In Re: Joseph Mole , 822 F.3d 798 ( 2016 )

Case: 15-30647 Document: 00513492004 Page: 1 Date Filed: 05/04/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 15-30647 United States Court of Appeals
Fifth Circuit
FILED
In re: JOSEPH NICHOLAS MOLE, May 4, 2016
Lyle W. Cayce
Appellant Clerk
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:11-MC-966
Before BARKSDALE, CLEMENT, and HAYNES, Circuit Judges.
PER CURIAM:
Attorney Joseph Mole appeals the disciplinary sanction imposed by the
en banc court of the Eastern District of Louisiana. The questions presented are
whether the en banc court adhered to its own rules and procedures; whether it
provided adequate due process; whether its factual findings are supported by
the evidence; and whether its chosen sanction was appropriate. Finding no
reversible error, we AFFIRM.
I.
Mole represented Lifemark Hospitals in a lawsuit against Liljeberg
Enterprises. 1 Then-judge Thomas Porteous presided. Six weeks before the case
went to trial, the Liljeberg parties retained Leonard Levenson and Jacob
1 The facts and procedural history of the case are recounted in In re Liljeberg
Enterprises, Inc., 304 F.3d 410 (5th Cir. 2002). This appeal is not concerned with the facts of
that case, but with Mole’s professional conduct during the case.
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Amato as counsel. Levenson and Amato were widely known to be close friends
of Porteous. Mole filed a motion to recuse Porteous based on the appearance of
impropriety created by the enrollment of his close friends as counsel for
Liljeberg. Porteous denied the motion. Mole then filed a writ of mandamus
with this court, which denied it.
Lifemark was concerned that the presence of Levenson and Amato would
create an unfair advantage for Liljeberg, so—according to Mole—it insisted
that he locate an attorney familiar with Porteous to join the case and help gain
equal access to Porteous. Mole eventually identified and hired Don Gardner, a
close friend of Porteous. Gardner had no useful experience in the type of
litigation pending, and by his own admission, he was hired because Lifemark
“wanted to have a pretty face . . . someone who knew the judge.” Mole drafted
a letter agreement between Lifemark and Gardner setting out the terms of
Gardner’s compensation. The agreement included an initial retainer fee of
$100,000 and—most significantly—an additional $100,000 severance fee “in
the event that Judge Porteous withdraws or if the case settles prior to trial.” 2
Porteous did not withdraw, and the case proceeded to a bench trial.
Porteous took the case under submission and issued his opinion nearly three
years later, overwhelmingly in favor of Liljeberg, and overwhelmingly reversed
on appeal by this court. 310 F.3d at 469. This court later issued an Order and
Public Reprimand against Porteous “for conduct that included violations of
‘several criminal statutes and ethical canons’ while presiding over the Liljeberg
litigation, including his denial of Lifemark’s motion to recuse.” The same
misconduct also led to Porteous’s impeachment by Congress in 2010. Mole and
Gardner both testified before the Senate about the circumstances of Gardner’s
2An earlier draft of the agreement proposed an initial retainer fee of $50,000 and a
severance fee of $150,000.
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retention by Lifemark. After Porteous’s impeachment, two district judges in
the Eastern District of Louisiana filed a disciplinary complaint against
attorneys Levenson, Amato, Mole, and Gardner for committing acts “to
improperly influence [Porteous] to achieve results that were prejudicial to the
administration of justice, including receiving either favorable treatment for
their respective clients or a prompt voluntary recusal,” in violation of Rules
8.4(d), (e), and (f) of the Louisiana Rules of Professional Conduct. 3
The Eastern District proceeded under its own Rules for Lawyer
Disciplinary Enforcement. 4 First, under Rule 4, the court referred the
complaint to the Lawyer Disciplinary Committee. The Committee
recommended that the court conduct a hearing. Under Rule 7, the matter was
randomly allotted to Judge Helen G. Berrigan to conduct a hearing. After
conducting the hearing, Judge Berrigan issued her findings and
recommendations to the en banc court. Judge Berrigan found that Mole
“diligently represented his client at all times in a manner that is a credit to the
profession,” and that any misconduct by Mole was, “at most, ‘negligent’ and
time-barred” under the disciplinary rules of the Louisiana Supreme Court.
