Friday, March 10, 2017

A lawyer with a prior history of discipline should be suspended for three years, according to the Louisiana Attorney Disciplinary Board.

A review of Respondent’s disciplinary history is pertinent to the Board’s review of this matter. On March 2, 2006, following a misdemeanor trial, Respondent was found guilty of unauthorized access to a public school and resisting arrest. Her sentence was suspended and she was placed on probation. One of the terms of her probation was to not enter any school grounds of the St. Tammany Parish School Board without specific authorization. In 2007, she violated this condition by entering school grounds on three occasions without authorization. Accordingly, her criminal probation was revoked. On July 2, 2010, the Court suspended Respondent for one year and one day, fully deferred, based upon her violation of the terms of her criminal probation. In re LaMartina, 2010-0093 (La. 7/2/10); 38 So.3d 266 (“LaMartina I”). As a condition of the deferred suspension, Respondent was placed on disciplinary probation for two years.

She violated probation and was subject to an active suspension.

Then

The ODC received information that on or about January 28, 2015, at approximately 5:20 p.m., Officers D. Dondeville and S. Winther responded to Rouses Supermarket 32, located at 4350 Highway 22, Mandeville, Louisiana, 70471, in reference to an alleged shoplifting incident. The perpetrator was identified as Elise MB LaMartina, date of birth September 12, 1968. The property taken was hair dye valued at $7.29.

The Board rejected disbarment

Here, Respondent intentionally violated duties to the public and the profession by engaging in criminal behavior. Her misconduct caused actual harm to the store from which she stole merchandise as well as to the legal system and the profession because she violated the very laws she is entrusted to uphold. Additionally, her failure to cooperate with ODC’s investigation caused that office to expend additional resources.

A survey of the sanctions for shoplifting attorneys

Louisiana case law contains little precedent for disciplining attorneys that are guilty of shoplifting, let alone repeated instances of shoplifting. Other states have dealt with shoplifting by imposing sanctions ranging from a public reprimand to suspensions. On the lower extreme, an attorney was given a public reprimand and required to attend psychotherapy for one year in New York in light of his candor with the tribunal, attempt to deal with his “compulsion” problem, and otherwise “unblemished record.” In re Gallagher, No. M-472 (N.Y. 6/7/12); 97 A.D.3d 254, 256-67. In Oregon, an attorney was suspended for six months for a single instance of shoplifting, and the Supreme Court noted that because the case did not involve a violation of fiduciary duty, the sanction should be less for two years. In re Kimmell, No. 92-82 (Or. 8/30/01); 31 P.3d 414, 416, 420-21. The Indiana Supreme Court approved a one year suspension consented to by the parties for one instance of shoplifting. In re Cheslek, No. 64S00-9909-DI- 503 (Ind. 2/15/01); 701 N.E.2d 1244, 1245...

Taking the unique circumstances of this matter into consideration, in light of the Standards and case law discussed above, the Board finds that a three-year suspension is the appropriate sanction. The Board recognizes that disbarment is the baseline pursuant to ABA Standards 5.11 and 8.1. However, the Board is also cognizant of the Court’s practice of looking beyond the title of a criminal offense to the facts underlying the conviction when determining the appropriate sanction. See In re Kirchberg, 2003-0957 (La. 9/26/03); 856 So.2d 1162. Here, Respondent pled guilty to shoplifting hair dye worth $7.29. The Board does not feel such an offense should result in disbarment. Rather, the Board agrees with the out-of-state case law that a lengthy period of suspension is warranted.

The earlier disciplinary order is linked here. (Mike Frisch)

https://lawprofessors.typepad.com/legal_profession/2017/03/a-lawyer-with-a-prior-history-of-discipline-should-be-suspended-for-three-years-according-to-the-louisiana-attorney-discipli.html