In Re: Paul E. Brown

Supreme Court of Louisiana
FOR IMMEDIATE NEWS RELEASE NEWS RELEASE #043

FROM: CLERK OF SUPREME COURT OF LOUISIANA

The Opinions handed down on the 18th day of September, 2018, are as follows:

PER CURIAM:

2017-B-1930 IN RE: PAUL E. BROWN

Upon review of the findings and recommendations of the hearing
committee and disciplinary board, and considering the record,
briefs, and oral argument, it is ordered that Paul Eugene Brown,
Louisiana Bar Roll number 1736, be and he hereby is suspended
from the practice of law for a period of one year and one day.
It is further ordered that all but ninety days of this suspension
shall be deferred, subject to a two-year period of probation and
the other conditions set forth in this opinion. Any failure to
comply with these conditions or other misconduct during the
probationary period may be grounds for making the deferred
portion of the suspension executory or imposing other discipline
as appropriate. 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.

WEIMER, J., dissents for the reasons assigned by Crichton, J.
HUGHES, J., dissents for the reasons assigned by Crichton, J.
CRICHTON, J., dissents and assigns reasons.

09/18/18

SUPREME COURT OF LOUISIANA

NO. 2017-B-1930

IN RE: PAUL E. BROWN

ATTORNEY DISCIPLINARY PROCEEDING

PER CURIAM

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

Disciplinary Counsel (“ODC”) against respondent, Paul E. Brown, an attorney

licensed to practice law in Louisiana.

UNDERLYING FACTS

In 2012, respondent was involved in an automobile accident that caused

injuries to the driver of the other vehicle. Respondent was under the influence of a

prescription drug, butalbital with codeine, at the time of the accident. Respondent

was arrested and charged with second offense DWI, 1 careless operation of a motor

vehicle, obstruction of justice, and vehicular negligent injuring.

In August 2013, respondent pleaded no contest to DWI, careless operation,

and vehicular negligent injuring. For each count, he was sentenced to serve six

months in the parish jail, with credit for time served; the sentence was suspended

and respondent was placed on unsupervised probation for six months with

conditions, including payment of a fine plus costs and completion of community

service.

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Respondent was first arrested for DWI in 2003. He was placed on probation in connection with
that offense. In 2004, the Terrebonne Parish District Attorney’s Office nolle prosequied the
charges. The ODC was not aware of this arrest.

Following his conviction, the ODC referred respondent to the Judges and

Lawyers Assistance Program (“JLAP”) for an evaluation. In February 2014,

respondent was evaluated by a clinical psychologist, Alexandra Casalino, Psy.D. Dr.

Casalino expressed concern about respondent’s long history of prescribed opioid

usage beginning in 1996 for chronic headaches, TMJ, and neck pain, and his use of

psychotropic medications (Prozac) for sleep disturbances and depressive

experiences. Respondent denied abusing prescription drugs and indicated to Dr.

Casalino that he did not believe he had a problem. Based on the information

gathered by Dr. Casalino, she concluded that a definitive diagnosis of substance

abuse or dependence could not be made, and she recommended that respondent

undergo an inpatient professional assessment at a JLAP-approved facility.

In April 2015, respondent was admitted to Palmetto Addiction Recovery

Center for a three-day inpatient evaluation. According to the April 30, 2015

discharge report, respondent “easily met criteria” of the DSM-IV for diagnoses of

sedative/hypnotic use disorder, moderate to severe, and opiate use disorder,

moderate to severe. He used larger amounts of opiates and sedative/hypnotics over

a longer time than intended, and was unable to cut down or stop using over the past

several years. He described social and occupational dysfunction related to his drug

usage and used while engaged in physically hazardous activities (driving). He also

used opiates and sedative/hypnotics with a concurrent diagnosis of hypertension and

while on medication for hypertension. Finally, the report indicated that respondent

had developed a tolerance and experienced mild withdrawal symptoms from his

substance use. Accordingly, Palmetto recommended that respondent complete a

long-term inpatient treatment program followed by the execution of a five-year

JLAP recovery agreement. Palmetto also recommended that respondent taper off all

controlled medications under medical supervision and that he complete inpatient

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treatment “before consideration for return to the practice of law.” Respondent

declined to comply with Palmetto’s recommendations.

