LOUISIANA ATTORNEY DISCIPLINARY BOARD IN RE: TRISHA ANN WARD NUMBER: 16-DB-017 RECOMMENDATION TO THE LOUISIANA SUPREME COURT INTRODUCTION This is an attorney disciplinary matter based upon the filing of formal charges by the Office of Disciplinary Counsel ( ODC ) against Trisha Ann Ward ( Respondent ), Louisiana Bar Roll Number 31485. 1 The formal charges, which consist of four counts, allege violations of the following Rules of Professional Conduct: Rule 8.4(b) (criminal conduct), Rule 8.4(c) (dishonest conduct), and Rule 8.4(a) (violation or attempted violation of the Rules of Professional Conduct). 2 A majority of the Hearing Committee assigned to this matter concluded that Respondent violated the Rules as charged and recommended that she be suspended from the practice of law for two years. The dissenting member of the Committee concluded that ODC did not meet its burden of proof with regard to Counts I and IV. The dissenting member recommended that Respondent be suspended for one year, fully deferred. 1 Respondent is currently on interim suspension, which she entered voluntarily pursuant to a joint petition with ODC. In re Ward, 2016-2003 (La. 12/1/16), 207 So.3d 397. 2 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;
For the following reasons, the Board adopts the findings and conclusions of the Committee s majority. As a sanction, the Board recommends that Respondent be suspended from the practice of law for one year and one day. PROCEDURAL HISTORY ODC filed the formal charges in this matter on February 24, 2016. The charges state, in pertinent part: COUNT I. Pursuant to the provisions of Supreme Court Rule XIX, 11E, the Office of Disciplinary Counsel charges that on or about the 20th day of December 2013 Respondent engaged in the unauthorized entry of an inhabited dwelling belonging to S.S. and J.H. in that she did intentionally enter into the home of S.S. and J.H. without authorization. In a sworn investigative statement given to the Office of Disciplinary Counsel, the Respondent on January 22, 2016 acknowledged under oath that she did not have the expressed permission of S.S. or J.H. to enter into their residence. The action of the Respondent constitutes the crime of unauthorized entry of an inhabited dwelling in violation of the provisions of R.S. 14:62.3 and is thus a violation of Rule 8.4(b) (the commission of a criminal act) and 8.4(a) (violate or attempt to violate the Rules of Professional Conduct). COUNT II. Pursuant to the provisions of Supreme Court Rule XIX, 19, the Office of Disciplinary Counsel charges that on or about October 30, 2015 the Respondent pled guilty to one count of violating R.S. 14:40.2, the crime of stalking defined as: the intentional and repeated following or harassing of another person that would cause a reasonable person to feel alarmed or to suffer emotional distress. The Respondent s conduct reflects a violation of Rule 8.4(b) (the commission of a criminal act) and Rule 8.4(a) (violate or attempt to violate the Rules of Professional Conduct). COUNT III. Pursuant to the provisions of Supreme Court Rule XIX, section 19, the Office of Disciplinary Counsel charges that on or about October 30, 2015, the Respondent entered a guilty plea to the criminal charge of violation of protective orders in violation of R.S. 14:79. The Respondent s conduct violates the provisions of Rule 8.4(b) (the commission of a criminal act) and Rule 8.4(a) (violate or attempt to violate the Rules of Professional Conduct). COUNT IV. Pursuant to the provisions of Supreme Court Rule XIX, 11E the Office of Disciplinary Counsel charges that in or around the month of August 2015, the 2
Respondent caused purchases to be made on the credit card of J.H. and/ or S.S. on Amazon.com. The Respondent was never given permission to use the credit card at issue. The conduct of the Respondent reflects the commission of the crime of unauthorized use of an access card as theft in violation of Rule 8.4(b) (the commission of a criminal act); Rule 8.4(c) (conduct involving dishonesty, fraud, deceit or misrepresentation); and Rule 8.4(a) (violate or attempt to violate the Rules of Professional Conduct). Respondent filed an answer to the charges on April 7, 2016, in which she denied the charges as written. Although, she admitted to pleading guilty to the crimes that form the basis of Counts II and III. On July 25, 2016, the Committee granted ODC s motion for a protective order, directing that the record be maintained as private. The hearing was held on October 25-26, 2016, before Hearing Committee Number 52. 3 Chief Disciplinary Counsel Charles B. Plattsmier appeared on behalf of ODC. Respondent appeared on her own behalf and with co-counsel Dane S. Ciolino. The Committee admitted ODC Exhibits 1-15 and 17-18 into the record. Respondent did not introduce any exhibits into the record at the time of the hearing. 4 The Committee heard the testimony of Respondent, Detective Francis Jarrott (Count I), Detective Michael DiMarco (Count IV), J.H., S.S., Adonica Nelson (Count I), Andrew Duffy (character witness), and Phyllis Shnaider (clinical social worker treating Respondent). The Committee issued its report on January 18, 2017. 