ORIGINAL LOUISIANA ATTORNEY DISCIPLINARY BOARD IN RE: ELIZABETH ASHLEY BRUNET-ROBERT NUMBER: 11-DB-042 RECOMMENDATION TO THE LOUISIANA SUPREME COURT

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1 ORIGINAL LOUISIANA ATTORNEY DISCIPLINARY BOARD IN RE: ELIZABETH ASHLEY BRUNET-ROBERT NUMBER: 11-DB-042 RECOMMENDATION TO THE LOUISIANA SUPREME COURT 11-DB /17/2013 This attorney disciplinary matter arises out of formal charges consisting of one count filed by the Office of Disciplinary Counsel ("ODC") against Elizabeth Ashley Brunet-Robert. 1 ( Respondent ). ODC alleges that Respondent violated Rules 8.4(b), 8.4(c), and 8.4(d) of the Rules Professional Conduct ( Rule(s) ). 2 Prior to the formal hearing, the parties entered into joint stipulations as to the facts and the rule violations. Therefore, the hearing was held on the issue of sanction and to allow for the presentation of evidence in aggravation or mitigation of the misconduct. Based upon the joint stipulations, the committee concluded that Respondent violated Rules 8.4(b), 8.4(c), and 8.4(d) as charged. Additionally, the committee found that Respondent is still using controlled substances and has not successfully completed a drug rehabilitation program. Therefore, the committee recommended that: 1. Respondent s interim suspension be lifted; 2. Respondent be subject to a 3 year suspension, retroactive to the date of her interim suspension; 3. Respondent be subject to a probationary period of 3 years; 1 On November 20, 2009, Respondent was placed on interim suspension by the Louisiana Supreme Court based on a petition filed by ODC. In re Brunet-Robert, (La. 11/20/09); 21 So.3d 933. She remains suspended. 2 Rule 8.4 states, in pertinent part: It is professional misconduct for a lawyer to: *** (b) Commit a criminal act especially one that reflects adversely on the lawyer s honesty, trustworthiness or fitness as a lawyer in other respects; (c) Engage in conduct involving dishonesty, fraud, deceit or misrepresentation; (d) Engage in conduct that is prejudicial to the administration of justice; 1

2 4. During her period of probation, Respondent successfully complete an inpatient substance abuse rehabilitation program recognized by the Louisiana Lawyers Assistance Program ("LAP") and complete a monitoring contract with LAP. 5. Respondent have a practice monitor until the completion of the probationary period; 6. Respondent complete at least 30 hours of accredited continuing legal education per year during her probation; and 7. Respondent be cast with all costs and expenses in this matter in accordance with Louisiana Supreme Court Rule XIX, Section 10.1(A). For the reasons set forth below, the Board adopts the factual findings and legal conclusions of the hearing committee as well as the committee s recommendations as modified below. PROCEDURAL HISTORY The formal charges were filed on April 29, 2011 and were served upon Respondent via certified mail through her attorney on or about July 13, On July 26, 2011, Henry H. Lemoine, Jr., formally enrolled as counsel of record for Respondent. Respondent answered the charges on August 15, Disciplinary Counsel s Pre-Hearing Memorandum was filed on April 8, 2013, in which ODC argued that the baseline sanction for the misconduct in this matter is disbarment. Respondent filed her pre-hearing memorandum on April 8, 2013 as well, arguing that disbarment is not called for in this case. Respondent asserted that a three-year suspension, retroactive to the date of her interim suspension, is most appropriate. On January 23, 2012, the parties entered into joint stipulations as to the facts and the rule violations. Therefore, a formal hearing was scheduled for presenting evidence in aggravation or 2

3 mitigation of the offenses and for determining the appropriate sanction for Respondent s misconduct. After multiple continuances, this matter proceeded to hearing on April 24, 2013 before Hearing Committee #20 ( the Committee ). At the hearing, ODC was represented by Deputy Disciplinary Counsel James W. Standley, IV, and Respondent was represented by her attorney, Mr. Lemoine. The Committee heard the testimony of seven witnesses, including Respondent. ODC introduced various exhibits which were admitted into the records as ODC-1 through ODC- 6. Respondent also submitted a number of exhibits, which were admitted as R-1 through R-8. The Committee issued its report on July 3, 2013, finding that Respondent violated the Rules of Professional Conduct as charged and recommending that she be suspended for three years, retroactive to the date of her interim suspension, followed by a three-year period of supervised probation with various conditions. On July 8, 2013, ODC filed a Notice of Objection to the Recommendations of Hearing Committee Number 20 in which it objected to the Committee s sanction recommendation as too lenient in light of Respondent s conduct and the harm or potential harm occasioned thereby. Respondent did not file a pre-argument brief. The matter was originally set for oral argument on August 29, 2013 before Panel C of the Disciplinary Board, but it was continued. On October 10, 2013, oral argument was held before Panel A of the Disciplinary Board. 3 Mr. Standley appeared on behalf of ODC, and Mr. Lemoine appeared on behalf of Respondent who was not present. FORMAL CHARGES The formal charges read, in pertinent part, as follows: 3 Board Panel A consists of Carl A. Butler, Chair, R. Steven Tew, Lawyer Member, and R. Lewis Smith, Public Member. 3

