LOUISIANA ATTORNEY DISCIPLINARY BOARD IN RE: JENNIFER E. GAUBERT NUMBER: 17-DB-041 RECOMMENDATION TO THE LOUISIANA SUPREME COURT INTRODUCTION This is an attorney discipline matter based upon the filing of formal charges by the Office of Disciplinary Counsel ("ODC") against Jennifer E. Gaubert ("Respondent"), Louisiana Bar Roll Number 30375} ODC alleges that Respondent "has violated Rule 8.4(c) of the Rules of Professional Conduct which provides that it is a violation for an attorney 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. "' 2 Respondent allowed the formal charges to become and remain deemed admitted pursuant to Louisiana Supreme Court Rule XIX, ll(e)(3). 3 The hearing committee ("committee,) assigned to this matter concluded Respondent violated Rule 8.4(b) and 1 Respondent was admitted to the Louisiana Bar on 10/13/06. She bas been ineligible to practice law in Louisiana since June 1, 20 17, for failing to comply with mandatory continuing legal education requirements. She is also ineligible to practice law for failing to pay her Bar dues and disciplinary assessment. Respondent's current primary registration address is 6260 Vicksburg St., Ste. A, New Orleans, LA 70124, and her current secondary registration address is 1803 Jefferson Ave., New Orleans, LA 70115. 2 As will be discussed in more detail later, the reference to Rule 8.4(c), as opposed to Rule 8.4(b), in the Formal Charges appears to be a typographical error as the text quoted in the charges is actually that of Rule 8.4(b). See attached Appendix for full text of Rules 8.4(b) and 8.4(c). 3 This rule states: The respondent shall file a written answer with the Board and serve a copy on disciplinary counsel within twenty (20) days after service of the formal charges, unless the time is extended by the chair of the hearing committee. In the event, Respondent fails to answer within the prescribed time, or the time as extended, the factual allegations contained within the formal charges shall be deemed admitted and proven by clear and convincing evidence. Disciplinary Counsel shall file a motion with the chair of the bearing committee to which the matter is assigned requesting that the factual allegations be deemed proven with proof of service of the formal charges upon the respondent. The order signed by the hearing committee chair shall be served upon respondent as provided by Section 13C. Within twenty (20) days of the mailing of the order of the bearing committee chair deeming the factual allegations contained in the formal charges proven, the respondent may move the hearing committee chair to recall the order thus issued upon demonstration of good cause why imposition of the order would be improper or would result in a miscarriage of justice.
recommended that she be suspended for six months and that she pay all costs and expenses associated with this matter. For the following reasons, the Board adopts the committee's factual findings and legal conclusions regarding rule violations. The Board further recommends that Respondent be suspended for one year and one day and that she be assessed with the costs and expenses of this matter. pertinent part: PROCEDURAL HISTORY ODC filed formal charges in the instant matter on July 21, 2017. The charges state, in I. Respondent was born on October 29, 1980. She was admitted to the practice of law in the State of Louisiana on October 13, 2006. Respondent has no prior discipline. Respondent is currently ineligible to practice law for failure to complete mandatory continuing legal education. * * IV. This disciplinary matter arises solely in regard to Respondent's criminal convictions for simple battery and criminal mischief. These convictions stem from an incident involving Respondent and a New Orleans cab driver, Hervey Farrell. On April6, 2012, Respondent was a passenger in Mr. Farrell's taxicab. The two had a sexual encounter in the taxicab. Mr. Farrell used his cellphone to take a bawdy video of Respondent. Following the encounter, Mr. Farrell reported to police that he was sexually assaulted in his cab by Respondent. Respondent was subsequently charged in the Orleans Municipal Court with simple battery. On April 5, 2013, 4 Mr. Farrell filed a civil lawsuit against Respondent in Orleans Parish Civil District Court, alleging that he suffered tort damages arising from the taxicab incident. While the civil litigation and the simple battery charge were pending, Respondent went to the Third District Station of the New Orleans Police Department to report that she was a victim of the crimes of extortion and video The civil lawsuit was actually filed on March I, 20 13, and Respondent made the report of alleged extortion and video voyeurism to the police on AprilS, 2013. See State v. Gaubert, 2015-0774 (La.App. 4 Cir. 12/9115), 179 So.3d 982, 984-985 (a copy of the decision is included in the record of this matter as Ex. ODC 6). 2
