Inside: • On Artistic Endeavor • Attorney Voir Dire • Rule 4.2 & First Amendment • Review: The Cottoncrest Curse • Annual Meeting Wrap LegierCo haystack NO Mag Aug09 8/12/09 4:37 PM Page 1
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1100 Poydras Street • 34th Floor • Energy Centre • New Orleans, LA 70163 Telephone (504) 561-0020 • Facsimile (504) 561-0023 • http://www.legier.com Louisiana Bar Journal Vol. 62, No. 2 81 82 August / September 2014 ®
August / September 2014 Volume 62, Number 2
Departments Features
Editor’s Message...... 87 “Speaking the Truth” about Attorney Voir Dire By Lewis O. Unglesby...... 90 President’s Message...... 88 Association Actions...... 114 Contrasting Professional Conduct Rule 4.2 with the First Amendment Right to Petition Solo Speaking...... 118 By Scott L. Sternberg...... 94 Practice Management...... 119 Quality of Life...... 120 Book Review: The Cottoncrest Curse, A Novel by Michael H. Rubin Reviewed by E. Phelps Gay...... 98 Lawyers Assistance...... 122 Focus on Diversity...... 123 It’s a Wrap! LSBA Annual Meeting Officers Installed and Awards Presented...... 100 Puzzle...... 124 Focus on Professionalism..... 125 Quality of Life: On Artistic Endeavor By Anthony M. DiLeo...... 120 Discipline Reports...... 126 Client Assistance Fund...... 129 Recent Developments...... 130 Young Lawyers...... 150 Judicial Notes...... 153 People...... 154 News...... 159 Classified...... 166 The Last Word...... 168 Also Inside
Member Services...... 86 Alcohol/Drug Abuse Hotline.. 124 SOLACE...... 152 Minimum Qualifications / Special “Night of the Comet,” an Assistant Attorney General...... 165 acrylic on canvas board, by Advertisers’ Index...... 161 artist Anthony M. DiLeo. For more of DiLeo’s artwork, see page 120.
Louisiana Bar Journal Vol. 62, No. 2 83 ® Officers 2014-15 President Editorial Board Joseph L. (Larry) Shea, Jr. • (318)934-4017 Barry H. Grodsky Winfield E. Little, Jr. President-Elect Editor (337)430-0907 Mark A. Cunningham • (504)582-8536 (504)599-8535 Secretary Alainna R. Mire Adrejia L. Boutte (318)449-5046 Barry H. Grodsky • (504)599-8535 (504)561-5700 Treasurer John H. Musser V Erin O. Braud (504)523-0400 Robert A. Kutcher • (504)830-3820 (504)837-7050 Immediate Past President Christopher K. Odinet Christopher D. Cazenave (225)771-4900 Richard K. Leefe • (504)830-3939 (504)582-8408 Roy H. (Hal) Odom, Jr. Board of Governors 2014-15 John S. (Chip) Coulter (318)227-3762 (225)382-3183 First District Maggie Trahan Simar David W. Leefe • (504)556-4137 Anthony M. DiLeo (337)394-6133 (504)274-0087 Patrick A. Talley, Jr. • (504)584-9220 Gail S. Stephenson Second District Brendan P. Doherty (225)771-4900, x216 (832)255-6019 John E. (Eddie) McAuliffe, Jr. • (504)840-4909 Tyler G. Storms Third District Stephen I. Dwyer (318)255-7805 (504)838-9090 Blake R. David • (337)233-2323 Dylan Tuggle Thriffiley Fourth District Gerald J. (Jerry) Huffman, Jr. (504)620-3187 (504)524-8556 Shayna L. Sonnier • (337)436-1600 Edward J. Walters, Jr. Fifth District Margaret E. Judice (225)236-3636 (337)828-1880 Michael E. Holoway • (985)871-3924 Jack K. Whitehead, Jr. C. Kevin Hayes • (225)268-2725 Robert A. Kutcher (225)303-8600 Sixth District (504)830-3820 Robert G. Levy • (318)443-7615 The Louisiana Bar Journal (ISSN 0459-8881) is published bimonthly by Seventh District the Louisiana State Bar Association, 601 St. Charles Avenue, New Orleans, Thomas M. Hayes III • (318)387-2422 Louisiana 70130. Periodicals postage paid at New Orleans, Louisiana and Eighth District additional offices. Annual subscription rate: members, $5, included in dues; Karelia R. Stewart • (318)226-6998, x 1070 nonmembers, $45 (domestic), $55 (foreign). Canada Agreement No. PM Chair, Young Lawyers Division 41450540. Return undeliverable Canadian addresses to: P.O. Box 2600, J. Lee Hoffoss, Jr. • (337)433-2053 Mississauga, ON, L4T 0A8. At-Large Members Postmaster: Send change of address to: Louisiana Bar Journal, 601 St. Julie Hayes Ferris • (504)982-9340 Charles Avenue, New Orleans, Louisiana 70130. Mickey S. deLaup • (504)828-2277 John M. Frazier • (318)226-9100 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 Editorial and Advertising: Tulane Law School Publication of any advertisement shall not be considered an endorsement Ronald J. Scalise, Jr. • (504)865-5958 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- Marguerite L. (Peggy) Adams • (504)556-4142 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. Alainna R. Mire • (318)449-5046 Reproduction in whole or part without permission is prohibited. Views expressed are those of the authors only. Editorial Staff Executive Director Luminary Award 2003 Loretta Larsen, CAE National Association of Bar Executives Communications Director Communications Section Kelly Wells Ponder Excellence in Regular Publications Publications Coordinator/Managing Editor Darlene M. LaBranche International Communications Coordinator Association of Barbara D. Baldwin Business Public Relations Society ommunicators Communications Assistant C of America New Orleans Krystal Bellanger Rodriguez New Orleans Chapter Chapter Award of Advertising Booking Questions? Bronze Quill Call (504)619-0131. Award of Merit
84 August / September 2014 LOUISIANA CHAPTER
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Louisiana Bar Journal Vol. 62, No. 2 85 * The National Academy of Distinguished Neutrals is an invitation-only professional association of over 900 litigator-rated mediators & arbitrators throughout the US and a proud partner of the AAJ and DRI. For more info, please visit www.NADN.org/about ® 601 St. Charles Ave. New Orleans, La. 70130 Member Web site: www.LSBA.org (504)566-1600 (800)421-LSBA Services Fax (504)566-0930 Louisiana Hotels Programs The following hotels have agreed to corporate discount rates for For information about these LSBA programs, contact the Bar Office by calling (504)566-1600 LSBA members. Call, e-mail or check the website link for the or (800)421-LSBA. If you have questions regarding the negotiated corporate rates offered at current discounted rates. When making reservations, you must the hotels listed, contact Kayuyum Koban for assistance. identify yourself as an LSBA member.
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Lawyers’ Substance Abuse Hotline • (866)354-9334 Hilton St. Charles, (504)524-8890 Legal Specialization Program Hilton Garden Inn, (504)281-4004 Loss Prevention Counsel email: [email protected] Johanna G. Averill, Lindsey M. Ladouceur and Elizabeth LeBlanc Voss • (800)GILSBAR www.neworleansfrenchquartercbd.hgi.com SOLACE (Support of Lawyers/Legal Personnel All Concern Encouraged) Hotel InterContinental, (877)866-9005 e-mail: [email protected]
Hotel Monteleone, (800)535-9595 Publications e-mail: [email protected] Louisiana Bar Journal www.lsba.org/GoTo/HotelMonteleone Hyatt Regency New Orleans, (888)591-1234 “Bar Briefs” (online) www.hyatt.com, Corporate #95147 Louisiana Bar Today (online newsletter) Hyatt French Quarter, (504)281-4004 email: [email protected] Online Services www.frenchquarter.hyatt.com Louisiana Bar Today Opinion Service Lending Library Hyatt Place, (504)281-4004 email: [email protected] Membership Directory Twitter www.hyattplaceneworleansconventioncenter.com Fastcase (free online legal research) Facebook JW Marriott New Orleans • www.jwmarriottneworleans.com Law Office ManagementAssistance Program Le Pavillon Hotel, (800)535-9095 • http://bit.ly/LPLSBAR Loews New Orleans Hotel • (504)595-5370, (866)211-6411 Young Lawyers Division Marriott Courtyard Downtown www.courtyardneworleansfrenchquarter.com Bridging the Gap Choose Law Mentor Program New Orleans Marriott Barristers for Boards www.lsba.org/GoTo/NewOrleansMarriott Young Lawyers’ Directory Wills for Heroes New Orleans Marriott at the Convention Center www.lsba.org/GoTo/MarriottCC Insurance through Gilsbar Renaissance Pere Marquette www.renaissanceperemarquette.com Group Insurance Major Medical The Ritz-Carlton, (800)826-8987, (504)670-2845 e-mail: [email protected] Disability The Roosevelt New Orleans • (504)335-3138, 1(800)WALDORF Malpractice Sheraton New Orleans, (504)595-6292 (800)GILSBAR • (504)529-3505 • See inside back cover e-mail: [email protected]
Westin Canal Place, (504)553-5110 e-mail: [email protected] Car Rental Programs The Whitney Wyndham, (504)581-4222 The following car agencies have agreed to discount rates for LSBA members. Windsor Court, (800)262-2662, (504)523-6000 e-mail: [email protected] Avis – (800)331-1212 • Discount No. A536100 Wyndham Riverfront New Orleans, (504)524-8200 Budget Rent-a-Car – (800)527-0700 • Discount No. Z855300 Hertz – (800)654-2210 • Discount No. 277795 Baton Rouge Courtyard Baton Rouge Acadian Thruway www.courtyardbatonrouge.com • (Corporate Code: ABA)
Other Vendors Crowne Plaza Baton Rouge, (225)925-2244, (225)930-0100 The following vendors have agreed to discount rates for LSBA members. e-mail: [email protected]
Hilton Baton Rouge Capitol Center, (800)955-6962, (225)344-5866 ABA Members Retirement – (800)826-8901 LexisNexis – (800)356-6548 Corporate ID #0921780 • www.lsba.org/GoTo/HiltonBRCapitol CoreVault – (866)945-2722 LawPay - (866)376-0950 Sheraton Baton Rouge, (225)378-6177 Geico - (800)368-2734 United Parcel Service – (800)325-7000 e-mail: [email protected] Lafayette * National Hotel Chains SpringHill Suites Lafayette South at River Ranch Holiday Inn, (800)HOLIDAY LaQuinta Inns & Suites, (866)725-1661 www.lsba.org/GoTo/SpringHill Use ID No. 100381739 www.LQ.com Lake Charles Use corporate rate code LABAR Best Western Richmond Suites, (337)433-5213
*Discounts not guaranteed at every hotel property within a national chain. Contact specific property to inquire about availability of LSBA Shreveport discounted rates. Clarion Shreveport Hotel, (318)797-9900 The Remington Suite Hotel, (318)425-5000 www.remingtonsuite.com
86 August / September 2014 EDITOR’S MESSAGE
By Barry H. Grodsky
Hood.elp Now I And!!! that is the source of my agitation. SIGN UP TODAY When we have a chance to shine, do the have your right thing, express professionalism on the highest level, give back to younger attention to be a attorneys and make a difference, THIS IS NOT BEING DONE! and you MENTOR I should be inundated with mentor need to read this ar- applications; we have far too few. I wish I G could make the words on this page scream ticle. I wear more than and reach out to tell you: Mentors “THIS NEEDS TO one hat for the Loui- • Help shape the future BE DONE NOW.” siana State Bar Asso- of the profession Our new admittees will benefit greatly from this program and, therefore, so ciation (LSBA) and I • Earn CLE credits will our profession. This is not time for apathy and there is no excuse to not at am taking the liberty • Give back to the profession least consider it. It is easy to become a of using this column mentor, CLE credit is given, the time VISIT WWW.LSBA.ORG/MENTORING commitment is not great, and you will make a difference. to explain my angst Louisiana Supreme Court entered an We have a golden opportunity to better relating to another role order in May 2013 that the program will the profession; I daresay this is our duty. go into effect in January 2015. I have I am not going to stop my efforts to get I play. written about it, talked about it, lectured this program up and running by January. on it, been videotaped and been all over Please, please, please take just a moment As the chair of the Committee on the the state to promote it. and click onto the Bar’s website at www. Profession, about three years ago, we It is a great program and absolutely lsba.org/mentoring/ and complete an set out to create a mentor program for needed for our new admittees, especially application (or see page 116 of this issue.) new admittees. It took considerable time those just starting out as solo practitioners. Take a moment. Be a mentor. Better to put it in place. After it was approved Although the program is commencing on the profession. The time is now. Thanks. by the committee, the LSBA’s Board a pilot basis in Shreveport, Baton Rouge of Governors and the LSBA’s House and Greater New Orleans, we are seeking of Delegates (all unanimously), the mentors statewide and we need them now.
Louisiana Bar Journal Vol. 62, No. 2 87 President’s message
By Joseph L. (Larry) Shea, Jr. Louisiana Lawyers Serve the Public and the Public Should Know It There are still other lawyers who are Education. There are hundreds of lawyers here are lit- participating in the work of committees, who take advantage of these opportunities. erally thou- councils, foundations and boards to enhance It is unfortunate that the general the development of our communities, to public does not know how much the sands of Lou- improve access to justice, to self- regulate legal profession does for the citizens of the ethical conduct of attorneys, to provide Louisiana. For the most part, the substantial isiana law- assistance to those who suffer from efforts of the thousands of Louisiana yers engaged in service debilitating conditions that adversely affect lawyers who do the tens of thousands of T the lives and practices of attorneys and hours of good work go unsung except their families, to provide care for children within the profession itself. I have attended to the public and the who have been abused or mistreated, and legal gatherings throughout the state profession. These are to enhance the educational opportunities where we have acknowledged lawyers provided through our schools, to name just for their outstanding contributions to the services for which the a few. According to Albert Schweitzer, betterment of the public, their communities “The only ones among you who will be and the profession, but little has been lawyers receive little or really happy are those who have sought reported outside of those meetings. For and found how to serve.” As a profession, example, back in May of this year, I had no monetary compensa- we should be proud that so many of our the personal privilege of participating in a fellow attorneys “get it!” ceremony at the Louisiana Supreme Court tion. While I am writing The Louisiana State Bar Association in a courtroom full of attorneys who were this message, there are (LSBA), along with the Louisiana Bar being honored for their many hours of Foundation, our courts and many local and pro bono service. It was a great event for lawyers throughout the specialty bars, provides members of our the participants and their families but it profession with numerous opportunities received little or no fanfare by the media state volunteering their to join together in the organized pursuit of or the public. That is a shame! worthy projects designed to serve the public A recent survey by the Pew Research time and effort to repre- and the profession. The opportunities Center continues to show lawyers at the provided by the LSBA alone are countless bottom of professions in terms of public sent the legal interests of — ranging from professionalism programs appreciation for their contributions to less fortunate Louisiana in the law schools to the Young Lawyers society. However, the more the public Division’s Wills for Heroes Program and knows about the good works of our citizens who could not the Community Action Committee’s Secret profession, the more likely it is that Santa Project, from committees on Access the public’s perception of lawyers will afford an attorney and to Justice and Diversity and Outreach to improve. While there may be a view of a Committee on the Profession, from the some in the media that good news does not have no other source of Lawyers Assistance Program, Inc. (LAP) make for good headlines, there are those of representation. to the Louisiana Center for Law and Civic us who believe that such a viewpoint can
88 August / September 2014 be overcome with perseverance. Wayne that have benefitted from their efforts. our Day of Service, the LSBA’s objective Gretzky once said, “Statistically, you miss Our second shot is a Louisiana Day is to have at least one lawyer in a library 100% of the shots you don’t take.” So, let’s of Service on Thursday, Oct. 23. The serving the public in every parish of our take a shot or two. LSBA, in conjunction with local bars, great state. Our first shot is the establishment of pro bono organizations and civil legal aid Join with your fellow attorneys on the LSBA Regional Panels and Citizen Lawyer organizations, will seek to mobilize lawyers Day of Service and choose to serve. Give it Awards. Each panel will be headed by across the state to support and advance the a shot. Based on Dr. Schweitzer’s opinion, your Board of Governors’ representative Legal Education and Assistance Program you will “be really happy” you did. and will consist of lawyers within each (LEAP) that has been developed in To volunteer for Day of Service region. One of the primary objectives of cooperation with the Louisiana Library events, contact LSBA Access to Justice these panels is to identify the exceptional Association. The program itself is designed Administrative Assistant Nicole Louque at Citizen Lawyers throughout the state to deliver legal resources and information (800)421-5722, ext.106, or (504)619-0106; whose contributions to their communities via public libraries. An important aspect or email [email protected]. Or go to: deserve special recognition. The LSBA of the LEAP project is the “lawyers in www.LouisianaLawyersinLibraries.org. will make every effort to see that the libraries” component pursuant to which the accomplishments of those lawyers are libraries will provide a venue for lawyers to rewarded and publicized, not just within address the public on specific legal issues the profession but within the communities about which patrons have inquired. On LSBA Member Services he mission of the Louisiana State Bar Association (LSBA) is to assist and serve its members in the practice of law. TTo this end, the LSBA offers many worthwhile programs and services designed to complement your career, the legal profession and the community. In the past several years, the legal profession has experienced many changes. The LSBA has kept up with those changes by maturing in structure and stature and becoming more diverse and competitive. As the premier organization serving Louisiana’s legal profession, the LSBA is working to advance its members’ goals and interests through unparalleled programming and a comprehensive benefits package. Listed below are a few benefits of membership:
Lawyers’ Assistance Program Fastcase Practice Assistance and Improvement • www.louisianalap.com • (866)354-9334 www.lsba.org/fastcase [email protected] LAP provides confidential assistance to mem- In 2005, the LSBA launched Fastcase, As mandated by the Louisiana Supreme bers of the Bar and their families who experi- a free web-based legal research product Court, the Bar’s Practice Assistance and ence problems with alcohol, drugs, gambling that provides unlimited access to all state Improvement Program offers alternatives and other addictions, as well as mental health and federal court cases. To access the to discipline via its Attorney-Client issues. Call 1(866)354-9334 for assistance. program, go to www.lsba.org and click on Assistance Program and the Diversion the Fastcase icon. For more information, Program. The Office of Disciplinary LSBA Professional Programs contact Practice Management Counsel Counsel diverts eligible matters enabling Department Services Shawn L. Holahan at shawn.holahan@ these members to avoid disciplinary Client Assistance Fund lsba.org or (504)619-0153. proceedings. For more information, [email protected] contact Professional Programs Counsel This program helps consumers by providing Lawyer Advertising Filing and for Practice Assistance William N. King compensation to clients who have been Evaluation • [email protected] at [email protected] or (504)619-0109. defrauded by their lawyers. For more This program provides screening of information, contact Associate Executive proposed lawyer advertising to confirm Director Cheri Cotogno Grodsky at compliance with the Supreme Court’s [email protected] or (504)619-0107. advertising rules. For information/inquiries, contact LSBA Ethics Counsel Richard P. Lemmler, Jr. at [email protected] or (504)619-0144.
For more information, visit www.lsba.org
Louisiana Bar Journal Vol. 62, No. 2 89 “Speaking the Truth” about Attorney Voir Dire
By Lewis O. Unglesby
90 August / September 2014 he intersection of juror In 1911, New Jersey passed the first criminal and civil cases, appear in the rules. questioning and jury trials statute allowing voir dire. Other states Article I, Section 17 of the Louisiana developed over many centuries. followed suit and, at that time, attorney- Constitution provides: The first jury trials took place conducted voir dire was the rule in federal asT early as 500 B.C. in Greece. At that courts. The accused shall have a right time, the jury, selected by the government, Development of the jury trial concept in to full voir dire examination of could be composed of between 200 and Louisiana was slow to reach fruition. The prospective jurors and to challenge 1,500 people. In the 1100s, King Henry most radical change in the civil procedure jurors peremptorily. II forced civil litigants to appear before of Louisiana was the Practice Act of 1805, laymen he selected based on their own which established the right to trial by jury Article 786 of the Louisiana Code of personal knowledge of the facts and and a requirement that the testimony of Criminal Procedure reads: issues surrounding the litigant’s complaint available witnesses be taken in open court and the rules of the community. In most rather than by depositions as was the civil The court, the state, and the defendant cases, these laymen had a preconceived law tradition in France and Spain. shall have a right to examine knowledge of the actual facts and knew the After Louisiana’s admission to the prospective jurors. The scope of parties to the suit. By the end of the 15th Union, the Louisiana Supreme Court the examination shall be within the century, that process was abandoned and held, under the Constitution of 1812, discretion of the court . . . . the focus was shifted to the requirement that there could be no retrial of a factual of impartiality. It was in that time frame issue before a new jury. That edict was Article 1763 of the Louisiana Code of that the first idea of challenges to jurors’ followed shortly by a decision holding Civil Procedure states: qualifications became law.1 that the appellate court could review the At the beginning of the American transcript of the evidence presented in A. The court shall examine Revolution, the English enacted a jury the trial and determine the correctness prospective jurors as to their selection system in the colonies which of the jury’s findings. The principle of qualifications and may conduct such allowed the sheriff to choose the jurors appellate review of the facts was adopted further exam as it deems appropriate. with no questioning involved. Because and repeatedly affirmed by the court and B. The parties or their attorneys the sheriff was the hand of the King in the confirmed in subsequent constitutions of shall individually conduct such colonies, rebellion ensued over the process. the state. Since the appellate courts were exam of prospective jurors as each It is during that time that Jefferson penned free to substitute their findings on factual party deems necessary, but the his famous line: issues, and frequently did so, the civil court may control the scope of that jury trial case became a rarity. When the examination to be conducted by the I consider trial by jury as the only Code of Civil Procedure was enacted in parties or their attorneys. anchor ever yet imagined by man, 1960, provisions for jury trials allowed by which a government can be held examination by attorneys. That rule Rule 24 of the Federal Rules of Criminal to the principles of its constitution. continued throughout the revisions in 1983 Procedure states: to the present form in 1990. The restrictive The right to juries was incorporated into federal rule was rejected, and the grant of (1) In general. The court may the United States Constitution through the voir dire was given to the litigants. examine prospective jurors or may Sixth and Seventh Amendments. In the A more modern respect for the decision permit the attorneys for the parties early days, the judge conducted all of the of the fact-finder developed. Trial jurors to do so. voir dire. The treason trial of Aaron Burr were to be given the benefit of their fact (2) Court examination. If the was the first test of the importance of the finding in the absence of manifest error. court examines the jurors, it must jury in the new America. Chief Justice Jury trials became more common. The permit the attorneys for the parties to: Marshall held that an impartial jury was populist tradition and prevailing legal (A) Ask further questions that the required by the common law and secured by scholarship found that the federal practice court considers proper; or the American Constitution in all criminal of court-conducted voir dire was not (B) Submit further questions that matters. effective for the Louisiana citizenry, and the court may ask if it considers Voir dire (translated: speak the truth) the law favored voir dire administered by them proper. developed because society became attorneys. disconnected from the old English village Rule 47 of the Federal Rules of Civil traditions due to changes caused by the Federal vs. State Procedure provides: expansion of the population. As people Voir Dire Rules migrated to the West and South, a litigant (a) Examining Jurors. The court had to secure some direct information The immediate differences in voir dire may permit the parties or their about the jurors and could not be expected between federal and state law, and between attorneys to examine prospective to rely on general community knowledge. jurors or may itself do so. If the
Louisiana Bar Journal Vol. 62, No. 2 91 court examines the jurors, it must permit the parties or their attorneys to make any further inquiry it considers proper, or must itself ask any of their additional questions it considers proper.
Thus, in Louisiana state courts, the voir dire by attorneys is a matter of right. The presumption is in favor of lawyer questioning and recognizes the necessity of the lawyer’s involvement:
While the method for selecting petit juries is within the court’s discretion, the procedure cannot be such as to deny the accused his constitutional right to full voir dire examination of prospective jurors.
State v. St. Amant, 413 So.2d 1312 (La. 1981).
