ORIGINAL LOUISIANA ATTORNEY DISCIPLINARY BOARD IN RE: JOHN D. RAY NUMBER: 11-DB-101 RECOMMENDATION TO THE LOUISIANA SUPREME COURT

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1 ORIGINAL LOUISIANA ATTORNEY DISCIPLINARY BOARD 11-DB-101 6/3/2013 IN RE: JOHN D. RAY NUMBER: 11-DB-101 RECOMMENDATION TO THE LOUISIANA SUPREME COURT This is a disciplinary proceeding based upon formal charges filed by the Office of Disciplinary Counsel ( ODC ) against John D. Ray ( Respondent ), Louisiana Bar Roll No The charges allege Respondent violated the following Rules of Professional Conduct ( Rule(s) ): 1.1(c) (failing to pay bar dues), 5.5(a) (engaging in the practice of law during a period of ineligibility), and 8.4(a) (violating or attempt to violate the Rules of Professional Conduct). 1 The Hearing Committee assigned to this matter concluded that Respondent violated the Rules as charged. For the reasons stated below, the Board adopts the factual findings, legal conclusions, and sanction recommendation of the Hearing Committee. Thus, the Board recommends a one year and one day suspension with all but sixty days deferred and two years unsupervised probation as the appropriate sanction. The two year period of unsupervised probation shall be subject to the following conditions: (1) During the entire time of the probation Respondent shall pay all bar dues and assessments levied by the Disciplinary Board and Bar Association when due without fail; and (2) During the entire time of the probation, Respondent shall comply with all continuing legal education requirements and shall do so in a timely manner. 1 See the attached Appendix for the text of the Rules. 1

2 PROCEDURAL HISTORY The formal charges were filed in this matter on November 11, 2011, alleging violations of Rules 1.1(c), 5.5(a), and 8.4(a). Dane S. Ciolino enrolled as counsel for Respondent and answered the formal charges on December 12, In his answer, Respondent admits the Rule violations and contests a single allegation in the formal charges. The matter was assigned to Hearing Committee No. 1 ( the Committee ). 2 ODC filed its pre-hearing memorandum on March 8, Respondent filed his pre-hearing memorandum on March 21, The hearing was held as scheduled on April 3, 2012, before Committee No. 1. The Committee issued its report on October 10, 2012, and recommended Respondent receive a one year and one day suspension with all but sixty days deferred with a two year unsupervised probation period. Notice of a Board Panel was issued on October 11, On October 15, 2012, ODC filed an objection to the recommendation of the Committee, arguing in favor of a full one year and one day suspension with no deferral. Respondent filed an unopposed motion to continue oral argument in front of the Board due to an unspecified prior engagement. On November 7, 2012, the motion for a continuance was granted. On November 2, 2012, ODC filed its preargument brief in this matter. On January 2, 2013, Respondent filed his pre-argument brief in which the Respondent accepted the conclusions and recommendations of the Committee and requested that the Board adopt them. Oral argument of this matter was held before Board Panel A on January 31, Chief Disciplinary Counsel Charles B. Plattsmier appeared on behalf of ODC. Respondent 2 Hearing Committee No. 1 was composed of Martin S. Bohman (Chairman), Anthony Bradley Berner (Lawyer Member), and Rosella Williams (Public Member). 2

3 appeared with his attorney, Dane S. Ciolino. On March 26, 2013, Respondent filed an unopposed motion to supplement the record with additional case law in support of his proposed sanction. On April 3, 2013, the Board granted Respondent s unopposed request to supplement the record with additional case law. Respondent s Supplemental Submission was filed on the same day. The ODC did not file a brief in response. In pertinent part, THE FORMAL CHARGES I. The Respondent in this matter is John D. Ray (Bar Roll No ), a forty-three year old attorney born July 19, 1968 and licensed to practice law in the State of Louisiana [on] April 23, 1999 after graduating from Southern University Law Center. The Respondent is currently employed by the Louisiana Department of Justice (Attorney General's Office) and has no prior disciplinary history. II. Since his admission to the Bar in April of 1999, the Respondent has had eight different periods of ineligibility as follows: September 4, September 11, 2001 September 4, September 4, 2002 June 2, December 20, 2004 September 7, December 20, 2004 October 31, December 28, 2005 October 8, October 22, 2007 September 9, June 17, 2010 September 10, 20l0 - June 3, 2011 Supreme Court Ineligible (7 days) Supreme Court Ineligible (1 day) MCLE Ineligible (6 months) Supreme Court Ineligible (4 months) Supreme Court Ineligible (2 months) Supreme Court Ineligible (14 days) Supreme Court Ineligible (9-1/2 months) Supreme Court Ineligible (8 months) III. The Respondent's sworn testimony was taken by the Office of Disciplinary Counsel on September 27, 2011, and during the course of that sworn statement the Respondent acknowledged handling multiple cases and multiple files over the years during his periods of ineligibility. The Respondent's multiple periods of ineligibility reflect violations of rule 1.1(c). The Respondent's practice of law during periods of ineligibility reflects violations of Rule 5.5(a). The Respondent has violated or attempted to violate the Rules of Professional Conduct in violation of Rule 8.4(a). 3 Board Panel A was composed of Carl A. Butler (Chairman), R. Steven Tew (Lawyer Member) and R. Lewis Smith, Jr. (Public Member). 3