Judge Berrigan recommended that the charges against Mole be dismissed.
The en banc court disagreed. It found that “the clear and convincing
evidence introduced at the Senate hearing and before this Court establishes
Mr. Mole selected and recommended Mr. Gardner to represent Lifemark
because of Mr. Gardner’s close friendship with Porteous and with the intent to
get Porteous recused,” and that “the clear and convincing evidence establishes
3 Under Rule 1.2 of the United States District Court for the Eastern District of
Louisiana Rules for Lawyer Disciplinary Enforcement, “[t]he Louisiana Rules of Professional
Conduct of the Supreme Court of the State of Louisiana (‘Rules of Professional Conduct’)
apply to all lawyers admitted to practice before this court.”
4 These rules were amended on December 1, 2015. The rules referenced and quoted
throughout this opinion are those that were in effect during Mole’s disciplinary proceedings.
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the [$100,000] severance fee in the letter agreement was intended to provide
an incentive for Mr. Gardner to achieve this result.” The en banc court found
that Mole’s conduct violated Rules 8.4(d) and (e) of the Louisiana Rules for
Professional Conduct and suspended him from practice before the court for one
year, with six months deferred. This appeal followed.
II.
“Sanctions imposed against an attorney by a district court are reviewed
for abuse of discretion.” United States v. Brown, 72 F.3d 25, 28 (5th Cir. 1995).
The district court “abuses its discretion when its ruling is based on an
erroneous view of the law or on a clearly erroneous assessment of the evidence.”
Chaves v. M/V Medina Star, 47 F.3d 153, 156 (5th Cir. 1995). Whether an
attorney’s conduct is subject to sanction under a specific rule of professional
responsibility is a legal issue which this court reviews de novo. Brown, 72 F.3d
at 28.
III.
Mole first argues that the Eastern District’s rules for disciplinary
enforcement do not allow the en banc court to perform a de novo review of the
record or to make its own findings. Instead, he contends it is bound by the
findings of the allotted judge. Mole’s argument is based on his own
interpretation of the district court’s disciplinary rules, and he does not cite any
supporting precedent. Mole contends that because the rules do not explicitly
state that the en banc court conducts a de novo review, it is not authorized to
do so. Mole’s rationale is that an independent review by the en banc court
would “render meaningless the three years of litigation, discovery, motion
practice, briefing and trial that led to Judge Berrigan’s findings.” The court’s
disciplinary committee, as appellee, counters that the rules reserve
disciplinary authority to the en banc court, rather than to the allotted judge,
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and that Mole’s construction would transform the allotted judge into the final
decision maker.
“When a court undertakes to sanction an attorney for violating court
rules, it is incumbent upon the sanctioning court to observe scrupulously its
own rules of disciplinary procedure.” In re Thalheim, 853 F.2d 383, 390 (5th
Cir. 1988). We apply “basic principle[s] of statutory construction” to the district
court’s disciplinary rules. Id. at 387. Rule 2 of the Eastern District’s Rules for
Lawyer Disciplinary Enforcement states that “[t]he court en banc may impose
discipline upon a lawyer authorized to practice before this court if it finds clear
and convincing evidence that . . . [t]he lawyer has committed ‘misconduct’ as
defined in the Louisiana Rules of Professional Conduct.” Rule 7.4 states that
“[a]t the conclusion of all necessary proceedings, the [allotted] judge must
submit written findings and recommendations to the court en banc for
determination of the disciplinary sanctions, if any, to be imposed.” Rule 7.5
states that “[a]fter consideration of the allotted judge’s findings and
recommendations, the court en banc must enter an order either dismissing the
complaint or imposing appropriate discipline.”
Here, the allotted judge recommended dismissal of the complaint against
Mole, but the en banc court disagreed and imposed discipline based on
professional misconduct. The en banc court stated that “[a]lthough Judge
Berrigan held the evidentiary hearing in this matter, these Findings are based
on an independent review of the entire record, including the transcript of the
evidentiary hearing, the transcript of the testimony before the Senate, the
memoranda of counsel, and the applicable law.” The en banc court thus
interpreted its own rules to allow it to conduct an independent review of the
record and render its own decision. “When the tribunal which has promulgated
a rule has interpreted and applied the rule which it has written, it is hardly
for an outside person to say that the author of the rule has misinterpreted it.”