Importance of Attorney- Conducted Voir Dire Arguments consistently given for Let’s explore the statistics. In 1938, 20 advocating judge-conducted voir dire are: percent of federal civil cases went to trial. The purpose of the voir dire examination In 1962, the percentage fell to 12 percent. is to develop the prospective juror’s state 1) Efficiency of selection. By 2000, the number dropped to 1 percent. of mind. This enables the trial judge to 2) Attorney-conducted voir dire Correspondingly, 15 percent of federal determine actual bias and allows counsel to allows the lawyer to disqualify the criminal cases went to trial in 1962; by exercise his intuitive judgment concerning most impartial jurors. 2002, that number plunged to 5 percent. the prospective juror’s possible bias or 3) There is no constitutional right At the same time, various studies prejudice. The trial judge is granted broad to voir dire (except under certain reflected that, in the last 30 years, the discretion in regulating and supervising state laws, including the Louisiana number of cases dismissed by federal voir dire and ruling on challenges and Constitution, Article I, Section 17). courts on summary judgment has risen by rarely will rulings governing the selection 4) Jurors are more likely to 300 percent. The ultimate average number of a civil jury be reversed. be honest when questioned by an of trials by federal courts has decreased In 1924, the Federal Court Conference authoritative figure such as the judge. by 67 percent since 1962. The number of of Senior Judges decided that the judge cases filed, or removed, to federal courts is alone should do the questioning. In 1928, The American Bar Association (ABA) less than 10 percent of those in 1962, and this became Rule 47(a) of the Federal determined in 2005 that attorneys should the absolute number of federal civil jury Rules of Civil Procedure and Rule 24 of be given a liberal opportunity to question trials in the United States decreased from the Federal Rules of Criminal Procedure. jurors individually on prior knowledge 12,000 in 1985 to 3,271 in 2009. Although the rules stated that the court and preconceptions about a case. The ABA No matter how one interprets these may permit the attorneys to examine found through empirical research that statistics, it appears federal courts have jurors, by 1960, almost all federal court jurors would be more candid responding to more time to allow voir dire by lawyers judges performed the voir dire. In 1960, an attorney who they see as more of a “co- than they did when Rule 47 was created. the Federal Judicial Conference found that equal” rather than the authoritarian figure In 1984, the Federal 2nd Circuit Judicial “the judge alone should conduct voir dire, represented by the judge. The overriding Council found that the greatest number as this resulted in a ‘great savings of time.’” reason, and the only reason consistently of successful cause challenges occurred The practical results between a lawyer- given by the federal judiciary, is time when attorneys were allowed effective conducted voir dire versus a judge- savings, which was first suggested in 1928 voir dire. The 2nd Circuit study further controlled selection process are a source by Judge Learned Hand of the United States concluded that attorney interaction with of ongoing controversy. 2nd Circuit Court of Appeals. the juror resulted in the greatest amount
92 August / September 2014 of information necessary for the trial court Modern behavioral studies recognize that noted process of decay. Indifference, to properly rule on challenges for cause. there is built-in juror bias from the media, in the long run, is deadlier than any The findings included the following: the Internet, politics and other methods of coup, and democratic institutions are communication, and that the lawyers who easily lost through neglect, followed 1) Jurors respond better to the know their case are in the best position to by decline and abandonment.4 equality of status between lawyer recognize the problems.3 and juror rather than judge. A judge performs no task that is more A jury trial is the most important part 2) The judge has already important than presiding over a case tried of the legal system. Only in open court instructed the entire panel that before a jury. The lawyers know their cases, are the citizens the ultimate authority. The it is required and expected to be the issues that cause them concern, and courthouse is the community’s church. open- minded, fair, impartial, and the areas relevant to the ultimate decision- Everyone is equal. It is the place an average follow the law. Human nature does making process. Fairly posed, open-ended guy gets his say, where everyone takes an not permit a belief that the normal questions designed to achieve that goal do oath, where nobody’s power can overcome juror seated amongst his peers will not burden the system. the facts. All of this rests on the foundation voluntarily stand up and identify Trial practitioners recognize the that a group of citizens will fairly apply the himself as outside that norm. essential inconsistency between a desire law and facts. With such essential truths at for a fair and impartial jury and a stake in every case, allowing the litigants Numerous human behavioral studies in restriction on the opportunity to discern enough time to select the decision makers jury research have found that: the psychological and mental impressions is only fair. the individual jurors bring from their life 1) Jurors are more likely to tell experiences as they sit in judgment. FOOTNOTES their true attitudes about the justice The Louisiana courts give meaning to system when questioned by an the language of the United States Supreme 1. Michael L. Neff, “Legal History and Social attorney. Court: Science Demand Appropriate Voir Dire,” Georgia 2) The way a juror responds to a Bar Journal, August 2011. 2. “Is Attorney-Conducted Voir Dire an Effective question may be more reflective of Voir dire examination preserves Procedure for the Selection of Impartial Juries?,” an innate prejudice than the actual to protect that right by exposing Reid Hastie, 40 Am. U.L. Rev. 703, 703-04 (1991). words he speaks. possible biases, both known and 3. Distorting the Law: Politics, Media and the 3) Judge voir dire, based on the unknown, on the part of potential Litigation Crisis, William Haltom and Michael McCann, University of Chicago Press (2004). instruction to be impartial and fair, jurors. Demonstrated bias in the 4. In the Hands of the People: The Trial Jury’s negates the opportunity for the juror response to questions on voir dire Origins, Triumphs, Troubles, and Future in American to express his own innate opinions may result in the jurors being Democracy, Judge William L. Dwyer, Thomas Dunne and/or prejudices.2 excused for cause; hints of bias not Books, 2002. sufficient to warrant challenge for Lewis O. Unglesby, founder In evaluating judge versus attorney voir cause may assist parties in exercising of Unglesby Law Firm, dire, the different goals and roles must be their peremptory challenges. The L.L.C., in Baton Rouge, recognized. The judge must balance the necessity of truthful answers by is nationally-known for need to maintain the court’s position as the prospective jurors, if this process his work with jury trials, with emphasis on criminal ascendant authority in the courtroom and is to serve its purpose, is obvious. defense and personal the desire for efficiency in jury selection. injury. He is recognized Attorney-conducted voir dire provides McDonough Power Equipment v. by The Best Lawyers in more information about a juror’s thought Greenwood, 464 U.S. 548, 104 S.Ct. 845 America in five major practice areas. Martindale- processes. Quite naturally, the court will (1983). Hubbell and the American rarely understand the particular nuances Board of Trial Advocates recognize him as a “premier of a case that require follow-up questions Conclusion trial attorney.” His prosecution of cases in the field to certain answers. General questions by of product liability led to the complete abolition of three-wheelers, the installation of safety devices on the court, collectively or individually, The importance of a fair and full jury fork lifts, and the recognition of diseases directly are often closed-ended questions, which trial cannot be overstated: related to chemical exposure. He has been profiled produce silence or general affirmation. on the television shows “Good Morning America” Lawyers, on the other hand, asking open- and “20/20,” as well as in the New York Times, the If citizens lose interest and ability to Times Picayune, the Business Report, the Shreveport ended questions, can elicit individual do justice in court, a general loss of Journal and Tiger Rag. ([email protected]; 246 responses leading to interaction among the democratic government will follow. Napoleon St., Baton Rouge, LA 70802-5937) jurors, as well as follow-up questions that If the trial dies, it would not be by the identify the capacity of the juror to be fair. tyrant’s ax, but by a long and scarcely
Louisiana Bar Journal Vol. 62, No. 2 93 Contrasting Professional Conduct Rule 4.2 with the First Amendment Right ton Petitio
By Scott L. Sternberg
94 August / September 2014 ttorneys often deal with the with a Person Represented by Counsel,” tional or other legal right to com- government as the adverse states, in pertinent part: municate with the government . . . party in representation. This The fact that a communication presents an interesting quan- In representing a client, a lawyer does not violate a state or federal Adary as the government — created by shall not communicate about the constitutional right is insufficient the people — can sometimes (often?) subject of the representation with: to establish that the communi- be adverse to a certain citizen’s interest (a) a person the lawyer knows to cation is permissible under this in law or in fact. Citizens have the right be represented by another lawyer Rule.”8 to petition their government, secured by in the matter, unless the lawyer has the First Amendment to the United States the consent of the other lawyer or But, as is often stated, the comments Constitution.1 The Louisiana Constitu- is authorized to do so by law or a are not the law. So can an attorney com- tion of 1974 also expressly protects this court order.4 municate with a governmental official right.2 without running afoul of the Louisiana Lawyers’ representation of clients Without a doubt, Rule 4.2 only ap- Rules of Professional Conduct? makes the right of citizens to petition the plies to “the subject of the representa- The First Amendment to the United government much more complicated, tion” and only communication about States Constitution secures the right of particularly when an attorney is engaged issues germane to the representation the people to “petition the Government but no litigation is pending. The right would offend.5 Every law student who for a redress of grievances.” Ostensibly, of a lawyer to represent a client before has taken an ethics and professionalism the First Amendment right of a citizen to the government seems almost elemen- class knows that the attorney is forbidden tell the government what he thinks about tary. Attorneys often appear before gov- from talking to another attorney’s client its practices or negotiate for political ernmental entities and meet with public ex parte. Further, the rule doesn’t just relief should trump the Rules of Profes- officials, not necessarily as “registered apply to litigation; rather, it “covers any sional Conduct. But is this the case? Not lobbyists”3 but rather as advocates or person who is represented by an attorney necessarily. dealmakers. However, what complicates in the matter.”6 After all, the First Amendment does these matters is the fact that often the But the rule is easy to forget when not prevent the state from regulating and public official or governmental entity is there’s no litigation pending. Even if no even prohibiting commercial speech, represented by an attorney as well. “tangible harm” results from the autho- such as solicitation, which merely “pro- Imagine that a client has asked his at- rized communications with the adverse poses a commercial transaction.”9 Never- torney to discuss pending legislation with party, “Rule 4.2 is prophylactic in nature theless, the U.S. Supreme Court held in In a local parish council member in order to and is designed to preserve the sanctity of re Primus that the First and 14th Amend- influence a policy outcome. The parish the attorney-client relationship.”7 ments can usurp the right of the state council is also represented by legal coun- So, if a client requests an attorney’s to regulate direct solicitation of clients, sel since a designated parish attorney at- assistance, and the attorney knows the particularly when the alleged solicitation tends every meeting and every hearing public official or body is represented by involved the exercise of “constitutionally to give legal advice as issues arise dur- legal counsel, does the attorney need to protected expression and association” ing the meetings. The parish attorney first ask permission before approach- rights.10 In that case, Ms. Primus had sent may not react well when he learns that ing the official or other members of the a letter to a woman who she believed his “client,” the parish councilman, had body? had been unconstitutionally sterilized engaged in unmonitored contact with an- in order to continue receiving Medicaid other attorney, especially if litigation is a A First Amendment Right? benefits. The Supreme Court held that, possibility. It is unlikely that the parish although “[t]he State is free to fashion attorney would have much of an argu- Nevertheless, Rule 4.2 is subject to reasonable restrictions with respect to the ment if the client simply had approached limitations. The comments to the ABA time, place, and manner of solicitation by the council member and engaged him Model Rule, which is identical to the members of its Bar,” the actions of the at- in a policy discussion, but this contact Louisiana rule, reveal that the rule is, of torney were merely associational and not involves more direct, one-on-one advo- course, limited to topics germane to the solicitation which could be prohibited by cacy separate and apart from the normal representation. They state, in relevant the state bar association.11 course of council meeting business. part: However, Rule 4.2 is not directed to- ward solicitation and it does not deal with The “No-Contact” Rule “[5] Communications authorized associational rights either. In the problem by law may include communica- at hand, the client hires counsel to help Rule 4.2 of the Louisiana Rules of tions by a lawyer on behalf of a her achieve some policy goal before a Professional Conduct, “Communication client who is exercising a constitu- governmental body. If the citizen did
Louisiana Bar Journal Vol. 62, No. 2 95 this herself, there would be no question represented by counsel, disciplin- ed Rule 4.2 when it spoke with a former as to the applicability of the right to peti- ary counsel conceded at oral argu- employee of a state university (a public tion protected by the U.S. and Louisiana ment that “we would not be here” body). This former claims investigator Constitutions. But, if she chooses to ex- on this charge alone. Accordingly, revealed confidential, attorney-client ercise her First Amendment right through I do not address the very trouble- privileged information to the attorneys the person of her attorney, the answer be- some question of whether an ad- after they previously had been warned comes a bit more complicated. juster for a governmental agency is not to contact the employee while em- a “client” within the contemplation ployed by the university. The attorneys Louisiana Rulings of Rule 4.2.19 did not inform the university that the employee had contacted the plaintiff’s Not surprisingly, there is a dearth of Perhaps the most compelling dis- lawyers after being terminated from his Louisiana cases involving contact with tinction between Pardue and the instant job as an investigator. The unique cir- a represented party — especially given question is that litigation was filed and cumstances convinced the judge that the that, as noted above, it’s a pretty well the attorney representing the state was actions disqualified the law firm since the known “no-no.” bypassed in furtherance of the client’s fired investigator was like a former em- Louisiana’s rulings often deal with settlement demand. ployee with confidential information of details such as contact with a former em- For the First Amendment advocate, any private entity.21 However, the Cam- ployee of an adverse party (not covered Pardue is troubling. But it is clearly den court also explicitly stated that: by 4.2)12 or a disciplinary proceeding for limited in scope. It involved direct con- an attorney who ignores several warn- tact with an adjuster working on the Insofar as a party’s right to speak ings from opposing counsel not to con- filed lawsuit between a plaintiff and the with government officials about tact his client (covered by 4.2).13 state as a defendant. As Justice Lem- a controversy is concerned, Rule In re Pardue is the only case to tangen- mon noted, there was a real question as 4.2 has been uniformly interpreted tially approach the topic at hand but even to whether Pardue’s conversation with to be inapplicable. See 2 Geof- its facts are distinguishable.14 In Pardue, the adjuster and the state representative frey C. Hazard, Jr. & W. William the Louisiana Supreme Court suspended should be a Rule 4.2 violation. There Hodes, The Law of Lawyering an attorney for three years, with all but is not any language in the opinion to § 4.2:109 (2d ed. Supps. 1991 & a year and a day deferred, for multiple determine whether the Supreme Court 1994); Charles W. Wolfram, Mod- violations of the Rules of Professional thought the contact with the adjuster or ern Legal Ethics § 11.6.2 (1986). Conduct. The attorney had pled guilty to the state representative was dispositive It is questionable whether the au- filing a false tax return and charged by of a violation. Admittedly, the adjuster is thorities had the case of a public the Office of Disciplinary Counsel under employed by the state and possesses the educational institution in mind Rule 8.4. Pardue also was charged by the power to redress the client’s grievances. when they crafted this governmen- Office of Disciplinary Counsel with vio- Furthermore, what if the state represen- tal agency exception, particularly lating Rule 4.2 because he “improperly tative represented Pardue’s plaintiff’s where the institution finds itself in communicated with a party represented district? Wouldn’t the client be able to the more corporation-like stance by counsel” — in this case, a claims ad- discuss his pending case against the state of employer rather than its role juster in the Louisiana State Office of with his state representative as part of his of enforcer of governmental man- Risk Management.15 That dispute was right to petition the government to re- dates.22 in litigation, and Pardue “thought [the dress his grievances? adjuster] was an attorney,” although his Camden stands for the proposition name did not appear on any pleadings.16 Other States’ Rules and that, even though a court may say that Pardue also contacted a state representa- Rulings Rule 4.2 is “uniformly . . . inapplicable,” tive and asked him to contact the adjuster adverse consequences can still occur “in an effort to facilitate settlement.”17 Although Louisiana has not explic- when the government finds itself act- The Supreme Court focused on the itly ruled that Rule 4.2 does not apply to ing more like a private corporation and false tax return, calling it a “serious the exercise of the constitutional right to less like a policy-implementing public crime,” and noted that the Rule 4.2 “mis- petition, at least one court (in Maryland) arm. As compared to the instant situa- conduct is relatively minor, and, standing has explicitly recognized that Model tion, Camden seems to agree that when alone, would probably justify no more Rule 4.2 does not apply in the context of the government assumes the position of than a reprimand.”18 Indeed, Justice communications with government offi- “enforcer of governmental mandates,” Lemmon, in dissent, noted that: cials, albeit with some caveats.20 Rule 4.2 does not apply to communica- In Camden v. Maryland, the U.S. Dis- tion with that government. As to the second charge of improp- trict Court for the Southern District of Further, in New York, where the erly communicating with a party Maryland held that a law firm had violat- “Freedom of Information Law [inherent- ly authorizes] such direct contact without
96 August / September 2014 the prior consent of the government’s clarified to allow communications if the 6. 21 La. Civ. L. Treatise, Louisiana Lawyer- lawyer,” the no-contact rule has been public official consents to the communi- ing § 9.3. 23 7. In re Bilbe, 02-1740 (La. 2/7/03), 841 So.2d held inapplicable. But, New York has cation or if the communication is written 729, 739; (citing State v. Gilliam, 98-1320 (La. also held that, absent a statute to the con- and copied to government counsel. The App. 4 Cir. 12/15/99), 748 So.2d 622, writ denied, trary, contact with a government official idea behind Hazard’s and Irwin’s solu- 00-0493 (La. 9/29/00), 769 So.2d 1215. who has power to settle a controversy tion is simple: government officials are 8. Model Rule 4.2 cmt. 9. See, e.g., Virginia State Pharmacy Board v. violates the no-contact rule, much like smart enough to know when they need a Virginia Citizens Consumer Council, 428 U.S. 748 the Louisiana decision in In re Pardue.24 lawyer and when they do not. (1976). Several states have codified their However, Hazard’s and Irwin’s aca- 10. In re Primus, 436 U.S. 412, 421 (U.S. 1978). stance on the matter, including Califor- demic musings are just suggestions, 11. Id. at 438. 12. Jenkins v. Wal-Mart Stores, Inc., 956 F. nia whose Rules of Professional Conduct leaving the practitioner with an ethical Supp. 695 (W.D. La. 1997). contain a specific exception for “com- dilemma when a client asks the ques- 13. In re Bilbe, 02-1740 (La. 2/7/03), 841 So.2d munications with a public officer, board, tion at hand. The ABA’s ruling is also a 729. committee or body.” Utah also allows reasonable accommodation — it requires 14. 98-3017 (La. 3/26/99), 731 So.2d 224, rein- statement granted, 03-0294 (La. 4/4/03), 845 So.2d contact so long as the attorney advises a genuine policy issue and that the gov- 353. the government’s lawyer of his repre- ernment’s lawyer be given notice. But 15. Id. at 225. sentation beforehand.25 The District of without a clearer Rule 4.2, the answer is 16. Id. at 226. Columbia applies an exemption to First opaque. Can an attorney contact a pub- 17. Id. at 225. 18. Id. at 227, n.7. Amendment “redress of grievances” sit- lic official, such as a board member of, 19. Id. at 228, n. 1. uations.26 The D.C. Rules of Professional say, a local charter school, in an attempt 20. Camden v. Maryland, 910 F. Supp. 1115, Conduct, Rule 4.2(d), state that: “[t]his to settle a client’s unfiled grievances with 1118 (D. Md. 1996). rule does not prohibit communication by that board? 21. Id. at 1123. 22. Id. at n. 8. a lawyer with government officials who After laborious First Amendment ju- 23. Fusco v. City of Albany, 509 N.Y.S.2d 763, have the authority to redress the griev- risprudence, we know that “Congress 766 (Sup. Ct. 1986). ances of the lawyer’s client, whether shall make no law abridging . . .” doesn’t 24. Frey v. Department of Health & Human or not those grievances or the lawyer’s actually mean “no law abridging.”30 If it Serv., 106 F.R.D. 32, 35 (E.D.N.Y. 1985). 25. Utah St. B. Opin. 115 (1993). communications relate to matters that are did, there would be no question at all: pe- 26. D.C. Rules of Professional Conduct, Rule the subject of the representation, provid- titioning the government for the redress 4.2(d). ed that in the event of such communica- of grievances — whether slight or monu- 27. See generally Restatement (Third) of Law tions the disclosures specified in (b) are mental — would be left untouched by Governing Law § 101 (2000). 28. ABA Comm. on Ethics and Prof’l Respon- made to the government official to whom government action. Ultimately, although sibility, Formal Op. 97-408 (1997). the communication is made.”27 an attorney may think he or she stands 29. See Geoffrey C. Hazard, Jr. and Dana Re- Finally, the ABA itself has spoken on on the higher constitutional ground, the mus Irwin, “Toward A Revised 4.2 No-Contact the issue, stating28 that when a lawyer is best practice is to notify the government Rule,” 60 Hastings L.J. 797 (2009). 30. “The First Amendment’s language leaves representing a private party and is adverse lawyer of the communication to ensure no room for inference that abridgements of speech to the government, he or she can commu- both counselors share the same opinion. and press can be made just because they are slight. nicate directly with a public official with That Amendment provides, in simple words, that the authority “to take or recommend ac- ‘Congress shall make no law . . . abridging the free- FOOTNOTES dom of speech, or of the press.’ I read ‘no law . . . tion in the matter of communication,” but abridging’ to mean no law abridging.” Smith v. only if the communication meets a two- 1. U.S. Const. Amd. I (“Congress shall make California, 361 U.S. 147, 157 (1959) (Black, J., part test. First, the communication must no law respecting an establishment of religion, or concurring.). be for the purpose of addressing a policy prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right Scott L. Sternberg is an issue. Second, the public official’s law- of the people peaceably to assemble, and to peti- associate with Baldwin yer must be given reasonable advance tion the Government for a redress of grievances.” Haspel Burke & Mayer, notice of the intent to communicate. Un- (emphasis added)). L.L.C., in New Orleans. less the communication satisfies the test, 2. La. Const. Art. 1 § 9 (“No law shall impair His practice focuses on the right of any person to assemble peaceably or to 29 litigation, real estate, ad- Rule 4.2 applies “in full force.” petition government for a redress of grievances.”) miralty and media mat- 3. Lobbyists are required to register within five ters. He also is an adjunct days of employment as a lobbyist with the Loui- media law professor at Solving the Ethical Dilemma siana Board of Governmental Ethics. See La. R.S. Loyola University’s School 24:53. A “lobbyist” is defined by one whose princi- of Mass Communication. Attorneys Geoffrey C. Hazard, Jr. pal duty (or that more than 20 percent of their com- He served on the Louisi- and Dana Remus Irwin, in their com- pensated time) is to “act in a representative capacity ana State Bar Association’s (LSBA) Publications ment, “Toward A Revised 4.2 No-Con- for the purpose of lobbying if lobbying constitutes Subcommittee and the Crystal Gavel Committee, one of the principal duties of such employment or and was a member of the 2013 Leadership LSBA tact Rule,” argue that the current Rule engagement.” La. R.S. 51(5)(a)(i). class. ([email protected]; Ste. 3600, 1100 4.2 is not practical and that it should be 4. La. State Bar Art. 16 RPC Rule 4.2. Poydras St., New Orleans, LA 70163) 5. Id.
Louisiana Bar Journal Vol. 62, No. 2 97 Book Review
The Cottoncrest Curse A Novel by Michael H. Rubin Offering a Wild Ride Through Louisiana History Reviewed by E. Phelps Gay
nyone who has had the plea- Now, at an age when many are slowing sure of attending one of Mike down, Mike is shifting into another, higher Rubin’s CLE presentations gear. Not content with having written nu- knows he is not just an accom- merous books and articles on topics ranging Aplished lawyer and scholar; he is a brilliant from collateral mortgages to conflicts of entertainer. Not for him the dry 60-minute interest, nor with having composed count- lecture packed with citations to case law less songs, not to mention maintaining a and statutes. No, he has a performer’s need busy law practice while teaching Security to spice things up with witty original songs Devices at LSU Law Center, Mike has and gyrating PowerPoint graphics. We come decided to write a novel. The result is a to learn, yes, but also to laugh. A long time fascinating thriller steeped in our state’s ago, a Roman poet named Horace said the rich and sometimes lurid history, a book all goal of poetry is not just to teach but also Louisiana lawyers should enjoy. to delight. Mike Rubin got that Memo.
98 August / September 2014 Published by the award-winning Loui- siana State University Press in Septem- ber 2014, The Cottoncrest Curse centers around a grisly murder-suicide (or so it ap- pears) which takes place at the Cottoncrest Plantation in Petit Rouge Parish on the west bank of the Mississippi River in 1893. “Whodunit” is the question, of course, and the answer unfolds in short, suspenseful chapters, during which we learn much about the victims, suspects and investiga- tors. Colorful characters abound, from a patrician plantation owner named Colonel- Judge Augustine Chastaine to a bumbling sheriff’s deputy named Bucky; from a grizzled Civil War physician named Fran- cois Cailleteau to a savvy and resourceful servant named Jenny; and from a fearless Cajun named Trosclaire Thibodeaux to a Michael H. Rubin, former Louisiana State Bar Association president and author of the novel The Cot- multi-lingual immigrant from Czarist Rus- toncrest Curse. The official release date of The Cottoncrest Curse is Sept. 10, 2014. For more information sia named Jake Gold, who must hide his on purchases, go to Amazon’s website at www.amazon.com. Jewish background during these racist and over the objections of white planters. Clear- ters, picking up various strands of the plot, anti-Semitic times. I won’t spoil the plot, ly, the author knows his way around Loui- sometimes shifting to a different time and but trust me: this is a fun read, a page-turn- siana legal history. Seamlessly, he weaves place, give you just enough information to er likely to keep you up at night. this knowledge into the fabric of the story. wonder what happens next. Eventually, all It is also a historically well-informed I should add that this is a “bloody” tale, strands are tied up and secrets are revealed. book. There are several references to the not for the faint of heart. There are sharp Through it all, the writing is sharp, Battle of Port Hudson in 1863, where knives, slit throats and blood dripping vivid and compelling. It is one thing to be Colonel-Judge Chastaine sustained in- down staircases. People get shot, punched a good lawyer and legal brief writer; one jury, Dr. Cailleteau amputated more than and mistreated; rats and maggots crawl would expect as much from a person with a few Confederate limbs, and the Corps over and into dead bodies. No punches are Mike’s education and abilities. It is quite d’Afrique fought valiantly for the Union pulled in portraying the racism and anti- another to display a novelist’s ear for lan- side. Louis Martinet, practicing law in Semitism of the times. The Klan-like White guage and eye for physical description, to New Orleans, makes a cameo appearance Knights of the Camellia “ride” around the enliven the prose with arresting images, apt and deals rather amusingly with the afore- parish one terrifying night. Jake Gold’s sta- similes and metaphors. Here I should add mentioned sheriff’s deputy. The plight of tus as a Jew, when revealed, provokes all (much too belatedly) that Mike’s talented sharecroppers who are paid poorly and kinds of vile, ignorant comments. Mixed wife Ayan, to whom the novel is dedi- can’t get credit at the plantation store is into this gumbo, however, is a good dose cated, not only “edited and re-edited” the movingly portrayed. Most importantly, of comic relief, largely from the aforemen- book, she also helped to write it, as Mike the “passenger car” case of Homer Adolph tioned sheriff’s deputy who wants to be acknowledges at the outset. Between them, Plessy v. J.H. Ferguson, which was meant regarded as important but never succeeds. they have produced exactly what a novel to fulfill the promise of the 14th Amend- Given its exotic nature, I kept thinking the is supposed to be: a good story, well told. ment but (as we know) wound up setting book would make an outstanding movie — back the cause of racial justice for genera- directed, perhaps, by Quentin Tarantino. E. Phelps Gay has prac- tions, plays a key role. Indeed, the book’s One delightful feature of the book is ticed law for 34 years at the firm of Christovich & climactic scene takes place on one of that the regular insertion of French and Yiddish Kearney, L.L.P. He also is train’s Jim Crow cars as it makes its way sayings. Two examples: One character affiliated with the media- from New Orleans around Lake Pontchar- says: “La pauvrete n’est pas un deshon- tion/arbitration firm, Pat- train toward Hammond. neur, mais c’est une fichue misere.” He ex- terson Resolution Group. He obtained his under- For lawyers there are occasional refer- plains: “It just means that poverty is not a graduate degree from ences to the Louisiana Civil Code, includ- sin, but it is a mighty inconvenience.” And Princeton University in ing changes to the 1870 Code allowing from the Yiddish: “Az me est chazzer, zol 1975 and his JD degree workers to seize and sell a plantation and rinnen fun bord.” Translated: “If you’re from Tulane Law School in 1979. He is a member of the Louisiana State and use the proceeds to pay their wages. Mike going to do something wrong, enjoy it.” Texas Bar Associations. He served as president of the points out that such changes were enacted As befits any good murder mystery, Louisiana State Bar Association during the 2000- during the Reconstruction-era administra- The Cottoncrest Curse is skillfully and 2001 term. ([email protected]; Ste. 2300, 601 tions of P.B.S. Pinchback and C.C. Antoine intricately plotted. Its short, punchy chap- Poydras St., New Orleans, LA 70130)
Louisiana Bar Journal Vol. 62, No. 2 99 2014-15 Louisiana State Bar Association President Joseph L. (Larry) Shea, Jr. addresses the audience during the Installation Dinner at the 2014 Annual Meeting in Destin, Fla. Photo by Matthew Hinton Photography.
100 August / September 2014 73rd LSBA Annual Meeting & LJC/LSBA Summer School • June 1 – 6, 2014 • Destin, FL
The 2014-15 Louisiana State Bar Association Board of Governors at the 2014 Annual Meeting in Destin, Fla. Back row, from left: Patrick A. Talley, Jr., Mickey S. deLaup, John M. Church, S. Jacob Braud, C. Kevin Hayes, Blake R. David, John E. McAuliffe, Jr., Marguerite L. (Peggy) Adams, Thomas M. Hayes III, Julie Hayes Ferris, J. Lee Hoffoss, Jr. and Michael E. Holoway. Front row, from left: Treasurer Robert A. Kutcher, David W. Leefe, Alainna R. Mire, Karelia R. Stewart, President-Elect Mark A. Cunningham, President Joseph L. (Larry) Shea, Jr., Immediate Past President Richard K. Leefe, Shayna L. Sonnier, Secretary Barry H. Grodsky and John M. Frazier. LSBA Installs 2014-15 Officers and Board of Governors at Annual Meeting
he Louisiana State Bar Associa- & Dupré, L.L.C., will continue his service Fourth District tion’s (LSBA) 2014-15 officers to the LSBA as 2014-15 immediate past ► Shayna L. Sonnier, a partner in the and members of the Board of president. Lake Charles firm of Hunter, Hunter & Governors were installed June J. Lee Hoffoss, Jr., a partner in the Lake Sonnier, L.L.C. T5, in conjunction with the LSBA’s Annual Charles firm of Hoffoss Devall, L.L.C., was Meeting in Destin, Fla. installed as 2014-15 chair of the LSBA Fifth District Joseph L. (Larry) Shea, Jr. was in- Young Lawyers Division. ► Michael E. Holoway, a partner in stalled as the 74th LSBA president by Members of the 2014-15 Board of Gov- the Covington office of Milling Benson Louisiana Supreme Court Chief Justice ernors also were installed by Chief Justice Woodward, L.L.P. Bernette Joshua Johnson. Shea is a mem- Johnson. ► C. Kevin Hayes, a capital partner ber in the Shreveport office of Bradley in the Baton Rouge office of Adams and Murchison Kelly & Shea, L.L.C. First District Reese, L.L.P. ► David W. Leefe, a shareholder in Mark A. Cunningham, a partner in the Sixth District New Orleans office of Jones Walker, L.L.P., the New Orleans office of Liskow & Lew- is, P.L.C. ► Robert G. Levy, a partner in the Al- was installed as 2014-15 president-elect. exandria firm of LaCroix, Levy & Barnett, He will assume the presidency in 2015-16. ► Patrick A. Talley, Jr., a partner in the New Orleans office of Phelps Dunbar, L.L.C., and an assistant district attorney for Barry H. Grodsky, a partner in the New the 9th Judicial District. Orleans firm of Taggart Morton, L.L.C., is L.L.P. serving his second year of a two-year term Second District Seventh District as secretary. He also serves as editor of the ► John E. (Eddie) McAuliffe, Jr., an ► Thomas M. Hayes III, a partner in Louisiana Bar Journal. attorney in the Metairie office of Frederick the Monroe firm of Hayes, Harkey, Smith Robert A. Kutcher, a partner in the A. Miller & Associates. & Cascio, L.L.P. Metairie firm of Chopin, Wagar, Richard Eighth District & Kutcher, L.L.P., was installed as 2014-16 Third District ► Karelia R. Stewart, Shreveport, a treasurer (a two-year term). ► Blake R. David, founding partner of prosecutor in the Caddo Parish District At- Richard K. Leefe, a senior partner in the Lafayette firm of Broussard & David, the Metairie firm of Leefe Gibbs Sullivan L.L.C. Continued on page 106
Louisiana Bar Journal Vol. 62, No. 2 101 73rd LSBA Annual Meeting & LJC/LSBA Summer School • June 1 – 6, 2014 • Destin, FL
Timothy F. Averill, left, is presented with the President’s Award by 2013- Leo C. Hamilton, left, is presented with the President’s Award by 2013-14 14 President Richard K. Leefe during the General Assembly at the 2014 President Richard K. Leefe during the General Assembly at the 2014 An- Annual Meeting. Photo by Matthew Hinton Photography. nual Meeting. Photo by Matthew Hinton Photography.
Three LSBA Members Receive President’s Awards hree Louisiana State Bar Associ- Loyola University College of Law. the New Orleans Legal Assistance Corp. ation (LSBA) members (one rec- Leo C. Hamilton of Baton Rouge When that program merged with Southeast ognized posthumously) received was recognized for his years of service to Louisiana Legal Services (SLLS) in 2003, 2014 President’s Awards during Louisiana’s legal community and justice he became co-executive director, serving theT Annual Meeting in June. All recipients system. He is a partner in the Baton Rouge until 2013. He received a bachelor’s degree were chosen by 2013-14 LSBA President office of Breazeale, Sachse & Wilson, from Brown University and his law degree Richard K. Leefe and were recognized for L.L.P. He represents the City of Alexandria from Buffalo University. In 1982, he earned various services to the Association. and Pointe Coupee Parish and is general his master in law degree in taxation. His Timothy F. Averill of Mandeville was counsel for the Louisiana Community and Hurricane Katrina-related housing work recognized for his years of service to the Technical College System. He received earned him and the SLLS staff an award in Louisiana Supreme Court and the state’s his BA degree and his JD degree from 2009 from the U.S. Department of Hous- justice system. From 2011 through Febru- Louisiana State University and its Paul ing and Urban Development. He recently ary 2014, he served as the Supreme Court’s M. Hebert Law Center. Hamilton was the co-authored the “2013 Louisiana Legal judicial administrator and chief executive 2013-14 president of the Louisiana Bar Services and Pro Bono Desk Manual.” officer of the Judiciary Commission of Foundation. He is chair of the LSBA’s He served on the boards of the New Louisiana. He was involved in several ini- Bill of Rights Section and a member of Orleans Pro Bono Project, the Louisiana tiatives of importance to the LSBA, includ- the LSBA’s House of Delegates. He is a Civil Justice Center, the Family Justice ing the adoption of the Rules for Lawyer past president of the Baton Rouge Bar As- Center and the Multi-Service Center for Disciplinary Enforcement and significant sociation. He serves as a council member the Homeless. He was a member of the changes to the Code of Judicial Conduct, of the Louisiana State Law Institute and Louisiana Supreme Court Task Force for the Rules of Professional Conduct and is a member of the Louisiana Indigent Self-Represented Litigants and the LSBA’s the Bar Admission Rules. He received a Defender Assistance Board. Access to Justice Committee. BA degree in 1979 from James Madison Mark A. Moreau of New Orleans was To read the recipients’ full profiles, go University, a master of public administra- recognized (posthumously) for his years of to: www.lsba.org/goto/2014LSBAAwards. tion degree in 1980 from the University of service as a public interest advocate. From Alabama and a JD degree in 1985 from 1988-2003, he was executive director of
102 August / September 2014 73rd LSBA Annual Meeting & LJC/LSBA Summer School • June 1 – 6, 2014 • Destin, FL
2013-14 President Richard K. Leefe, left, presents Barry H. Grodsky with Hon. Fredericka Homberg Wicker, left, accepted the 2014 Kimball Award on the Distinguished Service to the Profession Award during the General As- behalf of Hon. Jules D. Edwards III with 2013-14 President Richard K. Leefe sembly at the 2014 Annual Meeting. Photo by Matthew Hinton Photography. during the General Assembly at the 2014 Annual Meeting. Photo by Matthew Hinton Photography. Grodsky Receives Judge Edwards Distinguished Receives 2014 Service to the Kimball Award on. Jules D. Edwards III of Lafayette is the recipient Profession Award of the 2014 Catherine D. Kimball Award for Ad- vancement of the Administration of Justice. The ew Orleans attorney Barry H. Grodsky received award was presented during the Louisiana State Bar the Louisiana State Bar Association’s (LSBA) Dis- HAssociation’s Annual Meeting in June. tinguished Service to the Profession Award for his Judge Edwards presides over Division B of the 15th Judicial years of service as chair of the LSBA’s Committee District Court in Lafayette. He received his BA and JD degrees Non the Profession. The award was presented during the Annual from Loyola University, a master of public administration degree Meeting in June. from Louisiana State University in Baton Rouge, and a master Grodsky is a partner in the New Orleans firm of Taggart of strategic studies degree from the U.S. Army War College. Morton, L.L.C. He received a BBA degree, with honors, in 1979 He has served as chief judge and is a pioneer in the Drug from the University of Texas-Austin and his JD degree in 1982 Treatment Court movement. He is vice chair of the Judiciary from Tulane Law School. Commission of Louisiana, works with the Louisiana Sentenc- He is the 2013-15 LSBA secretary and editor of the Louisiana ing Commission, is first vice president of the Louisiana District Bar Journal. He represented the First Board District on the LSBA’s Judges Association, and has served as an indigent defender Board of Governors and chairs the LSBA’s Committee on the attorney, assistant district attorney, and counsel to the Senate’s Profession. He has coordinated several law school professional- Select Committee on Crime and Drugs. He is a partner in the ism programs for the Bar. In 2009, he accepted the American Bar law firm of Edwards and Edwards. Association’s Smythe Gambrell Professionalism Award on behalf of the Committee on the Profession. He is a member of the Bar Governance Committee and serves on the LSBA Fee Arbitration Panel. He received the LSBA’s President’s Award in 2008 and 2010.
Louisiana Bar Journal Vol. 62, No. 2 103 73rd LSBA Annual Meeting & LJC/LSBA Summer School • June 1 – 6, 2014 • Destin, FL
Jaimmé A. Collins, a partner at Adams and Reese, accepted the 2014 Human Lynn Luker is presented with the 2014 Human Rights Award by 2013-14 Rights Award on behalf of Adams and Reese. She is pictured with 2013-14 President Richard K. Leefe during the General Assembly at the 2014 Annual President Richard K. Leefe during the General Assembly at the 2014 An- Meeting. Photo by Matthew Hinton Photography. nual Meeting. Photo by Matthew Hinton Photography. Attorney, Law Firm Receive 2014 Human Rights Awards ew Orleans attorney Lynn Luker and the New Or- partner for associates, an Executive Committee appointee, three leans office of Adams and Reese, L.L.P., received Practice Group leaders, the chief marketing officer and additional 2014 Human Rights Awards, presented during the representatives throughout the firm. The Minority Attorney Com- Louisiana State Bar Association’s (LSBA) Annual mittee develops and promotes diversity through events targeted NMeeting in June. to minority attorneys, clients and the community. The committee Lynn Luker, owner of Lynn Luker & Associates, L.L.C., in has coordinated minority receptions in conjunction with the New New Orleans, is committed to working toward inclusion within Orleans Jazz and Heritage Festival, the Bayou Classic and the Es- the legal profession. After graduation from Tulane Law School, sence Music Festival, as well as sponsorships including the Urban she systematically built trial teams that included women attorneys League, Diversity Summits, Black Business Networks, Minority and has mentored those inside and outside her firm. A trained Bar Association events, National Minority AIDS Council efforts, LSBA diversity speaker, she conducts diversity and inclusion and endowed professorships and scholarships at historically black training across Louisiana. She is chair of the National Association universities. of Minority and Women Owned Law Firms. In the 1980s, she co- founded the “Mommy Malpractice Avoidance Club,” a diverse group of women who supported each other’s efforts to balance the demands of being a good mother and being a good lawyer. In 2015, Luker will celebrate 30 years of teaching at Tulane Law School as co-director of Trial Ad and the Civil Pre-Trial Litigation Boot Camp. She has been instrumental in fundraising for Tulane’s Black Law Students Association’s Moot Court team. She has been trained on “undoing racism” by The People’s In- stitute for Survival and Beyond. She also has been trained by the Industrial Areas Foundation, a faith-based organization working for racial reconciliation. The Adams and Reese, L.L.P., Diversity Committee is com- prised of the Diversity Committee chair, the recruiting partner, the
104 August / September 2014 73rd LSBA Annual Meeting & LJC/LSBA Summer School • June 1 – 6, 2014 • Destin, FL
Brian D. Lenard, left, is presented with the 2014 McKay Award by 2013-14 President Richard K. Leefe during the Pro Bono Awards Ceremony on May 20 at the Louisiana Supreme Court. Photo by From left, Hon. C. Wendell Manning, Louisiana Supreme Court Chief Justice Bernette Joshua Johnson, C. Matthew Hinton Photography. Jefferson Manning III and Mark A. Cunningham. C. Jefferson Manning III was presented with the 2014 Civics in Action Award at the 2014 Annual Meeting. Photo by Matthew Hinton Photography. Lenard High School Senior Receives Receives 2014 2014 Civics in Action Award McKay Award . Jefferson Manning III of Mon- He was a state finalist for the Richard roe received the 2014 Civics in D. Clanton Scholarship, served on the ttorney Brian D. Lenard of Ham- Action Award, presented by the Congressional Youth Leadership Council mond received the 2014 Leah Louisiana Center for Law and in Washington, D.C., was the Louisiana Hipple McKay Memorial Award CivicC Education. The award was presented delegate for the National Young Leaders for Outstanding Volunteerism. during the Louisiana State Bar Association’s Southern Regional Conference, and is a TheA award was presented during the Access to Annual Meeting in June. member of the Louisiana All-District Aca- Justice Department’s Pro Bono Publico and Manning is a 2014-15 senior at St. Fred- demic Basketball Team. Children’s Law Awards ceremony in May. erick Catholic High School in Monroe. His Manning is a council member for the Lenard served as executive director of school activities include the National Honor Louisiana Legislative Youth Advisory. He is Southeast Louisiana Legal Services for 36 Society, class president for ninth, 10th and the creator and chair of “Louisiana’s Largest years, retiring in May 2014. 11th grades, Interact Club, state officer of King Cake Fundraisers,” which raised funds In 1982, he joined the board of the South- the Future Business Leaders of America for a homeless shelter and food pantry. He also east Spouse Abuse Program, a non-profit do- and varsity basketball and golf teams. He chairs the Senior Citizen Pneumonia Aware- mestic violence prevention and intervention has won several awards for public speaking. ness Campaign Community Service Project. program serving four parishes. He worked with the program for nearly three decades, also serving as the president and treasurer. Also in 1982, he joined the Tangipahoa Social Services Council, serving in various leadership capacities for nearly 25 years, including as board chair and secretary. He also chaired the agency’s United Way Com- mittee and Resource Directory Committee. Lenard was appointed to the board of the National Center for Survivor Agencies and Justice (CSAJ) in 2009. He currently serves as board president. CSAJ provides technical assistance to the national network of more than 200 legal agencies receiving funding from the Office of Violence Against Women From left, 2014-15 LSBA President Joseph L. (Larry) Shea, Jr., Louisiana Supreme Court Justice Greg and the U.S. Department of Justice. G. Guidry, C. Jefferson Manning III and his father Hon. C. Wendell Manning at the Louisiana Center for Law and Civic Education reception. Photo by Matthew Hinton Photography.
