Opinion
NO. 2019-B-1128
12-11-2019
IN RE: Laura J. JOHNSON
Paul Edward Pendley, for appellant. Laura Jo Johnson, for appellee.
Paul Edward Pendley, for appellant.
Laura Jo Johnson, for appellee.
ATTORNEY DISCIPLINARY PROCEEDING
Chief Judge Susan M. Chehardy of the Court of Appeal, Fifth Circuit, heard this case as Justice pro tempore, sitting in the vacant seat for District 1 of the Supreme Court. She is now appearing as an ad hoc for Justice William J. Crain.
This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel ("ODC") against respondent, Laura J. Johnson, an attorney licensed to practice law in Louisiana but currently on interim suspension for threat of harm to the public. In re: Johnson , 15-1946 (La. 11/12/15), 182 So. 3d 37.
PRIOR DISCIPLINARY HISTORY
Before we address the current charges, we find it helpful to review respondent's prior disciplinary history. Respondent was admitted to the practice of law in Louisiana in 1979. Between 1985 and 2007, the disciplinary board administered private discipline to respondent on eight occasions, as follows: (1) a formal private reprimand in March 1985 for failing to appear at the sentencing of a criminal client; (2) an admonition in November 1990 for failing to cooperate and respond to a written complaint (the Holder matter); (3) an admonition in November 1990 for failing to cooperate and respond to a written complaint (the Manausa matter); (4) an admonition in November 1993 for failing to cooperate and respond to a written complaint (the Tatum matter); (5) an admonition in August 1994 for two counts of failing to cooperate and respond to a written complaint (the Carter and Jamison matters); (6) an admonition in August 1996 for failing to comply with the local court rules in representing a client at a detention hearing; (7) an admonition in August 2003 for representing a client in a juvenile matter without authority; and (8) an admonition in July 2007 for engaging in conduct prejudicial to the administration of justice in connection with the signing of a judgment.
In 1997, we suspended respondent from the practice of law for one year, with six months deferred, followed by two years of probation, for failing to refund an advanced payment for unused travel expenses and failing to cooperate with the ODC in its investigations by failing to appear for depositions pursuant to four investigatory subpoenas. In re: Johnson , 97-0879, 97-0880 (La. 9/26/97), 700 So. 2d 1260 (" Johnson I "). In 2014, we accepted a petition for consent discipline and publicly reprimanded respondent for engaging in conduct constituting a conflict of interest. In re: Johnson , 14-1942 (La. 10/24/14), 149 So. 3d 1233 (" Johnson II ").
Against this backdrop, we now turn to a consideration of the misconduct at issue in the instant proceeding.
UNDERLYING FACTS
In 2013, respondent represented Kenneth Stanford, who pleaded guilty to theft by fraud in Winn Parish. In June 2013, Mr. Stanford was sentenced to serve five years at hard labor, suspended, and was placed on four years of supervised probation with special conditions, including the requirement that he make restitution in the amount of $36,265, to be paid to the Winn Parish District Attorney's Office in monthly installments of $2,500 each beginning on August 1, 2013. Thereafter, Mr. Stanford did not timely make all of his court-ordered restitution payments, and by the summer of 2015, he still owed $24,565 on his account. A revocation hearing was set for August 19, 2015.
On August 13, 2015, respondent signed a receipt reflecting that Mr. Stanford had given her $24,500 for his restitution obligation. Mr. Stanford, in turn, provided the receipt to his probation officer. However, Mr. Stanford did not actually give respondent any money. Later, respondent admitted that she gave the receipt to Mr. Stanford relying on his promise that an attorney from Texas would be arriving that day with the funds. When no funds were delivered to the District Attorney's Office, Mr. Stanford's probation officer began making inquiries into the source of the funds allegedly paid to respondent. Respondent then attempted to have the August 19th revocation hearing continued, but her request for a continuance was denied. On the day of the hearing, respondent asked the trial judge if she could go back to her office because she was feeling ill. The trial judge agreed, but respondent did not return to the courtroom that day, forcing a continuance of the revocation hearing until September 23, 2015.
