In re Anzalone

219 So. 3d 311, 2017 La. LEXIS 1043
CourtSupreme Court of Louisiana
DecidedMay 12, 2017
DocketNO. 2017-B-0387
StatusPublished
Cited by1 cases

This text of 219 So. 3d 311 (In re Anzalone) is published on Counsel Stack Legal Research, covering Supreme Court of Louisiana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Anzalone, 219 So. 3d 311, 2017 La. LEXIS 1043 (La. 2017).

Opinion

[312]*312ATTORNEY DISCIPLINARY PROCEEDING

PER CURIAM

| ¾ This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Johnny S. Anzalone, an attorney licensed to practice law in Louisiana but currently on interim suspension for threat of harm to the public. In re: Anzalone, 14-0812 (La. 5/16/14), 139 So.3d 991.

UNDERLYING FACTS

15-DB-004

In January 2013, respondent was arraigned in Tangipahoa Parish on charges of first offense DWI and exceeding the speed limit. During the course of the criminal proceedings, respondent underwent a drug screening which indicated positive results for cocaine and methadone. On March 17, 2014, following a bench trial, respondent was found guilty of the DWI charge. In December 2014, a bench warrant was issued based upon respondent’s failure to appear in court for monitoring.

The ODC alleged that respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 8.4(a) (violation of the Rules of Professional Conduct), 8.4(b) (commission of a criminal act that reflects | ^adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer), and 8.4(d) (engaging in conduct prejudicial to the administration of justice).

15-DB-053

On March 14, 2014, respondent was arrested in Rapides Parish for second offense DWI, improper lane usage, and driving under suspension. At the time of his arrest, respondent admitted to the arresting officer that he was under the influence of “meth.” Respondent pleaded nolo con-tendere to a charge of first offense DWI, and the State agreed to nolle prosequi the remaining charges.

The ODC alleged that respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 8.4(a) and 8.4(b).

DISCIPLINARY PROCEEDINGS

In February 2015, the ODC filed formal charges against respondent in 15-DB-004. Respondent answered the formal charges and acknowledged that he was found guilty of first offense DWI. He further acknowledged that his drug screen was positive for methadone and for cocaine, but he noted that the methadone was prescribed for him by a licensed medical doctor. Respondent denied that he used or voluntarily ingested any cocaine.

In October 2015, the ODC filed formal charges against respondent in 15-DB-053. Respondent answered the formal charges, denying any misconduct. The two sets of formal charges were consolidated before proceeding to a formal hearing on the merits.

Formal Hearing

The hearing committee conducted the formal hearing on January 6, 2016. The ODC introduced documentary evidence but called no witnesses to testify | ¡(before the committee. Respondent did not introduce documentary evidence.1 However, he did testify on his own behalf and on cross-examination by the ODC.

[313]*313In his testimony before the committee, respondent indicated that he was conditionally admitted to the practice of law, subject to a two-year period of probation during which he was required to enter into a recovery agreement with the Judges and Lawyers Assistance Program (“JLAP”). He later entered into a five-year recovery agreement with JLAP and successfully completed the program. Respondent admitted that he takes methadone every day to control his pain and is under the care of a doctor, but indicated that attempts are being made to get him into other pain management plans with other doctors. Respondent testified that he has been classified as totally disabled and is covered under Medicaid, which paid for his recent surgery, described as a five-level laminec-tomy.

Hearing Committee Report

After considering the evidence and testimony presented at the hearing, the hearing committee summarized respondent’s testimony as follows:

Respondent offered that he was involved in a serious automobile accident in 1986 that resulted in permanent back and neck pain. He experienced difficulties obtaining prescription medications, and in lieu thereof, receives methadone treatment from Choices of Louisiana, Inc. According to respondent, he was “dosed” with cocaine, which resulted in the positive test for that substance. Respondent indicated, and the evidence demonstrates, that he was subject to drug abuse counseling as a result of his nolo contendere plea in Rapides Parish. Respondent noted that his drug abuse counselor found that he was not in need of drug abuse treatment.

| ¿Based on this testimony and the other evidence in the record, the hearing committee made factual findings consistent with the underlying facts set forth above. Based these findings, the committee determined respondent violated Rules 8.4(a) and 8.4(b). The committee did not find a violation of Rule 8.4(d).

The committee found that respondent violated duties owed to the public and the legal profession. The violation of these duties was at least negligent and could have led to grave injury to other motorists or pedestrians. However, there was no actual harm in either of respondent’s incidents.

In aggravation, the committee found a selfish motive and substantial experience in the practice of law (admitted 1994). While there was no dishonest motive, the act of driving a motor vehicle under the influence of a narcotic represents an inherently selfish motive in that it placed respondent’s convenience above the safety of others. In mitigation, the committee found the absence of a prior disciplinary record and “no indication that respondent failed to cooperate in the disciplinary process.” In the committee’s opinion, respondent suffers from a physical condition that has led to a chemical dependency, if not outright addiction.

After further considering this court’s prior jurisprudence addressing similar misconduct, the committee recommended that respondent be suspended from the practice of law for one year and one day.

Disciplinary Board Recommendation

After review, the disciplinary board determined that the hearing committee’s findings of fact are supported by the testimony and documentary evidence and do not appear to be manifestly erroneous. The board also determined that the committee correctly applied the Rules of Professional Conduct. Accordingly, the board adopted the committee’s findings of fact and law.

|RThe board determined respondent violated duties owed to the public and the legal profession by failing to maintain the [314]*314high standards of personal integrity upon which the public relies. Although his offenses did not result in actual injury to anyone, the potential for injury was great. After considering the ABA’s Standards for Imposing Lawyer Sanctions, the board determined that the applicable baseline sanction is suspension.

In aggravation, the board found substantial experience in the practice of law and selfish motive. In mitigation, the board found.the absence of a prior disciplinary record. The board declined to adopt the mitigating factor of physical or mental disability or dependency, noting that the record does not contain the necessary evidence to support such a finding.2 Indeed, respondent failed to offer any admissible evidence or testimony to support a claim of chemical dependency. Rather, he hás argued that he is not in need of treatment.

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Bluebook (online)
219 So. 3d 311, 2017 La. LEXIS 1043, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-anzalone-la-2017.