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LOUISIANA ATTORNEY DISCIPLINARY BOARD
IN RE: ROBERT E. CLARK
NUMBER: 08-DB-034

RECOMMENDATION TO THE LOUISIANA SUPREME COURT
This is a disciplinary proceeding based on the filing of formal charges against the Respondent, Robert E. Clark, by the Office of Disciplinary Counsel (“ODC”). The Respondent is currently eligible to practice law in Louisiana. For reasons stated below, the Disciplinary Board recommends that the Respondent be suspended from the practice of law for two years, with credit for the time he served under his prior interim suspension order applied to this term of suspension. The Disciplinary Board also recommends that the Respondent be assessed with all costs and expenses of these proceedings. PROCEDURAL HISTORY
Formal charges, consisting of one count, were filed by ODC against the Respondent on March 20, 2008. In the charges, ODC alleges that the Respondent violated Rules of Professional Conduct 8.4(a) and 8.4(b) in connection with, among 1 As the formal charges more fully explain, on June 22, 2007, the Louisiana Supreme Court ordered that the Respondent be suspended from the practice of law on an interim basis based upon the misconduct at issue. The Court further ordered that Respondent show cause before a hearing committee as to why the Court should not maintain the interim suspension. See In Re Clark, 07-B-1221 (La. 6/22/07); ODC Exhibit 22. A hearing was held on July 23, 2007, and on August 2, 2007, the hearing committee recommended that the interim suspension be dissolved. One member dissented, stating that the interim suspension should be maintained. See In re Clark, 08-DB-034, Formal Charges filed on March 20, 2008. On August 29, 2007, the Court issued an order requiring that Respondent undergo a substance abuse evaluation. The Court further ordered that the interim suspension “shall remain in effect pending further orders of the [the Court].” See In re Clark, 07-B-1221 (La. 8/29/07); ODC Exhibit 23. The results of the substance abuse evaluation were filed with the Court in December 2007. On January 9, 2008, the Court ordered that the interim suspension order be dissolved. See In re Clark, 07-B-1221 (La. 1/9/08); ODC Exhibit 24. 2 Rule 8.4 is entitled “Misconduct” and reads, in pertinent part, that: It is professional misconduct for a lawyer to: other things, his criminal conduct and admission to purchasing and using marijuana on a regular basis from 1994 until the time of his arrest on January 13, 2007. The formal charges were served on the Respondent, via certified mail, through his counsel, Leslie J. Schiff, on March 26, 2008. The charges were also served on the Respondent, via certified mail, at his primary registration address on March 25, 2008. Respondent filed an answer to the formal charges on April 14, 2008. In his answer, Respondent admits that he commenced using marijuana in 1994 shortly after being diagnosed with glaucoma. Respondent further maintains that the marijuana use was personal and limited to weekend use for medicinal purposes only. Respondent claims he has terminated the use of the marijuana since January of 2007. He also claims that as a result of an illegal entrapment, he gave a ¼ ounce bag of marijuana to a friend of eighteen years who also happened to be his client. Respondent concedes that he should be sanctioned for his misconduct. However, he believes that his time served in his previous interim suspension of six months, seventeen days, is a sufficient sanction for the misconduct and that any further sanction would be too severe. (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; (b) Commit a criminal act especially one that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects. 3 Respondent was arrested for and charged with distribution of Schedule I CDS (marijuana), possession with intent to distribute Schedule I CDS (marijuana), possession of drug paraphernalia, and possession of Schedule II CDS (cocaine). Respondent was subsequently released from jail on a $40,000 bond. The district attorney for Catahoula and Concordia Parishes later advised ODC that his office did not accept the matter for prosecution. In proceeding with the formal charges, ODC relies on jurisprudence from the Louisiana Supreme Court which states that the decision on whether an attorney has engaged in unethical acts involving criminal conduct centers around the facts of the attorney’s conduct and not whether the attorney has been criminally charged. In re Donnan, 2001-3058 (La. 1/10/03); 838 So.2d 715. A hearing before Hearing Committee Number 20 was set by the Board Administrator’s Office for June 27, 2008. The Respondent’s Pre-Hearing Memorandum was filed on June 17, 2008. ODC filed its Pre-Hearing Memorandum on June 27, 2008. The hearing was held as scheduled in Lafayette, Louisiana. The hearing was recessed and left open in order for the deposition of a witness, Dennis Roberts, to be taken. This deposition commenced on July 11, 2008, but was not completed. Mr. Roberts left the deposition without answering all of Mr. Schiff’s questions posed to him. Thereafter, on August 