In Re: Patrick A. Giraud

Supreme Court of Louisiana
FOR IMMEDIATE NEWS RELEASE NEWS RELEASE #027
FROM: CLERK OF SUPREME COURT OF LOUISIANA
The Opinions handed down on the 26th day of June, 2019, are as follows:
PER CURIAM:
2018-B-1646 IN RE: PATRICK A. GIRAUD
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 Patrick A. Giraud,
Louisiana Bar Roll number 29877, 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 six months of the suspension
shall be deferred. Following the active portion of the
suspension, respondent shall be placed on unsupervised probation
for a period of two years. The probationary period shall be
governed by the conditions set forth in this opinion and shall
commence when respondent and the ODC execute a formal probation
plan. Any failure of respondent to comply with these conditions,
or any misconduct during the probationary period, may be grounds
for making the deferred 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.
WEIMER, J., concurs in part and dissents in part and assigns
reasons.
CLARK, J., dissents in part and concurs in part for the reasons
assigned by Justice Crichton.
HUGHES, J., concurs with reasons.
CRICHTON, J., dissents in part, concurs in part and
assigns reasons.
06/26/19
SUPREME COURT OF LOUISIANA
NO. 2018-B-1646
IN RE: PATRICK A. GIRAUD
ATTORNEY DISCIPLINARY PROCEEDING
PER CURIAM
This disciplinary matter arises from formal charges filed by the Office of
Disciplinary Counsel (“ODC”) against respondent, Patrick A. Giraud, an attorney
licensed to practice law in Louisiana.
UNDERLYING FACTS
On February 3, 2016, the ODC received an overdraft notice regarding a
November 23, 2015 overdraft in respondent’s client trust account. The overdraft
resulted from respondent’s attempt to pay a third-party medical provider for services
rendered to a client who had no funds in the trust account.
Thereafter, the ODC’s forensic auditor conducted an audit of respondent’s
trust account for the period of August 1, 2015 through January 31, 2016. The audit
revealed that respondent regularly paid non-client expenses and made cash
withdrawals from his trust account; these non-client expenses and cash withdrawals
totaled $33,219.33 during the audit period. The audit also revealed that, on January
31, 2016, the trust account balance to satisfy pending client expenditures should have
been at least $16,345.62. Instead, the balance on that date was $3,235.61, resulting
in a deficit of $13,110.01.
On March 17, 2016, respondent informed the ODC that he was addicted to
OxyContin, explaining that “the cost of the medication coupled with its effects on
me overwhelmed my finances and I eventually began to take money from my Trust
account.” He also informed the ODC that he had contacted the Judges and Lawyers
Assistance Program (“JLAP”) and was preparing to enter inpatient treatment. He
further informed the ODC that “I have also gone through my files and paid all
outstanding debts that had been previously withheld from client settlements.” This
last statement was confirmed by the ODC’s audit of respondent’s trust account.
Finally, during his October 26, 2016 sworn statement to the ODC, respondent
admitted that he regularly used his trust account as a second operating account in
2015.
On July 7, 2016, respondent completed a ninety-day inpatient treatment
program at Palmetto Addiction Recovery Center. Palmetto’s medical director
diagnosed respondent with severe opioid use disorder, among other diagnoses. On
July 12, 2016, respondent signed a five-year JLAP recovery agreement.
DISCIPLINARY PROCEEDINGS
In September 2017, the ODC filed formal charges against respondent, alleging
that his conduct violated the following provisions of the Rules of Professional
Conduct: Rules 1.15(a) (safekeeping property of clients or third persons), 1.15(f) (on
client trust accounts, cash withdrawals and checks made payable to “Cash” are
prohibited), and 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or
misrepresentation). In his answer, respondent admitted to violating Rules 1.15(a)
and 1.15(f) but denied violating Rule 8.4(c). The matter then proceeded to a formal
hearing on the merits.
