In re Simon

• Decision Date: 29 November 2005
• Docket Number: No. 04-B-2947.,04-B-2947.
• Citation: 913 So.2d 816
• Parties: In re J. Clemille SIMON.
• Court: Louisiana Supreme Court

913 So.2d 816

In re J. Clemille SIMON.

No. 04-B-2947.

Supreme Court of Louisiana.

June 29, 2005.

Rehearing Denied November 29, 2005.

Charles Bennette Plattsmier, Chief Disciplinary Counsel, Baton Rouge, Robert

Samuel Kennedy, Jr., Asst. Disciplinary Counsel, Shreveport, counsel for appellant.

Schiff Law Corporation, Leslie J. Schiff, Opelousas, J. Clemille Simon, APLC, J. Clemille Simon, counsel for respondent.

PER CURIAM.

The Office of Disciplinary Counsel ("ODC") filed formal charges against respondent, J. Clemille Simon, an attorney licensed to practice law in Louisiana. The disciplinary board recommended the formal charges be dismissed, and the ODC sought review of that decision in this court. For the reasons assigned, we find the formal charges were proven by clear and convincing evidence and therefore impose discipline.

UNDERLYING FACTS

Count I

Respondent filed a personal injury suit in Vermilion Parish on behalf of Sandra and Joey Simon. The suit was randomly allotted to Judge Edward Rubin of the 15th Judicial District Court. Subsequently, respondent filed a motion to recuse Judge Rubin, asserting Judge Rubin was biased and prejudiced because he ruled against the plaintiffs in several pre-trial motions. Respondent alleged in his motion, among other things, that Judge Rubin "embarked upon a campaign of misrepresenting the truth" and "made intentional misrepresentations of fact, for the purpose of prejudicing" respondent and the plaintiffs.

Judge Rubin referred the motion to recuse to Judge John Trahan. Judge Trahan conducted a 5½-hour evidentiary hearing on the motion, at which Judge Rubin was the only witness. At the conclusion of respondent's presentation, Judge Trahan denied the motion to recuse, finding it "groundless."

Count II

Respondent filed a personal injury suit in Lafayette Parish on behalf of Leslie Counselman. One of the defendants in the case, United Services Automobile Association, was represented by attorney Patrick Briney of the Lafayette law firm of Briney & Foret. The suit was randomly allotted to Judge Edward Rubin.

During the course of the litigation, respondent learned that the judges of the 15th JDC had previously retained Mr. Briney to represent the court in connection with a challenge to its misdemeanor probation program in a criminal case captioned State v. Cavazos. Based on this information, respondent filed a motion to disqualify Mr. Briney and his firm as attorneys of record in the Counselman case. The motion also sought the recusal of "all Judges of the 15th Judicial District Court from the instant matter." In support, respondent argued that an obvious appearance of impropriety existed as a result of the "intimate, personal and confidential attorney/client relationship" between the judges and Mr. Briney.

Judge Rubin denied respondent's motion without conducting a hearing, and the court of appeal denied respondent's application for supervisory writs. Respondent then applied to this court. We granted the writ in part and appointed retired Judge Anne Lennan Simon to conduct an evidentiary hearing on the motion. Counselman v. Progressive Ins. Co., 01-2335 (La.8/13/01), 794 So.2d 837. After conducting a hearing, Judge Simon denied respondent's motion, finding that Mr. Briney was retained by the 15th JDC judges solely to represent the court in an official capacity, and that Mr. Briney had no other legal relationship with the judges.

Respondent then sought review of Judge Simon's ruling in the Court of Appeal Third Circuit.¹ In his writ application, respondent included a four-page "Hypothetical Telephone Conversation Between Patrick J. Briney And His Clients (Judges of The 15th Judicial District Court)" in support of his argument that the "official capacity" defense was legally unsound.² The court of appeal refused to accept the writ application for filing and directed the clerk of court to return it to respondent, with instructions that he delete the "hypothetical" conversation. Respondent complied with the court's instructions but included the following footnote in the revised writ application:

Plaintiff had previously attempted to set forth in the context of a hypothetical conversation a truthful portrayal of the absurd imagery of defense counsel's "official capacity" defense. By Order of this Court plaintiff is not at liberty to exercise her First Amendment freedom of speech nor engage in any such truthful debate. As such, the hypothetical conversation has been deleted.

On the merits, the court of appeal denied respondent's application for supervisory writs, as did this court. Counselman v. Progressive Ins. Co., 02-0474 (La.3/8/02), 811 So.2d 879. The clerk of the court of appeal forwarded copies of respondent's original writ application and revised application to the ODC.

