RECOMMENDATION OF HEARING COMMITTEE
IN RE: STEPHEN E. CAILLOUET and LOUIS THAD TOUPS
REPORT OF HEARING COMMITTEE #25
Respondent Louis Thad Toups was charged by the Office of Disciplinary Counsel ("ODC") with violations of the Rules of Professional Conduct. This opinion constitutes the findings of the Hearing Committee in this matter.
A majority of the Committee finds that in this case, ODC has failed to establish the alleged violations by sufficient clear and convincing evidence so as to warrant imposition of some disciplinary penalty, as is its burden. Thus, for the reasons fully explained hereinafter, the Committee recommends that the charges against Respondent Louis Thad Toups be dismissed.
Respondent Toups graduated from the Louisiana State University Law Center in 1976. He has been an assistant district attorney in Lafourche Parish since 1982. Stephen E. Caillouet is also an assistant district attorney in Lafourche Parish and has been for most of the period since 1981. Mr. Toups and Mr. Caillouet are assigned to different divisions of the District Court. Both maintain a private civil practice, as permitted by law. These charges were initiated on July 29, 1998, when formal charges were filed jointly against both Toups and Caillouet. Shortly before the hearing in this matter, the charges against Caillouet were severed based on representations that a motion for consent discipline had been filed jointly by Caillouet and ODC. As of the hearing in this matter, the motion for consent discipline had not yet been acted upon, and thus was not public. Two full days of hearings were held in this matter, and twelve witnesses were called. Numerous exhibits were introduced into the record.
Two separate incidents form the basis of the charges against Respondent Toups. The first charge involves his former client Ellen Ordoyne. The second charge involves his former client Alva Harris.[i] Toups is alleged to have violated the following Rules of Professional Conduct: 1.4 (Communication), 1.7 (Conflict of interest), 1.13(b) (Organization as client), 3.3 (Candor toward tribunal), 8.3 (Reporting professional misconduct), and 8.4(a)(c)(d) (Misconduct).[ii]
On March 18, 1996, Ms. Ordoyne first met with Mr. Toups, having been referred to him by a friend (Ordoyne, tr. (1) p. 20).[iii] She was dissatisfied with her then-counsel, and she related to Mr. Toups that she needed help in obtaining a civil protective order to protect her from what was described as "very intense" physical abuse suffered at the hands of her husband, Todd Ordoyne (Ordoyne, tr. (1) p.22). Mr. Toups quoted a fee of $150.00 for the matter surrounding the protective order, $600.00 additional if Ms. Ordoyne decided to obtain a divorce, and $1500.00 additional for the community property settlement (Ordoyne, tr. (1) p. 26). Ms. Ordoyne claims that she advised Mr. Toups at that time that she had filed criminal charges against her husband. In fact, she testified that Mr. Toups actually encouraged her to file the criminal charges and that she "may get some satisfaction" by filing charges (Ordoyne, tr. (1) p.67). Toups, however, testified that he merely explained to Ms. Ordoyne the procedure to file charges when she indicated her intention to do so. (Toups, tr. (2) pp.69-70). Mr. Toups agreed to accept the representation. Todd Ordoyne was represented by Stephen Caillouet.[iv] Ms. Ordoyne was aware that Mr. Toups and Mr. Caillouet were both assistant district attorneys.
In any event, a meeting was held on April 3, 1996, at which Mr. Toups and Ms. Ordoyne met with Mr. Caillouet and Mr. Ordoyne at Mr. Caillouet's office. For reasons to be explained later, it is relevant to note that Mr. Caillouet had suffered a heart attack on February 18, 1997, and was still undergoing cardiac rehabilitation through at least May, 1997, and during which time he was not at work full-time. Ms. Ordoyne claims that Mr. Toups told her not to mention at this meeting the fact that she had filed criminal charges, since (according to Ms. Ordoyne) Mr. Toups stated that it would interfere with the process of the criminal charges since Mr. Caillouet's brother (Martin Caillouet) also worked in the District Attorney's Office (Ordoyne, tr. (1) pp.30-31).[v] Toups denied discussing the criminal charges with Ms. Ordoyne prior to this meeting, since he did not know that charges were in fact pending. (Mr. Toups' testimony both at the hearing and in his sworn statement given to ODC were, in the opinion of the panel, consistent with respect to his knowledge, or lack thereof, about the criminal charges.[vi]) At the meeting, there was a discussion about the community property settlement and both Toups and Caillouet believed at the end of the meeting that a basis for a compromise agreement had been reached with regard to the community property dispute (Caillouet, tr. (1) p. 82; Toups, tr. (2) pp.72-76). Mr. Caillouet testified that neither Mr. Toups nor Ms. Ordoyne mentioned the fact that criminal charges had been filed by Ms. Ordoyne against Mr. Ordoyne during the meeting. Further, Mr. Caillouet testified that had he been made aware of that fact, he would have withdrawn from his representation of Mr. Ordoyne, inasmuch as to do otherwise would have violated the policy of the District Attorney (Caillouet, tr. (1) p.81).