4 On November 18, 2009, the Louisiana Supreme Court ordered Respondent's interim suspension, which had been sought by the Office of the Disciplinary Counsel for threat of harm. Prior to this, correspondence had been received, indicating that Respondent had been found guilty of contempt on two separate occasions for failing to appear for scheduled criminal court proceedings on January 5, 2009 and on February 25, Such constitutes violations of Rule 8.4(b) and (d) of the Louisiana Rules of Professional Conduct. As set forth in the aforementioned petition, on March 14, 2009, ODC received correspondence from Hon. Thomas F. Fuselier, (Judge in the 13th Judicial District Court) indicating that Ms. Brunet-Robert had been found guilty of contempt on two separate occasions as a result of her failure to appear for scheduled criminal court proceedings on January 5, 2009 and on February 25, On its face, the conduct alleged in the complaint constitutes violations of Rule 8.4(b) and (d) of the Louisiana Rules of Professional Conduct. During the investigation of this matter, difficulty arose in locating Respondent. Further investigation revealed that Respondent was incarcerated, after having pled guilty to possession of a Schedule II Controlled Dangerous Substance in the matter of State of Louisiana v. Ashley Elizabeth Brunet, (No FB, 13th Judicial District Court, Evangeline Parish) on October 21, This was confirmed through investigation by ODC on November 12, This plea was to a reduced charge from that of distribution of a Schedule II Controlled Dangerous Substance, as Ms. Brunet-Robert distributed oxycodone to an undercover officer in December of Ms. Brunet-Robert was sentenced to serve 4 years at hard labor with the Department of Public Safety and Corrections, 3 ½ years of which was suspended, with 4 years active supervised probation. The police report indicates that Respondent sold an oxycontin tablet to an undercover agent for forty dollars. Such constitutes a violation of Rule 8.4(b). In the matter of State of Louisiana v. Ashley Elizabeth Robert, (No T, 13 th Judicial District Court, Evangeline Parish), Ms. Brunet-Robert was initially cited for driving under suspension and failing to have insurance. On December 15, 2008, a bench warrant was issued for her failure to appear on that date. On January 5, 2009, she was found in contempt and sentenced to serve 3 days in the parish jail with credit for time served. The matter was set for trial on July 23, 2009; however, Respondent failed to appear and another bench warrant was issued. Though it does not appear that the prosecution pursued the initial charges in this matter, Respondent's failure to appear as ordered constitutes a violation of Rule 8.4(d) relating to conduct prejudicial to the administration of justice. In the matter of State of Louisiana v. Ashley Elizabeth Brunet, (No FB, 13 th Judicial District Court, Evangeline Parish), Respondent was initially charged with 16 counts of forgery. On February 19, 2009, a bench warrant was 4