6, 2008, Respondent filed a Motion to Exclude the Deposition of Mr. Roberts due to its lack of completeness. ODC filed a Response to Respondent’s Motion to Exclude Deposition on August 14, 2008. ODC argued that Mr. Roberts was justified in refusing to answer the questions posed to him by Mr. Schiff. ODC further maintained that the deposition should be considered by the hearing committee, or alternatively, that the deposition should be reconvened to allow Mr. Roberts’ testimony to be taken under the supervision of the hearing committee. On August 18, 2008, the Respondent filed a Rebuttal Memorandum to ODC’s Response, again urging that the deposition be excluded from evidence. By minute entry of August 15, 2008, the hearing committee denied the Respondent’s Motion to Exclude and admitted the deposition into On August 25, 2008, the Respondent filed his Post-Hearing Memorandum. ODC filed its Post-Hearing Memorandum on August 27, 2008. The hearing committee issued its report on January 12, 2009. In its report, the committee found that the Respondent had violated Rules of Professional Conduct 8.4(a) and 8.4(b) and recommended that the minimum sanction in this matter be a suspension of one year and one day. The committee also recommended that the Respondent maintain compliance with his five year recovery agreement with the Lawyer’s Assistance Program and that he pay all costs The Respondent filed an Objection to the Recommendation of the Hearing Committee on January 22, 2009. In this pleading, the Respondent argues, among other things, that the recommended sanction is excessive and should be reduced to six months and nineteen days, the amount of time he was suspended under his previous interim suspension order. ODC filed its Brief to the Disciplinary Board on February 27, 2009. ODC maintains, among other things, that additional findings of facts should be made by the Board and that the sanction imposed by the hearing committee is too lenient. Instead, ODC argues that a three year suspension, with credit for time served during Respondent’s interim suspension, is warranted in this matter. The Respondent filed a Memorandum to the Disciplinary Board on March 6, 2009, again urging that his sanction should be only the time served under his previous interim suspension order. ODC filed a Reply Brief to the Office of Disciplinary Counsel on March 9, 2009. Oral argument before Panel “C” of the Disciplinary Board was held on March 26, 2009. Deputy Disciplinary Counsel Rodney B. Hastings appeared on behalf of ODC. The Respondent and his counsel, Mr. Schiff, also appeared. THE FORMAL CHARGES
The formal charges in this matter read, in pertinent part, as follows: 4 The Respondent argues at one point that his suspension ran for six months, seventeen days, and at another point that his suspension ran for six months, nineteen days. The Board’s calculations show that Respondent actually was suspended for six months, seventeen days. On January 13, 2007, following his arrest for possession of cocaine, an informant advised the Adams County (Miss.) Sheriff’s Department that he could arrange to receive marijuana from Robert E Clark, an attorney who resides in Vidalia, Louisiana. The matter was referred to the Concordia Parish Narcotics Task Force. The Task Force arranged for the informant to contact Clark and arrange to receive marijuana from Clark at Clark's residence. Upon arrival at Clark's residence, the informant spoke with Clark outside the residence. Respondent then delivered a Zip-loc "baggie" containing one-half ounce of marijuana to the informant. At that point, members of the Task Force interceded and took both Clark and the informant into custody. Following a protective sweep of the residence, the Task Force obtained a search warrant for Clark's residence. The search of Clark's residence revealed 7.5 ounces of marijuana on the premises. The marijuana was packaged in various amounts and stored in Zip-loc bags. A variety of drug paraphernalia, some with residual amounts of cocaine and marijuana, was also located in the residence. The Task Force also discovered the following items: (1) a bottle containing the prescription drug Xanax; (2) three doses of chlorozosanone (a muscle relaxant) in an unmarked bottle; and (3) a small amount of white powder, which field-tested positive for cocaine. Clark was arrested and charged with distribution of Schedule I CDS (marijuana), possession with intent to distribute Schedule I CDS (marijuana), possession of drug paraphernalia, and possession of Schedule II CDS (cocaine). Clark was subsequently released on a $40,000 bond. On June 8, 2007, the Office of Disciplinary Counsel filed a Petition for Interim Suspension for threat of harm. By order dated June 22, 2007, the Louisiana Supreme Court ordered that Clark be suspended from the practice of law on an interim basis. The Court further ordered that Clark show cause before a hearing committee appointed by the Disciplinary Board why the Court should not maintain the interim suspension. On July 20, 2007, following a hearing on motions to suppress the evidence and to quash the search warrant filed