ORIGINAL Louisiana Attorne\ Disci linary Boud FILED by: cf_ynb~ Docket# Filed-On 14-DB-052 1/5/2016 LOUISIANA ATTORNEY DISCIPLINARY BOARD IN RE: JULIE ANN FUSILIER NUMBER: 14-DB-052 RECOMMENDATION TO THE LOUISIANA SUPREME COURT INTRODUCTION This attorney discipline matter arises out of formal charges consisting of one count filed by the Office of Disciplinary Counsel ("ODC") against Julie Ann Fusilier ("Respondent"), bar roll number 19583. ODC alleges that Respondent violated the following Rules of Professional Conduct: 8.4(a)(violate or attempt to violate Rules of Professional Conduct); 8.4(b)(commission of a criminal act); and 8.4(c)(conduct involving dishonesty, fraud, deceit or misrepresentation).' Respondent allowed the charges to become and remain deemed admitted pursuant to Louisiana Supreme Court Rule XIX, ll(e)(3)? The Hearing Committee assigned to this matter 1 Rule 8.4 states, in pertinent part: 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; (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;... 2 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 hearing 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 hearing 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 1
concluded that Respondent violated the Rules as charged and recommended that she be suspended from the practice oflaw for one year and one day. The Board adopts the factual findings and legal conclusions of the Committee. As a sanction, the Board recommends that Respondent be suspended from the practice of law for eighteen (18) months. PROCEDURAL HISTORY ODC filed formal charges against Respondent on October 20, 2014. By letters dated October 23, 2014, the formal charges were sent to Respondent's primary registration address and another known address via certified mail. 3 Both mailings were returned to the Board's office as "unclaimed". Respondent failed to file an answer to the charges within the time period allowed by Louisiana Supreme Court Rules XIX, ll(e)(3). Accordingly, ODC filed a motion to have the formal charges deemed admitted on January 6, 2015. The lawyer member of the hearing committee granted the deemed admitted motion on January 14, 2015. 4 On January 22, 2015 the Committee Chairman issued an order recalling the deemed admitted order on the basis that it was signed by the lawyer member of the Committee rather than by the Committee Chairman. Subsequently on March 23, 2015, the Chairman issued an order denying ODC's motion and remanding the matter to ODC "tore-file its motion, if it so chooses, stating a written basis in its Motion for such a drastic step to be taken on the basis of an arrest, as opposed to a conviction." On March 26, 2015, ODC filed a motion for appellate review, or in the alternative, for reassignment to a second hearing committee. On April 8, 2015, demonstration of good cause why imposition of the order would be improper or would result in a miscarriage of justice. 3 Respondent's primary registration address is 6810 Jefferson Hwy., Apt. 6208, Baton Rouge, LA 70806. Her other known address is 1114 Hodge St., Apt. #2, Lake Charles, LA 70601. 4 Hearing Committee No. 52 is composed of Linda G. Rodrigue (Chair), Joseph J. LaPlace, III (Lawyer Member) and Roxanne B. Dupuy (Public Member). 2
the Chairman of the Board's Adjudicative Committee issued an order which: (1) granted ODC's Motion for Appellate review; (2) denied ODC's alternative request for reassignment to a second hearing committee; (3) reversed the Committee's March 23, 2015 order denying ODC's Motion to Declare Factual Allegations Deemed Admitted; and (4) granted ODC's original Motion to Declare Factual Allegations Deemed Admitted. Respondent was granted twenty days in which to file a motion to recall the order, which she failed to do. ODC filed its written argument on sanctions, with supporting exhibits, on June 22, 2015. Respondent filed a memorandum on the issue of sanctions on' July 7, 2015. Attorney Karl Koch enrolled as counsel of record for Respondent on August 4, 2015. The Committee issued its report on August 4, 2015, finding that Respondent violated the Rules as charged in the formal charges, and recommending that Respondent be suspended from the practice oflaw for one year and one day. On August 5, 2015, ODC filed an objection to the sanction recommended by the Committee. This matter was initially scheduled for Board oral argument on August 13, 2015. However, it was continued to November 5, 2015, upon motion of ODC. On August 25, 2015, the Board issued an order redacting Respondent's social security number from the record. ODC filed a pre-argument memorandum on August 28, 2015. Respondent did not file a pre-argument memorandum. Oral argument was heard by Board Panel "B", on November 5, 2015. 5 Chief Disciplinary Counsel Charles B. Plattsmier appeared on behalf of ODC. Neither Respondent nor her counsel appeared at oral argument. 5 Board Panel "B" was composed of Edwin G. Preis, Jr. (Chairman), Walter D. White (Lawyer Member), and Evans C. Spiceland, Jr. (Public Member). 3