Hearing Committee Report
After considering the evidence and testimony presented at the hearing, the
hearing committee found that respondent used OxyContin daily from 2013 through
early 2016. Respondent admitted that he did not have a prescription for the drug but
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would purchase it from others, including another attorney. He also admitted that he
used his client trust account as an operating account. After being discharged from
Palmetto, respondent voluntarily agreed to be randomly drug tested and has had 24
such drug tests. He also regularly attends Alcoholics Anonymous meetings and
testified that he has not used drugs or alcohol since leaving Palmetto. Finally,
respondent admitted that he violated Rules 1.15(a) and 1.15(f) of the Rules of
Professional Conduct.
Regarding the testimony of Buddy Stockwell, JLAP’s executive director, the
committee found that he described respondent as “so open” and someone who “badly
wanted help.” Mr. Stockwell also indicated that all of the random drug tests
respondent has taken have been negative. Finally, Mr. Stockwell testified that he
does not have any concerns about respondent relapsing.
Regarding the testimony of Angelina Marcellino, the ODC’s forensic auditor,
the committee found that she concluded respondent had misused and converted
funds in his trust account, the total being approximately $13,000 but could have been
as high as $33,000. Ms. Marcellino also reviewed records indicating respondent had
recently made restitution to clients and former clients.
The committee found credible the testimony of respondent and the other
witnesses. The committee also found that the evidence shows respondent
improperly took funds from his trust account to support a drug habit. Following
treatment, respondent has shown no signs of continued violation of the Rules of
Professional Conduct. Based on these facts, the committee determined respondent
violated the Rules of Professional Conduct as alleged in the formal charges.
Regarding mitigating factors, the committee noted that the ODC had
stipulated to the following: absence of a prior disciplinary record, timely good faith
effort to make restitution or to rectify the consequences of the misconduct, and full
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and free disclosure to the disciplinary board and a cooperative attitude toward the
proceedings.
In light of the above findings, the committee recommended respondent be
suspended from the practice of law for one year and one day, fully deferred, subject
to the following conditions:
1. Respondent shall continue to be bound by the terms of his JLAP recovery
agreement for at least two years;
2. Respondent shall obtain regular audits of his trust account, to be performed
by a CPA approved by the ODC;
3. Respondent shall submit the findings of the audits on a quarterly basis to the
ODC for two years;
4. Respondent shall take at least six hours of continuing legal education in the
area of law office practice/client trust account management; and
5. Respondent shall successfully complete the Louisiana State Bar Association’s
Trust Accounting School within one year.
The ODC objected to the leniency of the committee’s recommended sanction,
arguing that the period of deferment is not supported by the record.
Disciplinary Board Recommendation
After review, the disciplinary board determined that the hearing committee’s
factual findings do not appear to be manifestly erroneous and are supported by the
record. The board adopted the committee’s factual findings and additionally found
that respondent ran for traffic court judge in 2011 and 2013 and lost both elections.
Respondent testified that, after his 2013 loss, he felt he had failed in reaching a goal
he had worked toward for many years, and “the bottom dropped out.” Respondent’s
friend gave him OxyContin and told him it would make him feel better and make
him able to function. However, within a couple of weeks, respondent realized he
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was addicted to the drug. The day before respondent wrote the trust account check
that resulted in the overdraft in the account, his friend died of a heroin overdose.
Respondent admitted that his addiction and the effects of the addiction overwhelmed
his finances, and he eventually began taking money from his trust account. The
board further found that the evidence shows respondent always promptly paid his
clients the amount they were owed from settlement funds. The evidence also shows
that, otherwise, respondent mishandled his trust account in 2015. Respondent
testified that his mishandling of the account began in July or August 2015. This
mishandling included paying client costs from the trust account when the client’s
funds were not in the account, failing to disburse from the trust account attorney’s
fees owed to himself, depositing flat fees into the trust account, delaying payments
to third parties after settlement funds were received, and paying personal expenses
from the trust account. Respondent also testified that he used funds from the trust
account to buy OxyContin. Respondent hired an accountant, who has reviewed the
trust account to ensure it is in compliance and who has educated respondent
regarding reconciliation of his bank accounts.