On August 31, 2015, Mr. Stanford was arrested on a misdemeanor criminal charge in Jackson Parish. He was held in the Jackson Parish jail on a detainer for probation violations. The trial judge found probable cause on the probation violations and re-set the revocation hearing for September 28, 2015.
Meanwhile, the Winn Parish District Attorney's Office had requested that a formal investigation be opened into the possible misappropriation of Mr. Stanford's restitution funds. On September 3, 2015, an officer from the Winn Parish Sheriff's Department interviewed Mr. Stanford in the Jackson Parish jail. Mr. Stanford informed the officer that he had given respondent $24,500 in cash in $100 bills to pay his restitution, and in exchange, respondent gave him a signed receipt. Mr. Stanford could not explain what happened to the funds after he paid them to respondent, but he insisted that he should not still be in jail on a probation hold.
On September 4, 2015, respondent went to the Winn Parish Sheriff's Department and confessed that Mr. Stanford had given her $24,500 in cash to pay his restitution, but that she had used the money "inappropriately" and "could not get it back." Respondent claimed that Mr. Stanford had no knowledge of what she had done and stated that she took full responsibility for her actions. At the conclusion of the interview, respondent was arrested and booked on a charge of felony theft. Law enforcement officers subsequently obtained jail phone recordings of conversations between respondent, Mr. Stanford, and his wife, Audrea Denise Stanford, which took place from September 1, 2015 to September 4, 2015. After listening to the recordings, the officers concluded there was a conspiracy between the three individuals calculated to secure Mr. Stanford's release from jail on the probation hold. The telephone calls revealed to the authorities that respondent had never actually received $24,500 from Mr. Stanford, but that respondent had agreed to turn herself in and "confess" that she received $24,500 and converted the funds without the knowledge or authorization of Mr. Stanford, all in order to show that Mr. Stanford had complied with his sentence and therefore should not be held in jail on a probation hold. Based on the recordings, respondent was arrested on October 6, 2015 and charged with conspiracy to commit felony theft, corrupt influencing, filing or maintaining false public records, and attempted felony theft. These charges were ultimately dismissed in connection with respondent's guilty plea to a misdemeanor charge of disturbing the peace.
After satisfying a $50,000 bond, respondent was released from police custody. She was never prosecuted on the felony theft charge.
In several of the telephone calls, and in an apparent effort to conceal his true identity, Mr. Stanford identifies himself by various alter-egos, including "Michael," "Phillip," "James," "Brother," and "God." It appears that respondent fell in love with the individual alter-ego known as "Michael" but considered Mr. Stanford as a brother-type figure whom she completely trusted.
DISCIPLINARY PROCEEDINGS
In August 2015, the ODC received a complaint against respondent from Judge Jacque Derr of the Eighth Judicial District Court for the Parish of Winn, the judge who presided over Mr. Stanford's criminal case. In September 2015, respondent self-reported her arrest for felony theft.
In August 2017, the ODC filed formal charges against respondent. The ODC alleged that respondent's conduct violated the following provisions of the Rules of Professional Conduct: Rules 8.4(a) (violation of the Rules of Professional Conduct), 8.4(b) (commission of a criminal act that reflects adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer), 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation), and 8.4(d) (engaging in conduct prejudicial to the administration of justice).
Respondent answered the formal charges, generally denying the allegations as written. The matter then proceeded to a formal hearing on the merits.
Formal Hearing
The hearing committee conducted the hearing in January 2018. The ODC introduced documentary evidence and called the following witnesses to testify at the hearing: Judge Derr; Richard Tucker, the Chief Investigator for the Winn Parish Sheriff's Office; Officer Carson Cowart, a Probation and Parole Specialist for the Louisiana Department of Public Safety and Corrections; and Angad Ghai, Assistant Attorney General for the State of Louisiana. Respondent did not introduce any documentary evidence or call any witnesses to testify. She did, however, testify on her own behalf and on cross-examination by the ODC.