4 THE HEARING COMMITTEE REPORT As noted above, the hearing was held as scheduled on April 3, The Committee heard testimony from Ms. Kathleen Hymel, Mr. Blake Monrose, Mr. Robert E. Harroun, III, and Respondent. The Committee issued its report on October 10, Based on the testimony presented and review of additional documentary evidence, the Committee made the following findings of fact: ANALYSIS OF THE EVIDENCE With the exception of the alleged 2004 MCLE ineligibility period, Respondent has acknowledged each of the periods of ineligibility set forth in ODC 3 (See T.30, L 5-6). On this issue, the Committee heard from Kathleen "Kitty" Hymel. Ms. Hymel, director of the MCLE Committee, was called by ODC to explain what transpired that led to Mr. Ray being declared ineligible in At the hearing Ms. Hymel explained that this was as a result of Mr. Ray's ongoing non-compliance dating back to She testified as follows: BY MR. PLATTSMIER: Q A Q A All right. And do you have information that can help explain both to Mr. Ray and perhaps for the benefit of the committee whether or not that entry of ineligibility in 2004 is accurate? Okay. Sure. Yes, I do. All right. Well, he did go ineligible because we have his ineligibility notice and his reinstatement notice. So the terms of that -- that in and out period are accurate. Here is his notice of ineligibility that was going to take effect on June 2, And here is his reinstatement that says he is reinstated effective December 20, Explain to the committee please how your records reflect Mr. Ray became ineligible, if you can. Okay. It traces back to the year And there's a little bit of a delay in here. And I want to be up front about that. Because 2002 is the year we started our new computer system at the bar. And we also went from a - that's when we also went from the 50-minute hour to the 60-minute hour. So some of these numbers will jump a little bit because of that. In 2002, Mr. Ray had a total of - and let me pull out - I have access to his transcript records. In 2002, Mr. Ray had a carry forward of eight hours. And he earned back then 7.2 hours, 50-minute basis, for a workers 4

5 compensation program that had no ethics or professionalism. He also - well, that was actually all he earned for that year. So he was short of his ethics and professionalism course. Now, he made those up in 2004 before that December 20 th date which is how he got to become reinstated. On his records, you'll see there's a notice of an ethics panel discussion. It's dated 12/20/2002. That's the date it was backed up to. And there's also a professionalism course, 12/30/2002. Both of these are an hour, or 1.20 credits, based on the 50 or 60 minutes. But those credits actually were earned in 2004 at Ends [sic] of Court programs. Let's see. The ethics panel discussion, which again shows up on 10/14/2004 as a zero entry, which means those hours were zeroed out, backed up into Again, professionalism on November 18, 2004, zeroed out and backed up to that December entry in So he actually earned his ethics and professionalism for 2002 in the year Q A Q A Q A Q A Q A All right. And then he paid his late fee in December of I have on the database that the deposit was made on the 27 th. But I'm - I'm quite sure that that was just when they deposited it. Because it would not have been dated 12/20 had we received it on 12/27, so According to the record for the year 2002, he had continuing legal education obligations which included one hour of ethics and one hour of professionalism? Yes. He simply did not secure during 2002 an hour of ethics or an hour of professionalism; is that correct? That's correct. All right. He [Respondent] would've been put on notice of that in the normal course of business? Yes. Because of administrative matters that were going on in your committee, it's my understanding that from your testimony, that the committee did not get around perhaps to actually putting him on an ineligible status until June of 2004? Yes. That's correct. [T.30, L.l7- T.33, L.24] 5

6 As the Committee appreciates this testimony, Respondent, for whatever reason in 2002, failed to obtain the one (1) hour of ethics and the one (1) hour of professionalism that each lawyer admitted to practice in Louisiana must obtain every year. As most practicing lawyers know, these particular hourly requirements do not carry forward and must be obtained every year. While, as Ms. Hymel candidly stated, the MCLE committee did not ultimately get around to placing Mr. Ray on ineligible status until 2004, a year or so later, [FN3] Respondent nevertheless would have known about his non-compliance much earlier, in the beginning of FN3 Mr. Ray would have been non-compliant in 2002 but normally would not be declared "ineligible" until 2003 so the actual delay as it were in the declaration of ineligibility is somewhere around a year actual time. [T.33, L/25 - T.34, L.l]. What happened in 2004 according to Ms. Hymel was that once the MCLE Committee's computer system was up and running again, Respondent was declared ineligible. Thereafter, Mr. Ray obtained an additional hour of both ethics and professionalism, but he did so in The MCLE Committee then backdated these hours to [T.34, L ]. It was this backdating and the subsequent payment of the late fee and reinstatement fee that resulted in Respondent's eligibility being restored in The committee does feel that the fact Mr. Ray would have been on notice of his non-compliance in early 2003 is significant even if his ineligibility was not formally declared until mid One gets close to splitting hairs here but the lawyer's obligation is not, in this Committee's view, to avoid being declared "ineligible" or to rectify any ineligibility when declared, but rather to stay compliant in the first instance. Speaking of rectification, there is an ancillary issue here that needs to be addressed and dealt with head on and that is the issue of the effect of Mr. Ray's payment of the late fee and reinstatement fee and the effect that this may have had on the alleged rule violations. As was stated above, Mr. Ray candidly admits that he was ineligible for the periods as outlined in ODC 3. Moreover, when called to the stand as a witness briefly in ODC's case-in-chief, Mr. Ray stopped short of admitting the ineligibility that Ms. Hymel discussed above but offered no strong opposition [FN4] and the Committee concludes herein that ODC has carried its burden of proving by clear and convincing evidence that Respondent was MCLE ineligible in 2004 as set forth in ODC 3 not for noncompliance in 2003 but rather for Respondent also candidly admitted under oath that he: (1) had multiple periods of ineligibility, and (2) that there were multiple periods of time in which he engaged in the practice of law while ineligible to do so. (See T.59, L ). The Committee notes that, at least from Respondent's perspective then the question arises as to what the effect the periods of ineligibility had and what his rectification means in this context. 6

