In Re: Salvador R. Perricone , 263 So. 3d 309 ( 2018 )

Supreme Court of Louisiana
FOR IMMEDIATE NEWS RELEASE NEWS RELEASE #053
FROM: CLERK OF SUPREME COURT OF LOUISIANA
The Opinions handed down on the 5th day of December, 2018, are as follows:
PER CURIAM:
2018-B-1233 IN RE: SALVADOR R. PERRICONE
Upon review of the findings and recommendations of the hearing
committee and disciplinary board, and considering the record, the
briefs, and oral argument, it is ordered that Salvador R.
Perricone, Louisiana Bar Roll number 10515, be and he hereby is
disbarred. His name shall be stricken from the roll of
attorneys, and his license to practice law in the State of
Louisiana shall be revoked. 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.
Retired Judge Gay Gaskins, assigned as Justice ad hoc, sitting
for Guidry, J., recused.
Retired Judge Hillary Crain, assigned as Justice ad hoc, sitting
for Weimer, J., recused.
WEIMER, J., recused.
GUIDRY, J., recused.
CRICHTON, J., additionally concurs and assigns reasons.
12/05/18
SUPREME COURT OF LOUISIANA
NO. 2018-B-1233
IN RE: SALVADOR R. PERRICONE
ATTORNEY DISCIPLINARY PROCEEDING
PER CURIAM *
This disciplinary matter arises from formal charges filed by the Office of
Disciplinary Counsel (“ODC”) against respondent, Salvador R. Perricone, an
attorney licensed to practice law in Louisiana.
UNDERLYING FACTS
The underlying facts of this case are largely undisputed. By way of
background, respondent commenced employment as an Assistant United States
Attorney (“AUSA”) with the United States Attorney’s Office for the Eastern District
of Louisiana (“USAO”) in 1991. At all times relevant to these proceedings,
respondent was a Senior Litigation Counsel and the USAO’s training officer.
During the times pertinent to these proceedings, a New Orleans newspaper,
The Times-Picayune, maintained an Internet website identified as nola.com. The
website typically permitted readers to post comments to news stories using
pseudonyms and/or anonymous identities.
Beginning in or around November 2007 and continuing through March 14,
2012, respondent was a frequent poster of comments on a myriad of subjects on
nola.com, 1 including comments on cases which he and/or his colleagues at the
*
Retired Judge Gay Gaskins, assigned as Justice Ad Hoc, sitting for Guidry, J., recused; Retired
Judge Hillary Crain, assigned as Justice Ad Hoc, sitting for Weimer, J., recused.
1
All nola.com comments cited in this memorandum are set forth precisely as they were posted by
USAO were assigned to prosecute. Of the more than 2,600 comments respondent
posted, between one hundred and two hundred – less than one percent – related to
matters being prosecuted in the USAO. None of the comments identified
respondent by name or as an employee of the USAO. Rather, respondent posted on
nola.com using at least five online identities: “campstblue,” “legacyusa,” “dramatis
personae,” “Henry L. Mencken1951,” and “fed up.”
Count I
In 2009, the FBI and the USAO commenced an investigation into allegations
of corruption against various Jefferson Parish officials. In particular, investigations
included allegations involving improper health insurance contracts between
government entities and/or contractors and an insurance company owned by Tim
Whitmer, the Jefferson Parish Chief Administrative Officer. Among the insurance
contracts under investigation was one with River Birch, Inc., a privately held landfill
company owned by Fred Heebe, whose company had been awarded a $160 million
landfill contract with Jefferson Parish.
In February 2011, a federal grand jury indicted Henry Mouton, a former
member of the Louisiana Wildlife and Fisheries Commission. The indictment
charged that “co-conspirator A” paid Mr. Mouton more than $400,000 to use his
influence with the Commission to force the closure of the Old Gentilly Landfill,
which competed with River Birch. In June 2011, Mr. Mouton pleaded guilty to
conspiracy.
An additional investigation alleged embezzlement by Dominick Fazzio, the
chief financial officer for River Birch, and his brother-in-law, Mark Titus. Mr.
Titus pleaded guilty and cooperated in the subsequent indictment of Mr. Fazzio for
respondent, without corrections of typographical errors, spelling, grammar, or punctuation.