In her testimony, respondent explained that she had nothing but a "sisterly affection" for Mr. Stanford, whom she often referred to as "Brother." Respondent trusted "Brother" completely. However, there was another "individual" that respondent believed to be Mr. Stanford's "friend," but who in reality was Mr. Stanford himself, named "Michael," whom respondent had fallen in love with. Respondent could not explain what went on in her mind to make her believe this, acknowledging that "there's no rational explanation."
Respondent admitted she gave a receipt to Mr. Stanford for the restitution funds even though she had not actually received any money from him. She admitted this was "foolish" but stated that she did so because she trusted Mr. Stanford and because he assured her that an attorney from Texas was on her way to Louisiana with the funds. Ultimately, this did not happen, and the State moved to revoke Mr. Stanford's probation.
Thereafter, on the evening of September 3, 2015, "Michael" asked respondent to go to the police and tell them that she had received the money and spent it. Respondent decided to agree to this request because she thought of the Scriptural passage that speaks of having no greater love than to lay down one's life for his friends. Respondent acknowledged that she lied and that she was wrong to do so, but she denied that she acted deviously or with an intent to defraud Judge Derr. She also testified that she believed at the time that Mr. Stanford would tender the remainder of his restitution and that he would come forward and exonerate her.
Hearing Committee Report
After considering the testimony and evidence presented at the hearing, the hearing committee made the following findings of fact:
The committee found that respondent knowingly and intentionally fabricated a $24,500 false receipt on behalf of Mr. Stanford to show that he had made restitution in his criminal case. Instead of attending court with Mr. Stanford on his court date, respondent stated that she had pains and went to the hospital. In a post-trial memorandum, respondent submitted proof of a hospital visit. Although she never actively appeared in a courtroom, she gave the receipt with the knowledge that it would be presented to the probation and parole department and/or the court. Respondent later appeared at the Winn Parish Sheriff's Office, where she claimed to have received the $24,500 and disposed of the money. Respondent was arrested for felony theft and other charges, and the case was then turned over to the Louisiana Attorney General. Respondent later pleaded guilty to disturbing the peace. Since there were never any funds, she did not commit a felony theft. Respondent acknowledged that she "told a lie," but the $24,500 cash/check never existed. Based on these factual findings, the committee determined that respondent violated the Rules of Professional Conduct as charged.
In its report, the committee erroneously stated that respondent pleaded guilty to criminal mischief.
The committee found that respondent violated duties owed to the court. She acted knowingly and intentionally, but her misconduct caused no actual harm. After considering the ABA's Standards for Imposing Lawyer Sanctions , the committee determined the baseline sanction is disbarment.
The committee determined that the following aggravating factors are present: a prior disciplinary record, a dishonest motive, substantial experience in the practice of law (admitted 1979), and illegal conduct. The committee determined that the following mitigating factors are present: the absence of a selfish motive, personal or emotional problems, and remorse.
The committee found that respondent had acknowledged the wrongfulness of her actions, for which she simply had no other "excuse." In a letter of self-reporting, respondent noted that no one was further hurt by her deception and that Mr. Stanford was sent to prison. Whether her actions were motivated by manipulation, illusion, or another reason, she still intended to do what she did and knew it was wrong. While she did not directly "lie" to the court, she knew her actions would be conveyed to the court. Thus, she helped perpetrate deceit and misrepresentation.