Louisiana Bar Journal Vol. 62, No. 2 105 73rd LSBA Annual Meeting & LJC/LSBA Summer School • June 1 – 6, 2014 • Destin, FL
BOG continued from page 101 torney’s Office and section chief of the Drug Division in the District Attorney’s Office. At-Large Members ► Julie Hayes Ferris, an attorney in Baton Rouge. ► Mickey S. deLaup, owner of Mick- ey S. deLaup, A.P.L.C., in Metairie. ► John M. Frazier, a shareholder in the Shreveport law firm of Wiener, Weiss & Madison, A.P.C.
Louisiana State University Paul M. Hebert Law Center ► John M. Church, Baton Rouge, pro- fessor of law at Louisiana State University Paul M. Hebert Law Center. Tulane University Law School ► Ronald J. Scalise, Jr., New Orleans, vice dean for academic affairs and the A.D. Freeman Professor of Civil Law at Tulane Dona K. Renegar, Secretary Barry H. Grodsky and Scott T. Whittaker during the General Assembly at the Law School. 2014 Annual Meeting. Renegar and Whittaker were awarded with the 2014 Stephen T. Victory Memorial Award recognizing their work on their collaborative article “The Cause and Effect of Recent Changes to Louisiana State Law Institute the Louisiana Bar Examination.” Photo by Matthew Hinton Photography. ► Marguerite L. (Peggy) Adams, a shareholder in the New Orleans office of Two Attorneys Receive Liskow & Lewis, P.L.C. House of Delegates Liaison Committee ► Chair Alainna R. Mire, an assistant 2014 Victory Memorial Award attorney for the Alexandria City Attorney’s Office. ttorney Scott T. Whittaker laude, in 1982 from Tulane University ► Member S. Jacob Braud, a partner of New Orleans and attorney and his JD degree, magna cum laude, in in the Belle Chasse firm of Ballay, Braud & Dona K. Renegar of 1984 from Tulane Law School. He is a Colon, P.L.C. Lafayette received the 2014 former chair of the Louisiana Supreme ► Member Sandra K. Cosby, an at- StephenA T. Victory Memorial Award, Court’s Committee on Bar Admissions. torney in the Metairie firm of Frederick A. recognizing outstanding contributions to Renegar, a member in the Lafayette Miller & Associates. the Louisiana Bar Journal. The award was office of Huval, Veazey, Felder & presented during the Louisiana State Bar Renegar, L.L.C., served as the Third Association’s (LSBA) Annual Meeting District representative on the LSBA’s in June. Board of Governors. She also served They were recognized for their in the LSBA’s House of Delegates and article, “The Cause and Effect of as chair of the LSBA’s Young Lawyers Recent Changes to the Louisiana Bar Division. She received two BA degrees Examination,” published in the August/ in 1988 in English and French, both September 2013 issue. from the University of Louisiana- Whittaker, a member of Stone Lafayette, and her JD degree in 1992 Pigman Walther Wittmann, L.L.C., from Tulane Law School. She served in New Orleans, received the LSBA’s on the two LSBA special committees President’s Award in 2011 for his seated to study the proposed changes to service as chair of the two LSBA special the Louisiana Bar Exam. committees seated to study the proposed 2013-14 LSBA President Richard K. Leefe pins the changes to the Louisiana Bar Exam. He president’s pin onto 2014-15 LSBA President Joseph L. (Larry) Shea, Jr., at the 2014 Annual Meeting. received his undergraduate degree, cum Photo by Matthew Hinton Photography.
106 August / September 2014 73rd LSBA Annual Meeting & LJC/LSBA Summer School • June 1 – 6, 2014 • Destin, FL
2014-15 LSBA President Joseph L. (Larry) Shea, Jr., Louisiana Supreme Court Justice Jeffrey P. Victory and former Supreme Court Chief Justice Pascal F. Calogero, Jr. during the Supreme Court Reception at the 2014 Annual Meeting. All photos by Matthew Hinton Photography.
From left, LBF President Hon. C. Wendell Manning, Charles F. Gay, Jr., and 2013-14 LSBA President Rich- ard K. Leefe during the General Assembly at the 2014 Annual Meeting. Photo by Matthew Hinton Photography. Gay Receives 2014 Boisfontaine Award Louisiana Supreme Court Justice John L. Weimer and Darrel J. Papillion during the Supreme Court ttorney Charles F. Gay, Jr. of Litigation Practice Group. He also works Reception at the 2014 Annual Meeting. New Orleans received the with the Healthcare Litigation Group. Curtis R. Boisfontaine Trial He is a member of the American Col- Advocacy Award, presented by lege of Trial Lawyers, the International theA Louisiana Bar Foundation. The award Society of Barristers and the Louisiana Bar was presented during the Louisiana State Bar Foundation. He is a former chair of the Inter- Association’s (LSBA) Annual Meeting in national Association of Defense Counsel’s June. He received a plaque and $1,000 was Pharmaceutical-Medical Device Commit- donated to The Pro Bono Project in his name. tee. Gay has served as chair of the LSBA’s Gay is a partner in the New Orleans of- Legal Malpractice Insurance Committee and 2014-15 LSBA President Joseph L. (Larry) Shea, fice of Adams and Reese, L.L.P., currently has co-chaired the LSBA’s Medical-Legal Jr. and Louisiana Supreme Court Chief Justice serving as a member of the firm’s Pharma- Interprofessional Committee. Bernette Joshua Johnson during the Supreme Court Reception at the 2014 Annual Meeting. ceuticals and Products Liability Team of the Law Professor Receives Award for Francophone Leadership rofessor Olivier Moréteau of Ba- He received his Ph.D., summa cum laude, ton Rouge received the 2014 John at the Université Jean Moulin in 1990. He Ashby Hernandez III Memorial has authored and edited books in French and Award for Francophone Leader- English, and written articles in various lan- ship.P The award was presented during the guages on the civil law, common law, com- Louisiana State Bar Association’s Annual parative law, law and languages, tort law, the Meeting in June. law of obligations and legal education. He is Professor Moréteau joined the Louisiana a member of the International Academy of State University faculty in 2005, when he Comparative Law, the European Group on was named the first holder of the Russell B. Tort Law, the European Centre of Tort and Warren A. Perrin accepted the 2014 John Ashby Long Eminent Scholars Academic Chair. He Insurance Law, the Société de Législation Hernandez III Memorial Award for Francophone Leadership on behalf of Professor Olivier Moreteau is the director of the Center of Civil Law comparée, the American Law Institute, the with 2013-14 President Richard K. Leefe during Studies, the editor-in-chief of the Journal Louisiana Bar Equivalency Panel and the the General Assembly at the 2014 Annual Meeting. of Civil Law Studies and the associate vice Louisiana Bar Foundation. Photo by Matthew Hinton Photography. chancellor for international programs.
Louisiana Bar Journal Vol. 62, No. 2 107 73rd LSBA Annual Meeting & LJC/LSBA Summer School • June 1 – 6, 2014 • Destin, FL
2014-15 LSBA YLD officers and council are sworn in by Judge David A. Ritchie at the 2014 Annual Meeting. Photo by Matthew Hinton Photography. YLD’s 2014-15 Officers, Council Installed
he Louisiana State Bar District 4: Lynsay M. Fontenot, an Association Young Lawyers associate in the Lake Charles firm of Division’s (LSBA YLD) Stockwell, Sievert, Viccellio, Clements 2014-15 officers and council & Shaddock, L.L.P. membersT were installed June 2, in District 5: Bradley J. Tate, tax manager conjunction with the LSBA’s Annual for the firm of Postlethwaite & Netterville Meeting in Destin, Fla. in Baton Rouge; and Kristi W. Richard, J. Lee Hoffoss, Jr. of Lake Charles an associate in the Baton Rouge office of was installed as 2014-15 Division chair McGlinchey Stafford, P.L.L.C. by Judge David A. Ritchie, 14th Judicial District 6: Christie C. Wood, an District Court, Division E. Hoffoss is associate in the firm of Faircloth Melton, a partner in the Lake Charles firm of L.L.C., in Alexandria. Hoffoss Devall, L.L.C. District 7: Ashley L. Smith, Monroe, Also sworn in as officers were Chair- a law clerk for Judge Sharon I. Marchman Elect Erin O. Braud, staff counsel for and Judge James H. Boddie, Jr. with the Liberty Mutual Insurance Co. (Law 2013-14 LSBA YLD Chair Kyle A. Ferachi and 4th Judicial District Court, Ouachita and Offices of Robert E. Birtel) in Metairie 2014-15 LSBA YLD Chair J. Lee Hoffoss, Jr. at the Morehouse parishes. (she will assume the chair’s position in YLD reception at the 2014 Annual Meeting. Photo District 8: Jerry Edwards, Jr., a by Matthew Hinton Photography. 2015-16); Secretary Scotty E. Chabert, director in the Shreveport firm of Jr., an assistant district attorney for the Orleans office of Deutsch, Kerrigan & Blanchard, Walker, O’Quin & Roberts. 18th Judicial District and a partner in Stiles, L.L.P. At-Large Representative: Kellen J. the Baton Rouge law firm of Saunders District 2: Jason M. Baer, a partner in Mathews, an associate in the Baton Rouge & Chabert; and Immediate Past Chair the Metairie office of Hailey, McNamara, office of Adams and Reese, L.L.P. Kyle A. Ferachi, a partner in the Baton Hall, Larmann & Papale, L.L.P.; and American Bar Association Young Rouge office of McGlinchey Stafford, Jennifer Z. Rosenbach, Gretna, an Lawyers Division Representative: P.L.L.C. assistant district attorney with the Cristin G. Fitzgerald, a member/partner Judge Ritchie also installed members Jefferson Parish District Attorney’s in the New Orleans firm of Fitzgerald & of the 2014-15 YLD Council. Office. Brown, L.L.C. District 1: Dylan T. Thriffiley, an District 3: Kassie L. Hargis, a law clerk Young Lawyer Member/American associate in the New Orleans office for Judge John R. Walker, 32nd Judicial Bar Association House of Delegates: of Kean Miller, L.L.P.; and James E. District Court, Houma (Terrebonne Ryan M. McCabe, an associate in Steeg (Jimmy) Courtenay, a partner in the New Parish). Law Firm, L.L.C., in New Orleans.
108 August / September 2014 73rd LSBA Annual Meeting & LJC/LSBA Summer School • June 1 – 6, 2014 • Destin, FL
Victor J. Suane, Jr., left, is presented with the Out- Lynsay M. Fontenot, left, is presented with the Bat 2013-14 LSBA YLD Chair Kyle A. Ferachi, left, standing Young Lawyer Award by 2013-14 LSBA P. Sullivan, Jr. Chair’s Award by 2013-14 LSBA presents Seth T. Mansfield with the YLD Pro Bono YLD Chair Kyle A. Ferachi during the YLD Chair’s YLD Chair Kyle A. Ferachi during the YLD Chair’s Award during the YLD Chair’s Reception at the Reception at the 2014 Annual Meeting. All photos by Reception at the 2014 Annual Meeting. 2014 Annual Meeting. Matthew Hinton Photography. Attorneys, Bar Associations Receive 2014 LSBA YLD Awards ive Louisiana State Bar ► Outstanding Young Lawyer received a BS degree in risk management Association (LSBA) members Award and insurance in 2002 from Florida State and two local Bar Associations Victor J. Suane, Jr., a partner in the University and her JD degree in 2006 from received 2014 LSBA Young Baton Rouge office of Kean Miller, L.L.P., Louisiana State University Paul M. Hebert LawyersF Division (YLD) awards. The received the Outstanding Young Lawyer Law Center. She was a member of the 2011- awards were presented by 2013-14 YLD Award. He received his BA degree in business 12 Leadership LSBA Class and co-chaired Chair Kyle A. Ferachi of Baton Rouge administration in 1998 from Rhodes College the 2012-13 Leadership LSBA Class. She is and other YLD Council members during and his JD degree, cum laude, in 2007 from a representative on the LSBA YLD Council. a June 2 ceremony, held in conjunction Southern University Law Center (a member She is a member of the Junior League of with the LSBA’s Annual Meeting in of the Southern University Law Review). Lake Charles and “Fusion Five,” a young Destin, Fla. Active in the Baton Rouge Bar Associa- Continued on page 110 tion (BRBA), he served as a member of the Young Lawyers Section Council and chaired the Belly Up with the Bar Commit- tee. He received the BRBA’s 2013 Presi- dent’s Award. He is a past president of the Louisiana School for the Deaf Foundation and a board member of Cancer Services of Greater Baton Rouge. From 2007-09, he was the Kean Miller Team co-captain of the Alzheimer’s Services of the Capital Area “Walk to Remember.” He currently volunteers with the Kean Miller Dictionary Project and the BRBA Easter Egg Hunt at Buchanan Elementary School.
► Bat P. Sullivan, Jr. Chair’s Award Two Chair’s Awards were presented. 2013-14 LSBA YLD Chair Kyle A. Ferachi, right, Lynsay M. Fontenot, an associate in 2013-14 LSBA YLD Chair Kyle A. Ferachi, right, presents the Baton Rouge Young Lawyers Section presents the Lafayette Young Lawyers Association with the Service to the Public Award With him are the Lake Charles firm of Stockwell, Sievert, with the Service to the Bar Award. With him is Scotty E. Chabert, Jr. and Ann K. Gregorie. Viccellio, Clements & Shaddock, L.L.P., Lafayette Bar President Tricia R. Pierre.
Louisiana Bar Journal Vol. 62, No. 2 109 73rd LSBA Annual Meeting & LJC/LSBA Summer School • June 1 – 6, 2014 • Destin, FL
2013-14 LSBA YLD Chair Kyle A. Ferachi, left, 2013-14 LSBA YLD Chair Kyle A. Ferachi presents 2013-14 LSBA YLD Chair Kyle A. Ferachi, left, presents Lawrence Centola III with a plaque for his Erin O. Braud, left, with a plaque for her service as presents J. Lee Hoffoss, Jr. with a plaque for his service as YLD Immediate Past Chair during the YLD Secretary during the YLD Chair’s Reception service as YLD Chair-Elect during the YLD Chair’s YLD Chair’s Reception at the 2014 Annual Meeting. at the 2014 Annual Meeting. Reception at the 2014 Annual Meeting. YLD continued from page 109 sionalism Award. She practices in general the Outstanding Attorney Award from the commercial and business litigation, health Lafayette Volunteer Lawyers in 2013. professionals’ organization sponsored by the care litigation, insurance defense, gaming Chamber of Southwest Louisiana. and other regulatory matters. She is a lobbyist ► Service to the Public Award Sara B. Rodrigue, an associate in the registered with the Louisiana Board of Ethics The Baton Rouge Bar Association Lafayette firm of NeunerPate, received her (Executive Branch and Legislative Branch). Young Lawyers Section’s Holiday Star bachelor of arts and sciences degree in 2005 Ledet has experience in state and federal Project works with 12 Baton Rouge social from Nicholls State University and her JD de- politics as a head page to former Presidents services agencies to provide children in need gree in 2009 from Louisiana State University of the Louisiana State Senate, Sen. John a brighter Christmas. The children assisted Paul M. Hebert Law Center. She served as a Hainkel, Jr. of New Orleans and Sen. Donald by the project include those with serious ill- representative on the LSBA’s YLD Council Hines of Bunkie, and as a staff assistant to nesses to those who are visually impaired, and and co-chaired the LSBA YLD’s High School U.S. Congressman Charles W. Boustany Jr., from underprivileged children in early Head Mock Trial Competition. She is a member M.D., in Washington, D.C. She worked as Start programs to those born HIV-positive or of the Lafayette Bar Association and the a criminal prosecutor in the Louisiana De- exposed to AIDS. The Holiday Star Project Acadiana Inn of Court. She received the 2011 partment of Justice, Office of the Attorney is in its 22nd year. Lafayette Volunteer Lawyers Outstanding General, and obtained the first conviction Attorney Award. She participates in the Big ► Service to the Bar Award under Louisiana’s movie bootlegging law. Brothers Big Sisters of Acadiana. The Lafayette Young Lawyers Associa- She is a member of the Federal Bar Asso- tion (LYLA) hosted its first Young Lawyers’ ► Hon. Michaelle Pitard Wynne Pro- ciation, the American Bar Association and CLE Program in November 2013. About fessionalism Award the Baton Rouge Bar Association’s Young 30 young lawyers earned 3 hours of CLE Mackenzie S. Ledet, an associate in the Lawyers Section Council. credit while engaging in discussions about Baton Rouge office of Baker, Donelson, Bear- courtroom “dos and don’ts,” the importance ► Pro Bono Award man, Caldwell & Berkowitz, P.C., received Seth T. Mansfield, an associate in the of maintaining professionalism in practice, the Hon. Michaelle Pitard Wynne Profes- Lafayette firm of NeunerPate, received the and creating strong working relationships. Pro Bono Award. He joined the law firm in Because of the first program’s success, the 2012 after graduating from Louisiana State LYLA hosted a second CLE in spring 2014. University Paul M. Hebert Law Center. He re- ceived a BS degree in criminal justice from the University of Louisiana at Lafayette, and a MS degree in criminal justice from the University of Cincinnati. Prior to attending law school, he worked as a deputy in the Patrol Division of the Lafayette Parish Sheriff’s Office. He is a member of the Lafayette Bar Association, the Lafayette Young Lawyers Association and the John M. Duhe, Jr. American Inn of Court. He participates in Louisiana Attorney General Buddy Caldwell, left, talks with former LSBA President Frank X. Neuner, the Homeless Experience Legal Protection 2013-14 YLD Chair Kyle A. Ferachi, left, and 2013- Jr. at the YLD Chair’s Reception during the 2014 (HELP) Program and was presented with 14 LSBA President Richard K. Leefe during the Annual Meeting. YLD Chair’s Reception during the 2014 Annual Meeting.
110 August / September 2014 2015 Expert Witness, Consultant and Legal Services Directory The Louisiana State Bar Association is publishing its Expert Witness, Consultant and Legal Services Directory. The supplement to the Louisiana Bar Journal will be printed separately and shrink-wrapped for mailing with the December 2014/January 2015 Louisiana Bar Journal. The directory is published annually, guaranteeing a year’s worth of exposure in print and on the LSBA website.
$85 ► Reach 22,000+ practicing attorneys Added Value! ► Listings indexed THREE ways: alphabetical, geographical FREEFREE and by category text listing in December Louisiana Bar Journal ► View last year’s publication at Service www.lsba.org/goto/expertwitness ! Directory Act Now TechnicalTechnical DetailsDetails ► Publication size: 8 ½ inches wide x 10 7/8 inches tall ½-page display ad ...... 3.5 inches wide x 9.5 inches tall ½-page CV ad ...... 300 words max, not including contact info Full-page display ad ...... 7.25 inches wide x 9.5 inches tall (no bleeds!) Full-page CV ad ...... 600 words max, not including contact info ► Display ads must be provided camera-ready in PDF format, black and white only. ► For text/CV ads, supply text in an editable word-processing format. ► For CV ads, submit original or digital headshot photos separately from the text, in .jpg or .tif format (high-resolution digital photos of at least 300 dpi work best). ► Email or mail ads on a disk to the addresses provided below. ► DON’T FORGET TO PROVIDE YOUR 5 INDEXING CATEGORIES. ContactContact Info,Info, DeadlinesDeadlines && PricingPricing To reserve space in the directory, mail and/or e-mail your display ad or text listing/photo and check (payable to the Louisiana State Bar Association) to:
Communications Assistant Krystal Bellanger Rodriguez Louisiana State Bar Association 601 St. Charles Ave. New Orleans, LA 70130-3404 email: [email protected] If you prefer to charge your listing (Visa, Mastercard or Discover only), please contact Krystal at (504)619-0131 or (800)421-5722, ext. 131. Early Bird Deadline Final Deadline Sept. 12, 2014 Oct. 17, 2014 ½-page ...... $400 ...... $475 Full-page ...... $725 ...... $850
Note to Lawyer/Law Firm Advertisers: Per Rule 7.7 of the Louisiana Rules of Professional Conduct, all lawyer advertisements — unless specifi cally exempt under Rule 7.8 — are required to be fi led for a compliance review by the Louisiana State Bar Association’s Ethics Counsel prior to fi rst publication. This process could take up to 30 days, so advertisers should consider that time window in relation to the publication’s ad placement deadline. For more information on compliance with the Rules, contactLouisianaLouisiana LSBA Ethics BarBar JournalCounselJournal Vol.Vol. 61,62, No.No. 52 111 1 and/or go online: www.lsba.org/LawyerAdvertising. Communications Department staff cannot discuss Rules compliance issues. 73rd LSBA Annual Meeting & LJC/LSBA Summer School • June 1 – 6, 2014 • Destin, FL
Left Upper: 2013-14 LSBA President Richard K. Leefe with keynote speaker Ruby Bridges and Louisiana Supreme Court Chief Justice Bernette Joshua Johnson. Left: Louisiana Supreme Court Chief Justice Bernette Joshua Johnson addresses the General Assembly and House of Delegates during the 2014 Annual Meeting. Left: A photo of many of the Shreveport lawyers in attendance at the Installation Dinner during the 2014 Annual Meeting. Left: 2013-14 LSBA President Richard K. Leefe dances with his wife, Barat, in the background while 2014-15 LSBA President Joseph L. (Larry) Shea, Jr. dances with his wife, Jane, in the foreground during the 2014 Annual Meeting. Left bottom: The Beach Bash was well attended by families and friends during the 2014 Annual Meeting. Right upper: 2013-14 LSBA President Richard K. Leefe receives a plaque from 2014-15 LSBA President Joseph L. (Larry) Shea, Jr. during the Installation Dinner at the 2014 Annual Meeting. Right bottom: All four deans of Louisiana law schools on a panel during the LJC/LSBA Summer School - including Dean Maria Pabón López of Loyola University College of Law, New Orleans; Dean David D. Meyer of Tulane University Law School, New Orleans; Chancellor Freddie Pitcher, Jr. of Southern University Law Center, Baton Rouge; and Dean Jack M. Weiss of LSU Law Center, Baton Rouge. All photos by Matthew Hinton Photography.
112112 AugustAugust // SeptemberSeptember 20142014 Your advocate. YourYour advocate. advocate. Your partner. YourYour partner. partner. Your LSBA Committee. YourYour LSBA LSBA Committee. Committee.
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CNA is a registered trademark of CNA Financial Corporation. Copyright © 2014 CNA. All rights reserved. CNA is a registered trademarkCNA of is CNA a registered Financial trademark Corporation. of CNA Copyright Financial © 2014 Corporation. CNA. All rightsCopyright reserved. © 2014 CNA. All rights reserved. Louisiana Bar Journal Vol. 62, No. 2 113 Association Actions Elections... Mentoring... Specialization
Elections: Qualifying Begins Sept. 22 for Leadership Positions everal Louisiana State Bar each of the 20th through 42nd Judicial Jackson, Lincoln, Madison, Morehouse, Association (LSBA) leadership Districts, plus one additional delegate Ouachita, Red River, Richland, Tensas, positions are open during the for every additional district judge in each Union, Webster, West Carroll and Winn, 2014-15 election cycle. Self- district. one member. qualificationS forms for positions on the Nominating Committee (15 members, Young Lawyers Division: Chair- Board of Governors, LSBA House of one-year terms beginning at the adjournment elect (2015-16 term), nominee shall not Delegates, Nominating Committee, Young of the 2015 LSBA Annual Meeting and be a resident of or actively practicing Lawyers Division and American Bar ending at the adjournment of the 2016 law in the parishes of Orleans, Jefferson, Association House of Delegates will be LSBA Annual Meeting): District 1A, St. Bernard or Plaquemines, based on provided to the membership on Sept. 22. Orleans Parish, four members; District 1B, preferred mailing address. Secretary For the 2014-15 election cycle, balloting parishes of Plaquemines, St. Bernard and (2015-16 term), nominee shall not be a will be conducted electronically only, as St. Tammany, one member; District 2A, resident of or actively practicing law in the approved by the LSBA Board of Governors East Baton Rouge Parish, two members; parishes of Orleans, Jefferson, St. Bernard in June 2011. No paper ballots will be District 2B, Jefferson Parish, two members; or Plaquemines, based on preferred mailing provided. District 2C, parishes of Ascension, address. Petitions for nomination must Deadline for return of nominations by Assumption, East Feliciana, Iberville, be signed by 15 members of the Young petition and qualification forms is Monday, Lafourche, Livingston, Pointe Coupee, Lawyers Division. Also to be elected, one Oct. 20. First election ballots will be St. Charles, St. Helena, St. James, St. representative each from the First, Second, available to members on Monday, Nov. 17. John the Baptist, Tangipahoa, Terrebonne, Fourth, Fifth, Sixth and Eighth districts Deadline for electronically casting votes Washington, West Baton Rouge and West (two-year terms). is Monday, Dec. 15. Feliciana, one member; District 3A, American Bar Association House Positions to be filled include: Lafayette Parish, one member; District of Delegates (must be a member of the Board of Governors (three-year terms 3B, parishes of Acadia, Beauregard, American Bar Association): one delegate beginning at the adjournment of the 2015 Calcasieu, Cameron, Iberia, Jefferson from the membership at large. The delegate LSBA Annual Meeting and ending at the Davis, St. Martin, St. Mary and Vermilion, will serve a two-year term, beginning with adjournment of the 2018 LSBA Annual one member; District 3C, parishes of the adjournment of the 2015 ABA Annual Meeting): one member each from the Allen, Avoyelles, Evangeline, Grant, Meeting and expiring at the adjournment Sixth, Seventh and Eighth Board districts. LaSalle, Natchitoches, Rapides, Sabine, of the 2017 ABA Annual Meeting, as LSBA House of Delegates (two-year St. Landry and Vernon, one member; provided in Paragraph 6.4(e) of the ABA terms beginning at the commencement District 3D, parishes of Bossier and Caddo, Constitution. of the 2015 LSBA Annual Meeting and one member; and District 3E, parishes of For more information on the election ending at the commencement of the 2017 Bienville, Caldwell, Catahoula, Claiborne, procedures and the schedule, go to: www. LSBA Annual Meeting): one delegate from Concordia, DeSoto, East Carroll, Franklin, lsba.org/goto/elections.
LSBA President Shea Encourages Participation in “Day of Service”
Louisiana State Bar Association (LSBA) Louisiana’s participation in the National in a library in each parish to address the President Joseph L. (Larry) Shea, Jr. is en- Pro Bono Celebration Week (Oct. 19-25). public on various legal issues through public couraging Louisiana lawyers to recognize “Lawyers in Libraries,” an important com- education or advice sessions,” Shea said. Thursday, Oct. 23, as a “Day of Service” to ponent of LEAP, was designed in partner- For more information on the event or to the public by volunteering for the LSBA’s ship with the Louisiana Library Association volunteer, contact LSBA Access to Justice “Lawyers in Libraries” initiative. The ini- to deliver legal information and resources Director Monte T. Mollere at (800)421- tiative advances both the Legal Education through public libraries. “The goal for our 5722, ext.146, or (504)619-0146; or email and Assistance Program (LEAP) and Day of Service will be to have an attorney [email protected].
114 August / September 2014 La. Board of Legal Specialization Mails LSBA Launches Recertification Applications he Louisiana Board of Legal to the LBLS, c/o Barbara Shafranski, Free App Specialization (LBLS) has Executive Director, 601 St. Charles Ave., mailed recertification New Orleans, LA 70130. The application The Louisiana State Bar Association applications to specialists whose and check should be mailed no later than has launched a free app which offers quick certificationT expires Dec. 31, 2014. The Oct. 15 to avoid revocation of certification. access to several popular sections of the completed application, along with a $100 For more information, contact Shafranski main website, including the members’ check payable to the “Louisiana Board of at (504)619-0128 or email barbara. directory, CLE events, publications Legal Specialization,” should be mailed [email protected]. information and the calendar. The app is available for iPad, iPhone and Android users. Members using these platforms should search “Louisiana State Bar LBLS Revises Specialty Standards Association” in their devices’ App Stores he Louisiana Board of Legal and administration, family law and tax law, for the free download. Specialization has revised effective June 5, 2014. To download a copy Specialty Standards for of the revisions, go to: www.lascmcle.org/ Tbankruptcy law, estate planning specialization. Important Reminder: Lawyer Notice: CLE Compliance for Board-Certified Advertising Filing Specialists Requirement n accordance with the requirements ► Bankruptcy Law — CLE is regulated of the Louisiana Board of Legal by the American Board of Certification Per Rule 7.7 of the Louisiana Rules Specialization (LBLS), as set forth CLE credits will be computed on a of Professional Conduct, all lawyer in the individual Specialty Standards calendar-year basis and all attendance advertisements and all unsolicited Ifor each field of legal specialization, board- information must be delivered to written communications sent in certified attorneys in a specific field of law Mandatory Continuing Legal Education compliance with Rule 7.4 or 7.6(c) — must meet a minimum CLE requirement (MCLE). The deadline for filing annual unless specifically exempt under Rule for the calendar year ending Dec. 31, 2014. CLE is Jan. 31, 2015. Failure to timely 7.8 — are required to be filed with the The requirement for each area of specialty report specialization CLE hours will result LSBA Rules of Professional Conduct is as follows: in a penalty assessment. Committee, through LSBA Ethics ► Estate Planning and Administration If you have any questions, contact Counsel, prior to or concurrent with first Law — 18 hours of estate planning law. Barbara Shafranski, LBLS Executive use/dissemination. Written evaluation ► Family Law — 18 hours of family Director, at (504)619-0128 or email for compliance with the Rules will be law. [email protected]. provided within 30 days of receipt of a ► Tax Law — 20 hours of tax law. complete filing. Failure to file/late filing will expose the advertising lawyer(s) to risk of challenge, complaint and/or disciplinary consequences. LBLS Accepting Applications for Bankruptcy Law The necessary Filing Application Certification Through September Form, information about the filing and evaluation process, the required he Louisiana Board of Legal of Certification, attorneys should apply filing fee(s) and the pertinent Rules are Specialization (LBLS) is for approval of the LBLS simultaneously available online at: http://www.lsba. accepting applications for with the testing agency in order to avoid org/members/LawyerAdvertising.aspx. 2015 certification in business delay of board certification by the LBLS. Inquiries, questions and requests for bankruptcyT law and consumer bankruptcy For more information, contact LBLS assistance may be directed to LSBA law through Sept. 30, 2014. Regarding Executive Director Barbara M. Shafranski, Ethics Counsel Richard P. Lemmler, applications for business bankruptcy email [email protected] or call Jr., [email protected], (800)421- law and consumer bankruptcy law (504)619-0128. 5722, ext. 144, or direct dial (504)619- certification, although the written test(s) 0144. is administered by the American Board
Louisiana Bar Journal Vol. 62, No. 2 115 Pilot Mentoring Program Begins Jan. 1: Registration Open for Mentors The Louisiana Supreme Court has parts of the state to guide this next genera- to view video messages from Louisiana approved a pilot mentoring program for tion of lawyers. Mentors must be in good Supreme Court Chief Justice Bernette newly admitted Louisiana lawyers. The standing, have no disciplinary history and Joshua Johnson and LSBA Committee on program, sponsored by CNA/Gilsbar, must have at least 10 years of experience. the Profession Chair Barry H. Grodsky, begins Jan. 1, 2015. The Louisiana State Mentors can receive up to 6 hours of free go to: www.lsba.org/mentoring/. Bar Association (LSBA) is now seeking CLE credit by volunteering. For more mentors from all practice areas and all information, to register as a mentor and Mentor Registration Transition Into Practice (TIP) Voluntary Mentoring Program
Attorney Name ______
Bar Roll Number ______
Law Firm (if applicable) ______
Mailing Address ______
City/State/Zip ______
Office Phone ______
Cell Phone ______
Fax ______
Email ______
Judicial District ______
Areas of Practice ______Complete the form and return to:
Connie P. Sabio / Professional Programs Louisiana State Bar Association 601 St. Charles Ave. New Orleans, LA 70130-3404
Fax (504)598-6753
116 August / September 2014 Several legal professionals received 2014 Pro Bono Publico and Children’s Law Awards during a May 20 ceremony at the Louisiana Supreme Court. Justices and members of the Louisiana State Bar Association leadership attended. Photo by Matthew Hinton Photography. Legal Professionals, Law Students Recognized for Exceptional Pro Bono Work
he Louisiana State Bar Associa- and T. Darlene Bewley, New Orleans. and Khalid Samarrae and Tyler Whittenberg, tion (LSBA), in conjunction with ► 2014 Pro Bono Publico Award: Tulane University Law School. the Louisiana Supreme Court, Office of the Attorney General, Alexandria ► 2014 Century Award: Phillip J. hosted the 29th annual Pro Bono Litigation, Alexandria; Phillip J. Antis, Jr., Antis, Jr., New Orleans; John O. Brady, TAwards Ceremony on May 20. LSBA 2013- New Orleans; Robert T. Binney, Slidell; R. Baton Rouge; Scott Brown, New Orleans; 14 President Richard K. Leefe presented Alan Breithaupt, Monroe; Booker T. Car- Booker T. Carmichael, Baton Rouge; Wil- the 2014 Pro Bono Publico and Children’s michael, Baton Rouge; Michele M. Echols, liam G. Cherbonnier, New Orleans; Jeffrey Law Awards. The ceremony was held in Covington; Entergy Corp., New Orleans K. Coreil, Lafayette; Anderson O. Dotson the Louisiana Supreme Court building in Office Legal Department, New Orleans; III, Baton Rouge; Elizabeth A. Dugal, New Orleans. Michael D. Ferachi, Baton Rouge; Valerie Lafayette; Bradford H. Felder, Lafayette; The Pro Bono Awards Ceremony honors G. Garrett, Lafayette; Catharine O. Gracia, Valerie G. Garrett, Lafayette; Catharine O. attorneys and other public interest legal New Orleans; Kenneth W. Jones, Lafayette; Gracia, New Orleans; Mitchell P. Hasen- professionals from around the state who Judith R. Kennedy, Lafayette; Robert C. kampf, New Orleans; Kenneth W. Jones, provided exceptional pro bono services Owsley, Natchitoches; Sherrye K. Palmer, Jr., Lafayette; Judith R. Kennedy, Lafayette; to Louisiana’s indigent, a group who may St. Amant; Sandra L. Sutak, New Orleans; Greg A. Koury, Lafayette; Cliff A. Lacour, not otherwise have received adequate legal Zebulon M. Winstead, Alexandria; and Amy Lafayette; Seth T. Mansfield, Lafayette; representation or access to the legal system. M. Winters, New Orleans. Gary K. McKenzie, Baton Rouge; Patrick This year’s award recipients included: ► 2014 Friend of Pro Bono Award: P. O’Hara, Baton Rouge; Annette N. Peltier, ► 2014 Leah Hipple McKay Memo- Michael Breeden III, New Orleans; Gary M. Baton Rouge; Christopher K. Ralston, New rial Award for Outstanding Volunteerism: Carter, Jr., New Orleans; Ian M. Ellis, New Orleans; James C. Rather, Jr., New Orleans; Brian D. Lenard, Hammond. Orleans; Julie M. Lafargue, Shreveport; Dona K. Renegar, Lafayette; Wendy Hickok ► 2014 David A. Hamilton Lifetime Wendy Hickok Robinson, New Orleans; Robinson, New Orleans; Marcus J. Roots, Achievement Award: Mark C. Surprenant, Hugh R. Straub, New Orleans; and K. Wade Baton Rouge; Dwazendra J. Smith, Lafay- New Orleans. Trahan, Lafayette. ette; Grady M. Spears, Lafayette; Gregory ► 2014 Career Public Interest Award: ► 2014 Law Student Pro Bono Award: T. Stevens, Baton Rouge; Mark C. Surpre- Gregory L. Landry, Lafayette. Savannah Steele, Louisiana State University nant, New Orleans; Sandra L. Sutak, New ► 2014 Children’s Law Award: Family Paul M. Hebert Law Center; Brittany Jaleesa Orleans; K. Wade Trahan, Lafayette; and and Youth Counseling Agency, Lake Charles; Mckeel, Southern University Law Center; Amy M. Winters, New Orleans.