with the 7th Judicial District Court, the marijuana, as well as the other drugs and paraphernalia, seized in the search of Respondent's home subsequent to his arrest was ordered suppressed for use in connection with criminal proceedings against Clark in 5 ODC refers to this drug as “chlorozosanone,” while ODC Exhibit 3 (Return of Search Warrant) refers to the drug as “chlorozoxanone.” The correct spelling of the drug is “chlorzoxazone.” Concordia Parish under docket numbers 07-0062, 07-0063, 07-0064, and 07-0065. However, the Zip-loc "baggie" given to the informant by Clark was not among the items ordered suppressed by the trial court. On July 23, 2007, the interim suspension hearing ordered by the Supreme Court was conducted. At that hearing, Respondent testified that he began to use marijuana, a controlled dangerous substance, beginning in 1994. Respondent's further testified that his use of marijuana was unabated until his arrest in January 2007. Respondent further admitted that he purchased marijuana in an undisclosed bulk amount at least once a year for the past twelve years. On August 2, 2007, the hearing committee filed its report and recommendation with the Court. Two members of the committee recommended that the interim suspension order be dissolved. The third member dissented, stating that the interim suspension should be maintained. On August 29, 2007, the Court issued an order requiring that Clark undergo a substance abuse valuation. The Court further order that the interim suspension "shall remain in effect pending further orders of [the Court]." The results of the substance abuse evaluation were filed with the Court in December 2007. On January 9, 2008, the Court ordered that the interim suspension order be dissolved. By letter dated March 11, 2008, Mr. John F Johnson, district attorney for Catahoula and Concordia parishes, advised the Office of Disciplinary Counsel that there is "no evidence in which to prosecute" Respondent on criminal charges and that the matter "was therefore not accepted for prosecution." Nonetheless, the Louisiana Supreme Court has stated explicitly that the decision on whether an attorney has engaged in unethical acts involving criminal conduct centers around the facts of the attorney's conduct and not whether the attorney has been criminally charged. In re Donnan, 2001-3058 (La. 1/10/03); 838 So. 2d 715. Additionally, Respondent has admitted to purchasing and using marijuana on a regular basis beginning in 1994 and up until the time of his arrest. Furthermore, Respondent has admitted that he knew that his use of marijuana was illegal and that he intentionally disregarded the criminality of his conduct. Accordingly, by committing a criminal act, Respondent has violated Rule 8.4(b) of the Louisiana Rules of Professional Conduct. Additionally, by violating the Rules of Professional Conduct, Respondent's actions constitute a violation of Rule 8.4(a).
THE HEARING COMMITTEE’S REPORT

As noted above, the hearing committee issued its report on January 12, 2009. In its report, the committee addresses several preliminary issues, including the issues of entrapment, suppression of evidence and the Respondent’s Motion to Exclude the deposition of Dennis Roberts. As to the entrapment issue, the committee noted that the defense of entrapment has a limited place in disciplinary proceedings. Nevertheless, the committee further explained that the Respondent failed to prove the elements of entrapment, even by a more probable than not standard. In doing so, the committee relied on the case of State v. Janice Brand, 520 So.2d 114, 117 (La. 1988), noting that the defendant’s burden in an entrapment case was to prove that the government agent implanted the criminal idea in the mind of an innocent person to induce the commission of a crime that would not otherwise be committed. The Brand court also dictated that “[i]n entrapment cases, a line must be drawn between the trap for the unwary innocent and the trap for the unwary criminal . . . Thus, the focus in determining an entrapment defense is on the conduct and predisposition of the defendant, as well as the conduct of the government agent.” Applying this standard, the committee found that the Respondent had not established, by any standard of proof, that he was an “unwary innocent.” Instead, the committee noted: The fact that this particular occasion to provide marijuana was created by the witness’s request does not mean the Respondent was entrapped. He readily assented and did not even need to be persuaded to share his contraband to help his friend obtain Hrg. Comm. Rpt., p.6. Because entrapment was not established, the committee concluded that any evidence relating to Respondent’s giving marijuana to another person As to issue of whether the evidence found inside of the Respondent’s home should be suppressed, the committee found that the exclusionary rule does not apply to disciplinary matters and that evidence that had been previously suppressed in Respondent’s criminal court proceedings would be allowed. The committee relied upon various cases from other jurisdictions dealing with