Opinion
No. 95-B-0225
May 25, 1995
DISCIPLINARY PROCEEDINGS
ON REHEARING
A rehearing was granted in this matter to determine whether this court in its original judgment committed substantial prejudicial error. After entertaining written and oral arguments of counsel and after further consideration of the record, we conclude that we erred in the following particulars.
In our original opinion we found the following facts:
[Respondent] was also a director of Acadia Savings, having previously been chairman of the board. Respondent's law firm was the closing attorney on Acadia's transactions.
Acadia made a $2,500,000 loan to Triad Enterprises, Inc. The loan included a requirement that Triad use part of the loan proceeds to buy property owned by Louisiana Bank for $700,000 . . .
A more careful scrutiny of the record reflects, however, that the respondent was neither a director of Acadia Savings and Loan Association nor a member of the law firm that acted as closing attorneys on the Triad transaction. Furthermore, while we must assume there was sufficient evidence to support a finding that someone imposed a requirement that Triad use part of the loan proceeds to buy property owned by Louisiana Bank for $700,000, our examination indicates that the evidence was of the barest minimum quantity required to support an inference that respondent imposed this requirement. Therefore, we conclude that respondent's guilt, which must be assumed as a matter of law because of his conviction and nolo contendere plea, was of the least quantity assignable and that his culpability in the admittedly very serious crime was the barest minimum.
The fact that respondent owned eight percent of the stock in Louisiana Bank was apparently the basis of the federal judge's post-trial ruling on the sufficiency of the evidence.
According to respondent's brief on rehearing, Triad's president testified that he had no conversations with respondent about the subject loan and did not know Louisiana Bank owned the property until the day of the act of sale.
Moreover, we further conclude that we initially underestimated the weight of the mitigating evidence which should be more carefully enumerated as follows: (1) marginal evidence of criminal conduct (the Hearing Committee and this Court agree "that the evidence at best was [only] marginally sufficient to support the conviction"); (2) no comparable state offense; (3) minimal sentence imposed by the federal court; (4) number of counts abandoned, dismissed or which resulted in verdicts of acquittal; (5) withdrawal of appeal and plea of nolo contendere for the benefit of codefendants, family and friends; (6) public acceptance of the verdict and public acknowledgment of the validity of the justice system; (7) absence of a prior disciplinary record; (8) absence of any selfish motive; (9) no loss to Acadia (as found by the trial judge); (10) no profit or pecuniary gain to respondent; (11) consent to interim suspension, full disclosure to Disciplinary Board and full cooperation during the proceedings; (13) exemplary record of service to nation, state, church and community; (14) physical illnesses, disability and impairment; and (15) non-relation of offenses to respondent's practice of law.
Considering our factual errors as to the respondent's relationship to the lending institution and law firm involved, the minimum culpability of the respondent, and the substantial mitigating circumstances, we conclude that we erred in our original decision. Instead, this court should have accepted the well-considered and soundly-based recommendation of the Disciplinary Board. Accordingly, our initial judgment is set aside and the respondent is hereby suspended from the practice of law for a period of twelve months commencing upon the original date of his interim suspension.
It is so ordered.
The majority stretches mightily in its attempt to justify the totally inadequate sanction imposed in this case. No law is cited and there is no attempt to compare respondent's conduct with that of prior cases in order to determine an appropriate sanction.
The majority acknowledges respondent was convicted in federal court of two serious felonies involving fraud. See Section 19 (B) of Supreme Court Rule XIX. Disbarment is the baseline punishment when a lawyer commits serious criminal conduct such as fraud. In Re King, 94-0686 (La. 11/30/94); 646 So.2d 326; Louisiana State Bar Association v. Wilkinson, 562 So.2d 902 (La. 1990).
In one of these felonies, the jury unanimously found respondent guilty of fraud in charges that read as follows:
On or about November 26, 1985, in the Western District of Louisiana, defendant EDMUND M. REGGIE, being an attorney, agent and connected in a capacity with ACADIA SAVINGS, with the intent to injure and defraud ACADIA SAVINGS, did knowingly and willfully misapply and cause to be misapplied the sum of $700,000 from the funds of ACADIA SAVINGS, in that defendant REGGIE, without disclosing same to ACADIA SAVINGS, required as a condition of a $2,539,200 loan by ACADIA SAVINGS to Triad Enterprises, Inc., that $700,000 of these proceeds to used by Triad to purchase real estate foreclosed on and owned by LOUISIANA BANK, a financial institution in which defendant REGGIE had a substantial financial interest.