Louisiana Bar Journal Vol. 62, No. 2 117 SOLOSpeaking By Michael J. Sepanik Writing for Litigators
itigators are busy by nature. As struction). One point per paragraph makes question whether you value his/her time. trials approach, time disappears. the reader’s job easier. If an argument has little or no chance of Motions are an essential aspect of 3. Use headings and subheadings often success, leave it out. any case, not mere speed bumps and wisely. Direct, brief and clear headings 9. Long sentences are confusing. Avoid Lon the road to trial. A well-written dispositive make your motion easier to follow. Think long or disjointed sentences whenever motion can eliminate the need for trial alto- of headings as signposts alerting readers as possible. gether, and a convincing motion in limine to where they are headed. 10. Use simple and straightforward can make or break a trial when addressing 4. Revise, revise, revise. Great writing language. Plain English is easy to read. key evidence or testimony. rarely happens without many rounds of Why begin a brief with the words “COMES Computers make the physical task of analysis and revision. NOW” if there aren’t any trumpets or horns drafting motions much easier. Unfortu- 5. Delete unnecessary words. Qualify- announcing your presence to royalty? nately, when time is short, “cut-and-paste” ing words often water down your point and 11. Spelling errors, grammatical mis- sometimes replaces well-thought-out reduce clarity. Always question whether an takes and incorrect citations will reduce, and structure and cohesive argument, making adverb or adjective is necessary. eventually destroy, your credibility with the the final product ineffective. Learning to 6. Credibility is earned by acknowledg- reader. Trivial errors in a motion convey the write requires years of diligent study and ing the other side’s best arguments. Just as sense that your motion is not important. If application. Litigators should analyze effec- credibility before a judge and jury is vital the relief in your motion is unimportant to tive legal writing by peers and opponents during a trial, credibility before a judge you, why should the judge care? whenever possible and take note of the considering a motion is crucial. Footnotes 12. Avoid the terms “clearly,” “obvi- recurring threads. The following 15 points are an effective way of minimizing and ously,” “absurd” or cynical and combative may be of use to litigators. distinguishing the other side’s supporting language about opposing counsel. case law. 13. Eliminate clutter. 1. A motion’s introduction is as crucial to a 7. Overuse of italics, underlining and 14. Use the dictionary and thesaurus motion as an opening statement is to a jury tri- boldface weakens your argument and dis- frequently. al. Think of the introduction as opening with tracts the reader. Effective and precise use 15. Know when to stop writing. the words: “What this motion is about. . .” of language will speak for itself. The first sentence is your opportunity to 8. Discard “throw-away” arguments. A One final point: Attention to detail and grab the reader’s attention. motion composed of two or three strong thorough analysis will help earn a judge’s 2. Structure is critical to keeping the arguments speaks volumes. In contrast, trust. Use that trust to benefit your client, reader’s attention. Keep paragraphs concise, two strong arguments Scotch-taped to especially when proposing a novel or avoiding “PMDs” (Paragraphs of Mass De- four flimsy arguments makes the reader common-sense approach to issues that have not been addressed by the appellate courts of your jurisdiction.
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118 August / September 2014 PracticeManagement By Johanna G. Averill Engagement Letters
ontinuing the focus on the critical “The specific limited legal services to be The use of properly crafted engagement importance of an engagement provided by us follows: letters not only make the limited scope of letter, this is an example of a law 1. Serve as secondary assistant counsel services clear but also limit the scope of your firm that properly clarified and in connection with the trial, to assist your exposure to a claim of malpractice and avoid Cdocumented the limited scope of its represen- present lead attorneys; and a swearing contest. tation. The law firm was hired a few months 2. You specifically acknowledge that we Johanna G. Averill is profes- before a civil litigation trial only to assist will not be preparing any jury instructions, sional liability loss preven- lead counsel. The law firm was not involved jury charges, jury interrogatories, or the tion counsel for the Louisi- in any aspect of the pre-trial preparation, as Pre-Trial Order, all of which shall be done by ana State Bar Association lead counsel was completely responsible for other attorneys whom you separately engaged and is employed by Gilsbar, L.L.C., in Covington. She pre-trial matters. Later, the client sued the previously and for whose work we shall have received her BS degree in law firm for negligence in the preparation no responsibility whatsoever of any kind. marketing in 1982 from of certain pre-trial documents. The court 3. By signing this letter, you specifically Louisiana State University dismissed the action against the law firm and agree, acknowledge and stipulate that you and her JD degree in 1985 from Loyola University Law found it was not accountable for the content shall hold harmless this law firm and all School. In her capacity as of the pre-trial documents due to a signed of its attorneys and staff, from any and all loss prevention counsel, she lectures on ethics as part of written agreement titled “Engagement for claims arising from or connected with the Mandatory Continuing Legal Education requirements Limited Services,” which stated: preparation or presentation of your case at for attorneys licensed to practice law in Louisiana. She can be emailed at [email protected]. trial or appeal to your current attorneys.”
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Louisiana Bar Journal Vol. 62, No. 2 119 Qualityof Life By Anthony M. DiLeo On Artistic Endeavor
aving more confidence than skill, I started with a 99-cent watercolor paint set in about 1979. When the Louisiana BarH Journal editor asked for a painting for the magazine’s cover, as well as a few words about the artistic process, I thought about why I had started painting — and I thought mostly of my mentors. Many in the legal field also were engaged in other activities: writing, art, music, family, so many things outside of their practice of law. (Judge Alvin Rubin, for example, wrote haiku while waiting for the jury to come back.) My goal here is simply to encourage others to consider an artistic endeavor as a pastime — just to have the experience of doing it. So often we don’t try something new without a goal of it achieving some expectation, or of it pleasing someone else. The process of painting is about the experience of doing something in a way that is immediate and experimental. The only standard is that, as you do it, you get as aware of the process as you can and simply be reactive, so that you are only trying to be spontaneous. This applies to whatever design, shape, color, style and material you are using. There is no way to make a “mistake.” Each attempt is its own adventure; each attempt is its own thing all by itself. If you can do that, you’ll discover that you can, in fact, “do it.” The endeavor gets spoiled only if The Trees (30” x 36”). you need to meet a specific goal, if you need someone to say to you “I really like ing. (After all, this isn’t our day job.) The Trying to think in a commercial way or in that,” or if you’re doing anything other next time you may try something entirely an analytical way can spoil the process and than getting your most immediate focus different, with different material, in a dif- make it more like a work assignment or a on the process while you are working on ferent way, and that is good, too.2 It really task (and we already have lots of those). 1 it. Sometimes it is called “alla prima.” is about the experience and the moment, It can defeat the exhilaration and the I recommend to anyone reading this to and not about anything else.3 It feels great purity of detachment and the exuberation make an attempt — remembering to try to use the other side of our brain! of a very personal connection. The irony to follow this method and path — and I If it becomes about gaining admiration of this is that the more you detach from believe you’ll discover an experience of from another person or selling something, fulfilling an expectation, the more you can personal self-expression that will be pleas- you are likely to lose out on the experience. connect with it and you get, surprisingly,
120 August / September 2014 a bond with the experience. After all, it’s only about the experience. This same process applies to any cre- ative or athletic endeavor, to writing or music or gardening or running or sailing. For those of you still reading, I hope it encourages you to make an attempt, any attempt in any artistic field. I recommend you not do this with anyone else around because unconsciously we start wonder- ing what they might think and feel about it, and that is taking yourself out of the equation. And you need to be primary in that equation. You’ve worked really hard, so give yourself a bonus, give yourself permis- sion. That’s the hardest part. Leave reason behind for just a brief mo- ment and it will be waiting for you when you are ready. There are no rules here. It’s not a discipline; it’s an undiscipline. If you get that down, everything is great. Do it.
FOOTNOTES
1. Wet-on-wet, or alla prima (Italian, mean- ing at first attempt), is a painting technique, used mostly in oil painting, in which layers of wet paint are applied to previous layers of wet paint. This technique requires a fast way of working because the work has to be finished before the first layers have dried. It also may be referred to as “direct painting.” 2. Whatever you have by way of materials is okay — pens, pencils, crayons, watercolor, paper, canvas, acrylic, oils, etc. A lot of my Morning Landscape (53” x 72”).
paint I buy from the back of the store at Sherwin Williams for $1 per quart. They call these their “mistakes” and there are great colors in there! 3. Sometimes, if I don’t like the way a paint- ing comes out, I cut it into pieces, then rear- range the pieces to a surprising result. Or I paint over it with the underlying colors giving depth to the new result.
Anthony M. DiLeo, a solo practitioner based in New Orleans, also is an arbitrator and mediator, handling more than 400 cases in 20 states for local, national and international parties. After Tulane Law School (Law Review, Order of the Coif), he received an LL.M. from Harvard Law School in 1971. He served as law clerk to Judge Alvin B. Rubin (U.S. District Court) and Judge John Minor Wisdom (U.S. 5th Circuit Court of Appeals). His largest painting, Vespertine, is 96” x 120” and is located in the lobby of Ochsner Hospital. His artwork can be viewed online at: www.dileoart.com. ([email protected]; Ste. 2350, 909 Poydras St., New Orleans, LA 70112)
Artist Anthony M. DiLeo.
Louisiana Bar Journal Vol. 62, No. 2 121 lawyersAssistance By J.E. (Buddy) Stockwell Intervention Saves Lives
t’s often been said that “alcoholics tion, the participating family members will and addicts simply will not accept Lawyers Assistance have perfected their individual “bottom help until they hit bottom on their Program, Inc. (LAP) lines” and can be steadfast in articulating own and finally decide themselves to Your call is absolutely confidential the changes they will make in their behavior getI help.” That common belief is incorrect, as a matter of law. toward the alcoholic or addict — no more dangerous and potentially deadly. In truth, a money to support an addictive lifestyle and professional intervention can be very effec- Toll-free (866)354-9334 no more help in cleaning up alcohol- and tive in raising an alcoholic’s “bottom” and Email: [email protected] drug-related disasters. Instead, the family’s helping the person into life-saving treatment efforts will be openly focused on treatment before serious consequences accumulate. intervention and addiction treatment. and recovery. The art and science of intervention began One of the most identifiable advances The message to the alcoholic or addict to evolve in the 1960s with the legendary in the Jays’ intervention design is their is crystal clear: We love you and our family efforts of Dr. Vernon E. Johnson, an Epis- commitment to carefully structured and will do anything in the world to support your copal priest. He devoted much of his life comprehensive support to the family before, treatment and recovery but the family will to helping alcoholics into early recovery. during and after the intervention. Research never again do anything whatsoever that Dr. Johnson’s famous book, I’ll Quit To- over the years has revealed that quick “hit- will support, even obliquely, the disease morrow: A Practical Guide to Alcoholism and-run” interventions may very well get of addiction. This liberates families from Treatment (Harper & Row, 1973, with an alcoholic into a treatment facility, but further enabling the alcoholic or addict and seven subsequent editions), declares that those efforts alone do not provide the family allows the family to restore its integrity and it is pointless and dangerous to sit by and with what it needs to heal and support the heal as a unit notwithstanding the alcoholic’s wait to help alcoholics until they have hit alcoholic’s or addict’s long-term recovery or addict’s eventual prognosis. bottom on their own. after treatment. In June 2014, the Lawyers Assistance The “Johnson Model” for intervention Recovery from addiction is indeed a Program’s (LAP) executive director and deems that each and every crisis that an family mission, and it is a marathon, not clinical director both completed an inten- alcoholic or addict encounters along the way a sprint. There will be rough patches in sive, week-long intervention certification represents an opportunity to break through every person’s recovery and there also will course conducted personally by Jeff and the alcoholic’s denial and convince him/her be challenges for the family members, too. Debra Jay at the Betty Ford Center. This to accept help. A DWI arrest, loss of a job or Families must be on guard not to default to nationally acclaimed course is offered by any other glaring consequence of ongoing their old status quo of coping behaviors that the Jays only once a year and is limited to substance abuse may provide the catalyst often unwittingly supported the disease of 20 select professionals in the field. If you for conducting a successful intervention. addiction and hurt rather than helped. To have any questions or think that someone Intervention techniques continue to im- be successful in supporting the alcoholic you know could benefit from an interven- prove and experts Jeff and Debra Jay, both or addict in recovery, a family must “stick tion, LAP is now exceptionally qualified to former clinicians at the Hazelden Founda- to its guns” and render support as a well- help. Call LAP at (985)778-0571 or email tion, have been recognized as national trained team. A professional intervention [email protected]. As a matter of leaders in the field of intervention. The Jays’ provides that training. law, all calls are confidential and you do work has been noted by CNN, PBS, Forbes, An intervention offers needed relief not even have to give your name. The Washington Post, Parade magazine and to the family irrespective of whether the J.E. (Buddy) Stockwell is USA Today. They have appeared frequently alcoholic or addict agrees to treatment or on the “The Jane Pauley Show” and “The the executive director of is successful in recovery. The Jays describe the Lawyers Assistance Oprah Winfrey Show.” In 2000, Hazelden addiction as “a destructive force that runs Program, Inc. (LAP) and published the Jays’ definitive book, Love through families like a freight train.” By can be reached at (866)354- First: A Family’s Guide to Intervention, 9334 or via email at LAP@ confronting the alcoholic or addict, the fam- louisianalap.com. and a second edition was released in 2008. ily can end its enabling and return to core Since then, the Jays have authored and family values that have been compromised co-authored additional books, all of which by alcoholism and addiction. If an addict or are authoritative texts on the subjects of alcoholic refuses help during the interven-
122 August / September 2014 FocusDiversity on Signatories... subcommittees
New Signatories to LSBA Statement of Diversity Principles Listed
everal more attorneys, law firms ples.aspx. Signed forms may be returned Venus R. Masakowski and businesses have added their to Director of Member Outreach and Di- Melissa Mendoza signatures to the Louisiana versity Tricia R. Pierre by email at tricia. Charles K. Middleton State Bar Association’s (LSBA) [email protected], by fax (504)566-0930, Rokeya J. Morris StatementS of Diversity Principles. or by mail: 601 St. Charles Avenue, New Gayle Speed Ringo The LSBA’s Committee on Diversity Orleans, LA 70130-3404. Tina Suggs asks all Louisiana law firms, law depart- Among the recent signatories are: Cherrilynne W. Thomas ments and courts to execute the voluntary Katherine W. Trotter Statement of Diversity Principles. By ex- Attorneys Sherry Watters ecuting the Statement, the leaders of a D. August-Gilmore Jacquelyn Watts legal organization or court agree to use Marcus V. Brown their best efforts to increase the diversity Katharine Byrd Law Firms/Business in their hiring, retention and promotion of Desiree C. Calvin Christovich & Kearney, L.L.P. attorneys and the elevation of attorneys Laura L. Catlett Davenport & Kim, A.P.L.C. to leadership positions within their or- Joy C. Daussin Law Office of Edward Larvadain III ganizations. They also agree to promote Wanda Anderson Davis Law Office of Williard J. Brown, Sr. and participate in appropriate diversity Ariyal Fabre LaCour Law Firm, L.L.C. awareness training programs as well as Amanda C. Foster Lower 9th Ward programs to measure their progress in the George M. Gates IV Homeownership Association pursuit of the stated diversity principles. Jennifer Gaubert NASA Stennis Space Center To access the Statement online, go to: Kristina M. Kent www.lsba.org/Diversity/DiversityPrinci- Don Paul Landry, P.L.C.
LSBA Diversity Subcommittee Preference Form 2014-15: Get Involved! Indicate below your committee preference(s). If you are interested in more than one committee, list in 1-2-3 preference order. ____ Diversity Awards ____ Diversity Conclave ____ Diversity Integration ____ Diversity Communications ____ LGBT Diversity ____ Pipeline to Diversity (outreach to law students, students, law firms and judiciary) For a description of subcommittees, go to: www.lsba.org/Diversity/DiversitySubCommittees.aspx For more information on subcommittee duties, email Tricia R. Pierre, Director of Member Outreach and Diversity, [email protected].
LSBA Bar Roll Number______Name ______Address ______City/State/Zip ______Telephone ______Fax ______Email address ______
Response Deadline: Aug. 30, 2014 Mail, email or fax your completed form to: Tricia R. Pierre, Director of Member Outreach and Diversity Department, Louisiana State Bar Association 601 St. Charles Ave., New Orleans, LA 70130-3404 • email: [email protected] • fax: (504)566-0930
Louisiana Bar Journal Vol. 62, No. 2 123 Crossword Puzzle By Hal Odom, Jr. See the U.C.C.
1 2 3 4 5 6 7 ACROSS DOWN
8 1 Person ordered in a draft to make a 1 Person who signs or is identified in a payment (6) draft as a person ordering payment (6) 9 10 4 Person in possession of an 2 Abraham’s name until he was instrument (6) 99 years old (5) 9 Give one’s consent (5, 2) 3 Voted into office (7) 10 Singular of “data” (5) 5 Having more seniority (5) 11 12 11 Old term for an ant (5) 6 Futile pursuit; vicious circle (3, 4) 12 Judicial interpretation of Commerce 7 Makes payment (6) Clause, prohibiting state action that 8 ___ course, party against whom 13 14 15 impedes interstate commerce (7) personal defenses may not usually 13 Like many IOUs, and all olographic be asserted (6, 2, 3) 16 17 wills (11) 14 Seat of Bienville Parish (7) 18 Article: Civil Code::___: Revised 15 Short suspension of play (4-3) 18 19 20 21 Statutes (7) 16 Delivered an instrument, for the 20 Person who signs or is identified in purpose of giving rights thereon (6) a note as a person undertaking 17 Took an inside look (1-5) to pay (5) 19 I.e., in full (2, 3) 22 23 22 Excessive, as influence or delay (5) 21 Nutty (5) 23 Field of flying saucers (7) 24 Instruments referred to in clues to 1 Down and 1 Across (6) 24 25 25 Halted, as in bankruptcy (6)
Answers on page 162.
Alcohol and Drug Abuse Hotline Director J.E. (Buddy) Stockwell III, 1(866)354-9334 1405 W. Causeway Approach, Mandeville, LA 70471-3045 • email [email protected]
Alexandria Steven Cook...... (318)448-0082 Lake Charles Thomas M. Bergstedt...... (337)558-5032
Baton Rouge Steven Adams...... (225)921-6690 Monroe Robert A. Lee.....(318)387-3872, (318)388-4472 . (225)926-4333 David E. Cooley...... (225)753-3407 New Orleans Deborah Faust...... (504)304-1500 John A. Gutierrez...... (225)715-5438 Donald Massey...... (504)585-0290 .(225)744-3555 Dian Tooley...... (504)861-5682 . (504)831-1838 Lafayette Alfred “Smitty” Landry...... (337)364-5408 . (337)364-7626 Shreveport Michelle AndrePont ...... (318)347-8532 Thomas E. Guilbeau...... (337)232-7240 Nancy Carol Snow...... (318)272-7547 James Lambert...... (337)233-8695 William Kendig, Jr...... (318)222-2772 .(337)235-1825 .(318)572-8260 (cell) Steve Thomas...... (318)872-6250
The Lawyers Assistance Program, Inc. provides confidential assistance with problems such as alcoholism, substance abuse, mental health issues, gambling and all other addictions.
124 August / September 2014 FocusProfessionaliism on By Jonathan D. Stokes The Young and the Restless
have attended several profession- opposing attorneys what they want. On Be Wise, Always Revise. Never send alism CLEs recently in which the the other hand, the Code’s requirements the first draft of an angry email or letter. conversation inevitably turned to are unrelenting and without exception. Likewise, feel free to take a break from a the need to address unprofessional The Code of Professionalism demands phone conversation and ask to call back Ibehavior on the part of new lawyers. At civility — even when faced with incivility. when tempers have cooled. one such presentation, one of my more Keeping these guidelines in mind, it experienced colleagues suddenly leaned becomes clear that, for experienced and Nobody Moves, Nobody Gets Hurt. over and whispered, “It’s not the young inexperienced lawyers alike, angry tirades On a related note, refrain from making snap lawyers I’m worried about.” During the and other displays of temper are as unpro- judgments during a heated discussion. Very break, he further explained that he be- fessional as the behavior from which they few situations require immediate reactions. lieved some seasoned attorneys use ag- were prompted. Moreover, these displays Taking more time on the front end for gressive, unprofessional tactics to intimi- rarely, if ever, produce a satisfactory resolu- measured, considered responses can save date and provoke young lawyers. tion to the dispute. Fighting fire with fire time later. It is almost always OK to say, I appreciated his perspective because just makes more fire. “I’m going to have to take some time to I had sometimes been the target of such Instead of reacting in a way that may think about that.” behavior myself. During my first couple later lead to regret, new lawyers might of years of practice, when faced with consider the following strategies. (Here’s a Quarter) Call Someone unprofessional behavior on the part of Who Cares. Find an experienced col- opposing counsel, my default reaction was Everyone Stay Calm. More often than league to discuss run-ins with problematic to respond angrily, often saying things I not, a simple refusal to respond in kind, attorneys. Chances are, he or she has been would later wish I had not said. I was left while keeping your tone calm, even, but there before and can provide valuable with a sense of dissatisfaction, but without firm, causes opposing counsel to rethink perspective, validation and, if need be, a clear answer on where I had gone wrong. their strategy. In fact, some attorneys course correction. I imagine my dilemma is not unique. appear to intentionally try to provoke What should a new lawyer do when faced younger attorneys into rash, unprofes- Just like every other aspect of our with unprofessional behavior? Is there a sional behavior. When such behavior never profession, civility in the face of incivility way to be civil while preventing someone materializes, the provoking attorney may takes practice. For most of us, appropriately from taking advantage? change tactics. responding to incendiary, unprofessional In terms of a lawyer’s behavior to- behavior does not come naturally, and it wards others, the Code of Professionalism Find an Apology. As professionals who takes a great deal of patience and discipline provides: find success from being correct, it is very to consistently find success. In the mean- difficult for most attorneys to admit they time, we’ll keep practicing our apologies. I will conduct myself with dignity, civility, are wrong. Nevertheless, I have discovered courtesy and a sense of fair play. . . . that, inevitably, no matter how righteous Jonathan D. Stokes prac- I . . . will be cooperative . . . in the my cause, I can always find something I tices school law, corpo- rate law and commercial handling of the entire course of any legal could have handled better. It is amazing litigation as an associate matter. . . . how quickly an argument can deescalate attorney at Gold, Weems, I will not engage in personal attacks when one party begins with an apology for Bruser, Sues & Rundell. He on other counsel or the court. a misstep or a misunderstanding. Apologiz- is licensed to practice law in Louisiana and Kansas, ing does not mean conceding defeat for the and he is a member of the Note that the Code speaks of civility, overall dispute. The trick is to apologize Louisiana State Bar As- courtesy, fairness, cooperation, and a focus for what you can and then move on to the sociation’s Committee on on professional, as opposed to personal, meat of what you want to dispute. Such an the Profession. (jstokes@ goldweems.com; 2001 MacArthur Dr., P.O. Box confrontations. Nowhere does it state that approach shows good faith and willingness 6118, Alexandria, LA 71307-6118) an attorney must be a nice person. Nowhere to compromise. does it state that a lawyer must always give
Louisiana Bar Journal Vol. 62, No. 2 125 Discipline Reports REPORTING DATEs 6/4/14
REPORT BY DISCIPLINARY COUNSEL
Public matters are reported to protect the public, inform the profession and deter misconduct. Reporting date June 4, 2014.