the issue of whether evidence suppressed on Fourth Amendment grounds in a criminal proceeding could subsequently be used in a respondent’s disciplinary hearing. In those matters, the courts have held that the interests at work in a criminal context are not applicable in the context of discipline, and accordingly, the disciplinary adjudicative bodies are allowed to consider evidence that the criminal courts did not. See In re Littleton, 719 S.W.2d 772 (Mo. 1986), People v. Harfmann, 638 P.2d 745 (Colo. 1981) and The Florida Bar v. Lancaster, 448 So.2d 1019 (Fla. 1984). Moreover, in making this ruling, the committee noted that since the Respondent had admitted to marijuana use and admitted to giving marijuana to his friend, the effect of excluding the evidence obtained through the search warrant would be “almost nil” as to the result in this matter. The committee also reiterated that Respondent’s Motion to Exclude the testimony of Mr. Roberts was being denied, and that the deposition was admitted into evidence and The committee also issued the following findings of fact: On January 13, 2007, Dennis Roberts was arrested by the Adams County (Mississippi) Sheriff’s Department on charges of possession of cocaine. Following his arrest, Roberts advised a member of the Natchez-Adams County (Mississippi) Metro Narcotics team that, in return for leniency on his cocaine charge, he could arrange to receive marijuana from Robert E. Clark, an attorney who resides in Vidalia, Louisiana. The matter was referred to the Concordia Parish Narcotics Task Force who arranged for Roberts to telephone Clark. During this telephone call, Roberts was wearing a wire and the conversation was recorded. Roberts did make arrangements to receive marijuana from Clark at Clark’s residence (ODC1). Thereafter, Roberts proceeded to Clark’s residence and had a brief conversation with Clark concerning Clark’s agreement to provide marijuana to Roberts. Clark then entered his residence and returned outside. While standing outside the residence, Clark handed Roberts a plastic bag containing marijuana. Following this exchange, agents with the Task Force took both Roberts and Clark into custody. Other agents entered Clark’s residence to conduct a safety sweep of the residence (ODC 1; ODC 10). After being advised by Clark that he would not give consent for the agents to conduct a search of his residence, Lt. Greg Jackson, the Task Force leader, obtained a search warrant for Clark’s residence (ODC 1; ODC 2). A search of Clark’s residence revealed 7.5 ounces of marijuana on the premises. The marijuana was packaged in various amounts and stored in Zip-loc bags. A variety of drug paraphernalia, some with residual amounts of cocaine and marijuana, was also located in the residence. The Task Force also discovered the following items: (1) a bottle containing the prescription drug Xanax; (2) three doses of chlorzoxazone (a muscle relaxant) in an unmarked bottle; and (3) a small amount of white powder, which field-tested positive for cocaine (ODC 3). The suspected drugs were later sent to the Louisiana State Police Crime Lab for additional testing. The crime lab’s report indicates that the items submitted for testing tested positive for marijuana, methamphetamine, and cocaine (ODC 21). Following the search of his residence, Clark was arrested and charged with distribution of Schedule I CDS (marijuana), possession with intent to distribute Schedule I CDS (marijuana), possession of drug paraphernalia, and possession of Schedule II CDS (cocaine). On January 14, 2007, Clark was released on a $40,000.00 bond (ODC 5). On June 8, 2007, the Office of Disciplinary Counsel filed a Petition for Interim Suspension for threat of harm. By order dated June 22, 2007, the Louisiana Supreme Court ordered that Clark be suspended from the practice of law on an interim basis. The Court further ordered that Clark show cause before a hearing committee appointed by the Disciplinary Board why the Court should not maintain the interim suspension (ODC 22). Accordingly, the matter was set for hearing on July 23, 2007, in Alexandria. On July 20, 2007, Judge Bruce C. Bennett of the 21st Judicial District Court conducted a hearing on motions to suppress evidence and to quash the search warrant filed on behalf of Clark. At the conclusion of the hearing, Judge Bennett ordered the evidence obtained during the search of the residence pursuant to the warrant suppressed (Joint Exhibit 1, ODC 18). On August 29, 2007, after receiving the hearing committee’s recommendation that the interim suspension be dissolved, the Court issued an order requiring that Clark undergo a substance abuse evaluation. The Court further ordered that the interim suspension “shall remain in effect pending further orders of [the Court]” (ODC 23). The results of the substance abuse evaluation were filed with the Court in December 2007. On January 9, 2008, the Court ordered that the interim suspension order be dissolved (ODC 24). Despite having been subject to the interim suspension in Louisiana, Clark continued to practice law in Mississippi (Tr. pp.259; 327-328). By letter