In Re: Mark G. Simmons

FOR IMMEDIATE NEWS RELEASE NEWS RELEASE #013
FROM: CLERK OF SUPREME COURT OF LOUISIANA
The Opinions handed down on the 24th day of March, 2021 are as follows:
PER CURIAM:
2020-B-01139 IN RE: MARK G. SIMMONS
SUSPENSION IMPOSED. SEE PER CURIAM.
Weimer, C.J., dissents and assigns reasons.

03/24/21
S
UPREME COURT OF LOUISIANA
NO. 20
20-B-1139
I
N RE: MARK G. SIMMONS
AT
TORNEY DISCIPLINARY PROCEEDING
P
ER CURIAM
T his disciplinary matter arises from formal charges filed by the Office of
Disciplinary Counsel (“ODC”) against respondent, Mark G. Simmons, an attorney
licensed to practice law in Louisiana, but currently suspended from practice.
PRI
OR DISCIPLINARY HISTORY
Before we address the current charges, we find it helpful to review
respondent’s prior disciplinary history. Respondent was admitted to the practice of
law in Louisiana in 1990.
On October 16, 2017, we suspended respondent from the practice of law for
one year and one day, with all but sixty days deferred, followed by two years of
supervised probation with conditions, for mismanaging his client trust account,
neglecting a legal matter, failing to communicate with a client, and failing to
cooperate with the ODC in two investigations. In re: Simmons, 17 -1043 (La.
10/16/17), 226 So. 3d 1102 (“Simmons I”). No application for rehearing was filed
in Simmons I , and thus r espondent’s suspension became final and effective on
October 30, 2017, fourteen days after the date of our judgment.
Respondent served the sixty -day period of actual suspension imposed in
Simmons I. Thereafter, upon his compliance with the provisions of Supreme Court
Rule XIX, § 23, respondent was reinstated to the practice of law on February 23,

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2018. His two -year period of probation commenced on April 9, 2018. However,
during the probationary period, respondent failed to comply with the condition
requiring him to submit quarterly audits of his trust account to the ODC. The ODC
then moved to revoke respondent’s probation. After considering the matter, we
revoked respondent’s probation and made immed iately executory the previously
deferred portion of the one year and one day suspension imposed in Simmons I. In
re: Simmons, 19-0908 (La. 6/26/19), 276 So. 3d 129 (“ Simmons II”). Respondent
has not sought reinstatement from this suspension. Thus, he remains suspended from
the practice of law.
Against this backdrop, we now turn to a consideration of the misconduct
at issue in the instant proceeding.

FORMAL CHARGES
As set forth above, respondent was susp ended from the practice of law
between October 30, 2017 and February 23, 2018. During this time period,
respondent represented clients as follows:
1. He represented Shellie Castille in a family court matter regarding a qualified
domestic relations order. The matter was filed on November 6, 2017, and the
judgment was signed on November 14, 2017. Respondent then
communicated with the opposing party and a representative from Ms.
Castille’s employer in an effort to resolve issues related to the order.
2. On November 7, 2017 and January 19, 2018, respondent appeared in court
with Lawrence Roberts , his client in a criminal matter. During both
appearances, respondent requested and was granted a continuance.
3. On December 27, 2017, respondent filed a motion to dismiss with prejudice
on behalf of Mable Hadley, his client in a civil matter.

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4. On January 24, 2018, respondent appeared in court for the sentencing of Devin
Morris, his client in a criminal matter.
5. On January 29, 2018, respondent appeared in court with Darius Slan, his client
in a criminal matter.
6. On January 30, 2018, respondent appeared in court with Kevin Aguillard, his
client in a criminal matter.

DISCIPLINARY PROCEEDINGS
In August 2018, the ODC filed formal charges against respondent, alleging
that his conduct violated Rules 5.5(a) (engaging in the unauthorized practice of law)
and 8.4(a) (violation of the Rules of Professional Conduct) of the Rules of
Professional Conduct . Respondent failed to answer the formal charges, and the
factual allegations contained therein were deemed admitted and proven by clear and
convincing evidence pursuant to Supreme Court Rule XIX, § 11(E)(3).
Respondent then filed a motion to recall the deemed admitted order and a
request to be heard in mitigation. The hearing committee chair denied respondent’s
motion to recall for failure to demonstrate good cause but granted respondent’s
request for a hearing in mitigation. The committee held the hearing in mitigation on
March 1, 2019. Respondent failed to appear at the hearing.1

Hearing Committee Report
The hearing committee found that respondent represented himself as a
licensed attorney, made appearances in court holding himself out as a practicing
attorney, and filed pleadings while his license to practice law was suspended. Based

1 The hearing committee noted in its report that the ODC had attempted to contact respondent both
before and on the day of the hearing; nevertheless, he did not appear. The committee also noted
that respondent failed to participate in a ny prehearing conference calls and failed to s ubmit any
prehearing pleadings.

