Louisiana State Bar Ass'n v. Dumaine

• Decision Date: 23 October 1989
• Docket Number: No. 89-B-1236,89-B-1236
• Citation: 550 So.2d 1197
• Parties: LOUISIANA STATE BAR ASSOCIATION v. Arthur F. DUMAINE. 550 So.2d 1197
• Court: Louisiana Supreme Court

Page 1197

550 So.2d 1197

LOUISIANA STATE BAR ASSOCIATION v. Arthur F. DUMAINE.

No. 89-B-1236.

550 So.2d 1197

Supreme Court of Louisiana.

Oct. 23, 1989.

Thomas O. Collins, Jr., G. Fred Ours, Harvey J. Lewis, Elizabeth A. Alston, New Orleans, Robert J. Boudreau, Lake Charles Trevor G. Bryan, Robert M. Contois, Jr., New Orleans, Frank J. Gremillion, Baton Rouge, William W. Hall, Gretna, Carrick R. Inabnett, Monroe, T. Haller Jackson, III, Shreveport, Christine Lipsey, Baton Rouge, Edmund McCollam, Houma, Gerard F. Thomas, Jr., Natchitoches, for applicant.

James David McNeill, for respondent.

Arthur Dumaine, pro se.

DENNIS, Justice.

This attorney disciplinary proceeding calls upon us to set forth precepts for determining whether a lawyer who has committed serious ethical violations should be placed on probation and allowed to continue to practice because his infractions were related to alcoholism, and to provide guidelines for establishing the terms and conditions of this type of probation. The respondent attorney, Arthur Dumaine, was convicted of illegal use of a weapon, La.R.S. 14:94, given a suspended sentence of one year in jail, and placed on supervised probation conditioned upon alcohol abuse treatment, community service, fines and costs. The respondent, for purposes of this proceeding, admits the allegations of the bar association's petition that he has been convicted of illegal discharge of a weapon and that this offense is a felony and a disciplinary rule violation.

As a sanction, the disciplinary committee and the respondent recommend that this court simply impose additional conditions to the sanction he received in a prior disciplinary proceeding. In Louisiana State Bar Ass'n. v. Dumaine, 538 So.2d 270 (La.1989), respondent was suspended from the practice of law for eighteen months for having neglected legal matters and mishandled a client's funds; the suspension period will elapse on September 23, 1990. The parties propose that this court decree in the present case that Dumaine may not be reinstated at that time unless he shows that he has completed alcohol abuse treatment, regularly attended Alcoholics Anonymous, maintained sobriety, and demonstrated a propensity toward continuing recovery.

Finding that the respondent committed a felony under circumstances and against a background of prior ethical violations calling into question his moral fitness to practice law, we conclude that he should be suspended preliminarily and until further orders of this court. For lack of an adequate record upon which to base a permanent or final sanction, the case must be remanded to the disciplinary committee for the taking of additional evidence, after which the Committee is ordered to file a new petition proposing a disciplinary sanction based on a more complete record. The factors to be considered in determining whether and upon what conditions this court should ameliorate the discipline of a lawyer whose ethical violations allegedly were the product of a chemical dependency that has been brought under control are set forth in some detail in this opinion. In making such a determination, the primary issues we must consider are whether the attorney's lapses stemmed mainly from chemical dependency rather than lack of moral fitness and whether his recovery has progressed to the extent that he may be permitted to practice without undue risk of harm to his clients, the legal profession or the courts. Because the record does not contain sufficient evidence for a determination that respondent's serious ethical violations resulted from a chemical dependency or that the sanction proposed by the parties will adequately protect the public and other interests, additional evidence must be gathered concerning respondent's moral fitness and alleged alcoholism, after which alternative sanctions should be considered, including disbarment, suspension, probation, reprimand, or a combination thereof.

I.

Dumaine was convicted after a bench trial in the Criminal District Court for Orleans Parish of illegal use of a weapon, La.R.S. 14:94, and sentenced to one year at hard labor. The Court of Appeal affirmed his conviction and sentence. State v. Dumaine, 534 So.2d 32 (La.App. 4th Cir.1988). In its opinion the Court of Appeal ably summarized the facts that reasonably may be inferred from the record in support of the trial court's judgment:

On Sunday, May 3, 1987, two of defendant's friends and their children went to defendant's house to swim in his pool. Defendant drank beer throughout the afternoon.

