LOUISIANA ATTORNEY DISCIPLINARY BOARD
IN RE JOHN CHRISTOPHER MARTIN
02-DB-036
RECOMMENDATION OF THE DISCIPLINARY BOARD
This attorney disciplinary matter arises out of Formal Charges consisting of one count filed by the Office of Disciplinary Counsel ("ODC") against John Christopher Martin ("respondent").[1] The charges stem from respondent's guilty plea to five counts of aggravated assault upon a peace officer with a firearm in violation of La. R.S. 14 § 37.2. The respondent was arrested and criminally charged in connection with an incident occurring on July 2, 2001, at which time respondent discharged a gun outside the home of his ex-wife after being involved in a standoff with police. The Formal Charges allege violations of Rule 8.4(a) (misconduct), (b) (criminal acts) and (d) (conduct prejudicial to the administration of justice) of the Rules of Professional Conduct.
Formal Charges were filed on August 9, 2001 consisting of one count. Respondent filed a timely answer admitting the allegations set forth in the Formal Charges and requesting a hearing in mitigation. The hearing was held on April 25, 2003. Joint Stipulations of Fact were submitted by the parties at the commencement of the hearing. Respondent put on a case in mitigation and called three witnesses in addition to himself. He also introduced seven exhibits, including two affidavits. ODC called Detective Doug Eckert, introduced five exhibits and proffered one exhibit.
The hearing committee issued its report on June 3, 2003. It recommended a two-year suspension, retroactive to July 2, 2001 (the date of the criminal incident). ODC opposes the committee's recommendation as being too lenient and recommends disbarment or a three-year suspension. Respondent agrees with the recommendation.
For the following reasons, the Board adopts the report of the committee with the minor modifications set forth herein and recommends suspension for a period of two years, retroactive to the date of interim suspension.
The Formal Charges read, in pertinent part:
You pled guilty under Louisiana Code of Criminal Procedure Article 893 to five (5) counts of aggravated assault with a firearm on September 20, 2001 in Section "H" of the Orleans Parish Criminal District Court resulting from an incident that occurred on July 2, 2001 involving five (5) S.W.A.T. team officers from the New Orleans Police Department after they were summoned to your estranged wife's home and you were observed to be armed with a gun. You were sentenced to five (5) years, Department of Corrections at Hard Labor as to each count, all counts are to run concurrently and credit is to be received for time served; this sentence was suspended and you were placed on five (5) years of active probation. You are to receive evaluations at DePaul Mental Hospital as part of your probation, have weekly drug tests and you are to stay away from the victims in this case.
Your conduct has violated Rules 8.4 (a)(b) and (d) of the Rules of Professional Conduct.
The committee accepted the stipulated facts which are as follows:
In addition to the stipulated facts set forth above, the committee listed the following findings:
To arrive at a decision relative to the appropriate sanction, the committee considered the stipulations and evidence. In its report, it provided the following analysis of the facts:
Respondent was married in 1989. He was admitted to the bar of this state in 1993. Upon graduation from law school, he moved to Alaska and returned to Louisiana in 1994, at which time he took a position as a law clerk for the State Supreme Court. He had clerked for the Court for approximately one year when he left to begin work at the Carver, Darden firm.