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on these facts, the committee determined respondent violated the Rules of
Professional Conduct as alleged in the formal charges.
The committee determined respondent knowingly and intentionally violated
duties owed to the public, the legal syste m, and the legal profession. Although the
committee found respondent caused no actual harm to the clients he represented
while suspended, it did find actual harm to the disciplinary system. The committee
also noted that respondent showed a lack of respect to the legal profession by
continuing to practice law while suspended and then refusing to participate in the
mitigation hearing he requested. Relying on the ABA’s Standards for Imposing
Lawyer Sanctions, the committee determined the baseline sanction is disbarment.
In light of respondent’s failure to participate in the mitigation hearing, the
committee determined that no mitigating factors are present. In aggravation, the
committee found a prior disciplinary record, multiple offenses, bad faith obstruction
of the disciplinary proceeding by intentionally failing to comply with the rules or
orders of the disciplinary agency, and substantial experience in the practice of law.
Based on these findings, the committee recommended respondent be
disbarred. Neither respondent nor the ODC filed an objection to the committee’s
report. However, in its pre-argument brief to the disciplinary board, the ODC argued
that respondent should be permanently disbarred. Respondent did not file a pre -
argument brief but did appear for oral argument before the board. Respondent also
filed a post-argument brief for the board’s consideration.

Disciplinary Board Recommendation
Before addressing the merits, the disciplinary board addressed the arguments
respondent presented during oral argument. First, respondent argued that he did not
receive proper notice of the formal charges and did not have an opportunity to
respond to same. He indicated that he did not sign for the formal charges, nor did

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anyone who was authorized to receive mail on his behalf. He further claimed that
he did not receive notice of the mitigation hearing date.
Regarding the Castille and Hadley matters, respondent asserted that these
matters were resolved prior to his suspension in Simmons I and that the opposing
attorneys had been responsible for filing the judgments. When Ms. Castille called
him with questions in December 2017, he told her he could not assist her until the
end of the year. When she continued to call, respondent contacted the oppos ing
attorney and Ms. Castille’s retirement plan administrator to ask them to look into her
questions. He did not think he was practicing law because Ms. Castille’s legal matter
had been resolved and he “was no longer representing” her. He further denied
appearing in court with Mr. Roberts on November 7, 2017.
Regarding his practice of law beginning in January 2018, respondent claimed
that an ODC staff member informed him he would be able to resume practicing after
sixty days even though it could take a little longer to go through the process of
reinstatement. Based on this staff member’s statement, respondent believed he was
eligible to practice law again in January 2018.
In conclusion, respondent argued that he has legitimate defenses to the formal
charges, and he was not given the opportunity to present them. He also argued that
the hearing committee’s recommended sanction “is excessive and is contrary to what
is fair and just according to the circumstances.” As such, respondent requested that
the board remand the matter for a full hearing and not impose permanent disbarment.
The board determined respondent was properly served with the formal
charges at his primary registration address.
2 He then failed to answer the for mal
charges, which were subsequently deemed admitted. When respondent moved to

2 Mailing the formal charges by certified mail to the address respondent listed in his registration
statement is adequate service, regardless of whether respondent actually received the mailing . In
re: Edwards, 97-0624 (La. 6/13/97), 695 So. 2d 1325; Supreme Court Rule XIX, § 13(A).

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recall the deemed admitted order, he failed to demonstrate good cause why the
imposition of the order would be improper or would result in a miscarriage of justice.
As such, t he hearing committee chair denied the motion. Determining that
respondent’s failure to timely respond appears to be attributable to his own inaction,
the board found no error in the committee chair’s ruling. The board also determined
that respondent was properly notified of the mitigation hearing date. Nevertheless,
he failed to participate.
Turning to the merits, the board indicated it gave consideration to
respondent’s arguments at oral argument when determining its recommended
sanction. The board also determined that the deemed admitted facts and evidence
presented prove respondent violated Rules 5.5(a) and 8.4(a) of the Rules of
Professional Conduct.
The board then determined respondent violated duties owed to his clients, the
legal system, and the legal profession. Based on respondent’s explanations at oral
argument, the board determined respondent acted negligently in part and knowingly
in part. Specifically, the board found respondent acted negligently when he
improperly appeared in court between January 1, 2018 and February 23, 2018. The
board found no evidence of actual harm to respondent’s clients or the legal system.
However, the potential for harm existed. Respondent’s conduct also damaged the
legal profession and the disciplinary system.
The board agreed with the committee that no mitigating factors are present.
In aggravation, the board found a prior disciplinary record, bad faith obstruction of
the disciplinary proceeding by intentionally failing to comply with the rules or orders
of the disciplinary agency, and substantial experience in the practice of law.
Based on these findings, and considering the prior jurisprudence of the court
concerning similar misconduct, a majority of the board recommended respondent be
suspended from the practice of law for two years. One board member dissented and

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would recommended disbarment, noting that respondent “was somewhat deceptive
in his limited participation in the disciplinary process.”
The ODC filed an objection to the board’s recommendation. Accordingly, the
case was docketed for oral argument pursuant to Supreme Court Rule XIX, §
11(G)(1)(b).

