LOUISIANA ATTORNEY DISCIPLINARY BOARD IN RE: JOHNNY S. ANZALONE. 15-DB-004 c/w 15-DB-053 RECOMMENDATION TO THE LOUISIANA SUPREME COURT INTRODUCTION

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1 LOUISIANA ATTORNEY DISCIPLINARY BOARD IN RE: JOHNNY S. ANZALONE 15-DB-004 c/w 15-DB-053 RECOMMENDATION TO THE LOUISIANA SUPREME COURT INTRODUCTION This attorney disciplinary matter arises out of two sets of formal charges consisting of a total of two counts filed by the Office of Disciplinary Counsel ("ODC") against Johnny S. Anzalone ("Respondent"), bar roll number ODC alleged that Respondent violated the Rules of Professional Conduct ( Rule(s) ), as follows: 8.4(a)(b) and (d) (violated or attempted to violate the Rules of Professional Conduct, engaged in a criminal act, and engaged in conduct that is prejudicial to the administration of justice). 2 The hearing committee ( committee ) assigned to the matter 3 concluded that Respondent violated Rules 8.4(a) and (b) and, after reviewing the case law, made the following statement: These cases seem to indicate that a year and a day suspension is warranted in the present case, and that is our recommendation. The Committee went on to state that it believed Respondent would be better served by deferment of the suspension and the imposition of three years probation, contingent upon his execution and completion of an agreement with LAP; that he 1 Respondent was admitted to practice on 04/04/94. He was placed on interim suspension by order of the Court on 05/16/2014. In re Anzalone, (La. 5/16/14); 139 So. 3d RULE 8.4 MISCONDUCT: 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; or (b) Commit a criminal act especially one that reflects adversely in on the lawyer s honesty, trustworthiness or fitness as a lawyer in other respects... (c) (d) Engage in conduct that is prejudicial to the administration of justice; 3 Hearing Committee No. 6 was composed of Michael D. Hislop (Chair), Andree B. Leddy (Lawyer Member), and Rebecca K. Broussard (Public Member). 1

2 refrain from criminal activity; and that he remain drug-free. It further recommended that he pay all costs and expenses of the disciplinary proceedings. For the following reasons, the Board adopts the committee s factual findings and legal conclusions. Relative to sanction, the Board recommends that Respondent be suspended from practice for a year and a day. PROCEDURAL HISTORY Formal charges in 15-DB-004 were filed on February 23, On March 30, 2015, the committee chair issued an order denying Respondent s request for the appointment of a public defender. Respondent answered the formal charges on April 29, At the request of Respondent, the July 29, 2015 hearing was continued without date. A second set of formal charges, 15-DB-053, was filed on October 2, Respondent answered those charges on October 20, The two sets of formal charges were consolidated on October 26, The consolidated matters were scheduled to proceed to hearing on January 6, The hearing was held as scheduled. Deputy Disciplinary Counsel James W. Standley, IV, appeared on behalf of the ODC. Respondent appeared pro se. At the hearing, the committee chair granted Respondent additional time to supplement the record with exhibits, specifically, those related to drug dependency counseling. 4 On February 1, 2016, Respondent submitted a document which purports to be a certification relative to the Respondent s completion of a DWI education session. The ODC objected to the admission of the document as hearsay. On March 17, 2016, the committee chair sustained the objection but allowed the submission of the document as a proffer. The committee s report was issued May 18, ODC filed an objection to the report on May 26, 2015, and filed a pre-argument memorandum on June 10, In its memorandum, the ODC argued, essentially, that the committee s sanction recommendation is unclear. ODC 4 Hearing transcript, pp See also, Hearing Summary Form. 2

3 suggested that if the committee s recommendation was for a fully deferred suspension, then such was too lenient. ODC recommended as appropriate the baseline sanction of a year and a day, with no time deferred. It further recommended that Respondent be required to demonstrate his compliance with Rule XIX, Section 24(E)(3). 5 On July 21, 2016, Charles B. Plattsmier was substituted as counsel for the ODC in this matter. Respondent submitted an Opposition to Disciplinary Counsel s Objection to the Recommendation of Hearing Committee Number 6, on August 15, The matter was initially scheduled for oral argument on August 18, 2016, but was continued to September 29, 2016, at which time the matter was heard by Board Panel C. 6 Mr. Plattsmier appeared for the ODC. Respondent appeared for argument pro se, at which time he stated he had no objection to the committee s report and recommendation. FORMAL CHARGES The formal charges in15-db-004 read, in pertinent part: Respondent herein is Johnny S. Anzalone, an attorney licensed into practice in the State of Louisiana but presently on interim suspension pursuant to Sections 19(B) and 19.2 of the Louisiana Supreme Court Rule XIX. The Louisiana Supreme Court ordered said interim suspension on May 16, On March 17, 2014, following a bench trial, Respondent was found guilty of operating a motor vehicle while intoxicated in violation of Louisiana Revised Statute 14:98. During the course of the criminal proceedings, on or about September of 2013, Respondent was ordered to undergo a drug screening, which indicated positive results for cocaine and methadone. 5 Pursuant to Rule XIX, 24(E), 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. 6 Board Panel C was composed of Melissa L. Theriot (Chair), Laura B. Hennen (Lawyer Member) and R. Lewis Smith, Jr. (Public Member). 3

