LOUISIANA ATTORNEY DISCIPLINARY BOARD
IN RE: CEDRIC RICHMOND
NUMBER: 06-DB-055
RECOMMENDATION TO THE LOUISIANA SUPREME COURT
This is a disciplinary proceeding based upon the filing of formal charges against Cedric Richmond[1] ("Respondent"), by the Office of Disciplinary Counsel ("ODC"). For the reasons stated below, the Disciplinary Board recommends that Respondent receive a six month suspension, with all but 60 days deferred.
Formal charges, consisting of one count, were filed against Respondent by ODC on September 28, 2006. These charges allege that Respondent violated Rules of Professional Conduct 3.1[2], 3.3[3], and 8.4(c)[4]. In 2005, Respondent qualified as a candidate for New Orleans City Council, District "D". His candidacy was successfully challenged in Landiak v. Richmond.[5] The challenge was based upon Respondent's lack of domicile within District "D" for the requisite two year period.[6] The Formal Charges are based upon Respondent's 2005 Notice of Candidacy qualifying form for New Orleans City Council, District "D"[7], and Respondent's trial testimony concerning his domicile in the civil suit challenging his candidacy[8]. Respondent filed an answer to the Formal Changes on December 7, 2006, denying the allegations.
After two continuances, the hearing was held on September 7, 2007. The hearing committee recommended that Respondent be suspended from the practice of law for a period of one year with six months deferred.
Oral argument was heard before Panel "B" of the Disciplinary Board on November 28, 2007. Deputy Disciplinary Counsel Robert Kennedy appeared on behalf of ODC. Respondent also appeared along with his attorneys, Ernest L. Jones and Lolis Elie.
The Formal Charges filed on September 28, 2006, read, in pertinent part:
In the course of seeking election to the New Orleans City Council in April 2005, the respondent, Cedric Richmond filed into the public record a "Notice of Candidacy" form with the Louisiana Secretary of State, in which he swore under oath and penalty of perjury that he had been domiciled on Lomond Road in New Orleans City Council District "D" for two years prior to the September 2005[9] election. At the time he made this sworn declaration respondent knew and understood that any such statement was materially false; inasmuch as he had similarly sworn in a September 2003[10] "Notice of Candidacy" form filed in connection with his earlier candidacy for the Louisiana State House of Representatives that his domicile was on Eastview Drive situated in New Orleans City Council District "E."
When a corresponding court challenge to his candidacy for the City Council District "D" vacancy arose, the respondent answered the lawsuit by claiming both in pleadings filed in Orleans civil district court and in his oral testimony to the trial judge that his place of domicile had been the Lomond Road address for at least two years prior to the upcoming election. At the time he made such statements, the respondent knew and understood that this testimony and allegations in pleadings were knowingly and materially false.
Although the trial court upheld respondent's candidacy, on review the Louisiana Supreme Court reversed the trial court and disqualified respondent from seeking the City Council position in District "D." In the course of rendering its decision, the Louisiana Supreme Court made an express factual finding that respondent had not been domiciled in District "D" for the requisite two-year period as he had sworn.
By his actions, respondent has violated RPC 3.1 (meritorious claims and contentions), 3.3 (candor towards a tribunal), and 8.4 (c) (conduct involving dishonesty, fraud, deceit and misrepresentation).
The hearing committee filed its report on September 21, 2007. In its report, the committee made the following factual findings:
1) The findings regarding the relevant facts are largely set forth in Landiak v. Richmond.[11] The parties have stipulated that "the findings of fact . . . expressed by the Louisiana Supreme Court in the case of Landiak v. Richmond, et al. . . are controlling . . . ."[12]
2) The documents submitted by ODC underlying its case are not disputed by Respondent. Respondent conceded that he signed the 2005 Notice of Candidacy[13] and the 2003 Notice of Candidacy[14]. He also admits that he signed both under oath and representing that, "I have read this Notice of Candidacy; and all of the statements contained in it are true and correct."[15] The documents, however, cannot be factually reconciled, which Respondent conceded in his testimony before the committee.
