In re Pinkston

852 So. 2d 966, 2003 La. LEXIS 1613, 2003 WL 21152513
CourtSupreme Court of Louisiana
DecidedMay 20, 2003
DocketNos. 2002-B-3251, 2002-B-3252
StatusPublished
Cited by9 cases

This text of 852 So. 2d 966 (In re Pinkston) 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 Pinkston, 852 So. 2d 966, 2003 La. LEXIS 1613, 2003 WL 21152513 (La. 2003).

Opinions

ATTORNEY DISCIPLINARY PROCEEDINGS

LPER CURIAM.

This disciplinary proceeding involves six counts of misconduct1 stemming from two sets of formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Donald O. Pinkston, an attorney licensed to practice law in Louisiana but currently suspended from the practice of law for conduct unrelated to the instant proceedings.

UNDERLYING FACTS

Small Matter

In 1993, Dwayne Small, respondent’s stepson, pled guilty to manslaughter pursuant to a plea agreement in Orleans Parish Criminal District Court, Section “C.” Mr. Small was sentenced to twenty-one years in prison and began serving his sentence. In 1995, respondent enrolled as counsel of record for Mr. Small and filed a Motion to Correct an Excessive Sentence alleging the court erred in failing to apply the sentencing guidelines to Mr. Small’s plea agreement, which when applied would warrant imposition of a shorter sentence. The district attorney’s office filed an | ^objection to respondent’s motion urging it was illegal to amend a sentence imposed at hard labor after a criminal defendant started serving his time. Additionally, he asserted there was no law mandating the application of sentencing guidelines to plea agreements.

[968]*968At a hearing conducted on June 25, 1996 by Judge Ike Spears, who was sitting ad hoc in Section “C,” respondent alleged on numerous occasions that he had personally spoken with the district attorney and was assured the State of Louisiana would not object to his motion. Based on respondent’s representations, Judge Spears reduced Mr. Small’s sentence from twenty-one years to twelve years, but stayed the effect of the order to enable the State to file writs.

Days later, the district attorney’s office filed a motion seeking reconsideration of the sentence reduction. Judge Spears kept the stay in place and again continued hearings of the State’s motion to permit respondent an opportunity to confirm his purported agreement with the district attorney’s office. When respondent was unable to do so, Judge Spears granted the State’s motion to reconsider and reinstated Mr. Small’s original twenty-one year sentence.

Prior to a scheduled status conference, Judge Sharon Hunter was elected to fill the vacancy in Section “C,” and the matter passed to her. In November 1996, she held the status conference and determined the matter was closed. The docket entry reflected: “the status hearing considered held and satisfied.”

Thereafter, respondent filed a “Motion to Correct an Illegal Minute Entry” in Mr. Small’s case. For unexplained reasons, that motion appeared on the docket of Section “G,” presided over by Judge Julian Parker.2 At the hearing on the motion, |3respondent represented to Judge Parker that an administrative error had taken place since Judge Spears had imposed a twelve-year sentence on Mr. Small when the actual sentence should have been nine years. Based on the representations made by respondent, Judge Parker vacated the prior sentence and resentenced Mr. Small to nine years.3 As a result, Mr. Small was entitled to an immediate release from prison.

Subsequently, Judge Parker reviewed the complete record and learned Judge Spears had in fact reinstated the twenty-one year sentence. Judge Parker advised the parties it was not his intent to re-sentence Mr. Small; rather, he believed, based on what he characterized as “erroneous and misleading representations” from respondent, that he was merely correcting an administrative error of Judge Spears. Accordingly, Judge Parker rescinded his earlier ruling and reinstated Mr. Small’s original sentence of twenty-one years. He ordered respondent to turn Mr. Small back into the custody of the State of Louisiana.

The ODC later conducted an investigation into respondent’s activity in the Small matter.

[969]*969 McDonald, Matter

In May 1996, Kenneth McDonald retained respondent for $3,500 to assist him in his criminal matter pending in the United States District Court for Eastern District of Louisiana. There was no written contract of employment between the parties. At the time, Mr. McDonald was already represented by New Orleans criminal defense |4attorney Frank DeSalvo. Nonetheless, Mr. McDonald wanted respondent to pursue the scheduling of an expeditious bond hearing and negotiate a plea agreement more favorable than that obtained by Mr. DeSalvo.

Subsequently, respondent met with Mr. McDonald on a few occasions and spoke on one or more times with the Assistant U.S. Attorney assigned to the case.4 Ultimately, Mr. McDonald did not get a bond hearing and he pled guilty relative to an agreement negotiated by Mr. DeSalvo.

On February 28, 1997, Mr. McDonald filed a complaint with the ODC advising that respondent faded to take any action to pursue his legal matter and refused to return the unearned legal fee, despite repeated requests. Contrary to his testimony at the formal hearing, respondent denied he was retained as counsel in the matter since Mr. McDonald was already represented by Mr. DeSalvo. Later, respondent erroneously stated he was retained after Mr. McDonald had already pled guilty and that respondent’s role was “would be to counsel and assist [Mr. McDonald] in calculating the guidelines and searching in the calculation and appealing his sentence if necessary.”

Isaac Matter

In February 1997, Ammie McCrainey Isaac retained respondent for $5,000 to represent her son, Emanuel Isaac, in criminal appellate proceedings. Following a multiple bill hearing, Mr. Isaac was sentenced to twenty years for manslaughter. Respondent filed a timely notice of appeal. Almost one year and one-half after he was retained, respondent wrote to Ms. Isaac stating the appeal was filed on January 26, |,1998. However, while the appeal record in the case was lodged with the court of appeal, the transcript of the hearing and sentencing on the multiple bill were not included. Finding these transcripts to be “essential” for appellate review, the court of appeal ordered respondent five times between January and May 1998 to “take necessary steps to have [the] transcript prepared and forwarded to the Clerk of this Court.” After the record was ultimately supplemented, the court of appeal had to order respondent on three occasions between June and November 1998 to file his assignments of error and brief. Although respondent was granted numerous extensions of time to submit such, he failed to timely comply with the court’s orders. When respondent finally complied with the court’s order on November 2, 1998, the brief relative to the appeal of the trial and sentencing in Mr. Isaac’s homicide case consisted of one assignment of error in a three-page brief.

Subsequently, respondent was suspended from practice of law on unrelated charges in In re: Pinkston, 98-1926 (La.12/11/98), 728 So.2d 381. As a result, Ms. Isaac retained other counsel, who filed a supplemental brief and completed the appellate representation. She asked that respondent provide an accounting and return the unearned fee, but he failed to do so.

[970]*970 Alston Matter

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Bluebook (online)
852 So. 2d 966, 2003 La. LEXIS 1613, 2003 WL 21152513, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-pinkston-la-2003.