voyeurism by the alleged perpetrator, Mr. Farrell. Respondent's report to police essentially asserted that Mr. Farrell emailed Respondent a copy of the video of the April incident, indicating that if he received $1,000.00, the video and charges he filed against the video [sic] would "go away." While investigating Respondent's complaint against Mr. Farrell, the State charged Respondent, on October 1, 2013, with one count of false swearing for the purposes of denying a constitutional right, a violation of La.R.S. 14:126.2. The State later amended the bill of information to charge Respondent with one count of false swearing for the purposes of violating public health or safety, a violation of La.R.S. 14:126.1. On April 2, 2014, Respondent was found guilty in the Orleans Municipal Court for simple battery, a violation of Code of the City of New Orleans, Sec. 54-96, and fined costs. Following Respondent's denial of a Motion for New Trial, Respondent's conviction for simple battery became final. Despite being charged with a felony, on January 16, 2015, following a bench trial, Respondent was convicted of the lesser, misdemeanor offense of criminal mischief, a violation of La. R.S. 14:59. On February 25, 2015, Ms. Gaubert filed motions for new trial and post-verdict judgment of acquittal. The district court denied those motions. The district court sentenced Ms. Gaubert to one day in parish prison, suspended; one day of inactive probation with the conditions that she not purchase or possess a gun during probation; and ordered her to pay $244.00 for misdemeanor court costs, $500.00 for misdemeanor or felony costs, and $250.00 for the Indigent Transcript Fund. Respondent appealed her criminal mischief conviction, unsuccessfully, to the Fourth Circuit Court of Appeal and the Louisiana Supreme Court. See State v. Gaubert, 2015-0774 (La. App. 4 Cir. 12/9/15), 179 So.3d 982, 986, reh 'g denied (Jan. 4, 2016), writ denied, 2016-0122 (La. 1123/17). Respondent has exhausted her appellate rights, and as such, her conviction for criminal mischief is final. v. The Office of Disciplinary Counsel respectfully suggests that there exists clear and convincing evidence that Respondent has violated Rule 8.4( c) of the Rules of Professional Conduct which provides that it is a violation for an attorney 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." By letters dated July 26, 20 17, the formal charges were mailed via USPS certified mail to Respondent's primary and secondary registration addresses. The mailing to her primary address was returned "not deliverable as addressed" and "unable to forward." No return was received on the mailing to the secondary address. Louisiana Supreme Court Rule XIX, 8(C) and 11(E)(2) provide that proof of attempted service pursuant to Section 13(A) shall constitute adequate notice 3
of the proceedings. 5 Respondent failed to file an answer to the charges. Accordingly, on October 2, 2017, ODC filed a motion to deem the factual allegations admitted pursuant to Louisiana Supreme Court Rule XIX, 11(E)(3). By order signed October 9, 2017, the factual allegations contained in the formal charges were deemed admitted. On December 14, 2017, ODC filed its submission on sanction in which ODC argued that Respondent should be suspended for six months. The ODC filed fourteen exhibits (ODC 1 through ODC 14) with its submission. Hearing Committee No. 54 filed its report on July 9, 2018. 6 The committee first explained that the rule quoted in the Formal Charges is Rule 8.4(b ), not 8.4( c), and stated that "it appears that ODC intended to charge Respondent with violating Rule 8.4(b), not 8.4(c)." Committee Report, p. 1. The committee went on to conclude that the ODC proved by clear and convincing evidence that Respondent violated Rule 8.4(b). In recommending a sanction, the committee found that Respondent violated duties owed to the legal profession and that her conduct was negligent, knowing and intentional and caused actual harm to the legal profession. The committee found that there were no mitigating factors to consider as Respondent had presented no evidence and the committee made no statement regarding any aggravating factors. After considering the ABA Standards for Imposing Lawyer Sanctions, including Standard 5.12, and the jurisprudence, the committee recommended that Respondent be suspended for six months and ordered to pay all costs and expenses associated with this matter. 5 Rule XIX, 13(A), provides that "service of the petition in any disciplinary proceeding shall be made by... mailing the petition by registered or certified mail to the primary address shown in the registration statement filed by respondent pursuant to Section SC or other last known address." 6 Hearing Committee No. 54 was comprised of Thomas Louis Colletta, Jr. (Committee Chair), Lori Allen Waters (Lawyer Member}, and Richard Allen Hinton (Public Member). 4
