In Re: Paul E. Brown , 252 So. 3d 468 ( 2018 )

Supreme Court of Louisiana
FOR IMMEDIATE NEWS RELEASE NEWS RELEASE #043
FROM: CLERK OF SUPREME COURT OF LOUISIANA
The Opinions handed down on the 18th day of September, 2018, are as follows:
PER CURIAM:
2017-B-1930 IN RE: PAUL E. BROWN
Upon review of the findings and recommendations of the hearing
committee and disciplinary board, and considering the record,
briefs, and oral argument, it is ordered that Paul Eugene Brown,
Louisiana Bar Roll number 1736, be and he hereby is suspended
from the practice of law for a period of one year and one day.
It is further ordered that all but ninety days of this suspension
shall be deferred, subject to a two-year period of probation and
the other conditions set forth in this opinion. Any failure to
comply with these conditions or other misconduct during the
probationary period may be grounds for making the deferred
portion of the suspension executory or imposing other 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.
WEIMER, J., dissents for the reasons assigned by Crichton, J.
HUGHES, J., dissents for the reasons assigned by Crichton, J.
CRICHTON, J., dissents and assigns reasons.
09/18/18
SUPREME COURT OF LOUISIANA
NO. 2017-B-1930
IN RE: PAUL E. BROWN
ATTORNEY DISCIPLINARY PROCEEDING
PER CURIAM
This disciplinary matter arises from formal charges filed by the Office of
Disciplinary Counsel (“ODC”) against respondent, Paul E. Brown, an attorney
licensed to practice law in Louisiana.
UNDERLYING FACTS
In 2012, respondent was involved in an automobile accident that caused
injuries to the driver of the other vehicle. Respondent was under the influence of a
prescription drug, butalbital with codeine, at the time of the accident. Respondent
was arrested and charged with second offense DWI, 1 careless operation of a motor
vehicle, obstruction of justice, and vehicular negligent injuring.
In August 2013, respondent pleaded no contest to DWI, careless operation,
and vehicular negligent injuring. For each count, he was sentenced to serve six
months in the parish jail, with credit for time served; the sentence was suspended
and respondent was placed on unsupervised probation for six months with
conditions, including payment of a fine plus costs and completion of community
service.
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Respondent was first arrested for DWI in 2003. He was placed on probation in connection with
that offense. In 2004, the Terrebonne Parish District Attorney’s Office nolle prosequied the
charges. The ODC was not aware of this arrest.
Following his conviction, the ODC referred respondent to the Judges and
Lawyers Assistance Program (“JLAP”) for an evaluation. In February 2014,
respondent was evaluated by a clinical psychologist, Alexandra Casalino, Psy.D. Dr.
Casalino expressed concern about respondent’s long history of prescribed opioid
usage beginning in 1996 for chronic headaches, TMJ, and neck pain, and his use of
psychotropic medications (Prozac) for sleep disturbances and depressive
experiences. Respondent denied abusing prescription drugs and indicated to Dr.
Casalino that he did not believe he had a problem. Based on the information
gathered by Dr. Casalino, she concluded that a definitive diagnosis of substance
abuse or dependence could not be made, and she recommended that respondent
undergo an inpatient professional assessment at a JLAP-approved facility.
In April 2015, respondent was admitted to Palmetto Addiction Recovery
Center for a three-day inpatient evaluation. According to the April 30, 2015
discharge report, respondent “easily met criteria” of the DSM-IV for diagnoses of
sedative/hypnotic use disorder, moderate to severe, and opiate use disorder,
moderate to severe. He used larger amounts of opiates and sedative/hypnotics over
a longer time than intended, and was unable to cut down or stop using over the past
several years. He described social and occupational dysfunction related to his drug
usage and used while engaged in physically hazardous activities (driving). He also
used opiates and sedative/hypnotics with a concurrent diagnosis of hypertension and
while on medication for hypertension. Finally, the report indicated that respondent
had developed a tolerance and experienced mild withdrawal symptoms from his
substance use. Accordingly, Palmetto recommended that respondent complete a
long-term inpatient treatment program followed by the execution of a five-year
JLAP recovery agreement. Palmetto also recommended that respondent taper off all
controlled medications under medical supervision and that he complete inpatient
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treatment “before consideration for return to the practice of law.” Respondent
declined to comply with Palmetto’s recommendations.