FORMAL CHARGES The formal charges read, in pertinent part: I. On June 22, 2014, Respondent self-reported her arrest for felony theft and burglary of an inhabited dwelling to the Office of Disciplinary Counsel. On or about April 20, 2014 Respondent broke into the home of her former husband Robert Wooley and stole a man's diamond ring (valued at approximately $13,000) and Mr. Wooley's wife's Rolex watch (valued at approximately $6,000). Thereafter, Respondent took the items to Diamond Distributors Inc. where she sold the items for approximately $2,700. The proceeds of the sale were used by Respondent to gamble. II. After investigation by the Baton Rouge Police Department in conjunction with the East Baton Rouge Parish Sheriffs Office, on May 19, 2014 an arrest warrant for Ms. Fusilier was prepared and signed by District Court Judge Trudy White. On May 20, 2014, the Respondent was arrested and booked into East Baton Rouge Parish Prison. III. The Respondent's actions reflects violations of Rules 8.4(b)- commission of a criminal act; 8.4(c) - conduct involving dishonesty, fraud, deceit or misrepresentation; and 8.4(a) - violating or attempting to violate the Rules of Professional Conduct. THE HEARING COMMITTEE REPORT As noted above, the Committee issued its report on August 4, 2015. The Committee concluded that Respondent violated Rules 8.4 (a), (b) and (c) as charged in the formal charges. When considering the appropriate sanction, the Committee noted that ODC recommended an eighteen month suspension based on In Re Elvin A. Sterling, Jr., 08-2399 (La. 1/30/2009) 2 So.3d 408. The Committee recommended a shorter suspension of one year and one day. The Committee reasoned that a shorter sentence was appropriate because unlike the respondent in In re Sterling, Ms. Fusilier was not charged with a crime of violence. Additionally, the Committee noted that Respondent has been ineligible to practice law since September 19, 2012. 6 The 6 Respondent is ineligible to practice law due to her fai lure to pay bar dues and disciplinary assessment, failure to complete her annual MCLE requirement, and failure to complete her trust account disclosure form. 4
Committee noted that a one year and one day suspension in combination with her period of ineligibility would result in a four year suspension from the practice of law, which the Committee felt was appropriate. 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 application of the Rules of Professional Conduct. In re Hill, 90-DB-004, Recommendation of the Louisiana Attorney Disciplinary Board (1/22/92). A. The Manifest Error Inquiry The factual allegations in the formal charges have been deemed admitted and proven pursuant to Louisiana Supreme Court Rule XIX, 11(E)(3). The factual findings of the Committee are supported by the factual allegations asserted in the formal charges and/or by the evidence submitted in support of the allegations. See In re Donnan, 2001-3058 (La. 1/10/03), 838 So.2d 715. 5
B. De Novo Review The Committee correctly applied the Rules of Professional Conduct. The record supports the conclusion that Respondent violated Rule 8.4(a) (violate or attempt to violate Rules of Professional Conduct); 8.4(b) (commission of a criminal act); and 8.4(c) (conduct involving dishonesty, fraud, deceit or misrepresentation) as alleged in the formal charges. II. The Appropriate Sanction A. Rule XIX, lo(c) Factors Louisiana Supreme Court Rule XIX, 1 O(C) states that when imposing a sanction after a finding oflawyer 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 knowingly violated duties owed to the public and the profession when she burglarized her former husband's home. She caused actual harm when she stole jewelry from that residence, later selling it to a pawn shop. Additional harm occurred to the legal profession by Respondent's commission of a serious crime that reflects poorly on the profession as a whole. The following aggravating factors are recognized by the Board: dishonest or selfish motive and substantial experience in the practice of law. 7 In mitigation, the Respondent has no prior disciplinary record, and has personal and emotional problems. 8 7 Respondent was admitted to the practice of law in Louisiana on October 6, 1989. 8 See ODC Exhibit 1 (Respondent's self report of misconduct dated June 26, 201 4). 6