2
fraud and money laundering. Respondent was not on the prosecution team in that
case, which was assigned to United States District Judge Ginger Berrigan in the
Eastern District, but he did enroll for the limited purpose of disqualifying attorney
Stephen London as Mr. Fazzio’s trial counsel.
During the pendency of these investigations and prosecutions, respondent
began commenting on nola.com using the pseudonym “Henry L. Mencken1951”:
If Heebe had one firing synapse, he would go speak to
Letten’s posse and purge himself of this sordid episode
and let them go after the council and public officials.
Why prolong this painYperhaps Queen Jennifer has
something to say about that.[2]
-December 18, 2011, 10:21 a.m.
Heebe comes from a long line of corruptors.
-September 3, 2011, 10:55 a.m.
Heebe’s goose is cooked.
-September 4, 2011, 10:45 a.m.
As regards a nola.com story announcing the indictment of Mr. Mouton,
respondent commented using his pseudonym “legacyusa,” writing:
I read the indictmentYthere is no legitimate reason for
this type of behavior in such a short period of time and
for a limited purpose. GUILTY!!!
-February 26, 2011, 9:16 a.m.
As regards a nola.com article on the indictment of Mr. Fazzio, respondent
posted a comment using his pseudonym “dramatis personae” and wrote:
Well, Mr. Fazzio, I hope you have room in your scrap book
for your conviction and mug shot. London didn’t too
well with Archie Kaufman. You’re next.[3]
-August 5, 2011, 3:09 p.m.
2
“Jennifer” is Mr. Heebe’s wife, Jennifer Sneed, who was a member of the Jefferson Parish
Council when the River Birch contract was approved.
3
Mr. London also represented NOPD officer Archie Kaufman in the Danziger Bridge trial. See
Count III.
3
Following Judge Berrigan’s decision to disqualify Mr. Fazzio’s attorney due
to a conflict, Mr. Fazzio hired Arthur “Buddy” Lemann as his new attorney, as
reported on nola.com. Respondent commented using “Henry L. Mencken1951,”
writing:
Looks like Fazzio got a lemon. That book you refer to
Mr. Rioux is about all of his losses. The guy is a clown
and Fazzio is going down.
-January 13, 2012, 10:36 p.m.
In another post following Judge Berrigan’s disqualification order, respondent
commented as “Henry L. Mencken1951” and wrote:
It’s the right decision. Judges don’t take this action
lightly. There must be something going on we don’t
know about or the TP is too stupid (more likely) to
understand. Please get to the bottom of this, PLEASE!!!
-January 5, 2012, 7:36 p.m.
Radio personality Garland Robinette was featured in an article in The Times-
Picayune which reported that Mr. Heebe provided him a $250,000 interest-free loan
allegedly in exchange for Mr. Robinette’s on-air opposition to reopening the Old
Gentilly Landfill rather than honoring the $160 million River Birch contract. Mr.
Robinette had been notified that he was the subject of an investigation by the FBI
and the USAO. Using “Henry L. Mencken1951,” respondent wrote on nola.com:
Looks like he got another 250K to keep his mouth shut.
What a show!! WWL radio is dead!!!
-September 6, 2011, 10:13 a.m.
TRANSLATION: Heebe’s attorney won’t let me talk, lest
I implicate his client. Additionally, I am New Orleans
Royalty and I don’t have to explain anything to anyone.
-September 7, 2011, 7:59 a.m.
Count II
Respondent prosecuted Mose Jefferson, the brother of Congressman William
Jefferson, in a case in which he was indicted for bribing former Orleans Parish
School Board president Ellenese Brooks-Simms. During the trial, respondent
4
posted comments on nola.com about Mose Jefferson and his attorney, Mike Fawer,
under the pseudonym “campstblue”:
Fawer has screwed his client!!!! He revealed exactly
what Mose needed on the board to get what Mose wanted.
Good job Mike!!!! You’re just as arrogant as Ellenese Y
and the jury knows it.
-August 15, 2009, 9:19 p.m.
They got the corrupted, now they have to get the corruptor.
-August 16, 2009, 7:41 p.m.
In a second indictment not personally prosecuted by respondent, Mose
Jefferson, his sister Betty Jefferson, and Renee Gill Pratt were charged with sending
funds to a Jefferson-controlled non-profit. William Jefferson was then pending trial
on corruption charges in Virginia. Using the name “legacyusa,” respondent posted:
The sad part of all this is that Bill is preventing his siblings
from pleading guilty and cooperating, thus exposing them
to more prison time. Additionally, local defense
attorneys are just milking these cases for their own ego
gratification and financial enrichment. Something is sick
about our system.