DISCIPLINARY PROCEEDINGS

In September 2014, the ODC filed formal charges against respondent, alleging

that his conduct violated Rules 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) of the Rules of Professional

Conduct. Respondent answered the formal charges and essentially admitted his

misconduct, but requested a hearing in mitigation.

Mitigation Hearing

The hearing committee conducted the mitigation hearing over the course of

two days in August and November 2016. Respondent introduced documentary

evidence at the hearing, including: (1) two letters, dated June 13, 2014 and August

3, 2016, written by Todd Arcement, D.C., a chiropractor who treated respondent for

twenty years; (2) two letters, dated May 10, 2014 and August 1, 2016, written by

Michael Marcello, M.D., respondent’s primary physician who treated him for more

than thirty years; (3) the report prepared by Dr. Casalino following her evaluation of

respondent in February 2014; and (4) the report prepared by Jay Weiss, M.D., the

medical director of Palmetto, following respondent’s inpatient evaluation in April

2015.

Respondent testified that he has had a long-standing issue with chronic pain.

He has had headaches since he was a child, and in law school he developed TMJ. In

1996 he suffered a serious neck injury after being hit by a drunk driver who had run

a stop sign. As a result, respondent had problems with headaches and neck pain.

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Respondent testified that ten years prior to that accident, he was rear-ended in

another automobile accident, but noted that it “wasn’t much of anything.” Then, in

2008, respondent was hit by a car while stopped at a red light. Finally, in 2015,

respondent was rear-ended while sitting in traffic. According to respondent, these

accidents aggravated his condition.

Respondent testified that Dr. Marcello and Dr. Arcement worked together to

manage his pain. Along with physical therapy and chiropractic care, respondent

tried “just about every kind of medication” to alleviate his problems. Then, in 2012,

he was given butalbital with codeine to help relax his muscles and help with the pain.

Respondent indicated that he took his medication as prescribed. Respondent

testified that the last time he took this medication was the night before the August

2012 accident; however, he also had been experiencing vertigo and high blood

pressure, which he felt were more likely causes of the accident than the medication.

Respondent testified that he has since discontinued the medication and has received

several epidural steroid injections. Respondent testified that since receiving the

injections in May, June, and July 2016, he has not taken any pain medication, muscle

relaxers, or anything else. Respondent testified that he “got relief from the very first

shot and then it got better the second shot and then the third.” Due to the success of

these shots, respondent testified that he now only takes blood pressure medicine.

Respondent denied that he has a drug problem warranting substance abuse

treatment or the requirement that he execute a JLAP agreement. Respondent

emphasized that in the past he has taken only pain medication prescribed to him by

“a doctor that knew my history for 30 years. And I took the medication as

prescribed.” Moreover, he reiterated that as of 2016, he is no longer taking any pain

medication. Respondent testified that he is sober at this time and does not need any

help in staying sober, as recommended by the professionals at Palmetto.

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Hearing Committee Report

Following the hearing, the hearing committee determined that for an extended

period of time, respondent has been dependent upon, if not addicted to, opiates and

sedatives, for which he had developed a high tolerance. His addiction was such that

he had developed withdrawal from the medications. While recognizing that

respondent has recently made vast improvements in limiting his prescription drug

usage, the committee nonetheless recommended that respondent execute a five-year

JLAP recovery agreement as a condition of a fully deferred one year and one day

suspension.

Respondent filed an objection to the sanction and conditions recommended

by the hearing committee.