In conclusion, the committee indicated there was no case law to fit within the unique parameters of this case. The committee noted that, due to her failure to obtain anything personal by her actions, her apparent manipulation by Mr. Stanford, and the lack of any further harm to a victim, permanent disbarment was not appropriate for this case. The committee added that permanent disbarment cases usually involve multiple counts, a selfish motive, and many victims. The committee then cited cases in which attorneys were disbarred for misconduct that included offering falsified evidence or destroying evidence, in addition to multiple counts of serious misconduct. For example, in In re: Placer , 16-1590 (La. 11/7/16), 216 So. 3d 787, this court disbarred an attorney who, in addition to being charged with multiple criminal offenses, knowingly presented fabricated evidence to a tribunal in her own divorce proceeding in an effort to bolster her case for a more expeditious divorce. In addition, in In re: Hall , 15-1208 (La. 9/18/15), 181 So. 3d 643, this court disbarred an attorney who, in addition to neglecting legal matters and failing to return unearned fees, purchased a detox shampoo for use by his client in order to avoid a positive result on a hair follicle drug screen, and made a false statement to the court during a pre-trial conference when he adamantly denied that his client used drugs.
Based on the aforementioned jurisprudence and considerations, the committee declined to recommend permanent disbarment in this case. Instead, the committee recommended that respondent be disbarred.
The ODC objected to the hearing committee's report, arguing that respondent should be permanently disbarred.
Disciplinary Board Recommendation
After review, the disciplinary board determined that the hearing committee's factual findings are not manifestly erroneous and are supported by the record. Based on these facts, respondent violated the Rules of Professional Conduct as charged. She attempted to mislead Officer Cowart and Judge Derr into believing that Mr. Stanford had satisfied his restitution requirement. She intentionally misled Chief Investigator Tucker by advising him that she had taken and spent the restitution funds, when she had never received any funds. By engaging in these criminal acts, respondent violated Rule 8.4(b). By engaging in fraudulent and deceitful conduct, she violated Rule 8.4(c). By engaging in conduct prejudicial to the administration of justice, she violated Rule 8.4(d) ; court proceedings concerning Mr. Stanford's probation revocation were delayed, and law enforcement officials and the court were initially misled as to whether restitution had actually been paid by Mr. Stanford. These violations establish the derivative violation of Rule 8.4(a).
The board determined that respondent violated duties owed to the public, the legal system, and the legal profession. Her conduct was knowing and intentional. She engaged in serious criminal conduct, a necessary element of which includes the intentional interference with the administration of justice, misrepresentation, and fraud. With an intent to deceive the court, she made false statements to Chief Investigator Tucker and Officer Cowart. She also withheld material information from the court, which could have caused a significant adverse effect on Mr. Stanford's revocation proceeding. Although no actual harm was caused, the potential for serious injury to the public and the legal system was present. Mr. Stanford's revocation hearing could have had the incorrect outcome, and he could have illegally been relieved of his obligation to pay restitution as mandated by the conditions of his probation. After considering the ABA's Standards for Imposing Lawyer Sanctions , the board determined the baseline sanction is disbarment.
The board determined that the following aggravating factors are present: a prior disciplinary record, a dishonest or selfish motive, substantial experience in the practice of law, and illegal conduct. The board determined that the following mitigating factors are present: personal or emotional problems and the imposition of other penalties and sanctions. The board declined to find the mitigating factors of absence of a selfish motive and remorse found by the hearing committee, reasoning as follows:
Respondent was in a romantic relationship with an individual she believed to be named "Michael" (actually Mr. Stanford disguising his voice over the telephone), and the apparent goal of the scheme between respondent, Mr. Stanford, and "Michael" was to secure Mr. Stanford's release from incarceration without having Mr. Stanford actually pay the restitution mandated by his probation terms. Respondent's selfish motive stemmed from her romantic interest in "Michael" and her desire to cooperate with him in effecting the scheme. Further, although respondent gave testimony of her remorsefulness before the hearing committee, the board was not convinced by her argument that she was remorseful for lying to Chief Investigator Tucker when she represented to him that the receipt given to Officer Cowart by Mr. Stanford was legitimate and that she had taken the funds, used them, and no longer had possession of them. Therefore, this mitigating factor was not accepted by the board.
