LOUISIANA ATTORNEY DISCIPLINARY BOARD IN RE RAMSEY T. MARCELLO NO. 16-DB-064 RECOMMENDATION TO THE LOUISIANA SUPREME COURT INTRODUCTION

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1 LOUISIANA ATTORNEY DISCIPLINARY BOARD 16-DB-064 8/2 /2017 IN RE RAMSEY T. MARCELLO NO. 16-DB-064 RECOMMENDATION TO THE LOUISIANA SUPREME COURT INTRODUCTION This readmission matter is based upon an application and petition filed by Ramsey T. Marcello ( Petitioner ), an attorney whose conditional admission was revoked by the Court. 1 The Office of Disciplinary Counsel ( ODC ) filed a response to the application, taking no position. A hearing was held and after considering the stipulations, hearing testimony and reviewing the documentary evidence submitted by Petitioner, the hearing committee ( committee ) assigned to the matter concluded that Petitioner had met his burden and recommended that he be readmitted to the practice of law subject to certain conditions. The ODC objected to the committee s recommendation, arguing that the Petitioner has not demonstrated compliance with the order of the Court revoking Petitioner s conditional admission. For the following reasons, the Board rejects the committee s finding that Petitioner has met the criteria for readmission required under La. Sup. Ct. Rule XIX, 24, and declines to recommend his readmission at this time. 1 Petitioner s bar roll number is and his primary registration address is 2512 Magazine St., Apt.G, New Orleans, La He was conditionally admitted on June 17, On July 15, 2011, he was placed on interim suspension and on November 16, 2011, his conditional admission was revoked.

2 PROCEDURAL HISTORY Petitioner was conditionally admitted to the practice of law in Louisiana on June 17, His conditional admission followed an investigation conducted by the Louisiana Supreme Court Committee on Bar Admissions which revealed Petitioner s criminal arrest history including a D.W.I. charge in 2001, possession of marijuana in February 2002, and public drunkenness in September On April 7, 2010, the Court conditionally admitted Petitioner for a period of one year from the date of admission. During the period of conditional admission, Petitioner was to be monitored for abstinence by the Lawyers Assistance Program ( LAP or JLAP ). 2 Petitioner was sworn as a member of the bar on June 17, In May of 2011, he attended a concert on the coast of Alabama, at which time he consumed alcohol and cocaine, mistakenly believing that he had completed his obligations under the Court s earlier order. Drug testing confirmed Petitioner s u s e o f alcohol and cocaine. The ODC filed a motion to revoke the Petitioner s conditional admission. In a response filed with the Court, Petitioner initially denied that he had used cocaine but later admitted that he had done so. 3 The Court placed Petitioner on interim suspension on July 15, 2011, and directed that a hearing be conducted on the revocation of his conditional admission. Petitioner agreed to submit to an independent professional evaluation by Bradford Health Services ( Bradford ), an entity approved by LAP, located in Warrior, Alabama. After assessment, in a letter dated August 15, 2011, Bradford recommended that Petitioner complete 2 Effective August 1, 2015, La. R.S. 37:221 was amended. Amendments included a change in the name of the entity from the Lawyer s Assistance Program ( LAP ) to the Judges and Lawyers Assistance Program, Inc. ( JLAP ). 3 In the revocation proceedings before the Court, Petitioner initially denied consuming cocaine, asserting in his opppostion: Although it is unfortunate that a mistake has put me in this position I do not believe that this one mistake should be fatal to my legal career. However, I am mystified by reports of this positive test and could state for a fact that I have never consumed the substance (cocaine).... 2