Decisions possession of a controlled and dangerous the court as consent discipline on May substance. 16, 2014. JUDGMENT FINAL and Sean Daniel Alfortish, Kenner, Sonceree Smith Clark, Baton Rouge, EFFECTIVE on May 16, 2014. Gist: (2013-B-2424) Permanent disbarment (2014-B-0518) Public reprimand Failure to timely remit funds to a third ordered by the court on May 7, 2014. ordered by the court as consent discipline party; failure to provide full disclosure JUDGMENT FINAL and EFFECTIVE on April 4, 2014. JUDGMENT FINAL to a court about disbursal of funds; and on May 21, 2014. Gist: Criminal and EFFECTIVE on April 4, 2014. engaging in conduct prejudicial to the conviction for conspiracy to commit Gist: Neglect of a legal matter; failure administration of justice. mail, wire, identity document and health to communicate; and failure to promptly Michael A. Fenasci, New Orleans, care fraud. refund an unearned fee. (2014-OB-0826) Reinstated to the Johnny S. Anzalone, Alexandria, Seth Cortigene, Baytown, TX, practice of law ordered by the court (2014-B-0812) Interim suspension (2013-B-2022) Disbarment ordered by on May 23, 2014. JUDGMENT FINAL ordered by the court on May 16, 2014. the court on Feb. 14, 2014. Rehearing and EFFECTIVE on May 23, 2014. Elizabeth Ashley Brunet-Robert, denied on May 2, 2014. JUDGMENT Robert T. Garrity, Harahan, (2014- Ville Platte, (2013-B-2929) Suspended FINAL and EFFECTIVE on May 2, B-0468) Suspended for six months, for three years retroactive to Dec. 2014. Gist: Engaging in and assisting in fully deferred, subject to one-year 19, 2009, the date of her interim the unauthorized practice of law. supervised probation with conditions, suspension, ordered by the court on Craig Allen Davis, Lafayette, (2014- ordered by the court as consent discipline May 7, 2014. JUDGMENT FINAL and B-0749) Suspended for six months, on April 4, 2014. JUDGMENT FINAL EFFECTIVE on May 21, 2014. Gist: fully deferred, subject to one-year and EFFECTIVE on April 4, 2014. Gist: Engaging in criminal conduct, including unsupervised probation, ordered by Continued next page MEMBERS ALPHABETICALLYMEMBERS Advice and counsel concerning legal and judicial ethics
Defense of lawyer and judicial discipline matters
Representation in bar admissions proceedings
www.sswethicslaw.comPRACTICE OF FIELDS — Advice and counselLESLIE concerning J. S CHIFFlegal and judicialS TEVENethics — SCHECKMAN JULIE BROWN WHITE Over 25 Years’ Experience Former Special Counsel, Former Prosecutor, — Defense of lawyer and judicial discipline matters — Disciplinary Defense Counsel Judiciary Commission (1994-2008) Offi ce of Disciplinary Counsel (1998-2006) — Representation117 in W.bar Landry admissions Street proceedings — 829 Baronne Street 11715 Bricksome Avenue, Suite A-3 Opelousas, Louisiana 70570 New Orleans, Louisana 70113 Baton Rouge, Louisiana 70816 Phone (337)942-9771 • Fax (337)942-2821 Phone (504)581-9322 • Fax (504)581-7651 Phone (225)293-4774 • Fax (225)292-6579 [email protected] [email protected] [email protected]
LESLIE J. SCHIFF 20 Years’ Experience, Disciplinary Defense Counsel
126 August117 W. / SeptemberLandry Street 2014 SERVICES & EXPERT Opelousas, Louisiana 70570 Phone 337.942.9771 • Fax 337.942.2821 [email protected]
STEVEN SCHECKMAN Former Special Counsel, Judiciary Commission (1994-2008) 829 Baronne Street New Orleans, Louisana 70113 Phone 504.581.9322 • Fax 504.581.7651 [email protected]
JULIE BROWN WHITE Former Prosecutor, Office of Disciplinary Counsel (1998-2006) 11404 N. Lake Sherwood Ave., Suite A Baton Rouge, Louisiana 70816 Phone 225-293-4774 • Fax 225.293.6332 [email protected] DISCIPLINARY REPORT: UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA The following is a verbatim report of the matters acted upon by the United States District Court for the Eastern District of Louisiana, pursuant to its Disciplinary Rules. This information is published at the request of that court, which is solely responsible for the accuracy of its content. This report is as of June 4, 2014. Respondent Disposition Date Filed Docket No. Hugh Dumas Aldige (Reciprocal) Suspension. 5/13/14 14-466 Murphy F. Bell, Jr. (Reciprocal) Suspension. 5/13/14 14-521 Robert T. Garrity, Jr. (Reciprocal) Suspension. 5/16/14 14-857 Gregory Joseph Lewis, Jr. (Reciprocal) Suspension. 5/13/14 14-465
Discipline continued from page 126 defamation against a defendant based on court on April 4, 2014. JUDGMENT the defendant’s filing of a disciplinary FINAL and EFFECTIVE on April 18, Commingled earned fees with client funds complaint with ODC. 2014. Ms. Lacobee may not reapply in his trust account; and failed to provide a Kenneth S. Hill, Baton Rouge, (2014- for reinstatement until she has paid reasonable periodic accounting to a client. OB-0890) Permanent resignation from restitution to her clients and the costs of Scott M. Hawkins, Lafayette, (2014- the practice of law in lieu of discipline prior disciplinary proceedings, or made a OB-0195) Reinstated to the practice ordered by the court on May 21, 2014. good faith effort to do so, but in no event of law ordered by the court on March JUDGMENT FINAL and EFFECTIVE until two years have passed from the date 14, 2014. JUDGMENT FINAL and on May 21, 2014. Gist: Commission of a of the Supreme Court order denying her EFFECTIVE on March 14, 2014. criminal act (multiple DWI). reinstatement. James L. Hilburn, Baton Rouge, Jean-Marie Lacobee, Shreveport, J. Renee Martin, Baton Rouge, (2014- (2014-B-0763) Public reprimand ordered (2014-OB-0373) Reinstatement to the B-0895) Public reprimand ordered by by the court as consent discipline on practice of law denied ordered by the the court as consent discipline on May May 16, 2014. JUDGMENT FINAL and EFFECTIVE on May 16, 2014. Gist: Filed a petition for damages for Callihan Law Firm, LLC 9-LETTER WORD Representation in lawyer disciplinary complaints and proceedings for INDISPENSABLE Damon S. Manning Former Investigator, Prosecutor & 1st Assistant Disciplinary Counsel A: Paralegal 15 years experience with ODC (1998–2014) 14465 Wax Road, Suite A Baton Rouge, LA 70818 INVEST IN YOUR ANSWER (225)261-6929 [email protected] The New Orleans Paralegal Association’s Annual Education Seminar for Paralegals & Legal Assistants chrIstoVIch & KearneY, llp Friday, October 3, 2014 attorneYs at law 8:30 a.m. to 4:30 p.m. Hilton Doubletree Hotel DEFENSE OF ETHICS COMPLAINTS AND CHARGES 300 Canal St., New Orleans ♦ 7 Continuing Legal Education classes e. phelps GaY KeVIn r. tullY accredited by the National Federation of lIzaBeth ordes Paralegal Associations e s. c ♦ $130 for a full day (6 CLE credits) or $75 for a half day (4 CLE credits) (504)561-5700 For more information call 601 poYdras street, suIte 2300 (504) 309-0969 or visit new orleans, la 70130 www.nopa.onefi replace.com
Louisiana Bar Journal Vol. 62, No. 2 127 Discipline continued from page 127 Sect. 13 or seeking limited admission as No. of Violations an in-house counsel pursuant to Supreme 23, 2014. JUDGMENT FINAL and Settling a potential claim for legal Court Rule XVII Sect. 14. Ordered by EFFECTIVE on May 23, 2014. Gist: malpractice liability without advising the court on Feb. 14, 2014. JUDGMENT Failed to return a client file. the client in writing of the desirability of FINAL and EFFECTIVE on Feb. 28, Michael K. Powell, Lake Charles, seeking independent legal counsel...... 1 2014. Gist: Engaging in and assisting in (2014-OB-0829) Reinstated to the the unauthorized practice of law. practice of law ordered by the court on TOTAL INDIVIDUALS May 23, 2014. JUDGMENT FINAL and ADMONISHED...... 1 Admonitions (private sanctions, EFFECTIVE on May 23, 2014. often with notice to complainants, etc.) Kimberly Marie Richardson, New issued since the last report of misconduct Orleans, (2014-B-0621) Probation involving: revoked on April 25, 2014. JUDGMENT FINAL and EFFECTIVE on April 25, 2014. Gist: Failed to comply with the terms of her probation and her Lawyers Assistance Program contract. Newton B. Schwartz, Houston, TX, (2013-B-2172) Guilty of conduct which would warrant a three-year suspension from the practice of law if he was a member of the Louisiana bar, and ordered him enjoined for a period of three years from seeking full admission to the Louisiana bar or seeking admission to practice in Louisiana on any temporary or limited basis, including, but not limited to, seeking pro hac vice admission before a Louisiana court pursuant to Supreme Court Rule XVII
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128 August / September 2014 Client AssistanceFund Fund Payments
Client Assistance Fund Payments - Nov. 2013, Feb. & May 2014
Attorney Amount Paid Gist Paul W. Bairnsfather $1,000.00 #1412 – Unearned fee in a custody matter Bruce A. Craft $3,000.00 #1537 – Unearned fee in a criminal matter Bruce A. Craft $5,580.21 #1455 – Conversion in a workers’ comp. matter Bruce A. Craft $2,300.00 #1495 – Unearned fee in a domestic matter Bruce A. Craft $2,250.00 #1508 – Unearned fee in a domestic matter Bruce A. Craft $845.00 #1504 – Unearned fee in a domestic matter Bruce A. Craft $500.00 #1506 – Unearned fee in a domestic matter Bruce A. Craft $3,500.00 #1497 – Unearned fee in a real estate matter Bruce A. Craft $11,015.58 #1494 – Unearned fee in a divorce matter Bruce A. Craft $5,000.00 #1514 – Unearned fee in a custody matter Bruce A. Craft $7,500.00 #1467 – Unearned fee in a domestic matter Bruce A. Craft $3,500.00 #1516 – Unearned fee in a domestic matter Bruce A. Craft $4,500.00 #1498 – Unearned fee in a domestic matter Bruce A. Craft $7,500.00 #1541 – Unearned fee in a domestic matter Bruce A. Craft $2,585.00 #1538 – Unearned fee in a community property matter Claire R. Deslatte $550.00 #1458 – Unearned fee in an adoption Jo Anne Fleming $11,000.00 #1482 – Unearned fee in a domestic matter Douglas K. Hall $2,000.00 #1460 – Unearned fee in a custody matter Keisha Jones Joseph $1,100.00 #1503 – Unearned fee in a criminal matter James E. Moorman III $3,500.00 #1518 – Unearned fee in a domestic matter James E. Moorman III $3,350.00 #1539 – Unearned fee in a domestic matter Nicholas S. Morphis $7,500.00 #512 – Conversion in a personal injury matter Madison F. Mulkey $500.00 #1526 – Unearned fee in an estate planning matter Heather M. Murphy $3,700.00 #1502 – Unearned fee in a succession Charles T. Phillips II $675.00 #1451 – Unearned fee in a domestic matter Kenota L. Pulliam $3,500.00 #1169 – Unearned fee in a criminal matter Robert B. Purser $25,000.00 #1463 – Conversion Robert B. Purser $1,500.00 #1472 – Unearned fee in a domestic matter Robert B. Purser $2,500.00 #1512 – Unearned fee in a DUI matter Robert B. Purser $2,500.00 #1525 – Unearned fee in a succession Robert B. Purser $5,000.00 #1507 – Conversion in a community property matter Iona A. Renfroe $1,950.00 #1442 – Unearned fee in a custody matter C. Hearn Taylor $2,500.00 #1519 – Unearned fee in a post-conviction relief matter Rebecca L. Vishnefski $4,920.00 #1486 – Unearned fee in an immigration matter
Louisiana Bar Journal Vol. 62, No. 2 129 Recent Developments ADMINISTRATIVE LAW to Taxation
the requestor 65 days later that the records reports are exempt from disclosure, again would not be produced because they were noting that the custodian relied on jurispru- statutorily exempt. Suit was filed and the dence which did not support that contention; Administrative trial judge ordered that (1) the records be i.e., such records are subject to disclosure if Law produced, (2) the defendant pay attorneys’ the conviction of the person named in them fees and costs, and (3) the custodian pay is final. Finally, the court noted that the penalties of $5,000 ($100 per day) as custodian is personally liable for payment provided by law. The custodian appealed. of the civil penalty (in this case pegged at Read the Cases Upon In Innocence Project New Orleans v. $5,000), which amount was affirmed. Which You Rely New Orleans Police Dept., 13-0921 (La. The court went on to deny the Innocence App. 4 Cir. 11/6/13), the appeals court held Project’s claim for damages for frivolous The Innocence Project New Orleans that the trial court judgment be affirmed appeal because it did not answer the appeal submitted a public records request to the in all respects. as required by La. C.C.P. art. 2133. New Orleans Police Department through The court noted that the custodian’s its records custodian, Superintendent argument that he was in “good faith” was —Brian M. Bégué Ronal W. Serpas. The request sought not supported by the jurisprudence he cited. Chair, LSBA Administrative Law Section records relative to the 1991 conviction of In fact, he relied on a case which supported 2127 Dauphine St. Mr. Brown, which was a final judgment as the opposite contention. The court went on New Orleans, LA 70116 of 1993. Serpas, through counsel, notified to reject the custodian’s argument that police
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130 August / September 2014 it needs to move Detroit’s bankruptcy case NEWS01/305070141/detroit-bankruptcy- along. Tresa Baldas, Matt Helms and Alisa expenses-cost. Alternative Priddle, “How mediation has put Detroit The Jones Day Law Firm submitted Dispute bankruptcy on the road to resolution” (Feb. more than $16.6 million in fees and nearly 2, 2014), www.freep.com/article/20140202/ $734,000 in other expenses as of Decem- Resolution NEWS01/302020063/Orr-Snyder-Rosen- ber 2013. Id. The Dentons Law Firm, Detroit-bankruptcy. hired to represent the official committee While Detroit’s use of mediation is ex- for Detroit’s retirees, billed $4.4 million Mediation is Making a pediting the bankruptcy process overall, the in fees and $185,550 in expenses. Id. The process is considerably more confidential city’s restructuring consultant, Conway Difference in Detroit than the average municipal bankruptcy. All MacKenzie, billed $5.3 million in fees and mediation proceedings are confidential and almost $17,000 in expenses. Id. These costs Municipal bankruptcy proceedings only the terms of the settlement are presented are high even though many of the law firms can be contentious, lasting several years to the bankruptcy court for approval. Mi- and consultants have agreed to discount their and involving intense courtroom battles. chael Bathon, “Detroit Judge Rosen Named hourly rates. For example, court-appointed However, the use of mediation in Detroit’s Mediator in City’s Bankruptcy” (Aug. 13, fee examiner Robert Fishman has agreed municipal bankruptcy has put the city on a 2013), Bloomberg Business Week, retrieved to reduce his typical hourly rate of $675 to faster road to recovery. Confidential me- Aug. 13, 2013. $600 an hour. Id. Overall, experts expect diation sessions convened by Chief U.S. Patton Hahn noted that the mediation final legal costs to exceed $100 million. District Judge Gerald Rosen have produced process could rub some taxpayers the wrong While the price tag may be high, the use positive results. Judge Rosen was appointed way because “Detroit is a public entity. Its of mediation may be restraining even higher by U.S. Bankruptcy Judge Steven Rhodes true stakeholders are its citizens, and there’s costs. Many people questioned Detroit’s to lead mediations between Detroit and a clash between the goals of mediation — ability to modify any of its pension obliga- its creditors. Breakthroughs in Detroit’s which is to simply get to a result — and the tions in a bankruptcy process. There were bankruptcy process include an agreement public interest, which is to know the content 109 filed objections to Detroit’s eligibility to set aside $800 million of private and state of [negotiations].” Tresa Baldas, Matt Helms for Chapter 9 bankruptcy protection. “Order money to rescue the city’s pension fund. and Alisa Priddle. Additionally, the high legal Regarding Eligibility Objections Notices of Mediation agreements also have helped to fees for attorneys representing parties in the Hearings and Certifications Pursuant to 28 significantly reduce the city’s debt and long- bankruptcy process could cause citizens to U.S.C. § 2403(a) & (b),” U.S. Bankruptcy term liabilities and assisted in restructuring ask exactly what they are paying for, which Court for the Eastern District of Michigan, the city’s government. Legal experts credit could intensify the demand for disclosure in Aug. 26, 2013, retrieved Sept. 4, 2013. The much of the progress in Detroit’s bankruptcy the mediation process. use of mediation brought Detroit past those proceedings to the use of quick rulings and Detroit’s emergency manager, Kevyn concerns and also brought about substantive aggressive mediation. Some legal experts Orr, allocated $62.5 million to pay the fees progress. For example, on May 2, 2014, the project, based on the timetable set by Judge and expenses of Detroit’s consultants and board of directors of the Detroit Retired Rhodes, that Detroit could resolve its bank- lawyers. Law firms and consultants could City Employees Association (DRCEA) ruptcy approximately one year after it filed earn up to $36 million in legal fees for supported a 4.5 percent cut in pension for protection from creditors, which would just the last quarter of 2013. Matt Helms, benefits for retired city workers as well as a be a significant accomplishment. In com- “Detroit bankruptcy costs hit $36M in reduction of their Cost of Living Allowance parison, it took Orange County, California, 2013, expected to soar in 2014” (May 7, (COLA). DRCEA’s loss of COLA can be one year and six months to emerge from its 2014), www.freep.com/article/20140507/ restored depending upon the performance 1996 declaration, which at the time was the largest municipal bankruptcy in U.S. history. Municipal bankruptcies rarely involve mediation. However, the estimated $18 billion to $20 billion of debt at issue in A Fresh Perspective Detroit’s bankruptcy called for a unique On Your Case solution. Detroit’s bankruptcy is now the highest valued municipal bankruptcy in U.S. history. Detroit’s problems were not created by a single debt issue, but rather by extensive infrastructure issues, insolvent pension plans and many other difficulties. Patton Hahn, an attorney who worked on the municipal bankruptcy of Jefferson County, Alabama, Mock Trials | Jury Focus Groups believes that the use of mediation has given www.tomfoutzadr.com the bankruptcy court in Detroit the resources 14056.FTZ_lsba-4.75x2.375_.indd 1 6/11/14 2:52 PM
Louisiana Bar Journal Vol. 62, No. 2 131 of the General Retirement System under of BIA assets to EBIA. The trustee filed a the Plan of Adjustment that must be pre- motion for summary judgment against EBIA sented to the bankruptcy court. Associated and the bankruptcy court granted the motion Press, “Detroit Retired City Employees Bankruptcy for the trustee on all claims, including the Association supports bankruptcy plan,” Law fraudulent conveyance claims. On appeal, www.myfoxdetroit.com/story/25415548/ the district court conducted de novo review detroit-retired-city-employees-association- and affirmed. supports-bankruptcy-plan#ixzz333EzYnbb. During the pendency of EBIA’s appeal This type of successful mediation result may Proper Procedural to the 9th Circuit, the U.S. Supreme Court encourage remaining parties to re-double decided Stern v. Marshall, 131 S.Ct. 2594 their efforts to reach agreements on other Treatment of “Stern (2011), which held that “Article III of the issues that can be incorporated into a fair, Claims” Constitution did not permit a bankruptcy balanced and fully agreed-upon Plan of Ad- court to enter final judgment on a counter- justment to be presented to the bankruptcy Executive Benefits Ins. Agency v. Arkison, claim for tortious interference, even though court for confirmation. 12-1200, 2014 WL 2560461 (U.S. June final adjudication of that claim by the bank- 9, 2014). ruptcy court was authorized by [28 U.S.C. § —William Wratee Nicolas Paleveda and his wife owned 157(b)].” In light of Stern, EBIA moved to Graduate, LSU Paul M. Hebert and operated Bellingham Insurance Agency, dismiss its appeal for lack of jurisdiction ar- Law Center, and Inc. (BIA). In 2006, BIA became insolvent guing that the bankruptcy court did not have Student Mediator, LSU Civil and Paleveda used BIA funds to incorporate the authority to finally decide the trustee’s Mediation Clinic Executive Benefits Insurance Agency, Inc. fraudulent conveyance claims. The 9th Under the Supervision of (EBIA) and “initiated a scheme to transfer Circuit rejected EBIA’s motion and affirmed Paul W. Breaux, LSU Adjunct assets from BIA to EBIA.” Later in 2006, the district court, finding that because EBIA Clinical Professor, and BIA filed for Chapter 7 bankruptcy and Pete had impliedly consented to the bankruptcy Chair, LSBA Alternative Dispute Arkison was appointed as the trustee. The court’s jurisdiction, the bankruptcy court’s Resolution Section trustee subsequently filed a complaint in the adjudication of the fraudulent conveyance 16643 S. Fulwar Skipwith Rd. Bankruptcy Court for the Western District of claims was permissible. The U.S. Supreme Baton Rouge, LA 70810 Washington alleging fraudulent conveyance Court granted certiorari.
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132 August / September 2014 The Supreme Court began its analysis enter findings of fact and conclusions The Bankruptcy Court for the Western by noting an unanswered question left of law to the district court for de novo District of Wisconsin denied the exemp- in the wake of Stern. Specifically, while review. As the district court in the present tion, reasoning that because an inherited Stern held that “Article III prohibits Con- case had already conducted such de novo IRA does not make distributions to a gress from vesting a bankruptcy court review, any procedural or consensual errors person’s retirement, it is not a retirement with the authority to finally adjudicate were cured as the parties were afforded to fund within the meaning of section 522(b) certain claims,” Stern did not address proper judicial review regardless of any (3)(C). The district court reversed, finding how courts should proceed when faced improper final judgments entered by the that the retirement funds exemption covers with such “Stern claims,” where a claim bankruptcy court. any account containing funds “originally is designated for final adjudication in the Importantly, the Supreme Court pro- accumulated for retirement purposes.” bankruptcy court as a statutory matter, but vided clarity as to this issue, but refused The 7th Circuit reversed the judgment of the court is simultaneously prohibited from to decide “whether Article III permits a the district court, finding that “inherited proceeding in that way as a constitutional bankruptcy court, with the consent of the IRAs represent an opportunity for current matter. The Supreme Court reviewed the parties, to enter final judgment on aStern consumption, not a fund of retirement history of modern bankruptcy legislation, claim.” Id. at *4 n. 4. The Supreme Court savings.” recognizing that federal district courts have expressly “reserve[d] that question for The U.S. Supreme Court granted cer- original jurisdiction in bankruptcy cases another day.” tiorari to resolve the 7th Circuit ruling with and may refer to “core” and “non-core” a conflicting case from the 5th Circuit,In proceedings to bankruptcy judges. In those Inherited IRAs Not re Chilton, 674 F.3d 486 (2012), 571 U.S. core proceedings, the bankruptcy judges ____ (2013). The Supreme Court began its may hear and determine the claims and Exempt in Bankruptcy analysis by establishing that “retirement enter orders and judgments. As to those Proceedings funds” are properly understood to mean non-core proceedings which are “other- “sums of money set aside for the day an wise related to” the bankruptcy case, the Clark v. Rameker, 13-299, 2014 WL individual stops working” and that any bankruptcy judges may enter findings of 2608860 (U.S. June 12, 2014). inquiry into whether funds are “retirement fact and conclusions of law for the district Heidi Heffron-Clark and her husband, funds” must be an objective review of the court’s de novo review, unless the parties Brandon C. Clark (collectively, the debt- legal characteristics of the account. The consent to the bankruptcy judge’s entry of a ors), filed for Chapter 7 bankruptcy. Prior Supreme Court reviewed the three legal final judgment. However, in light ofStern , to the bankruptcy, Mrs. Heffron-Clark in- characteristics of an inherited IRA as bankruptcy courts were prohibited from herited her mother’s individual retirement compared to a traditional IRA. First, the entering final judgments regarding certain account (IRA) and the account transformed holder of an inherited IRA is not permitted “core” claims of tortious interference. into an “inherited IRA account.” Once the to make any contributions to the account, Addressing how bankruptcy courts bankruptcy was filed, the debtors sought to whereas the purpose of a traditional IRA are to proceed when faced with Stern have the inherited IRA excluded from their is to create a tax incentive for regular claims, the Supreme Court reviewed the bankruptcy estate using the “retirement contributions to a person’s retirement ac- severability provision of 28 U.S.C. § 157 funds” exemption of 11 U.S.C. § 522(b)(3) count. Second, while a traditional IRA is which allows those provisions deemed (C). The trustee and the unsecured creditors designed for distribution upon retirement, invalid under Article III to be severed of the estate challenged the exemption on an inherited IRA from a non-spouse is without affecting the remainder of the the grounds that an inherited IRA is not required to be distributed within five years statute. Therefore, where a claim otherwise “retirement funds” within the meaning of of the original owner’s death or through an satisfies section 157(c) governing non-core the Bankruptcy Code. annual distribution. This causes the inher- provisions, a bankruptcy court is to “treat the Stern claim as non-core.” Assuming that the fraudulent convey- ance claims at issue are Stern claims, the Supreme Court determined them to be non- core, “related to” claims as they assert “that property that should have been a part of the bankruptcy estate and therefore available for distribution to creditors pursuant to Title 11 was improperly removed.” Find- ing that the fraudulent conveyance Stern claims fit comfortably within those claims governed by section 157(c), the Supreme Court held that the same procedure should apply, i.e., the bankruptcy court should
Louisiana Bar Journal Vol. 62, No. 2 133 ited IRA to diminish over time regardless that because section 522(b)(3)(C) imposes of proximity to the holder’s retirement age. two conditions for exemption, namely that Lastly, the holder of an inherited IRA is the funds must be “retirement funds” and Civil Law permitted to withdraw the entire balance of they must be held in a covered account, and the account for any purpose at any time. A the debtors’ interpretation would render Litigation traditional IRA prohibits such withdrawals the first condition superfluous as the funds without penalty, encouraging traditional of an inherited IRA could be used for any IRA holders to leave the funds untouched purpose. Reasoning that the statute should until retirement. not be construed so as to render any portion Supreme Court Holds The Supreme Court next reviewed superfluous, the Supreme Court affirmed the purpose of the Bankruptcy Code ex- the decision of the 7th Circuit, finding that Survival Actions emptions, namely to effectuate a balance because inherited IRAs do not bear the Are Prescriptive Not between the interest of the creditors and defining legal characteristics of retirement Peremptive the debtors. When debtors are permitted to funds, they are not entitled to exemption exempt their traditional IRAs, it is to ensure pursuant to section 522(b)(3)(C). Patricia Watkins v. Exxon Mobil Corp., the debtors’ needs will be met during their 13-1545 (La. 5/7/14). retirement. On the other hand, an inherited —Tristan E. Manthey Plaintiff brought a survival action pur- IRA could be received as a windfall to the Chair, LSBA Bankruptcy Law Section suant to La. Civ.C. art. 2315.1 as a result debtors, giving them the entire balance of and of the death of her father in 1986. In the the account for any frivolous use, to the Alida C. Wientjes petition, filed on June 17, 2011, plaintiff detriment of the creditors. Member, LSBA Bankruptcy claimed that on June 22, 2010, she was Lastly, the Supreme Court reviewed the Law Section first made aware of the defendants’ use of debtors’ argument that because the funds Heller, Draper, Patrick, “naturally occurring radioactive material” were originally placed into an account Horn & Dabney, L.L.C. (NORM), which she believed led to her bearing the legal characteristics of a retire- Ste. 2500, 650 Poydras St. father’s death. ment fund, the current status of the account New Orleans, LA 70130 Because the suit was filed 25 years is immaterial. The Supreme Court found after decedent’s death, defendants as-
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134 August / September 2014 serted the claim should be perempted The second amendment to this article is and, therefore, dismissed. La. Civ.C. specific to the objection of the submitted art. 2315.1(A) sets out the action evidence. The article previously allowed “shall survive for a period of one year for the opponent to object via a written Corporate and from the death of the deceased . . . .” motion to strike, wherein the reasons for Business Law However, La. Civ.C. art. 2315.1(C) states, objection were stated; the current amend- “[T]he right of action granted under this ment retains this procedure but clarifies Article is heritable, but the inheritance the policy for service thereof. The article of it neither interrupts nor prolongs the now provides that these objections must Governor Signs New prescriptive period defined in this article.” be served pursuant to La. C.C.P. art. 1313. The court discussed the established Corporation Law principles for legislative interpretation, —Shayna Lynn Beevers On May 30, 2014, Gov. Jindal signed ultimately holding the Legislature is well Reporter, LSBA Civil Law and the Business Corporation Act (BCA) (Act acquainted with the distinction between Litigation Section No. 328), the first comprehensive revision prescriptive and preemptive and, by Beevers & Beevers, L.L.P. of Louisiana’s business corporation law choosing to define the time limitation 210 Huey P. Long Ave. since the current statute was originally as prescriptive, gave a clear and un- Gretna, LA 70053 adopted in 1968. Drafted by the reporter ambiguous intent for interpretation and and of the Louisiana State Law Institute’s application. J. Robert Ates Corporations Committee, the BCA was Chair Emeritus, LSBA Civil Law and submitted to the Legislature on the Law Legislative Changes Litigation Section Institute’s recommendation. The BCA Ates Law Firm, A.P.L.C. will take effect on Jan. 1, 2015, and will The 2014 regular legislative session Ste. A, 13726 River Rd. be codified at La. R.S. 12:1-101et seq. concluded on June 2. During the session, Destrehan, LA 70047-5012 The BCA is based on the Model more than two dozen bills were filed to Business Corporation Act, written and address the way civil lawsuits are handled 20219-Cardone-VirtualOfficeAd_20219-Cardone-VirtualOfficeAdcontinuously 10/23/13revised by9:44 the AM Committee Page 1 in Louisiana.
Jury Threshold A hot topic this session was the reduc- tion of the jury threshold. There were propositions to allow for a trial by jury in a tort case regardless of the amount of the claim, or, in the alternative, to allow for a reduction in the threshold for a jury trial. These bills failed early on in the ses- sion. The jury threshold for tort claims in VIRTUAL OFFICE Louisiana remains $50,000.
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Louisiana Bar Journal Vol. 62, No. 2 135 on Corporate Laws of the American Bar such events. of shares in exchange for promissory Association’s Business Law Section. ► The law will, by default, exculpate consideration. Approximately 30 states have adopted all the corporation’s directors and officers ► The BCA generally makes it easier or substantially all of the Model Act, and from liability to the corporation and its for shareholders to exercise dissenters’ many other states have adopted selected shareholders for money damages for any rights. Where dissenters’ rights apply, provisions. The Model Act and the BCA act or failure to act as a director or officer, the BCA entitles dissenters to the arms’ are substantially longer than the current except for breaches of the duty of loyalty, length fair value of their shares, without Louisiana Business Corporation Law, but the intentional infliction of harm on the discounts for minority status or lack of it is hoped that the additional detail con- corporation or shareholders, the payment marketability. In limited circumstances, tained in the BCA will address questions of unlawful dividends or an intentional appraisal rights are a shareholder’s ex- that have arisen under current law. The law violation of criminal law. A corporation clusive remedy and foreclose the share- contains comments explaining the areas wishing to reject this limitation of liability holder’s ability to bring a fiduciary duty where it departs from the Model Act to must affirmatively “opt out” through a suit challenging a transaction. preserve existing law or for other reasons. statement in the articles of incorporation. ► The BCA contains a withdrawal A complete analysis of the new law ► The law eliminates the concept of remedy not available under current law is beyond the scope of this article, but legal capital, the requirement of stated for an oppressed shareholder if the cor- some of the noteworthy changes in the capital and capital surplus, and the con- poration’s practices over a period of time BCA from existing law are highlighted. cept of treasury shares. However, the are “plainly incompatible” with a genuine ► The BCA’s default shareholder law retains a “dual insolvency” standard, effort by the corporation to deal fairly and vote for the approval of extraordinary now requiring that dividends cannot be in good faith with the shareholder. If the corporate transactions such as business paid if the corporation would not be able remedy applies, the corporation must pay combinations or amendments to the ar- to pay its debts as they become due or the shareholder fair value for his shares ticles of incorporation is a majority of the if its total assets would be less than its or may instead elect to seek a judicial corporation’s outstanding voting power, total liabilities plus any amount needed dissolution of the corporation. The law unless the articles specify a greater vote. to satisfy the liquidation preference of provides that this is the exclusive remedy Current law requires a vote of two-thirds preferred stockholders. for a claim of oppression. of the voting power present for most ► The BCA permits the issuance ► Current Louisiana law provides a
136 August / September 2014 mechanism for the approval of transac- them. The 6th Circuit rejected this recent tions between the corporation and its interpretation in Summit Petroleum Corp. directors or officers, so-called “self-deal- v. EPA, 690 F.3d 733, 735 (6 Cir. 2012), ing” transactions. However, current law Environmental holding that “EPA’s determination that does not validate self-dealing transactions Law the physical requirement of adjacency can if the required approvals are obtained, but be established through mere functional rather merely provides they are not auto- relatedness is . . . contrary to the plain matically voidable. By contrast, the BCA meaning of the term ‘adjacent.’” The affirmatively validates such transactions Circuit Strikes Down court vacated EPA’s determination that a if the required procedures are followed. natural gas sweetening plant and sour gas ► The BCA permits written unani- EPA’s Attempt to production wells, which were dispersed mous governance agreements among Restrict Applicability of over 43 square miles, constituted a single shareholders, which can contain provi- Judicial Decision source. In response, EPA issued the sions that deviate from the governance Summit Directive stating that, although provisions of the BCA, including the total In National Environmental the agency may no longer consider elimination of the board of directors or Development Association’s Clean Air interrelatedness in determining adjacency the limitation of its powers. Project v. EPA, 13-1035, 2014 U.S. App. in the 6th Circuit, “[o]utside the 6th Circuit ► The BCA eliminates the limita- LEXIS 10047 (D.C. Cir. May 30, 2014) . . . EPA does not intend to change its . . . tion under current law on the term of a (NEDACAP), the U.S. Court of Appeals practice of considering interrelatedness.” voting trust. for the District of Columbia Circuit Industry challenged the Summit ► The law rejects the demand futility vacated an Environmental Protection Directive, and the D.C. Circuit held that doctrine for derivative suits under current Agency (EPA) directive instructing EPA the directive violated EPA’s “regional law and implements the Model Act’s uni- regions to disregard the 6th Circuit’s consistency” regulations in 40 C.F.R. Part versal demand rule. A board composed of source aggregation decision outside 56, which “strongly articulate EPA’s firm a majority of disinterested directors (or a the 6th Circuit. The court held that the commitment to national uniformity in the committee of such directors) can obtain directive violated EPA’s regulations, application of its [air] permitting rules,” a dismissal of the suit if the directors which require EPA to maintain national with no exemption for variance created determine in good faith after reasonable uniformity when implementing the Clean by a judicial decision. NEDACAP, 2014 inquiry that it is not in the best interests Air Act. U.S. App. LEXIS 10047 at *23-24. EPA of the corporation. EPA regulations provide that multiple argued that the Clean Air Act contemplates ► Section 1-120 of the BCA contains pollutant-emitting activities may be divergence between circuit courts and a set of unified filing rules specifying the aggregated and considered a single thus permits the agency to apply varied signing, notarization and filing procedures source under the Clean Air Act Title standards in different circuits. The court to be followed for any document to be V and New Source Review permitting never reached this statutory issue because filed under the BCA with the Secretary programs if the activities are, inter alia, it concluded that EPA’s regulations of State. Documents filed electronically “adjacent.” While EPA’s interpretation precluded the Summit Directive by need not be notarized. of “adjacent” has fluctuated over time, requiring uniformity. Similarly, the ► The BCA reduces the “grace pe- EPA has recently interpreted “adjacent” court reasoned that the “intercircuit riod” for failure to file an annual report to include consideration of the functional nonaquiescence” doctrine (providing that from three years to 90 days. If the report interrelatedness of emission units, in an agency may maintain its independent is not filed timely after notice from the addition to the physical distance between assessment of the statutes and regulations Secretary of State, the corporation’s exis- tence terminates, but the law permits the corporation’s existence to be reinstated during a period of three years after the termination.
—Maureen Brennan Gershanik Chair, LSBA Corporate and Business Law Section Fishman Haygood Phelps Walmsley Willis & Swanson, L.L.P. 201 St. Charles Ave., 46th Flr. Special Masters New Orleans, LA 70170 THOMAS KEASLER FOUTZ | HON. CAROLYN GILL-JEFFERSON (RET.)
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Louisiana Bar Journal Vol. 62, No. 2 137 it administers after one circuit disagrees action that state and local governmental contractual claims and the pursuit of with the agency’s position, in the hope entities have related to certain coastal certain administrative remedies. Act that other circuits, the Supreme Court or activities is under the Louisiana State and 544 is a response to the 2013 lawsuit Congress will later uphold the agency’s Local Coastal Resources Management brought by the Southeast Louisiana position) does not allow EPA to ignore its Act (SLCRMA). Specifically, the act Flood Protection Authority-East against own regulations. states that: numerous energy companies related to In the wake of NEDACAP, EPA coastal oil and gas activities. The Act 544 could amend its regional consistency [e]xcept as provided in [the amendments apply “to all claims existing regulations to account for regional SLCRMA], no state or local or actions pending on the Act’s effective variances created by a judicial decision or governmental entity shall have, date . . . .” modify its source aggregation regulations nor may pursue, any right or cause to include consideration of functional of action arising from any activity Act 400 interrelatedness. In the meantime, the subject to permitting under [the Act 400 amends Louisiana’s oilfield decision will likely curtail EPA’s use of SLCRMA], 33 U.S.C. 1344 [Clean cleanup law, La. R.S. 30:29 (commonly the functional interrelatedness test to Water Act wetlands permitting] or known as “Act 312”). Under Act 312, determine adjacency and its reliance on 33 U.S.C. 408 [Rivers and Harbors a defendant may request a preliminary intercircuit nonaquiescence in the air Act permitting] in the coastal area hearing to determine whether good cause permitting context. as defined by [the SLCRMA], or exists for maintaining the defendant as a arising from or related to any use party. Act 400 provides that if a defendant Amendments from 2014 as defined by [the SLCRMA], is dismissed under this preliminary regardless of the date such use or procedure, the defendant may recover Regular Session of the activity occurred. reasonable attorneys’ fees and costs from Louisiana Legislature the party who asserted the claim. Act Act 544 sets forth certain limited 400 reiterates that a defendant can make Act 544 exceptions to the prohibition on non- an admission of liability that is limited Act 544 provides that the sole cause of SLCRMA-based claims, including to responsibility for implementing the most feasible plan for remediation of the property but adds that, if a party makes such a limited admission, there shall be a rebuttable presumption that the plan ultimately approved by the Department of Natural Resources is the most feasible plan. Further, the court shall instruct the jury regarding this presumption if the party so requests. Act 400 also lists the specific types of damages that may be awarded in Act 312 cases. Finally, Act 400 provides that it “shall not apply to any case in which the court, on or before May 15, 2014, has issued or signed an order setting the case for trial, regardless of whether such trial setting is continued.”