5 issued for her arrest due to her failure to appear. On February 25, 2009, she was found to be guilty of contempt and sentenced to serve 30 days in the parish jail. On March 12, 2009, the bill of information was amended to reflect only 15 counts of forgery. Ms. Brunet had stolen a check book belonging to her younger brother, Robert Brunet, Jr., and issued checks without his consent or approval. Though no conviction has yet arisen in this matter, evidence supports the allegations that Respondent did engage in the conduct for which she was charged in violation of Rule 8.4(b) and (c). Further, her failure to appear would constitute another instance of conduct prejudicial to the administration of justice. By information and belief, the undersigned represents that this matter has been continued on several occasions. The matter appears to have been set for trial probing on February 24, 2011, but that setting was continued without date at that time. On November 13, 2009, ODC obtained documentation concerning State of Louisiana v. Ashley Elizabeth Brunet, (No. 09-K-1805, 27 TH Judicial District Court, St. Landry Parish). Therein, Respondent was charged with being a principle to monetary instrument abuse and a principle to theft in the amount of $ The police report indicates that this incident involved checks allegedly stolen from Respondent's father. This incident arose from what appears to be an arrest on April 1, Though it appears that the prosecution has not pursued this matter, evidence exists to support the allegations that she did, to some extent, participate in the conduct charged, which suggests a pattern of conduct consistent with the other matters referenced herein. On November 13, 2009, ODC obtained documentation concerning State of Louisiana v. Elizabeth Ashley Brunet-Robert, (No. 06-K-0550 A, 27 th Judicial District Court, St. Landry Parish). It appears that Respondent was arrested on January 31, 2006, with a bill of information being filed on July 1, 2008 charging Respondent with possession of a Schedule I Controlled Dangerous Substance (Methylenedioxymethamphetamine, also known as MDMA). The minute entry of September 1, 2009 indicates that the matter was continued without date in light of Ms. Brunet-Robert's entering into the district attorney's diversionary program. The facts recited herein evidence multiple instances of Respondent's engaging in conduct in direct violation of Rule 8.4(b), (c), and (d) of the Louisiana Rules of Professional Conduct. Further, clear and convincing evidence exists to prove the facts set forth herein. 5

6 THE HEARING COMMITTEE S REPORT As noted above, the Committee issued its report on July 2, Based upon the joint stipulations, the testimony presented at the hearing, and the evidentiary record, the Committee made the following findings and conclusions: FINDINGS OF FACT 1. Respondent herein is Elizabeth Ashley Brunet-Robert, born January 23, 1979, and admitted to practice law in the State of Louisiana on April 16, On November 18, 2009, the Louisiana Supreme Court issued its Order placing Respondent on interim suspension for threat of harm. 3. Respondent became trust account ineligible to practice on November 30, 2007 and ineligible for failure to meet her continuing legal education requirements on July 24, She became ineligible by order of the Supreme Court on October 1, 2008 for failure to file her bar registration statement, failure to pay bar dues, and failure to pay the disciplinary assessment. 4. On January 5, 2009, February 25, 2009 and October 15, 2009, Respondent was found in contempt for failing to appear in the Thirteenth Judicial District Court in and for the Parish of Evangeline. Respondent acknowledges that each such substance constitutes a separate violation of Rule 8.4(b) and (d). 5. On or about December 17, 2008, Respondent sold an oxycodone tablet (a Schedule II narcotic) to an undercover deputy sheriff for $40.00 in cash. Respondent acknowledges that this conduct constitutes a violation of Rule 8.4(b). 6. She was charged, under State of Louisiana v. Elizabeth Ashley Brunet, (#77851-F, 13th JDC, Evangeline Parish), with Distribution of a Schedule II Controlled Dangerous Substance under Louisiana Revised Statute 40:967(A)(l). 7. On October 21, 2009, Respondent pled guilty to a reduced charge of Possession of Schedule II Controlled Dangerous Substance. She was sentenced to serve four (4) years at hard labor with the Louisiana Department of Corrections, with three and a half years suspended. She was placed on active supervised probation for four years, plus fines, fees and court costs. 6

7 8. On or about November 10, 2008, Respondent issued Check No. 201 on the authorization or consent, to Auto Stop, a convenience store in Ville Platte, in the amount of $ In doing so, Respondent violated Rule 8.4(b) and (c) of the Louisiana Rules of Professional Conduct. 9. On or about November 12, 2008, Respondent issued Check No. 202 on the authorization or consent, to Wal-Mart, in the amount of $ In doing so, Respondent violated Rule 8.4(b) and (c) of the Louisiana Rules of Professional Conduct. 10. On or about November 10, 2008, Respondent issued Check No. 203 on the authorization or consent, to B&S Grocery of Ville Platte, in the amount of $ In doing so, Respondent violated Rule 8.4(b) and (c) of the Louisiana Rules of Professional Conduct. 11. On or about November 10, 2008, Respondent issued Check No. 204 on the authorization or consent, to B&S Grocery of Ville Platte, in the amount of $ In doing so, Respondent violated Rule 8.4(b) and (c) of the Louisiana Rules of Professional Conduct. 12. On or about November 11, 2008, Respondent issued Check No. 205 on the authorization or consent, to B&S Grocery of Ville Platte, in the amount of $ In doing so, Respondent violated Rule 8.4(b) and (c) of the Louisiana Rules of Professional Conduct. 13. On or about November 11, 2008, Respondent issued Check No. 206 on the authorization or consent, to B&S Grocery of Ville Platte, in the amount of $7.55. In doing so, Respondent violated Rule 8.4(b) and (c) of the Louisiana Rules of Professional Conduct. 14. On or about November 13, 2008, Respondent issued Check No. 207 on the authorization or consent, to Wal-Mart, in the amount of $ In doing so, Respondent violated Rule 8.4(b) and (c) of the Louisiana Rules of Professional Conduct. 15. On or about November 13, 2008, Respondent issued Check No. 208 on the authorization or consent, to Wal-Mart, in the amount of $ In doing 7

