LOUISIANA ATTORNEY DISCIPLINARY BOARD IN RE: JOSEPH GEORGE PASTOREK, II NUMBER 12-DB-010 RECOMMENDATION TO THE LOUISIANA SUPREME COURT INTRODUCTION

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1 LOUISIANA ATTORNEY DISCIPLINARY BOARD 12-DB-010 8/25/2017 IN RE: JOSEPH GEORGE PASTOREK, II NUMBER 12-DB-010 RECOMMENDATION TO THE LOUISIANA SUPREME COURT INTRODUCTION This is an attorney discipline matter based upon the filing of formal charges by the Office of Disciplinary Counsel ( ODC ) against Joseph George Pastorek, II ( Respondent ), Louisiana Bar Roll Number ODC alleges that Respondent violated the following Rules of Professional Conduct: 8.4(a) (violation of the Rules of Professional Misconduct), 8.4(b) (criminal conduct), and 8.4(c) (conduct involving dishonesty, fraud, deceit, or misrepresentation). 2 The hearing committee ( committee ) concluded that Respondent violated the rules as charged and recommended that he be permanently disbarred. For the following reasons, the Board adopts the factual findings, conclusions, and recommendation of the committee as discussed herein. PROCEDURAL HISTORY Formal charges were filed on February 9, Through his counsel, Dane S. Ciolino, Respondent filed an answer to the charges on March 16, 2012, and requested a stay of the matter 1 Respondent was admitted to the Louisiana Bar on January 9, His primary registration address is 425 Spartan Loop, Slidell, LA He was placed on interim suspension on February 1, See In re Pastorek, No (La. 2/1/12); 80 So.3d He remains on suspension. 2 Rule 8.4 states: It is professional misconduct for a lawyer to: (a) Violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another; (b) Commit a criminal act especially one that reflects adversely on the lawyer s honesty, trustworthiness or fitness as a lawyer in other respects; (c) Engage in conduct involving dishonesty, fraud, deceit or misrepresentation. 1

2 until the appeal of his criminal conviction was completed. The Board granted Respondent s request by Orders dated March 27, 2012 and October 17, The hearing was held on September 20, The committee heard testimony by Respondent only. Respondent acknowledged that as a result of his criminal conviction, he violated the Rules of Professional Conduct as charged, therefore, the only consideration before the committee was the appropriate sanction. 4 The committee s report was issued on January 23, On January 24, 2017, ODC filed its Notice of No Objection to Hearing Committee Report. Respondent filed his Board Brief on March 5, The ODC filed its Pre-Argument Memorandum on March 6, Oral argument was held on April 6, 2017 before Board Panel C. 6 Chief Disciplinary Counsel Charles B. Plattsmier appeared on behalf of the ODC. Respondent appeared with counsel, Mr. Ciolino. The charges state, in pertinent part: FORMAL CHARGES III. In addition to being a Louisiana licensed attorney, the Respondent is also a Louisiana licensed physician under medical license number and as such, was authorized to prescribe controlled substances to patients. In a sealed indictment returned in open court on September 22, 2010 in the United States District Court for the Northern District of Florida, Pensacola Division, the 3 On February 8, 2013, the United States District Court for the Northern District of Florida entered judgment in Respondent s criminal case in which he was found guilty of Conspiracy to Knowingly and Willfully Dispense, and Causing to be Dispensed, Schedule IV Controlled Substances in violation of 21 U.S.C. 841(a)(1) and (b)(1)(d)(2). ODC Exhibit 5. The United States Court of Appeals for the Eleventh Circuit affirmed his conviction on September 1, ODC Exhibit 7; United States v. DiLeo, 625 Fed.Appx. 464 (11th Cir. 2015). Respondent s petition for a rehearing by that circuit en banc and for certiorari by the United States Supreme Court were both denied. ODC Exhibits 7, 8. 4 Transcript of Hearing, p The hearing committee was comprised of Leu Anne Greco (Chair), John H. Smith (Lawyer Member) and Kingsley Blaine Garrison (Public Member). 6 Board Panel C was comprised of Walter D. White (Chair), Danna E. Schwab (Lawyer Member), and Sheila E. O Leary (Public Member). 2

