Supreme Court of Louisiana
FOR IMMEDIATE NEWS RELEASE NEWS RELEASE #017
FROM: CLERK OF SUPREME COURT OF LOUISIANA
The Opinions handed down on the 15th day of March, 2017, are as follows:
PER CURIAMS:
2016-B-1848 IN RE: ASHTON R. O'DWYER
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 the name of Ashton R. O'Dwyer,
Louisiana Bar Roll number 10166, be stricken from the roll of attorneys
and that his license to practice law in the State of Louisiana be
revoked. Pursuant to Supreme Court Rule XIX, ' 24(A), it is further
ordered that respondent be permanently prohibited from being
readmitted to the practice of law in this state. 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.
03/15/17
SUPREME COURT OF LOUISIANA
NO. 2016-B-1848
IN RE: ASHTON R. O’DWYER
ATTORNEY DISCIPLINARY PROCEEDINGS
PER CURIAM
This disciplinary matter arises from formal charges filed by the Office of
Disciplinary Counsel, through Disciplinary Counsel Ad Hoc Mark Dumaine
(“DCAH”), 1 against respondent, Ashton R. O’Dwyer, an attorney licensed to
practice law in Louisiana but currently on interim suspension for threat of harm to
the public.
UNDERLYING FACTS 2
Count I – The First Federal Court Complaint
On September 19, 2005, respondent filed a class action lawsuit in the United
States District Court for the Eastern District of Louisiana on behalf of victims of
Hurricane Katrina. This action was assigned to Judge Stanwood Duval. A related
case with a separate docket number became the “lead” case for all cases involving
victims of Hurricane Katrina. Judge Duval then organized all of the federal court’s
Katrina cases into broad groups and assigned a Plaintiffs’ Liaison Committee
(PLC) to coordinate the litigation with all other plaintiffs’ counsel, including
1
As will be discussed in this opinion, respondent filed suit against Chief Disciplinary Counsel
Charles Plattsmier and members of his staff. As a result, Mr. Plattsmier recused himself and his
office from handling the matter, and this court appointed Mark Dumaine as DCAH.
2
Although the formal charges against respondent are not set forth by count, we have enumerated
the facts in that fashion for ease of reference.
respondent.3 During these proceedings, respondent’s communications with the
federal court and with other counsel led then-Chief Judge Helen Ginger Berrigan
to lodge a disciplinary complaint against him with the federal court. The April
2008 complaint cited numerous specific allegations of violations of the Rules of
Professional Conduct that “are indicative although not exclusive of Mr. O’Dwyer’s
repetitive, unethical and unprofessional misconduct which has reached an
intolerable level.” The complaint included the following allegations of misconduct
against respondent:
• Violation of Rule 3.1 (meritorious claims and proceedings) – In 2005,
respondent filed suit under a litany of federal and state environmental
statutes without providing any factual basis whatsoever for his allegations.
The federal court described this filing as a “56-page, practically illegible
handwritten complaint full of ‘irrelevant rhetoric.’” In 2006, respondent
brought two more cases in which he again presented legal theories
unsupported by facts. The federal court noted that respondent had refused to
heed the court’s previous warning not to employ a “buckshot” approach to
jurisdiction and imposed sanctions of $7,058 against respondent.
• Violation of Rule 3.3 (false statement of material fact or law to a tribunal) –
Respondent made false statements of fact to the tribunal in a 2008 motion
for disqualification or recusal of Judge Duval when he alleged that Judge
Duval had not disclosed his relationship with attorney Calvin Fayard. In
3
Meanwhile, in a separate federal lawsuit filed by respondent, he contended that, within twelve
hours of filing the complaint in the Katrina class action litigation, the Louisiana State Police
forcibly abducted him from his home in the middle of the night and delivered him to a temporary
detention facility at the Union Passenger Terminal (“Camp Amtrak”), where he was shot with
“bean bag rounds” from a twelve-gauge shotgun, blasted with pepper spray, and held in a small
cage. To this day, respondent believes there is a connection between what he describes as this
“gangland-style ‘hit’” ordered on him by “someone” and the “‘treatment’ I have enjoyed in the
‘Victims of KATRINA’ litigation, courtesy of the lawyers within the Louisiana Department of
‘Injustice,’ courtesy of the Plaintiffs’ Liaison Committee, who are ‘supposed’ to be representing
me and my clients, and possibly even ‘courtesy’ of Judge Duval...”
In yet another federal lawsuit, respondent alleged that former Chief Justice Catherine
Kimball and Chief Disciplinary Counsel Charles Plattsmier were also involved in the conspiracy
against him, because he made statements to the news media after Hurricane Katrina that
embarrassed Justice Kimball. According to respondent, Justice Kimball told Mr. Plattsmier and
other state officials during a meeting on September 11, 2005 that “somebody has to shut that guy
up [referring to respondent]; he’s giving us all a bad name.” In response, Mr. Plattsmier
allegedly stated that he knew some of respondent’s law partners and would contact them to learn
more about him. Respondent claimed that these statements by Justice Kimball and Mr.
Plattsmier led to actions by others that culminated in his September 20, 2005 incarceration at
“Camp Amtrak” and his termination from his law firm on September 23, 2005. Respondent’s
suit against Justice Kimball and Mr. Plattsmier was dismissed by the United States Fifth Circuit
Court of Appeals in February 2009.