7 FN4 Respondent testified after hearing Ms. Hymel's testimony that "it seemed to explain it all" and that it "made sense" but stopped short of formally admitting the violation. (T. 58, L.l0; 13-14). Later he stated that he did not "contest" her explanation as to what happened. (T.87, L.4-5). Mr. Ray's principal defense is that while he admits to being ineligible on certain occasions and while he admits that he practiced law during those respective periods of ineligibility, Mr. Ray maintains that he did so "negligently" in the sense that he was operating under a belief that his later payment of the late fees and reinstatement fee would cure his ineligibility. ODC on the other hand argues that Mr. Ray must have known what he was doing given the circumstances. Clearly given these facts and the matter as presented, in order to recommend a sanction the Committee must address the issue of knowledge and intent. At the hearing on this issue, Mr. Ray's testimony in this regard is as follows: BY MR. CIOLINO: Q. Mr. Ray, you're already under oath. And you've already testified on direct. I have a few follow up questions to ask you on our direct case. I guess the big question is, why? Why is it that on all of these occasions, you failed to timely pay your bar dues? A. I suppose that there is no good excuse. I shouldn't have done it. And the time - number of times that it happened is - is bad. But there were different things that I talk about in my sworn statement that I felt sometimes there were health issues, sometimes there were finances. Most of the time, they were linked. And I did - I would pay them. And when I would pay them, I would pay a late fee. And I would - wrongly assumed that that took - that that was some type of penalty, or that was the - the - the punishment for that period of time. I know - I know that that's not the case now, but I didn't - I didn't - it may not be an excuse, but that's - that was my appreciation of it at that time. Q. Are you telling the committee that in all these cases, you didn't pay your bar dues because you were sick or because you didn't have the money? Is that what you're saying? A. Yes, sir. Q. Is that - now, let me back up. There are several periods of ineligibility. A. Yes. Q. All right. You're not sitting here trying to go through each period of 7

8 ineligibility to explain what happened in each case, are you? A. No, I'm not. Q. All right. Now, one issue that the committee's got to consider is whether you practiced law knowingly and intentionally while ineligible to do so. A. Right. Q. Do you admit that you, in fact, practiced law while ineligible to do so? A. Yes. Q. Did you do that knowingly and intentionally? A. No. Q. How is it that you practiced law while ineligible to do so, but you didn't do it knowingly and intentionally? A. Given what I know now, leading up to this hearing, I guess that sounds - you know, it's pretty - sounds pretty dumb, but again, I go back to the fact that I - I paid the fee for the Disciplinary Counsel and - or, the penalty for the Disciplinary Counsel and - and the bar - case of the bar dues each time. And I - I really did wrongly assume that that was that that was the penalty. Because I would receive a letter of good standing. I would receive a letter - everything you know, all the paperwork that would indicate that I was eligible to practice. And nothing was ever said about it. Not that they - they should have. Just that was a stupid assumption on my part. [T.81, L.7- T.83, L.25] Here, in the Committee's view, Mr. Ray is indicating that he felt as though the late fees and the reinstatement fees he paid over the years were in and of themselves the "penalty" for practicing law while ineligible and once he received his subsequent letter of good standing, the matter was resolved. In other words, in Mr. Ray's view the late fee and the reinstatement fee once levied and paid cured his ineligibility nunc pro tunc. While he does indicate that this nun pro tunc view [the Committee's term not Respondent's] may be erroneous, or in his words a "stupid assumption" he nevertheless maintains that it was not his intent to practice law while ineligible. On cross-examination, Mr. Ray further reiterates his position thusly: BY MR. PLATTSMIER: 8

9 Q A Q A Q A Q A. Q A I'd like you to explain to the committee, if you might, how it is in less than - a little more than 60 days later, you got declared ineligible again. This time, September 10, 2010, once again, for failure to turn in your registration statement, your bar dues and disciplinary assessment for that year. How could that possibly be? You just had to deal with the Bar. You knew the consequences. How could that be? Again, I know it's not an excuse, but I go back to my perception of what our funds were, where we were at, historically what had happened in the past, and my understanding of - of how that - my payment of the penalties and my incorrect appreciation of what that - what effect those penalties had. I just want to make sure, because Mr. Ciolino asked you the question did you knowingly practice law, intentionally practice law during the period of ineligibility. You darn sure knew you were ineligible and you continued to practice, though, didn't you? I didn't think that it had that type of effect. I understand it's ineligible, but I I I thought there was a distinction between that and permitted to practice. I'm sorry. I didn't understand your - maybe I wasn't listening close enough. Did you under - you have acknowledged to each one of my questions having received a letter from the Louisiana Supreme Court declaring you ineligible to practice law, did you not? Yes. You do know what the word "ineligible" means? Yes, sir Not eligible. Can't do it. You understood that, correct? Yes, sir. Q. And yet, you continued to practice law notwithstanding? Yes? A I continued, yes. [T.81, L.7- T.83, L.25] Mr. Ray is thus not contesting that he was ineligible or that he practiced law while ineligible. What Mr. Ray is asserting is that he did so negligently due to his belief that his subsequent payment of the fees would be curative of his 9

