In Re: Kemic Alan Smothers

Supreme Court of Louisiana
June 22, 2020
Clerk of Court
For the Court
The Supreme Court of the State of Louisiana
IN RE: KEMIC ALAN SMOTHERS
No.2020-B-00244
_ _
_ _ _ _
I
N RE: Disciplinary Counsel - Applicant Other; Findings and Recommendations
(Formal Charges);
_ _ _ _ _ _
June 22, 2020
Suspension imposed. See per curiam.
Hughes, J., dissents and would increase discipline.
Crain, J., dissents and would increase discipline.
SJC
BJJ
JLW
JTG
JHB
06/22/2020 "See News Release 022 for any Concurrences and/or Dissents."

S
UPREME COURT OF LOUISIANA
NO. 2
020-B-0244
I
N RE: KEMIC ALAN SMOTHERS
AT
TORNEY DISCIPLINARY PROCEEDING
P
ER CURIAM
This disciplinary matter arises from formal charges filed by the Office of
Disciplinary Counsel (“ODC”) against respondent, Kemic Alan Smothers, an
attorney licensed to practice law in Louisiana, but currently ineligible to practice.1
FO
RMAL CHARGES
From May 31, 2014 to January 28, 2019, respondent was ineligible to practice
law in Louisiana for failure to comply with the mandatory continuing legal education
(“MCLE”) requirements. From September 9, 2014 to January 28, 2019, respondent
was also ineligible for failure to comply with mandatory trust account registration
requirements and failure to pay bar dues and the disciplinary assessment.
On April 10, 2014, respondent entered into a legal service s agreement with
De’Lisa Tate and RoTate Productions LLC (collectively referred to hereinafter as
“the client”) for the purposes of providing general legal counsel and re ndering
general transactional legal services, contract review, contract drafting, and contract
negotiation. Pursuant to the representation, respondent sent the client an invoice
entitled “For Professional Services Rendered for the Period of April 4, 2014 – July
15, 2014,” which listed dates for legal services provided in June 2014 and July 2014.
1 Respondent has a lengthy history of ineligibility to practice law for failure to comply with his
professional obligations . Most recently, on September 16, 2019, respondent was declar ed
ineligible to practice law for failing to pay his bar dues and the disciplinary assessment.
06/22/20

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The ODC alleged that respondent’s conduct violated the following provisions
of the Rules of Professional Conduct: 1.1(b) (failure to comply with MCLE
requirements), 1.1(c) (a lawyer is required to pay bar dues and the disciplinary
assessment), 5.5(a) (engaging in the unauthorized practice of law), and 8.4(a)
(violation of the Rules of Professional Conduct).

DISCIPLINARY PROCEEDINGS
The ODC filed formal charges against respondent in December 2017.
Respondent failed to answer the formal charges. Accordingly, the factual allegations
contained therein were deemed admitted and proven by clear and convincing
evidence pursuant to Supreme Court Rule XIX, § 11(E)(3). No formal hearing was
held, but the parties were given an opportunity to file with the hearing committee
written arguments and documentary evidence on the issue of sanctions. Respondent
filed nothing for the hearing committee’s consideration.

Hearing Committee Report
After considering the ODC’s deemed admitted submission, the hearing
committee made factual findings consistent with the deemed admitted factual
allegations set forth in the formal charges. The committee added the following:
Respondent’s legal services agreement with the client required a $10,000
retainer fee, to be billed at $250 per hour. The fee was not paid in full, but the client
made four payments as follows: (1) $1,500 on April 10, 2014; (2) $1,500 on April
22, 2014; (3) $2,500 on May 12, 2014; and (4) $2,750 on June 9, 2014; totaling
$8,250. The detailed billing reflects that fees and expenses totaled $7,542.50 for the
time period prior to May 31, 2014, when respondent was eligible to practice law.
Within that time frame, 29.75 hours of services were provided and a $105 expense
was paid. The detailed billing also reflects that fees and expenses totaled $1,445 for