3 a six-week residential program for his substance related disorder and thereafter enter into a five-year monitoring agreement with LAP which would include quarterly hair tests. A hearing was held and the committee recommended that the conditional admission be revoked and that Petitioner not be allowed to seek readmission for thirty months. After considering the hearing committee s recommendation, on November 16, 2011, the Court ordered that the conditional admission be revoked and that the Petitioner would not be permitted to submit an application for readmission until he could demonstrate compliance with the recommendations made by Bradford in its August 15, 2011 report. In all events, the Court prohibited the applicant from seeking readmission to the practice of law for a period of at least thirty months from the date of the Court s order. Petitioner completed the six-week course of treatment recommended by Bradford from January 22, 2012 through March 31, As reflected in the discharge summary issued by Bradford, it was recommended that Petitioner follow up with LAP and, in addition, it recommended that he attend regular 12-Step meetings. Petitioner did not comply. 4 Some years later, in April of 2015, Petitioner contacted LAP. 5 The LAP Director recommended that a current assessment be obtained and arrangements were made for Petitioner to undergo an assessment at Clarity Institute in Nashville, Tennessee, a LAP approved entity. The evaluation concluded that Petitioner made unfortunate choices in 2011 and When he thought he had completed his one-year monitoring contract in 2011, he promptly attended a party and used alcohol and cocaine. He then attempted to conceal his behavior. For a period of time, he was drinking alcohol heavily and consistently as evidence by his GGT (liver enzyme) 4 Petitioner has argued that Bradford abandoned its recommendation that he enter into a five-year contract when it issued his discharge summary following his in-patient treatment. Even if the Board were to accept Petitioner s argument, which it does not, it is evident that Petitioner did not comply with the either the original Bradford recommendation or the purported revised recommendation. 5 Hearing Transcript, p

4 test administered at Bradford. After completing the program there, instead of signing a contract with LAP in an attempt to regain his law license, he chose to obtain alternate employment. The report further indicated that Petitioner was not alcohol or drug dependent at the time of reassessment. At the time he was tested at Clarity in April of 2015, he no longer had elevated GGT levels and there was no current evidence of a significant substance abuse problem. The report noted, however, that the PEth test, administered to Petitioner April 5, 2015, indicated that he had consumed a significant amount of alcohol in the days or weeks prior to the Clarity assessment. According to the report, Petitioner s history with substances, his behavior and the choices he made, were found to be problematic. As an example, James Walker, PhD, the Director of Clarity, thought it odd, considering the stakes, that Petitioner would consume significant amounts of alcohol, as evidenced by the results of the PEth test, in the days prior to the evaluation. Overall, the report noted that Petitioner s behavior could not be expected to engender a sense of confidence and trust in his professionalism and decision-making skills. Therefore, Dr. Walker recommended that Petitioner enter into an agreement to forego using drugs and alcohol for a period of twenty-four months, that he be monitored by LAP, and that he engage in some type of regular personal development group, whether AA, a professional coaching group, or some type of mutual support group. Petitioner did not immediately enter into a diagnostic monitoring agreement with LAP. Rather, on July 29, 2016, more than a year after the Clarity report was issued, he filed his petition with the Board seeking to be readmitted. Subsequently, on November 28, 2016, Petitioner sought a modification of the Court s November 16, 2011 order which revoked his conditional admission. He asked that language be 4

5 included in the order to allow him to demonstrate good and sufficient reasons why he should be readmitted notwithstanding his inability to establish full compliance with the recommendations in Bradford s August 15, 2011 report. The Court denied his request on the same date without comment. The following day, November 29, 2016, Petitioner signed a two-year diagnostic monitoring contract with JLAP. The ODC then filed a response to his petition taking no position as described in Rule XIX, 24, on November 30, The hearing was held on January 18, 2017, before Hearing Committee #33. 6 On April 27, 2017, the committee s report was issued. Considering language in the Court s prior order revoking Petitioner s conditional admission, the Board lodged the record directly with the Court. The ODC objected to the committee s report, filing an objection with the Court on May 3, On May 19, 2017, Petitioner filed with the Court, a Motion to Strike and/or Dismiss Objection by Office of Disciplinary Counsel, in which he moved to dismiss the ODC s objection to the committee s report as untimely. On June 5, 2017, the Court denied the Petitioner s motion and remanded the matter to the Board for consideration pursuant to Rule XIX, 24 (H)(2). The ODC filed an objection to the committee s report with the Board. Thereafter, Petitioner filed with the Board a Motion to Dismiss Office of Disciplinary Counsel Objection to April 12, 2017 Report of Hearing Committee No. 33 and Rule XIX, 24(H)(2) Proceedings. In his motion, Petitioner asked the Board to dismiss the ODC s objection to the committee s report as untimely and to dismiss the Board s Rule XIX, 24(H)(2) review of the committee s report. Considering the Court s earlier ruling on Petitioner s May 19, 2017 motion, the Board denied the motion. 7 6 Hearing Committee #33 was comprised of Arita M. Bohannan (Chair), Raquelle M. Badeaux-Phillips (Lawyer Member) and Verlean W. Randolph (Public Member). 7 Given the Court s order of June 5, 2017, remanding the matter to the Board for proceedings under Rule XIX, 24(H)(2), the Board denied Petitioner s motion. Moreover, relative to arguments concerning the timeliness of the 5

