In Re: David Band, Jr.

• Court: Supreme Court of Louisiana
• Decided: November 17, 2023
• Docket: 2023-B-00284
• Status: Published

Opinion

FOR IMMEDIATE NEWS RELEASE NEWS RELEASE #050

FROM: CLERK OF SUPREME COURT OF LOUISIANA

The Opinions handed down on the 17th day of November, 2023 are as follows:

PER CURIAM:

2023-B-00284 IN RE: DAVID BAND, JR.

SUSPENSION IMPOSED. SEE PER CURIAM.

Hughes, J., dissents and assigns reasons. Genovese, J., dissents and assigns reasons. Crain, J., dissents and assigns reasons.

1 SUPREME COURT OF LOUISIANA

NO. 2023-B-0284

IN RE: DAVID BAND, JR.

ATTORNEY DISCIPLINARY PROCEEDING

PER CURIAM

This disciplinary matter arises from formal charges filed by the Office of

Disciplinary Counsel (“ODC”) against respondent, David Band, Jr., an attorney

licensed to practice law in Louisiana.

UNDERLYING FACTS

In June 2019, Mortimer Bishop sold immovable property to Christine Bowers.

Thereafter, Mr. Bishop refused to vacate the premises, claiming that Ms. Bowers

had granted him a lifetime usufruct over the property. Ms. Bowers then filed a rule

for eviction against Mr. Bishop, and Mr. Bishop sued Ms. Bowers to rescind the sale

based on theories of lesion and fraud. Mr. Bishop was represented by respondent in

the litigation. Ms. Bowers was initially represented by attorney Eric Person. In

August 2019, Ms. Bowers discharged Mr. Person and retained attorney F. Evans

Schmidt to represent her.

During the litigation, respondent contacted Ms. Bowers multiple times to

discuss the legal matter. These communications were through social media, email,

and by telephone, and were made without the authorization of Ms. Bowers’ counsel.

Some of the communications were also peculiar. In one message, respondent

requested that Ms. Bowers “wear something low cut.” In November 2020, Ms. Bowers filed a complaint against respondent with the

ODC. In his written response to the complaint, respondent suggested that he had

contacted Ms. Bowers during time periods when he believed she was not represented

by counsel. However, in one of his messages to Ms. Bowers via Facebook,

respondent stated that he knew she had an attorney. Moreover, in his sworn

statement to the ODC, respondent testified that he communicated directly with Ms.

Bowers even though she was represented by Mr. Schmidt because he was having

trouble contacting Mr. Schmidt.

DISCIPLINARY PROCEEDINGS

In November 2021, the ODC filed formal charges against respondent, alleging

that his conduct as set forth above violated Rules 4.2(a) (communications with

persons represented by counsel) and 8.1(a) (knowingly making a false statement of

material fact in connection with a disciplinary matter) of the Rules of Professional

Conduct.

Respondent filed an answer to the formal charges, stating that he did not

violate the rules as charged because he had a reasonable belief Ms. Bowers did not

have an attorney at the time he communicated with her.

In light of respondent’s answer, the matter proceeded to a formal hearing on

the merits.

Formal Hearing

The hearing committee conducted the formal hearing on April 18, 2022. The

ODC introduced documentary evidence, including email and voice messages from

respondent to Ms. Bowers. The ODC called Ms. Bowers and her attorney, Mr.

Schmidt, to testify before the committee. Respondent testified on his own behalf

2 and on cross-examination by the ODC, and he called his assistant to testify before

the committee.

TESTIMONY OF CHRISTINE BOWERS

Ms. Bowers testified that she was represented by counsel during the entire

time relevant to these proceedings, and at no time was she without legal

representation. Nevertheless, she received several email messages from respondent

discussing the merits of the case involving Mr. Bishop. The email messages

included a vulgar misspelling of the word “usufruct” and suggested that Ms. Bowers

assist Mr. Bishop in finding a new place to live by “wear[ing] something low cut.”

Ms. Bowers testified that the request made her feel “like a piece of trash.” Ms.

Bowers also identified Facebook messages and a friend request that respondent sent

to her Facebook account during the time she was represented by counsel. She also

testified that respondent called her directly after a hearing in which Mr. Bishop was

evicted, congratulating her and discussing further action in the matter.

TESTIMONY OF F. EVANS SCHMIDT

Mr. Schmidt testified that he represented Ms. Bowers in the property matter

from August 2019 through July 2020. Mr. Schmidt told respondent from the

beginning that he was representing Ms. Bowers, and testified that he spoke with

respondent on several occasions in late 2019 and early 2020 to discuss discovery

issues. Mr. Schmidt confirmed that he did not authorize any direct communication

between respondent and Ms. Bowers.