4 On December 3, 2014, a bench warrant was issued based upon Respondent s failure to appear in court for monitoring. Execution of said warrant ha[d] been stayed until March 10, By testing positive for cocaine and methadone, and by being convicted of operating a vehicle while intoxicated, Respondent has violated the Louisiana Rules of Professional Conduct, specifically Rule 8.4(a), (b), and (d). The formal charges in 15-DB-053 read, in pertinent part: On or about June 23, 2015, Respondent entered a guilty plea to a second offense of driving while intoxicated before Judge Thomas M. Yeager for the Ninth Judicial District Court, in and for the Parish of Rapides. This conviction arises from an arrest made on or about March 14, During his arrest, Respondent admitted to the arresting officer that he was under the influence of meth. He was also driving under suspension at that time. By his conduct, Respondent has violated Rule 8.4(a) of the Louisiana Rules of Professional Conduct by violating the Rules of Professional Conduct and Rule 8.4(b) by committing a criminal act. The committee made the following findings: THE HEARING COMMITTEE REPORT On January 17, 2013, Respondent was arraigned in Tangipahoa Parish on charges of DWI, first offense, and exceeding the speed limit. The trial court continued Respondent's original trial date several times. On September 9, 2013, the trial court ordered Respondent to be tested for drugs, and Respondent tested positive for methadone and cocaine, as reported by Redwood Toxicology Laboratories. On Friday, March 14, 2014, Respondent was arrested in Rapides Parish for DWI, second offense, improper lane usage, and driving under suspension. On Monday, March 17, 2014, Respondent was convicted in Tangipahoa Parish of DWI and exonerated on the charge of exceeding the speed limit. Respondent attempted to appeal his conviction, but, given that his offense was a misdemeanor, his appeal was treated as an application for supervisory writs, which the First Circuit Court of Appeal denied. Respondent entered into a plea agreement in Rapides Parish on June 26, 2015, under which he pleaded nolo contendere to a charge of DWI, first offense, and the State agreed to nolle prosequi the charges of improper lane usage and driving under suspension. Rule 8.4 provides, in pertinent part, "It is professional misconduct for a lawyer to... (b) Commit a criminal act especially one that reflects adversely on 4

5 the lawyer's dishonesty, trustworthiness, or fitness as a lawyer in other respects." "An attorney's duty to obey and uphold the laws extends to all laws and not merely to those directly connected with his law practice." Louisiana State Bar Ass'n v. Bensabat, 378 So.2d 380,382 (La.1979). "When the disciplinary proceedings involve an attorney who has been convicted of a crime, the conviction is conclusive evidence of guilt and the sole issue is whether Respondent's crime warrants discipline and, if so, the extent thereof." In re Rome, , p. 9 (La. 9/26/03) 856 So.2d 1167, The Office of Disciplinary Counsel (ODC) proved the conviction in Tangipahoa Parish and the nolo contendere plea in Rapides Parish. Respondent offered that in 1986 he was involved in serious automobile accident that resulted in permanent back and neck pain. Respondent experienced difficulties obtaining prescription medications, and in lieu thereof is receiving methadone treatment from Choices of Louisiana, Inc. He maintains that he was "dosed" with cocaine, which resulted in his positive test for that substance. Respondent further contends-and the evidence demonstrates- that Respondent was subject to drug abuse counseling as a result of his nolo contendere plea in Rapides Parish. He further submits that his drug abuse counselor, Mrs. Suzie Drell, found that he was not in need of drug abuse treatment. ODC objected to this testimony and to Respondent's late submission of a letter from Mrs. Drell to the Ninth Judicial District Court. This committee sustained the objection to this hearsay. The committee finds that ODC proved by clear and convincing evidence that Respondent did violate Rule 8.4(a) and (b) in driving while intoxicated related to his Tangipahoa Parish conviction, his positive drug test for cocaine, and his Rapides Parish plea of nolo contendere. Without elaboration, the Louisiana Supreme Court stated in In re Baer, (La. 11/20/09); 21 So.3d 941, that two arrests for DWI support a finding that an attorney violated Rule 8.4(a) and (b). A lawyer- and every other motorist-owes a duty to the public to refrain from operating a vehicle while intoxicated and owes an obligation to the profession to refrain from violating the Rules of Professional Conduct. The violation of this duty was at least negligent, and could lead to grave injury to other motorists or pedestrians. We do note that there was no actual harm in either of Respondent's two incidents. Respondent has substantial experience in to practice of law. We find no dishonest motive, but find that the act of driving a motor vehicle under the influence of a narcotic represents an inherently selfish motive in placing Respondent's convenience above the safety of others. As a mitigating factor, we note that Respondent has no prior disciplinary record. There is no indication that Respondent failed to cooperate in the disciplinary process. Respondent, in the opinion of the committee, suffers from a physical condition that has led to a chemical dependency if not outright addiction. 5

