FOR IMMEDIATE NEWS RELEASE NEWS RELEASE #032
FROM: CLERK OF SUPREME COURT OF LOUISIANA
The Opinions handed down on the 28th day of June, 2024 are as follows:
PER CURIAM:
2024-B-00149 IN RE: ROBERT WILLIAM HJORTSBERG
SUSPENSION IMPOSED. SEE PER CURIAM.
Hughes, J., dissents in part for the reasons assigned by Justice Crain. Crichton, J., additionally concurs and assigns reasons. Crain, J., dissents in part and assigns reasons. McCallum, J., dissents in part for the reasons assigned by Justice Crain. SUPREME COURT OF LOUISIANA
NO. 2024-B-0149
IN RE: ROBERT WILLIAM HJORTSBERG
ATTORNEY DISCIPLINARY PROCEEDING
PER CURIAM
This disciplinary matter arises from formal charges filed by the Office of
Disciplinary Counsel (“ODC”) against respondent, Robert W. Hjortsberg, an
attorney licensed to practice law in Louisiana.
UNDERLYING FACTS
Count I
In January 2021, respondent self-reported through his attorney that he would
plead guilty to a federal misdemeanor bill of information based on his failure to file
an income tax return for 2017. The underlying facts reflect that respondent failed to
file an income tax return for two years, both 2017 and 2018, but he obtained a
negotiated plea for a single year in exchange for truthful testimony and cooperation
in a federal criminal trial.
The ODC alleges that respondent’s conduct violated Rules 8.4(a) (violation
of the Rules of Professional Conduct), 8.4(b) (commission of a criminal act that
reflects 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. Count II
Zarius Brown was charged by bill of information with attempted first degree
murder of a police officer, illegal possession of stolen things, and aggravated
criminal damage to property. Respondent was retained to represent Mr. Brown in
the criminal matter, which was pending in the 22nd Judicial District Court for the
Parish of Washington.
On the first day of the two-day trial, Mr. Brown was with respondent while a
panel of prospective jurors on voir dire was questioned by the trial court and then by
the prosecutor. Following this questioning, the trial court recessed for a brief
restroom break. During the break, Mr. Brown left the courthouse and did not return.
Efforts made to locate Mr. Brown were unsuccessful.
The trial court noted that Mr. Brown had voluntarily absented himself after
trial had commenced. Thus, according to the trial court, Mr. Brown’s presence was
not required, and the trial would continue. Respondent moved for a continuance and
a mistrial, but the trial court denied the motions. Respondent then advised the court
that he would not participate in the trial and would simply sit at the counsel table,
taking no role in the defense. The jury was picked without any input from
respondent on Mr. Brown’s behalf. Respondent also did not give an opening
statement or closing argument, made no objections, and did not participate in cross-
examination of the State’s witnesses or call any witnesses for the defense.
At the conclusion of the trial, the jury found Mr. Brown guilty as charged on
all counts, and he was sentenced by the trial court. However, the convictions and
sentences were reversed on appeal and the case remanded for a new trial after
respondent’s conduct was found to be a clear case of ineffective assistance of
counsel:
Defense counsel’s representation of the defendant, in his refusal to participate at trial, clearly fell below an objective standard of professional reasonableness. With regard to all
2 counts, we find that the defendant demonstrated prejudice, the second prong of Strickland [v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)]. Defense counsel did not object to improper comments by the prosecution, the improper jury instruction, or the leading of the witnesses. Additionally, defense counsel was silent and made no objections to the prosecutor’s comments regarding the defendant’s flight and his failure to take the stand. Accordingly, we find that the defendant showed that there was a reasonable probability that but for defense counsel’s unprofessional errors, the result of the proceedings would have been different regarding all counts.
State v. Brown, 21-0625, pp. 15-16 (La. App. 1st Cir. 2/16/22), 2022 WL 472966
(not designated for publication). 1
The ODC alleges that respondent’s conduct violated Rules 1.3 (failure to act
with reasonable diligence and promptness in representing a client), 8.4(a), and 8.4(d)
(engaging in conduct prejudicial to the administration of justice) of the Rules of
Professional Conduct.
DISCIPLINARY PROCEEDINGS
In August 2022, the ODC filed formal charges against respondent.
