ORIGINAL LOUISIANA ATTORNEY DISCIPLINARY BOARD IN RE: WADE P. RICHARD NUMBER: 13-DB-016 RECOMMENDATION TO THE LOUISIANA SUPREME COURT

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1 ORIGINAL LOUISIANA ATTORNEY DISCIPLINARY BOARD IN RE: WADE P. RICHARD NUMBER: 13-DB-016 RECOMMENDATION TO THE LOUISIANA SUPREME COURT 13-DB-016 8/7/2014 This is a disciplinary proceeding based upon the filing of formal charges by the Office of Disciplinary Counsel ( ODC ) against Wade P. Richard ( Respondent ), a disbarred attorney. Respondent was disbarred by the Louisiana Supreme Court on November 30, 2010 in the matter of In re Richard, 2010-B-1479 (11/30/10), 50 So.3d 1284 ( Richard II ) for engaging in criminal conduct. Respondent s disbarment was made retroactive to the date of his interim suspension on February 15, The formal charges, which were filed by ODC on April 11, 2013, stem from Respondent s plea of guilty to misdemeanor possession of drug paraphernalia in violation of LSA-R.S. 14:68. The hearing committee assigned to the matter concluded that Respondent violated the Rules of Professional Conduct as charged and recommended that he remain disbarred and that he be adjudged guilty of additional misconduct to be considered when and if he petitions for readmission to the practice of law. For the reasons stated below, the Board adopts the factual findings and legal conclusions of the hearing committee. However, the Board rejects the committee s sanction recommendation and recommends that Respondent be permanently disbarred from the practice of law. Finally, the Board recommends that Respondent be assessed with all costs and expenses of these proceedings. 1 In re Richard, (La. 2/15/2006), 921 So.2d

2 RESPONDENT S DISCIPLINE HISTORY In 1999, pursuant to a petition for consent discipline, 2 the Louisiana Supreme Court ( Court ) issued an order publicly reprimanding Respondent after he was found guilty of unauthorized use of a movable valued at less than $1,000 in violation of LSA-R.S. 14:68. State of Louisiana v. Wade Richard, Case No. 52, th Judicial District Court, Parish of Acadia. Respondent was initially charged with felony theft of property a knife, pistol, and caller ID from one of his clients in a domestic matter, but he ultimately entered a plea of nolo contendere to the amended misdemeanor charge of unauthorized use of a movable. In 2002, a grand jury indicted Respondent on three felony counts of intentionally furnishing a false or fraudulent medical report in order to obtain a controlled dangerous substance; conspiracy to possess a Schedule II controlled dangerous substance (Oxycodone) by falsifying a medical report; and forgery of a medical document. In 2005, Respondent entered into a written agreement with the Acadia Parish District Attorney to voluntarily withdraw from the practice of law for a period of nine months in exchange for dismissal of the charges. On February 15, 2006, the Court interimly suspended Respondent for threat of harm. In re Richard, (La. 2/15/2006), 921 So.2d 103. In November 2006, Respondent was charged with one count of second-degree robbery and one count of second-degree battery. The criminal charges stemmed from a September 24, 2006 incident involving his father. According to the charges, Respondent went to his father s residence and attempted to remove a two-gallon can of gasoline from the premises, without permission. After being asked to drop the can and leave, Respondent approached his father and pushed him down. When his father tried to retrieve the gasoline can, Respondent pushed him 2 See In re Richard, 99-DB-067. Recommendation of the Louisiana Attorney Disciplinary Board (10/11/1999) ( Richard I ). 2