Sometime before May 7, Mr. Caillouet received a call at his law office from Mr. Ordoyne's mother stating that Todd had been ordered to be in court on May 8. Mr. Caillouet assumed that she was referring to a civil matter, but realized during the conversation that she was referring to a criminal matter. According to Mr. Caillouet, he indicated that he could not represent him on the criminal matter (Caillouet, tr. (1) pp.89-90). Mr. Caillouet then determined that in fact Ms. Ordoyne had filed criminal charges against Mr. Ordoyne. On May 7, Mr. Toups and Mr. Caillouet had a brief discussion at the District Attorney's Office. According to Mr. Toups, Mr. Caillouet told him that Ms. Ordoyne had filed criminal charges against Mr. Ordoyne. Mr. Toups testified that he responded that he was unaware of that fact. According to Mr. Toups, Mr. Caillouet indicated that Mr. Ordoyne's arraignment was set for the next day (May 8). According to Mr. Toups, it was Mr. Caillouet who suggested a continuance of the arraignment pending the apparent settlement of the community property dispute as had been discussed at the April 3 meeting. Mr. Caillouet apparently believed that "everything had been resolved based on the payment of money and that [Ms. Ordoyne] was not interested in pursuing [the criminal action] any further" (Caillouet, tr. (1) p.126). Mr. Toups testified that he said that since he did not know anything about the criminal charges, he was not going to make that kind of decision (Toups, tr. (2) pp.76-77).[vii] At the same time, Mr. Caillouet and Mr. Toups discussed whether "everything had been settled," and apparently they agreed that was the case, at least in regard to the property issues since the divorce had not yet been granted.[viii] Mr. Caillouet unequivocally testified that the only purpose of continuing the matter without date was to avoid having Mr. Ordoyne miss another day of work, and not in any manner to dispose of the criminal charges (Caillouet, tr. (1) pp.136-137), and that thus he (Caillouet) would continue the matter without date (Caillouet, tr. (1) p.93).
Mr. Caillouet went to see Martha LeBlanc (a data entry clerk) in the District Attorney's Office, and asked that she note on the computer that the Todd Ordoyne arraignment would be continued without date. Mr. Caillouet admitted that he did not recall the extent of his conversation with Ms. LeBlanc since "it was not a significant thing in my mind at the time" (Caillouet, tr. (1) pp.94-95). Ms. LeBlanc testified that she made an entry into the computer that read something like: "CWOD pending civil matter per SEC. He says Thad has agreed to this" (LeBlanc, tr. (1), p.223). [ix] Further, Mr. Caillouet testified that he never intended that the "continuance without date" would be a dismissal. The continuance was simply so Mr. Ordoyne would not have to miss any more work "for the time being because we thought the settlement was imminent..." (Caillouet, (tr. (1) pp.117-118).
Caillouet was scheduled to be the Assistant District Attorney for arraignments on May 8, 1997. However, Mr. Caillouet was still undergoing cardiac rehabilitation at this time, and other assistants were covering his docket for him on a random rotation. On the eventful day of May 8, Toups was assigned to Division A.[x] Once in court, Mr. Toups read the arraignment list and saw Mr. Ordoyne's name, next to which was the following handwritten notation: "cwod. pending civil matter per sec."[xi] See Exhibit 6 (Ordoyne charges).[xii] According to Mr. Toups, he told Ms. Stacy Meral that he was not going to make that minute entry because he was involved in the civil case, and thus Mr. Toups told her to "just bring it up tomorrow..."[xiii] Thus, Mr. Toups simply did not call out the arraignment of Mr. Ordoyne (Toups, tr. (2) p.82).[xiv] Notably, although Mr. Toups says that the notation for the continuance was without his permission, he did not advise the court or the District Attorney of what had happened. Exhibit 3 (Ordoyne charges) is the court's minute entry sheet for May 8, 1997, which states, "On motion of the State, the Court ordered that this matter be continued without date."[xv]
According to Ms. Ordoyne, several days later (probably on May 12), she telephoned the District Attorney's Office to find out what had happened with Mr. Ordoyne's arraignment, and learned that an entry had been made on the docket to the effect that Mr. Toups and Mr. Caillouet had made an agreement to continue the charges against Mr. Ordoyne. Ms. Ordoyne promptly met with Mr. Toups to express her dismay with receiving that information. Ms. Ordoyne stated that when she told Mr. Toups what she had learned, Mr. Toups said, "that just can't be" (Ordoyne, tr. (1) p.34). Ms. Ordoyne was in the room when Mr. Toups called Martha LeBlanc at the District Attorney's office, and Ms. Ordoyne heard him tell Ms. LeBlanc that the entry was not correct and to "make the notation and change in the computer that his client would never agree to continue those charges without date" (Ordoyne, tr. (1) pp. 34-35). Mr. Toups testified that he wanted to speak directly to the District Attorney about the matter, and not to Mr. Caillouet (Toups, tr. (2) pp. 162-164).
Martha LeBlanc handles paperwork and data entry for the District Attorney. She testified that prior to May 8, Mr. Caillouet told her that he (Mr. Caillouet) had spoken to Mr. Toups, and that they had decided, "to handle everything through the civil aspect of everything, you know, of the court proceedings" (LeBlanc, tr. (1) pp.204-205). Thus, Ms. LeBlanc noted in the computer something to the effect that the matter was to be continued without date, and that the parties were going to "take it up in the civil matter per agreement" (LeBlanc, tr. (1), p.210). It is noteworthy that Ms. LeBlanc received her information regarding this matter only from Mr. Caillouet, and not from Mr. Toups. She recalled the subsequent phone call from Mr. Toups who told her that he did not agree to the entry in the computer that indicated that he (Mr. Toups) and Mr. Caillouet had an agreement to continue the criminal prosecution of Mr. Ordoyne without date (LeBlanc, tr. (1) p.207). After the call from Mr. Toups, someone made entries into the District Attorney's computer that noted Mr. Toups' disagreement with the continuance. Two versions of the District Attorney's status docket sheet were introduced into evidence. In Exhibit 1 (Ordoyne charges), the following entry was made: "CWOD Pending Civil Matter Per SEC. Thad Advised His Client Will Not Agree to This." In Respondent's Exhibit 2, the entry reads a little differently, as follows: "CWOD Pending Civil Matter Per SEC. Thad Did Not Agree to This."[xvi] Ms. LeBlanc does not think that she made either of those entries, although she did recall making a similar-sounding entry (LeBlanc, tr. (1) pp. 210-216) as previously noted.
