimously by the discuss specific concepts with the mentee.
Louisiana Bar Journal Vol. 61, No. 4 251 As explained below, this will take place in four meetings throughout the one-year mentoring program. In that regard, the mentor will receive six hours of CLE credit. The mentor will attend a training session in advance of the commencement of the program with the mentee. Further, the LSBA is creating a system to enable the mentee to report the periodic completion of various tasks. The reporting by the mentee will be on an honor system. At the end of the year, the LSBA will generate a report to be submitted to the Supreme Court which will ensure compliance and ultimate completion of the mentoring program. This system also will assist in the matching of the mentors and the mentees.
Qualifications for Mentors
There will be specific qualifications for mentors. The Supreme Court will appoint qualifying mentors recommended by the LSBA based on submitted mentor applications. To qualify for appointment, the mentor must have been admitted into the practice of law for a period of at least 10 status whose principal office is outside state district court. years; must have no record of suspension Louisiana (but attendance at the LSBA’s 3. Attend civil hearing or trial in federal or disbarment from practice; must have “Bridging the Gap” seminar may still district court. a professional liability insurance policy be required, as well as participation in 4. Attend criminal hearing or trial in with minimum limits of $100,000 per the other state’s mentoring program if federal district court. occurrence and $300,000 in the aggregate; applicable); 5. Appellate court oral argument must be of good moral character; must be ► In-house counsel and government (including online Supreme Court oral willing to voluntarily participate in the attorneys; and argument). program; and must commit throughout its ► New lawyers who are not engaged 6/7. Attend two hearings or trials in term to the obligations and duties of being a in the practice of law. specialized courts, such as bankruptcy mentor. The professional liability insurance New lawyers admitted to practice court, state or federal administrative law policy requirement is not applicable to in Louisiana but who have practiced in court, family/domestic/juvenile court or mentors who are employed as in-house another jurisdiction for five years or more small claims court. attorneys or employed by a governmental are exempt from the TIP program but may 8. Deposition (with mentor). unit or “not for profit” entity. Judges may participate if they wish. 9. Jail (to understand procedure for serve as mentors. jailhouse visits). Required Activities for 10. Attend meeting or function of LSBA, Temporary Deferral for Mentees local bar association, specialized bar association or Inn of Court (recommended Some New Admittees There will be two categories of required for mentor to attend). Additionally, certain new admittees activities for the mentees. Initially, the may defer participation in the program. mentee must participate in 10 specific Mentor/Mentee Quarterly The following new lawyers may be eligible activities. Unless required, the mentor does Meetings for a temporary deferral from the TIP not have to attend these with the mentee. requirements: These activities are: The mentor and mentee are required ► New lawyers serving as judicial 1. Attend civil hearing or trial in state to meet four times during the year-long clerks; district court. program. At least five of the activities ► New lawyers on active membership 2. Attend criminal hearing or trial in must be discussed each quarter but it is
252 December 2013 / January 2014 anticipated (and encouraged) that addi- ► Discuss how to evaluate a potential Other Activities tional topics will be reviewed during the case and whether to accept a case. meetings. This will be determined at the ► Discuss dealing with “difficult” client. Other than the cost of the “Bridging discretion of the mentor and the mentee. ► Discuss importance of constant com- the Gap” seminar, there is no cost to the These quarterly activities are: munication with client, providing updates mentees for the TIP program. Also, new and status reports. admittees can participate in mentoring FIRST QUARTER ► Discuss fee arrangements and con- programs offered by their law firms if ► Meet at mentor’s office to be intro- tracts. available but the firm’s program must be duced to other firm members. ► Discuss proper legal counseling in compliance with the requirements of ► Discuss “unwritten” customary rules techniques and duty of advising clients. the TIP program. of civility and etiquette among lawyers ► Discuss appropriate ways (including There will also be a voluntary program and judges. ethics, professionalism, custom, etiquette) offered twice a year. This will combine ► Discussion of Louisiana Code of in dealing with others on behalf of client. a social/networking aspect for the new Professionalism. ► Discuss preparation for taking and admittees with speakers to discuss specific ► Review RPC Rules 6.2 and 6.3. defending depositions. topics geared towards supporting the over- ► Acquaint mentees with legal aid, local ► Discuss methods and issues in ne- all mentoring program such as marketing, pro bono agencies and lawyers engaging in gotiations. use of social media in the practice of law civic and charitable work. ► Discuss effective legal writing. and general transitioning into practice. ► Discussion of work/life balance and ► Discuss alternative dispute resolution. A welcoming reception by the LSBA factors effecting ability to successfully and the Supreme Court for the mentors practice. FOURTH QUARTER will begin the annual program which will ► Discuss client confidentiality and conclude with a reception to honor the SECOND QUARTER privileges. mentees who have completed it. While the ► Discuss mentee’s long-term career ► Discuss how to screen for and rec- program lasts for one year, based on infor- objectives and identify ways to meet these ognize conflicts. mation from other states, the mentors and goals. ► Discuss roles of secretaries and mentees have often continued to maintain ► Discuss substance abuse and mental paralegals. this relationship. Also, many mentors have health issues, including warning signs, ► Discuss how to prevent unauthorized repeated the program. The LSBA and the colleagues with problems and resources. practice of law. Supreme Court are encouraged by the very Include specific information about the ► Discuss office politics, including what strong feedback and high levels of support Lawyers Assistance Program (LAP). is and what is not appropriate networking, from those who have participated in the ► Discuss different career paths and socializing and personal behaviors. program in other states. identify resources for exploring options. ► Discuss steps in leaving a law firm. Discuss differences in working in various ► Discuss good time management skills Conclusion sized firms and government positions. and techniques. ► Discuss managing law school debt. ► Discuss law office management mat- This is a very important program and ► Discuss job search strategies. ters, such as time records; records of client will not only be of great value to the new ► Discuss common malpractice traps expenses; billing systems; retainer/advance admittees but also will strengthen our pro- and how to avoid common pitfalls. deposits/payment schedules; escrow and fession. It also shows the LSBA’s continued ► Discuss handling of conflict issues trust accounts, IOLTA and handling cli- commitment to professionalism. and review of applicable ethical rules. ent funds; filing system and procedure; ► Discuss purpose, necessity and document retention; calendar reminder Barry H. Grodsky is a benefits of professional liability insurance. and docket systems; information technol- partner in the New Orleans ► Discuss operation and function of ogy systems, including court-accessible law firm of Taggart Morton, L.L.C., and currently serves Office of Disciplinary Counsel and duty to systems such as PACER; and library and as the Louisiana State cooperate in disciplinary process. research systems. Bar Association (LSBA) ► Discuss handling ethics issues at law secretary and editor of the firm, with associate or partner and with The only required topic to be discussed Louisiana Bar Journal. He also chairs the Committee other colleagues. will be the Lawyers Assistance Program. on the Profession and the Further, the new admittees will be required law school professionalism THIRD QUARTER to attend the LSBA’s “Bridging the Gap” programs. He serves on a ► Discuss client and business develop- program now offered for new admittees. number of other LSBA com- mittees and is a frequent lecturer on professionalism. ment and retention and ethical issues. That program offers a good entry into the (Ste. 2100, 1100 Poydras St., New Orleans, LA 70163) ► Discuss client’s role in decision- profession and will lead in directly to the making process. more detailed quarterly topics.
Louisiana Bar Journal Vol. 61, No. 4 253 The Last Stand of the Duty to Sit: Recusal in Louisiana
By Roy J. Rodney, Jr. and John K. Etter
254 December 2013 / January 2014 ecusal is an ancient civil In 1973, the American Bar Association the judge had previously been employed law concept fundamental to (ABA) adopted Canon 3(C) (now Rule or consulted as an advocate in the cause. democracy and due process.1 2.11) and the Model Code of Judicial The current recusal rules in civil cases Prior to the 19th century, judges Conduct to eliminate the duty to sit as a are codified in Louisiana Code of Civil wereR allowed to preside in situations factor to be weighed in deciding a recusal Procedure articles 151 through 160l.16 A that today would almost universally be motion. Instead, a judge should disqualify district court judge may recuse himself, considered improper.2 Disqualification of himself if his impartiality might reasonably even if no motion for recusal has been judges for bias was rare, and except for be questioned, or if required by law. The filed, or may file a written application those cases that contravened Sir Edward Judicial Code and the case law interpreting with the Louisiana Supreme Court, which Coke’s core principle that “no man should it have effectively obliterated the idea of may recuse the judge if there are sufficient be a judge in his own case,”3 only a direct weighing a judge’s duty to sit in most grounds for recusal.17 Otherwise, the party financial stake in a case usually disqualified jurisdictions, since the “appearance of seeking recusal must file a written motion a judge. This view persisted into the 20th impropriety” standard is so high that setting forth the grounds for recusal.18 If the century. recusal is favored in close cases.12 In most motion sets forth a “valid” ground, the trial The “duty to sit doctrine” — what one states today, any legal presumption against judge may either recuse himself or refer writer termed the “pernicious” version of the disqualification created by the duty to sit the motion to another judge for hearing. concept4 — emphasizes a judge’s obligation doctrine is considered detrimental to the If a motion is filed to recuse an appellate to hear and decide cases unless there are judicial system because it reverses what judge, he may either recuse himself, or compelling grounds for disqualification.5 should be the logical presumption in favor have the matter heard by the other members That doctrine pushes judges to resolve of disqualification,13 so that in close cases of the panel or, alternatively, by all of the close disqualification issues against “the balance tips in favor of recusal.”14 Yet, members of the court.19 recusal, when the presumption should run the duty to sit has persisted for 40 years in in exactly the opposite direction.6 Louisiana, despite the ABA’s changes to Rise of the Louisiana Code The duty to sit doctrine is often traced the Model Judicial Code and the adoption of Judicial Conduct Canons to William Blackstone and the pre-1800 by other states of similar language.15 English attitude that “the law will not The Louisiana Code of Judicial Conduct suppose the possibility of bias or favour Statutory Foundations of 7 was adopted by the Louisiana Supreme in a judge.” The prevailing opinion was Louisiana Recusal Law Court on March 5, 1975, and became that “challenges to judicial impartiality effective on Jan. 1, 1976.20 “The Code is would undermine public respect for the 8 “All courts shall be open, and every binding on all judges, and judges are bound legal system.” The first reported American person shall have an adequate exclusively by [its] provisions.”21 Canon 2 case to use the term “duty to sit” appeared 9 remedy by due process of law and requires judges to avoid both impropriety in 1824. justice, administered without denial, and the appearance of impropriety. One of the most famous 20th century partiality or unreasonable delay, for Canon 2(B) provides, in relevant part, endorsements of the duty to sit occurred injury to him in his person, property, that “[a] judge shall not allow family, in Laird v. Tatum, a case involving a claim reputation, or other rights.” La. social, political, or other relationships that the Army was unlawfully surveilling 10 Const. art. 1. § 22 (1974). to influence” him. Canon 3(C) provides citizens. In Laird, the plaintiff attempted that “[a] judge should disqualify himself to recuse Justice William Rehnquist, who Louisiana’s first recusal statute, enacted or herself in a proceeding in which the before his appointment to the Supreme in 1858, provided that a judge could be judge’s impartiality might reasonably be Court had testified as an expert witness for recused in criminal cases only if the judge questioned and shall disqualify himself the Justice Department at Senate hearings was related by blood or marriage to the or herself in a proceeding in which on the constitutionality of the federal defendant. That prohibition was expanded disqualification is required by 22 law or government’s surveillance of citizens. in 1871 to familial relations to the fourth by applicable Supreme Court rule. In all In refusing to recuse himself, Rehnquist degree and prior employment as an attorney other instances, a judge should not recuse stated, among other reasons, that “[t]hose in the matter. In 1880, the recusal rules himself or herself.”23 federal courts of appeals which have were made applicable to civil cases and If the Judicial Canons can be the basis considered the matter have unanimously grounds for recusal were added: the judge’s for disciplining judges, then the Canons concluded that a federal judge has a duty interest in the cause of the litigation and the should also be the basis for removal of to sit where not disqualified which is judge having rendered a judgment in the judges from cases where such violations equally as strong as the duty to not sit 11 same cause in another court. In 1882, the exist. In In re Cooks, the Supreme Court where disqualified.” law was amended to allow recusal where held in a 1997 disciplinary proceeding
Louisiana Bar Journal Vol. 61, No. 4 255 that a judge should have recused herself listed in La. C.C.P. art. 151.32 to sit and the allegedly exclusive grounds due to the appearance of potential bias In 2006, the Supreme Court held in of article 151.40 and prejudice under La. C.C.P. art. 151, Disaster Restoration Dry Cleaning, L.L.C. Opponents of recusal often rely on the and that her failure to do so violated the v. Pellerin Laundry Machinery Sales Supreme Court’s 2002 decision in Chauvin Judicial Canons.24 The judge was close Company, Inc. that the Code of Judicial v. Sisters of Mercy Health Systems41 to friends with one of the litigants and her Conduct binds all judges and instructs them deny writs on the 4th Circuit’s ruling that attorney, the attorney was representing as to their expected ethical conduct.33 In for the proposition that article 151 is the the judge in her divorce, and the litigant 2009, the court reiterated that “the primary exclusive statutory grounds for recusing a had also tutored the judge’s children, purpose of the Code of Judicial Conduct is judge, the movant must show actual bias to helped decorate the judge’s office and to protect the public rather than to discipline successfully recuse a judge.42 This reliance was reimbursed for school supplies and judges.”34 is misplaced because in Chauvin, the groceries.25 The court held that article In 2012, the Supreme Court reversed the parties seeking recusal apparently failed to 151 applied, and the Judicial Code and denial of a motion to recuse a 5th Circuit allege that the trial court’s actions violated Louisiana Constitution required recusal judge in Tolmas v. Parish of Jefferson on the Code of Judicial Conduct. Because the when “the circumstantial evidence of the basis of La. C.C.P. art. 151(A)(4) and Chauvin court was never presented with bias or prejudice is so overwhelming transferred the case to the 2nd Circuit, the issue, it did not consider whether the that no reasonable judge would hear the in order to avoid even the appearance of judge’s conduct would have warranted case.” Id. at 903. Because the standard impropriety.35 recusal under the Judicial Code. for determining whether it appears that In 2008’s Radcliffe 10, L.L.C. v. Zip a judge is “biased or prejudiced” is an La. Circuit Courts Persist in Tube Systems of Louisiana, Inc., the 5th objective one, it does not require direct Applying the Duty to Sit in Circuit affirmed the denial of defendants’ evidence of actual bias or prejudice.26 The motion to recuse the trial court judge where Cooks ruling is consistent with the court’s Non-Disciplinary Cases plaintiffs’ sole damages expert had been earlier pronouncements that recusal is “not the judge’s campaign treasurer and was the only for the protection of the litigants but Louisiana courts of appeal and district judge’s accountant.43 The appellate court generally to see that justice is done by an courts are not applying the Code of Judicial held that Code of Judicial Conduct Canon impartial court . . . [and] for the sake of Conduct with any consistency to recusal 3(C) “does not provide an independent appearances to the general public. . . .”27 motions, despite the Supreme Court’s basis of recusal of a judge” and quoted Yet, also in 1997, the Supreme Court rulings in Cooks, Disaster Restoration and the “duty to sit” doctrine from Lemoine, gave a nod to what one writer referred Tolmas. Rather, some courts continue to without acknowledging either Cooks or support both a duty to sit and a presumption 44 to as the “benign version” of the duty to 36 Disaster Restoration. sit,28 stating, “[i]n each possible recusal of impartiality. In 2011, the same court affirmed situation, there is a countervailing In 2000, the 4th Circuit Court of Appeal sanctions against an attorney for filing consideration which militates in favor of distinguished Cooks and found in Guidry two motions to recuse trial court judges, a judge’s not recusing himself, or being v. First National Bank of Commerce that cautioning “courts and litigants of the recused; that is, that the judge has an because La. C.C.P. art. 151 does not include obvious dangers to our system of justice — obligation, part of his sworn duty as a “appearance of impropriety” as a grounds the use of a motion to recuse as a litigation judge, to hear and decide cases properly for recusal, “[a]bsent an amendment or a tool in response to unfavorable rulings.”45 brought before him. He is not at liberty, contrary interpretation by the Supreme In Florida Parishes Juvenile Justice nor does he have the right, to take himself Court, a mere appearance of impropriety, Commission v. Hannist, the 1st Circuit not statutorily listed in La. C.C.P. art. 151, out of a case and burden another judge 37 reversed the denial of a recusal motion in with his responsibility without good and cannot be a basis for recusal.” 2011. The defendant had filed a motion to legal cause.”29 In a 2001 case, Southern Casing of recuse all of the judges of the 21st Judicial In 2004, the Supreme Court recused Louisiana, Inc. v. Houma Avionics, Inc., the District Court (JDC) pursuant to Art. a district judge in Folse v. Transocean defendant sought recusal of the trial court 151(A)(4).46 This civil matter arose from a Offshore USA, Inc. based solely upon a judge because the judge had practiced law criminal case where the criminal defendant, Judicial Canon violation.30 Defendants had with the owner of the plaintiff company; who served as secretary of the Florida moved to recuse a pro tem judge because had formerly represented the owners of Parishes Juvenile Justice Commission of his firm’s relationship with plaintiff’s the plaintiff company in federal and state (Commission), was accused of creating counsel.31 The district court denied the court; had accepted a plant as a gift; and false invoices for a fictitious court reporting had numerous dealings with the company recusal motion and the 4th Circuit Court 38 service and then converting the funds to of Appeal denied supervisory writs. owner over 32 years. The motion to her personal use. The commission has an recuse was denied because actual bias was However, the Supreme Court reversed and 39 ongoing working relationship with the recused the judge, due to the appearance of not proven. The 1st Circuit rejected the judges of the 21st JDC in conjunction with impropriety under Canon 3(C). Notably, “appearance of impropriety” standard as a district administration. Two members, who that ground for recusal is not specifically mandatory recusal ground, citing the duty allegedly signed many of the checks used
256 December 2013 / January 2014 to perpetuate the alleged fraud, had been recusal) and fail to acknowledge that the 4. See Jeffrey W. Stempel, “Chief William’s appointed to the commission by judges of 1974 amendment to 28 U.S.C. § 455 was Ghost: The Problematic Persistence of the Duty to 47 Sit,” 57 Buffalo L. Rev. 813, 814 (May 2009). the 21st JDC. An ad hoc judge denied the intended to legislatively overrule Justice 5. “In close cases, judges should err on the side motion to recuse, finding no evidence of Rehnquist’s Laird opinion. of recusal in order to enhance public confidence in actual bias.48 The 1st Circuit reversed the According to Flamm’s disqualification the judiciary and to ensure that subtle, subconscious, denial, citing Tolmas, and found that the treatise, the duty to sit is now a minority or hard-to-prove bias, prejudice, or partiality does 58 not influence decision-making. The pernicious fact that commission members had been rule. Other states are inconsistent in their version of the duty to sit concept pushes judges in appointed by the 21st JDC judges created application of the duty to sit doctrine, exactly the wrong direction, suggesting that they the potential for bias, since the outcome despite adoption of the 1972 ABA Judicial should decline to preside only if the grounds for of the case could affect how the judges’ Code Canon 3(C) or its successor 1990 disqualification are undeniably clear.” Id. 49 59 6. Id. credibility will be viewed. Code Canon 3(E). 7. Sir William Blackstone, Commentaries on the Laws of England, vol. 3 (Oxford: Clarendon Press, [1765]-1969) at p. 361. Federal System, States Conclusion 8. See James, Hazard & Leubsdorf, n. 74, at Adopt Higher Standards for 394, at § 7.3. Judicial Impartiality than Louisiana should modify its Codes of 9. See Waterhouse v. Martin, 7 Tenn. 373, 385 Civil and Criminal Procedure as well as (Tenn. 1824). Louisiana its Code of Judicial Conduct to clearly 10. 409 U.S. 824 (1972). 11. Id. at 837 (citations omitted). state that, when presented with recusal, the The United States Supreme Court has 12. For instance, the State of New York does subject judge should not weigh his duty not appear to apply the “duty to sit.” See, e.g., In often held that “[t]rial before an unbiased re Murphy, 626 N.E.2d 48 (N.Y. 1993) (appearance 50 to sit against the merits of the motion to judge is essential to due process.” In recuse, and that close questions are to be of impropriety resulted in removal of judge who did not recuse himself in a case, where the judge, Caperton v. A.T. Massey Coal Co., the decided in favor of recusal. The citizenry’s court recently ordered the recusal of a who had previously borrowed money from a party, right to a judiciary above suspicion should did not disclose that loan); Murray v. Murray, 424 West Virginia Supreme Court justice who outweigh any consideration that there is any N.Y.S.2d 50 (N.Y. App. Div. 1980) (integrity of court refused to voluntarily recuse himself from dereliction of duty when a judge is recused. system requires judge’s recusal when appearance of impropriety emerges). But see, Spremo v. Babchik, a case after the defendant corporation spent The clear adoption of the “appearance of $5 million on advertising in support of the 589 N.Y.S.2d 1019, 1022 (N.Y. Sup. Ct. 1992), 51 impropriety” recusal standard, already aff’d as modified, 628 N.Y.S.2d 167 (N.Y. App. Div. justice’s election. Without questioning contained in Canon 2 to the Louisiana Code 1992), appeal denied, 658 N.E.2d 221 (N.Y. 1992) the lower court’s finding of no actual bias, of Judicial Conduct, would be consistent (judge has “duty” not to recuse unless personally satisfied that he cannot be impartial). impartiality or impropriety, the court found with the majority rule and the ABA Model that the risk of perceived bias was so great 13. See, Leslie W. Abramson, “Appearance of 52 Code of Judicial Conduct. Impropriety: Deciding When a Judge’s Impartiality that due process required recusal. Might Reasonably Be Questioned,” 14 Geo. J. Under federal statutes and jurisprudence, The authors would like to acknowledge the Legal Ethics 55, 62 n. 37 (Fall 2000). a judge should be recused when “a assistance of Veronica J. Lam in the preparation 14. In re Boston’s Children First, 244 F.3d 164, reasonable and objective person, knowing of this article. 167 (1 Cir. 2001) (quoting Nichols v. Alley, 71 F.3d 347, 352 (10 Cir. 1995)). all the facts, would harbor doubts 15. See, ABA Standing Committee on 1990 concerning the judge’s impartiality.”53 FOOTNOTES Code, Legislative Draft 15 (1990), citing Laird, The Supreme Court recognized that due supra note 13. process “may sometimes bar trial by judges 1. “Pursuant to the Roman Code of Justinian, a 16. La. Code Civ. Proc. art. 151 provides the following grounds for recusal: who have no actual bias and who would party who believed that a judge was under suspicion was permitted to recuse that judge, so long as he did do their very best to weigh the scales of so prior to the time the issue was joined.” Richard A. A judge of any court, trial or appellate, shall justice equally between [the] parties.”54 The E. Flamm, “History of and Problems with the Fed. be recused when he: federal 5th Circuit has opined that “[i]f the Judicial Disqualification Framework,” 58 Drake (1) Is a witness in the cause; (2) Has been employed or consulted as an attorney question of whether [to recuse] is a close L. Rev. 751, 753 (Spring 2010), citing Code Just. 3.1.14 (Justinian 1530 S.P. Scott. Trans.). “This in the cause or has previously been associated with 55 one, the balance tips in favor of recusal.” expansive power on the part of early litigants to an attorney during the latter’s employment in the Despite congressional elimination of effect a judge’s recusal formed the basis for the cause, and the judge participated in representation the duty to sit in the 1974 amendments broad disqualification statutes that generally prevail in the cause; (3) Is the spouse of a party, or an attorney to 28 U.S.C. § 455, many federal courts in civil law countries today.” Id., p. 753 n. 13. 2. For example, Chief Justice John Marshall employed in the cause or the judge’s parent, child, 56 continue to rely on it, at least in dicta. arguably violated even the most narrow or immediate family member is a party or attorney A number of federal cases still refer to disqualification norm by serving as a justice in employed in the cause; or Justice Rehnquist’s opinion on the duty Marbury v. Madison, 5 U.S. 137, 2 L. Ed. 60 (4) Is biased, prejudiced, or interested in the cause or its outcome or biased or prejudiced toward to sit in Laird v. Tatum57 as good law (1803), which arose out of Marshall’s own failure as Secretary of State to properly deliver William or against the parties or the parties’ attorneys or any on questions of judicial disqualification Marbury’s commission to serve as a justice of the witness to such an extent that he would be unable to (although many courts cite that case peace. conduct fair and impartial proceedings. simply for the less controversial position 3. See Dr. Bonham’s Case, 77 Eng. Rep. 646, 652 (K.B. 1610). B. A judge of any court, trial or appellate, may that a judge’s philosophy is not ground for be recused when he:
Louisiana Bar Journal Vol. 61, No. 4 257 (1) Has been associated with an attorney during the judge’s campaign manager during the pendency 55. See also, Liljeberg v. Health Sci. Acquisition the latter’s employment in the cause; of the case, and the briefing asserted violations of Corp., 486 U.S. 847, 865 (1988) (affirming recusal (2) At the time of the hearing of any contested issue Canons 2 and 3 as grounds for recusal). of a judge who was a Tulane University trustee in in the cause, has continued to employ, to represent 33. 05-0715 at p. 4 (La. 4/17/06), 927 So.2d a matter affecting the university’s property even him personally, the attorney actually handling the 1094, 1097 (citing In re Lemoine, supra, 686 So.2d though he had no recollection or understanding of cause (not just a member of that attorney’s firm), and at 841) (citations omitted). the benefit to the university at that time). in this case the employment shall be disclosed to each 34. See In re Judge Joan S. Benge, 09-1617 at p. 56. See Stempel, “Chief William’s Ghost: The party in the cause; 37 (La. 11/6/09), 24 So.3d 822, 844 (quoting In re Problematic Persistence of the Duty to Sit,” supra, (3) Has performed a judicial act in the cause in Hunter, 02-1975 (La. 8/19/02), 823 So.2d 325, 333 57 Buffalo L. Rev. at 872-74. another court; or (citations omitted)). 57. Laird v. Tatum, supra, n. 13, 409 U.S. at 877. (4) Is related to: a party or the spouse of a party, 35. Tolmas, supra, 87 So.3d at 855-56. 58. See Richard E. Flamm, Judicial within the fourth degree; an attorney employed in 36. Louisiana is not alone in such practice. A Disqualification: Recusal and Disqualification the cause or the spouse of the attorney, within the dozen or more state judiciaries continue to invoke of Judges, Section 20.8, pp. 610-12 (2007 and second degree; or if the judge’s spouse, parent, child, variations of the duty to sit concept, with occasional Supp. 2012). Flamm’s disqualification treatise or immediate family member living in the judge’s federal courts joining in, despite the clear mandate lists considerable but not exhaustive state-specific household has a substantial economic interest in the of federal law. See Stempel, “Chief William’s Ghost: jurisprudence on the duty to sit. subject matter in controversy sufficient to prevent the The Problematic Persistence of the Duty to Sit,” 59. Judicial Canon 3(C) prompted the 1974 judge from conducting fair and impartial proceedings supra, 57 Buffalo L. Rev. at 882-87. amendments to 28 U.S.C. § 455. See Stempel, supra, in the cause. 37. Guidry v. First Nat’l Bank of Commerce, 98- 57 Buffalo L. Rev. 813, 882-97. 2383 (La. App. 4 Cir. 3/1/00), 755 So.2d 1033, 1037 See also La. Code Crim. Proc. art. 671, et seq. (internal citations omitted). Roy J. Rodney, Jr., (recusal in criminal cases). 38. Southern Casing of La., Inc. v. Houma founder and managing Avionics, Inc., 00-1930, 00-1931 (La. App. 1 Cir. partner of the law firm of 17. See La. Code Civ. Proc. art. 152. 9/28/01), 809 So.2d 1040. Rodney & Etter, L.L.C., 18. See La. Code Civ. Proc. art. 154. 39. The judge specifically noted that there was has an extensive history 19. See La. Code Civ. Proc. art. 160. “a small legal community in Houma. Everybody 20. The Supreme Court also issues advisory comes in contact with everybody else in either an of defending against opinions via the Judicial Ethics Committee. The adversarial or a representative or a fiduciary capacity injustice and infringement committee was created by the Supreme Court in at some point in our career.” Id. at 1049. of civil liberties. The conjunction with the Judicial Code. While not always 40. Id. at 1049-50. diverse law firm handles consistent, the opinions of the committee require that 41. Chauvin v. Sisters of Mercy Health Sys. St. civil disputes, including judicial activities must not violate the reasonableness Louis Inc., 02-1587 (La. 9/30/02), 825 So.2d 1194. contracts, business torts, test, and adopted a standard of impropriety and See also, Whalen v. Murphy, 05-2446 (La. App. 1 Cir. unfair trade practices, environmental justice, partiality. See, e.g., Opinion No. 158 (July 26, 1999). 9/15/06), 943 So.2d 504, writ denied, 06-2915 (La. intellectual property, and civil and constitutional 21. In re Lemoine, 96-2116 (La. 1/14/97), 686 3/16/07), 952 So.2d 696; Broussard v. Broussard, rights. Rodney has been recognized by national, So.2d 837, 841 (citing In re Decuir, 95-0056, p. 8 (La. 11-0922 (La. App. 1 Cir. 12/21/11), 2011 La. App. state and local legal associations, receiving the 5/22/95), 654 So.2d 687, 692 and La. R.S. 42:1167). Unpub. LEXIS 780, *14 (citing Southern Casing New Orleans Martinet Legal Society’s Trailblazer 22. See La. Code Civ. Proc. arts. 151-52; La. and Whalen for the proposition that article 151(4)(A) of the Year Award from the Coalition of Leadership Code Crim. Proc. arts. 671-72. requires a finding of actual bias or prejudice, and the and Development, the A.P. Tureaud Award, the 23. La. Code of Judicial Conduct, Canon 3(C); bias or prejudice must be of a substantial nature). Louisiana State Bar Association’s Pro Bono see also, In re Lemoine, supra, 686 So.2d at 843 42. Chauvin, supra, 818 So.2d at 835. Award and the National Bar Association’s (NBA) (citing Donnell v. Donnell, 567 So.2d 1143, 1145-46 43. Radcliffe 10, L.L.C. v. Zip Tube Sys. of La., President’s Award. He is past chair of the NBA’s (La. App. 2 Cir. 1990)); In re Office of Chief Justice, Inc., 07-1801 (La. App. 1 Cir. 8/29/08), 998 So.2d 107. 12-1342 (La. 10/16/12), 101 So.3d 9, 13, n. 11. 44. Id. at 115. Civil Trial Advocacy Section. (620 N. Carrollton 24. 96-1447 (La. 5/20/97), 694 So.2d 892. 45. Slaughter v. Bd. of Supervisors of So. Univ., Ave., New Orleans, LA 70119) 25. Id. at 897-98. 10-1114 (La. App. 1 Cir. 8/2/11), 76 So.3d 465, 472 26. Id., at 903 n. 15 (citing In re Chiasson, 549 (citing Suazo v. Suazo, 07-0795 (La. App. 1 Cir. John K. Etter joined So.2d 259, 263 (La. 1989)). 9/14/07), 970 So.2d 642, 652). the Rodney & Etter, 27. State v. Price, 274 So.2d 194, 197 (La. 1973). 46. Fla. Parishes Juvenile Justice Comm’n v. L.L.C., law firm at its See also, In re Benge, 09-1617, p. 38 (La. 11/6/09), Hannist, et al., 12-1003 (La. App. 1 Cir. 9/6/12), establishment in 2003 24 So.3d 822, 845 (“[T]he judicial branch depends 2012 La. App. LEXIS 1113, *1-2, writ denied, 12- and became a member in upon the confidence of the people it serves. Without 2188 (La. 12/14/12), 104 So.3d 442. 2005. He has experience that necessary confidence, the judiciary cannot 47. Id. at *2-3. in commercial litigation, serve its paramount purpose of providing a fair 48. Id. at *3. with a focus on science and and impartial open forum in which the public may 49. Id. technology, intellectual resolve its disputes.”) 50. Johnson v. Miss., 403 U.S. 212, 216 (1971). property and class action 28. Stempel, “Chief William’s Ghost: The See also, Connally v. Georgia, 429 U.S. 245 (1977); defense, particularly for Problematic Persistence of the Duty to Sit,” supra, In re Murchison, 349 U.S. 133 (1955); Tumey v. environmental toxic torts. 57 Buffalo L. Rev. at 820. Ohio, 273 U.S. 510, 523 (1927). He received his law degree in 1997 from Tulane 29. In re Lemoine, supra, 686 So.2d at 840. 51. Caperton v. A.T. Massey Coal Co., 556 U.S. 30. Folse v. Transocean Offshore USA, Inc., 04- 868 (2009). University Law School, where he was a member 1069, p. 1 (La. 5/7/04), 872 So.2d 467, 468. 52. Id. at 886-87. See also, Aetna Life Ins. Co. of the Tulane Law Review. A registered patent 31. See Folse v. Transocean Offshore USA, Inc., v. Lavoie, 475 U.S. 813, 825 (1986) (“[J]ustice must attorney, Etter is admitted to practice before Parish of Orleans, Civ. Dist. Ct. Div. A, No. 03- satisfy the appearance of justice”). the United States Patent and Trademark Office, 10602, Honeywell Int’l Inc.’s Motion to Recuse and 53. Patterson v. Mobil Oil Corp., 335 F.3d as well as before other state and federal courts Memorandum in Support. 476, 484 (5 Cir. 2003); see 28 U.S.C. §§ 144, 455; in Louisiana and Texas. He is a registered 32. Id. See also, Jacobs v. U.S. Fidelity & Caperton, supra, 556 U.S. at 886 (“The failure to professional engineer. (620 N. Carrollton Ave., Guaranty Co., 09-0042 (La. 4/13/09), 6 So.3d 1273 consider objective standards requiring recusal is not New Orleans, LA 70119) (granting writ and ordering recusal of the district consistent with the imperatives of due process.”). court judge, where the pro se plaintiff was apparently 54. Murchison, supra, note 50, 349 U.S. at 136.
