Thursday, October 19, 2017

Secret Romance Gets AUSA Supended

The Louisiana Supreme Court has suspended an attorney for a year and a day with all but six months stayed

Since 1990, respondent has been employed as an Assistant United States Attorney ("AUSA") for the Western District of Louisiana, Shreveport Division. At all times relevant herein, respondent was primarily assigned to prosecute white collar and public corruption cases.

During the course of her employment as an AUSA, respondent began and maintained what the formal charges describe as an "intimate, romantic relationship" with a Special Agent of the Federal Bureau of Investigation ("FBI"). The FBI agent was typically the lead investigating law enforcement agent on many of the criminal prosecutions advanced by respondent. While his testimony at trial was not consistently required, the FBI agent was often the principal witness in grand jury  presentations and at various hearings where respondent sponsored his testimony on behalf of the prosecution. Respondent and the FBI agent worked to keep their relationship confidential.

The Attorney Disciplinary Board

The board determined that respondent knowingly violated duties owed to her client, the public, and the legal system. Her assurances to Mr. Stroud relative to his client’s indictment and arrest, and her phone call threatening the public arrest of Sheriff Toney, were improper. These communications harmed the relationship between Mr. Stroud and his client. Respondent’s personal interest in keeping quiet her relationship with the FBI agent deprived her client, the United States through her superiors, of information they needed to make informed decisions relative to the representation of the government and disclosure obligations to defendants. Her misconduct led to the government’s decision to relitigate the case against Councilmen Stevens and Gilmore, caused harm in the form of the additional expenditure of resources to retry the case, and adversely impacted the government’s tendered plea bargain offered to Sheriff Toney. The potential for harm also exists, as it is possible that the issue of the relationship may be raised in other cases prosecuted by respondent in which the FBI agent testified. Furthermore, her actions are the type that cause unfavorable opinion by the public towards the legal system and especially, the United States Attorney’s Office in the Western District of Louisiana. The applicable baseline sanction in this matter is suspension.

The court

 The underlying facts of this case are largely undisputed. Essentially, respondent acknowledges that while employed as an AUSA, she commenced and maintained a personal, intimate relationship with an FBI agent. Although there is no indication that the agent’s testimony was influenced or colored in any way by their personal relationship, respondent admits she failed to disclose the relationship during her prosecution of two Monroe city councilmen and the Ouachita Parish Sheriff. After the sheriff’s counsel raised the possibility of the relationship, respondent was questioned by the United States Attorney and was not immediately and fully forthcoming. In addition, the disciplinary board found respondent made assurances to the sheriff’s counsel relative to his client’s indictment and arrest. This conduct, and her phone call threatening the sheriff’s public arrest, were clearly improper. These communications harmed the relationship between the sheriff and his counsel. Based on these facts, the parties agree that respondent violated Rules 1.7, 3.8(d), 8.4(a), 8.4(c), and 8.4(d) of the Rules of Professional Conduct.

Sanction

We have not previously had the opportunity to address directly the misconduct of a government prosecutor who maintained an intimate or romantic relationship with a law enforcement agent called as a witness. However, we have repeatedly held that public officials – and prosecutors in particular – are held to a higher standard than ordinary attorneys. See In re: Bankston, 01-2780 (La. 3/8/02), 810 So. 2d 1113 (an attorney occupying a position of public trust is held to even a higher standard of conduct than an ordinary attorney); In re: Toups, 00-0634 (La. 11/28/00), 773 So. 2d 709 (because the prosecutor is entrusted with great power and discretion in our system of justice, he is also charged with a high ethical standard). In formulating a sanction for respondent’s misconduct, some general guidance can be drawn from cases dealing with conflicts of interest involving romantic entanglements. For example, the case of In re: Ryland, 08-0273 (La. 6/6/08), 985 So. 2d 71, is instructive. There the respondent entered into an intimate relationship with a client during the course of a domestic representation. The respondent was suspended for ninety days, fully deferred, considering that there was little or no actual harm. Furthermore, the respondent was not a prosecutor and did not commit any other violations of the Rules of Professional Conduct...

 When taken cumulatively, including the multiple violations of the Rules of Professional Conduct and specifically considering respondent’s dishonesty and misrepresentation to which she has stipulated, we find that the fully deferred suspension recommended by the board is not appropriate and that respondent must serve an actual period of suspension. We will impose a one year and one day suspension, deferring all but six months of the suspension in light of the substantial mitigating circumstances present.

The Ouachita Citizen reported on the case. (Mike Frisch)

http://lawprofessors.typepad.com/legal_profession/2017/10/the-louisiana-supreme-court-has-suspended-an-attorney-for-a-year-and-a-day-with-all-but-six-months-stayed-since-1990-respon.html

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