3) In the 2003 Notice of Candidacy for State Representative, 101st Representative District, Respondent attested that his "domicile address" is 4809 Eastview Drive, New Orleans, Louisiana.[16] This Notice is dated August 19, 2003. However, in his 2005 Notice of Candidacy for Councilmember, District D, Respondent attested that he was domiciled at 8701 Lomond Road, New Orleans, Louisiana.[17] (The 4809 Eastview Dr. address is not located in District "D".) The 2005 Notice is dated February 11, 2005. Respondent conceded in his testimony before the committee that he understood he was representing in his 2005 Notice of Candidacy that he had been domiciled at 8701 Lomond Road for at least 2 years prior to his submission of the Notice. Respondent also conceded in his testimony that he was aware of the two year domicile requirement of New Orleans Home Rule Charter (§3-104) for running for the council seat as of the time he signed the 2005 Notice of Candidacy.
4) Factually, therefore, it is incontrovertible that, read together, and disregarding any other evidence, Respondent represented under oath that he was domiciled and/or residing at both locations from at least February 11, 2003 - August 19, 2003 (the overlapping time periods). Respondent conceded in his testimony before the committee that the forms could not be reconciled. Despite his assertion that he resided at both addresses, his testimony at trial suggested, on one occasion, that he had never resided anywhere but Lomond except while away at college.[18]
5) Counsel for Respondent correctly argued that while the conflict in documents was clear, the real issue was Respondent's intent and whether he intended to misrepresent and falsify his domicile.
6) Respondent's explanations for the different addresses indicated as his domicile in the forms seemed to vary. He initially testified that it was not clear to him that the Notice of Candidacy forms requested his "domicile," but rather, insisted that the clerk simply asked where he was registered to vote and filled in that address as his domicile without his knowledge.[19] Indeed Respondent repeatedly testified at trial that he is not sure he ever noticed that "domicile" was requested on any of the Notice of Candidacy forms he ever signed under oath.[20] At the hearing, this was his explanation for listing 4809 Eastview Drive on the 2003 Notice of Candidacy. At the civil trial, however, Respondent testified that in his mind the Eastview and Lomond Street addresses were interchangeable and he used either as convenience dictated.[21] When this testimony was repeated before the committee, the committee did not find it to be believable. If this testimony were believed, Respondent would be suggesting that (a) he never saw the reference to "domicile" on the 1997, 2000 or 2003 Notice of Candidacy forms; (b) he did not understand the difference between domicile and residence[22]; or (c) he somehow believed no declaration of domicile was required on the qualifying form. None of these assertions are believable.
7) Respondent, in his testimony before the committee, revealed that he also had submitted a Notice of Candidacy in 1997 or 1998 to run for City Council, District "E". This is a different district than the one he sought to qualify for in 2005. He testified to the committee that he withdrew his 1997 candidacy after learning that the Lomond address, where he says he was domiciled, was not in District "E". But the actual facts, according to the Supreme Court decision and the trial transcript, are that in 1997 Respondent qualified to run for District "E" indicating his domicile was 4809 Eastview (not 8701 Lomond).[23] If his testimony is accurate and he withdrew because he was not domiciled in District "E", it can only be because 4809 Eastview, which he indicated was his domicile, was not in District "E",[24] or because he had not been domiciled there for two years[25]. Regardless of the accuracy of his recollection, this testimony made it clear that long before 2003, Respondent was well aware that public offices had domiciliary requirements and that proper and accurate domicile had to be indicated on the qualifying forms.
8) In specific reference to the domicile qualifications for the City Council, District "D" seat in 2005, Respondent testified that he was aware of the required qualifications for office before filing his 2005 Notice of Candidacy. He also revealed that prior to filing that 2005 Notice of Candidacy[26] he was made aware that some voters were questioning if he was in fact domiciled in District "D". (He had made it known that he would run for the office before filing the necessary qualifying papers). As a result of this concern, he testified before the committee that he sought legal advice on the domicile issue and also relied upon his own knowledge from prior research. (He did not bring this up at the civil trial.) Consequently, it is very clear that prior to executing the 2005 Notice of Candidacy, Respondent was well aware that his domicile (i.e., Lomond or Eastview) might be an issue. So with full knowledge of the domicile requirements, he signed and submitted the 2005 Notice of Candidacy indicating that 8701 Lomond Road was his "domicile" and had been so for two years prior.