5 A majority of the Committee, the Lawyer Member and Public Member, concluded that Respondent violated the Rules as charged and recommended that she be suspended from the practice of law for two years with her reinstatement being conditioned upon addressing her claimed emotional and mental problems. 3 The Committee was composed of Linda G. Rodrigue (Chair); Joseph J. LaPlace, III (Lawyer Member); and Vallan B. Corbett (Public Member). 4 Respondent attempted to submit exhibits into the record after hearing by delivering them to the Committee Chair at her law office. This attempt was denied. Order of Committee (10/31/16). 5 Given the length and detail of the findings and conclusions in the Committee s report and the dissent, those are not reproduced here. 3
Hearing Committee Report, p. 14. The Chair of the Committee dissented, concluding that ODC did not carry its burden with regard to Counts I and IV. The Chair also dissented with regard to the recommended sanction. The Chair stated that a one-year period of suspension, fully deferred, was appropriate, subject to a period of probation conditioned on Respondent being monitored by an experienced attorney and continuing treatment for her emotional issues. On January 24, 2017, ODC filed a notice of no objection to the Committee s majority report and recommendation. ODC filed its brief on March 6, 2017. Respondent filed her brief on March 22, 2017. In her brief, Respondent objects to the Committee s conclusion that ODC carried its burden regarding Counts I and IV. Her objections are largely based upon her disagreement with the Committee s credibility determinations. Oral argument of this matter was heard on April 6, 2017, before Board Panel C. 6 Chief Disciplinary Counsel Charles B. Plattsmier appeared on behalf of ODC. Respondent appeared with counsel, Dane S. Ciolino. Respondent argued on her own behalf. 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 6 Board Panel C was composed of Walter White (Chair), Danna Schwab (Lawyer Member), and Sheila O Leary (Public Member). 4
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 findings in the Committee s majority report do not appear to be manifestly erroneous. However, there are a few issues that should be discussed regarding the facts of this matter. First, several of the findings by the majority are dependent upon credibility determinations. The Court has held that it will defer to the credibility determinations of hearing committees unless the determinations are clearly wrong. See In re Bolton, 2002-0257 (La. 6/21/02), 820 So.2d 548, 553. Here, while the dissenting Committee member came to a contrary conclusion on some of the credibility determinations, there is nothing in the record that indicates the credibility determinations of the majority are manifestly erroneous. Particularly, the majority found Respondent to not be credible, which influenced its findings regarding Counts I & IV. With regard to Count I, Respondent defends against the allegations by arguing that she had implied authority to enter J.H. s home on December 28, 2013. Respondent s lack of credibility, when viewed in light of the other evidence in the record, clearly demonstrates that she did not have implied authority. See ODC Exhibits 13 and 13(a). Any contrary assumption on her part was unreasonable. With regard to Count IV, Respondent defends against the allegations by arguing that she mistakenly used J.H. s credit card to make online purchases in August of 2014. While Respondent s explanation may be reasonable, the Committee s majority did not find this explanation to be credible. This finding does not appear to be manifestly erroneous. Second, Respondent claims that the following findings of the Committee s majority come from evidence that is not in the record: 5
On February 27, 2014, Respondent appeared in Orleans Parish Criminal Court and was ordered to stay away from J.H.'s family and cease contact as terms of her bond. She was also given a non-domestic stay-away order for the same behavior. Nevertheless, in the following months Respondent frequented a coffee house where she knew J.H. would be; reportedly attempted to join a class where J.H. takes yoga; drove up and down St. Charles Avenue while J.H. was jogging; and appeared at a location in Audubon Park while J.H. and her children where there. Additionally, and during this time, an email was sent to Tulane University about J.H. and to her students regarding a lesbian affair on her part. J.H. 's husband, S.S., was notified by his supervisor of receipt of an e-mail regarding J.H. 