-May 22, 2009, 9:40 p.m.
Count III
On September 4, 2005, six days after Hurricane Katrina struck New Orleans,
a group of New Orleans police officers shot at unarmed civilians crossing the
Danziger Bridge. Two persons were killed and four others were wounded. In July
2010, six officers were indicted in federal court for their roles in either the shooting
or the ensuing alleged cover-up of the shooting. United States District Judge Kurt
Engelhardt presided over the trial which commenced on June 22, 2011 and ended on
August 5, 2011, when the jury returned guilty verdicts against all defendants. On
April 4, 2012, Judge Engelhardt sentenced the defendants to terms of incarceration
ranging from 6 to 65 years.
5
While respondent was not part of the prosecution team, he nevertheless posted
comments on nola.com prior to and during the trial, including as the jury was
deliberating. Posting as “dramatis personae,” respondent stated:
I agree with [nola.com poster] Cauane. The same
hurricane that hit Orleans Parish, hit Jefferson, St.
Bernard, Plaquemine, and St. Tammany. Yet, the only
police force to use deadly force throughout the city was
the venerable NOPD. Perhaps we would be safer if the
NOPD would leave next hurricans and let the National
Guard assume all law enforcement duties. GUILTY AS
CHARGED.
-August 3, 2011, 7:06 a.m.
Even prior to the trial, in response to an article regarding a rumored plea by a
police officer co-defendant, respondent, posting as “legacyusa,” warned:
Despite defense attorneys protestations to the contrary, It
would be prudent for those involve to consider the track
record of the US Attorney=s Office. Letten’s people are
not to be trifled with.
-February 23, 2010, 6:17 p.m.
As regards police officer co-defendant Archie Kaufman, respondent wrote:
The cover up is always worse than the crime. Archie,
your time is up.
-February 23, 2010, 10:44 p.m.
Following the publication of an article about a cooperating defendant and
government witness, respondent as “legacyusa” wrote:
The Feds never forget.Ythis officer is doing the right
thing.Ywish the others would, then IT would be over.
-May 20, 2010, 10:41 p.m.
During the trial, respondent as “legacyusa” posted:
NONE of these guys should had have ever been given a
badge. We should research how they got on the police
department, who trained them, who supervised them and
why were they ever been promoted. You put crap in B
you get crap out!!!
-June 22, 2011, 8:19 a.m.
Also during the trial, respondent as “dramatis personae” denigrated the
testimony given by one of the defendants:
6
Where is Madison’s gun? Come on officer, tell us. You
shot because you wanted to be part of something, you
thought, was bigger than you. You let your ego control
your emotions. You wanted to be viewed as a big man
among the other officers. That’s the creed of the NOPD
and I hope the jury ignores your lame explanation and
renders justice for Mr. Madison. To do less, is to sanction
any cop who decides it is in his best interest to put a load
of buckshot in the back of a disabled american in broad
daylight.
-July 28, 2011, 8:16 a.m.
While the jury deliberated, respondent as “dramatis personae” stated:
I don’t think the jury will leave the dead and wounded on
the bridge.
-August 4, 2011, 5:53 p.m.
When respondent’s online commenting was discovered and reported to Judge
Engelhardt, an investigation ensued. Following the investigation, Judge Engelhardt
reversed the convictions of the Danziger Bridge defendants and granted their
motions for new trial, citing “grotesque prosecutorial misconduct,” including
respondent’s online commenting as well as other instances of prosecutorial
misconduct by the USAO, by members of the Department of Justice, and by federal
law enforcement.4 In finding defendants were denied due process, Judge
Engelhardt stated: 5
[I]t is difficult to conceive, much less accept, that this
time-honored constitutional procedure successfully
withstood an attack of the ferocity seen here, a campaign
extending back to the commencement of the DOJ’s active
investigation of this case in 2008, and continuing through
the acceptance of related plea agreements, the indictment,
and the trial itself. To conclude that such misconduct was
only a little unfair, but not enough to be harmful, turns the
fundamental principle of due process on its head.