Turning to the issue of an appropriate sanction, the board noted that the cases of Placer and Hall , which were cited by the hearing committee, are similar to this case in that they involve conduct that was dishonest or deceitful and prejudicial to the administration of justice. Although respondent's misconduct was very serious and troubling, the permanent disbarment cases involve more egregious conduct than the conduct that is present in the instant matter, and unlike the attorneys in those cases, respondent has not been convicted of a serious federal crime. The board was also persuaded by the committee's reasoning with regard to recommending disbarment. In making its decision, the committee contemplated additional mitigating circumstances. Important considerations were respondent's failure to receive personal gain from her actions, her apparent manipulation by Mr. Stanford, and the lack of any harm to a victim.
See In re: Arledge , 10-1014 (La. 9/3/10), 42 So. 3d 969, and In re: Lynch , 02-2275 (La. 1/24/03), 840 So. 2d 508.
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After further considering the applicable law and the mitigating factors that are present, the board adopted the recommendation of the hearing committee and recommended that respondent be disbarred. The board further recommended that she be assessed with the costs and expenses of this proceeding.
One board member dissented and would recommend the imposition of permanent disbarment. The ODC filed an objection to the disciplinary board's recommendation. Accordingly, the case was docketed for oral argument pursuant to Supreme Court Rule XIX, § 11(G)(1)(b). Respondent failed to file a brief and therefore waived her right to oral argument; however, she did make an appearance on the day of oral argument, and she was permitted to present argument to the court.
DISCUSSION
Bar disciplinary matters fall within the original jurisdiction of this court. La. Const. art. V, § 5 (B). Consequently, we act as triers of fact and conduct an independent review of the record to determine whether the alleged misconduct has been proven by clear and convincing evidence. In re: Banks , 09-1212 (La. 10/2/09), 18 So. 3d 57. While we are not bound in any way by the findings and recommendations of the hearing committee and disciplinary board, we have held the manifest error standard is applicable to the committee's factual findings. See In re: Caulfield , 96-1401 (La. 11/25/96), 683 So. 2d 714 ; In re: Pardue , 93-2865 (La. 3/11/94), 633 So. 2d 150.
The record supports a finding that respondent, in an effort to secure her client's release from incarceration, fabricated a $24,500 receipt to show that the client had paid restitution in his criminal case. Based on these facts, respondent has violated the Rules of Professional Conduct as alleged in the formal charges.
We now turn to a determination of the appropriate sanction for respondent's actions. In determining a sanction, we are mindful that disciplinary proceedings are designed to maintain high standards of conduct, protect the public, preserve the integrity of the profession, and deter future misconduct. Louisiana State Bar Ass'n v. Reis , 513 So. 2d 1173 (La. 1987). The discipline to be imposed depends upon the facts of each case and the seriousness of the offenses involved considered in light of any aggravating and mitigating circumstances. Louisiana State Bar Ass'n v. Whittington , 459 So. 2d 520 (La. 1984).
Here, respondent violated duties owed to the public, the legal system, and the profession. She acted knowingly and intentionally, although no actual harm occurred. Under the ABA's Standards for Imposing Lawyer Sanctions , the applicable baseline sanction is disbarment. The record supports the aggravating and mitigating factors found by the hearing committee.
Respondent's dishonest and fraudulent actions unquestionably fall well below the high ethical standards expected of Louisiana lawyers and warrant disbarment. However, in light of the unique facts of this case, including respondent's emotional state during the time period in question, as well as the lack of any actual harm, we will not permanently prohibit her from seeking readmission to the bar. Nonetheless, we caution respondent that in the event she seeks readmission after becoming eligible to do so, we will carefully scrutinize her application in order to determine whether she has taken positive steps to address her personal and emotional problems.
DECREE
Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, the brief filed by the ODC, and oral argument, it is ordered that Laura J. Johnson, Louisiana Bar Roll number 7312, be and she hereby is disbarred, retroactive to November 12, 2015, the date of her interim suspension. Her name shall be stricken from the roll of attorneys, and her license to practice law in the State of Louisiana shall be revoked. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court's judgment until paid.