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«FOR IMMEDIATE NEWS RELEASE NEWS RELEASE # 51 FROM: CLERK OF SUPREME COURT OF LOUISIANA The Opinions handed down of the 29th day of June, 2005, are as ...»

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The Opinions handed down of the 29th day of June, 2005, are as follows:



(Disciplinary Proceedings)

Upon review of the findings and recommendation of the hearing

committee and the disciplinary board, and considering the record, briefs, and oral argument, it is ordered that J. Clemille Simon, Louisiana Bar Roll number 19996, be and he hereby is suspended from the practice of law for a period of six months. It is further ordered that all but thirty days of this suspension shall be deferred, subject to the condition that respondent shall enroll in and attend the next session of the Ethics School program offered by the Louisiana State Bar Association's Practice Assistance and Improvement Committee. Failure to comply with this condition or any other misconduct within a period of one year from the finality of this opinion may be grounds for making the deferred portion of the suspension executory, or imposing additional discipline, as appropriate. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, §10.1, with legal interest to commence thirty days from the date of finality of this court's judgment until paid.

CALOGERO, C.J., concurs in part and dissents in part, and assigns reasons.

JOHNSON, J., dissents and would impose a longer period of actual suspension.

WEIMER, J., concurs in part and dissents in part and assigns reasons.





PER CURIAM The Office of Disciplinary Counsel (“ODC”) filed formal charges against respondent, J. Clemille Simon, an attorney licensed to practice law in Louisiana. The disciplinary board recommended the formal charges be dismissed, and the ODC sought review of that decision in this court. For the reasons assigned, we find the formal charges were proven by clear and convincing evidence and therefore impose discipline.


Count I Respondent filed a personal injury suit in Vermilion Parish on behalf of Sandra and Joey Simon. The suit was randomly allotted to Judge Edward Rubin of the 15th Judicial District Court. Subsequently, respondent filed a motion to recuse Judge Rubin, asserting Judge Rubin was biased and prejudiced because he ruled against the plaintiffs in several pre-trial motions. Respondent alleged in his motion, among other things, that Judge Rubin “embarked upon a campaign of misrepresenting the truth” and “made intentional misrepresentations of fact, for the purpose of prejudicing” respondent and the plaintiffs.

Judge Rubin referred the motion to recuse to Judge John Trahan. Judge Trahan conducted a 5½-hour evidentiary hearing on the motion, at which Judge Rubin was the only witness. At the conclusion of respondent’s presentation, Judge Trahan denied the motion to recuse, finding it “groundless.”

–  –  –

Respondent filed a personal injury suit in Lafayette Parish on behalf of Leslie Counselman. One of the defendants in the case, United Services Automobile Association, was represented by attorney Patrick Briney of the Lafayette law firm of Briney & Foret. The suit was randomly allotted to Judge Edward Rubin.

During the course of the litigation, respondent learned that the judges of the 15th JDC had previously retained Mr. Briney to represent the court in connection with a challenge to its misdemeanor probation program in a criminal case captioned State v. Cavazos. Based on this information, respondent filed a motion to disqualify Mr.

Briney and his firm as attorneys of record in the Counselman case. The motion also sought the recusal of “all Judges of the 15th Judicial District Court from the instant matter.” In support, respondent argued that an obvious appearance of impropriety existed as a result of the “intimate, personal and confidential attorney/client relationship” between the judges and Mr. Briney.

Judge Rubin denied respondent’s motion without conducting a hearing, and the court of appeal denied respondent’s application for supervisory writs. Respondent then applied to this court. We granted the writ in part and appointed retired Judge Anne Lennan Simon to conduct an evidentiary hearing on the motion. Counselman v. Progressive Ins. Co., 01-2335 (La. 8/13/01), 794 So. 2d 837. After conducting a hearing, Judge Simon denied respondent’s motion, finding that Mr. Briney was retained by the 15th JDC judges solely to represent the court in an official capacity, and that Mr. Briney had no other legal relationship with the judges.

Respondent then sought review of Judge Simon’s ruling in the Court of Appeal, Third Circuit.1 In his writ application, respondent included a four-page “Hypothetical Telephone Conversation Between Patrick J. Briney And His Clients (Judges of The 15th Judicial District Court)” in support of his argument that the “official capacity” defense was legally unsound.2 The court of appeal refused to accept the writ application for filing and directed the clerk of court to return it to respondent, with instructions that he delete the “hypothetical” conversation.

Respondent complied with the court’s instructions but included the following

footnote in the revised writ application:

–  –  –

On the merits, the court of appeal denied respondent’s application for supervisory writs, as did this court. Counselman v. Progressive Ins. Co., 02-0474 (La. 3/8/02), 811 So. 2d 879. The clerk of the court of appeal forwarded copies of respondent’s original writ application and revised application to the ODC.

–  –  –

In the writ application subject of Count II, respondent raised as error Judge Simon’s denial of his motion to disqualify Mr. Briney, stating at page iii of the


As previously noted, respondent had also sought to recuse the 15th JDC judges, which Judge Simon declined to do. In his writ application, respondent abandoned this issue and limited his argument to the portion of Judge Simon’s judgment denying the motion to disqualify Mr. Briney.

The text of the hypothetical telephone conversation is attached as an appendix to this opinion.

Judge Simon (Judge Ad Hoc) has committed reversible error in the performance of her duties as Judge Ad Hoc.

Specifically, Judge Simon utilized the wrong standard (subjective) in deciding this issue. In denying plaintiff’s Motion to Disqualify/Recuse Defense Counsel, Judge Simon has violated not only controlling legal authority but the very principals [sic] (honesty and fundamental fairness) upon which our judicial system is based.