's "lesbian affair". Amazon notified J.H. that her "book review" of a publication on lesbian relationships was not accepted even though she had never submitted such a book review. J.H. was also notified that her password for her gmail account and her son's gmail account had been changed (or had attempted to be changed) and that someone had applied for a new Apple ID on her account. Neither she nor any family member had done any of these things. [Emphasis added.] Hearing Committee Report, p. 6. With the exception of the underlined passages, Respondent is correct in stating that the facts above are not contained in the evidence and testimony in the record. Respondent alleges that these facts come from an exhibit that was not admitted into the record ODC Exhibit 16. The record demonstrates that ODC Exhibit 16 was not admitted into evidence and not even presented to the Committee. Hearing Transcript (10/25/16), pp. 6-8. It appears that the Committee s majority obtained this information from ODC s pre-hearing memorandum. Original Pre-Hearing Memorandum by the Office of Disciplinary Counsel, p. 15. Given that the information above is not in evidence, the Board will disregard these findings, with the exception of the underlined portions. Third, as pointed out by Respondent, Count IV of the formal charges gives the incorrect date of the credit card purchase. The formal charges state that this occurred in August of 2015. In fact, the transactions occurred in August of 2014. However, this error did not affect Respondent s ability to defend herself against the allegations. Thus, the error does not affect the posture of the allegations in Count IV. 6
B. De Novo Review The Committee s majority correctly applied the Rules of Professional Conduct. Accordingly, the Board finds that Respondent violated Rules 8.4(a) and 8.4(b) in Counts I-III and Rules 8.4(a), 8.4(b), and 8.4(c) in Count IV. 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. Here, Respondent knowingly violated a duty owed to the public by engaging in criminal conduct on multiple occasions. She caused actual harm to J.H. and S.S. in the form of frustration and fear. She also caused nominal financial harm by her unauthorized use of J.H. s credit card. The following aggravating factors are supported by the record: dishonest or selfish motive, pattern of misconduct, multiple offenses, and illegal conduct. The following mitigating factors are supported by the record: absence of a prior disciplinary record, personal and emotional problems, and imposition of other penalties or sanctions. B. The ABA Standards and Case Law The ABA Standards for Imposing Lawyers Sanctions suggests suspension is the baseline sanction in this matter. Standard 5.11 states: 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 the sale, 7
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; or (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. Standard 5.12 states: 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. Here, Respondent pled guilty to two misdemeanors (Count II and Count III) and engaged in criminal conduct that could result in felony (Count I) and misdemeanor (Count IV) convictions. Respondent s criminal convictions and conduct do not appear to rise to the level of factors listed in Standard 5.11. Accordingly, suspension appears to be the baseline sanction. The Court has imposed sanctions ranging from two-year suspensions to a fully-deferred one year and one day suspension for similar misconduct. In In re Sterling, the Court suspended Mr. Sterling for two years, retroactive to the date of his interim suspension, based upon his plea of guilty to felony unauthorized entry of an inhabited dwelling and other minor misconduct. 7 2008-2399 (La. 1/30/09), 2 So.3d 408. The criminal conviction was based upon the following facts. Mr. Sterling, along with two friends, went to the apartment of his fiancée to retrieve an engagement ring and the keys to a vehicle Mr. Sterling had given her. When Mr. Sterling could not gain entry into the apartment, he kicked in the front door. Upon entering the apartment, he found his fiancée with another man. Mr. Sterling proceeded to push and shove his fiancée around the apartment. After being arrested, Mr. Sterling continued to send threatening text messages to his fiancée. The Court recognized the following mitigating factors: absence of a prior disciplinary record, 7 Mr. Sterling was also found to have engaged in misconduct by negligently failing to return a client s file after termination and negligently failing to notify a client of his interim suspension. 8
inexperience in the practice of law, character and reputation, imposition of other penalties or sanctions, and remorse. The only aggravating factor recognized by the Court was multiple offenses. In In re Fusilier, the Court suspended Ms. Fusilier for eighteen months based upon her criminal conduct. 