Judge Engelhardt clearly found the conduct of Perricone to be intentional. Judge
Engelhardt found Perricone “viewed posting of highly-opinionated comments as a
4
United States v. Bowen, 969 F. Supp. 2d 546 (E.D. La. 2013).
5
969 F. Supp. 2d at 617.
7
‘public service.’”6 The district court also found that the fact that the government’s
actions, including Perricone’s actions, were conducted anonymously made “it all the
more egregious, and forces the Court, the defendants, and the public into an indecent
game of ‘catch-me-if-you-can.’”7
The Department of Justice appealed Judge Engelhardt’s decision, and on
August 18, 2015, the United States Fifth Circuit Court of Appeals affirmed the order
and remanded the case for a new trial.8 In so doing, the court noted that the
government acknowledged “significant, repeated misconduct by Perricone,” and
explained:9
The government concedes Perricone “intentionally
committed professional misconduct” violating (a) federal
regulations restricting extrajudicial statements by DOJ
personnel relating to civil and criminal proceedings, (b)
DOJ policies and (c) court and state bar rules of
professional conduct. The government acknowledges that
besides his postings in this case, Perricone posted
“thousands” of anonymous comments on various topics
over the course of several years.
Following this ruling, Judge Engelhardt accepted a plea deal brokered by
defense lawyers and the Department of Justice, which called for the Danziger Bridge
defendants to plead guilty to significantly lesser offenses in exchange for
substantially reduced prison sentences ranging from 3 to 12 years.
DISCIPLINARY PROCEEDINGS
In April 2017, the ODC filed formal charges against respondent. The ODC
alleged that because respondent’s client (the Department of Justice and the USAO)
6
Id. at 619-20.
7
Id. at 626.
8
United States v. Bowen, 799 F.3d 336 (5th Cir. 2015).
9
Id. at 350.
8
forbid extrajudicial statements by an AUSA such as those set forth in the formal
charges, respondent placed his own interests above those of his client, in violation
of Rule 1.7(a)(2) of the Rules of Professional Conduct. The ODC further alleged
that respondent made extrajudicial statements about the guilt or innocence of
defendants and/or others under investigation or prosecution that had a substantial
likelihood of materially prejudicing an adjudicative proceeding, in violation of Rule
3.6, and of heightening public condemnation of the accused, in violation of Rule
3.8(f); that respondent’s conduct was prejudicial to the administration of justice, in
violation of Rule 8.4(d); and that respondent violated or attempted to violate the
Rules of Professional Conduct, or did so through another, in violation of Rule 8.4(a).
Respondent answered the formal charges and admitted the factual allegations
therein, including all of the quoted posts on nola.com. He stated that he made the
anonymous online comments to relieve stress, not for the purpose of influencing the
outcome of a defendant’s trial. He further stated that his anonymous comments did
not identify him as an AUSA, and as such, he did not intend, nor did he reasonably
expect, that his conduct would influence the outcome of a trial, prejudice the fairness
of any subsequent legal proceeding, or otherwise prejudice the administration of
justice. Accordingly, respondent denied violating the Rules of Professional
Conduct.
Hearing Committee Report
Prior to a hearing in the matter, respondent and the ODC filed into the record
a stipulation that respondent violated Rules 3.6, 3.8(f), 8.4(a), 8.4(d) of the Rules of
Professional Conduct. Respondent reserved his right to present evidence of his
mental intent as regards those violations, and all other factors under Supreme Court
Rule XIX, ' 10(C).
9
A hearing in mitigation was conducted. Respondent presented the testimony
of various character witnesses. Additionally, respondent called Dr. Ron Cambias,
his treating psychologist since May 2016. Dr. Cambias testified that respondent
suffered from complex post-traumatic stress disorder (“PTSD”) triggered by
numerous situations in which respondent, who was formerly employed as a police
officer and FBI agent, had witnessed the gruesome deaths of others and had, himself,
been threatened with physical harm, including gunfire. Dr. Cambias opined that
respondent’s online postings were the result of his PTSD.
At the conclusion of the hearing, the committee rendered its report. The
committee explained that respondent testified he thought his blogging activities
would help him to deal with the stress of his work as an AUSA, although he
acknowledged that it actually exacerbated his stress and anxiety. The committee
also discussed the expert testimony of Dr. Cambias. After reviewing this evidence,
the committee found credible respondent’s testimony that he was under a great deal
of stress at work, especially in the period following Hurricane Katrina, when public
corruption being investigated by the USAO was rampant. However, the committee
noted it was “skeptical” of Dr. Cambias’ diagnosis of PTSD and its causative role in
respondent’s blogging, but recognized no countervailing opinion testimony was
offered.