At about 5:30 p.m., Troy Williams, a black male, knocked on defendant's door to have defendant notarize a document for him. Williams had never met defendant before but was referred to him by an acquaintance. When the defendant opened the door, he appeared to be intoxicated. Upon seeing Williams, Dumaine kissed him as if he knew him, Dumaine then asked Williams to help him put a cover over his car. Williams did so and the two men entered defendant's house. Once inside, the defendant began to talk about blacks, crime and Vietnam. He asked Williams if he had any brothers or sisters who were criminals. He then told Williams that he had something to stop crime. He reached behind a bookshelf and pulled out a revolver. He then went into his front yard with Williams and, without looking for oncoming traffic, he fired the gun across old Hammond Highway into a vacant lot. Although there were no people or cars in the vacant lot, there were people in the vicinity where the shots were fired.

Following the incident, Williams called the police and thirty to thirty five officers responded, including a SWAT team. Defendant refused to leave his house for approximately one to one and one-half hours. Finally, police apprehended the defendant. A search of the house did not reveal a gun. 534 So.2d at 33-34.

Dumaine applied to this court for certiorari. This court summarily issued a writ, affirmed the conviction, set aside the sentence of one year at hard labor as excessive, and remanded the case for resentencing without incarceration. State v. Dumaine, 541 So.2d 880 (La.1989).

On remand, the criminal district court sentenced Dumaine to serve one year in parish prison, with credit for time served, but suspended the sentence and placed him on supervised probation for five years subject to certain conditions including completion of a substance abuse treatment program, performance of 100 hours of community service work, and payment of fines and costs. This result, of course, differed from the trial court's original sentence of one year at hard labor. Although the trial court in finding Dumaine guilty of the crime indicated its feeling that the lawyer had a substance abuse problem and ordered a presentence investigation, the record before us does not contain the presentence report or any other statement of the trial court's reasons for imposing either sentence.

In a prior disciplinary proceeding against Dumaine, Louisiana State Bar Ass'n v. Dumaine, 538 So.2d 270 (La.1989), this court found that in May, 1985 he requested and obtained a $500 retainer from his client and agreed to file suit to have her sister declared incompetent, or to contest her sister's will in the event she died testate. In July of 1985, two months after accepting employment, he determined to his satisfaction that the sister had executed a will while she was apparently lucid and competent, making the prospect of attacking the will unpromising. Despite this conclusion, he concealed his opinion that the client's cause was hopeless, and instead falsely informed her that he had filed suit on her behalf even though he had not done so even after the sister's death three months later. In addition, he failed to place the retainer in a client's trust account or to expend it on her behalf and therefore presumably converted it to his own use. Despite the institution of disciplinary proceedings against him in that matter, he failed to return the $500 retainer during the two years of disciplinary investigations and hearings, and he did not begin to make restitution until November, 1988, one month before oral arguments in this court in that case. During the investigation and hearings, he did not testify candidly or consistently before this court's commissioner. Dumaine's disciplinary record before that proceeding consisted of four reprimands for disciplinary violations, two private and two public, constituting a pattern of neglect causing injury or potential injury to his clients. After considering all of the evidence, this court found that Dumaine had violated the disciplinary rules by neglecting his client's legal matters and mishandling his client's funds and suspended him from the practice of law for eighteen months. Id.

The current disciplinary proceeding was initiated following Dumaine's criminal conviction of illegal use of a weapon that occurred May 3, 1987. The parties elected to proceed without appointment of a commissioner and they waived oral argument, following the abbreviated procedure we approved in Louisiana State Bar Ass'n v. Marinello, 523 So.2d 838 (La.1988). The record in this case consists solely of the transcript of a short hearing before the disciplinary committee. The Committee took no testimony at this hearing. Instead, the parties merely introduced the record of Dumaine's criminal proceeding. This record contains only the evidence supporting his conviction and does not include any information about his character or alleged chemical dependency. Based on this record, the Committee recommends no additional suspension. Instead, it recommends sanctions designed, in its words, to resolve the "underlying problem" in the case. Specifically, the Committee asks us to condition Dumaine's reinstatement to the practice of law upon his showing, by clear and convincing evidence, that he has completed an inpatient substance abuse program, regularly attended Alcoholics Anonymous...