In Re: Desha M. Gay

• Court: Supreme Court of Louisiana
• Decided: October 25, 2024
• Docket: 2024-B-00620
• Status: Published

Opinion

FOR IMMEDIATE NEWS RELEASE NEWS RELEASE #049

FROM: CLERK OF SUPREME COURT OF LOUISIANA

The Opinions handed down on the 25th day of October, 2024 are as follows:

PER CURIAM:

2024-B-00620 IN RE: DESHA M. GAY

SUSPENSION IMPOSED. SEE PER CURIAM.

Crichton, J., concurs in part and dissents in part and assigns reasons. SUPREME COURT OF LOUISIANA

NO. 2024-B-0620

IN RE: DESHA M. GAY

ATTORNEY DISCIPLINARY PROCEEDING

PER CURIAM*

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

Disciplinary Counsel (“ODC”) against respondent, Desha M. Gay, an attorney

licensed to practice law in Louisiana.

UNDERLYING FACTS

Beginning in 2017 and continuing through 2022, respondent represented

Felicia Picard in three separate legal matters: a personal injury matter, a criminal

matter, and a family law matter. While handling the personal injury matter,

respondent provided Ms. Picard with extensive financial assistance, but she failed to

obtain Ms. Picard’s written consent to the terms and conditions under which such

financial assistance was made. Many of the payments to Ms. Picard were also not

supported by documented obligations for living expenses. Additionally, in the

criminal case, respondent improperly paid $635 to a bail bondsman to secure a bond

on Ms. Picard’s behalf. 1 Finally, in the family law matter, respondent advised Ms.

Picard in 2019 that she had filed a petition for divorce, but this representation was

false.

* Justice Jeannette Theriot Knoll, retired, appointed Justice Pro Tempore, sitting for the vacancy in Louisiana Supreme Court District 3. 1 In addition to the violation of the financial assistance rule relating to the bond, La. Code Crim. P. art. 327 expressly provides that “[a] person shall not be released on bail for which an attorney at law … becomes a surety or provides money or property for bail.” In April 2022, the ODC received a disciplinary complaint filed by Ms. Picard.

After several requests from the ODC for a response to the complaint, respondent

filed an untimely response in July 2022. Thereafter, the ODC requested additional

information from respondent, but she failed to provide it, necessitating the issuance

of a subpoena for her sworn statement on September 8, 2022.

During the sworn statement, the ODC again requested additional information

from respondent pertaining to her representation of Ms. Picard. Respondent

repeatedly assured the ODC the information was forthcoming. Although she

provided the ODC with a supplemental response on February 28, 2023, this response

was incomplete, and respondent has not provided any further information.

DISCIPLINARY PROCEEDINGS

On May 15, 2023, the ODC filed formal charges against respondent, alleging

that her conduct as set forth above violated the following provisions of the Rules of

Professional Conduct: Rules 1.8(e) (financial assistance to a client), 8.1(c) (failure

to cooperate with the ODC in its investigation), 8.4(a) (violation of the Rules of

Professional Conduct), and 8.4(c) (engaging in conduct involving dishonesty, fraud,

deceit, or misrepresentation). On May 19, 2023, the formal charges were served

upon respondent via certified mail sent to her primary and secondary registration

addresses. The mail sent to respondent’s primary registration address was received

and signed for by “Ryan Pack” on May 24, 2023. The mail sent to respondent’s

secondary registration address was received and signed for by respondent on June 6,

2023.

Respondent initially failed to answer the formal charges, and by order dated

June 28, 2023 the factual allegations contained therein were deemed admitted and

proven by clear and convincing evidence. On July 21, 2023, respondent filed a

motion to recall the deemed admitted order, which the ODC opposed. Respondent

2 also filed an answer to the formal charges admitting that she “unknowingly” violated

Rule 1.8(e) but denying any other violations. On August 3, 2023, the hearing

committee denied respondent’s motion to recall the deemed admitted order.

Accordingly, no formal hearing was held, and the committee considered the matter

based upon the written arguments and documentary evidence submitted by the

parties.

Hearing Committee Report

The hearing committee adopted the deemed admitted factual allegations of the

formal charges as its factual findings. Based on those facts, the committee

determined respondent violated the Rules of Professional Conduct as charged.

The committee further determined that respondent violated duties owed to her

client, the public, and the profession. Her violations of the financial assistance rule

were negligent, but her misrepresentation to her client and her failure to cooperate

with the ODC were knowing and intentional. Respondent’s misconduct caused

actual harm to her client and the profession. The committee did not assess the

baseline sanction, nor did it mention any mitigating factors. The committee found

no aggravating factors are present.

Considering “the unique circumstances of this matter,” the committee

recommended that respondent be suspended from the practice of law for six months,

fully deferred, subject to a one-year period of probation with attendance at Ethics

School. The committee also recommended that respondent be assessed with the

costs and expenses of these proceedings.

Respondent filed an objection to the hearing committee’s report.

3 Disciplinary Board Recommendation

After review, the disciplinary board determined that the factual findings of the

hearing committee are not manifestly erroneous and adopted same. Based upon

these facts, the board agreed with the committee that respondent violated the Rules

of Professional Conduct as charged.

The board determined that respondent violated duties owed to her client and

the profession. Her violations of the financial assistance rule were negligent, but her

misrepresentation to her client and her failure to cooperate with the ODC were

knowing and intentional. Respondent’s misconduct caused actual harm to her client

and the profession. Based on the ABA’s Standards for Imposing Lawyer Sanctions,

the board determined the baseline sanction is suspension.