B. The ABA Standards and Case Law Standard 5.11 of the ABA Standards for Imposing Lawyers Sanctions is applicable. Standard 5.11 provides 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. However, the Board recommends a downward deviation from the baseline sanction of disbarment due to the fact that Respondent has no prior disciplinary history, and has personal and emotional problems. As ODC points out in its brief, there appears to be only one case that is similar in some respects to the matter. at hand. In the matter of In Re Elvin A. Sterling, Jr., 08-2399 (La. 1/30/2009) 2 So.3d 408, the respondent committed the crime of entry into an inhabited dwelling. There, the respondent went to the apartment of his former fiance so that he could retrieve an engagement ring and keys to the vehicle he had given to her. When the ex-fiance declined to open the door, the respondent kicked in the door and forced his way inside the apartment. While attempting to secure the ring and keys to the vehicle, the respondent grabbed his former fiance by her arms and pushed and shoved her around the apartment. Mr. Sterling was subsequently arrested and charged with unauthorized entry of an inhabited dwelling and simple battery. While other relatively minor counts also accompanied the felony charge, it was clearly the felony conduct which presented the most serious matter of concern to the Supreme Court. The Court imposed the sanction of a two year suspension from the practice of law. Ms. Fusilier has acknowledged and admitted that she committed the criminal act of burglary of an inhabited dwelling and felony theft. Similarly, Mr. Sterling also broke into an 7
inhabited dwelling. While Mr. Sterling did not steal property, he did engage in an un-consented touching and was charged with simple battery. Additionally, Mr. Sterling engaged in post interim suspension misconduct by failing to properly inform his client that he was suspended and failing to return a file on at least one occasion. Here, Ms. Fusilier did not engage in a battery, but broke into a home and stole jewelry worth a substantial sum of money. The Board notes that Ms. Fusilier was not charged with additional misconduct as was the case in the Sterling matter. Accordingly, the Board agrees with ODC that a downward departure from the two year suspension levied in Sterling is appropriate since there was no act of violence or other acts of misconduct committed by Respondent. However, while the Committee recommended a one year and one day suspension, the Board recommends an eighteen month suspension from the practice of law. Respondent self reported her arrest for burglary and attributed her conduct to her gambling addiction. Although Respondent thereafter made contact with the Lawyers Assistance Program ("LAP") and entered into a Recovery Agreement, she is no longer compliant with the LAP Agreement. Due to her record of significant non-compliance, including her failure to continue drug screening, failure to attend counseling meetings regarding her gambling addiction, and failure to maintain contact with LAP, she is no longer being monitored by LAP. Due to Respondent's failure to adhere to the counseling and assistance offered through LAP, the Board agrees with ODC that an eighteen month suspension from the practice of law is the appropriate sanction. 8
CONCLUSION The Board adopts the factual findings and legal conclusions of the Committee. However, the Board recommends that Respondent be suspended for eighteen months rather than for one year and one day as recommended by the Committee. The Board also recommends that Respondent be assessed with the costs and expenses of this proceeding. RECOMMENDATION The Board recommends that Respondent, Julie Ann Fusilier, be suspended from the practice of law for eighteen months. The Board also recommends that Respondent be assessed with the costs and expenses of this matter. LOUISIANA ATTORNEY DISCIPLINARY BOARD Carl A. Butler George L. Crain, Jr. Carrie L. Jones Edwin G. Preis, Jr. Dominick Scandurro, Jr. R. Lewis Smith, Jr. Walter D. White BY: Evans C. Spiceland, Jr. FOR THE ADJUDICATIVE COMMITTEE Anderson 0. Dotson, III-Recused. 9