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Supreme Court of Louisiana
FOR IMMEDIATE NEWS RELEASE FROM: CLERK OF SUPREME COURT OF LOUISIANA NEWS RELEASE #060

The Opinions handed down on the 16th day of October, 2012, are as follows:

PER CURIAM 2012-B -0916 IN RE: DONALD S. ZUBER AND CATHERINE SMITH NOBILE Retired Judge Robert L. Lobrano, assigned as Justice ad hoc, sitting for Chief Justice Catherine D. Kimball, recused; retired Judge Hillary J. Crain, assigned as Justice ad hoc, sitting for Justice Jeannette T. Knoll, recused. Upon review of the findings and recommendations of the committee and disciplinary board, and considering the briefs, and oral argument, it is ordered that the formal against respondents, Donald S. Zuber and Catherine Smith be and hereby are dismissed. JOHNSON, reasons. J., concurs in part, dissents in part, and hearing record, charges Nobile, assigns

10/16/12

SUPREME COURT OF LOUISIANA NO. 12-B-0916 IN RE: DONALD S. ZUBER AND CATHERINE SMITH NOBILE

ATTORNEY DISCIPLINARY PROCEEDINGS PER CURIAM*
This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel ("ODC") against respondents, Donald S. Zuber and Catherine Smith Nobile, attorneys licensed to practice law in Louisiana.

UNDERLYING FACTS Elsie Brown filed a medical malpractice claim against Michael Teague, M.D. in 1995. Dr. Teague's malpractice insurer, St. Paul Insurance Company ("St. Paul"), assigned the defense of the claim to Seale, Smith, Zuber & Barnette, LLP. The law firm had previously handled at least ten medical malpractice cases on behalf of Dr. Teague, but these cases had all been dismissed with none having been settled or taken to trial. After the medical review panel found that no breach of professional standards occurred, Ms. Brown filed suit against Dr. Teague. Respondent Donald Zuber, a partner of the Seale, Smith, Zuber & Barnette firm, initially handled the Brown litigation on behalf of Dr. Teague. Mr. Zuber answered the lawsuit, denying liability and requesting a trial by jury. Mr. Zuber was in regular contact with Dr. Teague until 1998, when he transferred the file to

*

Retired Judge Robert L. Lobrano, assigned as Justice ad hoc, sitting for Chief Justice Catherine D. Kimball, recused; retired Judge Hillary J. Crain, assigned as Justice ad hoc, sitting for Justice Jeannette T. Knoll, recused.

his partner, respondent Catherine Smith Nobile. During the time that Ms. Nobile represented Dr. Teague, she inadvertently failed to timely file a jury bond, and as a result, a jury trial was no longer available to Dr. Teague. Ms. Nobile did not inform Dr. Teague of this development, but she did inform St. Paul, to whom she also provided periodic updates concerning the progress of the case. Following a mediation in October 1999, St. Paul settled the malpractice claim against Dr. Teague for $50,000. Notably, Dr. Teague's policy with St. Paul did not contain a "consent to settle" clause, and therefore the insurer was not required to obtain Dr. Teague's consent to the settlement.1 Ms. Nobile left a message with Dr. Teague's office after the mediation to advise him that the case had been settled, but she did not inform him of the mediation before it was held. Dr. Teague was unhappy with the outcome of the medical malpractice case. He subsequently filed a legal malpractice suit against respondents and their law firm. Following a trial in 2005, a jury found in favor of Dr. Teague. Respondents filed a post-trial exception of peremption and prescription and a motion for judgment notwithstanding the verdict, both of which were denied by the trial court. On appeal, the First Circuit granted the exception of peremption and reversed the trial court's judgment in favor of Dr. Teague. Thereafter, Dr. Teague applied to this court, which granted writs and reversed, finding Dr. Teague's cause of action against respondents was not perempted. Teague v. St. Paul Fire & Marine Ins. Co., 07-1384 (La. 2/1/08), 974 So. 2d 1266. On remand to the court of appeal for consideration of respondents' assignments of error, the court of appeal found in favor of respondents and dismissed Dr. Teague's legal malpractice suit with
1

The policy of insurance which Dr. Teague obtained from St. Paul contained the following provision: We'll defend any suit brought against you for damages covered under this agreement. We'll do this even if the suit is groundless or fraudulent. We have the right to investigate, negotiate and settle any suit or claim if we think that's appropriate. [Emphasis added.]

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prejudice. Teague v. St. Paul Fire & Marine Ins. Co., 06-1266 (La. App. 1st Cir. 4/7/09), 10 So. 3d 806, writ denied, 09-1030 (La. 6/17/09), 10 So. 3d 722.

DISCIPLINARY PROCEEDINGS In September 2009, the ODC filed formal charges against respondents, alleging they violated the following provisions of the Rules of Professional Conduct in their representation of Dr. Teague: Rules 1.3 (failure to act with reasonable diligence and promptness in representing a client), 1.4 (failure to communicate with a client), 1.7 (conflict of interest) and/or 1.16 (terminating the representation of a client), 5.1 (responsibilities of partners, managers, and supervisory lawyers), 8.4(a) (violation of the Rules of Professional Conduct), and 8.4(d) (engaging in conduct prejudicial to the administration of justice). Respondents answered the formal charges and denied any ethical misconduct. The matter then proceeded to a formal hearing on the merits,

conducted by the hearing committee in April 2010.

Hearing Committee Report After considering the testimony and evidence presented at the hearing, the hearing committee made factual findings consistent with the underlying facts set forth above. Based upon those facts, the committee determined that both

respondents violated Rule 1.4 of the Rules of Professional Conduct. As to Mr. Zuber, the committee found he kept Dr. Teague reasonably informed at the outset of the representation. However, he never withdrew from the representation, and therefore, upon learning that his partner Ms. Nobile had failed to file the jury bond, Mr. Zuber was required to ensure that Dr. Teague was informed of this development. The committee found Ms. Nobile's violation of Rule 1.4 to be more serious, as she failed to advise Dr. Teague that a jury bond had not been timely
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filed. She also failed to copy Dr. Teague with the evaluation letters that she provided to St. Paul, and she failed to notify him that the matter was scheduled for mediation. The committee found the remaining charges were not proven by clear and convincing evidence. The committee determined that the applicable baseline sanction in this matter is reprimand. In aggravation, the committee found the following factors: refusal to acknowledge the wrongful nature of the conduct and substantial experience in the practice of law (Mr. Zuber was admitted in 1960 and Ms. Nobile was admitted in 1991). In mitigation, the committee found the following factors: absence of a prior disciplinary record and character or reputation.2 Under these circumstances, the committee recommended that Ms. Nobile be publicly reprimanded, and that Mr. Zuber be admonished.3 Both respondents and the ODC filed objections to the hearing committee's report and recommendation.

Disciplinary Board Recommendation After reviewing the matter, the disciplinary board determined that the hearing committee's factual findings are supported by the record and are not manifestly erroneous. The board also determined that the committee correctly applied the Rules of Professional Conduct, except that the board found Ms. Nobile also violated Rule 1.3 based on her negligent failure to timely file the jury bond. Because respondents were found to have violated the Rules of Professional Conduct, the board determined they also violated Rule 8.4(a).

2

The committee also observed in mitigation that Mr. Zuber is now retired and Ms. Nobile is no longer practicing law; however, this finding was rejected by the disciplinary board, as "current occupation" is not enumerated as a mitigating factor in the ABA Standards.
3

Under Supreme Court Rule XIX,

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