DISCIPLINARY PROCEEDINGS
In September 2014, the ODC filed formal charges against respondent, alleging
that his conduct violated Rules 8.4(a) (violation of the Rules of Professional
Conduct) and 8.4(b) (commission of a criminal act that reflects adversely on the
lawyer’s honesty, trustworthiness, or fitness as a lawyer) of the Rules of Professional
Conduct. Respondent answered the formal charges and essentially admitted his
misconduct, but requested a hearing in mitigation.
Mitigation Hearing
The hearing committee conducted the mitigation hearing over the course of
two days in August and November 2016. Respondent introduced documentary
evidence at the hearing, including: (1) two letters, dated June 13, 2014 and August
3, 2016, written by Todd Arcement, D.C., a chiropractor who treated respondent for
twenty years; (2) two letters, dated May 10, 2014 and August 1, 2016, written by
Michael Marcello, M.D., respondent’s primary physician who treated him for more
than thirty years; (3) the report prepared by Dr. Casalino following her evaluation of
respondent in February 2014; and (4) the report prepared by Jay Weiss, M.D., the
medical director of Palmetto, following respondent’s inpatient evaluation in April
2015.
Respondent testified that he has had a long-standing issue with chronic pain.
He has had headaches since he was a child, and in law school he developed TMJ. In
1996 he suffered a serious neck injury after being hit by a drunk driver who had run
a stop sign. As a result, respondent had problems with headaches and neck pain.
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Respondent testified that ten years prior to that accident, he was rear-ended in
another automobile accident, but noted that it “wasn’t much of anything.” Then, in
2008, respondent was hit by a car while stopped at a red light. Finally, in 2015,
respondent was rear-ended while sitting in traffic. According to respondent, these
accidents aggravated his condition.
Respondent testified that Dr. Marcello and Dr. Arcement worked together to
manage his pain. Along with physical therapy and chiropractic care, respondent
tried “just about every kind of medication” to alleviate his problems. Then, in 2012,
he was given butalbital with codeine to help relax his muscles and help with the pain.
Respondent indicated that he took his medication as prescribed. Respondent
testified that the last time he took this medication was the night before the August
2012 accident; however, he also had been experiencing vertigo and high blood
pressure, which he felt were more likely causes of the accident than the medication.
Respondent testified that he has since discontinued the medication and has received
several epidural steroid injections. Respondent testified that since receiving the
injections in May, June, and July 2016, he has not taken any pain medication, muscle
relaxers, or anything else. Respondent testified that he “got relief from the very first
shot and then it got better the second shot and then the third.” Due to the success of
these shots, respondent testified that he now only takes blood pressure medicine.
Respondent denied that he has a drug problem warranting substance abuse
treatment or the requirement that he execute a JLAP agreement. Respondent
emphasized that in the past he has taken only pain medication prescribed to him by
“a doctor that knew my history for 30 years. And I took the medication as
prescribed.” Moreover, he reiterated that as of 2016, he is no longer taking any pain
medication. Respondent testified that he is sober at this time and does not need any
help in staying sober, as recommended by the professionals at Palmetto.
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Hearing Committee Report
Following the hearing, the hearing committee determined that for an extended
period of time, respondent has been dependent upon, if not addicted to, opiates and
sedatives, for which he had developed a high tolerance. His addiction was such that
he had developed withdrawal from the medications. While recognizing that
respondent has recently made vast improvements in limiting his prescription drug
usage, the committee nonetheless recommended that respondent execute a five-year
JLAP recovery agreement as a condition of a fully deferred one year and one day
suspension.
Respondent filed an objection to the sanction and conditions recommended
by the hearing committee.
Disciplinary Board Recommendation
After review, the disciplinary board determined that the hearing committee
erred in finding that respondent had experienced withdrawal symptoms.
Additionally, the board noted that respondent stopped using pain medication several
months prior to the hearing and has had success with alternative treatments to
manage his pain.
