Wednesday, November 22, 2023

"Something Low Cut"

The Louisiana Supreme Court imposed a short suspension and a mental health evaluation for this misconduct

In June 2019, Mortimer Bishop sold immovable property to Christine Bowers. Thereafter, Mr. Bishop refused to vacate the premises, claiming that Ms. Bowers had granted him a lifetime usufruct over the property. Ms. Bowers then filed a rule for eviction against Mr. Bishop, and Mr. Bishop sued Ms. Bowers to rescind the sale based on theories of lesion and fraud. Mr. Bishop was represented by respondent in the litigation. Ms. Bowers was initially represented by attorney Eric Person. In August 2019, Ms. Bowers discharged Mr. Person and retained attorney F. Evans Schmidt to represent her.

During the litigation, respondent contacted Ms. Bowers multiple times to discuss the legal matter. These communications were through social media, email, and by telephone, and were made without the authorization of Ms. Bowers’ counsel. Some of the communications were also peculiar. In one message, respondent requested that Ms. Bowers “wear something low cut.”

In November 2020, Ms. Bowers filed a complaint against respondent with the ODC. In his written response to the complaint, respondent suggested that he had contacted Ms. Bowers during time periods when he believed she was not represented by counsel. However, in one of his messages to Ms. Bowers via Facebook, respondent stated that he knew she had an attorney. Moreover, in his sworn statement to the ODC, respondent testified that he communicated directly with Ms. Bowers even though she was represented by Mr. Schmidt because he was having trouble contacting Mr. Schmidt.

Complainant's testimony

Ms. Bowers testified that she was represented by counsel during the entire time relevant to these proceedings, and at no time was she without legal representation. Nevertheless, she received several email messages from respondent discussing the merits of the case involving Mr. Bishop. The email messages included a vulgar misspelling of the word “usufruct” and suggested that Ms. Bowers assist Mr. Bishop in finding a new place to live by “wear[ing] something low cut.” Ms. Bowers testified that the request made her feel “like a piece of trash.” Ms. Bowers also identified Facebook messages and a friend request that respondent sent to her Facebook account during the time she was represented by counsel. She also testified that respondent called her directly after a hearing in which Mr. Bishop was evicted, congratulating her and discussing further action in the matter.

The court on sanction

Turning to the issue of sanction, a period of actual suspension is warranted for respondent’s knowing and intentional communications with Ms. Bowers without the consent of her counsel. Furthermore, respondent made false statements of material fact to the ODC during its investigation, thereby compounding the misconduct. Nevertheless, we find it significant that respondent has no prior disciplinary record in more than fifty years of practicing law. Under these circumstances, it is appropriate to defer all but thirty days of the six-month suspension recommended by the board.

Regarding the recommendation of the committee and the board that respondent be required to submit to an examination by a licensed mental health care professional, we agree that respondent behaved in a bizarre manner towards Ms. Bowers, yet seems unable to understand why she was offended by his remarks. Respondent’s persistent focus on the underlying property matter during these proceedings is also somewhat puzzling. To resolve any concerns about respondent’s mental state, we will require that before he may be reinstated from his suspension, he must consult with JLAP and undergo, at his cost, an evaluation by a neuropsychologist or other mental health professional designated by JLAP to determine his competency to continue to practice law. A report of the evaluation shall be promptly submitted by the evaluator to JLAP, and provided by JLAP to the ODC and respondent within five days of receipt of the report. After receipt of the evaluator’s report, the ODC shall take any further action it deems appropriate under the circumstances.

Three justices dissented on sanction. Two found it unduly lenient; the other too onerous. (Mike Frisch)

https://lawprofessors.typepad.com/legal_profession/2023/11/the-louisiana-supreme-court-in-june-2019-mortimer-bishop-sold-immovable-property-to-christine-bowers-thereafter-mr-bisho.html

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