The committee accepted respondent’s stipulations that his actions violated
Rules 3.6, 3.8(f), 8.4(a), and 8.4(d). The committee found that respondent also
violated Rule 1.7(a)(2) by placing his own interests, i.e., his need to “vent” about the
criminal cases being prosecuted by the USAO, above the interests of that office, his
client, in having those cases proceed unimpeded.
The committee determined that respondent violated duties owed to his client,
the public, the legal system, and the profession, and found he acted knowingly. The
10
mistrial granted in the Danziger Bridge case was certainly an actual, serious injury,10
as was the harm done by respondent to the post-Katrina recovery in New Orleans.
Considering the ABA’s Standards for Imposing Lawyer Sanctions, the committee
determined the applicable baseline sanction is suspension.
In aggravation, the committee found the following factors: a selfish (but not
dishonest) motive, a pattern of misconduct, multiple offenses, and substantial
experience in the practice of law (admitted 1979). In mitigation, the committee
recognized that at the time of respondent’s misconduct, there were no regulations,
rules, or guidelines regarding anonymous Internet postings.11 Other mitigating
factors are the absence of a prior disciplinary record, absence of a dishonest motive,
personal or emotional problems, full and free disclosure and a cooperative attitude
toward the disciplinary proceedings, character and reputation, imposition of other
penalties or sanctions, and remorse.
Considering all of these factors, especially the absence of any guidelines or
other authority in the 2007-2012 time period during which respondent’s anonymous,
online postings occurred, and the longstanding harm respondent’s actions caused to
the USAO, a majority of the committee recommended respondent be suspended
from the practice of law for two years, with one year deferred. One member of the
committee would have recommend that the entire suspension be deferred.
10
The committee acknowledged that respondent’s postings were not the sole cause of the mistrial,
and that it would be speculative to consider whether the mistrial would have been granted absent
the other contributing causes.
11
Extrajudicial commentary was addressed in both the guidelines of the Justice Department and
the Rules of Professional Conduct, but nothing addressed anonymous Internet commentary. Both
respondent and former United States Attorney Jim Letten testified that they were unaware of any
such guidelines in the critical 2007-2012 time period.
11
Disciplinary Board Recommendation
After reviewing this matter, the disciplinary board determined that the hearing
committee’s factual findings are not manifestly erroneous, and that the committee
correctly found respondent violated the Rules of Professional Conduct, both as
stipulated (Rules 3.6, 3.8(f), 8.4(a), and 8.4(d)) and as additionally found by the
committee (Rule 1.7(a)(2)).
The board determined that respondent violated duties owed to his client (the
USAO), the public, the legal system, and the profession. He acted knowingly and
intentionally. For example, although his online comments materially prejudiced the
Danziger Bridge case, respondent did not intend that particular outcome. Thus, his
conduct with regard to Rule 3.6 was knowing. However, his conduct with regard
to Rule 3.8(f) was intentional, as there is clear evidence that respondent intended to
heighten public condemnation of various individuals being investigated or
prosecuted by the USAO. As recounted in the formal charges, respondent’s
comments speculated on the guilt of various individuals subject to prosecution or
investigation and cast these individuals in a very negative light. Respondent claims
he did this only to relieve the stress he was under caused by his undiagnosed PTSD.
However, respondent also testified that he engaged in “arguments” with other online
commenters that were not related to matters being investigated or prosecuted by the
USAO, such as LSU football. The board did not find it credible that while
respondent was attempting to influence other commenters regarding benign topics
like LSU football, he was not attempting to influence others with his comments
about the guilt of various individuals subject to investigation or prosecution.
Rather, the board found that respondent intended to heighten public condemnation
of the individuals referenced in the formal charges with his online comments.
12
The board found the actual harm and potential for harm caused by
respondent’s misconduct is significant. Among other things, it found respondent’s
misconduct was a significant factor B although not the sole factor B that led Judge
Engelhardt to grant a new trial in the Danziger Bridge case. It also noted
respondent’s online commenting received significant media attention. These
actions harmed the perception of the legal profession and tarnished the reputation of
the USAO. The publicity that respondent’s conduct received diminished the
public’s faith in the legal system. Additionally, his actions caused delay and
additional expenses in several pending proceedings.