Based on these facts, the board agreed with the committee that respondent
violated the Rules of Professional Conduct as charged. The board then determined
that respondent violated duties owed to his clients, the public, and the legal
profession. At times, respondent acted negligently, knowingly, and intentionally in
mishandling his trust account. The board also determined that respondent never
intended to steal from anyone and his misconduct resulted in no actual harm to his
clients or the public; however, his conduct created the potential for harm to his
clients and third parties. After considering the ABA’s Standards for Imposing
Lawyer Sanctions, the board determined the baseline sanction is suspension.
The board recognized the sole aggravating factor of multiple offenses. In
mitigation, the board found the following: the absence of a prior disciplinary record,
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personal or emotional problems, timely good faith effort to make restitution or to
rectify the consequences of the misconduct, full and free disclosure to the
disciplinary board and a cooperative attitude toward the proceedings, chemical
dependency, and remorse. Regarding respondent’s chemical dependency as a
mitigating factor, the board concluded that, although respondent did not call a
medical provider to testify before the committee about whether his chemical
dependency caused his misconduct, a reasonable review of the evidence supports a
finding of causation in this matter.
After also considering this court’s prior jurisprudence addressing similar
misconduct, the board recommended respondent be suspended from the practice of
law for one year and one day, fully deferred, subject to two years of probation with
the following conditions:
1. Respondent shall enter into a new JLAP agreement for five years, or as
otherwise recommended by JLAP, and shall remain in compliance with its
terms, with periodic reports to the ODC;
2. During the two-year period of probation, respondent shall be required to
obtain, at his cost and expense, quarterly audits of his trust account by a CPA
approved by the ODC, with the audit reports promptly submitted to the ODC;
3. Within one year of the court’s imposition of discipline, respondent shall take
at least six hours of continuing legal education in the area of law office
practice/client trust account management; and
4. Within one year of the court’s imposition of discipline, respondent shall
complete Trust Accounting School.
Neither respondent nor the ODC filed an objection to the disciplinary board’s
recommendation. However, on our own motion, we ordered that the matter be set
on the docket for briefing and oral argument.
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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:
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 mishandled his
client trust account, resulting in conversion of client funds, and used funds from his
trust account to support his addiction to OxyContin. This misconduct amounts to 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 violated duties owed to his clients, the public, and the legal
profession. His misconduct was knowing, if not intentional, but caused no actual
harm to any clients or third parties. The baseline sanction for this type of misconduct
is suspension.
7
The record supports the aggravating and mitigating factors found by the
disciplinary board. Additionally, the aggravating factor of substantial experience in
the practice of law (admitted 2005) is present.
Specifically regarding the mitigating factor of chemical dependency, we agree
with the board that the evidence supports a finding that respondent is affected by a
chemical dependency and that the chemical dependency caused the misconduct. The
evidence also reflects that respondent has sought treatment and has demonstrated a
meaningful period of recovery; he completed a ninety-day inpatient treatment
program at Palmetto Addiction Recovery Center in July 2016 and has been sober for
more than two years. Furthermore, respondent has been subject to a JLAP agreement
since July 2016, and JLAP’s executive director reports that all of the random drug
tests respondent has taken have been negative and that he does not have any concerns
about respondent relapsing. By all accounts, respondent’s recovery has made a
recurrence of his misconduct unlikely.
Nevertheless, this mitigating factor does not justify the fully deferred
suspension recommended by the board. Respondent possessed and used controlled
substances, and funded his habit by converting client funds from his trust account.
Under these circumstances, we find an actual period of suspension is warranted.
Based on this reasoning, we will suspend respondent from the practice of law
for one year and one day, with all but six months deferred, subject to two years of
probation with the conditions set forth in the board’s report, as follows:
1. Respondent shall enter into a new JLAP agreement for five years, or as
otherwise recommended by JLAP, and shall remain in compliance with its
terms, with periodic reports to the ODC;
2. During the two-year period of probation, respondent shall be required to
obtain, at his cost and expense, quarterly audits of his trust account by a
8
CPA approved by the ODC, with the audit reports promptly submitted to
the ODC;
3. Within one year of the court’s imposition of discipline, respondent shall
take at least six hours of continuing legal education in the area of law office
practice/client trust account management; and
4. Within one year of the court’s imposition of discipline, respondent shall
complete Trust Accounting School.