dated March 4, 2008, John F. Johnson, District Attorney for the 7th Judicial District, notified the Office of Disciplinary Counsel that as a result of Judge Bennett’s decision to suppress the evidence and to quash the search warrant “[t]here was no evidence in which to prosecute” Clark on the charges for which he was arrested (ODC 17, Transcript, p. 143). Based on the above factual findings, the committee concluded that violations of Rules 8.4(b) and 8.4(a) were present. The committee found that by: 1) purchasing and using marijuana, an illegal substance, for the stated purpose of easing his symptoms of glaucoma; and 2) willingly and voluntarily giving the marijuana to Dennis Roberts, the Respondent violated Rule 8.4(b). Other than finding that a Rule 8.4(a) violation was present, the committee did not make any specific findings as to this violation. Aggravating factors cited by the committee included substantial experience in the practice of law (admitted in Mississippi in 1974 and Louisiana in 1983) and Respondent’s rationale for providing marijuana to Mr. Roberts (so Mr. Roberts could have sex with a girl). The committee noted that Respondent knowingly assisted his friend in taking advantage of another person while she was under the influence of an illicit substance. This, the committee found, “could hardly reflect well on Mr. Clark’s honesty, trustworthiness or fitness as a lawyer.” Hrg. Comm. Rpt. p. 7. Mitigating factors cited by the committee included absence of a prior disciplinary record, full and free disclosure to the disciplinary board, cooperative attitude toward proceedings and The committee also considered Standards 5.11 and 5.12 of the ABA Standards for Imposing Lawyer Sanctions in determining that the baseline sanction in this matter ranges from a suspension to disbarment. The committee concluded that the minimum sanction in this matter should be a suspension of one year and one day. The committee acknowledged that the Respondent served an interim suspension of six months and seventeen days, but noted that he did continue to practice law in Mississippi during that interval. The committee also recommended that the Respondent maintain compliance with his five year recovery agreement with the Lawyer’s Assistance Program and that he ANALYSIS
I. The Standard of Review
The powers and duties of the Disciplinary Board are defined in Section 2 of the Louisiana Supreme Court Rule XIX, Rules for Lawyer Disciplinary Enforcement. 6 Standard 5.11 provides that disbarment is generally appropriate when “a lawyer engages in serious criminal conduct a necessary element of which includes . . . (a) the sale, distribution or importation of controlled substances; or (b) a lawyer engages in other intentional conduct involving dishonesty, fraud, deceit or misrepresentation that seriously adversely reflects on the lawyer’s fitness to practice.” 7 Standard 5.12 provides that suspension is generally appropriate when a lawyer knowingly engages in criminal conduct which does not contain the elements list in Standard 5.11 and that seriously adversely reflects on the lawyer’s fitness to practice. Subsection (G)(2)(a) states that the Board is “to perform appellate review functions, consisting 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.” 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, the findings of fact of the committee do not appear to be manifestly erroneous. However, the findings of fact should be supplemented with the following 1. Respondent illegally possessed and used marijuana, a controlled dangerous substance, on a routine basis since, at least, 1994 and as late as January 13, 2. During the above period of time, Respondent routinely purchased marijuana, 3. On January 13, 2007, the following substances/items were found in Respondent’s residence: 7.5 ounces of marijuana, a variety of drug paraphernalia, chlorzoxazone (muscle relaxant), Xanax, and small amount of 4. Respondent’s possession of the above-described items is contrary to the following Louisiana revised statues: 40:966, 40:967 and 40:1023. 8 Although Respondent testified at the hearing that he had prescriptions for the Xanax and chlorzoxazone, he offered no evidence of such prescriptions into evidence. 5. On January 13, 2007, Respondent personally delivered a bag containing 6. Respondent’s delivery of a controlled dangerous substance to another individual is contrary to Louisiana Revised Statute 40:966. As to a de novo review of the law applied by the Committee, it appears that the committee correctly decided the suppression and entrapment issues presented by the parties, as well as the Motion to Exclude filed by the Respondent. The Board notes that while the committee cited the Louisiana case of State v. Brand in support of its ruling on the entrapment issue, ODC provided additional case law from other jurisdictions in its Reply Brief of March 9, 2009 which further supports the proposition that the entrapment defense generally is not available in attorney disciplinary proceedings. See In re Porcelli, 397 N.E.2d 830 (Ill. 1970) and Matter of Kennedy, 466 S.E. 1 (Ga. 1996). As noted by It