The next day, May 13, Mr. Toups was in court most of the day on behalf of the District Attorney. Not having heard from Mr. Toups, Ms. Ordoyne contacted Mr. Naquin, the District Attorney. Mr. Naquin returned Ms. Ordoyne's call the following morning. According to Ms. Ordoyne, Mr. Naquin was unaware of the issues involved, but told her that "he was issuing an order or whatever for both attorneys to withdraw from the case, that it was unethical for either of them to be representing myself or my husband in any of the proceedings because he did not allow his district attorneys to represent private clients when there were criminal charges pending in the case..." (Ordoyne, tr. (1) p.38). Mr. Naquin testified that Ms. Ordoyne believed that Mr. Caillouet was representing Mr. Ordoyne in Mr. Ordoyne's criminal case. Mr. Naquin informed Ms. Ordoyne that would have been completely improper (Naquin, tr. (1) pp.167-168, 170). By the time that Mr. Toups got to the office, the memo from Mr. Naquin ordering him and Mr. Caillouet to remove themselves from the case was on his desk (Toups, tr. (2) p.180). Mr. Toups and Mr. Caillouet immediately withdrew from their representations of the Ordoynes based on the instructions from Mr. Naquin. Ms. Ordoyne paid a total of approximately $1,250.00 for Mr. Toups' legal services (Ordoyne, tr. (1) pp.39-40). Ultimately, Mr. Ordoyne's criminal case did go to trial, and he pled guilty in a plea bargain.
Ms. Harris was formerly married to Mr. Alva Harris for 36 years. The marriage ended in divorce in April 1992. Ms. Harris was represented by Mr. F. Smith "Smitty" Knobloch, and Mr. Harris was represented during the divorce by Mr. Toups. Ms. Harris alleges that in November 1990, she was abused by Mr. Harris and removed herself from the family home. Thereafter, she pressed charges against her husband in Thibodaux City Court. Subsequently, Ms. Harris came to learn that Lafourche Parish Assistant District Attorneys also served, at that time, as prosecutors in Thibodaux City Court. Essentially, Ms. Harris alleges that her husband's criminal trial, and perhaps other proceedings related thereto, were continued on several occasions due to what she believes to be the interference of Mr. Toups (Harris, tr.(1) pp. 52-261). Mr. Knobloch died some time after June of 1991. A letter was introduced (Exhibit 8, Harris charges) in which Mr. Toups wrote to Mr. Knobloch and made the following statement: "Since Mr. Harris is now living in North Carolina and there is no chance that there will be any further physical disagreement between the parties, I decided to ask that the charges against Mr. Harris be continued without date." This letter forms the foundation of ODC's charges in the Harris count. Mr. Toups offered an explanation of the letter to the effect that he was suggesting that Mr. Knobloch call the prosecutor and ask the prosecutor to continue the case without date due to the pending settlement of the Harris matter (Toups, tr.(2) p.122). Ms. Harris received a copy of the June 4, 1991 letter from Mr. Knobloch within two weeks after it was written (Harris tr.(1) p.271).[xvii]
Camille A. Morvant, II testified. Mr. Morvant has been an assistant district attorney in Lafourche Parish since January, 1983. Mr. Morvant was the assistant district attorney (city prosecutor) on June 17, 1991, when the Harris matter was continued without date. However, Mr.
Morvant has no independent recollection of the matter (Morvant, tr.(1) p.315). Mr. Morvant does not recall that Mr. Toups ever contacted him regarding the Harris matter, and in fact he testified that had Mr. Toups done so and revealed that he (Mr. Toups) was representing Mr. Harris in a civil matter, Mr. Morvant would not have "continued without date" Mr. Harris' criminal matter (Morvant, tr.(1) pp.322-323).[xviii] Ultimately, on June 25, 1992, the criminal case against Mr. Harris was routinely dismissed on motion of Mr. Morvant for "nolle prosequi," inasmuch as one year had passed since the "continuance without date" (Morvant, tr.(1) p.324). See also Exhibit 6 (Harris charges).
Ms. Harris did not report what she believed to be an ethical violation of Mr. Toups until August 1998, after she learned of the complaint of Ms. Ordoyne against Mr. Toups through a newspaper article (Harris, tr. (1) pp.268-269). Although Ms. Harris claims, essentially, that her attorney, Mr. Knobloch, would not have agreed to a continuance of the Harris trial, it was clear from the evidence that Mr. Knobloch would likely have made complaint had he believed the District Attorney's office (i.e., Mr. Toups) was doing anything improper. This is clear since Mr. Knobloch had run for election for district attorney against Mr. Naquin in what was apparently a hard-fought contest (Richard, tr. (2) p.31), and thus would have had little reason to sit quietly if an employee of Mr. Naquin's office was abusing his office.
Several witnesses testified as to the good character of Mr. Toups. The testimony was consistent, and to the effect that Mr. Toups had never abused his official position. These witnesses included Judge John J. Erny, Jr. (District Court judge for the Seventeenth Judicial District Court in Thibodaux, Louisiana, now serving in his eleventh year), Judge David M. Richard (Thibodaux City Court Judge for twenty-two years), Mrs. Toups, Mr. Naquin, Mr. Morvant, and even Mr. Caillouet. There was no evidence presented of any other complaints of any nature against Mr. Toups other than those that form the basis for the charges before the Committee.
Set forth below are the Rules of Professional Conduct that it is alleged Toups violated, along with the gist of ODC's allegations regarding the violations.
Rule 1.4 Communication
(a) A lawyer shall keep a client reasonably informed about the status of a matter, and promptly comply with reasonable requests for information.
(b) The lawyer shall give the client sufficient information to participate intelligently in decision concerning the objectives of the representation and the means by which they are to be pursued, to the extent the client is willing and able to do so.
