In Re: Kenneth M. Plaisance

Supreme Court of Louisiana
February 06, 2024
Chief Deputy Clerk of Court
For the Court
The Supreme Court of the State of Louisiana
IN RE: KENNETH M. PLAISANCE
No. 2023-B-01460
_ _
_ _ _ _
I
N RE: Disciplinary Counsel - Applicant Other; Findings and Recommendations
(Formal Charges);
_ _ _ _ _ _
February 06, 2024
Suspension imposed. See per curiam.
Hughes, J., dissents and would impose a lesser sanction.
Griffin, J., dissents and would reject the proposed discipline as too harsh.
JBM
JLW
SJC
JTG
WJC
02/06/2024 "See News Release 007 for any Concurrences and/or Dissents."

SUPREME COURT OF LOUISIANA
NO. 2023-B-1460
IN RE: KENNETH M. PLAISANCE
ATTORNEY DISCIPLINARY PROCEEDING
PER CURIAM
This disciplinary matter arises from formal charges filed by the Office of
Disciplinary Counsel (“ODC”) against respondent, Kenneth M. Plaisance , an
attorney licensed to practice law in Louisiana.1
UNDERLYING FACTS
By way of background, on June 14, 2017, Larry Taylor was the driver of a
vehicle that rear -ended an eighteen -wheeler making an illegal U -turn in New
Orleans. Lawan Roussel, the minor child of Mr. Taylor and Melvia Hodges, was a
front seat passenger in Mr. Taylor’s vehicle at the time of the accident. Both Mr.
Taylor and Lawan were injured. The police ticketed Mr. Taylor for following too
closely, but the circumstances of the accident raised issues of comparative
negligence. Progressive Insurance Company insured both Mr. Taylor’s vehicle and
the eighteen-wheeler.
On June 15, 2017, respondent agreed to represent both Mr. Taylor and Lawan
on a contingency fee basis. However, he failed to disclose the existence of the
concurrent conflict of interest by representing them both when Mr. Taylor may have
some fault in causing the ac cident.2 On July 27, 2017, respondent granted Mr.
1 Respondent is also licensed to practice law in Texas.
2 Respondent had Mr. Taylor and Ms. Hodges sign a waiver of the conflict of interest but explained
to them that the conflict of interest stemmed from Progressive insuring both Mr. Taylor’s vehicle
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Taylor and Progressive a full release of all claims on behalf of Lawan in exchange
for the $15,000 policy limit of Mr. Taylor’s auto insurance policy.
On October 18, 2017, respondent filed a personal inj ury lawsuit in Orleans
Parish Civil District Court against Progressive as the insurer of the eighteen-wheeler.
Mr. Taylor and Lawan were co -plaintiffs in the lawsuit, and respondent failed to
include any claims by Lawan alleging comparative negligence by Mr. Taylor.
Progressive later removed the case to federal court in New Orleans, and the case was
dismissed without prejudice at respondent’s request.
In the latter part of 2017, respondent decided to try to enlist the help of a law
firm that handles eighteen-wheeler cases. To this end, respondent asked the Leger
& Shaw law firm in New Orleans to enroll as co-counsel on all claims. On December
16, 2017, the Leger firm advised respondent of the conflict of interest concerns with
his dual representation of Mr. Taylor and Lawan, and it declined respondent’s
request to act as co-counsel.
Respondent then asked the Texas law firm of Derryberry, Zipps, and Wade,
PLC, to enroll as co-counsel on behalf of Mr. Taylor and Lawan. After agreeing to
represent Lawan, the Derryberry firm advised respondent of his concurrent conflict
of interest in the dual representation and asked that he withdraw from Mr. Taylor’s
defense. Ultimately, respondent failed to withdraw from representing Mr. Taylor.
The Derryberry firm asso ciated the New Orleans law firm of Gainsburgh,
Benjamin, David, Meunier, and Warshauer, LLC as local counsel and met with Ms.
Hodges on Lawan’s behalf to advise her of respondent’s conflict of interest.
Thereafter, Ms. Hodges terminated respondent’s repre sentation of Lawan and
executed a contingency fee agreement with the Derryberry firm and the Gainsburgh
firm.

and the eighteen-wheeler. He never explained the conflict of interest due to Mr. Taylor’s possible
comparative negligence.