DISCUSSION
Bar disciplinary matters fall within the original jurisdiction of this court. La.
Const. art. V, § 5(B). Consequen tly, 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. While we are not bound in any w ay by the findings and
recommendations of the hearing committee and disciplinary board, we have held the
manifest error standard is applicable to the committee’s factual findings. See In re:
Caulfield, 96 -1401 (La. 11/25/96), 683 So. 2d 714; In re: Pardue , 93-2865 (La.
3/11/94), 633 So. 2d 150.
The record in this matter supports a finding that respondent practiced law
during a period of suspension. Respondent was suspended from the practice of law
from October 30, 2017 until he complied with the applicable reinstatement
requirements on February 23, 2018. Nevertheless, the record contains evidence, in
the form of court records and docket reports, showing respondent filed pleadings and
appeared in court with clients on several occasions during this time period. As such,
respondent has violated the Rules of Professional Conduct as alleged in the formal
charges.
Having found evidence of professional misconduct, we now turn to a
determination of the appropriate sanction for respo ndent’s actions. In determining
a sanction, we are mindful that disciplinary proceedings are designed to maintain

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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
(La. 1987). The discipline to be imposed depends upon the facts of each case 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 sup ports a finding that respondent knowingly engaged in the
unauthorized practice of law . Respondent maintains that he believed he could
resume the practice of law beginning in January 2018 because an unnamed ODC
staff person told him so. Even if we accepted this contention, which we do not,
respondent practiced law in November and December 2017, during which time he
was clearly suspended pursuant to our judgment in Simmons I.
In practicing law while suspended, respondent violated dut ies owed to his
clients, the public, the legal system, and the legal profession. His misconduct caused
no actual harm but the potential for harm was great. The applicable baseline sanction
is disbarment.
Aggravating factors include a prior disciplinary record, multiple offenses, bad
faith obstruction of the disciplinary proceeding by intentionally failing to comply
with the rules or orders of the disciplinary agency, vulnerability of the victims, and
substantial experience in the practice of law. No mitigating factors are evident from
the record.
In In re: Thomas , 07-1616 (La. 1/16/08), 973 So. 2d 686, we observed that
the severity of the sanction for an attorney who practices law during a period of
suspension or disbar ment largely depends on the attorney’s mental state . Here,
respondent acted knowingly, and as such, a period of suspension is appropriate.

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Under the unique facts of this case, we find respondent’s conduct warrants a
three-year suspension from the practic e of law, which we will make retroactive to
the date of his suspension in Simmons I.

DECREE
Upon review of the findings and recommendations of the hearing committee
and the disciplinary board, and considering the record, briefs, and oral argument, it
is ordered that Mark G. Simmons, Louisiana Bar Roll number 19995, be and he
hereby is suspended from the practice of law for a period of three years, retroactive
to October 16, 2017, the date of his suspension in In re: Simmons, 17 -1043 (La.
10/16/17), 226 So. 3d 1102. 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.

SUPREME COURT OF LOUISIANA
NO. 2020-B-01139
IN RE: MARK G. SIMMONS
ATTORNEY DISCIPLINARY PROCEEDING
WEIMER, C.J., dissenting.
I respectfully dissent from the sanction imposed in this matter. As the “Prior
Disciplinary History” recounted at the outset of the per curiam makes clear, the
unauthorized practice of law charge currently before the court is separate and distinct
from the prior charges respondent faced and for which he was disciplined. The
misconduct charged here is not of the same type and did not occur in the same time
frame as the previous misconduct. As a result, I believe there is no basis for making
the discipline in the present matter retroactive to the date of respondent’s previous
suspension in the entirely unrelated matter.
I believe a suspension of two years, with all but one year deferred, is both
justified and warranted as the more appropriate sanction under the facts. 1
1 The misconduct related to the August 2018 charges occurred from November 2017 and January
2018, after the effective date of respondent’s suspension in In re: Simmons, 17-1043 (La. 10/16/17),
226 So.3d 1102 ( Simmons I) and prior to his compliance with Supreme Court Rule XIX, § 23
(reinstatement following an active period of suspension of one year or less). After being granted a
hearing in mitigation, at which respondent failed to appear, the hearing committee recommended
disbarment. Following the disciplinary board proceedings, the board recommended a two-year
suspension. The Office of Disciplinary Counsel (ODC) objected to this recommendation.
Meanwhile, on April 29, 2019 (after the hearing committee’s disbarment recommendation,
but before the hearing by the disciplinary board), the ODC filed a motion to revoke respondent’s
probation for his failure to submit quarterly audits of his trust account as required by his probation
agreement in Simmons I. Following a hearing, at which respondent failed to appear, this court
revoked respondent’s probation and made the previously-deferred portion of the Simmons I
suspension executory. See In re: Simmons, 19-0908 (La. 6/26/19), 276 So.3d 129 (Simmons II.)
As a result of the court’s judgment in Simmons II, respondent will be required to file a petition for
reinstatement pursuant to Supreme Court Rule XIX, § 24.
As this chronology demonstrates, the unauthorized practice of law matter currently before
the court is completely separate and distinct from the Simmons I and Simmons II matters. The
misconduct is not of the same type and did not occur in the same time frame. Therefore, I do not
believe there is any basis to make the discipline in the unauthorized practice of law matter retroactive
to Simmons II or otherwise to give respondent “credit” for his prior suspension.
03/24/21