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In re Adams, 734 F.2d 1094, 1102 (5th Cir. 1984) (quoting Lance, Inc. v. Dewco
Servs., Inc., 422 F.2d 778, 783 (9th Cir. 1970)). “We may reverse only where we
are convinced that the district court has misconstrued its own rules.” Id. at
1102.
The en banc court’s interpretation is the most rational and logical
interpretation available. Rule 2 reserves the power and authority to impose
discipline to the en banc court. Rules 7.4 and 7.5 state that the allotted judge’s
findings and recommendations need only be considered by the en banc court,
and that the en banc court determines the sanctions and orders their
imposition. If the allotted judge’s disciplinary findings and recommendations
were binding on the en banc court, then the en banc court would serve no useful
purpose, and the rules would state instead that the allotted judge was
empowered to render the final disciplinary decision.
Indeed, because the en banc court reserves the authority to impose
discipline, its role is analogous to that of the Louisiana Supreme Court. As the
Louisiana Supreme Court noted in In re Nelson, 146 So. 3d 176, 187 (La.), reh’g
denied (July 1, 2014), “[b]ar disciplinary matters fall within the original
jurisdiction of this court. Consequently, we act as triers of fact and conduct an
independent review of the record to determine whether the alleged misconduct
has been proven by clear and convincing evidence.” (citation omitted). The
court went on to state that “we are not bound in any way by the findings and
recommendations of the hearing committee and disciplinary board.” Id. Under
the same rationale, the Eastern District en banc court is free to conduct an
independent review without being bound by the findings and recommendations
of the allotted judge. Because Rule 2 reserves disciplinary authority to the en
banc court, and because nothing in the rules requires the en banc court to
adhere or defer to the findings and recommendations of the allotted judge, we
find no error.
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Mole next argues that the en banc court is a “reviewing court” under
Federal Rule of Civil Procedure 52(a)(6) and is therefore precluded from
conducting a de novo review of the evidence. 5 Mole offers no authority to
support his claim that the en banc court, in a disciplinary proceeding, is a
reviewing court under Rule 52(a)(6). But “[t]he text of Rule 52(a)(6) limits the
rule to instances in which a ‘reviewing court’ is considering the findings of a
‘trial court.’” Stoffels ex rel. SBC Tel. Concession Plan v. SBC Commc’ns, Inc.,
677 F.3d 720, 727 (5th Cir. 2012). Here, Rule 7.5 of the disciplinary procedures
states that “[a]fter consideration of the allotted judge’s findings and
recommendations, the court en banc must enter an order either dismissing the
complaint or imposing appropriate discipline.” (emphasis added). As the en
banc court correctly noted, “[t]he orders of the court in disciplinary matters are
the orders of the en banc court.” Because Rule 52(a)(6) is inapplicable here,
Mole’s argument fails.
Mole also argues that the en banc court’s factual findings are not
supported by clear and convincing evidence. Mole’s primary theory is that the
$100,000 severance fee was not “an attempt to secure the recusal of Porteous
and that instead the severance fee was to pay Mr. Gardner enough to ‘buy him
out of the case’ in the event Porteous was no longer the judge because Mr.
Gardner’s services would no longer be needed.” In essence, Mole claims that
Gardner’s role was to provide insight into Porteous’s temperament and thought
processes, a role that would be useful only so long as Porteous remained on the
case. In support, Mole cites excerpts from his own testimony before the Senate
5 “Findings of fact, whether based on oral or other evidence, must not be set aside
unless clearly erroneous, and the reviewing court must give due regard to the trial court’s
opportunity to judge the witnesses’ credibility.” Fed. R. Civ. P. 52(a)(6).
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and before Judge Berrigan; Gardner’s testimony before the Senate; and the
testimony of other witnesses before Judge Berrigan.
