No 5th Amendment Privilege

The Louisiana Hearing Board recommends a year and a day suspension of an attorney who had received a $50,000 investment in a property from a person seeking an investment opportunity

Ms. Bouligny first met Respondent around seven years ago through a mutual friend. Ms. Bouligny was told that Respondent purchased, remodeled and flipped houses for a profit. In December 2019, Ms. Bouligny spoke to Respondent and told him that she was interested in investing in his next project. Ms. Bouligny states that Respondent then called and informed her “about the property located at 700-702 Caffin Avenue, New Orleans, La. which he owned and would like for me to invest in.”

On January 5, 2020, Respondent sent Ms. Bouligny an email which described her potential involvement in the project as an investor as follows: “The proposal is that in exchange for the $50k investment – the investor will receive the return of the investment funds advanced plus a 50% return on the amount invested. The funds advanced are returned at the completion and sale of each project.”

Found by the hearing committee

There are many instances in the record that Respondent represented that he intended to pay Ms. Bouligny back her money, yet he has never done so; thus, he misrepresented to her when she would be repaid her investment. The evidence also shows that the Caffin property was the subject of the contract, and he did not inform her when it sold, nor did he give her any money from the sale, which the committee finds to be both dishonest and deceitful.

We do not feel there was evidence of fraud.

We do not feel there was evidence of conduct prejudicial to the administration of justice.

The board found failure to cooperate despite the attorney’s claim of a Fifth Amendment privilege.

Rule 8.1(b) provides, in pertinent part, that a lawyer in connection with a disciplinary matter shall not . . . knowingly fail to respond to a lawful demand for information from a disciplinary authority. Rule 8.1(c) provides that a lawyer in connection with a disciplinary matter shall not fail to cooperate with ODC in its investigation of any matter before it except for an openly expressed claim of a constitutional privilege. Here, Respondent clearly received Ms. Bouligny’s complaint and accompanying cover letter from ODC, as he contacted ODC and asked for an extension to reply. Although he received the extension, he never sent a formal response to the complaint. ODC was forced to subpoena him for the production of records and a sworn statement. He never complied with the records request, but did appear for his sworn statement, where he asserted his Fifth Amendment right against self-incrimination and refused to answer most of the questions he was asked by Deputy Disciplinary Counsel concerning issues surrounding Ms. Bouligny’s complaint. Respondent also asserted his Fifth Amendment privilege at the hearing, refusing to answer questions from ODC or the Committee concerning his alleged misconduct. There was no reasonable basis for Respondent’s assertion of this Fifth Amendment privilege at his sworn statement or the hearing. Although Ms. Bouligny did speak with the district attorney’s office and a police officer concerning Respondent’s failure to repay her the $50,000 investment, she was told this was a civil, not criminal matter. No criminal investigation was opened. Hr. Tr., pp. 74-75. See In re Holliday, 2009-0116 (La. 6/26/09), 15 So.3d 82 citing Spevack v. Klein, 385 U.S. 511, 87 S.Ct. 625, 17 L.Ed.2d 574 (1967) (there must be reasonable basis for the assertion of the Fifth Amendment privilege) and Hoffman v. United States, 341 U.S. 479, 71 S.Ct. 814, 95 L.Ed. 1118 (1951) (the protection of the Fifth Amendment must be confined
to instances where the witness has reasonable cause to apprehend danger from a direct answer). Respondent’s failure to respond to the complaint, his failure to fully cooperate with ODC’s investigation, and his unreasonable assertion of his Fifth Amendment privilege at the sworn statement and the hearing are violations of Rules 8.1(b) and 8.1(c).

Sanction

the Board adopts the Committee’s findings that violations of Rules 8.1(b), 8.1(c), 8.4(a), and 8.4(c) were established by ODC. The Committee’s finding that ODC did not prove a violation of Rule 8.4(d), which was not objected to by ODC, is also adopted by the Board. The Board additionally adopts the Committee’s proposed sanction and recommends that Respondent be suspended from the practice of law for one year and one day.

(Mike Frisch)