Approximately one and one-half years after being employed by the firm, Respondent advised his supervisor that he would be leaving the firm in order to be able to spend more time with his three small children. Once again, Respondent returned to his clerking position; where he remained for approximately two years before returning again to private practice . . . . [6]
Respondent testified that his problems began sometime after his divorce became final in March of 2000 and his wife took their three small children out of the country. It was at this time that his hours began to become somewhat irregular, he became withdrawn, depressed and angry. Respondent also began drinking. Even after his family returned to New Orleans, Respondent continued to be upset and depressed about his family situation.[7]
On July 1, 2001, Respondent spoke to his ex-wife about their children. Apparently concerned that he might lose access to his children, he consumed a large amount of alcohol over approximately a five hour period. He returned to his wife's home early the next morning to discuss the matter, but passed out on the front lawn. He was awakened by the sound of a police bull horn. At that point, Respondent picked up a gun which he always kept in his vehicle. Respondent testified that at no time did he intend to injure either his family or the police officers. Rather, he was simply trying to commit "suicide by cop". Respondent had previously served in the service and was a member of the Green Berets. Based on his experience, he knew that if he refused to drop his gun when commanded, the police officers would have no alternative but to shoot him. Having reached the bottom of his depression, believing he would lose his children and his legal career was over, Respondent believed he had no reason to continue to live. When ordered to drop his gun, Respondent did not. Instead he turned back to face the police officers who were yelling at him at which time he was struck by a taser gun, causing his gun to accidentally discharge into the ground. No officers were struck in the exchange. Respondent was seriously injured by the gunshot received and underwent surgery to remove his gallbladder and part of his liver.[8]
Respondent was charged with five counts of aggravated assault with a firearm. He pled guilty under La.C.Cr.P. art. 893 on September 20, 2001, and was placed on five years active probation. As part of his plea agreement, Respondent was ordered to move out of state for a two year period. He has been living in Houston and working [as] a petroleum land man for Doyle Land Services in Houston . . . .
Respondent testified in detail regarding his slide into depression and the effect of the loss of contact with his children had on him. Although the injuries sustained by him were serious as a result of being shot by the police including loss of his gallbladder and removal of a portion of his liver, at no time did Respondent try to blame the police and, in fact, took full responsibility for the consequences of his actions.[9] Approximately one month before the incident, on the advice of others, Respondent began to see a psychiatrist and was given anti-depressant drugs. He testified that he had a difficult time with the medication and, in fact, the dosage was increased shortly before the incident.[10] He expressed remorse for his actions. Respondent was willing to acknowledge what he did and for that reason entered a guilty plea. However, Respondent wanted to make clear that at no time did he intend to murder anyone.[11]
As part of his plea agreement, the Judge ordered several conditions, including drug screenings. All results have been negative.[12] He initially underwent treatment for depression; however, he has completed the treatment and was advised that he is now over his depression.[13]
Although the Court order requires him to stay out of state for two years, in the Affidavit submitted by his ex-wife, she testified that she is willing to join him in a motion to allow him to return before the expiration of the two years, which would be in October of 2003. Additionally, she has allowed Respondent to have unsupervised overnight visits with his children in Houston and he has also returned to New Orleans several times to visit with his children.[14] It is evident from the Affidavit submitted by Respondent's ex-wife, that she does not see him as a threat to either her or their children. Moreover, Respondent has continued to meet all of his financial obligations to his family, in the form of child support.[15] He testified that he could not make the salary he earns now as a land man if he were to return to New Orleans. Rather, it would only be as an attorney that he could make a similar or greater salary. Therefore, he would like to resume his legal career in order that he can be closer to his children and to work as a lawyer again . . . .[16] (Citations added.)
The committee considered the live testimony of M. Taylor Darden, respondent's former supervisor at the Carver, Darden Firm,[17] Rebecca Jane Becker, a friend and former co-worker of respondent at the Louisiana Supreme Court[18] and Daniel E. Zelenka, II, a partner at Milling, Benson, Woodward, LLP.[19] Zelenka and respondent met while representing different parties in the same case. Out of their professional relationship, they developed a friendship. Respondent called Zelenka from his cell phone during the police standoff and Zelenka arrived at the scene immediately after respondent was shot by the S.W.A.T. team officer.[20] All three witnesses had the opportunity to observe respondent's conduct prior to the July 2001 incident and at the time of the hearing. They all believe that respondent is no longer depressed and has overcome his personal problems. These witnesses also testified as to respondent's good reputation and excellent skills as a lawyer.[21]
The committee found that the incident that occurred on July 2, 2001, was a culmination of an unfortunate series of personal setbacks suffered by respondent. It noted that respondent's personal problems apparently stemmed from his divorce and that he has accepted and addressed the problem which gave rise to his depression and abuse of alcohol and is fit to practice law.