Respondent, through counsel, filed an answer admitting that he failed to file his
federal income tax returns for 2017 and 2018 in violation of Rules 8.4(a), 8.4(b), and
8.4(c). Respondent denied any misconduct in Count II, asserting that he acted in
good faith to protect the interests of his client.
Considering respondent’s answer, the matter proceeded to a formal hearing
on the merits.
1 Judge Guidry authored the opinion for the court of appeal. Judge Chutz concurred, stating, “In my view, this case does not present an instance of ineffective assistance of counsel, but of the complete denial of the defendant’s constitutional right to counsel.” Judge Holdridge dissented as to the reversal of the defendant’s convictions and sentences, stating, “In this case, the circumstances and facts surrounding the defendant’s failure to appear at the trial and the lack of participation at the trial by the defendant’s counsel should be examined at a contradictory hearing in response to a post-conviction relief application.”
3 Formal Hearing
The hearing committee conducted the formal hearing on February 3, 2023.
The ODC introduced documentary evidence and called respondent to testify before
the committee. Respondent called the following witnesses to testify: Judge William
Burris of the 22nd Judicial District Court; Judge Camille Buras of the Orleans Parish
Criminal Court; attorney Thomas Calogero; Susan Lampton, an employee of the
World War II Museum, Carl Rochet, respondent’s best friend; and Bivian “Sonny”
Lee, the founder and CEO of Son of a Saint, a nonprofit organization.
Hearing Committee Report
After considering the evidence and testimony presented at the hearing, the
hearing committee summarized the testimony as follows:
Respondent – Regarding Count I, respondent admitted that he willfully failed
to file income tax returns for 2017 and 2018, for which he was prosecuted in the
United States District Court for the Eastern District of Louisiana. On March 21,
2021, respondent pleaded guilty to a misdemeanor violation of 26 U.S.C. § 7203.
He was sentenced to six months of home detention, thirty-six months of probation,
payment of $31,651 in restitution, and a $4,000 fine. Respondent also agreed as part
of his plea to provide testimony in the federal trial of Jason Williams (his former
employer) and Nicole Burdett, if needed, but he was not called to testify in that
federal trial. Respondent has paid the restitution ordered by the court as part of his
sentence.2 Respondent indicated that his failure to file income tax returns resulted
from carelessness. He added that the person who filed his taxes in previous years
had held himself out as a CPA, and after respondent learned his taxes were not filed,
2 Respondent eventually filed tax returns for 2017 and 2018 jointly with his wife, who was not prosecuted. The returns included respondent’s 1099 income for his work during 2017 and 2018, as well as his wife’s W-2 income for those years.
4 this person advised it was “no big deal.” Respondent noted that he cooperated fully
with the ODC and was not a public official.
Regarding Count II, respondent testified that Mr. Brown had been charged
with several felony counts in the 22nd JDC before Judge William Burris. The trial
commenced on March 10, 2020. After the prosecution and the judge examined the
first panel of jurors on voir dire, a restroom break was taken. Mr. Brown did not
return to the courtroom after the break, and efforts to locate him were unsuccessful.
Respondent testified that he had no knowledge Mr. Brown would skip bail. This
situation – the client absenting himself during the trial – was a first for respondent,
Judge Burris, and the prosecutor.
Respondent moved for a continuance as well as a mistrial, both of which were
denied, but he did not request to withdraw as counsel, believing it would be improper
and result in prejudice to his client. Respondent instead made the strategic decision
to not participate in the trial. He made these decisions “on the spot.” Respondent
felt his actions were taken in the best interests of his client because the case involved
a police officer’s testimony versus his client’s version of events. Judge Burris did
not hold respondent in contempt for failure to participate at trial, stating: “That is
your strategic choice.” Respondent did not request the opportunity to take writs to
the court of appeal.
Respondent had not received prior instructions from Mr. Brown as to whether
he (Mr. Brown) would testify or how to proceed without his presence, and
respondent could not recall whether he sought advice from attorneys about how to
proceed with an absent client. Respondent was present in the courtroom during the
entire trial, although he did not question witnesses, make arguments, or enter
evidentiary objections. Following the two-day trial, the jury found Mr. Brown guilty
on all counts.
5 On appeal, the First Circuit reversed the conviction and remanded the case for
further proceedings for ineffective assistance of counsel, including an improper jury
charge to which respondent did not object. Respondent credibly testified that he was
not trying to disrespect the court and that he was open about what he was doing.