10 ineligibility nunc pro tunc. The nature of this defense colors other facts necessary to a proper determination of this matter because Respondent's belief may have colored other actions taken by him over the years. Take for instance what the Committee feels ordinarily would be a highly significant fact; namely, the fact that Mr. Ray did not disclose to his supervisor at the Department of Justice, Mr. Harroun, that he was ineligible to practice during the respective periods when his employment overlapped certain periods of ineligibility. Mr. Harroun testified that (1) ineligibility would put Mr. Ray's job in peril, that (2) he, meaning Mr. Harroun, was never made aware prior to ODC launching its investigation into Mr. Ray's conduct that there were these intermittent periods of ineligibility, and (3) that all assistant attorneys general are required to be licensed lawyers who are eligible to practice. [FN5] The question then becomes, did Mr. Ray fail to disclose this fact because he was aware he was engaging in misconduct contrary to the ROPC (i.e. is this non-disclosure reflective of an "intentional" violation and subsequent concealment) or rather because Respondent fully intended to pay his late fee and reinstatement fee later and a consequence of his erroneous belief as to the curative effect of subsequent payment such that there was no real need to report his periodic ineligibility? (i.e. he had no improper intent but rather didn't report his ineligibility because of his erroneous view). The point being that much if not all of this case is colored by Mr. Ray's assertion as to his state of mind and level of awareness of the effect of his failure to pay his dues and thus this Committee must, if it is to reach a fair and logical recommendation, address and place this into context for analysis. This is conceptually no small task. It is also a task that may have a significant impact on Mr. Ray's ultimate sanction but it is nonetheless an issue that cannot be skirted. FN5 Mr. Harroun's testimony on these points can be found in the transcript at (1) T. 76, L , (2) T.75, L , and (3) T.77, L , respectively. Before addressing the issue of knowledge, however, since that involves a mixed question, there are a few other facts that bear mention and other issues that the Committee herein needs to address. The first is credibility. As was noted in the section concerning the hearing, the Committee heard from four (4) live witnesses. Despite the differing views as between the parties hereto, the Committee wishes to note that all of the witnesses it heard from, the committee deems to be credible, including the Respondent. Ms. Hymel's credibility is not in question and her testimony was straightforward. Likewise, Mr. Monrose's testimony, favorable to the Respondent on the issues of his professionalism and character, was not in question. The same is true for Mr. Harroun. Listening to Mr. Harroun testify on Mr. Ray's behalf, one is left with the definite impression that Mr. Harroun genuinely holds a favorable view of Mr. Ray as a practicing attorney. Moreover, Mr. Harroun's credibility was bolstered on 10

11 cross-examination when he reacted appropriately to the revelation that perhaps Mr. Ray was less than candid about his history of ineligibility over the years. Finally, and the Committee feels that this is important to note, while one may question the reasonableness of Mr. Ray's belief and while one needs to further place his testimony in the context of a Respondent who is in the untenable position of having to admit to facts which may give rise to a suspension from the practice of law, he nevertheless appeared to be testifying candidly and truthfully overall. Certainly, Mr. Ray was cooperative, respectful, and up front about much if not all of the facts underlying the charges at hand. It is important to note this for the record because this candor is somewhat uncommon in these types of proceedings. It was nevertheless present here. In addition, from a factual standpoint, it is important to note that the testimony concerning Respondent's character and practice of law was well received by the committee and is not seriously in issue. Finally, the Committee notes that Respondent has carried his burden of establishing the existence of several factors in mitigation, most notably with respect to the medical issues and attendant financial issues which Mr. Ray faced over the years. The Committee wants the record to reflect that while this fact alone may not be dispositive of the ultimate sanction recommended herein, it is clear that Respondent's repeated dereliction of his duty to pay his dues timely and to attend to the business of keeping his registration up to date notwithstanding, there is no evidence that Respondent ever let his personal problems affect the discharge of his duties to his employer in terms of performing the work assigned (although there is a potential for harm if any of his work were to be invalidated by reason of his ineligibility) and moreover that his professionalism never appears to have suffered during the periods in which he was dealing with acute financial distress and health issues. While a lawyers ability to act in a professional manner absolutely cannot excuse a separate and independent violation of the rules, it should be noted that the record herein establishes that Respondent has over time demonstrated a certain modicum of professionalism that other lawyers, dealing with much less in their personal lives, cannot or chose not to maintain. Having said this, the real issue herein for the Committee's determination, since the underlying facts are not truly in issue, is whether Respondent "knowingly" or negligently violated the rules and, if so, what the sanction should be. Before so doing, the Committee wants to clearly articulate its findings of fact and conclusions to properly frame the issue. FINDINGS OF FACT AND CONCLUSIONS With respect to the factual issues in this matter, the committee finds as follows: 1. Respondent, John D. Ray, was ineligible to practice law from September 4, 2001 to September 11, 2001; 11