In light of the stipulated rule violations, the testimony and documentary evidence the committee found the appropriate baseline sanction to be suspension under the ABA Standards for Imposing Lawyer Sanctions ("ABA Standards"). The committee rejected ODC's argument that the aggravating factors of a pattern of misconduct, multiple offenses, or substantial experience in the practice of law should apply. It found that although the respondent was technically charged with five counts of criminal misconduct, the misconduct arose out of one incident. It also found that because the misconduct related to respondent's personal life, his legal experience should not be considered an aggravating factor. As mitigating factors, the committee found the absence of a prior disciplinary record; absence of a dishonest or selfish motive; personal or emotional problems; timely good faith effort to rectify consequences of misconduct; full and free disclosure to disciplinary board or cooperative attitude toward proceedings; character or reputation; physical or mental disability or impairment; imposition of other penalties or sanctions; and, remorse.
The committee compared In re Estiverne, 1999-0949 (La. 9/24/99), 741 So.2d 649. In Estiverne, an attorney threatened another attorney with a firearm at the end of a deposition. In that case, the Supreme Court ordered suspension of one year and one day. It was noted by the committee that, unlike the instant matter, other aggravating factors, including prior discipline, were present. Further, the committee recognized that the instant conduct did not directly involve the practice of law.
Though cognizant of the seriousness of the incident which gave rise to these disciplinary proceedings, the committee expressed its belief that the subject misconduct was an isolated incident involving respondent's personal life and, given the circumstances, recommended a two-year suspension.
The powers and duties of the Disciplinary Board are defined in Section 2 of Louisiana Supreme Court Rule XIX, Rules for Lawyer Disciplinary Enforcement. Subsection (G)(2)(a) states that the Board is "to perform appellate review functions, consisting of review of the findings of fact, conclusions of law, and recommendations of hearing committees with respect to formal charges . . . and prepare and forward to the court its own findings, if any, and recommendations."
Inasmuch as the Board is serving in an appellate capacity, the standard of review applied to findings of fact is that of manifest error.[22] The Board conducts a de novo review of the hearing committee's application of the Rules of Professional Conduct.[23]
In this instance, the respondent pled guilty to a serious crime,[24] he stipulated to the underlying facts and to the rule violations. The only issue to be determined, therefore, is the appropriate sanction.
In short, the committee found that respondent, due to severe depression and a long night of drinking, found himself in a standoff with police in front of his former wife's home. Respondent testified that he had no intention to hurt anyone and that his gun discharged accidentally when he was struck with the Taser.[25] He further testified that he knew the officers would have no choice but to shoot him if he refused to relinquish his weapon.[26] Respondent was shot with a twelve-gauge shotgun that day by a S.W.A.T. team officer, and as a result lost his gallbladder and part of his liver.[27] Apparently the committee believed the respondent's testimony, and considering the totality of the evidence,[28] found that respondent did not intend to injure anyone during the incident but was attempting to commit "suicide by cop".
Respondent was charged with the crime of aggravated assault upon a peace officer. He pled guilty to that crime. The testimony adduced at the hearing is consistent with that crime. While the ODC has presented evidence to suggest that respondent may have had some other intent or motive [29] the committee believed respondent's testimony that he had no intent to harm anyone other than himself.
The committee found that the incident that occurred on July 2, 2001, was a culmination of an unfortunate series of personal setbacks suffered by respondent. It noted that respondent's personal problems apparently stemmed from his divorce and that he has accepted and addressed the problem which gave rise to his depression and abuse of alcohol and is fit to practice law.
The committee's findings and conclusions are supported by the record and are adopted by the Board.
In the Stipulations of Fact, respondent admits that he engaged in misconduct in violation of Rules 8.4 (a) (misconduct), (b) (criminal acts) and (d) (conduct prejudicial to the administration of justice). Louisiana Supreme Court Rule XIX, Section 10(C) states that in imposing a sanction after a finding of lawyer misconduct, the Court or Board shall consider the following factors:
(1) whether the lawyer has violated a duty owed to a client, to the public, to the legal system, or to the profession;
(2) whether the lawyer acted intentionally, knowingly, or negligently;
(3) the amount of actual or potential injury caused by the lawyer's misconduct; and
(4) the existence of any aggravating or mitigating factors.