On Count I, ODC alleges that Toups failed to communicate essential information to Ms. Ordoyne about the status of the criminal charges against Mr. Ordoyne. ODC argues that Toups had this obligation to her notwithstanding the fact that he did not (indeed, could not) represent Mrs. Ordoyne in the criminal matter. On Count II, OC charges that Mr. Toups' position as an Assistant District Attorney precluded him from intervening in a criminal matter on behalf of a criminal defendant. See also La. Const. Art. 5, Sec 26(c).
Rule 1.7 Conflict of Interest: General Rule
Loyalty is an essential element in the lawyer's relationship to a client. Therefore:
(a) A lawyer shall not represent a client if the representation of that client will be directly adverse to another client, unless:
(1) The lawyer reasonably believes the representation will not adversely affect the relationship with the other client; and
(2) Each client consents after consultation.
(b) A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer's responsibilities to another client or to a third person, or by the lawyer's own interests, unless;
(1) The lawyer reasonably believes the representation will not be adversely affected; and
(2) The client consents after consultation. When representation of multiple clients in a single matter is undertaken, the consultation shall include explanation of the implications of the common representation and the advantages and risks involved.
ODC alleges in Count I of its formal charges that Mr. Toups violated 1.7 based upon the argument that representation of Mrs. Ordoyne in the civil matter was directly adverse to Mr. Toups' other "client," the District Attorney.
Rule 1.13(b) Organization as client
(b) If a lawyer for an organization knows that an officer, employee or other person associated with the organization is engaged in action, intends to act or refuses to act in a matter related to the representation that is a violation of a legal obligation to the organization, or a violation of law which reasonably might be imputed to the organization, and is likely to result in substantial injury to the organization, the lawyer shall proceed as is reasonably necessary in the best interest of the organization...
ODC argues in Count I that Mr. Caillouet was violating the Rules of Professional Conduct when he interjected himself at the District Attorney's Office into the Todd Ordoyne matter, and that Mr. Toups, having knowledge of such action by Mr. Caillouet, had a duty under Rule 1.13(b) to report the violation to his employer/client, the District Attorney.
Rule 3.3(2) Candor toward the tribunal
A lawyer shall not knowingly...
(2) Conceal or knowingly fail to disclose that which he is required by law to reveal...
ODC charges in Count I that Mr. Toups violated this rule by failing to disclose to the Court at the May 8 at the arraignment of Todd Ordoyne, that Mr. Caillouet had apparently violated the Rules of Professional Conduct.
8.3 Reporting professional misconduct
(a) A lawyer possessing unprivileged knowledge of a violation of this code shall report such knowledge to a tribunal or other authority empowered to investigate or act upon such violation.
(b) A lawyer possessing unprivileged knowledge or evidence concerning another lawyer or a judge shall reveal fully such knowledge or evidence upon proper request of a tribunal or other authority empowered to investigate or act upon the conduct of lawyers or judges.
(c) This rule does not require disclosure of information otherwise protected by Rule 1.6.
Mr. Toups is alleged to have violated Rule 8.3 in Count I by failing to report Mr. Caillouet's misconduct.
It is professional misconduct for a lawyer to:
(a) Violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another;
(c) Engage in conduct involving dishonesty, fraud, deceit or misrepresentation;
(d) Engage in conduct that is prejudicial to the administration.
It is alleged in both Counts I and II that the conduct of Mr. Toups also violated the sections of Rule 8.4 set forth above.
Disciplinary proceedings are neither civil nor criminal but are sui generis. Supreme Court Rule XIX, §18(A). "Disciplinary proceedings are not primarily to punish the attorney, but to protect the courts and the public from unprofessional conduct...The purpose is to deter future misconduct by a penalty, which will have a salutary effect on other members of the bar...A proper sanction protects the public from dishonest and/or incompetent attorneys while maintaining competence in the courts." In re Alker, Sup. 1985 (La. 6/23/86) 85-B-0765 (491 So.2d 1328). ODC has the burden of establishing by clear and convincing evidence that Toups is guilty of the allegations of misconduct. Supreme Court Rule XIX, §18(C)(D). Louisiana State Bar Association v. Fish, 88-B-0942, Sup. 1990 (La. 6/4/90) 88-B-0942 (562 So.2d 892). This it has not done.
Ms. Ordoyne states that her "complaint with Mr. Toups is the fact that the [criminal] case [against Mr. Ordoyne] was continued without date, and whether it was him in the courtroom that day that continued it without date or if it was him that continued it without date with an agreement with Stephen Caillouet, either way it was wrong" (Ordoyne, tr. (1) p.65). Ms. Ordoyne further testified that her "complaint to the board is that Mr. Caillouet and Mr. Toups both in their capacity as private attorneys and in their capacity as assistant D.A.'s worked from both ends in order to sabotage the charges that were against my husband. That's my complaint before this Board" (Ordoyne, tr. (1) p.47).[xix]
Ms. Ordoyne's explanation of why she believes Mr. Toups would have had a motive to continue the arraignment of Mr. Ordoyne is, in the opinion of this panel, confusing and simply does not make sense. For instance, Ms. Ordoyne apparently believed that Mr. Toups and Mr. Caillouet wanted to continue to represent Mr. Ordoyne and herself in the civil action, and "therefore, by continuing the criminal charges they were able to continue to represent us civilly and collect the funds in order to do that" (Ordoyne, tr. (1) p.68). While lawyers do engage in unethical conduct for a variety of reasons with or without expectation of remuneration, the Committee finds it most difficult to ascertain a reasonable motive that Mr. Toups may have had to conspire with Caillouet to effectuate (or even merely to acquiesce in) the continuance. Lack of motive does not, indeed should not, be the determining factor in deciding if an attorney violates the Rules of Professional Conduct. However, in this case, with these facts, lack of a reasonable motive gives this Committee pause.