12 2. Respondent, John D. Ray, was ineligible to practice law from September 4, 2002 to September 4, 2002; 3. Respondent, John D. Ray, was ineligible to practice law from June 2, 2004 to December 20, 2004 as a result of MCLE ineligibility; 4. Respondent, John D. Ray, was ineligible to practice law from September 7, 2004 to December 20, 2004; 5. Respondent, John D. Ray, was ineligible to practice law from October 31, 2005 to December 28, 2005; 6. Respondent, John D. Ray, was ineligible to practice law from October 8, 2007 to October 22, 2007; 7. Respondent, John D. Ray, was ineligible to practice law from September 9, 2009 to June 17, 2010; 8. Respondent, John D. Ray, was ineligible to practice law from September 10, 2010 to June 3, 2011; 9. In 2003 Respondent s employer (Hurlburt, Monrose, et al.) paid his bar dues and assessments; 10. That Respondent was employed as an attorney and engaged in activity that constitutes the practice of law during the periods of ineligibility that the Committee has found to have been established; 11. That Respondent received adequate notice of his bar dues and assessments on a yearly basis; 12. That Respondent, John D. Ray, received adequate notice of his MCLE non compliance relative to year 2002; 13. That in multiple years and on multiple instances, Respondent knowingly failed to pay his bar dues and assessments and assessments timely resulting in seven (7) separate periods of ineligibility over the course of several years; 14. That prior to the year 2010, Respondent never petitioned the [LSBA and LADB] for relief; 15. That Respondent, John D. Ray, did not disclose to his employer(s) his various periods of ineligibility; 12

13 16. That Respondent, John D. Ray, never self-reported to the Bar Association that he had engaged in the practice of law while ineligible, as a matter of fact; 17. That Respondent, John D. Ray, has in every instance cured his ineligibility by paying his dues and assessments, a late fee, and a reinstatement fee; 18. That Respondent, John D. Ray, failed to obtain the required hours of professionalism and ethics in 2002 and that said failure resulted in his being declared MCLE ineligible in 2004; 19. That Respondent, John D. Ray, has consistently in years other than 2002 obtained continuing legal education in excess of the required amount for lawyers admitted in Louisiana, in some years receiving as much as 5 times the required amount; 20. That Respondent, John D. Ray, has no prior disciplinary record; 21. That Respondent, John D. Ray, has paid all of the monetary sanctions levied in connection with his reinstatement over the various periods of ineligibility; 22. That there is no evidence that Respondent, John D. Ray, neglected any client matters or failed to act with diligence and promptness in any professional aspect other than the payment of his bar dues and assessments; 23. That no motive, other than financial, has been established; 24. That Respondent has significant health issues; 25. That no actual harm was in fact visited upon Respondent's clients; 26. That Respondent, John D. Ray, has cooperated with ODC in connection with this matter. Further, in connection with the above facts that have been not only established through stipulation and admission, but also by independent review of the records duly admitted into evidence in this matter, the committee concludes as follows: 1. That Respondent intentionally violated Rule 1.1 (c) of the Rules of Professional Conduct in that he intentionally failed to pay his Bar dues and disciplinary assessment on multiple occasions (See discussion, infra); 2. That Respondent's violation of the Rules of Professional Conduct concerning his 2004 declaration of ineligibility as a consequence of his failure to comply with the MCLE requirements in 2002 was negligent; 13

14 3. That Respondent knowingly violated Rule 5.5(a) and Rule 8.4(a) of the Rules of Professional Conduct by engaging in activity that constitutes the practice of law while ineligible to do so; 4. That Respondent's actions created the potential for client harm but that no actual harm has been established. RULE VIOLATIONS/MISCONDUCT Turning to the rule violations themselves, the burden is on ODC to prove by "clear and convincing evidence" each allegation of misconduct it has made against Mr. Ray. [FN6] Respondent is charged with violations of Rule 1.1(c) (competence), Rule 5.5(a) (unauthorized practice of law), and Rule 8.4(a) (misconduct). It should be noted that as to the underlying facts, the misconduct is uncontested and has been established. As such, ODC has met its burden of establishing the existence of a violation of the Rules of Professional Conduct and therefore that there exists as to Respondent, John D. Ray, misconduct warranting discipline in this matter. FN6 See e.g. Louisiana Supreme Court Rule XIX 18(C) ("Standard of Proof. Formal Charges of misconduct... shall be established by clear and convincing evidence."); See also, In Re Quaid, 646 So.2d 343, 348 (La. 1994). Given the comments from counsel on both sides and the Respondent, it is evident that all involved in this proceeding expect and agree that some form of discipline needs to be recommended. As to sanction, however, the parties disagree. The disagreement is both quantitative and qualitative and as such an analysis of the rules given the established facts is warranted. A. THE RULE 1.1(C) VIOLATION(S) Rule 1.1 (c) states as follows: A lawyer is required to comply with all of the requirements of the Supreme Court's rules regarding annual registration, including payment of Bar dues, payment of the disciplinary assessment, timely notification of changes of address, and proper disclosure of trust account information or any changes therein. [Rule 1.1(c)] (Emphasis added by HCJ). It is clear that Respondent did not comply with the requirements of ROPC Rule 1.1(c). This much is not in dispute. It is likewise not in dispute that this occurred on seven (7) separate occasions during a career that spanned, as of the point in time at which the formal charges were filed, roughly ten years. The periods of ineligibility set forth in ODC 3 referenced as "Supreme Court Ineligibility" are a direct consequence of Mr. Ray's failure to return his attorney 14

