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2018 Expert Witness, Consultant & Legal Services Directory Supplement to the Louisiana Bar Journal 11 2018 Expert Witness, Consultant & Legal Services Directory Supplement to the Louisiana Bar Journal 11 Proud Member Benefit Provider

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Louisiana Bar Journal Vol. 65, No. 4 217 LawPay is a registered ISO of Merrick Bank, South Jordan, UT. 218 December 2017 / January 2018 ®

December 2017 / January 2018 Volume 65, Number 4 Departments Features Editor’s Message...... 222 Try a Little Less Tenderness: President’s Message...... 224 A Proposal for Presenting Association Actions...... 247 Expert Witness Testimony Practice Management...... 251 By John H. Musser V and Tarryn E. Walsh...... 226 Lawyers Assistance...... 252 Focus on Diversity...... 254 Focus on Professionalism..... 256 Louisiana Collateral Source Rule Puzzle...... 258 By Michael J. Moran...... 230 Discipline Reports...... 260 Client Assistance Fund...... 262 Recent Developments...... 263 Statutes of Limitations in Federal Criminal Cases Young Lawyers...... 279 By John S. McLindon...... 236 La. Center for Law and Civic Education...... 282 People...... 283 Gauging Pro Bono Activity News...... 288 in Louisiana: Classified...... 292 2016 Pro Bono Survey Results Are In! Legal Services Classified...... 294 By Rachael M. Mills...... 240 The Last Word...... 296 Also Inside Attorneys Volunteer Talent for “Lawyers in Libraries” Service Programs Judicial Interest Rate 2018.... 221 By Michael W. Schachtman...... 244 Alcohol/Drug Abuse Hotline.. 258 Member Business Services... 264 SOLACE...... 282

Attorney Fee Review Board.. 287 2018 Advertisers’ Index...... 295 EXPERT WITNESS, CONSULTANT & LEGAL SERVICES DIRECTORY

On the Cover / Lawyers in Libraries: Rapides Parish: Robert G. Levy, Toni R. Martin, Paul J. Tellarico and Debbie Smith. Tangipahoa Parish: Meghan E. Notariano. St. Bernard Parish: John Van Robichaux, Jr. Washington Parish: J. Norris Scott, Emmitt 2018 Expert Witness, Consultant Supplement to Guy and Bryan A. Harris. Louisiana Bar Journal & Legal Services Directory Read more on pages 244-246. Supplement to the Louisiana Bar Journal 1 Supplement mailed with this issue

Louisiana Bar Journal Vol. 65, No. 4 219 ® Officers 2017-18 President Editorial Board Dona Kay Renegar • (337)234-5350 þ John E. McAuliffe, Jr. þ Alainna R. Mire President-Elect Editor (318)449-5046 Barry H. Grodsky • (504)599-8535 (504)840-4909 þ Claire McDaniel-Ojeh Secretary þ Christopher D. Cazenave (225)622-2005 John E. McAuliffe, Jr. • (504)840-4909 (504)582-8408 þ John H. Musser V Treasurer (504)523-0400 þ John S. (Chip) Coulter H. Minor Pipes III • (504)589-9700 (225)362-2445 þ Christopher K. Odinet Immediate Past President (225)346-0285 þ Anthony M. DiLeo Darrel J. Papillion • (225)236-3638 (504)274-0087 þ Roy H. (Hal) Odom, Jr. (318)227-3762 þ Brendan P. Doherty Board of Governors 2017-18 (832)255-6019 þ Maggie Trahan Simar First District (337)394-6133 þ Stephen I. Dwyer D. Skylar Rosenbloom • (504)556-5507 (504)838-9090 þ Kristine D. Smiley Darryl J. Foster • (504)596-6304 (225)298-0770 þ Barry H. Grodsky Second District (504)599-8535 þ Gail S. Stephenson Stephen I. Dwyer • (504)838-9090 (225)771-4900, x216 þ Mark A. Hill Third District (504)581-1301 þ Scott L. Sternberg Shannon Seiler Dartez • (337)233-1471 (844)942-6477 þ Gerald J. (Jerry) Huffman, Jr. Fourth District (504)957-9114 þ Tyler G. Storms J. Lee Hoffoss, Jr. • (337)433-2053 (318)255-7805 þ Margaret E. Judice Fifth District (337)828-1880 þ Adrejia L. Boutte Swafford Edward J. Walters, Jr. • (225)236-3636 (504)561-5700 þ Robert A. Kutcher Valerie Turner Schexnayder • (504)813-3633 (504)830-3820 þ Edward J. Walters, Jr. Sixth District (225)236-3636 þ Winfield E. Little, Jr. Charles D. Elliott • (318)704-6511 (337)430-0907 þ Jack K. Whitehead, Jr. Seventh District (225)303-8600 C.A. (Hap) Martin III • (318)388-4700 The Louisiana Bar Journal (ISSN 0459-8881) is published bimonthly by Eighth District the Louisiana State Bar Association, 601 St. Charles Avenue, New Orleans, Marjorie L. (Meg) Frazier • (318)213-9205 Louisiana 70130. Periodicals postage paid at New Orleans, Louisiana and additional offices. Annual subscription rate: members, $5, included in dues; Chair, Young Lawyers Division nonmembers, $45 (domestic), $55 (foreign). Canada Agreement No. PM Bradley J. Tate • (504)585-4433 41450540. Return undeliverable Canadian addresses to: 4240 Harvester At-Large Members Rd #2, Burlington, ON L7L 0E8. Jermaine Guillory • (225)389-8846 Postmaster: Send change of address to: Louisiana Bar Journal, 601 St. Monique Y. Metoyer • (318)729-1880 Charles Avenue, New Orleans, Louisiana 70130. Daniel A. Cavell • (985)449-7500 Subscriber Service: For the fastest service or questions, call Darlene M. LSU Paul M. Hebert Law Center LaBranche at (504)619-0112 or (800)421-5722, ext. 112. John M. Church • (225)578-8701 Tulane University Law School Editorial and Advertising: Ronald J. Scalise, Jr. • (504)865-5958 Publication of any advertisement shall not be considered an endorsement of the product or service involved. Submissions are welcome and will be Louisiana State Law Institute considered for publication by the Editorial Board. For submission guide- L. Kent Breard, Jr. • (318)387-8000 lines, go online at www.lsba.org, click on “Publications,” then “Louisiana House of Delegates Liaison Chair Bar Journal.” Copyright © by Louisiana Bar Journal. All rights reserved. Julie Baxter Payer • (225)223-0332 Reproduction in whole or part without permission is prohibited. Views expressed are those of the authors only. Editorial Staff Executive Director Luminary Award 2003 Loretta Larsen, CAE National Association of Bar Executives Communications Director Communications Section Kelly Wells Ponder Excellence in Regular Publications Publications Coordinator/Managing Editor Darlene M. LaBranche International Communications Coordinator - Graphic Design Association of Barbara D. Baldwin Business Public Relations Society Communications Assistant Communicators of America New Orleans Krystal Bellanger Rodriguez New Orleans Chapter Chapter Advertising Booking Questions? ward of Bronze Quill A Call (504)619-0131. Award of Merit

220 December 2017 / January 2018 2018 Judicial Interest Rate is 5% 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 2018 est for calendar year 2018 will be five (5%) 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 2018 Sept. 11, 1981 to Dec. 31, 1987...... 12.00 percent in accordance with La. R.S. 13:4202(B)(1). The commissioner ascertained that on Oct. 2, 2017, the first Jan. 1, 1988 to Dec. 31, 1988...... 9.75 percent business day of the month of October, the approved discount rate Jan. 1, 1989 to Dec. 31, 1989...... 11.50 percent of the Federal Reserve Board of Governors was one and three Jan. 1, 1990 to Dec. 31, 1990...... 11.50 percent quarters (1.75%) percent. La. R.S. 13:4202(B)(1) mandates that on and after Jan. 1, 2002, Jan. 1, 1991 to Dec. 31, 1991...... 11.00 percent the judicial interest rate shall be three and one-quarter percentage Jan. 1, 1992 to Dec. 31, 1992...... 9.00 percent points above the Federal Reserve Board of Governors-approved Jan. 1, 1993 to Dec. 31, 1993...... 7.00 percent discount rate on the first business day of October 2017. Thus, the effective judicial interest rate for the calendar year 2018 shall be Jan. 1, 1994 to Dec. 31, 1994...... 7.00 percent five (5%) percent per annum. Jan. 1, 1995 to Dec. 31, 1995...... 8.75 percent La. R.S. 13:4202(B)(2) provides that the publication of the com- Jan. 1, 1996 to Dec. 31, 1996...... 9.75 percent missioner’s determination in the Louisiana Register “shall not be considered rulemaking within the intendment of the Administrative Jan. 1, 1997 to July 31, 1997...... 9.25 percent Procedure Act, R.S. 49:950 et seq., and particularly R.S. 49:953.” Aug. 1, 1997 to Dec. 31, 1997...... 7.90 percent Therefore, (1) a fiscal impact statement, (2) a family impact state- Jan. 1, 1998 to Dec. 31, 1998...... 7.60 percent ment, (3) a poverty impact statement, (4) a small business statement, (5) a provider impact statement, and (6) a notice of intent are not Jan. 1, 1999 to Dec. 31, 1999...... 6.73 percent required to be filed with the Louisiana Register. Jan. 1, 2000 to Dec. 31, 2000...... 7.285 percent Jan. 1, 2001 to Dec. 31, 2001...... 8.241 percent — John P. Ducrest, CPA Commissioner of Financial Institutions Jan. 1, 2002 to Dec. 31, 2002...... 5.75 percent Date: October 5, 2017 Jan. 1, 2003 to Dec. 31, 2003...... 4.50 percent Jan. 1, 2004 to Dec. 31, 2004...... 5.25 percent Jan. 1, 2005 to Dec. 31, 2005...... 6.00 percent Judicial Interest Rate Jan. 1, 2006 to Dec. 31, 2006...... 8.00 percent Jan. 1, 2007 to Dec. 31, 2007...... 9.50 percent Calculator Online! Jan. 1, 2008 to Dec. 31, 2008...... 8.50 percent Need to calculate judicial interest? Jan. 1, 2009 to Dec. 31, 2009...... 5.50 percent Check out the Judicial Interest Rate Jan. 1, 2010 to Dec. 31, 2010...... 3.75 percent Calculator (courtesy of Alexandria Jan. 1, 2011 to Dec. 31, 2011...... 4.00 percent attorney Charles D. Elliott) on the Jan. 1, 2012 to Dec. 31, 2012...... 4.00 percent Louisiana State Bar Association’s Jan. 1, 2013 to Dec. 31, 2013...... 4.00 percent website. Jan. 1, 2014 to Dec. 31, 2014...... 4.00 percent Jan. 1, 2015 to Dec. 31, 2015...... 4.00 percent Go to: www.lsba.org/Members/ Jan. 1, 2016 to Dec. 31, 2016...... 4.00 percent JudicialInterestRate.aspx. Jan. 1, 2017 to Dec. 31, 2017...... 4.25 percent Jan. 1, 2018 to Dec. 31, 2018...... 5.00 percent

Louisiana Bar Journal Vol. 65, No. 4 221 EDITOR’S MESSAGE

By John E. McAuliffe, Jr. Facsimile and Other Evils will begin my complaining in an a laptop to access file arbitrary manner — the facsimile material anywhere machine. This evil invention spawned and anytime. I the expectation of a more-than- suppose one could promptI reply. If you received it by fax, you download an entire were then expected to respond by fax. (I file onto a thumb nail am sure the inventions of the telegraph, drive for convenience. telephone and horseless carriage begot (Bet you thought I many complaints. But, I am not quite sure had no notion that how those inventions would have affected such a storage device the practice of law.) existed. Of course, In short order, the commercial, I have never had overnight delivery service was knocking occasion to make any at our respective doors. Pickup by early such download.) Yet, evening ensured delivery by mid-morning I continue to “print on the next business day. Never mind that out” most everything your letter was transported halfway around I will need for a the United States just to arrive at an address deposition. I refuse to across the street from your office. We had scroll (or is it troll?) the ability to send bulky things overnight for medical records or much different if these innovations did — briefs, exhibit books, etc. photographs as I ask my questions. I have not exist. Articles are submitted by email. Now we have scanning and emails and yet to come to grips with the paperless file. Photographs are circulated electronically. I texting and all sorts of other communication And that e-filing virus has begun to receive a “proof” of the Journal for review tools most of which are not known to spread — Federal Court, Jefferson Parish by the mystery of electronics. I cannot me. One attorney shotguns suggested and now even in Orleans Parish. How often imagine how our editors from 20 and 30 deposition dates by email. All other parties do attorneys actually go to a courthouse? I years ago could produce the Journal in a are then expected to IMMEDIATELY recently had the pleasure of introducing a timely fashion and with such a professional respond (by email). Wait, I have to find young attorney into the Bar of the Eastern touch. my calendar (the paper variety, of course). District. I was astonished to find an actual In the movie “Heartbreak Ridge,” Gunny Many of the emails come with some clerk’s office with a “physical” filing desk. Highway (Clint Eastwood) constantly type of electronic attachment which will I was in heaven. exhorted his troops to “improvise, adapt, automatically place an entry on your Perhaps, though, I am improving. I overcome . . . .” I suppose this mantra “electronic” calendar, i.e., if you “accept.” just e-filed a motion in federal court with must carry us (me) forward as technology (I have NEVER hit “accept.” You have no a memorandum, four exhibits, a proposed continues to intersect with the practice of right to make an entry on my calendar.) pleading and a notice. I waited. I waited. law. HOORAH! Again, I have to first locate my calendar. It NO error message. (My mother was right, is probably on my secretary’s desk. holding a shamrock does work.) With all of this progress, we now have I make these complaints knowing that paperless files. Yes, it is convenient with my job as editor of this Journal would be

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Louisiana Bar Journal Vol. 65, No. 4 223 PRESIDENT’S MESSAGE

By Dona Kay Renegar The Legal Profession: It Is in Our Hands ver the past few months, I have in partnership with Orleans Parish Civil by a ceremony and panel discussion at had the pleasure of traveling District Court and the Louisiana Civil the Louisiana Supreme Court. SLLS is our state, meeting a number of Justice Center.) nationally known as an exemplary legal our members, and recognizing Hilarie Bass, 2017-18 president of service provider within the Legal Service theO creative and meaningful ways lawyers the American Bar Association, recently Corporation. Under the leadership of its are supporting our profession and serving traveled to New Orleans to recognize the Executive Director Laura Tuggle, SLLS their communities. As the last self-regulat- dedication of the 79 lawyers at Entergy continues to investigate innovative and ef- ed profession in Louisiana, we alone are Corporation. In 2016, those lawyers do- ficient ways to provide legal representation responsible for the administration, regu- nated more than 2,000 hours of pro bono to as many qualified citizens as possible. lation, and reputation of the legal profes- service and had an 85 percent participation SLLS’s and ALSC’s dedication to provid- sion in our state. I have written previously rate in the pro bono efforts. Specifically, ing access to justice for all Louisiana citi- about the great responsibility that falls Entergy’s lawyers staffed the Self-Help zens is a shining example to which we all upon us as lawyers to serve our members Resource Center (SHRC) at Orleans should strive. and our communities. The last five months Parish Civil District Court. This help desk have given me the opportunity to see how assisted thousands of unrepresented low- Memorials and Legacies so many of you are championing our pro- income and vulnerable domestic court liti- fession and dedicating hours of time and gants in the Greater New Orleans area. The The Shreveport Bar Foundation re- effort to serve your communities. SHRC exemplifies the value and creativ- cently memorialized its members who ity of leadership by in-house legal depart- have died this year and, at the same time, Exemplary Pro Bono Efforts ments in the area of pro bono service. welcomed to its bar the newly admitted at- Entergy also hosted a pro bono fair and torneys. I had the great pleasure of sharing Entergy Corporation’s Legal invited several pro bono partners to speak in that ceremony with the members of the Department, under the leadership of to its legal team about future opportuni- Shreveport Bar Association. I was struck Executive Vice President and General ties to serve citizens who live below the by the tone of the ceremony. The associa- Legal Counsel Marcus V. Brown, has Federal Poverty Guidelines. One of those tion truly celebrated both the contributions committed to providing pro bono services partners is Southeast Louisiana Legal to the profession each deceased member to the communities it serves since 2012. Services (SLLS). SLLS and Acadiana made and the unique personalities and For its tireless efforts, the Entergy Legal Legal Service Corporation (ALSC), to- styles they used to achieve those accom- Department was honored in 2016 with the gether serving every parish in the state, plishments. While tinged with sadness and Corporate Pro Bono Partner Award pre- provide free legal representation for in- nostalgia about the losses, the ceremony sented by Corporate Pro Bono (CPBO), dividuals whose incomes fall below the had a strong sense of hope for those young a partnership project of the Pro Bono Federal Poverty Guidelines. lawyers who are just beginning their pro- Institute and the Association of Corporate SLLS is celebrating its 50th anniver- fessional journeys. Counsel. (Entergy received this award sary this year, recently commemorated As I drove home from Shreveport,

224 December 2017 / January 2018 I began thinking about what contribu- profession. We should reach out to our col- ings and mentor training and is responsible tions I have made to the legal profession leagues, young or “seasoned,” who seek a for the administration of the program. We and how I would like to be remembered. mentor, advice, or support as they develop currently have a pool of 256 mentors and While I have attended a number of memo- their practice or navigate the often rough 126 mentor/mentee pairings. A reception rial ceremonies in my years as a practic- waters of practicing law. is conducted at the Supreme Court where ing lawyer, the Shreveport eulogies about mentees receive their certificates at the successes and failures in and out of the Become a Mentor! conclusion of the program. Feedback has courtroom and the humorous stories about been extremely positive and the program each of their members touched me. I sus- The Louisiana State Bar Association is a resounding success. This program pect that is a direct result of my increasing (LSBA) offers a formal mentoring pro- strengthens our profession and illustrates age which is easy to ignore. A young law- gram for newly admitted lawyers, match- the LSBA’s continued commitment to pro- yer recently contacted me expressing that ing them with seasoned lawyers in their fessionalism. she was unhappy with her type of practice area who can offer advice or support. Years ago, many lawyers reached out to and asking for advice about making some The voluntary Transition Into Practice mentor me in the practice of law and, to changes. As much as I would like to think (TIP) Program, created by the LSBA’s every one of them, I am eternally grateful. that I am young, her request for help made Committee on the Profession, began in I hope that I can return the favor extended me realize that I have now been practicing 2015 in New Orleans, Shreveport and to me and help the future legal leaders in for more than 25 years and am seen more Baton Rouge, per Louisiana Supreme Louisiana carry our noble profession on- as a “seasoned” attorney. In that moment, I Court order on May 15, 2013. In February ward and upward. I encourage all LSBA recognized how I would like to be remem- 2017, the Supreme Court signed an order members to do the same. bered — as a lawyer who supported the extending the program an additional two profession and her colleagues. As an expe- years and expanding the program to in- rienced lawyer, my job is to reach back and clude new Bar admittees statewide. The lift up someone entering this honorable LSBA conducts all mentor/mentee pair-

LSBA Midyear Meeting January 18 - 20, 2018 • Baton Rouge Renaissance Baton Rouge Hotel For more information or to register, visit www.lsba.org/MidyearMeeting

Louisiana Bar Journal Vol. 65, No. 4 225 Try a Little Less TENDERNESS : A Proposal for Presenting Expert Witness Testimony

By John H. Musser V and Tarryn E. Walsh

226 December 2017 / January 2018 xpert testimony mandate, attorneys who do not adhere to way of an expert witness fee whether or often carries a the traditional procedure risk being un- not that witness has been formally quali- able to recover these litigation expenses. fied and tendered as an expert.”15 significant price All circuits within the state recognize Moreover, many authorities suggest tag.1 However, if — at least in principle — that “there is no that the process of declaring a witness a party wins his requirement that a party formally tender an “expert” influences the jury to give an expert witness or that a court certify unwarranted weight and credibility to case at trial, he is typically that a witness has been accepted as an ex- the witness’s testimony. The advisory E 2 10 able to recover his expert fees. pert.” Nonetheless, not all circuits take committee notes to Fed.R.Evid. 702, on Unfortunately, the uncertainty the same view as to whether the taxing of which La. C.E. art. 702 is based, caution expert witness fees is appropriate when against informing a jury that a witness is surrounding whether expert the expert has not been formally “ten- testifying as an expert for that reason.16 witnesses need to be formally dered.” The 3rd and 4th Circuits have no The advisory notes further observe that tendered and accepted by the formal “tender” requirement and award “prohibit[ing] the use of the term ‘ex- 11 trial court in order to have those expert witness fees freely. However, in pert’ by both the parties and the court at the 1st, 2nd and 5th Circuits, if a witness trial . . . ensures that trial courts do not fees awarded as costs adds an has not been formally qualified, tendered inadvertently put their stamp of author- unnecessary layer of confusion and judicially accepted as an expert, dis- ity on a witness’s opinion, and protects and expense to the litigation trict courts generally refuse to tax the against the jury’s being overwhelmed by witness’s fees as costs.12 The Louisiana the so-called ‘experts.’”17 A judge’s rul- process. Supreme Court has yet to address the cir- ing that a witness is an expert “inordi- cuit split on this issue. nately enhances the witness’s stature and While federal law and jurisprudence detracts from the court’s neutrality and 3 directs when to award expert fees, detachment,”18 while refusing to accept a Louisiana allows for the award of expert Is the Customary Practice the Best Method? witness as an expert may “degrade” the witness fees in addition to the ordinary opinion testimony given.19 witness fee in all civil cases.4 Thus, a As a threshold matter, an award of The American Bar Association’s rec- witness who testifies as an expert at trial ommendation on qualifying expert wit- is entitled to additional compensation expert witness costs inherently encom- passes judicial consideration of an ex- nesses in its Civil Trial Practice Standards based upon the value of her time, and echoes the above concerns, suggesting the degree of learning or skill required. pert’s qualifications and contributions to the case. The factors include: (1) the that “[t]he court should not, in the pres- The compensation covers both the court ence of the jury, declare that a witness is 5 time to create reports; (2) the total fees appearance and preparatory work. qualified as an expert or to render an ex- Admittedly, when “fixing expert wit- charged; (3) the time spent preparing for trial; (4) the time spent in court; (5) the pert opinion, and counsel should not ask ness fees, each case must turn on its own the court to do so.”20 After acknowledg- 6 witness’s expertise; (6) the difficulty of peculiar facts and circumstances.” But ing the common tactical purpose behind when does a witness become an expert? the expert’s work; (7) the amount of the judgment; and (8) the degree to which openly tendering an expert to the court, The practice of introducing expert the comment to Standard 14 explains opinion varies noticeably by state.7 While the expert’s opinion aided the factfinder in its decision.13 the consequences. First, “[b]ecause ex- a few states expressly require that an at- pert testimony is not entitled to greater torney formally “tender” the witness as Considering that any witness who offers expert testimony has either gone weight than other testimony, the practice an expert, Louisiana has no formal rules of securing what may appear to be a ju- 8 through a Daubert­-style hearing, or alter- on qualifying an expert. Nonetheless, dicial endorsement is undesirable . . . . while Louisiana does not expressly man- natively testified without objection, any Louisiana court that permits a witness to The prejudicial effect of this practice is date the formal tender and acceptance accentuated in cases in which only one of an expert witness at trial, the practice offer expert opinion testimony presum- ably contemplated these factors before side can afford to, or does, proffer expert within the state involves counsel “ten- 21 allowing the evidence.14 Consequently, testimony.” Second, “[t]he use of the dering” the witness as an expert, and the term ‘expert’ may appear to a jury to be subsequent “acceptance” or “rejection” the 3rd and 4th Circuit approach seems more reasonable. As Judge Wicker ob- a kind of judicial imprimatur that favors of the witness as an expert by the presid- the witness,” a concern that is interwoven 9 served in her 2011 5th Circuit dissent, ing judge. Surprisingly, the subsequent through the commentary on this subject. award of expert fees as costs is often “where a witness renders expert opinion testimony without objection, that witness Professors Wright and Miller agree dependent on adhering to a practice that that the perception of court endorsement is only customary, not required. With no [should be able to] seek remuneration by

Louisiana Bar Journal Vol. 65, No. 4 227 is a problem when presenting expert tes- Louisiana Supreme Court on whether matter is not properly subject to expert timony: experts must, or even may, be tendered testimony, would not be permitted to use before giving their opinion testimony. the word “expert” in the presence of the In some jurisdictions, the practice However, in 2014, the Supreme Court jury. is to proffer the witness as an ex- issued its Plain Civil Jury Instructions, Objections in the presence of the jury pert after eliciting evidence as to which anticipate that the jury will be in- should simply be to either the “founda- his credentials. This proffer precip- formed if a witness is an “expert”: tion” or the “admissibility” of the wit- itates a ruling from the court as to ness’s opinion. The lawyers and judge whether the witness is qualified to Some of the witnesses that you can use the phrase “Article 702” in argu- testify as an expert. This procedure will hear are called “expert wit- ment or a ruling before the jury, while is not mandated by [Fed.R.Evid.] nesses.” Unlike ordinary witnesses omitting any reference to “experts.” Such 702. A trial court need not and who must testify only about facts a restriction would not apply to Daubert often should not make a find- within their knowledge and can- hearings or other motions or rulings out- ing before the jury that a witness not offer opinions about assumed side the presence of the jury. is qualified to testify as an expert or hypothetical situations, expert The Plain Civil Jury Instructions since such a finding might induce witnesses are allowed to express themselves can be easily remedied to re- the jury to give too much weight to opinions because their education, move the undesirable references: the witness’s testimony.22 expertise or experience in a par- ticular field or on a particular sub- Some of the witnesses you will As Professor Stephen Saltzburg elo- ject might be helpful to you. You hear are called “expert witnesses.” quently stated: should consider their opinions, Unlike ordinary witnesses who and give them the weight that you must testify only about fact within If judges simply rule on objections think they deserve. If you decide their knowledge and cannot offer to testimony by sustaining or over- that the opinion of an expert wit- opinions about assumed or hypo- ruling them and permitting lay wit- ness is not based on sufficient edu- thetical situations, expert some nesses to offer permissible opin- cation, expertise or experience or witnesses are allowed to express ions under Fed.R.Evid.701, expert that the reasons given in support of opinions because their education, witnesses to offer permissible the opinion are not sound, or if you expertise or experience in a par- opinions under Fed.R.Evid.702, feel that it is outweighed by other ticular field or on a particular sub- and dual witnesses to offer both evidence, you may disregard the ject might be helpful to you. You lay and expert opinions, there is no opinion entirely — even though I should consider their opinions and reason for a trial judge to qualify a permitted the person to testify.24 give them the weight that you think witness as an expert and no reason they deserve. If you decide that the for the judge to instruct the jury on Does such an instruction, buried opinion of an expert a witness is the dual rules that a witness plays. amongst many others, truly offset the not based on sufficient education, If the jury is not told that a witness weight previously assigned by the jury expertise or experience, or that is an “expert,” it can judge the to- to the apparently judicially endorsed “ex- the reasons given in support of the tality of the witness’s testimony for pert” testimony? opinion are not sound, or if you what it is worth . . . . The reality feel that it is outweighed by other is that the process of tendering a An Alternative Proposal evidence, you may disregard the witness as an expert and having opinion entirely — even though I the court find the witness to be an The authors suggest that a new permitted the person to testify. expert is problematic in all cases Supreme Court rule, prohibiting the court . . . .23 or the lawyers in a jury trial from using As an example of the adverse the term “expert” in referring to any wit- conequences that can flow from formal The secondary authorities agree that, ness, testimony or opinion in front of tender-and-acceptance, consider the as a matter of policy, lawyers and judges the jury, is preferable. The proponent of following: Only one party can afford should refrain from using the term “ex- such opinion evidence would not ask the to hire an expert for a jury trial. Team pert” in front of a jury when referring to court to endorse the proposed expert by Expert tenders EW as an expert, and the either a witness or his testimony. Rather, offering or tendering the witness as an court announces that EW’s opinions are presentation of the witness’s qualifica- “expert,” or request the court to “accept” “EXPERT.” The other party presents tions, along with voir dire and cross-ex- or “certify” that the witness is an expert. its case without any experts. The jury amination by the opposing party, should Similarly, a party objecting to such evi- receives two viewpoints: one side with allow the jury to assign the proper weight dence on the basis that the witness is not an “expert” supporting it, and the other to the witness’s opinions. qualified to render an opinion, or that a with only “fact” witnesses in its corner. There is no direct guidance from the Unintentional jury bias favoring the party