6 Argument before Panel A of the Board was held on July 18, Petitioner appeared with counsel, William W. Edelman. Chief Disciplinary Counsel Charles B. Plattsmier appeared on behalf of the ODC. CRITERIA FOR REINSTATEMENT A suspended or disbarred lawyer petitioning for reinstatement or readmission to practice must satisfy the procedural requirements outlined in Rule XIX, 24(A-D). Further, the lawyer must satisfy all the criteria detailed in Rule XIX, 24(E), or present good and sufficient reason why he should nevertheless be reinstated or readmitted to the practice of law. The petitioning lawyer has the burden of proving the satisfaction of each criterion by clear and convincing evidence. Rule XIX, 18(C). Rule XIX, 24, reads, in pertinent part: A. Generally. No lawyer may petition for reinstatement until six months before the period of suspension has expired. No lawyer may petition for readmission until five years after the effective date of disbarment.... B. Petition and Application. A petition for reinstatement or readmission must be under oath or affirmation under penalty of perjury and shall specify with particularity the manner in which the lawyer meets each of the criteria specified in paragraph E or, if not, why there is good and sufficient reason for reinstatement or readmission An application for reinstatement or readmission, also drafted under oath or affirmation under penalty of perjury, shall also be submitted by the lawyer. C. Service of Petition and Application. The lawyer shall file the petition and application with the disciplinary board and shall serve a copy of the petition and application (Parts I and II) on disciplinary counsel. D. Publication of Notice of Petition and Application. At the same time that a lawyer files a petition and application for reinstatement or readmission, the lawyer shall also publish a notice of the petition and application in the journal of the state bar and in a newspaper of general circulation in each judicial district in which the filing of the ODC s objection to the committee s report, the Board notes that under Rule XIX, Sec. 18(I), time limitations provided in Rule XIX are directory and not jurisdictional. 8 Board Panel A was comprised of Linda G. Bizzarro, (Chair), Danna E. Schwab (Lawyer Member) and Evans C. Spiceland, Jr. (Public Member). 6