In aggravation, the board found the following factors: a selfish motive, a
pattern of misconduct, multiple offenses, and substantial experience in the practice
of law. In mitigation, the board found the absence of a prior disciplinary record,
absence of a dishonest motive, personal or emotional problems, full and free
disclosure and a cooperative attitude toward the disciplinary proceedings, character
and reputation, imposition of other penalties or sanctions, and remorse.12
However, the board specifically rejected respondent’s argument that the
hearing committee should have recognized the mitigating factor of mental disability
due to his PTSD diagnosis. Citing ABA Standard 9.32(i) and In re: Stoller, 04-
2758 (La. 5/24/05), 902 So. 2d 981, the board found respondent failed to prove his
PTSD caused the misconduct. It pointed out Dr. Cambias testified that someone
with PTSD can operate at a high level and that respondent knew right from wrong.13
12
Although the hearing committee had recognized in mitigation that there were no regulations,
rules, or guidelines regarding anonymous Internet postings at the time of respondent’s misconduct,
the board rejected this as a mitigating factor. The board reasoned that first, this is not a mitigating
factor recognized by the ABA Standards, and second, respondent should not benefit from the lack
of a specific policy or rule prohibiting otherwise unethical misconduct.
13
At this point in its report the board speculated whether respondent and First AUSA Jan Mann
“were aware of each other’s other online commenting as it was occurring,” despite its express
acknowledgment that “this issue was not discussed at length at the hearing or in pleadings.” The
board concluded, based upon a discussion of the issue in Judge Engelhardt’s order, that “collusion”
between respondent and Ms. Mann “undermines Respondent’s claim that his online commentary
13
Thus, there does not appear to be clear and convincing evidence supporting the
causation element. Based on the foregoing, the board concluded that the
committee’s determination that mental disability is not a mitigating factor appears
to be reasonable and not erroneous.
Turning to the issue of an appropriate sanction, the board noted that there is
no disciplinary case law in Louisiana discussing inappropriate extrajudicial
statements by a prosecutor. However, the board took guidance from In re: McCool,
15-0284 (La. 6/30/15), 172 So. 3d 1058, in which an attorney was disbarred for
launching a lengthy social media campaign to affect the outcome of a case she was
handling. The board found that the extensive scope of respondent’s misconduct and
the significant actual and potential harm it caused justifies a sanction on par with
that imposed in McCool.
Based on this reasoning, the board recommended respondent be disbarred.
The board also recommended that respondent be assessed with the costs and
expenses of the proceeding.
One board member dissented as to the sanction, finding that disbarment is not
warranted and that a two- to three-year suspension is appropriate for respondent’s
misconduct.
Respondent filed an objection to the disciplinary board’s recommendation.
Accordingly, the case was docketed for oral argument pursuant to Supreme Court
Rule XIX, § 11(G)(1)(b).
was something he did to relieve the stress caused by his undiagnosed PTSD.” The issue of
“collusion” between respondent and Ms. Mann is not at issue in this matter and therefore it was
highly inappropriate for the board to engage in such speculation.
14
DISCUSSION
The underlying facts of this matter are not in dispute. It suffices to say that
beginning in November 2007 and continuing through mid-March 2012, respondent,
under various pseudonyms, frequently posted comments on an online site.
Although these comments concerned a myriad of subjects, some pertained to cases
which he and/or his colleagues at the USAO were assigned to prosecute. When
discovered, respondent’s actions caused serious, actual harm in the River Birch and
Danziger Bridge cases and, most profoundly, to the reputation of the USAO. There
was a potential for harm in the Jefferson and Gill-Pratt cases.
Respondent stipulated that his conduct violated Rules 3.6, 3.8(f), 8.4(a), and
8.4(d) of the Rules of Professional Conduct. He did not admit to the violation of
Rule 1.7(a)(2) alleged in the formal charges, but that rule violation was found by
both the hearing committee and the disciplinary board, and respondent did not lodge
an objection in this court to said finding. Accordingly, like the underlying facts, the
rule violations in this matter are not in dispute.