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the time period between May 31, 2014 and July 8, 2014, when respondent was
ineligible to practice law. Within that time frame, 5.7 hours were billed and a $20
expense was paid. The client paid $707.50 towards these fees and expenses.
Based on these facts, the committee determined that respondent violated the
Rules of Professional Conduct as alleged in the formal charges. The committee
stated the following with respect to each alleged violation:
Respondent failed to comply with the minimum requirements of continuing
legal education in violation of Rule 1.1(b). As established by the detailed billing for
legal services in June and July 2014, respondent practiced law while he was
ineligible to do so, in violation of Rules 5.5(a) and 8.4(a). By failing to comply with
all the requirements of this court’s rules regarding annual registration, and because
he has provided no resp onse or evidence to the contrary, respondent is deemed to
have admitted a violation of Rule 1.1(c).
The committee determined that respondent vi olated duties owed to the legal
profession and acted negligently. He caused actual harm to the client by chargin g
fees for legal services at a time when he was no t authorized to practice law. He
caused actual harm to the legal profession by failing to comply with the court’s rules
regarding the minimum requirements of continuing legal education and annual
registration, including the requirement that he timely notify the Louisiana State Bar
Association (“LSBA”) of changes of address. His failure to do so caused the ODC
to expend time and expense in its attempt to sufficiently investigate the matter. After
considering the ABA’s Standards for Imposing Lawyer Sanctions, the committee
determined the baseline sanction is reprimand.
In aggravation, the committee found substantial experience in the practice of
law (admitted 2002) and respondent’s “failure to timely investigate the Client’s

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allegation that Respondent was not authorized to practice and to bring Respondent
into compliance with the minimum requirements of continuing education…” 2
In mitigation, the committee found the absence of a prior disciplinary record,
the “lack of severity of injury to the Client, and the Respondent’s participation in the
investigation through a detailed response and exhibits in November 2015.”
After considering this court’s prior jurisprudence addressing similar
misconduct, the committee recommended respondent be suspended from the
practice of law for six months, fully deferred, subject to a two-year period of
unsupervised probation
with the condition that he attend Ethics School and that he
comply with all requirements of the court’s rules regarding annual registration and
the minimum requirements of continuing education.
Neither respondent nor the ODC filed an objection to the hearing committee’s
report.

Disciplinary Board Recommendation
After review, the disciplinary board acknowledged that the factual allegations
of the formal charges have been deemed admitted and proven. The board then noted
that the committee made its findings of fact based on these deemed admitted facts
and additional evidence in the record. The board determined that these findings are
not manifestly erroneous and adopted same.
The board determined that the legal conclusions of the hearing committee are
supported by the factual allegations asserted in the formal charges and by the
evidence submitted in support of the allegations. The board adopted these findings
and the reasons therefor as stated by the committee. As to Rules 1.1(c) and 8.4(a),
however, the board clarified that respondent violated Rule 1.1(c) when he failed to

2 Apparently, the client contacted the LSBA after she grew concerned when respondent did not
respond to her communication attempts. At that time, the client discovered that respondent was
ineligible to practice law. She then contacted respondent to inform him about his ineligibility.

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update his primary registration statement addresses with the LSBA, thereby causing
the formal charges to be sent to an outdated address and returned to the board marked
“unclaimed, return to sender.” Respondent also violated Rule 1.1(c) when he failed
to timely pay his bar dues and the disciplinary assessment and failed to file his trust
account disclosure statement in 2014. By violating Rules 1.1(b), 1.1(c), and 5.5(a),
respondent violated Rule 8.4(a).
The board determined that respondent negligently violated duties owed to his
client and the legal profession. He caused actual harm to his client by charging fees
for legal services rendered while he was ineligible to practice law and by collecting
fees in partial payment for these services in the amount of $707.50. He caused harm
to the legal profession by failing to timely comply with the court’s rules regarding
annual registration and continuing legal education requirements. By failing to
update his registration statement addresses, he caused the ODC to expend time and
unnecessary expense in sending the formal charges to an outdated address. After
considering the ABA’s Standards for Imposing Lawyer Sanctions , the board
determined that the baseline sanction for respondent’s misconduct is reprimand.
In aggravation, the board found substantial experience in the practice of law
and refusal to acknowledge the wrongful nature of the conduct. In mitigation, the
board found the absence of a prior disciplinary record.
After considering the court’s prior jurisprudence addressing similar
misconduct, the board recommended respondent be suspended from the practice of
law for six months, with all but thirty days deferred, subject to a two-year period of
probation with the condition that he attend Ethics School and comply with all
requirements of the court’s rules regarding annual registration and continuing legal
education. The board also recommended respondent be ordered to make restitution
to the client in the amount of $707.50. Finally, the board recommended respondent
be assessed with the costs and expenses associated with this proceeding.