3 Respondent and other physicians were charged with purporting to provide "pain management treatment" for chronic pain patients through clinics in Metairie, Covington and Pensacola, Florida, when in truth and in fact the Respondent and others did not operate a legitimate medical practice, but instead were engaged in a conspiracy to unlawfully dispense Schedule II and III controlled substances in violation of Title 21, United States Code, Section 841(a)(1). IV. On November 23, 2011, a jury returned a verdict unanimously finding that Joseph George Pastorek, II was guilty of the crimes alleged and that same were proven beyond a reasonable doubt. The crime for which the Respondent stands convicted is a felony and a serious crime within the meaning of Supreme Court Rule XIX 19B. As a result, on February 1, 2012 the Louisiana Supreme Court ordered the Respondent be interimly suspended based upon his criminal conviction. That order remains in full force and effect at this time and until further order of the Court. HEARING COMMITTEE REPORT The committee found that Global Pain Management ( GPM ), the pain clinic at which Respondent was employed, was a pain pill mill, which led to Respondent s conviction in federal court for knowingly and willfully conspiring with others to dispense controlled substances. 7 It was also noted that Respondent s misconduct resulted in the Louisiana State Medical Board ( Medical Board ) suspending his medical license for three years and permanently prohibiting him from practicing pain medicine. 8 The committee emphasized the Medical Board s finding that Respondent failed to satisfy prevailing and usually accepted standards of medical care, prescribing controlled substances without legitimate medical justification and egregious disregard of the letter and spirit of the Pain Rules. 9 As for a sanction, the committee found: Respondent violated duties owed to an especially vulnerable segment of the public, the patients who visited GPM, whether seeking medical help or improperly seeking controlled substances without medical justification. While 7 Hearing Committee Report, p. 3; ODC Exhibits Hearing Committee Report, p Hearing Committee Report, p. 4 (emphasis in original). 3

4 Respondent argues the federal court found GPM's patients to be drug addicts in a symbiotic relationship with GPM, rather than vulnerable victims, the Committee is not so heartless in "blaming the victims". As found by the Medical Board, Respondent acted knowingly, in reckless disregard of the Pain Management Rules, in prescribing controlled substances in inappropriate circumstances. While the evidence is not sufficient to determine Respondent's misconduct directly resulted in a patient's death, at a minimum it increased that risk and resulted in multiple failures to receive proper medical treatment (even if that treatment would have been denial of drugs). 10 The committee determined that disbarment was the appropriate baseline sanction. Furthermore, it found no mitigating factors, rejecting Respondent s arguments regarding same. 11 Given the circumstances, the committee recommended permanent disbarment as the appropriate sanction citing Supreme Court Rule XIX, Appendix E, Guideline 5, which provides that conviction of a felony involving physical coercion or substantial damage to a person or property, including but not limited to armed robbery, arson or kidnapping may warrant permanent disbarment. 12 The committee noted, While not precisely on point with the threat to person created by Respondent's reckless prescription of controlled substances, the clearly increased risk of such substantial harm and even death, to multiple patients, is within the ambit of gravity illustrated by the guidelines. 13 ANALYSIS OF THE RECORD BEFORE THE BOARD I. Standard of Review The powers and duties of the Disciplinary Board are defined in 2 of Louisiana Supreme Court Rule XIX. Rule XIX, 2(G)(2)(a) states that the Board is to perform appellate review functions, consisting of review of the findings of fact, conclusions of law, and recommendations 10 Hearing Committee Report, p Hearing Committee Report, p Hearing Committee Report, p Hearing Committee Report, p. 5. 4

5 of hearing committees with respect to formal charges and petitions for reinstatement, and prepare and forward to the court its own findings, if any, and recommendations. Inasmuch as the Board is serving in an appellate capacity, the standard of review applied to findings of fact is that of manifest error. Arceneaux v. Domingue, 365 So. 2d 1330 (La. 1978); Rosell v. ESCO, 549 So. 2d 840 (La. 1989). The Board conducts a de novo review of the hearing committee s application of the Rules of Professional Conduct. In re Hill, 90-DB-004, Recommendation of the Louisiana Attorney Disciplinary Board (1/22/92). A. The Manifest Error Inquiry The factual findings of the committee do not appear to be manifestly erroneous, are supported by the record, and are adopted by the Board. Respondent was convicted of a felony which conclusively establishes his guilt. La. Sup. Ct. Rule XIX, Sec. 19 E. B. De Novo Review The committee correctly applied the Rules of Professional Conduct and properly concluded that Respondent violated Rules 8.4(a), 8.4(b). and 8.4(c). The Board adopts the committee s legal conclusions. II. The Appropriate Sanction A. Rule XIX, 10(C) Factors Louisiana Supreme Court Rule XIX, 10(C) states that when imposing a sanction after a finding of lawyer misconduct, the Court or Board shall consider the following factors: 1. whether the lawyer has violated a duty owed to a client, to the public, to the legal system, or to the profession; 2. whether the lawyer acted intentionally, knowingly, or negligently; 3. the amount of actual or potential injury caused by the lawyer s misconduct; and 4. the existence of any aggravating or mitigating factors. 5