3 down again. Thereafter, Respondent s father went inside and attempted to call 911. Respondent followed his father into the house and disconnected the call. As a result of the incident, his father s wrist was bleeding and required medical attention. His father later learned that one of his fingers was broken and required surgery. In 2009, Respondent pled nolo contendere to criminal mischief (amended from second degree theft), and the remaining charges were dropped pursuant to a plea agreement. On November 30, 2010, the Court disbarred Respondent for engaging in criminal conduct in Richard II, which was made retroactive to the date of his interim suspension on February 15, Respondent remains disbarred from the practice of law. PROCEDURAL HISTORY On April 11, 2013, ODC filed formal charges against Respondent alleging that he violated Rule 8.4(b) of the Rules of Professional Conduct. 4 The charges were served via certified mail to Respondent s primary registration address on May 2, On June 3, 2013, Respondent filed a Notice of Pro Se Representation as well as an answer to the formal charges, in which he denied engaging in the misconduct alleged. ODC filed its Pre-Hearing Memorandum on September 4, 2013, in which it recommended that Respondent be adjudged guilty of additional misconduct to be considered when and if he applies for readmission to the practice of law. The formal hearing in this matter was held on September 18, Robert S. Kennedy appeared on behalf of ODC. Respondent appeared pro se. The Committee issued its report on February 17, 2014, finding that Respondent violated the Rules of Professional Conduct as charged and recommending that he remain disbarred and 3 In re Richard, 2010-B-1479 (11/30/10), 50 So.3d According to Rule 8.4(b), it is professional misconduct for a lawyer to [c]ommit a criminal act especially one that reflects adversely on the lawyer s honesty, trustworthiness or fitness as a lawyer in other respects. 3

4 that be adjudged guilty of additional misconduct to be considered when and if he petitions for readmission to the practice of law. ODC filed its pre-argument brief on March 19, 2014, in which it recommended that Respondent be permanently disbarred, [a]lthough the instant misconduct is not, strictly speaking, one which is explicitly covered by the specific provisions of Rule XIX, Appendix E. Respondent did not file a response to the Committee s report. Oral argument in the matter was heard before Panel C of the Disciplinary Board on April 24, Mr. Kennedy appeared on behalf of ODC. Respondent did not appear at oral argument. FORMAL CHARGES The formal charges, which were filed on April 11, 2013, state as follows: Count 1 On June 27, 2007, at approximately 11:10 p.m., while driving his Cadillac automobile in Lafayette, Louisiana and accompanied by a passenger, Shannon Boudreaux, the respondent, Wade Richard, was stopped by officers of the Lafayette police department. Asked to produce identification, the respondent produced a driver's license, which officers learned was under suspension. After being advised that he was being placed under arrest, the respondent spontaneously volunteered that there were, narcotics" inside the vehicle. Officers of the Lafayette parish Narcotics Unit were called to the scene and a search revealed the presence of approximately 200 Alprozaolam (Xanax) tablets in a compartment situated between the front driver and passenger seats. The respondent was arrested and booked for possession with intent to distribute Schedule IV narcotics, but was later allowed to plead guilty to a misdemeanor (possession of drug paraphernalia) by the Lafayette Parish District Attorney's Office. By his acts and omissions the respondent has knowingly and intentionally committed and engaged in criminal conduct in violation of 8.4(b) (Commit a criminal act especially one that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects). 4

5 THE HEARING COMMITTEE S REPORT As noted above, the Committee issued its report on February 17, The Committee made the following factual findings: FINDINGS OF FACT This Committee adopts the factual summary in ODC s Prehearing Memorandum. Additionally, we found ODC s witnesses credible. Respondent was not a credible witness. Respondent was inconsistent with his statements attributed to him by the police, he was inconsistent with his oral testimony at the hearing, and he minimized his prior bad acts always with explanations. By clear and convincing evidence, ODC proved that on June 27, 2007, Shannon Boudreaux and Richard P. Wade worked together in setting up a drug deal with an undercover police officer, traveled to the meet location, all with the intent to sell the drugs ordered. Once the Committee found that Respondent had engaged in professional misconduct, it undertook consideration of the factors set forth in Rule XIX, Section 10(c). First, the Committee determined that Respondent acted intentionally and knowingly in the possession of the drugs, and with the intent to distribute them along with Shannon Boudreaux. Next, the Committee considered the existence of aggravating and mitigating factors under Standards 9.22 and 9.32 of the ABA s Standards for Imposing Lawyer Sanctions. Under Standard 9.22, the Committee found the following aggravating factors: prior disciplinary offenses; dishonest or selfish motive; pattern of misconduct; refusal to acknowledge the wrongful nature of conduct; and substantial experience in the practice of law. The sole mitigating factor found to be present under Standard 9.32 was the imposition of other penalties or sanctions. The Committee determined that the baseline sanction for Respondent s misconduct was disbarment and, therefore, recommended that he remain disbarred. 5