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Neither respondent nor the ODC filed an objection to the disciplinary board’s
recommendation.

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.
In cases in which the lawyer does not answer the formal charges, the factual
allegations of those charges are deemed admitted. Supr eme Court Rule XIX, §
11(E)(3). Thus, the ODC bears no additional burden to prove the factual allegations
contained in the formal charges after those cha rges have been deemed admitted.
However, the language of § 11(E)(3) does not encompass legal conclusions that flow
from the factual allegations. If the legal conclusion the ODC seeks to prove (i.e., a
violation of a specific rule) is not readily apparent from the deemed admitted facts,
additional evidence may need to be submitted in order to prove the legal conclusions
that flow from the admitte d factual allegations. In re: Donnan , 01 -3058 (La.
1/10/03), 838 So. 2d 715.
The evidence in the record of this deemed admitted matter supports a finding
that respondent practiced law while he was ineligible to do so. As such, he has
violated the Rules of Professional Conduct as charged.
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

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(La. 1987). The discipline to be imposed depends upon the facts of each c ase and
the seriousness of the offenses involved considered in light of any aggravating and
mitigating circumstances. Louisiana State Bar Ass’n v. Whittington, 459 So. 2d 520
(La. 1984).
The record further supports a finding that respondent violated duties owed to
his client and the legal profession, causing actual harm. However, we disagree with
the assessment that respondent was merely negligent. After the client contacted
respondent to inform him about his ineligibility, respondent replied to her with the
following e-mail, dated July 18, 2014, wherein he stated, in pertinent part:
Ineligibility only refers to making appearances in court
and the current situation is temporary. It’s just an annual
fee that’s outstanding. I’m still your lawyer and my
license hasn’t been stripped from me. I understand your
concern about that ineligibility issue but I assure you it’s
not as terminal as it seems. It’s happened before because
I don’t actively practice in Louisiana court s since pre -
Katrina.

Although respondent’s ineligibility was not brought to his attention by his
client until after he had performed the work on her behalf, respondent admits that he
let his professional obligations lapse in the past. In fact, respondent has a lengthy
history of ineligibility, and thus, he has had to correct this ineligibility on several
occasions.
3 Under the circumstances, it is difficult to conclude that his misconduct
in this matter was anything less than knowing.

3 Following his admission to the bar in 2002, respondent has been declared ineligible to practice
law for failure to comply with his professional obligations as follows:
October 31, 2005 – August 21, 2008 Failure to pay bar dues and disciplinary assessment
July 27, 2006 – August 21, 2008 Failure to attend mandatory CLE
November 30, 2007 – February 17, 2012 Failure to file a trust account registration statement
June 19, 2010 – February 17, 2012 Failure to attend mandatory CLE
September 10, 2010 – February 17, 2012 Failure to pay bar dues and disciplinary assessment
September 19, 2012 – October 2, 2012 Failure to file a trust account registration statement
May 31, 2014 – January 28, 2019 Failure to attend mandatory CLE
September 9, 2014 – January 28, 2019 Failure to pay bar dues and disciplinary assessment
September 9, 2014 – January 28, 2019 Failure to file a trust account registration statement
September 16, 2019 – present Failure to pay bar dues and disciplinary assessment