6 Here, Respondent violated duties owed to the public and the profession by engaging in a criminal conspiracy to improperly dispense controlled substances. As to state of mind, Respondent was adjudged guilty of knowingly and willfully violating the law. 14 Respondent s failure to properly examine, diagnose and evaluate his patients for appropriate treatment or screen them for substance abuse and/or diversion, caused them both actual and potential harm, and also harmed the public. 15 Relative to the magnitude of the harm, the federal judge who presided over Respondent s sentencing characterized the harm inflicted by those associated with GPM, including Respondent, as serious bodily harm. 16 The Opinion and Ruling of the Louisiana State Board of Medical Examiners detailed the deficiencies in treatment of sixteen of Respondent s patients. 17 These findings indicate that Respondent prescribed controlled substances to those with histories of drug abuse, in instances when there was nothing in the patient s record to justify narcotic therapy, and to a patient who was overmedicated. Relative to one patient with obvious indications that she was obtaining drugs from multiple sources, Respondent continued to prescribe opiates and no effort was made to wean the patient off controlled substances, even though she had indicated a desire to do so. 14 ODC Exhibit 5. He was adjudged guilty of Conspiracy to Knowingly and Willfully Dispense and Causing to be Dispensed Schedule IV Controlled Substances. 15 ODC Exhibit 7. See also, ODC Exhibit 3. As summarized in the 11 th Circuit Court of Appeals decision, there was evidence showing that the criminal defendants, including Respondent: ignored evidence that their patients were abusing prescribed substances, they did not order routine and inexpensive drug screens to ensure that the patients were complying with the prescriptions, they refilled prescriptions early without questioning, they did not administer physical exams to ensure an underlying pathology and they wrote blanket prescriptions based upon previous doctors scripts. 16 The federal judge stated:... it was four years... dozens of patients, serious bodily harm... by licensed medical doctors who had notice that the patients were drug seekers and that some of the patients were diverting drugs... with some of the patients, these red flags, if you will, were ignored, and they were treated, as the jury has found, without legitimate medical justification. Respondent Exhibit 8, p. 120, lines 18-25; Hearing Transcript, p ODC Exhibit 3. See also, Respondent Exhibit 9. 6

7 Harm was sustained not only by Respondent s own patients, but also those to whom his patients diverted the narcotics. 18 The fact that the drugs being prescribed by Respondent were controlled substances protected by federal law is evidence enough that actual harm results when those substances reach the wrong hands. 19 In addition to harm sustained by his patients and the public, Respondent caused harm to the legal profession. The public expects lawyers to abide by the law. Whenever a member of the bar engages in criminal conduct, it tarnishes the reputation of the membership of the bar as a whole. 20 The committee found no mitigating factors present. The Board agrees with and adopts this finding. Respondent presented testimony regarding mitigation, which evidence the committee weighed and apparently rejected. While it may be true that Respondent had no prior disciplinary record and that he was relatively inexperienced in the practice of law, these factors bear no weight considering the attendant circumstances and misconduct. The pattern of misconduct forming the basis of this matter commenced prior to Respondent s admission as a lawyer and was unrelated to any experience or lack thereof in the practice of law. 21 While it is 18 The Opinion and Ruling of the Louisiana State Board of Medical Examiners reflects that 30-50% of all chronic pain patients are drug seekers or diverters. It is not an area of practice in which a conscientious physician can assume that his patient is telling him the truth... The provisions for consultations with treating physicians and for drug screens are in the rules for a reason, as is the provision for a complete physical examination. ODC Exhibit See 21 U.S.C. 801(2) ( improper use of controlled substances [has] a substantial and detrimental effect on the health and general welfare of the American people. ) 20 ABA Standard 5.0, Introduction. 21 Respondent was admitted to practice medicine in Louisiana in He was an obstetrician/gynecologist until 1997 when he was terminated from the LSU Medical Center where he had served as a faculty member. A related complaint was brought before the Medical Board resulting in a consent order signed in March of Respondent continued to practice medicine. Meanwhile, Respondent entered law school and completed his Loyola Law School education in December of 2004, and then applied for the bar. The Committee on Bar Admissions recommended denial of admission based on character and fitness grounds due to the pending Medical Board proceedings. A hearing before a Commissioner was subsequently held. The Commissioner recommended admission. After consideration by the Court, Respondent was admitted in January of Hearing Transcript, pp The only legal work performed by Respondent involved some consultation and legal research for other lawyers. The 7