15 registration statement with funds sufficient to satisfy his annual dues and disciplinary assessment. Respondent, Mr. Ray, alleges, however, that during the period of time at issue his actions were "negligent" and not "knowing" or "intentional" because, as Respondent explained on more than one occasion under oath, he was operating under a false assumption (See e.g. T. 83, L.17) that his later payment of his dues coupled with the payment of a reinstatement fee and the late fee rectified his ineligibility. In support of this Respondent cites his subsequent receipt of a "letter of good standing" and as a result of that Respondent concluded that he was thus eligible to practice. (T.83, L.18-23). In the Committee's opinion this was in fact a correct assumption if applied prospectively. In other words, the ineligibility, as Ms. Hymel explained, was administrative in nature. Once corrected, from the temporal point of reinstatement forward, Respondent was clearly once again eligible to practice. This fact alone though is not dispositive of the rule violation for two reasons. Pretermitting for a moment the issue of Respondent's belief that his ineligibility was rectified nunc pro tunc, it is the Committee's opinion that the intent question essentially requires application of a snapshot rule given the language of Rule 1.1(c). In other words if the question is phrased as to whether Respondent intentionally failed to pay his dues and assessments then the answer is clearly "yes" he intentionally didn't pay his dues and assessments. This is a separate question from whether he practiced while ineligible, or whether his belief was reasonable about the effect of reinstatement. But the rule is not this sophisticated. The rule simply states that an attorney is "required" to comply with all of the Supreme Court's rules "regarding annual registration, including payment of Bar dues and payment of the disciplinary assessment." Regardless of what transpired later, or what his belief was concerning reinstatement, the fact remains Respondent intentionally didn't pay his dues and assessments when they were due. Allegedly this was as a result of financial issues but whatever the reason, Respondent's non-payment was the result of a conscious decision - commit whatever funds he had available to pay his dues or use them for another purpose. He may have fully intended to pay later and be reinstated but at the time the dues and assessment [were] due, Mr. Ray used whatever funds he had for another purpose as opposed to paying his dues and assessment and when he did, at that singular point in time, he violated Rule 1.1(c). Rule 1.1(c) by its plain language is a bright line rule and the Committee cannot accept that irrespective of whatever Respondent may have believed at some subsequent point in time, at the time of his action he didn't know he was violating the rule by not paying his dues and assessments or that this was the result of anything other than a conscious act intended to achieve the result of not having to pay his dues and assessments. It is thus the opinion of this committee that as to the limited issue of Respondent's failure to pay his dues and assessments that resulted in his being 15

16 administratively ineligible, Respondent's actions were intentional. Respondent made the conscious decision not to pay his dues and assessments when required to do so and by that intentional act violated the Rule 1.1(c) as alleged. Given the above, the committee finds that ODC has carried its burden of establishing by clear and convincing evidence that respondent violated the aforementioned rule as alleged and that said conduct warrants discipline. The Committee's conclusion is, however, different with respect to the issue of the MCLE ineligibility period in There is no evidence in the record that Respondent made a conscious decision not to get his CLE in Moreover, given the amount of CLE respondent has obtained over the years and the fact that this was an isolated issue complicated by the transition at the MCLE Committee to a new computer system, the Committee herein concludes that as to this violation of Rule 1.1(c), Respondent's actions were not in fact intentional but were rather either negligent or knowing. The rule violation certainly occurred, Respondent failed to comply with the MCLE requirements, but the violation was in the Committee's view not the result of an intentional act intended to achieve that result. B. THE RULE 5.5(A) VIOLATION(S) ODC has also charged Respondent with violation of Rule 5.5(a), namely the prohibition on the unauthorized practice of law. Lawyers may not practice while ineligible and ODC has alleged that, as to each period of ineligibility, Respondent violated Rule 5.5(a) when he continued to engage in activity which constituted the practice of law during these periods. Again, the burden is on ODC to prove by "clear and convincing evidence" each allegation of misconduct it has made against Mr. Ray. Rule 5.5(a) provides, in pertinent part, as follows: A lawyer shall not practice law in violation of the regulation of the legal profession in that jurisdiction or assist another in doing so. [Rule 5.5(a)]. With respect to the issue of the Rule 5.5(a) violations, as with the previous violation, the established facts and admissions must be considered. Respondent, Mr. Ray, has admitted to practicing law during his various periods of ineligibility. (T.81, L.25; See also, T.83, L1-2) This much is established. Even absent these admissions the record is clear that Mr. Ray never ceased practicing law for any period of time over the years since his admission. In light of this, the Committee finds that ODC has carried its burden of establishing by clear and convincing evidence that respondent violated the aforementioned rule as alleged and that said conduct warrants discipline. As with the Rule 1.1(c) violation Respondent maintains that his actions were negligent in that his decision not to disengage from the practice of law 16