In the context of attorney disciplinary proceedings, we have defined the
“clear and convincing” evidentiary standard as
that weight of proof which “produces in the mind of the
trier of fact a firm belief or conviction as to the truth
of the allegations sought to be established, evidence so
clear, direct and weighty and convincing as to enable
the fact finder to come to a clear conviction, without
hesitancy, of the truth of the precise facts” of the case.
In re Medrano, 956 F.2d 101, 102 (5th Cir. 1992) (quoting Cruzan v. Dir., Mo.
Dep’t of Health, 497 U.S. 261, 285 n.11 (1990)). We review the district court’s
factual findings for clear error. See Brown, 72 F.3d at 28 (noting that a district
court abuses its discretion by imposing sanctions on the basis of a “clearly
erroneous assessment of the evidence”). 6 To satisfy the clear error test, the
district court’s findings must be “plausible in light of the record as a whole.”
United States v. Reasor, 541 F.3d 366, 369 (5th Cir. 2008). “A factual finding is
clearly erroneous only if, viewing the evidence in light of the record as a whole,
we are left with the definite and firm conviction that a mistake has been
committed.” Waste Mgmt. of Wash., Inc. v. Kattler, 776 F.3d 336, 339 (5th Cir.
2015) (internal quotation marks omitted).
The en banc court found that Mole hired Gardner to prompt Porteous’s
recusal after reviewing testimonial evidence derived from both the Senate
hearings and Mole’s own disciplinary hearing before Judge Berrigan, as well
as documentary evidence such as the retention letter between Mole and
6 Cf. Crowe v. Smith, 261 F.3d 558, 564–65 (5th Cir. 2001) (conducting de novo review
of the record where district court failed to make a finding on critical factual issue); Medrano,
956 F.2d at 102 (conducting de novo review of the record where district court incorrectly
applied preponderance of evidence standard).
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Gardner. The en banc court found the “testimony that the terms of the letter
agreement were not drafted in an attempt to secure the recusal of Porteous to
be incredible.” The en banc court highlighted Mole’s testimony before the
Senate, where Mole admitted that “getting the judge to recuse himself would
be the only way to get a fair outcome”; “getting Judge Porteous to recuse
himself was a priority with [him], and one of the things [he] hoped Mr.
Gardner’s presence in the case . . . would accomplish”; and that he “certainly
considered that maybe if [Gardner] got involved . . . Porteous didn’t have a
legal responsibility to recuse himself because of that but that he might.” The
en banc court also noted that it “did consider evidence presented at the
[hearing before Judge Berrigan], but also gave weight to the sworn testimony
before the Senate . . . . given at a time when the witnesses had no personal
stake in the outcome.” The en banc court thus concluded that, “[t]aken as a
whole, the evidence provided clear and convincing evidence that Mr. Mole’s
intent was to prompt former Judge Porteous’s recusal.”
Based on all of the above, the en banc court’s conclusion is plausible.
First, Mole’s Senate testimony contains numerous admissions regarding his
hope that the retention of Gardner might prompt a recusal. Second, the
$100,000 severance fee in the retention letter incentivizes the prospect of a
recusal. 7 Although Mole claims that the severance fee was merely intended to
“buy out” Gardner, the evidence shows that Gardner never requested such a
provision in the agreement. Mole also acknowledged that if Porteous had
recused himself immediately upon Gardner’s enrollment, Gardner would have
received the full $200,000 payment for enrollment and severance, despite not
doing any work. This shows that the severance fee was unrelated to any labor
7 Although the severance fee would also be paid in the event of a settlement, Mole
acknowledged before Judge Berrigan that the litigation was unlikely to settle and that
“recusal would be the most obvious reason for a judge to withdraw from a case.”
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Gardner may have performed on the case or any opportunity cost he may have
incurred in time away from his own practice. It is therefore plausible that the
purpose of the severance fee was to prompt a recusal.
Finally, even if we find Mole’s version credible, “[i]f the district court’s
account of the evidence is plausible in light of the record viewed in its entirety,
the court of appeals may not reverse it even though convinced that had it been
sitting as the trier of fact, it would have weighed the evidence differently.”
Brumfield v. Cain, 808 F.3d 1041, 1057 (5th Cir. 2015) (quoting Anderson v.