would be difficult to imagine circumstances in which the defense of entrapment would be available to an attorney in a disciplinary proceeding. Attorneys are versed in the law and should be keenly aware of what activities constitute a breach of the law. This know- ledge is inconsistent with the central premise of entrapment, i.e., an implantation of criminal intent in the mind of an innocent person. Therefore, in only the rarest of circumstances may an attorney label himself innocent and shield himself with the defense of entrapment. See also In re Kee Wong v. State Bar, 542 P.2d 642 (Cal. 1975) (defense of entrapment is applicable to attorney disciplinary proceedings only if the disciplinary agency’s own Additionally, the committee correctly determined that the Respondent violated Rule 8.4(a) and 8.4(b). By purchasing, possessing and/or using marijuana, cocaine, Xanax, chlorzoxazone, and drug paraphernalia, Respondent engaged in criminal conduct by violating Louisiana Revised Statutes 40:966, 40:967 and 40:1023. His delivery of the marijuana to Mr. Roberts also constitutes criminal conduct in violation of Louisiana Revised Statute 40:966. The fact that he was never prosecuted for or convicted of this criminal conduct is of no moment. As pointed out by ODC, the Louisiana Supreme Court has stated explicitly that the decision of whether an attorney has engaged in unethical acts involving criminal conduct centers around the facts of the attorney’s conduct and not whether the attorney has been criminally charged. In re Donnan, 2001- 3058 (La. 1/10/03); 838 So.2d 715. An analysis of Respondent’s conduct reveals a clear Moreover, by violating Rule 8.4(b), the Respondent also violated Rule 8.4(a), which provides that a lawyer shall not “violate or attempt to violate the Rules of II. The Appropriate Sanction
a. The Rule XIX, Section 10(c) Analysis
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 (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 (4) The existence of any aggravating or mitigating factors. In the matter at hand, the Respondent has violated duties owed to the public and to the profession. His conduct was intentional. Respondent knew that his purchase, possession, use and distribution of controlled dangerous substances violated the state’s criminal statutes. Nevertheless, he elected to engage in the criminal acts at issue. Respondent’s misconduct caused actual injury to the profession as public confidence in the integrity of officers of the court is undermined when lawyers engage in illegal Aggravating factors present include pattern of misconduct (use of marijuana from 1994 until 2007), multiple offenses, substantial experience in the practice of law and illegal conduct. The Board also finds as an additional aggravating factor the factor cited by the committee of the Respondent’s improper “rationale for providing marijuana to Mr. Roberts (i.e., so he could have sex with a girl).” Mitigating factors present include absence of a prior disciplinary record, full and free disclosure to the disciplinary board, and character and reputation. Interim rehabilitation was also cited by the committee but will not be adopted by the Board. By amendment to Standard 9.23 in 1992, this factor was deleted as a recognized mitigating b. The ABA Standards and Case Law
As cited by the hearing committee, Standards 5.11 and 5.12 are applicable here. A review of these standards indicates that the baseline sanction in this matter ranges from suspension to disbarment. Respondent’s intentional failure to abide by the law and 9 The Board notes that three attorneys that share space with the Respondent, along with a former district attorney and civil practitioner (now special prosecutor), and two district judges before whom he routinely practices as an indigent defender and general practitioner, also testified as to his good character, reputation and work ethic. refrain from possessing and using marijuana and cocaine implicates Standard 5.12, which calls for a suspension. Respondent’s intentional distribution of marijuana to Mr. Roberts implicates Standard 5.11 which calls for a baseline sanction of disbarment. Case law indicates that a lengthy suspension is the appropriate sanction in this matter. The recent case of In re Bertucci, 2008-1349 (La. 9/26/08); 990 So.2d 1275, serves as the starting point for the Board’s analysis of pertinent case law. In Bertucci, the respondent was detained by the police after a traffic stop and found to be in unlawful possession of various drugs and drug paraphernalia. He was released at the scene without being arrested and went to the hospital where he sought substance abuse treatment. After five days of inpatient treatment, the respondent enrolled in an outpatient substance abuse treatment program. He was diagnosed as “polysubstance dependent” and treated for approximately three months. He later entered into a two year contract with the Lawyer’s Assistance Program (“LAP”), which contract respondent agreed to extend for an During respondent’s period of treatment, a bill of information was filed in federal court charging respondent with one