Disciplinary Board Recommendation

After review, the disciplinary board determined that the hearing committee

erred in finding that respondent had experienced withdrawal symptoms.

Additionally, the board noted that respondent stopped using pain medication several

months prior to the hearing and has had success with alternative treatments to

manage his pain.

Therefore, the board recommended that respondent be suspended from the

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

of probation. Given the change in circumstances since respondent’s last evaluation

at Palmetto in 2015, the board also recommended that he undergo an updated

substance abuse evaluation at a JLAP-approved facility and comply with whatever

conditions are recommended pursuant to that evaluation.

The ODC filed an objection to the board’s recommendation, and accordingly,

the case was docketed for oral argument pursuant to Supreme Court Rule XIX, §

11(G)(1)(b). The ODC noted that the board had failed to set forth a time period

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within which respondent was required to undergo the updated evaluation, and that

the recommended two-year probationary term failed to allow for an increased term

of supervision should such be required following the evaluation. In his brief to this

court, respondent also objected to the board’s recommendation insofar as it requires

him to undergo another substance abuse evaluation. He claimed that since the first

evaluation at Palmetto in 2015, he has pursued alternative treatments for his chronic

pain and is free of using opiates.

Interim Order of the Court

Following oral argument, we issued an interim order on May 14, 2018 which

provided, in pertinent part:

IT IS ORDERED that within thirty days of the date of this
order, respondent shall submit to an updated substance
abuse evaluation at a facility approved by the Judges and
Lawyers Assistance Program. Following the evaluation,
the parties shall cause a copy of the report of the evaluation
to be filed in this court as soon as practicable.

IT IS FURTHER ORDERED that the record of this matter
shall be held open pending the filing of the report of the
evaluation. The parties may file supplemental briefs
addressing the report within ten days of the filing thereof.

On June 11, 2018, respondent submitted to a three-day evaluation at the

Professionals’ Wellness Evaluation Center (“PWEC”) in Alexandria, a facility

approved by JLAP. On June 20, 2018, PWEC released its report, indicating that

respondent’s hair test was positive for opiates, despite his claim that he was no longer

taking opioid pain medication, and that respondent has an untreated substance use

disorder which will require long-term inpatient treatment at a JLAP-approved

facility.

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On June 29, 2018, the ODC forwarded the PWEC report to this court. By

order dated July 5, 2018, we formally received the report into evidence. Thereafter,

both parties filed responses to the PWEC report.

In its response, the ODC suggests that respondent has not been truthful

concerning his continuing use of prescription drugs and that a fully deferred

suspension is no longer appropriate in light of his untreated substance abuse issues.

Rather, the ODC urges the court to impose a one year and one day suspension, with

no portion thereof deferred.

In his response, respondent states that he suffered severe pain after falling in

his kitchen in January 2018, causing injuries to his head, neck, and back. To relieve

the pain, he took the remains of an old prescription for hydrocodone that he had in

his medicine cabinet. However, respondent represents that he did not disclose his

use of hydrocodone when he was evaluated at PWEC in June 2018 because he did

not recall this accident; instead, his memory of the accident was only triggered when

he received the results of his hair test, which was positive for recent use of

hydrocodone. Respondent concludes that he is willing to undergo regular “stand

alone” monitoring for drug and alcohol use, but that he is not in need of inpatient

substance abuse treatment.

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. While we are not bound in any way 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:

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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 of this matter supports a finding that respondent pleaded no contest

to first offense DWI, careless operation of a motor vehicle, and vehicular negligent

injuring. This conduct is a violation of the Rules of Professional Conduct as charged.

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 negligently violated duties owed to the public and the legal

profession, causing potential and actual harm. The baseline sanction for this type of

misconduct is suspension.

There are several mitigating factors supported by the record, including the

absence of a prior disciplinary record, absence of a dishonest or selfish motive,

personal or emotional problems, character and reputation, remorse, and the

imposition of other penalties or sanctions. Moreover, there is no evidence to indicate

that any client was adversely impacted by respondent’s conduct. In aggravation,

respondent has substantial experience in the practice of law (admitted 1983) and has

engaged in illegal conduct.