9) Respondent attested that 8701 Lomond Road had been his "domicile" for at least two years prior to February 11, 2005 despite a myriad of contradictory prior representations which he had made (or had been made on his behalf), including but not limited to: (a) various "Candidates Reports" filed by the treasurer of his state legislature campaigns (dated September 2, 2003, November 5, 2003 and March 8, 2004) indicating that his address was 4809 Eastview;[27] (b) the registration of three vehicles listing 4809 Eastview as his mailing address through May 28, 2004; (c) Homestead Exemption applications on his behalf from 1996-2004 for the Eastview Drive property; and (d) a telephone listing in 2003, 2004 and 2005 in his name at Eastview Drive.
10) The committee reached the same conclusion as the Supreme Court: The objective, documentary evidence in this case clearly contradicts Respondent's testimony that he changed his domicile back to his family home at 8701 Lomond Road in early 2003.[28]
11) Respondent was a pleasant and cooperative witness at the hearing. His testimony, however, concerning the Notice of Candidacy forms and his domicile was not believable. It appeared to vary to fit the circumstances, and in each case, exonerated him of responsibility.
In light of the district court opinion and the Court of Appeal opinion in the Landiak case, the hearing committee was constrained to conclude it could not find a violation of Rule 3.1.
As to Rule 3.3 and Rule 8.4(c), the critical issue is whether ODC had carried its burden of proving that Respondent had the necessary animus required to violate these rules. The standard for proving a "knowing" violation was set forth in In re Landry[29], wherein, discussing rules 3.3 and 8.4 and false affidavits, the court held that "knew or should have known" satisfies the requirement.
In this case, unlike Landry or In re Bruno[30], Respondent has not admitted that he filed false affidavits or knowingly violated a rule. So it was left to the committee to determine his intent, as in In re Porter[31]. Based upon the facts outlined and the credibility determination, the hearing committee concluded that Respondent was aware of the domicile requirements each time he qualified for office and that he knowingly filed sworn statements reflecting a domicile in the 2005 council race which most fitted his need at the time but which was not accurate, in violation of Rule 3.3 and Rule 8.4(c).
The hearing committee did not specifically list any mitigating or aggravating factors pursuant to Rule XIX, §10. However, from a review of the hearing committee's report, it appears that it found the following mitigating and aggravating factors to be present. In aggravation, Respondent: 1) refused to acknowledge wrongful nature of conduct[32] and 2) had a dishonest or selfish motive[33]. In mitigation, Respondent had a cooperative attitude toward the disciplinary proceedings.
After considering the documentary evidence and the testimony, the hearing committee recommended that Respondent be suspended for one year with six months of the suspension deferred.
The powers and duties of the Disciplinary Board are defined in §10 of the 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." Arceneaux v. Domingue, 365 So. 2d 1330 (La. 1978); Rosell v. ESCO, 549 So. 2d 840 (La. 1989). The Board conducts a de novo review of the hearing committee's application of the Rules of Professional Conduct. In re Hill, 90-DB-004.
Here, a review of the hearing committee's findings of fact reveals that they are not manifestly erroneous. De novo review of the committee's application of the Rules of Professional Conduct shows that the hearing committee correctly found that Respondent had violated Rules 3.3 and 8.4(c) as alleged in the Formal Charges. Moreover, the hearing committee correctly found that a Rule 3.1 violation was not present. Each rule is addressed below:
Rule 3.3: Rule 3.3 holds that a lawyer shall not make a false statement of fact or law to a tribunal. In the 2005 candidacy form, Respondent swore that he was domiciled at 8701 Lomond for the requisite two years prior to the April 20, 2005, election date. However, in the 2003 candidacy form, Respondent swore on August 19, 2003, that he was domiciled at 4809 Eastview. Therefore, the statement of domicile in the 2005 candidacy form was false. The documentary evidence and testimony indicates that this false statement was made knowingly. The Board finds a violation of this Rule.
Rule 8.4(c): Rule 8.4(c) holds that is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit, or misrepresentation. Respondent engaged in such conduct when he knowingly made the false statement of domicile in the 2005 candidacy form and when he refused to withdraw his candidacy, requiring a contentious and expensive court battle. Therefore, the Board finds a violation of this Rule.
Rule 3.1: Rule 3.1 holds that a lawyer shall not make a frivolous defense is a lawsuit. Respondent defended the lawsuit challenging his candidacy by asserting his intent to be domiciled at 8701 Lomond. Although the Supreme Court ultimately ruled against Respondent based on the documentary evidence, the Court's discussion of the applicable legal principles indicates that "intent" is an element of determining where a party is domiciled.[34] Therefore, Respondent's testimony in the civil trial as to his intent to be domiciled at 8701 Lomond cannot be considered a frivolous defense in violation of Rule 3.1. The Board adopts the finding of the hearing committee that this rule was not violated.