258 December 2013 / January 2014 Procrastination, Inability to open mail Feelings of bafflement, file stagnation & or answer phones, confusion, loneliness, neglect, inability to “emotional paralysis” isolation, desolation meet professional or and being overwhelmed personal obligations or deadlines Drug or alcohol Persistent abuse Changes apathy or in energy, “empty” feeling eating or sleep habits Loss of interest or pleasure, dropping Trouble hobbies concentrating or remembering things Guilt, feelings of hopelessness, helplessness, worthlessness, or A Johns Hopkins study foundlow self-esteem that lawyers suffer from depression at a rate 3.6 times higher than the general employed population.
We Can Help. The signs of depression aren’t easy to read. No one is completely immune. If you or a colleague experiences signs of depression, please call.
Your call is absolutely confidential as a matter of law. Toll-free (866)354-9334 • Email: [email protected] • www.louisianalap.com
Louisiana Bar Journal Vol. 61, No. 4 259 The Foreign Corrupt Practices Act:
Through the Lens of Azerbaijan and the Republic of Georgia
By Peter G. Strasser
260 December 2013 / January 2014 t is virtually impossible to pick up cases: deferred prosecution, trial or guilty ance policy and revised its code of conduct a local newspaper anywhere in the plea. However, Azerbaijan and Georgia are for its worldwide employees. It also paid a world without seeing a headline about two particularly complex countries located in penalty of $7.35 million and made an ad- corruption. In the past year alone, one of the world’s most complicated regions ditional settlement with the SEC by paying moreI than one in four people (27 percent) — the Caucasus, which also includes Arme- a disgorgement of $8 million.7 reported having paid a bribe.1 Revelations nia and the North Caucasus of the Russian of widespread bribery of foreign officials Federation. This geographical region is rife Frederic Bourke by U.S. companies prompted Congress, with local, separatist, nationalist and global Frederic Bourke, co-founder of the back in 1977, to enact the Foreign Corrupt interests, cross-cutting diverse religions, eth- luxury-handbag maker Dooney & Bourke, Practices Act (FCPA).2 Through its various nicities and cultures. Strategic transportation entered federal prison in May 2013 to criminal and civil provisions, the Act was routes traverse one another; ethno-territorial begin serving a one-year sentence. He had intended to halt corrupt practices, create a conflicts persist unresolved; and even some unsuccessfully fought his FCPA charges at level playing field for honest businesses, and national borders are still hotly contested. his jury trial and appeal. Bourke’s problems restore public confidence in the integrity of Each state struggles to overcome a daunt- stemmed from an investment venture in the marketplace. ing set of internal and external challenges, Azerbaijan to purchase the state-owned In general, it is no easy matter for U.S. ranging from the need for economic and oil company, SOCAR. He was convicted companies operating overseas to comply political reform to combating the constant despite his defense that he was unaware that with both U.S. and foreign laws while con- threat of violent and destructive conflicts.6 his business partner, Victor “the Pirate of ducting business in cultures that do not view Recent political and legal developments, Prague” Kozeny, was bribing top-level of- the rule of law through the lens of Western however, offer cause for cautious optimism ficials, including the president of Azerbaijan. ideals. Such environments pose metaphori- for foreign investors and corporate counsel The 2nd Circuit affirmed the conviction in cal minefields for many U.S. businesses. seeking to facilitate U.S. business in this United States v. Kozeny, 667 F.3d 122 (2 Cir. Accordingly, the Department of Justice unique part of the world. 2011), holding that a defendant can indeed (DOJ) and the Securities and Exchange be found criminally liable under the FCPA Commission (SEC) recently published a Corrupt Practices: Three if he is found to be “consciously avoiding” 130-page guide that explains the FCPA, Case Studies knowing that an intermediary is paying its relevance to international business and bribes to a foreign official. The court relied, corporate compliance programs, and the inter alia, on testimony at trial demonstrating Tidewater Marine DOJ/SEC’s joint enforcement approaches that Bourke “was aware of how pervasive 3 In November 2010, Tidewater Marine 8 and priorities. International, Inc., a Cayman Islands sub- corruption was in Azerbaijan.” Nevertheless, the DOJ and the SEC sidiary of Tidewater, Inc., paid a combined have been exponentially increasing their Daniel Alvirez 4 $15 million to the DOJ and the SEC to FCPA enforcement actions over the years. settle FCPA allegations. Tidewater, Inc., In March 2011, Daniel Alvirez, presi- The DOJ now has attachés in more than headquartered in New Orleans, is a global dent of Arkansas military equipment 30 embassies around the world assigned to operator of offshore service and supply ves- company ALS Technologies, pleaded work closely with foreign law enforcement sels for energy exploration. Over the course guilty to participating in a scheme to pay and international organizations. Beyond of time, Tidewater Marine employees had bribes to the Georgian Defense Ministry collaborating on specific cases, the attachés paid $160,000 in bribes to tax inspectors in in exchange for obtaining an $11-million review foreign anti-corruption legislation Azerbaijan to secure favorable tax assess- contract selling ammunition and MREs to and programs and train foreign prosecutors ments and also paid $1.6 million in bribes the Georgian military. However, a year later, in combating corrupt activities.5 These ef- this FCPA charge was dismissed “without to Nigerian customs officials relating to 9 forts are yielding noticeable results: FCPA the importation of vessels into Nigerian prejudice.” Alvirez, in a separate scheme, cases are arising out of high-risk countries waters. Upon learning of the DOJ/SEC in- also had been part of the “SHOT Show” where law enforcement historically looked vestigation, Tidewater conducted an internal case (the FBI arrested the defendants at the the other way. investigation and voluntarily reported its Las Vegas Shooting, Hunting and Outdoor Three recent cases involving transactions findings to federal prosecutors. As a result, Trade Show). That investigation was the in Azerbaijan and the Republic of Georgia Tidewater Marine received a deferred first of its kind to pursue FCPA violations illustrate the resolutions that have become prosecution agreement from DOJ whereby using traditional undercover tactics such as typical in these types of criminal corruption it implemented an enhanced FCPA compli- informants, wiretaps and hidden cameras.
LouisianaLouisiana BarBar JournalJournal Vol.Vol. 61,61, No.No. 44 261261 But after two consecutive mistrials, the DOJ mented efforts to clean up corruption at the court. Such proceedings are time-consuming dismissed with prejudice all FCPA charges mid-levels of government. Recent years have and subject to capricious judicial outcomes, against all 22 defendants.10 With respect to seen rising salaries for civil servants and which often produce no concrete results. But, Alvirez’s Georgian scheme, federal prosecu- special training offered to raise awareness to its merit, when judicial authorization is tors explicitly stated they were continuing to within the bureaucracy about corruption. given, the ACD follows through to conclu- investigate and would “determine whether An Azerbaijani government service center sion.21 In the Tidewater Marine investigation, to bring criminal charges relating to that (ASAN) was recently established in Baku the ACD cooperated fully with the U.S. Em- conduct.”11 to cut bureaucracy, strengthen transparency, bassy. Pursuant to an official DOJ request, and improve the ease of doing business. ACD sought and obtained judicial search International Business ASAN’s mission is to open up and simplify warrant approval to retrieve documents Rankings and Assessments all areas of government, including the is- from Tidewater’s office in Baku. Those suance of forms, registration, workplace documents were then promptly delivered In its handbook, “Business Principles for compliance and tax issues. Already the to the U.S. Embassy. Countering Bribery,” Berlin-based Transpar- number of procedures involved in starting ency International (TI) states, “Bribery may a business in Azerbaijan has been reduced An Overview of the from 30 to seven, and the overall cost has be so much a part of a business culture in 15 Corruption in Georgia some places, that dealing with it can seem been halved. an overwhelming challenge and no one As seen in the Kozeny case, true cor- A decade ago, Georgia had an appalling business can fight it alone.”12 According to ruption in Azerbaijan is at the elite level reputation for corruption. But subsequent TI’s latest annual assessments of corrupt and based mostly on extracting rents from political changes have brought about the energy sector (the country’s primary countries, Armenia and Azerbaijan rank 16 substantial reform. By 2012, Georgia was 94th and 127th, respectively, out of 177 national asset). It is well documented that, ranked by the World Bank as the 12th most countries surveyed, although Georgia posted through hidden ownership structures, the favorable country in the world for the ease a better ranking of 55th.13 The TI ranking for first family has profited personally from of doing business.22 Nonetheless, many massive construction projects throughout Azerbaijan effectively confirms that it is dif- 17 Georgians dispute that their new and osten- ficult to do business in Azerbaijan, especially Baku. In its 2012 country progress report, sibly showcase system of transparency tells when it involves Azerbaijan’s oil resources, the Organisation for Economic Co-operation the whole story. Despite President Mikheil without paying bribes and kickbacks. Yet and Development (OECD) noted that, Saakashvili’s vow in 2009 to bring about a even those figures obscure the realities of although Azerbaijan has made progress in “new wave of democratization,” his govern- corruption in the region. fighting corruption, efforts toward judicial ment perpetuated the highly criticized Soviet independence and meritocracy have largely practice of using the police to safeguard the taken a back seat. Police investigators al- An Overview of Corruption in security of the ruling regime rather than most never open criminal cases against top 23 Azerbaijan serving the larger community. government officials and, when they do, Immediately after being elected presi- judges often decline to rule against them.18 Today, Azerbaijan is a politically closed dent in January 2004, Saakashvili made it No high-level government official has ever clear that fighting corruption would be one society with a dynastic presidency. The been prosecuted. Further, no judge has ever considerable revenues it has earned from of his top priorities. Capitalizing on his been prosecuted for any corruption-related election mandate, he quickly implemented its vast hydrocarbon reserves have, unfor- charge, despite the fact that the judiciary is tunately, failed to produce greater openness reforms, although often circumventing regarded as one of the country’s most cor- time-consuming democratic procedures to or democracy. Instead, those same riches 19 rupt institutions. achieve his goals. He further ensured that have made the country’s rulers progressively Even so, the OECD report praised the more independent and self-confident. It is Parliament adopted certain constitutional efforts of the Anti-Corruption Department amendments that strengthened presidential widely recognized that corruption is deeply (ACD) within Azerbaijan’s Prosecutor institutionalized throughout Azerbaijani powers at the expense of the legislative and General’s Office. The ACD prosecuted 298 judicial branches.24 society and poses a major obstacle to both defendants in 2012 and 229 defendants in social and economic development in the Saakashvili also hijacked the state’s 2011 — all of them, unsurprisingly, mid- administrative resources — police, pros- country. In terms of specific areas of cor- level officials.20 ruption, the State Customs Committee and ecutor’s offices, courts, prisons, national Further, Azerbaijani law makes it difficult banks, tax inspection and the media — to the Ministry of Taxes are the institutions of for prosecutors to gain access to a target’s greatest concern to both local and foreign serve his own ends. It was not long before bank, financial or commercial records by major commercial interests, such as telecom- companies operating in Azerbaijan.14 requiring disclosure authorization from a Nonetheless, Azerbaijan has imple- munications, broadcasting, advertising, oil,
262 December 2013 / January 2014 pharmaceuticals and mining, were under the by his rival, billionaire Bidzina Ivanishvili. legislation on the protection of witnesses ownership of then-current members of the However, the history of this region is all and collaborators in corruption cases. He government, their allies and relatives, all via about settling scores. Soon after the new gov- is steadfast and emphatic to the ideal that a complicated web of companies registered ernment was seated, a string of Saakashvili’s any American business that reports extor- offshore. As evidenced by Daniel Alvirez’s former ministers and party officials were tion and cooperates in ACD investigations guilty plea, Saakashvili’s top officials fre- under investigation. Reminiscent of what will receive the Azerbaijani government’s quently used the government apparatus to happened after Saakashvili’s Rose Revolu- personal protection. control and extort money from businesses. tion ousted President Eduard Shevardnadze, Likewise in Georgia, the new Deputy Further, the administration often used the officials who did not flee the country were Minister of the Interior is adamant that any state’s resources as tools for the persecu- arrested and prosecuted.29 Commenting on American business that reports extortion tion of political opponents, with the police this state of affairs, the chair of the Board of and cooperates with law enforcement will freely engaging in the excessive use of force. Transparency International Georgia stated: receive the government’s gratitude and Top officials also appropriated private land protection. The new Minister of Justice, for investment projects, telling the owners Is it politically motivated? Yes. Is it a former lawyer at the European Court of they had to gift the land to the state or face a reasonable exercise in the rule of Human Rights, faces the daunting task of prosecution. law? Yes, because there were so many overhauling the courts, the prosecutor’s In cynically fabricated cases, plea bar- laws broken. The thing to watch is office and the prison system to restore faith gaining was abused to extract both land the trend line — will this continue? in the much-maligned criminal justice and money.25 In fact, plea bargaining was Is this going to be a way of making system. He knows the eyes of the West are viewed as an effective revenue-raising tool sure there is no opposition?30 upon Georgia, and he is reversing many of in criminal cases. If a defendant wanted a his predecessor’s predatory policies. Many sentence reduced, he had to pay a specified Conclusion senior policemen who were fired after ob- amount for each year deducted from the jecting to Saakashvili’s practices have been maximum sentence. Under this scheme, a The threshold consideration in deciding reappointed. In the spirit of the times, the total of $50 million was collected. As the what, if any, FCPA enforcement action will Georgian Parliament has adopted a sweep- new speaker of the Georgian Parliament told be taken is, of course, the target’s conduct. ing amnesty, releasing some 8,400 pre-trial The Economist, “We had a system where Regardless, the DOJ and the SEC place a and convicted inmates. The Parliamentary the prosecutor was the chief economist in high premium on self-reporting. As the dif- speaker told The Economist: the country.”26 ferent outcomes in the Tidewater, Kozeny The Georgian judiciary, whose mandate and Alvirez cases indicate, cooperation We have not emptied the prisons to it is to review each case for evidentiary and remedial efforts are major factors in fill them up again. The only way to serve sufficiency and sentence fairness, practi- determining the appropriate resolution of justice is to make the process as transparent cally rubber-stamped every guilty plea. FCPA matters.31 as possible by subjecting it to the scrutiny Monitoring groups reported that judges Those efforts can and should start in the of the media and international watchdogs.34 not only routinely sided with motions from foreign country itself. Even though bribery is the prosecution, they also based judgments still a part of the culture of the Caucasus, the FOOTNOTES on questionable evidence.27 As a result, the attitudes of the governments of Azerbaijan judiciary today is viewed as “one of the least and Georgia have changed. Both are now 1. Transparency International, Global Corrup- trusted institutions in the country.”28 parties to the United Nations Convention tion Barometer 2013, 3, 14 (2013), available at www. transparency.org/gcb2013 . However, democracy is still, at least 32 Against Corruption. As such, both have 2. Foreign Corrupt Practices Act (FCPA), 15 in part, very much alive in Georgia. Less implemented specific anti-corruption mea- U.S.C. §§ 78dd-1 (West 2013). than two weeks before the October 2012 sures to encourage disclosure. Bribers who 3. Department of Justice and Securities and Ex- parliamentary elections, public outrage are extorted and subsequently report the change Commission (DOJ/SEC), A Resource Guide to was ignited when leaked videos showing the U.S. Foreign Corrupt Practices Act (2012), available bribe are often “relieved of responsibility” at www.sec.gov/spotlight/fcpa/fcpa-resource-guide.pdf sexual torture and other egregious abuse of 33 because of their cooperation. (hereinafter, FCPA Resource Guide). prison inmates were broadcast on national The director of the Azerbaijani ACD has 4. See Gibson Dunn, 2013 Mid-Year FCPA Up- television. Those images triggered mass been working closely with DOJ attachés date (2012), available at www.gibsondunn.com/pub- demonstrations and had a decisive impact on and understands the legal dilemmas fac- lications/pages/2013-Mid-Year-FCPA-Update.aspx the elections. Saakashvili’s party was voted (citing various cases brought by the DOJ/SEC under ing American companies operating there. the FCPA). out of office. Although Saakashvili himself He is committed to implementing the new 5. See FCPA Resource Guide, supra note 3, at 6-7. still had a year remaining in his presidency, Azerbaijan National Anti-Corruption Action 6. Alexandre Kukhianidze, George Mason Uni- there was now a new government headed Plan for 2012-15, which provides for better versity, Terrorism, Transnational Crime and Cor- ruption Center, Rethinking Organized Crime and
Louisiana Bar Journal Vol. 61, No. 4 263 Corruption (2012); see also Richard Giragosian, 19. The judicial sector in Azerbaijan is weak, ruption (2000), available at www.unodc.org/docu- “Networks of Crime and Corruption in the South primarily because of the executive branch’s exces- ments/treaties/UNCAC/Publications/Convention/08- Caucasus,” 9 Caucasus Analytical Digest (Sept. 17, sive influence over the judiciary, due not only to the 50026_E.pdf. The convention, which went into force 2009), available at www.css.ethz.ch/publications/ regulatory framework of the judicial system, but also on Dec. 14, 2005, contains 71 Articles and requires pdfs/CAD-9-2-5.pdf. to the historical, Soviet-based perception that judges States Parties to implement specific anti-corruption 7. United States v. Tidewater Marine Interna- are viewed as an extension of the state. In cases where measures even if that may affect their laws, institu- tional, Inc., Court Doc. No. 2010-CR-770 (S.D. Tex.). the state is a party, regardless of the merits of the case, tions and practices. To date there are 167 Parties, in- 8. United States v. Kozeny, 667 F.3d 122, 133 (2 the expectation is that the interests of the state will cluding the United States. See id. Cir. 2011), cert. denied; see also, Bourke v. United prevail. Despite the highly structured written and oral 33. This immunity can apply, at the prosecution’s States, 133 S.Ct. 1794 (2013). examination process (instituted only within recent discretion, to a person who is either (1) extorted, or 9. United States v. Daniel Alvirez, Court Doc. No. years as a result of Western pressure), appointments (2) after giving a bribe voluntarily, makes a report 09-CR-335 (D.D.C. 2012). for judgeships allegedly are still either purchased or of the occurrence. In practicality, the immunity is 10. Id.; see also, United States v. Amaro Gon- allocated to those who are acceptable to the Minis- given to those who are arguably extorted and then calves, Court Doc. No. 09-CR-335 (D.D.C. 2012). At try of Justice. It is widely perceived that judges must quickly report the payment. Even though the Azeri trial, the government’s primary informant was repeat- abide by the government’s explicit interests and im- and Georgian authorities designed this loophole to edly attacked by defense counsel as a cocaine addict, plicit demands. See United States Agency for Interna- encourage disclosure in exchange for amnesty, no tax cheat and admitted thief of millions of dollars tional Development, Analytical Paper on Corruption parallel protection is afforded under U.S. law. Thus, from his prior employer. In addition, defense counsel in the Judicial Sector of Azerbaijan (2005), available even though the improper payment may be explicitly cited examples of “vulgar” and “unprofessional” text at http://pdf.usaid.gov/pdf_docs/PNADP873.pdf. forgiven under foreign law, this forgiveness is not a bar messages between FBI agents and the informant. See 20. Those convicted include heads of regional to federal prosecution. See, United States v. Kozeny, id. education departments, regional labor and social No. 05-518 (SAS) (S.D.N.Y Oct. 21, 2008). In a pre- 11. United States v. Alvirez, Court Doc. No. 09- protection departments, teachers, doctors, chairmen trial motion, Bourke argued that the FCPA includes an CR-348 (D.D.C. 2012). of small municipalities and mid-level employees of affirmative defense that provides that if a payment to a 12. Transparency International, Business Principles the Ministry of Defense, Interior Ministry, etc. See foreign official was legal under the law of the country for Countering Bribery, 4 (2008), available at www.cgu. generally, Office of the Prosecutor, Azerbaijan, Anti- in which it was made (Bourke claimed Kozeny was gov.br/conferenciabrocde/arquivos/English-Business- Corruption Department, Guidebook (2013) (copy of extorted and thus was not a voluntary briber), then the Principles-for-Countering-Bribery.pdf. file with author). person who paid the bribe is immune from prosecution 13. Transparency International, Corruption Percep- 21. OECD Report, supra note 18. under the FCPA. The district court ruled, however, that tions Index (2013), available at http://cpi.transparency. 22. World Bank, Doing Business 2012: Do- for the lawful payments exception to apply, the pay- org/cpi2013/results/. ing Business in a More Transparent World (2011), ment must have been specifically permitted under the 14. European Commission, Progress Report of the available at www.doingbusiness.org/reports/global- foreign law at the time it was made. Azerbaijani (and EU-Azerbaijan European Neighborhood Policy Action reports/doing-business-2012. Georgian) law, of course, specifically criminalizes all Plan (2012), available at http://ec.europa.eu/world/enp/ 23. Alexander Kupatadze, “Georgia’s Fight bribe payments (whether extorted or not), and thus the docs/2013_enp_pack/2013_progress_report_azerbai- Against Organized Crime: Success or Failure?,” court held that the affirmative defense did not apply. jan_en.pdf; see also, Amanda Paul, The German Mar- 9 Caucasus Analytical Digest 11 (Sept. 17, 2009), Bourke never raised the extortion argument at trial, shall Fund of the United States, How Do You Deal with available at www.css.ethz.ch/publications/pdfs/CAD- but, in a motion for a new trial, he complained that the an Autocratic and Energy-Rich Ally like Azerbaijan? 9-9-12.pdf. court should have issued the FCPA lawful payments (2010), available at www.gmfus.org/wp-content/blogs. 24. Id. at 10. (i.e., extortion payment) exception as an affirmative dir/1/files_mf/galleries/ct_publication_attachments/ 25. Paul Rimple, Who Owned Georgia 2003- defense jury instruction. The district court again denied onwider_series_azerbaijan_jun10_final.pdf. 2012 (2013) (on file with author); see also, Steve the motion. United States v. Kozeny, 664 F. Supp. 2d 15. “Azerbaijan Cracks Down on Corruption, Rosenberg, “Georgia: Are glass-walled police stations 369, 394 (S.D.N.Y. 2009). Cuts Bureaucracy and Improves Government Ser- enough to tackle corruption?,” BBC News, July 9, 34. The Economist, supra note 26. vices with Wide-Ranging Initiative,” Wall St. J., 2013, www.bbc.co.uk/news/world-europe-23231993 April 22, 2013, http://online.wsj.com/article/PR- (hereinafter Rimple). Peter G. Strasser is a CO-20130422-904254.html . 26. “Georgia’s government: Caucasian circles,” partner in the New Orleans 16. “The government does not even bother itself The Economist, May 11-17, 2013, at 54, available at office of Chaffe McCall, to explain to the public recent well-sourced publica- www.economist.com/news/europe/21577399-squab- L.L.P, working with the tions in foreign media (The Washington Post) about bles-between-president-and-prime-minister-distract- Government Investiga- ownership by the president’s family members of attention-georgias-real (hereinafter The Economist). multimillion-dollar villas in Dubai, acquisitions of 27. Freedom House, Sylvana Habdank-Kolacz- tions and White Collar large shares in local banks, and one of the three cell kowska, Nations in Transit 2013: Authoritarian Ag- Criminal Defense Group. phone operators, Azerfon.” See Shahin Abbasov, gression and the Pressures of Austerity, 218 (2013), A former assistant U.S. “Azerbaijan Swimming in a Sea of Bribes, Despite available at www.freedomhouse.org/sites/default/ attorney, he served as an Anti-Corruption Tide,” Azeri Report (2011), avail- files/inline_images/NIT-2011-Georgia.pdf. the Department of Jus- able at http://azerireport.com/index/php?option=com_ 28. Organisation for Economic Co-operation and tice Legal Attaché at the content&task=view&id=3584. Development, Anti-Corruption Network for Eastern U.S. Embassies in Baku, 17. “Azerbaijani President Aliyev Named Cor- Europe and Central Asia, Istanbul Anti-Corruption Azerbaijan, from 2008-10 and Tbilisi, Georgia, ruption’s Person of the Year” (Radio Free Europe/Ra- Action Plan: Second Round of Monitoring: Georgia, from 2002-06. In 2010, under the auspices of the dio Liberty, radio broadcast, July 17, 2013), available 44 (2010), available at www.oecd.org/countries/geor- Organisation for Economic Co-operation and at www.rferl.org/content/azerbaijan-ilham-aliyev- gia/44997416.pdf. Development, he co-authored the 2010 OECD corruption-person-of-the-year/24814209.html. 29. Dimitri Avaliani, “The United National Anti-Corruption Monitoring Report of Georgia. In 18. Organisation for Economic Co-operation and Movement and the Georgian Dream: The First Steps July 2013, he returned to the South Caucasus for Development, Anti-Corruption Network for Eastern of Their Administrations,” Tabula Magazine, June the United States European Command to analyze Europe and Central Asia, Istanbul Anti-Corruption 2013, available at www.tabula.ge/en/story/72022-the- what progress Azerbaijan and Georgia had made in Action Plan: Second Round of Monitoring: Azer- first-steps-of-their-administrations. anti-corruption compliance during the intervening baijan Progress Report (2012), available at www. 30. Rimple, supra note 25. oecd.org/corruption/acn/49910887.pdf (hereinafter 31. FCPA Resource Guide, supra note 3, at 54. years. (Ste. 2300, 1100 Poydras St., New Orleans, OECD Report). 32. United Nations Convention Against Cor- LA 70163)
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Louisiana Supreme Court Associate My uncle was an attorney and my dad is a year, people I knew from Denham Springs, Justice Jefferson D. Hughes III represents forester. He is actually in the LSU School Livingston Parish, asked me to handle their the Fifth Supreme Court District of of Forestry Hall of Fame. He chose forestry cases — injury cases, divorces, whatever. Louisiana. He was raised and attended because he liked the outdoors — he hunts, So I opened an office in Walker. There school in Denham Springs. At Denham fishes, everything, which is the way I was were several lawyers in Denham Springs Springs High School, he played four brought up — but he advised me to go to and there were a couple in Livingston, but sports, was salutatorian of his class and law school. He told me that I could practice there were no lawyers in Walker. I opened was recognized as a National Merit law, or I could go into business, or I could an office there as a solo practitioner and Scholar Finalist. He attended Louisiana be an FBI agent. He said that there were never looked back. I had clients from day State University on an academic a lot of different things you could do with one and got busy and stayed pretty busy. scholarship and received a degree in a law degree. So, that is why I went to history with honors. He attended LSU law school. Journal: What type of work did you enjoy Paul M. Hebert Law Center and was the most as a practicing attorney? selected for the Louisiana Law Review. Journal: Had you not entered the legal Hughes: We did everything — real estate, Justice Hughes served as a law clerk profession, was there a backup plan or personal injury, family law, and some for the Hon. Frank J. Polozola and began anything else that you could see yourself criminal defense. The only thing I didn’t private practice in Baton Rouge with the doing? want to do was bankruptcy because it’s just firm of Adcock, Dupree & Shows. He Hughes: Well, my goal was really to be a a little tedious and there were specialists then began a solo practice and was the professional baseball player but I was not who could do it for less than I was willing first attorney to practice law in Walker. really good enough for that, so law school to charge. So I would refer people to After 12 years of private practice, he was was actually my backup plan. I suppose somebody who practiced in bankruptcy. elected to the 21st Judicial District Court I have always loved history. I may have But we did everything else. If you could in 1990, serving for 14 years. In 2004, ended up teaching history somewhere settle a boundary dispute in your office he was elected to the 1st Circuit Court of had I not gone into law. My two favorite instead of people going to court, it was Appeal, serving for eight years. He was things are sports and history, and in a way pretty satisfying. elected to the Louisiana Supreme Court I always thought that the legal profession in 2012 and began his service on Feb. 1, was kind of a combination of the two. It Journal: As a young lawyer, did you have 2013. is a competition and you can go out and any mentors or role models who were fight against somebody all day in the particularly memorable to you? Journal: Tell the Bar a little about your courtroom and then go have a beer after Hughes: In my district, which was the background. it is over with. So it is kind of like sports. 21st Judicial District, Joe Simpson and Hughes: I grew up in Denham Springs. It A lot of history is also built into the legal Duncan Kemp were actually political was a wonderful place to grow up. We went profession. It seemed like a natural fit for enemies but they were very good smart to school and played sports after school and what I like. lawyers. I learned a lot from both of all summer long, rode our bicycles all over those guys. Just to watch them in court town. It was just a good place to grow up. Journal: Did you start out in a small firm, and watch them going at each other, you big firm? What kind of work did you do? learned a lot. In early years, I got to see Journal: Where did you go to college? Hughes: When I got out of LSU, I clerked Lewis Unglesby in the courtroom a lot and Hughes: LSU. Both of my parents had for a year for Judge Frank Polozola, which that was very educational. Some of these graduated from LSU, so there was really no was very eye-opening and educational. I guys were so smooth in the courtroom. doubt where I was going to go to college. I was grateful for that opportunity. Then The way they addressed the judge, they could have gone to school on a basketball I went to work for Adcock, Dupree & could be saying something that totally scholarship to Southern Mississippi in Shows, which was a medium-sized firm disagreed with the judge, but they were Hattiesburg. But then I had an academic in Baton Rouge. They represented clients always polite and tactful and respectful. scholarship to LSU so it really kind of all over the state in a really varied practice. Even when they were getting into a fight made it an easy choice. With both of my I stayed with them for about a year and it with their opposing counsel, they would parents being Tigers, that was the way I was also very educational. Whenever there still have that demeanor in the courtroom, was going to go. was a rule in an outlying parish that was and I always enjoyed watching that. Minos probably not a winner, as a junior member Simon was more of a plaintiff’s lawyer Journal: Do you still play basketball? of the firm, I got the file. I would drive to in the Lafayette area. I remember that Hughes: Only in my driveway. Jena, Lake Charles, Donaldsonville or he would always argue big ideas, appeal wherever. And often it would be a loser to the intellect of the jury, and I always Journal: Where did you go to law school? rule, but you learn a lot more from losing appreciated that. I remember watching Hughes: LSU. I just kept on going. I got a than you do by winning. Wallace Hunter here in Baton Rouge; he degree in history at LSU and, from there, was more of a defense lawyer, and he was went right on to law school. Journal: A lot of younger lawyers who just a very good negotiator and very good will be reading this will sympathize with in the courtroom. When you are a young Journal: How did you end up getting into traveling throughout the state and arguing lawyer and you see one of these older guys the legal profession? Was that something loser files. In any event, after you left that who know what they are doing, you need that you always knew you wanted to do? firm, what type of work were you doing? to just soak it up like a sponge because it Hughes: My dad actually advised me. Hughes: After I did that for a little over a comes in handy later.