—Lesley F. Pietras Member, LSBA Environmental Law Section and Stephen W. Wiegand Member, LSBA Environmental Law Section Liskow & Lewis, A.P.L.C. Ste. 5000, 701 Poydras St. New Orleans, LA 70139
138 August / September 2014 one was not needed, the court of appeal because, despite the existence of a consent named the mother as domiciliary parent. It judgment granting the mother sole custody, vacated the award of the child tax depen- terminating the biological father’s custodial Family dency deductions to the father as premature rights, and enjoining him from contacting Law because no child support order had yet been the mother and children, he failed to show entered. Although attorneys’ fees were not “just cause” for not attempting to contact recoverable under La. R.S. 9:355.6 for her the children, and because the adoption was relocation without providing notice, her in their best interest. Custody failure to provide notice did increase the costs of the litigation, so the trial court’s M.P.W. v. L.P.W., 13-0366 (La. App. 1 Cir. Bagwell v. Bagwell, 48,913 (La. App. 2 award of $500 attorneys’ fees to him was 11/1/13), 136 So.3d 37. Cir. 1/15/14), 132 So.3d 426. affirmed under La. R.S. 9:355.19. M.P.W.’s petition to annul a stipulated The parties’ stipulation that Bergeron judgment in which he agreed to terminate would not apply to a modification of custody Procedure/Evidence his custodial rights and awarded sole was enforced as not being against public custody to the mother was appropriately policy (although it appears that the previ- Parents of Minor Child v. Charlet, 13- dismissed on summary judgment because ous judgment was by consent, so Bergeron 0316 (La. App. 1 Cir. 10/12/13), 135 the stipulation was proper as to form, would not have applied anyway, although So.3d 724. having been dictated into the record in open some testimony seems to have been taken Because communication shared with a court, under oath. The mother’s waiving of before the prior agreement was reached). priest during confession is a confidential her rights to child support was not contra communication made to a clergyman, the bones mores, nor was his agreeing to sign Barber v. Green, 49,049 (La. App. 2 Cir. priest is not a mandatory reporter even when a voluntary act of surrender. Because the 2/19/14), 134 So.3d 1223. the confession is by a minor regarding her waiver of child support was tied to the act The trial court changed the parties’ al- being sexually abused by another member of surrender so as to allow the children to ternating weekly physical custody schedule of the church. There is no private or civil be adopted by the mother’s new husband, to less time for the father because of his cause of action against such a clergyman the biological father’s obligations of rotating work schedule as a fireman, which support and custody would have been since there is no mandatory duty to report. LA Bar Journal Ad 9/21/11 3:44 PM Page it found caused too much “shifting” in the There is no cause of action for negligent giv- terminated anyway and assumed by the schedule. The court of appeal reversed and ing of advice given during the confession. restored the original schedule, finding that the father provided more continuity and Parents of Minor Child v. Charlet, 13- CHAFER ROUP LTD stability and that the old schedule had less S G 2879 (La. 4/4/14), 135 So.3d 1177. Certified Public Accountants “shifting” than the one imposed by the The Supreme Court granted writs, re- When you need a forensic accountant, trial court. The court of appeal also stated versed the court of appeal and reinstated call on a professional. that his mother, who helped him with the the trial court’s judgment, holding that the children while he was working, was more child could waive the privilege regarding than a mere “third party” and that there was her confession to the priest, and that the “Knowledge of business, finance value in the children having time with their priest had no independent right to claim a and accounting may be needed grandmother. privilege because he could only raise the at any stage of the litigation privilege “on behalf of the person” who process. Therefore, we can be Custody/Relocation made the confession. Further, whether the an important member of any priest had a mandatory duty to report the successful litigation team. Randazzo v. Prosperie, 13-0704 (La. App. child’s claims of abuse was a question to be From contemplation of action to 1 Cir. 9/13/13), 135 So.3d 22. determined by the fact finder at trial, includ- expert testimony, we can complement attorneys in In determining both custody and reloca- ing whether the communications between ways that increase the likelihood of a desired outcome. tion as initial judgments, the court had to the child and priest were actually confes- We can support your litigation efforts to save you time apply both the La. Civ.C. art. 134 and La. sions, and whether the priest had knowledge and strengthen your case.” R.S. 9:355.14 factors. The trial court’s award outside of the confessional that would lead of alternating weeks between the father in to a duty to report the child’s claims. —Kernion T. Schafer, CPA Louisiana and the mother in Texas of this not-yet-school-aged child was not an abuse Adoption S OUTH S HORE AND N ORTH S HORE O FFICES of discretion and fostered the relationship METAIRIE MANDEVILLE 701 Aurora Avenue • Suite A 435 Girod Street • Suite B between the child and his extended families In Re B.L.M., 13-0448 (La. App. 1 Cir. Metairie, Louisiana 70005 Mandeville, LA 70448 in both states. Because the trial court did not 504.837.6573 985.626.4066 11/1/13), 136 So.3d 5. Forensic Accounting • Emerging Issues • Financial Services name a domiciliary parent, or explain why This intrafamily adoption was affirmed Litigation Services • Legal Services • Emerging Business
Louisiana Bar Journal Vol. 62, No. 2 139 adopting parent. The transcript of the inconsistent to impute her income for stipulation showed no ill practices, duress child support purposes since it found that or deprivation of legal rights. His change of she was entitled to rehabilitative support. Insurance, Tort, heart or bad bargain made did not provide The trial court did not err in ordering Mr. Workers’ grounds for relief. Fontana to pay 100 percent of the children’s Compensation & tuition because he had been paying it under Admiralty Law Final Spousal Support a temporary agreement and she had little income, especially compared to his. Mr. Fontana v. Fontana, 13-0916 (La. App. Fontana’s contempt for late payment of Medical Expenses 4 Cir. 2/12/14), 136 So.3d 173. child support was reversed because the Incurred Although Ms. Fontana had some income parties had deviated by custom from the terms of the judgment, and his untimely and inherited assets, she was still entitled Ashley Hoffman, et al. v. Travelers payment was not in willful disobedience; to final spousal support as a rehabilitative Indemnity Company of America, 13- further, amounts due for certain expenses award for three years to obtain a degree. 1575 (La. 5/7/14), ____ So.3d ____. were uncertain and were due on an However, the court of appeal reduced the Ms. Hoffman, injured in an auto uncertain date. award by deleting support for entertaining, accident, was treated at Baton Rouge charities, salon, health club, pet, other and General Medical Center (BRMC) under —David M. Prados miscellaneous cash. Her attorneys’ fees an agreement by which she assumed Member, LSBA Family Law Section were allowed to remain as an expense responsibility for payment of all charges. Lowe, Stein, Hoffman, Allweiss category. Because the father’s income BRMC’s charges totaled $713.67. Under & Hauver, L.L.P. was greater than the highest guideline terms of a contract with AETNA, her Ste. 3600, 701 Poydras St. amount, the court could use its discretion parents’ insurer, the hospital billed her at a New Orleans, LA 70139-7735 to set the child support award based on the discounted rate of $485.29, which she paid. expense sheet provided by Ms. Fontana’s Travelers received an itemized bill from CPA expert. The court found it would be BRMC that did not reflect the discount and issued payment to Ms. Hoffman in the full amount. After learning of the contractual discount, Travelers sought reimbursement from Ms. Hoffman for the difference. Her suit alleged Travelers’ non-compliance is pleased to announce the addition of the following mediators: with its policy for failing to pay the full amount of the bill. Travelers moved Steven C. Judice for summary judgment, arguing it had Partner at Keogh, Cox and Wilson, LLC complied with the policy because it paid Ms. Hoffman for “expenses incurred,” i.e., $485.29. The trial court denied the motion and the 1st Circuit Court of Appeal denied David C. Clement Travelers’ writ for supervisory review. The Founding Member with Supreme Court granted Travelers’ writ and Clement Gates & May remanded to the court of appeal for briefing, argument and full opinion. On remand, the court of appeal G. Trippe Hawthorne considered the issue: Partner at Kean Miller, LLP [W]hether “expenses incurred,” as stated in the medical payment provision of plaintiff’s automobile I. René DeRojas liability policy, means the full amount of the medical expenses charged by Attorney with McCranie, Sistrunk, a treating hospital in connection Anzelmo, Hardy, McDaniel & Welch with plaintiff’s automobile accident,
or the reduced amount of medical Phone 225-389-9899 for Scheduling expenses accepted by the hospital 721 Government Street, Suite 102 Baton Rouge, LA 70802 due to a contractual agreement with www. perrydampf.com plaintiff’s health insurer.
140 August / September 2014 The court concluded that “‘expenses earlier. In Watkins v. Exxon Mobil Corp., the district court, finding that the 1986 incurred’ constitutes the full amount of 13-1545 (La. 5/7/14), ____ So.3d ____, the amendment to article 2315.1 made the medical expenses charged by the treating court clarified that survival actions under period prescriptive rather than peremptive, hospital and that the trial court properly Louisiana law are subject to prescriptive allowing for contra non valentem to denied [Travelers’] motion for summary rather than peremptive periods, opening suspend the running of the prescriptive judgment.” The opinion repeatedly the door for plaintiffs to file suit within one period. Watkins v. Exxon Mobil Corp., referred to the discount as a “windfall” to year of knowing of their cause of action, 12-0477 (La. App. 4 Cir. 5/29/13), 117 which Travelers was not entitled. Judge rather than one year from the date of death So.3d 548. Higginbotham, concurring, further stated, of the victim. The Louisiana Supreme Court, per “[T]he meaning of the term [‘expenses The plaintiff, Patricia Watkins, filed suit Justice Guidry, looked to the plain language incurred’] is subject to interpretation on June 17, 2011, setting forth claims under of article 2315.1, legislative intent and of the parties’ intent, and is, therefore, wrongful death and survival action relating policy considerations in affirming the 4th inappropriate for summary judgment.” The to the death of her father, who had died on Circuit’s ruling that the one-year time court cited two 3rd Circuit cases, Thomas Dec. 27, 1986. The plaintiff alleged that limitation is a period of prescription rather v. Universal Life Ins. Co., 201 So.2d 529 her father had been exposed to naturally than peremption, and remanded the case to (1967), and Niles v. American Bankers Ins. occurring radioactive material (NORM) the district court for further proceedings. Co., 229 So.2d 435 (1969). by the defendants and claimed that, under Watkins v. Exxon Mobil Corp., 13-1545, The Supreme Court found these rulings the principle of contra non valentem, she p. 12 (La. 5/7/14), ____ So.3d ____. By inapposite to the case at bar, citing instead, did not have notice of her causes of action allowing survival action claims to be with approval, Drearr v, Connecticut until June 22, 2010, making her filing of brought more than a year after the death General Life Ins. Co., 119 So.2d 149 (La. June 17, 2011, within one year of having of the victim, the court expanded the rights App. 4 Cir. 1960), and Brackens v. Allstate knowledge of her claim. of victims’ families to file survival action Ins. Co., 339 So.2d 486 (La. App. 2 Cir. The defendants filed exceptions of claims if prescription has been interrupted 1976). In both cases, plaintiffs received prescription, preemption and no cause or suspended. As the period is prescriptive treatment without charge, to which they of action, which were sustained by the rather than peremptive, survivors may were entitled, at Veterans Administration district court, finding the one-year time bring their claims even years after the hospitals. The appeals courts concluded period governing survival actions to be victim’s death, which could lead to a flurry that the plaintiffs “incurred” no expenses peremptive under La. Civ.C. art. 2315.1(A) of survival actions from claimants who, and, therefore, were not entitled to and, therefore, not capable of renunciation, for years, were unaware they could even payments under their insurance contracts. interruption or suspension, even under the bring such a claim. doctrine of contra non valentem. Thus, Because we find Travelers paid the the court dismissed the plaintiff’s suit as —Michael S. Finkelstein expenses incurred by Ms. Hoffman untimely since it had been filed more than Usry, Weeks & Matthews, A.P.L.C. in accordance with the terms of its a year after the death of her father. On 740 Emerald St. policy, we find that Travelers has appeal, however, the 4th Circuit reversed New Orleans, LA 70124 fully performed under the insurance contract and is entitled to summary judgment. —John Zachary Blanchard, Jr. National Past Chair, LSBA Insurance, Tort, Workers’ Compensation and Collision Admiralty Law Section Michael S. Gillen 90 Westerfield St. Technologies Bossier City, LA 71111 Accident Reconstruction Services (225) 924-7756 Inc. Survival Action Subject (225) 924-7762 Fax to Prescriptive Rather P.O. Box 14953, Baton Rouge, LA 70898-4953 Than Peremptive Period [email protected] • www.NCTIGroup.com
A decision by the Louisiana Supreme National Collision Technologies, Inc., (dba NCTI), is a private corporation Court could have far-reaching repercussions specializing in the technical investigation and reconstruction of traffic collisions. Our firm has been conducting accident reconstruction in the private sector in allowing individuals to bring claims for since 1993. We serve both plaintiff and defense firms and have provided survival action when the victim died years expert testimony in Federal, Military, State and local courts.
Louisiana Bar Journal Vol. 62, No. 2 141 or political independence of Ukraine;” and ongoing obligations to monitor and ► Whether Russian interference and report suspicious transactions relating to International intervention in Crimea violates three Black foreign senior political figures, including Law Sea Fleet agreements dividing up Soviet former Ukrainian President Victor military warships stationed in Crimea Yanukovych (U.S. Department of the and granting Russia leasehold interests Treasury Financial Crimes Enforcement in Crimean naval facilities through 2042. Network, Advisory, Updated Guidance The Black Sea Fleet agreements require to Financial Institutions on Recent Ukraine and Russia Russian military forces to “respect Events Related to the Departure of the sovereignty of Ukraine, honor its Victor Yanukovych and Other Ukrainian Political events in Ukraine beginning legislation and preclude interference in Officials). in November with pro-European protests the internal affairs of Ukraine.” ► The EU initiated sanctions against in Kiev and culminating in March with the A full discussion of the broad legal Russia at an extraordinary meeting of annexation of Crimea by Russia exposed questions is beyond the scope of the European Commission on March 6, a plethora of international legal issues, this article. Ukraine lodged formal 2014. The EU suspended bilateral talks including some matters of first impression. complaints at both the United Nations with Russia on visa and trade matters The broader international legal issues and the International Criminal Court, and preparations for the G8 Summit in include, inter alia: where most of the complex public and Sochi, Russia. The G8 summit was held in ► Whether the Russian minority private international legal issues will be Brussels on June 6, 2014, without Russian in Crimea and Eastern Ukraine validly addressed. Russia launched a complaint participation for the first time in 17 years. executed their jus cogens right of self- at the World Trade Organization regarding ► The United States and the EU determination to become part of Russia the U.S. sanctions regime, discussed infra. acted again on May 17, 2014, following or an autonomous region of Ukraine; the annexation referendum in Crimea. ► Whether Russian interference Economic Sanctions The United States imposed sanctions and intervention in Crimea and Eastern In addition to major legal questions blocking the assets and prohibiting Ukraine violates the Ukrainian right of of public and private international law, transactions with four Ukrainian territorial integrity codified in the 1975 the political events generated a myriad individuals and seven high-level Russian Helsinki Final Act of the Conference of economic sanctions that directly and officials (Office of Foreign Assets on Security and Cooperation in Europe, immediately impact international business Control, Changes to List of Specially which requires Russia to “refrain . . . transactions and investments. U.S. law on Designated Nationals and Blocked from the threat or use of force” against sanctions, export controls and financial Persons List since January 1, 2014 at Ukraine and requires that Russia “respect due diligence are difficult to comply with 7-8). The EU imposed an asset freeze the territorial integrity of” Ukraine; under ordinary circumstances. The broad and travel ban on 21 persons (Council ► Whether Russian interference sanctions issued by the United States, Regulation No. 269/2014, March 17, and intervention in Crimea and Eastern Canada, the European Union (EU) and 2014). The EU list was expanded to add Ukraine violates the 1994 Budapest Australia increase the pressure on counsel an additional 12 individuals on March Memorandum whereby Ukraine with client interests in the region. 21, 2014 (Council Regulation No. transferred its nuclear arsenal to Russia The following is a brief overview and 284/2014). in exchange for Russia’s reaffirmation of summary of major sanctions. ► The broadest sanction regime was its “obligation to refrain from the threat or ► On March 6, 2014, President imposed by the United States on March use of force against the territorial integrity Obama entered Executive Order No. 20, 2014. The United States expanded 13660 (Blocking Property of Certain the list of sanctioned individuals by 20 Persons Contributing to the Situation and also specifically targeted Russian LOUISIANA Bar Today in Ukraine) authorizing the first set of financial institution Bank Rossiya. economic sanctions against Russia under Nine sectors of the Russian economy Get the latest Louisiana State the International Emergency Economic also were targeted, including financial Bar Association news in the Powers Act. The Executive Order did services, energy, metals and mining, free, bi-weekly emailed not name particular individuals or engineering, and defense and related institutions, but set forth the general material (Office of Foreign Assets update. It’s easy to subscribe. intention of the United States to target Control, Ukraine-Related Designations: persons or individuals engaged in illicit Specially Designated Nationals List Go to: financial activity or political activity Update). www.lsba.org/goto/LBT destabilizing Ukraine. ► Russia responded in March by ► On March 6, 2014, the U.S. issuing its own retaliatory sanctions Department of the Treasury issued an banning travel and freezing the assets of, advisory regarding financial institutions’ inter alia, Senators John McCain, Harry
142 August / September 2014 Reid and Mary Landrieu. joint venture partners and others where Russia,” April 28, 2014, available at: ► The United States, the EU, Canada the designated company or individual www.bis.doc.gov/index.php/about- and Australia have continued to add has a 50 percent or greater interest. bis/newsroom/press-releases/107- further designations to the sanction list Violations of these sanctions can result about-bis/newsroom/press-releases/ since March. Currently 100 individuals in civil penalties up to $250,000 or twice press-release-2014/665-commerce- and 21 entities are subject to sanction in the value of the transaction, whichever dept-announces-expansion-of-export- one or more of the countries listed above. is greater. Criminal penalties of 20 restrictions-on-russia). years’ imprisonment are available for BIS primarily governs “dual use” Effect on International Business intentional or willful violations of the items that have both a commercial and What does the sanction regime mean sanctions. military application. For now, the BIS for U.S. or other international business? Every attorney representing compa- ban appears to apply prospectively only, First, any designated individuals or nies doing business overseas must con- with no impact on existing licenses. entities are subject to a visa ban and duct significant due diligence to confirm However, BIS always has the authority asset freeze, including all assets located they are not conducting business either to modify or revoke prior licenses. Any in the United States or in the possession with a specifically designated individual business exporting goods to Russia or the of a U.S. citizen. Guidance provided by or entity, or an entity that is controlled region that are subject to export licenses the Office of Foreign Asset Controls by a designated individual or entity. should double check the license status governs the scope of assets that may Second, the sanctions imposed and reconfirm with its consignees that be blocked, which can include future an indefinite hold on export licenses goods sent to neighboring countries are contingent interests (Ukraine-Related for certain U.S. goods, services or not being re-exported to Russia. Sanctions Regulations, 31 C.F.R. Part technologies to Russia. The U.S. 589, May 8, 2014). U.S. individuals and Department of Commerce’s Bureau of —Edward T. Hayes entities are prohibited from engaging in Industry and Security (BIS) announced Member, LSBA International transactions with designated individuals the suspension of export control licenses Law Section or entities, including any entities to Russia in its area of jurisdiction Leake & Andersson, L.L.P. that are owned or controlled by the (“Commerce Department Announces Ste. 1700, 1100 Poydras St. designated entities. This could include Expansion of Export Restrictions on New Orleans, LA 70163 THESE EYES HAVE IT
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Louisiana Bar Journal Vol. 62, No. 2 143 provision.) According to Villanueva, he 5th Circuit’s Decision raised concerns that his employer, acting After having his SOX whistleblower Labor and at the direction of Core Labs executives complaint dismissed at three different ad- Employment in Houston, engaged in improper transac- ministrative levels of review, Villanueva Law tions designed to underreport revenue for appealed his claim to the 5th Circuit. In a the purpose of reducing its tax burden in unanimous decision, the Villanueva court violation of Colombian law. After making affirmed the decision to dismiss Villan- these complaints, Villanueva was passed ueva’s charge but on narrower grounds 5th Circuit Limits over for a pay raise and eventually termi- than the Administrative Review Board. Whistleblower nated from his position. While agreeing that Villanueva’s claim Villanueva subsequently filed a charge failed because SOX’s protections are Protections, But Leaves with the Occupational Safety and Health limited to the reporting of violations of Open Extraterritorial Administration (OSHA), the agency certain United States laws, the 5th Circuit charged with investigating alleged viola- explicitly declined to address the question Application tions of SOX. Villanueva’s administra- of whether SOX applies extraterritorially, tive charge alleged that the withholding despite an amicus brief from the DOL urg- Villanueva v. U.S. Dep’t of Labor, 743 of his pay raise and the termination of ing the court to do so. Had the 5th Circuit F.3d 103 (5 Cir. 2014). his employment were in retaliation for accepted the government’s invitation, it The U.S. 5th Circuit Court of Appeals his previous complaints and, therefore, would have been the first federal appellate held that the whistleblower protections violated SOX’s whistleblower provision. court to address whether SOX’s whistle- of the Sarbanes-Oxley Act (SOX) do However, OSHA found that it did not blower provisions apply to complaints not apply to individuals who make com- have jurisdiction over Villanueva’s charge made outside the United States. plaints regarding violations of foreign because the complained-of acts (i.e., the Perhaps recognizing that the 5th Cir- law as opposed to U.S. law. Although the denial of the pay raise and subsequent cuit would limit the application of SOX Villanueva decision narrowed the scope termination) took place outside of the to complaints regarding U.S. laws, Vil- of SOX’s whistleblower protections, the United States in Colombia. lanueva argued in the alternative that his three-judge panel specifically declined After receiving the adverse determi- complaint implicated U.S. law because to address the question of whether SOX nation from OSHA, Villanueva sought his charge included an allegation that tax has extraterritorial application. Thus, it further review of that decision before an fraud “was being perpetrated in Colombia remains an open question in the 5th Circuit administrative law judge (ALJ). The ALJ at the express direction of Core Lab[s]’s as to whether SOX’s whistleblower provi- agreed with OSHA’s determination to dis- executives in Houston using mail, email sion applies to complaints originating in miss Villanueva’s charge, reasoning that and telephones to accomplish the fraud.” foreign countries but involving alleged Villanueva’s complaints would require The 5th Circuit, however, found this single violations of U.S. law. extraterritorial application of SOX and reference insufficient to demonstrate that Given the procedural posture of the that such application was impermissible Villanueva had a reasonable belief that case, Villanueva also highlights the because the statute does not apply extra- U.S. mail and wire fraud statutes had been importance of the standard of review territorially. The ALJ likewise held that violated. Although the 5th Circuit agreed employed by a reviewing court. Because he lacked jurisdiction over Villanueva’s that an employee need not cite a specific the Villanueva court was analyzing the whistleblower complaint. code section to come within the scope of order of an administrative court, it applied Villanueva then appealed the ALJ’s SOX’s whistleblower protections, it held a deferential standard of review when decision to the Department of Labor’s that the thrust of Villanueva’s complaint conducting its examination. Villanueva, (DOL) Administrative Review Board, was the alleged underreporting of taxes therefore, provides an excellent illustra- which, in a 3-2 en banc decision, held that in violation of Colombian law rather than tion of the difficulties associated with it had jurisdiction over the complaint but U.S. law and, therefore, was insufficient challenging an administrative decision nonetheless affirmed the ALJ’s dismissal to constitute protected activity under the at the appellate level. of the case. In particular, the board held statute. that SOX’s whistleblower provision did One notable, but perhaps overlooked, Procedural History not apply extraterritorially and the facts aspect of the 5th Circuit’s decision is the The plaintiff, William Villanueva, underlying Villanueva’s complaint, i.e., impact of the standards of review it applied was a Colombian national formerly em- a non-U.S. citizen residing in Colombia to the Administrative Review Board’s ployed with a Colombian subsidiary of alleging violations of foreign laws, would determination that Villanueva’s OSHA Core Labs. (Core Labs is a Netherlands require extraterritorial application. For charge fails to raise violations of U.S. company whose stock is publicly traded these reasons, the board concluded that law. Because the board’s order dismissing in the United States and, therefore, is an Villanueva’s complaints did not constitute Villanueva’s claim was governed by the entity covered by SOX’s whistleblower protected activity under SOX. Administrative Procedure Act, the 5th
144 August / September 2014 Circuit reviewed that decision under abuse donation “as part of an economic devel- of discretion and substantial evidence opment project pursuant to a cooperative standards. Given these deferential stan- endeavor agreement between the acquir- dards, the 5th Circuit affirmed the board’s Mineral ing authority and the state through the De- finding that Villanueva’s charge did not Law partment of Economic Development . . ., allege violations of U.S. law “because a the prescription of nonuse shall be for a reasonable person could have reached period of twenty years from the date of the same conclusion as the [board].” Had acquisition whether the title to the land the board reached a different conclusion Mineral Code remains in the acquiring authority or is regarding the scope of Villanueva’s al- subsequently transferred.” legations and found them to implicate Article 149 U.S. law, the 5th Circuit may well have Mineral Code Article 149 provides reached the same determination given the Legacy Litigation that, when land is acquired by certain limited scope of judicial review. types of “acquiring authorities” (primarily La. R.S. 30:29(B)(6) allows a defen- government agencies or other entities with dant in a legacy litigation case to request —Christopher L. Williams expropriation authority, and nonprofit a preliminary hearing early in the litiga- Member, LSBA Labor and Employment land conservancy groups), and the person tion to determine whether there is good Law Section from whom the land is acquired reserves a cause for maintaining the defendant in Proskauer Rose, L.L.P. mineral right that is subject to prescription the litigation. The provision provides Ste. 1800, 650 Poydras St. of nonuse, prescription will remain inter- for a dismissal without prejudice if no New Orleans, LA 70130 rupted as long as the acquiring authority evidence is introduced at the hearing to or any successor-in-interest that is an show that the moving party caused or acquiring authority owns the land. Acts is otherwise legally responsible for the 2014, No. 473, adds a new provision to contamination alleged. If such a defen- Mineral Code Article 149. It states that, if dant is dismissed without prejudice, the LaPorte LSJB Ad'13D_Layout 1 11/4/13 11:02 AM“an Page acquiring 1 authority or other person” defendant can be rejoined in the litigation acquires land by contract, exchange or later if new evidence is discovered. If the
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Louisiana Bar Journal Vol. 62, No. 2 145 defendant is not rejoined prior to the end Cooperative Endeavor State and Local Coastal Resources Manage- of the lawsuit, the defendant is entitled ment Act of 1978); 33 U.S.C. 1344 (part of the to a dismissal with prejudice. Acts 2014, Agreements for Purchase Clean Water Act); or 33 U.S.C. 408 (part of No. 400, amends this provision to provide of Surface Water the Rivers and Harbors Appropriation Act of that, if such a defendant is never rejoined, 1899) — or that arises from “use” or activity the defendant is entitled to reasonable La. R.S. 30:961 authorizes the Depart- in the coastal zone, “regardless of the date such attorneys’ fees and costs. ment of Natural Resources to enter coopera- use or activity occurred.” The legislation states Act 400 also adds a new section which tive endeavor agreements that grant persons that nothing in the new section precludes any states that, if a defendant makes a limited the right to withdraw running surface government entity from enforcing contract admission of liability as allowed by R.S. waters in the state of Louisiana in return for claims or from pursuing any administrative 30:29, there will be a rebuttable presumption payment of fair market value. The statute remedies. Act 544 states that it applies to that the plan approved by the Department of previously prohibited the Department from pending actions, as well as claims asserted Natural Resources, after consultation with entering any new cooperative endeavor after the effective date of the legislation. An the Department of Environmental Quality, agreements after Dec. 31, 2014, though objective of the supporters of Act 544 is to stop is the most feasible plan for remediation. existing agreements could be extended to litigation in which the Southeast Louisiana In addition, Act 400 amends R.S. a date no later than Dec. 31, 2020. Acts Flood Protection Authority-East has sued 30:29 to state that money damages “may 2014, No. 285, changes the deadline for nearly 100 oil and gas companies, blaming be awarded only” for: (1) the costs of the Department to enter new cooperative the companies for coastal erosion and seeking funding the feasible plan; (2) the cost of endeavor agreements to Dec. 31, 2016. billions of dollars in compensation. additional remediation only if required by an express contractual provision providing Coastal Erosion Litigation City’s Annexation of for remediation to original condition or to some other specific remediation standard;” Acts 2014, No. 544, amends La. R.S. Parish Road 49:214.36 to add a section stating that “no (3) costs of evaluating or correcting dam- Chesapeake Operating, Inc. v. City of state or local governmental entity shall have, ages “caused by unreasonable or excessive Shreveport, 48,608 (La. App. 2 Cir. 2014), nor may pursue, any right or cause of action operations;” and (4) “nonremediation” 132 So.3d 537. arising from any activity” in the coastal area damages. The City of Shreveport and Caddo Parish that is “subject to permitting under” one of disputed which of them was entitled to the three statutes — La. R.S. 49:214.21 (part of the royalties attributable to the area occupied by certain roads located within units where J Chesapeake operated productive wells. The Pro Bono Heroes: Providing ustice for All beds of the roads had been owned by Caddo With being a lawyer, comes privilege. The justice Parish, but the City of Shreveport had an- nexed an area that included the roads. The system as a whole is extremely expensive. We City asserted that the annexation had the effect of transferring ownership of the roads have a moral and ethical duty to not only help to the City and that the City, therefore, had the right to the royalties attributable to the those less fortunate, but to provide access to our justice roadbeds. The Louisiana 2nd Circuit agreed, holding that the annexation had the effect system, especially to those who cannot afford it and do not of transferring ownership of the roads to the City. Therefore, the City was entitled have the knowledge to navigate through to the disputed royalties.