6 ANALYSIS I. The Standard of Review The powers and duties of the Disciplinary Board are defined in 2 of the Louisiana Supreme Court Rule XIX, Rules for Lawyer Disciplinary Enforcement. Rule XIX (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 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 factual findings are supported by the record and are not manifestly erroneous. De novo review indicates that the Committee correctly applied the Rules of Professional Conduct to determine that Respondent violated the Rules as charged. Accordingly, the Board adopts the Committee s findings of fact and law and concludes that Respondent violated Rule 8.4(b). II. The Appropriate Sanction A. Application of Rule XIX, 10(C) Factors Louisiana Supreme Court Rule XIX, 10(C) states that in 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; 6

7 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. Here, Respondent clearly violated his duties owed to the public and the profession when he engaged in criminal conduct. By their very nature, these acts were intentional and knowing and resulted in serious injury to the legal profession and potentially serious injury to the public. The following aggravating factors are supported by the record: (1) prior disciplinary offenses; (2) dishonest or selfish motive; (3) pattern of misconduct; (4) refusal to acknowledge wrongful nature of conduct; and (5) substantial experience in the practice of law. The sole mitigating factor found to be present is the imposition of other penalties or sanctions. B. The ABA Standards, Guidelines for Permanent Disbarment, and Case Law The ABA s Standards for Imposing Lawyer Sanctions suggests that disbarment is the baseline sanction for the misconduct in this matter. For example, Standard 5.11(a) states that disbarment is generally appropriate when... a lawyer engages in serious criminal conduct a necessary element of which includes intentional interference with the administration of justice, false swearing, misrepresentation, fraud, extortion, misappropriation, or theft; or the sale, distribution or importation of controlled substances; or the intentional killing of another; or an attempt or conspiracy or solicitation of another to commit any of these offenses[.] Respondent s actions clearly fall within the scope and intent of criminal conduct under Standard 5.11(a) since they amount to conspiring and attempting to sell or distribute controlled dangerous substances. Breaches of duties owed as a professional are addressed by Standard 7.1, which provides that [d]isbarment is generally appropriate when a lawyer knowingly engages in conduct that is a violation of a duty owed as a professional with the intent to obtain a benefit for the lawyer or another, and causes serious or potentially serious injury to a client, the public, or 7

8 the legal system. The record establishes that Respondent conspired and attempted to enter into a transaction to sell narcotics, thereby placing the public in extreme risk of serious harm. Given that each of the applicable ABA Standards calls for a baseline sanction of disbarment, it is next appropriate to determine whether the Louisiana Supreme Court s Permanent Disbarment Guidelines indicate that Respondent should be permanently disbarred. In Appendix E to Rule XIX, the Court set forth guidelines to provide useful examples of the types of conduct the Court might consider worthy of permanent disbarment. 5 These guidelines are considered illustrative in nature and are not intended to be binding. In re Edwards, (La. 7/02/2004), 879 So.2d 718. Guideline 9 states that permanent disbarment may be warranted in... [i]nstances of serious attorney misconduct or conviction of a serious crime, when the misconduct or conviction is preceded by suspension or disbarment for prior instances of serious attorney misconduct or conviction of a serious crime. Serious crime is defined in Rule XIX, Section 19. Serious attorney misconduct is defined for purposes of these guidelines as any misconduct which results in a suspension of more than one year. The serious attorney misconduct and conviction for misdemeanor possession of drug paraphernalia at issue in this matter were preceded by Respondent s interim suspension. While the interim suspension was not a final suspension or disbarment, as required in Guideline 9, this action by the Court should have put Respondent on notice that the conduct underlying the interim suspension was improper and in violation of the Rules of Professional Conduct. 6 In support of its Motion for Interim Suspension for Threat of Harm, which was filed on February 6, 2006, ODC cited a number of criminal acts for which Respondent was arrested and, in many cases, convicted. Certain of these acts later resulted in disbarment proceedings against 5 Rule XIX, Appendix E, Preamble. 6 On January, 30, 2006, prior to its filing, copies of ODC s Motion for Interim Suspension were sent via overnight mail to Respondent at his primary registration address and to Leslie J. Schiff, Respondent s counsel of record at that time, pursuant to Rule XIX, 19.2(iii). The motion was also faxed to Mr. Schiff on the same day. 8