7 lawyer maintained an office for the practice of law when the lawyer was suspended or disbarred. The notice shall inform members of the bar and the public about the petition and application for reinstatement or readmission, and shall request that any individuals file notice of their opposition or concurrence with the board within thirty days. In addition, the lawyer shall notify the complainant(s) in the disciplinary proceeding that led to the lawyer s suspension or disbarment that the lawyer is applying for reinstatement or readmission, and shall inform each complainant that he or she has thirty days to raise objections to or to support the lawyer s petition and application. E. Criteria for Reinstatement and Readmission. A lawyer may be reinstated or readmitted only if the lawyer meets each of the following criteria, and executes and files with the petition for reinstatement or readmission an application for reinstatement or readmission, a copy of which can be obtained from the board administrator, or, if not, presents good and sufficient reasons why the lawyer should nevertheless be reinstated or readmitted: (1) The lawyer has fully complied with the terms and conditions of all prior disciplinary orders except to the extent that they are abated under Section 25. (2) The lawyer has not engaged nor attempted to engage in the unauthorized practice of law during the period of suspension or disbarment. (3) If the lawyer was suffering under a physical or mental disability or infirmity at the time of suspension or disbarment, including alcohol or other drug abuse, the disability or infirmity has been removed. Where alcohol or other drug abuse was a causative factor in the lawyer's misconduct, the lawyer shall not be reinstated or readmitted unless: (a) the lawyer has pursued appropriate rehabilitative treatment; (b) the lawyer has abstained from the use of alcohol or other drugs for at least one year; and (c) the lawyer is likely to continue to abstain from alcohol or other drugs. (4) The lawyer recognizes the wrongfulness and seriousness of the misconduct for which the lawyer was suspended or disbarred. (5) The lawyer has not engaged in any other professional misconduct since suspension or disbarment. (6) Notwithstanding the conduct for which the lawyer was disciplined, the lawyer has the requisite honesty and integrity to practice law. (7) The lawyer has kept informed about recent developments in the law and is competent to practice and has satisfied MCLE requirements for the year of reinstatement or readmission. 7

8 (8) The lawyer has paid to the Louisiana State Bar Association currently owed bar dues. (9) The lawyer has paid all filing fees owed to the Clerk of Court and all disciplinary costs to the Disciplinary Board. (10) The lawyer has paid to the Disciplinary Board currently owed disciplinary administration and enforcement fees required under Section 8 (A) of this rule and has filed the registration statement required under Section 8(C) of this rule. (11) The lawyer shall obtain a certification from the Client Assistance Fund that no payments have been made by the Fund to any of the lawyer s clients. To the extent that Client Assistance Funds have been paid to qualifying clients, the lawyer shall obtain a certification from the Fund that the Fund has been reimbursed in its entirety, or alternatively, that a payment plan is in effect which will result in reimbursement to the Fund. STIPULATIONS There are no significant issues related to Rule XIX, 24(A) - (D). Petitioner and the ODC stipulated that the criteria set forth in 24(E)(7) (11) have been satisfied. The parties dispute the criteria set forth in 24(E)(1) (6). HEARING COMMITTEE REPORT After considering the record and evidence, including the testimony at the hearing, as well as the stipulations of the parties, the committee found that Petitioner met his burden of proof relative to the criteria set forth in Rule XIX, 24(E), and further, that he presented good and sufficient reasons why he should be readmitted. The most pertinent discussion relates to 24(E)(1), (3), (4) and (6), as discussed below. Under 24(E)(1), a lawyer seeking readmission is required to establish that he has fully complied with the terms and conditions of all prior discipline orders, except to the extent that they are abated under 25. The prior order of discipline (the November 16, 2011 order of the Court revoking Petitioner s conditional admission) required that he be in compliance with the recommendations made by Bradford Health Services in its August 15, 2011 report. This report 8

9 required Petitioner to complete a six-week residential treatment program and upon completion, that he enter into a five-year monitoring contract with LAP including quarterly hair tests. It is undisputed that Petitioner underwent treatment in the six-week program, however he did not enter into a five-year monitoring contract. The committee found that Petitioner did not follow the recommended course because he was emotionally spent and financially strained, so he stepped away from the pursuit. Several years later, when he contacted LAP about completing the program, he was not advised to follow the Bradford recommendation. Instead, LAP recommended that Petitioner be reassessed, leading to the report issued by Clarity Institute of Nashville, which concluded that Petitioner had no mental health or substance related diagnosis or issue that would impact his ability to function successfully and that he was currently fit for duty. 9 After considering the Clarity report, the committee interpreted the Court order to mean that Petitioner was required to follow all recommendations to ensure that he had no substance or mental health issues that would impede his ability to practice law. Under the circumstances, the committee determined that Petitioner had complied with the spirit of the Court s order. The committee went on to discuss 24(E)(3), which relates to lawyers suffering under physical or mental disabilities or infirmities at the time of suspension or disbarment, including alcohol or other drug abuse. In order to be readmitted, it must be shown that the disability or infirmity has been removed. Where alcohol or other drug abuse was a causative factor in misconduct, a lawyer shall not be reinstated or readmitted unless: a) the lawyer has pursued appropriate rehabilitative treatment; b) has abstained from the use of alcohol or other drugs for at least one year; and c) is likely to continue to abstain from alcohol or other drugs. In finding that Petitioner met this criterion, the committee determined that Petitioner voluntarily enrolled in and 9 Petitioner Exhibit F. 9