We now turn to a determination of the appropriate sanction for respondent’s
actions. In determining a sanction, we are mindful that disciplinary proceedings are
designed to maintain high standards of conduct, protect the public, preserve the
integrity of the profession, and deter future misconduct. Louisiana State Bar Ass=n
v. Reis, 513 So. 2d 1173 (La. 1987). The discipline to be imposed depends upon
the facts of each case and the seriousness of the offenses involved considered in light
of any aggravating and mitigating circumstances. Louisiana State Bar Ass=n v.
Whittington, 459 So. 2d 520 (La. 1984).
Here, respondent violated duties owed to his client, the public, the legal
system, and the profession. Respondent acted knowingly in that he knew his online
postings were forbidden; however, he did not make the posts with the specific intent
15
to harm the outcome of the various criminal proceedings. Respondent acted
intentionally in that he intended his posts would have the effect of heightening public
condemnation of the individuals referenced in the formal charges.
Standard 5.22 of the ABA’s Standards for Imposing Lawyer Sanctions
provides that 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.
Considering this standard, the applicable baseline sanction in this matter is
suspension.
In aggravation, the following factors apply: a selfish motive, a pattern of
misconduct, multiple offenses, and substantial experience in the practice of law. In
mitigation, the following factors apply: absence of a prior disciplinary record,
absence of a dishonest motive, personal or emotional problems, full and free
disclosure and a cooperative attitude toward the disciplinary proceedings, character
and reputation, imposition of other penalties or sanctions, and remorse.
Respondent’s arguments in this court center almost entirely on whether we
should recognize the mitigating factor of mental disability due to his diagnosis of
complex PTSD. In In re: Stoller, 04-2758 (La. 5/24/05), 902 So. 2d 981, we cited
four criteria which must be met for respondents to properly assert chemical
dependency or mental disability as a mitigating factor: (1) there is medical evidence
that the respondent is affected by a chemical dependency or mental disability; (2)
the chemical dependency or mental disability caused the misconduct; (3) the
respondent’s recovery from the chemical dependency or mental disability is
demonstrated by a meaningful and sustained period of successful rehabilitation; and
(4) the recovery arrested the misconduct and recurrence of that misconduct is
unlikely. The ABA commentary indicates that in considering issues of chemical
16
dependency or mental disability offered as mitigating factors in disciplinary
proceedings, the “greatest weight” should be assigned when the disability is the sole
cause of the offense.
As noted by the board, the focus of the inquiry in the instant case is on the
second factor – namely, whether respondent’s PTSD caused the misconduct at issue.
Based on our review of the record, we find no clear and convincing support for the
conclusion that respondent’s mental condition had any causative effect on his
misconduct. Respondent’s psychologist testified that someone with PTSD can
operate at a high level and that respondent knew right from wrong. This testimony
is corroborated by respondent’s own admission that even before his conduct was
discovered, he knew he should not be engaged in posting extrajudicial comments.
When asked why he engaged in commenting in a prohibited way, respondent
candidly admitted that he was angry over public corruption and he vented this anger
in the caustic criticism leveled against all who, in his judgment, warranted
accountability, even though he knew this was improper.
Respondent’s own testimony reveals he was aware that he should not post
these comments, yet he decided to do so anyway. Clearly, any mental disability
from which respondent suffered did not prevent him from knowing his actions were
wrong. Under these circumstances, we find absolutely no support for the
conclusion that respondent has proven his mental condition caused the misconduct.
Accordingly, we decline to consider his mental disability in mitigation.
In formulating an appropriate sanction, we acknowledge the situation
presented in this case is res novo in our jurisprudence, and our prior case law
provides little useful guidance. However, we begin from the well-settled
proposition that public officials (and prosecutors in particular) are held to a higher
standard than ordinary attorneys. In re: Griffing, 17-0874 (La. 10/18/17), 236 So.
173d 1213. Respondent was clearly in an important position of public trust. His
actions betrayed that trust and caused actual harm to pending prosecutions. Once
discovered, his conduct tarnished the reputation of the USAO and brought the entire
legal profession into disrepute.
