In Re: Flynn Kempff Smith

Supreme Court of Louisiana
June 21, 2023
Chief Deputy Clerk of Court
For the Court
The Supreme Court of the State of Louisiana
IN RE: FLYNN KEMPFF SMITH
No. 2023-B-00596
_ _
_ _ _ _
I
N RE: Office of Disciplinary Counsel - Applicant Other; Findings and
Recommendations (Formal Charges);
_ _ _ _ _ _
June 21, 2023
Suspension imposed. See per curiam.
Crichton, J., additionally concurs and assigns reasons.
PDG
JLW
JDH
SJC
JTG
WJC
JBM
06/21/2023 "See News Release 029 for any Concurrences and/or Dissents."

S
UPREME COURT OF LOUISIANA
NO. 20
23-B-0596
I
N RE: FLYNN KEMPFF SMITH
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, Flynn K. Smith, an attorney
licensed to practice law in Louisiana, but currently ineligible to practice.
FO
RMAL CHARGES
Counts I & II
On October 20, 2020, respondent was declared ineligible to practice law for
failure to pay his bar dues and the disciplinary assessment. On October 1, 2021, he
was declared ineligible to practice for failure to file his trust account registration
statement. Finally, between July 1, 2020 and February 17, 2022, respondent was
ineligible to practice for failure to comply with the mandatory continuing legal
education requirements.
Notwithstanding respondent’s ineligibility during these periods, on January
27, 2022 he appeared in Section “G” of Orleans Criminal District Court representing
a defendant during arraignment. Respondent enrolled as counsel and entered a not
guilty plea on the defendant’s behalf. In February 2022, the clerk in Section “G”
and the victim in the criminal case filed complaints against respondent with the
ODC.
06/21/23

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Count III
In 2022, the ODC learned that respondent was involved in a motor vehicle
accident in 2020 and was found to have been highly intoxicated. Respondent’s
vehicle collided with another vehicle parked near the intersection of Cherokee Street
and Dominican Street in New Orleans. Respondent’s vehicle was still running and
he was asleep at the wheel when the investigating officer arrived. The officer noted
that there was a very strong odor of alcohol on respondent’s breath and in his vehicle,
where an open container of alcohol was found to be present. Respondent was
awakened and upon exiting the vehicle was unsteady on his feet. He also slurred his
speech and had bloodshot eyes. A breath test revealed that respondent’s blood
alcohol level was .235g%.
The officer conducted a search of respondent incident to his arrest. A small
baggie containing a white powder -like substance fell from respondent’s pocket
during the search. Field testing confirmed that the substance was cocaine.

DISCIPLINARY PROCEEDINGS
In September 2022, the ODC filed formal charges against respondent, alleging
that his conduct as set forth above violated the following provisions of the Rules of
Professional Conduct: Rules 1.1(c) (a lawyer is required to comply with all
requirements of the Supreme Court’s rules regarding annual registration, including
payment of bar dues and the disciplinary assessment, timely notification of changes
of address, and proper disclosure of trust account information), 5.5(a) (engaging in
the unauthorized practice of law), 8.4(a) (violation of the Rules of Professional
Conduct), and 8.4(b) (commission of a criminal act that reflects adversely on the
lawyer’s honesty, trustworthiness, or fitness as a lawyer).
Respondent was personally served with the formal charges but failed to
answer. Accordingly, the factual allegations contained therein were deemed

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admitted and proven by clear and convincing evidence pursuant to Supre me 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 determined that the factual allegations of the formal charges were deemed
admitted and, thus, proven by clear and convincing evidence. Based on those facts,
the committee determined that respondent violated Rules 1.1(c), 5.5(a), 8.4(a), and
8.4(b) of the Rules of Professional Conduct.
The committee found that respondent violated duties owed to his client, the
legal system, the profession, and the public. He acted at least knowingly, if not
intentionally. Respondent’s unauthorized practice of law caused potential harm to
his client and the legal system. His criminal conduct caused actual and potential
harm to the public and actual harm to the profession. Considering the ABA’s
Standards for Impos ing Lawyer Sanctions, the committee determined that the
applicable baseline sanction is suspension.
The committee found the following aggravating factors are present: multiple
offenses, substantial experience in the practice of law (admitted 2006), and i llegal
conduct. In mitigation, the committee found the absence of a prior disciplinary
record.
After further considering this court’s prior jurisprudence addressing similar
misconduct, the committee recommended respondent be suspended from the
practice of law for two years. The committee also recommended that respondent be
assessed with all costs associated with this proceeding.

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

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 ineligible to do so and was arrested for DWI and
possession of cocaine. Based on these facts, respondent has violated the Rules of
Professional Conduct as charged by the ODC.
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

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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).
Respondent knowingly, if not intentionally, violated duties owed to his client,
the public, the legal system, and the legal profession. Both actual and potential harm
are present. We agree with the hearing committee that the appli cable baseline
sanction is suspension. The aggravating and mitigating factors found by the
committee are supported by the record.
With regard to the issue of an appropriate sanction, we agree with the
committee that respondent’s misconduct, taken as a whole, warrants a two -year
suspension from the practice of law. Respondent has practiced law after becoming
ineligible to do so, which itself generally warrants a one year and one day
suspension. See In re: Hardy, 03-0443 (La. 5/2/03), 848 So. 2d 511. Furthermore,
respondent has engaged in criminal conduct involving DWI and possession of
cocaine, and there is no evidence in the record that respondent has addressed his
apparent substance use disorder. This conduct would warrant a period of suspension
with no deferral under In re: Baer , 09 -1795 (La. 11/20/09), 21 So. 2d 941.
Therefore, when all of the misconduct is taken into consideration, a two-year
suspension is appropriate
Based on this reasoning, we will adopt the committee’s recommendation and
suspend respondent from the practice of law for two years.

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DECREE
Upon review of the findings and recommendations of the hearing committee,
and considering the record, it is ordered that Flynn Kempff Smith, Louisiana Bar
Roll number 30302, be and he hereby is suspended from the practice of law for two
years. 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.