17 during the periods of his ineligibility was based on his erroneous assumption that his payment of the assessed late fee and reinstatement fee cured his ineligibility nunc pro tunc. Again, Respondent himself has not expressly made the allegation in his defense that his reinstatement was nunc pro tunc (once again this is the Committee's term) but the position is implicit in his argument. If the reinstatement were not retroactive to the instant of ineligibility, it could not conceptually be a valid defense to practicing while ineligible since even one day of practice after being declared ineligible would be a technical rule violation. [FN7] As such, his mere assertion of this as a defense evidences what Respondent asserts to be his understanding with respect to the legal effect of reinstatement. FN7 ODC was clear that a single instance of practicing while ineligible would not likely result in prosecution. ODC's position was articulated in its summation at the hearing and can be found at pp of the hearing transcript. The Committee understands this. While the Committee generally agrees with Respondent's assertion that a "draconian" application of the rules pertaining to collection of dues should not be sanctioned, See Respondent's Pre-Hearing Memorandum, at p.7, citing In re Kennedy, 542 A.2d 1225 (D.C. 1998), there is quite a bit of real estate between there and here. This quite simply is not factually a case where an attorney missed an isolated dues deadline or even more than one, immediately took remedial action, and is now being prosecuted. The Committee, as is stated elsewhere herein, views this case as one which in some respects is entirely unique but also which ODC quite simply could not overlook due to the repetitive nature of the violations. With respect to the intent issue, Rule 5.5(a) is qualitatively different from Rule 1.1(c) in the Committee's view insofar as how the mindset of the individual plays into the rule violation. For example, as was stated above, the Committee herein has found, supra, that Respondent intentionally violated Rule 1.1(c) because his failure to pay his dues was clearly the result of an intentional act. Respondent alleges he was financially strapped and didn't send in the check(s). That's it. That is all that is needed. Clearly this was, even by Respondent's own admission, a conscious and intentional decision. Whether respondent intended to take steps to be reinstated later is of no moment as to Rule 1.1(c). Moreover, even assuming his belief was correct that his reinstatement would negate the prior ineligibility, the belief which Respondent asserts he had which he now acknowledges to be erroneous, nevertheless cannot negate or alter the fact that he intended not to pay his dues. At best such a belief could only affect Respondent's level of awareness vis-a-vis the subsequent alleged rule violations such as this one, Rule 5.5(a) and Rule 8.4. [FN8] FN8 The parties hereto did not address separate application as between the three various rules allegedly violated the issue of intent. As is evident, the Committee is not of the opinion that intent as to one is intent as to all. 17

18 The question then becomes, separate and distinct from whether Respondent "intended" not to pay his dues, did he intend to subsequently engage in the unauthorized practice of law, did he do so knowingly, or was he simply negligent in his belief that if he later paid and got reinstated that his declared ineligibility would be of no moment. In the Committee's view, the respective periods of ineligibility shed some light on this issue. It is interesting to note that Respondent's first period of Supreme Court Ineligibility (2001) lasted seven (7) calendar days (five (5) working days). The following year, the period of ineligibility spanned only one day, September 4, If one were to look at these two periods only, it would be difficult to conclude based on the ineligibility in 2001 and 2002 alone and the attendant facts that these respective periods were even actionable under Rule 5.5(a). More importantly though Respondent's timely rectification of the ineligibility, especially in calendar year 2002, could be said to reflect a belief that there was a need for timely rectification. Stated differently, if one cannot pay his or her Bar dues, and one is under the impression that later payment completely does away with all effect of non-payment (in other words nunc pro tunc reinstatement) then why would one rush down to the Bar office and pay one's dues a day or even seven days after becoming ineligible? The reality is that late payment has to be made either way and it is a fixed fee. Interest is not part of the equation. As such the same late payment and reinstatement fee applies whether the attorney is seven days, seven months or seven years late. [FN9] Nevertheless, early on Respondent is clearly taking steps to rectify his ineligibility timely. This is not the case however over the entirety of the periods in issue in these proceedings. FN9 There is of course a reason for this, at least in the Committee's opinion, and that is because the late fees and reinstatement fees are not imposed for practicing while ineligible --- These fees are imposed as a penalty for not timely paying one's dues. If one were to fail to pay one's dues and assessments timely and cease practicing law pending reinstatement, one would have to pay the same late fee and reinstatement fee. As such, these fees cannot be penalties for violating Rule 5.5(a). These penalties are solely a consequence of an attorney's violation of Rule 1.1(c) and have nothing to do whatsoever with practicing law while ineligible. In 2004 Respondent's Supreme Court ineligibility is noticeably longer, this time four (4) full months. Thereafter, in 2005, it is 2 months. Neither of these periods is insignificant. Fast forward to 2010 and 2011, however, and the periods jump to 9-1/2 and 8 months, respectively. These are serious periods of ineligibility that are, it goes without saying, quantitatively different. They also appear, however, to be qualitatively different in the sense that they are indicative of a lack of urgency insofar as rectification is concerned. Whatever prompted Mr. Ray to make rectification of his ineligibility a priority no longer seems to exist as of Respondent asserts that it is his mistaken belief as to the effect of reinstatement but this belief did not seem to have been in existence early on. This 18