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On June 14, 2018, the Gainsburgh firm filed a lawsuit on behalf of Ms.
Hodges and Lawan in the United States District Court for the Eastern Distr ict of
Louisiana. With respondent’s assistance, Mr. Taylor filed his own lawsuit in the
United States District Court for the Eastern District of Louisiana. Soon thereafter,
respondent enrolled as Mr. Taylor’s counsel. Those two federal cases were then
consolidated. On October 16, 2018, respondent filed a motion to intervene in the
consolidated cases, requesting attorney’s fees for his past representation of Lawan.
The filing of the motion to intervene was ultimately rejected due to a deficiency
respondent failed to correct.
In May 2019, the parties settled the claim following a mediation. Thereafter,
Lawan’s attorneys petitioned the Orleans Parish Civil District Court for authority to
enter into the settlement on Lawan’s behalf, which petition was ultimately granted.
On August 15, 2019, respondent emailed the Derryberry firm to warn it not to
disburse the settlement funds until his fee claim was resolved. Because of
uncertainty regarding the validity of respondent’s fee claim, on September 4, 2019,
Lawan’s attorneys filed into the record of the consolidated federal cases a pleading
entitled “Motion to Determine Conflict -Free Status and Entitlement to Attorneys’
Fees.” Respondent did not oppose the motion or appear at the related hearing. On
October 7, 2019, the presiding judge confirmed that respondent had a conflict of
interest and, thus, was ineligible to receive a fee from his conflicted representation
of Lawan. Specifically, the judge ruled that, because respondent received a fee from
Mr. Taylor’s portion of the settlement, he could not share in the fees from Lawan’s
portion of the settlement. Respondent appealed the ruling to the United States Fifth
Circuit Court of Appeals, which appeal was dismissed due to lack of jurisdiction in
the latter part of March 2020.

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DISCIPLINARY PROCEEDINGS
In December 2021, the ODC filed formal charges against respondent, alleging
that his conduct violated the following provisions of the Rules of Professional
Conduct: Rules 1.4 (failure to communicate with a client), 1.7(a) (conflict of interest:
concurrent clients), 3.3 (candor toward the tribunal), 3 8.4(d) (engaging in conduct
prejudicial to the administration of justice). Respondent answered the formal
charges, essentially denying that h e engaged in any misconduct. Accordingly, the
matter proceeded to a formal hearing on the merits.

Formal Hearing
On April 11, 2022, one month prior to the scheduled hearing, respondent filed
a motion to continue the hearing, arguing that discovery was incomplete and that he
was still attempting to retain an attorney to represent him. The ODC opposed the
motion, and the hearing committee chair denied the motion on April 18, 2022. On
April 25, 2022, respondent filed a motion for summary ju dgment, which the ODC
opposed based upon Supreme Court Rule XIX, § 15(B), which prohibits such
motions “prior to the completion of the evidentiary record.” The committee chair
denied the motion on April 27, 2022.
On May 9, 2022, attorney Luke Fontana purportedly enrolled as respondent’s
counsel and filed a motion to continue, which again argued that discovery was
incomplete. That same day, the committee chair denied the motion. On May 11,
2022, the day of the hea ring, another motion to continue was fax -filed on
respondent’s behalf, purportedly by Mr. Fontana. Attached to the motion was a
doctor’s note indicating that respondent was unable to attend the hearing “due to

3 The Rule 3.3 allegation may have been a typographical error in the formal charges as the formal
charges define Rule 3.3 as “ seeking to collect attorneys’ fees in pursuit of a conflicted
representation,” and the ODC’s pre-hearing memorandum references Rule 3.1 (meritorious claims
and contentions) instead of Rule 3.3.