In this age of social media, it is important for all attorneys to bear in mind that
“[t]he vigorous advocacy we demand of the legal profession is accepted because it
takes place under the neutral, dispassionate control of the judicial system.” Gentile
v. State Bar of Nevada, 501 U.S. 1030, 1058 (1991). As the Court in Gentile wisely
explained, “[a] profession which takes just pride in these traditions may consider
them disserved if lawyers use their skills and insight to make untested allegations in
the press instead of in the courtroom.” Id.Respondent’s conscious decision to vent his anger by posting caustic,
extrajudicial comments about pending cases strikes at the heart of the neutral
dispassionate control which is the foundation of our system. Our decision today
must send a strong message to respondent and to all the members of the bar that a
lawyer’s ethical obligations are not diminished by the mask of anonymity provided
by the Internet.
In summary, considering respondent’s position of public trust as a prosecutor,
his knowing and intentional decision to post these comments despite his
acknowledgment that it was improper to do so, and the serious harm respondent’s
conduct has caused both to individual litigants and to the legal profession as a whole,
we must conclude he has failed to comply with the high ethical standards we require
of lawyers who are granted the privilege to practice law in this state. The only
appropriate sanction under these facts is disbarment.14
14
Respondent suggested that he should be entitled to credit for the time he has spent away from
the practice of law on a “voluntary” basis. Absent a formal interim suspension, there is no
authority in Rule XIX for making discipline retroactive, and we decline to do so here. The period
for seeking readmission from respondent’s disbarment shall commence from the finality of our
18
DECREE
Upon review of the findings and recommendations of the hearing committee
and disciplinary board, and considering the record, the briefs, and oral argument, it
is ordered that Salvador R. Perricone, Louisiana Bar Roll number 10515, be and he
hereby is disbarred. His name shall be stricken from the roll of attorneys, and his
license to practice law in the State of Louisiana shall be revoked. 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.
judgment in this case.
19
12/05/18
SUPREME COURT OF LOUISIANA
NO. 2018-B-1233
IN RE: SALVADOR R. PERRICONE
ATTORNEY DISCIPLINARY PROCEEDING
CRICHTON, J., additionally concurs and assigns reasons
I agree with the per curiam in all respects, and in particular, that respondent
has failed to prove by clear and convincing evidence that Post Traumatic Stress
Disorder was the cause for his misconduct. I write separately to note that this case
highlights the difference between disbarment and permanent disbarment in attorney
disciplinary proceedings. 1 Respondent took a voluntary absence from the practice
of law during the pendency of these proceedings (approximately five years), in lieu
of receiving an interim suspension. However, as the per curiam discusses in footnote
10, absent a formal interim suspension, La. Supreme Court Rule XIX does not
provide authority for respondent to receive credit for self-imposed absence from the
profession.2 Had respondent agreed to interim suspension at the outset and received
disbarment upon conclusion of formal disciplinary proceedings, respondent would
be legally entitled to file a petition for reinstatement much sooner than under the
1
Appendix E of Rule XIX provides the Guidelines for disbarment, and under Supreme Court Rule
XIX, § 24(A), permanent disbarment prohibits an attorney from ever being readmitted to the
practice of law in this state. Regular disbarment allows an attorney to petition for readmission five
years after the effective date of disbarment.
2
Rule XIX, § 24(A) states that a lawyer who has been placed on interim suspension and is then
disbarred for the same misconduct that was the ground for the interim suspension may petition for
readmission at the expiration of five years from the effective date of the interim suspension. This
rule also states that when a lawyer is placed on interim suspension and is then suspended for the
same misconduct that was the ground for the interim suspension, at the court’s discretion, the term
of the suspension may be applied retroactively to the date of the interim suspension. This Court
has historically chosen to exercise our discretion in order to make suspensions run retroactive to
the date of prior interim suspensions. See, e.g., In re: Lacobee, 03–2010 (La.2/20/04), 866 So.2d
237; In re: Gaudin, 00–2966 (La.5/4/01), 785 So.2d 763; In re: Ferrouillet, 99–3434 (La.6/30/00),
764 So.2d 948; In re: Edwards, 99–1783 (La.12/17/99), 752 So.2d 801; In re: Sterling, 08–2399
(La.1/30/09), 2 So.3d 408.
1
present circumstances. In other words, the sanction of disbarment imposed at this
point in respondent’s profession, at the age of 67, is arguably akin to permanent
disbarment and essentially a legal profession death sentence. Whether respondent
would ever be readmitted – even conditionally readmitted – is a question for another
day, but the sanction of disbarment now precludes any consideration of it for five
years from the date of this opinion.
2