19 is a problem for the blanket application of negligence as the mental state across the entire period. Listening to Respondent testify at the hearing, and given the totality of the circumstances, it is difficult to conclude that Respondent "intentionally" engaged in the practice of law while ineligible for such extended periods of time if he were fully cognizant of the implications. Such a conclusion makes it difficult in turn to conclude that respondent was "flouting" his responsibility and moreover that he was intentionally violating the rules on such a repeated basis. On this, the committee notes specifically Respondent's diligence in adhering to the deadlines associated with regard to the representation of his clients and it seems highly unlikely that such standards would have been occasioned in one area of his practice but not in the other. It cannot be overlooked that there is no other conduct in issue. Even Mr. Oldenburg, whose case was cited to the committee herein as precedent, had a previous instance of misconduct in which he, in addition to the periods of ineligibility, neglected two legal matters. FN10 With respect to respondent herein, this appears to be Mr. Ray's only form of misconduct. FN10 See In re Gair Oldenburg, (La. 10/16/09), 19 So.3d 455, 458 at Fn.4 That being said, it is nevertheless difficult for this Committee to conclude that Mr. Ray's conduct was wholly negligent either. Certainly, the timely rectification in 2001 and 2002 are indicative of the fact that Mr. Ray was aware he could not practice while ineligible. Moreover, Mr. Ray's argument buts up against a temporal problem which precludes the finding by this committee that the subsequent periods should be found to be negligent violations of Rule 5.5(a). That is to say that whatever Mr. Ray thought about the effect of the payment of the late and reinstatement fees, during the point in time between (1) his receipt of his notice of ineligibility and (2) his payment of these fees, he nevertheless knew he had not yet been reinstated. "Knowledge" is defined for purposes of the ABA standards as "the conscious awareness of the nature or attendant circumstances of the conduct but without the conscious objective or purpose to accomplish a particular result." Thus, Mr. Ray knowingly engaged in the practice of law while ineligible because he knowingly engaged in the practice prior to paying his late and reinstatement fees. Irrespective of what effect his later payment may have had, at the time he engaged in the practice he knew he was, at that time, ineligible. While the Committee does not feel as though Respondent's violation of Rule 5.5(a) was intentional, it was not negligent either. One further point of fact bears mention here and that is that while not completely undermining Mr. Ray's argument, the reasonableness of Mr. Ray's belief is called into question by the language in the certificate admitted as an exhibit to ODC 2. The Certificate dated the 3 rd of June 2011 in the record states that "as of this date" the member is in 19

20 good standing. There is no indication in the record that any retroactive reinstatement was being occasioned. While this fact cannot confer intent, it does make it less likely that Respondent's alleged belief about the effect of his reinstatement is well founded and concomitantly more likely that Respondent knew or should have known about the lack of retroactivity. To sum it up, The Committee feels as though Mr. Ray intended not to pay his dues and knew that this would result in his practicing law while ineligible for some period of time. After time, Mr. Ray may have begun to assume as a result of his lack of more timely consequences that reinstatement was retroactive but this belief, negligent as it may be, does not nullify any period wherein a knowing violation of Rule 5.5(a) was occasioned. Moreover, given his level of awareness prior to rectifying his ineligibility and its effect, the Committee cannot conclude that Mr. Ray's violation of Rule 5.5(a), especially with respect to the first few instances of misconduct, was anything less than knowing. On very similar facts, the Supreme Court in the Oldenburg case, infra, reached a similar conclusion albeit without articulating the precise rationale for so holding. C. THE RULE 8.4(A) VIOLATION. Finally, Respondent is charged with violating Rule 8.4(a). Rule 8.4(a) reads as follows: It is professional misconduct for a lawyer to: a) Violate or attempt to violate the Rules of Professional Conduct, knowingly assist another to do so, or do so through the acts of another. [Rule 8.4(a)] Given the findings of fact herein and the record herein including the admissions, Respondent clearly violated Rule 8.4(a). The Committee finds that ODC has carried its burden of establishing by clear and convincing evidence that respondent violated the aforementioned rule, Rule 8.4(a) as alleged and that said conduct warrants discipline. With respect to the issue of the Respondent's state of mind in violation of this rule, the Committee notes that there are no allegations that Respondent assisted another or acted through another in connection with the charges herein. Because it is the Respondent's own actions that are in issue, the Committee adopts the analysis set forth in the previous sections with respect to his level of awareness. Hearing Committee Report pg The Committee determined that Respondent violated a duty owed as a professional by violating Rules 1.1(c), 5.5(a), and 8.4(a) as charged. The Committee determined that Respondent 20

21 intentionally violated Rule 1.1(c), knowingly violated Rule 5.5(a), and negligently violated 8.4(a). Due to the varied mental states applied to each violation, the Committee employed the concept of the heartland of misconduct as articulated by the Supreme Court in the matter of In Re Jerome W. Dixon, (La. 1/19/11), 55 So.3d 758. This case counsels in favor of a process whereby the Committee examines the totality of the misconduct to determine the center of gravity or "heartland" of Respondent's misconduct as an aid in determining the applicable sanction. The Committee determined the heartland of the rule violations was the unauthorized practice of law. Additionally, they concluded that the most serious violation involves the matter of Respondent practicing law while ineligible to do so. As to the heartland of the violations, the Committee determined that the applicable mental state is knowing and not intentional or negligent. The Committee relied on the ABA Standards for Imposing Lawyer Sanctions ( Standard(s) ) in order to determine the baseline sanction. Standard 7.2 states suspension is generally appropriate "when a lawyer knowingly engages in conduct that is a violation of a duty owed as a professional, and causes injury or potential injury to a client, the public, or the legal system." Relying on this Standard, the Committee determined that the baseline sanction is suspension. The Committee adopted the following aggravating factors: pattern of misconduct, multiple offenses, and substantial experience in the practice of law. The Committee found the following mitigating factors to be present: lack of a prior disciplinary record, absence of a dishonest or selfish motive, physical disability, personal and 21