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In prior cases involving the practice of law by attorneys who are ineligible to
do so, the court has imposed sanctions ranging from suspension to disbarment, with
the baseline sanction generally being a suspension of one year and one day. 4
However, depending upon the circumstances of the la wyer’s violation and the
applicable aggravating and mitigating factors, a significant portion of the suspension
imposed by the court is often deferred in whole or in part.
5 The record in this case
supports the aggravating and mitigating factors found by the disciplinary board.
Turning to the issue of an appropriate sanction, we find the most guidance
from the case of In re: Oldenburg, 09 -0991 (La. 10/16/09), 19 So. 3d 455. The
attorney in Oldenburg had been declared ineligible to practice law on nine occasions
since his admission to the bar. During this time, he made one court appearance on
behalf of a client. Finding the attorney’s conduct to be negligent, the disciplinary
board recommended that he be publicly reprimanded. The ODC sought review of
that ruling in this court, and we increased the sanction to an actual period of
suspension:
Considering respondent's repeated past failures to
comply with his professional obligations, we cannot
excuse his misconduct in this matter as a simple
oversight. Accordingly, we find that an actual period
of suspension is warranted. We will impose a six-month
period of suspension, deferring all but thirty days of the
suspension on the condition that respondent successfully

4 See In re: Hardy, 03-0443 (La. 5/2/03), 848 So. 2d 511.
5 See, e.g., In re: Flores , 16-1652 (La. 10/17/16), 202 So. 3d 160 (six -month suspension, fully
deferred subject to a two -year period of unsupervised probation, imposed upon an attorney who
filed a responsive pleading on behalf of a client during a period of ineligibility); In re: Lee, 15-
0490 (La. 4/10/15), 164 So. 3d 828 (one year and one day suspension, with all but ninety days
deferred, followed by a one -year period of supervised probation, imposed upon an attorney who
accepted numerous referrals from the LSBA’s Lawyer Referral Ser vice during a period of
ineligibility and failed to place an advance fee into his client trust account until earned); In re:
Moeller, 12-2460 (La. 3/19/13), 111 So. 3d 325 (one year and one day suspension, with all but
ninety days deferred, followed by a t wo-year period of unsupervised probation with conditions,
imposed upon an attorney who continued to practice law during multiple periods of ineligibility,
including making court appearances on behalf of clients); and In re: Fisher , 09- 1607 (La.
12/18/09), 24 So. 3d 191 (one -year suspension, with all but ninety days deferred, followed by a
one-year period of supervised probation with conditions, imposed upon an attorney who
represented a client in a bankruptcy matter during a period in which he was not eligible to practice
law; the attorney had a long history of ineligibility but numerous mitigating factors were present).

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complete a two-year period of probation. During the
probationary period, respondent shall enroll in and attend
one full day of Ethics School offered by the Louisiana
State Bar Association's Practice Assistance and
Improvement Committee. He shall also timely pay his bar
dues and the disciplinary assessment and comply with all
continuing legal education requirements. Any failure of
respondent to comply with the conditions of probation
may be grounds for making the deferred portion of the
suspension executory, or imposing additional discipline,
as appropriate. [Emphasis added.]

Given his lengthy history of ineligibility, respondent has demonstrated a
pattern of failing to complete his professional obligations in a timely fashion. More
problematic is that respondent showed little concern when his client advised him of
his ineligibility. He then waited nearly five years to restore his eligibility status,
even though a disciplinary complaint had been filed against him. Consequently, as
of the date of this report, respondent is once again ineligible to practice law. Under
the circumstances, it appears as though respondent is still not taking his professional
obligations seriously. Therefore, we agree that an actual period of suspension is
warranted in this case.
Accordingly, we will adopt the disciplinary board’s recommendation and
suspend respondent from the practice of law for six months, with all but thirty days
deferred, subject to two years of probation with the conditions set forth in the board’s
report.

DECREE
Upon review of the findings and recommendations of the hearing committee
and disciplinary board, and considering the record, it is ordered that Kemic Alan
Smothers, Louisiana Bar Roll number
28236, 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 active portion of the

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suspension, respondent shall be placed on probati on for a period of two years ,
subject to the conditions set forth in this opinion. 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 additi onal discipline, as appropriate. All costs and expenses in the
matter 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.