The Louisiana Supreme Court also relies on the ABA Standards to determine the baseline sanction.[30]
In violating Rules 8.4 (a), (b) and (d), an attorney violates duties owed to the public and to the legal system. The facts suggest that respondent's conduct was knowing if not intentional.[31] As for damage, although the potential for harm was great, the only serious harm was suffered by respondent. The Board does recognize that incident received local media coverage[32] and that such adverse publicity causes harm to the public's perception of the legal profession.[33]
Relative to violations of duties owed to the public, particularly the failure to maintain personal integrity, the ABA Standards provide:
5.11 Disbarment is generally appropriate when:
(a) a lawyer engages in serious criminal conduct a necessary element of which includes intentional interference with the administration of justice, false swearing, misrepresentation, fraud, extortion, misappropriation, or theft; or the sale, distribution or importation of controlled substances; or the intentional killing of another; or an attempt or conspiracy or solicitation of another to commit any of these offenses; or
(b) a lawyer engages in any other intentional conduct involving dishonesty, fraud, deceit, or misrepresentation that seriously adversely reflects on the lawyer's fitness to practice.
5.12 Suspension is generally appropriate when a lawyer knowingly engages in criminal conduct which does not contain the elements listed in Standard 5.11 and that seriously adversely reflects on a lawyer's fitness to practice law.
The parties have each presented strong arguments relative to the appropriate baseline sanction in this matter. ODC argues that ABA Standard 5.11 should apply because respondent engaged in "serious criminal conduct" including the "intentional interference with the administration of justice." While respondent does not deny that his criminal conduct was serious, he argues that his conduct did not involve the intentional interference with the administration of justice, false swearing, or any of the other conduct described in ABA Standard 5.11. Accordingly, he argues that ABA Standard 5.12 should apply.
Relative to the claim that he engaged in the "intentional interference with the administration of justice," respondent argues that the inclusion of the word "administration" in that term has specific meaning, as where the criminal conduct involves the administration or workings of a legal proceeding, e.g. suborning perjury. In other words, respondent argues that interference with the "administration" of justice is not the same as the interference with justice per se. The Board agrees.
Further, considering the language of the ABA Standards, the logical extension of ODC's argument would be that in all attorney disciplinary matters involving serious and intentional criminal conduct, disbarment would be the baseline sanction. The jurisprudence fails to support such an interpretation.[34]
The ABA Standards reflect that a lawyer, as a professional, owes a fundamental duty to the public to maintain personal integrity. As expressed in the comments to Rule 8.4 in the ABA's Model Rules of Professional Conduct, cited in the commentary to ABA Standard 5.12, "Although a lawyer is personally answerable to the entire criminal law, a lawyer should be professionally answerable only for offenses that indicate lack of those characteristics relevant to the practice of law." Those criminal offenses involving violence, dishonesty, breach of trust or serious interference with the administration of justice are so serious that the Rules of Professional Conduct require professional responsibility.
Disbarment is appropriate when an attorney engages in "serious criminal conduct a necessary element of which includes intentional interference with the administration of justice . . . the intentional killing of another, or an attempt or conspiracy or solicitation of another to commit any of these offenses." In the instant matter, there is no question that respondent engaged in serious criminal conduct involving violence. He has been held personally responsible for that conduct. Because his conduct is not described in ABA Standard 5.11, suspension is the appropriate sanction under ABA Standard 5.12.[35]
The committee found no aggravating factors and several mitigating factors. For the reasons set forth in the committee's report, the Board, declines to find the aggravating factors of a pattern of misconduct, multiple offenses, or substantial experience in the practice of law.
With respect to mitigating factors, the Board agrees with the committee's findings except its finding as to physical or mental disability or impairment. The Board finds the following mitigating factors: the absence of a prior disciplinary record;[36] absence of a dishonest or selfish motive;[37] personal or emotional problems; timely good faith effort to rectify consequences of misconduct;[38] full and free disclosure to disciplinary board or cooperative attitude toward proceedings; character or reputation;[39] physical or mental disability or impairment; imposition of other penalties or sanctions;[40] and, remorse.[41]
As to the mitigating factor of mental disability, due to a lack of any medical evidence, the Board declines to make this finding. Both the ABA Standards[42] and the case law,[43] provide that medical evidence must be introduced to support a finding of mental impairment. The only evidence introduced on the subject was the testimony of respondent and the three witnesses that he called.