In In re: Baer, 09-1795 (La. 11/20/09), 21 So. 3d 941, we stated the following

with respect to appropriate sanctions for DWI offenses:

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We have imposed sanctions ranging from actual periods
of suspension to fully deferred suspensions in prior cases
involving attorneys who drive while under the influence
of alcohol. However, as a general rule, we tend to
impose an actual suspension in those instances in which
multiple DWI offenses are at issue, as well as in cases in
which the DWI stems from a substance abuse problem
that appears to remain unresolved. [Emphasis added.]

In this case, respondent, like a growing number of people in our country,

developed an addiction to medications that were validly prescribed by his physician

to relieve severe and chronic pain. As shown by the PWEC evaluation, he clearly

requires long-term inpatient treatment to successfully address this unfortunate

disease, but thus far he has been reluctant to agree to participate in such treatment.

In order to fulfill our role of ensuring the public is protected, we conclude it is

necessary to fashion a suspension which is responsive to respondent’s current

misconduct and provides him with an adequate opportunity to address his substance

abuse issues so he may safely practice law in the future.

Accordingly, we will suspend respondent from the practice of law for one year

and one day. In view of the mitigating factors, we will defer all but ninety days of

this suspension, subject to a two-year probationary period and with the condition

that during the active period of his suspension, respondent shall enter into long-term

inpatient treatment at a JLAP-approved facility, as recommended by PWEC.

Thereafter, he shall comply with any and all recommendations made by the

treatment facility and JLAP, including, but not limited to, entering into a JLAP

recovery agreement. Should respondent fail to comply with any of these conditions

or commit any misconduct during the probationary period, the ODC shall have the

right to file a summary petition in this court requesting that the deferred portion of

respondent’s suspension be made immediately executory, or requesting other relief

as appropriate.

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DECREE

Upon review of the findings and recommendations of the hearing committee

and disciplinary board, and considering the record, briefs, and oral argument, it is

ordered that Paul Eugene Brown, Louisiana Bar Roll number 1736, be and he hereby

is suspended from the practice of law for a period of one year and one day. It is

further ordered that all but ninety days of this suspension shall be deferred, subject

to a two-year period of probation and the other conditions set forth in this opinion.

Any failure to comply with these conditions or other misconduct during the

probationary period may be grounds for making the deferred portion of the

suspension executory or imposing other discipline as appropriate. 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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09/18/18

SUPREME COURT OF LOUISIANA

NO. 17-B-1930

IN RE: PAUL E. BROWN

ATTORNEY DISCIPLINARY PROCEEDINGS

WEIMER, J., dissents for reasons assigned by Justice Crichton.

09/18/18

SUPREME COURT OF LOUISIANA

No. 2017-B-1930

IN RE: PAUL E. BROWN

ATTORNEY DISCIPLINARY PROCEEDING

Hughes, J., dissents for the reasons assigned by Crichton, J.

09/18/18

SUPREME COURT OF LOUISIANA

No. 17-B-1930

IN RE: PAUL BROWN

ATTORNEY DISCIPLINARY PROCEEDING

CRICHTON, J., dissents and assigns reasons:

I dissent in what I believe is a premature disposition of respondent’s case. The

majority’s per curiam ignores respondent’s prayer for an opportunity to be heard as

to the January 2018 incident and the June 2018 PWEC report. Specifically, in my

view, respondent should be allowed the opportunity to confront and cross-examine

the methodology and results of the test as well as an opportunity to provide an

explanation under oath as to these issues. Anything less offends fundamental due

process, which we must extend to all parties, including lawyers. Accordingly, in

lieu of immediately implementing sanctions, I would instead remand the matter for

an evidentiary hearing.