2
fact, Judge Duval had disclosed his relationship with Mr. Fayard in 2006,
and respondent had made no objection.4
• Violation of Rule 1.4 (failure to communicate with a client) and Rule 3.4(c)
(knowing disobedience of an obligation under the rules of a tribunal) –
Respondent failed to keep his clients reasonably informed about the status of
their case when he refused to comply with an order requiring that he provide
them with copies of the ruling denying his motion to disqualify Judge Duval.
In response to the order, respondent filed a declaration stating that “this
Court does not have the authority to require him to comply with such an
order, which constitutes an unwarranted intrusion into the relationship
between him and his clients, which is none of the Court’s business.”
• Violation of Rule 3.5(d) (engaging in conduct intended to disrupt a tribunal)
– Respondent used abusive language toward the federal court in the
following instances: (1) regarding Judge Duval’s conclusions that a pleading
filed by respondent was duplicative and frivolous and should be stricken
from the record, respondent stated that Judge Duval acted “for an illicit
purpose,” (2) respondent stated that the PLC was “anointed” by Judge
Duval, whom he implied was corrupt, (3) regarding two members of the
PLC, respondent alleged that “these very same lawyers, who are ‘supposed’
to be representing the interests of ‘the Class,’ including me and my clients,
HAVE BEEN SLEEPING WITH THE DEVIL, namely the State of
Louisiana and its Department of ‘Injustice,’ all behind my back!” [Emphasis
in original], (4) respondent stated that the Louisiana Attorney General was
corrupt and that Judge Duval’s opinion was prejudiced due to a conflict of
interest, and (5) regarding Judge Duval’s conclusions that a motion filed by
respondent was untimely and legally insufficient, respondent contended that
Judge Duval’s conclusions were “disingenuous,” and that Judge Duval failed
to “do the right thing,” and in fact “did the absolute wrong thing.”
• Violation of Rule 4.4(a) (respect for rights of third persons) – Respondent
filed motions for sanctions against other attorneys that were motivated by
retaliatory intent and that were based on unfounded assertions. Respondent
accused attorney Michael Riess of destroying evidence and implied that he is
morally depraved. Respondent’s motion for sanctions against the Louisiana
Department of Justice (LDOJ) appeared to have had no substantial purpose
beyond harassing and embarrassing the State. He provided no support for
his contentions that the LDOJ would suborn perjury and commit obstruction
of justice if permitted to remain in the case. Similarly, respondent filed a
retaliatory motion for sanctions against Washington Group International,
Inc., accusing the firm’s counsel of lying and misrepresenting facts at a
hearing.
• Violation of Rules 8.4(a) (violation of the Rules of Professional Conduct),
8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or
misrepresentation), 8.4(d) (engaging in conduct prejudicial to the
administration of justice), and 8.4(g) (threatening to present criminal or
disciplinary charges solely to obtain an advantage in a civil matter) –
Respondent threatened disciplinary sanctions against opposing counsel
4
Respondent was ultimately found by the federal court not to have violated Rule 3.3 as alleged
in connection with Judge Duval’s disclosure of his relationship with Mr. Fayard.
3
without supporting his allegations with any facts. Respondent filed a motion
for sanctions against Michael Riess in response to Mr. Riess’ motion for
sanctions against him. Respondent also used inappropriate, unprofessional
language in an e-mail to Mr. Riess: “Glad to know that you condone 12-
year-old girls giving birth to illegitimate children, and that you sanction
killing, looting, drug use and possession of illegal firearms, as well as
disrespect towards women.” Similarly, in response to a motion for sanctions
against him, respondent filed a motion to disqualify the LDOJ as counsel,
alleging that “lawyers within the LDOJ will commit obstruction of justice,
subornation of perjury and threaten further harm to and/or continue to
intimidate plaintiff’s counsel (which already has occurred)…”
Judge Berrigan’s complaint was referred to Judge Ivan Lemelle to conduct
proceedings and to submit findings and recommendations to the federal court en
banc regarding what action, if any, should be taken against respondent. At the
same time, respondent was ordered to show cause why discipline, including
suspension or disbarment, should not be imposed.
Respondent filed a response to the show cause order, alleging that the
disciplinary complaint filed against him was retaliatory in nature and “spawned by
O’Dwyer’s engaging in the following lawful, legitimate and totally ethical
professional activity,” namely filing the Katrina class action, filing a motion to
disqualify certain attorneys from serving on the PLC, and filing a motion to
disqualify Judge Duval. Respondent further denied that he engaged in any conduct
that violated the Rules of Professional Conduct cited in the complaint. Indeed,
respondent expressed no remorse for his conduct whatsoever.
After conducting a hearing in the matter, Judge Lemelle submitted his
findings and recommendations to the en banc federal court in October 2008.
Respondent then filed a motion to recuse Judge Lemelle. The motion was denied.
Respondent was then given an opportunity to file objections to Judge Lemelle’s
report, which he did.
On November 7, 2008, the federal court en banc issued an order rejecting
respondent’s objections as without merit and adopting Judge Lemelle’s findings
that respondent violated the Rules of Professional Conduct as alleged in the
4
complaint filed against him. The en banc order suspended respondent from the
practice of law before the federal court for five years, with two years on active
suspension and the remaining three years on probationary status. As conditions of
reinstatement, the en banc order required respondent to certify that he (1) has taken
significant and meaningful steps to bring his practice and behavior in court up to
the standards of ethics, civility, professionalism, and respect for the institutional
role of the court that are expected of the members of the bar, (2) has not been
accused of any other unethical or unprofessional conduct of any type within the
preceding two years, (3) has paid all outstanding monetary sanctions, and (4) has
successfully completed stress and anger management counseling/treatment with a
licensed counselor in that area. The en banc order prohibited respondent from
filing any further pleadings or documents with the federal court without first
paying all outstanding monetary sanctions imposed against him and without first
obtaining a judge’s permission to do so. Finally, respondent was required to notify
all clients of the en banc order, and to certify his compliance to the Chief Judge
within twenty days. The en banc order cautioned respondent that “failure to
comply with [the] Order may result in the imposition of further sanctions,
including disbarment.”