9 Respondent, for which he was disbarred from the practice of law on November 30, 2010, retroactive to the date of his interim suspension on February 15, The criminal acts cited by ODC were as follows: 1. Respondent s prior discipline in 1999 a consent discipline for public reprimand after pleading guilty to misdemeanor theft in violation of R.S. 14:68 in connection with property taken from his client without her consent. 2. Respondent s 2002 arrest and felony indictment for violating R.S. 40:971 (intentionally furnishing a fraudulent radiology report in order to obtain Controlled Dangerous Substances (CDS)); R.S. 14:26 (conspiracy to possess CDS by falsifying a medical report); and R.S. 14:72 (forgery). State of La. v. Wade Richard, No , Acadia Parish. 3. Respondent s May 2004 arrest for aggravated assault and reckless operation of a motor vehicle for attempting to run down a man with his vehicle. State of La. v. Wade Richard, No , Acadia Parish. 4. Respondent s August 2004 charges for violating R.S. 14:108 (disturbing the peace) and 14:596 (criminal mischief) after he repeatedly threw rocks at the side of a building. Respondent admitted to law enforcement that he engaged in the misconduct alleged because the occupant owed him money. Notably, Respondent failed to appear on the date ordered by the court, and a warrant was issued for his arrest. State of La. v. Wade Richard, No , Acadia Parish. 5. Respondent s December 2004 arrest and charge for violating R.S. 14:63.3 (trespass) following an incident in which he went to a woman s house uninvited and demanded that she repay him the $25.00 that she purportedly owed him. 9

10 When the woman advised Respondent that she was unable to repay him, Respondent refused to leave the premises. Respondent pleaded guilty to the charge on March 17, 2005 and was sentenced to pay a fine and court costs. State of La. v. Wade Richard, No , Acadia Parish. 6. Respondent s 2005 arrests and charges for multiple violations of R.S. 14:71 (issuing worthless checks). State of La. v. Wade Richard, Nos and 68319, Acadia Parish; State of La. v. Wade Richard, No , Lafayette Parish. In addition to these criminal acts, ODC referenced in support of its Motion for Interim Suspension a disciplinary complaint against Respondent which was filed in November 2004 by one of his clients (Complaint No ). The client alleged that when she informed Respondent of her intent to seek other counsel to handle her medical malpractice claim, Respondent threatened to destroy [her] case and make sure [she] got nothing on her claim. As noted above, eventually Respondent was disbarred based upon many of these acts. The misconduct at hand also constitutes serious attorney misconduct warranting suspension. Although Respondent was never actually convicted of a serious crime as defined by Rule XIX 19, the jurisprudence suggests that his actions constitute serious attorney misconduct for purposes of Guideline 9 that is, misconduct which results in suspension for more than one year. Similar conduct involving misdemeanor drug offenses includes In re Bertucci, (La. 9/26/08), 990 So.2d 1275 and In re Steinhardt, (La. 9/9/04), 883 So. 2d 404. In In re Bertucci, the respondent was charged in federal court with one misdemeanor count of unlawful possession of controlled substances but was never charged in state court. Thereafter, the respondent entered and successfully completed a pre-trial diversion program, and the federal charge was dismissed. Following a formal disciplinary proceeding, the Louisiana Supreme Court 10