228 December 2017 / January 2018 with the judicial endorsement of its star So.3d 109, 113-30 (ruling on the award and reason- (Wicker, J., dissenting). witness as an “expert” would likely re- ableness of expert witness fees of eight experts in 16. Fed. R. Evid. 702, 2000 Advisory an expropriation case). Committee notes; see also, La. C.E. art. 702, cmt. sult. 2. La. C.C.P. art. 1920; La. R.S. 13:3666. (b). All of the concerns enunciated by the 3. See, e.g., Mary Jo Hudson, “Expert Witness 17. Fed. R. Evid. 702, 2000 Advisory commentators appear in this one brief Fees as Taxable Costs with Federal Courts: The Committee notes (citing Hon. Charles Richey, hypothetical: Influence on the jury? Exceptions and the Rule,” 55 U. Cin. L. Rev. 1207, Proposals to Eliminate the Prejudicial Effect of the 1211 (1987). Use of the Word “Expert” Under the Federal Rules Check. Unnecessary step that compro- 4. See, e.g., La. R.S. 13:3666 (allowing for the of Evidence in Criminal and Civil Jury Trials, 154 mises the court’s appearance of impar- award of expert fees at the trial judge’s discretion); F.R.D. 537, 559 (1994) (internal quotations omit- tiality? Check. Prejudice to the side that Coon v. Placid Oil Co., 493 So.2d 1236, 1248 (La. ted)). could not afford an expert? Check. App. 3 Cir. 8/29/86), writ denied, 497 So.2d 1002 18. U.S. v. Johnson, 488 F.3d 690, 697 (6 Cir. (La. 1986). 2007). Alternatively, assume one party had 5. Coon, 493 So.2d at 1248. 19. U.S. v. Ollison, 555 F.3d 152, 164 (5 Cir. two experts, while the other only had 6. Raymond v. Gov’t Employees Ins. Co., 2009). one. The side with just one expert has 2009-1327 (La. App. 3 Cir. 6/2/10), 40 So.3d 1179, 20. American Bar Association, Civil Trial the stronger case, but the smaller budget. 1193-94 (citation omitted), writ denied, 10-1569 Practice Standards, Standard 14, last updated (La. 10/8/10), 46 So.3d 1268. August 2007, available at: http://www.americanbar. That stronger case prevails at trial, thanks 7. E.g., Cotton v. State, 675 So.2d 308, 312 org/content/dam/aba/migrated/2011_build/litiga- to the testimony of that one expert wit- (Miss. 1996) (stating that it is reversible error where tion/ctps.authcheckdam.pdf. ness, but its counsel never formally ten- an expert is not formally qualified or tendered prior 21. Civil Trial Practice Standards, Standard 14, dered the witness as an expert. to giving testimony); but c.f. State v. White, 457 supra, note 20. S.E.2d 841, 858 (N.C. 1995) (stating that tender 22. Wright and Miller, 29 Fed. Prac. & Proc. In three of Louisiana’s circuits, that is not required, as qualification is “implicit in the Evid. § 62-64.3 (2 ed.) (emphasis added). omission would mean that the party court’s admission of the testimony in question”); 23. “Dual Roles: Fact and Expert Witness,” 25- whose expert won the case is not entitled see also, U.S. v. Bartley, 855 F.2d 547, 552 (8 Cir. Fall Crim. Just. 32, 34-35 (Fall 2010) (emphasis to recover its expert witness fees. In two 1988), affirmed in part and remanded in part, 487 added). U.S. 931 (1988) (“Although the practice is different 24. La. S.Ct. Rule XLIV, Plain Civil Jury others, it is enough that the witness pro- in some state courts, the Federal Rules of Evidence Instructions, effective Oct. 15, 2014. (No Plain vided an expert opinion — the court can do not call for the proffer of an expert after he has Criminal Jury Instructions have been issued.) still weigh the testimony and, in its dis- stated his general qualifications.”). 25. As one Texas state court judge pointedly cretion, award expert fees. 8. See, e.g., Gagnard v. Zurich Am. Ins. Co./ declared, “There’s no need in state court to tender a Assur. Co. of Am., 02-0019 at pp. 3-6 (La. App. 3 witness as expert or seek a ruling by the judge that Instead of allowing this uncertainty, Cir. 6/12/02), 819 So.2d 489, 491-492 (“There is no the witness is an expert. Just ask the expert your the Supreme Court should adopt one uni- requirement that a party formally tender an expert questions.” Hon. Randy Wilson, “From My Side form rule that also addresses these policy witness or that a court formally declare that a wit- of the Bench: Folklore and Myths,” 44 The Advoc. concerns. Eliminating formal “tender- ness is accepted as an expert”). (Texas) 153, 153 (Fall 2008). 9. See, e.g., La. C.E. art. 702 cmts. (2017 ed.); J. and-acceptance” reduces the worry of Michael Veron, “The Trial of Toxic Torts: Scientific John H. Musser V, a di- “overwhelming” the jury or providing an Evidence in the Wake of Daubert,” 57 La. L. Rev. rector in the law firm of inadvertent “stamp of authority,” since 647 (1997) (describing the customary procedure for Murphy, Rogers, Sloss, a jury will not hear that a particular wit- tendering and accepting an expert in Louisiana). Gambel & Tompkins, 10. E.g., Boudreau v. Boudreau, 10-347 (La. A.P.L.C., earned his ness is an “expert” in a particular field. App. 5 Cir. 3/9/11), 62 So.3d 207; Square Deal bachelor’s degree from Rather, the court will simply advise that Siding Co. v. Thaller, 08-0757 at p. 8 (La. App. 4 the University of Virginia some witnesses are able to offer opin- Cir. 12/30/08), 3 So.3d 71, 78; Dorsett v. Johnson, and his JD degree from ions. Considering that the tender-and-ac- 34,500 (La. App. 2 Cir. 5/9/01), 786 So.2d 897, Tulane University Law 901-02, writ denied, 01-1706 (La. 9/28/01), 798 School, with a Certificate ceptance practice also prolongs the trial, So.2d 115; Darbonne v. Wal-Mart Stores, Inc., 00- in Environmental Law. it seems both prudent and reasonable to 0551 at p. 5, (La. App. 3 Cir. 1/2/00), 774 So.2d. He is a member of the eliminate this process, resulting in less 1022, 1028; Hebert v. Diamond M. Co., 385 So.2d Louisiana Bar Journal’s Editorial Board and the interruption and prejudice in the presen- 410, 415 (La. App. 1 Cir.), writ denied sub nom., Louisiana State Bar Association’s Client Assistance 25 390 So.2d 203 (La. 1980). Fund and Practice Assistance Committees. (jmuss- tation of evidence. 11. Darbonne, 774 So.2d at 1028; Square Deal [email protected]; Ste. 400, 701 Poydras St., New In short, perhaps a little less tender- Siding, 3 So.3d at 78. Orleans, LA 70139) ness, by doing away with the requirement 12. Boudreau, 62 So.3d at 207; Dorsett, 786 or custom of qualifying expert witnesses So.2d at 901-02; Hebert, 385 So.2d at 415. Tarryn E. Walsh, an as- 13. See, e.g., 1732 Canal St., L.L.C., 133 So.3d sociate in the law firm of in front of the jury to be awarded expert at 120. Murphy, Rogers, Sloss, fees as costs, will place all parties on a 14. Cheairs v. State ex rel. Dept. of Transp. and Gambel & Tompkins, level playing field, regardless of whether Dev., 03-0680 (La. 12/3/03), 861 So.2d 536, 539- A.P.L.C., earned her they have an expert on their team. 45, on reh’g in part (Jan. 16, 2004) (confirming that bachelor’s degree from Louisiana follows the rule of Daubert, 113 S.Ct. Boston University and 2786 (1993), as enunciated by the 11th Circuit in her JD degree from FOOTNOTES City of Tuscaloosa v. Harcros Chem., Inc., 151 F.3d Tulane University Law 548 (11 Cir. 1998) (noting that a testifying expert School, with a Certificate 1. See, e.g., Bd. of Supervisors of Louisiana must be qualified to testify competently; has a reli- in Sports Law. (twalsh@ State Univ. & Agric. & Mech. Coll. v. 1732 Canal able methodology; and the testimony will assist the mrsnola.com; Ste. 400, St., L.L.C., 13-0976 (La. App. 4 Cir. 1/15/14), 133 trier of fact)). 701 Poydras St., New Orleans, LA 70139) 15. Boudreau, 10-347 at p. 1, 62 So.3d at 210

Louisiana Bar Journal Vol. 65, No. 4 229 Louisiana Collateral Source Rule

By Michael J. Moran

230 December 2017 / January 2018 uy walks into to fully recover those same amounts from the same amounts for the damages result- a bar and asks, the tortfeasor. ing from the tortfeasor’s actions. “Why would Codification of the Rule Factors Guiding the a mediator be Application of the Rule concerned with a Today, the Collateral Source Rule substantive subject like collateral is codified in both the Louisiana Code Two primary considerations guide a G of Evidence and the Federal Rules of court’s determination with respect to the source?” Bartender says, Evidence. Collateral Source Rule: “Because the participants think ► La. C.E. art. 409 provides, in per- (1) whether application of the Rule will mediators should be treated like tinent part, “In a civil case, evidence of further the major policy goal of tort deter- furnishing or offering or promising to pay mushrooms — kept in the dark rence; and expenses or losses occasioned by an injury (2) whether the victim, by having a and fed manure.” Ba da boom! to person or damage to property is not ad- collateral source available as a source of From that witticism flows this missible to prove liability for the injury or recovery, either paid for such benefit or effort. damage nor is it admissible to mitigate, re- suffered some diminution in his patrimony duce, or avoid liability therefor.” because of the availability of the benefit, ► Fed. R. Evid. Rules 407, 408 and such that no actual windfall or double re- Origin 409 are similar and provide for the same covery would result from application of Collateral Source Rule. the Rule. The origin of the Collateral Source Rule dates back more than 150 years to the Jurisprudential Statement Contractual Adjustments United States Supreme Court’s decision or Write-Offs in The Propeller Monticello v. Mollison, of the Rule In cases involving contractual adjust- 58 U.S. 152, 15 L.Ed. 68 (1854). There, ments or write-offs, the Supreme Court in a steamship, The Propeller Monticello, Today, the prevailing expression of the Bozeman instructed that the proper focus was in a shipwreck with a schooner, The Collateral Source Rule, and its meaning, of the inquiry should be on the nature of Northwestern. Both ships were carrying is found in Bozeman v. State, 2003-1016 the write-offs vis-à-vis the tortfeasor, rather cargo; the schooner, which was insured, (La. 7/2/04), 879 So.2d 692. There, the than vis-à-vis the tort victim. Additionally, sank. The insurance carrier for the schoo- Louisiana Supreme Court stated: “Under courts typically ask whether the tort victim ner paid for the losses sustained, includ- the collateral source rule, a tortfeasor may “incurred” the total charged amount for ing its cargo. Later, the schooner filed suit not benefit, and an injured plaintiff’s tort services provided. Stated otherwise, is the against the steamship, seeking to recover recovery may not be reduced, because tort victim liable or legally obligated to pay the value of the schooner’s cargo. As a de- of monies received by the plaintiff from for expenses exceeding the contractually fense, the steamship argued that the pay- sources independent of the tortfeasor’s adjusted, or written-off, amount? ment by the private insurer effectively procuration or contribution.” Id. at 693. released the steamship from liability as it Windfalls or Double Recovery would be unfair to have the schooner col- Theory and Purpose The purpose of tort damages is to make lect twice for its cargo-related damages. of the Rule the victim whole. This purpose is thwarted, The Supreme Court disagreed and for however, when the victim is allowed to re- the first time created the Collateral Source The Collateral Source Rule is most of- cover the same element of damages twice. Rule, stating: “The contract with the in- ten placed at issue where insurance pay- Nevertheless, the potential for double re- surer is in the nature of a wager between ments have been made in relation to a tort covery does not necessarily bar application third parties, with which the trespasser has victim’s damages. However, as discussed of the Collateral Source Rule. Thus, where no concern. The insurer does not stand in below, application of the Rule is not con- application of the Rule is appropriate, a the relation of a joint trespasser, so that sat- fined to tort cases only. plaintiff will occasionally have insurance isfaction accepted from him shall be a re- Still, the theory and purpose behind the reimbursements for certain elements of lease of others.” 58 U.S. at 155. Ultimately, Collateral Source Rule is best explained damages and recover some of the same el- the Supreme Court concluded that the tort- in terms of insurance proceeds or benefits ements from the tortfeasor. In such cases, feasor “is bound to make satisfaction for in tort cases. That is, courts applying the double recovery is justified because the the injury he has done.” Id. Rule have emphasized that a tortfeasor tortfeasor should not receive the benefit of In Louisiana, the seminal case is Gunter should not be allowed to benefit or gain an the victim’s thrift, employment benefits, or v. Lord, 242 La. 943, 140 So.2d 11 (1962), advantage from a plaintiff’s foresight and special services rendered by a third party. which established the plaintiff’s right to prudence in securing insurance and other Rather, in cases where double recovery fully receive benefits he has paid for (or outside benefits. A tortfeasor should pay might occur, courts must ensure that the those benefits paid for on his behalf) and an “insured” and an “uninsured” victim

Louisiana Bar Journal Vol. 65, No. 4 231 tortfeasor bears only the single burden for defendant); Griffin v. Louisiana Sheriff’s fendant agreed to pay the plaintiff victim his wrong. Auto Risk Ass’n, 1999-2944 (La. App. 1 the full amount of medical bills, specifical- Cir. 6/22/01), 802 So.2d 691, writ denied, ly including the difference between the to- The Collateral Source Rule 2001-2117 (La. 11/9/01), 801 So.2d 376 tal medical expenses billed and the amount as an Evidentiary Rule (explaining that plaintiff’s patrimony was paid by Medicare. Thus, the 5th Circuit continually diminished to the extent she emphasized that the compromise agree- The Collateral Source Rule is not tech- had to pay premiums in order to secure ment was the law between the parties; the nically an exclusionary rule of evidence. the benefit of the insurance). Stated oth- 4th Circuit has distinguished Kozina on However, where application of the Rule is erwise, a tort victim generally is entitled this basis. placed at issue (e.g., whether a jury may to recover the full amount of his medical ► 4th Circuit — The Rule does not be presented evidence of contractual ad- expenses. Thus, in Royer v. State, Dept. apply, but the cases predate Bozeman. justments pursuant to health care insur- of Transp. & Dev., 2016-0534 (La. App. Suhor v. Lagasse, 2000-1628 (La. App. 4 ance), parties typically file a motion in 3 Cir. 1/11/17), 210 So.3d 910, writ de- Cir. 9/13/00), 770 So.2d 422 (holding that limine regarding introduction of evidence nied, 2017-0288 (La. 4/24/17), 221 So.3d the Rule did not give a tort victim the right of payments made by the collateral source. 69, the 3rd Circuit upheld the trial court’s to recover medical expenses extinguished See, e.g., Asbahi v. Beverly Indus. L.L.C., denial of DOTD’s motion in limine which by operation of federal law governing 2011-2012 (La. App. 1 Cir. 5/23/12), 2012 sought credit for medical bills paid by in- Medicare); Boutte v. Kelly, 2002-2451 WL 1922300, writ denied, 2012-1309 (La. jured plaintiff’s workers’ compensation in- (La. App. 4 Cir. 9/17/03), 863 So.2d 530, 9/28/12), 98 So.3d 842 (upholding trial surer and explained that the Rule applies to writ denied, 2004-0071 (La. 5/21/04), 874 court’s exclusion of evidence of amounts a tortfeasor even if consideration — in the So.2d 172 (following the reasoning in written off by health care providers asa form of policy payments — is nonexistent. Suhor). result of their contract with tort victim’s But note: Where medical expenses Note: Tort victims must reimburse the private medical insurance provider). are paid through workers’ compensation Medicare Trust Fund to the extent they are The Rule also is incorporated into the coverage provided by the employer pur- awarded damages for the medical expenses La. Code of Evidence, as Art. 409 makes suant to Longshore and Harbor Workers’ paid by Medicare. 42 U.S.C. § 1395y(b). evidence of “furnishing or offering or Compensation Act (LHWCA), an injured promising to pay expenses or losses occa- plaintiff may not recover from third-party Medicaid Program sioned by an injury to person or damage to tortfeasor for full amount of medical ex- (Free Medical Care) property is not admissible . . . to mitigate, penses billed but not paid. Deperrodil v. The Collateral Source Rule does not reduce, or avoid liability therefor.” Further, Bozovic Marine Inc., 842 F.3d 352 (5 Cir. apply, and a tort victim who is a Medicaid a court may disallow introduction of evi- 2016). recipient may not recover medical ex- dence of collateral benefits because of the penses that were written off by a health resulting prejudice. See, e.g., Francis v. Medicare Insurance Coverage care provider pursuant to the Medicaid Brown, 95-1241 (La. App. 3 Cir. 3/20/96), The Louisiana Supreme Court has not program. Bozeman, supra at 692; see also, 671 So.2d 1041 (holding that trial court squarely addressed the issue of whether Benoit v. Turner Indus. Group, L.L.C., erred in allowing plaintiff to be cross-ex- the Collateral Source Rule applies where 2011-1130 (La. 1/24/12), 85 So.3d 629 amined as to payment by her counsel of a tort victim is insured through Medicare. (workers’ compensation). plaintiff’s medical costs). Following Bozeman, the answer is likely: In Bozeman, the Louisiana Supreme Yes, the Rule applies because Medicare is Court discussed the nature of the Medicaid a form of insurance for which the insured write-off process: “When an injured plain- The Collateral Source Rule, pays premiums, thereby diminishing the tiff is a Medicaid recipient, federal and as Applied insured’s patrimony. Nevertheless, the state law require that the health care pro- Louisiana Courts of Appeal are split on the viders accept as full payment, an amount Private Health Insurance issue. set by the Medicaid fee schedule, which, The Collateral Source Rule applies, ► 1st, 2nd, 3rd and 5th Circuits — The invariably, is lower than the amount and a tortfeasor may not seek a reduction Rule applies. Ketchum v. Roberts, 2012- charged by the health care provider.” The in the damages award for any written-off 1885 (La. App. 1 Cir. 5/29/14), 2014 WL Court reasoned that a tort plaintiff could amounts procured by the tort victim’s in- 3510694; Johnson v. CLD, Inc., 50,094 not recover as damages those medical surer. See, e.g., O’Connor v. Litchfield, (La. App. 2 Cir. 9/30/15), 179 So.3d 695; expenses written off under the Medicaid 2003-0397 (La. App. 1 Cir. 12/31/03), Niles v. American Bankers Ins. Co., 229 program, explaining: “Care of the na- 864 So.2d 234, writ not cons., 2004-0655 So.2d 435 (La. App. 3 Cir. 1969), writ tion’s poor is an admirable social policy. (La. 5/7/04), 872 So.2d 1069 (uphold- ref’d, 255 La. 479, 231 So.2d 394 (1970); However, where the plaintiff pays no en- ing application of Collateral Source Rule Kozina v. Zeagler, 94-413 (La. App. 5 Cir. rollment fee, has no wages deducted, and where defendant employer paid plain- 11/29/94), 646 So.2d 1217. otherwise provides no consideration for tiff’s entire health care premium as part Note: Kozina was based on a compro- the collateral source benefits he receives, of plaintiff’s employment contract with mise settlement in which the tortfeasor de- we hold that the plaintiff is unable to re-

232 December 2017 / January 2018 cover the ‘write-off’ amount. This position 2349 (La. 5/20/03), 846 So.2d 734, the Brierre Architects, 2017 WL 2731028 is consistent with the often-cited statement Supreme Court held that the Collateral (E.D. La. 2017). There, a prior arbitration . . . that ‘(i)t would be unconscionable to Source Rule applied in cases arising un- proceeding ended after the subcontractor permit the taxpayers to bear the expense of der the Louisiana Environmental Quality paid the project’s contractor to settle the providing free medical care to a person and Act (LEQA), “at least where a damaged arbitration; some of the settlement pay- then allow that person to recover damages party is seeking reimbursement only for ments came from the sub’s insurer. For this for medical expenses from a tortfeasor remediation expenses.” Thus, a former reason, the architect sought a summary and pocket the windfall.’ After careful re- property owner could not seek a reduc- judgment that the amounts paid by the view, we conclude that Medicaid is a free tion in liability for the amount of environ- sub’s insurer were not recoverable because medical service, and that no consideration mental cleanup paid to plaintiff DOTD they did not constitute actual losses to the is given by a patient to obtain Medicaid by the Federal Highway Administration sub. The district court disagreed, explain- benefits. His patrimony is not dimin- (FHWA). The Court’s holding was “com- ing that in Louisiana a wrongdoer may not ished, and, therefore, a plaintiff who is a manded by the paramount public interest “benefit from the victim’s foresight in pur- Medicaid recipient is unable to recover the in ensuring that those persons or entities chasing insurance and other benefits.” ‘write off’ amounts. The operative words responsible for harming our environment here are ‘free medical care,’ which, again, and the welfare of our citizens be held fully Legal Loan Broker we hold is applicable to plaintiffs who re- responsible for the consequences of their Magee v. ENSCO Offshore Co., 2013 ceive Medicaid, not plaintiffs who receive actions, and deterred from committing fu- WL 2389910 (E.D. La. 2013), involved Medicare or private insurance benefits.” ture violations of the LEQA.” There, the maintenance and cure and unseaworthi- Bozeman, supra at 705. defendant railway’s actions had caused the ness claims under the Jones Act and gen- Prior to Bozeman, the 2nd Circuit had pollution, which was discovered during an eral maritime law against two defendants similarly concluded that the Collateral Interstate construction project; FHWA had — the plaintiff’s employer and the owner- Source Rule does not allow recovery of reimbursed DOTD 90 percent of the clean- operator of the vessel on which plaintiff medical expenses in excess of Medicaid up costs incurred by DOTD. was injured. After the parties negotiated payments. Terrell v. Nanda, 33,242 (La. a settlement, a dispute arose between the App. 2 Cir. 5/10/00), 759 So.2d 1026. Property Damages (Hurricane); plaintiff and his employer about the pay- Note: A tortfeasor is liable to the State Recovery-Authority Grant Funds ment of certain medical bills incurred for the reduced amount of medical expens- In Metoyer v. Auto Club Family Ins. by plaintiff and paid for by Diagnostic es paid by Medicaid. See, Benoit v. Turner Co., 536 F.Supp.2d 664 (E.D. La. 2008), Management Affiliates (DMA). DMA, Indus. Group, supra; Terry v. Simmons, the federal district court granted a motion through various agreements it had with 51,200 (La. App. 2 Cir. 2/15/17), 215 in limine filed by plaintiff property owner certain medical providers, was able to ob- So.3d 410. in action seeking enforcement of insurance tain medical services for plaintiff’s back contract for losses sustained as a result of injuries at a discounted rate. Other Kinds of Damage Hurricane Katrina; the motion sought to In opposing the plaintiff’s motion to Claims exclude evidence of Louisiana Recovery enforce the settlement agreement, his em- Authority (LRA) funds the plaintiff had ployer argued that, under the terms of the Application of the Collateral Source received to rebuild his home. In finding settlement, it should have to reimburse Rule is not limited to personal injury that the Collateral Source Rule applied to only the actual sums that DMA paid to the claims in tort cases. Nevertheless, courts the LRA funds, the district court explained medical providers, not the full amount due applying the Rule with respect to other that there was no danger of a double recov- (approximately $76,000). The employer types of damage claims have drawn paral- ery or windfall as the LRA required that claimed that it should not have to pay the lels between the policy concerns at issue when it awards a grant (which was funded additional amount that was billed because in conventional tort cases and elsewhere. through a federal agency), it will be subro- such amount merely represented a profit Additionally, a factor that courts have gated to the rights of the homeowner with for DMA, not a “reasonable” medical ex- looked to when deciding whether to apply regard to insurance payments. pense. the Rule is whether the collateral source The federal district court disagreed. has a right to seek reimbursement (via con- Property Damages Noting that the settlement agreement’s ventional subrogation or otherwise) from (Construction Defect) plain language provided that the employer the aggrieved party. In an indemnity action concerning a would “assume responsibility for all low construction project, the federal district back related cure,” the court found the dis- court concluded that the Collateral Source puted medical bills constituted “necessary Environmental Property Damages; Rule precluded the defendant architect’s medical expenses” and thus “cure.” The Federal Agency as Collateral attempt to rely on payments made by the court deemed it significant that the plaintiff Source In Louisiana Dept. of Transp. & Dev. plaintiff subcontractor’s insurer to decrease was only able to obtain the disputed medi- v. Kansas City Southern Ry. Co., 2002- the damages that the architect may owe cal services by contracting with DMA for to the subcontractor. AFC Inc. v. Mathes their payment: the employer had refused to

Louisiana Bar Journal Vol. 65, No. 4 233 pay for his medical care, and, as a result, ment was a matter to be worked out be- So.2d 528 (La. App. 4 Cir. 1968), reached plaintiff entered into an agreement with tween plaintiff and his attorneys. the same conclusion; Asbahi v. Beverly DMA by which DMA would provide his Indus., supra, also addressed, in dicta, the necessary medical care, and plaintiff in Reduced Payments Negotiated Collateral Source Rule as applied to pro- turn would repay the costs associated with by the Victim fessional courtesy services rendered gratu- testing and surgery to DMA. Accordingly, Lockett v. UV Ins. Risk Retention itously by a fellow physician. the court concluded that the full amount Group, Inc., 15-166 (La. App. 5 Cir. charged by DMA was the reasonable and 11/19/15), 180 So.3d 557, involved a nurse Summary necessary amount of cure and was cov- at East Jefferson General Hospital who in- ered by the settlement agreement. See also, curred about $55,000 in medical expenses The Collateral Source Rule has proven Howard v. Offshore Liftboats, L.L.C., 2016 for treatment at Ochsner. Although she fertile ground for some contentious discus- WL 232252 (E.D. La. 2016), which ap- had health insurance available, she opted sions in mediation, bench conferences and plied the same rationale to another DMA not to file an insurance claim; instead, settlement discussions. claim. she personally negotiated with Ochsner The smoke has somewhat cleared re- for a significant reduction of her bills in cently regarding issues of plaintiffs’ use of Attorney-Related Payments exchange for immediate payment of the “funding agents” post-accident to secure Hoffman v. 21st Century N. Am. Ins. reduced amount, a lump sum of $13,786. medical treatment so that the bulk of au- Co., 2014-2279 (La. 10/2/15), 299 So.3d The trial court awarded her the full amount thority is that the gross billing of such enti- 702, held that the Collateral Source Rule of the Ochsner bill, and the 5th Circuit af- ties will be approved as a collateral source does not apply to attorney-negotiated firmed. The plaintiff’s payment of her own even though the funding agents paid dis- medical write-offs or discounts obtained funds to Ochsner “clearly diminished her counted amounts to discharge the billing. through the litigation process. In adopting patrimony,” and “thus, she was entitled to Also, just about any type of insurance this “bright line rule,” the Supreme Court recover the full cost of her medical expens- or benefit for which a litigantpays will also explained: First, allowing the plaintiff to es, including the reduced or ‘written-off’ be seen as a collateral source, e.g., medical recover expenses he has not actually in- amount.” Further, “it would be contrary to insurance, Medicare, workers’ compensa- curred himself, and for which he has no the purpose of the collateral source rule to tion. obligation to pay, is at cross purposes with allow Defendants to benefit from Plaintiff’s Finally, if a litigant is so well positioned the basic principles of tort recovery under bargain with Ochsner, which consisted of as to receive gratuitous services or grants Louisiana law. Second, plaintiff’s argu- an early payment with no contribution by of assistance, the tortfeasor cannot as- ment that consideration is given for attor- Defendants, that Plaintiff personally nego- sert the value of these services as a credit ney-negotiated medical discounts by virtue tiated and paid for.” against his damage exposure. of the contractual obligation of the plaintiff Jones v. Progressive Sec. Ins. Co., su- What clearly seems to be “out of to pay attorney fees is based on the incor- pra, noted that, under the Rule, defendants bounds” as a collateral source are rect assumption that payment of an attor- do not enjoy the benefits of reductions in Medicaid-covered gross billing expenses, ney fee is an additional damage suffered by plaintiff’s medical costs which were the re- LHWCA gross billing expenses and medi- the tort victim. Lastly, to hold that attorney- sult of plaintiff’s discount due to self-pay at cal bills discounted by a provider based negotiated discounts fall under the Rule a surgical hospital. upon a discount arrangement with the would invite a variety of evidentiary and claimant’s attorney. ethical dilemmas for counsel. Gratuitous Services Kie v. Williams, 2016 WL 6208692 Tanner v. Fireman’s Fund Ins. Cos., Michael J. (Mike) Moran (W.D. La. 2016), granted plaintiff’s motion 589 So.2d 507 (La. App. 1 Cir. 1991), is a director, the vice in limine, holding that evidence of the total writs denied, 590 So. 2d 1207 (1992), up- president and a mediator for Mediation Arbitration amounts billed before attorney-negotiated held award of hourly rate of sitting services Professional Systems, Inc. discounts is irrelevant and inadmissible. rendered gratuitously by nonprofessional (maps.) He is engaged Francis v. Brown, supra, applied the family and friends of tort victim who re- in the private practice of Rule to a $500 medical bill paid by attor- quired 24-hour attention. law with concentrations in litigation-personal injury, ney on behalf of his client, an uninsured Johnson v. Neill Corp., 2015-0430 (La. commercial, banking, real tort victim. App. 1 Cir. 12/23/15), 2015 WL 9464625, estate, bankruptcy and Woodard v. Andrus, 2007 WL 855360 writs denied, 2016-0137, 0147 (La. general civil experience (W.D. La. 2007), was a civil rights ac- 3/14/16), 189 So.3d 1068, 1070, upheld over his 45-year career. He graduated from Loyola University Law School and is an adjunct professor tion alleging that state court clerks were award which included expenses for medi- for Tulane University Law School in negotiation/ overcharging filing fees; the court ap- cal services rendered to tort victim — an mediation. ([email protected]; Two Lakeway plied the Rule to a filing fee assessed internist at the medical clinic where she Center, Ste. 400, 3850 N. Causeway Blvd., Metairie, against plaintiff and paid by plaintiff’s received the treatment — as a professional LA 70002) counsel, noting that issue of reimburse- courtesy. Spizer v. Dixie Brewing Co., 210

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Louisiana Bar Journal Vol. 65, No. 4 235 Statutes of Limitations in Federal Criminal Cases

By John S. McLindon

236 December 2017 / January 2018 “Except as otherwise expressly pro- defense before trial will be considered a fenses. vided by law, no person shall be pros- waiver of the defense.3 Finally, no statute of limitations shall ecuted, tried, or punished for any of- In Musacchio v. United States, 136 extend to any person fleeing from jus- fense, not capital, unless the indictment S.Ct. 709 (2016), the Supreme Court tice. 18 U.S.C. § 3290. is found or the information is instituted held that a defendant cannot raise the within five years next after such an of- statute of limitation defense for the first 20 Years fense shall have been committed.” 18 time on appeal. The Court noted that U.S.C. § 3282 (a). statutes of limitations and other dead- There is only one law which has a lines “ordinarily are not jurisdictional.” 20-year statute of limitations. 18 U.S.C. hen asked, The Court held that it would treat a time § 3294 provides that no person shall be bar as jurisdictional “only if Congress prosecuted for a violation of theft of ma- “How long 4 has ‘clearly stated’ that it is.” As to 18 jor artwork (18 U.S.C. § 668) unless the does the fed- U.S.C. § 3282 (a), the Court held that indictment is returned within 20 years eral govern- Congress had not made such a clear after the commission of the offense. ment have statement. 10 Years toW prosecute me?,” most defense No Limitations lawyers cite the above statute Crimes which have a 10-year stat- and give an answer of five years. There is no time limit to bring an in- ute of limitations are identified in 18 However, there are several stat- dictment for an offense “punishable by U.S.C. §§ 3291, 3293, 3295, 3298 and death[.]” Under 18 U.S.C. § 3281, such 3300. These statutes cover (1) national- utes which provide for longer an indictment “may be brought at any ity, citizenship and passports, (2) crimes and shorter periods during which time, without limitation.” against financial institutions, (3) arson the government can bring charg- There are 91 federal crimes which offenses, (4) crimes relating to traffick- call for the death penalty.5 All of these es against citizens. ing and forced labor, and (5) recruit- crimes involve situations where a victim ment of child soldiers. There are 38 total A criminal statute of is killed. crimes subject to a 10-year statute of limitations is a law which In addition to these capital crimes, limitations. there is no statute of limitations for sets forth time limits for 18 U.S.C. § 3283 provides that for crimes which Congress has associated offenses involving the sexual or physi- instituting charges against a with terrorism, if they result in death or cal abuse or kidnapping of a child under citizen. It forbids prosecutors serious injury, or create a foreseeable the age of 18, the statute of limitations from charging someone with risk of death or serious injury. See, 18 does not run during the life of the child, U.S.C. § 3286 (b). This statute referenc- or for 10 years after the offense, which- a crime that was committed es 18 U.S.C. § 2332b (g)(5)(B), which ever is longer. more than a specified number lists all of the terrorism offenses; there of years ago. are 49 in all. Eight Years The last category of crimes that may The main purpose of a statute of limi- be prosecuted at any time are various 18 U.S.C. § 3286 sets forth an eight- tations is to keep citizens from having child abduction and sex offenses. See, year statute of limitations for a variety to defend themselves from charges that 18 U.S.C. § 3299. This statute cross- of crimes, mostly terrorism-related of- occurred so far in the past that it is dif- references to other statutes; there are 19 fenses which are listed in 18 U.S.C. ficult, if not impossible, to defend one- such statutes. 2332b (g)(5)(B), when the commission self. In many cases, evidence may no In sum, there are 159 crimes for of the offense did not result in, or cre- longer be available and memories have which there is no time limitation for the ate a foreseeable risk of, death or seri- faded. federal government to institute prosecu- ous bodily injury to another person. The statute of limitations is an affir- tion. These crimes can be broken down Other crimes listed in § 3286 include mative defense. It should be filed pretrial into three separate categories: (1) capital 18 U.S.C. § 112 (protection of foreign pursuant to F.R.Cr.P. 12(b). This defense offenses — crimes in which a person’s officials and guests), 18 U.S.C. § 351 can be waived explicitly. A knowing and life has been taken; (2) crimes associat- (assault on congressional, cabinet and intelligent waiver of the statute of limi- ed with terrorism, if they result in death Supreme Court members), 18 U.S.C. tations is valid.1 A plea of guilty without or serious injury, or create a foreseeable § 1361 (willful injury of government expressly reserving the statute of limita- risk of death or serious injury; and (3) property or property being manufactured tions has been held to waive later asser- various designated federal crimes deal- for the government), 18 U.S.C. § 1751 tions of the defense.2 Failure to raise the ing with child abduction and sex of- (assault on the President or presidential

Louisiana Bar Journal Vol. 65, No. 4 237 staff), and 49 U.S.C. §§ 46504, 46505 One Year elements: (1) an agreement to commit and 46506 (certain crimes committed a federal crime or to defraud the United on airlines). Criminal contempt actions brought States, and (2) an overt act committed in under 18 U.S.C. § 402 are subject to a furtherance of the agreement.8 For a con- Seven Years one-year statute of limitations. See, 18 spiracy, the limitations begin to run when U.S.C. § 3285. 9 18 U.S.C. § 1031 is a statute that the last overt act is committed. If an indi- defines and criminalizes fraud against vidual withdraws from a conspiracy, the Tax Offenses statute of limitations will start at the time the United States. Section 1031 (f) 10 provides that a prosecution under this Tax offenses have unique rules re- of withdrawal. section may be commenced at any garding the statute of limitations. Tax The statute of limitations under con- time not later than seven years after offenses have either a three- or six-year spiracy statutes that have no overt act the offense is committed, plus any ad- statute of limitations, depending on the requirement runs from the accomplish- type of offense charged. ment of the objectives of the conspiracy, ditional time allowed by law. Other 11 crimes with a seven-year statute of or from its abandonment. limitations include 18 U.S.C. § 247 Continuing Offenses Other continuing offenses include escape from federal custody,12 flight to (damage to religious property) and 18 Generally, the statute of limitations avoid prosecution,13 failure to appear for U.S.C. § 249 (hate crime acts that do begins to run when the offense is com- sentencing,14 possession of the skin and not result in death). pleted.6 However, courts have held that skull of an endangered species,15 posses- some offenses are “continuing” in nature. sion of counterfeit currency16 and kid- Six Years For example, possession of contraband napping.17 offenses are continuing offenses.7 Most 18 U.S.C. § 3301 sets forth six se- According to the U.S. Attorneys’ importantly, conspiracy offenses are curities fraud offenses which are sub- Manual, the finding that an offense is a usually continuing in nature. The gen- ject to a six-year statute of limitations. continuing offense is disfavored. It must eral conspiracy statute consists of two