Moreover, there was no evidence presented that Mr. Toups believed that Mr. Caillouet was doing anything improper in continuing the arraignment hearing of Todd Ordoyne. Both Mr. Toups and Mr. Caillouet believed that the civil disputes among the parties were for the most part resolved. It is not unreasonable to assume that Mr. Caillouet was operating in the belief (or perhaps hope) that once the civil dispute was resolved, Ms. Ordoyne would withdraw her complaint on the criminal charge, but that even if she would not, preventing Mr. Ordoyne from missing a day of work was a reasonable basis (to Mr. Caillouet) to seek a continuance of the arraignment. Ms. Ordoyne did not withdraw her complaint, and Mr. Caillouet was in error in making an assumption (if he did) that she would do so. But Mr. Toups cannot be faulted for failing to advise the court or the District Attorney of what is now alleged to have been improper conduct by Mr. Caillouet when at the time, Mr. Toups had no reason to believe that Mr. Caillouet was committing an ethical violation under the Rules of Professional Conduct (RPC 1.13, 8.3).
Under the facts presented in this case, the Committee also cannot conclude that Mr. Toups had a duty under the Rules of Professional Conduct (RPC 1.4) to affirmatively advise Ms. Ordoyne of the status of Todd Ordoyne's criminal charges. The facts show that Mr. Toups learned for certain that criminal charges were filed on May 7 when contacted by Mr. Caillouet. Mr. Toups was in court on May 8. He met with Ms. Ordoyne on May 12 when he made the call, in her presence, to Ms. LeBlanc. When Mr. Caillouet had the discussion with Mr. Toups on May 7 about a possible continuance, even though Mr. Toups was not representing Ms. Ordoyne in the criminal matter, simple courtesy and professionalism would dictate that he should have called Ms. Ordoyne and alerted her to the matter. However, his not doing a simple and courteous act immediately on May 7 does not rise to the level of an ethical violation.
The evidence was clear that the District Attorney (and, apparently, from the testimony presented, most of the District Attorneys in Louisiana) do not have formal written policies on conflicts of interest.[xx] Most assistant district attorneys in Louisiana maintain a private civil practice (in those jurisdictions where permitted); much of Louisiana is small urban or rural areas, where it is likely that situations as occurred here may frequently arise. Other than apparently general statements "to tell everyone in the office and to let everyone know they were all bound by the Canons of Ethics..." apparently there were no occasions where such matters were specifically discussed with the staff in the District Attorney's office. There was no written policy regarding conflicts of interest in that office (Naquin, tr. (1), p.165). There was no formal in-house training on recognizing and preventing conflicts that can give rise to unprofessional conduct.[xxi]
For the reasons set forth above, the Committee also does not find that Mr. Toups violated the other Rules of Professional Conduct cited in the charges, RPC 1.7 and 8.4.
Therefore, the Committee finds that on Count I, the charges must be dismissed.
This matter is much simpler than the Ordoyne matter presented in Count I. ODC's case rests entirely on the sentence in the June 4, 1991 letter that states as follows: "Since Mr. Harris is now living in North Carolina and there is no chance that there will be any further physical disagreement between the parties, I decided to ask that the charges against Mr. Harris be continued without date." From this statement, the charge is made that Mr. Toups intervened in the District Attorney's prosecution of Mr. Harris, while at the same time representing Mr. Harris in a civil matter. Even if ODC's interpretation of this sentence is accepted, it is inconceivable that Mr. Knobloch would have been silent in the face of what the ODC charges as clear and convincing evidence of not only unethical conduct, but illegal (under the Louisiana Constitution) conduct. Further, Ms. Harris made no complaint about the statement in the letter despite having received a copy of it within two weeks of the date it was written in 1991. Respondent's post-hearing memorandum puts it thusly: "ODC proposes the following scenario: Respondent desires to have the criminal charges against his private client dismissed. He then writes a letter to his opposing counsel detailing the specifics of the deceitful plan." In addition, Mr. Morvant would by necessity have had to have been a conspirator in this plan. The charges on Count II must fall under the weight of their own improbability. In the absence of any evidence to support ODC's theory of the charge, this count must be dismissed.
The purpose of lawyer discipline proceedings is to protect the public and the administration of justice from lawyers who have not discharged, will not discharge, or are unlikely to properly discharge their professional duties to clients, the public, the legal system, and the legal profession. ABA Standards for Imposing Lawyer Sanctions, Standard 1.1. Louisiana State Bar Ass'n. v. Amberg, Sup. 1989 (La. 12/11/89) 87-B-1546 (553 So.2d 448). See also Louisiana State Bar Ass'n v. Williams, Sup. 1986 (La. 11/24/86) 85-B-1893 (498 So.2d 727); Louisiana State Bar Ass'n v. Drury, Sup. 1984 (La. 9/10/84) 82-B-2143 (455 So.2d 1387); Louisiana State Bar Ass'n v. Hopkins, Sup.1984 (La. 2/27/84) 82-B-1362 (447 So.2d 464); Louisiana State Bar Ass'n v. O'Halloran, Sup.1982 (La. 1/8/82) 80-B-1973 (412 So.2d 523).
Fortunately in this case, neither Ms. Ordoyne nor Ms. Harris suffered any direct harm as a result of actions taken by Mr. Toups. Of course, Mr. Toups have responsibilities to his clients as a private practitioner and to his organizational employer, responsibilities that he, as a lawyer, must diligently perform. However, ODC has not proven the charges in this case, with these facts, by clear and convincing evidence. Therefore, the Committee recommends that the charges against Mr. Toups be dismissed, each party to bear its own costs.
SO ORDERED at Baton Rouge, Louisiana this 10 day of APRIL 1999.