Bessemer City, 470 U.S. 564, 573–74 (1985)). And “[w]here there are two
permissible views of the evidence, the factfinder’s choice between them cannot
be clearly erroneous.” Anderson, 470 U.S. at 574. Because the en banc court’s
determination that Mole hired Gardner to obtain Porteous’s recusal is
plausible in light of the record as a whole, we cannot set aside that finding.
Mole also argues that he did not engage in misconduct in violation of the
Louisiana Rules of Professional Conduct. Mole does not cite any authority in
support of his argument. Rather, he simply states in his brief that “nothing
[he] did with respect to Gardner had any effect on Porteous’ handling or
‘administration’ of the Liljeberg case.” We review de novo whether factually
established misconduct is subject to sanctions. In re Sealed Appellant, 194 F.3d
666, 670 (5th Cir. 1999). Thus, we must determine whether the en banc court’s
factual findings establish a violation of Rules 8.4(d) and (e) of the Louisiana
Rules of Professional Conduct. 8
8 Louisiana Rule of Professional Conduct 8.4. states:
It is professional misconduct for a lawyer to . . .
(d) Engage in conduct that is prejudicial to the administration of
justice;
(e) State or imply an ability to influence improperly a judge,
judicial officer, governmental agency or official or to achieve
results by means that violate the Rules of Professional Conduct
or other law;
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We have previously held that “a lawyer may not enter a case for the
primary purpose of forcing the presiding judge’s recusal.” McCuin v. Tex. Power
& Light Co., 714 F.2d 1255, 1265 (5th Cir. 1983). “A lawyer’s acceptance of
employment solely or primarily for the purpose of disqualifying a judge creates
the impression that . . . the lawyer is available for sheer manipulation of the
judicial system. . . . To tolerate such gamesmanship would tarnish the concept
of impartial justice.” Id. 9
Mole did not personally accept employment to disqualify Porteous but
instead employed another attorney to achieve the same purpose. A common
sense application of McCuin shows that this is improper: If a lawyer may not
enter a case to force the presiding judge’s recusal, then it would be irrational
to argue that a lawyer could simply hire another lawyer to force the recusal.
Thus, we conclude that the action of hiring an attorney to motivate a recusal
is prejudicial to the administration of justice and implies an ability to
improperly influence a judge in violation of Louisiana Rules of Professional
Conduct 8.4(d) and (e).
Mole next argues that he was “effectively twice deprived of his right to
be heard.” Mole contends that the hearing he appeared in before Judge
Berrigan was “rendered meaningless” because the en banc court did not adopt
her findings and recommendations. Mole also contends that the en banc court
engaged in independent fact-finding without notifying him or giving him a
....
9 In McCuin, we discussed the lawyer’s conduct in the context of the ABA Code of
Professional Responsibility. See 714 F.2d at 1264–65 (“[F]ederal courts have ordered lawyers
disqualified in situations involving conduct proscribed by the Code.”) The disciplinary rules
of Canon 1 forbid a lawyer from engaging in “conduct that is prejudicial to the administration
of justice” and the disciplinary rules of Canon 9 forbid a lawyer from implying “that he is able
to influence improperly or upon irrelevant grounds any tribunal, legislative body, or public
official.” These rules are almost identical to Louisiana Rules of Professional Conduct 8.4(d)
and (e).
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chance to participate. Yet the en banc court’s “independent fact-finding” was
nothing more than its review of the same record collected by the allotted judge.
As with his earlier arguments, Mole does not cite any supporting legal
authority. Instead, he simply presumes that he should be entitled to appear
twice—once before the allotted judge, and once again before the en banc court.
The law does not support this position.
“Disbarment or suspension proceedings are adversarial and quasi-
criminal in nature. As such, an attorney is entitled to procedural due process
which includes notice and an opportunity to be heard in disbarment or
suspension proceedings.” Dailey v. Vought Aircraft Co., 141 F.3d 224, 229 (5th
Cir. 1998) (citations omitted). Due process in this context is less than that
required by “full criminal procedure” and our precedent “emphatically
dismisses such extensive procedural hoop-jumping for the far less serious
disciplinary sanctions of suspension and reprimand.” Crowe v. Smith, 151 F.3d
217, 230 (5th Cir. 1998).