238 December 2017 / January 2018 be found that “the explicit language of the §§ 1961-1968, requires that state crimes FOOTNOTES substantive criminal statute compels such used as predicate offenses be “chargeable 1. United States v. Levine, 658 F.2d 113 (3 Cir. a conclusion, or that the nature of the crime under State law.” The federal courts have 1981). involved is such that Congress must assur- uniformly held that regardless of the run- 2. See, U.S. Attorneys’ Manual, 9-18.000; edly have intended that it be treated as a ning of the state statute of limitations, a de- United States v. Doyle, 348 F.2d 715 (2 Cir. 1965), continuing one.”18 fendant is still “chargeable” with the state writ denied, 382 U.S. 843, 86 S.Ct. 89 (1965). 3. United States v. Wilbur, 674 F.3d 1160 (9 offense within the meaning of 18 U.S.C. Cir. 2012); United States v. Hsu, 669 F.3d 112 (9 20 Suspension of Limitations 1961 (1)(A). The reference to state law in Cir. 2012); United States v. Flood, 635 F.3d 1255 (10 Cir. 2011). Congress has authorized the suspension the statute is simply to define the conduct and is not meant to incorporate state pro- 4. 136 S.Ct. at 717. of the statute of limitations in certain situ- 5. Charles Doyle, “Statutes of Limitation cedural law. ations. For example, 18 U.S.C. § 3287 is in Federal Criminal Cases: An Overview,” known as wartime suspension. This law Congressional Research Serv. Report for Superseding or Defective Congress, Oct. 1, 2012. provides that when the United States is at Indictments 6. Toussie v. United States, 397 U.S. 112, 90 war or Congress has enacted a specific au- S.Ct. 858 (1970). thorization for the use of the armed forces, If an indictment is dismissed because of 7. Von Eichelberger v. United States, 252 F.2d the running of any statute of limitations for 184 (9 Cir. 1958). a legal defect or grand jury irregularity, the 8. 18 U.S.C. § 371. certain crimes shall be suspended until five government may return a new indictment 9. Fiswick v. United States, 329 U.S. 211, 67 years after the termination of hostilities as within six months of the date of dismissal S.Ct. 224 (1946). proclaimed by presidential proclamation or within the original limitations, which- 10. United States v. Gonzalez, 797 F.2d 915 or by concurrent resolution of Congress. 21 (10 Cir. 1986). ever is later. After the original limitations 11. United States v. Nunez, 673 F.3d 661 (7 The crimes contemplated by this statute period has expired, a superseding indict- Cir. 2012); United States v. Therm-All, Inc., 373 (though not specifically defined by cross- ment may narrow, but may not broaden, F.3d 625 (5 Cir. 2004), cert. denied, 543 U.S. referencing other statutes) generally deal the charges made in the original indict- 1004, 125 S.Ct. 632 (2004). with fraud in the acquisition or negotiation 22 12. United States v. Bailey, 444 U.S. 394, 100 ment. See, 18 U.S.C. §§ 3288-3289. S.Ct. 624 (1980). of contracts connected with or related to 13. United States v. Merino, 44 F.3d 749 (9 the prosecution of the war. Concealing Bankruptcy Cir. 1994), cert. denied, 514 U.S. 1086, 115 S.Ct. The government can also suspend the Assets 1802 (1995). statute of limitations for an offense in or- 14. United States v. Gray, 876 F.2d 1411 (9 The statute of limitations on offenses Cir. 1989), cert. denied, 495 U.S. 930, 110 S.Ct. der to secure evidence held in foreign 2168 (1990). countries (18 U.S.C. § 3292), for cases which involve concealing bankruptcy as- 15. United States v. Winnie, 97 F.3d 975 (7 involving child abuse (18 U.S.C. § 3283), sets does not begin to run until a final deci- Cir. 1996). for concealment of assets of an estate in sion discharging or refusing the discharge 16. United States v. Kayfez, 957 F.2d 677 (9 of the debtor. See, 18 U.S.C. § 3284, which Cir. 1992). bankruptcy (18 U.S.C. § 3284), for any 17. United States v. Denny-Shaffer, 2 F.3d 999 fugitive (18 U.S.C. § 3290), or for cases specifically deems the concealment of as- (10 Cir. 1993). involving the use of DNA evidence (18 sets of a debtor in a case under Title 11 “a 18. U.S. Attorneys’ Manual 9-18.000. U.S.C. §§ 3282 (b) and 3297). continuing offense until the debtor shall 19. U.S. Attorneys’ Manual 9-18.000; United have been finally discharged or a discharge States v. Singleton, 702 F.2d 1159 (DC Cir. 1983). 20. U.S. Attorneys’ Manual 9-18.000; United Tolling Agreements denied,” at which point the period of limi- States v. Licavoli, 725 F.2d 1040 (6 Cir. 1984), tations shall begin to run. cert. denied, 467 U.S. 1252, 104 S.Ct. 3535 The running of a statute of limitations (1984). is tolled during periods when the defen- 21. U.S. Attorneys’ Manual 9-18.000. dant is a fugitive. See, 18 U.S.C. § 3290. Conclusion 22. United States v. Miller, 471 U.S. 130, 105 Physical absence from the jurisdiction is S.Ct. 1811 (1985). not required to trigger this tolling provi- For the majority of crimes listed in the John S. McLindon sion.19 United States Code, there is a five-year statute of limitations. However, there are is a 1989 gradu- The running of a statute of limitations ate of Louisiana State many other crimes that have longer, and may also be tolled on application of the University Paul M. United States during the pendency of an some shorter, periods in which the gov- Hebert Law Center. He also is a graduate of official request to a foreign court orau- ernment can institute prosecution. These statutes are spread throughout the United the National Criminal thority to obtain the evidence located in a Defense College. He States Code and are occasionally amended. foreign country. See, 18 U.S.C. § 3292. practices primarily in the When representing a client charged under area of criminal defense RICO Violations any statute, defense counsel should always in both state and federal check the applicable statute of limitations. court. He is of counsel The Racketeer Influenced and Corrupt to the firm Walters, Papillion, Thomas, Cullens, L.L.C. ([email protected]; 12345 Perkins Rd., Organizations Act (RICO), 18 U.S.C. Bldg. 2, Baton Rouge, LA 70810)

Louisiana Bar Journal Vol. 65, No. 4 239 Gauging Pro Bono Activity in Louisiana

2016 Pro Bono Survey Results Are In!

By Rachael M. Mills

240 December 2017 / January 2018 n 2016, Louisiana attor- WHAT TYPE OF PRO BONO SERVICES neys reported providing approximately 59,000 WERE PROVIDED IN LOUISIANA? hours of volunteer legal Among the types of pro bono services provided in 2016, limited scope representation services to ensure that was the most prevalent. Among those who provided pro bono in 2016, 46.1% provided only limited scope representation and 26% provided both limited scope Ipoor individuals’ legal problems and full representation. 27.5% had only provided full representation in 2016. were assessed and resolved. Pro Percent of Average bono services are an essential Service Attorneys Providing Pro Bono component in maintaining the Type this Type in 2016 Hours rule of law, and the Louisiana Full and Limited Scope Representation 26.0% 100.4 State Bar Association (LSBA) appreciates those 880 attorneys Full Representation Only 27.5% 77.0 who voluntarily reported their Limited Scope Representation Only 46.1% 32.6 activities. Mediation Only 0.4% 19.0

But, what about the remaining 21,000 "Supporting Justice in Louisiana: A Report on the Pro Bono Work of Louisiana's Lawyers" produced Louisiana attorneys? If every one of by the ABA Standing Committee on Pro Bono and Public Service, July 2017 Louisiana’s 22,000+ attorneys provided the 50 hours of pro bono services rec- 1) Amount and Type of Pro Bono in tice settings. On average, private practice ommended annually by Rule 6.1, we 2016. attorneys provided 31.1 hours and non- would have reported more than 1 mil- The first two sections of the survey profit attorneys provided 150 hours of lion hours. Are attorneys not providing only applied to attorneys who provided pro bono service in 2016. Comparatively, pro bono services? Or, are they simply pro bono services in 2016. Focusing these corporate attorneys provided 10.3 hours not reporting those pro bono hours? two sections on pro bono work provided and government attorneys provided 10.7 Earlier this year, Louisiana attorneys in 2016 was significant to determine the hours. participated in a survey conducted by most current pro bono statistics. Overall, the American Bar Association’s (ABA) more than half of the respondents (57.9%) Who received these pro bono ser- Standing Committee on Pro Bono and indicated they provided pro bono in vices? Public Service as part of an effort to 2016, while only 19.3% said they did not. ► Louisiana attorneys provided these gauge pro bono activity across the coun- Among those attorneys who provided pro services more often to individuals (91.3% try. Louisiana was one of 24 participat- bono services in 2016, the average num- of the time) and less often to organizations ing states. The goal of the survey was to ber of hours provided was 57.4 and the (26%), as compared to the national aver- quantify the amount of pro bono work average number of legal matters was 12. ages of 85.2% and 35.5%. provided in Louisiana, obtain the char- ► The report identifies who the pro acteristics of recent pro bono service, Here are some findings: bono clients were and the types of attor- and determine what factors encourage ► Louisiana attorneys provided 33.2 neys more likely to represent them. For or discourage pro bono service. From hours of pro bono service as compared to example, in Louisiana, 41.2% of the at- January to March 2016, the survey was 36.9 hours nationally. torneys indicated having represented eth- open to all active attorneys. Those who ► Male attorneys reported having nic minorities, and Black attorneys were regularly participate in pro bono activi- done pro bono most recently in 2016 more likely to represent these type clients. ties as well as those who have never pro- (62.8% compared to 50% of the female Additionally, 17.2% of the respondents in- vided pro bono assistance were encour- attorneys). dicated having represented children or ju- aged to take the survey. About 1,800 ► While nationally there were little veniles, and Hispanic attorneys were more attorneys participated in the survey and or no differences related to race or eth- likely to represent this group. the results are in! nicity regarding the number of hours, in In general, a greater percentage of The survey was divided into four Louisiana, Black (54.5) and Hispanic Louisiana attorneys indicated representing sections — 1) Amount and Type of Pro (74.7) attorneys provided more hours of the various types of clients than attorneys Bono Service in 2016; 2) Recent Pro pro bono. did on the average. One exception (where Bono Experience; 3) Motivations and ► Private practice and non-profit at- fewer Louisiana attorneys indicated repre- Attitudes; and 4) Other Public Service torneys reported doing significantly more sentation than the national average) was in Activities. pro bono than did attorneys in other prac- immigration work.

Louisiana Bar Journal Vol. 65, No. 4 241 2) Recent Pro Bono Experience. NATIONWIDE AVERAGE PRO BONO HOURS BY GENDER Here are some findings: ► 33.2% of the attorneys indicated that their most recent client came directly to them. The remaining 66.8% were re- ferred from some specific source. The most common referral sources were legal aid pro bono programs, followed by fam- ily members or friends. ► The tasks performed were gener- ally within the attorneys’ area of experi- ence. Specifically, 64.6% indicated that their recent pro bono experience was within their area of experience. ► Female, minority, younger and ur- PRO BONO HOURS YEARLY ban attorneys did pro bono work outside of their experience. ► On the average, attorneys in Louisiana spent less time (21.9 hours) on AGE their most recent pro bono case as did at- "Supporting Justice in Louisiana: A Report on the Pro Bono Work of Louisiana's Lawyers" produced torneys nationally (29.1 hours). by the ABA Standing Committee on Pro Bono and Public Service, July 2017

3) Motivations and Attitudes. Here are some findings: ple, younger attorneys (under 40) were The third section of the survey, ► Motivation for Louisiana attorneys most motivated primarily by helping “Motivations and Attitudes,” offered was similar to attorneys nationally. The people in need, followed by being a good insight into what compels an attorney top three motivators for Louisiana attor- person and social inequalities, before to provide pro bono services and what neys providing pro bono were: 1) helping ethical obligations or professional duties. might encourage others to provide those people in need; 2) ethical obligation; and ► To identify pro bono opportunities, services. The majority of the attorneys 3) professional duty. just under half of the attorneys (41.6%) surveyed, 79.8%, believe that pro bono ► Female, Hispanic and Asian attor- had reached out to some organization and services are either somewhat or very im- neys in Louisiana also included “reduc- 63.3% had been contacted by an organi- portant and very few surveyed attorneys ing social inequities” as a motivating zation. However, Louisiana attorneys indicated they did not believe pro bono to factor. were less likely to either contact or be be important. ► Answers were also different de- contacted by a legal aid or pro bono orga- pending on an attorney’s age. For exam- nization than attorneys nationally. ► According to respondents, in order to engage more attorneys, pro bono pro- NATIONWIDE PRO BONO HOURS BY FIRM SIZE grams should: 1) provide limited scope representation opportunities; 2) engage judges in soliciting participation; and 3) provide CLE credit for doing pro bono. ► According to the respondents, the top three discouraging factors were: 1) lack of time; 2) commitment to family or other personal obligations; and 3) lack of skills or experience in the practice areas needed by pro bono clients. ► Interestingly, of the 46.5% of re- spondents who provided pro bono ser- vices as a law student, more than half YEARLY PRO BONO HOURS YEARLY (61.3%) said that doing so made them more or far more likely to provide pro 1 2-5 6-10 11-20 21-50 51-100 101-300 More than bono services after graduating from law attorney attorneys attorneys attorneys attorneys attorneys attorneys 300 attorneys school. FIRM SIZE, NATIONAL AVERAGE ► Overall, 44.7% of the respondents "Supporting Justice in Louisiana: A Report on the Pro Bono Work of Louisiana's Lawyers" produced indicated that they were either likely or by the ABA Standing Committee on Pro Bono and Public Service, July 2017

242 December 2017 / January 2018 WHAT PUBLIC SERVICE ACTIVITIES DID ATTORNEYS PROVIDE IN 2016? The surveyed attorneys provided a range of public service activities in 2016. Approximately 25% of the attorneys reported that they had provided legal services for a reduced fee in 2016, with an average of 50.4 hours provided. See the chart below for more information. NOTABLE TRENDS: GENDER: Male attorneys were more likely to have provided reduced fee services in 2016 (27%) than female attorneys (21.7%). PRACTICE SETTING: Private practice attorneys were significantly more likely to have provided reduced fee services in 2016 (30.8%) compared to attorneys in the corporate or government settings. Percent of Average Public Service Activity Attorneys Providing Pro Bono in 2016 Hours Legal Services for a Reduced Fee 24.9% 50.4 Speaker at Legal Education Event for Non-Lawyers 13.2% 8.5 Trainer or Teacher on Legal Issues 12.6% 34.3 Grassroots Community Advocacy 8.3% 31.5 Policy Advocacy 6.3% 32.4 Supervising or Mentorship to Another Attorney Providing Pro Bono Representation 5.0% 24.0 Member of Bar Committee Related to Pro Bono or Access To Justice 4.5% 19.9 Member of Board of Legal Services or Pro Bono Organization 4.1% 86.4 Lobbying on Behalf of a Pro Bono Organization 2.8% 16.2 Member of Firm Committee Related to Pro Bono or Access to Justice 1.6% 66.0 Other 6.9% None of the above 34.0%

"Supporting Justice in Louisiana: A Report on the Pro Bono Work of Louisiana's Lawyers" produced by the ABA Standing Committee on Pro Bono and Public Service, July 2017

very likely to offer pro bono services in legal aid, the first question is, “What are Access to Justice Pro Bono Resources 2017, while only 19.8% indicated they attorneys doing to help?” With this infor- web page to learn about the numerous pro were unlikely or very unlikely to do so. mation, we can report that, in 2016, ap- bono opportunities throughout the state. proximately 59,000 hours were provided Go to: https://www.lsba.org/ProBono/. 4) Other Public Service Activities. by Louisiana attorneys equating to $7.35 To read the full survey report, visit the Pro bono legal services were not the million of donated services. ATJ Commission’s home page at: https:// only type of volunteer work examined by For the past several years, the LSBA www.lsba.org/ATJCommission/. the survey. The fourth section asked the has noticed a drop in the amount of pro surveyed attorneys to detail additional bono hours reported. In 2010, 2,005 attor- Rachael M. Mills is the public service activities they perform. neys reported more than 134,000 hours; in Louisiana State Bar Association’s Access to 2016, the number of reporting attorneys Justice projects counsel. Importance of Reporting dwindled to 878, reporting approximate- She earned her JD degree in 2015 from Louisiana Pro Bono Hours to the LSBA ly 59,000 hours. Help the LSBA support your local public interest organizations by State University Paul M. Hebert Law Center and Quantifying the number of pro bono reporting your hours online at: www.lsba. was admitted to practice in hours provided each year is instrumental org/goto/pbreporting. Louisiana the same year. ([email protected]; to the LSBA’s continued efforts to sup- 601 St. Charles Ave., New port Louisiana’s civil legal aid network. How Do I Get Involved? Orleans, LA 70130) Often when members of the Bar’s leader- ship seek state or federal funding for civil If you are interested in getting in- volved in pro bono, visit the LSBA’s

Louisiana Bar Journal Vol. 65, No. 4 243 Attorneys Volunteer Talent for "Lawyers in Libraries" Service

Attorneys Ruby A. Lewis, left, and Felicia H. Programs Hamilton, right, presented a program in Caddo Parish (Shreveport). With them, librarian Wyolanda Hall. By Michael W. Schachtman

ouisiana pro bono attorneys provided much- needed legal assistance to the public during the Louisiana State Bar Association’s (LSBA) “Lawyers in Libraries” Week of Service Oct 23- 28, 2017. A total of 142 attorneys volunteered for 76 events across the state, providing limited services to L Attorneys presenting the program at the hundreds of Louisiana residents who likely would not oth- Jefferson Parish East Bank Regional Branch were, from left, Wendy B. Vitter, Amber R. erwise have access to counsel. The Week of Service was Gilbert and Donald G. D’Aunoy, Jr. scheduled to mark Louisiana’s participation in “National Celebrate Pro Bono Week” (Oct. 23-28), but attorneys are encouraged to volunteer at their local libraries through- out the year. More information is available online at: www. LouisianaLawyersinLibraries.org. “The event really took off this year. More than 70 people were served at Jefferson Parish libraries in just a three-hour period. The service is extremely valuable for people who can’t afford a lawyer, and for those who come to the library because they simply don’t know where else to go for help. Our patrons request this service throughout the year,” said Chris Smith of the Jefferson Parish Library System. Attorney Meghan E. Notariano presented programs at the Hammond Library and Ponchatoula Library (Tangipahoa Parish).

244 December 2017 / January 2018 Attorneys presenting a program in Rapides Parish were, from left, Robert Attorneys presenting an Ask-a-Lawyer event in the Washington Parish G. Levy, Toni R. Martin and Paul J. Tellarico. With them, Debbie Smith Library (Bogalusa) were J. Norris Scott, left, and Bryan A. Harris, right. with the Central Louisiana Pro Bono Project. With them, branch manager Emmitt Guy.

Launched in 2014, “Lawyers in Caddo Parish: Monique I. Davis, Libraries” is part of the Legal Education & Sherron P. Douglas, Shelvia R. Grant, Assistance Program (LEAP), an ongoing Felicia M. Hamilton, Ruby A. Lewis, collaboration between the LSBA’s Access Terrell J. Myles and Edward A. Takara. to Justice Department, the Law Library of Calcasieu Parish: Gerald L. Brown. Louisiana and Louisiana public libraries Caldwell Parish: Benjamin J. Brown. statewide. The program includes training for Cameron Parish: Jennifer A. Jones. library staff on how to help the public find Catahoula Parish: Lewis M. Gladney. an attorney and reliable self-help resources Claiborne Parish: Jerry Edwards and provided by courts and legal aid partners. Charles E. Tabor. “The Louisiana State Bar Association is Concordia Parish: Harrece C. Gassery committed to making attorneys available Attorney Lisa Borne presented a program in St. DeSoto Parish: Nicholas E. Gasper and to everyone in Louisiana with legal issues, Bernard Parish. Aaron R. Wilson. regardless of financial circumstance. This East Baton Rouge Parish: Joaquin M. includes the Lawyers in Libraries program, referrals. Public librarians are then able Johnson and Carina E. Salazar. which enables attorneys to provide direct to assist people in their communities who East Carroll Parish: Laurie R. Brister. services to their communities at no cost. otherwise would have little to no help. The East Feliciana Parish: Rodney B. Public libraries are natural starting points Law Library demonstrates that the role of Hastings. for people in search of legal information the librarian is the same with legal questions Grant Parish: Walter P. McClatchey, Jr. and resources, and this type of innovative — showing people where to find informa- Iberia Parish: Loreal M. Jackson. partnership is why Louisiana is considered tion and then allowing them to help them- Iberville Parish: Perry W. Terrebonne. a national leader when it comes to access selves,” said Miriam Childs, director of the Jackson Parish: J. Michael Rhymes. to justice,” said LSBA President Dona Kay Law Library of Louisiana. Jefferson Davis Parish: Nicholas D. Renegar. The LSBA would like to acknowledge Cole. “Librarians are natural partners in ad- Louisiana libraries, the LSBA members dressing the access to justice gap. Self- who volunteered in their communities, and represented litigants (SRLs) will go to the the pro bono agencies and organizations library to seek information to solve their helping to coordinate this annual event. legal problems. Public librarians are tradi- tionally taught to avoid helping SRLs be- “Lawyers in Libraries” cause of the possibility of practicing law Attorney Volunteers without a license. For two years, the Law Library of Louisiana, with the assistance of Acadia Parish: William J. Casanova. the LSBA’s Access to Justice Department, Ascension Parish: Gregory L. Hughes. Louisiana State University Paul M. Hebert Avoyelles Parish: Douglas L. Bryan, Law Center and the Louisiana Library Emily L. Edwards and Charles A. Riddle III. Association, has been offering training Beauregard Parish: John M. Welborn III. sessions to public librarians about how to Bienville Parish: Russell A. Woodard. Attorney Nicholas E. Gasper, left, presented a locate legal information and resources for program in Mansfield (DeSoto Parish). With Bossier Parish: Aaron R. Wilson. him is head librarian Doris Ross.

Louisiana Bar Journal Vol. 65, No. 4 245 Attorneys presenting the program in Orleans Parish (Gentilly) were, from Attorney Michele C. Stross, far right, presented a program in St. Charles Parish. left, Margaret F. Swetman, Daya Naef Ellis and William B. Schwartz. With her are library staff Lauren Pitz, Carol Johnson and Brenda Guillot.

Jefferson Parish: Donita Y. Brooks, Terrebonne Parish: Lakethia B. Donald G. D’Aunoy, Jr., John Shea Dixon, Bryant, Sarah A. Legendre, Teresa D. Chester A. (Chip) Fleming III, Amber King, Joan M. Malbrough and John E. R. Gilbert, Lauren B. Griffin, Hester R. Sirois. Hillard, Christy M. Howley, Peter M. Vermilion Parish: Burton P. Guidry. Meisner and Wendy B. Vitter. Vernon Parish: John K. (Mike) Lafayette Parish: Jeremy A. Bazile, Anderson, Wesley R. (Wes) Bailey and S. Aaron P. Beyt, Caitlin Paige Beyt, Mandi Christie Smith IV. Borne Bucher, Kyle N. Choate and Washington Parish: William H. Arata, Carolyn C. Cole. Bryan A. Harris and J. Norris Scott. Lafourche Parish: David C. Peltier. Webster Parish: Angela M. Smith. LaSalle Parish: Rossanna Rahim Attorney John Van Robichaux, Jr. presented a West Baton Rouge Parish: Parris A. Mcllwain. program in St. Bernard Parish. Taylor. Lincoln Parish: Krystin M. Frazier. Red River Parish: Lewis M. Gladney. West Feliciana Parish: Talya J. Livingston Parish: Joseph A. Booth, Richland Parish: Myrt T. Hales, Jr. Bergeron and Rodney B. Hastings. Markita S. Hawkins, Peter A. Ryan and St. Bernard Parish: Lisa Borne, Winn Parish: James E. Mixon. Hon. Zorraine M. (Zoey) Waguespack. Nicholas N. Cusimano, Sr., Samuel L. Madison Parish: Angela L. Claxton. Fuller, Christopher S. Liuzza, Stacey “Lawyers in Libraries” Morehouse Parish: Jay Mitchell. LaGraize Meyaski, Daniel W. Nodurft, Organizations Natchitoches Parish: Lewis M. Brian D. Page and John Van Robichaux, Jr. Acadiana Legal Services Corp. Gladney. St. Charles Parish: Scott J. Falgoust, Baton Rouge Bar Association Orleans Parish: Andrea L. Agee, Dara Stephanie V. Lemoine and Michele C. Central Louisiana Pro Bono Project L. Baird, Salvador I. Bivalacqua, Tessa Stross. Lafayette Volunteer Lawyers L. Cluck, Thomas D. Dunn, Jr., Veleka St. Helena Parish: Sean P. Brady. Louisiana Civil Justice Center Eskinde, Charlin S. Fisher, Leonard K. St. James Parish: Monique M. Northshore Pro Bono Project Fisher III, Chester A. (Chip) Fleming Edwards. Pro Bono Project (New Orleans) III, Julius Christopher Ford, Monique N. St. John the Baptist Parish: Monique Shreveport Bar Association Green, Martha J. Griset, Robert A. Kutcher, M. Edwards. Southeast Louisiana Legal Services James G. Maguire, Marcia S. (Suzy) St. Landry Parish: Kathleen E. Ryan Corp. Montero, Evian Mugrabi, Daya Naef and George F. Severson. Terrebonne Parish Bar Association Ellis, Leonor E. Prieto, William B. (Bill) St. Martin Parish: Neal C. Angelle. Schwartz, Matthew S. Smith, Margaret F. St. Mary Parish: Adolph B. Curet III. Michael W. Schachtman Swetman, Gregory M. Thompson, Eric D. St. Tammany Parish: Joseph P. is the Louisiana State Bar Association Access Torres and Elizabeth A. Widhalm. Anderson, Jr., Rachel T. Anderson, Ouachita Parish: Dianne L. Hill and to Justice Department’s William D. Cass, Jason M. Freas, Anne self-represented litiga- Dayna M. Ryan. D. Guste, Joseph B. Harvin, Janet L. tion counsel. He works Plaquemines Parish: Danielle Clark MacDonell, Lisa Paige, Cynthia M. Petry, with Louisiana courts and legal aid partners, Phillips. Shawn Smith, Dorian L. Tuminello, Kim Pointe Coupee Parish: John Lane including libraries, self- Vanderbrook, Elizabeth A. Widhalm and help centers and similar Ewing, Jr. Sean E. Williams. access to justice-related Rapides Parish: Robert G. (Bobby) Tangipahoa Parish: Lauren A. programs. (michael. Levy, Toni R. Martin, Edward E. (Ted) [email protected]; 601 St. Charles Ave., New Duncan and Meghan E. Notariano. Orleans, LA 70130) Roberts III and Paul J. Tellarico. Tensas Parish: Joe McCaleb Bilbro.