Neither Judge Burris nor the prosecutor reported respondent to the ODC. Rather, an
appellate attorney for the district attorney’s office reported respondent after the First
Circuit rendered its opinion.
Judge William Burris – Judge Burris, who testified by phone, indicated that
he presided over the Brown trial (Count II). Voir dire of the jury had begun, and
Mr. Brown, who was on bail and not incarcerated, had left the courtroom but did not
return. Judge Burris had never experienced this before. He credibly testified that
respondent was agitated, visibly upset, and unsure about what to do, but was also
punctual and respectful to the court. Respondent had moved for a continuance and
a mistrial, both of which Judge Burris denied. Although he was frustrated by
respondent’s lack of participation at trial, Judge Burris did not hold respondent in
contempt for the reason that a criminal defendant is not required to do anything at
trial except be punctual and respectful. Although respondent did not request time to
obtain ethical guidance or seek writs, had he done so, Judge Burris probably would
not have granted more than a short time to file an emergency writ, and he would not
have granted a motion to withdraw. Judge Burris did not report respondent’s
conduct to the ODC for the same reason that he did not hold respondent in contempt
– doing so would be tantamount to telling someone he would “have to potentially
breach the Fifth Amendment by speaking or by participating in trial.” Judge Burris
had a discussion much later with the assistant district attorney who thought the First
Circuit’s decision instructed the DA’s office to report the matter to the ODC. Judge
Burris did not know that he would agree with that interpretation, but since the DA’s
office had already reported the matter, it was not necessary for him to do so. Judge
6 Burris testified that his number one priority in a jury trial, outside of the
constitutional rights of the defendant, is to value and honor the commitment made
by jurors.
Judge Camille Buras – Judge Buras credibly testified that respondent, who
had argued many motions before her, was prompt, prepared, and straightforward,
and has a very good professional reputation. When asked whether she had ever
presided over a trial where a defendant left the courtroom, Judge Buras responded
that it was very rare, recalling only two occasions in which it happened in her court.
In one instance, the jury had already been sworn and she then declared a mistrial.
Thomas Calogero – Mr. Calogero, who has practiced as a criminal defense
attorney for approximately thirty years, credibly described respondent, with whom
he has worked, as very diligent, very prepared, and a person of outstanding character.
Mr. Calogero testified that he never had a situation in which a criminal defendant
absented himself after a trial commenced. Mr. Calogero further testified that he had
never taken a writ during a trial, although he has heard of it being done.
Susan Lampton – Ms. Lampton has known respondent through his volunteer
work and fundraising for the World War II Museum. Ms. Lampton credibly testified
to the good character of respondent.
Carl Rochet – Mr. Rochet, a marketing director for McDonald’s, has known
respondent since college. Mr. Rochet credibly described respondent as a person of
good character.
Sonny Lee – Mr. Lee credibly testified that respondent, who volunteered with
Son of a Saint, has done what he said he would do and more.
The committee acknowledged respondent’s admission that he failed to file
income tax returns for 2017 and 2018. Based upon the evidence presented at the
hearing, the committee made additional factual findings regarding Count I, including
the following:
7 1. Respondent’s combined adjusted gross income for 2017 and 2018 was
$153,833, and the combined tax owed for 2017 and 2018 was $44,811.
2. Respondent had a dishonest or selfish motive in failing to file his tax returns.
As part of his guilty plea, he admitted knowing that he had to file his 2017 tax
return by October 15, 2018, which he did not do. Respondent testified that
his reason for not filing his 2017 tax return was carelessness, but on cross-
examination by the ODC, he admitted that his failure to file was willful and
that he testified to such as part of his plea agreement. Respondent had the
educational background and experience to understand his obligation to timely
pay taxes on his income and file tax returns. The reliance upon an advisor
who stated it is “no big deal” to not file tax returns is not reasonable.
3. Respondent has paid the full amount of restitution for failing to file his 2017
tax return. He has also paid the full amount of his 2018 taxes, according to
his filed amended return for that year.
4. After deciding to plead guilty, respondent self-reported to the ODC and has
maintained a cooperative attitude throughout these disciplinary proceedings.
5. Based upon the credible testimony of Judge Buras and Mr. Calogero,
respondent has a good professional reputation. Based upon the credible
testimony of Ms. Lampton, Mr. Rochet, and Mr. Lee, respondent has
volunteered with charitable organizations and is a person of good character
and reputation in the community.