In response to the en banc order, respondent filed on November 11, 2008 a
pleading captioned “Declaration of His Intentionally Contemptuous Non-
Compliance with the Court’s Order of 11/07/08.” In this “Declaration,”
respondent advised the en banc federal court that “it may as well disbar him,
forever, because he has no intention of ever complying” with the requirements of
the suspension order. Indeed, respondent added, he would submit to the anger
management classes required by the en banc order “only upon the condition that
each Member of the Court first complete ‘charm school.’” Respondent’s
“Declaration” was subsequently stricken from the court record as a violation of the
5
express terms of the en banc order, i.e., the filing of a pleading without first paying
all outstanding monetary sanctions imposed against him and without first obtaining
a court order authorizing the filing.
Count II – The Second Federal Court Complaint
In December 2008, Chief Judge Sarah Vance lodged a second disciplinary
complaint against respondent with the federal court. The complaint arose out of
the “openly contemptuous statements” by respondent in his November 11, 2008
“Declaration,” which were alleged to constitute further willful violations by
respondent of both the en banc suspension order and the Rules of Professional
Conduct, as well as the following additional matters:
• On November 12, 2008, respondent had his legal secretary hand-deliver
three returns of service to the clerk of court to be filed in connection with a
lawsuit respondent filed against Judge Duval.
• On November 13, 2008, respondent faxed a letter to the clerk of court
requesting that transcripts of his disciplinary proceedings be placed on
PACER to make the public aware of the federal court’s “judicial and
professional misconduct.”
• On November 17, 2008, respondent hand-delivered a document to the
chambers of Judge Vance, in which he requested records reflecting how
each member of the federal court voted in connection with his disciplinary
hearing. The document further states, “I really would like to know precisely
what kind of ‘Kool Aid’ you and Judge Lemelle have been drinking.
Whatever you do, please keep it away from the other Judges, ...”
Respondent sent a copy of this letter to each member of the federal court.
• On November 19, 2008, respondent sent a facsimile of his November 17,
2008 letter to Judge Vance’s chambers. The cover letter of the fax,
addressed to the “‘Honorable’ Sarah S. Vance,” states, “You and the other
‘Black Robes’ at 500 Poydras Street are denying me and my clients due
process of law, and in the process violating 28 U.S.C. § 452, which is
criminalized by 18 U.S.C. § 242. None of you enjoys immunity from
criminal acts.”
• On November 20, 2008, respondent hand-delivered to the clerk of court a
motion styled “Plaintiff’s Pro Se Motion for Leave to File Pleadings” in
connection with his lawsuit against the State of Louisiana and other
defendants. The motion restates that the en banc suspension order is a
“violation of 28 U.S.C. § 452, which is criminalized by 18 U.S.C. § 242.”
6
Respondent attached to his filing a motion to compel and a memorandum
opposing a motion to dismiss filed by two of the defendants.
Each of these documents was alleged to violate the en banc suspension order, as
well as Rules 3.4(c) and 3.5(d) of the Rules of Professional Conduct. In addition,
respondent’s submissions dated November 13, 19, and 20, 2008 were alleged to
contain baseless allegations of criminal or unprofessional conduct by federal
judges, in violation of Rule 8.2(a), which prohibits a lawyer from making a
statement that the lawyer knows to be false or with reckless disregard as to its truth
or falsity concerning the integrity of a judge.
Finally, the en banc order also required respondent to notify each of his
clients in any case pending in the Eastern District of the en banc order, and to
certify his compliance with the notification requirement within twenty days.
Respondent was alleged to have violated the en banc order and Rule 3.4(c) by
failing to certify to the Chief Judge in writing that he complied with the
notification requirement within the allotted time.
Judge Vance’s complaint was referred to Judge Lemelle to conduct
proceedings and to submit findings and recommendations to the federal court en
banc regarding what action, if any, should be taken against respondent. At the
same time, respondent was ordered to show cause why discipline, including
disbarment, should not be imposed. In February 2009, after receiving respondent’s
response to the show cause order, Judge Lemelle submitted his findings and
recommendations to the en banc federal court. Respondent was then given an
opportunity to file objections to Judge Lemelle’s report, but he did not respond.
On March 4, 2009, the federal court en banc issued an order adopting Judge
Lemelle’s findings that respondent violated the Rules of Professional Conduct as
alleged in the complaint filed against him. The federal court en banc ordered that
respondent be disbarred from practicing law before that court. During the
7
disbarment period, respondent may not file pleadings or documents in any
proceeding before the federal court (whether existing or sought to be initiated,
including as a pro se litigant) without first paying all outstanding monetary
sanctions imposed against him and without first obtaining a judge’s permission to
do so. Respondent is also required to notify all clients of the en banc order, and to
certify his compliance to the Chief Judge within twenty-eight days. Respondent is
eligible to file a petition for reinstatement after the fifth year of disbarment, subject
to his fulfillment of certain conditions set forth in the en banc order.5
Count III – The McKernan Matter
In December 2008, attorney Jerry McKernan 6 filed a complaint against
respondent after he and all other counsel in the Katrina class action cases received
an e-mail from respondent containing racially offensive statements. The DCAH
alleges that by sending this e-mail to the Plaintiffs’ Liaison Counsel, respondent
knowingly violated the November 7, 2008 en banc order of the United States
District Court and violated the following provisions of the Rules of Professional
Conduct: Rules 8.4(a), 8.4(c), and 8.4(d).