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health concerns.” Neither respondent nor Mr. Fontana appeared at the hearing.
After attempts to reach Mr. Fontana failed, the committee chair denied the motion.
The hearing on the merits proceeded with only Deputy Disciplinary Counsel
Robert Kennedy in attendance to represent the ODC. The ODC intr oduced
documentary evidence and called attorney Michael Ecuyer of the Gainsburgh firm
to testify before the committee.
Following the hearing, both respondent and the ODC provided conflicting
information regarding whether Mr. Fontana had actually been retained to represent
respondent. According to the ODC’s investigator, Mr. Fontana denied representing
respondent. According to respondent, he paid Mr. Fontana’s paralegal to retain Mr.
Fontana. Under these circumstances, the committee reopened the hearing to receive
evidence and testimony regarding this conflicting information.
The second hearing took place on September 23, 2022. The ODC was
represented by Deputy Disciplinary Counsel Christopher Kiesel. Respondent failed
to appear, and no one appeared on h is behalf. The ODC introduced documentary
evidence and called Mr. Fontana to testify before the committee.

RESPONDENT’S OCTOBER 5, 2020 SWORN STATEMENT TESTIMONY
Respondent testified that he had not yet attempted to obtain counsel to
represent him even though he requested a continuance to do so. Regarding the
conflict of interest, respondent testified that he was aware of it because he had Mr.
Taylor and Ms. Hodges sign waivers. He indicated that his research regarding
whether the conflict of interest was unwaivable was indeterminate. He also testified
that he did not obtain an ethics opinion regarding the conflict of interest from the
Louisiana State Bar Association as suggested by the Leger firm. Nevertheless, at
the suggestion of two other attorney s, he had the case that was removed to federal
court dismissed because of a possible conflict of interest. Respondent believes that

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the Derryberry and Gainsburgh firms kept bring up the conflict of interest issue so
they could cut him out of a share of the attorney’s fees.

MICHAEL ECUYER’S TESTIMONY
Mr. Ecuyer, an attorney at the Gainsburgh firm, testified that he filed a
disciplinary complaint against respondent regarding his conflicted representation of
Mr. Taylor and Lawan. He indicated that he and o ther attorneys repeatedly told
respondent that he could not represent both Mr. Taylor and Lawan. Respondent
stated that he had Mr. Taylor and Ms. Hodges sign waivers of the conflict of interest,
and Mr. Ecuyer told him the conflict of interest was not waivable. In Mr. Ecuyer’s
opinion, respondent was unable to understand the difference between a waivable and
an unwaivable conflict.
After the settlement, respondent insisted he was due a fee for his
representation of Lawan. Therefore, Mr. Ecuyer and Lawan’ s other attorneys filed
a motion asking the federal court to determine if respondent was conflict -free and,
thus, entitled to a fee for his representation of Lawan. Until the fee dispute was
resolved, the settlement funds were held in trust, which delayed the disbursement of
Lawan’s portion of the settlement for eight or nine months.

LUKE FONTANA’S TESTIMONY
Mr. Fontana testified that he has never spoken with respondent and was not
retained to represent him. He also testified that he had never seen and did not sign
the motions for continuance purportedly filed by him in this matter. He had no
knowledge of whether his paralegal had ever spoken to respondent and never spoke
to his paralegal about respondent. Mr. Fontana further testified that he had no
knowledge of the $1,000 payment respondent purportedly made to his paralegal,

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never authorized his paralegal to collect $1,000 from respondent, and never received
the $1,000 from either respondent or his paralegal.
Mr. Fontana also testified that, at one po int, he discovered that his driver’s
license was missing and that his name had been falsely used in a manner indicating
he had appeared before a notary public. Additionally, he discovered unauthorized
intrusions into his computer and bedroom, which he con cluded were likely
perpetrated by his paralegal.4 Finally, Mr. Fontana indicated that, at some point, he
never heard from the paralegal again.