10 successfully completed t h e six-week residential treatment program at Bradford. Further, it accepted the opinion of Dr. Walker that Petitioner did not, at the time of hearing, suffer from any substance abuse issues and was fit for duty. The committee also relied on the testimony of Petitioner s supervisor, Avril Habetz, who testified as to Petitioner s performance at work. Finally, the committee found that alcohol or drug abuse was not a causative factor in the matter and that no member of the public was harmed. As to 24(E)(4), the committee found that Petitioner recognized the wrongfulness and seriousness of his conduct and that he was sincerely remorseful. Relative to 24(E)(6), the committee determined that notwithstanding the conduct for which Petitioner s conditional admission was revoked, including the misrepresentations made to the Court concerning his cocaine use, that he had the requisite honesty and integrity to practice law. The committee further concluded that Petitioner did not engage or attempt to engage in the practice of law under 24(E)(2), or any other professional misconduct as described in 24(E)(5). It also recognized that the parties stipulated to the criteria set forth in 24(E)(7)-(11), In addition to meeting the specific criteria set forth in 24(E), the committee found that Petitioner established good cause for his readmission, citing the following: A. Mr. Marcello is currently a financial service representative for Northwestern Mutual Life Insurance where he is commended for his work ethic and client commitment. He has successfully managed sophisticated accounts and clients and is well respected by his co-workers and supervisor who testified on his behalf B. Mr. Marcello now coaches little league, is involved in his Catholic church, is a member of the Youth Leadership Counsel and is channeling his energy into becoming a marathon runner. C. Dr. Walker, in his report,found Mr. Marcello to be a manofgenerallygoodcharacter who is living his life in a sober and healthy way. D. While the isolated actions that led to his revocation reflect poorly on him, he did not hurt a client, employer or the public with his actions. E. Mr. Marcello has demonstrated remorse for his actions, and the deep lessons learned were costly emotionally and financially. F. Primarily, time has passed. Mr. Marcello is ashamed of the mistakes of his youth and now 10

11 realizes how important his law license is to him on a personal level. The committee recommended that Petitioner be readmitted. It further recommended that his readmission be conditioned upon his compliance with his two-year monitoring agreement with LAP. Upon completion of the monitoring agreement, it recommended that Petitioner s conditional status be lifted and that he be admitted without conditions. ANALYSIS OF THE RECORD BEFORE THE BOARD I. The Standard of Review The powers and duties of the Disciplinary Board are defined in Section 2 of the Louisiana Supreme Court Rule XIX, Rules for Lawyer Disciplinary Enforcement. 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 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 legal determinations as well as its application of the Rules of Professional Conduct and/or Louisiana Supreme Court Rule XIX. See In re Hill, 90-DB-004, Recommendation of the Board (1/22/91). II. Preliminary Matters: 24(A) (D) Petitioner s petition and application appear to be timely filed. Though 24(A) does not specifically address the time for filing a petition for readmission following revocation of conditional admission, in this instance, the November 16, 2011 Order of the Court indicated that Petitioner was prohibited from seeking readmission for thirty months. The petition was filed on 11