Count IV – The E-Mail Matters
Over the course of several months between March and July 2009,
respondent sent numerous e-mails to the DCAH in which he threatened frivolous
civil rights and RICO lawsuits and used racial slurs, obscenities, and other
unprofessional and discourteous language. The slurs and obscenities were directed
to DCAH, opposing counsel, former Chief Justice Catherine Kimball, and Chief
Disciplinary Counsel Charles Plattsmier. The DCAH alleges that by sending these
5
These are generally the same conditions as were set forth in the earlier suspension order.
6
Mr. McKernan died on April 20, 2012.
8
e-mails, respondent violated the following provisions of the Rules of Professional
Conduct: Rules 3.1, 8.4(a), 8.4(c), and 8.4(d).
Count V – The Unauthorized Practice of Law Matter
On July 15, 2009, while respondent was suspended from the practice of law,
he filed a pleading captioned “Defendant’s Memorandum in Opposition to
Plaintiff’s Motion for Entry of Default Judgment” in the matter entitled “In re
Ocean-Oil Expert Witness, Inc. v. O’Dwyer,” bearing Docket Number 07-3129(B)
in the United States District Court for the Eastern District of Louisiana. The
motion was filed under the signature of respondent’s cousin, attorney Joseph W.P.
Hecker,7 and contained disparaging and racially offensive language. When Chief
Disciplinary Counsel Charles Plattsmier submitted an inquiry to Mr. Hecker
regarding this pleading, respondent acknowledged by mail that he had written the
pleading, took “full responsibility for the content of the language” in the pleading,
and acknowledged that he had signed the pleading in the name of his cousin. The
letter addressed to Mr. Plattsmier was replete with foul and obscene language.
The DCAH alleges that respondent’s conduct violates the following
provisions of the Rules of Professional Conduct: Rules 3.1, 5.5(a) (engaging in the
unauthorized practice of law), 8.4(a), 8.4(c), and 8.4(d).
Count VI – The Lemelle Letter
On July 27, 2009, respondent filed with the United States District Court for
the Eastern District of Louisiana a letter in which he used racially demeaning,
openly contemptuous, and derogatory language toward Judge Ivan Lemelle. As a
result of this correspondence, the court issued an order barring respondent’s access
to the federal courthouse at 500 Poydras Street in New Orleans.
7
Mr. Hecker died on April 24, 2012.
9
The DCAH alleges that respondent’s conduct violates the following
provisions of the Rules of Professional Conduct: Rules 3.4(c), 3.5(d), and 8.2(a).
Count VII – The Interim Suspension Matter
Respondent was notified of his March 30, 2009 interim suspension by e-
mail, facsimile transmission, and certified mail. He was also notified of his
obligation under Supreme Court Rule XIX, § 26 to notify all clients, adverse
parties, and opposing counsel of his suspension and his disqualification to act as a
lawyer after the effective date of the court’s order, and to return client property,
refund unearned fees, and withdraw from pending representations. To date,
respondent has failed to file the required affidavit of compliance, pursuant to Rule
XIX, § 26(H), or otherwise inform the court that he has provided the required
notifications.
The DCAH alleges that respondent’s conduct violates Rule 8.5(a) (a lawyer
admitted to practice in this jurisdiction is subject to the disciplinary authority of
this jurisdiction) of the Rules of Professional Conduct.
Count VIII – The Criminal Matter
On January 29, 2010, respondent sent an e-mail to the United States
Bankruptcy Court for the Eastern District of Louisiana. At the time of the e-mail,
respondent was the debtor in bankruptcy proceedings pending before Bankruptcy
Judge Jerry Brown. The apparent purpose of respondent’s e-mail was to obtain
leave from Judge Brown to pay for his anti-depressant medication out of his most
recent Social Security check. The full text of respondent’s e-mail is as follows:
Well, please convey to Judge Brown my belief that he
can “try” to protect the CRIMINALS Duval, Lemelle and
Dennis, but he can’t protect them from themselves, and
the “damage” is already done. As is the case with Judge
Porteous, their impeachment is “just a matter of time.”
10
Also convey to Judge Brown a reminder that I have been
totally without money since the weekend of January 8, 9,
and 10, and that I have been without my anti-depressant
medication, for which I have sought leave to pay
Walgreen’s from my most recent Social Security check,
since last weekend. I could not sleep last night, which I
attribute to the effects of abruptly stopping my
medication on Sunday, the 24th (my pills “ran out,” and I
have no money to purchase more). Maybe my creditors
would benefit from my suicide, but suppose I become
“homicidal?” Given the recent “security breach” at
500 Poydras Street, a number of scoundrels might be
at risk if I DO become homicidal. Please ask His
Honor to consider allowing me to refill my prescription
at Walgreen’s, and allowing me to pay them, which is a
condition for my obtaining a refill. Please communicate
this missive to creditors and their counsel. Thank you.
