In re John H. CLEGG.

Decision Date06 July 2010
Docket NumberNo. 2010-B-0323.,2010-B-0323.
Citation41 So.3d 1141
PartiesIn re John H. CLEGG.
CourtLouisiana Supreme Court

41 So.3d 1141

In re John H. CLEGG.

No. 2010-B-0323.

Supreme Court of Louisiana.

July 6, 2010.


41 So.3d 1142

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41 So.3d 1143

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41 So.3d 1144

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Chares Bennett Plattsmier, Baton Rouge, for Applicant.

The Schiff Law Corporation, Leslie J. Schiff, John H. Clegg, for Respondent.

ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.*

This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel ("ODC") against respondent, John H. Clegg, an attorney licensed to practice law in Louisiana. For the reasons that follow, we suspend respondent from the practice of law for a period of one year and one day, with all but six months deferred, followed by a two-year period of probation.

UNDERLYING FACTS

The facts of this matter are largely undisputed. Respondent was a partner in the New Orleans law firm of McGlinchey Stafford (hereinafter referred to as "McGlinchey" or "the firm"). During the summer of 2006, the managing partners of the firm began to receive reports about respondent that caused them concern. These included accounts that respondent's office hours and billings were erratic, his appearance was disheveled, and he had been seen in areas of the city where it was known drugs could be acquired. In an effort to help respondent, the partners consulted with Bill Leary, the Executive Director of the Lawyers Assistance Program ("LAP"), and together with Mr. Leary performed an intervention. During the intervention, respondent admitted he was using crack cocaine.1 With the support of the partners, Mr. Leary made arrangements for respondent to be admitted to a ninety-day inpatient treatment program at Pine Grove in Hattiesburg, Mississippi.

41 So.3d 1145

alleging that, by using and possessing cocaine, he has violated Rules 8.4(a) (violation of the Rules of Professional Conduct) and 8.4(b) (commission of a criminal act, especially one that reflects adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer in other respects) of the Rules of Professional Conduct. Respondent answered the formal charges and admitted he was employed by the firm in 2006, but he otherwise denied all allegations.

Respondent subsequently filed with the hearing committee chair a motion to seal the record of this disciplinary matter and a motion seeking a protective order, asserting that the evidence of his alleged misconduct is privileged and confidential because it stems from a source (his former law partners) bound by confidentiality pursuant to La. R.S. 37:221. The ODC objected, arguing the privilege is applicable only to LAP and the Committee on Alcohol and Drug Abuse of the Louisiana State Bar Association, of which respondent's former law partners are not members, employees, or agents.

By order dated May 23, 2008, the hearing committee chair denied the motion to seal and the motion for a protective order. The chair reasoned that the confidentiality provisions contained in La. R.S. 37:221(B) apply to LAP and to the Committee on Alcohol and Drug Abuse, but they do not extend to third parties such as the individual partners of respondent's former law firm. The chair also noted that the LAP contract executed by respondent contains a provision expressly waiving confidentiality.3

The formal charge matter was initially set for a hearing on the merits in February 2009. The ODC declared its intention to call respondent's former law partners as witnesses at the hearing to testify in support of the allegations of the formal charges. Respondent objected to any such testimony, reiterating his argument that these witnesses are bound by confidentiality under La. R.S. 37:221 and Supreme Court Rule XIX, § 16(J). After consideration, the committee again rejected respondent's argument, reasoning "there is no confidentiality" as to the law firm under either provision. Nevertheless, the committee agreed to stay the formal charge hearing pending respondent's filing of a writ application with this court. On April 17, 2009, this court denied respondent's writ application with the following order:

Denied. Premature. The parties may raise these issues by objection after the filing of the disciplinary board's recommendation. See Supreme Court Rule XIX, Section 11(G).

In re: Clegg, 09-0500 (La.4/17/09), 6 So.3d 796.

Formal Hearing

Following the April 17, 2009 action of this court, this matter was reset for hearing before the hearing committee on August 7, 2009.4 We will briefly summarize the testimony of the witnesses at the hearing.