Louisiana Bar Journal Vol. 61, No. 4 267 Journal: You were a district judge for from all over the state and all seven judges decision that did not have strong Rule X 14 years, you subsequently joined the 1st have to vote on every case. Every Tuesday considerations but where you felt that an Circuit and now you are a Supreme Court and Wednesday, we meet and vote on that error had been committed? justice. What do you miss, if anything, week’s writ applications and then, every Hughes: Yes. That has been my biggest about being a district judge? six weeks or so, we have oral arguments adjustment. There were several writs that Hughes: Well, I enjoyed doing it while I on the cases that we are going to write full ended with 6-1 votes where I was the only was doing it. But as a district judge, you’ve opinions on. All seven of us have to discuss one voting to grant the writ. But I think got DAs, public defenders, attorneys, jurors, and vote on those so you are locked into a that the system works because, as I’ve said, bailiffs, clerks and court reporters, and more structured time frame because every there have been several 4-3 votes and it is you’ve got to make sure the train runs on Tuesday and Wednesday you’re going to be a different four and a different three almost time and that everybody’s in their right place meeting with the other six justices. every time. It is similar to a jury. and that the wrong people are not running into the wrong people at the wrong time. It Journal: So you have to be conversant with Journal: In your years on the 1st Circuit and is more of a management challenge, but it is regard to every writ application? now in the Supreme Court, have you seen very satisfying to make sure that everything Hughes: Yes. We have from 75-100 writs an increase in the number of lawyers who is running right and good results happen. a week and there are no dummies at the are retained specifically for the purposes It’s very rewarding. I enjoyed it. Supreme Court. You can’t go in there and of an appeal? talk about a case if you don’t know what’s Hughes: I can remember when I first started, Journal: What led to your decision to run involved. Even though you have law clerks, there were a few doing it then. There may for the Louisiana Supreme Court? you’ve got to know what you’re talking be a few more now. I think it’s a useful Hughes: Well, originally it was kind of about on each of those 75-100 writ applica- thing if you know the routine and you know a philosophical difference, I guess. I just tions every week so you don’t look like a what constitutes a writ application so you thought that judges should concentrate on fool in front of the other six. are not leaving out documents and things being judges and not be overly involved like that, but, on the other hand, as a sole on outside committees, search committees Journal: Other than the good facts and good practitioner, I took it as a matter of, if not and blue ribbon panels, and all of that. So Rule X considerations, is there anything that pride, necessity. I was going to do my own that’s what originally got me interested in stands out to you as something that makes writs and my own appeals. I would certainly the position back in 2008. And, of course, a strong writ application? encourage any young lawyer to go ahead I got beat pretty badly by Kitty Kimball Hughes: That is a good question. I was not and do their own and see what it’s all about. in 2008. But then, when 2012 came along all that familiar with the Rule X standards. and she retired, I knew what was expected But the difference that I have learned is the Journal: If you could offer younger at- and what it involved. I just thought that I Supreme Court does not consider itself to be torneys any additional advice, whether it could do a good job at it and thought I’d an error-correcting court, which means it is is related to a successful appeal or just a take a chance. not going to grant a writ in every case where successful career, what would that be? there may be something wrong. There has Hughes: Don’t be afraid to make mistakes. Journal: Did you enjoy the campaign to be some policy reason for granting the As I’ve said, I’ve found that you learn more process? writ and it may be a constitutional issue, or from your mistakes than you do from your Hughes: Yes. People think that it is strange it may be a split in the circuits, or it could wins. Every case you lose, every rule you when I say that it is really an enjoyable be that there is such a big mistake made in lose, every big case you lose, you learn process while you’re going through it. You a lower court that it needs to be corrected. something that you will not forget and you are getting up early and going to bed late But, the Supreme Court is not going to cor- can use that in the future. Even running for and really stretching yourself to the max. rect every mistake. That was hard for me to the Supreme Court, I learned so much the You certainly wouldn’t want to do it all of adjust to because as a lawyer, district judge first time. Experience is the best teacher, so the time but for that short run it is really and court of appeal judge, your goal is for embrace your experience, enjoy it, don’t interesting. You find yourself doing things things to be perfect. If they added up the worry too much about making mistakes, you didn’t really think that you could do money and they made a $100 mistake, even and just know that you don’t need to make but you enjoy it and you get out and meet at the court of appeal, you can fix it. So I’ve that mistake again. a lot of people. I have always been kind of just always been really strong on the facts. an introvert and it gave me an excuse to go I mean, if an injustice has occurred, I think Brendan P. Doherty is a ahead and talk to people. It is kind of fun that it should be fixed. I like to look at the member in the Houston, Texas, office of Gieger, while you are doing it, but, when it is over, facts and that is the most appealing thing to Laborde & Laperouse, you are glad it is over. me. Of course, if you’ve got a constitutional L.L.C. He received his issue or a split in the circuits, it is always a BA degree in 2000 from Journal: What surprised you the most good way to get the attention of the entire Loyola University and about the way the Louisiana Supreme Court court. There again, all seven justices vote, his JD degree in 2003 operated that you weren’t aware of before and we’ve had some 6-1 votes, some 5-2 from Loyola Law School, you took the bench? votes and several 4-3 votes. It can make a where he was a member of Hughes: I really feel like I have had to go difference on how you present your case and the Law Review and the back to work. At the 1st Circuit, we had whether you get your writ granted or not. Maritime Law Journal. 12 judges and four three-judge panels, so He has served as a member of the Louisiana Bar the total caseload was divided four ways. Journal: Was that initially frustrating for Journal’s Editorial Board since 2006. (Ste. 750, But at the Supreme Court, we get cases you when you would see a lower court 1177 West Loop South, Houston, TX 77027)
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To join, contact us at 225-383-5554 or visit www.lafj.org. Louisiana Bar Journal Vol. 61, No. 4 269 Association Actions ATJ... Memorial... Specialization
Louisiana Justice Community Conference: Celebrating 10 Years of Strengthening Access to Justice The Louisiana legal community has made great strides over the past 10 years in promoting access to justice. Even in the aftermath of Hurricane Katrina/Rita and the economic downturn, legal aid and pro bono programs have expanded and welcomed numerous new attorneys to the practice of public interest law. Each year, the Louisiana State Bar Association (LSBA) gathers these practitioners at the Louisiana Justice Community Conference to celebrate their achievements and provide a forum to strengthen public interest practice. The Louisiana Justice Community Con- ference is an annual statewide conference Donald W. North, former director of clinical programs at Southern University Law Center, gave the that provides substantive legal training for keynote address at the 10th annual Louisiana Justice Community Conference. Photo by LSBA Staff. attorneys providing legal services to the poor. The event provides these legal service and networking experiences for all attendees. their educational debt as they embark on and public interest attorneys with the oppor- The 2013 conference (Thursday and public interest law careers. The training tunity to obtain comprehensive education, Friday, Oct. 10-11) kicked off with a sessions were developed by six substantive otherwise unavailable through most CLE welcome from Louisiana State Bar As- law task forces, and practice skills sessions providers. It encourages strengthening sociation (LSBA) President Richard K. were taught by members of the American of partnerships among the key players in Leefe and from Louisiana Bar Foundation College of Trial Lawyers and the National the civil justice system. Through plenary President Leo C. Hamilton. An inspiring Institute for Trial Advocacy. sessions, training workshops and special keynote address was presented by Donald At the request of the Legal Services programs, the conference has for 10 years W. North, former director of clinical pro- Children in Need of Care (CINC) attorneys, provided a wide range of important learning grams at Southern University Law Center. a one-day track on CINC issues helped A reception on Thursday evening allowed satisfy 6 accreditation hours. Additionally, participants the opportunity to network. Louisiana Appleseed organized a mortgage Friday’s events included recognition of the services settlement training pre-conference careers of many dedicated advocates in the for attorneys providing services under that justice community, as well as a discussion program. with longtime program directors about the Each year the conference grows bigger future of legal services. and better, both in terms of attendance and For the 10th annual conference, the programs offered. This year was no excep- programming recognized the past decade of tion, with 139 attorneys registered for two legal service work while looking ahead to days of training, networking, meetings and the future of the justice community. pre-conferences. The conference hosted par- The “Looking Ahead” track focused on ticipants from the state’s three legal service where the legal service community is going, programs and nonprofit public interest firms Louisiana State Bar Association President Rich- including sessions on innovative delivery such as the Advocacy Center, Greater New ard K. Leefe gave the welcoming address to open systems, justice community collaborations, Orleans Fair Housing, AIDSLaw and the the 10th annual two-day Louisiana Justice Com- munity Conference in October. Photo by LSBA Staff. technology and how lawyers can manage Mental Health Advocacy Center.
270 December 2013 / January 2014 LSBA Thanks Volunteers Participating in Month of Legal Service Events The Louisiana State Bar Association Douglas Dodd, Wendy Edwards, Zelma New Orleans Pro Bono Project (LSBA) would like to thank the participants Frederick, Scott Gaspard, Jon Ann Giblin, Paul D. Johnston, John Marzullo, who volunteered their time and talents David Hansen, Teresa Hatfield, Brandon Rachel Piercey, Cynthia Lee-Sheng, Scott during October’s Month of Legal Service. Hudson, Carrie Jones, La’Gretta Lazard, Umberger, John F. Young A variety of events took place, many Denise Lee, Siobhan Leger, Christine focusing on the needs of self-represented Lipsey, Alexis Luker, Todd Manuel, Northshore Pro Bono Project litigants. The Month of Service culminated Glenn Marcel, Kenneth A. Mayeaux, William Burris, Sondra Cheek, Ellen with Celebrate Pro Bono Week, a national J. Ashley Mitchell, Dwayne Murray, Creel, Suellen Richardson ABA program supporting pro bono work. Jennifer Gauthreaux Prescott, Steven Reed, The LSBA recognizes the following: Garth Ridge, Stewart Spielman, Steve Shreveport Bar Association Strohschein, Mardrah Starks-Robinson, Richard Barham, Jim Bolin, William Alexandra Bar Association Amanda Stout, Hanna Thomas, Kathy Bradford, Laura Butler, Trina Chu, Graham Bateman, Mike Bollinger, Underwood, Mary Ann White, Robert Katherine Evans, Amy Gardner, Jim Leanne Bridges, Neal Chadwick, Sara Wooley, Emily Ziober, Jimmy Zito Gardner, Renee Goudeau, Charles Grubbs, Dantzler, Charles Elliott, Leslie Halle, Paul Patrick Jackson, Slattery Johnson, Jerry Miles, Mike Koch, Maria Losavio, Kay Jefferson Parish Bar Association Kircus, Bill Leadbetter, Meagan Lynn Michiels, Alainna Mire, Joe Perez Montes, Ashley Becnel, Sherman Boughton, Miller, John Odom, Julianna Parks, Sarah Paul Tellarico, Laurel White Guy deLaup, Mickey deLaup, Cara Hall, Margaret Smith, Earlnisha Williams Robert Kutcher, Tatiana Mouton, Kent Baton Rouge Bar Association Smith, Channing Warner Slidell Bar Association Steve Adams, J. David Andress, Jim Ernest Anderson, Joseph Anderson, Austin, Gregory Aycock, Barbara Baier, New Orleans CDC Shandy Arguelles, Michele Blanchard, Katie Belanger, Roy Bergeron, Brent Lanson Bordelon, Jimmy Courtenay, Laura Borchert, Robert Brandt, Ann Duvic, Boxill, Ryan Brown, Marcia Burden, Cristin Fitzgerald, Kelly Legier, Andrew Joseph Harvin, Mark Myers, Georgia Ashley Bynum, Nicolette Colly, Judge Lily Turgeau, Gary Williams
Louisiana Bar Journal Vol. 61, No. 4 271 LSBA Honors Deceased Members of the Bench and Bar The Louisiana State Bar Association day to the honor and memory of those a special eulogy for Louisiana Supreme (LSBA) conducted its annual Memorial members of the Bench and Bar who have Court Justice (Ret.) Luther F. Cole. Exercises before the Louisiana Supreme passed away during the last 12 months. Hon. Bernette Joshua Johnson, chief Court on Oct. 7, 2013, honoring members of On behalf of the LSBA, Leefe gave the justice of the Louisiana Supreme Court, the Bench and Bar who died in the past year. general eulogy and extended condolences gave the closing remarks. The invocation The exercises followed the 61st annual Red to the families and friends of the judges and benediction were given by Kenneth Mass held earlier that morning at St. Louis and lawyers. A. Mayeaux, professor of professional Cathedral in New Orleans. The Red Mass LSBA President-Elect Joseph L. practice at Louisiana State University Paul was sponsored by the Catholic Bishops of (Larry) Shea, Jr. of Shreveport read the M. Hebert Law Center. Louisiana and the St. Thomas More Catholic names of all deceased members being Following the exercises, the Supreme Lawyers Association. recognized. Court was adjourned in memory of the LSBA President Richard K. Leefe of Joseph W. Mengis, a partner in the law deceased members of the Bench and Bar. Metairie opened the memorial exercises, firm of Perry, Atkinson, Balhoff, Mengis The members recognized included: requesting that the court dedicate this & Burns, L.L.C., in Baton Rouge, gave
Members of the Judiciary 2012-13 Michael H. Ellis...... Metairie Catherine A. Mills...... New Orleans Kenneth G. Fink, Jr...... Zwolle Paul J. Mirabile...... New Orleans Hon. Benjamin C. Horace F. Foster III...... New Orleans Elizabeth A. Morrison...... New Orleans Bennett, Jr...... Marksville Kennedy J. Gilly...... St. Louis, MO Lee Sterling Mudd...... Shreveport Hon. Edward E. Sally S. Gilmore...... Metairie Laurice Dean Napper...... Ruston Carriere, Jr...... Decatur, GA Donald J. Gisevius...... Kenner Robert J. Neal...... Metairie Hon. James E. Clark...... Shreveport Julian H. Good...... Savannah, GA Sam Nelken...... Natchitoches Hon. Luther F. Cole...... Baton Rouge Benjamin M. Goodman...... New Orleans Irving Novick...... New Orleans Hon. James C. Gulotta, Sr...New Orleans John A. Gordon...... New Orleans J. Huntington Odom...... Baton Rouge Hon. William Joseph George Griffing...... Pineville Billups P. Percy...... Covington Guste, Jr...... New Orleans Jack C. Groner...... Baton Rouge John B. Peuler...... New Orleans Hon. Jack Holt...... Pineville Frank B. Hayne III...... New Orleans Erin Elias Psarellis...... New Orleans Hon. Daniel W. LeBlanc...... Baton Rouge George W. Healy III...... New Orleans Jean H. Pugh...... Baton Rouge Hon. Cecil C. Lowe...... Minden Edward Max Heller...... New Orleans A. Bruce Rozas...... Mamou Hon. Floyd W. Newlin...... New Orleans Carlton James Hicks...... Alexandria William M. Russell III.....Fort Worth, TX Hon. Frank J. Polozola...... Baton Rouge Henry G. Hobbs...... Minden Charles R. Ryan...... Houma Hon. Charles Schwartz, Jr...... Metairie Donald G. Horton...... Coushatta Edmond C. Salassi...... Metairie Hon. Woodrow Wilson...... Bastrop Harry D. Hoskins III...... New Orleans Richard L. Salmon...... Waskom, TX Harley B. Howcott, Jr...... New Orleans Arthel J. Scheuermann...... New Orleans Members of the Bar 2012-13 Donald A. Hyatt...... Shreveport Gail K. Sheffield...... Covington Herschel C. Adcock, Sr...... Baton Rouge Lee E. Mark Henry Sibley...... Baton Rouge Donald L. Baker...... Shreveport Ineichen, Jr...... Highlands Ranch, CO Joseph M. Singerman...... Scottsdale, AZ Carl W. Bauer...... Lafayette Janie Gorab Jackson...... Lafayette J. Philip Stein...... New Orleans David S. Bell...... Baton Rouge Clayton Joseph Joffrion...... Baton Rouge Gerald A. Stewart...... Metairie Adrian C. Benjamin, Jr...... New Orleans Alma S. Jones...... Shreveport William S. Strain...... Baton Rouge Edward B. Benjamin, Jr...... New Orleans David Bruce Jones...... Sulphur Kenneth J. Stumpf...... New York, NY John D. Bernhardt...... Lafayette Louis M. Jones...... Covington Susan S. Tete...... New Orleans Numa V. Bertel, Jr...... Metairie Wilbert Frazier Jordan, Jr.....Baton Rouge Thomas W. Thorne, Jr...... New Orleans William Joel Blass...... Gulfport, MS Henry J. Jumonville III...... New Orleans David Edward Tippett...... Baton Rouge Bruce J. Borrello...... Mandeville Donald J. Juneau...... Hammond Christopher Tompkins...... New Orleans Gerald J. Breaux...... Lake Charles Edward H. Keiler...... Covington Charles C. Trascher III...... Monroe Patrick D. Breeden...... New Orleans Robert L. Kleinpeter...... Baton Rouge Deborah A. Van Meter...... New Orleans Jack R. Brown...... Shreveport David B. Koretzky...... Humble, TX Dennis J. Vidrine...... Lafayette Harold A. Buchler...... Metairie J. Bennett Kraft...... Palestine, TX Joseph L. Waitz...... Houma Maurice L. Burk...... Kenner Stephen J. Laborde...... Kenner Thomas B. Waterman...... Ponchatoula Richard V. Burnes...... Alexandria Jules Burton LeBlanc, Jr...... Baton Rouge Marion Guerriero Welborn..New Orleans John S. Campbell, Jr...... Baton Rouge James A. Leithead...... Lake Charles Lynn L. White...... Kenner John T. Culotta...... Metairie Salvador J. Liberto, Jr...... Mandeville George Edward Williams, Jr...... Lafayette Daniel Joseph Dazet...... Baton Rouge Robert C. Lowther, Jr...... Alexandria G. Ann Winchester...... West Monroe Gregory B. Dean...... Opelousas Charles F. Lozes...... New Orleans Albert Joseph Winters, Jr.....New Orleans Rene B. deLaup...... New Orleans Kenneth R. Martinez...... Opelousas Dorothy D. Wolbrette...... New Orleans Dennis K. Dolbear...... Jefferson Clyde D. Merritt...... New Orleans Roy L. Wood...... Amite Margaret Ann Edwards...... Lake Charles William M. Meyers...... Covington J. Gregory Wyrick...... New Orleans Albert George Elias...... Dallas, TX Edward J. Milligan, Jr...... Lafayette
272 December 2013 / January 2014 Attorneys Apply for Recertification as Legal Specialists Pursuant to the rules and regulations Any person wishing to comment upon no later than Jan. 31, 2014. of the Louisiana Board of Legal the qualifications of any applicant should It is also requested that any knowledge Specialization, notice is hereby given submit his/her comments to the Louisiana of sanctions or other professional action that the following attorneys have applied Board of Legal Specialization, 601 St. against an applicant be reported during for recertification as legal specialists. Charles Ave., New Orleans, LA 70130, this comment period.
Tax Law Vincent Anthony Todd Michael Villarrubia.....New Orleans Byron Ann Cook...... New Orleans Saffiotti...... Baton Rouge H. Aubrey White III...... Lake Charles Kyle Christopher McInnis...... Shreveport Laurel Annette Salley...... Metairie Robert F. Mulhearn...... Baton Rouge Lila Molaison Samuel...... Gretna Business Bankruptcy Law Ralph L. Bowie, Jr...... Shreveport Leon Hirsch Sandra Lynn Walker...... Shreveport Rittenberg III...... New Orleans Rudy J. Cerone...... New Orleans Estate Planning & Administration Law John Kevin Stelly...... Lafayette Bradley Loy Drell...... Alexandria Byron Ann Cook...... New Orleans John R. Williams...... Shreveport Sessions A. Hootsell III...... New Orleans James G. Dalferes...... Harahan Robert W. Raley...... Bossier City Family Law Mary Lintot Dougherty...... Houston, TX Paul Douglas Stewart, Jr...... Baton Rouge Terry George Aubin...... Alexandria Miriam Wogan Henry...... New Orleans Stephen P. Strohschein...... Baton Rouge Suzanne Ecuyer Bayle...... New Orleans Jimmy D. Long, Jr...... Natchitoches Arthur A. Vingiello...... Baton Rouge Craig H. Cabral...... Metairie Christine Wendt Marks...... Metairie David Felicien Michael D. Conroy...... Covington Kyle Christopher McInnis...... Shreveport Waguespack...... New Orleans Kenneth P. Haines...... Shreveport Leon Hirsch Margaret H. Kern...... Covington Rittenberg III...... New Orleans Consumer Bankruptcy Law Ralph L. Bowie, Jr...... Shreveport Charles O. LaCroix...... Alexandria Cherish Dawn Raymond L. Landreneau, Jr...... Houma Susan Helene Heathamer...... Gretna Van Mullem...... Baton Rouge David J. Williams...... Lake Charles
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Louisiana Bar Journal Vol. 61, No. 4 273 lawyersAssistance By J.E. (Buddy) Stockwell Reach Out to LAP!
he Lawyers Assistance Program, intensified within our ranks. Each year in becoming QPR-certified gatekeepers. Inc. (LAP) has selected “Reach we continue to lose a stunning number of Against that backdrop, let’s revisit the Out” as its central theme for 2014. Louisiana legal professionals to suicide. hard questions. This focus seeks to encourage With each report of another lawyer who Can we ever see a suicide coming? Yes. Tlawyers, judges and their family members has taken his or her own life, the attendant With training, warning signs can often be to be confident in reaching out to help them- questions weigh heavily upon us all: Could spotted in time to effectively reach out to selves or to help peers and family members we or should we have somehow detected the person. in need of LAP’s confidential assistance. the person was at risk for suicide? Could Can suicides ever be prevented? Yes. Statistics on mental illness in the legal the suicide have been prevented? What, if There is no way to prevent all suicides, profession are dismal. Literally thousands of anything, could any of us have done to avert but suicide is, in fact, highly preventable if Louisiana lawyers and judges are currently such tragedies? QPR is administered. suffering from depression, alcoholism and That is the focus of this first 2014 install- What can we do to reduce suicides in addiction, and other stress-related condi- ment of “Reach Out to LAP!” All employees Louisiana’s legal profession? Reach out to tions such as compassion fatigue. at LAP are now certified “suicide preven- LAP! Get trained in QPR! Get involved! More than two decades ago, our Supreme tion gatekeepers” via training through the Either as an individual, or as a repre- Court began to recognize the alarming QPR Institute, an educational organization sentative of your court or law firm, QPR severity of alcoholism in the legal profes- dedicated to preventing suicide. Headed by training can make a life-saving difference. sion in LSBA v. Arthur Dumaine, 550 So.2d Dr. Paul Quinett, a clinical psychologist Every person who becomes a certified QPR 1197 (1989): who has worked in the field of suicide for gatekeeper through LAP increases Louisi- more than 35 years, the QPR program has ana’s fabric of legal professionals who are “In fact, there is now convincing developed a methodology for action to save equipped to recognize the warning signs of evidence that chemical dependency lives. Just like “CPR” (cardiopulmonary suicide and ready to take action. is so widespread among the legal resuscitation) is an acronym for the emer- Our Supreme Court’s watershed Du- profession that it cannot be deterred gency action undertaken to try and save a maine opinion of 1989 as to alcoholism is or even coped with by the normal heart attack victim until professional help now directly applicable to the ascendant enforcement of the disciplinary rules. arrives, the “QPR” acronym stands for mental health evils we face in the form of Instead, it is clear that the evil has Question, Persuade and Refer — a series depression and suicide. Precisely like alco- become ascendant and, if it is to be of immediate action steps that can actually holism, the evils of depression and suicide curbed, must be addressed openly, prevent some suicides. cannot be curbed unless we work together, vigorously and holistically by the QPR teaches the individual to listen as lawyers helping lawyers, to openly, vigor- entire organized bar,” and that due carefully for warning signs and then ask ously and holistically fight back. to the unique nature of the problem, the right questions to identify whether there So “Reach Out” to LAP if you need help, those who suffer should be “assisted may be a suicide risk. If a risk presents, the are concerned about someone, or would like by another attorney who is himself a QPR-trained individual will be prepared to to be certified in QPR. As always, your call recovering alcoholic.” take immediate and effective steps toward is confidential and you do not have to give encouraging the individual to accept help. your name. Call LAP at (985)778-0571 or Unfortunately, our profession’s mental The person can then be referred to effective visit LAP online at: www.louisianalap.com. health challenges have drastically changed professional help. for the worse since Dumaine. Nowadays, In addition to all LAP employees now J.E. (Buddy) Stock- the practice of law is more stressful than being certified in QPR, LAP’s full-time well is the execu- ever and the ascendant mental health evils clinical director, Leah Rosa, MHS, NCC, tive director of the are no longer limited to alcoholism. In fact, LPC, has become certified to actually train Lawyers Assistance depression has displaced alcoholism as and certify others in QPR. Accordingly, LAP Program, Inc. (LAP) the number one mental health impairment hereby reaches out to all Louisiana legal and can be reached impacting legal professionals. professionals by announcing that LAP now at (866)354-9334 or It is inescapable that the risk of suicide, provides QPR training and certification to all via email at LAP@ the harshest outcome of all, is significantly those in our profession who are interested louisianalap.com.
274 December 2013 / January 2014 Qualityof Life By A. James Klein, Ph.D. Incivility: A Psychologist’s Perspective
n the course of our lives, we are all after many years of observing the court- Professionalism in law, as in the other confronted with choices. Three of my room process as an expert witness, I have professions, is aspirational. For some, older brothers followed one another in continued to ask: Do all attorneys shake success at achieving professionalism may the time-honored profession of law. I big brooms? Whether you do or not, it is become elusive, particularly when you choseI not to follow their career paths and no secret to lay people that you have one believe you work in a competitive environ- I now understand why. As the youngest of laying around somewhere. The burden of ment where colleagues cannot be trusted five brothers and with an eight-year gap to wielding a “big broom” is often weighty and only the fittest will survive. When you the next oldest, I was forced to be vigilant. and the cost of doing so may be more than begin to examine the cost of incivility and Keeping an astute eye on them was a mat- you wish to pay. loss of professionalism, the personal cost ter of survival. There was a period of time This discussion will focus on the burden to you may generate a motive for change. (when I was about 2) that they could only of carrying a “big broom” and its impact A lack of professionalism and the incivil- leave the house after supper if I was in bed upon others — civility — and how you will ity that often goes along with it leads to and sleeping for the night. That’s the way be perceived by others — professionalism. elevated levels of stress that in turn may mother ran things. So to quiet me down, Talented, smart and driven attorneys often create difficult collegial relationships. It is they would crack open the bedroom door compete with one another in highly charged this stress that will cost more than you may and shake a large broom intending it to be environments. These environments create be aware — for some, maybe even your life. a monster of some sort. Their heinous ac- stress and it is this stress that frequently leads Candid conversations with attorneys tions squelched any further squeaks from to incivility. When incivility leads to anger often reveal a growing dissatisfaction related their little brother and they were free to and that anger is projected onto adversaries, to negative attitudes toward the profession. roam the neighborhood — at least so I was even when you believe it is justified, it will I have personally heard comments from told in later years. At any rate, the die was ultimately cost you. Not only is there a con- older attorneys claiming that the practice cast. As I came to learn from stories told at nection between the inappropriate expres- of law is not what it used to be — referring family gatherings in years to come, shak- sion of anger and the subsequent erosion to the decline of professionalism. Studies ing a broom was expedient. It certainly got of civility, there is also a direct connection have revealed that attorneys, as a whole, them what they wanted. The “Big Broom between civility and your health. The cost have become increasingly more dissatis- Mentality” was rewarded; they went on to goes beyond a loss of professionalism; the fied with their jobs. Correlated with this become attorneys. cost could very well be your life through dissatisfaction is the well-documented As a student of human behavior and loss of physical well-being. observation that attorneys are experiencing higher levels of depression and substance SOLACE Support of Lawyers/Legal Personnel — All Concern Encouraged abuse, more so than are practitioners in The Louisiana State Bar Association/Louisiana Bar Foundation’s Community Action Committee supports the SOLACE program. Through the program, the state’s legal other professions. We have learned that 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. stress overload, along with reduced quality
Area Coordinator Contact Info Area Coordinator Contact Info of life, is considered to be a key symptom of many, if not most, psychological and Alexandria Area Richard J. Arsenault (318)487-9874 Monroe Area John C. Roa (318)387-2422 [email protected] Cell (318)452-5700 [email protected] physical disturbances. The World Health Baton Rouge Area Ann K. Gregorie (225)214-5563 Natchitoches Area Peyton Cunningham, Jr. (318)352-6314 Organization defines health as a state of [email protected] [email protected] Cell (318)332-7294 complete physical, mental and social well- Covington/ Suzanne E. Bayle (504)524-3781 New Orleans Area Helena N. Henderson (504)525-7453 Mandeville Area [email protected] [email protected] being and not simply an absence of disease.