the complications. —Keith B. Hall Member, LSBA Mineral Law Section Louisiana State University – Michele M. Echols Paul M. Hebert Law Center Echols & Associates, L.L.C. 1 E. Campus Dr. and volunteer with North Shore Pro Bono Project Baton Rouge, LA 70803 Covington, LA and Colleen C. Jarrott ustice F Member, LSBA Mineral Law Section Pro ing J or A vid ll Slattery, Marino & Roberts, A.P.L.C. Access to Justice Ste. 1800, 1100 Poydras St. Louisiana State Bar Association www.lsba.org/ATJ New Orleans, LA 70163
146 August / September 2014 absent a claim against Schumpert for its the PCF and gave Dr. Foret no offsetting individual negligence, there is “effectively credit for the settlement. only one defendant in this case,” and, thus, Dr. Foret contended on appeal that the Professional all panelists must be physicians, under the trial court should first have reduced the Liability clear and unambiguous language of Section award to the statutory cap of $500,000 1299.47(C)(3)(j). and then again reduced that amount by the $600,000 paid by the PCF, which would Physician’s Liability mean he owed nothing. He asserted that Panel Composition the PCF settlement was “an advanced pay- After Settlement ment” under the LMMA, and, therefore, In Re Vankregten, 48,622 (La. App. 2 Cir. with PCF a payment for which he must be given 2/5/14), 134 So.3d 641. credit because: Mr. Vankregten’s survivors filed a re- Fruge v. Foret, 13-1071 (La. App. 3 Cir. quest for a medical review panel, naming 3/5/14), 134 So.3d 152. A plaintiff is not entitled to recover as respondents a hospital and two of its Following a split panel decision, damages from the [fund] before nurse-employees. They then nominated a and prior to trial, the plaintiff accepted an admission of liability has been nurse as a panelist. The hospital objected $600,000 from the PCF in full settlement made by the defendant [healthcare] because the nominee was not a physi- of all claims against it, while reserving provider, then recover again after a cian. The petitioners refused to nominate rights against Dr. Foret. Following Mr. judgment has been rendered against a physician, contending that the claimed Fruge’s trial against Dr. Foret, the court the defendant [healthcare]provider. negligence was by two nurses and that found Dr. Foret negligent and awarded the Louisiana Medical Malpractice Act Fruge $700,000 in general damages and Fruge countered that his settlement (LMMA) allows healthcare providers of approximately $66,000 in future medical with the PCF had no legal effect on Foret’s the same class and specialty to serve on expenses. The trial court reduced the award liability for his $100,000 (plus interest) panels. to $500,000, under La. R.S. 40:1299.42(B) exposure. The attorney chair notified the parties (1), and found Dr. Foret’s liability was In its reasons for judgment, the he did not have authority to decide the limited to $100,000 plus interest. The judg- trial court relied on two provisions of the question, following which the hospital ment said nothing about the settlement with LMMA. La. R.S. 40:1299.42(C) provides moved to compel petitioners to withdraw the nomination of the nurse and to substitute a physician in her place. Does La. R.S. 40:1299.47 allow a registered nurse to serve on a panel involv- Community Action Committee & ing only a hospital and two of its nurse- employees? All parties stipulated, and the ‘WEEN DREAM Partnering for court accepted, that there were no reported Halloween Costume Donations Louisiana cases addressing this issue. Eligibility for medical review panel ser- vice is set forth in La. R.S. 40:1299.47(C) The Louisiana State Bar Association/Louisiana Bar Foundation’s Community (3)(j). The controlling sentence reads: “If Action Committee is assisting the ‘WEEN DREAM program in the collection there is only one party defendant which is of new and/or slightly used Halloween costumes for children in need. a hospital, community blood center, tissue Law firms, attorneys and legal professionals wishing to donate should drop off bank, or ambulance service, all panelists costumes at the Louisiana Bar Center, 601 St. Charles Ave., New Orleans, on except the attorney shall be physicians.” Monday and Tuesday, Nov. 3-4, during business hours (8:30 a.m.-4:30 p.m.). Schumpert (the hospital) argued there Costumes may simply be placed in bags. There is no labeling or sorting process is only one party defendant, despite the required. ‘WEEN DREAM volunteers will handle the sorting process and match nurses also having been named as parties, the costumes to children for Halloween 2015. (Costumes that were donated after because those nurses were the hospital’s Halloween 2013 are being distributed to children for 2014.) employees, and they would not be sepa- For more information, contact Krystal Bellanger Rodriguez at (504)619-0131 or rately liable for any acts of negligence; email [email protected]. only Schumpert would be. All negligence allegations in the panel request were against the nursing staff, with no allegation of independent negligence by the hospital. The appellate court concluded, in affirming the trial court’s decision, that
Louisiana Bar Journal Vol. 62, No. 2 147 that an advanced payment by a healthcare Sanders presented evidence that his provider to anyone for injuries or dam- orthopedic expert (Dr. Leitman) passed ages suffered by the plaintiff may not be the exams on his second attempt, pos- construed as admission of liability. Section sessed many impressive qualifications and Taxation 1299.42(D)(2) provides that advanced skills, had outstanding academic training, payments inure to the exclusive benefit of with military service after medical school, the defendant or his insurer who makes the had performed several hundred surgeries payments. The PCF is neither a defendant of the kind Sanders underwent, and had healthcare provider nor an insurer. The worked under the head team physician for Taxpayer Refund court reasoned that the PCF settled prior the Philadelphia Eagles and Philadelphia Requests Do Not to trial to “protect its own interests.” Sec- Flyers, as well as for several high school tion 42(D)(2) is unambiguous: Advanced and minor league baseball teams. Interrupt Prescription payments inure to the exclusive benefit Dr. Ballard countered that the failure in Favor of Collector of the defendant or his insurer. Dr. Foret of Dr. Leitman’s certification exam was paid nothing; therefore, he can receive no relevant and highly probative of his quali- Cajun Industries, L.L.C. v. Vermilion credit to apply to the judgment against him. fications and knowledge. Dr. Ballard also Parish School Board, 14-22 (La. App. In affirming the trial court’s ruling, the argued that Sanders’ attorney raised board 3 Cir. 5/14/14), ____ So.3d ____, 2014 appellate court found “clear” the LMMA’s certification in tendering Dr. Leitman as an WL 2107047. language that advanced payments inure expert witness and that “board certification The 3rd Circuit Court of Appeal re- only to the “defendant or insurer making was relevant to an expert’s knowledge of versed in part a trial court’s decision to the payment.” accepted standards of practice and the grant a motion to strike and an exception expert’s training and experience.” of prescription filed by Cajun Industries, Failure to Pass Board The appellate court noted that while Dr. L.L.C. (Cajun). The motion and exception Leitman was accepted as an expert, the were in response to the Vermilion Parish Certification Exams jury weighed the testimony of all of the School Board’s (the collector) reconven- experts and decided the case based on the tional demand for offset of additional taxes Sanders v. Ballard, 48,714 (La. App. 2 weight of the evidence. Given the “great due against Cajun’s suit for refund of sales Cir. 2/14/14), 134 So.3d 1205, writ denied, discretion” of trial judges in determining and use taxes. The 3rd Circuit held that 14-0565 (La. 4/25/14). relevancy and admissibility, the court’s the collector had the right to offset tax A jury found that Dr. Ballard breached determination concerning “relevancy and liabilities against any refund found to be the standard of care owed to Mr. Sanders but admissibility should not be overturned due to Cajun, but held that Cajun’s filing that the breach caused no injury to Sanders absent a clear abuse of discretion.” of a refund request did not interrupt pre- that would not have otherwise occurred. scription for taxes that were not assessed Sanders posed several arguments on —Robert J. David by the collector within the constitutionally appeal, one of which involved the denial Gainsburgh, Benjamin, David, Meunier prescribed period. of his motion in limine to prevent the & Warshauer, L.L.C. Cajun paid sales and use taxes on defendant from cross-examining Sander’s Ste. 2800, 1100 Poydras St. certain purchases it made from 2007-10. expert about his failing his board certifica- New Orleans, LA 70163-2800 Cajun later asserted that the purchases tion exams on his first attempt. were exempt from tax. In December 2010, “Can you see me now?” Easily join video calls without leaving the room - use your office computer, iPad, iPhone, Android device and connect with others who may be on a wide range of video systems. Attend a video conferencing meeting at the Louisiana bar center. Reserve a conference room today at www.lsba.org/goto/MeetingRooms Video Conference Video Coming soon to Lafayette, Baton Rouge and Shreveport Conference bar associations! Another benefit of membership from the Louisiana State Bar Assocation
148 August / September 2014 Cajun filed a claim for refund of the taxes. and 2011 years were not. and held title to the property. The De- In May 2011, Cajun filed a claim for an partment’s approach was in derogation additional refund for sales and use taxes —Antonio Charles Ferachi of Louisiana’s statutory protection for paid in 2010-11. The collector granted Member, LSBA Taxation Section LLCs, Louisiana’s obligation under the a partial refund and formally denied the Louisiana Department of Revenue U.S. Constitution to provide full faith remainder. Cajun filed a petition for refund 617 North Third St. and credit to the laws of Montana, and in the 15th Judicial District Court in May Baton Rouge, LA 70821-4064 the assessed individual’s constitutional 2013. The collector filed an answer and right to due process. The court suggested reconventional demand against Cajun for Department Erred that pursuing an assessment against the statutory offset, stating that it expected LLC first and then looking to Montana to find delinquent taxes, interest and in Issuing Assessment law in order to find personal liability on penalties owed by Cajun for the disputed to Member of the part of the individual member of the periods, 2007-11. Cajun filed a motion to LLC should have been the Department’s strike and an exception of prescription, Out-of-State LLC approach. which the trial court granted. The collec- Further, although personal liability tor appealed. In Thomas v. Bridges, 13-1855 (La. could have been imposed under Louisi- In reversing the matter, the 3rd Circuit 5/7/14), ____ So. 3d ____, the Louisiana ana law if the individual member of the addressed two questions: (1) whether Supreme Court held that the Department LLC had committed fraud, there was no the collector has the right to offset taxes of Revenue erred in assessing a mem- evidence offered that he had committed against any tax refund amount found due ber of an out-of-state limited liability fraud. Regarding the situation at hand, to a taxpayer; and (2) whether the filing of company for sales tax on the company’s the court stated “taking actions to avoid a refund request by a taxpayer interrupts purchase of a recreational vehicle. The sales tax does not constitute fraud” and prescription in favor of taxes that have not individual was a Louisiana resident who “[a] finding that the formation of an LLC been assessed within the constitutionally formed a Montana LLC admittedly to solely for tax avoidance and not for any prescribed period set forth by La. Const. avoid Louisiana sales tax on the pur- ‘legitimate’ purpose constitutes fraud art. 7, § 16? chase of a recreational vehicle since would have destabilizing implications In rejecting Cajun’s reliance on the Montana does not impose sales tax on for Louisiana law.” Additionally, the Louisiana Civil Code concept of compen- the purchase of vehicles by its residents, court declined to examine the Depart- sation, the 3rd Circuit relied on La. R.S. including resident LLCs. After the LLC ment’s arguments regarding the doctrines 47:337.78 and La. R.S. 47:337.81(C). Re- purchased the RV and did not pay sales of substance over form and economic lying on the aforesaid statutory provisions, tax to Louisiana, the Department of Rev- substance since the Department raised the 3rd Circuit found that the collector enue pursued the individual rather than those issues for the first time in its appeal. had the right to credit any overpayment the LLC and issued an assessment to the Although the court was sympathetic to against liability owed by a taxpayer and individual for taxes owed on the vehicle. the Department’s policy arguments, it assert any demand for tax due for the The court found that the Department found that the issues in this case involved period involved in the claim for refund. clearly erred in assessing the individual policy considerations that should be In addition, the 3rd Circuit found that rather than the LLC, essentially ignoring addressed by the Louisiana Legislature none of the instances in which prescrip- the separate existence of the LLC before rather than the court system. Finally, the tion can be interrupted and suspended establishing any valid basis for doing so. court rejected the Department’s assertion under La. R.S. 47:337.67 were applicable. After assessment and over the course of that the lower courts failed to dismiss the The collector asserted that Cajun’s first the proceedings, the Department’s at- suit on account of the plaintiff neglect- claim for refund filed on Dec. 10, 2010, torneys offered various theories for why ing to follow the procedure for posting prevented the running of prescription and the assessment against the individual was bond and determined that the statements opened up the entire disputed period for appropriate, but the court was dismissive made by the Board of Tax Appeals to the collector’s claims for taxes. The 3rd of these undeveloped theories in support the plaintiff effectively waived strict Circuit held that there was no statute or of the assessment and stated that the re- adherence to the bond provision in La. jurisprudence stating that a refund request cord did not contain any factual or legal R.S. § 47:1434. by the taxpayer interrupts prescription basis for assessing the individual directly. in favor of the collector. Considering With respect to one such theory, the court —Jaye A. Calhoun the foregoing, the 3rd Circuit ultimately held that the Department’s “after-the-fact and held that the collector’s reconventional appraisal the veil should be pierced” did Christie B. Rao demand to assess additional taxes for the not overcome the problems created by Members, LSBA Taxation Section 2007, 2008 and 2009 years were facially the Department’s approach of simply McGlinchey Stafford, P.L.L.C. prescribed but such demand for the 2010 ignoring the existence of the validly 601 Poydras, 12th Flr. formed Montana LLC, which acquired New Orleans, LA 70130
Louisiana Bar Journal Vol. 62, No. 2 149 Young Lawyers Message... Spotlight...
CHAIR’S MESSAGE Professionalism: Lessons Learned Early Last a Lifetime By J. Lee Hoffoss, Jr.
The need to re- advocacy does not mean that any tactic is my former boss, Mike Palmintier, would claim “civility” in acceptable or that effective advocacy re- say: “Type it out, read it and think — what the practice of law quires antagonistic or obnoxious behavior. would I think if I got a letter or email like has become a rally- Even if clients have ill feelings between this?” I have always tried to adhere to this ing cry in the profes- them, that does not justify ill feelings be- rule because when you take time to think sion.1 Lack of civility tween the lawyers. about what you have written, more often has been blamed on Over the past decade, new methods than not, you will rewrite it every time. everything from an of communication in the legal profession Another suggestion is to simply pick increase in the cost have lent themselves to a notable decrease up the phone and talk to the opposing of litigation to the J. Lee Hoffoss, Jr. in civility among lawyers. Instant commu- side. Verbal communication is much more cause of the public’s nication by email and text messaging has valuable in resolving conflicts because lost faith in the legal profession. To help made lawyers more reactionary and de- you can talk it out and not simply do the curb the lack of civility in the legal profes- fensive rather than thoughtful and consid- back-and-forth over email. sion, our Supreme Court established the erate. Oftentimes, because of our instinc- In closing, I recall nearly every day a annual requirement of continuing legal tive defense nature as lawyers, we tend to piece of advice from a senior lawyer when education credits in “professionalism.” take brevity of emails and text messaging I first began practicing: Your reputation is But what is “professionalism”? Merri- out of context because we are not commu- everything and how you treat other lawyers am-Webster defines it as “the skill, good nicating through voice, but typed words. will follow you throughout your career. If judgment, and polite behavior that is ex- As a result, we may respond without fore- you don’t take the time to engage in civil pected from a person who is trained to do thought . . . something that might come communication, you will be labeled in the a job well.” For the most part, as it is used back to haunt us for years to come. community as the lawyer who cannot be in the legal community contexts, it deals You should learn these lessons early on trusted and will have a tarnished reputation primarily with polite behavior and civility without having to experience them first- for a long time. Don’t learn these lessons among fellow lawyers. hand. We typically run “ninety to noth- the hard way. Keep an open line of verbal Some have noted a potential for natural ing” and are juggling dozens of cases each communication with your fellow lawyers. tension between a lawyer’s duty to repre- day. We don’t always take the time to pre- It makes all the difference. sent a client zealously and the emerging pare a proper response to an email or text duty to act in a professional and civil message, but instead toss something back FOOTNOTE manner in representation. But zealous equally as offensive. We lob bombs to one representation does not mean that one another and think this is just the nature of 1. Information in this article is attributed to the must become a zealot. Nor does civility the profession. Make a promise to your- “Report of the ACREL Working Group on Ethics or courtesy reflect weakness on the part self . . . don’t pick up this dirty habit. It and Professionalism,” Sept. 27, 2004; and Donald E. Campbell, “Raise Your Right Hand and Swear of the lawyer. For instance, The Missis- will haunt you for years. to Be Civil: Defining Civility as an Obligation sippi Bar underscores this point in its “A As a young lawyer, you should never fall of Professional Responsibility,” Gonzaga Law Lawyer’s Creed” by stating that effective prey to this method of communication. As Review, Vol 47:1, Nov. 2, 2011.
150 August / September 2014 LAJMembershipAd_Gold_withPaymentReference_Layout 1 6/6/2013 8:37 AM Page 1
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Louisiana Bar Journal Vol. 62, No. 2 151 Pate. He received a BS degree in crimi- teer Lawyers, he has handled multiple Young Lawyers nal justice in 2006 from the University divorce and child custody cases, assisted Spotlight of Louisiana-Lafayette and a MS degree in providing the homeless with legal as- in criminal justice in 2009 from the Uni- sistance through the Homeless Experi- Seth T. Mansfield versity of Cincinnati. Prior to entering ence Legal Protection (HELP) Program, Lafayette law school, he worked as a deputy in the and advocated for victims of domestic Patrol Division of the Lafayette Parish violence through the Protective Order The Louisiana Sheriff’s Office. He received his JD de- Panel. State Bar Associa- gree and graduate diploma in compara- He has received several awards for tion (LSBA) Young tive law in 2012 from Louisiana State his work, including the 2013 Lafayette Lawyers Division is University Paul M. Hebert Law Center. Volunteer Lawyers Outstanding Attor- spotlighting Lafay- He was admitted to practice in Louisi- ney Award, the 2013 LSBA Pro Bono ette attorney Seth T. ana in 2012. Century Award and the 2014 LSBA Mansfield. He is a member of the Lafayette Bar Young Lawyers Division Pro Bono Mansfield is an Association, the John M. Duhe, Jr. Inn Award. associate attorney at of Court and Lafayette Volunteer Law- the firm of Neuner- Seth T. Mansfield yers. As a member of Lafayette Volun-
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 Phone Number Alternate Phone Email Address Alexandria Area Richard J. Arsenault (318)487-9874 Cell (318)452-5700 [email protected]
Baton Rouge Area Ann K. Gregorie (225)214-5563 [email protected]
Covington/ Mandeville Area Suzanne E. Bayle (504)524-3781 [email protected]
Denham Springs Area Mary E. Heck Barrios (225)664-9508 [email protected]
Houma/Thibodaux Area Danna Schwab (985)868-1342 [email protected]
Jefferson Parish Area Pat M. Franz (504)455-1986 [email protected]
Lafayette Area Josette Abshire (337)237-4700 [email protected]
Lake Charles Area Melissa St. Mary (337)497-0022 [email protected]
Monroe Area John C. Roa (318)387-2422 [email protected]
Natchitoches Area Peyton Cunningham, Jr. (318)352-6314 Cell (318)332-7294 [email protected]
New Orleans Area Helena N. Henderson (504)525-7453 [email protected]
Opelousas/Ville Platte/ Sunset Area John L. Olivier (337)662-5242 (337)942-9836 [email protected] (337)232-0874
River Parishes Area Judge Jude G. Gravois (225)265-3923 (225)265-9828 [email protected] Cell (225)270-7705
Shreveport Area M’Lissa Peters (318)222-3643 [email protected]
For more information, go to: www.lsba.org/goto/solace.
152 August / September 2014 JUDICIAL Notes By David Rigamer, Louisiana Supreme Court New Judges... appointments
New Judges Albert A. are the parents of two children. Thibodeaux was ap- Stephen D. En- pointed as a magistrate Appointments right, Jr. was elected commissioner for Or- as judge of Division N, leans Parish Criminal ► Retired Louisiana Supreme Court 24th Judicial District District Court. He re- Chief Justice Pascal F. Calogero, Jr. was ap- Court, Jefferson Par- ceived his BA degree pointed, by order of the Louisiana Supreme ish. He received his in 1991 from Xavier Court, to the Judicial Campaign Oversight BS degree in 1990 and University and his JD Committee for a term of office ending on his JD degree in 1993 degree in 1996 from Albert A. April 30, 2018. from Louisiana State Tulane Law School. Thibodeaux ► L. David Cromwell and Robert P. University and its Paul Stephen D. He worked for the City of New Orleans as Thibeaux were appointed, by order of the M. Hebert Law Center. Enright, Jr. an assistant city attorney from 1997-2001 Louisiana Supreme Court, to the Committee He worked as a New Orleans prosecutor and as chief deputy city attorney from 2002- on Bar Admissions for terms of office which for three years before becoming a partner 10, where he managed the city’s general began July 1 and will end on June 30, 2019. in deLaup & Enright, L.L.C., law firm in litigation team. He served as of counsel to ► David R. Frohn was appointed, by Metairie. He also served as magistrate in Davillier Law Group, L.L.C., and as general order of the Louisiana Supreme Court, to Grand Isle. He and his wife Doni are the counsel to Landmark Consulting, L.L.C. the Committee on Bar Admissions, for a parents of four children. He is an adjunct professor of business law term of office which began on June 1 and at Xavier University. He and his wife Keely will end on May 31, 2019.
The Catholic Bishops of the State of Louisiana and the St. Thomas More Catholic Lawyers Association Invite All Members of the Bench and Bar to the Sixty-Second Annual Red Mass in honor of the Holy Spirit, to mark the opening of the Judicial Year and to invoke a Divine Blessing upon our Courts and Legal Proceedings Monday, October 6, 2014 9:30 o'clock am St. Louis Cathedral, New Orleans, La Assembly for Processing into the Cathedral 9:15 a.m. Reception to follow at the Louisiana Supreme Court For Information (504)899-5555
Louisiana Bar Journal Vol. 62, No. 2 153 People LAWYERS ON THE MOVE . . . NEWSMAKERS
City announces that Jerry Edwards Gieger, Laborde & Laperouse, L.L.C., LAWYERS ON and Melissa S. Flores have been named announces that Caitlin J. Hill, Jonathan THE MOVE shareholders/directors in the firm. Also, S. Ord and Bradley J. Schwab have joined Brian C. Flanagan and Rebecca S. Luster the firm’s New Orleans office as associates. Jennifer A. Bagalman and Frank P. have joined the firm as associates. Tranchina, Jr. announce the formation of Jacobs, Sarrat, Lovelace & Harris, Bagalman & Tranchina, L.L.P., with offices Attorney Kristian A. Gerrets joined A.P.L.C., in New Orleans announces that located at Ste. 310, 220 Sansome St., San Bourgeois Bennett CPAs & Consultants in Peter O. Cola has joined the firm as of Francisco, CA 94104. Metairie as director of business incentives counsel. and transaction tax. Baker, Donelson, Bearman, Caldwell Jones, Swanson, Huddell & Garrison, & Berkowitz, P.C., announces that Erin Carver, Darden, Koretzky, Tessier, Finn, L.L.C., announces that Bernard E. E. Pelleteri and Tyler L. Weidlich have Blossman & Areaux, L.L.C., announces Boudreaux, Jr. will lead the firm’s new been elected as shareholders in the New that Justin M. Chopin has joined the Baton Rouge office, located at Ste. 1920, Orleans office. firm’s New Orleans office as an associate. One American Place, 301 Main St., Baton Rouge, LA 70801. Attorney J. Wesley (Wes) Bearden Coats, Rose, Yale, Ryman & Lee announces announces the opening of Bearden that Daniel Lund III has joined the firm’s McCranie Sistrunk Anzelmo Hardy Investigative Agency Inc.’s New Orleans New Orleans office as a director. Also, McDaniel & Welch, L.L.C., announces that office, located at 829 Baronne St., New attorney Shailendra U. Kulkarni has joined Shannon Howard-Eldridge has joined Orleans, LA 70113; phone (504)581-9322; the New Orleans office. the firm’s Covington office as an advisory www.picompany.com. He also has an office member and Amanda L. Sullivan has in Dallas, Texas. Larry Curtis, A.P.L.C., in Lafayette joined the firm’s New Orleans office as announces that Emily C. Borgen has an associate. Blanchard, Walker, O’Quin & Roberts, joined the firm as an associate. A.P.L.C., in Shreveport and Bossier
Richard J. Arsenault J. Wesley (Wes) Jack C. Emily C. Borgen Stephen W. Justin M. Chopin Bearden Benjamin, Jr. Brooks, Jr.
David C. Clement Peter O. Cola Robert J. David Isidro René DeRojas Anthony M. DiLeo Stevan C. Dittman
154 August / September 2014 Perrier & Lacoste, L.L.C., in New Orleans June HarrisMartin conference in New Judge Donald R. Johnson, currently serv- announces that Jack C. Benjamin, Jr. has Orleans. He served as a panelist for the ing as a criminal court judge for the 19th joined the firm as special counsel. Actos Litigation Group and the DePuy Judicial District Court (East Baton Rouge Metal Hip Implant Litigation Group at Parish), received his doctor of philosophy Perry Dampf Dispute Solutions in Baton the 2014 AAJ Annual Convention in July. (Ph.D.) degree in 2014 from the University Rouge announces that Darrel J. Papillion, of Southern Mississippi in Hattiesburg. Steven C. Judice, David C. Clement, Shelton Dennis Blunt, a partner in the Baton G. Trippe Hawthorne and Isidro René Rouge office of Phelps Dunbar, L.L.P., was Patricia A. Krebs, a member in the firm of DeRojas have joined its mediation panel. selected for the 2014 Fellows Program of King, Krebs & Jurgens, P.L.L.C., in New These attorneys will continue to practice the Leadership Council on Legal Diversity. Orleans, was chosen as a recipient of the law with their current law firms. 2014 Texas A&M University Commerce Anthony M. DiLeo, with Anthony M. Distinguished Alumni Award. Preis, P.L.C., announces that Karnina D. DiLeo, A.P.C., in New Orleans, was elected William H. Langenstein III, a partner in Dargin has joined the firm’s Lafayette as a Fellow of the College of Commercial the New Orleans office of Chaffe McCall, office. Arbitrators. L.L.P., was named to the board of directors for Greater New Orleans, Inc., a regional Pugh, Accardo, Haas, Radecker & Carey, Monica A. Frois, a shareholder in the economic development alliance. L.L.C., announces that Stephen W. New Orleans office of Baker, Donelson, Brooks, Jr. has joined the firm’s Covington Bearman, Caldwell & Berkowitz, P.C., Linda A. Liljedahl, an attorney-mediator in office as special partner and Richard J. was named to the board of managers of Baton Rouge and in practice for 35 years, was Voelker has joined the Covington office the Hermann-Grima and Gallier Historic interviewed for the “Close-Up TV/Radio as an associate. Houses in New Orleans. News” program about being a mediator and dispute resolution practitioner and trainer. NEWSMAKERSNEWSMAKERS Orleans Parish Criminal District Court She has offices throughout Louisiana and Judge Arthur L. Hunter, Jr. was appointed offers MCLE seminars. Richard J. Arsenault, a partner in the by the U.S. State Department to participate Alexandria firm of Neblett, Beard & in a conference in Macedonia focusing Albert C. Rees, Jr. was promoted to colonel Arsenault, will chair the 21st annual on sentencing guidelines in the criminal in the U.S. Air Force Reserve and received Louisiana State Bar Association Admiralty justice system. Judge Hunter discussed a 2014 Judge Advocate Association “Out- Law Symposium on Friday, Sept. 19, in Louisiana’s sentencing guidelines and the standing Career Judge Advocate Award.” New Orleans. Recently, he discussed the $9 Louisiana Sentencing Commission at the When not handling Reserve duties, he is a billion Actos MDL verdict at the American May conference titled “U.S. Sentencing senior counsel with the U.S. Department of Association for Justice (AAJ) seminar in Reform Experience and Lessons Learned Justice in Washington, D.C. Chicago and as a faculty member at the for Macedonia.” Continued next page
Michael J. Ecuyer Jerry Edwards Nakisha Ervin-Knott Brian C. Flanagan Melissa S. Flores G. Trippe Hawthorne
Caitlin J. Hill Shannon Howard- Steven C. Judice M. Palmer Lambert Frank E. Lamothe III Rebecca S. Luster Eldridge
Louisiana Bar Journal Vol. 62, No. 2 155 Mark C. Surprenant, a partner in the Liskow & Lewis, A.P.L.C. (Lafayette, New Orleans office of Adams and Reese, PUBLICATIONS PUBLICATIONS New Orleans): Donald R. Abaunza, L.L.P., received the Loyola University The Best Lawyers in America 2014 Marguerite L. Adams, Robert S. Angelico, College of Law’s Glass Honoree Award Chehardy, Sherman, Ellis, Murray, Wm. Blake Bennett, James A. Brown, for his years of volunteer service. Among Recile, Griffith, Stakelum & Hayes, James C. Exnicios, Joseph I. Giarrusso his accomplishments, he is a co-founder L.L.P. (Metairie): David R. Sherman. III, Don K. Haycraft, Joseph P. Hebert, of the SOLACE program (Support of Lamothe Law Firm, L.L.C. (New Robert E. Holden, Jonathan A. Hunter, Lawyers/Legal Personnel — All Concern Orleans): Frank E. Lamothe III. R. Keith Jarrett, Greg L. Johnson, Philip Encouraged). Liskow & Lewis, A.P.L.C. (New K. Jones, Jr., James E. Lapeze, Thomas J. Orleans): Gene W. Lafitte and Thomas McGoey II, Robert B. McNeal, Richard Jennifer I. Tintenfass, an associate in B. Lemann. W. Revels, Jr., Leon J. Reymond, Jr., Leon Steeg Law Firm, L.L.C., in New Orleans, J. Reymond III, Lawrence P. Simon, Jr., was named the alumni board member of Chambers USA 2014 Randye C. Snyder and John D. Wogan. Emerging Philanthropists of New Orleans. Baker, Donelson, Bearman, Caldwell Steeg Law Firm, L.L.C. (New & Berkowitz, P.C. (Baton Rouge, Orleans): Robert M. Steeg. Robert S. Toale, founder of the Law Mandeville, New Orleans): Edward H. Taylor, Porter, Brooks & Phillips, Office of Robert S. Toale in Gretna, was Arnold III, Phyllis G. Cancienne, Roy C. L.L.P. (Baton Rouge): Anne J. Crochet, elected 2014 president of the Louisiana Cheatwood, Nancy Scott Degan, Donna Vicki M. Crochet, Paul O. Dicharry, Brett Association of Criminal Defense Lawyers. D. Fraiche, Steven F. Griffith, Jr., Jan M. P. Furr, Harry J. Philips, Jr., Patrick D. He also was elected to the 2014-17 board Hayden, Kenneth M. Klemm, Amelia Seiter and Fredrick R. Tulley. of directors of the National Association of Williams Koch, M. David Kurtz, Kent Criminal Defense Lawyers. A. Lambert, Jon F. Leyens, Jr., Mark W. Louisiana Super Lawyers 2014 Mercante, William N. Norton, David C. Chehardy, Sherman, Ellis, Murray, Rieveschl, James H. Roussel, Danny G. Recile, Griffith, Stakelum & Hayes, Shaw and Paul S. West. L.L.P. (Metairie): David R. Sherman, Barrasso Usdin Kupperman Freeman Steven E. Hayes and Julian R. Murray, Jr. & Sarver, L.L.C. (New Orleans): Judy Y. Coats Rose Yale Ryman & Lee (New Barrasso, George C. Freeman III, Stephen Orleans): Elizabeth Haecker Ryan. H. Kupperman, Richard E. Sarver and Flanagan Partners, L.L.P. (New Steven W. Usdin. Orleans): Sean P. Brady, Harold J. Flanagan Bradley Murchison Kelly & Shea, and Thomas M. Flanagan. L.L.C. (Baton Rouge, Shreveport): Jerald Gainsburgh, Benjamin, David, N. Jones, Joseph L. (Larry) Shea, Jr. and Meunier & Warshauer, L.L.C. (New David R. Taggart. Orleans): Robert J. David, Stevan C. Gerald E. Meunier Jonathan S. Ord Continued on page 158
Darrel J. Papillion Bradley J. Schwab Robert M. Steeg Amanda L. Sullivan Jennifer I. Tintenfass Robert S. Toale
Richard J. Voelker Irving J. Warshauer Raymond T. Waid Amanda L. Elizabeth S. Wheeler Christie C. Wood Westergard
156 August / September 2014 2014 LSU LAW CENTER Distinguished Alumnus of the Year & Distinguished Achievement Honorees
Congratulations2014 DistinguisheD Achievement honorees 2014 DistinguisheD Alumnus of the YeAr
Honorable Maryam James J. Brady Sabbaghian Brown LSU Law, 1969 LSU Law, 2000
Cordell H. Haymon LSU Law, 1968 Craig W. Murray Patrick S. Ottinger LSU Law, 1976 LSU Law, 1973 LSU Paul M. Hebert Law Center’s Distinguished Alumnus Award is given annually to an alumnus/a for rare distinction in professional achievement and loyalty to the LSU Law Center. The Distinguished Achievement awards recognize graduates for professional achievement and career distinction, service to and support of LSU Law, and service to the community. AWARDS LUNCHEON Sunday • September 21 • 2014 Lod Cook ConferenCe Center 3838 WeSt LakeShore drive • LSu CampuS • baton rouge
www.law.lsu.edu Ticket information: Jennifer Roche, 225/578-5722Louisiana or [email protected] Bar Journal Vol. 62, No. 2 157 Dittman, Michael J. Ecuyer, M. Palmer drigue v. Aetna Cas. & Sur. Co., 395 U.S. 76. Born in Baton Rouge, he was a gradu- Lambert, Gerald E. Meunier and Irving 352 (1969). He received his BA degree ate of University Laboratory School and J. Warshauer. (Meunier also was listed in economics and philosophy, cum laude, Louisiana State University Law School in 2014 Benchmark Plaintiff.) in 1956 from Georgetown University, (1963; Louisiana Law Review in 1962-63). Law Offices of Fred Herman (New Washington, D.C., and his LLB degree He was admitted to practice in Louisiana in Orleans): Fred L. Herman. in 1959 from Louisiana State University 1963. “Buddy” was a successful attorney Jones, Swanson, Huddell & Garrison, Law School (associate editor, Louisiana in Baton Rouge for many years where he L.L.C. (Baton Rouge, New Orleans): Law Review). He was admitted to practice practiced with his father and other partners. Bernard E. Boudreaux, Jr., Gladstone N. in Louisiana in 1959 and later to the Bar He was a member of the Baton Rouge Bar Jones III, Catherine E. Lasky and Kerry of the U.S. Supreme Court. He also was Association and the American Bar Associa- A. Murphy. commissioned as a second lieutenant in tion. He is survived by his wife of 51 years, the U.S. Army Tank Corps and eventually Barbara Olsen Kizer, three children and five New Orleans CityBusiness retired as a captain in the U.S. Army Re- grandchildren. Colleagues say he lived for Gainsburgh, Benjamin, David, serves. He entered the private practice of his family, especially his grandchildren who Meunier & Warshauer, L.L.C. (New law with Phelps, Dunbar, Marks, Claverie knew him as “Grumps.” Orleans): Nakisha Ervin-Knott, & Sims in New Orleans, then became a Leadership in Law Class 2014. partner in the Houma firm of O’Neal and CLARIFICATIONCLARIFICATION Lamothe Law Firm, L.L.C. (New Waitz. In 1971, he co-founded the firm of The placement of four People photos in the Orleans): Frank E. Lamothe III, Henderson, Hanemann & Morris, working April/May 2014 Louisiana Bar Journal Leadership in Law Class 2014. there until his retirement in 2002. He was a (page 462) may have caused some confusion. member of the Terrebonne Parish Bar As- The photos were at the bottom of the column ININ MEMORIAM MEMORIAM sociation (president in 1968), the Ameri- headed “In Memoriam,” but the attorneys can Bar Association, the Louisiana Trial were being recognized for new positions Philip Evart Hen- Lawyers Association and the Association in their respective firms. We apologize for derson, widely of Trial Lawyers of America. He received any confusion and are republishing the four recognized as a pre- the 2006 Elton Darsey Lifetime Achieve- photos and their listings. eminent authority in ment Award presented by the Terrebonne maritime law, died on Faircloth Melton, L.L.C., formerly The Parish Bar Association in recognition of May 31 at the age of Faircloth Law Group, L.L.C., announces his 47 years practicing law with the highest 80. During his career, that Christie C. Wood and Amanda L. level of professionalism. He is survived by he argued numer- Westergard have joined the firm as associ- seven children, his brother, nine grandchil- ous important cases ates in the Alexandria office. dren and other relatives. before state and fed- Philip Evart Liskow & Lewis, A.P.L.C., announces that eral courts, at the trial Henderson Roland C. (Buddy) Kizer, Jr., a former Elizabeth S. Wheeler has joined the New and appellate levels, partner in the Baton Rouge firm of Kizer, Orleans office as of counsel and Raymond including winning a landmark admiralty Hood & Morgan, L.L.P., died on March T. Waid has joined the New Orleans office case before the U.S. Supreme Court, Ro- 20 at his home in Boerne, Texas. He was as an associate. Ethics Advisory Service www.lsba.org/ethicsadvisory For assistance with dilemmas and decisions involving legal ethics, take full advantage of the LSBA’s Ethics Advisory Service, offering - at no charge - confidential, informal, non-binding advice and opinions regarding a member’s own prospective conduct.