No objection to the committee's reconunendation was filed. ODC filed its Pre-Argwnent Brief on August 21, 2018. ODC has no objection to the committee's factual fmdings, legal conclusions, or recommended sanction. On August 22, 2018, Respondent filed a two-page pleading entitled, "Respondent's Response to Report of Hearing Committee #54." Respondent first contends that a statement in the Committee Report that Respondent has submitted nothing is inaccurate because she states she had previously submitted information to the ODC in 2012 and 2013. She then states that subsequent to the incident in question, she was diagnosed with and treated for PTSD and that she has returned to school to study music. In the remainder of the document, Respondent attempts to question and/or rehash some of the facts, witnesses, legal issues, and civil and criminal proceedings related to the underlying criminal incidents in question. Oral argument of this matter was held on September 20, 2018, before Board Panel "A." 7 Deputy Disciplinary Counsel Megan Rawle Stafford appeared on behalf of the ODC. Respondent appeared prose. 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 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 7 Board Panel "A" is composed of Brian D. Landry (Chair), Linda G. Bizzarro (Lawyer Member), and Sheila E. O'Leary (Public Member). s
v. Dominguet 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 committeets application of the Rules of Professional Conduct. In re Hillt 90-DB-004t Recommendation of the Louisiana Attorney Disciplinary Board (1/22/92). A. The Manifest Error Inquiry The factual allegations in the fonnal charges have been deemed admitted and proven pursuant to Louisiana Supreme Court Rule XIX, 11(E)(3), and are supported by the evidence submitted. B. De Novo Review The committee correctly applied the Rules of Professional Conduct. The legal conclusions of the committee are supported by the factual allegations asserted in the fonnal charges and by the evidence in support of the allegations. The record supports the conclusion that Respondent violated Rule 8.4(b). See In re Donnan, 2001-3058 (La. 1/10/03), 838 So.2d 715. The evidence is clear that Respondent was found guilty of simple battery in the municipal court proceeding and criminal mischief in the criminal court proceeding. The Supreme Court has explained: In an attorney disciplinary proceeding based on the lawyer's criminal conviction, the issue of his guilt may not be relitigated. Because the lawyerts convictiont whether based on adjudication or guilty plea, is tantamount to a finding of his guilt beyond a reasonable doubtt the clear and convincing standard of proof that applies to disciplinary proceedings has already been satisfied. In re: Bankston, 01-2780 (La.3/8/02), 810 So.2d 1113; Louisiana State Bar Ass'n v. Wilkinsont 562 So.2d 902 (La.l990). In this type of proceeding, the sole issue to be determined is whether the crime warrants discipline and, if so, the extent thereof. Louisiana State Bar Ass 'n v. Frank, 472 So.2d 1 (La.1985). In re Laudumiey, 2003-0234 (La. 6/27/03), 849 So.2d 51St 524; see also In re Bowman, 2012-2410(La. 3/19/13), Ill So.3d317, 322. 6
It is also noted that the committee acted appropriately in finding a violation of Rule 8.4(b) despite the ODC's error in referencing Rule 8.4(c) in the Fonnal Charges. The Court has held that due process requires that an attorney be given notice of the misconduct for which the disciplinary authority seeks to sanction him. La. State Bar Ass 'n v. Keys, 88-2441 (La. 9/7/90), 567 So.2d 588, 591, citing In re Ruffalo, 390 U.S. 544, 88 S.Ct. 1222,20 L.Ed.2d 117 (1968). Here, the substance of the fonnal charges, which include the actual text of Rule 8.4(b), clearly gave Respondent adequate notice of the asserted sanctionable misconduct. Further, Respondent has not raised an objection to the adequacy of the fonnal charges. See In re Gilmore, 2016-0967 (La. 10/ 19/16), 218 So.3d 100, 105, n. 4; In re Gilmore, 15-DB-034, Recommendation of the Louisiana Attorney Disciplinary Board (5/20/16). II. The Appropriate Sanction A. Rule XIX, to( C) Factors Louisiana Supreme Court Rule XIX, 1 O(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. Here, Respondent violated duties to the public and the profession. Respondent acted knowingly and intentionally. The evidence shows that Respondent was convicted of the crimes of battery and criminal mischief. By definition, these offenses involve intentional acts. See New Orleans City Code 54-96 (battery); La.R.S. 14:59 (criminal mischief). Respondent's actions caused significant harm to the victim of the crimes she committed. Respondent was convicted of criminal mischief on the basis that she gave a false report to an officer of the law relative to the 7