3 TESTIMONY OF RESPONDENT

Respondent admitted he knows an attorney cannot directly contact an

opposing party who is represented by counsel, and acknowledged that he never

received authorization from Mr. Schmidt to contact Ms. Bowers directly. He

admitted sending the email messages and the Facebook message and friend request

to Ms. Bowers, but testified that he was confused and thought Ms. Bowers was “in

between counsel” during the times these communications occurred. He also

maintained that he was just trying to contact Ms. Bowers “about working something

out with whoever was representing her.” Regarding his suggestion to Ms. Bowers

to “wear something low cut,” respondent testified that the comment “was supposed

to be a joke.”

TESTIMONY OF CANDACE HUGHES

Ms. Hughes has been working for respondent since 2016 assisting him around

his office. Although she had no personal knowledge of when Ms. Bowers retained

counsel in the property matter, Ms. Hughes testified that there was “a discussion in

the office” and that respondent “thought that [Ms. Bowers] did not have a lawyer

there for a minute.”

Hearing Committee Report

After considering the evidence and testimony presented at the hearing, the

hearing committee made factual findings, including the following:

1. The ODC proved by clear and convincing evidence that respondent was aware

at all times that Ms. Bowers was represented by counsel in her dispute with

Mr. Bishop.

2. The ODC proved by clear and convincing evidence that respondent directly

communicated with Ms. Bowers about the ongoing litigation by sending her

4 email messages, Facebook messages, and a Facebook friend request and by

telephoning her directly when he knew that she was represented by counsel.

3. The ODC proved by clear and convincing evidence that respondent did not

obtain the consent of Ms. Bowers’ counsel before directly communicating

with her about the ongoing litigation.

4. The ODC proved by clear and convincing evidence that respondent

knowingly submitted false statements of material fact to the ODC in

connection with this disciplinary matter.

Based upon these findings, the committee determined that respondent violated

Rules 4.2(a) and 8.1(a) of the Rules of Professional Conduct, as charged in the

formal charges.

The committee determined that respondent intentionally violated duties owed

to the legal system and the legal profession. His actions caused both actual and

potential harm. Ms. Bowers was highly offended by the vulgar and suggestive

nature of several of respondent’s messages. She also could have been harmed in the

underlying litigation by respondent’s suggestions that she “help” his client find a

new place to live. In addition, respondent’s continued misrepresentations to the

ODC required the agency to expend additional resources in the investigation and

prosecution of the case. Relying on the ABA’s Standards for Imposing Lawyer

Sanctions, the committee determined the applicable baseline sanction is suspension.

The committee found the following aggravating factors are present in this

matter: a dishonest or selfish motive, a pattern of misconduct, multiple offenses, and

substantial experience in the practice of law (admitted 1970). In mitigation, the

committee found that respondent has no prior disciplinary record.

Considering these circumstances, and the prior jurisprudence of this court in

similar cases, the committee recommended that respondent be suspended from the

practice of law for six months. The committee also recommended that respondent

5 be ordered to submit to an examination by a licensed mental health professional,1

and that he be assessed with the costs and expenses of these proceedings.

Both respondent and the ODC filed objections to the hearing committee’s

report.

Disciplinary Board Recommendation

After review, the disciplinary board determined that the hearing committee’s

factual findings are not manifestly erroneous and adopted same. Based on these

factual findings, the board agreed respondent’s conduct violated the Rules of

Professional Conduct as alleged in the formal charges.

The board agreed with the committee that respondent violated duties owed to

the legal system and the legal profession. His actions were knowing and intentional,

and caused actual and potential harm. Based on the ABA’s Standards for Imposing

Lawyer Sanctions, the board determined the baseline sanction ranges from

reprimand to suspension.

The board found the following aggravating factors are present: a dishonest or

selfish motive, multiple offenses, submission of false evidence, false statements, or

other deceptive practices during the disciplinary process, refusal to acknowledge the

wrongful nature of the conduct, and substantial experience in the practice of law.

Like the committee, the board found the only mitigating factor present is the absence

of a prior disciplinary record.

Considering these findings, and the court’s prior jurisprudence discussing

similar misconduct, the board recommended respondent be suspended from the

1 The committee noted that throughout the hearing, respondent did not appear to understand or appreciate the charges against him or the nature of the proceedings. He ultimately admitted that he contacted Ms. Bowers while he knew she was represented by counsel, but he steadfastly refused to accept – or was unable to understand – that his actions were not justified by his belief that his client was “wronged” by Ms. Bowers. The committee felt this may indicate “a potential lack of mental clarity sufficient to practice law.” [Emphasis in original.] Accordingly, the committee recommended that respondent be required to undergo a mental health evaluation.

6 practice of law for six months. The board further recommended that respondent be

assessed with the costs and expenses of this matter.

