Preview:

03/26/2010 "See News Release 022 for any Concurrences and/or Dissents.

SUPREME COURT OF LOUISIANA NO. 10-B-0080 IN RE: MALCOLM R. PETAL

ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM*
This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel ("ODC") against respondent, Malcolm R. Petal. For the reasons that follow, we will accept the recommendation of the disciplinary board, and permanently disbar respondent.

PRIOR DISCIPLINARY HISTORY Before we address the current charges, we find it helpful to review respondent's prior disciplinary history. Respondent Malcolm R. Petal was admitted to the practice of law in the State of Louisiana on October 9, 1998. He has been certified ineligible to practice law since June 2, 2004, based on his failure to comply with his mandatory continuing legal education requirements. Respondent was certified ineligible again on

November 30, 2007, based on his failure to file his trust account authorization form. On January 25, 2008, this court suspended respondent from the practice of law for a period of nine months for failure to comply with the minimum requirements of continuing legal education, neglecting a legal matter, failing to communicate with his

*

Chief Justice Kimball not participating in the opinion.

client, charging a non-refundable legal fee, improperly attempting to settle his malpractice liability, and failing to cooperate with the ODC in its investigation. In re: Petal, 07-1299 (La. 1/25/08), 972 So. 2d 1138. Respondent has not sought reinstatement, and remains suspended from the practice of law. Against this backdrop, we now turn to a consideration of the misconduct at issue in the present proceeding.

DISCIPLINARY PROCEEDINGS Formal Charges The ODC filed two counts of formal charges against respondent. These formal charges allege the following facts: Count 1 On December 11, 2008, Respondent was charged by Superseding Bill of Information for Conspiracy to Bribe a State Official in Connection with a Program Receiving Federal Funds in the matter entitled "United States of America v. William E. Bradley, Malcolm R. Petal," et al, in the United States District Court for the Eastern District of Louisiana, docket number 2:08-CR-176. Respondent and William Bradley were charged with conspiring to give cash payments to Mark S. Smith, an agent of the State of Louisiana, in connection with the approval of $1,350,000 in Louisiana film tax credits. On December 12, 2008, Respondent entered a plea of guilty to one count of the superseding bill of information. Respondent admitted that he paid a total of $135,000 to Bradley contingent upon Smith's approving the tax credits. By the terms of the plea agreement, Respondent agreed to pay restitution to the State of Louisiana in the amount of $1,350,000.

Count 2 On July 24, 2008, Respondent appeared in Civil District Court for the Parish of Orleans on behalf of the plaintiffs in the matters entitled "Malcolm Petal, LIFT, LLC, and Film Factory, LLC v. George Brower, Omni Bancshares, Inc. and Tax Credit Capital, LLC," docket number 08-7070
2

c/w 08-5722. Respondent had previously requested and obtained a temporary restraining order, by way of a petition for damages, against George Brower and Tax Credit Capital, LLC. After a hearing, Respondent was disqualified as counsel for LIFT, LLC and Film Factory, LLC due to his suspension from the practice of law. The court also determined that the request for the temporary restraining order was inappropriate and should not have been sought. In its reasons the court cited Code of Civil Procedure Article 2752 that expressly prohibits the issuance of a temporary restraining order to arrest the seizure and sale of immovable property, as well as the fact that Respondent did not give notice to the defendant. The court assessed damages of $6,556 and attorney's fees of $5,000 against Respondent. Effective June 2, 2004, Respondent has been ineligible to practice due to his failure to comply with mandatory continuing legal education requirements. He has also been ineligible since November 30, 2007, for failure to comply with trust account registration requirements.

The ODC alleged respondent's actions in Count 1 violated Rule 8.4(a)(b) and (c)1 of the Rules of Professional Conduct. It alleged his actions in Count 2 violated Rules 1.1,2 1.16(a),3 3.3(d),4 3.4(c),5 5.5,6 and 8.4(a) and (d).7

1

Rule 8.4(a)(b) and (c) provides: It is professional misconduct for a lawyer to: (a) Violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another; (b) Commit a criminal act especially one that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects; (c) Engage in conduct involving dishonesty, fraud, deceit or misrepresentation ... .