commission of, or attempt to commit, a crime. See State v. Gaubert, 2015-0774 (La.App. 4 Cir. 12/9/15), 179 So.3d 982 (Ex. ODC 6). As a result of her false report, the subject/victim of the false report was arrested and spent about thirty hours in jail. Id. at 986. Further, Respondent's false report created the potential for additional loss of the subject's/victim's personal freedom and for financial loss to the subject/victim in having to defend against the false claims. Additionally, while there appears to be no evidence in the record of this matter of any significant injury resulting from the battery, by definition, the battery is the intentional use of force or violence upon the person of another; or the intentional administration of a poison or other noxious liquid or substance to another. See New Orleans City Code 54-96. Furthermore, Respondent's actions and the resulting publicity reflect adversely on the profession as a whole. See, e.g., Ex. ODC 1. Aggravating factors include: multiple offenses; dishonest or selfish motive; bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with rules or orders of the disciplinary agency; refusal to acknowledge wrongful nature of conduct (based on Respondent's Response to Report of Hearing Committee #54); and illegal conduct. Mitigating factors present are imposition of other penalties and sanctions and absence of prior disciplinary record. 8 B. The ABA Standards and Case Law The following ABA Standards for Imposing Lawyer Sanctions are instructive m considering the sanction to be imposed for Respondent's misconduct: 5.11 Disbarment is generally appropriate when: (a) a lawyer engages in serious criminal conduct a necessary element of which includes intentional interference with the administration of justice, false swearing, misrepresentation, fraud, extortion, misappropriation, or theft; or... 8 However, as noted previously, while Respondent has no prior disciplinary record, she has been ineligible to practice law since 2017 due to her failure to fulfill her MCLE requirements and her failure to fulfill professional administrative requirements. 8
(b) a lawyer engages in any other intentional conduct involving dishonesty, fraud, deceit, or misrepresentation that seriously adversely reflects on the lawyer's fitness to practice. 5.12 Suspension is generally appropriate when a lawyer knowingly engages in criminal conduct which does not contain the elements listed in Standard 5.11 and that seriously adversely reflects on the lawyer's fitness to practice. Standard 5.ll(a) does not appear to be applicable as Respondent's criminal conduct does not appear to rise to the level of serious criminal conduct. 9 While a false accusation does reflect on moral fitness, considering the facts presented Standard 5.12 appears to be most applicable here. Further, the jurisprudence indicates that the sanction of suspension is appropriate in this matter. The jurisprudence reflects that sanctions in cases concerning attorneys who have engaged in some level of violent conduct range from suspension to disbarment. In In re Crabson, 2013-0312 (La. 4/12/13), 115 So.3d 452, 455-456, n.3, the court provided the following summary of examples of such cases: For example, in In re: Cardenas, 11-0031 (La.S/6/11), 60 So.3d 609, Mr. Cardenas struck his estranged wife in the presence of their minor child. He was subsequently convicted of domestic abuse battery (child endangerment), a misdemeanor, and placed on probation. For this conduct, the court suspended Mr. Cardenas for one year, with six months deferred, followed by a two-year period of probation. In In re: Willis, 09-0211 (La.5/13/09), 8 So.3d 548, Mr. Willis was waiting with his girlfriend in a vehicle at the drive-up window of a fast food restaurant. Before their food arrived, Mr. Willis and his girlfriend began arguing. This led to a physical altercation between them wherein Mr. Willis hit and grabbed his girlfriend. He also poured beer on her and hit her over the head with the empty beer bottle. Mr. Willis was ultimately charged with two counts of simple battery, which charges were still pending at the time of the disciplinary matter. He was also charged with other professional misconduct, including neglecting a client's bankruptcy matter, failing to refund an unearned fee and unused costs, failing to return the client's documents upon the termination of the representation, and practicing law while ineligible to do so. For this misconduct, Mr. Willis was disbarred. In In re: Greenburg and Lewis, 08-2878 (La.5/5/09), 9 So.3d 802, Mr. Lewis and Mr. Greenburg represented opposing parties in a bitterly contested succession matter pending in Terrebonne Parish. While appearing in open court for a motion hearing, Messrs. Lewis and Greenburg exchanged vulgarities, following which Mr. 9 La. Supreme Court Rule XIX, 19B, defmes a "serious crime" as a felony or any other crime, the necessary element of which as determined by the statute defming such crime, reflects upon the attorney's moral fitness to practice law. 9