Furthermore, the Board points out that in its role as an appellate body, it did not have the opportunity to see the witnesses testify. Rather, in this disciplinary system, the hearing committee occupies the role of trier of fact. In this instance, the hearing committee determined that, based on the facts and testimony presented at the hearing, Respondent's conduct was done knowingly. Under the manifest-error standard, as long as the hearing committee's finding of fact is reasonable in light of the record in its entirety, the Board may not reverse the finding even if convinced that it would have reached a different result if it had been sitting as the trier of fact. Where there are two permissible views of the evidence, the fact finders choice between them cannot be manifestly erroneous. Rosell v. Esco, 549 So.2d 840, 844 (La. 1989).
The Board cannot find anything manifestly erroneous with the hearing committee's findings of fact and, therefore, is constrained to accept them.
Louisiana Supreme Court Rule XIX, §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.
Here, Respondent has violated his duties owed to the public and the legal system. Respondent acted knowingly.
The Board finds that the following aggravating factors are present: 1) refusal to acknowledge wrongful nature of conduct; and 2) dishonest or selfish motive.
The Board finds that the following mitigating factors are present: 1) cooperative attitude toward proceeding; 2) absence of a prior disciplinary record[35]; and 3) inexperience in the practice of law[36].
In imposing a sanction, the Board is guided by the ABA Standards for Imposing Lawyer Sanctions, Standards 6.12 and 5.22. Standard 6.12 states:
Suspension is generally appropriate when a lawyer knows that false statements or documents are being submitted to the court or that material information is improperly being withheld, and takes no remedial action, and causes injury or potential injury to a party to the legal proceeding, or causes an adverse or potentially adverse effect on the legal proceeding.
Standard 5.22 states:
Suspension is generally appropriate when a lawyer in an official or governmental position knowingly fails to follow proper procedures or rules, and causes injury or potential injury to a party or to the integrity of the legal process.
Here, Respondent made a false statement in an affidavit when he signed the 2005 Notice of Candidacy form. In that form, he stated that he was domiciled at 8701 Lomond St., but the testimony and documentary evidence shows otherwise. Respondent refused to acknowledge or correct this misrepresentation during the civil trial that challenged his candidacy. Rather, he tried to place the blame on other parties or twisted his testimony to suit the circumstances. Furthermore, Respondent is an elected official, representing the 101st legislative district in the Louisiana House of Representatives. He refused to acknowledge the qualifying rules regarding domicile in the election for New Orleans City Council, District "D". The resulting civil trial challenging Respondent's candidacy burdened the legal system unnecessarily. Respondent's conduct falls squarely within the scope of standards listed above, which recommend suspension from the practice of law. However, the Board feels that the period of suspension imposed by the hearing committee, one year with 6 months deferred, is too harsh given the facts of this case.
In deciding on the length of the suspension, the Board is guided by similar case law. In In re: Landry[37], the Court imposed a 6 month suspension, with all but 30 days deferred, on the respondent who filed false affidavits with a court, in violation of Rules 3.3 and 8.4(c)&(d). The respondent had his secretaries sign affidavits of death and heirship, knowing that they did not have the requisite knowledge of the decedent to do so. The Court considered several mitigating factors in imposing a sanction, which included remorse, lack of an improper motive, and inexperience in the practice of law. There were no aggravating factors present.
In In re: Porter[38], the Court suspended the respondent for one year for abandoning his clients without notice and falsely notarizing a signature on an affidavit verifying a petition. The respondent notarized an affidavit verifying a petition, which was purportedly signed by one of the plaintiffs, but was not. Rather, it was signed by the plaintiff's husband. The respondent violated, among others, Rules 3.3 and 8.4(a)(c)&(d). In concluding the one year suspension was appropriate, the Court gave consideration to three mitigating factors[39] and two aggravating factors[40].
In In re: Warner[41], the Court suspended the respondent for one year and one day for acting with fraudulent intent when directing the daughter of the decedent, who was a client of the respondent in a personal injury action, to sign her deceased father's name on a release and a settlement check. In determining the sanction, the Court gave weight to the fact that the respondent had a prior disciplinary history for similar conduct and the respondent's dishonest/selfish motive.