11 suspended the respondent for two years, fully deferred, subject to a two-year period of probation. The Court found that Respondent s conduct stemmed from substance dependence for which he sought treatment and was working hard to overcome. Furthermore, he had an unblemished record consisting of many years of practice as a competent and well respected criminal defense attorney. Id., None of these mitigating factors exists here. Previously, in the matter of In re Steinhardt, the Court suspended an attorney for three years, with two years deferred, subject to a two-year period of probation after she was convicted for misdemeanor possession of marijuana, failed to self-report her conviction to ODC, and failed to cooperate with ODC during its investigation. The Court noted that she had successfully completed an inpatient substance abuse treatment program, had entered into a recovery agreement with LAP, and had been alcohol and drug free for more than three years. While the Court did not wish to condone Steinhardt s criminal conduct or minimize the seriousness of her drug conviction, it recognized her sincere attempts at rehabilitation and felt that the imposition of a three-year suspension without any portion deferred would be excessively punitive, particularly since ODC never sought to interimly suspend Steinhardt for threat of public harm. Id., 410. Notably, Justices Johnson, Victory, and Traylor dissented from the majority opinion in favor of a harsher sanction. Justices Johnson and Victory would have imposed a full three-year suspension. Justice Johnson provided the following reasons for her dissenting opinion: The public becomes cynical about our justice system when lawyers and other professionals are perceived to be receiving preferential treatment that is not available to the average citizen. When this case is compared to similar cases decided by our state courts, it is clear that from the jurisprudence this respondent has already received the benefit of lenient treatment that is usually not available to citizens who are charged with drug offenses. Since this is serious misconduct, and respondent has already enjoyed the benefit of leniency in the criminal proceedings against her in Texas, I believe we should impose a full three-year suspension from the practice of law. 11

12 Id., 411. Justice Traylor felt that the factual circumstances of Steinhardt s criminal conviction warranted a more burdensome sanction up to, and perhaps including, disbarment. Id., Justice Traylor accepted the fact that Steinhardt was convicted for misdemeanor possession of marijuana but found that the quantity she possessed at the time of her arrest, based on the factual circumstances of her crime, suggested that she was involved in the trafficking of marijuana. Id., 412. Similarly, here, Respondent has enjoyed the benefit of leniency in the criminal proceedings against him. The record clearly demonstrates that he has a propensity for engaging in serious criminal conduct, yet he routinely enters into plea agreements for lesser offenses and serves very little time in prison. Rather than engage in meaningful conduct or employment during his interim suspension from the practice of law, Respondent conspired and arranged to sell dangerous controlled substances to an undercover narcotics officer. His actions continue to place the public at risk and tarnish the image of the legal profession. The Court has routinely held that, in assessing discipline in the case of an attorney who has been convicted of a crime, we have often looked beyond the title of the offense to the facts of the conviction to determine the appropriate sanction. In re Kirschberg, (La. 9/26/03), 856 So. 2d 1162, 1166 referencing In re Huckaby, (La.5/20/97), 694 So.2d 906. Although Respondent was ultimately convicted of misdemeanor possession of drug paraphernalia, the facts leading to his arrest, as demonstrated by the record and found by the Committee, establish that he was engaged in serious and felonious criminal conduct worthy of a sanction of more than one year. 7 While Guideline 9 does not technically fit in this matter, the parallel is apparent. Respondent has continued to engage in serious attorney misconduct following numerous prior instances of 7 Notably, Justices Knoll, Guidry, and Clark dissented from the majority opinion in Richard II, indicating that they would impose permanent disbarment. 50 So.3d 1284,

13 misconduct which resulted in disbarment in Considering the instruction of Guideline 9, along with the important aggravating factor of prior discipline, this Board recommends that permanent disbarment be imposed in this matter. CONCLUSION The Board adopts the factual findings and legal conclusions of the Committee. The record clearly shows that Respondent engaged in serious attorney misconduct by conspiring and attempting sell narcotics and that he was arrested and charged with possession of a controlled dangerous substance. Accordingly, the Board recommends that Respondent be permanently disbarred from the practice of law pursuant to Guideline 9 of Rule XIX, Appendix E. Finally, the Board recommends that Respondent be assessed with all costs and expenses of these proceedings. 13

14 RECOMMENDATION For the forgoing reasons, the Board recommends that Respondent, Richard P. Wade, be permanently disbarred from the practice of law pursuant to Guideline 9 of Rule XIX, Appendix E. Additionally, the Board recommends that Respondent be assessed with all costs and expenses of these proceedings pursuant to Rule XIX, LOUISIANA ATTORNEY DISCIPLINARY BOARD Carl A. Butler John T. Cox, Jr. Anderson O. Dotson, III Carrie L. Jones Tara L. Mason R. Lewis Smith, Jr. Linda P. Spain R. Steven Tew BY: George L. Crain, Jr. FOR THE ADJUDICATIVE COMMITTEE 14