2016-0016 (La. 05/27/16), 193 So.3d 1150. Ms. Fusilier burglarized the home of her ex-husband, stealing a diamond ring (valued at $13,000) and watch (valued at $6,000), which she pawned for money to gamble. The following aggravating factors were present: dishonest or selfish motive and substantial experience in the practice of law. The following mitigating factors were present: absence of a prior disciplinary record and personal or emotional problems. The Court relied on its precedent in Sterling when determining the sanction for Ms. Fusilier, but decided to deviate downward from a two-year suspension because the crime of battery and the other misconduct present in Sterling was not present in Fusilier. In In re Katner, the Court suspended Ms. Katner for one year and one day based upon her no contest plea to making harassing phone calls and stalking and her guilty plea to DWI. 2008-2398 (La. 2/6/09), 15 So.3d 52. With regard to the harassing phone calls and stalking convictions, Ms. Katner received probation. Her probation was revoked when she continued to make harassing phone calls. The following aggravating factors were present: a pattern of misconduct, multiple offenses, substantial experience in the practice of law, and illegal conduct. The following mitigating factors were present: absence of a prior disciplinary record, personal or emotional problems, full and free disclosure to the disciplinary board or cooperative attitude toward the proceedings, and imposition of other penalties or sanctions. In In re Robinson, the Court suspended Ms. Robinson for one year, with eleven months deferred, for violating a preliminary and permanent injunction barring her from contacting an 9
individual she continually harassed. 2001-2772 (La. 5/14/02), 819 So.2d 280. She was found to be in contempt of court for violating the permanent injunction, for which she received a threemonth suspended sentence. The Court did not recognize any aggravating factors. However, Court considered several factors in mitigation: Id. at 284. [Ms. Robinson] has no prior disciplinary record, has displayed a cooperative attitude during the disciplinary proceedings, and has been the subject of other penalties imposed by the district court. Unlike the conduct at issue in Graves [2001-0922 (La.5/11/01), 802 So.2d 530] and White [97-1152 (La.9/19/97), 699 So.2d 375], respondent's actions did not occur in the context of the practice of law, and did not adversely affect clients. Further, it is significant that the district court ordered respondent to seek counseling, suggesting the court believed respondent's actions may have stemmed from mental health problems. In In re LaMartina, the Court suspended Ms. LaMartina for one year and one day, fully deferred, from violating her criminal probation. 2010-0093 (La. 07/02/10), 38 So.3d 266. On March 2, 2006, following a misdemeanor trial, Respondent was found guilty of unauthorized access to a public school and resisting arrest. Her sentence was suspended and she was placed on probation. One of the terms of her probation was to not enter any school grounds of the St. Tammany Parish School Board without specific authorization. In 2007, she violated this condition by entering school grounds on three occasions without authorization. Accordingly, her criminal probation was revoked. On July 2, 2010, the Court suspended Respondent for one year and one day, fully deferred, based upon her violation of the terms of her criminal probation. The Court found Ms. LaMartina s conduct to be knowing, if not intentional. The following aggravating factors were present: a dishonest or selfish motive, a pattern of misconduct, multiple offenses, and refusal to acknowledge the wrongful nature of the conduct. The following mitigating factors were present: absence of a prior disciplinary record, full and free disclosure to the disciplinary board and a cooperative attitude toward the proceedings, and imposition of other penalties or sanctions. 10
Here, Respondent did not engage in violence or significant theft that is present in Sterling and Fusilier, respectively. Like the facts of Katner, Robinson, and LaMartina, Respondent was the subject of an order barring her from particular conduct (i.e. contacting J.H. and/or her family), which she violated. Also, like in Katner, Respondent engaged in an additional criminal act unauthorized use of J.H. s credit card. Thus, relying on Katner, a one year and one day suspension appears to be appropriate. Deferral of all or a portion of the sanction is not appropriate given the unique facts of this case. The Board finds that Respondent should be required to petition for reinstatement pursuant to Rule XIX, 24. CONCLUSION The Board adopts the findings and conclusions of the Committee s majority, with the exception discussed above. As a sanction, the Board recommends that Respondent be suspended from practice of law for one year and one day, retroactive to the date of her interim suspension. The Board also recommends that Respondent be assessed with the costs and expenses of this matter. 11
RECOMMENDATION The Board recommends that Respondent, Trisha Ann Ward, be suspended from the practice of law for one year and one day, retroactive to the date of her interim suspension. The Board also recommends that Respondent be assessed with the costs and expenses of this matter. LOUISIANA ATTORNEY DISCIPLINARY BOARD Linda G. Bizzarro Pamela W. Carter Anderson 0. Dotson, III Sheila E. O'Leary Danna E. Schwab BY: alter D. White FOR THE ADJUDICATIVE COMMITTEE 12