Judge Simon’s denial undermines the efficacy of our jurisprudence, attorney ethics and judicial canons and serves no other purpose but to promote public disrepute and distrust of our legal system. Indeed, Judge Simon’s denial of plaintiff’s motion is baseless and legally, logically and ethically unsound. [emphasis added] The ODC alleges that in using the highlighted language, respondent personally attacked Judge Simon’s integrity without any reasonable factual basis for doing so.

–  –  –

In support of your motion to recuse, you cited substantive rulings Judge Rubin made which you contend were improper and without legal support, yet Judge Rubin was affirmed by the appellate court on virtually all substantive issues raised by your writ applications. In the hearing on the motion to recuse, you were unable to produce any identifiable evidence of Judge Rubin's bias or personal animus against you or your client, despite your claims that such evidence existed. Another judge appointed to hear the recusal motion denied same immediately after the hearing was concluded. Your conduct violates Rules 3.1 and 3.3 of the Rules of Professional Conduct.

Your actions in bringing a groundless and frivolous motion to recuse Judge Rubin caused delay in the prosecution of your clients' case and diverted the court's attention from other, substantial court business. Your conduct violates Rule 8.4(d) of the Rules of Professional Conduct.


In another personal injury case (Counselman v. Progressive Insurance Co.) you brought yet another motion to recuse the entire 15th Judicial District Court from hearing any cases where Patrick Briney or his firm was representing the opposing party. After the ad hoc judge appointed to hear your motion denied same after a hearing, you filed a writ application with the 3rd Circuit Court of Appeals. In that application, you created a wholly fictitious telephone conversation, which you allege accurately represented verbal communications between your opposing counsel and the judges of the 15th JDC. The judges and opposing counsel are depicted in that conversation as conspiring to deprive both you and your client of substantive rights and to subvert the justice system.

Upon reviewing the contents of that fictitious telephone conversation, the Judges of the Third Circuit Court of Appeals refused to accept your writ application for filing and instructed the clerk to return it to you, with instructions to remove the "hypothetical" conversation. The Court also found your brief to be "replete with insulting, abusive, discourteous and irrelevant matter" in violation of Rule 2of the Uniform Rules of the Court of Appeal.

Although you removed the offending conversation from the brief, you nonetheless continued to insist that your depiction represented a "truthful portrayal" of communications you alleged occurred among Mr. Briney and the judges of the 15th JDC, despite the fact that there is no evidence that any conversation such as you described ever took place. Your conduct violates Rules 3.1, 3.3 and 8.2(a) of the Rules of Professional Conduct.

–  –  –

Respondent answered the formal charges and denied any misconduct. The matter then proceeded to a formal hearing, at which time the ODC and respondent introduced volumes of documentary evidence and presented the testimony of numerous witnesses.

–  –  –

As to Count I, the hearing committee concluded the ODC failed to prove by clear and convincing evidence that the motion to recuse was frivolous.

Notwithstanding that respondent did not win the motion, the committee found there is insufficient evidence to support the ODC’s allegation that the motion had no basis in law or fact. In this regard the committee was particularly impressed that Judge Rubin did not deny the motion outright but chose to refer it to another judge for hearing. Next, the committee concluded the ODC failed to prove by clear and convincing evidence that respondent made false statements in the motion to recuse.

The committee pointed out that respondent believed at all times that the motion had merit. Moreover, the committee found the evidence presented at the hearing proved that respondent’s clients could reasonably have believed that Judge Rubin’s rulings – some of which were overturned by the Third Circuit – necessitated the motion to recuse. Third, the committee found the ODC failed to prove by clear and convincing evidence that the motion to recuse, taken as a whole, contains improper allegations as to Judge Rubin. Finally, the committee found the ODC failed to prove by clear and convincing evidence that the filing of the motion to recuse was prejudicial to respondent’s clients or to the administration of justice. Accordingly, the hearing committee recommended Count I be dismissed.

Turning to Count II, the committee concluded that in his writ application filed with the Third Circuit, respondent made false statements about the 15th JDC judges and made statements with reckless disregard concerning the integrity of certain judges in the 15th JDC. Such conduct violated Rules 3.3 and 8.2(a) of the Rules of Professional Conduct. However, the committee concluded the ODC failed to prove by clear and convincing evidence that respondent violated Rule 3.1 by including the hypothetical telephone conversation in the writ application. The committee found respondent was clearly arguing for modification or reversal of the law in his writ application, and pointed out that nearly every Third Circuit judge identified merit in respondent’s argument criticizing the “official capacity” defense offered by Mr.


Finally, as to Count III, the committee concluded the ODC failed to prove by clear and convincing evidence that respondent knowingly made false statements, or that his statements contained in the assignment of error rose to the level of reckless disregard concerning the integrity of Judge Simon. The committee also concluded the ODC failed to prove by clear and convincing evidence that respondent’s conduct was prejudicial to the administration of justice, given the unanimous testimony of the Third Circuit judges that the assignment of error was neither unethical nor a violation of any court rule. Therefore, the committee recommended Count III be dismissed.

Turning to the issue of an appropriate sanction for respondent’s misconduct in Count II, the committee found respondent violated duties owed to the judiciary and the legal system. There was no evidence of harm to respondent’s client, but the potential for harm existed in that the hypothetical telephone conversation potentially lessened the public’s trust and confidence in the judiciary. The unnecessary reference to certain judges in a negative context was reckless and offensive, and caused harm to the judges depicted. The committee found that respondent knew certain statements contained in the colloquy were false, but that he did not knowingly or intentionally mislead the court because he labeled the conversation as hypothetical. The committee determined that the baseline sanction for respondent’s misconduct is a reprimand.

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