12 July 29, 2016, more than thirty months after the order of revocation. Applying the terms of the revocation order, the petition was timely filed. Pursuant to 24(B), the petition and application were filed under oath or affirmation under penalty of perjury. Furthermore, the petition states with particularity the manner in which Petitioner meets the criteria in 24(E). Pursuant to 24(C), the petition and application were served upon ODC. Pursuant to 24(D), Petitioner published the appropriate notices of his intent to seek reinstatement/readmission in the Louisiana Bar Journal and in a newspaper of general circulation in the judicial district in which he maintained a law office. 10 III. Rule XIX, 24(E) Criteria The introductory paragraph of the rule provides that a lawyer may be readmitted only if the lawyer meets each of the criteria or, if not, presents good and sufficient reasons why the lawyer should nevertheless be readmitted. The committee found that Petitioner met the criteria, but also, that he established good and sufficient reasons why he should be readmitted. The ODC has argued that Petitioner has failed to comply with the Court s revocation order, which the Court has declined to modify, therefore he has not proven by clear and convincing evidence that he has met the criteria for readmission. The Board agrees with the ODC. The first criterion set forth in 24(E)(1) provides: The lawyer has fully complied with the terms and conditions of all prior disciplinary orders except to the extent that they are abated under Section 25. It is undisputed that Petitioner failed to comply with the terms of the Court s November 16, 2011 disciplinary order and that the terms and conditions have not been abated. The committee, essentially finding that facts did not exist to support a conclusion that this criterion was met, made a legal determination that Petitioner complied with the spirit of the 10 The record contains evidence of publication in the Louisiana Bar Journal ( message dated July 9, 2016) and receipt for publication on August 3, 2016 in the Alexandria Town Talk. 12

13 Court s order of November 16, The Board finds that the Court s order is clear and that Petitioner has not complied with the disciplinary order. The Court s order provides: follows: IT IS ORDERED that respondent s conditional admission to the practice of law in the State of Louisiana be revoked, effective immediately. Respondent may not submit an application for readmission until he can demonstrate compliance with the recommendations made by Bradford Health Services in its August 15, 2011 report, and in no event less than thirty months from the date of this order. Bradford Health Services made two recommendations in its August 15, 2011 report as 1) Mr. Marcello should complete 6 weeks of residential treatment for his substance related disorder in a center approved by the Louisiana Lawyers Assistance Program 2) Upon completion of treatment Mr. Marcello should enter into a 5-year monitoring contract with The Louisiana Lawyers Assistance Program that would include quarterly hair tests. It is undisputed that Petitioner failed to comply with the second recommendation. After completing the six-week residential program, he failed to enter a five-year contract with LAP. Given this fact, the Board finds that Petitioner has failed to meet the requirement set forth in 24(E)(1). Moreover, the Board finds that Petitioner has failed to establish good and sufficient reasons why he should nevertheless be readmitted. The facts show that Petitioner completed the six-week residential treatment program on March 21, Despite the fact that the Court had ordered him to comply with the Bradford recommendation and enter a five-year contract with LAP at that point, he chose not to do so. When asked why, he stated that it was due to a combination of many things. He testified that he was unhappy with the system in place, and that that he did not believe he needed treatment or constant monitoring. He believed his conduct was a result of misjudgment and poor decision making, not alcohol or drug dependency and that he did not need to follow a 12-Step program. 13

14 He also testified that he had suffered financially, had lost a high-paying job, and he felt like he needed to take a step back and regroup on his own. 11 In response to further questioning, he admitted that he chose to disregard the recommendations of the medical professionals at Bradford as to what they thought was the best course of treatment, and that he did not follow the order of the Supreme Court. 12 Rule XIX, 24(E) provides that a lawyer may be readmitted only if the lawyer meets each of the criteria or, if not, presents good and sufficient reasons why he should nevertheless be readmitted. While the committee concluded that Petitioner presented good and sufficient reasons why he should be readmitted, the Board disagrees. Petitioner admitted numerous times in his testimony that he did what he thought was best. That was his choice to make, but the Board does not believe that his choice constitutes good and sufficient reason to excuse him from the requirements of Rule XIX, Sec. 24(E). The Court considered the facts and circumstances surrounding Petitioner s criminal arrest history at the time he was admitted, and given that history, ordered that he establish a one-year period of sobriety from the date of his admission. He failed to do that. The Court then considered the facts and circumstances which led to the revocation of his conditional admission, including his attempt to conceal his cocaine use, and issued an order that took into account his conduct as well as expert recommendations for his treatment. He again failed to comply with the Court s order. He asked the Court to abate the conditions, which it declined to do, but is asking, yet again, for reconsideration. In its November 16, 2011 order revoking his conditional admission, the Court provided him with a path to regain his license. Petitioner made a choice not to comply with the Court s order, therefore, he has not yet established by clear and convincing evidence that he has met the 11 Hearing Transcript, p Id., p