The board found no aggravating factors are present. In mitigation, the board

found the absence of a prior disciplinary record.

Considering these findings, and the prior jurisprudence of the court in similar

cases, the board recommended that respondent be suspended from the practice of

law for six months, fully deferred, subject to a one-year period of probation with

attendance at Ethics School. The board also recommended that respondent be

assessed with the costs and expenses of these proceedings.

Respondent filed an objection to the board’s recommendation. Pursuant to

Supreme Court Rule XIX, § 11(G)(1)(b), the case was scheduled on our docket;

however, respondent failed to file a brief and therefore waived her right to oral

argument. Thereafter, the ODC filed a motion waiving its right to oral argument.

We granted the ODC’s motion and now consider the case based upon the record and

the brief filed by the ODC.

4 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

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.

In cases in which the lawyer does not answer the formal charges, the factual

allegations of those charges are deemed admitted. Supreme Court Rule XIX, §

11(E)(3). Thus, the ODC bears no additional burden to prove the factual allegations

contained in the formal charges after those charges have been deemed admitted.

However, the language of § 11(E)(3) does not encompass legal conclusions that flow

from the factual allegations. If the legal conclusion the ODC seeks to prove (i.e., a

violation of a specific rule) is not readily apparent from the deemed admitted facts,

additional evidence may need to be submitted in order to prove the legal conclusions

that flow from the admitted factual allegations. In re: Donnan, 01-3058 (La.

1/10/03), 838 So. 2d 715.

The record of this matter supports a finding that respondent provided improper

financial assistance to her client, made a misrepresentation to her client, and failed

to cooperate with the ODC in its investigation. This conduct violated 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

5 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).

Although the hearing committee and the disciplinary board found that

respondent’s violations of the financial assistance rule were negligent, we disagree.

The record contains a copy of a text message respondent sent to Ms. Picard in

response to a request for an advance of funds to pay living expenses. Respondent

told Ms. Picard that “I’m not even supposed to be giving you money like I am. … I

am putting MY bar license on the line here because I know your situation is hard.”

This exchange indicates that respondent’s violations of the financial assistance rule

were knowing. Respondent’s misrepresentation to her client and her failure to

cooperate with the ODC were knowing and intentional.

Respondent violated duties owed to her client and the profession, causing

actual harm. The applicable baseline sanction is suspension. There are no

aggravating factors present. The record supports the following mitigating factors:

absence of a prior disciplinary record and inexperience in the practice of law

(admitted 2016).

The disciplinary board has recommended a fully deferred six-month

suspension. We find this sanction is too lenient in light of the knowing and

intentional nature of respondent’s misconduct, and that an actual period of

suspension is required. Therefore, we will suspend respondent from the practice of

law for six months, deferring all but sixty days in light of the mitigating factors

present. Following respondent’s suspension, she shall be placed on probation for

one year, during which she shall attend Ethics School.

6 DECREE

Upon review of the findings and recommendations of the hearing committee

and the disciplinary board, and considering the record and the brief filed by the ODC,

it is ordered that Desha M. Gay, Louisiana Bar Roll number 36855, be and she

hereby is suspended from the practice of law for a period of six months. It is further

ordered that all but sixty days of this suspension shall be deferred. Following the

completion of the active portion of her suspension, respondent shall be placed on

probation for a period of one year with the condition that she attend and successfully

complete the Louisiana State Bar Association’s Ethics School. The probationary

period shall commence from the date respondent and the ODC execute a formal

probation plan. Any failure of respondent to comply with the conditions of

probation, or any misconduct during the probationary period, may be grounds for

making the deferred portion of the suspension executory, or imposing additional

discipline, as appropriate. 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.

7 SUPREME COURT OF LOUISIANA

No. 2024-B-00620

CRICHTON, J. concurs in part, dissents in part, and assigns reasons.

I agree with the majority that the violations were proven by clear and

convincing evidence. La. Sup. Ct. R. XIX, § 11(E)(3) (“In the event Respondent

fails to answer within the prescribed time, or the time as extended, the factual

allegations contained within the formal charges shall be deemed admitted and

proven by clear and convincing evidence.”). I dissent because I find the sanction

imposed unduly lenient and would not defer any of respondent’s suspension. See,

e.g., In re: Smith, 2023-00596 (La. 6/21/23), 362 So. 3d 416, 420 (Crichton, J.,

additionally concurring) (“I write separately to again note my continued

astonishment at lawyers who, facing serious sanctions resulting from their own grave

misconduct, fail to answer the charges against them or file anything in mitigation for

their own defense.”).

In this matter, respondent (i) failed to timely respond to “several requests”

from the ODC during the investigatory stage; (ii) failed to provide additional

information to the ODC despite assertions that she would do so, necessitating a

subpoena; (iii) failed to timely answer the formal charges; and (iv) failed to file a

brief with this Court. In my view, respondent’s obstinance during the proceedings

against her exacerbates the underlying violation. As I have previously remarked, “an

attorney’s failure to participate in disciplinary proceedings is not only alarming, it

prevents this Court from considering mitigating evidence (if any) and is a blatant

disregard for the structure in place designed to protect the public.” In re: Merritt,

1 2023-00134 (La. 5/31/23), 361 So. 3d 451, 456 (Crichton, J., concurring in part and

dissenting in part) (quoting In re: White, 2022-01701 (La. 2/24/23), 355 So. 3d 1085,

1093 (collecting cases)). For these reasons, I dissent as to the discipline imposed.