Therefore, the board recommended that respondent be suspended from the
practice of law for one year and one day, fully deferred, subject to a two-year period
of probation. Given the change in circumstances since respondent’s last evaluation
at Palmetto in 2015, the board also recommended that he undergo an updated
substance abuse evaluation at a JLAP-approved facility and comply with whatever
conditions are recommended pursuant to that evaluation.
The ODC filed an objection to the board’s recommendation, and accordingly,
the case was docketed for oral argument pursuant to Supreme Court Rule XIX, §
11(G)(1)(b). The ODC noted that the board had failed to set forth a time period
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within which respondent was required to undergo the updated evaluation, and that
the recommended two-year probationary term failed to allow for an increased term
of supervision should such be required following the evaluation. In his brief to this
court, respondent also objected to the board’s recommendation insofar as it requires
him to undergo another substance abuse evaluation. He claimed that since the first
evaluation at Palmetto in 2015, he has pursued alternative treatments for his chronic
pain and is free of using opiates.
Interim Order of the Court
Following oral argument, we issued an interim order on May 14, 2018 which
provided, in pertinent part:
IT IS ORDERED that within thirty days of the date of this
order, respondent shall submit to an updated substance
abuse evaluation at a facility approved by the Judges and
Lawyers Assistance Program. Following the evaluation,
the parties shall cause a copy of the report of the evaluation
to be filed in this court as soon as practicable.
IT IS FURTHER ORDERED that the record of this matter
shall be held open pending the filing of the report of the
evaluation. The parties may file supplemental briefs
addressing the report within ten days of the filing thereof.
On June 11, 2018, respondent submitted to a three-day evaluation at the
Professionals’ Wellness Evaluation Center (“PWEC”) in Alexandria, a facility
approved by JLAP. On June 20, 2018, PWEC released its report, indicating that
respondent’s hair test was positive for opiates, despite his claim that he was no longer
taking opioid pain medication, and that respondent has an untreated substance use
disorder which will require long-term inpatient treatment at a JLAP-approved
facility.
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On June 29, 2018, the ODC forwarded the PWEC report to this court. By
order dated July 5, 2018, we formally received the report into evidence. Thereafter,
both parties filed responses to the PWEC report.
In its response, the ODC suggests that respondent has not been truthful
concerning his continuing use of prescription drugs and that a fully deferred
suspension is no longer appropriate in light of his untreated substance abuse issues.
Rather, the ODC urges the court to impose a one year and one day suspension, with
no portion thereof deferred.
In his response, respondent states that he suffered severe pain after falling in
his kitchen in January 2018, causing injuries to his head, neck, and back. To relieve
the pain, he took the remains of an old prescription for hydrocodone that he had in
his medicine cabinet. However, respondent represents that he did not disclose his
use of hydrocodone when he was evaluated at PWEC in June 2018 because he did
not recall this accident; instead, his memory of the accident was only triggered when
he received the results of his hair test, which was positive for recent use of
hydrocodone. Respondent concludes that he is willing to undergo regular “stand
alone” monitoring for drug and alcohol use, but that he is not in need of inpatient
substance abuse treatment.
DISCUSSION
Bar disciplinary matters fall within the original jurisdiction of this court. La.
Const. art. V, § 5(B). 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. In re: Banks, 09-1212 (La. 10/2/09),
18 So. 3d 57. While we are not bound in any way by the findings and
recommendations of the hearing committee and disciplinary board, we have held the
manifest error standard is applicable to the committee’s factual findings. See In re:
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Caulfield, 96-1401 (La. 11/25/96), 683 So. 2d 714; In re: Pardue, 93-2865 (La.
3/11/94), 633 So. 2d 150.
The record of this matter supports a finding that respondent pleaded no contest
to first offense DWI, careless operation of a motor vehicle, and vehicular negligent
injuring. This conduct is a violation of the Rules of Professional Conduct as charged.
Having found evidence of professional misconduct, 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).
Respondent negligently violated duties owed to the public and the legal
profession, causing potential and actual harm. The baseline sanction for this type of
misconduct is suspension.