15 readmission criteria. Six years after the issuance of the order, he has seemingly tried all possible avenues to avoid complying with the Court s order. It does not escape notice that had he timely complied, he could have completed his obligations under a five-year contract earlier this year. CONCLUSION Considering the foregoing, the Board declines to adopt the committee s conclusions that Petitioner has met the criteria for readmission and that he has established good and sufficient reasons why he should be readmitted at this time. Because Petitioner has failed to establish by clear and convincing evidence that he has met the requirements of Rule XIX, 24(E), the Board recommends that his petition be denied. RECOMMENDATION The Board recommends that the Petition for Readmission filed by Ramsey T. Marcello be denied. The Board further recommends that Mr. Marcello be assessed with all costs and expenses of these proceedings. LOUISIANA ATTORNEY DISCIPLINARY BOARD Linda G. Bizzarro Pamela W. Carter Anderson O. Dotson, III Sheila E. O Leary Evans C. Spiceland, Jr. Walter D. White Charles H. Williamson, Jr. By: Danna E. Schwab FOR THE ADJUDICATIVE COMMITTEE Melissa L. Theriot Dissents with reason. 15

16 LOUISIANA ATTORNEY DISCIPLINARY BOARD IN RE: RAMSEY MARCELLO DOCKET NO. 16-DB-064 DISSENT This case has been a procedural nightmare for a young lawyer, Marcello, who had a rough start due to his alcohol and drug abuse (not to mention lying to the Comt), walks away from the practice, cleans up his act, and now seeks reinstatement. Persuaded by the come-back story, the hearing committee finds "good and sufficient reason" for reinstatement even though Marcello has not met all of the enumerated criteria for reinstatement. The Board finds the opposite, focusing on the reasons he walked away six years ago. I dissent, and adopt the hearing committee's findings and recommendation for reinstatement. The procedural history that resonated with me is as follows: After disclosing his criminal history, he is conditionally admitted for one year, over two dissents from Justices Knoll and Weimer, who dissented because two doctors found no alcohol or substance dependency. (Applicant Exhibit 2). When he and LAP mistakenly believed his "conditional" year had been successfully completed, he celebrated by abusing alcohol and cocaine, then lied about it to the Supreme Court. He submits to an evaluation by a LAP-approved provider who requires in-patient treatment and a 5-year LAP contract. The Supreme Court revokes his conditional admission stating he must "demonstrate compliance" with the provider's August 15,2011 report if he ever seeks readmission. In re: Ramsey T Marcello, (La ), 74 So.3d 210. Marcello undergoes in-patient treatment, but rather than enter into a five-year LAP agreement, he walks away, and seeks other employment. In April of20 15, after two years of gainful employment with a reputable company and no other incidents involving alcohol or drugs since 2011, he changes his mind about abandoning his pursuit of his law license and contacts LAP. Mr. Stockwell wanted a new set of markers to determine where Marcello was with his alcohol and drug abuse. (Rec. p. 129). Marcello undergoes the requested evaluation by another LAP-approved provider, who reports no ongoing addiction but the PEth test, a blood alcohol test, reveals that Marcello engaged in a high use of alcohol within the last two to three weeks. (Rec. pp.