6. Respondent credibly expressed remorse for his actions that led to his admitted
rules violations.
7. Respondent is not a current or former public official.
Based upon the testimony and other evidence in the record, the committee
made the following additional factual findings regarding Count II:
8 1. Respondent credibly testified that he had no knowledge that his client, Mr.
Brown, would not return to the courtroom after his trial began.
2. According to the credible testimony of Judge Burris, respondent was visibly
upset and agitated when his client did not return to the courtroom during trial.
3. Respondent credibly testified that he made the strategic decision not to
participate in the trial.
4. Respondent credibly testified that he believed it was in the best interests of his
client not to proceed with the trial. Respondent was prepared for trial. Based
upon the credible testimony of respondent and Judge Burris as to what
occurred after Mr. Brown left the courtroom, respondent had no selfish motive
or intention when he made the decision not to participate in the trial.
5. Respondent, on behalf of his client, argued for a mistrial which was denied.
6. Respondent credibly testified that he had no intention to disrespect the court
or engage in conduct that was prejudicial to the administration of justice.
Regarding the rule violations at issue in Count I, the committee acknowledged
respondent’s admission that his misconduct violated Rules 8.4(a), 8.4(b), and 8.4(c).
As to Count II, the committee found the ODC did not carry its burden of proof. With
respect to Rule 1.3, the evidence introduced at the hearing demonstrated that
respondent appeared for and was prepared for trial. No credible evidence was
introduced to show that he was complicit in any way with Mr. Brown’s decision to
absent himself from the trial. Indeed, respondent testified that he had no knowledge
that Mr. Brown would skip bail, and Judge Burris credibly testified that respondent
was visibly upset and unsure of what to do. Furthermore, respondent argued to the
court that he could not proceed with the trial competently without his client due to
the nature of the case, which turned on his client’s word against that of the police
officer. Respondent moved for a mistrial and remained in the courtroom during the
two days of trial. He made a strategic decision as Mr. Brown’s attorney to do what
9 he thought was in the best interest of his client. No credible evidence was introduced
at the hearing to show that the decision to not further participate in the trial was to
benefit himself or was made because he was unprepared for trial.
With respect to Rule 8.4(d), the committee noted that respondent acted in what
he believed to be the best interest of his client. He had not previously faced the
situation of a client absenting himself during trial and neither had the presiding judge
or the prosecutor. The decision was made during the heat of trial. Respondent was
not ordered by the court to participate in the trial. Balanced against respondent’s
actions, and what he believed were the best interests of his client, is the potential
adverse impact on the justice system. The precedential effect of no ethical violation
for an attorney’s unwillingness to actively participate on behalf of his absent client
during trial has a potential adverse impact on the administration of justice, which is
concerning; however, no credible evidence was presented to show that respondent
was complicit in any way with his client’s absence. To the contrary, Judge Burris
testified that respondent was agitated and visibly upset after learning his client left
the premises. Respondent was open with the court about why he felt he could not
continue to participate in the trial without his client. Furthermore, the evidence
showed that he was prepared for trial, and his decision to not participate in the trial
was not self-serving.
The committee determined respondent knowingly violated duties owed to the
public and the legal profession. His conduct reflects poorly on the profession and
violated obligations he owed to the public. His conduct caused actual harm because
his taxes were not paid until well after he was required to do so by law. Relying on
the ABA’s Standards for Imposing Lawyer Sanctions, the committee determined the
baseline sanction is suspension.
As mitigating factors, the committee found the absence of a prior disciplinary
record, good faith effort to rectify the consequences of the misconduct, full and free
10 disclosure to the disciplinary board and a cooperative attitude toward the
proceedings, character or reputation, imposition of other penalties or sanctions, and
remorse. The only aggravating factor found by the committee was a dishonest or
selfish motive.
Concluding that respondent’s misconduct was limited to the charges set forth
in Count I, and further considering this court’s prior jurisprudence addressing similar
misconduct, the committee recommended that respondent be suspended from the
practice of law for a period of six months, with all but two months deferred, followed
by a one-year period of probation with the condition that any misconduct during the
period of probation will result in the deferred portion of the suspension becoming
executory. The committee also recommended that respondent be assessed with all
costs and expenses of this proceeding.
