In re Gaubert

263 So. 3d 408
CourtSupreme Court of Louisiana
DecidedFebruary 11, 2019
DocketNO. 2018-B-1980
StatusPublished

This text of 263 So. 3d 408 (In re Gaubert) 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 Gaubert, 263 So. 3d 408 (La. 2019).

Opinion

PER CURIAM

This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel ("ODC") against respondent, Jennifer E. Gaubert, an attorney licensed to practice law in Louisiana, but currently ineligible to practice.1

FORMAL CHARGES

On April 6, 2012, respondent was a passenger in a taxi cab driven by Hervey Farrell. Respondent was highly intoxicated. At some point, Mr. Farrell and respondent had a sexual encounter in the vehicle. Mr. Farrell then used his cell phone to take a sexually explicit video of respondent.

Following the encounter, Mr. Farrell called 911 to report that he had been sexually assaulted by respondent. As a result, respondent was charged in New Orleans Municipal Court with simple battery. Mr. Farrell also filed a civil suit against respondent on March 1, 2013, alleging that he suffered tort damages as a result of her sexual advances in the cab.

On April 5, 2013, one year after the incident, respondent went to the Third District Station of the New Orleans Police Department to report that she was the victim of the crimes of extortion and video voyeurism perpetrated by Mr. Farrell. According to the police report, respondent claimed that her friend and attorney, Brigid Collins, flagged down a cab in the French Quarter and told the driver, Mr. Farrell, to take respondent to an address in Lakeview. Respondent admitted that she was intoxicated during the ride and got into the front seat and began kissing Mr. Farrell. Mr. Farrell later stopped the cab in the Lakeview area and used his cell phone to record a video of respondent, during which she exposed her genitalia. Respondent claimed that Ms. Collins received a copy of the video via e-mail and that Mr. Farrell indicated that if he received $ 1,000, the video and the charges he filed would "go away."

Mr. Farrell was later arrested on charges of video voyeurism and extortion. As a result of his arrest, Mr. Farrell spent about thirty hours in jail.

Following an investigation of respondent's complaint against Mr. Farrell, on October 1, 2013, the state charged respondent with one count of false swearing for the purposes of denying a constitutional right, a felony, in violation of La. R.S. 14:126.2. Respondent was arraigned and pleaded not guilty. She subsequently elected a bench trial.

On April 2, 2014, while the state charges were pending, respondent was tried in Municipal Court on the simple battery charge brought by Mr. Farrell. She was found guilty of that offense and fined costs. Following the denial of respondent's motion for new trial, her conviction of simple battery became final.

On June 13, 2014, the state amended the bill of information to charge respondent *410with one count of false swearing for the purposes of violating public health or safety, a felony, in violation of La. R.S. 14:126.1. On the same day, respondent pleaded not guilty to that charge.

On January 16, 2015, a one-day bench trial was held in Criminal District Court before Judge Arthur Hunter. The state called two witnesses: Ms. Collins and the police officer who took respondent's criminal complaint. Ms. Collins testified that she never received an e-mail or any other communication from Mr. Farrell or his attorney requesting $ 1,000 for the charges and the video to "go away." She stated that she did receive a copy of the video and that she received a demand for between $ 50,000 and $ 60,000 in connection with the settlement negotiations of the civil suit.

At the close of the state's case, respondent moved for a judgment of acquittal. Judge Hunter deferred his ruling. Respondent then called several witnesses who testified to seeing the sexual encounter in the cab. The witnesses denied having any knowledge of the extortion attempt. Respondent also testified on her own behalf.

At the end of the trial, Judge Hunter denied respondent's motion for a judgment of acquittal. Finding no evidence that Mr. Farrell or his attorney ever made a demand for $ 1,000 and crediting Ms. Collins' testimony that the $ 60,000 demand was in connection with the civil suit, Judge Hunter found respondent guilty of the lesser included offense of criminal mischief, a misdemeanor, based on her false report of extortion. On February 25, 2015, Judge Hunter denied respondent's motions for new trial and post-verdict judgment of acquittal. Judge Hunter sentenced respondent to serve one day in parish prison, suspended; one day of inactive probation with the condition that she not purchase or possess a gun during probation; and ordered her to pay costs.

Respondent appealed her conviction and sentence. The Fourth Circuit Court of Appeal affirmed, holding the record supported the district court's finding that respondent's report of an extortion threat was false. State v. Gaubert , 15-0774 (La. App. 4th Cir. 12/9/15), 179 So.3d 982. The court of appeal reasoned:

The district court credited the testimony of Mr. Farrell, Ms. Collins, and Officer Moran over the testimony of Ms. Gaubert and concluded that the State proved Ms. Gaubert's report of extortion was false. The demand for $ 60,000.00 was not a threat; it was a settlement demand in the context of a civil lawsuit. The record is devoid of any evidence, save for Ms. Gaubert's testimony, that Mr. Farrell or his attorney ever made a demand for $ 1,000.00. No other monetary demand was identified. Nor was an email or any other mode of communication documenting an extortion threat produced. The record thus supports the district court's finding that Ms. Gaubert's report to Officer Moran of an extortion threat was false. Viewing the evidence in the light most favorable to the prosecution, the State proved beyond a reasonable doubt Ms. Gaubert's guilt of criminal mischief. This assignment of error is without merit. [Internal footnote omitted.]

The court of appeal subsequently denied respondent's application for rehearing. Respondent then applied to this court for review. On January 23, 2017, we unanimously denied writs. State v. Gaubert , 16-0122 (La. 1/23/17), 215 So.3d 681. As such, her conviction of criminal mischief is final.

The ODC alleged that respondent's conduct violated Rule 8.4(b) (commission of a criminal act that reflects adversely on the lawyer's honesty, trustworthiness, or fitness *411as a lawyer) of the Rules of Professional Conduct.

DISCIPLINARY PROCEEDINGS

In July 2017, the ODC filed formal charges against respondent, as set forth above. Respondent failed to answer the formal charges. Accordingly, the factual allegations contained therein were deemed admitted and proven by clear and convincing evidence pursuant to Supreme Court Rule XIX, § 11(E)(3). No formal hearing was held, but the parties were given an opportunity to file with the hearing committee written arguments and documentary evidence on the issue of sanctions. Respondent filed nothing for the hearing committee's consideration.

Hearing Committee Report

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Louisiana State Bar Ass'n v. Wilkinson
562 So. 2d 902 (Supreme Court of Louisiana, 1990)
In re Crabson
115 So. 3d 452 (Supreme Court of Louisiana, 2013)
State v. Gaubert
179 So. 3d 982 (Louisiana Court of Appeal, 2015)
State v. Gaubert
215 So. 3d 681 (Supreme Court of Louisiana, 2017)
In re Lightfoot
85 So. 3d 56 (Supreme Court of Louisiana, 2012)
Porter v. La. Self-Ins. Fund
238 So. 3d 949 (Supreme Court of Louisiana, 2018)
In re Bankston
810 So. 2d 1113 (Supreme Court of Louisiana, 2002)
In re Boudreau
815 So. 2d 76 (Supreme Court of Louisiana, 2002)

Cite This Page — Counsel Stack

Bluebook (online)
263 So. 3d 408, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-gaubert-la-2019.