Denham Springs Area Mary E. Heck Barrios (225)664-9508 Opelousas/Ville Platte/ John L. Olivier (337)662-5242 Research as well as clinical practice has [email protected] Sunset Area [email protected] (337)942-9836 demonstrated that an enhanced quality of (337)232-0874 Houma/Thibodaux Area Danna Schwab (985)868-1342 life leads to harmony within oneself, more [email protected] River Parishes Area Judge Jude G. Gravois (225)265-3923 Jefferson Parish Area Pat M. Franz (504)455-1986 [email protected] (225)265-9828 effective resources for dealing with stress [email protected] Cell (225)270-7705 and a reduction in burnout, along with more Lafayette Area Heather Broussard (337)237-4700 Shreveport Area M’Lissa Peters (318)222-3643 satisfying relationships, both in our personal [email protected] [email protected] and professional lives. Lake Charles Area Chantell Marie Smith (337)475-4882 [email protected] Were a panel of psychologists repre- For more information, go to: www.lsba.org/solace. Continued next page
Louisiana Bar Journal Vol. 61, No. 4 275 Quality continued from page 275 A subjects developed coronary disease as The rabbi’s responses are not permeable or did the Type B subjects. There was another open to other possibilities. Were the rabbi senting an array of theoretical models to interesting finding. Smoking, elevated blood to have said, “I believe you are right,” he be questioned as to what they consider as pressure and high cholesterol levels, com- would not have pronounced a judgment the most significant factor in helping an monly thought of as the traditional risk and may even have opened the door to civil individual change a maladaptive behavioral factors, were not solely responsible for the dialogue. When we respond to others in such pattern, by far, the majority would agree that higher coronary rates. The findings set off a way that civil dialogue is not possible and the common denominator in the change a flurry of activity for psychologists. Stud- where there may be strong and underlying process is the ability to observe oneself and ies began to show that another factor was motives, incivility may be lurking close by. to recognize one’s maladaptive behavior involved — hostility. It was observed that The environment can become highly (at the moment). The capacity to observe people with higher hostility counts tended to charged in the practical world of law where oneself is absolutely essential if one is go- not only have more severe coronary artery honorable men and women are often adver- ing to bring about change in one’s behavior. disease but even more significant was the saries with one another. Incivility and the Being mindful of your actions will permit finding that elevated hostility scores cor- increased and prolonged stress that often you to see where change is required, and related more with coronary artery disease accompanies this conflict can be a natural either on your own or with professional than did the Type A scores. Psychologists consequence. Attorneys have been urged by guidance, you will be able to make the were able to break out specific factors in their professional organizations to reduce necessary adjustments, improve the quality hostility that accounted for higher mortality their stress levels and to focus and work at of your life and in turn experience greater rates. The factors were the cynical mistrust enhancing their quality of life for it is well satisfaction in your professional life. There is of others, the frequent experience of angry known that stress overload and a compro- no quick fix for achieving professionalism; feelings and the overt expression of cyni- mised quality of life can ignite incivility. To it is a process that requires daily attention. cism and anger. These aspects of hostility are these urgings from your peers and mentors, A prominent barrier to achieving profes- often a component in instances of incivility, you are likely to say, “They are right.” As sionalism in the practice of law is excessive particularly where there is an overload of you come to the end of this article, you and prolonged stress. If you take care of stress. Prolonged levels of elevated stress may think, “This guy Klein is right.” Just yourself and improve your quality of life, are often associated with risky behaviors remember, stress makes you more rigid in everything else will tend to fall into place, such as smoking, excessive eating and your processing of problems and impairs at least for the majority of attorneys. There consumption of alcohol — a vicious cycle logical and rational thinking, that which the are others who may bring to the work that can impact not only your professional successful attorney must rely upon. environment certain personality traits relationships but your health as well. There is nothing inherently wrong with and characteristics which were probably Logic would seem to demand that, as carrying a “Big Broom” if the big broom is long embedded in their unique personality rational and critical thinkers, you would the law, if the big broom is rationality and structure and perhaps even fostered by law embrace the need to pay closer attention to critical thinking, if the big broom is justice. school. While for some the barriers may how you relate to your colleagues. Perhaps When the waving of that broom is associ- appear to be insurmountable, with effort the following story will inspire you to do ated with incivility, remember that the cost they can be overcome. so. Take yourself back to a small town in (to you) may be greater than you expect. In the early 1970s, Type A behavior, and Poland around 1900. Visualize the times of its relation to coronary heart disease, was Fiddler on the Roof. Once, a married couple Dr. A. James Klein is a clini- of keen interest to researchers in psycho- came to visit the town rabbi. They were in cal psychologist with a MS degree in experimental psy- somatic medicine. Type A behavior was dispute over a marital problem. As tradition chology from the University described by high levels of competitiveness required, the rabbi was to hear both sides of Southern Mississippi and and ambition (attorneys are no strangers to of the argument and then decide who was a doctorate in clinical these traits), chronic fast-paced activity and right. He first heard the husband’s side and, psychology from Texas Tech University (1974). He being easily moved to hostility and anger. when he was finished, the rabbi said to him, was a staff psychologist at These Type A characteristics were observed “You are right.” The rabbi then heard the Southeast Louisiana State more frequently in coronary heart disease wife’s side. Again, he said, “You are right.” Hospital and on the faculty patients than in patients with other types of When the couple left the rabbi’s home, the at Tulane School of Medi- cine in the Department of Psychiatry and Neurology. illness. This observed association between rabbi’s wife stepped out from behind the He specializes in clinical and forensic assessments Type A behavior and coronary disease in draperies where she had been hiding. She of children and adults as well as consulting with law patients led to a study to determine whether had overheard everything and inquired. “But enforcement agencies. He is board-certified in clinical individuals with Type A behavior went on to how could they both be right?” The rabbi psychology by the American Board of Professional Psychology and is a Fellow in the American Academy develop coronary disease more so then those answered, “You are right.” of Clinical Psychology. He has been qualified as an without Type A characteristics. Those with- Despite the rabbi’s seemingly contradic- expert witness in Louisiana state district courts and out the characteristics were called Type B. tory statements, they do hang together, if in Louisiana juvenile courts. (Ste. D-1, 5001 Highway In an eight-year followup, it was de- not in a logical way, in an elegant way that 190, Covington, LA 70433) termined that twice as many of the Type preserves the rabbi’s illusion of infallibility.
276 December 2013 / January 2014 Crossword Puzzle By Hal Odom, Jr. Partnership Matters
1 2 3 4 5 6 7 ACROSS DOWN
1 Partnership in ___ means one with 1 Shared by members but not in a participation limited to contribution (9) partnership (9) 8 9 6 Coll. in Hammond (1, 1, 1) 2 Pleasant sounds (5) 8 Speaker’s platform (7) 3 Unpredictable (7) 9 Material for blue jeans (5) 4 Ad ___ clause, part of petition stating 10 In the work cited (abbr.) (2., 3.) the amount of money demanded (6) 10 11 12 11 Not reached, as a quota, or not 5 “___, I’m Adam” (famous satisfied, as needs (5) palindrome) (5) 13 Concept formerly taught with 6 Counterpart of representative (7)
13 14 15 16 partnership in law school (6) 7 Coll. in Monroe (1, 1, 1) 15 Frightened (6) 12 Kind of duty owed by partners (9) 17 18 Cotta or firma (5) 14 Kind of unction in the Catholic 20 Newton who gave us the three laws church (7) 18 19 20 21 of motion (5) 16 Popular dry red wine of Tuscany (7) 22 ___ de lis (5) 17 Diego ___, tiny atoll used as Naval 23 Bistro, south of the border (7) base in Operation Iraqi Freedom (6) 24 Louisiana’s only four-term 19 Not urban (50 22 23 governor (1, 1, 1) 21 ___ curiae are friends of the court (5) 25 Financial obligation shared equally 22 Enemy (3) by partners (9)
24 25 Answers on page 318.
Alcohol and Drug Abuse Hotline Director J.E. (Buddy) Stockwell III, 1(866)354-9334 1405 W. Causeway Approach, Mandeville, LA 70471-3045 • e-mail [email protected]
Alexandria Steven Cook...... (318)448-0082 Lake Charles Thomas M. Bergstedt...... (337)558-5032
Baton Rouge Steven Adams...... (225)921-6690 Monroe Robert A. Lee.....(318)387-3872, (318)388-4472 . (225)926-4333 David E. Cooley...... (225)753-3407 New Orleans Deborah Faust...... (504)304-1500 John A. Gutierrez...... (225)715-5438 Donald Massey...... (504)585-0290 .(225)744-3555 Dian Tooley...... (504)861-5682 . (504)831-1838 Lafayette Alfred “Smitty” Landry...... (337)364-5408, . (337)364-7626 Shreveport Michelle AndrePont ...... (318)347-8532 Thomas E. Guilbeau...... (337)232-7240 Nancy Carol Snow...... (318)272-7547 James Lambert...... (337)233-8695 William Kendig, Jr...... (318)222-2772 .(337)235-1825 .(318)572-8260 (cell) Steve Thomas...... (318)872-6250
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. 61, No. 4 277 Focuson Professionalism Professionalism Orientations
170+ Attorneys, Judges Participate in Law School Professionalism Orientations or the 14th consecutive year, the Louisiana State Bar Association’s (LSBA) Committee on the Profes- sion hosted law school orienta- Ftions on professionalism at Louisiana’s four law schools. More than 170 attorneys and judges from across the state participated in the programs in August. LSBA President Richard K. Leefe led an impressive list of speakers addressing first-year law students at the outset of the programs. Other speakers included Louisiana Supreme Court Chief Justice Louisiana State University Paul M. Hebert Law Center first-year students participated in the profes- (Ret.) Catherine D. Kimball, Justice Greg sionalism orientation’s breakout sessions facilitated by attorneys and judges. Photo by LSBA Staff. G. Guidry, Justice Jeff D. Hughes III and Justice John L. Weimer III; LSBA Com- Louisiana State University Jack P. Harrison mittee on the Profession Chair Barry H. Paul M. Hebert Law Center Michael E. Holoway Grodsky; and American Bar Association Bradley J. Aldrich Philip J. House representatives. William F. Bailey James Eric Johnson Also addressing students were Louisi- Hon. Jerome J. Barbera III Johnny T. Joubert ana State University Paul M. Hebert Law Leah A. Barron Gary P. Kraus Center Vice Chancellor Gregory Smith, Fred Sherman Boughton, Jr. Paulette Porter LaBostrie Loyola University College of Law Dean Hon. Frances M. Bouillion Madeline J. Lee Maria Pabon Lopez, Southern University Hon. James J. Brady David A. Lowe Law Center Chancellor Freddie Pitcher, Jr. Hon. Curtis A. Calloway (Ret.) Gregory J. McDonald and Tulane Law School Dean David Meyer. Andrew M. Casanave Ben R. Miller, Jr. Following the opening remarks, the law Mark A. Chavez Donna R. Moliere students were divided into smaller groups, Henry T. Dart Hon. D. Milton Moore III where they discussed various ethics and Donald G. D’Aunoy, Jr. Gregory K. Moroux professionalism scenarios with attorney S. Guy deLaup Gregory K. Moroux, Jr. and judge volunteers. Bobby J. Delise Jennifer W. Moroux This orientation program, inaugurated Bridget B. Denicola Hon. William A. Morvant in August 2000, has been institutionalized Jennifer Montgomery Durham Hon. Pamela A. Moses-Laramore as a yearly project for the LSBA and the law Sally D. Fleming Tammy P. Northrup schools. The deans and admissions staffs of L. Paul Foreman Michael A. Patterson the law schools have been accommodating Jennifer B. Frederick Jason K. Placke in assisting with the logistical challenges Todd E. Gaudin Charles B. Plattsmier of putting this program together. Barry H. Grodsky Claire A. Popovich Attorneys and judges volunteering their John Clay Hamilton Hon. Laura A. Prosser services this year were: Orlando N. Hamilton, Jr. Betty A. Raglin Holly G. Hansen Kristi W. Richard
278 December 2013 / January 2014 Emily S. Morrison Francis B. Mulhall Mark A. Myers Alexandra V. Navarre Daniel J. Poolson, Jr. Tracey T. Powell Dayal S. Reddy Claudia P. Santoyo Shannon A. Shelton Hon. Raymond S. Steib, Jr. Tina L. Suggs Dylan T. Thriffiley Patricia A. Traina Georgia G. Turgeau Sharonda R. Williams
Southern University Law Center Hon. Ernestine L. Anderson-Trahan Virginia Gerace Benoist Claire E. Bergeron Hon. Paul A. Bonin Louisiana State Bar Association Committee on the Profession Chair Barry H. Grodsky addressed first- year students at the opening of the professionalism orientation at Loyola University College of Law. Roy K. Burns, Jr. Photo by LSBA Staff. Hon. Curtis A. Calloway (Ret.) James E. Courtenay Monique M. Edwards Patrick F. Robinson Michael E. Holoway Lisa A. Freeman Sera H. Russell III Roger A. Javier Eugene G. Gouaux III Hon. John D. Saunders Hon. Carolyn W. Jefferson (Ret.) Hon. Roxie F. Goynes Robert E. Shadoin Hon. Charles R. Jones (Ret.) Erika L. Green Joseph L. Shea, Jr. Hon. Jeanne Nunez Juneau Barry H. Grodsky Maggie Trahan Simar Robert A. Kutcher Hon. John Michael Guidry Shayna L. Sonnier Nahum D. Laventhal Grant J. Guillot Thomas A. Thomassie IV Melissa M. Lessell Raveen A. Hills Dylan T. Thriffiley Hon. Lynn L. Lightfoot Malinda Hills Holmes Marsha M. Wade James H. Looney Michael E. Holoway Michael S. Walsh John E. McAuliffe, Jr. Raushanah S. Hunter John David Ziober Lorraine P. McInnis Continued next page Loyola University College of Law Jason M. Baer Hon. Regina Harris Bartholomew Adrianne L. Baumgartner Kay B. Baxter Hon. Raylyn R. Beevers Barbara L. Bossetta Alan G. Brackett Hon. Susan M. Chehardy Sandra K. Cosby James E. Courtenay Barbara L. Edin Darryl J. Foster Lauren E. Godshall Barry H. Grodsky Hon. John C. Grout, Jr. (Ret.) Addressing first-year students at the opening of the professionalism orientation at Southern University Jessica W. Hayes Law Center were Chancellor Freddie Pitcher, Jr., Louisiana State Bar Association President (LSBA) Richard K. Leefe, Louisiana Supreme Court Justice John L. Weimer III and LSBA Committee on the Cashauna M. Hill Profession Chair Barry H. Grodsky. Photo by LSBA Staff.
Louisiana Bar Journal Vol. 61, No. 4 279 Richard M. Exnicios David Greenberg Hon. Piper D. Griffin Barry H. Grodsky Hon. John C. Grout, Jr. (Ret.) Andrea S. Lestelle Terrence J. Lestelle Kelsey L. Meeks Brian J. Munson James R. Nieset, Jr. Hon. Rebecca M. Olivier Celeste Rasmussen Peiffer Eugene R. Preaus H. Philip Radecker, Jr. Nadine M. Ramsey Ruth L. Ramsey John C. Saunders, Jr. Hon. John D. Saunders Tulane Law School first-year students participated in the professionalism orientation’s breakout sessions Roger A. Stetter facilitated by attorneys and judges. Photo by LSBA Staff. Hugh R. Straub Christopher R. Teske Hon. Quintillis K. Lawrence Hon. Jewel E. Welch, Jr. Hon. Ulysses Gene Thibodeaux Denise J. Lee Mary Ann M. White Ann E. Thompson April M. Leon Hon. Trudy M. White Christopher J. Weema Charlotte C. McDaniel McGehee Hon. Kirk A. Williams Colby F. Wenck Caroline Russ Minor Kathy M. Wright Robert M. White Harry J. (Skip) Philips, Jr. Hon. Fredericka H. Wicker Joyce Marie Plummer Tulane Law School John G. Williams Cynthia N. Reed Mark E. Andrews Holly L. Wiseman La Koshia R. Roberts Ashley J. Becnel Hon. John D. Saunders Jack C. Benjamin, Jr. Rudie R. Soileau, Jr. Michael M. Butterworth Hon. Parris A. Taylor Christopher E. Carey Jason M. Verdigets Kevin J. Christensen Send your Marsha M. Wade Leonard A. Davis Tavares A. Walker Mickey S. deLaup news! Past Presidents Personally Promote Professionalism The Louisiana Bar Journal David F. Bienvenu Harry S. Hardin III would like to publish news and photos of your activities and Kim M. Boyle Frank X. Neuner, Jr. accomplishments. S. Guy deLaup Patrick S. Ottinger Email your news items and Hon. Eldon E. Fallon Michael A. Patterson photos to: LSBA Publications Coordinator Larry Feldman, Jr. Leslie J. Schiff Darlene LaBranche at Hon. Elizabeth Erny Foote Marta-Ann Schnabel [email protected].
E. Phelps Gay Charles S. Weems III Or mail press releases to: Robert E. Guillory, Jr. Bob F. Wright Darlene LaBranche 601 St. Charles Ave. The Louisiana State Bar Association would like to thank our gracious sponsors for New Orleans, LA 70130-3404 supporting the Law School Professionalism Orientations.
280 December 2013 / January 2014 Discipline Reports REPORTING DATEs 10/3/13 & 10/4/13
REPORT BY DISCIPLINARY COUNSEL
Public matters are reported to protect the public, inform the profession and deter misconduct. Reporting date Oct. 4, 2013.
Decisions to two years’ unsupervised probation, complete the agreed upon legal tasks; and ordered by the court as consent discipline then failing to refund the unearned fees. Rodney A. Brignac, LaPlace, (2013- on Sept. 20, 2013. JUDGMENT FINAL Derek Dave Gambino, Metairie, B-1535) Suspended for one year and and EFFECTIVE on Sept. 20, 2013. Gist: (2013-OB-2094) Transfer to disability one day ordered by the court as consent Commingling of personal funds with inactive status ordered by the court on discipline on Sept. 20, 2013. JUDGMENT client funds in her trust account. Sept. 11, 2013. JUDGMENT FINAL and FINAL and EFFECTIVE on Sept. 20, Bruce Allen Craft, Baton Rouge, EFFECTIVE on Sept. 11, 2013. 2013. Gist: Arrested and charged with (2013-OB-2171) Permanent resignation William F. Henderson, Alexandria, driving under the influence of alcohol. in lieu of discipline ordered by the court (2013-B-1301) Disbarred, retroactive Maria del Carmen Broce Calvo, on Sept. 18, 2013. JUDGMENT FINAL to March 31, 2010, the date of his New Orleans, (2013-B-1536) Suspended and EFFECTIVE on Sept. 18, 2013. Gist: interim suspension, ordered by the court Accepting fees from clients; failing to for six months, fully deferred, subject Continued next page MEMBERS ALPHABETICALLYMEMBERS MEMBERS ALPHABETICALLYMEMBERS
– Advice and counsel concerning legal and judicial ethics – FIELDS OF PRACTICE OF FIELDS FIELDS OF PRACTICE OF FIELDS — Advice– Defense and counsel of lawyer concerning and judicial legal discipline and judicial matters ethics – — — Advice and— counsel –Defense Representation of lawyerconcerning in and bar judicialadmissions disciplinelegal proceedings and matters judicial – — ethics — — Defense— of Representation lawyer and in bar judicial admissions disciplineproceedings — matters — Leslie J. Schiff 20 Years’ Experience, Disciplinary Defense Counsel — Representation117 in barW. Landry admissions Street proceedings — Opelousas,LESLIE LouisianaJ. SCHIFF 70570 Phone20 Years’ 337.942.9771 Experience, Disciplinary • Fax Defense337.942.2821 Counsel 117 W. Landry Street SERVICES & EXPERT [email protected], Louisiana 70570 Phone 337.942.9771 • Fax 337.942.2821 [email protected] SLtevenESLIE SJ.checkman SCHIFF Former Special Counsel, 20 Years’ Experience,STEVEN DisciplinarySCHECKMAN Defense Counsel FormerJudiciary Special Counsel, Commission Judiciary Commission (1994-2008) (1994-2008) 117 W. Landry Street SERVICES & EXPERT 829829 Baronne Baronne Street Street Opelousas,NewNew Orleans, Orleans, Louisiana Louisana 70113 7011370570 PhonePhone 504.581.9322 504.581.9322 •• Fax Fax 504.581.7651 504.581.7651 Phone [email protected] • Fax 337.942.2821 [email protected]@sswethicslaw.com JULIE BROWN WHITE Former Prosecutor,Jul ieOffice B rownof Disciplinary W Counselhite (1998-2006) 11404STEVEN FormerN. Lake SherwoodS Prosecutor,CHECKMAN Ave., Suite A Office of BatonDisciplinary Rouge, Louisiana Counsel 70816 (1998-2006) Former Special Counsel,Phone 225-293-4774 Judiciary • Fax 225.293.6332Commission (1994-2008) 11715 [email protected] Avenue, Suite A-3 Baton829 Rouge, Baronne Louisiana Street 70816 PhoneNew 225-293-4774 Orleans, Louisana • Fax 225.292.6579 70113 Phone [email protected] • Fax 504.581.7651 [email protected]
JULIE BROWN WHITE Former Prosecutor, Office of Disciplinary Counsel (1998-2006) Louisiana Bar Journal Vol. 61, No. 4 281 11404 N. Lake Sherwood Ave., Suite A Baton Rouge, Louisiana 70816 Phone 225-293-4774 • Fax 225.293.6332 [email protected] DISCIPLINARY REPORT: UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA The following is a verbatim report of the matters acted upon by the United States District Court for the Eastern District of Louisiana, pursuant to its Disciplinary Rules. This information is published at the request of that court, which is solely responsible for the accuracy of its content. This report is as of Oct. 3, 2013. Respondent Disposition Date Filed Docket No. Daniel E. Becnel III Reinstated. 8/19/13 05-1923 Darryl M. Breaux [Reciprocal] Suspension. 8/13/13 13-4946 Don C. Gardner Permanent resignation. 8/13/13 11-966 Notice: Attorney Fee Review Board 2001 Louisiana Acts 208 created the At- be sufficient to accommodate matters of Attorneys who represent state officials torney Fee Review Board. The Act allows for varying complexity, as well as work of per- and employees should be prepared to provide payment or reimbursement of legal fees and sons of varying professional qualifications.” their clients and the Board with sufficient expenses incurred in the successful defense The Board met on Oct. 1, 2013, and de- information to enable the Board to assess of state officials, officers or employees who cided that requests for payment or reimburse- the reasonableness of attorney fees and are charged with criminal conduct or made ment of legal fees should be evaluated on a expenses. the target of a grand jury investigation due case-by-case basis in accordance with the Any questions regarding the Attorney to conduct arising from acts allegedly un- factors set forth in Rule 1.5 of the Louisiana Fee Review Board should be addressed to: dertaken in the performance of their duties. Rules of Professional Conduct. As directed Louisiana Supreme Court Deputy Judicial The Board is charged with establishing by statute, the Board set a minimum rate of Administrator/General Counsel Lauren hourly rates for legal fees for which the State $125 per hour and a maximum rate of $400 McHugh Rocha, Ste. 1190, 400 Royal St., may be liable pursuant to R.S. 13:5108.3. per hour. These rates will remain in effect New Orleans, LA 70130-8101. Pursuant to R.S. 13:5108.4, the rates “shall through 2015.