The ODC filed an objection 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, with one
clarification: the committee’s finding that respondent asked for a mistrial after Mr.
Brown absented himself from trial is correct and supported by the record; however,
respondent also asked for a continuance.
With respect to Count I, the board determined the committee correctly found
that respondent violated Rules 8.4(a), 8.4(b), and 8.4(c). With respect to Count II,
the board agreed that respondent did not violate Rule 8.4(d) and adopted the
committee’s analysis regarding same; however, the board declined to adopt the
finding that Rules 1.3 and 8.4(a) were not violated. Although respondent acted in
what he believed was the best interest of his client, he did not act with reasonable
diligence in representing Mr. Brown. The evidence introduced at the hearing
11 demonstrated that respondent appeared for and was prepared for the trial of his
client. However, after Mr. Brown left the courthouse and the court denied
respondent’s motions for a continuance and for a mistrial, respondent failed to
participate in the proceedings. Respondent failed to participate in voir dire, gave no
opening statement, made no objections, conducted no cross-examination of any
witness, and refused to make a closing argument.
The board determined that respondent violated a duty owed to his client by
failing to participate in trial and violated duties owed to the public and the legal
profession by willfully not filing his tax returns. He acted knowingly and
intentionally, and his conduct caused actual harm. Relying on the ABA’s Standards
for Imposing Lawyer Sanctions, the board determined the baseline sanction is
suspension.
As aggravating factors, the board found a dishonest or selfish motive, multiple
offenses, substantial experience in the practice of law (admitted 2008), and illegal
conduct. As mitigating factors, the board found the absence of a prior disciplinary
record, good faith effort to rectify the consequences of the misconduct, full and free
disclosure to the disciplinary board, character or reputation, imposition of other
penalties or sanctions, and remorse.
After further considering the court’s prior jurisprudence addressing similar
misconduct, the board determined that the sanction recommended by the committee
is reasonable and addresses respondent’s misconduct in Count I. The board noted
that under the unique factual circumstances of Count II, respondent’s violation of
Rules 1.3(a) and 8.4(a) should not add to the severity of the sanction.
Accordingly, the board recommended that respondent be suspended from the
practice of law for six months, with all but two months deferred, followed by a one-
year of probation with the condition that any misconduct during the period of
probation will result in the deferred portion of the suspension becoming executory.
12 The board further recommended that respondent be assessed with all costs and
expenses of this proceeding.
Respondent and the ODC filed objections 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
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.
Respondent does not dispute the misconduct or the charged rule violations in
Count I. Specifically, he admits that he willfully failed to file income tax returns for
2017 and 2018, in violation of Rules 8.4(a), 8.4(b), and 8.4(c) of the Rules of
In Count II, respondent admits that he did not actively participate in the
criminal trial of his client, the defendant, after the client left during voir dire and
failed to return to the courtroom; however, he denies any professional misconduct.
We disagree and find that respondent violated Rules 1.3, 8.4(a), and 8.4(d) as
charged.
An accused’s right to be represented by counsel is a fundamental component
of our criminal justice system. United States v. Cronic, 466 U.S. 648, 653 (1984).
13 The right to the effective assistance of counsel is the right of the accused to require
the prosecution’s case to survive the crucible of meaningful adversarial testing. Id.
at 656. If counsel entirely fails in this regard, then there has been a denial of Sixth
Amendment rights that makes the adversary process itself presumptively unreliable.
Id. at 659.
Here, respondent was physically present in the courtroom during Mr. Brown’s
trial, but he provided no defense at all to Mr. Brown. He did not participate in jury
selection, cross-examine the State’s witnesses, or hold the State to its burden of
proving the alleged criminal offenses beyond a reasonable doubt. Respondent did
not deliver an opening statement or closing argument to emphasize the State’s
burden of proof. He did not object to improper comments by the prosecution,
improper jury instructions, or the leading of witnesses. In other words, respondent
was no more effective in representing Mr. Brown than a proverbial potted plant. As
a result of respondent’s inaction, the court of appeal reversed Mr. Brown’s
convictions and sentences and the case was remanded for a new trial, thereby
wasting the time and resources of the trial court, the attorneys representing the State,
and the citizens participating in jury service. We find that under these circumstances,
respondent did not act with reasonable diligence in representing Mr. Brown and that
his conduct was prejudicial to the administration of justice.
