In Re: Kemic Alan Smothers

Supreme Court of Louisiana
March 16, 2021
Chief Deputy Clerk of Court
For the Court
The Supreme Court of the State of Louisiana
IN RE: KEMIC ALAN SMOTHERS
No.2020-B-01412
_ _
_ _ _ _
I
N RE: Disciplinary Counsel - Applicant Other; Findings and Recommendations
(Formal Charges);
_ _ _ _ _ _
March 16, 2021
Suspension imposed. See per curiam.
Crichton, J., additionally concurs and assigns reasons.
Genovese, J., would impose a greater sanction.
SJC
JLW
JDH
JTG
WJC
JBM
PDG
03/16/2021 "See News Release 010 for any Concurrences and/or Dissents."

03/16/21
S
UPREME COURT OF LOUISIANA
NO. 2
020-B-1412
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
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 2002. On June 22, 2020 , we suspended respondent from the
practice of law for six months, with all but thirty days deferred, subject to two years
of probation with conditions, for practicing law while he was ineligible to do so. In
re: Smothers, 20-0244 (La. 6/22/20), 297 So. 3d 743 (“Smothers I”).
Against this backdrop, we now turn to a consideration of the misconduct at
issue in the present proceeding.
FO
RMAL CHARGES
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.

2

From May 31, 2014 to January 28, 2019, respondent was ineligible to practice
law for failure to comply with his annual professional obligations. During this
period of ineligibility, he provided legal services to Smothers Academy Preparatory
School (“the A cademy”). He submitted numerous invoices to the Academy for
“legal services,” and the services set forth in the invoices include: “Compliance
Review; Employment Contracts, Service Contract Negotiation/Review; Board of
Directors Legal Advisor; In-House Counsel; and Procurement Policy Oversight.”
In a January 5, 2017 letter to a new board member, respondent identified
himself as “Board Legal Advisor.” In an April 3, 2018 email to the board members,
respondent identified himself as the attorney for the Academy, and he also stated:
As you know, one of my primary responsibilities at
Smothers Academy is providing legal counsel to the Board
of Directors. As such, it is my responsibility to ensure that
all federal and state law, as well as local ordinance, i s
adhered to in regards to Board action and duties.

In the email, respondent also indicated that a violation of the Louisiana Open
Meetings Law had occurred, and he advised that corrective action was necessary.
On July 12, 2018, respondent filed suit aga inst the Academy and others,
alleging breach of contract. In the petition, respondent is referred to as “Legal
Counsel to the Board” as well as “legal counsel.”
In his response to the associated disciplinary complaint, respondent stated:
In regards to any legal duties, the extent of my
responsibilities was to advise the Smothers Academy
Board of Directors on all legal matters affecting Smothers
Academy to determine whether an attorney needed to be
retained. … The Legal Advisor responsibilities centered
on averting the necessity of retaining legal counsel for
disputes that could not be negotiated by the Smothers
Academy Administration.

Respondent also provided a sworn statement to the ODC in which he
reiterated his belief that he did not engage in the pr actice of law on behalf of the
Academy.

3

The ODC alleged that respondent’s conduct violated the following provisions
of the Rules of Professional Conduct: Rules 1.1(b)(c) (failure to comply with annual
professional obligations), 5.5(a) (engaging in the unauthorized practice of law),
5.5(e)(3) (regarding employment of a suspended attorney),2 and 8.4(a) (violation of
the Rules of Professional Conduct).

DISCIPLINARY PROCEEDINGS
The ODC filed formal charges against respondent in February 2020.
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 a dmitted submission, the hearing
committee acknowledged that the factual allegations in the formal charges were
deemed admitted and proven by clear and convincing evidence
. The committee
concluded that respondent violated the Rules of Professional Conduct as alleged in
the formal charges. The committee then noted that the documentary evidence in this
matter provides direct evidence that respondent violated the above-referenced rules
despite giving a sworn statement to the contrary.