8 so, Respondent violated Rule 8.4(b) and (c) of the Louisiana Rules of Professional Conduct. 16. On or about November 13, 2008, Respondent issued Check No. 217 on the authorization or consent, to Shell Wash-N-Go, a convenience store in Ville Platte, in the amount of $ In doing so, Respondent violated Rule 8.4(b) and (c) of the Louisiana Rules of Professional Conduct. 17. On or about November 14, 2008, Respondent issued Check No. 209 on the authorization or consent, to Wal-Mart, in the amount of $ In doing so, Respondent violated Rule 8.4(b) and (c) of the Louisiana Rules of Professional Conduct. 18. On or about November 14, 2008, Respondent issued Check No. 210 on the authorization or consent, to Wal-Mart, in the amount of $ In doing so, Respondent violated Rule 8.4(b) and (c) of the Louisiana Rules of Professional Conduct. 19. On or about November 15, 2008, Respondent issued Check No. 220 on the authorization or consent, to Trisha's Car Care, a mechanic shop in Evangeline Parish, in the amount of $ In doing so, Respondent violated Rule 8.4(b) and (c) of the Louisiana Rules of Professional Conduct. 20. On or about November 16, 2008, Respondent issued Check No. 221 on the authorization or consent, to Wal-Mart, in the amount of $ In doing so, Respondent violated Rule 8.4(b) and (c) of the Louisiana Rules of Professional Conduct. 21. On or about November 16, 2008, Respondent issued Check No. 222 on the authorization or consent, to Wal-Mart, in the amount of $ In doing so, Respondent violated Rule 8.4(b) and (c) of the Louisiana Rules of Professional Conduct. 22. On or about November 18, 2008, Respondent issued Check No. 224 on the authorization or consent, to one Jonathon Fontenot, in the amount of $ In doing so, Respondent violated Rule 8.4(b) and (c) of the Louisiana Rules of Professional Conduct. 8

9 23. On or about November 19, 2008, Respondent issued Check No. 225 on the authorization or consent, to Wal-Mart, in the amount of $ In doing so, Respondent violated Rule 8.4(b) and (c) of the Louisiana Rules of Professional Conduct. 24. On December 25 and December 28, 2008, Respondent was arrested in connection with her involvement in the cashing of four checks, totaling $ in the name of Respondent's father, Robert Brunet, without authorization or consent in St. Landry Parish. She was charged as a principle to monetary instrument abuse. The conduct of which Respondent stands accused constitutes a violations of Rule 8.4(b) and (c) of the Louisiana Rules of Professional Conduct. 25. On January 31, 2006, Respondent was arrested in St. Landry Parish and found to be in possession of a Schedule I Controlled Dangerous Substance in violation of Louisiana Revised Statute 40:966(C). This conduct constitutes a violation of Rule 8.4(b) and (c) of the Louisiana Rules of Professional Conduct. Consequently, on September 1, 2009, Respondent represented to the 27th Judicial District Court that she was entering into the District Attorney s Diversionary Program. The matter was then adjourned without date. 26. James M. Arterburn, MD, gastroenterologist, Lafayette, LA was deposed on September 19, 2012 and also appeared before the Committee. He first saw the Respondent on September, 2011; she had prescriptions for Endicort, Humira, Hydrocodone, and Xanax from her previous physician. She had previously been diagnosed with Crohn's disease, an autoimmunerelated inflammatory disease, and had undergone surgery for that condition prior to seeing Dr. Arterburn. The first two medications are to treat the disease itself, and Hydrocodone and Xanax are used to control accompanying pain and anxiety. During the initial patient intake, the Respondent failed to reveal her past drug abuse and her professional misconduct. She then accepted or asked for controlled substances. She had prescriptions from Dr. Arterburn for both Oxycontin and Xanax until September, 2012, when her insurance coverage ended. She now sees another individual in Lake Charles for her prescriptions of these medications. Dr. Arterburn testified he did not know about her history with drugs until being called to give his deposition. He said "If I knew somebody had an addiction I'd probably do everything not to prescribe it." He last saw her in his office in September, Jay Weiss, MD, is board certified in Psychiatry, Addiction Psychiatry, Addiction Medicine, and Psychosomatic Medicine. He is the medical director of Palmetto, a 100 bed addiction recovery center, in Louisiana. [In his testimony,] [h]e referred to the Respondent's testimony that she left 9