6 In Baer, the attorney was twice arrested for DWI following two accidents that resulted in property damage. The supreme court determined that the appropriate sanction was suspension for a year and a day, retroactive to the date of her interim suspension. In In re Leavoy, (La. 11/1/13); 130 So.2d 291, an attorney who was convicted of one count of DWI, but who also was found too intoxicated to appear in court when scheduled to, and who misled a client as to the status of her case, was suspended for two years, fully deferred, with an order that he execute a five-year agreement with the Lawyers' Assistance Program (LAP). He was placed on probation during the duration of his LAP agreement. In In re Gill, (La. 10/23/15); 181 So.3d 669, an attorney was arrested three times for DWI, once for an alcohol-related disturbance at the Louis Armstrong International Airport, and who attempted to mislead ODC regarding the latter arrest, was suspended for a year and a day. Lastly, in In re James, (La. 3/1113), 108 So.3d 747, an attorney twice convicted of DWI was suspended for a year and a day. These cases seem to indicate that a year-and-a-day suspension is warranted in the present case, and that is our recommendation. However, the committee feels that Respondent would be better served by a deferment of the suspension and imposition of three years' probation, contingent upon: Respondent's execution and completion of an agreement with the LAP; that he refrain from criminal activity; that he remain drug-free; and that he pay the costs and expenses of this matter. 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 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 6

7 application of the Rules of Professional Conduct. In re Hill, 90-DB-004, Recommendation of the Louisiana Attorney Disciplinary Board (1/22/92). Here, the committee s findings of fact are supported by the testimony and documentary evidence and are not manifestly erroneous. Further, the committee correctly found that Respondent violated Rules of Professional Conduct 8.4(a) and (b). The committee did not find a violation of Rule 8.4(d). That Rule provides that it is professional misconduct for a lawyer to engage in conduct that is prejudicial to the administration of justice. There are no allegations or evidence that demonstrates that Respondent violated this provision. The Board adopts these findings. 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. The Louisiana Supreme Court also considers the ABA Standards for Imposing Lawyer Sanctions in determining the baseline sanction. In re Quaid, (La. 11/30/94); 646 So.2d 343, 350. By his conduct, Respondent violated duties owed to the public and the profession by failing to maintain the high standards of personal integrity upon which the public relies. When lawyers engage in illegal conduct it serves to undermine the public s confidence in the integrity of officers of the court. Although Respondent s offenses did not result in actual injury to anyone, the potential for injury was great. 7

8 The record supports, and the Board finds, the aggravating factors of substantial experience in the practice of law (admitted in 1994) and selfish motive (driving a vehicle under the influence). 7 The committee noted that there is no indication Respondent failed to cooperate in the disciplinary process. 8 This factor is neither aggravating nor mitigating. Relative to mitigating factors, the record supports the finding of the absence of a prior disciplinary record. 9 The record does not, however, support the committee s finding of the mitigating factor of physical or mental disability or chemical dependency. The committee found that Respondent suffers from a physical condition that has led to a chemical dependency if not outright addiction. The record does not contain the necessary evidence to support this finding as a mitigating factor, so it is rejected by the Board. The Court has held that the mitigating factor of mental disability or chemical dependency is subject to a careful analysis. In re Stoller, (La. 5/24/05); 902 So.2d 981, Respondent has neither asserted, nor has he attempted to prove this mitigating factor. Indeed, Respondent failed to offer any admissible evidence or testimony to support a claim of chemical dependency. Rather, he has argued that he is not in need of treatment. Respondent testified that he was conditionally admitted in 1994 under a two-year LAP contract. 11 He admitted that he later entered a five-year recovery agreement with LAP, which he 7 Hearing transcript, p Hearing Committee Report, p Hearing transcript pp A Respondent asserting the presence of this mitigating factor must prove four factors by clear and convincing evidence as set forth in ABA Standards for Imposing Lawyer Sanctions, Standard 9.32(i): 1. there is medical evidence that the Respondent is affected by a chemical dependency or mental disability; 2. the chemical dependency or mental disability caused the misconduct; 3. the Respondent's recovery from the chemical dependency or mental disability is demonstrated by a meaningful and sustained period of successful rehabilitation; and 4. the recovery arrested the misconduct and recurrence of that misconduct is unlikely. 11 Hearing transcript, p