8 true that Respondent has been subjected to other penalties or sanctions in the form of a felony conviction resulting in his serving actual time in prison, and the suspension of his medical license, the committee apparently found that these circumstances did not justify a reduction in the degree of discipline. 22 The committee considered Respondent s testimony relative to remorse and a cooperative attitude toward the proceedings and apparently found the testimony insufficient to establish these mitigating factors. 23 The Board will not disturb these findings. As to aggravating factors, although the committee made no specific findings, the Board finds that the record supports the aggravating factors of a dishonest or selfish motive, a pattern of misconduct, multiple offenses, and illegal conduct. In addition, the Board finds the aggravating factor of vulnerability of the victims. The committee noted in its Report that it disagreed with the rationale of the federal court, which declined to apply the vulnerable victim adjustment under the federal sentencing guidelines. 24 The Board agrees that the victims of Respondent s misconduct were vulnerable and therefore, it finds this aggravating factor to be present. B. The ABA Standards and Case Law The ABA Standards for Imposing Lawyer Sanctions indicates that disbarment is the baseline sanction in this matter. Standard 5.11 states: Disbarment is generally appropriate when: underlying misconduct occurred during the period of time that Respondent was employed by GPM (in or about June, 2004 through November of 2007). ODC Exhibit Hearing Transcript, p For example, when asked if he was remorseful, Respondent s first words were: Well I am extremely sorry that what we were doing turned out to be something illegal, and at no point during his answer to the question did he indicate remorse for putting patients and the public in harm s way. Hearing Transcript, p. 41. Although he later testified that he accepted that the doctors at the clinic did the wrong thing, he failed to demonstrate remorse for anything other than the adverse consequences he suffered a result of his misconduct ( I am very sorry for [my misconduct] because I really valued the practice of medicine ). Hearing Transcript, p. 41. Later, Respondent acknowledged that theoretically, ignoring pain protocols could harm patients, but testified, I don t feel like that applies to us specifically or me specifically Hearing Transcript, p. 49. Lastly, Respondent testified: I pled not guilty because I thought we were doing the right thing, at least I was, and that I could justify that, and apparently, the jury didn t agree. Hearing Transcript, p Hearing Committee Report, p. 5; Respondent Exhibits 8, 9 and 10. 8

9 (a) a lawyer engages in serious criminal conduct a necessary element of which includes intentional interference with the administration of justice, false swearing, misrepresentation, fraud, extortion, misappropriation, or theft; or the sale, distribution or importation of controlled substances; or the intentional killing of another; or an attempt or conspiracy or solicitation of another to commit any of these offenses; or (b) a lawyer engages in any other intentional conduct involving dishonesty, fraud, deceit, or misrepresentation that seriously adversely reflects on the lawyer s fitness to practice. Because Respondent engaged in the serious criminal conduct of conspiracy to dispense controlled substances, the baseline sanction is disbarment. Moreover, considering the particular conduct at issue, the Board adopts the committee s recommendation of permanent disbarment. The committee found support for its sanction recommendation in Guideline 5 which states that permanent disbarment is appropriate in cases in which there is a conviction of a felony involving physical coercion or substantial damage to person or property, including but not limited to armed robbery, arson, or kidnapping, noting that Respondent s misconduct falls within the ambit of gravity illustrated by the permanent disbarment guidelines. The Board agrees, and while the committee suggested that Guideline 5 may not be precisely on point, inasmuch as it found the evidence was not sufficient to establish that Respondent s misconduct directly resulted in a patient s death, the Board finds that significant harm was established through the federal court decisions and the Medical Board s opinion, discussed previously. Moreover, the Board finds that proof of direct and actual harm to a specific individual is not necessarily contemplated in Guideline Hearing Committee Report, pp The committee found that although the evidence did not clearly establish that Respondent s conduct directly caused the death of a patient, it found his prescribing practices subjected [E.A., a patient] to an increased risk of death. The narrative summary in the Coroner s report [ODC Exhibit 10] states: The cause of death is due to myocardial hypoxia due to pulmonary atelectasis due to recent drug intake. When questioned about the report, Respondent admitted that the Coroner s report implied that the recent drug intake caused or was a contributing factor in Ms. Averitt s death. Hearing Transcript, pp The only drug noted in the toxicology report was methadone. Respondent admitted that methadone was prescribed by GPM, however, he argued that the methadone in the decedent s system was within therapeutic levels. It is notable that at Respondent s 9