2

Rule 1.1 provides, in pertinent part: (a) A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

3

Rule 1.16 provides, in pertinent part: (continued...) 3

Respondent filed an answer in which he admitted to the allegations of Count 1 but denied the allegations of Count 2. That answer stated, in its entirety: COUNT 1: ADMITTED MITIGATING CIRCUMSTANCE: There is no allegation that I had any actual knowledge of the bribe, I was only convicted of conspiracy to commit bribery for having entered a contingency agreement with a lawyer, I was then deemed liable for the conspiracy when the lawyer bribed a public official. I had no knowledge he would do that with the money, and the government plea is specifically based on that fact. COUNT 2: DENIED
3

(...continued) (a) Except as stated in paragraph (c), a lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if: (1) the representation will result in violation of the rules of professional conduct or other law ... .

4

Rule 3.3 provides, in pertinent part: (d) In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer that will enable the lawyer to make an informed decision, whether or not the facts are adverse.

5

Rule 3.4 provides, in pertinent part: A lawyer shall not: *** (c) knowingly disobey an obligation under the rules of a tribunal, except for an open refusal based on an assertion that no valid obligation exists.

6

Rule 5.5 provides, in pertinent part: (a) A lawyer shall not practice law in violation of the regulation of the legal profession in that jurisdiction, or assist another in doing so.

7

Rule 8.4(a) and (d) provides: It is professional misconduct for a lawyer to: (a) Violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another; *** (d) Engage in conduct that is prejudicial to the administration of justice; 4

I was only attempting to appear in proper person. LA R.S. 212(B) specifically states that nothing in the Statute shall be construed as prohibiting persons from protecting their own business interests. The subsequent statutes in the same scheme take pains to specifically refer to "natural persons," so whether it is the common reading of the statute or not, it is the better reading of the statute that a person should able to protect his or her assets even if held in a Limited Liability Company. Not allowing a person to do so, would lead to the abusrd [sic] consequence that anyone could sue anyone who owns property in a Limited Liability Company and seize [sic] it without that person being able to offer any defense to the Court. Whether you agree with this analysis, I was clearly not attemptinto [sic] represent "another" and this count should be dismissed. That said, I am willing to submit to any penalty the Board recommends. My only request is that as I am a young man, and none of the allegations involved intentional misconduct on my part, or any attempt to enrich myself, that the penalty allow me to prove my character in the future, and at some distant date, be able to reapply for a law license.

Hearing Committee Report The matter proceeded to a formal hearing. Respondent failed to appear at the hearing. The ODC submitted documentary evidence in support of the formal charges, including the judgment of respondent's federal conviction and the factual basis for his guilty plea. The ODC did not call any witnesses. After reviewing the testimony and the evidence presented at the hearing, the hearing committee determined respondent violated the Rules of Professional Conduct as charged. With regard to Count 1, the committee determined respondent was convicted of a serious crime that reflects adversely on his moral fitness to practice law. Turning to Count 2, the committee found respondent initiated and appeared in court proceedings on behalf of another party at a time when he was suspended from the practice of law. In addressing the question of sanctions, the committee noted this court has

5

imposed permanent disbarment where an attorney intentionally engages in the unauthorized practice of law at a time when his license was suspended and knew that he was prohibited from practicing law. In re: Crittenden, 03-0321 (La. 9/5/03), 854 So. 2d 318. The committee also pointed out that this court imposed permanent disbarment as a result of convictions of crimes involving extortion and racketeering, where the attorney's actions were covered extensively by the media and caused "incalculable harm" to the reputation of the legal profession in Louisiana. In re: Edwards, 04-0290 (La. 7/2/04), 879 So. 2d 718. Considering this jurisprudence and the lack of any mitigating factors, the committee recommended respondent be permanently disbarred. Neither respondent nor the ODC filed an objection to the hearing committee's recommendation.

Disciplinary Board Recommendation After reviewing the record, the board determined the factual findings of the committee did not appear to be manifestly erroneous. However, the board observed that the committee failed to make findings on or discuss the second issue in Count 2

Download 2010-B-0080 IN RE: MALCOLM R. PETAL.pdf

Louisiana Law