Like the above cases, Respondent is guilty of knowingly making false statements in notarized affidavits. However, the present matter presents a unique situation because, unlike the cited cases, Respondent's misconduct did not occur in the course of representing clients. Rather, his misconduct involved knowingly making false sworn statements in the public record, which resulted in a contentious court battle. Therefore, Respondent's conduct caused no harm to a client. However, Respondent is public official and was a public official at the time of the misconduct.[42] In In re Bankston, the Court held that public officials are held to a higher standard of conduct:
While we recognize several mitigating factors are present in this case, we find respondent's actions are particularly egregious because they occurred while he was a state senator. This court has held an attorney occupying a position of public trust is held to even a higher standard of conduct than an ordinary attorney.[43]
Given the facts, testimony, and above case law, the Board feels that the sanction imposed by the hearing committee is too harsh. The Board analogizes the facts of this case with those of Landry, discussed above. However, given the Bankston standard, the Board feels constrained to impose a harsher sanction than that imposed in Landry. Therefore, the Board recommends that Respondent be suspended from the practice of law for 6 months, with all but 60 days deferred.
The Board adopts the findings of fact and conclusions of the hearing committee. However, the Board feels that the sanction recommended by the hearing committee is too harsh. Therefore, the Board recommends that Respondent be suspended for 6 months, with all but 60 days deferred.
The Board recommends that Respondent, Cedric Richmond, be suspended from the practice of law for 6 months, with all but 60 days deferred. The Board also recommends that Respondent be assessed with all costs and expenses of these proceedings, pursuant to Rule XIX, §10.1.
LOUISIANA ATTORNEY DISCIPLINARY BOARD
William D. Aaron, Jr.
Lev M. Dawson
Dow M. Edwards
Christopher H. Riviere
BY:____________________________________________
Joseph R. Ward, Jr.
FOR THE ADJUDICATIVE COMMITTEE
Dennis W. Hennen – Dissents with reasons.
Charles C. Beard, Jr. – Dissents with reasons.
Linda P. Spain – Dissents with reasons.
Michael S. Walsh – Dissents with reasons.
[1] Currently, Respondent represents the 101st Legislative District in the Louisiana House of Representatives. He has held this office since 1999.
[2] The applicable version of Rule 3.1 provides, in pertinent part:
A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law. A lawyer for the defendant in a criminal proceeding, or the respondent in a proceeding that could result in incarceration, may nevertheless so defend the proceeding as to require that every element of the case be established.
[3] The applicable version of Rule 3.3 provides, in pertinent part:
A lawyer shall not knowingly:
(1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer.
[4] The applicable version of Rule 8.4(c) provides, in pertinent part:
It is professional misconduct for a lawyer to:
(c) Engage in conduct involving dishonesty, fraud, deceit or misrepresentation.
[5] 899 So. 2d 535 (La. 2005).
[6] Pursuant to New Orleans Home Rule Charter §3-104, a candidate must be domiciled in the district for two years prior to the election.
[7] ODC Exhibit 8.
[8] ODC Exhibit 10.
[9] The Formal Charges mistakenly stated that the election was to be held in September. The election date for Councilmember "D" was April 2, 2005. This error does not alter the formal charges against or the misconduct of Respondent.
[10] The Formal Charges mistakenly stated that Respondent signed the 2003 "Notice of Candidacy" form in September of 2003. In fact, this 2003 form was signed by Respondent on August 19, 2003. See ODC Exhibit 8. This error does not alter the formal charges against or the misconduct of Respondent.
[11] 899 So. 2d 535 (La. 2005).
[12] Joint Exhibit 1, Stipulation No. 1.
[13] ODC Exhibit 8.
[14] Id.
[15] ODC Exhibit 8 & 10.
[16] ODC Exhibit 8, Bates 116.
[17] ODC Exhibit 8, Bates 100.
[18] ODC Exhibit 10, Bates 284 (p. 064).
[19] ODC Exhibit 10, Bates 292-294, (pp. 172-174).
[20] ODC Exhibit 10, bates 306 (p. 188); bates 311 (p. 191); bates 345 (p. 225).
[21] ODC Exhibit 10, Bates 297 (p. 177).
[22] He specifically testified at the trial that he did understand the difference between residency and domicile. ODC Exhibit 10, Bates 306 (p. 186).
[23] ODC Exhibit 10, Bates 320 (p. 200).