BILL LEARY

Mr. Leary has been the Executive Director of LAP since it was formed in 1992. He was also one of the original members

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of the Committee on Alcohol and Drug Abuse. Mr. Leary testified both in person before the hearing committee and by deposition, in each instance generally explaining the history of the LAP program and testifying about the confidentiality issues raised in this matter. Mr. Leary did not give any testimony specific to respondent's participation in the LAP program.

Mr. Leary explained that LAP uses a standardized recovery agreement which he drafted himself, patterned after similar agreements in use in other states.5 A LAP contract has a five-year term, and is usually signed after the lawyer completes substance abuse treatment. Mr. Leary testified that this is done in the event the treatment facility makes any recommendations for the lawyer upon discharge; for example, if the facility recommends aftercare or family counseling, that will be incorporated into the LAP contract. Under the terms of a LAP agreement, the lawyer must meet with a monitor, attend AA meetings, and is subject to random drug testing 12-14 times per year. Some lawyers enter into LAP contracts voluntarily, but other lawyers are referred to the LAP program by their law firms, and still others are referred in connection with bar discipline or bar admission proceedings.

Mr. Leary testified that confidentiality is very important to individuals who call him asking for help. Mr. Leary assures these individuals that neither he nor any member of the Committee on Alcohol and Drug Abuse can be compelled to reveal information which is provided through LAP. He was adamant that LAP "does not break confidentiality."

Mr. Leary explained that the purpose of Paragraph 15 of the LAP agreement is to enable him to talk to any number of sources about a lawyer's recovery. In each specific case, instead of getting a release from all of the people he wants to talk to (like the aftercare group or "people on the telephone who might call" Mr. Leary about a lawyer in recovery), Mr. Leary puts Paragraph 15 in the LAP agreement "so that every time I want to talk to someone, I do not have to go back and get a release done." Mr. Leary testified that all LAP contracts contain Paragraph 15.

Mr. Leary testified that he had "many, many conversations" with respondent about confidentiality, occurring over "a number of months." Specifically, respondent did not want to sign the LAP contract because of Paragraph 15. Mr. Leary told respondent he would not change the language of the contract, but did assure him that he was not signing a waiver "as to the world" but only as to those persons necessary for Mr. Leary to consult in connection with the recovery process.

Mr. Leary testified that there are certain persons who are part of the LAP program structure whom he considers to be bound by the confidentiality applicable to LAP. These persons include doctors, counselors, monitors, and sponsors, for example—individuals with whom information must be shared so that they can assist Mr. Leary in the performance of his work. However, Mr. Leary testified that he has never considered "outsiders" to be included in this group, such as spouses, children, law firm partners or associates, secretaries, or others. He testified that in his view, these persons are not "agents" of LAP and are not bound by the confidentiality provisions applicable to LAP.

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testimony was initially similar to that of Ms. Klein, touching on respondent's performance at the firm golf tournament, the intervention with Mr. Leary, and respondent's admission to and successful completion of the Pine Grove treatment program. Thereafter, the firm asked respondent to execute a LAP agreement as a condition of his continued employment. According to Mr. Aguilar, he and respondent discussed the confidentiality provision in the LAP contract on several occasions. Specifically, respondent was concerned that information could get "outside of the law firm, with what he thought was over broad language of the L.A.P. contract." Therefore, respondent wanted to revise the confidentiality provision "to say that Bill Leary's group could not tell anybody else, and thus, [McGlinchey] would not be able to tell anybody else either." After discussing the matter with Mr. Leary and another partner in the firm who had successfully participated in LAP, Mr. Aguilar told respondent the firm would not agree to make any changes in the LAP contract.

Mr. Aguilar testified that everything went fine for a while, until respondent tested positive for cocaine in March 2007. Mr. Aguilar went to the New Orleans office at that time and met with respondent and Ms. Klein. Mr. Aguilar's testimony regarding the meeting was as follows:

A. Jack said he was under a lot of stress from lots of different things and that his, I believe, his daughter was getting married. And all kind of—I don't remember all of the details. But we said, "Jack, we shouldn't do this, but we are going to, instead of terminating you immediately, as we said we would do, as we should do, we're going to give you one more chance."

* * *

Q. During that conversation, did Mr. Clegg acknowledge he had used cocaine?

A. Yes. He did. He acknowledged it and he said that it was—Well, I do remember him also...

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