17 ). The provider pronounces Marcello fit for duty with no mental health or substance-related diagnosis or issue that would impact his ability to function successfully as a certified financial plrumer (current employment) or as an attorney. Ilowever, the provider recommends a two-year diagnostic monitoring agreement with LAP, which would require an agreement to avoid the use of any intoxicating substances in the twoyear diagnostic period due to the recent alcohol use in the face of an upcoming evaluation. (Rec. p. 132; Applicant Exhibit 5). The provider does not require that he attend AA meetings because this is not a recovery agreement, but does recommend some type of group experience involving other professionals. (Rec. p. 135). Marcello signs the two-year diagnostic monitoring agreement on November 29, 2016, approximately 1 Y2 years after this second evaluation. In the meantime, on the disciplinary side of things, Marcello files his Petition for Reinstatement/Readmission on July 29,2016, over a year after the second evaluation. Four months later, he files a motion to modify the Court's original order revoking his conditional admission. In the Motion to Modify, Marcello only asks that the Court include in its Order that Marcello could be readmitted and reinstated if he can demonstrate by clear and convincing evidence that good and sufficient reason exists why he should be reinstated or readmitted, notwithstanding any ability to demonstrate his full and complete compliance with the portion of the Court's Order of November 16, " This merely re-states the standard of Rule 19 24E, which provides that "a lawyer may be reinstated or readmitted only if the lawyer meets each of the following criteria... or, if not, presents good and sufficient reason why the lawyer should nevertheless be reinstated or readmitted. S.Ct. Rule XIX 24E. But, in support of his motion, Marcello presented argument and evidence of his work history, community activities, and the re-evaluation by the second provider, all of which is very similar to his presentation at the hearing. The Court denied the request for modification without reason on November 16,2016. The Court could have denied the request because it was not impressed with Mr. Marcello's evidence of rehabilitation, or, the Court could have denied the request because it simply re-states the standru d already included in the rules and the modification might suggest an outcome to the Hearing Committee tasked with making a recommendation on readmission. Within a few days of the Court's denial, ODC, in a formal pleading, takes no position on the petition for reinstatement. After the hearing, ODC objected to the Hearing Committee recommendation because the Hearing Committee did not address the Court's denial of the Motion to Modify. The matter was referred to the Board for review and recommendation. As previously stated, the Court's denial of the motion to modify without reason provides little substantive guidance. The motion did not request that the order be modified to comply with the results of the second evaluation, but instead merely asked that the section 24 standard be incorporated. The denial of the motion seems analogous to a writ denial, which generally should be given no weight.

18 Since there appears to be no dispute that Marcello did not comply with the 2011 Order and has not abstained from alcohol for a year or more, Marcello has not complied with the 24E requirements, nor has the original order been abated or modified under section 25. Therefore, the determinative inquiry is whether Marcello presented clear and convincing evidence of"good and sufficient reason why the lawyer should nevertheless be reinstated or readmitted." It is unclear whether this is a factual or legal determination, but even if it is a legal determination, it is a highly factual inquiry. A hearing committee's factual findings are to be reviewed for manifest error, and ODC in its brief seems to concede that "manifest error" is the correct standard of revtew. Here, there is ample evidence to support the hearing committee's finding. The second, more recent evaluation, with another LAP-approved provider, had results markedly different from the original with different recommendations for Marcello's return to practice. Additionally, the evidence of his employment, support of his current supervisor and community activities also support the Hearing Committee's fmdings and recommendation. Marcello's reasons for not immediately entering a 5-year LAP contract in 2011 do not render the Hearing Committee's findings manifestly erroneous. The Court's 2011 order simply imposed as requirements the recommendation of the first provider. A second provider has now conducted an updated evaluation with updated recommendations. I do not believe our standards should be so strictly construed as to ignore intervening developments when 24 permits us to consider "good and sufficient reason" when strict compliance with the 24 factors does not occur. The Hearing Committee heard the testimony and evaluated the credibility of the witnesses. Absent manifest error, we should not contravene. LOUISIANA ATTORNEY DISCIPLINARY BOARD By: 11/(vu~&~T Board Member