No Former Client Conflict
The Louisiana Attorney Disciplinary Board agreed with a hearing committee’s conclusion that an attorney’s representation of a client in a criminal matter did not violate the former client conflicts rule.
The board further rejected charges involving Rule 8.4 and ordered dismissal of all charges.
The attorney represented a witness in a criminal matter involving a former firm client, who had complained about the alleged conflict and further contended that the accused attorney had lied to him in a letter responding to his concerns.
Unlike the cooperating witness in Ryan, Mr. Duhon was not a target of the federal investigation and did not plead guilty to any charge in connection with the Reggie matter. His cooperation with the Government was not based on a hope that the Government would assist him in obtaining a favorable sentence. He cooperated with the Government after initially being served with the July 9, 2014 subpoena; he met with the Government to answer questions pertaining to at least one document already in the Government’s possession (the August 14, 2012 email) and his personal and business relationships with Mr. Reggie. It was unlikely that Mr. Duhon would have been called as a witness at the trial. Even if Mr. Duhon was called as a witness, Respondent would not have cross-examined Mr. Reggie concerning any information pertaining to Mr. Duhon; Mr. Salomon or another Assistant United States Attorney would have done so. Under the court’s analysis in Ryan, Mr. Duhon’s interests cannot be categorized as “materially adverse” to those of Mr. Reggie and do not trigger a violation of Rule 1.9(a).
Overall, Respondent’s conduct cannot be described as negotiating or litigating against the firm’s former client, Mr. Reggie, or as attacking the work done for Mr. Reggie by Mr. Gibbens. Although the MOI describes Mr. Duhon’s communications to the Government concerning Mr. Reggie’s admissions of fraudulent conduct, this was truthful information, which Mr. Reggie later admitted in open court at his re-arraignments. See Exhibit R14, Bates R094, R096, Reggie Re-Arraignment (dated October 27, 2014); Exhibit R32, Bates R251-53, Court Minutes from Reggie Re Arraignment (dated April 23, 2019); Exhibit R6, Bates R054-60, Superseding Indictment for Wire Fraud and Forfeiture Allegation (filed February 20, 2014). He also admitted to the fraudulent conduct in his plea agreement dated April 18, 2019 and other documents submitted throughout his criminal proceedings. See Exhibit R31, Bates R232-50, April 18, 2019 Plea Agreement (filed on April 23, 2019); Exhibit R12, Bates R083-86, Streamlined Factual Summary For Rule 11 Guilty Pleas (filed October 27, 2014); Factual Basis (filed October 27, 2014). Further, the August 14, 2012 email sent from Mr. Reggie to Mr. Duhon, and later forwarded to Mr. Krake, was in the Government’s possession prior the September 22, 2014 interview of Mr. Duhon, and had been provided by another individual/entity to the Government. While Mr. Duhon authenticated the email, the information found in the email was clear and did not require Mr. Duhon’s interpretation for the Government. In the email, Mr. Reggie expresses remorse “for what [he] did,” begs Mr. Krake “not to fry [him],” and offers to make restitution to Mr. Krake. Exhibit R6, Bates R038-40, SAG 01717, August 14, 2012 Email from Mr. Reggie to Troy Duhon, forwarded to Allen Krake and others.
Further, Respondent credibly testified that when contacted by Mr. Duhon after he received the July 9, 2014 subpoena from the Government, Mr. Duhon made it very clear to Respondent that his objective was two-fold. One, not to hurt his friend, Mr. Reggie, and second, to, at all costs, keep himself off of the witness stand. Hr. Tr., p. 28. Respondent also testified that the Government was “frustrated with Mr. Duhon because he was not — he was making statements [at the September 22, 2014 Interview] that were helpful to Mr. Reggie, which they didn’t like, but were factual.” Id. at pp. 36 37. In summary, Respondent’s representation of Mr. Duhon cannot be justly regarded as “a changing of sides” in the Reggie matter. ODC has failed to prove by clear and convincing evidence that Mr. Duhon’s interests were materially adverse to those of Mr. Reggie. Consequently, a violation of Rule 1.9(a) has not been established by ODC.
Other charges involved a response to the former client
In Mr. Reggie’s August 10, 2018 email to Respondent, he alleges that Respondent has a conflict of interest. Respondent replied to Mr. Reggie’s email on August 14, 2018. ODC alleges that Respondent’s assertion in his August 14, 2018 letter — that his representation of Mr. Duhon was “unrelated” to the legal matter in which Mr. Gibbens had represented Mr. Reggie — was false and violated Rules 8.4(a) and (c). Respondent has conceded that his response was inaccurate, and that he should have instead indicated to Mr. Reggie that the two matters were not “materially adverse.” Hr. Tr., pp. 40 He testified that his actions were negligent and that he did not intend to deceive Mr. Reggie.
The board questioned (and extensively analyses) whether a negligent misstatement runs afoul of the Rule
Without a clear pronouncement from the Court as to whether La. Civ. Code art. 1853 applies in disciplinary matters, and given the dissent of Justice Genovese, the Board declines to find that Respondent’s admission that his conduct was a “negligent, technical violation of Rule 8.4” or a “negligent violation” constitutes a judicial confession pursuant to La. Civ. Code art. 1853.
And
After a careful review of the record, the Board agrees with the Committee’s determination that while the assertion in Respondent’s August 14th letter was incorrect, this error was made through negligence, or perhaps frustration due to the “badgering” actions of Mr. Reggie. Consequently, absent clear and convincing evidence that Respondent’s assertion was made with the intent to deceive Mr. Reggie, a violation of Rules 8.4(c), and the derivative violation of 8.4(a), have not been proven by ODC.
According, the board orders that the matter be dismissed. (Mike Frisch)