DISCIPLINARY BOARD OF THE LOUISIANA STATE BAR ASSOCIATION
Hearing Committee Number 25
David S. Rubin, Chairperson
James R. Dagate
Joan M. Vogel, Public Member, dissents and assigns reasons.
[i] The original formal charges in this matter only refer to the Ordoyne matter. On December 7, 1998, ODC filed its First Supplemental and Amended Formal Charges to add Count II concerning the Harris matter.
[ii] Interestingly, and for reasons not explained, Caillouet was only charged with violating Rules 1.7 and 8.4(d).
[iii] References are to the transcripts in this matter. The number in parentheses indicates either hearing day 1 or 2.
[iv] Ms. Ordoyne gave conflicting testimony with respect to whether she ultimately believed Mr. Toups was representing her in any criminal matters pending against Mr. Ordoyne based on this initial consultation. At one point, Ms. Ordoyne admitted that she never discussed with Mr. Toups his ability to represent her if she were to file criminal charges (Ordoyne, tr. (1) p.27). At another point, Ms. Ordoyne stated that her complaint to the Disciplinary Board "was that Mr. Toups had unethically represented me civilly and criminally" (Ordoyne, tr. (1) p.45).
[v] Why Mr. Toups would only refer to Martin Caillouet's employment with the District Attorney when making this statement, when Toups and S. Caillouet also worked there, is not sensible. A more logical explanation of this statement, however, even assuming it was made, would be that mentioning the criminal charge during what was apparently a conference to discuss settlement would only impede the attempts to amicably resolve the pending civil proceeding, as it would in any civil litigation. Whether or not in fact this statement was made makes no difference in the Committee's overall conclusion.
[vi]See, Toups, tr. (2) pp.134-140.
[vii] Caillouet's version of this conversation is that he spoke about the charges with Mr. Toups, but Mr. Toups "was not sure if charges had been filed, that basically he was - no, he didn't realize that they had charges coming up for arraignment" (Caillouet, tr. (1) p.91). Thus, it is easy to reconcile the testimony of both Toups and Caillouet on this subject. In addition, on cross-examination, Mr. Caillouet admitted that he had testified in a deposition prior to the hearing that the issue of whether Mr. Toups had agreed to a continuance without date was maybe a misunderstanding on the part of Mr. Caillouet (Caillouet, tr. (1) p.115).
[viii] The divorce was to be granted based on living separate and apart, and there were to be no issues of alimony or support.
[ix] With regard to this and the other similar entries admitted into evidence, the parties agree that the interpretation is "continued without date, pending civil matter per Stephen E. Caillouet." "Thad" is a reference to Respondent Toups. The parties agree that the phrase "continued without date" means that the party will not be required to appear back in court unless so notified by the court. See, e.g., Naquin, tr. (1) p.194. The document on which Ms. LeBlanc made this entry was later altered or revised, so there is no exhibit with this precise language.
[x] There was no evidence to suggest that Mr. Toups' assignment to court on May 8, as a substitute for Mr. Caillouet was anything other than a random rotation of staff to assist while Mr. Caillouet was still out of the office. (For instance, see Naquin, tr. (1) p.199).
[xi] This notation had been made by Stacey Meral, the arraignment clerk who went to arraignments with the assistants. Apparently, she made the notation based on what Ms. LeBlanc had entered into the computer.
[xii] The exhibits, with a few exceptions, are contained in a binder, and are numbered sequentially for each of the Counts (the Ordoyne charges and the Harris charges).
[xiii] Ms. Meral is an employee of the District Attorney who attends arraignment hearings.
[xiv] A copy of the audiotape from the arraignment hearings on May 8 was admitted into evidence, and it was agreed by the parties that Mr. Toups made no motion regarding the Ordoyne matter that day.
[xv] Although not relevant for purposes of this decision, the facts showed that Mr. Ordoyne could not have stood for arraignment on May 8. This is because even though the matter had been docketed, the formal charges had not been filed with the Clerk, and were not filed until May 16 (see Exhibit 4, Ordoyne charges). As such, a continuance would have been required anyway.
[xvi] Exhibit 1 (Ordoyne charges) was printed on June 26, 1997. Respondent's Exhibit 2 was printed on January 20, 1998.
[xvii] The testimony of Ms. Harris appeared to be clouded by the passage of time. During her examination, she was directed to a deposition that was taken in February 1992, during her divorce proceedings. From the excerpts of the deposition that were read into the record of this matter, it was apparent that Ms. Harris' memory has faded or her recollection of the facts has for some reason been diminished. Admittedly, few witnesses had much recollection of the Harris matter.
[xviii] Mr. Toups testified that he did not recollect that he spoke to Mr. Morvant about the Harris matter, or to Judge Richard (the presiding Judge in the case) or to any court personnel about Mr. Harris (Toups, tr. (2) p.124).
[xix] Ms. Ordoyne also admitted that she went to the Attorney General's Office, apparently to make a complaint about Mr. Naquin (Ordoyne, tr. (1) p.60).
[xx] In fact, Mr. Caillouet testified as follows regarding whatever "policy" (or lack thereof) existed in the District Attorney's Office regarding conflicts of interest: "It was more of a common sense approach based on all of our educations and everything else as to what conflicts of interest are" (Caillouet, tr. (1) pp.131-132).
[xxi] However, after this incident arose, Mr. Naquin did issue a policy that "suggested to each attorney that handles a domestic case that they have a letter agreement with their client that at any time during their representation that their client files criminal charges against the other party or becomes the defendant in a criminal case, that would automatically terminate the employment agreement" (Naquin, tr. (1) p.166). Mr. Naquin testified that it was not his policy that his assistant district attorneys could not handle a civil case when the civil client later files criminal charges against that client (Naquin, tr. (1), p.170). Mr. Naquin testified that the policy he has now put into effect was a result of the events surrounding the present charge against the Respondent (Naquin, tr. (1) p.187).