10 Red River and Cenikor substance abuse treatment facilities either against medical advice or for violation of rules. She then did complete a 30 day inpatient 12 step program at the SOAR facility in West Monroe, Louisiana, but did not complete the 90 day outpatient requirements due to incarceration. Dr. Weiss testified that the gold standard for abuse treatment for a professional population is an abstinence-based program of approximately 90 days to internalize a good recovery program followed by a strict monitoring program including drug screens and ongoing participation in AA or NA. Non-controlled and non-addictive alternatives should be tried for valid symptoms of Crohn's disease, depression and anxiety. Once she is no longer using controlled substances, she should enter into a recovery agreement with the Lawyers' Assistance Program for at least 5 years. Dr. Weiss also testified that re-licensure should not be considered until the Respondent has completed at least one year of full compliance with the Louisiana Lawyers Assistance Program to include a series of negative drug screens. 28. Randy Sherman, MD, the Medical Director of Grove Behavioral Hospital in Mississippi, is board certified in neurosurgery and addiction medicine. He explained the differences between three euphorigenic drugs: Hydrocodone, a Schedule III drug Oxycodone, a Schedule II drug (Schedule I being the most addictive) Oxycontin, a preparation of Oxycodone that is time-released He testified that Oxycodone and Xanax are contra-indicated, are extremely dangerous and are meant for an acute problem, not chronic pain. Suggested alternatives for pain management include behavioral modification, biofeedback and non-narcotic medication. He referred to addiction as a chronic, progressive, fatal illness. He, like Dr. Weiss, recommended an assessment, a detoxification program, followed by 90- days of inpatient treatment, followed by monitoring under a monitoring contract. He testified that two free treatment programs were available: St. Christopher's in Baton Rouge, and [Home] of Grace in Mississippi. 29. Daniel Lonowski, PhD, is a clinical and forensic psychologist from Alexandria, Louisiana. He evaluated the Respondent to develop an opinion of whether she is capable of performing her responsibilities as a lawyer. Her psychometric test results indicated no signs of either a functional or a personality disorder. Subtle signs of chemical dependence were indicated that were consistent with her past history of polysubstance abuse (methamphetamines and opiates), but nothing suggested active drug use. A subtle sign indicated a possibility that she would return to use of illegal substances. He testified that she was in full remission and that he felt these tendencies could be managed with "appropriate individual support." He was not concerned about her use of Hydrocodone and Xanax 10

11 under a doctor's supervision. He indicated that Ms. Robert was fit to practice as an attorney if she had a practice monitor who understood her codependent characteristics and would assist her and promote her sobriety. 30. Buddy Stockwell, the Director of the Lawyers' Assistance Program, clarified that for LAP to monitor someone in recovery, they have to be alcohol and drug free. His treatment recommendation for the Respondent is identical to those of Drs. Weiss and Sherman, referenced above. In response to the concerns of the Respondent's attorney that she had no funds for treatment, Mr. Stockwell provided the names of two free facilities, Bridge House and Grace House in New Orleans. The Respondent indicated she could not attend those one year programs. Mr. Stockwell said he was ready to initiate proceedings for her to begin treatment that day, and that he would seek free or reduced treatment fees on her behalf. RULES VIOLATED Respondent has stipulated that she violated Rule 8.4(b) and (d) by failing to appear in the 13 th Judicial District Court and being held in contempt of court on January 5, 2009, February 25, 2009 and October 15, She further acknowledges violating Rule 8.4(b) by pleading guilty to possession of a Schedule II controlled dangerous substance. She further stipulates that she violated Rule 8.4(b) and (c) by issuing seventeen (17) checks on the account of her younger brother, Robert L. Brunet, Jr., without authorization or consent. Once the Committee determined that Respondent had engaged in professional misconduct, it undertook consideration of the factors set forth in Rule XIX, Section 10(C). First, the Committee found that Respondent violated her duties to the public and the profession; that she acted knowingly, if not intentionally; and that her misconduct resulted in actual harm. Next, the Committee considered the existence of aggravating and mitigating factors and found the following aggravating factors to be present: multiple offenses of illegal conduct, including those involving the use of controlled substances. Moreover, Respondent s continued use of controlled substances is an aggravating factor. In mitigation, the Committee found absence of a prior disciplinary record, the fact that Respondent's violations did not arise out of an attorney-client relationship, that Respondent has not engaged in the active practice of law, that she has made full restitution of all checks written on her brother's account without his 11