[Emphasis added.]
An employee of the Bankruptcy Court contacted the U.S. Marshals after receiving
respondent’s e-mail. Several hours later, respondent was taken into custody
outside his home, at which time a loaded pistol was recovered from his possession.
He was subsequently charged with the crime of interstate communications of a
threat to injure another, in violation of 18 U.S.C. § 875.
The DCAH alleges that respondent’s conduct violates the following
provisions of the Rules of Professional Conduct: Rules 3.4(c), 3.5(d), 8.2(a),
8.4(b), 8.4(c), and 8.4(d).
DISCIPLINARY PROCEEDINGS
In November 2008, the Office of Disciplinary Counsel opened an
investigative file concerning respondent’s conduct. Because respondent had filed
suit against Chief Disciplinary Counsel Charles Plattsmier and members of his
staff, Mr. Plattsmier recused his office from handling the matter and this court
appointed DCAH Mark Dumaine. On March 24, 2009, the DCAH filed a motion
in this court seeking respondent’s immediate interim suspension for threat of harm
to the public. Respondent filed no response to the motion. On March 30, 2009, we
11
granted the motion and placed respondent on immediate interim suspension. In re:
O’Dwyer, 09-0670 (La. 3/30/09), 6 So. 3d 744 (Kimball, C.J., recused).
In February 2010, the DCAH filed formal charges against respondent as set
forth above. In addition to the alleged violations of the Rules of Professional
Conduct, the DCAH also alleged that respondent violated his Lawyer’s Oath and
the Code of Professionalism of the Louisiana Supreme Court. The DCAH
recommended permanent disbarment for respondent’s misconduct.
At respondent’s request, the disciplinary proceedings were stayed pending
the disposition of the federal criminal charge against him for sending a threatening
interstate communication to the United States Bankruptcy Court for the Eastern
District of Louisiana. In September 2011, the United States Fifth Circuit Court of
Appeals affirmed the dismissal of the indictment by the district court on the ground
that respondent’s speech was not a true threat toward the bankruptcy court and,
therefore, was protected by the First Amendment. 8 United States v. O’Dwyer, 443
Fed. Appx. 18 (5th Cir. 2011) (unpublished).
Thereafter, the stay of the disciplinary proceedings was lifted and respondent
filed an answer to the formal charges denying any misconduct as charged by the
DCAH. He also pleaded various defenses to the allegations contained in the
formal charges and demanded strict proof on each charge. For the next three years,
pre-hearing and evidentiary issues (mostly raised by respondent) were ruled upon
by the hearing committee, and occasionally by the disciplinary board and this
court. The formal charge matter was finally set for hearing in November 2014.
8
The Fifth Circuit concluded that based upon the language of respondent’s e-mail, “and in light
of his documented history of using coarse and hyperbolic language in prior court proceedings,
that no reasonable jury could find that O'Dwyer’s communication constitutes a true threat.”
12
Formal Hearing
Respondent represented himself at the November 2014 hearing without
benefit of counsel. Both respondent and the DCAH introduced volumes of
documentary evidence. Respondent called Karl Florian Buchler as a witness (via
telephone) and testified on his own behalf and on cross-examination by the DCAH.
Additionally, the parties entered into various stipulations concerning the testimony
of witnesses who were not called.
Hearing Committee Report
After considering the evidence and testimony presented at the hearing, the
hearing committee adopted the factual findings of the federal court in its en banc
order of November 7, 2008, as well as the factual findings of Judge Lemelle in his
findings and recommendations issued on October 8, 2008. The committee also
adopted the factual findings of the federal court in its en banc order of disbarment
issued on March 4, 2009, as well as the factual findings of Judge Lemelle in his
report and recommendation issued on February 10, 2009. In addition, the
committee made the following factual findings:
On December 10, 2008, following his initial suspension from practice in the
federal district court, respondent sent an e-mail to Plaintiffs’ Liaison Counsel in the
Katrina Levee Breaches litigation. This e-mail contained racially offensive
statements.
On March 25, 2009, respondent sent an e-mail to DCAH in response to the
petition for interim suspension for threat of harm to the public filed by DCAH. In
the e-mail, respondent threatened to file frivolous civil rights and RICO lawsuits
and used unprofessional language towards DCAH, which demeaned a race of
people.
13
On March 27, 2009, respondent sent an e-mail to DCAH in which he had
attached a copy of a civil rights lawsuit filed against Chief Disciplinary Counsel
Charles Plattsmier, thereby threatening similar frivolous lawsuits against DCAH.
This e-mail also contained racial slurs and other obscenities.
On March 30, 2009, respondent confirmed his receipt by mail of the court’s
order of interim suspension by replying to the court’s Chief Deputy Clerk, and
copying DCAH, that the Court was a “bunch of pigs” and “gutless dogs,” and
referred to then-Chief Justice Kimball with a sexual and offensive nickname.
On April 8, 2009, respondent sent an e-mail to DCAH denying the use of
racially disparaging terms, yet including such terms along with other offensive
terms, in this e-mail. Later the same day, he notified DCAH that he was a “pimp,”
a “puppet,” an “Uncle Tom,” and an “OREO.”
On April 14, 2009, respondent sent an e-mail to DCAH with only a subject
line using the same objectionable terms. Later the same day, respondent notified
DCAH by e-mail that “I Just Can’t Help Myself” and then launched into a string of
racially offensive and obscene terms.