Here, the en banc court followed its own disciplinary procedures
according to its Rules for Lawyer Disciplinary Enforcement. Mole received
advance notice of the charges against him and had an opportunity to present
a defense and to call witnesses before the allotted judge. Mole’s argument rests
on his presumption that the allotted judge and the en banc court are two
separate, independent tribunals. But under Rule 7 of the district court’s
disciplinary procedures, the allotted judge fulfills a preliminary role by
conducting a hearing and then delivering the record of that hearing, along with
findings and recommendations, to the en banc court, which is the actual
tribunal. Thus, Mole’s appearance before the allotted judge satisfied his right
to be heard before the en banc court, which then reviewed the entire record,
including the earlier hearing. His appearance was not “meaningless” because
the en banc court reviewed and considered his defense; it simply rejected it.
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Furthermore, Mole’s demand to appear before both the allotted judge and the
en banc court actually would render the allotted judge’s hearing meaningless
because it would require the en banc court to conduct its own evidentiary
hearing, with Mole present, before it could impose discipline. Such an approach
would result in the very type of “procedural hoop-jumping” that we have
previously rejected. Id. Because Mole had both notice and an opportunity to be
heard before being disciplined, we find that Mole received adequate due
process.
Mole also argues that any disciplinary action against him has prescribed
under Louisiana law because the alleged misconduct occurred more than
sixteen years ago and his actions were, at worst, negligent. Section 31 of
Louisiana Supreme Court Rule XIX states that “[a] disciplinary complaint, or
the initiation of a disciplinary investigation with regard to allegations of
attorney misconduct, where the mental element is merely negligence, shall be
subject to a prescriptive period of ten years from the date of the alleged
offense.” The rule is thus inapplicable where the misconduct is intentional
rather than negligent. See In re Trahant, 108 So. 3d 67, 75 (La. 2012).
In arguing that his actions were unintentional, Mole resurrects a
familiar theme—he states that the evidence is insufficient to support such a
finding. Here, the en banc court found that Mole’s actions were intentional—a
factual finding subject to clear error review. See Sealed Appellant, 194 F.3d at
670. Because the en banc court’s factual finding of intentional conduct is not
clearly erroneous, prescription does not apply.
Mole argues, in the alternative, that any sanction against him should be
limited to a private admonition. As before, Mole claims that the en banc court’s
conclusion that he hired Gardner to secure Porteous’s recusal is not supported
by clear and convincing evidence. He offers no other argument to explain how
the en banc court abused its discretion in imposing a suspension based on its
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earlier factual findings. Having already held that the en banc court’s factual
findings are not clearly erroneous, we must now consider whether the sanction
imposed is appropriate under the established facts.
“A district court’s imposition of a particular sanction is reviewed for an
abuse of discretion.” Id. “The question before us is not whether we would
[impose the same sanction] but, rather, whether the district court abused its
discretion in doing so.” Id. at 673. “For direction on similar inquiries, the
Louisiana Supreme Court has looked to the ABA’s Standards for Imposing
Lawyer Sanctions.” Id. (citing In re Quaid, 646 So. 2d 343, 350–51 (La. 1994)).
Here, the en banc court considered the ABA standards in detail, accounting for
both aggravating and mitigating factors. Applying the facts of the case to the
applicable standards, the en banc court imposed a one-year suspension with
six months deferred. Because the en banc court considered and applied the
ABA standards before imposing discipline, and because the sanction imposed
is consistent with Louisiana precedent, 10 we hold that the en banc court did
not abuse its discretion in imposing its chosen sanction.
IV.
For the reasons described above, the en banc court’s disciplinary order is
AFFIRMED.
10See, e.g., In re Bolton, 820 So. 2d 548, 553–54 (La. 2002) (imposing one-year
suspension, with six months deferred, where attorney’s negligent ex parte communications
with judge created an appearance of impropriety). Here, the district court found that Mole’s
actions were intentional—a higher level of culpability than that of the respondent in Bolton.
14