The Board specifically recognizes respondent's conduct as being the product of a "personal or emotional problem." There is ample evidence in the record to support a finding that respondent's misconduct stemmed from depression, complicated by substance abuse, and there is sufficient evidence to show that the respondent has made meaningful recovery and that recurrence is unlikely. Respondent testified that as part of his probation he had to report to DePaul Hospital to be evaluated to ascertain if he presented a danger to others. According the respondent, DePaul determined that he was "fine" and released him.[44] He also testified that he received psychiatric treatment in Houston and that the psychiatrist told him that he had suffered through a severe depression that culminated in the incident of July 2, 2001. She said that the incident functioned as a cathartic event, that he was no longer depressed and that he no longer needed her services.[45] In addition to respondent's testimony, Mr. Darden, Ms. Becker and Mr. Zelenka all testified as to respondent's apparent depression prior to the incident and his current, improved mental state. Furthermore, in its brief objecting to the committee's report, the ODC has listed personal problems and interim rehabilitation as applicable mitigating factors.[46]
There are only two attorney discipline cases that are remotely similar. In In re Brown, 95-0817 (La. 5/21/96), 674 So.2d 243, an attorney was formally charged with violating the Rules of Professional Conduct based on her guilty plea to negligent homicide. Ms. Brown shot and killed her partner, Ms. Brenda Gillis, following an argument. Although the Court recognized inconsistencies in Ms. Brown's statement, criminal testimony and testimony during the disciplinary proceedings, it found that at the very least, Ms. Brown brandished a gun in an effort to threaten or scare Ms. Gillis and the gun discharged. In determining that disbarment was the appropriate sanction, the Court emphasized the seriousness of the consequences of Ms. Brown's actions: the loss of the victim's life and the effect on the lives of the victim's family, particularly the victim's minor children. Moreover, the Court recognized the aggravating factor of the vulnerability of the victim and noted the lack of mitigating circumstances relating to the crime itself.
In Estivere, supra, cited by the committee, an attorney was suspended for a year and a day for brandishing a gun and threatening another lawyer. The court noted that the facts were not as egregious as those in Brown, but recognized the clear potential for harm.
In the instant matter, the respondent entered a guilty plea to aggravated assault upon a peace officer with a firearm.[47] His conduct was admittedly serious. Nevertheless, there was no loss of life or other serious injury except to the respondent himself. There were mitigating circumstances relative to the crime, i.e. respondent's emotional state and his motivation to commit suicide.
Considering the facts and circumstances, the seriousness of the offense, the purpose of lawyer discipline, the mitigating factors, and the recommendation of the committee, the Board finds that a two-year suspension from the practice of law is appropriate.
Considering the foregoing, the Board adopts the report of the committee with the minor modifications noted herein and recommends that John Christopher Martin be suspended from the practice of law for a period of two years, retroactive to the date of interim suspension[48] and that he be charged with all costs and expenses of these disciplinary proceedings.
LOUISIANA ATTORNEY DISCIPLINARY BOARD
Donald R. Brown
Reginald R. Brown, Sr.
Dr. Constance C. Dolese
Robert E. Leake, Jr.
Billy R. Pesnell
Christopher H. Riviere
Jack O. Whitehead, Jr.
BY:____________________________________________
JUDY Y. BARRASSO
FOR THE ADJUDICATIVE COMMITTEE
Peter T. Dazzio - Concurs with reason.
[1] A Joint Motion for Interim Suspension by Consent pursuant to Louisiana Supreme Court Rule XIX, §19.3 was filed on October 2, 2001. The Louisiana Supreme Court ordered an interim suspension effective October 24, 2001. In re Martin, 2001-2703 (La. 10/24/01), 799 So.2d 1134.