Discipline continued from page 281 chrIstoVIch & KearneY, llp as consent discipline on Aug. 30, 2013. attorneYs at law JUDGMENT FINAL and EFFECTIVE on Aug. 30, 2013. Gist: Criminal conviction EFENSE OF THICS OMPLAINTS AND HARGES of unauthorized use of a movable (money). D E C C e. phelps GaY KeVIn r. tullY Admonitions (private sanctions, often with notice to complainants, etc.) elIzaBeth s. cordes issued since the last report of misconduct involving: (504)561-5700 No. of Violations 601 poYdras street, suIte 2300 new orleans, la 70130 Failure to communicate with a client....1
Failure to cooperate with the Office of Disciplinary Counsel in its investigation of any matter before it, except for an openly expressed claim of a constitutional privilege...... 1
Failure to properly supervise a non-lawyer employee...... 1
Improper use of trust account...... 1
TOTAL INDIVIDUALS ADMONISHED...... 3
282 December 2013 / January 2014 Recent Developments ADR to TAXATION
the San Francisco commuter rail system left mediators to bring the two sides together. their posts and went on strike. Alex Park, The mediators were essential in helping Alternative “What’s Behind the BART Strike?,” Mother to broker a 30-day deal to stop the first Dispute Jones (July 1, 2013), www.motherjones.com/ shutdown on July 5, 2013. “BART Strike mojo/2013/07/bay-area-transit-strike-why- Called Off for at Least a Week After Gov. Resolution it-matters. Jerry Brown Steps In,” San Jose Mercury BART President Tom Radulovich wrote News (Aug. 4, 2013), www.mercurynews. to California Gov. Jerry Brown days before com/bart/ci_23793808/ . Mediations Keep BART the labor agreements expired, requesting Despite months of talking beforehand, Negotiations on Track state mediators to help move negotiations the opposing proposals were nearly $100 forward. Perhaps the move came in anticipa- million apart. After a five-year pay freeze, Tense negotiations waged between tion of political intervention in the dispute. the largest discrepancy in the negotiations Bay Area Rapid Transit (BART) and the Previous BART strikes in 1997 and 2001 was salary increases. BART had seen a agency’s two largest unions, the Service were largely affected by political maneuver- revenue surplus in fiscal year 2012, and Employees International Union 1021 and ing, resolving after union workers emerged employees hoped for a piece of that gain the Amalgamated Transit Union Local 1555. from negotiations with double-digit pay after enduring wage stagnation throughout When employee contracts expired on June raises in both instances. BART management the recession from 2009. Early on in the 30, 2013, renewal talks rapidly deteriorated. was looking for a more reasonable way negotiation, BART’s total four-year proposal The next day, 2,400 unionized workers for out of the strike by relying on two top state would cost the agency another $18.5 million,
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Louisiana Bar Journal Vol. 61, No. 4 283 while the unions’ offer would cost $117.8 meant to apply pressure and obscure the Although exact details of the negotiations million over the same time. The parties were fact that the unions were demanding over are unknown due to confidentiality, the focus closer to compromise on smaller issues, 20 percent in pay increases. Lee Romney, was on the terms of the contract regarding such as contribution to healthcare benefits, “BART Strike Possible Tuesday as Talks raises and benefits. where they were just $4.3 million apart. Continue,” L.A. Times (Oct. 14, 2013), Cohen’s involvement led to a narrowing Mike Rosenberg, “BART Strike: Opposing www.latimes.com/local/lanow/la-me-ln- of the deep divides regarding benefits and Proposals Released,” San Jose Mercury potential-bart-strike-20131014,0,6453666. compensation issues. He may have arrived News (Aug. 7, 2013), www.mercurynews. story#axzz2miLqZd4X. The lawsuit came too late, however, as suddenly the issues com/bart/ci_23813630/. On the main issues, less than a week before the contract renewal of work rules soared to the head of the line however, large gaps remained. deadline, and the escalating acrimony be- in discussions. Five days after his arrival, While the recent dispute primarily cen- tween the two parties was clear. the acclaimed mediator packed up and left tered on a demand for salary increases, there BART commuters received a 60-day the negotiations. Marisa Lagos, “BART was also a growing concern by the unions reprieve from strikes when a San Francisco Gap Too Wide for Respected Mediator for improvements in safety protocols. Union Superior Court judge ordered a “cooling-off” to Bridge,” Sfgate.com (Oct. 19, 2013), members pointed to thousands of “serious period requested by Gov. Brown. Maria L. www.sfgate.com/bayarea/article/BART- crimes” committed on the transit system in Ganga, “Judge Orders Cooling-off Period gap-too-wide-for-respected-mediator-to- the last three years, including physical attacks to Prevent Another BART Strike,” L.A. bridge-4908378.php. On Oct. 18, BART on commuters and BART employees alike. Times (Aug. 11, 2013), http://articles. workers went on strike for a second time, The safety issue was not purely incidental latimes.com/2013/aug/11/local/la-me- rejecting BART’s “final offer” represented to the contract discussions. The two major ln-judge-orders-cooling-off-period-to- by a move from a 10 percent to a 12 percent unions filed suit against BART, charging that prevent-another-bart-strike-20130811. The increase in pay raises. its board of director representatives were nearly five-day strike in July left 400,000 After more than six months of nego- categorically refusing to bargain in good commuters extremely affected, and Gov. tiations, two crippling rail shutdowns and faith over worker safety. Katie Kleinsasser, Brown believed that another strike would be threats of many more strikes, the labor war “Suit Against BART Focuses on Health, crippling to the transit system. In seeking to finally ended on Oct. 21, 2013, just two Safety Issues,” Wemakebartwork.com (June avoid this significant harm to the public, he days after two track workers were killed in 24, 2013), www.wemakebartwork.com/444/ gave the two parties a period in which they a BART train accident. Federal investiga- suit-against-bart-focuses-on-health-safety- could come to an agreement. tors revealed that an inexperienced opera- issues/. BART officials responded by Management and the unions took a break tor drove the train. Union representatives claiming that the suit was a “smokescreen” from bargaining during the first month, but, warned management that training managers at the halfway point in September, negotia- to operate trains during the walkout could tions finally began by talking about minor be dangerous. Mike Rosenberg, “BART KKayay E. DDonnellyonnelly supplemental issues. Michael Cabanatuan, Strike Deal: How It Happened and Who & AssociateAssociatess “BART, Unions Scheduling New Talks Gets What,” San Jose Mercury News (Oct. with Mediators,” Sfgate.com (Aug. 12, 22, 2013), www.mercurynews.com/bart/ CertifiedCertified Court ReportersReporters 2013), www.sfgate.com/bayarea/article/ ci_24366001/bart-strike-deal-how-it-hap- FullFull ServiceService BART-unions-scheduling-new-talks-with- pened-and-who. In a joint press conference, CourtCourt Reporting FirmFirm mediators-4727009.php. This is a classic BART disclosed that the offer made was CompleteComplete Litigation Support Support mediation tool that allows the parties to more than it wanted to pay, but that both sides 2424 HOUR HOUR SERVICE SERVICE start discussions with matters that have made a compromise to reach the agreement seen progress. If no deal was reached on and to keep the Bay Area moving. The new VideoVideo Depositions Depositions the major issues, the unions threatened contract is expected to give workers at least VideoVideo Conferenc Conferencinging another strike on Oct. 11 and BART would a 15.4 percent total raise over the next four RealReal Time Time Transcription Transcription be powerless to stop them because the law years, and ultimately reflects the headway CompleteComplete Computerized Computerized Services allows for only one “cooling-off” period. made throughout the mediations. Id. ConferenceConference Room After three weeks of small concessions, and just minutes before the expiration of —Breanna Green KKnowledgeable the “cooling-off” period, union negotiators 3rd-Year Student, LSU Paul M. Hebert agreed to remain at the bargaining table. Law Center, Civil Mediation Clinic Efficient Efficient Erica Goode, “Bay Area Averts a Transit Under the Supervision of Dedicated System Strike, for Now,” N.Y. Times (Oct. Paul W. Breaux, LSU Adjunct 11, 2013), www.nytimes.com/2013/10/12/ Clinical Professor, and us/bart-labor-negotiations.html. Discus- Chair, LSBA Alternative Dispute SuiteSuite 2025 2025 Energy Energy CentreCentre Phone: 504.229.8220504.299.8220 Resolution Section 11001100 Poydras Poydras Street Street TollFree:Toll Free: 866.301.8220 sions shifted with the introduction of a new NewNew Orleans, Orleans, LA 7016370163 Fax: 504.229.8219504.299.8219 mediator — George Cohen, director of the 16643 S. Fulwar Skipwith Rd. email:email: [email protected] Federal Mediation and Conciliation Service. Baton Rouge, LA 70810
284 December 2013 / January 2014 it received notice of the bankruptcy on constitute participation within the mean- several occasions. SWT confirmed a plan ing of In re Ahern.” SWT appealed to the of reorganization that invalidated Accep- 5th Circuit. Bankruptcy tance’s lien and provided that Acceptance The 5th Circuit reviewed its decision in Law would receive nothing under the plan. Ahern, in which it held that four conditions Acceptance sought a declaratory judg- must be met for a lien to be voided under ment that its lien survived the bankruptcy section 1141(c): “(1) the plan must be or, in the alternative, requested that the confirmed; (2) the property that is subject Mere Notice is Not bankruptcy court amend its confirmation to the lien must be dealt with by the plan; Sufficient “Participation” order to provide for Acceptance’s lien. (3) the lien holder must participate in the The bankruptcy court denied Accep- reorganization; and (4) the plan must not in Bankruptcy to tance’s motion, citing to section 1141(c), preserve the lien.” 507 F.3d at 822. Effectively Void Liens which provides that “the property dealt The Ahern court did not, however, with by the plan is free and clear of all specify what constitutes “participation” Acceptance Loan Co. v. S. White Transp., claims and interests of creditors . . . .” under the third prong. In assessing the Inc. (In re S. White Transp., Inc.), 725 While 5th Circuit jurisprudence dictates requirements for participation as to Ac- F.3d 494 (5 Cir. 2013). that section 1141(c) voids only liens held ceptance’s lien, the 5th Circuit noted that In 2004, Acceptance Loan Co., Inc. by a “lien holder [who] participates in the the word “participation” connotes activity, perfected a security interest in S. White reorganization,” Elixir Indus., Inc. v. City and not mere nonfeasance. Transportation, Inc.’s (SWT) principal Bank & Trust Co. (In re Ahern Enters., The 5th Circuit affirmed the decision of asset. SWT contested Acceptance’s secu- Inc.), 507 F.3d 817 (5 Cir. 2007), the the bankruptcy court, holding that a lien rity interest in Mississippi state court and bankruptcy court held that Acceptance had holder’s passive receipt of notice is not later filed for bankruptcy in 2010. In its “participated” in the bankruptcy since it sufficient “participation” in a bankruptcy schedules, SWT listed Acceptance’s claim received several bankruptcy notices. Ac- to void a lien through the plan confirma- as “disputed.” While Acceptance never ceptance appealed, and the district court tion process under 11 U.S.C. § 1141(c). filed a proof of claim in the bankruptcy, reversed, holding “mere notice does not
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Louisiana Bar Journal Vol. 61, No. 4 285 Sanctions for Failure in court twice a day each day until he alia, he amended his deficient com- was joined by a Discover representative. plaints; (3) the order was improper to Comply with Rule Several days later, when the Discover rep- because it had the practical effect 9’s Particularity resentative appeared, the bankruptcy court of suspension; and (4) the order proceeded with the show cause hearing in violated his constitutional right Requirement order to receive assurances from Discover to Due Process because it did not and Anderson that they would comply afford him proper notice. In re Monteagudo, 2013 WL 3753609 (5 with Rule 9. Concerned that Anderson Cir. July 18, 2013) (unpublished). would continue to plead section 523(a)(2) The 5th Circuit rejected Anderson’s Jason D. Anderson worked as an attor- complaints without particularity in other arguments. The 5th Circuit found that the ney at Weinstein & Riley, P.S., a law firm cases, the bankruptcy court issued an order bankruptcy court made a finding of bad that represented Discover Bank in vari- directing Anderson and every attorney faith in the supplemental order and bad ous bankruptcy matters. In Monteagudo, from Weinstein & Riley to comply with faith could be inferred from the original Anderson on behalf of Discover alleged Rule 9 in all section 523(a)(2) complaints order. The 5th Circuit recognized that the debtor, Gene Michael Monteagudo, and to file a copy of the order along with typically a bankruptcy court can invoke made fraudulent charges on his Discover all such pleadings for one year. its inherent power to sanction only if credit card, and that pursuant to 11 U.S.C. Anderson appealed the bankruptcy there is a finding of bad faith; however, § 523(a)(2)(A), the amount was nondis- court’s decision, and the district court “when bad faith is patent from the record chargeable. remanded the case instructing the bank- and specific findings are unnecessary to Rule 9 of the Federal Rules of Civil ruptcy court to specify its authority for understand the misconduct giving rise to Procedure requires a party alleging fraud entering the order. The bankruptcy court the sanction, the necessary finding of ‘bad to “state with particularity the circum- entered a supplemental order stating that faith’ may be inferred.” stances constituting fraud or mistake.” it used its inherent authority to impose The 5th Circuit also rejected Ander- Anderson’s initial complaint failed to sanctions, and the district court affirmed. son’s second argument, finding that, while allege any facts to support the fraud Anderson then appealed to the 5th Circuit. Anderson amended the complaints, the claim aginst the debtor. The bankruptcy On appeal to the 5th Circuit, Ander- sanction was imposed not only because court instructed Anderson to comply son argued that the district court erred in of his initial failure to comply with Rule with Rule 9; however, Anderson failed affirming the bankruptcy court’s order 9, but also due to his refusal to acknowl- to amend his complaint. Subsequently, because: edge the bankruptcy court’s instructions the bankruptcy court ordered Anderson to and abide by them. show cause why he and Discover should (1) the bankruptcy court did not Finally, the 5th Circuit rejected the last not be compelled to comply with Rule 9 properly invoke its inherent power two arguments, finding that nothing in the and scheduled a hearing requiring that to sanction because it did not make order prevented Anderson from practicing Anderson and a Discover representative an explicit finding of bad faith in law and Anderson was not denied due attend. Anderson appeared at the hearing its initial order; (2) the bankruptcy process. As the show cause order clearly but was not accompanied by a Discover court erred in finding Anderson instructed Anderson to show cause why representative. Consequently, the bank- acted in bad faith because, inter he should not be compelled to file future ruptcy court ordered Anderson to appear section 523(a)(2) pleadings in accordance with Rule 9, the 5th Circuit found he was adequately put on notice that if he failed to comply with the order, an appropri- ate sanction may be fashioned. The 5th haffe McCall is pleased to announce the opening of its Circuit thereby affirmed the decision of new office in Lake Charles, Louisiana, complementing the the district court. firm’s existing locations in New Orleans, Baton Rouge, and Houston. The office is located in the Capital One Tower, —Tristan E. Manthey one block from the state courthouse. Chair, LSBA Bankruptcy Law Section C and Alida C. Wientjes Heller, Draper, Patrick & Horn, L.L.C. Ste. 2500, 650 Poydras St. New Orleans, LA 70130 One Lakeshore Drive | Suite 1640A, Lake Charles, LA 70629 | (337) 419-1825 For more information on Chaffe McCall, please visit www.chaffe.com. New OrleaNs (504) 585-7000 | BatON rOuge (225) 922-4300 | HOustON (713) 546-9800
286 December 2013 / January 2014 is one of a series of laws enacted in Loui- ing her during the same period of time the siana in 2002 under the title “Prevention defendant was abusing her. At trial, she of Terrorism on the Highways.” Applying had denied having sexual activity with Criminal the U.S. Supreme Court’s decision in anyone other than the defendant. Law Arizona v. United States, 132 S.Ct. 2492 After holding an evidentiary hearing, (2012), the Louisiana Supreme Court the trial court granted postconviction concluded La. R.S. 14:100.13 operates relief. The court found that the evidence in the field of alien registration and is, revealed at the hearing undermined the Ineffective Assistance therefore, preempted by federal law prosecution’s entire case and deprived under the Supremacy Clause of the U.S. the defendant of being able to use the of Counsel Constitution. As the opinion notes, there information to cross-examine the victim was a split in the circuits in how the issue at the trial. State v. Thomas, 12-1410 (La. 9/4/13), was being handled and a split within one The Supreme Court concluded the trial ____ So.3d ____, 2013 WL 4734577. of the circuits. court erred in its ruling for two reasons. When the defendant was found guilty First, the issue of whether free-standing of attempted aggravated burglary in the claims of actual innocence not based on first trial (instead of the charged offense Postconviction Relief DNA evidence are cognizable in state of aggravated burglary), that verdict postconviction proceedings was left open served as an acquittal for the offense of State v. Pierre, 13-0873 (La. 10/15/13), in State v. Conway, 01-2808 (La. 4/12/02), aggravated burglary. Thus, retrying the ____ So.3d ____, 2013 WL 5789031 816 So.2d 290, and this case was not the defendant for aggravated burglary vio- (per curiam). one for the court to decide definitively lated double jeopardy. Counsel’s failure The defendant was found guilty of that issue. The claims in the application to file (prior to the new trial) a motion aggravated rape of the granddaughter for postconviction relief went to the vic- to quash based on double jeopardy was of his live-in partner. The victim was 12 tim’s credibility, not to actual innocence. deficient representation even though the when she reported intense sexual abuse Second, the district court appeared to use issue was not recognized by eight previous that had occurred over the years. At a lower standard of materiality under the attorneys who represented the defendant, trial, the defendant testified and denied guise of implementing a Conway claim of the district attorney or the trial court. sexually abusing the victim. Defense actual innocence, but the time for raising Because the verdict in the final trial was counsel argued that the defendant had, in the claim under the lower standard in a the responsive verdict of unauthorized effect, become an unwitting pawn in an motion for new trial had expired. The entry of an inhabited dwelling (not ag- intra-family custody dispute in which the Supreme Court reinstated the conviction gravated burglary), the verdict cured the victim used allegations of sexual abuse to and sentence and remanded for the trial double jeopardy implications of retrying facilitate her perceived interests in where court to consider the remaining claims the defendant for aggravated burglary. and how she wanted to live. After trial, for postconviction relief. Counsel’s failure to file a motion to quash and while the appeal was pending, the did not establish prejudice as required victim reported to police that a teenage —Janis L. Kile for a claim of ineffective assistance of boy had forced her and a friend to perform Member, LSBA Criminal Law Section counsel. If such a motion had been filed, sex acts. The victim later admitted the 4745 Drusilla Drive the state could have simply amended the sex with the boy was consensual. Later Baton Rouge, LA 70809 charging document to cure the defect. that same year, the victim revealed that Finding the defendant failed to satisfy the another man also had been sexually abus- prejudice prong of the test for ineffective assistance of counsel, the Supreme Court reversed the trial court’s ruling that had granted the defendant’s application for postconviction relief.
Federal Preemption
State v. Sarrabea, 13-1271 (La. 10/15/13), ____ So.3d ____, 2013 WL 5788888. La. R.S. 14:100.13 proscribes the operation of a motor vehicle by an alien student or nonresident alien who does not possess documentation showing lawful presence in the United States. The statute
Louisiana Bar Journal Vol. 61, No. 4 287 of a hydroelectric project, finding that the water from the reservoir too quickly, FPA preempts these claims “where the causing the water to flood their property. alleged damage is the result of ‘negligently’ The 5th Circuit noted that FERC had Environmental operating in compliance with a FERC- denied plaintiffs’ previous request to Law issued license.” Id. at 474. make changes that would address their The Federal Power Commission concerns of flooding. The court considered granted a license to Louisiana and Texas plaintiffs’ claims as an attempt to use state authorities for the construction, operation law to accomplish the same objective. The Federal Power Act and maintenance of a hydroelectric project 5th Circuit interpreted the complaint as on the Sabine River, which includes a dam, alleging that defendants “were negligent Preempts Property reservoir, spillway and a hydroelectric because they failed to act in a manner Damage Claims plant. The state authorities then granted FERC had expressly declined to require.” Brought Under State Entergy Corporation and its affiliates the Id. at 471. right to oversee power generation and the Section 10(c) of the FPA provides that Tort Law right to purchase that power, subjecting “[e]ach licensee hereunder shall be liable Entergy to the terms of the license. The for all damages occasioned to the property On Oct. 9, 2013, the 5th Circuit Court license dictates the reservoir water levels, of others by the construction, maintenance, of Appeals in Simmons v. Sabine River which the state authorities and Entergy or operation of the project works or of the Authority Louisiana, 732 F.3d 469 (5 Cir. maintain through spillway gates and/or works appurtenant or accessory thereto, 2013), found that the Federal Power Act power turbines. constructed under the license, and in no (FPA) preempts property damage claims The plaintiffs allege that the defendants event shall the United States be liable brought under state tort law. The court negligently operated the spillway gates therefor.” But the FPA’s savings clause in affirmed the dismissal of an action that 28 during the heavy rainfall by failing to Section 27, which the 5th Circuit read as property owners filed against the operators open them soon enough and then releasing broadly as possible, provides:
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288 December 2013 / January 2014 reimbursement for taxes he paid on her Nothing contained in this chapter separate property income and for her shall be construed as affecting share of a tax lien established against or intending to affect or in any Family him for unpaid taxes during the parties’ way to interfere with the laws of Law marriage. Even though he filed his suit the respective States relating to after the succession was closed, his suit the control, appropriation, use, was not untimely because (1) demand or distribution of water used in had been made prior to her death and (2) irrigation or for municipal or other Community Property the defendants did not properly raise an uses, or any vested right acquired exception of prescription. As the succes- therein. Rush v. Rush, 12-1502 (La. App. 1 Cir. sion was closed prior to the suit, the trial 3/25/13), 115 So.3d 508, writ denied, court’s judgment against the succession 16 U.S.C. § 821. The 5th Circuit agreed 13-0911 (La. 5/31/13), 118 So.3d 398. and heirs was revised to delete the suc- with the 9th Circuit’s statement that the The parties signed a pre-nuptial cession and render judgment against the Supreme Court has “read the broadest agreement before a notary, but without heirs only. possible negative pregnant into [the FPA’s] witnesses. After Mr. Rush filed a petition savings clause,” exempting only “a state for divorce, he signed an acknowledg- Succ. of Amaro, 13-0022 (La. App. 4 Cir. property law regime [that] enables users ment of his signature by authentic act. 5/15/13), 116 So.3d 913. of streams and wells to obtain proprietary He then issued a request for admissions After the trial court signed an ex parte rights in a continuing quantity of water.” to Ms. Rush, who admitted her signature judgment of possession in favor of the Id. at 476, quoting Sayles Hydro Assocs. on the matrimonial agreement. The trial decedent’s husband, her son filed a petition v. Maughan, 985 F.2d 451, 454-55 (9 Cir. court found the agreement to be valid to intervene and an appeal alleging that he 1993). The court concluded that the claims because their signatures were thus duly was her heir and that he possessed a will “infringe on FERC’s operational control” acknowledged. she had made. The court of appeal found because “FERC, not state tort law, must Although the trial court designated the that while the trial court may not have set the appropriate duty of care for dam judgment as final for appeal, the court of erred in rendering the judgment based operators.” Id. at 476. appeal found that it was not, but converted on the evidence it had before it, because the appeal to a writ. It reversed the trial appellant had an appealable interest, the —Corinne J. Van Dalen court, finding that La. Civ.C. arts. 2329 judgment needed to be vacated so that a Member, LSBA Environmental and 2331 had to be read together and hearing could be held to determine his Law Section required that the appropriate form exist status, the status of the will and the clas- Tulane Environmental Law Clinic at the time of the parties’ marriage. As it sification of the property. 6329 Freret St. was invalid for form at their marriage, New Orleans, LA 70118 it could not subsequently be validated. Buffone v. Mangano, 12-0819 (La. App. 4 Cir. 5/17/13), 116 So.3d 922. Moore v. Moore, 12-959 (La. App. 3 Mr. Buffone and Mr. Mangano were Cir. 4/10/13), 116 So.3d 18, writ denied, each issued 100 of the 1,000 shares of a 13-1065 (La. 6/21/13), 118 So.3d 421. closely held corporation. Mr. Mangano The parties were separate in prop- was named the president and Mr. Buf- erty. Following Ms. Moore’s death, Mr. fone the vice president. Subsequently, Moore sued her succession and heirs for the remaining 800 shares were issued to Mr. Mangano’s wife by a stock certificate signed by Mr. and Mrs. Mangano as presi- dent and secretary. There were no minutes A Fresh Perspective from a board of directors’ meeting, no On Your Case vote to issue the stock and no corporate resolution authorizing the stock issuance. However, because Mr. Buffone made no effort to involve himself in the workings of the corporation and, after receiving information that Ms. Mangano had been issued the 800 shares, did nothing for three more years, the court found that he had ratified the issuance of the stock as Mediation | Jury Focus Groups | Special Master a result of his indifference, lack of due www.tomfoutzadr.com diligence and avoidance of his fiduciary
Louisiana Bar Journal Vol. 61, No. 4 289 responsibilities as a shareholder. The court Judicial District Court, and that under the her separate property, nor did it give her found that it was unreasonable for him to enabling legislation for the 22nd Judicial voting rights. allow her to manage the business for 25 District Court, it did not lose jurisdiction years and then complain after he had failed over a community property partition after to take any action regarding the operation one of the spouses died. Custody/Bergeron of the entity even after he became aware Mulkey v. Mulkey, 12-2709 (La. 5/7/13), of the issuance of the stock to her. Schexnayder v. Yolande Schexnayder 118 So.3d 357. & Son, Inc., 12-0885 (La. App. 5 Cir. In this change of custody case, the Crovetto v. Crovetto, 12-1895 (La. App. 5/23/13), 119 So.3d 624. Supreme Court addressed one of those 1 Cir. 6/7/13), 118 So.3d 1258. Mr. Schexnayder donated 7,500 “narrow class of cases” where a modifica- After this community property parti- shares of his separate property stock in tion of custody is appropriate even though tion case had been tried, but before judg- a corporation to Ms. Schexnayder with the present arrangement is not harmful ment was rendered, Mr. Crovetto died. The the stipulation that the property would to the child, but the harm caused by the trial court then, sua sponte, determined, become community property. She then modification, if any, was substantially on the basis of McCann v. McCann, 11- called a meeting of the shareholders and outweighed by the advantages to the 2434 (La. 5/8/12), 93 So.3d 544, that it voted him out as president, and voted child, and the change was in the child’s now lacked subject matter jurisdiction. herself in as president and as treasurer of best interest. Here, the 15-year-old child Both parties sought a new trial, which the entity. He filed a petition for mandamus had a strong and well supported pref- was denied, and both sought writs. The and quo warranto, which was granted by erence to live with his father, and the 1st Circuit reversed the trial court, find- the trial court, and affirmed by the court parents’ abilities were relatively equal. ing that the statutory basis underlying the of appeal, which found that the donation The changes that had occurred since the Supreme Court’s decision in McCann, only made the shares community prop- prior judgment favored the child living which concerned the Family Court for erty, and as they remained in his name, with his father, and the Supreme Court East Baton Rouge Parish, was a different he alone had the right to vote them. The could find no basis to rule that the trial enabling statute than that which created donation to her, to make the shares com- court’s allowing the modification was the two family court seats in the 22nd munity property, did not make the stock 20219-Cardone-VirtualOfficeAd_20219-Cardone-VirtualOfficeAd 10/23/13 9:44 AM Page 1 manifestly erroneous, particularly given the deference allotted to the trial court’s evaluation of the case before it.
Final Spousal Support
Anderson v. Anderson, 48,027 (La. App. 2 Cir. 5/15/13), 117 So.3d 208. The court found that final spousal sup- port was “limited to an amount sufficient for maintenance as opposed to continuing VIRTUAL OFFICE an accustomed style of living.” The court did not err in assigning Ms. Anderson an IN NEW ORLEANS imputed wage based on 40 hours per week, even though she worked only 36 hours per SPEND MORE TIME IN NEW ORLEANS week. The court included in her spousal support $600 per month for rent, even AND WRITE OFF YOUR TRIP! though she was living with her father and not actually paying any rent. It also found OUR LAW FIRM WILL PROVIDE: that she was entitled to funds for utilities, • Mailing Address • Copy Machine Internet, cable, hair dresser and dining out, given her depression and anxiety. Mr. • Conference Room • Fax Anderson’s income was also adjusted for • Phone Services • Voice Mail expenses paid for him by his companies. • Lobby receptionist • Internet Visitation/Grandparents CONTACT CLIFF CARDONE Rogers v. Pastureau, 12-2008 (La. App. 1 829 BARONNE STREET• NEW ORLEANS • 504-522-3333 Cir. 4/26/13), 117 So.3d 517, writ denied, 13-1833 (La. 8/8/13), 120 So.3d 47.
290 December 2013 / January 2014 After the mother’s death, the maternal prior actions in preventing visitation, grandparents were awarded visitation over which made the restrictions necessary. the objection of the children’s father and Furthermore, there was no violation Fidelity, adoptive mother. His new wife’s adopting of the Equal Protection Clause on the Surety and the children did not divest the family court allegation that La. R.S. 9:344 treated Construction of jurisdiction and change jurisdiction to adoptive parents differently from biologi- Law juvenile court where the adoption took cal parents. Because the burden of travel, place because the grandparents’ custody expenses and time was greater for the suit was initiated prior to the petition grandparents, the father’s fundamental Prescription/Peremption for adoption. The trial court’s finding rights as a parent were not violated. Given of contempt for the father’s refusing to the “extensively documented loving and Marseilles Homeowners Condominium allow the grandparents court-awarded nurturing relationship with the children Ass’n v. Broadmoor, L.L.C., 111 So.3d visitation was affirmed. The court found that had existed for the duration of the 1099, 12-1233 (La. App. 4 Cir. 2/27/13). that the father attempted to alienate the children’s lives,” the trial court did not err In a construction-defect case initiated by children from the grandparents and that in awarding visitation to the grandparents. a project owner against the general contrac- his testimony was not credible regarding tor, the general contractor filed a third-party the reasons for his non-cooperation with —David M. Prados demand against both the manufacturer and the grandparents, with whom the children Member, LSBA Family Law Section distributor of the windows and doors for had had a prior close relationship. Because Lowe, Stein, Hoffman, Allweiss alleged defects in the products supplied for the children’s mother was deceased, La. & Hauver, L.L.P. a high-rise residential condominium com- R.S. 9:344 applied, and the court found Ste. 3600, 701 Poydras St. plex at the Lakefront in New Orleans. Both that the statute was constitutional. The New Orleans, LA 70139-7735 the manufacturer and supplier pleaded court’s limiting the father’s contact prescription and were dismissed from the with the children while they were with case by the trial court. The court of appeal the grandparents did not impermissibly affirmed the judgment of the trial court in infringe on his parental rights due to his nearly all respects. LaPorte LSJB Ad'13D_Layout 1 11/4/13 11:02 AM Page 1 The principal lawsuit was filed after
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Louisiana Bar Journal Vol. 61, No. 4 291 the condominium building was apparently such as the manufacturer and distributor 4/10/13), 113 So.3d 477, was faced with completed (the case is not abundantly clear — even based on a theory of express war- the difficult task of determining what on the completion date) and followed after ranty (such as the 10-year warranty) — are constituted “actual substantial comple- Tropical Storm Isidore and Hurricane “subsumed under the Louisiana Products tion” of the constructed home based on Lili hit New Orleans in 2002. For its part, Liability Act,” a statutory scheme which, myriad facts and circumstances, but with following the storms, the manufacturer for the intents and purposes of this case, no overt substantial completion certificate resealed the windows and doors in late provided a one-year period of prescrip- or other official declaration of substantial 2002 and also provided a new 10-year tion (one year from the day the injury or completion. The importance of the actual warranty that commenced Dec. 9, 2002. damages sustained, in accordance with substantial completion date is this: by law, Finally — and critically — the court de- La. Civ.C. art. 3492), or otherwise subject the subcontractor had 60 days to file its termined that in 2005 following Hurricane to the laws governing redhibition claims lien following actual substantial comple- Katrina, the general contractor noted ad- in Louisiana (also subject to one-year tion (because the general contractor had ditional problems with the manufactured prescription following discovery of the not filed in the public records notice of products. However, the window-and-door defect, La. Civ.C. art. 2534). its general contract; see La. R.S. 9:4822). manufacturer and distributor were not While acknowledging that the express The subcontractor had filed its lien on added as third-party defendants by the 10-year warranty was absolutely in effect Feb. 16, 2011. general contractor until 2008. According in 2005 when the general contractor alleges Confounding the issue was that the to the court of appeal, that was too late. it became aware of additional defects in the owner placed the general contractor in The court of appeal analyzed the manufactured products, the court declared default for failing to perform, a matter that chain of events leading to the naming of that upon such knowledge the one-year the subcontractor urged should be proof the window-and-door manufacturer and prescriptive periods applicable to both sufficient that the project never achieved distributor as third-party defendants, as the Louisiana Products Liability Act and substantial completion. The subcontrac- well as the fact that the manufactured to redhibition claims applied, requiring tor’s arguments that its lien was timely products in question were provided with that suit against the manufacturer and/ was based on the default plus the fact that a 10-year warranty that commenced in late or distributor be brought within one year. a list of incomplete work — including 2002. Central to the court’s dismissal of (The court rejected an additional argument work that was never commenced — was the manufacturer and distributor was the that prescription had not run because the provided by the owner with the notice of court’sLA Bar finding Journal that recoveryAd 9/21/11 against 3:44parties PM generalPage contractor had been lulled into default to the general. believing that the manufacturer was not On the other hand, the owner presented contesting liability. The court left open, relatively unrefuted testimony that in late however — and remanded to the trial October 2012 the home was “just about SCHAFER GROUP LTD Certified Public Accountants court for further evaluation and decision finished.” He contended that the list of — the matter of an alleged contractual items provided to the contractor on default When you need a forensic accountant, indemnity obligation of the window-and- was a punch list of relatively minor items call on a professional. door distributor, an obligation which was only. Unfortunately for the subcontractor, memorialized in extremely fine print on the the sub’s own witnesses tended to confirm “Knowledge of business, finance reverse side of the standard purchase order the general completeness of the home more and accounting may be needed used by the general contractor.) than 60 days before the subcontractor filed at any stage of the litigation its lien, one such witness noting that the house appeared to be “pretty much com- process. Therefore, we can be Construction Liens plete” in early November 2010. an important member of any A subcontractor brought suit to enforce Relying on the definition of substantial successful litigation team. completion contained in La. R.S. 9:4822, From contemplation of action to its lien against a homeowner after the general contractor on the construction of the court of appeal affirmed the trial court’s expert testimony, we can complement attorneys in finding that the subcontractor’s lien was ways that increase the likelihood of a desired outcome. a home in Minden, La., defaulted on the project and failed to pay the subcontractor. untimely. According to the court, the key We can support your litigation efforts to save you time The homeowner counterclaimed against to assessing whether substantial comple- and strengthen your case.” the subcontractor, demanding that the lien tion was achieved was whether any of the unfinished items — indeed, even those —Kernion T. Schafer, CPA of the subcontractor be removed (following the homeowner providing the statutorily items of work that had not been started (including, for example, installation of at- S OUTH S HORE AND N ORTH S HORE O FFICES required 10-day demand for removal of tic insulation) — “defeat[ed] the intended METAIRIE MANDEVILLE the lien pursuant to La. R.S. 9:4833) and 701 Aurora Avenue • Suite A 435 Girod Street • Suite B use of the house.” Finding that the house Metairie, Louisiana 70005 Mandeville, LA 70448 seeking its attorney’s fees. 504.837.6573 985.626.4066 The court in Urban’s Ceramic Tile, was suited for its intended use and actually Forensic Accounting • Emerging Issues • Financial Services in use — based in part on a photograph Litigation Services • Legal Services • Emerging Business Inc. v. McLain, 47,955 (La. App. 2 Cir. taken in mid-December 2011 “showing
292 December 2013 / January 2014 a mayonnaise jar on the counter” — the of federal maritime law: common law court established that substantial comple- developed by federal courts and statutory tion occurred more than 60 days before the Insurance, Tort, law. Traditionally, ill or injured seamen subcontractor’s lien was filed, requiring Workers’ had two causes of action under general dismissal of the lien. Compensation & maritime law, maintenance and cure with- Remaining for the court to consider was Admiralty Law out regard to fault and unseaworthiness the trial court’s assessment of attorney’s for injury caused by a vessel’s operational fees awarded to the owner. The applicable unfitness. No separate cause of action statute, La. R.S. 9:4833, provides for at- Admiralty: Punitive existed for injury resulting from employer torney’s fees if the decision to refrain from negligence or wrongful death or survival honoring the demand to remove the lien is Damages for actions. “without reasonable cause.” Notwithstand- Unseaworthiness In 1920, Congress enacted the Jones ing the subcontractor’s myriad arguments Act and the Death on the High Seas Act concerning the potential bases for finding McBride v. Estis Well Serv., L.L.C., 731 to create causes of action for employer that substantial completion had not oc- F.3d 505 (5 Cir. 2013). negligence in navigable waters and on curred more than 60 days before filing of Skye Sonnier was a crew member the high seas and survival and wrongful its lien, the court upheld the trial court’s aboard Estis Rig 23, a barge supporting death remedies. Congress did not address assessment of a finding that the failure to a truck-mounted drilling rig operating punitive damages, historically available deliver the cancellation of the lien when in Bayou Sorrell, a navigable waterway in general maritime actions. requested was without reasonable cause, in Iberville Parish, when a derrick pipe In 1990, the Supreme Court stated in and affirmed the attorney’s fees award. shifted, causing the rig and truck to topple Miles v. Apex Marine Corp., 111 S.Ct. The court declared that it was essentially over. Sonnier was killed and three crew 317 (1990), that an admiralty court should constrained to uphold the district court’s members were injured. Haleigh McBride, look primarily to legislative enactments decision because the witnesses for the sub- individually, on behalf of Sonnier’s minor for policy guidance. The court denied contractor confirmed the testimony of the child and as administratrix of his estate, non-pecuniary damages in a suit for the owner concerning the relative complete- filed suit in federal court stating causes of wrongful death of a Jones Act seaman ness of the home as early as November action for unseaworthiness under general under general maritime law. In Guevara 2010, and none of the witnesses for the maritime law and negligence under the v. Maritime Overseas Corp., 59 F.3d subcontractor testified that the work items Jones Act and seeking compensatory 1496 (5 Cir. 1995), the court reasoned remaining to be done on the home were as well as “punitive and/or exemplary” that because punitive damages are not “difficult to correct or impaired the intended damages. an available remedy for personal injury use of the house.” The magistrate judge granted Estis’s to a seaman under the Jones Act, they are motion to dismiss the claims for punitive likewise not available for personal injury —Daniel Lund III damages, finding such damages are not resulting from a maintenance and cure Member, LSBA Fidelity, Surety and an available remedy for unseaworthiness violation. This was perceived to “portend Construction Law Section or Jones Act. The 5th Circuit certified the disappearance of punitive damages Shields Mott Lund, L.L.P. the judgment for immediate appeal and from the entire body of maritime law.” Ste. 2600, 650 Poydras St. reversed and remanded. The trend was reversed in 2009 when New Orleans, LA 70130 Courts look to the two primary sources the Supreme Court in Atlantic Sounding Co., Inc. v. Townsend, 129 S.Ct. 2561 (2009), abrogated Guevara and restored the availability of punitive damages for maintenance and cure violations, reasoning that “punitive damages have long been an accepted remedy under
general maritime law,” and “nothing in is pleased to announce the addition of the Jones Act altered this understand- ing.” The court stated that the Jones Act Darrel J. Papillion “created a statutory cause of action for negligence, but it did not eliminate pre- to its mediation panel existing remedies available to seamen for the separate common-law cause of action
Phone 225-389-9899 or 866-389-9899 for Scheduling based on a seaman’s right to maintenance 721 Government Street, Suite 102 Baton Rouge, LA 70802 and cure,” noting that the Act’s purpose www. perrydampf.com “was to enlarge [seamen’s] protection, not to narrow it.”
