In Re: Elise Marybeth Lamartina

Supreme Court of Louisiana
FOR IMMEDIATE NEWS RELEASE NEWS RELEASE #059

FROM: CLERK OF SUPREME COURT OF LOUISIANA

The Opinions handed down on the 6th day of December, 2017, are as follows:

PER CURIAM:

2017-B -0430 IN RE: ELISE MARYBETH LAMARTINA

Upon review of the findings and recommendations of the hearing
committee and disciplinary board, and considering the record, the
brief filed by the ODC, and oral argument, it is ordered that
Elise Marybeth LaMartina, Louisiana Bar Roll number 30583, be and
she hereby is suspended from the practice of law for three 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.

CLARK, J., dissents.
CRICHTON, J., dissents and assigns reasons.

12/06/17

SUPREME COURT OF LOUISIANA

NO. 2017-B-0430

IN RE: ELISE MARYBETH LaMARTINA

ATTORNEY DISCIPLINARY PROCEEDING

PER CURIAM

This disciplinary matter arises from formal charges filed by the Office of

Disciplinary Counsel (“ODC”) against respondent, Elise Marybeth LaMartina, an

attorney licensed to practice law in Louisiana, but currently suspended from practice.

PRIOR 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 2006. In 2010, we suspended respondent from the practice of

law for one year and one day, fully deferred, subject to a two-year period of

unsupervised probation with conditions. In re: LaMartina, 10-0093 (La. 7/2/10), 38

So. 3d 266 (“LaMartina I”). During the probationary period, however, respondent

engaged in additional misconduct. She was arrested for shoplifting on October 5,

2011 (stemming from the theft of $166.87 in merchandise from a Target store in

Covington, Louisiana) and she was twice arrested on civil attachments issued in two

civil cases in which she was the defendant. For these violations of the Rules of

Professional Conduct, we revoked respondent’s probation and immediately made

executory the previously deferred one year and one day suspension imposed in

LaMartina I. In re: LaMartina, 12-0892 (La. 5/25/12), 89 So. 3d 1164 (“LaMartina

II”). Respondent has not yet sought reinstatement from her suspension in LaMartina

II. As such, she 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

In January 2015, respondent was arrested for shoplifting hair dye, which was

valued at $7.29, from a Rouses Supermarket in Mandeville, Louisiana. Respondent

was ultimately charged with misdemeanor theft of goods. In October 2015,

respondent pleaded guilty to this charge as well as the 2011 shoplifting charge

previously discussed.

When the ODC received notice of respondent’s 2015 arrest, it sent her three

separate letters requesting she provide a written explanation of her conduct. Two of

the letters were sent via certified mail, and one letter was sent via regular mail. Only

one of the letters was returned, unclaimed. Respondent never filed a written

response to the ODC’s letters.

DISCIPLINARY PROCEEDINGS

In February 2016, the ODC filed formal charges against respondent, alleging

that her conduct as set forth above violated the following provisions of the Rules of

Professional Conduct: Rules 8.1(b) (knowing failure to respond to a lawful demand

for information from a disciplinary authority), 8.1(c) (failure to cooperate with the

ODC in its investigation), 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 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

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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 on sanctions, the

hearing committee determined the factual allegations in the formal charges are

deemed admitted and proven by clear and convincing evidence. The factual

allegations are further corroborated by the documentary evidence submitted by the

ODC. The committee concluded that these facts establish respondent violated the

Rules of Professional Conduct as charged.

The committee determined that respondent violated duties owed to the public

and the legal profession. Her conduct caused actual harm to the store from which

she shoplifted and to the legal profession. After considering the ABA’s Standards

for Imposing Lawyer Sanctions, the committee determined that the baseline sanction

is disbarment.

In aggravation, the committee found a prior disciplinary record, a dishonest

or selfish motive, a pattern of misconduct, multiple offenses, and illegal conduct.

The committee found no mitigating factors present.

Under these circumstances, the committee recommended respondent be

disbarred.

Neither respondent nor the ODC filed an objection to the hearing committee’s

report and recommendation. Respondent made her first appearance in this matter at

subsequent oral argument before a panel of the disciplinary board, where she

presented evidence in mitigation. Although she alleged that she only first became

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aware of this matter on the morning of oral argument, she did not file a motion to

vacate the deemed admitted order.