On April 15, 2009, respondent advised by e-mail sent to DCAH that he had
developed yet another nickname for him. This nickname was intended to be
equally offensive. Later that same day, respondent offered by e-mail to substitute a
new offensive nickname for the prior offensive nickname.
On April 26, 2009, respondent e-mailed DCAH and used a string of racially
offensive and obscene terms to communicate his message.
On April 27, 2009, respondent threatened by e-mail a frivolous civil rights
complaint against DCAH and suggested that counsel examine similar pleadings
respondent had already filed. He also referred to opposing counsel in these other
proceedings as “scum” and “vermin.”
14
On April 28, 2009, respondent threatened and advised DCAH via e-mail of
the frivolous claims respondent would seek, including criminal sanctions for
“misprision of a felony and accessory-after-the-fact.” This e-mail also contained
racial and other derogatory terms for DCAH, Justice Kimball, and Mr. Plattsmier.
On July 9, 2009, respondent sent an e-mail to DCAH to advise that he had
been thinking about him and about a “new one” for him. He then continued with a
racially offensive and crude message.
On July 15, 2009, respondent filed under the signature of his cousin, Joseph
W.P. Hecker, a pleading captioned “Defendant’s Memorandum in Opposition to
Plaintiff’s Motion for Entry of Default Judgment” in the matter entitled “In re:
Ocean-Oil Expert Witness, Inc. v. O’Dwyer,” C.A. No. 07-3129(B), United States
District Court for the Eastern District of Louisiana. This memorandum contained
disparaging and racially offensive remarks about Judge Lemelle. When Chief
Disciplinary Counsel Plattsmier made inquiry into this pleading of Attorney
Hecker, respondent acknowledged by mail that he took “full responsibility for the
content of the language” and noted that the “language was mine” in the pleading.
He further claimed that he had signed the pleading in the name of his cousin, Mr.
Hecker, with Mr. Hecker’s permission. The letter addressed to Mr. Plattsmier was
replete with foul and obscene language. These acts, which included the drafting
and signing of a legal motion for filing in federal court, were committed while
respondent was interimly suspended from the practice of law.
On July 27, 2009, in open contempt of the district court’s disbarment order,
respondent caused to be hand delivered to Judge Lemelle a handwritten note,
which he attached to a ruling by Judge Lemelle in a proceeding to which he was a
party. In the note, he used racially demeaning, openly contemptuous, and
derogatory terms towards Judge Lemelle. As a result of the correspondence, the
15
federal court issued an order barring respondent’s access to the federal courthouse
at 500 Poydras Street, New Orleans, Louisiana.
Respondent was notified of his March 30, 2009 interim suspension by the
Louisiana Supreme Court by e-mail, facsimile transmission, and certified mail. He
was also notified of his obligations under Supreme Court Rule XIX, § 26. The
record in this matter shows that respondent has not filed the required affidavit
demonstrating compliance with his obligations under Rule XIX, § 26.
On January 29, 2010, respondent sent an e-mail to the United States
Bankruptcy Court for the Eastern District of Louisiana. The e-mail read: “Maybe
my creditors would benefit from my suicide but suppose I become ‘homicidal?’
Given the recent ‘security breach’ at 500 Poydras Street, a number of scoundrels
might be at risk if I do become homicidal.” On the same day, respondent was
taken into custody, and a loaded pistol was recovered from his possession. He was
indicted and charged with the crime of interstate communications of a threat of
injury to another pursuant to 18 U.S.C. § 875. The indictment was later dismissed
by the federal district court. This ruling was upheld by the United States Fifth
Circuit Court of Appeals on September 27, 2011.
Respondent has complied with none of the conditions surrounding the
suspension and subsequent disbarment imposed upon him in federal court.
Instead of addressing what forms the basis of these formal charges –
respondent’s conduct during the Katrina litigation and his conduct during the
disciplinary proceeding at hand – respondent instead has focused primarily on what
he believes to be a conspiracy theory surrounding his arrest on September 20, 2005
and the “secret representation of the State” by Calvin Fayard and others in the
Katrina litigation for an undetermined period of time prior to August 27, 2007.
Despite being disbarred from practicing in federal court and subsequently
interimly suspended from the practice of law by the Louisiana Supreme Court,
16
respondent failed to change his unprofessional behavior before the hearing
committee.
Based on the foregoing factual findings, the committee determined that
respondent violated the Rules of Professional Conduct as alleged in the formal
charges, except that the committee did not find a violation of Rule 3.3 in
connection with Judge Duval’s disclosure of his relationship with Mr. Fayard.
Further, the committee did not find a violation of Rule 8.4(b) in connection with
the federal criminal charge against respondent for sending a threatening interstate
communication to the Bankruptcy Court.
The committee determined that respondent violated duties owed to his
clients, the public, the legal system, and the profession. His conduct was knowing
and intentional and caused significant actual injury. Respondent misused the
resources of the federal court and of the disciplinary agency by filing frivolous,
harassing, non-meritorious, or otherwise inappropriate submissions. The federal
court, the Louisiana Supreme Court, and the disciplinary agency had to devote
their finite resources to the consideration of respondent’s vexatious claims and
submissions. Pursuant to the ABA’s Standards for Imposing Lawyer Sanctions,
the baseline sanction in this matter is disbarment.
The committee found the following aggravating factors are present: a
dishonest or selfish motive, a pattern of misconduct, multiple offenses, refusal to
acknowledge the wrongful nature of the conduct, substantial experience in the
practice of law (admitted 1971), and indifference to making restitution. The
committee found that in mitigation, respondent has no prior disciplinary record and
suffers from personal or emotional problems.