This case involved two assistant District Attorneys, Louis Thad Toups and Stephen E. Caillouet serving in Lafourche Parish. As ADA's they are permitted a part time law practice additional to their responsibilities within the office of the District Attorney. Throughout testimony it was clear there was a concern for separation of private practice responsibilities from the duties of the ADA role by maintaining a practice limited to civil cases only. Awareness of concerns over possible criminal charges involving parties represented in civil matters was present.
Questions arose on the ADA's responsibility for knowledge of and acting regarding the filing of criminal charges (misdemeanor) by the client, Ellen Ordoyne, represented in a civil matter by Mr. Thad Toups against her husband, Todd Ordoyne, represented in the civil matter by Mr. Stephen Caillouet. Mr. Toups advised his client as to the method of filing charges in March 1997. These charges were similar to those dealt with in a protective order being handled by Mr. Toups. (Deposition of 3-12-98, pages 20-21, lines 11-25, 107.).
The complainant, in her letter dated June 9, 1997, indicated she left Mr. Toups'private office on an unspecified date, went to the office of the Justice of the Peace and filed charges (simple battery), contacting Mr. Toups the same day to inform him of her actions. This information laws repeated in sworn testimony on 1-20-99, pp. 66-67. Mr. Toups' record of billing indicates consultation with Ms. Ordoyne on March 31 and April 1, 1997. (Exhibit 7) The charges were filed with the Justice of the Peace on April 1, 1997 as per exhibit 2a.
The complainant further states in testimony on Jan. 20, 1999, pages 27-28, that Mr. Toups advised her to not mention these charges at a meeting scheduled for April 3, 1997 with Stephen Caillouet, Todd Ordoyne, Thad Toups and herself. The meeting was on a property settlement issue involved in the civil case. Mr. Toups billing record does not include a meeting on April 3rd although this date was referred to by Mr. Caillouet in his testimony. (Page 80 of testimony on January 29, 1999) Mr. Toups comments in his deposition of March 12, 1998, page 60, line 11 " . . . kept better records but I tend to."
Mr. Caillouet, in sworn testimony on January 20, 1999, states he discovered the filing of criminal charges and the date of the hearing a day of two before the May 8th hearing, through a telephone call from the mother of Todd Ordoyne.
Mr. Caillouet went to the DA's office on an unspecified morning before May 8th and met with that Toups regarding the criminal charges. Mr. Toups states he learned of the criminal charges a day or two before May 8th. (Page 20, lines 9-10 of testimony of 2-9-99) At this meeting, Mr. Toups denied knowing of the criminal charges and referred only to " . . . having conversations with her about criminal charges but that he was not sure if charges had been filed.. . " (Pages 92-93 of 1-20-99)
Thad Toups contradicts knowledge of the reasons in his deposition of 3-12-98 on pages 23-24, lines 9-25 and 1-8; page 38, line 18; page 46, lines 14-15 and 17-19.
Mr. Toups does not present a response at the meeting with Mr. Caillouet addressing concerns regarding possible conflicts in the actions of Mr. Caillouet. No discussion on this ensued. (Deposition of 3-12-98, page 46, lines 8-15;
In addition, Mr. Toups expressed that he had no concern about the mater as " . . . Steve was not going to court."
(Deposition of 3-12-98, page 24, line 16; page 21, line 23)
Concern came (as per the deposition of 3-12-98) when Thad Toups discovered Todd Ordoyne's name on the court list on May 8,1997. He had an immediate discussion with the secretary from the DA's office regarding his not making a motion for continuance without date. (Page 26, lines 2-17)
On page 42, lines 6-8 of the deposition of 3-12-98, Thad Toups days " . . . I told her, I said, I can not do that, I can't get involved with it, I'm not calling his name up . . ."
Again in the deposition, Thad Toups states he attempted to avoid involvement in any form in the May 8th hearing by telling the secretary, in an aside while in court, to have it brought up on May 9th. (Page 44, line 1) States he simply passed it. (Page 40, lines 19-24; page 41, lines 4-6; page 29, lines 24-25 and page 30, lines 1-8)
Mr. Toups was questioned on 3-12-98 regarding Exhibit 3, the criminal court minutes which document Mr. Toups attendance on May 8th and the motion for continuance of the hearing without date made on May 8, 1997. On page 42, lines 13-14, he suggests the secretary walked over to the minute clerk and told her to make a minute entry showing continuance without date.
On page 45, lines 8-9, Mr. Toups states the secretary did not do what he asked her to do regarding the Ordoyne case.
On page 43, lines 4-6, Mr. Toups states " . . . minute entry should have read the 9th and it should have read for someone else if I was on court . . . in court on the 8th."
On page 44, line 1, Mr. Toups says he may have been in court on May 7th and not 8th and doesn't know why his name appears. Testimony on 1-20-99 states Mr. Toups' name was on the sign in log at court for May 8th. (Page 39 of 3-12-98)
The secretary, in sworn testimony on January 20, 1999, cannot remember the case nor a discussion with Thad Toups regarding the case. Pages 232, lines 10-25; 233, line 8. She confirms her computer list from the DA's office does not indicate a motion by Thad Toups to continue the case. Also states that she and Leslie Richard were involved with the list within the court on May 8th. Page 237, lines 15-25. States on pages 247-248 that if any entry is skipped she would go back to it. She would bring it to the ADA's attention for action. Also stated the Judge and minute clerk would do the same. She denied on page 248 that she caused the minutes to reflect a motion was made.
