Age Not Mitigating For Intentional Misconduct

The Louisiana Attorney Disciplinary Board found that an attorney had engaged in misconduct by failing to disclose prior discipline in a pro hac vice motion in federal court and recommended that an existing suspension be extended.

Intent

Despite the above determinations, the Committee inconsistently concluded that it could not make a finding that Respondent’s behavior was knowing or intentional. The Committee reasoned that it could only make a finding of negligence because Respondent did not testify and the Committee was not able to judge his credibility on the stand. The Board finds that the evidence presented is sufficient to prove that Respondent acted knowingly and intentionally. Respondent is a seasoned litigator who has practiced for many years in numerous courts. There is no basis to conclude that his misconduct was anything other than knowing and intentional. The Committee was correct when it stated that  Respondent engaged in a pattern of calculated misrepresentation and willful omission of his prior and pending disciplinary matters.

Additionally, the Board makes the factual finding that Respondent failed to disclose his full disciplinary history in connection with his motion to appear pro hac vice in the matter of AR Food Mart v. United States of America, et al, No. 4:19-CV-00344, in the U.S. District Court for the Northern District of Oklahoma (“AR Food Mart”). While the Committee mentioned this matter in a footnote, it declined to make a specific finding of misconduct apparently on the basis that the record was not sufficient to support the finding.

Sanction factors

The following aggravating factors are present: prior disciplinary offenses; dishonest or selfish motive; a pattern of misconduct; refusal to acknowledge wrongful nature of conduct; and substantial experience in the practice of law. The sole mitigating factor present is remoteness of prior offenses, with the exception of the more recent 2018 admonition. The decision in Klein III imposing Respondent’s current suspension became final and effective on June 27, 2023. Technically, his suspension in 2023 occurred after the underlying misconduct in this matter and, therefore, it is not a prior offense. However, the Board considers it significant that Respondent filed his pro hac vice application in ABOA after the charges had been filed in Klein III, and he filed his application in Kahn after both a hearing committee and the Board had recommended that he be suspended for one year and one day in Klein III.

It is noted the Committee found Respondent’s age and personal struggles to be mitigating factors. Respondent has presented no evidence to prove that any personal struggles may have contributed to his misconduct in this matter. Further, age is not a mitigating factor for knowing unethical behavior.

Recommendation

In light of the above, the Board concludes that Respondent violated Rules 3.3(a)(1), 8.1(a), 8.1(b), 8.4(a), 8.4(c), and 8.4(d) but not Rule 8.1(c). The Board recommends that Respondent’s suspension in Klein III be extended such that his total suspension is for a three-year period beginning June 27, 2023, the effective date of the suspension in Klein III.

(Mike Frisch)