12 authorization or consent, that she has attempted substance abuse rehabilitation, has fully cooperated with the disciplinary board and has demonstrated severe remorse for her misconduct. In determining the appropriate sanction, the Committee relied upon In re Blanche, B-0552 (06/22/12) 90 So.3d 1034, and In re Martin, (La. 12/01/2004) 888 So.2d 178. In Blanche, the respondent had been convicted of three drug- and alcohol-related criminal offenses, neglected legal matters, and failed to communicate with his client. For his misconduct, which included creating and operating a clandestine laboratory for the unlawful manufacture of a controlled dangerous substance in violation of La. R.S. 40:983, possession of methamphetamine, and DWI, the Court imposed a three-year suspension, retroactive to the date of the respondent s interim suspension. In Martin, the respondent plead guilty to five felony counts of aggravated assault upon a peace officer with a firearm in violation of La. Code Crim. P. art The Board recognized that the respondent s conduct was the product of personal and emotional problems stemming from depression that were complicated by substance abuse. The Court ordered a three year suspension from the practice of law, retroactive to the date of the respondent s interim suspension. Based on these factors and the applicable jurisprudence, the Committee recommended that: 1. Respondent s interim suspension be lifted; 2. Respondent be subject to a 3 year suspension, retroactive to the date of her interim suspension; 3. Respondent be subject to a probationary period of 3 years; 12

13 4. During her period of probation, Respondent successfully complete an inpatient substance abuse rehabilitation program recognized by the Louisiana Lawyers Assistance Program ("LAP") and complete a monitoring contract with LAP. 5. Respondent have a practice monitor until the completion of the probationary period; 6. Respondent complete at least 30 hours of accredited continuing legal education per year during her probation; and 7. Respondent be cast with all costs and expenses in this matter in accordance with Louisiana Supreme Court Rule XIX, Section 10.1(A). ANALYSIS I. The Standard of Review The powers and duties of the Disciplinary Board are defined in 2 of the Louisiana Supreme Court Rule XIX, Rules for Lawyer Disciplinary Enforcement. Rule XIX, (G)(2)(a) states that the Board is to perform appellate review functions, consisting of review of the findings of fact, conclusions of law, and recommendations of hearing committees with respect to formal charges and prepare and forward to the court its own findings, if any, and recommendations. Inasmuch as the Board is serving in an appellate capacity, the standard of review applied to findings of fact is that of manifest error. Arceneaux v. Domingue, 365 So. 2d 1330 (La. 1978); Rosell v. ESCO, 549 So. 2d 840 (La. 1989). The Board conducts a de novo review of the hearing committee s application of the Rules of Professional Conduct. In re Hill, 90-DB-004, Recommendation of the Louisiana Attorney Disciplinary Board (1/22/1992). A. Manifest Error Inquiry The Committee was correct in accepting the facts as stipulated by the parties. Moreover, the Committee s additional findings of fact are not manifestly erroneous. 13

14 B. De Novo Review The Committee correctly concluded that Respondent violated Rules 8.4(b), 8.4(c), and 8.4(d), since Respondent s stipulations to the alleged misconduct and the Rule violations must be deemed conclusive. The Court has held that parties in disciplinary proceedings can freely enter into stipulations regarding rule violations, and that effect must be given to such stipulations unless they are withdrawn. In re: Gerard N. Torry, 2010-B-0837 (10/19/10), 48 So.3d Therefore, the only issue left for the Board to consider is the sanction most appropriate for Respondent s misconduct. II. The Appropriate Sanction A. Application of Rule XIX, 10(C) Factors Louisiana Supreme Court Rule XIX, Section 10(C) states that in imposing a sanction after a finding of lawyer misconduct, the court or board shall consider the following factors: 1. whether the lawyer has violated a duty owed to a client, to the public, to the legal system, or to the profession; 2. whether the lawyer acted intentionally, knowingly, or negligently; 3. the amount of actual or potential injury caused by the lawyer's misconduct; and 4. the existence of any aggravating or mitigating factors. The record in this matter establishes that Respondent violated duties to the public, the legal system, and the profession by engaging in criminal activity and by failing to appear in court on several occasions, which resulted in her being held in contempt. She acted knowingly, if not intentionally, and caused actual injury by her misconduct. Although Respondent s misconduct occurred outside of the practice of law and did not involve any clients, she engaged in serious criminal conduct. With respect to aggravating and mitigating factors, the following aggravating factors are supported by the record: 1) dishonest or selfish motive; 2) a pattern of misconduct; 3) multiple 14