Louisiana Bar Journal Vol. 61, No. 4 293 In McBride, the plaintiffs urged that judgment on whether the election results punitive damages remain available as a should be permanently enjoined due to con- remedy for the general maritime law cause International stitutional deficiencies. The court focused of action for unseaworthiness because, Law solely on the Establishment Clause claim like maintenance and cure, unseaworthi- and applied the Larson test as the proposed ness was established as a cause of action amendment allegedly discriminates among before passage of the Jones Act, courts religions by singling out Sharia law. Larson traditionally awarded punitive damages imposes a strict scrutiny standard, requiring under general maritime law, and the Jones Applicability of a compelling government interest and a Act does not address unseaworthiness International Law in close fit between the amendment and the or purport to limit its remedies. Estis compelling government interest. countered that because the crew members U.S. Courts The court granted Awad’s motion for sought redress for wrongful death and summary judgment, finding that Oklahoma Awad v. Ziriax, ____ F.Supp.2d ____ personal injuries arising from a maritime supplied absolutely no compelling state (W.D. Okla. 2013), 2013 U.S. Dist. LEXIS accident — types of harm compensable interest for a law that fails to remedy any 115396. under both general and statutory maritime specific problem. Oklahoma argued that the As previously reported in this column, law — and punitive damages are not state has a compelling interest in determin- several U.S. states recently passed legisla- available under statutory maritime law, ing what law is applied by its courts, but tion attempting to preclude or significantly punitive damages are not available. the district court was not persuaded due to diminish the applicability of international The 5th Circuit found that Townsend the lack of any concrete problem that the law in U.S. courts. Legislation enacted by established a rule that if a general mari- challenged amendment sought to remedy. the state of Oklahoma, titled the “Save Our time law cause of action and remedy The court went on to address a sever- State Amendment,” sought to amend the were established before the passage of the ability argument by Oklahoma, contending Oklahoma state Constitution to preclude Jones Act, and the Jones Act did not ad- that, to the extent the amendment does Oklahoma courts from “look[ing] to the dress that cause of action or remedy, then violate the Establishment Clause, the court legal precepts of other nations or cultures. that remedy remains available under that should sever the offending portions and Specifically the courts shall not consider cause of action unless and until Congress leave the remainder of the amendment international or Sharia law.” The legislation intercedes. It concluded that: intact. The court found that the unconsti- was placed on an electoral ballot for a vote tutional Sharia law provisions were not of the people on Nov. 2, 2010. More than Like maintenance and cure, un- severable from the remainder insofar as 70 percent of those who voted favored the seaworthiness was established as a it would significantly alter the substance amendment. general maritime claim before the of the amendment. Numerous statements Plaintiff Awad sought an injunction passage of the Jones Act, punitive were made by the amendment’s legisla- and challenged the constitutionality of damages were available under gen- tive authors indicating that the “primary the amendment, urging Establishment eral maritime law, and the Jones Act purpose of the amendment was to specifi- Clause and First Amendment Free Exer- does not address unseaworthiness cally target and outlaw Sharia law and to cise Clause violations. After granting a or limit its remedies . . . . [T]here- act as a preemptive strike against Sharia preliminary injunction and allowing an fore, . . . punitive damages remain law to protect Oklahoma from a perceived amended complaint to add new parties and available to seamen as a remedy for ‘threat’ of Sharia law being utilized in additional constitutional challenges, the the general maritime law claim of Oklahoma courts.” court resolved cross-motions for summary unseaworthiness.
—John Zachary Blanchard, Jr. Past Chair, LSBA Insurance, Tort, INSURANCE & Workers’ Compensation and FINANCIAL CONSULTING Admiralty Law Section WAYNE CITRON 90 Westerfield St. Bossier City, LA 71111 Expert Insurance Testimony CMC A Leading Firm in Life, Health, Disability, Property and ADVISORS Casualty Insurance for 1-800-CITRON1 Over 42 Years www.citronagency.com Insurance Law and Regulations
294 December 2013 / January 2014 Permanent Normal EU-Ukraine Deep and Comprehensive chicken “broiler products” exported from Free Trade Agreement (DCFTA). the United States to China. The United Trade Relations with The European Union (EU) concluded States initiated consultations and later re- Russia negotiations on a free trade agreement quested a formal panel to review numerous with Ukraine on July 19, 2012. The par- alleged inconsistencies in the application of On Dec. 14, 2012, President Obama ties hope that the DCFTA will be part of China’s anti-dumping and countervailing signed into law the Russia and Moldova a future Association Agreement whereby duty law, in violation of the WTO Anti- Jackson-Vanik Repeal and Sergei Magnitsky Ukraine formally joins the EU. The DCFTA Dumping and SCM Agreements. Rule of Law Accountability Act, 126 Stat. is not yet in force as each side will have China initially imposed AD rates rang- 1496. The law extends normal trade rela- to alter its internal laws and regulations ing from 50.3 to 53.4 percent for the U.S. tions treatment to products of the Russian to conform to the agreement. The signing producers responding to China’s investiga- Federation and Moldova and paved the way provoked a significant reaction in Mos- tion. A rate of 105.4 percent was applied to for Russia’s final and complete accession to cow, where economic officials remain all other producers. CVD rates were applied the World Trade Organization (WTO). Russia hopeful that Ukraine will join the existing between 4.0 and 12.5 percent for participat- became the 156th member of the WTO on Customs Union between Russia, Belarus ing producers and 30.3 to all others. The Aug. 22, 2012, but Russia and the United and Kazakhstan. Russia actually blocked WTO panel found in favor of the United States had issued notices of non-application Ukrainian cargo from entering its territory States almost universally, including in the because the United States had not yet ex- for a short time in protest of the developing following aspects: (1) imposing CVD rates tended normal trade relation status. This is EU-Ukraine relationship. in excess of the amount of subsidies; (2) re- an important step in increasing bilateral trade lying upon inaccurate pricing comparisons relations between the two nations, especially World Trade when examining injury to the domestic in light of the Intellectual Property Rights industry; and (3) improperly calculating Action Plan the United States and Russia Organization the “all others” rates. executed on Dec. 20, 2012, which will pro- mote strong intellectual property protection. China Anti-Dumping and Countervailing —Edward T. Hayes Duty Measures on Broiler Products from Member, LSBA International Law Section the United States, DS 427 (Aug. 2, 2013). Leake & Andersson, L.L.P. European Commission A WTO Dispute Settlement Body Panel Ste. 1700, 1100 Poydras St. Directorate-General for issued its report regarding China’s Ministry New Orleans, LA 70163 of Commerce imposition of anti-dumping Trade and countervailing measures on certain Mark your calendar! Seventh Annual Conclave on Diversity in the Legal Profession Inclusive Professionalism: Harnessing the Power of Our Differences March 21, 2014 Hilton New Orleans Riverside 2 Poydras St., New Orleans, LA For up-to-date information, visit www.lsba.org/Diversity Seeking sponsors! Commit by Jan. 2, 2014 to appear in Conclave mailer. For more information on sponsorship levels, contact LSBA Program Coordinator/Marketing and Sections Christine A. Richard, (504)619-0105, email [email protected].
Louisiana Bar Journal Vol. 61, No. 4 295 veterans and their families in health care, of improper reinstatement into civilian jobs education, disability benefits, long-term care following military service. Labor and and burial honors (www.vetaffairs.la.gov). In Many businesses are familiar with Employment addition, the LDVA provides information USERRA, but Louisiana has some little Law regarding all state and federal programs known and rarely used state laws that also geared toward employing veterans and protect veterans and reservists. In particu- using veteran-owned businesses in govern- lar, the Military Service Relief Act, La R.S. ment contracting (www.vetaffairs.la.gov/ 29:401-425, provides, among other things, Protecting Those Who Employment). reemployment rights and retirement credit, Hiring veterans (and those serving in life, health and accident insurance cover- Protected Us the reserves) is a laudable goal, but pro- age. The act also prohibits (1) academic tecting their employment is both laudable penalties in higher education, (2) employ- Collaboration between businesses and and required by state or federal law. The ment practices that discriminate against government to help our nation’s veterans Uniformed Services Employment and Re- workers or applicants because they are reenter the workforce is on the upsurge. employment Rights Act (USERRA) is a members of the “uniformed services” and Campaigns such as the I Heart Radio “Show federal statute that provides job protection (3) retaliation against any person because Your Stripes” Initiative (www.showyour- and employment rights to military person- the person exercises his rights under the stripes.org), Walmart’s “Veterans Welcome nel who serve on active or reserve duty. law or assists another person in doing so, Home” Commitment (www.walmart.com) In 2011, the Department of Labor Veter- regardless of whether the person assisting and the National Chamber Foundation and ans Employment and Training Service is a member of the military. Capital One’s “Hiring 500,000 Heroes” (VETS) program received more than 1,500 Employers should be mindful that if (www.uschamber.com/hiringourheroes/ USERRA complaints, nearly 35 percent of Louisiana law provides more protection hiring500000heroes) showcase the impor- which included allegations of some form of than federal law, Louisiana law can be ap- tance of hiring veterans and the unique skills employment discrimination (www.dol.gov/ plied in addition to the federal law. For ex- they offer. vets/programs/userra). Twenty-five per- ample, USERRA mandates that a reservist The Louisiana Department of Veterans cent of the complaints involved allegations who is called to active duty must be restored Affairs (LDVA) provides many services to to his same or comparable position (with no less pay, seniority status or benefits). In addition, Louisiana law requires that once his position is restored, he may not be dis- charged from his position “without cause within one year after restoration to the posi- tion.” La. R.S. 29:38(B). Employers should be aware of this added one-year protection, which basically alters the employment-at- will doctrine for one year after a leave for active duty. In addition, Louisiana law pro- vides that if an employer refuses to appro- priately restore a reservist to his position, he can bring suit to require compliance and ap- ply to the district attorney to appear and act as attorney for such person in the prosecu- tion or settlement of the claim. Attorney’s fees are available for good cause, including in cases where the district attorney may be unwilling or unable to act as the service member’s attorney. The Louisiana Legislature recently en- acted a new protection for veterans: leave for veterans who need to attend medical appointments in order to obtain veteran’s benefits. La. R.S. 23:331, which went into effect on Aug. 1, 2013, makes it unlawful for an employer to “discharge, otherwise discipline, threaten to discharge, or threaten to discipline” any veteran for time off work
296 December 2013 / January 2014 needed to “attend medical appointments In sum, veterans and employers need to attorneys’ fees. The district court granted necessary to meet the requirements to re- be aware of these Louisiana statutes. There the Moores’ motion. On the fraud claim, ceive his veteran benefits.” may be circumstances under which they the court found that (1) because there was The statute extends to all veterans, de- provide more protection than the more well no evidence that the Moores used subterfuge fined as “any honorably discharged veteran known federal leave and accommodation or misrepresented any facts in order to obtain of the armed forces of the United States in- statutes. Employers often understand the the $330,673.73 check from QEP and (2) cluding reserved components of the armed need for such leave and accommodation of because QEP admitted that the payment forces, the Army National Guard and the veterans, but they should be aware of the of the royalties to the Moores (instead of Air National Guard, the commissioned technical aspects required by law, especial- the Moores’ business) was its own internal corps of the Public Health Service, and any ly because noncompliance could generate error, those claims were not valid and, thus, other category of persons designated by the negative publicity while also subjecting the should be dismissed. On the attorneys’ fee president in time of war or emergency.” employer to suit, potentially with the par- issue, the court dismissed the claim because An employer may request that the vet- ish’s district attorney as its opponent. QEP abandoned it in its opposition briefing. eran employee verify his attendance at a medical appointment by presenting “a —Kathlyn Perez Bethune Assumption of a Seismic bill, receipt, or excuse from the medical Member, LSBA Labor and provider.” The law does not state how the Employment Law Section License time should be counted or that such time Baker, Donelson, Bearman, would not count as sick or personal leave. Caldwell & Berkowitz, P.C. In re Virgin Offshore USA, Inc., ____ Therefore, employers likely can deduct the Ste. 3600, 201 St. Charles Ave. F.Supp.2d ____, 2013 WL 4854312 (E.D. leave for medical appointments from the New Orleans, LA 70170 La. 2013). employee’s usual sick or personal leave, This case involved the assumption of a similar to how employers often count time seismic license by a trustee for a bankruptcy off taken under the Family Medical Leave debtor, pursuant to 11 U.S.C. §365(c). TGS- Act (FMLA). However, if the employee NOPEC Geophysical Co., L.P. (TGSN) has exhausted his sick or personal leave, granted a non-exclusive license to Virgin the statute would prohibit the employer Mineral Offshore to review and use certain seismic from then using those absences as a basis Law data gathered by TGSN covering Ship for discipline or termination. Shoal 153 (OCS-G 18011). Virgin made a Even absent this new statute, veterans one-time payment as consideration for the may have leave rights. To the extent that the seismic license. Eight years later, a petition medical appointment is for medical treat- Mineral Lease Royalties for involuntary Chapter 11 bankruptcy was ment, rather than just to meet the require- filed against Virgin by a number of oil and ments to obtain benefits, other federal leave Moore Family Resources, L.L.C. v. QEP gas service companies. The trustee for Virgin and accommodation statutes may apply. Energy Co., ____ F.Supp.2d ____, 2013 moved to assume the TGSN seismic license. For example, the veteran may have a “se- WL 4851693 (W.D. La. 2013). The bankruptcy court granted the trustee’s rious health condition” that would qualify The Moores owned property in Bienville motion over TGSN’s opposition. TGSN ap- for intermittent leave for medical appoint- Parish. A portion of the property — 433 pealed the ruling to the district court. ments under the FMLA, or a disability acres — was covered by a mineral lease The crux of TGSN’s argument on appeal that may require accommodation over and originally let to Petro-Chem Operating Co. rested on the application and interpretation of above the FMLA under the Americans with Petro-Chem later transferred the lease to QEP 11 U.S.C. § 365(c) of the Bankruptcy Code. Disability Act. Energy. Months after, QEP mistakenly sent Under that provision, a mover must prove the However, in some circumstances, a royalty check to the Moores in the amount following in order to assume a contract: (1) whether the federal laws would apply may of $330,673.73. The check should have been that the contract is executory, (2) that some be less clear — one example may be if the issued to the family’s company, Moore Fam- non-bankruptcy law applies, (3) that such medical appointment was necessary only ily Resources, L.L.C. The Moores, however, non-bankruptcy law bars assignment, (4) that for filling out paperwork and did not impli- kept the money and refused to return the funds such non-bankruptcy law bars assumption, cate any actual medical need. In addition, if to QEP. Because of this, QEP withheld pay- and (5) that the mover does not consent to the the employer does not employ more than ment of future royalties to the Moores. The assumption of the contract. The district court 50 people, the employee has not worked for Moores sued QEP for breach of the mineral analyzed each of these factors, concluded the employer for more than a year, or if the lease in state court. QEP removed the case that 11 U.S.C. § 365(c) did not apply and, employee has not worked more than 1,250 to federal court and filed a counterclaim, therefore, affirmed the bankruptcy court’s hours in the preceding year, the employer asserting multiple claims. ruling because Section 365 could not bar would not be subject to the FMLA, and the Pursuant to Federal Rule of Civil Pro- the assumption. new Act would not provide protection for cedure 12, the Moores moved to dismiss The court made the following findings. that person’s job. claims that QEP had asserted for fraud and As to the first factor, the district court found
Louisiana Bar Journal Vol. 61, No. 4 297 that the law supported the proposition that Louisiana State University a panel to review the healthcare providers’ the license was an executory contract, de- Paul M. Hebert Law Center conduct, claiming a delay in treatment. On spite Virgin’s one-time payment to use the 1 E. Campus Dr. Nov. 20, 2009, they amended their request seismic data. As to the second factor, the Baton Rouge, LA 70803 to add Dexcomm for its contribution to the district court found that TGSN’s argument and delayed treatment. On Dec. 7, 2009, the PCF that seismic data is “copyrightable” was Colleen C. Jarrott notified the Milberts that Dexcomm was not unavailing, because (1) the license itself Member, LSBA Mineral Law Section a qualified healthcare provider, following stated that the data constituted trade secrets Slattery, Marino & Roberts, A.P.L.C. which they filed a lawsuit against Dexcomm and (2) TGSN did not provide enough proof Ste. 1800, 1100 Poydras St. on Dec. 23, 2009. On Dec. 14, 2011, after to allow the court to determine whether the New Orleans, LA 70163 rendition of the panel’s opinion, the Milberts data was in fact copyrightable. Regarding filed a lawsuit against the healthcare provid- the third factor, the district court found that ers, followed by a motion to consolidate the even if copyright law did apply, it would bar two lawsuits. assignment of the license because intellectual Professional Dexcomm filed a motion for summary property licenses do not bestow ownership Liability judgment, alleging the claims against it for the rights and, thus, cannot be assigned without Sept. 27, 2008, phone call mixups sounded the consent of the licensor. As to the fourth in general negligence and that the lawsuit, factor, the court, relying on U.S. 5th Circuit which was filed more than one year after that precedent, applied the “actual test” (versus Does the MMA Affect date, was prescribed. The Milberts countered “hypothetical test”) under Section 365(c) Prescription Rights of that Dexcomm was a joint tortfeasor with the and found that because the trustee had no healthcare providers named in their panel intention of assigning the license to a third- Non-Healthcare Providers? request and their suit against Dexcomm party, the trustee could assume the license. was filed while prescription was suspended Finally, as to the fifth factor, the district court Milbert v. Answering Bureau, Inc., 13-0022 against all joint tortfeasors, pursuant to La. found, despite having conducted an analysis (La. 6/28/13), 120 So.3d 678. R.S.40:1299.47(A)(2)(a). That statute pro- under Section 365, that that law did not apply Following surgery, Milbert was dis- vides that prescription is suspended “against because the license itself said that the trustee charged from Lafayette General Medical all joint and solidary obligors, and all joint could “use” the seismic data. Section 365(c) Center (LGMC) on Sept. 7, 2008. Two days tortfeasors, including but not limited to health is relevant only when the contract is silent later, Milbert’s wife phoned the surgeon to care providers, both qualified and not quali- on permission; here, the contract expressly complain of complications. The call was fied, to the same extent that prescription is permitted use of the data. Thus, the court automatically routed to the surgeon’s answer- suspended against the party or parties that affirmed the bankruptcy court’s ruling regard- ing service (Dexcomm). The surgeon then are the subject of the request for review.” ing assumption of the license. contacted Milbert and told him to call if his The district court judge granted Dex- pain worsened. comm’s motion for summary judgment Notice-and-Cure The next day, Milbert’s pain worsened. because the action was prescribed, irrespec- Mrs. Milbert called Dexcomm, but after not tive of whether Dexcomm was “joint and Provision receiving the surgeon’s return call within a several or not,” and because the alleged few minutes, the Milberts went to LGMC’s negligence of Dexcomm was dissimilar to Jumonville v. Sunset Petroleum, Inc., 13- emergency room. No physician examined medical malpractice such that the MMA’s 0895 (La. App. 1 Cir. 9/13/13) (unpublished). him for hours. prescription statutes should not apply. The The Louisiana 1st Circuit Court of Appeal A surgeon had received Dexcomm’s judge also decided that the Milberts became upheld a district court judgment, which, in message, called the Milberts and got their aware of Dexcomm’s failures to forward the part, stayed the case based on a notice-and- voice mail. He then asked Dexcomm to phone messages on the day of those failures cure provision in a terminated lease. The call his mobile phone if the Milberts called — Sept. 7, 2008. appellate court stated that “[t]he trial court again. The Milberts continued calling Dex- The appellate court affirmed the district correctly found that the notice provision of comm from the emergency room. In one of court’s ruling in a 2-1 decision, with the the lease [which terminated prior to the filing those calls, Dexcomm said “office policy” majority deciding that Dexcomm was nei- of the action] . . . requires that respondents prevented it from taking any additional steps ther a healthcare provider, a joint or solidary are entitled to notice and opportunity to cure because Milbert was already in an emergency obligor with a healthcare provider nor a joint before an action can proceed.” This ruling is room. Dexcomm never notified the surgeon tortfeasor with a healthcare provider. significant because in many legacy lawsuits of Milbert’s phone calls from the hospital, The Louisiana Supreme Court granted such provisions, particularly in a terminated but he was eventually contacted by LGMC, certiorari and reviewed the MMA’s prescrip- lease, are rarely recognized by the courts. following which he promptly saw Milbert, tion statute. It wrote that healthcare providers diagnosed right leg compartment syndrome who are not qualified under the MMA — and, —Keith B. Hall and ordered emergency surgery. therefore, not protected by the cap — are Member, LSBA Mineral Law Section On Aug. 28, 2009, the Milberts requested nonetheless covered by the MMA’s provi-
298 December 2013 / January 2014 sions relating to suspension and the running Dexcomm then argued this interpreta- a service has duties that include the risk that of prescription of actions against a qualified tion of the statute “impermissibly” extends delay or accuracy of a message could result healthcare provider. According to the court, prescription, i.e., plaintiffs in some circum- in harm to a patient. La. R.S. 40:1299.47(A)(2)(a) “provides for stances will have a longer time to file suit The court found that the Milberts were not the suspension of time within which suit must against non-healthcare providers than they precluded, as a matter of law, from includ- be instituted for joining solidary obligors, and ordinarily would. Perhaps, said the court, ing Dexcomm as a joint tortfeasor with the all joint tortfeasors, including qualified and but that consequence “is a direct result of the healthcare providers, stating: not qualified health care providers during the language and clear legislative intent of [the pendency of a timely filed medical review statute]. As such, these arguments are more We find a non-health care provider panel complaint.” appropriately addressed to the legislature.” may be a joint tortfeasor with a health Dexcomm contended that the statute ap- The Milberts claimed that Dexcomm’s care provider against whom a medi- plied only against joint tortfeasors who are negligence occurred on Sept. 7, 2008, and cal malpractice complaint has been also healthcare providers. The court noted that all of the injuries sustained by them were filed, such that the suspension of the the Legislature’s “expansive language” in the result of the combined joint and several time limitations for filing suit under creating this law is not limited to only the negligence of Dexcomm and the healthcare La. R.S. 40:1299.47(A)(2)(a) may two types of healthcare providers (qualified providers against whom they had timely apply to the filing of suit against the and not qualified). The court stated that the filed a panel request (on Aug. 28, 2009). The non-healthcare provider. Applying legislation’s expansive language in La. R.S. panel rendered its opinion on Sept. 14, 2011. La.R.S. 40:1299.47(A)(2)(a) to the 40:1299.41(A)(2)(a): The Milberts sued Dexcomm, alleging joint facts of this case, we hold the petition liability with the healthcare providers, on was filed timely. Under the asserted clearly means the two types of health Dec. 23, 2009, prior to the rendition of the facts of this case, we further find the care providers are a part or subset of panel’s opinion and prior to the expiration plaintiffs are not precluded as a matter a larger set or group . . . and that this of the time for filing suit after the opinion of law from asserting the defendant larger group of obligors and tortfeasors was rendered. is a joint tortfeasor with health care may also include entities other than Dexcomm countered that it did not owe providers against whom a medical healthcare providers. There is no limi- the same duty to the Milberts as did the health- malpractice claim was filed. tation or restriction in the legislation as care providers. Its responsibility was simply to who may be a joint tortfeasor. We to relay telephone calls. Any duty owed to the The summary judgment granted by the will not read into the statute a limita- Milberts was not encompassed by the risk district court and affirmed by the court of ap- tion which does not exist. Nothing in of medical malpractice committed before or peal was reversed, and the case was remanded the language of the statute prohibits a after its alleged negligence. The court thought to the district court. non-healthcare provider from being otherwise: Dexcomm had a duty to act as a a joint tortfeasor with a health care “reasonable physician answering service.” —Robert J. David provider . . . . It was required promptly and accurately to Gainsburgh, Benjamin, David, Meunier report messages to the appropriate physi- & Warshauer, L.L.C. Section 47(A)(2)(a) suspends prescrip- cian/healthcare provider. Under the duty/ Ste. 2800, 1100 Poydras St. tion for no less than 90 days following risk analysis, it is reasonable to expect such New Orleans, LA 70163-2800 notification of the opinion of a medical- review panel or of the nonqualified status of a healthcare provider. The second sentence Important Reminder: Lawyer Advertising of (A)(2)(a) indicates the Legislature’s preference that the same time limitation ap- Filing Requirement plies to all defendants, i.e., a panel request Per Rule 7.7 of the Louisiana Rules will expose the advertising lawyer(s) to risk or malpractice claim against the healthcare of Professional Conduct, all lawyer of challenge, complaint and/or disciplinary provider, whether qualified or not, suspends advertisements and all unsolicited written consequences. the running of prescription “to the same communications sent in compliance with The necessary Filing Application Form, extent that prescription is suspended against Rule 7.4 or 7.6(c) — unless specifically information about the filing and evaluation the party or parties that are the subject of the exempt under Rule 7.8 — are required to be process, the required filing fee(s) and the pertinent request for review.” This legislation produces filed with the LSBA Rules of Professional Rules are available online at: http://www.lsba. the imminently practical result that allega- Conduct Committee, through LSBA Ethics org/members/LawyerAdvertising.aspx. tions of joint or concurrent negligence may Counsel, prior to or concurrent with first Inquiries, questions and requests for be determined at the same time. use/dissemination. Written evaluation assistance may be directed to LSBA The court also found support for its hold- for compliance with the Rules will be Ethics Counsel Richard P. Lemmler, Jr., ing in its earlier opinion in Borel v. Young, provided within 30 days of receipt of a [email protected], (800)421-5722, 07-0419 (La. 11/27/07), 989 So.2d. 42 (on complete filing. Failure to file/late filing ext. 144, or direct dial (504)619-0144. rehearing).