Greenburg grabbed Mr. Lewis's suit jacket, and both men fell to the floor. Mr. Greenburg was subsequently convicted of the misdemeanor offense of simple battery arising out of this altercation. In response to the formal charges filed against both lawyers, the court suspended Mr. Greenburg from the practice of law for a period of six months, with all but thirty days deferred, subject to the condition that he complete an anger management counseling program. The court publicly reprimanded Mr. Lewis. In In re: Sterling, 08-2399 (La.l/30/09), 2 So.3d 408, Mr. Sterling kicked in the door of his girlfriend's apartment and then pushed and shoved her around the apartment. He was subsequently convicted of unauthorized entry of an inhabited dwelling, a felony, and placed on probation. Mr. Sterling was also charged with other professional misconduct, including failure to properly notify his clients of the interim suspension that followed his criminal conviction, failure to return a client's file after he was placed on interim suspension, and transferring a client matter to another attorney without the consent of the client. For this misconduct, the court imposed a two~year suspension from the practice oflaw. In In re: Estiveme, 99-0949 (La.9/24/99), 741 So.2d 649, Mr. Estiveme became involved in an altercation with opposing counsel during a deposition. At some point, opposing counsel suggested to Mr. Estiveme that the two of them "step outside" and settle the matter "man to man." Mr. Estiveme left the office and reappeared a few minutes later with an unloaded gun, allegedly threatening to kill opposing counsel. Finding Mr. Estiveme's use of a dangerous weapon created a clear potential for harm, the court suspended him for one year and one day. In In re: Redd, 95-1472 (La.9/15/95), 660 So.2d 839, Mr. Redd was suspended for one year and one day following his conviction of simple battery. Mr. Redd was employed as the legal advisor to the Baton Rouge Police Department, and his position involved issuing permits to exotic dancers. The conviction arose when he touched the breasts of permit applicants and photographed them without their consent. See also In re Bowman, 20 12~241 0 (La. 3/19/13), Ill So.3d 317, 323~324. In addition to the municipal court battery conviction, Respondent was also convicted of the criminal mischief based on her making a false complaint to the police, a misdemeanor crime involving dishonesty and misrepresentation. The charge and conviction were the result of a report Respondent made to the police of extortion and video voyeurism. The alleged perpetrator of the alleged extortion and video voyeurism was the subjectlvictim of the incident which eventually led to Respondent's battery conviction and had filed a civil lawsuit for tort damages against Respondent approximately one month before Respondent made the extortion/voyeurism report to 10
the police. See State v. Gaubert, 2015-0774 (La.App. 4 Cir. 12/9/15), 179 So.3d 982,984-986 (Ex. ODC 6). The jurisprudence suggests suspension is appropriate for Respondent's misconduct related to the criminal mischief conviction based on the false police report. The respondent inln re Pryor, 2015-0243 (La. 9/1115), 179 So.3d 566, represented a client who was charged with simple burglary of an inhabited dwelling for stealing a gun. The respondent approached the owner of the home/gmt on two occasions. On the first occasion, he offered the owner $300.00 to drop the charges against the client, and on the second occasion, he offered the owner $500.00 not to appear to testify at the trial. The respondent sought to characterize his actions as offers of restitution for the owner's stolen gun. The respondent had not been criminally prosecuted as a result of his actions. The Court held that the hearing committee was not clearly wrong when the hearing committee determined, based on the committee's credibility findings, that the respondent violated Rules 8.4(a) (violate or attempt to violate the Rules of Professional Conduct), 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), and 8.4(c) (engage in conduct involving dishonesty, fraud, deceit or misrepresentation). The Court found that the respondent knowingly, if not intentionally, violated duties owed to the public and the legal system and that while no harm actually occurred, a significant potential for harm existed. The respondent was suspended for one year and one day. Three justices dissented regarding the sanction to be imposed. Two of the dissenting justices would have imposed disbarment and the third would have imposed "greater discipline." 