Count III

In the writ application subject of Count II, respondent raised as error Judge Simon's denial of his motion to disqualify Mr. Briney, stating at page iii of the application:

Judge Simon (Judge Ad Hoc) has committed reversible error in the performance of her duties as Judge Ad Hoc. Specifically, Judge Simon utilized the wrong standard (subjective) in deciding this issue. In denying plaintiff's Motion to Disqualify/Recuse Defense Counsel, Judge Simon has violated not only controlling legal authority but the very principals [sic] (honesty and fundamental fairness) upon which our judicial system is based. Judge Simon's denial undermines the efficacy of our jurisprudence, attorney ethics and judicial canons and serves no other purpose but to promote public disrepute and distrust of our legal system. Indeed, Judge Simon's denial of plaintiff's motion is baseless and legally, logically and ethically unsound. [emphasis added]

The ODC alleges that in using the highlighted language, respondent personally attacked Judge Simon's integrity without any reasonable factual basis for doing so.

DISCIPLINARY PROCEEDINGS

After investigation, the ODC filed three counts of formal charges against respondent. The charges are as follows:

COUNT I

You represented Joey and Sandra Simon, plaintiffs in a personal injury lawsuit that you filed in Vermilion Parish, which was assigned to Judge Edward Rubin of the 15th JDC. After Judge Rubin ruled against you in several pre-trial motions, you brought a Motion to Recuse seeking to remove Judge Rubin from the case and personally attacked his judicial integrity without any reasonable factual basis for doing so.

Again, without any factual basis for doing so, you improperly accused Judge Rubin of "embarking upon a campaign of misrepresenting the truth," further asserting that he had "made intentional misrepresentations of fact, for the purpose of prejudicing (you) and (your clients)." Your conduct violates Rule 8.2(a).

In support of your motion to recuse, you cited substantive rulings Judge Rubin made which you contend were improper and without legal support, yet Judge Rubin was affirmed by the appellate court on virtually all substantive issues raised by your writ applications. In the hearing on the motion to recuse, you were unable to produce any identifiable evidence of Judge Rubin's bias or personal animus against you or your client, despite your claims that such evidence existed. Another judge appointed to hear the recusal motion denied same immediately after the hearing was concluded. Your conduct violates Rules 3.1 and 3.3 of the Rules of Professional Conduct.

Your actions in bringing a groundless and frivolous motion to recuse Judge Rubin caused delay in the prosecution of your clients' case and diverted the court's attention from other, substantial court business. Your conduct violates Rule 8.4(d) of the Rules of Professional Conduct.

COUNT II

In another personal injury case (Counselman v. Progressive Insurance Co.) you brought yet another motion to recuse the entire 15th Judicial District Court from hearing any cases where Patrick Briney or his firm was representing the opposing party. After the ad hoc judge appointed to hear your motion denied same after a hearing, you filed a writ application with the 3rd Circuit Court of Appeals. In that application, you created a wholly fictitious telephone conversation, which you allege accurately represented verbal communications between your opposing counsel and the judges of the 15th JDC. The judges and opposing counsel are depicted in that conversation as conspiring to deprive both you and your client of substantive rights and to subvert the justice system.

Upon reviewing the contents of that fictitious telephone conversation, the Judges of the Third Circuit Court of Appeals refused to accept your writ application for filing and instructed the clerk to return it to you, with instructions to remove the "hypothetical" conversation. The Court also found your brief to be "replete with insulting, abusive, discourteous and irrelevant matter" in violation of Rule 2-12.4 of the Uniform Rules of the Court of Appeal.

Although you removed the offending conversation from the brief, you nonetheless continued to insist that your depiction represented a "truthful portrayal" of communications you alleged occurred among Mr. Briney and the judges of the 15th JDC, despite the fact that there is no evidence that any conversation such as you described ever took place. Your conduct violates Rules 3.1, 3.3 and 8.2(a) of the Rules of Professional Conduct.

COUNT III

Judge Anne Lennan Simon was appointed ad hoc by the Louisiana Supreme Court to hear your recusal motion brought against the judges of the 15th JDC. After a full hearing, Judge Simon dismissed your motion and assigned written reasons. In appealing her decision, you wrote in your writ application to the Third Circuit Court of Appeals that Judge Simon "violated not only controlling legal authority but the very principals [sic] (honesty and fundamental fairness) upon which our judicial system is based." Your conduct violates Rule 8.2(a) and 8.4(d) of the Rules of...