246 December 2017 / January 2018 Association ACTIONS MEMORIAL SERVICES... SPECIALIZATION

LSBA Honors Deceased Members of the Bench and Bar he Louisiana State Bar Asso- LSBA President Dona Kay Renegar and Foundation, gave the general eu- ciation (LSBA) conducted its of Lafayette opened the memorial ex- logy. (The eulogy begins on page 248.) annual Memorial Exercises ercises, requesting that the court dedi- Louisiana Supreme Court Chief before the Louisiana Supreme cate this day to the honor and memory Justice Bernette Joshua Johnson gave TCourt on Oct. 2, honoring members of of those members of the Bench and Bar the closing remarks. the Bench and Bar who died in the past who have passed away during the last The Rev. James Brady with St. year. The exercises followed the 65th 12 months. Landry Catholic Church in Opelousas annual Red Mass held earlier that morn- LSBA President-Elect Barry H. gave the invocation and benediction. ing at St. Louis Cathedral in New Or- Grodsky of New Orleans read the names Following the exercises, the Supreme leans. The Red Mass was sponsored by of all deceased members being recog- Court was adjourned in memory of the the Catholic Bishops of Louisiana and nized. deceased members of the Bench and the St. Thomas More Catholic Lawyers Attorney Melissa L. Theriot, presi- Bar. Association. dent of the Lafayette Bar Association The members recognized included:

In Memoriam Members of the Judiciary 2016-17

Hon. Denis A. Barry Hon. Ernest G. Drake, Jr. Hon. John P. Mauffray, Jr. Hon. Fred C. Sexton, Jr. Mandeville, LA Baton Rouge, LA Jena, LA Shreveport, LA February 28, 2017 June 7, 2017 December 2, 2016 July 9, 2017

Hon. Marcus A. Broussard, Jr. Hon. John R. Joyce Hon. Clarence Elburn McManus Hon. Diana P. Simon Abbeville, LA Monroe, LA Metairie, LA Lafayette, LA March 3, 2017 May 5, 2017 September 22, 2016 January 27, 2017 Hon. Robert Y. Butler Hon. Donald J. Launey, Jr. Hon. Charles R. Prevost Arcadia, LA Ville Platte, LA Maurice, LA December 7, 2016 May 24, 2017 October 16, 2016

In Memoriam Members of the Bar 2016-17

William R. Aaron Byford L. Beasley Frank D. Blackburn Huey H. Breaux Roger G. Broussard Joseph E. Ching Baton Rouge, LA Denham Springs, LA Baton Rouge, LA Lafayette, LA Baton Rouge, LA New Orleans, LA June 18, 2017 June 23, 2017 September 28, 2016 September 29, 2016 September 19, 2016 June 26, 2017

Patrick J. Araguel, Jr. J. Barrett Benton James P. Bodenheimer Carole A. Breithoff Patrick Walsh Browne, Jr. William H. Cook, Jr. Columbus, GA Baton Rouge, LA Shreveport, LA New Orleans, LA New Orleans, LA Shreveport, LA November 6, 2016 August 26, 2017 October 19, 2016 April 11, 2017 April 20, 2017 July 31, 2017

Blake G. Arata Marian Mayer Berkett Emmett J. Boudreaux Julian P. Brignac Frank M. Buck, Jr. Monty C. Crosby New Orleans, LA New Orleans, LA Baton Rouge, LA New Orleans, LA Gretna, LA Shreveport, LA January 23, 2017 June 4, 2017 February 20, 2017 September 7, 2016 November 17, 2016 December 3, 2016

Daniel M. Barbato Joseph E. Berrigan, Jr. William H. Boustead Armand J. Brinkhaus Steven Dennis Carby Harold G. Daves Lafayette, LA New Orleans, LA Harvey, LA Sunset, LA Shreveport, LA Baton Rouge, LA October 17, 2016 May 12, 2017 July 27, 2017 February 12, 2017 May 26, 2017 October 11, 2016

S. Price Barker Thomas W. Bishop Chester Hugh Boyd William C. Broadhurst Leonard Cardenas III Louis V. de la Vergne Shreveport, LA Tallulah, LA Baton Rouge, LA Crowley, LA Baton Rouge, LA New Orleans, LA May 13, 2017 October 9, 2016 February 4, 2017 May 22, 2017 June 28, 2017 September 15, 2017 Continued next page

Louisiana Bar Journal Vol. 65, No. 4 247 continued from page 247 Justin Roy Mueller Robert R. Roche Thomas O. M. In Memoriam Lafayette, LA Baton Rouge, LA Stafford, Jr. Remi T. DeLouche, Jr. John A. Gutierrez Alfred S. Lippman June 28, 2017 August 29, 2017 Alexandria, LA Metairie, LA Prairieville, LA Morgan City, LA September 29, 2016 November 8, 2016 March 22, 2017 October 17, 2016 Brenda Sue Nation Irwin R. Sanders Austin, TX New Orleans, LA Scott Christopher Albert I. Donovan, Jr. Marlise J. Harrell Vincent T. LoCoco January 22, 2017 June 29, 2017 Stevens River Ridge, LA Hammond, LA New Orleans, LA Harvey, LA Herman B. September 18, 2016 June 14, 2017 April 23, 2017 David L. Neeb June 14, 2017 Metairie, LA Schoenberger Buras, LA William M. Stevenson Francis A. Dressler Holt Benton Harrison January 23, 2017 Robert Martin Louque, Jr. December 1, 2016 New Orleans, LA Lake Charles, LA Baton Rouge, LA New Orleans, LA July 10, 2017 September 17, 2016 March 14, 2017 Hortence Mena January 3, 2017 Patterson Robert Morlas Schoenfeld Darrell J. Stutes Nora K. Duncan Louis A. Heyd, Jr. Hammond, LA Seth Thomas Low March 28, 2017 St. Martinville, LA Mandeville, LA Oakdale, LA New Orleans, LA Arlington, VA July 16, 2017 April 19, 2017 December 8, 2016 January 27, 2017 February 2, 2017 James F. Pinner James Larkin Selman II Celeste M. Tanner Metairie, LA Lawrence A. Durant Peter Anthony Ierardi IV New Orleans, LA Hammond, LA W. Eric Lundin III September 9, 2016 Baton Rouge, LA Covington, LA Belle Chasse, LA November 24, 2016 June 18, 2017 August 3, 2017 July 10, 2017 May 18, 2017 Anatole J. Plaisance Randall A. Shipp Vernon P. Thomas Baton Rouge, LA Sandra Louise Julie Deshotels Jardell Baton Rouge, LA New Orleans, LA James R. Malsch December 19, 2016 Edwards Lafayette, LA Shreveport, LA January 6, 2017 November 12, 2016 Baton Rouge, LA June 9, 2017 September 13, 2016 Marcus J. Poulliard November 1, 2016 Wilson F. Shoughrue, Jr. Allen J. Tillery New Orleans, LA Raleigh, NC Metairie, LA Michael A. Jedynak Eric R. McClendon September 28, 2016 November 11, 2016 March 22, 2017 C. Roan Evans Monroe, LA Baton Rouge, LA Lafayette, LA March 27, 2017 May 20, 2017 David W. Price Edmond Wade Shows J. David Tufts III February 14, 2017 Baton Rouge, LA Frederick J. King, Jr. Baton Rouge, LA New Orleans, LA Kim D. McGuire July 27, 2017 May 6, 2017 June 17, 2017 Jack B. Files New Orleans, LA Naples, FL Monroe, LA May 4, 2017 September 14, 2016 G. Frank Purvis, Jr. Thomas J. Sibley Evangeline M. Vavrick February 18, 2017 New Orleans, LA Beaumont, TX New Orleans, LA Richard Finley Knight Raymond A. McGuire April 20, 2017 January 6, 2017 January 7, 2017 Bobby L. Forrest Covington, LA Metairie, LA Baton Rouge, LA October 11, 2016 December 31, 2016 Robert R. Rainer Edward Le Roy Smith, Jr. John G. Weinmann July 9, 2017 Baton Rouge, LA Covington, LA New Orleans, LA Bennet S. Koren Ralph R. Miller October 9, 2016 March 15, 2017 June 9, 2017 Robert M. Foster New Orleans, LA Norco, LA New Orleans, LA November 24, 2016 March 30, 2017 Betty G. Ratcliff H. F. Sockrider, Jr. De Quilla Wayne November 10, 2016 Baton Rouge, LA Shreveport, LA White J. Marc Lampert Arthur P. Mitchell February 2, 2017 February 4, 2017 Leesville, LA Gene D. Fowler Alexandria, LA River Ridge, LA June 19, 2017 Slidell, LA August 13, 2017 February 13, 2017 Henry James Read David Payne Spence August 13, 2017 New Orleans, LA Alexandria, LA W. P. Wray, Jr. Gary P. Landry Aylmer E. October 19, 2016 June 3, 2017 Baton Rouge, LA Morgan J. Goudeau III Mandeville, LA Montgomery, Jr. February 2, 2017 Peggy D. St. John Lafayette, LA October 16, 2016 Metairie, LA Durinda L. Robinson Alexandria, LA September 23, 2016 February 4, 2017 Baton Rouge, LA March 28, 2017 May 20, 2017 General Eulogy: LSBA Memorial Exercises 2017 By Melissa L. (Missy) Theriot

adame Chief Justice We gather here to pay tribute to and We are honoring a group of men and Johnson, Associate Jus- honor the lawyers and judges who have women who had different backgrounds, tices, Judges, the distin- passed away over the course of this last different types of practices, different guished President of the year. You have all previously, among philosophies about the law, what is or LouisianaM State Bar Association, mem- friends and families, celebrated the lives isn’t best for our profession, and its role bers of the Bar, and, most importantly, of our esteemed colleagues. Thank you in how the citizens of this nation choose to the families and friends of our depart- for allowing us to do the same within the to live together peacefully. ed colleagues: legal community. Continued next page

248 December 2017 / January 2018 Eulogy continued from page 248 client is all citizens within her jurisdic- I leave you with these words, which tion, and her client is also our most pre- are from the parable of the talents in But what is true for every one of them, cious values of justice, impartiality, and the Book of Matthew. In the parable, when we choose this profession, we also fair and equal treatment of all who come the master entrusted his servants with choose a certain type of life, not only before the court. talents, which were a type of currency, for ourselves but also for our families. Lawyers give their clients A LOT while the master was away. The word Here’s what I mean. whether the lawyer is employed by the “talent” has always signified more than A year and a half ago, a short essay government, either a prosecutor, a de- simply money to me, and I’ve always was written by Sam Glover and published fender of the indigent, or an advisor to read it more broadly to mean the pre- by lawyerist.com. The title caught my elected officials. cious gifts and talents that God bestows eye — “Why are Lawyers so Expensive? Lawyers give their clients A LOT on us all. When the master returned, he I’ll Tell You Why.” Here’s what he said: whether the lawyer is a poverty lawyer went to the servants to evaluate their use whose professional calling is to be a of the talents. To the two servants who After a client signs a retainer with champion for those with no voice; or, and used and multiplied their talents — like me, I look them in the eye and tell no less noble, a lawyer in private practice the colleagues we honor today have used them, “Okay, you don’t have to who takes on the problems of another as their talents for the good of others, multi- worry about this any more. Your his own whether it be corporate business, plying the benefits of those talents — the problems are now my problems.” family business, or disputes between master proclaimed: “Well done good and It is just a thing I say, but it is a true neighbors. faithful servant. Enter into the joy of your thing I say. My clients go home Lawyers give A LOT when simply master.” and sleep soundly for the first time doing their jobs. And we take this time Thank you and may God bless each in weeks or months. I go home and and this moment to honor your loved of you. think about the legal issues all eve- ones because they lived their lives giving ning. At night, I dream about my their energy, concern, time and attention Melissa L. (Missy) Theriot client’s case. Sometimes I wake up to protecting the interests of others. is a partner in the law firm of NeunerPate in Lafayette in a cold sweat. When I am at the But we also honor you, their families. playground with my kids, I check and has been practicing Their choice to pursue this calling de- law for more than 24 years. my email. When I go out to dinner fined not only their lives but also yours. She served as the 2016-17 with my wife, I talk about hearings Whether the colleague we honor today president of the Lafayette Bar Association and is a and depositions. Lawyers are ex- was your husband, wife, mother, father, pensive because you get a lot for member of the Louisiana sister or brother, your love, support, sym- Attorney Disciplinary your money. pathy and willingness to put up with the Board. (mtheriot@neuner- hard parts were at the very heart of their pate.com; Ste. 200, 1001 Lawyers are expensive because you W. Pinhook Rd., Lafayette, LA 70503) lives. Their calling to serve the interests get a lot for your money. of others required sacrifice on your part Lawyers give their clients A LOT, as well and we thank you and honor you, whether that lawyer is a judge, whose as we mourn their loss with you. Attorneys Apply for Certification as Legal Specialists Health Law Specialty

Pursuant to the Rules and action against an applicant be reported Approved; Standards Regulations of the Louisiana Board of during this comment period. Available Online Legal Specialization, notice is hereby given that the following attorneys have Appellate Practice The Louisiana Supreme Court applied for certification as legal special- John W. Waters, Jr...... New Orleans on Sept. 28 approved health law as ists. Any person wishing to comment a new specialty under the Louisiana upon the qualifications of any applicant Estate Planning & Administration Board of Legal Specialization should submit his/her comments to the Leslie Erin Humphries Halle....Alexandria (LBLS). To review the standards Louisiana Board of Legal Specialization, and more information online, go to: 601 St. Charles Ave., New Orleans, LA Tax Law www.lascmcle.org/specialization/. 70130, c/o Specialization Director Mary Molly Leigh Stanga...... New Orleans Or, contact LBLS Specialization Ann Wegmann, no later than Dec. 29, Andrew T. Sullivan...... New Orleans Director Mary Ann Wegmann, email 2017. [email protected] or call It is also requested that any knowl- Business Bankruptcy Law (504)619-0128. edge of sanctions or other professional Alicia M. Bendana...... New Orleans

Louisiana Bar Journal Vol. 65, No. 4 249 LBLS Sets Dates for Certification Applications he Louisiana Board of Legal ► Estate Planning and Administration Specialization (LBLS) is ac- — 18 hours of estate planning law. cepting requests for applications ► Family Law — 18 hours of family for certification in six areas. law. TThe application period for appellate ► Tax Law — 18 hours of tax law. practice, estate planning and administra- ► Bankruptcy Law — CLE is regulat- tion, family law and tax law certification ed by the American Board of Certification, will continue through Feb. 28, 2018. the testing agency. Applications for business bankruptcy With regard to applications for busi- law and consumer bankruptcy law certifi- ness bankruptcy law and consumer bank- cation will be accepted from Jan. 1, 2018, ruptcy law certification, although the writ- through Sept. 30, 2018. ten test(s) is administered by the American In accordance with the Plan of Legal Board of Certification, attorneys should Specialization, a Louisiana State Bar apply for approval of the LBLS simulta- Association (LSBA) member in good neously with the testing agency in order achieved recognition as having a level of standing who has been engaged in the to avoid delay of board certification by competence indicating proficient perfor- practice of law on a full-time basis for a the LBLS. Information concerning the mance handling the usual matters in the minimum of five years may apply for cer- American Board of Certification will be specialty field. LSBA members should re- tification. Further requirements are that provided with the application form(s). fer to the LBLS standards for the applica- each year a minimum percentage of the Anyone interested in applying for ble specialty for a more detailed descrip- attorney’s practice must be devoted to the certification should contact LBLS tion of the requirements for application. area of certification sought, passing a writ- Specialization Director Mary Ann In addition to the above, applicants ten examination to demonstrate sufficient Wegmann, email maryann.wegmann@ must meet a minimum CLE requirement knowledge, skills and proficiency in the lsba.org or call (504)619-0128. For more for the year in which application is made area for which certification is sought, and information, go to the LBLS website: and the examination is administered: five favorable references. Peer review will www.lascmcle.org/specialization/. ► Appellate Practice — 18 hours of be used to determine that an applicant has appellate law.

Attorneys Apply for Recertification as Legal Specialists ursuant to the rules and regula- Steven Lynn McKneely...... Hammond Matthew Allen Treuting...... New Orleans tions of the Louisiana Board of W. Deryl Medlin...... Shreveport Cherish Dawn Van Mullem....Baton Rouge Legal Specialization, notice is Sheila Leigh Moragas...... New Orleans Theodore David Vicknair...... Alexandria hereby given that the following Paul A. Rabalais...... Baton Rouge Michael Alan Walters...... Alexandria. Pattorneys have applied for recertification Ronald Joseph Savoie...... Baton Rouge as legal specialists for the period Jan. Russell Joseph Stutes, Jr...... Lake Charles Family Law 1, 2018, to Dec. 31, 2022. Any person John Gerhardt Toerner...... Covington Gay Lynn Babin...... Lafayette wishing to comment upon the qualifica- Matthew Allen Treuting...... New Orleans Teresa Culpepper Carroll...... Jonesboro tions of any applicant should submit his/ Theodore David Vicknair...... Alexandria Monique Babin Clement...... Ruston her comments to the Louisiana Board H. Gregory Walker, Jr...... Alexandria Nicole Roberts Dillon...... Hammond of Legal Specialization, 601 St. Charles Lindsey M. Ladouceur...... Abita Springs Ave., New Orleans, LA 70130 or email Tax Law Laurie Nelson Marien...... Baton Rouge [email protected], no later Antonio Charles Ferachi...... Plaquemine James Ogden Middleton II...... Alexandria than Dec. 29, 2017. David Michael Hansen...... Baton Rouge Nedi Alvarez Morgan...... Plaquemine It is also requested that any knowl- Benjamin Anthony Marc D. Winsberg...... New Orleans edge of sanctions or other professional Huxen II...... Baton Rouge action against an applicant be reported Wayne Jollio James...... New Orleans Business Bankruptcy Law during this comment period. Jean Kathryn Niederberger... New Orleans David J. Messina...... New Orleans Russell Joseph Stutes, Jr...... Lake Charles Estate Planning & Administration James Graves Theus, Jr...... Alexandria Consumer Bankruptcy Law Theresa Ann Barnatt...... Lake Charles John Gerhardt Toerner...... Covington Kevin R. Molloy...... Shreveport Valerie Van Matherne...... Monroe Nicholas Charles Tomlinson.New Orleans Robert W. Raley...... Shreveport

250 December 2017 / January 2018 PRACTICEManagement By Nisha Sandhu SAFEGUARDING CLIENT PROPERTY

ome of the most popular online file counsel used the hyperlink, accessed the TLS. TLS, or “transport layer secu- storage, sync and sharing sites for site and downloaded the plaintiff’s entire rity,” is a data and privacy protocol that lawyers include Box, Dropbox, claims file, including privileged and confi- creates secure communications over net- Google Drive and OneDrive. dential information. The plaintiff moved to works. TLS can provide secure communi- TheseS services can be convenient, having have defense counsel disqualified. Finding cations between servers and web browsers. integrations with word processing pro- that neither plaintiff’s counsel nor the cli- Accessing a file in the same manner as oc- grams which enable the saving and sharing ent had taken any precautions to prevent curred in Harleysville leaves information of documents for teams and clients alike. the inadvertent disclosure of information, open for prying eyes. Unfortunately, what may be overlooked is the court found that privilege had been Password protection. Make sure the the attorney’s duty to safeguard client infor- waived and denied disqualification, but cloud service chosen allows password mation and maintain confidentiality. sanctioned defense counsel for intention- protection for file sharing. Some services Rule 1.6 prohibits an attorney from ally accessing the information. allow the user to set expirations for files, disclosing confidential client information The facts are eye-opening for attor- permissions for users to “read only,” and and sets out a specific duty to “make rea- neys who store information in the cloud. to revoke access to files. sonable efforts to prevent the inadvertent Reasonable efforts must be taken to ensure Finally, it bears noting that some serv- or unauthorized disclosure of, or unauthor- that confidential and privileged information ers may be housed on unfriendly shores. ized access to, information relating to the is safeguarded. Choosing a cloud service to The service you choose should list the representation of a client.” Uploading a file store information must include verification country or countries where its servers are to an unsecure file storage site can be di- of security and establishing processes to housed. If a server is located in a country sastrous if the file includes any privileged keep them private. Make sure synced and where privacy laws are not strict, then the or confidential information and it falls into shared files include HIPAA standards, file chances for a breach are even higher. the wrong hands. Like leaving a file unat- encryption and security protocols. For many attorneys, storing files in the tended in a public space, the consequences HIPAA. Under the Health Insurance cloud is more than a convenience — it’s can be devastating, including malpractice Portability and Accountability Act, at- a necessity. Twenty years ago, attorneys claims and disciplinary sanctions. torneys may be considered “business as- were learning to implement confidentiality In Harleysville Ins. Co. v. Holding sociates” if they receive protected health standards in communications sent by fac- Funeral Home, 2017 U.S. Dist. LEXIS information (PHI) from covered entities. simile and email. Communications have 18714 (W.D. Va. Feb.9, 2017), confiden- Covered entities include healthcare plans evolved. Reliance on the web and instant tial client communications and potentially and certain types of healthcare providers. access to files and information require an privileged information were inadvertently Business associates are service providers understanding of the potential pitfalls in shared during discovery. The underlying who have access to the PHI of covered Internet-based file storage. Knowing the litigation involved an insurance claim on a entities. potential dangers of storing files in cloud- fire loss. An investigator for the insurance File encryption. Encryption scrambles based servers and how to safeguard those company uploaded video surveillance data to prevent it from being read while files can keep your legal practice compli- footage to Box, a file sharing and storage transferred. Certain cloud storage and ant with privacy standards and require- site commonly used. He sent an email to sharing sites offer “end-to-end encryp- ments for professional responsibility. personnel at the National Insurance Crime tion,” which protects data so that it can be Bureau (NICB), with a hyperlink for ac- read only by the sender and recipient. It Nisha Sandhu is a con- cess to the video. Later, the investigator can protect against hackers and other third tract attorney for Gilsbar, L.L.C., in Covington. uploaded the entire investigation and in- parties, such as Internet providers, from She received a BA de- surance claims files to the same site for intercepting data. Even more secure are gree in history from the plaintiff’s counsel to access. Shortly after- “zero-knowledge” platforms, where only University of Chicago and wards, defense counsel issued a subpoena the user has access to the encryption keys her JD degree from Loyola University College of Law. to NICB, requesting its entire file on the for service. For these platforms, the service Her practice includes ap- fire. In the production was the investiga- provider cannot access the firm’s files, en- pellate law, family law and tor’s email to NICB, including the hy- suring an added level of security that client criminal defense. Email perlink to the saved file in Box. Defense information will not be disclosed. her at [email protected].

Louisiana Bar Journal Vol. 65, No. 4 251 LAWYERSAssistance By J.E. (Buddy) Stockwell JLAP’S CONFIDENTIAL SERVICES

ore and more people are taking advantage of the Judges and Lawyers Assistance Program, Inc.’s (JLAP)M totally confidential mental health services. JLAP has discretely assisted hundreds of bar members (and some of their family members) in matters that have nothing to do with formal JLAP monitoring or disciplinary and bar admissions referrals. In fact, confidential cases coming to JLAP cover the entire spectrum of mental health issues — from those who simply feel burned out and need to reduce stress in their lives, to cases Judges and Lawyers Assistance involving serious mental health issues and threats of suicide. No matter what Program, Inc. (JLAP) the wellness or mental health issues are, JLAP’s professional clinical staff can Your call is absolutely confidential as a matter of law. provide real help. Toll-free (866)354-9334 • Email: [email protected] Most people who JLAP confidentially assists must overcome: 1) fears about the reliability of confidentiality at JLAP; “JLAP showed exemplary help. Treatment can provide relief by and 2) fears about stigmas associated professionalism, kindness, excellence identifying what’s wrong and reducing with mental health issues. and dedication throughout all of my symptoms that interfere with your work As to the issue of confidentiality, interaction with the program.” and personal life. JLAP’s services are 100 percent privileged and confidential as a matter “JLAP saved my life and career. Don’t let stigma create self-doubt of law. Pursuant to La. R.S. 37:221, no JLAP holds a very special place in my and shame. Stigma doesn’t just come one outside of JLAP will ever know heart.” from others. You may mistakenly anything about any of these confidential believe that your condition is a sign of cases unless the person JLAP is assisting A person coming proactively to personal weakness or that you should be decides to reveal it. JLAP never reports JLAP receives totally confidential able to control it without help. Seeking cases to discipline or anyone else. assistance from JLAP and they decide counseling, educating yourself about Here’s some actual feedback from if anyone else will ever know that they your condition and connecting with people who reached out to JLAP: called JLAP. They also decide to follow others who have mental illness can help or decline JLAP’s advice and support. you gain self-esteem and overcome “I have complete confidence that the As to the issue of stigmas surrounding destructive self-judgment. service JLAP provides is 100 percent mental health, the Mayo Clinic offers confidential. Simply put, JLAP is the following advice:1 Don’t isolate yourself. If you have a unquestionably a trustworthy program.” mental illness, you may be reluctant to Get treatment. You may be reluctant tell anyone about it. Your family, friends, “Today, I am indebted to JLAP for to admit you need treatment. Don’t let clergy or members of your community all of those good things that recovery the fear of being labeled with a mental can offer you support if they know about brought to my life, and there are many.” illness prevent you from seeking your mental illness. Reach out to people

252 December 2017 / January 2018 Your call is confidential as a matter of law. (866)354-9334

JLAP offers REAL WAYS to combat stigma around mental health through comprehensive services:

■ Licensed Professional Counselors on staff ■ Appropriate referrals to individuals experienced in working with professionals ■ Love First certified clinical interventionist on staff ■ Helping individuals demonstrate a good record of recovery through monitoring ■ Lawyer-only recovery support groups throughout the state ■ MCLE Opportunities offered throughout the year

you trust for the compassion, support child has a mental illness that affects difficult barriers that can trap someone and understanding you need. learning, find out what plans and in a secret state of mental health suf- programs might help. Discrimination fering. All JLAP can do is encourage Don’t equate yourself with your against students because of a mental folks to break through the barriers and illness. You are not an illness. So instead illness is against the law, and educators trust JLAP. If you or someone you know of saying “I’m bipolar,” say “I have at primary, secondary and college levels needs JLAP’s help, reach out to JLAP! bipolar disorder.” Instead of calling are required to accommodate students Call the helpline at (866)354-9334, yourself “a schizophrenic,” say “I have as best they can. Talk to teachers, email [email protected], or visit schizophrenia.” professors or administrators about the website at: www.louisianajlap.com. the best approach and resources. If a Join a support group. Some local teacher doesn’t know about a student’s FOOTNOTE and national groups, such as the National disability, it can lead to discrimination, Alliance on Mental Illness, offer local barriers to learning and poor grades. 1. www.mayoclinic.org/diseases-conditions/ programs and Internet resources that mental-illness/in-depth/mental-health/art-20046477. help reduce stigma by educating people Speak out against stigma. Consider J.E. (Buddy) Stockwell who have mental illness, their families expressing your opinions at events, in is the executive director and the general public. Some state letters to the editor or on the Internet. It of the Louisiana Judges and federal agencies and programs, can help instill courage in others facing and Lawyers Assistance Program, Inc. (JLAP) such as those that focus on vocational similar challenges and educate the and can be reached at rehabilitation and the Department of public about mental illness. (866)354-9334 or email Veterans Affairs, offer support for [email protected]. people with mental illness. At JLAP, we understand and ac- knowledge that fears about confiden- Get help at school. If you or your tiality and mental health stigmas are

Louisiana Bar Journal Vol. 65, No. 4 253 2017LAJMembershipAd_Red101817_Layout 1 10/20/2017 12:14 PM Page 1

Introduce a FOCUSDiversity ON new partner SPECIALTY BARS CONFERENCE 2017 to your law firm Joining Louisiana Association for Justice Attorneys Attend August Specialty Bars Conference is like introducing a new partner to your law firm — one who works ttorneys from across the around the clock and state attended the annual doesn’t take holidays. Specialty Bars Conference on Aug. 26 in New Orleans. FiveA workshops covered the topics of Louisiana Justice Reinvestment, Immigration, Defending Disciplinary Action, Women as Agents of Change, and advances in legal technology.

“Defending Disciplinary Action” speakers were, from left, Richard P. Lemmler, Jr., Ethics Counsel, Louisiana State Bar Association; William N. (Billy) King, Professional Programs Practice Assistance Counsel, Louisiana State Bar Association; Susan R. Kalmbach, Deputy Disciplinary Counsel, Loui- “Women as Agents of Change in the Judicial Process” speakers were Judge Karelia R. Stewart, left, siana Attorney Disciplinary Board; and Damon Section D, 1st Judicial District Court, Shreveport; and Judge Candice Bates Anderson, Section C, S. Manning, Schiff, Scheckman & White, LLP. Orleans Parish Juvenile Court, New Orleans. LAJ exists for one purpose only: to assist Participating in a practice section and experienced and new lawyers so that they list server is like adding a team may better serve their clients. From battling for of experienced lawyers to your firm. our clients’ rights in the legislature to providing In today’s world, everybody expects value, second-to-none networking opportunities, which is exactly what LAJ brings to your practice. LAJ works 24/7 to help members succeed. LAJ’s annual dues for lawyers start at just $95 Members can expand their knowledge base and monthly payment plans are available. by reading articles in the association’s monthly To join, contact us at 225-383-5554 or visit magazine, joining a wide range of practice www.lafj.org. sections and participating on those list servers, and attending LAJ’s outstanding CLE programs at a discounted rate. Events like LAJ’s always popular Annual Convention and Fall Conference “The Future of the Legal Profession: Making Strides with Technology” “Preparing for the Future: Louisiana Justice Reinvestment” speakers were speakers were Abid Hussain, left, Hussain Law, LLC, New Orleans; and Penya Marzula Moses-Fields, left, Caddo Section Chief, Special Victims provide additional chances to build relationships Charles Vann, Charles Vann Consulting, Mobile, AL. Unit, District Attorney’s Office, Shreveport; and Derwyn D. Bunton, Chief with colleagues. Defender, Orleans Public Defenders’ Office, New Orleans. 442 Europe Street, Baton Rouge, Louisiana 70802-6406

254 December 2017 / January 2018 2017LAJMembershipAd_Red101817_Layout 1 10/20/2017 12:14 PM Page 1

Introduce a new partner to your law firm Joining Louisiana Association for Justice is like introducing a new partner to your law firm — one who works around the clock and doesn’t take holidays.

LAJ exists for one purpose only: to assist Participating in a practice section and experienced and new lawyers so that they list server is like adding a team may better serve their clients. From battling for of experienced lawyers to your firm. our clients’ rights in the legislature to providing In today’s world, everybody expects value, second-to-none networking opportunities, which is exactly what LAJ brings to your practice. LAJ works 24/7 to help members succeed. LAJ’s annual dues for lawyers start at just $95 Members can expand their knowledge base and monthly payment plans are available. by reading articles in the association’s monthly To join, contact us at 225-383-5554 or visit magazine, joining a wide range of practice www.lafj.org. sections and participating on those list servers, and attending LAJ’s outstanding CLE programs at a discounted rate. Events like LAJ’s always popular Annual Convention and Fall Conference provide additional chances to build relationships with colleagues. 442 Europe Street, Baton Rouge, Louisiana 70802-6406

Louisiana Bar Journal Vol. 65, No. 4 255 FOCUS ON Professionalism LAW SCHOOL ORIENTATIONS

190+ Attorneys, Judges Participate in Law School Professionalism Orientations or the 18th consecutive outset of the programs. Other speak- Law School Dean David D. Meyer. year, the Louisiana State ers included Louisiana Supreme Court Following the opening remarks, the Bar Association’s (LSBA) Justice Greg G. Guidry and Louisiana law students were divided into smaller Committee on the Profession Supreme Court Justice John L. Weimer groups, where they discussed various Fhosted law school orientations on pro- III; LSBA Committee on the Profession ethics and professionalism scenarios fessionalism at Louisiana’s four law member Michael E. Holoway; and with attorney and judge volunteers. schools. More than 190 attorneys and American Bar Association representa- This orientation program, inaugurat- judges from across the state participated tive Stanley J. Cohn. ed in August 2000, has been institution- in the programs in August. Also addressing students were alized as a yearly project for the LSBA LSBA President-Elect Barry H. Louisiana State University Paul M. and the law schools. The deans and ad- Grodsky (who also chairs the Committee Hebert Law Center Dean Thomas C. missions staffs of the law schools have on the Profession) and LSBA Past Galligan, Jr.; Loyola University College been accommodating in assisting with Presidents Darrel J. Papillion, Joseph L. of Law Dean Madeleine M. Landrieu; the logistical challenges of putting this (Larry) Shea, Jr. and Richard K. Leefe Southern University Law Center program together. led an impressive list of speakers ad- Chancellor John K. Pierre and SBA Attorneys and judges volunteering dressing first-year law students at the President Arthur Williams; and Tulane their services this year were:

Louisiana State University Stephen F. Butterfield Monique M. Edwards Sheral C. Kellar Paul M. Hebert Andrew M. Casanave Jessica C. Engler Heather L. Landry Law Center Amanda M. Collura-Day L. Paul Foreman Judge Luke A. LaVergne (Ret.) H. Kent Aguillard Brian L. Coody John Clay Hamilton Omega Genevieve Leslie Mary E. Arceneaux David C. Coons Michael S. Heier Randy B. Ligh Judge Jerome J. Barbera III (Ret.) Henry T. Dart Lila Tritico Hogan David A. Lowe David L. Bateman Donald G. D’Aunoy, Jr. E. Holden Hoggatt Timothy A. Maragos Ardney James Boland S. Guy deLaup Katherine L. Hurst Betty L. Marak Jay R. Boltin Diane D. Dicke James Eric Johnson Amy L. McInnis

Louisiana State University Paul M. Hebert Law Center: Louisiana Loyola University College of Law: Louisiana State Bar Association Supreme Court Justice John L. Weimer III, at the podium, addressed the President-Elect Barry H. Grodsky addressed the first-year students. students, joined by Louisiana State Bar Association (LSBA) Past President Joseph L. (Larry) Shea, Jr., LSBA Committee on the Profession member Michael E. Holoway and LSU Law Center Dean Thomas C. Galligan, Jr.

256 December 2017 / January 2018 Tulane University Law School: First-year law students discussed ethics Southern University Law Center: Chancellor John K. Pierre spoke to the and professionalism scenarios with attorney and judge volunteers in break- first-year law students at the orientation. Photo by Steve Jarreau, M.Ed. out groups. Cary J. Menard Lauren E. Godshall Scott T. Winstead Alicia M. Bendana Pam P. Mitchell Pablo Gonzalez Jack C. Benjamin, Jr. Judge Pamela Moses-Laramore Demarcus J. Gordon Southern University John W. Bihm Jennifer A. O’Connell Judge John C. Grout, Jr. (Ret.) Law Center Caroline G. Bordelon Victoria V. Olson Tasha Warino Hebert ReAzalia Z. Allen Alan G. Brackett John B. Perry Christy M. Howley Brett L. Bajon Michael M. Butterworth Claire A. Popovich Jessica L. Ibert Rashida Danielle Barringer Thomas B. Calvert Mary F. Quaid Rachel E. Jeandron Virginia Gerace Benoist Christopher E. Carey Mary E. Roper Judge Carolyn W. Jefferson (Ret.) J. Marc Bonin Kevin J. Christensen Sera H. Russell III Nahum D. Laventhal Aneatra P. Boykin William J. Dutel Rene I. Salomon Kathleen M. Legendre Linda Law Clark Judge Richard M. Exnicios Robert E. Shadoin Judge Ivan L.R. Lemelle Rachal D. Cox Val P. Exnicios Lawrence P. Simon, Jr. Judge Lynn L. Lightfoot Rachel P. Dunaway Judith A. Gainsburgh Kristen Stanley-Wallace Judge Hans J. Liljeberg Steven J. Farber Judge Piper D. Griffin Wayne T. Stewart Judge Diane R. Lundeen Todd E. Gaudin Judge John C. Grout, Jr. (Ret.) Judge John D. Trahan Jennifer S. Martinez Eugene G. Gouaux III Mark E. Hanna Marsha M. Wade John E. McAuliffe, Jr. Judge Roxie F. Goynes Alan P. Jacobus B. Marianne Wise Lorraine P. McInnis Judge Todd W. Hernandez Megan C. Kiefer Michael C. Wynne Matthew D. Moghis Malinda Hills Holmes Justin P. Lemaire Emily S. Morrison Marcus L. Hunter Terrence J. Lestelle Loyola University Francis B. Mulhall Terry C. Landry, Jr. Judge Terri Fleming Love College of Law Michael M. Noonan James H. Looney Daniel Lund K. Maryam Autry Julie O’Shesky Charles S. McCowan, Jr. Lauren T. Michel Kay B. Baxter John K. Parchman Charlotte C. McDaniel McGehee Mark A. Myers Keith J. Bergeron Leonor E. Prieto Ryan M. Nolan Frances M. Olivier Benjamin J. Biller Maurice C. Ruffin Lisa M. Parker Jeff D. Peuler Linda G. Bizzarro Rachel M. Scarafia Kathleen E. Petersen Charles M. Raymond R. Christian Bonin Peter J. Segrist Barbara Pilat Mark P. Seyler Caitlin R. Byars Teva F. Sempel Herman Robinson Imtiaz A. Siddiqui Judge John E. Conery Christopher B. Siegrist Jimi C. Smith Matthew S. Smith Sandra K. Cosby Matthew S. Smith Stacey B. Stephens Adam J. Swensek Dan R. Dorsey Paul R. Solouki Judge Parris A. Taylor Christopher R. Teske Ivana Dillas John B. Stanton Travis J. Turner Lee Ann C. Thigpen Mary L. Dumestre Judge Raymond S. Steib, Jr. Marsha M. Wade Judge Max N. Tobias, Jr. (Ret.) Judge Blair Downing Edwards Charles J. Stiegler Judge Jewel E. Welch, Jr. Raymond T. Waid Daniel H. Edwards Elise M. Stubbe Shandrea P. Williams Marshall G. Weaver Jason K. Elam Tina L. Suggs Sirena T. Wilson Harold M. Wheelahan III Judge Richard M. Exnicios Jerry W. Sullivan Robert M. White Val P. Exnicios Judge Max N. Tobias, Jr. (Ret.) Tulane University John G. Williams Clare D. Fiasconaro Jerome M. Volk, Jr. Law School Carlos Z. Zelaya II Marc P. Florman Forrest Ren Wilkes Franklin D. Beahm Gary M. Zwain Darryl J. Foster John S. Williams Judge Roland L. Belsome, Jr.