Disciplinary Board Recommendation

After review, the disciplinary board found that the factual allegations in the

formal charges have been deemed admitted and proven. The board also found that

the hearing committee correctly applied the Rules of Professional Conduct.

The board determined that respondent intentionally violated duties owed to

the public and the legal profession. Her conduct caused actual harm to the store

from which she shoplifted, as well as to the legal system, the legal profession, and

the attorney disciplinary system. Like the committee, the board determined that the

baseline sanction is disbarment. The board also agreed with the aggravating factors

found by the committee and agreed that no mitigating factors are present.

Turning to the issue of an appropriate sanction, the board noted that Louisiana

case law contains little precedent for disciplining attorneys who are guilty of

shoplifting. As such, the board looked to other states’ case law addressing similar

misconduct. In particular, the board cited three cases decided by the Ohio Supreme

Court. The first case, Cincinnati Bar Ass’n v. Moore, 36 N.E. 3d 171 (Ohio 2015),

addressed an attorney’s two instances of shoplifting, for which the Ohio Supreme

Court imposed a two-year suspension from the practice of law, with one year

deferred, subject to conditions. The second case, Toledo Bar Ass’n v. Lockhart, 701

N.E. 2d 686 (Ohio 1998), addressed an attorney’s two shoplifting convictions as

well as the attorney’s tampering with her second arrest record; for this misconduct,

the attorney was suspended from the practice of law for two years, with one year

deferred. In the last case, Cincinnati Bar Ass’n v. Fidler, 700 N.E. 2d 323 (Ohio

1998), an attorney was suspended from the practice of law for eighteen months, with

twelve months deferred, for two shoplifting convictions. The board determined that

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in light of respondent’s prior disciplinary record, a two-year suspension is the

minimum sanction that should be imposed here.

Accordingly, the board recommended respondent be suspended from the

practice of law for three years. The board also expressed its hope that respondent

will seek the services of the Judges and Lawyers Assistance Program. Two board

members dissented and would recommend disbarment.

The ODC filed an objection to the disciplinary board’s recommendation.

Accordingly, the case was docketed for oral argument pursuant to Supreme Court

Rule XIX, § 11(G)(1)(b). Respondent failed to file a brief and therefore waived her

right to oral argument; however, she did make an appearance on the day of oral

argument, and she was permitted to present argument to the court.

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. Supreme 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 charges 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

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that flow from the admitted factual allegations. In re: Donnan, 01-3058 (La.

1/10/03), 838 So. 2d 715.

The record in this deemed admitted matter supports a finding that respondent

pleaded guilty to two shoplifting charges and failed to cooperate with the ODC in its

investigation. In light of this misconduct, 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 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 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 intentionally violated duties owed to the public and the legal

system, causing actual harm. We agree with the hearing committee and the

disciplinary board that pursuant to the ABA Standards, the baseline sanction in this

matter is disbarment. We also agree with the aggravating factors, and lack of

mitigating factors, found by both the committee and the board.

Like the board, we found little guidance from this court’s prior jurisprudence

addressing similar misconduct. However, the Ohio cases cited by the board are

persuasive in suggesting that a suspension is the appropriate sanction. Accordingly,

we will adopt the board’s recommendation and suspend respondent from the practice

of law for three years.

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DECREE

Upon review of the findings and recommendations of the hearing committee

and disciplinary board, and considering the record, the brief filed by the ODC, and

oral argument, it is ordered that Elise Marybeth LaMartina, Louisiana Bar Roll

number 30583, be and she hereby is suspended from the practice of law for three

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.

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12/06/17

SUPREME COURT OF LOUISIANA

NO. 2017-B-0430

IN RE: ELISE MARYBETH LaMARTINA

ATTORNEY DISCIPLINARY PROCEEDING

CRICHTON, J., dissents and assigns reasons

I disagree with the majority’s imposition of a three-year suspension in this

matter, as I find respondent’s conduct, coupled with her lack of cooperation with and

flippancy towards her disciplinary proceedings (a violation of La. RPC Rule 8.1(c)

itself), warrants disbarment. The committee and the board in this instance

determined the baseline sanction is disbarment, and I find there is scant support for

any downward departure from that recommendation. Not only are the aggravating

factors in this case serious, but both the committee and the board found zero

mitigating factors in respondent’s case. For these reasons, I would impose

disbarment.