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 Patrick A. Giraud, Louisiana Bar Roll number 29877, 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 six months of the suspension shall be deferred. Following
the active portion of the suspension, respondent shall be placed on unsupervised
probation for a period of two years. The probationary period shall be governed by
the conditions set forth in this opinion and shall commence when respondent and the
ODC execute a formal probation plan. Any failure of respondent to comply with
these conditions, or any misconduct during the probationary period, may be grounds
for making the deferred 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.
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06/26/19
SUPREME COURT OF LOUISIANA
NO. 18-B-1646
IN RE: PATRICK A. GIRAUD
ATTORNEY DISCIPLINARY PROCEEDINGS
WEIMER, J., concurring in part and dissenting in part.
I agree with the majority that discipline is warranted. I respectfully dissent
regarding the sanction, believing a shorter period of actual suspension would fully
advance the goals of the attorney disciplinary system.
“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, 1177-78
(La.1987). In terms of meeting these goals in the instant case, the following actions
by the respondent are significant.
The respondent self-reported that he had a substance abuse problem with opoid
pain medication. Although the respondent had earlier come under scrutiny by the
Office of Disciplinary Counsel (ODC) for overdrawing his client trust account, from
all that appears in the record, the respondent’s opioid abuse might not have come to
light at that time but for his self-reporting.
Concurrent with his self-reporting, the respondent paid all debts attributable
to his misuse of his client trust account and informed the ODC that he planned to
enter an inpatient rehabilitation facility. The respondent made good on his plan and
completed the rehabilitation program. After completing the rehabilitation program,
the respondent entered into a recovery agreement with drug monitoring. In the three
years since completing the rehabilitation program, there have been no reported
incidents calling his recovery from opioid abuse into question. There were no ethical
lapses before the respondent’s addiction, nor have there been any ethical lapses since
his recovery three years ago.1
The respondent’s actions fit within several of the goals this court identified in
Reis. The respondent’s self-reporting and rehabilitation have served to protect the
public. Paying the debts the respondent incurred demonstrated the respondent’s
commitment to preserving the integrity of the legal profession. As found by the
hearing committee and the disciplinary board, no client was directly harmed.
Deterring future conduct, in my view, is one goal that merits special
consideration here. Naturally, the respondent’s rehabilitation serves to deter future
misconduct by the respondent himself. Deterring misconduct by other attorneys is
also important. Ideally, no attorney would abuse opioid pain medication. However,
when this ideal is not attained, self-reporting must be encouraged in order for the
attorney to obtain professional help, make reparations, and deter future misconduct.
Here, the majority’s sanction, with six months of actual suspension, is
significantly greater than that recently imposed in a comparable addiction case; the
majority’s sanction, therefore, could unintentionally discourage self-reporting by
other attorneys. Cf. In re Miciotto, 2016-1757 (La. 11/18/16), 206 So.3d 860. In
Miciotto, an attorney knowingly and intentionally converted almost $13,000 in client
funds to support his gambling addiction. Id., 2016-1757, pp. 1-2, 206 So.3d at 861-
62. The converted funds were quickly replaced and the attorney sought treatment for
his gambling addiction. Id., 2016-1757 at 2, 206 So.3d at 862. The respondent self-
1
As noted by the majority, testimony at the hearing indicated that, because of his sustained recovery,
the likelihood of relapse is low.
2
reported his misconduct to the ODC. Id. This court imposed a fully deferred
suspension. Similarly, in this matter both the hearing committee and the disciplinary
board recommended a fully deferred sanction and the ODC initially did not object.
Opioid addiction has become a difficult public health issue impacting people
in all walks of life. The problem is so prevalent, it has been referred to as the “opioid
epidemic.” See ELINORE F. MCCANCE-KATZ MD, PHD, SUBSTANCE ABUSE &
MENTAL HEALTH SVCS. ADMIN., THE NATIONAL SURVEY ON DRUG USE AND
HEALTH: 2017, p. 4. Using these drugs for temporary pain relief or as a temporary
emotional crutch has far too often led to addictions difficult to overcome. See id.