10 The Court has cited Guideline 5 on two prior occasions. In In re Meece, (La. 4/13/09); 6 So.3d 751 and In re Stephens, (La. 4/27/07); 955 So.2d 140, the Court permanently disbarred lawyers who committed the crime of armed bank robbery. In those cases, the respondents brandished firearms, placing others in danger of serious bodily harm. There was no evidence in those cases to suggest actual physical harm befell any of the individual victims of the crimes. No such evidentiary requirement should be imposed here. Even if it is determined that Guideline 5 does not specifically apply, the permanent disbarment guidelines are illustrative and are not intended to bind the Court in its decisionmaking. 26 Given the conduct under consideration, permanent disbarment is warranted. The Court has, on a prior occasion, permanently disbarred an attorney who was arrested for possession with the intent to distribute Schedule IV narcotics. See In re Richard, (La. 10/3/14); 148 So.3d 923. After a traffic stop and subsequent search revealed the presence of approximately 200 alprazolam (Xanax) tablets in Mr. Richard s vehicle, he was arrested and booked on a felony charge. Later, he was allowed to plead guilty to a misdemeanor (possession of drug paraphernalia), however the Court found the record supported a finding that Mr. Richard had conspired and arranged to sell controlled dangerous substances to an undercover narcotics officer. It found permanent disbarment was appropriate even though the conduct did not definitively fit any of the specific permanent disbarment guidelines. 27 The Court found Mr. criminal trial, evidence of the cause of E.A. s death was excluded due to the prosecution s inability to offer testimony by the toxicologist who produced the toxicology report. ODC Exhibit 7, pp ; United States v. DiLeo, 625 Fed.Appx. 464, (11th Cir. 2015). Recognizing that the Rules of Evidence are not strictly applied in disciplinary proceedings, the committee accepted the report into evidence. Respondent did not object to the introduction of the report and testified regarding its contents. Hearing Transcript, pp In re Minor, (La. 10/16/12); 100 So.3d The Court declined to apply Guideline 9, because the conduct at issue was not preceded by suspension or disbarment for prior serious misconduct. Guideline 9 indicates that permanent disbarment is appropriate in: Instances of serious attorney misconduct or conviction of a serious crime, when the misconduct or conviction is preceded by suspension or disbarment for prior instances of serious attorney 10

11 Richard s criminal conduct involving an intent to distribute controlled substances demonstrated a clear lack of moral fitness, which continued to place the public at risk and tarnished the image of the legal profession. It is notable that Respondent has argued that he was convicted of a conspiracy to dispense controlled substances and that no direct and actual harm has been proved. Mr. Richard, too, was found to have engaged in a conspiracy to sell controlled substances to an undercover officer. Though no direct and individual harm was proved, the Court found it appropriate to permanently disbar Mr. Richard. Schedule IV narcotics are protected specifically because of their potential to cause harm to those who use them. Respondent used his medical license to prescribe drugs to patients as part of a pill mill, disregarding the needs of his patients, as well as enabling drug seekers in diverting drugs. 28 He did so knowingly and willfully. This conduct, which spanned a period of three to four years, endangered the well-being of multiple patients and members of the public. His callous and selfish conduct is no less egregious than that of the respondent s in Meece, Stephens, and Richard, supra. Accordingly, the Board recommends that he be permanently disbarred. CONCLUSION The Board adopts the factual findings, conclusions, and sanction recommendation of the Committee as discussed herein. Accordingly, the Board recommends that Respondent be misconduct or conviction of a serious crime. Serious crime is defined in Rule XIX, Section 19. Serious attorney misconduct is defined for purposes of these guidelines as any misconduct which results in a suspension of more than one year. Mr. Richard had been disciplined for engaging in a physical altercation with his elderly father and forging a medical record at the request of a client. In re Richard, (La. 11/30/10); 50 So. 3d 1284 (Richard I). However, his disbarment in Richard 1 occurred after the conduct at issue in In re Richard, (La. 10/3/14); 148 So.3d Respondent Exhibit 8, Transcript of Sentencing Hearing, p. 120; Hearing Transcript pp

12 permanently disbarred. Additionally, the Board recommends that Respondent be assessed with the costs and expenses of this matter. RECOMMENDATION The Board recommends that Joseph George Pastorek, II, be permanently disbarred from the practice of law. It further recommends that he be assessed with all costs and expenses of these proceedings in accordance with Rule XIX, Section 10.1 (A). LOUISIANA ATTORNEY DISCIPLINARY BOARD Linda G. Bizzarro Pamela W. Carter Anderson 0. Dotson, III Sheila E. O'Leary Evans C. Spiceland, Jr. Melissa L. Theriot Walter D. White Charles H. Williamson, Jr. By: Danna E. Schwab FOR THE ADJUDICATIVE COMMITTEE 12