Louisiana Bar Journal Vol. 65, No. 4 257 Crossword PUZZLE By Hal Odom, Jr. HAIL TO THE (MUNICIPAL) CHIEF

1 2 3 4 5 6 7 ACROSS DOWN

8 1 Domesticated (4) 1 Purpose of closing argument (2, 3, 2) 3 1990s-era Shreveport chief Bo (8) 2 1990s-era Lake Charles chief 9 10 9 Scoreless defeat (7) Willie (5) 10 Ferocious feline hybrid (5) 4 Maker of Quicken and TurboTax (6) 11 It’s big in Jefferson Parish (8) 5 What “lis” means in “fleur de lis” (4) 12 Stratagem (4) 6 Pulitzer Prize-winning poet Maya (7) 11 12 13 1990s-era Monroe chief Bob (6) 7 Go off course (5) 15 1990s-era Baton Rouge chief 8 1990s-era New Orleans chief Tom Ed (6) Marc (6) 13 14 15 16 17 19 Pleasant ___, battlefield 14 The original Sony portable near Mansfield (4) media player (7) 18 20 One living nearby (8) 16 Cheroots and blunts (6) 23 “Mein ___,” infamous 17 1990s-era Thibodaux chief Warren, 19 20 21 1925 autobiography (5) and family (7) 24 Acquired through adversity (4-3) 18 Send a second time (6) 22 25 1990s-era Alexandria chief Ned (8) 19 Trail walker (5) 26 Odds and ___ (4) 21 1990s-era Lafayette chief Kenny (5) 23 24 22 “In that event...” (2, 2)

25 26

Answers on page 293.

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Louisiana Bar Journal Vol. 65, No. 4 259 DISCIPLINE Reports REPORTING DATES 9/29/17 & 10/2/17

REPORT BY DISCIPLINARY COUNSEL Public matters are reported to protect the public, inform the profession and deter misconduct. Reporting date Sept. 29, 2017.

Decisions act, particularly one that reflects adversely ing on honesty, trustworthiness or fitness on the lawyer’s fitness; and violating or as a lawyer; conduct involving dishonesty, Andres H. Aguilar, Shreveport, (2017- attempting to violate the Rules of Profes- fraud, deceit or misrepresentation; and B-1320) Interimly suspended from the sional Conduct. conduct prejudicial to the administration practice of law by order of the Louisiana Sharon Y. Florence, Baton Rouge, of justice. Supreme Court on Aug. 2, 2017. (16-DB-059) Publicly reprimanded Elbert L. Guillory, Opelousas, (2017- Spencer Brimmer Bowman, Baton by a ruling from the Louisiana Attorney B-1128) Publicly reprimanded by order Rouge, (2017-B-1472) Suspended from Disciplinary Board on Sept. 8, 2017. OR- of the Louisiana Supreme Court on Sept. the practice of law for a period of one DER FINAL and EFFECTIVE on Sept. 6, 2017. JUDGMENT FINAL and EFFEC- year and one day, fully deferred, subject 22, 2017. Gist: Respondent violated the TIVE on Sept. 6, 2017. Gist: Respondent to probation, by order of the Louisiana Rules of Professional Conduct including a neglected his client’s legal matter. Supreme Court on Sept. 22, 2017. OR- concurrent conflict of interest; representing Alvin A. Johnson, Jr., New Orleans, DER FINAL and EFFECTIVE on Sept. a client which resulted in violation of rules (2017-B-1011) Suspended for one year 22, 2017. Gist: Commission of a criminal or other law; criminal act adversely reflect- and one day, fully deferred, with two

260 December 2017 / January 2018 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. 2, 2017. Respondent Disposition Date Filed Docket No. Michael Langdon Cave (Reciprocal) Interim suspension. 9/29/17 17-7762 Charles L. Dirks III (Reciprocal) Suspension. 9/13/17 17-7200 James Paul Johnson (Reciprocal) Interim suspension. 8/8/17 17-6005 Freddie King III (Reciprocal) Suspension (fully deferred). 8/29/17 17-6842 Stacy Lynn Morris (Reciprocal) Suspension. 8/8/17 17-6037 Michael J. Phillips (Reciprocal) Suspension (fully deferred). 8/16/17 17-6651 Preston G. Sutherland (Reciprocal) Suspension (fully deferred). 8/8/17 17-6162 Bradley J. Trevino (Reciprocal) Suspension. 8/29/17 17-6843

Discipline continued from page 260 counts of misconduct, including failing Admonitions (private sanctions, to update his primary registration address often with notice to complainants, etc.) years of supervised probation, by order with the Louisiana State Bar Association, issued since the last report of misconduct of the Louisiana Supreme Court on Sept. failing to provide competent representation involving: 6, 2017. JUDGMENT FINAL and EFFEC- to clients, providing services outside of the TIVE on Sept. 20, 2017. Gist: Respondent scope of the representations, neglecting Violation of Rule 1.3 — Failing to act failed to timely remit funds owed to a client, legal matters, failing to communicate with with reasonable diligence and promptness. failed to account for funds belonging to a clients, failing to refund unearned fees, client, allowed his client trust account to withdrawing cash from his client trust ac- Violation of Rule 1.4 — Failing to become overdrawn, and took cash with- count in excess of $50,000, overdrawing reasonably communicate with client. drawals from his client trust account. his client trust account, failing to maintain Alexandra E. Mora, New Orleans, records of his client trust account, failing to Violation of Rule 1.7(a) — Concurrent (2017-B-1318) Suspended from the fulfill his obligations upon termination of conflict of interest. practice of law, on consent, for a period representation, failing to make reasonable of six months, fully deferred, subject to efforts to expedite litigation, submitting Violation of Rule 1.15(a) — Commin- a two-year period of supervised proba- duplicative or untimely pleadings to the gling; failure to maintain a trust account. tion, by order of the Louisiana Supreme courts, allowing a client’s lawsuit to be Court on Sept. 15, 2017. JUDGMENT dismissed as abandoned, practicing law Violation of Rule 4.2(a) — Improper FINAL and EFFECTIVE on Sept. 15, while ineligible to do so, engaging in communication with a represented party. 2017. Gist: Respondent mishandled her dishonest conduct, engaging in criminal client trust account by commingling client conduct, and failing to cooperate with the funds with her personal funds. Office of Disciplinary Counsel. Catherine L. Stagg, Lake Charles, (2017-B-1087) Publicly reprimanded on consent, subject to a two-year period of unsupervised probation, by order of the Christovich & Kearney, llp Louisiana Supreme Court on Sept. 6, 2017. attorneys at law JUDGMENT FINAL and EFFECTIVE on Defense of Ethics Complaints and Charges Sept. 6, 2017. Gist: Respondent failed to communicate with a client; and failed in E. Phelps Gay Kevin R. Tully her responsibilities regarding a non-lawyer assistant and scope of representation. H. Carter Marshall Randal Alandre Toaston, Baton Mary Beth Meyer Rouge, (2017-B-0702) Permanently disbarred by order of the Louisiana (504)561-5700 Supreme Court on Sept. 6, 2017. JUDG- 601 Poydras Street, Suite 2300 MENT FINAL and EFFECTIVE on Sept. New Orleans, LA 70130 20, 2017. Gist: Respondent engaged in 26

Louisiana Bar Journal Vol. 65, No. 4 261 Client ASSISTANCE Fund FUND PAYMENTS

CLIENT ASSISTANCE FUND PAYMENTS - NOVEMBER 2016, FEBRUARY & MAY 2017 Attorney Amount Paid Gist Bruce C. Ashley II $2,500.00 #1649 — Unearned fee in a criminal matter Jade R. Blasingame $11,250.00 #1698 — Conversion of insurance funds Malcolm Brasseaux $25,000.00 #1740 — Conversion in a succession Raymond C. Burkart III $500.00 #1753 — Unearned fee in a domestic matter Olita Magee Domingue $1,400.00 #1731 — Unearned fee in a domestic matter Olita Magee Domingue $2,000.00 #1686 — Unearned fee in a domestic matter Olita Magee Domingue $6,900.00 #1667 — Unearned fee in a criminal matter Olita Magee Domingue $1,500.00 #1683 — Unearned fee in a domestic matter Roger W. Kitchens $5,000.00 #1690 — Unearned fee in a criminal matter Roger W. Kitchens $1,000.00 #1717 — Unearned fee in a criminal matter Kenota L. Pulliam $6,000.00 #1155 — Unearned fee in a post-conviction matter Michael Sean Reid $2,192.55 #1770 — Unearned fee in a domestic matter Michael Sean Reid $3,225.00 #1771 — Unearned fee in a domestic matter Michael Sean Reid $1,125.00 #1781 — Unearned fee in a domestic matter Michael Sean Reid $1,220.00 #1782 — Unearned fee in a domestic matter Michael Sean Reid $2,312.50 #1787 — Unearned fee in a domestic matter Michael B. Rennix $320.00 #1756 — Unearned fee in a bankruptcy matter Michael B. Rennix $2,500.00 #1764 — Unearned fee in a bankruptcy matter Michael B. Rennix $325.00 #1759 — Unearned fee in a bankruptcy matter Michael B. Rennix $150.00 #1779 — Unearned fee in a property matter Michael B. Rennix $1,165.00 #1774 — Unearned fee in a bankruptcy matter Randal A. Toaston $2,000.00 #1744 — Unearned fee in a criminal matter Kenneth M. Waguespack, Jr. $25,000.00 #1688 — Conversion in a succession matter Walter I. Willard $10,000.00 #1599 — Unearned fee in a succession matter Jermaine D. Williams $1,500.00 #1743 — Unearned fee in a criminal matter

LOUISIANA CLIENT ASSISTANCE FUND

acted incompetently or failed to take certain to a lawyer’s dishonesty can apply for Q A action). The fund does not pay interest nor reimbursement. You do not have to be a What is the Louisiana Client Assistance does it pay for any damages done as a result United States citizen. However, if you are the Fund? of losing your money. spouse or other close relative of the lawyer The Louisiana Client Assistance Fund in question, or the lawyer’s business partner, was created to compensate clients who How do I qualify for the Fund? employer or employee, or in a business lose money due to a lawyer’s dishonest Clients must be able to show that the money controlled by the lawyer, the Fund will not conduct. The Fund can reimburse clients up or property came into the lawyer’s hands. pay you reimbursement. Also, the Fund to $25,000 for thefts by a lawyer. It covers will not reimburse for losses suffered by money or property lost because a lawyer Who can, or cannot, qualify for the Fund? government entities or agencies. was dishonest (not because the lawyer Almost anyone who has lost money due

262 December 2017 / January 2018 RECENTDevelopments ADMINISTRATIVE LAW TO TRUSTS

Homeland Security (DHS), U.S. Customs The requests instructed potential of- and Border Protection, issued two requests ferors to acknowledge any issued amend- for proposals, Nos. HSBP1017R0022 and ments to the proposals by signing an Administrative HSBP1017R0023, for border-wall proto- accompanying Standard Form 30 and Law types. The first request was for design and to submit the form with each proposal. construction of solid-concrete border-wall Specifically, the requests stated, “Failure prototypes, and the second was for de- to acknowledge all Amendments issued sign and construction of other-than-solid- by the Government may result in the pro- Comments and Post- concrete border-wall prototypes. Both posal submitted in response to the solici- requests were issued under the two-phase tation being found non-responsive by the Deadline Extensions of design-build provisions of the Federal Government.” DHS issued seven amend- Time at the GAO Acquisition Regulation subpart 36.3. ments to the requests. In response to the These proposals concerned Phase I of the requests, PennaGroup submitted timely PennaGroup, L.L.C., B-414840.2, 2017 competition. Proposals submitted during proposals; however, PennaGroup includ- CPD ¶ 244 (Comp. Gen. Aug. 25, 2017), Phase I were to be evaluated to determine ed a single Form 30 acknowledging only https://www.gao.gov/assets/690/686788. whether an offeror would be allowed to the seventh amendment in both of its pro- pdf. participate in Phase II of the procurement. posals. Consequently, DHS determined On March 17, 2017, the Department of

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Louisiana Bar Journal Vol. 65, No. 4 263 PennaGroup’s proposals were non-re- edgment notice that, among other things, two requests for dismissals of the protests, sponsive and excluded PennaGroup from set the due date for DHS’s Agency Report citing PennaGroup’s failure to file com- Phase II of the competition. Following an for both protests on July 26, 2017. That re- ments. agency protest, PennaGroup filed two pro- port contains the agency’s legal memo in In its response to the requests, tests with the Government Accountability opposition to the protest grounds, the con- PennaGroup acknowledged that its com- Office (GAO) — one protest for each pro- tracting officer’s statement in opposition ments were not timely filed, but asserted posal exclusion. to the protest grounds and documents rel- its failure arose out of technical difficulties A protest is a written objection by an evant to the protest grounds. Further, the — an excuse not raised with the GAO on interested party to a solicitation or other GAO advised PennaGroup, as it normally Aug. 8, 2017. Additionally, PennaGroup federal agency request for bids or offers, does, that its comments in response to the asserted that it did attempt to reach the cancellations of a solicitation or other re- Agency Report were due shortly there- GAO attorneys assigned to the protest re- quest, award or proposed award of a con- after. Specifically, the GAO expressly garding the late comments, but the GAO’s tract, or termination of a contract if termi- warned that “[w]ritten comments must be phone records indicated PennaGroup’s at- nated due to alleged improprieties in the received in [the GAO’s office] within 10 torneys called on Aug. 8, 2017 — the day award. See, FAR subpart 33.101. Three calendar days of [PennaGroup’s] receipt after comments were due — and did not fora are available to hear these challeng- of the Agency Report — otherwise, [the leave any messages. Nonetheless, even es, and reasons for protesting in each are GAO] will dismiss [PennaGroup’s] pro- if the GAO considered PennaGroup’s litigation-strategy dependent. The fora are test.” (Emphasis in original.) post-hoc, inconsistent reasons for missing the federal agency soliciting the require- On July 26, 2017, DHS filed its re- its deadline persuasive, it did not matter ment, the Court of Federal Claims and ports and PennaGroup acknowledged its as the GAO cannot grant post-deadline the GAO. The GAO adjudicates protests receipt of the reports on the same day. extensions of time and subsequently dis- under the Competition in Contracting Act That meant, barring any granted requests missed the protests. of 1984 (CICA), 31 U.S.C. §§ 3551-56. for extensions, PennaGroup’s comments In reaching its decision, the GAO re- The GAO hears the majority of reported were due to the GAO by close of business ferred to its long-standing position that protests, which is likely due to two unique on Aug. 7, 2017. PennaGroup did not file “[b]id protests are serious matters which characteristics of a GAO protest — the comments with the GAO by close of busi- require effective and equitable procedural 100-day decision and the CICA automatic ness on Aug. 7, 2017. On Aug. 8, 2017, standards to assure both that parties will statutory-stay-of-contract award. See, the GAO asked PennaGroup to confirm have a fair opportunity to present their 31 U.S.C. §§ 3553(c)-(d); FAR subparts whether it filed comments. In response, cases and that protests can be resolved in a 33.104(b)-(c), (f). PennaGroup asserted that “[o]ur legal reasonably speedy manner.” See, Reynolds team has reviewed [DHS’s] response and Bros. Lumber & Logging Co.-Recon., The Filings finds no new legal or factual arguments B-234740.2, May 16, 1989, 1989 CPD ¶ After receiving PennaGroup’s two pro- not fully set forth in length in our original 468 at 2-3. The GAO further noted that its tests, the GAO issued its standard acknowl- Bid Protest.” On Aug. 9, 2017, DHS filed bid-protest regulations require a protester LSBA Member Services – Business Services

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264 December 2017 / January 2018 to file comments on an agency’s report and the ban on the use of mediation in cam- that generally a protester’s failure to file pus sexual-assault cases, which has caused comments within 10 calendar days “shall” Alternative some controversy. Stephanie Saul and Kate result in dismissal of the protest. See, 4 Dispute Taylor, “Betsy DeVos Reverses Obama- C.F.R. § 21.3(i). Lastly, the GAO reasoned era Policy on Campus Sexual Assault that to the extent PennaGroup meant to re- Resolution Investigations,” (The New York Times, Sept. quest an extension of time, its bid-protest 22, 2017). www.nytimes.com/2017/09/22/ regulations “do not allow for post-deadline us/devos-colleges-sex-assault.html. extensions” and that, unless an extension Mediation in Campus In 2011, the Obama Administration is- is granted prior to the deadline, a protest sued a “Dear Colleague” letter to colleges “will be dismissed.” Id. Therefore, be- Sexual-Assault Claims detailing how to deal with sexual-assault cause PennaGroup had an opportunity to complaints. The 19-page letter spoke spe- Recent actions by the U.S Department file its comments and request an extension cifically about the use of informal methods of Education have sparked discussion prior to the deadline, the GAO concluded such as mediation for resolving sexual- about the use of mediation in campus sex- that allowing PennaGroup to file its com- assault issues. It stated that, although such ual-assault cases. On Sept. 22, 2017, the ments late “would be inconsistent with [the mechanisms may be used for resolving Department rescinded two sets of Obama- GAO’s] purpose of providing a fair oppor- some types of sexual-harassment com- era guidelines for campus sexual-assault tunity for protesters to have their protests plaints, “in cases involving allegations of investigations, with the stated purpose of considered without unduly disrupting the sexual assault, mediation is not appropriate making the campus justice system fairer in procurement process.” even on a voluntary basis.” The letter also sexual-assault cases. The guidelines were recommends that school grievance pro- replaced with new interim instructions giv- —Bruce L. Mayeaux cedures clarify that mediation will not be ing schools more freedom to balance the Major, Judge Advocate used to resolve sexual-assault complaints. rights of the accused while cracking down U.S. Army www2.ed.gov/about/offices/list/ocr/letters/ on misconduct. U.S. Secretary of Education Member, LSBA Administrative colleague-201104.pdf. Betsy DeVos intends to enact new rules Law Section The 2011 letter was then followed by a after a period of public comment. Among 2014 question-and-answer document fur- the changes are new interim rules that lift ther explaining how schools were to handle

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Louisiana Bar Journal Vol. 65, No. 4 265 complaints of campus sexual assault and issue have spoken up about the changes b49c-af06c705f212.html. other Title IX issues. allowing for the use of mediation in these Amidst the controversy over the The Department of Education, under disputes. As the use of informal resolu- Department’s decision to withdraw the for- the new administration, issued a “Dear tion techniques would require the consent mer guidelines, a group of Democratic law- Colleague” letter on Sept. 22, 2017, in- of both parties, some have applauded the makers unveiled legislation at a press con- forming schools that the previously men- Department’s decision to permit media- ference on Oct. 12, 2017, that would undo tioned statements of policy and guidance tions, explaining that some victims did the changes. The legislation, called the Title were henceforth withdrawn, and that the not necessarily want a full-scale investiga- IX Protection Act, would codify into law Department will not rely on the withdrawn tion and trial. See, Saul & Taylor, supra. the Obama-era guidelines, as well as the documents in its enforcement of Title IX. Many others have expressed concern that Bush 2001 Guidance on Title IX. If these www2.ed.gov/about/offices/list/ocr/letters/ mediation is inappropriate, as it may allow guidelines were to be codified, mediation colleague-title-ix-201709.pdf. schools to sweep sexual-assault complaints would definitively be off the table for re- Along with the letter of withdrawal, the under the rug by treating sexual violence solving sexual-assault complaints. Alanna Department issued a “Q&A on Campus as a mere miscommunication between stu- Vagianos, “Democrats Introduce Bill That Sexual Misconduct” that addresses schools’ dents. There is also fear that victims may Would Turn Title IX Guidelines into Law,” Title IX responsibilities concerning com- be unfairly pressured by schools to pursue (HuffPost, Oct. 12, 2017). www.huffing- plaints of sexual misconduct. Question 7 informal resolution over formal investi- tonpost.com/entry/democrats-introduce- of the document addresses informal resolu- gation. Grace Watkins, “Sexual Assault bill-that-would-make-title-ix-guidelines- tion of complaints and states, “If all parties Survivor to Betsy DeVos: Mediation Is law_us_59de8979e4b0fdad73b1db28. voluntarily agree to participate in an infor- Not a Viable Resolution,” (Motto, Oct. 2, Although mediation is presently includ- mal resolution that does not involve a full 2017). motto.time.com/4957837/campus- ed as a viable option for schools to resolve investigation and adjudication after receiv- sexual-assault-mediation/. campus sexual-assault claims, whether it ing a full disclosure of the allegations and In response to the interim policy chang- will remain an option that American col- their options for formal resolution and if a es, colleges around the country have be- leges and universities can effectively use is school determines that the particular Title gun to review their own policies regarding yet to be determined. IX complaint is appropriate for such a pro- sexual assaults. Louisiana college and uni- cess, the school may facilitate an informal versity leaders are now sifting through the —Kiara Heath resolution, including mediation, to assist new guidelines. According to the Louisiana 2L Student, Student Mediator, the parties in reaching a voluntary resolu- Board of Regents, educators will decide LSU Paul M. Hebert Law Center tion.” www2.ed.gov/about/offices/list/ocr/ what changes are needed in state law and Civil Mediation Clinic docs/qa-title-ix-201709.pdf. policies once the new guidelines are fi- Under the Supervision of This marks a distinct departure from the nalized. Will Sentell, “State Colleges to Paul W. Breaux previously issued guidance that expressly Reassess Sexual Assault Policies in Wake LSU Adjunct Clinical Professor denounced the use of mediation to resolve of Federal Guideline Changes,” (The Past Chair, LSBA Alternative campus sexual-assault complaints. Advocate, Baton Rouge, Oct. 1, 2017). Dispute Resolution Section Since the release of the new interim www.theadvocate.com/baton_rouge/news/ 16643 S. Fulwar Skipwith Rd. guidelines, advocates on both sides of the education/article_8e744922-a3be-11e7- Baton Rouge, LA 70810

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266 December 2017 / January 2018 are extinguished, leaving only the excess intent of a debtor’s co-conspirators alone proceeds available to junior lienholders. is sufficient to support nondischargeability. However, the deeds of trust Cowin drafted The statute “excepts from discharge debts Bankruptcy in connection with the loan agreements ‘for . . . larceny.’” The character of the debt, Law omitted language requiring the deed trust- not the character of the debtor, determines ee to distribute “any amounts required by the issue, and Cowin did not dispute that the law to be paid before payment to Grantor.” debt arose from larceny. Therefore, after foreclosure, the trustee paid The larger of the two proceedings was Three Bankruptcy Cases, the private lender’s tax-transfer liens in full, initiated during Cowin’s second Chapter leaving all excess funds to Cowin. 11 case; however, the bankruptcy court re- Same Court Two adversary proceedings were initi- tained jurisdiction over the matter after the ated by the mortgage lenders, asserting case was dismissed. Judgment was rendered Cowin v. Countrywide Home Loans damages incurred in connection with the after Cowin’s Chapter 7 case had begun, but (Matter of Cowin), 864 F.3d 344 (5 Cir. scheme and further asserting that those the court emphasized in the judgment that, 2017). damages were not dischargeable under 11 while the proceeding may have arisen dur- In Matter of Cowin, debtor Charles U.S.C. §523(a)(4), which exempts from ing the Chapter 11 case, the judgment ap- Cowin filed three bankruptcy cases in the discharge any debt “for fraud or defalcation plied in the Chapter 7 case. Cowin argued same court: two consecutive individual while acting in a fiduciary capacity, embez- that this violated the automatic stay because Chapter 11 bankruptcy cases in 2010, zlement, or larceny.” no timely motion to lift the stay had been which were dismissed, and a Chapter 7 case The bankruptcy court found that Cowin filed. in 2013. had committed larceny, intended to divert The 5th Circuit held that any error was Cowin was involved in a scheme to de- the excess proceeds from junior lienholders harmless because a motion to lift the stay prive mortgage holders of excess foreclo- holding pre-existing mortgages on the prop- would have been granted anyway, result- sure proceeds by using “tax-transfer” liens. erties. In both proceedings, the court found ing in the same outcome. Thus, Cowin was Cowin and his co-conspirators purchased that the damages were nondischargeable not prejudiced by the failure to lift the auto- properties secured by first-lien mortgages at debts. The district court affirmed. matic stay. foreclosure sales and then entered into loan On appeal, Cowin argued that the bank- agreements with two of his companies to ruptcy court erred by imputing the intent —Tristan E. Manthey pay the property taxes. The lender compa- of his co-conspirators to him in determin- Chair, LSBA Bankruptcy nies received tax-transfer liens against the ing nondischargeability. The 5th Circuit Law Section properties in return. Cowin then immedi- rejected this argument, finding that the and ately defaulted on the payment obligations evidence of Cowin’s individual conduct Tiffany D. Snead and instructed the deed trustee to foreclose described above was sufficient to justify Heller, Draper, Patrick, Horn on the properties. nondischargeability. However, regardless & Dabney, L.L.C. Under Texas law, after foreclosure, tax- of Cowin’s own conduct, the conduct and Ste. 2500, 650 Poydras St. transfer liens take priority and junior liens New Orleans, LA 70130

Louisiana Bar Journal Vol. 65, No. 4 267 ments among a limited liability corporation and its individual members. Yorsch recognized that the 2008 amend- Corporate and ment brought non-competition agreements Family Business Law among members of an LLC under the pur- Law view of La. R.S. 23:921. In finding the non- competition agreement in question overly broad and unenforceable under La. R.S. Non-Competition 23:921, Yorsch rejected plaintiff’s conten- Procedure/Recusal tion that the public policy considerations Agreement Among LLC behind La. R.S. 23:921 “should not be ap- Dussouy v. Dussouy, 16-1316 (La. App. 4 Members plied ‘as strictly’ in the context of a bilateral Cir. 5/10/17), 220 So.3d 197, writ denied, agreement between sophisticated parties on ____ So.3d ____, 2017 WL 4546414. Yorsch v. Morel, 16-0662 (La. App. 1 Cir. equal footing.” Rather, Yorsch found that The court of appeal granted Ms. 7/26/17), 223 So.3d 1274. the plain language of the statute mandated Dussouy’s writ and reversed the lower This case considered a non-competition that La. R.S. 23:921 be strictly construed court, which had recused the sitting trial agreement between members of a limited against the party seeking its enforcement judge on the basis of avoiding “the ap- liability company. Prior to 2008, certain — regardless of the bargaining power or pearance of impropriety.” The matter Louisiana courts held that non-competition sophistication of the parties. arose from a status conference that the agreements unrelated to employment were Importantly for business and corporate judge’s law clerk attended after she had outside the scope of the general prohibition practitioners, entity-formation documents accepted employment with Ms. Dussouy’s on non-competition agreements contained frequently contain provisions regarding counsel’s firm. The judge did not disclose in La. R.S. 23:921. See, La. Smoked Prods., duties of loyalty, business opportunities, the employment to Mr. Dussouy’s coun- Inc. v. Savoie’s Sausage & Food Prods., non-competition and non-solicitation. sel. The court of appeal found that Mr. Inc., 96-0716 (La. 7/1/97), 696 So.2d 1373. Practitioners should consider the strict re- Dussouy failed to show a “substantial fac- However, the Louisiana Legislature amend- quirements of La. R.S. 23:921 in drafting tual basis” for “actual bias or prejudice.” edLA La. Bar R.S. Journal 23:921 inAd 2008 9/21/11 to add subsec3:44 -PM these Page provisions and advising clients on en- Moreover, he failed to present evidence tion (L) to address non-competition agree- tity formation and preservation. that questioned the judge’s impartiality. Finally, the court found that the Rules of —David Logan Schroeder Professional Conduct apply to attorneys, SCHAFER GROUP LTD Chair, LSBA Corporate and not to judges. Certified Public Accountants Business Law Section Cook, Yancey, King When you need a forensic accountant, & Galloway, A.P.L.C. Custody call on a professional. Ste. 1700, 333 Texas St. Lewis v. Hart, 17-0024 (La. App. 3 Cir. Shreveport, LA 71101 5/17/17), 221 So.3d 152. “Knowledge of business, finance The trial court denied Lewis’ exception and accounting may be needed of res judicata regarding the mother’s re- at any stage of the litigation SEND YOUR NEWS! The Louisiana Bar Journal conventional demand, in which he had al- process. Therefore, we can be leged that her custody claims had already would like to publish news and an important member of any been decided by a prior judgment. Lewis successful litigation team. photos of your activities and appealed, but the court found it was a pro- From contemplation of action to accomplishments. hibited appeal from an interlocutory judg- expert testimony, we can complement attorneys in ment. As the case involved the custody of ways that increase the likelihood of a desired outcome. Email your news items and an infant, however, the court converted We can support your litigation efforts to save you time photos to: the appeal to a supervisory writ in order to and strengthen your case.” LSBA Publications Coordinator address the assignments of error raised by Darlene LaBranche at both parties. —Kernion T. Schafer, CPA [email protected]. Although the custody judgment ren- dered by the trial court was a final judg- S OUTH S HORE AND N ORTH S HORE O FFICES Or mail press releases to: ment, the trial court erred in ruling on his METAIRIE MANDEVILLE Darlene LaBranche exception prior to addressing the mother’s 701 Aurora Avenue • Suite A 435 Girod Street • Suite B Metairie, Louisiana 70005 Mandeville, LA 70448 Louisiana State Bar Association motion for new trial. Further, the trial 504.837.6573 985.626.4066 601 St. Charles Ave. court’s order vacating its earlier judgments Forensic Accounting • Emerging Issues • Financial Services Litigation Services • Legal Services • Emerging Business New Orleans, LA 70130-3404 was improper as not made under any al-

268 December 2017 / January 2018 lowable procedure. Thus, the court of evaluation. Gary v. LeBlanc, 16-1054 (La. App. 3 appeal reinstated the initial custody judg- The court addressed the concepts of Cir. 6/7/17), 222 So.3d 784. ment and remanded for the court to hear “in loco parentis, de facto parent, or psy- Although the trial court found that the mother’s motion for new trial. chological parent status in custody con- both parties were fit to be the domicili- tests between a parent and a non-parent.” ary parent, the article 134 factors fa- Ferrand v. Ferrand, 16-0007 (La. App. It found that while those concepts did vored the mother, and the court named 5 Cir. 8/31/16), 221 So.3d 909, writ de- not apply in Louisiana, they helped de- her as the domiciliary parent. A change nied, 16-1903 (La. 12/16/16), 211 So.3d fine the issues. The court found that since would have both affected the school the 1164. the primary aim in Louisiana custody child attended and separated her from Vincent, a biological female who cases is to determine and protect the best siblings. The trial court did not err in de- identified as male, and Paula had an ex- interests of the child, a custody evalua- nying Gary’s request to have the child’s tended relationship during which Paula tion was warranted to determine whether surname changed to his, since his action gave birth to twins conceived through ar- substantial harm would occur to the chil- was not brought under the appropriate tificial insemination from a sperm donor. dren if Paula were granted sole custody. statutes; but the court reserved his right After the relationship dissolved, Vincent Needless to say, the facts were complex, to file an amended petition under the filed a petition for custody and fora as was the parties’ relationship. However, proper procedures. The trial court did court-appointed evaluator to be appoint- the children were clearly bonded with not err in denying a reduction of Gary’s ed. The trial court found that Vincent Vincent and identified him as their father. child support to account for the time the failed to show that the children would The trial court had issued protective or- child spent with him as he failed to show suffer substantial harm if Paula were ders preventing Vincent from having any that his financial burden had increased awarded custody and denied his petition contact with Paula for the rest of her life and the mother’s financial obligation and his request for an evaluator. After an and prohibiting him from contact with had decreased. Further, the court appro- extensive review of the law and juris- the children until they reached age 18. priately considered his bonuses in calcu- prudence of the “southern states” and of The court of appeal reversed the order re- lating his income for child support. Louisiana, the court of appeal found that garding the children, as there were no al- Vincent was entitled to seek custody and legations or evidence of harm by Vincent was entitled to a court-appointed custody to the children.