Notwithstanding that the applicable baseline sanction is disbarment, the
committee determined that an upward deviation to permanent disbarment is
warranted in this matter. Guideline 8 of Appendix E of Supreme Court Rule XIX
17
states that permanent disbarment may be imposed when a lawyer engages in the
unauthorized practice of law “during the period of time in which the lawyer is
suspended from the practice of law or disbarred.” The record is clear that on July
15, 2009, after his March 30, 2009 interim suspension, respondent engaged in the
unauthorized practice of law when he caused a pleading to be filed in federal court
under the signature of his cousin, Joseph W.P. Hecker. When the Chief
Disciplinary Counsel submitted an inquiry to Mr. Hecker regarding this pleading,
respondent acknowledged by mail that he had written the pleading, took “full
responsibility for the content of the language” in the pleading, and acknowledged
that he had signed the pleading in the name of his cousin, purportedly with his
permission. Such conduct constitutes the unauthorized practice of law and
squarely falls under the parameters of Guideline 8.
Moreover, respondent’s conduct throughout the Katrina litigation in federal
court and during the disciplinary proceeding warrants permanent disbarment.
Respondent was given the opportunity for readmission by the federal court if he
complied with the conditions set out by the en banc district court in its orders of
November 7, 2008 and February 10, 2009, but respondent was defiant in his failure
to comply. In this matter, respondent has continued for ten years his pattern of
flagrant disregard and contempt for the entire process; he even admitted at the
hearing to filing “intentionally contemptuous pleadings.”
The committee concluded:
Respondent may be compared to the child who is sorry
he got caught but not sorry for the infraction.
Respondent has shown that when confronted with his
own reckless and irresponsible, offensive and
unprofessional words and deeds, he may on occasion
apologize. But time and time again he has returned to his
old ways with claims of great conspiracies, kangaroo
courts, scorched earth pleadings and reckless use of
insulting terms and derogatory language.
***
18
Though Respondent has testified that he is “going to try
to be a changed man” and stated “I believe myself to be a
changed” man, his actions belie his self-assessment.
Respondent fails to acknowledge what the pleadings,
orders, testimony and choice of language clearly
demonstrate (even to non-medical or mental health
professionals) that his anger bordering at times on rage
[is] a serious concern for this hearing committee. For
example, the transcript from the hearing held by this
Committee on June 5, 2012 concerning Respondent’s
Motion for Disqualification reflects that Respondent had
to be admonished for brandishing about his shillelagh, his
action clearly inappropriate for a disciplinary proceeding.
Anger management has [been] previously recommended
but never pursued by the Respondent. The zeal with
which he [represented] clients for more than forty years
in his practice has now morphed into an anger that
impairs his ability to act rationally and professionally as
an attorney representing himself, his clients and the
profession.
From the first pleading to his first comments in his
opening statement at the hearing, Respondent has been
focused on Katrina. At the beginning of the hearing,
the Respondent stated: “The case today is a
referendum on the victims of the Katrina Litigation.”
Like so many others, Respondent testified that his life in
the years post-Katrina “has been hell for me.” His
passion for the Katrina litigants is palpable but so too is
his unquenchable desire to find conspiracy at every turn.
Respondent admits to being “emotionally involved.”
However, the fact that in a three hundred thirty-one (331)
page transcript of the daylong hearing the word “Katrina”
appears eighty-three (83) times (more than any other
substantive word) demonstrates his obsession and
inability to focus on the matter that was before the
hearing committee. It was not lost on this committee that
the only witness called by Respondent to testify was on
the issue of the Katrina litigation and how he behaved in
that litigation.
In conclusion, this Committee finds that Respondent’s
actions show his egregious lack of respect for the
authority of the federal courts, the Louisiana Supreme
Court, and the disciplinary authorities of this State. His
conduct also shows his complete disregard for both the
Lawyer’s Oath and the Code of Professionalism of this
State. Such conduct will not be tolerated by this
Committee. Respondent’s conduct, as well as his act of
engaging in the unauthorized practice of law during his
interim suspension, mandates this Committee to
recommend that he be permanently disbarred from the
19
practice of law. [Emphasis in original; internal footnotes
omitted.]
Respondent filed an objection to the hearing committee’s report and
recommendation of discipline. Respondent also objected to the committee’s
recommendation that he be assessed with the costs of this matter. The hearing
committee chair denied the objection to costs as untimely filed.
Disciplinary Board Recommendation
After review, the disciplinary board determined that the hearing committee’s
factual findings are supported by the record and are not manifestly erroneous. As
such, the board adopted same. The board also determined that the committee
correctly applied the Rules of Professional Conduct and adopted the committee’s
findings that respondent violated the rules as follows:
Rule 1.4(a)(3) – This rule states that “a lawyer shall keep the client
reasonably informed about the status of the matter.” The record shows that on
February 22, 2008, Judge Duval issued an order denying respondent’s motion to
disqualify, and further ordered that copies of the ruling be provided to respondent’s
named clients. Respondent not only failed to provide his named clients with
copies of Judge Duval’s order, he filed a “declaration” stating that the court “does
not have the authority to require him to comply with such an order, which
constitutes an unwarranted intrusion into the relationship between him and his
clients, which is none of the Court’s business.” By his refusal to inform his clients
of the status of their legal matter, the board found respondent violated Rule
1.4(a)(3).
