Opinion
NO. 2017-B-1930
12-05-2018
IN RE: Paul E. BROWN
Rehearing denied.
WEIMER, J., dissenting.
I would grant respondent's application for rehearing and would order an evidentiary hearing, as indicated in the dissent with which I previously concurred.
The professional evaluation report of the respondent conducted pursuant to a prior order of this court noted: "Mr. Brown is articulate and presents with logical and goal directed thinking .... His judgment and insight seems to be intact as well." The report further notes he adopted five children and is a single parent. The respondent was involved in numerous automobile accidents, most of which were not his fault, and one of which was serious. There is no evidence he took illicit drugs. On verbal reasoning, he scored "VERY SUPERIOR," attaining the 99th percentile rank. This test measures verbal reasoning, concept formation, and acquired knowledge from one's environment–all of which are valuable in practicing law.
The report concludes: "Mr. Brown's performance overall is not consistent with any substance induced cognitive decline or other learning or processing deficit." This was corroborated by witnesses, who testified they never saw any impairment. There has been no allegation or any evidence that any client was ever harmed.
I realize the report also indicates respondent continues to be "deceptive." The respondent should be afforded a hearing to confront that accusation, which he vigorously disputes.
It has become increasingly obvious that an alarming number of people are confronting issues related to medications that were validly prescribed to relieve pain. This situation has become so prevalent a phrase has been coined recently to describe this unfortunate circumstance: "The Opioid Crisis."
Respectfully, I would therefore grant a rehearing.
CRICHTON, J., would grant rehearing and assigns reasons.
The United States Supreme Court has characterized lawyer discipline cases as "adversary proceedings of a quasi-criminal nature" with the lawyer "accordingly entitled to procedural due process" - including an opportunity afforded for explanation and defense. In Re Ruffalo , 390 U.S. 544, 550-51, 88 S.Ct. 1222, 20 L.Ed.2d 117 (1968). See also Selling v Radford, 243 U.S. 46, 51, 37 S.Ct. 377, 61 L.Ed. 585 (1917) (the Court finding that it should give deference to the ruling of a state court in a disciplinary proceeding unless (among other conditions) "the state procedure, from want of notice or opportunity to be heard, was wanting in due process.")
Respondent has been a respected member of the Louisiana State Bar Association for over 35 years with no prior disciplinary record. However, in 2012, he violated R.S. 14:98 and ROPC Articles 8.4(a) and 8.4(b) by driving a vehicle while under the influence of prescription medication. Undoubtedly, he should receive discipline and, based on the record prior to oral arguments in the case, substance abuse counseling and monitoring.
Following oral arguments, however, he was ordered to undergo an "updated substance abuse evaluation" which, according to the written report, proved positive for opiate consumption. At the post-oral argument stage, he was not allowed the opportunity to confront and cross examine the lab technician as to the methodology involved in the testing and analysis or the opinions expressed within the Professionals' Wellness Evaluation Center report. Moreover, he was not allowed the opportunity to provide testimony under oath but instead afforded only the opportunity "to file supplemental briefs addressing the report." In this disciplinary proceeding, referenced by the U.S. Supreme Court as quasi-criminal, respondent is entitled to the procedural due process including an opportunity afforded for cross-examination and defense.
Accordingly, for these reasons – and those set forth by Justice Weimer - I would grant rehearing, vacate the suspension, and remand this matter for an evidentiary hearing.