In re Nichols

885 So. 2d 557, 2004 La. LEXIS 3156, 2004 WL 2416127
CourtSupreme Court of Louisiana
DecidedOctober 29, 2004
DocketNo. 2004-B-1455
StatusPublished

This text of 885 So. 2d 557 (In re Nichols) 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 Nichols, 885 So. 2d 557, 2004 La. LEXIS 3156, 2004 WL 2416127 (La. 2004).

Opinion

[558]*558ATTORNEY DISCIPLINARY PROCEEDINGS

| .PER CURIAM.

This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Logan L. Nichols, an attorney licensed to practice law in Louisiana but currently on interim suspension.1

UNDERLYING FACTS AND PROCEDURAL HISTORY

On February 3, 2003, the United States Attorney filed a single count bill of information in the United States District Court for the Western District of Louisiana charging respondent and others with trading on material, non-public information regarding the common stock of American Waste Services, Inc. On February 13, 2003, respondent pleaded guilty to one felony count of conspiracy to commit securities fraud,2 a violation of 18 U.S.C. § 371. The underlying facts of the criminal | ¡.conviction are not in dispute, having been stipulated to by respondent and the Government as part of a plea agreement.

Respondent has been a long-time friend and business associate of William Roth-rock, the Senior Vice President of Business Development at USA Waste Services, Inc. On February 6,1998, American Waste agreed to be acquired by USA Waste. On February 5, 1998, the day before the public announcement of the merger, Mr. Rothrock telephoned respondent and communicated to him material, non-public information about the acquisition. Within approximately twenty minutes of the call, respondent purchased 100,000 shares of American Waste stock based upon the tip he had received. Four days later, on February 9, 1998, respondent sold his shares and realized a profit of $179,850.

On March 9, 1998, respondent had a second telephone conversation with Mr. Rothrock. During this conversation Mr. Rothrock communicated to respondent material, non-public information about USA Waste’s plan to merge with Waste Management, Inc. Based on this tip, respondent purchased 10,000 shares of Waste Management common stock. Two days later, on March 11, 1998, respondent sold his shares and realized a profit of $50,625.3

Respondent has stipulated that he and Mr. Rothrock conspired to commit securities fraud. He also admitted that he knew the information he had received from Mr. Rothrock “was communicated to me in [559]*559breach of a duty William A. Rothrock owed to USA Waste.” 4

| ¡¡Respondent's illegal conduct was also the subject of an investigation by the U.S. Securities and Exchange Commission (SEC). Following its investigation, the SEC filed a complaint against respondent and others in the United States District Court for the Southern District of Texas. By consent judgment dated November 8, 2001 in the matter entitled Securities and Exchange Commission v. William A. Rothrock, IV, et al., number H-01-3732 on the docket of the United States District Court for the Southern District of Texas, respondent was ordered to disgorge a total of $851,637.01 in profits from his illegal conduct and pre-judgment interest. Respondent paid this sum on November 21, 2001. Respondent was further ordered to pay a civil penalty of $461,803.50, which has also been satisfied.

DISCIPLINARY PROCEEDINGS

On May 9, 2003, the ODC filed one count of formal charges against respondent, alleging that his conviction of a criminal offense constitutes a violation of Rules 8.4(b) (commission of a criminal act reflecting adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer) and 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation) of the Rules of Professional Conduct. Respondent answered the formal charges and admitted his conviction, but requested a hearing for the purpose of determining an appropriate sanction.

Review of the Record

When this matter proceeded to a formal hearing on September 24, 2003, the ODC introduced portions of the record of respondent’s federal criminal proceeding in support of the formal charges. Respondent was the only witness to testify in Person before the hearing committee, but included in the documentary evidence Rsubmitted by respondent are several letters attesting to his good character and reputation in the community.

In his testimony, respondent expressed remorse for his involvement in insider trading, and in particular for the effect the resulting proceedings have had on his family. He also testified that his criminal conduct was not related to the practice of law. On cross-examination, respondent admitted that when he gave a sworn statement to the Securities and Exchange Commission in November 1998, he testified that he “picked up on the stock deal” on his own, without having received a tip from Mr. Rothrock; it was not until the SEC told him about the evidence in its possession that he admitted what he had done:

Q. So at some time between November of ’98 when the statement was taken in ’98 and 2001, you decided to become candid with the SEC when you hadn’t been before, is that correct?
A. I think that’s correct, yes.
Q. And you decided to become candid with the SEC basically because you knew what it was that they could prove, is that correct?
A. I think that’s a fair statement, yes.
Q. You didn’t on your own go to the SEC and say, “I’m sorry. I engaged in this sort of conduct,” and when they first contacted you, you didn’t for want of a better set of [560]*560words admit to what you’d done, did you?
A. No.
Q. You told them a story at first, correct? You told them a different story, one that was not accurate, is that true?
A. That’s correct.

[T. pp. 38-39]

| .^Respondent further admitted that on both of the occasions on which he received inside information from Mr. Rothrock he passed that information along to other individuals, each of whom traded on the tip. When asked why he knowingly traded on inside information, respondent admitted that he did so to make money but could otherwise offer no explanation; he simply replied, “I don’t know, ... I did it.”

Hearing Committee Recommendation

The hearing committee noted respondent’s admission that his conduct violated Rules 8.4(b) and 8.4(c) of the Rules of Professional Conduct. Such conduct violated duties owed by respondent to the public and under the ABA’s Standards for Imposing Lawyer Sanctions, the applicable baseline sanction is disbarment. The only aggravating factor recognized by the committee is respondent’s substantial experience in the practice of law (admitted 1976). In mitigation, the committee found the following factors apply: absence of a prior disciplinary record, full and free disclosure to the disciplinary board and a cooperative attitude toward the proceedings, character or reputation, imposition of other penalties or sanctions, and remorse. Concluding that these mitigating factors are entitled to significant weight, the committee recommended that respondent be suspended from the practice of law for three years.

Both respondent and the ODC objected to the manner in which the aggravating and mitigating factors were applied by the hearing committee.

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Related

United States v. Nichols
376 F.3d 440 (Fifth Circuit, 2004)
Louisiana State Bar Ass'n v. Wilkinson
562 So. 2d 902 (Supreme Court of Louisiana, 1990)
Louisiana State Bar Ass'n v. Perez
550 So. 2d 188 (Supreme Court of Louisiana, 1989)
In Re Palmer
835 So. 2d 410 (Supreme Court of Louisiana, 2002)
In re Adams
762 So. 2d 617 (Supreme Court of Louisiana, 2000)
In re Boudreau
815 So. 2d 76 (Supreme Court of Louisiana, 2002)
In re Nevitte
827 So. 2d 1135 (Supreme Court of Louisiana, 2002)
In re Nichols
845 So. 2d 1044 (Supreme Court of Louisiana, 2003)

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Bluebook (online)
885 So. 2d 557, 2004 La. LEXIS 3156, 2004 WL 2416127, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-nichols-la-2004.