Eric K. Barefield, Ethics Counsel LSBA Ethics Advisory Service, 601 St. Charles Ave., New Orleans, LA 70130-3404 (504)566-1600, ext. 122 • (504)619-0122 • toll-free: (800)421-5722, ext. 122 • Fax: (504)598-6753 E-mail: [email protected]
158 August / September 2014 News Symposium... Awards... Local Bars...lbf
Update Chancellor Pitcher Inducted into 2014 Francophone Section Conducts NBA Hall of Fame
Civil Law Symposium Southern Uni- versity Law Center The Louisiana State Bar Association’s (SULC) Chancellor (LSBA) Francophone Section presented Freddie Pitcher, Jr. its 2014 Judge Allen M. Babineaux was inducted into the International Civil Law Symposium in National Bar Asso- April at the U.S. Federal Courthouse ciation’s (NBA) Hall (Judge Richard T. Haik, Sr.’s courtroom) of Fame on July 29 in Lafayette. The CLE/symposium was during the 2014 NBA titled “Louisiana Law: A Jambalaya of Annual Convention. Chancellor Freddie French, Spanish and Common Law.” NBA President Pitcher, Jr. Among those attending the event were Patricia Rosier cited members of the Francophone Section’s Pitcher’s “personal rich history of meet- Executive Committee — Chair Warren A. ing the legal, social and personal needs Perrin and James H. Domengeaux, Judge of hundreds during his 40-plus years of James F. McKay III, John A. Hernandez, professional service.” Jr. and Louis R. Koerner, Jr. The NBA Hall of Fame honors lawyers Special guests included Philippe J. licensed to practice for 40-plus years who Gustin, international trade manager, Le have made significant contributions to the Centre International; Mark A. Babineaux, cause of justice. Other inductees include representative of the Lafayette Parish the late Justice Thurgood Marshall, first School Board; and Ray and Brenda African-American member of the U.S. Trahan, representatives of the World Supreme Court; the late Benjamin L. Acadian Congress (Congres mondial Hooks, longtime leader of the NAACP; Acadien 2014). Louisiana Supreme Court Chief Justice Symposium presenters included Judge Bernette Joshua Johnson; and the late Vanue B. Lacour, a member of the original Richard T. Haik, Sr., “Professionalism in University of Moncton Law School Professor Federal Court;” Professor Michel Doucet, Michel Doucet was one of the Babineaux SULC faculty and former dean. University of Moncton Law School, International Civil Law Symposium presenters. “La common law en français Robert LOUISIANA Bar Monckton’s worst nightmare;” Professor Thompson and Loyola College of Law Olivier Moréteau, Louisiana State student George Riedel announced that Today the Loyola Law students formed a University Paul M. Hebert Law Center, Get the latest LSBA news in the “The Louisiana Civil Code Translation Francophone Club. Project and Its International Impact;” The Francophone Section’s next free, biweekly emailed update. Professor Claire LeBas, Loyola University international CLE program was conducted It’s easy to subscribe. on Aug. 16, in conjunction with the World College of Law, “Teaching French to Go to: Louisiana Lawyers;” and attorney Leslie Acadian Congress at the University J. Schiff, “Ethics Overview.” of Moncton, Edmundston Campus, www.lsba.org/goto/LBT During the event, attorney James Edmundston, New Brunswick.
Louisiana Bar Journal Vol. 62, No. 2 159 Chancellor Pitcher Awarded Honorary Degree in Turkey Southern University Law Center (SULC) Chancellor Freddie Pitcher, Jr. was awarded an honorary Doctor of Law degree from Siirt University in Siirt, Turkey, in May. The Senate of Siirt University conferred the degree for Pitcher’s contribution in increasing internationalization of higher The Louisiana Hearing Officers’ Association (LaHOA) conducted its 2014 Annual Meeting in Lafayette education between Southern University and in March. Members attending were, seated from left, Tamithia P. Shaw, Jefferson Parish Juvenile Court; Siirt. He was awarded the honorary degree Monique F. Rauls, 9th JDC; Vanessa D. Randall, 15th JDC; K. Jacob Ruppert, 11th JDC and LaHOA while attending the International Leadership president; Felicia H. Higgins, Jefferson Parish Juvenile Court; and Josie G. Frank, 27th JDC. Standing Conference at Siirt. from left, Patrice W. Oppenheim, 22nd JDC; Dennis R. Bundick, 15th JDC; Stephanie L. Cochran, 14th JDC; Lesa Henderson (1st, 2nd, 3rd and 10th JDC; Dean J. Manning, 14th JDC; Vicki L. Green, SULC has implemented other academic 4th JDC; Paul S. Fiasconaro, 24th JDC; Michelle Perkins, Caddo Parish Juvenile Court; Leonora C. endeavors with universities in Turkey. A Estes, 21st JDC; K. Tess Stromberg, 23rd JDC; Carolyn F. Ott, 21st JDC; Rebecca Kennedy, 22nd student and faculty exchange program was JDC; and William H. Dunckelman, 32nd JDC. During the meeting, K. Jacob Ruppert was re-elected initiated between SULC and Turkey’s Kirik- as president for a fifth consecutive term. kale University. Pitcher has addressed faculty, staff and students at Kirikkale, Abant Izzet Baysal University and Marmara University. OPD Honors 2014 Clyde Topics included developing a framework for a democratic Constitution, social justice in a democratic Constitution, the differences be- Merritt Award Recipients tween legal education in the United States and The Orleans Public Defenders (OPD) defendants for 20 years, first at the Turkey, and the American jury trial system. honored investigators Emily Beasley and Louisiana Capital Assistance Center and Nicole Heisser as the 2014 recipients of then for OPD. As OPD’s supervising Judge Guidry New President the Clyde Merritt Award. Established in investigator, she leads a team of 12 of Louisiana Judicial College 2012 to honor Merritt, a stalwart advocate investigators. for public defense, the award recognizes Chief Defender Derwyn D. Bunton Board of Governors commitment and dedication to public presented the awards during the launch Louisiana 1st Cir- defense in New Orleans. party for the newly created Ben Sullivan cuit Court of Appeal Beasley joined the OPD staff after Investigator Fellowship. Launching later Judge John Michael graduation from Tulane University. Her this year, the fellowship established Guidry is the new commitment to justice continues as she in Sullivan’s memory will focus on president of the Loui- fights for indigent clients in federal court. applicants committed to representing the siana Judicial College Heisser has worked for indigent most disenfranchised. Board of Governors. Judge Guidry re- ceived his undergradu- ate degree in 1983 Judge John from Louisiana State Michael Guidry University and his law degree in 1987 from Southern University Law Center. He had a private law practice from 1987-97. He also served as an assistant parish attorney from 1988-91, as a state repre- sentative for District 67 from 1992-93 and as a state senator for District 14 from 1993-97. He was elected to the 1st Circuit in 1997. He Orleans Public Defenders investigator Nicole Orleans Public Defenders investigator Emily is a member of the American Bar Association, Heisser, right, is a 2014 recipient of the Clyde Beasley, right, is a 2014 recipient of the Clyde the National Bar Association, the American Merritt Award. Chief Defender Derwyn D. Bunton Merritt Award. Chief Defender Derwyn D. Bunton Judges Association and the Judicial Council presented the award. presented the award. of the Louisiana Supreme Court.
160 August / September 2014 LOCAL / SPECIALTY BARS INDEX TO ADVERTISERS
ADR inc...... 137 Alston Law Firm, L.L.C...... 128 D. Wesley Attaway...... 167 Bourgeois Bennett...... 119 Broussard & David...... OBC Callihan Law Firm, L.L.C...... 127 Attending the DeSoto Parish Bar Association’s (DPBA) annual Law Day program on May 2 were, Cardone Law Firm...... 135 from left, attorney Katherine E. Evans, DPBA secretary/treasurer; attorney John S. Evans; attorney Cazayoux Ewing, L.L.C...... 130 Dave Knadler, DPBA vice president; attorney Ron Christopher Stamps; attorney Adrienne D. White, DPBA president; District Attorney Richard Z. Johnson, Jr.; attorney Murphy J. White; and attorney Christovich & Kearney, L.L.P...... 127 Michael E. Daniel. CMC Advisors...... 118 DeSoto Parish Bar Celebrates Law Day Kay E. Donnelly & Associates...... 128 Robert G. Foley...... 166 Judge Scott J. Crichton, serving on Tom Foutz /ADR inc...... 131 the bench of the 1st Judicial District Court in Caddo Parish, was the guest Gilsbar, Inc...... 113, IBC speaker for the DeSoto Parish Bar Laporte CPAs & Association’s annual Law Day program. Business Advisors...... 145 The program on May 2 was conducted in LawPay...... 81 the large courtroom at the DeSoto Parish Legier & Company...... IFC Courthouse in Mansfield. In addition to members of the legal LexisNexis...... 82 community, the Law Day program Louisiana Association for Justice... 151 attendees included public officials, Attending the DeSoto Parish Bar Association’s annual Law Day program on May 2 were, from Louisiana Estate Lawyers.com...... 166 members of the community (including left, Judge Charles B. Adams, 42nd Judicial Louisiana State University students from DeSoto Parish high schools) District, DeSoto Parish; attorney Adrienne D. Paul M. Hebert Law Center...... 157 and the media. A reception followed in the White, DeSoto Parish Bar Association president; petit jury room at the courthouse. and guest speaker Judge Scott J. Crichton, 1st MAPS, Inc...... 136, 138 Judicial District, Caddo Parish. The Mediation Institute...... 134 National Academy of Distinguished Neutrals...... 85 National Collision Technologies, Inc...... 141 New Orleans Paralegal Association...... 127 The Patterson Resolution Group.... 132 Perry Dampf Dispute Solutions..... 140 Plastic Surgery Associates...... 143 Schafer Group, Ltd...... 139 Schiff, Scheckman & White, L.L.P...... 126 St. Thomas More Catholic Lawyers Association...... 153 Thomson Reuters...... Insert In commemoration of the 40th anniversary of the Louisiana State Constitution and the Constitutional C. David Vasser, Jr. / La. Personal Convention that preceded its adoption, the Law Library of Louisiana sponsored a free CLE in April, titled “The Louisiana Constitutional Convention of 1973: A Panel Discussion or Look What They’ve Done to Our Injury Litigation Defense Guide.... 133 Song, Ma!” Louisiana 4th Circuit Court of Appeal Judge Max N. Tobias, Jr., fourth from left, a former Angela S. Willis, CPA...... 128 delegate to the 1973 convention, led a panel of former delegates, including, from left, Tom Velazquez, Alvin D. Singletary, Mary K. Zervigon and Philip O. Bergeron. The panel discussed why the convention was The Write Consultants...... 167 called, important revisions and changes made, and how consensus by the delegates was reached.
Louisiana Bar Journal Vol. 62, No. 2 161 Stephanie A. Finley, United States attorney for the Western District of Louisiana, presented her The Louisiana Bar Foundation (LBF) and the Shreveport Bar Association (SBA) membership application to SBA President Lawrence W. Pettiette, Pelican Center for Children and Families formed Jr. during the Law Day luncheon. Finley delivered the keynote address. From left, U.S. District Court a partnership to support the training of attorneys Judge S. Maurice Hicks, Jr.; Mayor Lorenzo Walker; Judges Frances J. and Michael A. Pitman; Finley; representing children and indigent parents. From Pettiette; Marcus E. Edwards and Erik S. Vigen, Law Day Committee chairs; and Ronald J. Miciotto, left, Judge C. Wendell Manning, LBF president; Speaker Program chair. Mark Harris, Pelican Center executive director; Karen A. Hallstrom, Louisiana Supreme Court deputy judicial administrator for children and U.S. Attorney Finley Gives Keynote at families; Donna Cuneo, LBF executive director; David P. Kelly, child welfare program special- Shreveport Bar’s Law Day Luncheon ist for court improvement, Children’s Bureau, Administration for Children and Families, U.S. Stephanie A. Finley, United States continuing care to victims of child abuse. Department of Health and Human Services; and attorney for the Western District of The award recognizes community service, Howard Davidson, ABA Center on Children and Louisiana, delivered the keynote address particularly among non-lawyers, which the Law director. at the Shreveport Bar Association’s Law strengthens the effectiveness of the ANSWERS for puzzle on page 124. Day luncheon on April 30 at the Petroleum American system of freedom under law. 1 2 3 4 5 6 7 D R A W E E B E A R E R Club of Shreveport. The Shreveport Bar also welcomed 8 R B L H L A E 9 10 In honor of the 50th anniversaries of the this year’s mock trial competition winners A G R E E T O D A T U M Civil Rights Act of 1964 and the Voting (high school students from Loyola College W A C L E R I 11 12 Rights Act of 1965, Finley focused on Prep and Caddo Magnet High School) to E M M E T D O R M A N T the national theme for Law Day 2014, the luncheon, as well as local mayors and R E E C S 13 14 15 “American Democracy and the Rule of state and federal judges. H A N D W R I T T E N 16 17 Law: Why Every Vote Matters,” as she I R I I X 18 19 20 21 outlined the history of both Acts and S E C T I O N M A K E R S A D D E O A discussed the legal challenges which 22 23 existed in the country and Louisiana. U N D U E U F O L O G Y E I S E U K E The Shreveport Bar Association hosts 24 25 the annual Law Day luncheon as part of D R A F T S S T A Y E D a week of activities. The association also Louisiana Bar Foundation sponsors a student event, with juniors and seniors from local high schools Announces New Fellows participating in a day of interactive The Louisiana Bar Foundation exposure to the legal profession, and a announces two new Fellows: community event. This year’s community Prof. William R. Corbett..Baton Rouge event was a voter registration drive, in Jerry Edwards...... Shreveport accord with the Law Day theme. The Shreveport Bar also presents Prof. Robert Force...... New Orleans the Liberty Bell Award to a citizen Ann M. Johnston...... New Orleans demonstrating a commitment to the During the Shreveport Red Mass Society’s 2014 Teresa D. King...... Gray community who has advanced the rule event, Bishop Michael G. Duca, third from left, John C. Nickelson...... Shreveport of law. This year’s Liberty Bell Award delivered his homily on separation of church and state. From left, Lawrence W. Pettiette, Jr., Carolyn J. Smilie...... Pineville recipients were the Gingerbread House Shreveport Bar Association president; Stephanie and the Cara Center. Both organizations A. Finley, United States attorney for the Western Hon. Carl E. Stewart...... Shreveport provide fact finding, diagnosis and District of Louisiana; and John C. Nickelson, Carter B. Wright...... Covington Red Mass chair.
162 August / September 2014 Louisiana Bar Foundation
President’s Message Partnership with Pelican Center and Updates on Other Projects By President Hon. C. Wendell Manning am pleased to announce that, as of July to become a national tions (Acadiana Legal Services Corp., Le- 1, 2014, the Louisiana Bar Founda- model for how states gal Services of North Louisiana, Inc. and tion (LBF) and the Pelican Center for can best respond to Southeast Louisiana Legal Services) and Children and Families (Pelican Center) the legal needs and the state’s seven pro bono projects. The haveI formed a unique partnership to support judicial involvement board trainings, held in July, provided tools, the training of attorneys representing chil- of abused and ne- resources and guidelines to help ensure that dren and indigent parents. This partnership glected children and board members and executive directors are presents an opportunity to create a statewide their families. It dem- equipped to meet their fiduciary obligations training and education curriculum that will onstrates a long-term while ensuring proper delivery of civil le- benefit Louisiana’s most vulnerable children commitment to hav- Hon. C. Wendell gal services to the state’s indigent. The LBF and families. The training being developed ing the courts mean- Manning leadership will follow up in December with will include a focus on best practices for those ingfully collaborate with key child welfare onsite audits to ensure that clients are re- involved in Child in Need of Care (CINC) system stakeholders, while assuring that ceiving the maximum amount of services and Families in Need of Services (FINS) federal, state, private and other funding with the funding the LBF provides. Special cases. Training will be made available to all can be pooled to help assure maximum thanks go to Skip Phillips, chair of the LBF those involved, including legal aid attorneys, positive impact for the state’s underserved Grants Subcommittee for civil legal aid, district attorneys, child welfare agency at- children and families,” said Howard Da- John Davies and Edmund Giering, both torneys, judges and other key stakeholders vidson, director of the ABA Center on with the Baton Rouge Area Foundation, in the Louisiana child welfare system. Children and the Law. and Jane Sherman, LBF treasurer, for their The LBF’s support of this partnership hard work in conducting the trainings. will augment ongoing training for attor- Louisiana Campaign to Preserve neys who provide representation to abused Civil Legal Aid Updates on Other Projects and neglected children and whose work The Louisiana Campaign to Preserve The LBF announces the appointment directly affects the safety, permanency and Civil Legal Aid is moving “full steam of Professor Alain A. Levasseur (LSU Paul well-being of children in the foster care ahead.” In my last report to you, I ad- M. Hebert Law Center Hermann Moyse, system. The LBF will provide in-kind sup- dressed this unified statewide campaign Sr. Professor of Law and Henry Plauché port to the Pelican Center through office and the various stages of implementation. Dart Professor of Law) as the 2014-16 space and other business amenities. Focus is now upon the next level of the Scholar-in-Residence. His work will fo- “The Pelican Center will provide com- campaign bringing awareness to the local cus on an in-depth analysis of the Loui- prehensive training and education op- and specialty bar associations throughout siana Civil Code with emphasis upon the portunities for child welfare practitioners the state. Our efforts are to enlist the sup- reasoning and methodologies employed across systems — legal, executive and port of all local and specialty bars, with by the various Louisiana courts. Also, the community. A first for the state, this rep- many having already adopted resolutions Oral History Project has produced 60 oral resents a tremendous asset for the state in support of the campaign. The campaign histories of retiring judges, bar leaders and of Louisiana. The mission and vision of will address awareness among the state’s other legal personalities that can be viewed the Pelican Center will be accomplished judiciary at the annual Fall Judges’ Con- on our website. through the design and delivery of a state- ference in October. See the Louisiana Bar Special thanks to Professor Paul R. of-the-art curriculum that incorporates the Foundation’s website for more informa- Baier (LSU Paul M. Hebert Law Center latest scholarship and research, evidence- tion on how you can help with this very George M. Armstrong, Jr. Professor of based and best practices, and brings child important work in supporting the critical Law and Judge Henry A. Politz Profes- welfare practitioners information in a con- needs of civil legal aid in Louisiana. sor of Law and the first LBF Scholar-in- sistent and accessible manner through a Residence) who has graciously agreed to variety of learning modalities,” said Judge Training for Legal Aid Grantees donate the proceeds from the sale of his Ernestine S. Gray, chief judge of Orleans In support of our efforts to provide lead- new book, Speeches, to the LBF. Email Parish Juvenile Court and Pelican Center ership and organizational support to our Prof. Baier directly at [email protected]. president. grantees, the LBF offered board training edu for more information on how to obtain “The Pelican Center shows promise for Louisiana’s three legal service corpora- a copy of his book.
Louisiana Bar Journal Vol. 62, No. 2 163 LBF grants $5.2 million to nonprofit organizations for 2014-15
he Louisiana Bar Foundation Youth Service Bureau Lafayette Parish (LBF) has awarded $5.2 million of St. Tammany...... $6,292 Bar Foundation...... $37,000 in grants to nonprofit organiza- Shreveport Bar Foundation...... $25,500 tions for the 2014-15 year. The Legal Assistance to the Poor..$1,863,359 Southwest Louisiana Tgrants help agencies and organizations Grants provide free direct legal services to Bar Foundation...... $19,000 address the legal needs of indigent citi- indigent clients. The Pro Bono Project...... $79,500 zens, provide a basic understanding of ► Domestic Violence Programs$307,859. the law and assist with improvements to Beauregard Community Loan Repayment the justice system. Concerns, Inc...... $21,389 Assistance Program...... $33,327 Catholic Charities/ The program provides forgivable loans of ANNUAL SUSTAINING GRANTS Project S.A.V.E...... $30,389 up to $5,000 per year to attorneys working Chez Hope...... $21,389 at an organization supported by the LBF. Building Capital Development.$125,000 D.A.R.T. of Lincoln...... $20,389 Applicants’ identities are anonymous. Grants up to $25,000, on a matching basis, Faith House, Inc...... $19,391 assist in the acquisition of an office building Metropolitan Center for SPECIAL INITIATIVES or property. Women and Children...... $36,389 ► Mortgage Servicing Settlement Acadiana Legal Services Corp..$25,000 Oasis...... $18,391 Provide advice, counseling and direct attor- Eden House...... $25,000 Project Celebration...... $19,739 ney representation to affected consumers in- Innocence Project New Orleans.$25,000 Safe Harbor, Inc...... $15,000 cluding but not limited to the homeless, FHA Shreveport Bar Foundation...... $25,000 Safety Net for borrowers, veterans and the unemployed Southeast Louisiana Abused Persons...... $22,389 in matters including financial counseling; Legal Services...... $25,000 Southeast Spouse Abuse wrongful foreclosure; foreclosure relief; Program...... $12,391 loan modification; principal reduction; Children’s Legal Services.....$100,000 St. Bernard Battered refinancing; foreclosure prevention and Grants provide legal assistance to children Women’s Program...... $15,391 mediation; and bankruptcy. Approximately in areas of law which affect their safety, The Haven, Inc...... $18,391 $722,000 (pending approval). well-being and future development. The Wellspring Alliance ► Child in Need of Care Advocacy Center...... $13,000 for Families, Inc...... $20,000 Provides free legal representation to Loui- Children’s Advocacy Center United Way of siana children in foster care. Approxi- of Louisiana...... $3,500 Central Louisiana...... $16,831 mately $1.9 million (pending approval). First Grace Community ► Legal Service Corporations .$1,080,000 ► LSBA Access to Justice...... $75,000 Alliance...... $15,000 Acadiana Legal Services Corp...... ► Louisiana Appleseed...... $50,000 Juvenile Justice Project $283,608 of Louisiana...... $25,000 Legal Services of SCHOLARSHIPS, FELLOWSHIPS, Juvenile Regional Services...... $35,000 North Louisiana...... $261,360 AWARDS AND OTHER PROJECTS Louisiana CASA Association...... $3,500 Southeast Louisiana T.E.A.M.S...... $5,000 Legal Services...... $535,032 ATJ Fund Grant...... $50,000 ► Other Legal Service Providers..$260,000 Kids’ Chance Scholarships...... $45,000 Law-Related Education...... $100,000 Advocacy Center...... $53,000 Law Student Pro Bono Awards...$2,100 Grants assist law-related educational pro- Arts Council of New Orleans....$10,000 Legal Education Projects...... $4,000 grams for children and the public. Catholic Charities ProBono/LawHelps Website.....$12,650 Baton Rouge Bar Foundation...... $8,292 of New Orleans...... $40,000 Baton Rouge Children’s Catholic Charities DISCRETIONARY FUNDING Advocacy Center...... $6,125 of Baton Rouge...... $40,000 Juvenile Justice Project Eden House...... $12,000 Jock Scott Community Partnership of Louisiana...... $7,791 Innocence Project New Orleans...... Panel Grants...... $90,000 Juvenile Regional Services...... $5,500 $100,000 Nine Community Partnership Panels act as Louisiana Center for Law NO/AIDS Task Force/AIDSLaw of regional chapters of the Foundation. These & Civic Education...... $48,000 Louisiana...... $5,000 panels identify needs in their communities Louisiana District ► Pro Bono Projects...... $215,500 and fund efforts to address those needs. Judges Association...... $5,000 Baton Rouge Bar Foundation....$45,000 Grants are awarded throughout the year. LSBA Diversity Committee...... $5,000 Central Louisiana LSBA Young Lawyers Division. $8,000 Pro Bono Project...... $9,500
164 August / September 2014 Minimum Qualifications, Conditions for Appointment as Special Assistant Attorney General
The minimum qualifications and con- 7. The attorney must be a subscriber ditions for appointment as a Special As- to an electronic billing program Additional sistant Attorney General are listed below. designated by the Office of Risk Requirements for Management. 1. The attorney shall be admitted to the Defense of practice law in the state of Louisiana 8. The attorney should have a Medical Malpractice unless the action is pending in another Martindale-Hubbell rating of “bv” state, in which event the attorney or better. Claims shall be admitted to practice in the state where the action is pending. 9. The attorney should have been 11. The attorney should have three years’ admitted to and engaged in the experience in the defense of medical 2. If the action is pending before a practice of law for a minimum of malpractice claims. federal court or other court of special three years. admission requirements, the attorney 12. The attorney should have participated shall be admitted to practice before 10. The requirements set forth in 8 and as counsel of record in at least two such court. 9 may be waived by the Attorney medical malpractice trials. General, in which event the attorney 3. The attorney shall not be under will be placed in a probationary 13. Professional malpractice limits shall suspension by the Louisiana Supreme status for a period of three years. be at least $1 million per claim with Court or any court in which the action During the period of probation, an aggregate of $1 million. is pending. the attorney’s performance will be evaluated annually by the State 14. Requirements 11 and 12 may be 4. The attorney and any attorney with Risk Administrator-Claims and the waived by the Attorney General, whom he is engaged in the practice of Assistant Director for Litigation in which event the attorney will be law shall not represent any plaintiff Management of the Office of Risk placed on probation as to medical in any tort claim against the state Management and the Director of the malpractice defense as provided in and/or its departments, commissions, Litigation Program of the Louisiana paragraph 10 above. boards, agencies, officers, officials or Department of Justice. employees unless specifically waived in writing by the Attorney General In the event that the attorney’s Conditions and the Office of Risk Management. performance is acceptable during 1. Any attorney appointed by the the three-year probationary period, Attorney General serves at the 5. The attorney shall not have a conflict he shall be removed from probation- pleasure of the Attorney General of interest as provided by the Rules ary status. In the event the attorney’s and may be removed by the Attorney of Professional Conduct of the performance is unsatisfactory, he may General at any time without cause. Louisiana State Bar Association. be removed from the probationary list or, at the discretion of the State Risk 2. The Office of Risk Management 6. The attorney shall have and maintain Administrator-Claims, the Assistant may withdraw its concurrence of any professional malpractice insurance Director for Litigation Management attorney only for cause. with minimum coverage of $1 million of the Office of Risk Management per claim with an aggregate of $1 and the Director of the Litigation 3. All contracts must comply with million. Program of the Louisiana Department the Ethical Standards for Public of Justice, the probationary period Servants, Title 42, Section 15, Part may be extended. II of the Louisiana Revised Statutes, including, but not limited to, La. R.S. 42:1113.
Louisiana Bar Journal Vol. 62, No. 2 165 Classified ads ONLINE at www.lsba.org CLASSIFIED NOTICES management and deposition skills required. Standard classified advertising in our regu- POSITIONS OFFERED 2) First-chair attorney/environmental law: Minimum of eight-plus years’ defense lar typeface and format may now be placed Growing AV-rated New Orleans defense in the Louisiana Bar Journal and on the experience in first-chair civil jury trials, LSBA Web site, LSBA.org/classifieds. firm seeks an attorney with three-five years’ complex litigation and primary case All requests for classified notices must experience in insurance defense. Excellent management; A/V rating required; and be submitted in writing and are subject writing/communication skills required. to approval. Copy must be typewritten environmental and/or toxic tort experience Great opportunity for advancement or preferred. The firm offers competitive and payment must accompany request. lateral placement. All inquiries treated with Our low rates for placement in both are salary and benefits and an excellent work as follows: strictest confidence. Qualified individuals environment. If you are interested in either should submit résumé, transcript and position, visit the firm’s website at: www. RATES writing samples: HR, 701 Poydras St., curryandfriend.com/careers.html. #4700, New Orleans, LA 70139-7708, or CLASSIFIED ADS email [email protected]. Shuart & Associates Legal Search & Contact Krystal L. Bellanger at Staffing. In today’s market, many law (504)619-0131 or (800)421-LSBA, AV-rated small personal injury firm ext. 131. firms are growing by lateral acquisition of seeking an experienced personal injury partners/practice groups. Some partners Non-members of LSBA attorney with at least two years of are choosing to relocate to firms where $85 per insertion of 50 words or less experience on the plaintiff’s side with a their unique strengths are valued and $1 per each additional word strong understanding of medical issues compensation competitive. This requires $20 for Classy-Box number and an ability to evaluate claims, take broad knowledge of the existing marketplace depositions, etc. A verifiable and stable Members of the LSBA and insight into the culture of local law work history, good academic credentials $60 per insertion for 50 words or less firms. Shuart & Associates has a proven $1 per each additional word and litigation experience are important. track record in providing this service. All No additional charge for Classy-Box Excellent opportunity for a hardworking, inquiries confidential. (504)836-7595. number motivated self-starter. Email confidential www.shuart.com. résumé to: [email protected]. Screens: $25 Headings: $15 initial headings/large type PositionsPOSITIONS Sought SOUGHT Curry & Friend, P.L.C., a growing New BOXED ADS Orleans CBD and Northshore law firm, Seeking entry-level associate position Boxed ads must be submitted camera ready is seeking qualified candidates for two at New Orleans firm. JD, University of by the advertiser. The ads should be boxed positions. 1) Litigation attorney: Qualified Chicago. BA, Tulane University. One year and 2¼” by 2” high. The boxed ads are $70 candidates must have at least five years of per insertion and must be paid at the time of of experience. Licensed in Louisiana and litigation experience; medical malpractice placement. No discounts apply. Florida. Contact thomas.bell27@gmail. defense experience and an AV rating com. DEADLINE preferred; and excellent organizational, case For the December issue of the Journal, all classified notices must be received with payment by Oct. 18, 2014. Check and ad copy should be sent to: Forensic Document LouisianaEstateLawyers.com LOUISIANA BAR JOURNAL Examiner • Local Classified Notices • Affordable 601 St. Charles Avenue Robert G. Foley New Orleans, LA 70130 Handwriting • Typewriting • Copies • Effective Ink/Paper Analysis & Dating • Interactive RESPONSES • Targeted To respond to a box number, please address Certified & Court Qualified in your envelope to: Federal, State, Municipal & Full Profile Ads for Estate Journal Classy Box No. ______Military Courts since 1972 Planning and Probate Lawyers c/o Louisiana State Bar Association Phone: (318) 322-0661 [email protected] 601 St. Charles Avenue www.robertgfoley.com New Orleans, LA 70130
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Louisiana Bar Journal Vol. 62, No. 2 167 The Last Word By John A. Broadwell “Thank You” Letter to the Bar
n March 28, 2014, I heard the words no one wishes to hear — “It’s incurable.” While much of the ensuing discussionO of that visit is now lost on me, the following weeks have added clarity to what we now jokingly refer to as “the situation” as there is no other apt description. This leads me to write this . . . a “thank you” letter of sorts to the mem- bers of the Louisiana Bar. I am a Loyola ’83 graduate, and, in that same year, I married my way to Shreveport. After some time in the local DA’s office and the 2nd Circuit Court of Appeal, in 1987, I accepted an invitation John A. Broadwell to join the U.S. Attorney’s Office, where I have since represented the interests of years. It is often said that we should value how not to comport ourselves. But if we the United States and its agencies in civil our relationships with our co-workers permit it to do so, litigation can move us litigation. My practice has been exclusive because we spend as much time with them to be better lawyers and individuals. After to the federal courts in Shreveport, Monroe, as we do our own family members. But I three decades of practice, I can identify Alexandria, Lafayette and Lake Charles. will go further to state that the same can only five lawyers out of hundreds whom In 1992, I was treated with radiation be said for our relationships with opposing I’d just as soon never see again. That for Hodgkin’s disease. Now the very counsel. is a remarkable statistic which speaks treatment which enabled me to watch my Over the last 30 years, attorneys have well for our Bar. But even those difficult two children grow up into successful young challenged, sharpened, taught, sometimes experiences were learning opportunities adults has produced a rare combination “schooled,” laughed with and befriended for me, and perhaps they can be so for of lung carcinomas which have spread me. Numerous friendships have developed you as well. We should not be defined as throughout my bones. Ever hopeful for a over the years with opposing attorneys who a profession by those of whom we read miracle achieved through chemotherapy, understand that the litigation experience in the “Discipline Reports;” rather, we we are aware that, statistically, time is is far greater than the sum of its parts. are defined by those who exercise grace now measured in a few months, not years. Attorneys who fail to appreciate this and professionalism in the representation Although I am only 57 years of age, deprive themselves, in part, of the richness of their clients. most would say that I have been “robbed” of of the work we do. I have always said that So I extend my sincerest thanks to every time. Yet, paradoxically, I have discovered the best part of my occupation is the people lawyer on the other side of the caption with that I have been given the gift of time as with whom I work, and that includes the whom I have dealt. You unwittingly helped I reflect upon my life. One of my many many attorneys I have worked with over to shape me and enabled me to grow not discoveries is an appreciation for the the years. These days they offer me not just as a lawyer, but as an individual. And contributions of so many opposing counsel only extensions of time, but phone calls to the envy of many, I can say that you to the richness of my life. So I write to tell and emails to inquire of my condition enabled me to enjoy my profession. you that it has been my sincerest pleasure and to offer their sincerest sympathies and and honor to have worked with so many prayers. Class acts, these folks. Peace and grace to you all, wonderful and talented attorneys over the At a minimum, litigation teaches us John
The Louisiana Bar Journal is looking for authors and ideas for future “The Last Word” articles. Humorous articles will always be welcomed. But Editor Barry H. Grodsky is broadening the scope of the section, including “feel-good” pieces, personal reflections, human interest articles or other stories of interest. If you have an idea you’d like to pitch, email Grodsky at [email protected] or LSBA Publications Coordinator Darlene M. LaBranche at [email protected].
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