15 offenses; and 4) illegal conduct, including that involving the use of controlled substances. The mitigating factors supported by the record are: 1) absence of a prior disciplinary record; 2) personal or emotional problems; 3) timely good faith effort to make restitution or rectify the consequences of misconduct; 4) full and free disclosure to disciplinary board or cooperative attitude toward proceedings; 6) imposition of other penalties or sanctions; and 7) remorse. Although Respondent contends that a factor to be considered in mitigation is her chemical dependency, the record establishes that she is still using controlled dangerous substances for her Crohn s disease and has not successfully completed a drug rehabilitation program. Moreover, as long as Respondent continues to use controlled dangerous substances on a regular basis, her rehabilitation/recovery cannot be monitored by LAP. 4 B. The ABA Standards and Case Law The ABA s Standards for Imposing Lawyer Sanctions suggest that disbarment is the baseline sanction for the misconduct at issue here. Standard 5.11 provides as follows: Disbarment is generally appropriate when: (a) (b) a lawyer engages in serious criminal conduct a necessary element of which includes intentional interference with the administration of justice, false swearing, misrepresentation, fraud, extortion, misappropriation, or theft; or the sale, distribution or importation of controlled substances... a lawyer engages in any other intentional conduct involving dishonesty, fraud, deceit, or misrepresentation that seriously adversely reflects on the lawyer s fitness to practice. The ABA s Standards for Imposing Lawyer Sanctions indicate that disbarment is the baseline sanction for Respondent s misconduct; however, based on the mitigating factors, the Committee found that a downward deviation from the baseline sanction to suspension was warranted. Accordingly, the Committee recommended a three-year suspension, retroactive to the date of 4 Hearing Transcript, p. 195, lns 10-17; pp , lns and 1-5; p. 215, lns

16 Respondent s interim suspension, which was November 20, A review of the case law reveals that it is the most appropriate sanction for Respondent s misconduct. At various times, the Louisiana Supreme Court has addressed criminal conduct committed by chemically dependent lawyers who subsequently display a true commitment to living substance free lives. In Louisiana State Bar Ass'n v. Longenecker, the Court imposed a period of probation with no actual period of suspension for the respondent with a history of alcohol addiction, noting as follows: While voluntary intoxication is not a defense to charges of professional misconduct, the fact of alcoholism may be an appropriate consideration in determining the mental state of the attorney and the culpability for commission of fraudulent acts. This consideration is particularly appropriate as a factor in mitigation when the attorney has subsequently undertaken to rehabilitate himself and has been continuingly successful in recovering from the disease of alcoholism, especially if the clients did not sustain substantial harm. 538 So. 2d 156, 163 (La. 1988) (on rehearing). A similar approach to that established in Longenecker was applied in the matter of In re Clegg, although a period of actual suspension was imposed. In Clegg, the Court decided a oneyear and one-day suspension, with all but six months deferred, followed by a two-year period of probation was the appropriate sanction for the respondent who was found to have possessed and used illegal drugs at a time when he was actively practicing law. In its opinion, the Court stated: Another factor bearing on discipline is the well-recognized proposition that chemical dependency may cause a lawyer to commit acts of professional misconduct that would not have occurred but for his impairment. Louisiana State Bar Ass'n v. Longenecker, 538 So.2d 156, 163 (La.1988) (on rehearing). When there is an obvious causal connection between the substance abuse and the misconduct, our decisions have often deferred part of the suspension and included a component of probation designed to ensure the lawyer makes meaningful efforts to address his or substance abuse problems through participation in LAP. See, e.g., Steinhardt, at p. 11, 883 So.2d at 410 (holding it is appropriate to defer two years of the suspension, subject to a two-year period of supervised probation during which respondent shall fully and completely adhere to all terms of her LAP recovery agreement and with such other conditions as may be imposed upon her by the LAP. ). 16