With regard to the committee’s recommendation that respondent submit to a

mental health evaluation, the board agreed that respondent still does not appear to

grasp the wrongfulness of his conduct and has continued to focus on the underlying

litigation matter (which has been concluded). Furthermore, although respondent

represented to the board that he had previously undergone neuropsychological

testing for “memory problems,” and that the results were normal for someone his

age, he failed to submit a copy of the testing report to the board to support these

assertions. Accordingly, the board recommended that before respondent may be

reinstated from his suspension, he must meet the requirements prescribed by

Supreme Court Rule XIX as well as the following additional conditions:

Within ninety days of the finality of the court’s judgment imposing sanction,

respondent shall consult with the Judges and Lawyers Assistance Program (“JLAP”)

and undergo, at his cost, an evaluation by a neuropsychologist or other mental health

professional designated by JLAP to determine his competency to continue to

practice law. A report of the evaluation shall be promptly submitted by the evaluator

to JLAP, and provided by JLAP to the ODC and respondent within five days of

receipt of the report. After receipt of the evaluator’s report, the ODC shall take any

further action it deems appropriate under the circumstances.

Respondent filed an objection to the board’s recommendation. Accordingly,

the case was docketed for oral argument pursuant to Supreme Court Rule XIX, §

11(G)(1)(b).

DISCUSSION

Bar disciplinary matters fall within the original jurisdiction of this court. La.

Const. art. V, § 5(B). Consequently, we act as triers of fact and conduct an

7 independent review of the record to determine whether the alleged misconduct has

been proven by clear and convincing evidence. In re: Banks, 09-1212 (La. 10/2/09),

18 So. 3d 57. While we are not bound in any way by the findings and

recommendations of the hearing committee and disciplinary board, we have held the

manifest error standard is applicable to the committee’s factual findings. See In re:

Caulfield, 96-1401 (La. 11/25/96), 683 So. 2d 714; In re: Pardue, 93-2865 (La.

3/11/94), 633 So. 2d 150.

The underlying facts of this matter are not seriously in dispute. Respondent

communicated with a person known to be represented by counsel and made a false

statement to the ODC during its investigation. This conduct violates the Rules of

Professional Conduct as charged in the formal charges.

Having found evidence of professional misconduct, we now turn to a

determination of the appropriate sanction for respondent’s actions. In determining

a sanction, we are mindful that disciplinary proceedings are designed to maintain

high standards of conduct, protect the public, preserve the integrity of the profession,

and deter future misconduct. Louisiana State Bar Ass’n v. Reis, 513 So. 2d 1173

(La. 1987). The discipline to be imposed depends upon the facts of each case and

the seriousness of the offenses involved considered in light of any aggravating and

mitigating circumstances. Louisiana State Bar Ass’n v. Whittington, 459 So. 2d 520

(La. 1984).

Respondent violated duties owed to the legal system and the legal profession.

His actions were knowing and intentional, and caused actual and potential harm.

The applicable baseline sanction ranges from reprimand to suspension. The

aggravating and mitigating factors found by the disciplinary board are supported by

the record.

Turning to the issue of sanction, a period of actual suspension is warranted for

respondent’s knowing and intentional communications with Ms. Bowers without the

8 consent of her counsel. Furthermore, respondent made false statements of material

fact to the ODC during its investigation, thereby compounding the misconduct.

Nevertheless, we find it significant that respondent has no prior disciplinary record

in more than fifty years of practicing law. Under these circumstances, it is

appropriate to defer all but thirty days of the six-month suspension recommended by

the board.

Regarding the recommendation of the committee and the board that

respondent be required to submit to an examination by a licensed mental health care

professional, we agree that respondent behaved in a bizarre manner towards Ms.

Bowers, yet seems unable to understand why she was offended by his remarks.

Respondent’s persistent focus on the underlying property matter during these

proceedings is also somewhat puzzling. To resolve any concerns about respondent’s

mental state, we will require that before he may be reinstated from his suspension,

he must consult with JLAP and undergo, at his cost, an evaluation by a

neuropsychologist or other mental health professional designated by JLAP to

determine his competency to continue to practice law. A report of the evaluation

shall be promptly submitted by the evaluator to JLAP, and provided by JLAP to the

ODC and respondent within five days of receipt of the report. After receipt of the

evaluator’s report, the ODC shall take any further action it deems appropriate under

the circumstances.

DECREE

Upon review of the findings and recommendations of the hearing committee

and the disciplinary board, and considering the record, briefs, and oral argument, it

is ordered that David Band, Jr., Louisiana Bar Roll number 2718, be and he hereby

is suspended from the practice of law for a period of six months, will all but thirty

days deferred. It is further ordered that before respondent may be reinstated from

9 his suspension, he must consult with the Judges and Lawyers Assistance Program

and undergo, at his cost, an evaluation by a neuropsychologist or other mental health

professional designated by JLAP to determine his competency to continue to

practice law. All costs and expenses in the matter are assessed against respondent

in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to

commence thirty days from the date of finality of this court’s judgment until paid.

10 SUPREME COURT OF LOUISIANA

No. 2023-B-00284

GENOVESE, J., dissents and assigns reasons.

I dissent, finding the discipline too lenient. SUPREME COURT OF LOUISIANA

CRAIN, J., dissents and assigns reasons.

I dissent, finding the discipline too lenient.