Hearing Committee Report
After considering the testimony and evidence presented at the two hearings,
the hearing committee made factual findings consistent with the factual allegations
set forth in the formal charges and in the underlying facts section above.
Additionally, the committee found the following:
• Respondent disregarded the requirement of a conflict -free representation of
Mr. Taylor and Lawan, jeopardizing their constitutional Sixth Amendment
rights;
• Respondent jeopardized their recovery of damages for their injuries;
• Respondent caused additional work by and placed additional burdens upon
legal counsel in at least two law firms who were required to prevent his
violation of the Rules of Professional Conduct;
• Respondent unnecessarily increased the workload of both the United States
District Court for the Eastern District of Louisiana and the United States Fifth
Circuit Court of Appeals;

4 In a sealed portion of the transcript, the ODC reported that Mr. Fontana’s paralegal had an
extensive criminal history in several states.

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• Respondent contributed to the erosion of trust in the integrity of the bar and
the judicial system;
• Respondent delayed, for approximately eight or nine months, the payment of
damages in the form of settlement funds t o three plaintiffs and their families
due to his persistent litigation;
• Respondent caused added expenses, including costs and attorney’s fees, for
all parties due to his motion to intervene in the federal court settlement and
his frivolous appeal to the United States Fifth Circuit Court of Appeals;
• Because of the increased attorney’s fees, respondent reduced the parties’
recoveries;
• Even if respondent believed he was represented at the May 11, 2022
disciplinary hearing, he has since learned he was not; yet he still has not
provided any mitigating evidence or an explanation for his absence at the
September 23, 2022 hearing;
• The medical note provided to the committee was presented by fraudulent
means either by respondent or by Mr. Fontana’s paralegal; responde nt has
provided no subsequent information regarding his absence, the fraudulent
filing, or his position as to the formal charges; and
• Despite the September 23, 2022 hearing, the committee is unable to reach a
conclusion as to whether respondent’s absence at the May 11, 2022 hearing
was due to his own attempted fraud or because he was a victim of Mr.
Fontana’s paralegal.
Based upon these facts, the committee determined respondent violated the
Rules of Professional Conduct as charged. T he committee then determined
respondent knowingly and intentionally violated duties owed to his clients, the legal
system, and the legal profession, which caused actual harm.

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The committee found the following aggravating factors are present: a
dishonest or selfish motive, 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 refusal to acknowledge the wrongful nature of the
conduct. In mitiga tion, the committee found the absence of a prior disciplinary
record and only moderate harm caused by his misconduct.
After further considering the court’s prior case law addressing similar
misconduct, the committee recommended respondent be suspended from the
practice of law for two years and one day, with one year deferred.
Respondent filed an objection to the hearing committee’s repor

Disciplinary Board Recommendation
After review, the disciplinary board determined that the hearing committee’s
factual findings were not manifestly erroneous and adopted same. Additionally, the
board found the following:
• During the ODC’s investigation, respondent was scheduled to provide his
sworn statement on September 10, 2020. Respondent requested the sworn
statement be postponed so he could obtain counsel. During his rescheduled
sworn statement on October 5, 2020, which was almost one year after he
received notice of the disciplinary complaint, respondent admitted that he had
made no effort to retain an attorney to represent him;
• Also during his sworn statement, respondent admitted that he knew Mr.
Taylor may have some fault in the accident; however, respondent never
disclosed to his clients that an unwaivable conflict of interest would exist in
representing both Mr. Taylor and Lawan;

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• When asked during his sworn statement why he had the civil lawsuit that was
removed to federal court dismissed, respondent indicated that it was because
there may have been conflicts of interest;
• On May 10, 2022, one day before the formal hearing in this matter, the board
contacted respondent, but he refused to speak with the board, claiming advice
of counsel even though he had not spoken to his purported counsel (Mr.
Fontana) at the time of or even after this false representation; and
• On August 26, 2022, the ODC served respondent with a subpoena duces
tecum for the production of documents related to Mr. Fontana’s alleged
representation. R espondent did not produce any documents by or after the
September 15, 2022 deadline, nor did he provide an explanation for his failure
to comply with the subpoena duces tecum or for his absence from the
September 23, 2022 hearing.
Based upon these facts, the board determined respondent violated Rules 1.4,
1.7(a), and 8.4(d) of the Ru les of Professional Conduct as alleged in the formal
charges and as found by the committee. The board, however, determined that the
committee erred in finding a violation of Rule 3.3, finding that the citing of this
alleged rule violation in the formal ch arges appeared to be a typographical error.
Instead, the board determined that the ODC intended to cite Rule 3.1 (meritorious
claims and contentions) because he sought to intervene in the federal litigation so he
could improperly receive attorney’s fees for his conflicted representation of Lawan.
The board then determined respondent knowingly and intentionally violated
duties owed to his clients, the legal system, and the legal profession, which caused
actual harm. Based upon the ABA’s Standards for Imposing Lawyer Sanctions, the
board determined the baseline sanction is suspension.
The board found the following aggravating factors are present: a prior
disciplinary record (a 2002 diversion for settling a case without the client’s consent),