Louisiana Bar Journal Vol. 61, No. 4 299 as it did under Revised Procedure 2003- request the application of Code Section 61. Additionally, any significant benefit 6015(b) or Code Section 6015(c)) as part a requesting spouse may have received of the collection-due-process hearing Taxation from the unpaid tax or understatement (CDP) procedures under Code Sections will be neutral if the nonrequesting spouse 6320 and 6330. However, a requesting abused the requesting spouse or maintained spouse may not seek Code Section 6015 financial control and made the decisions relief during a CDP hearing if the IRS had regarding living a more lavish lifestyle. previously ruled on the issue by making a Federal: IRS Updates Compliance with the federal income-tax final administrative determination. Equitable Innocent laws is now a factor that weighs in favor The proposed regulations on deadlines of relief, instead of being neutral as under were effective July 25, 2011, the date that Spouse Relief Revised Procedure 2003-61. Notice 2011-70 was issued. Otherwise, the Procedures Streamlined Determinations. Revised proposed regulations will be effective when Procedure 2013-34 also describes when the they are published as final regulations. On Sept. 17, 2013, the IRS issued IRS will make streamlined determinations updated guidance for taxpayers seeking granting equitable innocent-spouse relief. —Caroline D. Lafourcade equitable relief from income-tax liability Revised Procedure 2013-34 is effective for Vice Chair, LSBA Taxation Section under Code Sections 66(c) or 6015(f) to requests for relief filed on or after Sept. The Mayhall Law Firm, A.P.L.C. reflect some taxpayer-friendly changes 16, 2013. In addition, the procedure is 19349 North 12th St. in timing restrictions, the presence of effective for requests for equitable relief Covington, LA 70433 abuse, and the weight of other factors. pending on Sept. 16, 2013, whether with Revised Procedure 2013-34 supersedes the Service, the IRS Office of Appeals or State: Service Revised Procedure 2003-61. The agency in a case docketed with a federal court. also described procedures for streamlined Revised Procedure 2003-61, 2003-2 CB Requirements for determinations. 296, is superseded. Petition for Judicial Abuse. Revised Procedure 2013-34 is Deadline for Requesting Innocent intended to give greater deference to the Spouse Relief. The IRS issued proposed Review Met presence of abuse than Revised Procedure regulations on Aug. 13, 2013, reflecting Bridges v. Bullock, 48,231, (La. App. 2003-61, when its presence impacts the its decision in Notice 2011-70 to remove 2 Cir. 9/25/13), ____ So.3d ____, 2013 analysis of other factors. Now, if the re- the two-year deadline for requesting Code WL 5345630. questing spouse establishes that he or she Section 6015(f) equitable innocent-spouse Kenneth and Margret Bullock filed a was the victim of abuse not amounting to relief. NPRM REG-132251-11. The IRS petition at the Louisiana Board of Tax duress, then depending on the facts and had provided transitional rules in Notice Appeals for review of the Louisiana De- circumstances of the requesting spouse’s 2011-70 pending issuance of proposed partment of Revenue’s (LDR) denial of situation, the abuse may result in certain regulations. their administrative claim for refund. The factors weighing in favor of relief when The proposed regulations would amend Board ruled in favor of the Bullocks, and otherwise the factor may have weighed Reg. Section 1.6015-5 and Reg. Section LDR filed a petition for judicial review. against relief. Abuse may include physi- 1.66-4 on the time and manner for request- The Bullocks filed numerous exceptions cal, psychological, sexual or emotional ing relief from joint and several liability and sought an involuntary dismissal on abuse, including efforts to control, isolate, pursuant to Code Section 6015(f) or for the basis that service of the petition for humiliate and intimidate the requesting requesting relief from taxes on community review on the Bullocks’ counsel of record spouse, or to undermine the requesting income of which the spouse reasonably had in the proceedings before the BTA was spouse’s ability to reason independently no knowledge pursuant to Code Section not proper service of an original petition and be able to do what is required under 66(c). In accordance with Notice 2011-70, that commences a civil action. The district the federal tax laws. the proposed regulations would remove the court granted the Bullocks’ motion for Factors. Revised Procedure 2013-34 two-year deadline for requesting relief to be involuntary dismissal on the basis that includes factors designed as guides and not replaced with a requirement that a request the LDR had neither requested nor made an exclusive list. Under Revised Procedure for equitable innocent-spouse relief must service on the Bullocks or a proper agent 2013-34, lack of a finding of economic be filed with the IRS within the period of for them. The LDR appealed. hardship does not weigh against relief, as limitation in Code Section 6502 for col- The main issue on appeal was whether it did under Revised Procedure 2003-61, lection of tax or the period of limitation in a petition for judicial review is an origi- and instead will be neutral. Revised Pro- Code Section 6511 for a credit or refund of nal petition commencing a civil action cedure 2013-34 also clarifies that actual tax, as applicable to the specific request. subject to involuntary dismissal pursuant knowledge of the item giving rise to an The proposed regulations would also to La. C.C.P. art. 1672(C) and the service understatement or deficiency will no longer provide that a requesting spouse may requirements of La. C.C.P. art. 1201. The be weighed more heavily than other factors, seek equitable innocent-spouse relief (or
300 December 2013 / January 2014 2nd Circuit reversed the judgment of the sales-and-use taxes that the companies notice to pay the assessment, request a hear- district court and remanded the matter for allegedly failed to collect on their taxable ing with the collector, or pay under protest further proceedings, holding: sales, leases and/or repairs. After the district in accordance with La. R.S. 47:337.63. L. courts granted partial summary judgment R.S. 47:337.51(B) further provided that La. R.S. 47:1431, et seq., sets forth a in favor of the tax collectors and declared any “dealer” aggrieved by any findings or procedure by which a taxpayer may the assessments to be final and executory assessment of the collector may, within 30 challenge the collector’s action or judgments of the court that could not be days of the receipt of notice of assessment failure to act on a refund of over- challenged, the 1st Circuit affirmed, but or finding, file a protest with the collector. payment claim and other allowed the 3rd Circuit reversed on the basis of The revised notices issued by the collectors claims. Under this procedure, the deficiency of the notices of assessment and informed the companies of their right to board is the trier of fact, and the dis- lack of evidence to support the summary file protest or file suit within state court trict court exercises appellate review. judgments. All parties applied for writs, within 30 days or pay the amount of the The Bullocks invoked this procedure which the Supreme Court granted. The assessment or pay the amount under the by filing petitions for refunds and court consolidated the cases for argument payment under protest procedure within 60 thus submitted themselves to all the and affirmed the 3rd Circuit’s decision. days. The tax collectors argued that Section process and procedures provided for After issuing revised notices of as- B provides separate notice requirements a determination of their claim, in- sessment to which the companies did not for dealers, but the court disagreed and cluding appellate review before the respond, the tax collectors pursued sum- found that Section A provides mandatory judiciary. The LDR complied with mary proceedings against the companies. notice requirements that must be sent to the requirements of La. R.S. 47:1434 Although tax collectors are not required all taxpayers against whom an assessment in providing the required notice of to issue assessments before bringing a is imposed. Because the notices failed to the petition for judicial review to summary proceeding, the adequacy of the advise the companies they had 60 days to the Bullocks through their counsel notices of assessment was at issue. The request a hearing with the collector, the of record in these proceedings. [W] collectors’ motions for summary judg- court held that the notices of assessment e find that the trial court abused its ment in the summary proceedings were failed to adhere to the strict mandatory discretion in granting the Bullocks’ based solely on the assertions that they requirements of La. R.S. 47:337.51(A) motion for involuntary dismissal followed the statutory requirements of the and did not become final, meaning the tax and in dismissing the petition for assessment procedure and the companies’ collectors were required to support their judicial review. failure to respond made the assessments claims for taxes with evidence. final and equivalent to judgments against —Florence Bonaccorso-Saenz and the companies. —Jaye A. Calhoun and Antonio Charles Ferachi At the time the notices were sent, La. Christie B. Rao Members, LSBA Taxation Section R.S. 47:337.51(A) (prior to its amendment, Members, LSBA Taxation Section Litigation Division, La. Dept. of Revenue effective Jan. 1, 2011) provided that notices McGlinchey Stafford, P.L.L.C. 617 North Third St. of assessment must inform the “taxpayer” 601 Poydras St., 12th Flr. Baton Rouge, LA 70821 that he has 60 days from the date of the New Orleans, LA 70130
Local: Supreme Court Resolves Circuit Split on ULSTC Notice Requirements
The Louisiana Supreme Court resolved a split between the 1st and 3rd Circuits Your call is absolutely regarding the sufficiency of notices of assessment. In Catahoula Parish School confidential as Board v. Louisiana Machinery Co., 12- 2504 (La. 10/15/13), ____ So. 3d ____, a matter of law. 2013 WL 5788749, and Washington Parish Sheriff’s Office v. Louisiana Machinery Co., 13-0583 (La. 10/15/13), ____ So. 3d Call toll-free (866)354-9334 ____, 2013 WL 5788763, the tax collec- tors sued Louisiana Machinery Company and Louisiana Machinery Rentals for Email: [email protected]
Louisiana Bar Journal Vol. 61, No. 4 301 Young Lawyers Chair’s Message... Spotlight
social media post without considering this CHAIR’S MESSAGE paragraph. When your “friend” sends you an obvious legal question over Facebook and you respond, have you violated that The Lawyer’s Oath confidence? What about when you comment on an innocuous question?) By Kyle A. Ferachi 6. To opposing parties and their counsel, True to form, I 2. I will maintain the respect due to I pledge fairness, integrity, and civility, not was going about my courts of justice and judicial officers . . . . only in court, but also in all written and oral daily work when an (Think of this paragraph the next time you communications . . . . (If we all upheld this email arrived from receive a call or email from a colleague or cli- paragraph, no negative comments regarding our friendly Bar staff ent inquiring about a judge or jurisdiction.) lawyers would be made.) reminding me that my column was due 3. I will not counsel or maintain any suit 7. I will abstain from all offensive per- (by due, I mean well or proceeding which shall appear to me to sonality and advance no fact prejudicial past due). Being the be unjust nor any defense except such as to the honor or reputation of a party or kind and forgiving Kyle A. Ferachi I believe to be honestly debatable under witness unless required by the justice of professional staff they the law of the land . . . . (This one is self the cause with which I am charged . . . . are, I was granted a brief extension. The explanatory — I hope.) (For all of us litigators, let’s remember this extension jogged my memory regarding paragraph when we are questioning the 4. I will employ for the purpose of witness during deposition.) something I swore to more than 12 years maintaining the causes confided to me ago — The Lawyer’s Oath. I was privileged such means only as are consistent with 8. I will never reject from any consid- to attend the most recent admissions cer- truth and honor and will never seek to eration personal to myself the cause of emony for our newly admitted members. mislead the judge or jury by any artifice or the defenseless or oppressed or delay any During the ceremony, I heard the Oath for false statement of fact or law . . . . (While person’s cause for lucre or malice. (How the first time since my own swearing-in. this statement seems obvious, what about easy is it to ignore the unsolicited call from The statements in the Oath should not be withholding matters that are true, but do a stranger who you do not want to help, but shelved for annual meetings and admission not support your cause? Is that honorable?) probably could?) ceremonies; instead, we should review the statements as often as possible. 5. I will maintain the confidence and 9. So help me God. We are entering a new year and a new preserve inviolate the secrets of my client year calls for new resolutions. I resolve to and will accept no compensation in con- I hope you accept my challenge and read the Lawyer’s Oath daily before I begin nection with a client’s business except from add the Oath to your resolutions. The first my work. I challenge you to do the same, if the client or with the client’s knowledge and half of the “Bar year” is now over. While not daily, weekly, monthly or at an acceptable approval . . . . (I want to focus on the first it was great, the second half will only be interval to you and your conscience. For your clause that deals with client confidences. In better if we strive to work and live by the convenience, I supply the nine paragraphs today’s world, we are quick to respond to a Oath we all took. below with comments on how the Oath ap- plies to some of today’s challenges. Young Lawyers DIVISION News 1. I solemnly swear (or affirm) I will support the Constitution of the United Get the latest Young Lawyers Division States and the Constitution of the State of Y news online, go to: Louisiana . . . . (We are all well aware of L D www.lsba.org/YLD the U.S. Constitution, but how many of us The Young Lawyers Division Web site is a public service of the consider the Louisiana Constitution when LSBA-YLD Council, providing YLD information to the public and we are advising clients?) communicating with YLD members.
302 December 2013 / January 2014 the Tullis Moot Court Competition, a the board of Hope House of Central Young Lawyers member of the Legal Association for Louisiana, is a member of the Krewe Spotlight Women (Philanthropy chair, 2006-08), of Mariposa and is a parishioner of Our and a participant in the Law Ambassador Lady of Prompt Succor Catholic Church. Lauren Stokes Laborde Recruitment Program, 2006-08. Laborde is married to David Laborde, Alexandria Laborde is the 2013-14 secretary of a CPA at Cleco, a power company in the Alexandria Bar Association’s Young Pineville. They are the parents of two The Louisiana Lawyers Council and a member of the children. Her hobbies are watching her State Bar Association Crossroads American Inn of Court of daughter’s soccer games, spending time (LSBA) Young Alexandria-Pineville. on the back porch with family, fishing Lawyers Division In her community, she serves on and reading. is spotlighting Alexandria attorney Lauren Stokes Laborde. Laborde is an associate in the Lauren Stokes Alexandria office Laborde of the Faircloth Law Group, L.L.C. She began her career as a law clerk to Hon. John C. Davidson and Hon. Harry F. Randow at the 9th Judicial District Court in Alexandria. At Faircloth, she practices in a wide range of litigation matters, including commercial litigation, governmental litigation, general tort litigation, medical malpractice defense, and collection. In addition, she advises clients in matters of Louisiana wills and successions. She is admitted to practice in all Louisiana state courts, the U.S. District Court for the Western, Middle and Eastern Districts of Louisiana, and U.S. 5th Circuit Court of Appeals. She received her BS degree in business administration, magna cum laude, in Lawyers Helping Lawyers 2005 from Northwestern State University in Natchitoches and her JD/bachelor of civil law degree in 2008 from Louisiana Take full advantage of LAP’s professionally moderated Depression State University Paul M. Hebert Law Recovery Groups in New Orleans, Baton Rouge and Shreveport. Center. While in law school, she was Remember, all barriers to entry have been removed: on the Chancellor’s List, a member of ► There is no cost for participation ► No medical records are kept LOUISIANA ► No waiting for weeks or months to get an appointment Bar Today Get the latest LSBA news in the To participate in the Depression Recovery Groups in the free, biweekly emailed update. New Orleans, Baton Rouge, Shreveport and surrounding areas: It’s easy to subscribe. ► call (985)778-0571 or (866)354-9334 Go to: www.lsba.org/goto/LBT ► email [email protected]
Louisiana Bar Journal Vol. 61, No. 4 303 Nomination Deadline is Feb. 14, 2014: Young Lawyers Division Awards Nomination Form The Young Lawyers Division is accepting nominations for the following awards: ► Hon. Michaelle Pitard Wynne Professionalism Award. This award is given to a young lawyer for commitment and dedication to upholding the quality and integrity of the legal profession and consideration towards peers and the general public. ► Outstanding Young Lawyer Award. This award is given to a young lawyer who has made outstanding contributions to the legal profession and his/her community. ► Service to the Public Award. This award is given to a young lawyer local affiliate organization that has implemented a program or provided a service to that local community by which the non-attorney public has been helped. The program or service must be sponsored by the young lawyer local affiliate organization. ► Service to the Bar Award. This award is given to a young lawyer local affiliate organization that has implemented a program or provided a service that has benefited and/or enhanced the attorney community in that area. The program or service must be sponsored by the young lawyer local affiliate organization. ► YLD Pro Bono Award. This award is given to a young lawyer for commitment and dedication to providing pro bono services in his/her community. All entries must include a nomination form, which may not exceed 10 pages. In addition, entries should include a current photo and résumé of the nominee, newspaper clippings, letters of support and other materials pertinent to the nomination. Nomination packets must be submitted to Jennifer H. Johnson, Chair, LSBA Young Lawyers Division Awards Committee, 2400 Forsythe Ave., Ste. 2, Monroe, LA 71201. Any nomination packet that is incomplete or is not received or postmarked on or before Feb. 14, 2014, will not be considered. Please submit detailed and thorough entries, as nominees are evaluated based on the information provided in the nomination packets. All winners will be announced at the combined LSBA Annual Meeting and LSBA/LJC Summer School in Destin, Fla., in June 2014.
1. Award nominee is being nominated for: (Individuals/local affiliate organizations may be nominated for more than one award. Please check all that apply. Candidates will only be considered for the award(s) for which they have been nominated.) ____ Hon. Michaelle Pitard Wynne Professionalism ____ Outstanding Young Lawyer ____ Service to the Public ____ Service to the Bar ____ YLD Pro Bono 2. Nominator Information: Name______Address/State/Zip______Telephone/Fax ______E-mail______
3. Nominee Information: Name ______Address/State/Zip ______Telephone/Fax ______E-mail ______Birth Date ______Marital Status/Family Information ______
4. Describe the nominee’s service to the public for the past five years (or longer, if applicable). Include details as to the nature of the service, value to the public, amount of time required, whether nominee’s activities are a part of his/her job duties, and other pertinent information. 5. Describe the nominee’s service to the Louisiana State Bar Association Young Lawyers Division for the past five years. 6. Describe the nominee’s service to the legal profession for the past five years. 7. Describe the nominee’s particular awards and achievements during his/her career. 8. Provide a general description of the nominee’s law practice. 9. Describe what has made the nominee outstanding (answer for Outstanding Young Lawyer Award only). 10. Has the nominee overcome challenges (handicaps, limited resources, etc.)? 11. Why do you believe your nominee deserves this award? 12. Provide other significant information concerning the nominee.
For more information, contact Jennifer H. Johnson at (318)361-3140 or email [email protected].
304 December 2013 / January 2014 Louisiana Center for
LouisianaCENTER FOR LCLCE Law & C ivicEducation LAW & CIVIC EDUCATION Constitution day
Attorney Bobby J. Delise visited with Cecil Cata- Judge Zorraine M. Waguespack visited with stu- los’s students at Edna Karr High School in New Judge W. Ross Foote visited with students at dents at Roseland Elementary Montessori School Orleans. Delise said, “The future’s in good hands Booker T. Washington High School in Shreveport. in Roseland, La. with these young people.” Lawyers/Judges in the Classroom Visit Thousands of Students for Constitution Day o encourage all Americans to D. Robert, Judge Charles Schrumpf, Judge Catholic School, St. Matthew’s Episcopal learn more about the Constitution, Robert L. Segura, Celeste H. Shields, Judge School, West Monroe High, Westgate High Congress established Constitution Cameron B. Simmons, Judge Sheva M. and Woodlawn Leadership Academy. Day to be celebrated each year Sims, Judge Daniel E. Stretcher, Judge Parris Participating teachers included Daryl Ad- Ton Sept. 17, the date when delegates to the A. Taylor, Judge Zorraine M. Waguespack, ams, Charles Baird, Mary Barnes, Barbara Convention signed the Constitution. In ob- Judge Lisa M. Woodruff-White and Judge Bellar, Jimmy Benton, Ellis Bonaventure, servance of Constitution Day, the Lawyers/ H. Stephens Winters. Darnell Boudreaux, Cecil Catalos, Valerie Judges in the Classroom Program organized Participating schools included Arch- Comeaux, Grason Cooper, Rebecca Denton, 76 in-school presentations statewide, reach- bishop Hannan High, Belaire High, Belle Laurie Duhon, Karen Embanato, Gregory ing more than 4,400 students. Chasse High, Booker T. Washington High, Gilyard, Sergio Guzman, Patty Hamilton, Constitution Day presenters included Bowling Green School, Cabrini High, Caddo Juli Hartley, Charlotte Hinson, Sherice Judge Candice B. Anderson, Judge Reginald Magnet High, Central Middle, Claiborne Hurst, Rainey Iasigi, Kimberly James, T. Badeaux III, Judge Pamela J. Baker, Fundamental Magnet Elementary, Clear- Tressa Laird, David Locker, Meaghan Long, Judge Vincent J. Borne, Charles C. (Chuck) wood Junior High, Devall Middle, East Netosha MacDonald, Mitzi Murray, Karen Bourque, Jr., Charles H. Braud, Jr., Jessica Iberville High, Eden Gardens Magnet, Edna Olivier, Erica O’Quinn, Erin Orr Ragsdale, G. Braun, Danielle N. Brown, J. Bruce Karr High, Folsom Junior High, Hammond Esther Pollard, Carla Powell, Karura Rainey, Bryant, Michael J. Busada, Judge Raymond Junior High Magnet, Holy Ghost School, Margaret Ridgeway, Alisa Ross-White, S. (Ray) Childress, Trina T. Chu, David Huntington High, Iberville Math, Science Tara Sibal, Idelia Smith, Gloria Stumpf, L. Colvin, Judge June Berry Darensburg, & Arts Academy East Campus, Iberville Denice Thomas, Tamra Tramonte, Keia Bobby J. Delise, John F. Dillon, Ashly V. Math, Science & Arts Academy West Vanderburg, Casey Vercher, Emily Wagner, Earl, Judge Daniel J. Ellender, Angela M. Campus, Jeanerette Senior High, Jennings Jared Wall, William West, Marie Willis and Elly, William J. (Bill) Flanagan, Judge W. High, Jesus the Good Shepherd School, Max Yuratich. Ross Foote, Judge Ernestine S. Gray, A. John Curtis Christian School, Joseph J. The Louisiana Center for Law and Civic Spencer Gulden, Jack P. Harrison, Rodney Davies Elementary, Judge Lionel R. Col- Education (LCLCE) partners with the Loui- B. Hastings, Frances E. Hewitt, Thomas J. lins Montessori, Lee High STEM and VPA siana State Bar Association and the Loui- (Tom) Hogan, Jr., Lila T. Hogan, Becky Jo Magnet Academy, Lee Road Junior High, siana District Judges Association to bring Hollen, Judge Patricia E. Koch, Judge B. Live Oak Middle, Montessori Educational volunteer lawyers, judges and educators Scott Leehy, J. Clay LeJeune, Erin M. Lorio, Center, New Iberia Senior High, North together to deliver interactive, law-related Ben R. Miller, Jr., Mark A. Myers, Judge A. Crowley Elementary, Our Lady’s School, presentations to Louisiana schools through Jim Norris, Nancy A. Nungesser, Patrice W. Park Forest Middle, Ponchatoula Junior the Lawyers in the Classroom/Judges in the (Patti) Oppenheim, Corey P. Parenton, Judge High, Roseland Elementary Montessori, Classroom programs. For more information, Michael A. (Mike) Pitman, DeVonna M. Slidell High, St. Anthony of Padua School, visit the LCLCE website, www.lalce.org. Ponthieu, Judge J. Wilson Rambo, Deidre St. Helena Central High, St. John Berchmans
Louisiana Bar Journal Vol. 61, No. 4 305 JUDICIAL Notes By Robert Gunn, Louisiana Supreme Court New Judges... Retirements
New Judges maintained since 1994. He is a member of of Juvenile and Family Court Judges and the Bossier, Webster and Shreveport bar served as chair of the Louisiana Children’s Michael P. Men- associations. He served as president of the Code Project. She served on the Judicial tz was elected as Bossier Bar Association from 2003-05. He Council of the Louisiana Supreme Court, judge of Division F, is married to Suzanne Nerren and they are the Judicial Budgetary Control Board, 24th Judicial District the parents of three children. the Juvenile Courts Subcommittee of the Court, Jefferson Par- Raylyn R. Beev- Louisiana Judicial Planning Committee ish. He earned his ers was elected as and the State Liaison Committee with BS degree in 1978 judge of Division the Department of Corrections and the from Louisiana State B, 2nd Parish Court Department of Social Services. She was University and his JD of Jefferson. She co-lead judge of the Louisiana Task Force degree in 1981 from Michael P. Mentz earned her BS de- for Foster Care Reform, a pilot program Loyola University gree in 1986 from the for Citizen Review of Foster Care, and Law School. From University of New chair of the Juvenile Judges’ Benchbook 1981-2013, he was an attorney in the firm Orleans and her JD Committee. of Hailey, McNamara, Hall, Larmann & degree in 1997 from Raylyn R. Beevers ► Orleans Parish Criminal District Papale, L.L.P., where he was a managing Loyola University Court Magistrate Judge Gerard J. Hansen partner from 1999-2013. He has served Law School, where retired effective Oct. 31. He received his on a number of committees, including she was a member of the Moot Court and BBA degree in 1961 from Loyola Uni- the Louisiana State Bar Association’s Moot Court Board. Following law school versity and his JD degree in 1964 from Legal Malpractice Insurance Committee graduation, she became a partner in Beev- Loyola University Law School. Following from 1996-present, the Committee on ers & Beevers, L.L.P., in 1998. From 2008 law school, he practiced law from 1964- Professional Economics and Law Office through August 2013, she served on the 70 with the firm of Landrieu, Calogero Management from 1988-90, the Jefferson Gretna City Council, representing District & Kronlage and was in private practice Parish Crime Prevention and Reduction 4. She has been a member of the LSBA’s from 1970-78. From 1970-74, he was an Task Force from 2006-present and the House of Delegates (2001-03 and 2011- assistant city attorney for the City of New Jefferson Parish Housing Authority from 13), the LSBA’s Civil Law and Litigation Orleans, where he was chief prosecutor 2011-12. He is married to Wendy Martin Section (treasurer from 2004-present) and for traffic court from 1970-73 and chief Mentz and they are the parents of two the LSBA Bench and Bar Section (2005- of the Criminal Division in the City At- children. 06). She is married to Wiley J. Beevers torney’s Office from 1973-74. He served Michael Nerren and they are the parents of two children. as judge ad hoc in traffic and municipal was elected as judge courts in New Orleans from 1971-74. In of Division E, 26th Ju- Retirements 1974, he was appointed commissioner of dicial District Court, the Magistrate Section for Orleans Par- Bossier and Webster ► Jefferson Parish Juvenile Court Chief ish Criminal District Court. In 1978, he parishes. He earned Judge Nancy Amato Konrad retired effec- was elected magistrate judge of Criminal his undergraduate tive Oct. 31. She earned her BS degree in District Court, where he presided until his degree in 1989 from 1962 from Loyola University and her JD retirement. During his time on the bench, Louisiana State Uni- degree in 1965 from Loyola University he helped develop that court’s Drug Court versity-Shreveport Michael Nerren Law School. She served as judge ad hoc program. and his JD degree in in Section B of Jefferson Parish Juvenile ► 14th Judicial District Court Judge 1994 from LSU Paul Court from 1976-80, making her the first Wilford D. Carter retired effective Oct. M. Hebert Law Center. Prior to his elec- female judge in Jefferson Parish. In 1980, 31. He received his BS degree in 1972 tion to the bench, he served as an assistant she was elected to Section C of that same from McNeese State University and his district attorney in the 26th JDC, working court, which she presided over until her JD degree in 1975 from Southern Uni- with that office’s Juvenile Division, in retirement. She has been a member and versity Law Center. From 1975-92, he addition to his private practice, which he past president of the Louisiana Council was a sole practitioner. During that time,
306 December 2013 / January 2014 he also served on the Lake Charles City Deaths in the practice of law from 1949-61, when Council, representing District B (1977-80) he took office as judge of Orleans Parish and District A (1980-83), holding the of- ► Retired 24th Judicial District Court Juvenile Court, serving there until 1970. In fice of president in 1982. In 1983, he was Judge Floyd W. Newlin, 95, died Aug. 24. 1970, he joined the bench of the 4th Circuit elected as Louisiana State representative He was elected to Division F of the 24th Court of Appeal and served there until his for District 34, serving until 1992. He took JDC in 1966 and served there until his retirement in 1988. He was past president his oath in 1992 as judge of Division F on retirement in 1987. He was a graduate of of the National Council of Juvenile and the 14th JDC, becoming one of the first Tulane University Law School, where he Family Court Judges and the Louisiana African-American judges on that court. earned his LLB degree. He also attended Council of Juvenile Court Judges, vice He served there until his retirement. Harvard Law School. He served from president of the International Association 1942-46 in the U.S. Army, attaining the of Youth Magistrates, and the former chair Appointments rank of first lieutenant. He was in the prac- of the Juvenile Delinquency Committee tice of law in Jefferson Parish and served Section of Criminal Law, American Bar ► Melanie C. Lockett and Carl J. as an assistant district attorney prior to his Association. He was the recipient of sev- Servat III were appointed, by order of the election to the bench eral awards, including the Louisiana State Louisiana Supreme Court, to the Louisiana ► Retired 4th Circuit Court of Appeal Bar Association’s President’s Award, the Board of Legal Specialization for terms of Chief Judge James C. Gulotta, Sr., 89, died Louisiana Bar Foundation’s Distinguished office ending on June 30, 2016. Aug. 31. He was a U.S. Army veteran, Jurist Award and the Metropolitan Crime ► Monique Babin Clement was reap- serving in the Pacific Theatre during World Commission Award in Recognition of pointed, by order of the Louisiana Supreme War II, and was awarded the Silver Star Extraordinary Service to Law Enforcement Court, to the Louisiana Board of Legal Medal. He earned his BA degree in 1947 and Criminal Justice. Specialization for a term of office ending from Tulane University and his LLB degree on June 30, 2016. in 1949 from Tulane Law School. He was Save the dates!
n the legal community the more you know, the faster you’ll get ahead. That’s why the Louisiana State Bar Association offers a variety of seminars on a wide range of legal topics. Enrolling in them will help you stay competitive and keep up with the ever-changing laws. The Continuing Legal Education Program Committee sponsors more than 20 programs each year, ranging from 15-hour credit Iseminars to one-hour ethics classes. Check online for the most up-to-date list of upcoming seminars at www.lsba.org/CLE. Upcoming LSBA CLE Seminars
MDL CLE Immigration Law CLE March 14, 2014 April 4, 2014 Westin Canal Place Hotel Sheraton New Orleans Hotel
Healthcare Law CLE Mineral Law CLE March 14, 2014 April 11, 2014 Sheraton New Orleans Hotel New Orleans
LSBA Uncorked CLE French Quarter Fest CLE: 5th Annual White Collar March 24 - 26, 2014 Crime Symposium Sonoma, California April 11, 2014 Westin Canal Place Hotel
For up-to-date information, visit www.lsba.org/CLE
Louisiana Bar Journal Vol. 61, No. 4 307 People LAWYERS ON THE MOVE . . . NEWSMAKERS
Duplass, Zwain, Bourgeois, Pfister & Nashville, Tenn., announces that Timo- LAWYERS ON Weinstock, A.P.L.C., in Metairie an- thy R.W. Kappel has joined the firm as THE MOVE nounces that Rachel S. Guttmann has of counsel. joined the firm as an associate. Gregory P. Aycock announces the opening Lee, Futrell & Perles, L.L.P., in New of Aycock Law Firm, L.L.C., located at Donna Y. Frazier has been appointed by the Orleans announces that M. Scott Min- Two United Plaza, Ste. 702, 8550 United Caddo Parish Commission in Shreveport as yard, Daphne M. Lancaster, Bradley M. Plaza Blvd., Baton Rouge, LA 70809; parish attorney. The first woman to serve Smolkin, Darren M. Guillot and Michael J. phone (225)610-1069; website www. as parish attorney, Frazier has worked as Sepanik are now associated with the firm. aycocklawfirm.com. the assistant parish attorney for the past eight years. Liskow & Lewis, A.P.L.C., announces that Baker, Donelson, Bearman, Caldwell & Julie S. Chauvin has joined the firm as an Berkowitz, P.C., announces that Stephanie Gordon, Arata, McCollam, Duplantis & associate in the Lafayette office. Noriea Murphy has joined the firm as an Eagan, L.L.C., announces that Victor M. associate in the New Orleans office. Jones has joined the firm as an associate Michael J. Maginnis announces the re- in the New Orleans office. location of his offices, The Maginnis Law Curry & Friend, P.L.C., announces that Firm, L.L.C., to Pontchartrain Place, Ste. C, Meredith M. Miceli has been named a The Javier Law Firm, L.LC., in New Or- 1502 W. Causeway Approach, Mandeville, partner in the New Orleans office and leans announces that Bobby M. Harges LA 70471; phone (504)267-8891. Barbara L. Bossetta has been named a has joined the firm as of counsel. partner in the Covington office. Montgomery Barnett, L.L.P., in New King Krebs & Jurgens, P.L.L.C., in New Orleans announces that Edward L. (Ted) Domengeaux Wright Roy & Edwards, Orleans announces that Fabian M. Neh- Fenasci has joined the firm. L.L.C., in Lafayette announces that rbass has joined the firm as an associate. Andrew J. Quackenbos has joined the Mark D. Pearce was named general counsel firm as a member. Lassiter, Tidwell & Davis, P.L.L.C., in of Cleco Power, L.L.C., in Pineville. The
Richard J. Arsenault Barbara L. Bossetta W. Glenn Burns Robert J. David Stevan C. Dittman Douglas S. Draper
Toni J. Ellington Lillian E. Eyrich Edward L. Fenasci Peter M. Gahagan Bobby M. Harges Fred L. Herman
308 December 2013 / January 2014 company is a subsidiary of Cleco Corp. Nancy Scott Degan, a shareholder in the New NEWSMAKERS NEWSMAKERS Orleans office of Baker, Donelson, Bearman, Plauché Maselli Parkerson, L.L.P., in Richard J. Arsenault, a partner in the Caldwell & Berkowitz, P.C., is serving as New Orleans announces that Peter M. Alexandria firm of Neblett, Beard & Arse- chair-elect for the American Bar Association’s Gahagan, Jessica S. Savoie and Conrad nault, chaired the Sept. 20 Louisiana State Section of Litigation. She will become chair C. Rolling II have joined the firm as as- Bar Association’s 20th annual Admiralty at the 2014 ABA Annual Meeting. sociates. Symposium in New Orleans and the Nov. 22 13th annual Complex Litigation Symposium Caroline McSherry (Sherry) Dolan, of Preis & Roy, P.L.C., announces that John in New Orleans. counsel in the New Orleans office of Baker, E. Simmons has joined the firm’s Lafay- Donelson, Bearman, Caldwell & Berkowitz, ette office. Pamela W. Carter, founder of Carter Law P.C., was appointed to the American Bar Group, L.L.C., in New Orleans, received the Association’s Commission on Homeless- Pugh, Accardo, Haas, Radecker & Carey, Claims and Litigation Management Alliance ness and Poverty. L.L.C., in New Orleans announces that 2013 Litigation Management Professional Jacqueline A. Romero has been named of the Year Award. Lillian E. Eyrich, senior associate in Steeg a partner in the firm. Law Firm, L.L.C., in New Orleans, was ap- James G. Cowles, Jr., assistant U.S. attorney pointed vice chair of the New Orleans Bar Steeg Law Firm, L.L.C., in New Orleans for the Western District of Louisiana in Association’s Real Property Law Committee. announces that Ryan M. McCabe has Shreveport, received the Council of Inspec- joined the firm as an associate. tors General on Integrity and Efficiency U.S. Attorney Stephanie A. Finley, with the Award from Assistant Special Agent-in- Western District of Louisiana in Lafayette, Taggart Morton, L.L.C., in New Orleans charge Carlos Capano, Office of Inspector was the opening plenary speaker for the announces that Toni J. Ellington has General, Houston Division. Blacks in Government 35th annual National joined the firm as a partner. Training Institute in Dallas, Texas. Finley Christine Lasseigne Crow, clerk of court also was appointed by the U.S. Attorney Walters, Papillion, Thomas, Cullens, for the Louisiana 1st Circuit Court of Ap- General to serve as vice chair of the Manage- L.L.C., of Baton Rouge announces that peal in Baton Rouge, was elected treasurer ment and Budget Subcommittee. John S. McLindon has joined the firm as of the National Conference of Appellate of counsel. Court Clerks. Nzinga Hill, supervising attorney of the Orleans Public Defenders’ Child in Need of The Willis Law Group, P.L.L.C., a mul- Christopher O. Davis, a shareholder in the Care Unit, received the 2013 National Legal tistate regional law firm, announces that New Orleans office of Baker, Donelson, Aid and Defender Association’s Reginald W. Glenn Burns has joined the firm as the Bearman, Caldwell & Berkowitz, P.C., Heber Smith Award. The award recognizes New Orleans resident partner. was elected vice president of the Comité the dedication and outstanding achievements Maritime International. of civil or indigent defense attorneys.