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Louisiana Bar Journal Vol. 65, No. 4 269 Relocation show an alternative design, but argued for the first time thatres ipsa loquitur applied to Insurance, Tort, Blake v. Morris, 51,402 (La. App. 2 Cir. create a presumption that the Atlantis Plate 6/30/17), 222 So.3d 1277, writ denied, Workers’ contained a defect in construction. The dis- 17-1334 (La. 9/15/17), 225 So.3d 478. Compensation & trict court granted summary judgment, and The court of appeal reversed the trial Admiralty Law Lyles appealed. court’s decision that denied Blake’s re- The principle of res ipsa loquitur is “a quest to relocate to Pensacola, Fla., and rule of circumstantial evidence that infers allowed the relocation. Blake was com- Principle of negligence on the part of defendants be- pleting her education, had a job offer in Res Ipsa Loquitur cause the facts of the case indicate that the the Pensacola area, and was also engaged negligence of the defendants is the prob- able cause of the accident, in the absence of to be married to a man who lived and Lyles v. Medtronic Sofamor Danek, USA, other equally probable explanations offered owned a business in that area. She was the Inc., 871 F.3d 305 (5 Cir. 2017). by credible witnesses.” Montgomery v. child’s primary caretaker, and the court Mr. Lyles underwent anterior corpec- Opelousas Gen. Hosp., 540 So.2d 312 (La. found that she would be able to provide a tomy and discectomy surgery. A Verte-Stack 1989). The Louisiana Supreme Court has stable and consistent living environment implant, a vertebral-body implant device, held that res ipsa loquitur can be applied in for the child. Morris, on the other hand, was placed in his cervical spine. An Atlantis products liability actions and used to “shift had no permanent home, but traveled of- Translations Anterior Cervical Plate System the burden of proof to the defendant-manu- ten related to his work and spent most of (Atlantis Plate) was also implanted to stabi- facturer.” Plaintiff must meet three require- his time in hotel rooms, even when vis- lize the Verte-Stack and to promote fusion. ments: iting the child. His visits with the child Sometime after surgery, the Atlantis Plate were inconsistent due to his work and either broke or became displaced. Lyles 1) The facts must indicate that the travel schedule. Notably, the court of ap- brought suit against Medtronic, manufac- plaintiff’s injuries would not have oc- peal found that the trial court misapplied turer of all devices used in the surgery, in curred in the absence of negligence; relocation factor La. R.S. 9:355.14(A) Louisiana state court under the Louisiana 2) The plaintiff must establish that the (3), finding: “All interstate visitations Products Liability Act (LPLA). The district defendant’s negligence falls within pose difficulties, but that factor cannot court granted Medtronic summary judgment the scope of his duty to plaintiff; and stand alone as the only consideration, es- on claims dealing with the Atlantis Plate. 3) The evidence should sufficiently pecially in our mobile society.” The trial Lyles returned to the hospital a week exclude inference of the plaintiff’s court had found that the relocation would after his discharge, stating that he had not own responsibility or the responsibil- make it “difficult” on Morris to maintain improved and had experienced two falls. ity of others besides the defendant in a relationship with the child. The court X-rays showed slight displacement of the causing the accident. of appeal, on the other hand, found that plate, but further tests indicated that it had such “difficulty” was inherent in any re- not broken or became unstable. A second The court found that, in order to succeed location and if allowed to be a controlling surgery was performed nine months after on the theory of res ipsa loquitur, Lyles had factor “would in effect lead to a jurispru- the first, leaving the Atlantis Plate in place. to produce evidence excluding other rea- dential repeal of the relocation statute.” Ten months later, the Atlantis Plate still in sonable explanations. Lyles argued there Further, the trial court erred in finding place, Lyles’ doctor examined him and was no evidence for any other cause for the that Blake thwarted Morris’ access to the found that the anterior and posterior cervi- Atlantis Plate’s breakage, but the court not- child, finding instead that it was Morris cal spine had maintained alignment. He ed there was no evidence of a manufacturing who did not make consistent efforts to see opined that the Atlantis Plate never failed. defect either. The court stated the operative the child, and that Blake had attempted to After defendant removed the case to question in reviewing the trial court’s deci- accommodate him. The court remanded federal court, Lyles, in his third amended sion as to the applicability of the res ipsa the matter for a custody and visitation complaint, brought defective construction loquitur doctrine was not whether there was schedule to be implemented. claims under the LPLA against Medtronic evidence to support other reasonable expla- for the Atlantis Plate, as well as claims un- nations for the Atlantis Plate’s breakage, but —David M. Prados der the Louisiana Unfair Trade Practices whether Lyles has adduced evidence to ex- Member, LSBA Family Law Section and Consumer Protection Law. Medtronic clude other reasonable explanations. Lowe, Stein, Hoffman, Allweiss moved for summary judgment on the & Hauver, L.L.P. defective design and defective construc- —John Zachary Blanchard, Jr. Ste. 3600, 701 Poydras St. tion claims, arguing that Lyles could not Past Chair, LSBA Insurance, Tort, New Orleans, LA 70139-7735 show that the Atlantis Plate deviated from Workers’ Compensation and Medtronic’s specifications or performance Admiralty Law Section standards so as to make it unreasonably 90 Westerfield St. dangerous. Lyles conceded he could not Bossier City, LA 71111

270 December 2017 / January 2018 producing and importing certain trucks lodged a timely protest contending that its from Turkey. By contrast, the import tariff conduct constitutes legitimate tariff en- International on passenger vehicles from Europe in 2009 gineering and that CBP’s analysis should Law was 2.5 percent. focus solely on the vehicle as presented at Ford imports Transit Connect vehicles the border. from Turkey. The vehicles are manufac- The court reviewed prior precedent on tured to serve as cargo vans. However, tariff engineering, noting affirmation of Ford adds second-row seating to the ve- the principle as far back as 1881 by the United States hicle in order to classify the vehicles for U.S. Supreme Court. Id. at 1317. In short, Customs purposes not as trucks subject manufacturers are entitled to manufacture Ford Motor Co. v. United States, 254 to the 25 percent chicken tax, but as pas- goods in a way that avoids higher tariffs F.Supp.3d 1297 (Ct. Int’l Trade 2017). senger vehicles with the accompanying 2.5 as long as the goods are truly invoiced and The United States Court of International percent tariff. Once the Transit Connect presented to CBP without fraud or decep- Trade recently granted Ford Motor Co. vehicles clear customs and before leav- tion. On the other hand, disguise or arti- a significant victory over United States ing port, Ford employs a subcontractor to fice is not allowed in order to avoid a pre- Customs and Border Protection (CBP). The remove the second-row seating in order scribed rate of duty. Id. at 1318. The court dispute involves the process of “tariff engi- to deliver the vehicle to its customers as a reviewed the two competing tariff classi- neering” in order to avoid the still persistent cargo van. fications (truck v. passenger vehicle) and consequences of the 1960s trade war be- Ford’s post-importation port activity focused its examination on inter alia de- tween the United States and Europe. Back raised the ire of CBP, which found that sign intent and structural and auxiliary de- then, in a retaliatory tit-for-tat, the United “the inclusion of the second row seat is an sign features. The court concluded that the States responded to Europe’s increased improper artifice or disguise masking the vehicle presented to CBP at the border is import tariffs on U.S. chicken by imple- true nature of the vehicle at importation . . properly classifiable as a passenger vehicle menting the infamous 25 percent “chicken . .” Id. at 1302. CBP classified the Transit subject to the 2.5 percent tariff rate. There tax” on trucks imported from Europe. The Connect as a truck subject to the 25 percent is a strong possibility that this decision will 25 percent retaliatory chicken tax tariff re- chicken tax despite the second-row seat- be appealed to the Court of Appeals for the mained in place in 2009 when Ford was ing indicative of a passenger vehicle. Ford Federal Circuit.

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Louisiana Bar Journal Vol. 65, No. 4 271 Office of the U.S. Trade enforcement of its order. In a 2-1 decision penned by Judge Representative Labor and Elrod, the 5th Circuit reversed the NLRB decision. The court framed the issue as Section 301 Investigation on China’s Employment Law whether Section 7 of the NLRB, which Acts, Policies and Practices Related guarantees employees the right “to en- to Technology Transfer, Intellectual gage in other concerted activities for the Property and Innovation, Docket No. purpose of . . . mutual aid or protection,” USTR-2017-0016. Circuit Split over Legality contemplates a right to participate in President Trump signed a Presidential class-and-collective actions. The major- Memorandum on Aug. 14, 2017, di- of Class Action Waivers: ity held that it was bound by the court’s recting the Office of the United States Employers Await previous decision in D.R. Horton, Inc. Trade Representative (USTR) to inves- Supreme Court Decision v. NLRB, 737 F.3d 344 (5 Cir. 2013), tigate whether China may be “harming wherein the court considered a class-and- American intellectual property rights, In its Aug. 7, 2017, decision in collective-action waiver included in an innovation, or technology develop- arbitration agreement. Because the waiv- ments.” USTR formally initiated the Convergys Corp. v. NLRB, 866 F.3d 635 (5 Cir. 2017), a divided three-judge panel er involved an arbitration agreement, the investigation on Aug. 18 to determine court in Horton analyzed whether the whether certain Chinese intellectual of the U.S. 5th Circuit Court of Appeals held that the National Labor Relations waiver was enforceable under both the property practices are actionable un- NLRA and the Federal Arbitration Act der Section 301(b)(1) of the Trade Act Act (NLRA) does not protect an em- ployee’s right to participate in class and (FAA). There, the court held that the of 1974. For years, U.S. industries and NLRA and FAA did not conflict, and that companies have complained about collective actions, whether a class-and- collective-action waiver stands alone or “[t]he use of class action procedures . . . Chinese forced technology transfers is not a substantive right” guaranteed to and intellectual property theft. China is included in an arbitration agreement. At issue was Convergys’ requirement employees. Id. at 357. allegedly uses domestic legal require- Judge Higginbotham wrote a dissent- ments (including joint venture require- that its job applicants sign an agreement including the following waiver: ing opinion in Convergys, in which he ments) to intervene in U.S. companies’ reasoned that Horton was distinguishable operations in China in order to pressure because it involved an arbitration agree- the U.S. companies to transfer technol- I further agree that I will pursue any claim or lawsuit relating to my ment and thus implicated the special pro- ogy and intellectual property to Chinese tections of the FAA. Judge Higginbotham companies. China also reportedly directs employment with Convergys (or any of its subsidiaries or related en- concluded that class and collective ac- the acquisition of U.S. companies in or- tions that are not shielded by the pro- der to obtain cutting-edge technologies tities) as an individual, and will not lead, join, or serve as a member of tection of the FAA violate the NLRA. and intellectual property in industries Accordingly, he would have enforced deemed critical to its overall industrial a class or group of persons bring- ing such a claim or lawsuit. the NLRB’s order. In a concurring opin- plan. Many observers believe that this ion, Judge Higginson indicated he was investigation could be the most criti- A Convergys employee who signed persuaded by the dissent’s conclusion cal trade-policy investigation to date. that class-and-collective-action waivers Uncovering systematic measures to fa- this agreement filed charges with the National Labor Relations Board (NLRB), standing alone violate the NLRA, but cilitate large-scale technology transfers was constrained by circuit precedent to not only runs contrary to World Trade alleging that Convergys interfered with the exercise of employee rights by main- concur in the majority’s judgment. Organization obligations, but could also As the Convergys dissent acknowl- pose significant national security risks. taining and enforcing the class-and-col- lective-action waiver. Convergys settled edged, circuit courts are split on whether The USTR held a public hearing on Oct. class-and-collective-action waivers con- 10, 2017. the case with the individual employee, but the NLRB nevertheless issued a com- tained in arbitration agreements are en- forceable. Specifically, the 2nd, 5th and —Edward T. Hayes plaint against Convergys alleging that it violated Section 8(a)(1) of the NLRA by 8th Circuits have held that such waiv- Chair, LSBA International Law Section ers are permissible, while the 6th, 7th, Leake & Andersson, L.L.P. requiring job applicants to sign and by seeking to enforce the waiver. The NLRB 9th and D.C. Circuits have disagreed. In Ste. 1700, 1100 Poydras St. January 2017, the Supreme Court grant- New Orleans, LA 70163 ultimately ordered Convergys to cease and desist from requiring and enforcing ed certiorari in and consolidated cases the waiver. Subsequently, Convergys pe- from the 5th, 7th and 9th Circuits. 137 titioned the 5th Circuit for review of the S.Ct. 809 (2017), granting cert. in NLRB NLRB’s decision, and the NLRB sought v. Murphy Oil USA, Inc., 808 F.3d 1013 (5 Cir. 2015); Lewis v. Epic Sys. Corp.,

272 December 2017 / January 2018 823 F.3d 1147 (7 Cir. 2016); and Morris sibling (Carol) their right, title and interest v. Ernst & Young, L.L.P., 834 F.3d 975, to the royalty interest in the 1947 lease — a 985-87 (9 Cir. 2016). The Court heard .00781255 interest. oral argument on the consolidated cases Mineral In April 1998, the holders of the 1947 on Oct. 2, 2017. Law lease filed a release of the lease in the con- The potential impact of the Supreme veyance records. In May 1998, Carol en- Court decision in the consolidated cases, tered into a new lease with Alfred Glassell, which is expected to be published in ear- affecting a portion of the subject property ly 2018, cannot be overstated. Class-and- Royalty Dispute; (the 1998 lease). The 1998 lease contained collective-action filings against employ- a 1/6 mineral royalty, which was in favor ers maintained their popularity in 2017, Concursus Proceeding; of Carol only. Glassell did not seek a lease especially in the area of wage-and-hour Contract Interpretation from Junius or Dolores. litigation. The ability to bring wage-and- In February 2015, the then-holders of hour claims on a class-and-collective ba- Glassell Producing Co., Inc. v. Naquin, the 1998 lease (Legacy Trust Co., N.A. and sis is especially important for plaintiffs 16-0549 (La. App. 1 Cir. 7/5/17), 224 operating company, Glassell Producing because most individual claims involve So.3d 56. Co., Inc.) filed a concursus proceed- fairly small amounts of money, and it can Three siblings each inherited an undi- ing against Junius, Carol and the heirs of be difficult for a single employee to find vided 1/3 interest in their father’s 1/16th Dolores. Legacy and Glassell claimed that a lawyer willing to take the case. Class- interest in property located in Lafourche there were conflicting claims to proceeds and-collective wage actions are also very Parish. At the time of the inheritance, a from production under the 1998 lease. The attractive to the plaintiffs’ bar, as they 1947 lease was in effect on the property. amount of $397,059.29 was deposited into typically involve a relatively low invest- The lease contained a 1/8 royalty. The the registry of the court pending the out- ment, with potential for high return, in 1947 lease remained in production until come of the lawsuit. comparison to other types of employer 1998. In 1993, five years prior to the ter- In April 2015, plaintiffs filed a motion class action litigation. mination of the lease, two of the siblings to limit the time to file an answer pursuant In sum, while it is difficult to antici- (Junius and Dolores) conveyed to the third to La. C.C.P. art. 4657. Junius did not file pate how the Supreme Court might rule, it is certain that its ruling will be signifi- cant. If the Supreme Court decides that LAW OFFICES OF R. GRAY SEXTON employers can avoid class-and-collective Alesia M. Ardoin Jennifer L. Jackson Edythe L. Koonce Jodi Bauer Loup R. Gray Sexton Blane A. Wilson actions by simply requiring employees to sign waivers, the success of such ac- tions against employers would dramati- cally decrease. However, if the Court gives deference to the NLRB’s position and decides that such waivers violate the NLRA, class-and-collective action fil- ings against employers will likely surge. While we await the Court’s decision, em- ployers and employment lawyers should stay tuned and be prepared to alter their practices for better or worse, depending on the outcome of the case.

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Louisiana Bar Journal Vol. 65, No. 24 273 39 his answer within the 10-day time period. her royalty interest in the property to Carol. been bottomed beneath their land without Thus, the court struck Junius’s answer and The appellate court found that there was no their knowledge or consent. They asserted found that he could not assert any claims in language in the 1993 deed that conveyed that this constituted a subsurface trespass. the lawsuit. Carol and the heirs of Dolores “any and all royalty interest” of Dolores In both cases, the president of the com- timely filed their answers. In November to Carol. Rather, the court found that the pany that had drilled the well was one of 2015, plaintiffs filed a motion for summa- 1993 deed was a limited conveyance by the defendants. ry judgment against the heirs of Dolores. Dolores to Carol. The appellate court con- In both Salemi and Hill, the district Plaintiffs claimed that, pursuant to the cluded that this interpretation made sense court dismissed the claims against the 1993 conveyance, Dolores conveyed all because Louisiana law permits a royalty president on grounds of prescription, re- of her right, title and interest in the roy- owner to dismember his/her royalty inter- lying on La. R.S. 12:1502, which estab- alty interest to Carol and thus did not have est in any legal fashion, including trans- lishes time limits for suits against “busi- any claim to the monies in the registry of fer of a fractional interest. Thus, the trial ness organizations formed under the laws the court. Plaintiffs claimed that Dolores court’s ruling was reversed and the matter of this state” or against certain persons did not put any limitation on the royalty was remanded to the 17th Judicial District associated with such organizations. The interest conveyed — it included the 1947 Court for further proceedings. Louisiana 1st Circuit reversed the judg- and 1998 leases. Plaintiffs maintained that ments of dismissal. The company that had Carol had the right to all of Dolores’s roy- Timeliness of Claims drilled the well was a Texas corporation, alty interest so long as the subject land re- and the court concluded that R.S. 12:1502 mained under production without a lapse Against Officer of applies only to companies organized un- of 10 years. Dolores’s heirs countered that Foreign Corporation der Louisiana law. the 1993 deed conveyed Dolores’s portion of the royalty interest in the 1947 lease Salemi v. TMR Exploration, Inc., 16- —Keith B. Hall only and that the 1993 conveyance does 0567 (La. App. 1 Cir. 6/13/17), 224 So.3d Member, LSBA Mineral Law Section not convey any future royalty interest. 14. Director, Mineral Law Institute The trial court, after a hearing, ruled A plaintiff asserted that he was entitled Campanile Charities Professor that the 1993 conveyance transferred all to compensation because hydrocarbons of Energy Law of Dolores’s interests to Carol, not just were drained from beneath his land by a LSU Law Center, Rm. 428 the interest in the 1947 lease. The heirs well that was bottomed within 330 feet of 1 E. Campus Dr. of Dolores appealed. On appeal, the 1st his property line, without the formation of Baton Rouge, LA 70803-1000 Circuit, performing a de novo review, re- a drilling unit, in violation of Louisiana’s and versed the trial court and found that the well-spacing rules. Colleen C. Jarrott 1993 deed conveyed only Dolores’s royalty The same facts also gave rise to Hill v. Member, LSBA Mineral Law Section interest in the 1947 lease, not any other TMR Exploration, Inc., 16-0566 (La. App. Baker, Donelson, Bearman, lease. The appellate court was not per- 1 Cir. 6/13/17), 223 So.3d 556. In Hill, Caldwell & Berkowitz, P.C. suaded by the argument that the language several plaintiffs alleged that the well had Ste. 3600, 201 St. Charles Ave. “ALL OF SELLER’S right, title and inter- been directionally drilled, and that it had New Orleans, LA 70170-3600 est . . .” meant that Dolores conveyed all of From

to

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274 December 2017 / January 2018 pital ran a CT scan, and the images were able to decide the material issue of fact sent to an off-site radiologist for evalua- as to whether the hospital was vicari- tion. Coward was discharged and walked ously liable for any potential negligence Professional out of the emergency room in police cus- by Dr. Lifshutz. Liability tody. The CT scan report, transmitted to The hospital moved for summary the hospital 23 minutes after Coward’s judgment, submitting the panel opinion discharge, concluded: “Urgent Finding: in support. The plaintiffs opposed with Pneumocephalus.” The discharge in- an affidavit from Dr. Sobel, an- emer Summary Judgment structions made no mention of follow- gency-medicine physician who, inter up about the CT scan, and neither the alia, found fault on the hospital’s part Lee v. Quinn, 17-0070 (La. App. 1 Cir. physician nor any hospital staff member by virtue of its failure to inform jail per- 9/15/17), ____ So.3d ____, 2017 WL communicated with Coward or the jail sonnel of the abnormal CT findings and 4081883. following receipt of the CT report. Coward’s need for additional medical An infant died from an enlarged heart Four days after the discharge, Coward care. Dr. Sobel identified 20 instances after being treated at a general hospital was transported from jail to another hos- in which the hospital, its agents and/or under the care of Dr. Boudreaux, a physi- pital where a second CT scan showed a Dr. Lifshutz were negligent, some or all cian certified in pediatrics and emergency skull fracture, subdural hematoma and of which increased Coward’s “risk of medicine. A medical-review-panel found extensive Pneumocephalus. He died two harm or substantially contributed to his no breach of the standard of care. The months later, an autopsy report reveal- demise.” baby’s mother filed a lawsuit against the ing the cause of death as “Pneumonia The trial court granted partial sum- hospital and Dr. Boudreaux, which was Complicating Head Injury.” mary judgment on the direct negligence met with a motion for summary judg- The first of two medical-review pan- claims against the hospital, but denied ment filed by the defendants. els concluded that the hospital met the the motion with respect to the hospital’s The mother’s principal defense to applicable standard of care but was un- vicarious liability for Dr. Lifshutz. The the motion was an affidavit from Dr. Meliones, a board-certified pediatric car- diologist specializing in pediatric critical care, which stated that both defendants breached several standards of care. The district court observed that Dr. Meliones held board certification in pe- diatric cardiology and was “specializing” in pediatric critical care. Dr. Boudreaux, however, was an emergency-room phy- sician, “a recognized specialty,” and the hospital was a general hospital. Thus, Dr. Meliones’ affidavit failed “to show that he ha[d] the qualifications . . . to of- fer an expert opinion” about standards of care required of Dr. Boudreaux or the hospital. Once the motion to strike the af- SETTLING DISPUTES FOR fidavit was granted, no disputed issue of material fact remained, and defendants’ motion was granted. The appellate court THREE DECADES. held that the district court had not abused RATION PROFES its discretion in excluding the affidavit BIT SIO AR NA N L O S I Y from evidence. T S IA T D E E M M S ,

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Hoston v. Richland Parish Hosp. Serv. C Dist. 1-B, 51,362 (La. App. 2 Cir. 4/5/17), .

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218 So.3d 236. E L Coward, an intoxicated 66-year-old [email protected] E s B r R a man, was knocked unconscious in a bar 800.433.7351 A e T E y fight and taken to Richardson Medical www.maps-adr.com S 3 0 Center’s (RMC) emergency room, where he was treated by Dr. Lifshutz. The hos-

Louisiana Bar Journal Vol. 65, No. 4 275 plaintiffs appealed the court’s finding obviousness such that lay persons can was whether the failure to instruct the that the hospital did not owe any duty to infer causation. In this case, Coward’s jury regarding loss of a chance of sur- Coward to review the results of the CT “death certificate lists the very injury he vival in a medical malpractice case cre- scan or to contact the detention center. was being treated for as a complicating ated a fundamental error that mandated The hospital responded that Dr. Sobel’s factor in his death.” The court held: overturning the jury’s verdict. The ap- statements on causation were “conclu- pellate court noted the following in its sory” in that he did not link the breaches It is, therefore, obvious to a lay discussion about why the trial court to the damages other than to claim that person that there may be some committed no “plain and fundamental” “some or all of [the] deviations” in- causal connection between error: creased the risk of harm or substantially Coward’s death and the treatment contributed to Coward’s death. The hos- and care he received from [the Although a claim involving death pital also argued that Dr. Lifshutz admit- hospital] and Dr. Lifshutz. Even is a necessary element of a loss ted that he knew the CT results before if Dr. Sobel’s statement of causa- of a chance of survival claim, not discharging Coward, rendering hospital tion is insufficient, his affidavit every malpractice claim involving procedures irrelevant. along with all of the other medical death necessarily implicates the The appellate court noted that RMC records creates a genuine issue of loss of a chance of survival doc- admittedly owed “some sort” of duty material fact regarding causation. trine, or necessitates the giving to Coward and that the plaintiffs’ ex- of a loss of a chance of survival pert identified the specific duty that The court reversed the partial sum- instruction. Only in malpractice was breached concerning the CT scan mary judgment in favor of the hospital. cases involving death where the results, whereas the first panel’s opin- evidence presented indicates that ion found no breach of any standard, Loss of a Chance of the loss of a chance of survival thereby establishing a genuine issue of doctrine is applicable is it appro- material fact. Survival priate to give such an instruction. The hospital also argued that causa- tion was not supported by any evidence Deykin v. Ochsner Clinic Found., 16- —Robert J. David because of the “conclusory and unsup- 0488 (La. App. 5 Cir. 4/26/17), 219 Gainsburgh, Benjamin, David, ported” nature of Dr. Sobel’s affidavit. So.3d 1234. Meunier & Warshauer, L.L.C. The court observed that proof of causa- One error of assignment by the plain- Ste. 2800, 1100 Poydras St. tion requires either expert testimony or tiffs, following an adverse jury verdict, New Orleans, LA 70163-2800 Solo, Small Firm

Build this conference around your own needs from THREE simultaneous tracks – whether a newly minted or seasoned lawyer, small or large office, tech able or not.It’s all here: law office management, technology and substantive law, ethics, professionalism, marketing, the business end of law and quality of life. Early-Bird Registration ONLY $300 until January 29, 2018! ► Free Legal Tech Advice from Exhibitors and Consultants ► Networking with state-wide Practitioners ► Fabulous reception on Thursday Night ► Breakfast and lunch at no extra cost ► Marketing tips from experts ► New? Seasoned? Big Law or Small Law? This conference is for You! For more info, call (504)619-0153, or to register online or via mail-in form, visit www.lsba.org/goto/2018Solo

276 December 2017 / January 2018 The Board noted that Taxpayer nei- Donelson. The amendment, which passed ther alleged any procedural impropri- unanimously through the House and ety regarding its Notice of Assessment Senate, further expands the use of the heir- Taxation nor disputed that the assessment had ship affidavit, a mechanism that allows the become final. The Board reasoned that passage or transfer of ownership of inher- the right to seek a refund is specifically ited property to the legal heirs by placing absent from the remedies available to legal title with them when the decedent’s a taxpayer aggrieved by an action of interest in the property does not exceed Finality of Tax the Department in assessing the tax- $125,000. Prior law capped use of the less payer pursuant to La. R.S. 47:1565. It expensive and easier process to estates Assessment Precludes was undisputed that the Taxpayer failed valued at $75,000 or less. The new law Use of Overpayment to timely pursue the remedies made also allows families to use the affidavit Refund Procedure available under La. R.S. 47:1565(C) process for estates of any value in which (3). Therefore, the Board held that the the person died more than 20 years ago. Majestic Medical Solutions, L.L.C. v. claim-for-refund procedure set forth Sec’y, La. Dep’t of Rev., No. 9449C in La. R.S. 47:1621 was not available. —Christy F. Kane (La. Bd. Tax App. 10/10/17). The Board ruled that the finality of the Louisiana Appleseed Majestic Medical Solutions, L.L.C. assessment of the underlying tax at is- Ste. 1000, 1615 Poydras St. (Taxpayer) appealed to the Board of sue in the refund request served to pre- New Orleans, LA 70112 Tax Appeals the Louisiana Department clude use of the La. R.S. 47:1621 refund and of Revenue’s refusal to act on its re- procedure. Thus, the Board granted the Patricia B. (Patty) McMurray quest for a refund. On Dec. 13, 2013, Department’s exception of no right of Baker, Donelson, Bearman, Caldwell & the Department sent Taxpayer a Notice action. Berkowitz, P.C. of Assessment for sales tax. The assess- Chase North Tower ment informed Taxpayer it had 60 days —Antonio Charles Ferachi 450 Laurel St., 20th Flr. from the date of the assessment to appeal Member, LSBA Taxation Section Baton Rouge, LA 70801 to the Board, to pay the tax, or to pay the Director, Litigation Division tax under protest in accordance with La. Louisiana Department of Revenue R.S. 47:1576. Taxpayer took none of 617 North Third St. LEGALANSWER these actions; and, pursuant to La. R.S. Baton Rouge, LA 70821 FREE S.O . RG 47:1565(B), after 60 days, the assess- LA ment became final and was collectible by distraint. After issuing the proper no- Trusts, Estate, tices, on April 1, 2014, the Department Probate & levied Taxpayer’s checking account. On Immovable June 16, 2014, Taxpayer filed a refund Property Law request with the Department for the same matters at issue in the assessment. The Department neither allowed nor Volunteer today denied the Taxpayer’s refund request, La. Small Successions and on Aug. 20, 2015, Taxpayer filed an Act to Help Solve Heir with the new online appeal with the Board. The Department Property Problems responded by filing various exceptions, pro bono program. including an exception of no right of ac- On June 12, 2017, Gov. John Bel tion. Edwards signed into law an amendment For more details, visit The question before the Board to Louisiana Code of Civil Procedure was whether a taxpayer can seek a re- 3421 providing relief to thousands of lsba.org/atj fund of tax through the administrative Louisiana residents living in homes with- claim-for-refund procedure provided out proof of ownership. The Louisiana or contact by La. R.S. 47:1621 if the taxpayer did Small Successions Act, which took effect not appeal the Department’s Notice of Aug. 1, 2017, was introduced by Rep. Assessment concerning that tax, the as- Paula Davis, with the help of Louisiana Rachael M. Mills sessment of that tax became final, and Appleseed, a law-related nonprofit, and ATJ Projects Counsel the assessment of that tax was later sat- its team of attorney volunteers, led by isfied by levy. Patricia B. (Patty) McMurray of Baker (504) 619-0104