Mr. Walter "Butch" Naquin, Jr., District Attorney, stated he was unfamiliar with "passing" on an item in court. Stated that if it was on the court docket, an entry must be made. (Page 198, lines 8-23 of 1-20-99)
Mr. Toups testimony 2-9-99 says the motion could have become part of the minutes in three ways:
1. Judge, in reviewing, may have not seen a notation, thought it was skipped and added a note;
2. Minute clerk thought she missed the entry and looked at the DA's court sheet and recorded it as per the entry of continue without date;
3. DA secretary did not do what he had asked and instead asked the minute clerk to add it on the 8th of May.
Mr. Toups chose to not recuse himself from the arraignment case, not to offer a motion to continue with date or to be associated in any way with the item. These reports of actions taken to avoid any public entry of this item with his name indicates he was aware that this was a problem area. (Deposition of 3-12-98, page 64, lines 19-25; page 65, lines 1-5. Second case on page 84, lines 1-6 in testimony of 2-9-99)
As an assistant District Attorney, Mr. Toups represents as his client the public at large in the generic term of the "state". In this case he failed to protect his client by not taking affirmative action upon discovery of Stephen Caillouet's actions to continue without date a criminal arraignment benefiting a client in a civil matter. As this is a conflict of Mr. Caillouet's responsibility to the public he represented in his position as an ADA to that of his private practice client he was in violation of the Rules of Professional Conduct. Mr. Toups had a responsibility under the same Code, Section 1.13 to report the violation to his organization, the office of the District Attorney. Instead, he expressed no concern because " . . . Steve was not going to court. (Deposition of 3-12-99 Page 24, line 16; Page 21, line 23 is similar in meaning.)
Closely tied to this a violation of RFC 8.3 in his failure to report the professional misconduct of Stephen Caillouet after finding Mr. Caillouet was going to continue the matter without date and when he found it had been continued without date. Mr. Toups went to great lengths to separate himself from this matter through his actions in court. His actions became inaction with his failure to report the misconduct.
Mr. Toups chose to take actions in court on May 8, 1997 which concealed information with potential injury to the legal process as well as the victim of the domestic violence case. He had within the court system the ability to reverse the continuance without date requested by Stephen Caillouet by providing a substitute motion keeping the matter in an active status with automatic processes. His failure to act and correct the misconduct violates 3.3 of the RPC.
The motive behind Mr. Toups actions or lack of action is inconclusive. It appears Mr. Toups took the easier route of not reporting, maintaining the status quo and a private practice client.
In a letter dated June 4, 1991 and addressed to Mr. F. Smith Knobloch, Mr. Toups wrote, "I decided to ask that the charges against Mr. Harris be continued without date." (Exhibit 8)
On page 122 of the Hearing Committee testimony of 2-9-99, Mr. Toups explained that this was his way of asking Mr. Knobloch to ask his client, Ms. Harris, if he could continue the case without a date for hearing.
The fact that Mr. Toups knew the difference between a declarative sentence and a question is demonstrated in the same letter. The first paragraph of the section pertaining to the Harris matter asks " . . . Please speak to her and let me know if she is willing to settle the community . . . "
The second item in the letter also demonstrates Mr. Toups' ability to distinguish the client's role as in "please discuss this with your client and advise whether she is agreeable to the proposal . . ."
As Mr. Knobloch died of a brain tumor within ten months of the writing of this letter, testimony on this matter was limited. Mr. Toups was unable to present evidence such as a responding letter confirming approval had been provided for Mr. Toups to file a continuance without date in the matter.
Even without the confirmation, the matter received a continuance without date and was dismissed on June 25, 1992 as no affirmative action had been taken to activate it.
Mr. Cam Morvant testified that a continuance without date would have occurred only with a note on the paperwork in City Court or some similar activity. If the victim was willing to continue, he would move the case forward. He was unfamiliar with why the case had been continued.
Mr. Toups represented Mr. Alva Harris in his private practice in a civil proceeding. He affirmed in the letter of June 4, 1991 to Mr. F. Smith Knobloch the continuance of his client's misdemeanor case in City Court without date.
As evidenced by the testimony of the District Attorney and his staff, affirmative action must be taken to rescue such a case from the slow death route.
Mr. Toups attempts in his testimony to add the intention to the wording of the letter that he was actually requesting Mr. Knobloch to confer with his clients, Ms. Harris. This does not corresponded with the very specific references for Mr. Knobloch to confer with his clients as presented in additional items in the same letter.
Mr. Toups took direct action prejudicial to the administration of justice when he sent a charge to the slow death avenue while the victim remained actively concerned, violating Section 8.4(d) of the Code of Professional Conduct.
Rule 1.7(a) was opposed with the representation of client in a civil matter while the client was facing misdemeanor charges under the control of the District Attorney's office while employed as an assistant DA.
A larger issue than both of these cases is the harm to the public when a public official destroys trusts in the function of that office. As the public's representative in court, the District Attorney's office holds both larger powers and responsibilities than the private practice attorney. The question concern is whether public office holders should not be held to a higher standard due to their position of influence. It is also of concern that the Rules of Professional Conduct provide Rule 1.11 "Successive Government and Private Employment" but nothing specific for attorneys in co-joint public/private practices.
I agree with the ODC review of the aggravating and mitigating factors present in this case as per the ABA Standards for Imposing Lawyer Sanctions. Aggravating factors include: (b) dishonest or selfish motive; (c) pattern of misconduct; (d) multiple offense; (g) refusal to acknowledge wrongful nature of conduct; (h) vulnerability of victim (s); and, (i) substantial experience in the practice of law. Mitigating factors present include: (a) absence of prior disciplinary record; and, (g) character or reputation.
The harm done to the victims of the criminal offenses was reduced due to the vigilance of one of the victims and not through the efforts of Mr. Toups. Fortunately no further injury or damage occurred in either case. The harm done to the organization and the legal process has significance, which will be determined in future years.
A suspension from the practice of law for no less than six months is recommended.
Joan M. Vogel
Hearing Committee 25