[24] See page 546 of Supreme Court decision, ODC Exhibit 2.
[25] ODC Exhibit 10, Bates 344 (p. 224).
[26] ODC Exhibit 8, Bates 100.
[27] It is important to note that the 4809 Eastview address and the 8701 Lomond address are both located in the 101st state legislative district, which Respondent represents. Therefore, Respondent or his campaign treasurer could have listed either address. However, the 4809 Eastview address was listed.
[28] Landiak v. Richmond, 899 So. 2d 535, 549 (La. 2005).
[29] 934 So.2d 694 (La. 2006).
[30] 956 So. 2d 577 (La. 2007).
[31] 930 So. 2d 875 (La. 2006).
[32] The hearing committee noted that Respondent never acknowledged any misrepresentations or false statements in any of his testimony and/or documents. Rather, he repeatedly tried to shift the blame to others. Furthermore, the hearing committee was troubled to learn that after the Supreme Court's decision in Landiak, counsel for Ms. Landiak had the court costs certified by the clerk and repeatedly sought, unsuccessfully, to have Respondent pay these costs. Respondent did not contradict this.
[33] In its report, the hearing committee stated several times that Respondent's testimony was not believable.
[34] Landiak at 543-544.
[35] However, Respondent has had two brief periods of ineligibility for failure to meet MCLE requirements – 7/26/01 to 9/28/01 and 7/27/06 to 8/16/06.
[36] Respondent was admitted on October 9, 1998, and had been practicing approximately 6 years at the time of the misconduct.
[37] 934 So. 2d 694 (La. 2006).
[38] 930 So. 2d 875 (La. 2006).
[39] 1) no prior disciplinary record; 2) inexperience in the practice of law; and 3) remorse.
[40] 1) multiple offenses; and 2) vulnerability of the victims.
[41] 851 So. 2d 1029 (La. 2003).
[42] As noted above, Respondent has been a state representative since 1999.
[43] In re: Bankston, 810 So. 2d 1113, 1117 (La. 2002).
LOUISIANA ATTORNEY DISCIPLINARY BOARD
IN RE: CEDRIC RICHMOND
NUMBER: 06-DB-055
DISSENT
This respondent, who is also a state legislator, lied under oath in front of a tribunal as defined by the Rules of Professional Responsibility. This determination was made by the Supreme Court in the matter: Landiak v. Richmond 899 So. 2d 535 (La. 2005) as follows:
…we stated that "[w]here documents or objective evidence so contradict the witness's story, or the story itself is so internally inconsistent or implausible on its face, that a reasonable fact finder would not credit the witness's story, the court of appeal may well find manifest error or clear wrongness even in a finding purportedly based upon a credibility determination." Id. Recently, we clarified that principle, stating as follows:
There is no legitimate conflict in testimony where documents or objective evidence so contradict the witness's story, or the story presented by the witness is so internally inconsistent or implausible on its face, that a reasonable fact-finder could not give credence to the **20 witness's testimony. Faced with such circumstances, the court of appeal may find manifest error or clear wrongness even in a finding purportedly based upon a credibility determination.
Henderson v. Nissan Motor Corp., 2003-606 (La.2/6/04), 869 So.2d 62, 68-69 (internal citations to Stobart, 617 So.2d 880, 882, omitted).
The objective, documentary evidence in this case clearly contradicts Mr. Richmond's testimony that he changed his domicile back to his family home at 8701 Lomond Road in early 2003 (not just took up residence partially from January 2003 through April 2005), and this is so regardless of whether he lived alternately in two residences.
This finding is based principally on two matters. First, records submitted in evidence indicate that Mr. Richmond continued to claim a Louisiana Homestead Exemption on 4809 Eastview Drive through the end of 2004. According to La.Rev.Stat. 47:1703(B), the status of real property in Orleans Parish for homestead exemption purposes on the first day of August of each year "shall determine its ... exemption from taxation for the following calendar year." That being the case, Mr. Richmond's act of signing the 2004 Homestead Exemption Application form is strong evidence that he continued to consider 4809 Eastview Drive his domicile at least through August 1, 2003.