[2] In fact, respondent is on interim suspension.
[3] ODC exhibit 2; transcript of hearing, p. 137-138.
[4] Respondent exhibit 1.
[5] Stipulations of Fact.
[6] Transcript of hearing p. 92-94.
[7] Id. at p. 102-105.
[8] Id. at p. 105-111.
[9] Id. at p. 112-114.
[10] Id. at p. 103-104.
[11] Id. at p. 118.
[12] Id. at p. 120.
[13] Id. at p. 125-126.
[14] Id. at p. 122-123.
[15] Respondent has continued to make child support payments at a reduced rate. Transcript of hearing, p. 123-124.
[16] Transcript of hearing, at p. 123-124.
[17] Id. at p. 19-20.
[18] Id. at p. 35.
[19] Id. at p. 55-57.
[20] Id. at p. 59 ff.
[21] Id. at pp. 26-33, 42-52, 80-83.
[22]In re Caulfield, 96-1401 (La. 11/25/96); 683 So.2d 714.
[23]In re Hill, 90-DB-004.
[24] A felony is a "serious crime" as defined in Louisiana Supreme Court Rule XIX, sec. 19 B.
[25]Transcript of hearing, pp. 72, 110.
[26] Id. at p. 112-114.
[27] Respondent also testified that he contracted a life-threatening infection while incarcerated at Orleans Parish Prison. He further testified that due to his wounds, he lost the full use of his right hand. Transcript of hearing, p. 115-117.
[28] Mr. Zelenka testified that respondent called him from the scene. According to Zelenka's testimony, respondent sounded hopeless. He told Zelenka that his whole life was over and that he could not go on. Transcript of hearing, p. 60-65. Zelenka's impression was that respondent called him to "say goodbye." Transcript of hearing p. 61. He also testified that during the phone conversation that respondent never expressed an intention to hurt anyone and that it was not respondent's nature to threaten anyone. Transcript of hearing p. 65-66.
[29] ODC offered the testimony of officer Eckert that respondent pulled his gun from his boot rather than retrieving it from his vehicle. Transcript of hearing, p. 141.
[30] In re Quaid, 94-1316 (La. 11/30/94); 646 So.2d 343, 350.
[31] According to the ABA Standards, "knowledge" is the conscious awareness of the nature or attendant circumstances of the conduct but without the conscious objective or purpose to accomplish a particular result. "Intent" is the conscious objective or purpose to accomplish a particular result.
[32] OCD exhibit 1.
[33] In re Marinoff, 2001-2584 (La. 6/7/02), 819 So.2d 305, 312.
[34] See, In re Huddleston, 595 So.2d 1141 (La. 1992), in which an attorney entered a nolo contendere plea in federal court to an indictment charging him with making a false statement on an estate tax return in violation of 26 U.S.C. § 7206(1) (1989). The Court found that Mr. Huddleston's intentional omission of an asset from his wife's estate tax return constituted a serious which reflected on the attorney's fitness to practice law. It found the baseline discipline to be at least a suspension in the range of two to three years. See also, In re Spring, 2001-2515 (La. 11/16/01); 801 So.2d 327, the Supreme Court held that an attorney's failure to pay child support warranted a two-year deferred suspension from the practice of law. The Court stated that although the crime for which Mr. Spring was convicted was a misdemeanor under federal law, it nonetheless, considered the conduct to be a serious offense. The Court concluded that the baseline sanction was a lengthy suspension from the practice of law.
[35] Given the facts and stipulations, arguments can and have been made that other ABA Standards are applicable. While ODC has argued that ABA Standard 7.1 applies, chapter 7.0 addresses a lawyer's violation of duties owed as a professional such as false or misleading communication about the lawyer or the lawyer's services, improper communication of fields of practice, improper solicitation of professional employment from a prospective client, unreasonable or improper fees, unauthorized practice of law, improper withdrawal from representation, or failure to report professional misconduct. That chapter is not particularly applicable. Further, respondent has stipulated to a violation of Rule 8.4(d) (conduct prejudicial to the administration of justice) to which the ABA Standards in the 6.0 series would apply. Chapter 6.0 addresses violations of duties owed to the legal system, such as when a lawyer, intentionally, knowingly or negligently makes a false statement, submits a false document, or improperly withholds material information in a legal proceeding; when a lawyer violates a court order or rule with the intent to obtain a benefit for the lawyer or another; or, when a lawyer attempts to influence a judge, juror, prospective juror or other official by means prohibited by law. Considering the facts, those standards are not particularly pertinent.