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a dishonest or selfish motive, a pattern of misconduct, multiple offenses, bad faith
obstruction of the disciplinary proceeding by intentionally failing to comply with the
rules or orders of the disciplinary agency, refusal to acknowledge the wrongful
nature of the cond uct, and substantial experience in the practice of law (admitted
1989). The board found no mitigating factors present.
After further considering the court’s prior case law addressing similar
misconduct, the board recommended respondent be suspended from the practice of
law for two years and one day, with one year deferred.
Neither respondent nor the ODC filed an objection to the board’s report and
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.
The record of this matter supports a finding that respondent failed to
adequately communicate with his clients, engaged in a conflict of interest, attempted
to collect an impermissible fee, and engaged in conduct prejudicial to the
administration of justice. Based upon these facts, respondent violated Rules 1.4,
1.7(a), 3.1, and 8.4(d) of the Rules of Professional Conduct.
Having found evidence of pro fessional 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 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 caused actual harm by knowingly and intentionally violating
duties owed to his clients, the legal system, and the legal profession. We agree with
the disciplinary board that the baseline sanction is suspension. We also agree with
the board’s assessment of aggravating and mitigating factors.
Turning to the issue of an appropriate sanction, we find guidance from In re:
Bellaire, 22-1084 (La. 9/27/22), 347 So. 3d 143, and In re: Lapeyrouse , 22-0571
(La. 10/21/22), 352 So. 3d 59. In Bellaire, an attorney represented the buyer and the
seller with respect to a property transfer without obtaining a waiver of the conflict
of interest, which resulted in actual harm to the buyer when the sale fell through.
The attorney then failed to cooperate with the ODC’s investigation of the matter.
For this negl igent and knowing misconduct, we suspended the attorney from the
practice of law for six months, with all but ninety days deferred. In Lapeyrouse, an
attorney engaged in a conflict of interest by providing legal advice to both his client
and his client’s estranged wife in connection with their divorce and by disclosing
confidential information to his client’s estranged wife. The attorney then filed a
defamation lawsuit against his client and another witness based upon the information
they provided to the ODC regarding his conflict of interest. For this knowing
misconduct, we suspended the attorney from the practice of law for one year, with
six months deferred.
Arguably, respondent’s misconduct is more egregious than the misconduct
found in Bellaire and Lapeyrouse. Respondent never adequately explained the
conflict of interest to the clients and inappropriately obtained a waiver of an
unwaivable conflict. He also attempted to obtain a fee he was barred from receiving

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because of the conflict and filed frivolous pleadings, all of which delayed the parties’
receipt of their settlement funds for months. Respondent’s delaying tactics spilled
over into the disciplinary proceedings, and he failed to appear at both disciplinary
hearings without explanation.
Under these circumstances, a sanction requiring a formal application for
reinstatement is warranted. Accordingly, we will adopt the board’s recommendation
and suspend respondent from the practice of law for two years and one day, with one
year deferred.

DECREE
Upon review of the findings and recommendation of the hearing committee
and the disciplinary board, and considering the record, it is ordered that Kenneth M.
Plaisance, Louisiana Bar Roll number 19738, be and he hereby is suspended from
the practice of law for a period of two years and one day, with one year deferred.
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 thir ty days
from the date of finality of this court’s judgment until paid.