Louisiana State Bar Ass'n v. Cortina 550 So. 2d 1205

DISCIPLINARY PROCEEDINGS

MARCUS, Justice.

The Louisiana State Bar Association, through its Committee on Professional Responsibility, instituted disciplinary proceedings against José R. Cortina, a member of said association. The committee had previously conducted an investigation of respondent’s alleged single specification of misconduct in accordance with article 15, section 3 of the articles of incorporation of the association. A formal investigative hearing was held. Based on the evidence submitted at the hearing, the committee concluded that respondent was guilty of the specification of misconduct. The committee then filed a petition for disciplinary action against respondent in this court under the provisions of article 15, section 4(c) of the articles of incorporation. The court, by order, appointed Mr. John S. White, Jr., as commissioner to take evidence and file a report with this court setting forth his findings of fact and conclusions of law. Louisiana State Bar Association Articles of Incorporation, article 15, section 6(b) and (d). The commissioner held three hearings at which both the committee and respondent presented evidence. Subsequently, the commissioner filed his report with findings of fact and conclusions of law and recommended disbarment. The committee filed its concurrence in part and opposition in part to the commissioner’s report. In its brief to this court, the committee recommended that respondent be disbarred from the practice of law.

At oral argument before this court, respondent, arguing on his own behalf, indicated that he would like to resign from the Louisiana State Bar Association. The court suggested that if he desired to do so, he should submit a written resignation within ten days. Respondent timely filed his written resignation with this court. The committee then filed its opposition in which it argued that respondent’s resignation should not be accepted unless it complies with the Louisiana State Bar Associa*1207tion Articles of Incorporation, article 15, section 11.

Louisiana courts have discretion to accept an attorney’s resignation in lieu of taking disciplinary action. Louisiana State Bar Ass’n v. Haack, 243 La. 1108, 150 So.2d 32 (1963); Louisiana State Bar Ass’n v. Cohen, 242 La. 838, 138 So.2d 594 (1962); Louisiana State Bar Ass’n v. Pitcher, 238 La. 649, 116 So.2d 281 (1959). In making this determination, courts consider all the aggravating and mitigating circumstances of each particular case. If the court finds that the mitigating circumstances predominate and that policy considerations such as the protection of the public and courts would be served, then the court may accept an attorney’s resignation rather than impose disciplinary sanctions. Haack, 150 So.2d at 35. Many states take a similar approach to this issue, although some place certain conditions upon an attorney’s resignation during a pending disciplinary proceeding. Annotation, Propriety of Attorney’s Resignation From Bar in Light of Pending or Potential Disciplinary Action, 54 A.L.R.4th 264 (1987).

Article 15, section 11 is entitled “Resignations” but governs the formal requirements for disbarment on consent. The text of this article clearly indicates that it applies to disbarments on consent rather than resignations. While subsection (a) indicates that an attorney may resign by submitting a petition and affidavit to this court, subsection (b) expressly states that upon receipt of that petition this court “shall enter an order disbarring the respondent by ‘consent.’ ” In previous cases concerning an attorney’s resignation during pending disciplinary proceedings, this court exercised its discretion to consider the resignation without reference to this article. Accordingly, article 15, section 11 does not apply to the instant case.

In the instant case, the mitigating factors indicate that the. court should accept respondent’s resignation instead of imposing disciplinary sanctions. The committee alleged that respondent was guilty of only one specification of misconduct. Respondent does not have a record of prior ethical violations. The commissioner concluded that respondent had neither a dishonest motive nor an intent to damage his clients. While respondent is highly regarded as a legal scholar who has taught law for ten years, he is relatively inexperienced in the practice of law. He has expressed remorse for his actions and has acknowledged that he should not practice law. Additionally, a civil suit concerning respondent’s liability to his clients is pending. Acceptance of respondent’s resignation, with the condition that he may not seek reinstatement for five years, would achieve the principal purposes of disciplinary action, preservation of the integrity of the profession, and protection of the public and the courts. After the passage of five years, respondent would be eligible to apply for reinstatement according to the requirements of the Louisiana State Bar Association Articles of Incorporation, article 15, section 12.

DECREE

For the reasons assigned, the resignation of José R. Cortina from the Louisiana State Bar Association is accepted. It is ordered that his license to practice law in Louisiana be cancelled and that his name be stricken from the roll of attorneys. Respondent is to bear all costs of these proceedings.

DENNIS, J., concurs with reasons.

COLE, J., dissents.

DENNIS, Justice,

concurring.

I respectfully concur. While it is true that this court has the discretion to accept an attorney’s resignation in lieu of taking disciplinary action, I believe that unusually mitigating circumstances must exist before we allow an attorney to do so at the penultimate stage of a disciplinary proceeding in order to avoid the stigma of disbarment. Although I agree that this is an unusual case in which our discretion is properly exercised in accepting the respondent’s resignation, I regret that the majority opinion does not fully explain our reasons for doing so. I believe that this court owes a duty to the bar and the public, whom we are *1208charged with the responsibility of protecting from the unethical practices of members of the profession, to clearly and thoroughly state the exceptional circumstances which justify the exercise of our discretion in such a case.

The respondent, a native of Cuba, was forced to leave that country after the overthrow of the Batista government and the assumption of power by Castro. When the respondent came to this country in 1960, his English was very poor. Although he had received a degree of Doctor of Civil Laws in Cuba, he was hampered by his lack of familiarity with our language. After attending school for several years in this country, he was successful in becoming proficient enough in the English language to earn three degrees, including a law degree, and to obtain a teaching job at Southern University. At the hearing before the Commissioner, a colleague of the respondent testified that he is a highly regarded scholar. The Commissioner found that respondent has a serious alcohol abuse problem which affected his health and his conduct in the practice of law. The respondent has no prior disciplinary record.

In oral argument, respondent expressed remorse, admitted that he should not have attempted to practice law, and stated that he will not practice law again. However, he stated that he is fearful that disbarment would cause him to lose his teaching job and therefore his only means of livelihood.

Essentially, I concur in the result of the majority opinion, because, given the mitigating circumstances, I believe that respondent’s resignation, coupled with the condition that he may not be readmitted within five years, affords the public substantial protection without subjecting him to the risk of loss of the only employment for which he seems particularly suited, given his physical condition, education and ethnic background.

Additionally, I believe that in a case such as this, the court should require the respondent to admit in writing the charges contained in • the disciplinary action, furnish evidence that he has made or is making restitution to his clients, and agree to relinquish his right to seek reinstatement to the bar, except for purposes other than the active practice of law. The court and the Committee on Professional Responsibility may consider making these requirements, however, when the respondent petitions for readmission.

COLE, Justice,

dissenting.

Respondent should not be permitted to resign without following guidelines set forth by Section 11, which I find applicable.