[36] Stipulations of Fact.
[37] Although arguably respondent's conduct was selfish (see, transcript of hearing p. 118), in its brief filed in objection to the committee's report, the ODC listed this as an applicable mitigating factor.
[38] Respondent plead guilty to the criminal charges and entered into a joint petition for interim suspension.
[39] See testimony of witnesses Darden, Becker and Zelenka, transcript of hearing at pp. 26-33, 42-52 and 80-83.
[40] Respondent was physically injured and was subjected to criminal penalties, including separation from his children.
[41] See testimony of respondent, transcript of hearing at pp. 113-114, 119.
[42] According to the ABA Standards, mental disability is a mitigating factor when:
(1) there is medical evidence that the respondent is affected by a mental disability;
(2) the mental disability caused the misconduct;
(3) the respondent's recovery from the mental disability is demonstrated by a meaningful and sustained period of successful rehabilitation; and
(4) the recovery arrested the misconduct and recurrence of that misconduct is unlikely.
Direct causation between the disability and the offense must be established. If the offense is proven to be attributable solely to a disability, it should be given the greatest weight. If it is principally responsible for the offense, it should be given very great weight; and if it is a substantial contributing cause of the offense, it should be given great weight.
[43] In re Marinoff, 2001-2584 (La. 6/7/02), 819 So.2d 305; In re Rudman, 791 So.2d 1280, 2001-1644 (La. 6/29/01), 791 So.2d 1280; In re Rudman, 1999-1037 (La. 6/25/99), 738 So.2d 537.
[44] Transcript of hearing, p. 138.
[45] Id. at p. 125-126.
[46] Interim rehabilitation is no longer formally recognized as a mitigating factor in the ABA Standards.
[47] Under La. R.S. 14:37.2, the crime is defined as "an assault committed upon a peace officer who is acting in the course and scope of his duties with a firearm. An "assault" is "an attempt to commit a battery [the intentional use of force or violence upon the person of another], or the intentional placing of another in reasonable apprehension of receiving a battery. La. R.S. 14:33, 14:36. Because it was a first offense, non-capital felony, respondent was allowed to plead guilty under La. Code Crim P. art. 893 which allows respondent to move to have the conviction set aside upon successful completion of his sentence without further criminal conduct.
[48] The committee sought to make the suspension retroactive to July 2, 2001, the date of the criminal incident. There is no precedent for that. However, the Board recommends retroactive application to the date of interim suspension (Oct. 24, 2001). Louisiana Supreme Court Rule XIX , Sec. 24 allows a lawyer who has been placed on interim suspension and is disbarred for the same misconduct to petition for readmission at the expiration of five years from the time of the effective date of the interim suspension. Although the rule does not specifically state that it applies to situations in which the discipline imposed is suspension, the Court has routinely allowed retroactive application in suspension matters. In re Vaughn, 95-0810 (La. 9/25/95), 660 So.2d 1202; In re Beard, 609 So.2d 245 (La. 1992); In re Edwards, 99-1783 (La. 12/17/99), 752 So.2d 801; In re Scott, 2001-1337 (La. 1/15/02), 805 So.2d 137.
CASE NAME: John Christopher Martin DOCKET NO.: 02-DB-036
PANEL: "A" DATE OF PANEL HEARING: August 28, 2003
VOTING ON: CONSENT WITH PANEL'S RECOMMENDATION
CONSENT:
I concur in the two year suspension; however, considering the seriousness of the criminal act and the admitted alcohol and depression problems, I would require medical evidence as to his lack of depression and lack of substance abuse difficulty before granting readmittance.
Baton Rouge, Louisiana, this 20th day of October, 2003.
Peter T. Dazzio