17 Clegg, (La. 7/6/10), 41 So. 3d 1141, In re Steinhardt, which is referenced above, is a case in which the respondent was arrested in Texas while driving a vehicle with over eight pounds of marijuana in the trunk and a marijuana cigarette in her purse (La. 9/9/04), 883 So. 2d 404, 411. She was charged with Unlawful Possession of Marijuana in an Amount of Fifty Pounds or Less, But More than Five Pounds, a felony in the State of Texas. After pleading guilty to the lesser charge of misdemeanor possession of marijuana, the respondent was placed on probation for a period of two years. She failed to self-report her Texas conviction to Louisiana s ODC or cooperate in its disciplinary investigation. Id. Having found that the record contained significant mitigating evidence bearing on the determination of an appropriate sanction, the Court imposed a three-year suspension, with two years deferred, followed by a two-year period of supervised probation during which she was required to successfully complete the terms of her LAP recovery agreement. Specifically, the Court found that the respondent had acknowledged her substance abuse problems and had taken positive steps to address them. Additionally, she had successfully completed a residential substance abuse treatment program and had entered into a LAP recovery agreement. By the time of oral arguments, the respondent had been alcohol and drug free for more than three years. While the Court did not condone her past illegal drug use or minimize the seriousness of her drug conviction, it found that the three-year suspension recommended by the Disciplinary Board would be excessively punitive, given the respondent s sincere attempts at rehabilitation. Id, 410. As previously noted, the Committee relied upon Blanche and Martin, in which the Court imposed three-year suspensions for the respondents misconduct, retroactive to the dates of their interim suspensions. The evidence of rehabilitation in the instant case is not as compelling as 17

18 that in Blanche. While Respondent testified that she is no longer using illegal drugs, the record clearly shows that she is still using controlled dangerous substances for her Crohn s disease. Although her use of the latter is under the direct supervision of her doctor, it renders it impossible for LAP to monitor her rehabilitation or recovery. 5 Nevertheless, as in Martin, Respondent s actions can be attributed to her severe depression combined with the adverse effects of drug abuse. While these factors do not excuse her conduct, they justify a downward deviation from the baseline sanction of disbarment to suspension. The Committee s recommendation of a three-year suspension is in line with the sanctions imposed in Blanche and Martin. As the record demonstrates, Respondent voluntarily ceased practicing law in 2005, around the time she was first declared ineligible for failure to pay her annual assessment and fulfill her mandatory CLE requirements on October 31, She remained ineligible as of November 20, 2009, when she was transferred to interim suspension for threat of harm. Citing Blanche and Martin, the Committee recommended making Respondent s suspension retroactive to the date of her interim suspension. This sanction is appropriate under the circumstances. CONCLUSION The Committee found that Respondent engaged in a pattern of misconduct as detailed in the formal charges. An independent review of the record reveals that the Committee s findings are correct and supported by the record. Accordingly, the Board adopts the Committee s findings and conclusions and recommends that Respondent be suspended from the practice of law for a period of three years, retroactive to the date of her interim suspension. It is the Board s sincere hope that Respondent will seek adequate treatment by successfully completing an 5 Hearing Transcript, p. 195, lns 10-17; pp , lns and 1-5; p. 215, lns Hearing Transcript, p. 36, lns

19 inpatient substance abuse rehabilitation program and entering into a monitoring contract with LAP before applying for readmission to the practice oflaw. 7 RECOMMENDATION The Board recommends that Respondent, Elizabeth Ashley Brunet-Robert, be suspended from the practice of law for a period of three years, retroactive to the date of her interim suspension. Additionally, the Board recommends that Respondent be cast with all costs and expenses in this matter in accordance with Louisiana Supreme Court Rule XIX, Section lo.l(a). LOUISIANA ATTORNEY DISCIPLINARY BOARD Stephen F. Chiccarelli George L. Crain, Jr. Jamie E. Fontenot Tara L. Mason Edwin G. Preis, Jr. R. Lewis Smith, Jr. Linda P. Spain R. Steven Tew BY: Carl A. Butler FOR THE ADJUDICATIVE COMMITTEE 7 The Board recognizes that the Court has declined to impose a probationary period or conditions on sanctions that require a formal application for reinstatement or readmission. In re Randolph, (La. 6/3/05), 905 So. 2d 1069, 1074 FNS citing In re Welcome, (La.1/24/03). However, given Respondent's history, and the fact that she is still using controlled dangerous substances to treat her Crohn' s disease, the Board feels it is important to state this for the record, so it can be adequately addressed by Respondent when and if she applies for readmission. See Rule XIX, 24(E)((3). 19