(describing a “[d]isproportionate increase in drug overdose deaths associated with
opioids ... .”).
Just as society is faced with increasing difficulties from this epidemic, attorney
discipline matters such as this are increasingly challenging. Here, the respondent
made a mistake in his personal life, turning to substance abuse when faced with an
emotional challenge, which in turn involved the attorney disciplinary system when
he misused his trust account. However, he recognized he had a problem, took action
to rectify that problem, and restored all funds before any client was harmed. He also
expressed sincere remorse, evidenced by his compliance with his drug monitoring and
recovery plan. I believe a shorter actual suspension would serve our system of
discipline, given the facts of this case.
Under the totality of circumstances, I would impose a suspension of one year
and one day, deferring all but thirty days. The reason the respondent should serve a
period of actual suspension is that, unlike the addiction to gambling in Miciotto,
which is a lawful activity, the respondent’s addiction here began with abusing opioids
not prescribed to him at a time he faced emotional challenges.
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06/26/19
SUPREME COURT OF LOUISIANA
NO. 2019-B-1646
IN RE: PATRICK A. GIRAUD
ATTORNEY DISCIPINARY PROCEEDING
CLARK, J., dissents in part for the reasons assigned by Justice Crichton.
06/26/19
SUPREME COURT OF LOUISIANA
No. 2018-B-1646
IN RE: PATRICK A. GIRAUD
ATTORNEY DISCIPLINARY PROCEEDING
Hughes, J., concurring.
I reluctantly concur with the disposition of this matter. I would have
preferred that the suspension be totally deferred as recommended by the Hearing
Committee and the Disciplinary Board. Given the other conditions imposed on the
respondent by the court it is unfair to deprive him of his livelihood and at the same
time require him to pay for those conditions. I concur only to resolve this matter at
the court in the belief that it is in respondent’s interest to put this matter behind
him, and I am hopeful that he can do successfully and resume the practice of law
uninterrupted in the future.
06/26/19
SUPREME COURT OF LOUISIANA
NO. 2018-B-1646
IN RE: PATRICK A. GIRAUD
ATTORNEY DISCIPLINARY PROCEEDING
CRICHTON, J., dissents in part and concurs in part and assigns reasons:
I agree with the per curiam’s finding that respondent has violated the Rules of
Professional Conduct as charged, and that respondent’s misconduct warrants a
period of actual suspension. However, despite the significant mitigation evidence
as noted by the majority (chemical dependence and recovery, compliance with his
JLAP agreement, and restitution to his clients), in my view, the seriousness of
respondent’s misconduct is worthy of a lengthier suspension. Specifically,
respondent converted money in his client trust account and on multiple occasions
committed a felony crime, Possession of a Controlled Dangerous Substance,
Schedule II of the Uniform Dangerous Substances Law, La. R.S. 40:964. 1
In determining the appropriate sanction in this matter, although slightly
factually dissimilar, I find In re: Abdalla, 17-0453 (La. 10/18/17), 236 So. 3d 1223,
instructive. Both respondents struggle with addiction, and utilized either a client
trust account or false client billing in order to satisfy that addiction. While
respondent in this instance did not engage in fraudulent behavior as the respondent
did in Abdalla, in that case, the majority voted to disbar respondent. However, as
noted in my dissent in Abdalla, I would have imposed a three-year suspension for
somewhat similar conduct as to respondent’s herein. Again, even acknowledging
1
Respondent initially received the illegal drugs from a friend, who later died of a heroin overdose.
1
factual distinctions between the two cases, I find the imposition of a six month
suspension in this case too lenient, where the Court imposed disbarment in Abdalla
for conduct not substantially dissimilar. In my view, an actual suspension of one
year and one day in this case is warranted, at the conclusion of which respondent
may petition the court for readmission with evidence of his continuing rehabilitative
work with JLAP, as well as his ongoing success in his addiction recovery.
2