10 10 It is noted that the respondent in Pryor had a prior disciplinary record which included a two-year suspension, with eighteen months deferred, for negligent misconduct in the handling of client matters including incompetently handling and neglecting client matters, failing to conununicate with clients, failing to return unearned fees, and failing to cooperate with the ODC. 11
The respondent in In re Parks, 2008-3006 {La. 4/24/09), 9 So.3d 106, was also suspended for one year and one day. Ms. Parks was involved in an automobile accident in which she rearended another vehicle. She gave the driver of the other vehicle her business card identifying her as a licensed attorney and wrote the name of her insurer on the card. The respondent requested that the other driver not call the police, and relying on the fact that respondent was an attorney, the other driver agreed. It was later determined that the respondent was not insured at the time of the accident. Additionally, the respondent subsequently made several false statements, including denying that she was involved in the accident, to the ODC during its investigation of the complaint filed by the other driver. In reaching its decision, the Court explained:... Ms. Wedge complained that respondent had failed to address her responsibility for the accident, and had failed to maintain liability insurance coverage on her vehicle on the date of the accident. While Ms. Wedge was rightfully concerned about respondent's conduct, we do not find that, standing alone, such conduct by an attorney rises to a level warranting discipline by this court. However, respondent's failure to respond to the complaint on several occasions, and her subsequent misrepresentations to the ODC, are a separate issue altogether. Such conduct is a violation of the Rules of Professional Conduct and does warrant serious discipline. The deemed admitted facts and documentary evidence in this matter support a finding that respondent failed to cooperate with the ODC in its investigation of Ms. Wedge's complaint and made numerous misrepresentations to the ODC, both while under oath and in written and verbal statements. Respondent's conduct is in violation of Rules 8.l(a), 8.l{c), 8.4{a), and 8.4{c) of the Rules of Professional Conduct. * * * Respondent acted knowingly and intentionally in violating duties owed to the public and the legal profession. She caused harm to the disciplinary system as well as the legal profession and has never acknowledged her wrongfulness. The baseline sanction for this type of misconduct is a period of suspension. 12
/d. at lll.ll,t 2 See also In re Marinoff, 2001-2584 (La. 617/02), 819 So.2d 305 (respondent attorney found to have violated Rule 8.4( c) and suspended for six months for misrepresenting facts after an automobile accident to attempt to shield himself from culpability). In both In re Hebert, 2008-2785 (La. 5/29/09), 9 So.3d 846, and In re Dixon, 2008-1618 (La. 12/2/08), 996 So.2d 1029, the respondent attorneys failed to timely serve petitions they filed on behalf of their clients. In both matters, the respondent attorneys also made repeated false statements to the ODC during the ODC's investigations of complaints filed by the respective clients. In Hebert, citing the Parks decision, the Court suspended the respondent for one year and one day. One justice dissented and would have imposed a two-year suspension. In Dixon, the respondent was suspended for one year and one day, with six months deferred followed by a oneyear, unsupervised probation period. Three justices dissented and would have imposed a one year and one day suspension with no time deferred. The Court opined in Dixon: In mitigation, we find respondent has expressed remorse for his regrettable lack of diligence in handling his client's legal matter and for the manner in which he sought to correct his mistake with respect to the service of the petition. Although respondent has a prior disciplinary record, his prior offenses are remote in time, and he has had no disciplinary infractions for nearly ten years, Respondent's actions appear to have caused no significant harm to his client, and but for the misleading statements to the ODC, this matter may have been more properly addressed in the context of a civil malpractice action rather than a disciplinary proceeding. Dixon, 996 So.2d at 1034. 