2 Rule 5.5(e)(3) defines the practice of law to include the following activities: rendering legal
consultation or advice to a client; appearing on behalf of a client in any hearing or proceeding,
or before any judicial officer, arbitrator, mediator, court, public agency, referee, magistrate,
commissioner, hear ing officer, or governmental body operating in an adjudicative capacity,
including submission of pleadings; and appearing as a representative of the client at a deposition
or other discovery matter.

4

The committee then determined that respondent violated duties owed to his
client/employer, the public, the legal system, and the legal profession. He acted
negligently, if not knowingly and intentionally, causing potential and actual harm.
The committee noted that collecting legal fees for services that one is ineligible to
perform causes harm to the client and that practicing law while ineligible to do so
harms the public by eroding public confidence and trust in the legal profession and
the legal system. The committee then considered respondent’s prior misconduct in
Smothers I as it relates to the misconduct at issue in this matter:
In Smothers I, supra, the court concluded that Respondent
knowingly charged and collected legal fees from his client
for legal services rendered in 2014, while ineligible to
practice law. Formal charges in Smothers I were filed in
December of 2017. Despite facing a disciplinary
investigation, and, later, formal charges in [ Smothers I],
Respondent continued holding himself out as a lawyer and
submitting invoices for legal services provided in [ this
matter], while (still) ineligible to practice law. In fact, on
January 28, 2019, while formal charges were pending in
Smothers I, Respondent wrote to the LSBA to “attest” that
“I did not practice law during the years 2013-2018.” This
statement to the LSBA is in direct conflict with the
evidence collected by the ODC during its investigation.

After considering the ABA’s Standards for Imposing Lawyer Sanctions , the
committee determined the baseline sanction is suspension.
The committee found the following aggravating factors are present: a pattern
of misconduct, 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 (admitted 2002). The committee did not mention
the presence of any mitigating factors.
After further considering the court’s prior jurisprudence addressing similar
misconduct, the committee recommended respondent be suspended from the
practice of law for one year and one day . The committee also recommended
respondent be assessed with the costs and expenses of this proceeding.

5

Neither respondent nor the ODC filed an objection to the committee’s report
or recommendation. Therefore, pursuant to Supreme Court Rule XIX, § 11(G), the
disciplinary board submitted the committee’s report directly to the court for review.3

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.

3 As amended effective May 15, 2019, Supreme Court Rule XIX, § 11(G) provides that “[i]f the
parties do not file objections to the hearing committee report, the board shall promptly submit the
hearing committee’s report to the court.”

6

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
(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 supports a finding that respondent knowingly violated duties owed
to his client, the public, the legal system, and the legal profession, causing potential
and actual harm. In prior cases involving the practice of law by attorneys who are
ineligible to do so, we have generally set a baseline sanction of a one ye ar and one
day suspension. See In re: Hardy, 03-0443 (La. 5/02/03), 848 So. 2d 511.
In addition to the aggravating factors found by the hearing committee, the
record supports the aggravating factor of refusal to acknowledge the wrongful nature
of the conduct. The record does not support any mitigating factors.
With respect to the issue of discipline, we see no reason to deviate from the
baseline sanction established in Hardy . The misconduct at issue in this matter is
identical to the misconduct at issue in Smothers I , and respondent continued to
engage in this type of misconduct well after formal charges were filed Smothers I .
Considering that prior disciplinary action has been ineffective at stopping this
pattern of misconduct, we agree that a one year and one day suspension is necessary.
Under this sanction, respondent will have to file a formal application in order to be
reinstated to the practice of law. At that time, we will have the opportunity to assess
whether respondent has met the reinstatement criteria set forth in Supreme Court
Rule XIX, § 24(E) and fulfilled his professional obligations.

7

Accordingly, we will adopt the hearing committee’s recommendation and
suspend respondent from the practice of law for one year and one day.

DECREE
Upon review of the findings and recommendations of the hearing committee,
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 one year and one day . 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 day s from the date of finality of this court’s judgment
until paid.