Nzinga Hill Warren Horn Michael J. Maginnis David A. Martinez Ryan M. McCabe Gerald E. Meunier
Meredith M. Miceli Walter C. Randy Opotowsky William H. Andrew J. Judge Karen Morrison IV Patrick III Quackenbos Wells Roby
Louisiana Bar Journal Vol. 61, No. 4 309 Louisiana State Rep. Katrina R. Jackson, Roy J. Rodney, Jr., founder and managing School, Louisiana a solo practitioner in Monroe, was named partner of Rodney & Etter, L.L.C., in New State University Legislator of the Year by the Louisiana Orleans, is currently chairing the National Law School and Municipal Association Black Caucus. Bar Association’s Ad Hoc Committee on Judge Advocate Jackson serves as chair of the Louisiana Nonprofits. He and attorney Veronica J. School/University of Legislative Black Caucus. Lam recently authored an article published Virginia. He served in in the ABA Nonprofit Organizations Com- the U.S. Army during Clyde H. Jacob III, a director in the Coats mittee newsletter. the Korean War. Mr. Rose law firm’s New Orleans office, is Hamilton began his serving on the U.S. Chamber of Com- J. Luke Walker, assistant U.S. attorney law practice in Oak Orlando Nicholas merce Labor Relations Committee for for the Western District of Louisiana in Grove in 1954. He (Nick) Hamilton, Jr. his 10th year. Lafayette, received the U.S. Justice De- practiced law for 61 partment’s Child Protection Award at the years. He served on the Louisiana State Kent A. Lambert, a shareholder in the annual National Missing Children’s Day Bar Association’s Board of Governors New Orleans office of Baker, Donelson, commemoration in Washington, D.C. from 1988-90 and in the House of Bearman, Caldwell & Berkowitz, P.C., Delegates from 1984-88 and 1990-2010. was elected as an officer of the American Scott R. Wolf, an attorney in the Shreve- He was an active member of the Louisiana Bar Association’s Section of Litigation port firm of Blanchard, Walker, O’Quin & Attorney Disciplinary Board and served as Council. Roberts, was appointed to serve as chair- president of the Louisiana Trial Lawyers elect of the American Bar Association’s Association. He is survived by his wife, Loulan J. Pitre, Jr., a member in the New Medicine and Law Committee. He also is Charlotte Martin Hamilton, three children, Orleans office of Gordon, Arata, McCol- serving on the editorial board of TortSource grandchildren, great-grandchildren and lam, Duplantis & Eagan, L.L.C., was se- and The Brief, publications of the ABA other relatives. lected to serve as a member of the Mineral Tort Trial and Insurance Practice Section Law-Legacy Disputes Committee of the (TIPS). He is vice chair of TIPS’ Business PUBLICATIONSPUBLICATIONS Louisiana Mineral Law Institute. Litigation Committee and Membership Committee. The Best Lawyers in America 2014 U.S. Magistrate Judge Karen Wells Roby, Adams and Reese, L.L.P. (Baton with the U.S. District Court, Eastern Dis- ININ MEMORIAM MEMORIAM Rouge, New Orleans): Henry B. Alsobrook, trict of Louisiana, was the featured speaker Jr., E. Gregg Barrios, Mark R. Beebe, Philip for Xavier University of Louisiana’s Orlando Nicholas (Nick) Hamilton, Jr., O. Bergeron, Virginia Boulet, Charles A. Founder’s Day in October. Judge Roby is 85, an attorney in Oak Grove, La., died Cerise, Jr., Robin B. Cheatham, V. Thomas a Xavier graduate. Nov. 2. A longtime resident of Oak Grove, Clark, Jr., O. Ray Cornelius, Scott E. Dela- he graduated from Lake Providence High croix, Kathleen F. Drew, John M. Duck, Brooke Duncan III, Richard B. Eason II, Mark S. Embree, Philip A. Franco, A. Kirk Gasperecz, William B. Gaudet, Charles F. Gay, Jr., C. Kevin Hayes, E.L. Henry, Edwin C. Laizer, Leslie A. Lanusse, Francis V. Liantonio, Jr., Joseph W. Looney, Donald C. Massey, Don S. McKinney, Patricia B. McMurray, Malcolm A. Meyer, Robert B. Nolan, Thomas G. O’Brien, Glen M. Pilie, Jane C. Raiford, Daniel K. Rester, Jeffrey Roy J. Rodney, Jr. Conrad C. Rolling II Jacqueline A. Romero Jessica S. Savoie E. Richardson, Edward J. Rice, Jr., James T. Rogers III, Deborah B. Rouen, Robert C. Schmidt, E. Paige Sensenbrenner, Ronald J. Sholes, Mark J. Spansel, Martin A. Stern, Mark C. Surprenant, Janis van Meerveld, Robert A. Vosbein and David M. Wolf. Baker, Donelson, Bearman, Caldwell & Berkowitz, P.C. (Baton Rouge, Mandev- ille, New Orleans): Alissa J. Allison, Edward H. Arnold III, Gerardo R. Barrios, Alton E. Bayard III, Craig L. Caesar, Phyllis G. Robert M. Steeg Charles L. Stern, Jr. Irving J. Warshauer Scott R. Wolf Cancienne, Roy C. Cheatwood, Stephen F.
310 December 2013 / January 2014 Chiccarelli, Robert C. Clotworthy, James H. E. Eagan, Jr., A. Gregory Grimsal, C. Peck Jr., Michael D. Ferachi, R. Marshall Grod- Daigle, Christopher O. Davis, Nancy Scott Hayne, Jr., Terrence K. Knister, Martin ner, Deborah Duplechin Harkins, Mary Degan, Warner J. Delaune, Jr., Robert S. E. Landrieu, Samuel E. Masur, John M. Terrell Joseph, Bennet S. Koren, Christine Emmett, Donna D. Fraiche, Mark W. Frilot, McCollam, David J. Messina, Cynthia Lipsey, Kathleen A. Manning, B. Franklin Monica A. Frois, Steven F. Griffith, Jr., Jan A. Nicholson, Scott A. O’Connor, Louis Martin III, Kai David Midboe, Colvin G. M. Hayden, William H. Howard III, Errol M. Phillips, Loulan J. Pitre, Jr., Gerald Norwood, Jr., Jay M. O’Brien, Erin Fury J. King, Jr., Kenneth M. Klemm, Amelia H. Schiff, Howard E. Sinor, Jr., Marion Parkinson, R. Andrew Patty II, Anthony Williams Koch, M. David Kurtz, Kent A. Welborn Weinstock, V.M. Wheeler III and J. Rollo, Jr., Michael H. Rubin, Stephen Lambert, Jon F. Leyens, Jr., Alexander M. J. Lanier Yeates. P. Strohschein, Kenneth A. Weiss, Dan McIntyre, Jr., Mark W. Mercante, Christo- Heller Draper Patrick & Horn, L.L.C. E. West, Constance Charles Willems and pher G. Morris, William N. Norton, Dickie (New Orleans): Douglas S. Draper, Wil- Gerard E. Wimberly, Jr. W. Patterson, Paul L. Peyronnin, Edward liam H. Patrick III and Warren Horn. Steeg Law Firm, L.L.C. (New Or- B. Poitevent II, James H. Roussel, Danny Law Offices of Fred Herman (New leans): Robert M. Steeg, Lillian E. Eyrich, G. Shaw, Margaret M. Silverstein, Danielle Orleans): Fred L. Herman. David A. Martinez, Randy Opotowsky L. Trostorff, Paul S. West, Anne Derbes Herman, Herman & Katz, L.L.C. and Charles L. Stern, Jr. Wittmann and Matthew A. Woolf. (New Orleans): Leonard A. Davis, Maury Stone Pigman Walther Wittmann, Coats Rose Law Firm (New Orleans): A. Herman, Russ M. Herman, Stephen J. L.L.C. (Baton Rouge, New Orleans): Clyde H. Jacob III, A. Kelton Longwell and Herman, Brian D. Katz, James C. Klick and Hirschel T. Abbott, Jr., Barry W. Ashe, Elizabeth Haecker Ryan. Steven J. Lane. Carmelite M. Bertaut, Stephen G. Bullock, Dué, Price, Guidry, Piedrahita & Leake & Andersson, L.L.P. (Lafayette, Joseph L. Caverly, Douglas J. Cochran, Andrews, P.A. (Baton Rouge): Paul H. New Orleans): W. Paul Andersson, George John W. Colbert, John P. Farnsworth, Dué and Donald W. Price. D. Fagan, Donald E. McKay, Jr., Stanton E. Michael R. Fontham, James C. Gulotta, Gainsburgh, Benjamin, David, Shuler, Jr. and Patrick M. Wartelle. Jr., John M. Landis, Wayne J. Lee, Paul J. Meunier & Warshauer, L.L.C. (New McGlinchey Stafford, P.L.L.C. (Baton Masinter, Michael W. McKay, C. Lawrence Orleans): Robert J. David, Gerald E. Rouge, New Orleans): Richard A. Aguilar, Orlansky, Laura Walker Plunkett, Michael Meunier, Irving J. Warshauer, Stevan Rudy J. Aguilar, Jr., Brad J. Axelrod, Samuel R. Schneider, James E.A. Slaton, Susan G. C. Dittman and Walter C. Morrison IV. A. Bacot, Stephen P. Beiser, Mark N. Bodin, Talley, William D. Treeby, Scott T. Whit- Gordon, Arata, McCollam, Duplantis Jaye A. Calhoun, Rudy J. Cerone, Katherine taker, Rachel Wendt Wisdom, Phillip A. & Eagan, L.L.C. (Baton Rouge, Lafayette, Conklin, Richard A. Curry, Larry Feldman, Wittmann and Paul L. Zimmering. New Orleans, Houston, Texas): Steven W. Copley, Donna Phillips Currault, Bob J. Duplantis, Gregory G. Duplantis, Ewell Pro Bono Heroes: Providing Justice for All People Deadlines & Notes Deadlines for submitting People Doing something for someone who announcements (and photos):
Publication Deadline can never repay you is one of the most April/May 2014 Feb. 4, 2014 June/July 2014 April 4, 2014 Aug./Sept. 2014 June 4, 2014 rewarding experiences in life. It’s what everyone Announcements are published free of should be doing ... not just lawyers charge for members of the Louisiana State Bar Association. Members may publish photos with their announcements who provide pro bono at a cost of $50 per photo. Send announcements, photos and photo services. payments (checks payable to Louisiana – Kasi Brannan State Bar Association) to: Attorney at Law, LLC and volunteer with Southeast Louisiana Legal Services Publications Coordinator North Shore Pro Bono Project Darlene M. LaBranche Covington, LA Louisiana Bar Journal stice 601 St. Charles Ave. Pr ing Ju For New Orleans, LA 70130-3404 ovid A Access to Justice ll or email [email protected]. www.lsba.org/ATJ Louisiana State Bar Association
Louisiana Bar Journal Vol. 61, No. 4 311 News Award... Portrait... lbf
Update Chief Justice Johnson Receives Joan Dempsey Klein Award During NAWJ Conference ouisiana Supreme Court Chief Justice Bernette Joshua John- son was awarded the Joan Dempsey Klein Award by the LNational Association of Women Judges (NAWJ) in a ceremony on Oct. 10. The award presentation was in conjunction with the NAWJ 35th Annual Confer- ence Oct. 9-13 in New Orleans. Nearly 300 judges attended the conference, co-chaired by Chief Justice Johnson and 40th Judicial District Court Judge Mary H. Becnel. The Joan Dempsey Klein NAWJ Honoree of the Year Award is presented to a judge who brings distinction to her office and to NAWJ as exemplified by its founding mother, Justice Joan Dempsey Louisiana Supreme Court Chief Justice Bernette Joshua Johnson, center, was awarded the Joan Dempsey Klein of California’s 2nd District Court Klein Award by the National Association of Women Judges (NAWJ) in a ceremony on Oct. 10. From left, of Appeal. Judge Anna Blackburne-Rigsby, District of Columbia Court of Appeal and 2013-14 NAWJ president; Justice Joan Dempsey Klein, California 2nd District Court of Appeal; Chief Justice Johnson; Washington “The award recognizes Chief Justice Supreme Court Chief Justice Barbara Madsen; and Judge (Ret.) Joan Churchill, Immigration Court, Johnson’s assistance to women judges in Washington, D.C., and NAWJ 2012-13 president. becoming more proficient in their pro- fession, help in solving the legal, social and ethical problems associated with the success with women judges participating mary Ledet and Joyce C. Lobrano; Orleans judiciary, and working to increase the from all states, the District of Columbia, Parish Criminal District Court Judge number of women serving as judges. Chief and countries including Tanzania, Sri Laurie A. White; Orleans Parish Civil Justice Johnson overcame many obstacles Lanka and the Netherlands. The Confer- District Court Judges Ethel Simms Julien, in her judicial career while making im- ence Planning Committee coordinated an Tiffany Gautier Chase and Bernadette G. pressive contributions to women in the outstanding program featuring mediation D’Souza; and 24th Judicial District Court legal profession,” said NAWJ President attorney Kenneth Feinberg and attorney Judge June Berry Darensburg. Joan Churchill. Barbara Arnwine, president and execu- A highlight of the conference was the As the 2013 award recipient, Chief tive director of the Lawyers’ Committee debut of a Louisiana Supreme Court Law Justice Johnson joins a distinguished for Civil Rights Under the Law,” Chief Museum exhibit dedicated to the history list of award honorees, including U.S. Justice Johnson said. of women in the law, “Making History: Supreme Court Justices Sandra Day Also serving on the Conference Plan- Women Judges in Louisiana.” The exhibit O’Connor (1982), Ruth Bader Ginsburg ning Committee were 3rd Circuit Court of will be on display through Women’s His- (2003) and Sonia M. Sotomayor (2009). Appeal Judge Phyllis Montgomery Keaty; tory Month in March 2014. “The NAWJ conference was a huge 4th Circuit Court of Appeal Judges Rose-
312 December 2013 / January 2014 Portrait of Retired Supreme 2013-14 La. District Court Judges Court Justice Dennis Unveiled Association Officers Louisiana Supreme Court Chief Justice Bernette Joshua Johnson joined the fam- Sworn In ily and friends of retired Supreme Court Justice James L. Dennis, now judge for The 2013-14 officers of the Louisiana the U.S. 5th Circuit Court of Appeals, for District Court Judges Association were a ceremony in October to unveil the portrait sworn in at the Fall Judges Conference of Judge Dennis. The portrait will hang in in October. Louisiana Supreme Court the halls of the Louisiana Supreme Court Justice Marcus R. Clark administered the courthouse, alongside portraits of former oath of office. justices dating back to the early 1800s. Judge Raymond S. Childress, 22nd “During his years at the Supreme Court, Judicial District Court, will serve as Judge Dennis had the distinction of serving president; Judge Jules D. Edwards, 15th with four Chief Justices and 11 associate Judicial District Court, first vice president; justices. I remember fondly of my time Judge Marilyn C. Castle, 15th Judicial on the Supreme Court bench with him,” District Court, second vice president; Chief Justice Johnson said. Judge John J. Molaison, 24th Judicial The portrait was presented to the court A portrait of retired Louisiana Supreme Court District Court, secretary; and Judge C. by Judge Dennis’ family during the annual Justice James L. Dennis, now judge for the U.S. Wendell Manning, 4th Judicial District meeting of the Louisiana Supreme Court 5th Circuit Court of Appeals, was unveiled during Court, treasurer. Historical Society. Remarks were provided an October ceremony. Immediate Past President Judge Harry by attorney Donna D. Fraiche, president ticed law in Monroe and served as a state F. Randow, with the 9th Judicial District of the Historical Society, and members representative. In 1974, he was elected to Court, took part in the ceremony. Retired Chief Justice Pascal F. Calogero, the Louisiana 2nd Circuit Court of Appeal. Jr. and Judge Eldon E. Fallon, U.S. District In 1975, he joined the Louisiana Supreme Court for the Eastern District of Louisiana. Court bench as an associate justice, serving Judge Dennis graduated from Louisiana the court for 20 years. In 1995, he was ap- Technical University in 1959, received his pointed by President Bill Clinton to serve law degree from Louisiana State University as a judge for the U.S. 5th Circuit Court of Law School in 1962, and his master’s in Appeals. Judge Dennis, a charter member law from the University of Virginia in of the Historical Society, has served on the 1984. Before being elected judge of the board of directors since 2008. 4th Judicial District Court in 1972, he prac-
The Louisiana State Bar Association’s Francophone Section conducted its annual CLE seminar on Oct. 11 at Vermilionville in Lafayette. Chairing the event was Lafayette attorney James H. Domengeaux, Sec- tion treasurer. Speakers included Louisiana State University Paul M. Hebert Law Center Professor Olivier Moréteau, Benjamin West Janke and Leslie J. Schiff. Following the presentation, there was a panel discussion with Domengeaux, Section Presi- The Shreveport Red Mass Society presented a donation in October to Providence House. From left, dent Warren A. Perrin and Section Vice President Lawrence W. Pettiette, Jr., Shreveport Bar Association president; Rhonda Watts, with Providence House; Louis R. Koerner, Jr. From left, Janke, Koerner and Bishop Michael Duca. Not in photo, John C. Nickelson, Red Mass chair. and Moréteau.
Louisiana Bar Journal Vol. 61, No. 4 313 LOCAL/SPECIALTY BARS
The Jefferson Bar Association Auxiliary (JBAA) presented a check to Renee Haase, center, devel- opment director of Holy Rosary Academy and The New Orleans Bar Association’s Young Law- High School. Funds will be used for the school’s yers Section organized lunch service on Tuesdays Patricia (Patti) Lee, left, was sworn in as 2013-14 educational programs for children with learn- this past October at the Ozanam Inn in New president of the Jefferson Bar Association Aux- ing differences. From left, JBAA Immediate Orleans. Volunteering for a recent lunch service iliary. Administering the oath was new Gretna Past President Bette Rogyom, Haase and JBAA were attorneys, from left, Edward W. Trapolin, Mayor Belinda Constant. President Patricia (Patti) Lee. Sandra L. Sutak, Christopher K. Ralston, Lauren E. Godshall, Christopher D. Wilson and Matthew 2013-14 Jefferson Bar Auxiliary Officers, J. Lindsay. Committee Chairs Installed Send your news! The Louisiana Bar Journal would like The Jefferson Bar Association Auxiliary auxiliary’s philanthropic efforts. to publish news and photos of your recently held an installation luncheon for The auxiliary is gearing up for its 2013- activities and accomplishments. the 2013-14 officers and committee chairs. 14 year with a program for the spouses of Patricia (Patti) Lee was elected president the Jefferson Bar Association. Meetings, Email your news items and photos to: and sworn in by the new Gretna Mayor alternating in the day and evening, are the LSBA Publications Coordinator Darlene LaBranche at Belinda Constant. third Wednesday of each month through [email protected]. During the luncheon, a check was May. The auxiliary also is developing a presented to Renee Haase, development law-related activity to implement with Or mail press releases to: director of Holy Rosary Academy and some of the parish high schools. Darlene LaBranche High School, for the school’s educational Contact Patti Lee at (504)219-0881or 601 St. Charles Ave. New Orleans, LA programs assisting children with learning by email at [email protected] for more 70130-3404 differences. This project is just one of the information or to join the auxiliary.
In recognition of the Louisiana State Bar Association’s Month of Service in October, two law firms — Phelps Dunbar, L.L.P., and Irwin Fritchie Urquhart & Moore, L.L.C. — together purchased the ingredients for a few hundred meals, which volunteers from both firms then prepared, cooked and served to the homeless at Ozanam Inn in New Orleans on Oct. 19. From left, Alysha Jordan, Barbara L. Arras, Fran Sullivan, Darlene Peters, Kim E. Moore, Meera U. Sossamon, Christopher H. Irwin, Edward W. Trapolin, Kelly E. Brilleaux, Monica Betts, Tory Nieset, Lizzi Richard and Christopher K. Ralston. Volunteers not in photo were McDonald G. Provosty, Jimmy Irwin, Brigid Brown, Steven Guidry, Ali S. Mansfield, Shelita Burrell, Tessa P. Vorhaben and Susan Robinson.
314 December 2013 / January 2014 Louisiana Bar Foundation
President’s Message The Giving Season By Leo C. Hamilton ‘Tis the season for spending time with to justice. Working ► give children a voice in court; family and friends, eating delicious food, together, we can meet ► bring families back together; and hopefully reflecting on the spirit of the legal needs of our ► provide education to youth about the season. Please consider giving to the state’s most vulner- the legal process; and legal profession’s best exemplar by mak- able people. ► bring communities together to iden- tify legal needs in their areas. ing a year-end gift to the Louisiana Bar With your support, Please take the time during this busy Foundation (LBF). Contributions to the the LBF is able to: LBF ensure justice is a reality, not just for ► help victims holiday season to reflect on the bless- those who can afford it, but for everyone in domestic violence ings in your life and consider a gift to the LBF. Make your gift online at www. in Louisiana. shelters; Leo C. Hamilton A gift to the LBF demonstrates your be- ► protect children raisingthebar.org/gift or mail directly to lief in our mission and will help strengthen who need a stable home; the LBF at Ste. 1000, 1615 Poydras St., ► aid the elderly through financial the programs we support and the services New Orleans, LA 70112. If you have any crises; questions, contact Development Director we provide. Please support the work of the ► assist families in retaining their LBF and make your investment in access Laura Sewell at (504)561-1046 or laura@ homes; raisingthebar.org.
LBF Seeking Nominations for 2014 Boisfontaine Award
The Louisiana Bar Foundation (LBF) State Bar Association and the Louisiana Brown III, William K. Christovich, Patrick is seeking nominations for the 2014 Curtis Association of Defense Counsel. Gener- A. Juneau, John B. Scofield, Gene W. R. Boisfontaine Trial Advocacy Award. ous donations from Sessions, Fishman, Lafitte, Charles S. Weems III, Herschel E. Nominations must be received in the LBF Nathan & Israel, L.L.P., the Boisfontaine Richard, Jr., Jack C. Benjamin, Sr., Robert office by Friday, Feb. 7, 2014. family and friends established the fund. B. Acomb, Jr., John J. Weigel, Allen Lewis Nominations should include the nomi- A consummate trial lawyer through- Smith, Jr., H. Alston Johnson III, John R. nee’s name, contact information, a brief out his career, Boisfontaine adhered Martzell, George A. Frilot III, Phillip A. written statement on the background of at all times to the highest standards of Wittmann, J. Michael Small, John M. Mc- the nominee, as well as reasons why the the profession not only in the way he Collam, William R. Forrester, Jr., Daniel nominee is proposed as the award recipi- demonstrated his extraordinary ability to Lund and Mary Olive Pierson. ent. Nominations should be forwarded to prepare and try cases of all kinds, but in the Communications Director Dennette exemplary way that he did so, consistent Young at the Louisiana Bar Foundation, with the highest ideals of ethical and moral Louisiana Bar Foundation Ste. 1000, 1615 Poydras St., New Orleans, conduct. He served on the New Orleans Announces New Fellows LA 70112, or emailed to dennette@ Bar Association’s Executive Committee The Louisiana Bar Foundation raisingthebar.org by the Feb. 7 deadline. and in the American Bar Association’s announces new Fellows: The award will be presented at the House of Delegates. A charter member Louisiana State Bar Association’s An- of the LBF, Boisfontaine served as state nual Meeting in Destin, Fla., in June. The chair of the Fellows of the American Blake R. David...... Lafayette recipient will receive a plaque and $1,000 Bar Foundation. He was a member of Catherine E. (Katie) will be donated in his/her name to a non- the American College of Trial Lawyers. Lasky...... New Orleans profit, law-related program or association The award is presented to a Louisiana providing services in Louisiana. attorney who exhibits longstanding devo- Ravi K. Sangisetty...... New Orleans This trial advocacy award was estab- tion to and excellence in trial practice lished through an endowment to the LBF and upholds the standards of ethics and Erin Monroe Wesley...... Baton Rouge in memory of Curtis R. Boisfontaine, consideration for the court, litigants and Justin I. Woods...... New Orleans who served as president of the Louisiana all counsel. Previous recipients are Wood
Louisiana Bar Journal Vol. 61, No. 4 315 Paul D. Buffone, left, Louisiana Workers’ Com- pensation Corp. senior vice president and chief claims and information officer, received a plaque Louisiana Bar Foundation (LBF) Kids’ Chance recipient Casey Shelton, second from left, received her from Louisiana Bar Foundation (LBF) Presi- token check from, from left, Sherry A. Watters, LBF Kids’ Chance Committee co-chair; Shelton; LBF dent Leo C. Hamilton, recognizing 10 years of President Leo C. Hamilton; and Michelle M. Sorrells, LBF Kids’ Chance co-chair. support for the LBF Kids’ Chance Program. Golf Tournament Benefits LBF’s Kids’ Chance Program Louisiana Bar Foundation Has Moved! The Louisiana Workers’ Compensa- state or federal Workers’ Compensation tion Corp. (LWCC) held its 10th annual Act or law. The Louisiana Bar Foundation an- golf tournament Sept. 23, donating all For more information or to make a nounces that it has moved into new of- proceeds to the Louisiana Bar Founda- donation to the Kids’ Chance recipi- fices across from the Mercedes-Benz Su- tion (LBF) Kids’ Chance Scholarship ents, go to: www.raisingthebar.org/ perdome on Poydras Street. The offices Program. The LBF Kids’ Chance pro- ProgramsAndProjects/KidsChancePro- are located in Suite 1000, 1615 Poydras gram provides scholarships to depen- gram.asp. Or contact Dennette Young at St., New Orleans, LA 70112. dents of workers who are permanently (504)561-1046 or dennette@raisingth- The LBF phone number, (504)561- and totally disabled or killed in a work- ebar.org. 1046, and fax number, (504)566-1926, related accident compensable under a will remain the same. Visit the website at: www.raisingthebar.org. Become a Sponsor of the LBF’s 28th Annual Fellows Gala The Louisiana Bar Foundation will three reserved tables (seats 30) and recogni- Discounted rooms at the Hyatt Re- celebrate the 28th Annual Fellows Gala on tion at the event. gency New Orleans are available for $219 Friday, April 11, 2014. The gala and live auc- ►Cornerstone: $3,500 — Includes 20 a night for Thursday, April 10, and Friday, tion will be held at the Hyatt Regency New patron party tickets, 20 gala tickets with two April 11. Reservations must be made Orleans, 601 Loyola Ave., New Orleans. reserved tables (seats 20) and recognition before Friday, March 21, 2014, to get the Sponsorships are available at the fol- at the event. discounted rate. Call the hotel directly at lowing levels: ►Capital: $2,000 — Includes 10 pa- 1-888-421-1442 and reference “Louisiana ►Pinnacle: $6,500 — Includes 40 pa- tron party tickets, 10 gala tickets with one Bar Foundation” to make a reservation tron party tickets, 40 gala tickets with four reserved table (seats 10) and recognition or go to: http://resweb.passkey.com/go/ reserved tables (seats 40) and recognition at the event. LAbarfoundation2014. at the event. Individual tickets to the gala are $150. For more information, contact Develop- ►Benefactor: $5,000 — Includes 30 Young lawyer individual gala tickets are ment Director Laura Sewell at (504)561- patron party tickets, 30 gala tickets with $100. 1046 or [email protected].
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Louisiana Bar Journal Vol. 61, No. 4 319 The Last Word By Maggie Trahan Simar Say What? Repeat that!
t times, the practice of law may seem like a monotonous mountain of legal jargon. Even courts have issues at times making sense of the volumes of filings and pleadings that require consideration. But, sometimes Ain our legal careers, we hit the jackpot — either the facts are on our side, the law is on our side, or maybe, just maybe, both are on our side. Although very rare, not only can the case be good, it also could be FUN! When a case is fun, or, at the very least, not “boring,” attorneys sometimes get that glimmer in their pro- verbial eyes and their pleadings and preparatory material show enthusiasm. Their vernacular gets witty and full of glee. Here is a list of case citations that would cause even the most stoic of litigator to chuckle.
United States v. 11 1/4 Dozen Packages of Articles Labeled in Part Mrs. Moffat’s Shoo-Fly Powders for Drunkenness, 40 F. Supp. 208 (W.D.N.Y. 1941).
United States v. Eighteenth Century Peruvian Oil on Canvas Painting, 597 F. Supp. 2d 618 (D. Va. 2009).
I Am The Beast Six Six Six of the Lord of Hosts in Edmond Frank MacGillivray Jr. Now. I Am The Beast Six Six Six of the Lord of Hosts IEFMJN. I Am The Beast Six Six Six of the Lord of Hosts. I Am The Beast Six Six Six of the Lord of Hosts OTLOHIEFMJN. United States v. 2,116 Boxes of Boned Beef, Weighing Approxi- I Am The Beast SSSOTLOHIEFMJN. I Am The Beast Six Six Six. mately 154,121 Pounds, and 541 Boxes of Offal, Weighing Ap- Beast Six Six Six Lord v. Michigan State Police, et al., File No. proximately 17,732 Pounds, 726 F.2d 1481 (10 Cir. 1984). 5:89:92, 1990 U.S. Dist. LEXIS 8792 (W.D. Mich. July 12, 1990). United States v. Approximately 64,695 Pounds of Shark Fins, No. State v. Big Hair, 955 P.2d 1352 (Mont. 1998). 05-56274 (9 Cir. March 17, 2008).
Batman v. Commissioner, 189 F.2d 107 (5 Cir. 1951), cert. denied, United States v. Article Consisting of 50,000 Cardboard Boxes 342 U.S. 877 (1951). More or Less, Each Containing One Pair of Clacker Balls, 413 F. Supp. 1281 (D. Wisc. 1976). Death v. Graves, CGC-06-451316 (filed April 17, 2006).
th Schmuck v. United States, 489 U.S. 705 (1989). Maggie Trahan Simar is a hearing officer for the 16 Judicial District Family Court in St. Martin Parish. She is Hamburger v. Fry, 338 P.2d 1088 (1959). a member of the Louisiana Bar Journal’s Editorial Board. (415 S. Main St., St. Martinville, LA 70582) People v. Booger, 2010 N.Y. LEXIS 3511 (N.Y. 2010).
The Louisiana Bar Journal is looking for authors and ideas for future “The Last Word” articles. Humorous Maggie Trahan articles will always be welcomed. But Editor Barry H. Grodsky is broadening the scope of the section, including Simar “feel-good” pieces, personal reflections, human interest articles or other stories of interest. If you have an idea you’d like to pitch, email Grodsky at [email protected] or LSBA Publications Coordinator Darlene M. LaBranche at [email protected].
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