misdemeanor count of unlawful possession of hydrocodone and oxycodone, Schedule II controlled substances, and alprazolam (Xanax), a Schedule IV controlled substance. Respondent then turned himself in and was arrested by state authorities. He was released after posting bond, and was never charged by state authorizes. Respondent later entered into a pre-trial diversion agreement with the federal government. The agreement basically provided that if respondent complied with all of the terms and conditions of the agreement, he would not be prosecuted for the offense set forth in the bill of information. Respondent successfully completed the pre-trial diversion program, and the bill of information was later dismissed. ODC filed formal charges against the Respondent alleging that he violated Rules 8.4(a) and 8.4(b). The Supreme Court held that the Respondent’s conduct clearly violated the Rules of Professional Conduct as charged. In determining the appropriate sanction, the Court found that the Respondent’s conduct was knowing and violated duties owed to the public. The Court also noted that his conduct stemmed from substance dependence which he had worked to overcome. By all accounts, respondent’s efforts at rehabilitation had been successful to date. Moreover, the Court noted that the respondent’s clients were not harmed by his wrongful conduct and that he had an unblemished record consisting of many years of practice as a competent and well-respected criminal defense attorney. Id. The Court concluded that under the unique circumstances of the case, the respondent should be suspended for two years, all deferred, subject to respondent being placed on unsupervised probation for two years, subject to various conditions. The Court cautioned that any failure of the respondent to comply with the conditions of probation, or any misconduct during the probationary period, may be grounds for making the deferred suspension executory, or imposing additional discipline, as appropriate. Id. Three justices dissented, indicating that they would have imposed a harsher sanction than 10 These conditions included the respondent: entering into a LAP contract that will run for the period of suspension; continuing in AA for the period of suspension; and successfully complying with the requirements of both programs. Mr. Clark’s matter is similar to Bertucci in that Mr. Clark entered into a five year contract with the LAP program on August 23, 2007. His LAP monitor, Stephen E. Everett, reports that Mr. Clark has complied with the contract. Respondent has affiliated himself with a Narcotics Anonymous Group and regularly attends the meetings. He has also undergone two medical assessments to determine the extent of any drug addiction and cognitive impairment. One assessment was performed by Bradford Health Services and the other by Lawrence S. Dilks, Ph.D. Testimony presented at the hearing through witnesses and through the transcript from Respondent’s interim suspension hearing of July 23, 2007 indicate that the Respondent is a well-respected lawyer in the Vadalia, Louisiana community. See Exhibits R-7 (William A. Yarbrough), R-8 (Ann S. Siddall), R-9 (Philip A. Letard, Sr.), R-10 (Judge Thurman Leo Boothe), R-11 (Tammy Jones), Judge Kathy Johnson (Hrg. Tr., pp.171-84), Ronnie MacMillian (Hrg. Tr., pp. 185-96). The record also indicates that he has an unblemished professional record consisting of many years of practice. What differs this matter from Bertucci is the fact that Mr. Clark distributed marijuana to Mr. Roberts, while Mr. Bertucci was not involved in any conduct involving the distribution of drugs. See Bertucci, 990 So.2d at 1277. Cases involving the distribution of drugs show that the Court has imposed an actual period of suspension, 11 Hrg. Tr., pp. 348, 359 and 362. 12 Hrg. Tr., pp. 350, 361; See also Exhibits R-5 and R-12. 13 Hrg. Tr., pp. 345, 347; See also Exhibits R-4 and R-3. 14 The transcript from the interim suspension hearing was proferred by ODC. See ODC Proffer #1. Given the Court’s direction in In re Quaid, 94-1316 (La. 11/30/94); 646 So.2d 343 and In re Stamps, 2003-2985 (La. 4/14/04), 874 So.2d 113, that the rules of evidence should be relaxed in disciplinary proceedings, the Board will consider this proferred evidence. with no time deferred. For example, in In re Tilly, 507 So.2d 182 (La. 5/18/87), the Louisiana Supreme Court suspended the respondent for a period of at least two years based upon his conviction for distribution of marijuana in violation of R.S. 40:966. In the underlying criminal matter, Mr. Tilly was arrested after he sold one ounce of marijuana for $100 to an acquaintance who was cooperating with the police. A search of Tilly’s grandmother’s residence revealed one-fourth pound of marijuana, drug paraphernalia and a scale which Tilly claimed to be borrowed from a friend. For this misconduct, Tilly pleaded guilty to a charge of distribution of marijuana and was sentenced to three years at hard labor, which was suspended in lieu of various conditions. He also was involved in subsequent criminal conduct. Id. at 182-83. In determining the appropriate