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
14 mitigating circumstances. Louisiana State Bar Ass’n v. Whittington, 459 So. 2d 520
(La. 1984).
Respondent violated duties owed to his client, the public, and the legal
profession. He acted knowingly and intentionally and caused actual harm. We agree
with the hearing committee and the disciplinary board that the applicable baseline
sanction is suspension. The record supports the aggravating and mitigating factors
found by the board.
Under the unique circumstances of this case, we find the appropriate sanction
is a six-month suspension, with all but thirty days deferred, followed by a one-year
period of probation.
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 Robert W. Hjortsberg, Louisiana Bar Roll number 31587, be and he
hereby is suspended from the practice of law for a period of six months. It is further
ordered that all but thirty days of this suspension shall be deferred. Following the
completion of the active portion of his suspension, respondent shall be placed on
probation for a period of one year. 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 of this disciplinary proceeding 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.
15 SUPREME COURT OF LOUISIANA
No. 2024-B-00149
Crichton, J., additionally concurs and assigns reasons.
I agree with the majority opinion. With respect to Count II, regarding
respondent’s failure to participate in the criminal trial, respondent had an obligation
as an officer of the court to do more than merely sit silently. As a result, I agree with
the majority that he violated Rules 1.3, 8.4(a), and 8.4(d) as charged.
I write separately because, in my view, respondent’s violations of the rules as
set forth in Count II present a policy matter for this Court. In this case, as the majority
explains in detail, respondent moved for a continuance when his retained client—
who was charged with attempted first degree murder of a police officer, among other
charges—fled the courthouse during jury selection. This rare situation occurred
without warning and presents to the Court as a res nova issue in the professional
responsibility context. Though respondent’s initial confusion over the situation was
understandable, a lawyer in this situation cannot opt to be the proverbial potted
plant. 1 The effect of respondent’s decision was that, by absconding the courthouse
during trial, his client was permitted a retrial due to respondent’s choice to sit entirely
mute—a result the justice system cannot condone. 2
1See Iran-Contra Hearings; Note of Braggadocio Resounds at Hearing, N.Y. Times, July 10, 1987, at A7 (noting retort of attorney Brendan V. Sullivan to Senator Daniel Inouye: “Well, sir, I'm not a potted plant. I'm here as the lawyer. That's my job.”). 2 The majority opinion explains that the hearing committee in this case found absolutely no credible evidence that respondent was complicit in his client’s decision to absent himself from trial or not return. Therefore, while this case is distinguishable on the facts, I reiterate my comments in State v. Brown, 2018-1999 (La. 9/30/21), 330 So. 3d 199, 285-89, regarding a lawyer’s obligations not only to his client, but also to the administration of justice. Because of the res nova nature of this issue and the facts as presented at the
hearing, I further agree with the majority that we should not impose any additional
period of suspension beyond that ordered for Count I for the Count II violations. SUPREME COURT OF LOUISIANA
CRAIN, J., dissents in part,
The respondent’s client absconded during trial without his knowledge. The
respondent moved for a continuance and a mistrial, but the trial court denied the
motions. The judge then proceeded to trial, and the jury found the defendant guilty
as charged on all counts. The respondent strategically chose not to participate in the
trial. The client was not present to express his wishes, nor to assist in his defense.
The court of appeal reversed the convictions and sentences. It remanded the
case for a new trial, finding respondent’s conduct to be ineffective assistance of
counsel. This was error. Ineffective assistance should have been raised on post-
conviction relief, not on direct appeal, affording respondent an opportunity to
explain his inaction at a post-conviction hearing. State v. Howard, 98-0064, (La.
4/23/99), 751 So.2d 783, 802.
I do not believe respondent’s choice to not participate violates the Rules of
Professional Conduct. The defendant has the right to assistance of counsel. U.S.
Const. Amend. VI; La. Const. art. 1, § 13. However, the respondent had no one to
assist because the defendant absconded. Through this act, the respondent’s ethical
obligation to the defendant also disappeared. Further, a defendant must be
competent to assist in his defense, or it is a violation of his rights to proceed. La.
Code Crim. Proc. art. 641. Here, there was no competent defendant to assist counsel.
1 Under these facts, counsel was not obligated to do anything. I dissent in part
and find no violation of count two.