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01/16/2009 "See News Release 002 for any Concurrences and/or Dissents."

SUPREME COURT OF LOUISIANA NO. 07-OB-2164 IN RE: APPEAL OF DECISION OF THE DISCIPLINARY BOARD NO. 07-PDB-039

ATTORNEY DISCIPLINARY PROCEEDINGS
JOHNSON, Justice, would grant leave to appeal and assigns reasons. I respectfully dissent from the Court's denial of leave to appeal the decision of the Disciplinary Board. I would grant the leave to appeal, and remand this complaint to the Office of Disciplinary Counsel ("ODC") and order the appointment of a Special Disciplinary Counsel to conduct a full investigation of this matter. This matter arises out of a complaint filed by a criminal defendant against his court appointed attorney. Complainant was charged with second-degree murder. At his arraignment, the complainant asserts that he was approached by the respondent, who inquired whether he could handle the defense of the complainant's criminal case. Complainant agreed, and the respondent was appointed by the Court to defend the complainant. The case proceeded to trial, resulting in a hung jury. Following a second trial, the jury found complainant guilty of manslaughter. The Court sentenced complainant to serve 30 years in prison, at hard labor, without benefit of parole, probation, or suspension of sentence. The Court of Appeal affirmed his conviction, but amended the sentence to remove the prohibition on parole. Complainant's two applications for post-conviction relief, filed with this Court, were denied. Pretermitting any discussion of the underlying merits of the criminal case, my concern is the charge that the complainant's attorney had an undisclosed conflict of interest. In August of 2006, complainant filed this complaint with the ODC where he

suggested that he was prejudiced by an undisclosed conflict of interest on respondent's part, and that respondent's "personal invested interest in the outcome of the case" was created by a relationship between the families of respondent and the victim. Specifically, complainant asserted that he obtained information indicating that the respondent grew up together with the victim, and that respondent's father and the victim's father were family friends, and the two had been law partners at one point in time. Complainant further asserted that the respondent's father was in court daily during his criminal proceedings. Complainant asserted that he was never told of this information by the respondent. Chief Disciplinary Counsel, Charles Plattsmier, assumed responsibility for the investigation of this complaint. A copy of the complaint was sent to respondent for a response. In reply, respondent characterized the complaint as "ridiculous." He asserted that complainant received "competent, diligent and absolutely conflict-free representation at all stages of his criminal prosecution." He also specifically denied any personal knowledge of a relationship between the victim and his father. He

claimed that his father attended the trial because he was retired and had nothing else to do. Following receipt of respondent's response, Mr. Plattsmier dismissed the complaint filed by complainant. Mr. Plattsmier concluded that he did not have information which would support a probable cause finding of misconduct, much less clear and convincing evidence of a rule violation. Mr. Plattsmier stated that the respondent's response made it clear that he never knew the victim and was quite certain that he never knew any of the family member. Thus, he concluded that these serious allegations were refuted, and the only thing that remained for consideration were various "ineffective assistance of counsel" allegations proffered by the
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complainant. The ODC stated that it weighed all of the information that it had obtained and determined there simply was no evidence of a violation of the Rules of Professional Conduct by the respondent. Thus, the ODC concluded that the matter should be closed subject to the complainant's appeal right, and Mr. Plattsmier dismissed the complaint against respondent. The hearing committee unanimously affirmed the ODC's dismissal of the complaint, noting that it was "in complete agreement with the conclusions of the Disciplinary Counsel." Likewise, the disciplinary board agreed that the ODC did not abuse its discretion in dismissing the complaint against respondent. Complainant then petitioned this court for leave to appeal pursuant to Supreme Court Rule XIX,

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