There are several mitigating factors supported by the record, including the
absence of a prior disciplinary record, absence of a dishonest or selfish motive,
personal or emotional problems, character and reputation, remorse, and the
imposition of other penalties or sanctions. Moreover, there is no evidence to indicate
that any client was adversely impacted by respondent’s conduct. In aggravation,
respondent has substantial experience in the practice of law (admitted 1983) and has
engaged in illegal conduct.
In In re: Baer, 09-1795 (La. 11/20/09), 21 So. 3d 941, we stated the following
with respect to appropriate sanctions for DWI offenses:
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We have imposed sanctions ranging from actual periods
of suspension to fully deferred suspensions in prior cases
involving attorneys who drive while under the influence
of alcohol. However, as a general rule, we tend to
impose an actual suspension in those instances in which
multiple DWI offenses are at issue, as well as in cases in
which the DWI stems from a substance abuse problem
that appears to remain unresolved. [Emphasis added.]
In this case, respondent, like a growing number of people in our country,
developed an addiction to medications that were validly prescribed by his physician
to relieve severe and chronic pain. As shown by the PWEC evaluation, he clearly
requires long-term inpatient treatment to successfully address this unfortunate
disease, but thus far he has been reluctant to agree to participate in such treatment.
In order to fulfill our role of ensuring the public is protected, we conclude it is
necessary to fashion a suspension which is responsive to respondent’s current
misconduct and provides him with an adequate opportunity to address his substance
abuse issues so he may safely practice law in the future.
Accordingly, we will suspend respondent from the practice of law for one year
and one day. In view of the mitigating factors, we will defer all but ninety days of
this suspension, subject to a two-year probationary period and with the condition
that during the active period of his suspension, respondent shall enter into long-term
inpatient treatment at a JLAP-approved facility, as recommended by PWEC.
Thereafter, he shall comply with any and all recommendations made by the
treatment facility and JLAP, including, but not limited to, entering into a JLAP
recovery agreement. Should respondent fail to comply with any of these conditions
or commit any misconduct during the probationary period, the ODC shall have the
right to file a summary petition in this court requesting that the deferred portion of
respondent’s suspension be made immediately executory, or requesting other relief
as appropriate.
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DECREE
Upon review of the findings and recommendations of the hearing committee
and disciplinary board, and considering the record, briefs, and oral argument, it is
ordered that Paul Eugene Brown, Louisiana Bar Roll number 1736, be and he hereby
is suspended from the practice of law for a period of one year and one day. It is
further ordered that all but ninety days of this suspension shall be deferred, subject
to a two-year period of probation and the other conditions set forth in this opinion.
Any failure to comply with these conditions or other misconduct during the
probationary period may be grounds for making the deferred portion of the
suspension executory or imposing other 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.
10
09/18/18
SUPREME COURT OF LOUISIANA
NO. 17-B-1930
IN RE: PAUL E. BROWN
ATTORNEY DISCIPLINARY PROCEEDINGS
WEIMER, J., dissents for reasons assigned by Justice Crichton.
09/18/18
SUPREME COURT OF LOUISIANA
No. 2017-B-1930
IN RE: PAUL E. BROWN
ATTORNEY DISCIPLINARY PROCEEDING
Hughes, J., dissents for the reasons assigned by Crichton, J.
09/18/18
SUPREME COURT OF LOUISIANA
No. 17-B-1930
IN RE: PAUL BROWN
ATTORNEY DISCIPLINARY PROCEEDING
CRICHTON, J., dissents and assigns reasons:
I dissent in what I believe is a premature disposition of respondent’s case. The
majority’s per curiam ignores respondent’s prayer for an opportunity to be heard as
to the January 2018 incident and the June 2018 PWEC report. Specifically, in my
view, respondent should be allowed the opportunity to confront and cross-examine
the methodology and results of the test as well as an opportunity to provide an
explanation under oath as to these issues. Anything less offends fundamental due
process, which we must extend to all parties, including lawyers. Accordingly, in
lieu of immediately implementing sanctions, I would instead remand the matter for
an evidentiary hearing.