11 No criminal charges were filed against the respondent in Parks, but the ODC did allege a violation of Rule 8.4(b) in the fonnal charges. The Court did not conclude that the respondent violated Rule 8.4(b), nor did the Board. The Board recognized that the respondent operated her vehicle without insurance on two occasions thereby technically committing a traffic violation. However, the Board detennined the violation was not within the scope of Rule 8.4(b), reasoning it was not the intention of the Court to sanction attorneys for routine traffic violations. Parks, 9 So.3d at 110. 12 As in the present matter, the respondent in Parks failed to answer the formal charges and to participate in the proceedings before the hearing committee, but later did appear at oral argument before a panel of the Disciplinary Board. Also, the respondent was ineligible at the time of the oral argument for failure to file her trust account disclosure statement. 13
Respondent has been convicted of two misdemeanor crimes in two different courts. In 2014, Respondent was found guilty of simple battery in Municipal Court ofnew Orleans. In 2015, Respondent was also found guilty in Orleans Parish Criminal District Court of criminal mischief for making a false police report against the victim in the battery matter which resulted in the victim being arrested and jailed for about thirty hours. The false report was filed approximately one month after the victim had filed a civil lawsuit against Respondent based on the altercation giving rise to the battery charge. Both convictions reflect upon Respondent's fitness as a lawyer. Significantly, the criminal mischief conviction also bears directly on Respondent's honesty and trustworthiness. Furthermore, Respondent did not answer the Formal Charges or participate in the proceedings before the committee, allowing the factual allegations to be deemed admitted. After the committee filed its report, Respondent appeared and filed a two-page pleading entitled, "Respondent's Response to Report of Hearing Committee #54." She also appeared at oral argument before the Board panel and was allowed to make a presentation. In both her "Response" and at oral argument, Respondent attempted to question and/or revisit issues in the underlying criminal proceedings. Based on Respondent's statements in her "Response" and at argument, Respondent has experienced emotional problems, "left the practice of law in 2012," and is currently studying to become a music therapist. "Response," fr I, III; see also Ex. ODC 4, p. 3. Respondent has also been ineligible to practice law for over one year due to her failure to comply with MCLE and professional administrative requirements. Nonetheless, Respondent repeatedly stated in her argument before the Board panel that she did not want to lose her "degree." 14
Considering all of the circumstances presented here, including Respondent's convictions, her discontinuance of the practice oflaw six years ago, her failure to respond to the Formal Charges or participate in the proceedings before the committee, and her demeanor and presentation before the Board panel, and considering the ABA Standards and jurisprudence discussed above, the Board recommends a suspension from the practice of law for a period of one year and one day. This sanction is in accord with the jurisprudence. Further, the recommended sanction will necessitate an application for reinstatement pursuant to Rule XIX, Section 24, should Respondent desire to resume her law practice which requirement the Board finds to be appropriate given the unique circumstances of this matter. CONCLUSION The Board adopts the committee's factual findings and legal conclusions regarding rule violations. The Board recommends that Respondent be suspended for one year and one day. Additionally, the Board recommends that Respondent be assessed with the costs and expenses of this matter. 15
RECOMMENDATION The Board recommends that Jennifer E. Gaubert be suspended from the practice of law for one year and one day. The Board further recommends that Respondent be assessed with the costs and expenses of these proceedings in accordance with Louisiana Supreme Court Rule XIX, lo.l(a). LOUISIANA ATTORNEY DISCIPLINARY BOARD Linda G. Bizzarro Pamela W. Carter Sheila E. O'Leary Dominick Scandurro, Jr. Danna E. Schwab Evans C. Spiceland, Jr. Melissa L. Theriot Charles H By: Brian D. Landry THE ADJUDICATIVE COMMI TEE 16
Rule 8.4. Misconduct It is professional misconduct for a lawyer to: APPENDIX (b) Commit a criminal act especially one that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects; (c) Engage in conduct involving dishonesty, fraud, deceit or misrepresentation; 17