Louisiana Bar Journal Vol. 65, No. 4 277 1st Circuit’s Opinion on court granted defendants’/intervenors’ ing to both the Articles of Organization involuntary dismissal of all the plain- and Operating Agreement’s provisions Bergeron tiff’s claims. The plaintiff appealed to was to interpret Bergeron as having the the 1st Circuit Court of Appeal, alleging authority to transfer property under both Andersen v. Succession of Bergeron, the following mistakes as grounds for without member approval. 16-0922 (La. App. 1 Cir. 4/12/17), 217 overturning the 18th JDC’s decision. Next, the appellant alleged Bergeron’s So.3d 1248. First, the appellant argued that un- attorney corrected not merely a cleri- In 2002, Ruffin Leon Bergeron, Jr. and der the LLC’s Operating Agreement, cal error but rather a substantive error, five of his six children formed a family- Bergeron improperly transferred proper- causing the notarial act of correction owned limited liability company (LLC) ty of the LLC to himself because he did to be invalid. When drafting the act of with Bergeron as the initial managing not obtain the approval of the LLC’s oth- transfer Bergeron requested to remove member, with the intention that his chil- er members. Here, the appellant pointed his property from the LLC, Bergeron’s dren would each obtain an equal share of to a conflict between the LLC’s Articles attorney inadvertently included a “less his property when he died. Bergeron was of Organization and the Operating and except” section that prevented some the only member to contribute property Agreement for the LLC. Under the of Bergeron’s property from being trans- to the LLC. In 2009, Bergeron attempted Articles of Organization, Bergeron was ferred. The attorney’s error went un- to convince the other members to allow given the authority to transfer property noticed for two and a half years. Upon his sixth child to join the LLC, but the from the LLC as he wanted, but accord- noticing his error, the attorney executed a other children refused. Upon realizing ing to the Operating Agreement, the notarial correction to make the document his goal to equally split the property managing member needed the consent conform to the true intent of Bergeron. between his six children would not be of the LLC’s other members to trans- The 1st Circuit acknowledged the attor- accomplished under the LLC, Bergeron fer property. The 1st Circuit applied La. ney’s purpose for correcting his mistake unilaterally removed all the property he Civ.C. art. 2049, among others, to con- was to make the act of transfer conform contributed to the LLC and had the LLC clude that a contract with conflicting to the true intent of Bergeron. Next, the dissolved. Bergeron promptly executed provisions should be interpreted so that 1st Circuit adopted the view taken in a will and testament to ensure his goal each provision is given a meaning. In or- In re Huber Oil of Louisiana, Inc., 311 of providing an equal share to each child der to give the Articles of Organization B.R. 440 (Bankr. W.D. La. 2004), that a would be fulfilled. Bergeron’s actions and the Operating Agreement mean- clerical error includes an inadvertent “cut were not contested by any member of ing, the court interpreted the Articles of and paste” function of a word processor. the LLC until two years after his death. Organization as authorizing Bergeron Therefore, the notarial correction was Roughly two years after Bergeron’s to transfer property from the LLC as he valid. death, one of his daughters sued his suc- wanted and the Operating Agreement Last, the appellant contended the LLC cession under multiple theories, includ- as only applying to future managers of should be reinstated because Bergeron ing unauthorized removal of the LLC’s the LLC, not Bergeron. Although the had improperly dissolved the LLC. The property, invalid notarial correction, and Operating Agreement did not expressly 1st Circuit disagreed. The court acknowl- improper dissolution of the LLC. Some exclude Bergeron from needing a major- edged that even if Bergeron improperly of the other children intervened as de- ity of the LLC’s members’ consent be- dissolved the LLC, the former members fendants, and the case was tried in the fore acting, the only way to give mean- of the LLC are not statutorily entitled 18th Judicial District Court. The district to reinstatement of the LLC. The court also pointed out that the children failed to argue that the district court failed to CONNECT WITH THE LSBA ON SOCIAL MEDIA, VISIT reinstate the LLC, which was the only www.lsba.org/goto/socialmedia issue on appeal. The court refused to Like the reinstate the LLC because it had no re- www.lsba.org LSBA Young maining assets and because there was Like the LSBA /goto/ Lawyers on Facebook Division intense discord among Bergeron’s chil- socialmedia on Facebook dren. Ultimately, the 1st Circuit upheld

Serving the district court’s ruling and affirmed the Follow Repin on Serving the Connect the @LSBA_YLD profession. Pinterest involuntary dismissal. with us on public. on Twitter LinkedIn —Sharon S. Whitlow and Paul Mancuso Follow @LSBA_PresidentFollow Long Law Firm, L.L.P. Join our @LouisianaBar circle on on Twitter on Twitter 1800 City Farm Dr., Bldg. 6 Google+ Baton Rouge, LA 70806

278 December 2017 / January 2018 Young LAWYERS CHAIR’S MESSAGE... SPOTLIGHT... EVENTS

when you may need that same cour- CHAIR’S MESSAGE tesy returned to you. Since the admission ceremony, I have seen quite a few headlines stat- ing that an attorney committed a crime Maintain Your or was part of some misconduct. As attorneys, we do not get the benefit of being an ordinary citizen and fading Professional Reputation into the background — the headline By Bradley J. Tate will always include the word “attor- ney” when describing the misconduct. ust a few weeks ago, I had I have seen this to There is tremendous public trust put in the pleasure of welcoming be true many times. us as counselors and advisors to our the newly admitted attorneys In my com- clients. The public expects us as attor- into our Louisiana State Bar ments, I encour- neys to hold ourselves out with a high Association.J I again want to express aged the new ad- moral character and to have better my welcome to all of you into the pro- mittees to have a judgment because of the title we hold. fession! great respect for This is why we should always have a It was in my preparation for that themselves and to second thought before sending an an- speech I was able to reflect on the acknowledge their gry email, making an ethical misstep, experiences that I have gained as an Bradley J. Tate responsibilities to or venturing into a situation where our attorney to this point in my career. It their fellow attor- personal and professional reputations was then that I was reminded of the neys, their clients and the courts. Each can be at risk. I encourage all of you professional responsibilities we have of us could always use a reminder to to remember the oath we took as attor- as attorneys. On the second day of law maintain a respect for one another as neys and be proud of it as you conduct school orientation, my classmates and we defend our clients in the best ways your practice every day. I were told that our professional repu- we know how. Show professional tations began the day before. In the courtesy to your fellow attorneys as On the YLD Schedule past almost 10 years since I graduated, often as possible, as you never know The Young Lawyers Division is gearing up for an exciting spring full of programs. The high school YOUNG LAWYERS mock trial problem has been released and preparations are underway. The DIVISION NEWS Louisiana64 application is available and I would like to encourage you to participate and find out more about Get the latest Young Lawyers being involved in an active bar as- Division news online sociation at the state and local level. Y Go to: Our Barristers for Boards program L will have spring events and Wills for D www.lsba.org/YLD Heroes will likely be in a city near you soon. We also will be accepting The Young Lawyers Division Web site is a applications for young lawyer awards public service of the LSBA-YLD Council, through Feb. 9, 2018. providing YLD information to the public and communicating with YLD members. Best wishes for a happy holiday season!

Louisiana Bar Journal Vol. 65, No. 4 279 of state and federal court in Louisiana. Originally from Ruston, Jones re- YOUNG LAWYERS He has handled matters before the U.S. ceived a BA degree from Davidson SPOTLIGHTYOUNG LAWYER SPOTLIGHT 6th Circuit and the D.C. Circuit Courts College in North Carolina, where he of Appeals. While with the State of played football and threw the javelin. He S. Beaux Jones Louisiana, he advised and represented received his law degree from Louisiana New Orleans numerous state agencies, including State University Paul H. Hebert Law the Department of Natural Resources, Center. He moved back to Louisiana for The Louisiana the Department of Environmental law school specifically to get involved State Bar Assoc- Quality, the Office of Conservation, the with the state’s ongoing efforts to curb iation’s (LSBA) Department of Wildlife and Fisheries, coastal land loss and to participate in Young Lawyers the Coastal Protection and Restoration the conversation about how Louisiana Division Council is Authority and the Governor’s Office can move towards a more sustainable spotlighting New of Homeland Security and Emergency coastal existence. He believes that this Orleans environ- Preparedness. conversation requires all hands on deck, mental attorney S. Since leaving government practice, including scientists, lawyers, govern- Beaux Jones. Jones has become an active writer and ment officials, business leaders, aca- Jones recently S. Beaux Jones presenter on coastal and environmental demics and artists. joined the New issues around the state. He publishes In his community, he is an ac- Orleans office of periodic environmental law updates for tive member of the Faubourg St. John Baldwin Haspel Burke & Mayer, L.L.C., his firm’s blog. He writes the Louisiana Neighborhood Association, as well as after working as an assistant attorney Bar Journal’s Environmental Law several active transportation and envi- general for the Louisiana Department of Section Recent Developments article. ronmental organizations. When not in Justice, where he worked his way up to He has several upcoming presentations the office or the courtroom, he can be environmental section chief. His prac- including at the Mineral Law Institute found leading kayak tours through the tice is currently based in litigation and and the Coastal Law Seminar in March Maurepas Swamp or biking around New administrative matters, focusing on en- and the State of the Coast Conference in Orleans with his wife and son. vironmental, coastal and oil and gas law. May. He also serves as treasurer of the He has argued cases at every level LSBA’s Environmental Law Section. UPCOMING EVENTS Check the Young Lawyers Division website at www.lsba.org/YLD for the most up-to-date listing of upcoming events. Do you have an event to add to the list? Email YLD Secretary, Scott Sternberg, at [email protected].

► Friday, January 19, 2018 LSBA YLD • Professional Development CLE Seminar The seminar is open to the first 175 young lawyers who register. Program organizers will apply for 4 hours of CLE credit (including 1 hour of ethics, 1 hour of professionalism and 1 hour of law practice management). The registration cost is $30 and includes electronic course materials and breakfast at the Renaissance Baton Rouge Hotel (7000 Bluebonnet Blvd., Baton Rouge). Online registration will close at 3 p.m. on Jan. 17; onsite registration will not be allowed unless space is available. Topics to be discussed include ethics, law practice management issues and professionalism. For more information and to register: www.lsba.org/goto/YLDSeminar2018.

► Friday, January 19, 2018 LSBA YLD • Louisiana64 Symposium The goal of the symposium is to strengthen communication, resources and coordination among the young lawyers of Louisiana’s 64 parishes, while increasing access to LSBA and local affiliate initiatives that serve the public and the profession. One young lawyer representative from each parish will be selected to participate. The program will include a roundtable discussion of issues and opportunities for Louisiana’s young lawyers and insight from panelists. Louisiana64 will be held in conjunction with the LSBA’s Midyear Meeting and the YLD Council meeting at the Renaissance Baton Rouge Hotel (7000 Bluebonnet Blvd., Baton Rouge). If you are interested in participating, go to: www.lsba.org/YLD/la641.aspx.

280 December 2017 / January 2018 Deadline February 9, 2018: 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 Kristi W. Richard, Chair, LSBA Young Lawyers Division Awards Committee, 301 Main St., Flr. 14, Baton Rouge, LA 70801. Any nomination packet that is incomplete or is not received or postmarked on or before Feb. 9, 2018, 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 2018. 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 Kristi W. Richard at (225)382-3704 or email [email protected].

Louisiana Bar Journal Vol. 65, No. 4 281 Louisiana Center for

LouisianaCENTER FOR LCLCE LAW & CIVICEducation LAW & CIVIC EDUCATION ADULT CIVICS EDUCATION (ACE)

Adult Civics Education Training to Be Offered at LSBA Midyear Meeting

any Americans ACE will provide legal professionals and Judiciary Committee and co-develop- would like to with the training and tools they need to er of the Bar’s “Benchmarks” Program; learn more present informative and interac- and Annette Boyd Pitts, executive direc- about the U.S. tive law-related education pro- tor of The Florida Bar’s Law-Related Constitution,M the Bill of Rights grams to adults in their com- Education Association, Inc. and co-devel- and the judicial system. To ad- munities. oper of the “Benchmarks” Program. dress this need, the Louisiana The free ACE training LCLCE staff members are available to District Judges Association, session is set for 3-4:30 p.m. assist participants with setting up presen- the Louisiana State Bar Friday, Jan. 19, 2018, at the tations in their communities. Association (LSBA) and the Renaissance Baton Rouge Enrollment is limited. To register Louisiana Center for Law and Hotel, 7000 Bluebonnet Blvd. for the free program, contact LCLCE Civic Education (LCLCE) (The session is in conjunction Executive Director Peggy V. Cotogno, have partnered to form ACE (Adult Civics with the LSBA’s Midyear Meeting.) (504)619-0134 or email peggy.cotogno@ Education). Modeled after The Florida Speakers are Richard H. Levenstein, lsba.org. Bar’s successful “Benchmarks” program, member of The Florida Bar’s Constitutional

SOLACE: Support of Lawyers/Legal Personnel — All Concern Encouraged The Louisiana State Bar Association/Louisiana Bar Foundation’s Community Action Committee supports the SOLACE program. Through the program, the state’s legal community is able to reach out in small, but meaningful and compassionate ways to judges, lawyers, court personnel, paralegals, legal secretaries and their families who experience a death or catastrophic illness, sickness or injury, or other catastrophic event. For assistance, contact a coordinator. Area Coordinator Contact Info Area Coordinator Contact Info Alexandria Area Richard J. Arsenault (318)487-9874 Monroe Area John C. Roa (318)387-2422 [email protected] Cell (318)452-5700 [email protected] Baton Rouge Area Ann K. Gregorie (225)214-5563 Natchitoches Area Peyton Cunningham, Jr. (318)352-6314 [email protected] [email protected] Cell (318)332-7294 Covington/ Suzanne E. Bayle (504)524-3781 New Orleans Area Helena N. Henderson (504)525-7453 Mandeville Area [email protected] [email protected] Denham Springs Area Mary E. Heck Barrios (225)664-9508 Opelousas/Ville Platte/ John L. Olivier (337)662-5242 [email protected] Sunset Area [email protected] (337)942-9836 Houma/Thibodaux Area Danna Schwab (985)868-1342 (337)232-0874 [email protected] River Parishes Area Judge Jude G. Gravois (225)265-3923 Jefferson ParishArea Pat M. Franz (504)455-1986 [email protected] (225)265-9828 [email protected] Cell (225)270-7705 Lafayette Area Josette Abshire (337)237-4700 Shreveport Area Dana M. Southern (318)222-3643 [email protected] [email protected] Lake Charles Area Melissa A. St. Mary (337)942-1900 [email protected] For more information, go to: www.lsba.org/goto/solace.

282 December 2017 / January 2018 PEOPLE LAWYERS ON THE MOVE . . . NEWSMAKERS

Ross F. Lagarde, A.P.L.C., announces that NEWSMAKERS LAWYERS ON Jeffrey G. Lagarde has joined the firm’s NEWSMAKERS THE MOVE Slidell office as an associate. Richard J. Arsenault, a partner in the Al- exandria firm of Neblett, Beard & Arsenault, Barrasso Usdin Kupperman Freeman & Perrier & Lacoste, L.L.C., announces that chaired the November HarrisMartin’s MDL Sarver, L.L.C., in New Orleans announces James H. Johnson has joined the firm as Conference in St. Louis, Mo., on opioid, that Chloé M. Chetta and Catherine an associate in the New Orleans office. Equifax and talcum powder litigation. He P. Thibodeaux have joined the firm as also was recognized as one of America’s associates. Phelps Dunbar, L.L.P., announces that Top 100 High Stakes Litigators for Loui- six attorneys have joined the firm’s New siana in 2017. Hannah, Colvin & Pipes, L.L.P., in Baton Orleans office — William R. Bishop and Rouge announces that Blaine T. Aydell Daniel Lund III have joined the firm as Judy Y. Barrasso, a member of the New has been promoted to partner. partners; David D. (Beau) Haynes, Jr. has Orleans firm Barrasso Usdin Kupperman joined the firm as counsel; and Stuart G. Freeman & Sarver, L.L.C., is the recipi- Johnson, Yacoubian & Paysse, A.P.L.C., Richeson, Alexander R. Saunders and ent of the 2017 John R. (Jack) Martzell in New Orleans announces that Gregory Carys A. Arvidson have joined the firm Professionalism Award, presented by the C. Fuxan joined the firm as special as associates. New Orleans Chapter of the Federal Bar counsel. Association. Stanley, Reuter, Ross, Thornton & Alford, King, Krebs & Jurgens, P.L.L.C., an- L.L.C., in New Orleans announces that Jaimmé A. Collins, a partner in the New nounces that Jedd S. Malish has joined the Christian S. Chaney has joined the firm Orleans office of Adams and Reese, L.L.P., firm’s New Orleans office as of counsel as an associate. and chair of the Diversity Committee, was and W. Spencer King has joined the firm’s named as one of the “Top 15 Business New Orleans office as an associate. Women in Louisiana” by the National Women’s Council. Continued next page

W. Raley Alford III Richard J. Arsenault Judy Y. Barrasso Christian S. Chaney Chloé M. Chetta Clay J. Countryman

Robert J. David Stevan C. Dittman Thomas M. Gregory C. Fuxan James H. Johnson Jeffrey G. Lagarde Flanagan

Louisiana Bar Journal Vol. 65, No. 4 283 Clay J. Countryman, a partner in the Baton Louisiana District Attorneys Association, for Robert S. Toale, founder of the Law Office Rouge office of Breazeale, Sachse & Wilson, his work during the legislative session on of Robert S. Toale in Gretna, was re-elected L.L.P., and a member of the firm’s Health bills recommended by the Criminal Justice to the board of directors of the National Care Section, was appointed as a member Reinvestment Task Force. Association of Criminal Defense Lawyers. of the American Bar Association’s Commis- He also has been appointed vice chair of the sion on Veterans Legal Services. He is also Joanne P. Rinardo, a partner in the New Public Defense Committee and as a member on the Governing Council of the American Orleans office of Deutsch Kerrigan, L.L.P., of the Budget Committee. He will continue Bar Association’s Health Law Section and was named vice president of the Cypress his service on the Death Penalty Committee. heads the Section’s medical legal partner- Academy Board. ships work group. PUBLICATIONS James Parkerson Roy, senior partner and PUBLICATIONS Nancy Scott Degan, managing shareholder managing member of the firm Domengeaux, Best Lawyers in America 2017 of the New Orleans office of Baker, Donel- Wright, Roy & Edwards, L.L.C., in Lafay- Stanley, Reuter, Ross, Thornton & son, Bearman, Caldwell & Berkowitz, P.C., ette, has become a Fellow of the American Alford, L.L.C. (New Orleans): W. Raley was elected to the American Law Institute. College of Trial Lawyers. Alford III, Lynn Luker, Thomas P. Owen, Jr., Bryan C. Reuter, William M. Ross, E. Paige Sensenbrenner, senior partner Richard C. Stanley and Jennifer L. J. Neale deGravelles, a partner in the Baton in charge of the New Orleans office of Thornton. Rouge firm of deGravelles & Palmintier, was Adams and Reese, L.L.P., was named elected as chair of the American Association a sustaining member of the Product Li- Best Lawyers in America 2018 for Justice’s Admiralty Practice Section. ability Advisory Council. Adams and Reese, L.L.P. (Baton Deutsch Kerrigan, L.L.P., associates Andrew New Orleans attorney Kim S. Sport received Rouge, New Orleans): E. Gregg Bar- J. Baer and Evan J. Bergeron, both working the 2017 Hannah G. Solomon Award, pre- rios, Mark R. Beebe, Philip O. Bergeron, in the New Orleans office, were named to sented by the National Council of Jewish Charles A. Cerise, Jr., Robin B. Cheatham, the Fall 2017 Class of the New Orleans Eco- Women’s (NCJW) Greater New Orleans V. Thomas Clark, Jr., Jaimmé A. Collins, nomic Development Ambassador Program. Section to recognize a volunteer commu- Kathleen F. Drew, John M. Duck, Brooke nity leader who exemplifies the qualities of Duncan III (New Orleans “Lawyer of the The Louisiana Family Forum in Baton Solomon, NCJW founder. Year,” Labor Law-Management), Richard B. Rouge presented 2017 Kevin Kane Justice Eason II, Mark S. Embree, Philip A. Franco, Awards to Judge Scott U. Schlegel, 24th Edward C. (Ed) Taylor, a partner in the A. Kirk Gasperecz, William B. Gaudet, Judicial District Court in Gretna, for his work Gulfport, MS, office of Daniel Coker Horton Charles F. Gay, Jr., E.L. Henry (Baton on Angola’s re-entry court program; and to & Bell, P.A., was inducted into the American E. Pete Adams, Jr., executive director of the College of Trial Lawyers. Continued next page

Lynn Luker Van R. Mayhall, Jr. Gerald E. Meunier Conrad Meyer IV Walter C. Thomas P. Morrison IV Owen, Jr.

Patrick K. Reso Bryan C. Reuter William M. Ross James Parkerson David R. Sherman Richard C. Stanley Roy

284 December 2017 / January 2018 Rouge “Lawyer of the Year,” Government Reso, Jr., Leon H. Rittenberg, Jr., Leon H. Patrick K. Reso and David R. Sherman. Relations Practice), Louis C. LaCour, Jr., Rittenberg III (New Orleans “Lawyer of the Coats Rose, P.C. (New Orleans): Walter Edwin C. Laizer, Leslie A. Lanusse, Francis Year,” Non-Profit/Charities Law), John A. W. Christy, Clyde H. Jacob III, A. Kelton V. Liantonio, Jr., Kellen J. Mathews, Don Rouchell, William B. Schwartz, Matthew A. Longwell and Elizabeth Haecker Ryan. S. McKinney, Robert B. Nolan, Glen M. Treuting and Karl J. Zimermann. Dué Guidry Piedrahita Andrews, L.C. Pilié, Jane C. Raiford, Lee C. Reid, Robert Breazeale, Sachse & Wilson, L.L.P. (Baton Rouge): B. Scott Andrews, Kirk A. L. Rieger, Jr., Edward J. Rice, Jr., Jeffrey E. (Baton Rouge, New Orleans): Van R. Guidry and Randolph A. (Randy) Piedrahita. Richardson (New Orleans “Lawyer of the Mayhall, Jr. (Baton Rouge “Lawyer of Gainsburgh, Benjamin, David, Meuni- Year,” Mass Tort Litigation/Class Actions- the Year,” Litigation and Controversy-Tax) er & Warshauer, L.L.C. (New Orleans, Defendants), James T. Rogers III, Deborah and Thomas R. Temple, Jr. (Baton Rouge Ridgeland, MS): Robert J. David, Stevan B. Rouen, Elizabeth A. Roussel, E. Paige “Lawyer of the Year,” Litigation-Insurance). C. Dittman, Gerald E. Meunier, Walter Sensenbrenner, Ronald J. Sholes, Mark J. Also, John T. Andrishok, Robert L. Atkinson, C. Morrison IV and Irving J. Warshauer. Spansel, Martin A. Stern, Mark C. Surpre- Thomas M. Benjamin, Robert T. Bowsher, Herman, Herman & Katz, L.L.C. nant, Roland M. Vandenweghe, Jr., Robert Jude C. Bursavich, Peter J. Butler, Jr., David (New Orleans): Leonard A. Davis, Soren A. Vosbein, Lara E. White, David M. Wolf R. Cassidy, David M. Charlton, Cullen J. E. Gisleson, Maury A. Herman, Russ M. and J. Robert Wooley. Dupuy, Murphy J. Foster III, Gregory D. Herman, Stephen J. Herman (New Orleans Baker, Donelson, Bearman, Caldwell Frost, Judith W. Giorlando, Alan H. Good- “Lawyer of the Year,” Mass Tort Litigation/ & Berkowitz, P.C. (Baton Rouge, Mandev- man, Emily Black Grey, Paul M. Hebert, Class Actions-Plaintiffs), Brian D. Katz, ille, New Orleans): Alissa J. Allison, Edward Jr., Scott N. Hensgens, Michael R. Hubbell, James C. Klick (New Orleans “Lawyer of the H. Arnold III (New Orleans “Lawyer of Joseph R. Hugg, David R. Kelly, Van R. Year,” Medical Malpractice Law-Plaintiffs) the Year,” Commercial Transactions/UCC Mayhall III, Eve B. Masinter, Trenton J. and Steven J. Lane. Law), Alton E. Bayard III, Craig L. Caesar, Oubre, Richard G. Passler, James R. Raines, King, Krebs & Jurgens, P.L.L.C. (New Phyllis G. Cancienne, Roy C. Cheatwood, Claude F. Reynaud, Jr., Jerry L. Stovall, Orleans): Len R. Brignac, Robert J. Burvant, Robert C. Clotworthy, Christopher O. Davis, Jr., B. Troy Villa, Stephen R. Whalen and J. Grant Coleman, Eric E. Jarrell, George B. John B. Davis, Nancy Scott Degan, Warner Douglas K. Williams. Jurgens III, Henry A. King, Patricia A. Krebs, J. Delaune, Jr., Robert S. Emmett, Sean L. Carver, Darden, Koretzky, Tessier, Robert J. Stefani, Jr. and David A. Strauss. Finan, Donna D. Fraiche, Mark W. Frilot, Finn, Blossman & Areaux, L.L.C. (New Lamothe Law Firm, L.L.C. (New Monica A. Frois, Steven F. Griffith, Jr., Jan Orleans): Raymond G. Areaux (New Orleans): Frank E. Lamothe III. M. Hayden, William H. Howard III, Errol Orleans “Lawyer of the Year,” Litigation- Lugenbuhl, Wheaton, Peck, Rankin J. King, Jr., Kenneth M. Klemm (New Or- Intellectual Property), Roy E. Blossman & Hubbard (New Orleans): Christopher leans “Lawyer of the Year,” Transportation (New Orleans “Lawyer of the Year,” Finan- T. Caplinger, Stanley J. Cohn, Elia Diaz- Law), Amelia Williams Koch, M. David cial Services Regulation Law), M. Hampton Yaeger, Celeste D. Elliott, Rose McCabe Kurtz, Kent A. Lambert, Jon F. Leyens, Carver (New Orleans “Lawyer of the Year,” LeBreton, Stewart F. Peck, Seth A. Sch- Jr., Alexander M. McIntyre, Jr., Patricia Oil and Gas Law), M. Taylor Darden, Wil- meeckle, David B. Sharpe and S. Rodger B. McMurray, Mark W. Mercante, Kerry liam T. Finn, I. Harold Koretzky, Leann Wheaton, Jr. J. Miller, Christopher G. Morris, Anne E. Opotowsky Moses, Philip D. Nizialek, Manion Gaynor & Manning, L.L.P. Raymond, James H. Roussel, Margaret M. Robert S. Stassi, Frank A. Tessier, Robert (Lake Charles, New Orleans, Hattiesburg, Silverstein, Danielle L. Trostorff, Paul S. Paul Thibeaux (New Orleans “Lawyer of the MS): David R. Frohn, Christopher O. Mas- West, Anne Derbes Wittmann, Matthew A. Year,” Equipment Finance Law) and David senburg and G. Max Swetman. Woolf and Adam B. Zuckerman. F. Waguespack (New Orleans “Lawyer of Ogletree Deakins Nash, Smoak & Baldwin Haspel Burke & Mayer, the Year,” Litigation-Bankruptcy). Stewart, P.C. (Lafayette, New Orleans): L.L.C. (New Orleans): David L. Car- Chehardy, Sherman, Williams, Mur- Monique Gougisha Doucette, Gregory rigee, Thomas J. Cortazzo, Lawrence R. ray, Recile, Stakelum & Hayes, L.L.P. Guidry, Steven Hymowitz, Mark N. Mallery DeMarcay III, Joel A. Mendler, Jerome J. (Hammond, Metairie): Conrad Meyer IV, and Christopher E. Moore.

Jack M. Stolier Edward C. Taylor Thomas R. Catherine P. Jennifer L. Thornton Irving J. Warshauer Temple, Jr. Thibodeaux

Louisiana Bar Journal Vol. 65, No. 4 285 Stanley, Reuter, Ross, Thornton & Louisiana Super Lawyers 2018 tion law, probate law, tax law and air Alford, L.L.C. (New Orleans): W. Raley Stanley, Reuter, Ross, Thornton & Al- law. She earned a bachelor’s degree Alford III, Lynn Luker, Thomas P. Owen, ford, L.L.C. (New Orleans): Lynn Luker, in 1933 in journalism from Louisiana Jr., Bryan C. Reuter, William M. Ross, Thomas P. Owen, Jr., Bryan C. Reuter, State University and a master’s degree Richard C. Stanley (New Orleans “Law- William M. Ross, Richard C. Stanley and in 1935 in political science from LSU. yer of the Year,” Legal Malpractice Law- Jennifer L. Thornton. She graduated first in her class in 1937 Defendants) and Jennifer L. Thornton. from Tulane University Law School. She Sullivan Stolier Schulze & Grubb, Texas Super Lawyers 2017 was a member of the People’s League, L.L.C. (New Orleans): Jack M. Stolier. Maureen Blackburn Jennings, At- an anti-Huey Long organization she Taylor, Porter, Brooks & Phillips, torney at Law (Houston, TX): Maureen helped found in the 1930s with a group L.L.P. (Baton Rouge): Robert W. Barton, Blackburn Jennings. of Tulane law students. She served on the John Stone Campbell III, Preston J. Castille, State Civil Service Commission and the Jr., Robert L. Coco, Michael A. Crawford, Louisiana Civil Service League and was Anne J. Crochet, Vicki M. Crochet, Bonnie ININ MEMORIAM MEMORIAM appointed to the Jefferson Parish Charter J. Davis, Paul O. Dicharry, Nancy C. Dough- Commission. She authored Workmen’s erty, Richard B. Easterling, James L. Ellis, Marian Mayer Ber- Compensation Law in Louisiana (Loui- Brett P. Furr (Baton Rouge “Lawyer of the kett, a New Orleans siana State University Press, 1937). She Year,” Litigation-Real Estate), Eugene R. lawyer whose career received many awards during her career, Groves, Ann M. Halphen, Mary C. Hester spanned seven de- including the 2010 American Bar As- (Baton Rouge “Lawyer of the Year,” Trusts cades, died June 4, sociation Martin J. Andrew Award for and Estates), Edward D. Hughes, Amy 2017, at her home Lifetime Achievement in Fidelity and C. Lambert, Amy Groves Lowe, Lloyd J. in New Orleans. Surety Law and the 2009 Federal Bar Lunceford, John F. McDermott, W. Shelby She was 104. She Association’s Jack Martzell Profession- McKenzie (Baton Rouge “Lawyer of the practiced for 72 alism Award. In 2013, she was inducted Year,” Insurance Law), John P. Murrill, years with Deutsch Marian Mayer into the inaugural class of the Tulane J. Michael Parker, Jr., Harry J. Philips, Kerrigan, L.L.P. Berkett Law School Hall of Fame. In 2016, she Jr. (Baton Rouge “Lawyer of the Year,” (formerly Deutsch, was named Tulane Law School’s Distin- Litigation-Banking and Finance), John H. Kerrigan & Stiles). She was the first guished Alumna. The wife of the late Dr. Runnels, Patrick D. Seiter (Baton Rouge woman lawyer hired by the firm and later George David Bercovitz Berkett, she is “Lawyer of the Year,” Health Care Law), became a partner. She was recognized survived by nieces, nephews and cousins. Fredrick R. Tulley, Michael S. Walsh and for her work in surety law, construc- T. Mac Womack.

Benchmark Litigation Barrasso Usdin Kupperman Freeman People Deadlines & Notes & Sarver, L.L.C. (New Orleans): Michael Deadlines for submitting People A. Balascio, Judy Y. Barrasso, Kristin L. Beckman, Jamie L. Berger, George C. Free- announcements (and photos): man III, Craig R. Isenberg, Stephen H. Kup- Publication Deadline perman, David N. Luder, Stephen L. Miles, H. Minor Pipes III, Andrea Mahady Price, April/May 2018 Feb. 2, 2018 Richard E. Sarver and Steven W. Usdin. June/July 2018 April 2, 2018 Flanagan Partners, L.L.P. (New Or- August/Sept. 2018 June 2, 2018 leans): Thomas M. Flanagan.

Chambers USA 2017 Announcements are published free of charge for members of Stanley, Reuter, Ross, Thornton & the Louisiana State Bar Association. Members may publish Alford, L.L.C. (New Orleans): Richard photos with their announcements at a cost of $50 per C. Stanley. photo. Send announcements, photos and photo payments Louisiana Super Lawyers 2017 (checks payable to Louisiana State Bar Association) to: Flanagan Partners, L.L.P. (New Orleans): Sean P. Brady, Andy J. Dupre, Publications Coordinator Darlene M. LaBranche, Harold J. Flanagan, Thomas M. Flanagan Louisiana Bar Journal, 601 St. Charles Ave., New Orleans, and Charles-Theodore Zerner. LA 70130-3404 or email [email protected].