In the other felony conviction, respondent did not contest the charges of fraud, which read as follows:
On or about February 28, 1986, in the Western District of Louisiana, defendant EDMUND M. REGGIE, being an attorney, agent and connected in a capacity with ACADIA SAVINGS, while knowingly and willfully aided and abetted by defendant KENNETH COMEAUX defendant OSCAR BOSWELL, II, defendant SEABORN R. WICKER, JR., and defendant RAY B. PITTS, knowingly with the intent to injure and defraud ACADIA SAVINGS, did knowingly and willfully misapply and cause to be misapplied the sum of $425,000 from the funds of ACADIA SAVINGS, in making a $425,000 loan to Irrigation Equipment, Ltd.
In order to convict, the jury must find guilt beyond a reasonable doubt. In spite of our Rule XIX Section 19(E), which provides that a final conviction is conclusive evidence of guilt in bar discipline matters, the majority strongly implies that respondent really was not guilty of these crimes. If we are not willing to truly honor our own rules, how can we expect lawyers to follow the rules that are established to preserve the integrity of the legal profession?
Contrary to the mitigating circumstances found by the majority, I note that in sentencing the respondent, the federal judge stated:
(1) On motive and personal gain. "The extent of any benefit was that the Louisiana Bank of Crowley, where the defendant was an officer and stockholder, was sweetened by the loan involved which may have allowed the Louisiana Bank to operate a little longer and cause a temporary increase in the value of Mr. Reggie's stock in the bank . . .".
(2) On the sentence imposed. "With this conviction, the defendant has probably forfeited his legal career . . .".
(3) On the defendant's acceptance of the verdict. "The court will not condemn the defendant for his failure to accept any responsibility for his conviction . . .".
The majority's mitigating circumstance of "withdrawal of appeal and plea of nolo contendere for the benefit of codefendants, family, and friends" makes no sense unless one contends that respondent really is not guilty of these crimes. Yet, when respondent dropped his appeal of the first felony conviction and entered his nolo contendere plea for the second felony conviction, the trial judge had already refused to dismiss the jury conviction, holding that the evidence was sufficient to convict. Respondent was facing other felony charges which were dropped as part of a plea bargain when he entered his nolo contendere plea.
The majority's claim that respondent's "consent to interim suspension" is a mitigating factor is very weak, as this Court surely would have issued an interim suspension for two felony convictions without his consent.
Respondent's cooperation with bar association authorities should not weigh much in mitigation. We should expect such disclosure and cooperation as the baseline standard for all lawyers. Further, in respondent's case, the fact that he had been twice convicted could hardly be denied.
The majority's "absence of a prior disciplinary record" also should not weigh much in mitigation in this case or any case. Our baseline standard should be adherence to all laws and ethical standards. We should expect, as a norm, a lawyer to have no prior disciplinary record. If he does, it should be considered as an aggravating factor.
Again, the majority's contention that the convictions were not related to respondent's practice of law carries little weight in mitigation. Two felony convictions for fraud in federal court directly reflect on a lawyer's moral fitness to practice law.
As previously stated, no attempt has been made by the majority to compare the respondent's conduct in the instant case with that of prior cases to determine an appropriate sanction. Only six months ago, this Court unanimously disbarred a female attorney who was convicted in federal court of two felony counts of aiding and abetting mail fraud arising from a scheme aimed to defraud state insurance officials. In Re King, supra. See also In Re O'Neil, 612 So.2d 738 (La. 1993) (thirty-month suspension for conviction of one count of mail fraud and one count of executing scheme to defraud a federally funded bank); Louisiana State Bar Association v. Wilkerson, 562 So.2d 902 (La. 1990) (thirty-month suspension following conviction for aiding and abetting wire fraud; Louisiana State Bar Association v. Rosenthal, 515 So.2d 797 (La. 1987) (three-year suspension following conviction for two counts of wire fraud).
In our original opinion, I agreed there were mitigating circumstances in this case sufficient to reduce the baseline sanction of disbarment to suspension for thirty months. However, in my view the majority's decision to impose only a twelve-month suspension in this case is inconsistent with the sanctions recently imposed for similar conduct by this court and sends a terrible message to the members of the bar and to the public. I respectfully dissent.
Victory, J. dissents and will assign reasons.
Kimball, J. dissents.
Johnson, J. dissents.