lawyer disciplinary sanction, the Court recognized that Tilly had no clients at the time of his conviction, his conviction was a first time offense of selling a small amount of marijuana to and there was no indication that he regularly engaged in distribution for profit. His conviction had also received little publicity, and therefore, had little effect on the public’s trust in the legal profession. Recognizing Mr. Tilly’s continuing therapy for chemical dependency, the Court suspended the Respondent “pending further orders of this court” and directed that Respondent “may apply for readmission two years from this date.” Id. ODC has also cited numerous other cases involving sanctions rendered to attorneys who have been found to be in possession of illicit, controlled dangerous substances. Suspensions in these matters run from eighteen months to three years. See In re Redmon, 2005-2187 (La. 12/12/05); 916 So.2d 118 (consent discipline of eighteen- month suspension, followed by two years of supervised probation, for attorney’s admitted violation of Rule 8.4(b) after he tested positive for cocaine use); In re Jackson, 94-2261 (la. 9/15/95); 660 So.2d. 838 (two year suspension for knowingly making false official statements and wrongfully using controlled dangerous substances where the misconduct was mitigated by the attorney’s youth and inexperience); In re Steinhardt, 2004-0011 (La. 9/9/04); 883 So.2d 404 (three year suspension imposed for attorney’s misdemeanor conviction of possession of marijuana, failure to report the conviction to ODC and failure to cooperate with ODC in investigation of unrelated complaint); In re Hazard, 2005- 1975 (La. 12/12/05); 916 So.2d 117 (consent discipline of three year suspension for attorney’s nolo contendre plea to charges of simple possession of marijuana, oxycodone, Given the above, and after particular analysis of the Bertucci and Tilly cases, the Board finds that a two year suspension is warranted in this matter, with credit given to the Respondent for the time he served during his prior interim suspension. The Board also recommends that a period of probation should also follow Respondent’s active period of suspension in order to ensure that he complies with his LAP contract, specifically its provision that he attend Narcotics Anonymous meetings. This period of probation should run concurrently with the LAP contract, ending at the time of the contract’s conclusion on or about August 13, 2012. In making its determination, the Board also states that it is particularly concerned about the Respondent’s misconduct based upon the 15 This sanction will require the Respondent to undergo a reinstatement proceeding pursuant to Rule XIX, Section 24. 16 See Hrg. Tr., p. 350; Exhibit R-5. 17 In making this probation recommendation, the Board is aware of Rule XIX, Section 10, which generally provides that, absent the consent of a respondent, a period of probation recommended by the Board should be no longer than two years. Nevertheless, given the nature of the misconduct at hand, and the fact that Respondent entered into a five year LAP contract, the Board respectfully suggests that a period of probation to run concurrently with the term of the LAP contract would serve to protect the public and benefit the Respondent during his period of recovery. photographs of drugs and drug paraphernalia found in Respondent’s home on the night of his arrest. These photographs are found in ODC Exhibits 12 and 12A1-69 admitted into evidence at the hearing. Furthermore, the Board also finds as significant the Respondent’s failure to convincingly link his assertion that he used marijuana for medicinal reasons to any specific, credible medical evidence. CONCLUSION
The Disciplinary Board modifies the hearing committee’s report to include the supplemental findings of fact, aggravating factors and mitigating factors as noted above. Based upon the case law, the Board recommends that a two year suspension be imposed against the Respondent in this matter, with credit given to the Respondent for the time he served during his prior interim suspension. The Board also recommends that a period of probation follow Respondent’s active period of suspension to ensure that he complies with his five year LAP contract, specifically its provision that he attend Narcotics Anonymous meetings. The Board recommends that this period of probation run concurrently with Respondent’s LAP contract, ending at the time of the contract’s conclusion on or about August 13, 2012. The Board also recommends that the Respondent be assessed with all costs and expenses of these proceedings. RECOMMENDATION
The Board recommends that a two year suspension be imposed against Robert E. Clark, with credit given to the Respondent for the time he served during his prior interim suspension. The Board also recommends that a period of probation follow Respondent’s active period of suspension to ensure that he complies with his five year LAP contract, specifically its provision that he attend Narcotics Anonymous meetings. The Board

Source: http://www.ladb.org/NXT/gateway.dll/DB/2009-07-16_08-db-034.pdf