Second, and perhaps even more importantly, Mr. Richmond certified in his sworn, notarized "Notice of Candidacy" for election to the office of State Representative, 101st Representative District, filed on September 19, 2003, that his "domicile address" was 4809 Eastview Drive. Mr. Richmond's September 19, 2003, statement under oath is positive proof of his intent concerning domicile on that date. Those two pieces of evidence clearly show that Mr. Richmond continued to consider the 4809 Eastview Drive address as his "principal establishment" at least through September 9, 2003
Landiak v. Richmond 899 So.2d 535, *549, 2005-0758 (La. 3/24/05 (La.,2005)
In the context of this disciplinary proceeding, Respondent has consistently argued that the above determination by the Supreme Court was incorrect and that he did nothing wrong. He has refused to acknowledge his wrongful conduct and to accept responsibility for it. He has expressed no remorse.
This respondent's conduct in the disciplinary proceedings has brought into question his integrity and fitness to practice law. This respondent lied under oath and has yet to express remorse or admit he lied. Neither the discipline recommended by the Hearing Committee nor the discipline recommended by the majority of the Disciplinary Board is sufficient to remedy this core issue of integrity and fitness to practice. Should respondent maintain this position through the Supreme Court level, it is our recommendation that his suspension be for a year and a day requiring these specific issues of fitness and integrity be directly addressed during the readmission process.
The Board majority relies upon In re: Landry, 934 So.2d 694 (La. 2006) to justify imposing a six month suspension with all but sixty days deferred. However, the facts of this matter are distinguishable and constitute more egregious conduct than the facts present in Landry. In Landry, the respondent was suspended for six months, with all but 30 days deferred, for filing false affidavits with a court in violation of Rules of Professional Conduct 3.3, 8.4(c), and 8.4(d). The respondent in Landry had his secretaries sign affidavits of death and heirship, knowing that they did not have the requisite knowledge of the decedent to do so. The Court considered several mitigating factors in imposing a sanction, which included remorse, lack of an improper motive, and inexperience in the practice of law. There were no aggravating factors present.
The present case is distinguishable from Landry. First, Mr. Richmond actually lied under oath in a sworn affidavit as opposed to filing affidavits that contained false statements of others, as in Landry. Second, Mr. Richmond had a dishonest and selfish motive in lying under oath. The respondent in Landry had no such motive. Third, Mr. Richmond knowingly tried to subvert the electoral process by his misconduct. These actions caused a significant stress on the legal system, in the form of a contentious court battle, which required the involvement of the Louisiana Supreme Court. Finally, Mr. Richmond is a public official and was a public official at the time of the misconduct, thus, the Supreme Court holds him to a higher level of conduct than other lawyers who are not in a position of public trust. In re Bankston 810 So.2d 1113, *1117, 2001-2780 (La. 3/8/02 (La.,2002). Public officials should be above reproach.
In In re: Bailey 848 So. 2d 530 (La. 2003), the respondent was suspended for two years for two counts of misconduct that involved lying and falsifying evidence before a court. In the first count, the respondent stated in a motion for a continuance that he could not attended a rule hearing because he had trial scheduled in Texas. The judge verified with the court in Texas that the respondent did not have a trial scheduled that conflicted with the rule hearing. The Court determined that his conduct violated Rules 3.3(a)(l), 8.4(a), 8.4(c), and 8.4(d). In the second count, the respondent filed an altered medical report in a personal injury matter. The Court determined that this conduct violated Rules 3.3(a)(4)4, 3.4(a), 8.4(a), 8.4(c), and 8.4(d). The Court found as an aggravating factor, among others, that the respondent refused to acknowledge the wrongful nature of his conduct. In mitigation, the Court noted that the respondent did not have a prior disciplinary record.
We feel that Mr. Richmond's conduct is more similar to the misconduct in Bailey than in Landry. Mr. Richmond lied under oath in a sworn affidavit and allowed that falsity to be perpetuated at the trial challenging his candidacy. Mr. Richmond refuses to acknowledge the wrongful nature of this misconduct. However, Mr. Richmond's case does not warrant a sanction as harsh as the one imposed in Bailey because his case does not involve multiple counts. However, Mr. Richmond deserves a sanction closer to the one imposed in Bailey than the one imposed in Landry.
Without an expression of remorse, we feel Mr. Richmond should be suspended for a year and a day and that the specific issues of fitness to practice and integrity should be addressed in the readmission process.
Respectfully submitted,
Charles C. Beard, Jr.
Dennis W. Hennen
Linda P. Spain
Michael S. Walsh
BY:________________________________________
Dennis W. Hennen
FOR THE DISSENTING MEMBERS