9 successfully completed. 12 Regarding his positive test for cocaine in connection with the DWI proceeding in Tangipahoa Parish, he denied that he uses cocaine and posits that someone dosed him with the drug. 13 He admitted that he takes methadone every day and is under the care of a doctor (Slocum). According to Respondent, he takes methadone to control his pain. He also testified that attempts are being made to get him into other pain management plans with other doctors. 14 He testified that he has been classified as totally disabled and is covered under Medicaid, which paid for his recent surgery, described as a five-level laminectomy. 15 Nevertheless, the only evidence, other than his testimony, that he attempted to introduce was a document from a qualified substance abuse professional to establish that he is not in need of treatment. He claimed he was referred to this professional as part of his plea agreement in Rapides Parish. 16 B. The ABA Standards and Case Law ABA Standard 5.12 is applicable in determining the appropriate sanction. It provides that [s]uspension is generally appropriate when a lawyer knowingly engages in criminal conduct... that seriously adversely reflects on the lawyer s fitness to practice. The ABA Standards indicate that suspension is the baseline sanction for the misconduct at issue here. The aggravating and mitigating factors are fairly evenly weighted. A review of prior jurisprudence indicates that the Court has imposed sanctions ranging from fully deferred suspensions to actual periods of suspension in cases involving similar misconduct. For example, in In re Baer, (La. 11/20/2009); 1 So.3d 941, the Court 12 Id., pp , Hearing transcript, pp Id., pp , Id., pp , Hearing transcript, pp

10 suspended Ms. Baer for one year and a day, retroactive to the date of her interim suspension, based on the deemed admitted facts which established that she had twice been arrested and charged with driving under the influence of alcohol. The Court noted that, as a general rule, it imposes actual suspensions in cases in which multiple offenses are at issue, as well as in cases in which the offense stems from a substance abuse problem that appears to remain unresolved, both of which were present in the case of Ms. Baer. In In re Guidry, (La. 09/23/11); 71 So.3d 256 the Court suspended a lawyer for one year and a day, no portion deferred, based upon his having twice been arrested and criminally charged, first in Louisiana for DWI, possession of marijuana, and possession of cocaine; and, subsequently, in Illinois for driving under the influence of alcohol, speeding, and improper lane usage. Although Mr. Guidry claimed that he was not currently practicing law and had been clean for three years since completing a residential treatment and pre-trial diversion program, the Court found that he failed to provide any evidence to support his testimony that he had refrained from alcohol. Moreover, the Court observed that Mr. Guidry was not active in AA and did not participate in LAP. In In re James, (La. 1/1/2013); 108 So.3d 747, an attorney entered a plea of nolo contendere to a DWI charge in St. Tammany Parish, and subsequently entered a guilty plea to a DWI charge in Washington Parish. Disciplinary proceedings were initiated and though Mr. James initially agreed to enter into a five-year recovery contract with LAP, he failed to comply with its terms. Because Mr. James was twice convicted of DWI and his substance issues appeared to remain unresolved, the Court imposed a suspension for a year and a day. Based on the cases highlighted above, a recommendation of an actual suspension for one year and one day is appropriate, with no time deferred. Here, as in Baer, Guidry, and James, 10

11 Respondent was twice convicted of DWI. In addition, he tested positive for cocaine. As in Baer, the misconduct at issue here appears to stem from a substance use or abuse problem that remains unresolved. This sanction will require Respondent to clearly and convincingly prove that he is fit to return to the practice of law, if and when he seeks reinstatement. 17 CONCLUSION For the reasons stated above, the Board adopts the findings of fact and the conclusions of the hearing committee that the Respondent violated Rules 8.4(a) and (b). Further, the Board finds that suspension for a year and a day, with no time deferred, is the appropriate sanction in this matter. The suspension should be made retroactive to the date of interim suspension. 18 Respondent should pay all costs and expenses of these disciplinary proceedings. 17 Pursuant to Rule XIX, 24(E), 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. 18 See, In re Baer, supra, and In re Blanche, (La. 6/22/12); 90 So.3d

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