286 December 2017 / January 2018 Samuel S. Dalton, a 1988 and the National Association of civil law heritage. He was keenly inter- lawyer who devoted Criminal Justice Lawyers’ President’s ested in the contributions of his family to his six-decade career Commendation Award in 1987. The Louisiana history, particularly Louisiana to opposing the death Sam Dalton Capital Defense Advocacy legal history. He is a descendant of Gov. penalty and repre- Award was established by the Loyola Jacques Villere, the first native-born senting the indigent, Death Penalty Resource Center in 1994, governor of Louisiana; Hugues Lavergne, died Sept. 5, 2017, at the same year in which he received an a 19th century lawyer and banker; and his home in Harahan. honorary doctorate from the law school. Gustavus Schmidt, a lawyer, scholar and He was 90. Born in Also in 1994, an endowed scholarship Swedish transplant to New Orleans in the Tuscumbia, Ala., he Samuel S. Dalton bearing his name was founded at the law 1820s, who established the Louisiana moved to Louisiana school. He is survived three daughters, Law Journal (the first legal periodical when his father was transferred to New a sister and a grandchild. in Louisiana), authored the Civil Law of Orleans. During World War II, he served Spain and Mexico in 1851, founded the in the Navy Air Corps as a Florida-based Louis V. de la predecessor of Tulane Law School, and radio and radar operator and was as- Vergne, an attorney, assembled an extensive library. In 2005, signed to a torpedo bomber squad pa- died Sept. 16, 2017, Mr. de la Vergne co-authored Catalogue trolling the Gulf of Mexico. He attended after a brief illness. of Gustavus Adolphus Schmidt’s Library Loyola University on the G.I Bill. After Born on Sept. 21, 1877. His family was known for the “de obtaining a law degree in 1954, he set up 1938 in New Or- la Vergne Volume,” a Louisiana legal a solo practice. Throughout his career, leans, he received text containing codifier Moreau Lislet’s he handled more than 300 capital cases. an undergraduate source notes for the Digest of 1808. Mr. de He received the Benjamin Smith Award, degree from Tulane la Vergne worked with Professor Robert the American Civil Liberties Union of University. He re- Louis V. Pascal to have the volume reproduced in Louisiana’s highest honor. The founding ceived his JD degree de la Vergne 1967 and reprinted in 2008 for the bicen- chair of the Jefferson Parish Indigent in 1965 from Tulane University Law tennial of the Digest. He is survived by Defender Board, he received several School and was admitted to the Louisiana two brothers, cousins, nieces, nephews awards over his career, including the Bar. In 2015, he was honored as a 50-year and other relatives. Louisiana State Bar Association’s Pro member of the Bar. A lifelong world trav- Bono Lifetime Achievement Award in eler, he enjoyed visiting countries with a NOTICE / Attorney Fee Review Board Accessible Anytime, Anywhere: 2001 Louisiana Acts 208 created the Attorney Fee Review Board (AFRB). The Who’s Who “Who’s Who in ADR Act allows for payment or reimbursement of legal fees and expenses incurred in 2017 in ADR 2017” the successful defense of state officials, officers or employees who are charged with Directory criminal conduct or made the target of a grand jury investigation due to conduct aris- Available Online ing from acts allegedly undertaken in the performance of their duties. and on LSBA App Supplement to the Louisiana Bar Journal Volume 65, No. 3 The AFRB is charged with establishing hourly rates for legal fees for which the Louisiana Bar Journal Vol. 65, No. 3 Who’s Who in ADR 2017 1 State may be liable pursuant to R.S. 13:5108.3. Pursuant to R.S. 13:5108.4, the rates Need to set up an arbitration/media- “shall be sufficient to accommodate matters of varying complexity, as well as work tion session but your printed directory is of persons of varying professional qualifications.” back at the office? Go online! The AFRB met on Oct. 3, 2017. Requests for payment or reimbursement of legal The “Who’s Who in ADR 2017” fees should be evaluated on a case-by-case basis. As directed by statute, the AFRB Directory, featuring profiles of arbitra- set a minimum rate of $125 per hour and a maximum rate of $425 per hour. These tors and mediators working throughout the state, is available 24/7. rates will remain in effect through 2019. Attorneys who represent state officials and employees should be prepared to pro- Go to the LSBA’s website: vide their clients and the AFRB with sufficient information to enable the Board to www.lsba.org/goto/adrdirectory2017. assess the reasonableness of attorney fees and expenses. Go to the free LSBA App. The Any questions regarding the AFRB should be addressed to Louisiana Supreme app is available for iPad, iPhone and Court Deputy Judicial Administrator Richard Williams, 1600 N. 3rd St., 4th Floor, Android users. Search “Louisiana State Baton Rouge, LA 70802. Bar Association” in your devices’ App Stores for the free download.

Louisiana Bar Journal Vol. 65, No. 4 287 NEWS SULC 70... LOCAL BARS... LBF

UPDATE SLLS Receives Grants outheast Louisiana Legal Services Corp. (SLLS) will receive a $250,515 Pro Bono Innovation Fund grant and a $68,119 Technology Initiative grant, Legal ServicesS Corp. (LSC) President Jim Sandman an- nounced. The LSC’s Pro Bono Innovation Fund is in- tended to encourage and expand robust pro bono efforts and partnerships to serve more low-income clients. The LSC’s Technology Initiative grants ex- pand access to justice for millions of Americans Southern University Law Center (SULC) Chancellor John K. Pierre, left, with Louisiana who cannot afford a lawyer. The grants make legal Supreme Court Chief Justice Bernette Joshua Johnson, with the portrait that will hang in information, court forms, video forms, video in- the Judicial Hallway. The portrait was unveiled at SULC’s Gala commemorating the Law struction and practical tips familiar to people who Center’s 70 years. otherwise would have to navigate the legal system without help. The Pro Bono Innovation Fund grant will go SULC towards SLLS’ Pro Bono Transformation Project. This project will enhance the organization’s pro Celebrates 70 bono program by centralizing its lawyer volunteer program and undertaking an in-depth assessment Years at Gala of how the program engages in pro bono activities. The goal of the project is to increase the program’s outhern University Law infrastructure capacity, promote better coordina- Center (SULC) celebrat- tion of resources, increase positive volunteer expe- ed 70 years at its annual riences, facilitate greater collaboration, and expand gala on Sept. 1, 2017, in pro bono services for clients. The grant also will SBaton Rouge. This year’s event allow SLLS to create web-based legal resources honored Louisiana Supreme Court and upgrade volunteer communication strategies. Chief Justice Bernette Joshua SLLS will use its Technology Initiative grant to Johnson. improve its website, LouisianaLawHelp.org. The Attending the Southern University Law Center SULC commissioned a portrait project will progress in three stages — a website (SULC) gala were Judge Ramona L. Emanuel, of the Chief Justice that will hang evaluation phase, a site overhaul and redevelop- right, deputy chief judge, 1st Judicial District in the Judicial Hallway along with ment phase, and a site outreach and marketing Court (1986, JD SULC), and her sister, Dr. Rachel L. Emanuel (BA, 1977; MJ, 1991), who other trailblazers such as Revius phase. It will incorporate many of the recom- retired in December 2016 as SULC director O. Ortique, Jr., Jesse N. Stone mendations from LSC’s recent statewide website of communications and development support. and alumni inducted in the SULC evaluation project with the goal of optimizing the SULC Chancellor John K. Pierre announced Judicial Hall of Fame. website for use on mobile devices and increasing the establishment of an endowed professorship in Dr. Emanuel’s name. overall usability.

288 December 2017 / January 2018 LOCAL/SPECIALTY BARS Martinez Receives New Orleans Bar’s Presidents’ Award

Judy Perry Martinez, of coun- sel at Simon, Peragine, Smith & The 22nd Judicial District Bar Association’s Women in Law Section conducted a CLE meeting on Redfearn, L.L.P., Aug. 31, 2017, in Covington. Judge Allison H. Penzato with the Louisiana 1st Circuit Court of Appeal in New Orleans, is discussed various topics about practicing in the 1st Circuit. Seated from left, Michelle Mayne Davis, Michelle Blanchard, Judge Penzato, Kelly M. Rabalais (Section chair), Alison C. Bondurant and the recipient of the Christie H. Forrester. Standing from left, Suzanne M. Jones, Cynthia M. Petry, Anna K. Wong, 2017 New Orleans Karlin L. Riles, Angel L. Byrum, Deborah S. Henton, Lou Anne Milliman, Rachael P. Catalanotto, Bar Association’s Elizabeth S. Sconzert, Barbara T. Carter and C. deShea Richardson. Presidents’ Award. Judy Perry Martinez The award, pre- sented at a ceremony on Oct. 18, 2017, recognizes professional excellence, in- tegrity and dedication to service in the highest ideals of citizenship. Martinez previously served as senior partner at Simon Peragine. She later served as chief compliance officer for Northrop Grumman before pursuing a fellowship with Harvard’s Advanced Leadership Initiative. The award is the highest level of recognition from the Association and is named the “Presidents’ Award” out of respect to the high ideals of community The Alexandria Bar Association hosted the annual Court Opening ceremony on Sept. 6, 2017. Chief service and leadership displayed by all Judge Patricia E. Koch, 9th Judicial District, opened the ceremony. Bar President Robert L. Beck III of the presidents of the New Orleans provided introductory remarks, and Allison P. Nowlin, criminal staff attorney, 9th JDC, welcomed Bar Association. 11 new attorneys. From left, Michael S. Koch; Judge Gary Hays, Pineville City Court; Judge Greg Beard, 9th Judicial District Court; and Judge F.A. Little, retired federal judge.

Judge Rebecca F. Doherty, center, U.S. District Court, Western District Baton Rouge Bar Association President-Elect Linda Law Clark, from left, of Louisiana, was honored Aug. 24, 2017, for her nearly 26 years of ser- President Karli Glascock Johnson and Treasurer Amy C. Lambert attend- vice. A retirement reception was held at the U.S. District Courthouse ed the association’s September Bar Luncheon on Sept. 12, 2017. Photo in Lafayette. From left, Lafayette Bar Association President Melissa L. provided by the Baton Rouge Bar Association. Theriot, Judge Doherty and Lafayette Bar Association Young Lawyers Section President-Elect Jaclyn B. Bacon.

Louisiana Bar Journal Vol. 65, No. 4 289 The New Orleans Chapter of the Federal Bar Association (FBA) hosted its Annual Meeting and Awards Luncheon on Aug. 17, 2017. Louisiana Gov. John Bel Edwards, left, was the keynote speaker. Recipients of the President’s Award, the Jack Martzell Professionalism Award and the Camille Gravel Pro-Bono/Public Service Award Attending the DeSoto Parish Bar Association’s Law Day program were, front row from left, attor- were recognized. The 2017-18 board and officers ney Michael E. Daniel; Rev. Anna Morris-Jackson, Wesley United Methodist Church, Mansfield; were elected. With Gov. Edwards are Kelly T. attorney George Winston III; Judge Amy Burford McCartney, 42nd Judicial District Court, DeSoto Scalise, center, outgoing FBA New Orleans presi- Parish; program speaker Judge Jeffrey S. Cox, Louisiana 2nd Circuit Court of Appeal; and attorney dent, and W. Raley Alford III, incoming president. Adrienne D. White, president, DeSoto Parish Bar Association. Back row from left, Dr. Thumper Miller, pastor, First Baptist Church, Mansfield; Marvin Jackson, City Clerk, Mansfield City Hall; attorney Dave Knadler, vice president, DeSoto Parish Bar Association; attorney Rhys E. Burgess; Judge Charles B. Adams, 42nd Judicial District Court, DeSoto Parish; Louisiana State Rep. Lawrence Bagley; DeSoto Parish District Attorney Gary V. Evans; and attorney Murphy J. White.

DeSoto Parish Bar Celebrates Law Day

The DeSoto Parish Bar Association program attendees included public of- hosted its annual Law Day program ficials and members of the community. on May 5, 2017, in the DeSoto Parish The DeSoto Parish Bar Association, the The 4th Judicial District Bar Association cel- Courthouse in Mansfield. Speaker for DeSoto Parish Clerk’s Office and the ebrated the annual Court Opening ceremony the program was Judge Jeffrey S. Cox, Louisiana State Bar Association spon- on Sept. 8, 2017, at the 4th JDC Courthouse in Monroe. Thirteen new attorneys were welcomed Louisiana 2nd Circuit Court of Appeal. sored the reception following the program. to the Bar. From left, 4th Judicial District Bar In addition to the legal community, Association Immediate Past President G. Adam Cossey and President Margaret H. Pruitt. LOUISIANA BAR FOUNDATION LBF Seeking Nominations for 2018 Boisfontaine Award he Louisiana Bar Foundation nominee is proposed as the award recipi- standing devotion to and excellence in trial (LBF) is seeking nomina- ent. Nominations should be forwarded practice and who upholds the standards of tions for the 2018 Curtis R. by the deadline to LBF Communications ethics and consideration for the court, liti- Boisfontaine Trial Advocacy Director Dennette Young, Ste. 1000, 1615 gants and all counsel. TAward. Nominations must be received Poydras St., New Orleans, LA 70112, or in the LBF office by Monday, Feb. 5, emailed to [email protected]. 2018. The award will be presented at the This trial advocacy award was es- Louisiana State Bar Association’s Annual tablished through an endowment to the Louisiana Bar Meeting in Destin, Fla., in June. The re- Louisiana Bar Foundation in memory Foundation Announces cipient will receive a plaque and $1,000 of Curtis R. Boisfontaine, who served New Fellows will be donated to the recipient’s choice as president of the Louisiana State Bar The Louisiana Bar Foundation of a non-profit, law-related program or as- Association and the Louisiana Association announces new Fellows: sociation providing services in Louisiana. of Defense Counsel. Generous donations Nominations should include the nomi- from Sessions, Fishman, Nathan & Israel, Hon. Tammy D. Lee...... Monroe nee’s name, contact information, a brief L.L.P., the Boisfontaine Family and friends Melissa T. Lonegrass...... Baton Rouge Barbara Bell Melton...... Alexandria written statement on the background of established the fund. The award is given to Alexandra G. White...... Houston, TX the nominee, as well as reasons why the a Louisiana attorney who exhibits long-

290 December 2017 / January 2018 LOUISIANA BAR FOUNDATION President’s Message The Giving Season By President Valerie Briggs Bargas

oon, we’ll be busy shopping problems, including ing together, we can continue to provide for holiday gifts, spending time family law, housing, free civil legal aid to Louisiana’s most with family and friends, eating healthcare, public vulnerable citizens. delicious food and, hopefully, benefits, consumer Please take the time during this busy Sreflecting on the spirit of the season — protection, commu- holiday season to reflect on the blessings Giving. As the end of the year approach- nity support issues, in your life and consider a tax-deductible es, our personal and professional to-do government and le- gift to the LBF. Make your gift online at lists grow increasingly long. Please gal system issues in www.raisingthebar.org/YearEnd or mail remember to put the Louisiana Bar 2016. directly to the LBF, Ste. 1000, 1615 Foundation (LBF) on your list this year. The LBF pro- Valerie Briggs Poydras St., New Orleans, LA 70112. With your support, Louisiana’s civil vides an opportunity Bargas If you have any questions, contact our legal aid organizations provided assis- for all lawyers to play a part in ensuring Development Director Laura Sewell at tance in 26,437 legal matters consisting that every Louisiana citizen has equal (504)561-1046 or email laura@rais- of more than 100 types of civil legal access to the justice system. By work- ingthebar.org. Sponsors Sought for LBF Fellows Gala

The Louisiana Bar Foundation (LBF) will celebrate its 32nd Annual Fellows Gala on Friday, April 20, 2018. The gala will be held at the Hyatt Regency New Orleans, 601 Loyola Ave., New Orleans. At the gala, the LBF will recognize its 2017 honorees — Distinguished Jurist James J. Brady, Distinguished Jurist W. The Louisiana Bar Foundation (LBF) received a check for $30,000 from the Louisiana Workers’ Eugene Davis, Distinguished Attorney Kim Compensation Corp. (LWCC), the proceeds from the 14th annual Kids’ Chance Golf Tournament. From M. Boyle, Distinguished Professor Oliver left, LBF Kids’ Chance Committee Co-Chair Michelle M. Sorrells; LWCC President and CEO Kristin A. Houck, and Calogero Justice Award re- W. Wall; and LBF President Valerie Briggs Bargas. Photo courtesy of the Louisiana Bar Foundation. cipient Robert S. Noel II. Gala sponsorships are offered at several LWCC Raises Funds for Scholarships levels — Pinnacle, Benefactor, Cornerstone, he Louisiana Bar Foundation scholarships to dependents of workers Capital, Pillar and Foundation. Individual (LBF) received a check for who are permanently and totally disabled tickets to the gala are $200. Young lawyer $30,000 from the Louisiana or killed in a work-related accident com- individual gala tickets are $150. To read Workers’ Compensation Corp. pensable under a state or federal Workers’ more about the sponsorship levels and T(LWCC). LWCC hosted the 14th annual Compensation Act or Law. to purchase individual tickets, go online: Kids’ Chance Golf Tournament on Sept. This year, the LBF awarded $59,000 www.raisingthebar.org/gala. 25, 2017, in Baton Rouge. All proceeds to 20 students to help with their education. Discounted rooms are available at the from the tournament were donated to the Since 2004, the program has awarded 275 Hyatt Regency New Orleans on Thursday, LBF Kids’ Chance Scholarship Program. scholarships totaling $604,600. April 19, and Friday, April 20, 2018, at Scholarship applications for the 2018- For more information about the LBF $239 a night. For more information, visit: 19 school year are now available on the Kids’ Chance Program, contact Dee Jones www.raisingthebar.org/gala. LBF’s website. Application deadline is at (504)561-1046 or email dee@raisingth- For more information, contact Laura Monday, Feb. 19, 2018. ebar.org. Or visit the website, www.rais- Sewell at (504)561-1046 or email laura@ The Kids’ Chance Program provides ingthebar.org/kidschance. raisingthebar.org.

Louisiana Bar Journal Vol. 65, No. 4 291 CLASSIFIED ADS ONLINE AT WWW.LSBA.ORG CLASSIFIED NOTICES

Standard classified advertising in our regu- expected to be a “self-starter” and will- lar typeface and format may now be placed POSITIONS OFFERED ing to handle the assigned files himself/ in the Louisiana Bar Journal and on the herself. The ideal candidate is looking LSBA Web site, LSBA.org/classifieds. Northeast Louisiana firm interviewing All requests for classified notices must to build his/her own criminal and per- for associate position to handle litigation sonal injury practice from the firm’s be submitted in writing and are subject and general practice; superior writing to approval. Copy must be typewritten existing book of business. This posi- and payment must accompany request. skills and strong academic credentials tion has tremendous growth potential. Our low rates for placement in both are required. Two to four years’ experience The anticipated salary range is $45,000 as follows: preferred. Competitive salary and ben- with the possibility for salary increases efits. Mail résumé and writing sample to and bonuses dependent upon the attor- RATES C-Box 279. ney’s revenue-generating ability. Email résumé with references to btrlawyer@ CLASSIFIED ADS The judges of Municipal and Traffic Contact Krystal L. Bellanger at yahoo.com. (504)619-0131 or (800)421-LSBA, Court of New Orleans are seeking a ext. 131. part‐time attorney/law clerk to handle Minimum qualifications of defense at- legal research, prepare memoranda and torneys for the Patient’s Compensation Non-members of LSBA perform other legal work. Must be a $85 per insertion of 50 words or less Fund. In accordance with La. R.S. member of Louisiana State Bar, have 40:1231.1, attorneys appointed to de- $1 per each additional word five-plus years of experience as a prac- $20 for Classy-Box number fend PCF cases must meet the follow- ticing attorney. Salary $35,232/year. ing minimum qualifications as estab- Members of the LSBA Background check; drug screening; lished by the Patient’s Compensation $60 per insertion for 50 words or less Orleans Parish domicile required. Send Fund Oversight Board: (1) Must be a $1 per each additional word résumé to: Municipal & Traffic Court, defense-oriented firm with at least 75 No additional charge for Classy-Box Attn: Human Resources, 727 S. Broad number percent of practice dedicated to defense; St., New Orleans, LA 70119 or email sc- (2) Defense firm appointed to PCF cases Screens: $25 [email protected]. shall have NO plaintiff medical mal- Headings: $15 initial headings/large type practice cases; (3) Defense firm must Established Baton Rouge law firm is provide proof of Professional Liability BOXED ADS looking for a new associate with one- coverage with a minimum limit of $1 Boxed ads must be submitted camera ready five years’ experience for its criminal de- by the advertiser. The ads should be boxed million; (4) Defense attorney must have and 2¼” by 2” high. The boxed ads are $70 fense practice. The best candidate must a minimum of five years’ experience in per insertion and must be paid at the time of be willing to go to court daily and visit the defense of medical malpractice cas- placement. No discounts apply. with jailed clients regularly throughout es; (5) Defense attorney must have com- Louisiana. While other attorneys at this pleted three trials within the past three DEADLINE firm will offer guidance, the attorney is For the Febuary issue of the Journal, all classified years. Presentation of five submissions notices must be received with payment by Dec. 18, 2017. Check and ad copy should be sent to: VOCATIONAL EXPERT LOUISIANA BAR JOURNAL TAGGART MORTON, LLC Classified Notices Vocational testing / Evaluation 601 St. Charles Avenue Labor Market Surveys Accepting Appellate Referrals New Orleans, LA 70130 Expert Witness Testimony and Consultations Qualified in state and federal courts RESPONSES Donald J. Miester, Jr. and administrative law hearings To respond to a box number, please address Chair-Appellate Practice Section your envelope to: 1100 Poydras Street, Suite 2100 Journal Classy Box No. ______Jeff Peterson, M.Ed., CRC, CVE, CLCP New Orleans, LA 70163 c/o Louisiana State Bar Association 337-625-2526 (504) 599-8500 601 St. Charles Avenue [email protected] New Orleans, LA 70130

292 December 2017 / January 2018

to a medical review panel may be sub- (337)474-4712 (Lake Charles); email kitchen, office equipment and parking. experience, federal and state litigation. Any person(s) concurring with or oppos- stituted for each of two trials. However, [email protected]; visit www.lee- WalkingServicesSERVICES distance of CDC, USDC and Available for briefs, research, court ap- ing this petition must file notice of same the defense attorney must have tried at aarcher.com. many fine restaurants. Call Cliff Cardone pearances, analysis of unusual or problem within 30 days with the Louisiana Attor- least one case in the past three years. orTexas Kim attorneyWashington, LSU at (504)522-3333.Law 1985. Admit- cases. References on request. Catherine ney Disciplinary Board, Ste. 310, 2800 Interested persons may submit written Outsource your Texas PI litigation to ted in Louisiana and Texas. I am available Leary, (504)436-9648, statewide services, Veterans Memorial Blvd., Metairie, LA to attend hearings, conduct depositions, comments to Ken Schnauder, Executive us. Do you have Texas PI cases? We Office space for lease in New Orleans. registered office Jefferson Parish. 70002. Director, Patient’s Compensation Fund, will handle them for you, including all Oneact as block local fromcounsel Civil and Districtaccept referrals Court. P.O. Box 3718, Baton Rouge, LA 70821. case costs, expert fees, discovery, mo- Fourfor general blocks fromcivil litigationFederal Court. in the Includes Houston Northwest Florida counsel. Louisiana Michael J. Riley, Sr. has applied for tions, mediation and trial. Our main of- receptionist,area. Contact use Manfred of conference Sternberg, room, Jr. at attorney with 32 years’ experience, and readmission to the Louisiana State Bar ServicesSERVICES fice is in Houston but we litigate PI cases copy(713)622-4300; room with high-speedemail manfred@mstern digital color - licensed in Florida, available for referral Association. Any person(s) may file a across the state. Call Ben Bronston & copier/scanner/fax,berg.com. Internet, voice mail, of civil and criminal matters from Pen- concurrence or opposition to his applica- Texas attorney, LSU Law 1985. Associates, (281)318-9925. office equipment, etc. (adjoining secre- sacola to Panama City. Contact John F. tion within 30 days of publication of this Admitted in Louisiana and Texas. I am tarialMobile, station Ala., if attorney needed). accepting Also includes refer - Greene, Ste. 210, 4507 Furling Lane, notice to the Louisiana Attorney Disci- available to attend hearings, conduct secretarialrals of personal support, injury if needed. claims Call in Gary South Destin, FL 32541. Call (850)424-6833 or plinary Board, Ste. 310, 2800 Veterans Briefs/Legal Research/ Alabama, including automobile, work- depositions, act as local counsel and ac- Analysis of Unusual or at (504)525-1328. (504)482-9700; or visit www.destinattor- Memorial Blvd., Metairie, LA 70002. cept referrals for general civil litigation ers’ compensation and slip & fall acci- neyjohngreene.com. Problem Cases dents. Licensed in both Louisiana (since in the Houston area. Contact Manfred NOTICENOTICE For Rent ADVERTISE YOUR Sternberg, Jr. at (713)622-4300; email JD with honors, federal judicial clerk, 1979) and Alabama (1998). Russell E. FOR RENT graduate of top 10 law school, 20 years’ Bergstrom, 955 Dauphin St., Mobile, AL New Orleans [email protected]. Notice is hereby given that Stephen J. NEW ORLEANS EXPERT WITNESS experience, federal and state litigation. Holliday36604; (251)433-4214; intends to file fax a petition (251)433- and Available for briefs, research, court ap- Offices available at 829 Baronne St. in Texas counsel: Louisiana attorney li- application1166; email for [email protected] reinstatement and re-. OR LEGAL SERVICES! pearances, analysis of unusual or problem prestigious downtown building, taste- censed in Texas since 1992 available to admission“No representation to the Louisiana is made that State the qualBar - cases. References on request. Catherine fully renovated. Excellent referral sys- Contact handle Texas ancillary probate proceed- Association.ity of legal servicesAnyone providedconcurring is greaterwith Leary, (504)436-9648, statewide services, than the quality of legal services provided tem among 35 lawyers. Includes sec- Krystal Bellanger-Rodriguez ings and serve as local litigation coun- or opposing this petition and application retarial space, receptionist, telephones, registered office Jefferson Parish. by other attorneys.” at sel. Assistance in transfer of oil and gas for readmission must file notice of op- voice mail, Internet, conference rooms, properties and valuations. Statewide position or concurrence within 30 days (504)619-0131 or email For Rent kitchen, office equipment and parking. coverage. Jack Wilhelm and Edward FOR RENT withAppellate the Louisiana briefs, Attorney motions Disciplinary, legal re - [email protected] Metairie Walking distance of CDC, USDC and Wilhelm, 1703 West Ave., Austin, TX METAIRIE Board,search. Ste. Attorneys: 310, 2800 the Veterans appellate Memorial process is your last chance to modify or defend your many fine restaurants. Call Cliff Cardone 78701, (512)236-8400, www.wilhelm- Blvd., Metairie, LA 70002. or Kim Washington at (504)522-3333. ANSWERS for puzzle on page 298. Location is everything. Old Metairie judgment. Lee Ann Archer, former Loui- 1 2 3 4 5 6 law.net. B I E N V E N U E E L M office. One-room private office space, ANSWERSsiana Supreme for Courtpuzzle clerk on page and Tulane258. NOTICE A L E O L P second floor. 150 square feet. $350. 1 2 3 4 5 6 7 Notice 7 8 9 Appellate briefs, motions, legal re- LawT A honorsM E graduate,W I L offersL I yourA M bestS R E V I S I T A B I T A Email [email protected]. 8 search. Attorneys: the appellate process chance,O O withM superiorN appellateI N briefs,T Notice is hereby given that Steven T E E H S S T 9 10 10 11 is your last chance to modify or defend outstandingS H U T O legalU research,T L I pinpointG E R re- Courtney Gill intends on petitioning for H O N E Y R A T I O C ForFOR Rent RENT cordU reviewN Rand 20-plusU Yyears Eof appelA - reinstatement to the practice of law. Any O O I D H your judgment. Lee Ann Archer, for- 11 12 12 13 mer Louisiana Supreme Court clerk NewNEW Orleans ORLEANS lateM E experience.T A I R Confidential;I E P L statewideO Y person(s) concurring with or opposing this L L A F O U R C H E A service;U fastA response.T Call (337)474-O O A L G F and Tulane Law honors graduate, offers 13 14 15 16 17 petition must file notice of same within 30 14 15 16 Offices available at 829 Baronne St. in 4712P O W (LakeE L Charles);L M emailC H U lee@leeG H - M P O O C H S O U S A your best chance, with superior appel- 18 days with the Louisiana Attorney Disci- prestigious downtown building, taste- aarcher.com;A visit www.leeaarcher.comR I A. E L R R A S L late briefs, outstanding legal research, 19 20 21 plinary Board, Ste. 310, 2800 Veterans 17 18 fully renovated. Excellent referral sys- H I L L N E I G H B O R W H A T I O K I N A W A 22 Memorial Blvd., Metairie, LA 70002. pinpoint record review and 20-plus years I K I S A O A C D A N I Y tem among 35 lawyers. Includes sec- 23 24 of appellate experience. Confidential; Briefs/Legal Research/Analysis 19 20 retarial space, receptionist, telephones, K A M P F H A R D W O N I C E A U D I T O R I A statewide service; fast response. Call Eof UnusualA S or IProblemS ECasesG Notice is hereby given that Melissa Sugar voice mail, Internet, conference rooms, 25 26 JDR AwithN Dhonors,O L P federalH judicialE N D clerk,S Gold intends on petitioning for reinstate- graduate of top 10 law school, 20 years’ ment/readmission to the practice of law. FORENSIC DOCUMENT TAGGART MORTON, LLC Adele A. Thonn EXAMINER Adele A. Thonn Forensic Document Examiner Forensic Document Examiner ROBERT G. 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Louisiana Bar Journal Vol. 65, No. 4 293 Louisiana Bar Journal Vol. 64, No. 5 413

0217_LBJ_JOURNAL_MAGAZINE.indd 413 12/20/2016 2:34:55 PM LEGAL SERVICES DIRECTORY To advertise in this directory, contact Krystal Bellanger-Rodriguez at (504)619-0131 or email [email protected]

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Louisiana Bar Journal Vol. 65, No. 4 295 The Last WORD By Michael A. Patterson THE PARROT HEARD IT ALL

n 2015, a husband was found shot to death in his home. His wife was found with a gunshot wound to her head. The wife told the police that sheI could not remember anything from that night. The case went cold for over a year until a witness came forward with incriminating evidence against the wife. The dead husband had a pet African grey parrot. African grey parrots are the most intelligent and talkative of the parrot family. They can develop a large vocabulary and can mimic a number of different voices. After the husband’s death, his first wife took Bud, the parrot, in. That’s when things got interesting. The parrot started talking about the shooting. He was then recorded mimicking an argument between a man and a woman that included this line, “Don’t f…ing shoot.” This led the police to investigate the wife further and they learned that the husband had run up a large gambling debt and the couple’s house had gone into foreclosure. The wife was arrested and finally tried and convicted for first-degree murder. The parrot was not called to testify at the trial. Our evidence question is: ment made by a declarant while believing focus on the wife which ultimately led Could the parrot have been called to that his death was imminent, concerning to her conviction. testify at trial? the cause or circumstances of what he Be careful what you say in front of Obviously the statement is hearsay believed to be his impending death? Same your parrot. He might turn out to be a since it is a statement made by someone problem as the other as we don’t know stool pigeon. (the deceased husband) being offered into if the statement the parrot made was the Michael A. Patterson is a evidence to prove the truth of the state- statement the dead husband made. The biggest problem, of course, is partner in the Long Law ment. La. Code Evid. Art. 801. Firm, L.L.P., in its Baton But, can the statement be offered as an the issue of the right to cross-examine a Rouge office and a princi- exception to the hearsay rule under La. witness against you. How do you cross- pal of the mediation/arbi- tration firm The Patterson Code Evid. Art. 804(A)(4) which allows a examine a parrot? The prosecuting attorney in this case Resolution Group. He is an statement of a witness that is unavailable adjunct professor of trial because of death? Probably not, since we elected not to try to produce the taped advocacy and evidence at really don’t know if the statement the voice of the parrot, undoubtedly because Louisiana State University Paul M. Hebert Law Cen- parrot made was the statement the dead he knew he could not satisfy the rules of evidence. ter. He served as Louisiana husband made. State Bar Association Is it admissible as an exception under Nevertheless, the statements of the president in 2010-11. ([email protected]; 1800 La. Code Evid. Art. 804(B)(2) as a state- parrot got the police and prosecutor to City Farm Dr., Building 6, Baton Rouge, LA 70806)

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