Rule 3.1 – This rule states, in pertinent part, that “a lawyer shall not bring or
defend a proceeding, or assert or controvert an issue therein, unless there is a basis
in law and fact for doing so that is not frivolous, which includes a good faith
20
argument for an extension, modification or reversal of existing law.” Here,
respondent brought and asserted frivolous actions. Beginning with the filing of his
initial petition on September 19, 2005 in the Katrina class action litigation, and
continuing thereafter, respondent filed pleadings containing unsupported
allegations filed against a multitude of governmental agencies, elected officials,
and others, under a litany of federal and state laws. His initial petition was a 56-
page, sometimes illegible, handwritten complaint full of inappropriate and
“irrelevant rhetoric,” as described by Judge Duval in his order and reasons issued
on July 19, 2006. Later, respondent filed complaints against federal, state, and
local governmental defendants and others, under the general maritime law, as well
as numerous state and federal environmental and other provisions of law without
providing adequate factual bases. Despite repeated warnings, respondent
continued to employ what Judge Duval had described as a “buckshot” approach to
pleading in federal court.
In addition, respondent violated Rule 3.1 when he threatened sanctions
against opposing counsel. Without providing any factual support, he alleged that
attorney Michael Riess had destroyed evidence; that lawyers with the Louisiana
Department of Justice would commit obstruction of justice and suborn perjury; and
that lawyers for the Washington Group International had lied and misrepresented
facts at a hearing. The pleadings show that these allegations had no basis in fact
and were frivolous.
Furthermore, respondent also violated Rule 3.1 by his actions subsequent to
the initiation of disciplinary proceedings by the DCAH. Rather than responding to
the petition for interim suspension in an appropriate manner, respondent sent a
series of vulgar and racist e-mail messages to the DCAH, threatening to advance
frivolous civil rights, RICO, and numerous other claims. He also made threats and
21
asserted baseless claims against Judge Lemelle, the justices of this court, Chief
Disciplinary Counsel Plattsmier, the DCAH, and others.
Based on the foregoing, the board found the record supports the conclusion
that respondent violated Rule 3.1.
Rule 3.4(c) – This rule provides that “a lawyer shall not knowingly disobey
an obligation under the rules of a tribunal, except for an open refusal based on an
assertion that no valid obligation exists.” Respondent refused to comply with
Judge Duval’s February 22, 2008 order, repeatedly ignored warnings that the
wholesale listing of jurisdictional bases without factual support would not be
tolerated, and insisted on using inappropriate language after being sanctioned for
doing so.
Respondent made plain his intention to disobey an obligation under the rules
of a tribunal when, in response to the November 7, 2008 en banc order of the
federal court suspending him from practice, he filed his motion styled “Ashton
O’Dwyer’s 28 U.S.C. § 1746 Declaration of His Intentionally Contemptuous Non-
Compliance with the Court’s Order of 11/07/08 Which is Directed to the Court En
Banc.” In the filing, respondent declared that “he has no intention of ever
complying” with the order’s requirements that he pay all outstanding monetary
sanctions against him and that he obtain stress and anger management treatment.
He flippantly asserted that he would “agree to submit to … counseling/treatment,
only upon the condition that each Member of the Court first complete ‘charm
school.’” Respondent concluded by stating that “the Court en banc is invited to
disbar Respondent, forever.”
Despite the express terms of the November 7, 2008 en banc order placing
him on suspension, respondent continued mailing, faxing, and hand delivering
documents to the federal court and to individual judges without first paying his
outstanding monetary sanctions, or obtaining permission from a member of the
22
court, in violation of the terms of the order. On July 27, 2009, in open contempt of
the March 4, 2009 order of disbarment, respondent caused to be hand delivered to
Judge Lemelle a handwritten note containing an outrageous racial slur directed at
the judge, resulting in the court’s issuance of an order barring respondent from
entering the federal courthouse.
Based on the foregoing, the board found the record supports the conclusion
that respondent violated Rule 3.4(c).
Rule 3.5(d) – This rule states that “a lawyer shall not engage in conduct
intended to disrupt a tribunal.” The record is replete with examples of
respondent’s intent to disrupt proceedings in federal court through his
unprofessional, profane, threatening, and racially offensive communications and
pleadings.
As previously noted, leading up to, during, and since his disbarment from
practice in federal court, respondent repeatedly ignored court orders and
admonitions by filing unsupported and duplicative pleadings, using offensive and
abusive language. He challenged the authority, competency, and integrity of the
federal court, stating that the court’s actions were “disingenuous” and done for an
“illicit” purpose. Respondent filed the previously mentioned “declaration” stating
that an issue was “none of the court’s business.” He made unsupported and
inflammatory allegations regarding the conduct of other attorneys, using terms
such as “corrupt,” “anointed,” and “sleeping with the devil.” Indeed, he openly
stated his contempt for the federal court and declared that he had no intention of
ever complying with its order of suspension, and set about on a course of ever
increasing defiance and lack of respect for the orderly administration of justice.
Respondent continued to willfully violate the en banc order and the Rules of
Professional Conduct by sending documents to the federal court without satisfying
the conditions of the order. Then, on July 27, 2009, respondent hand delivered to
23
the federal court the previously mentioned letter addressed to Judge Lemelle
containing profanity and an outrageous racial slur, which led to the issuance of the
order barring his access to the federal courthouse.
Based on the foregoing, the board found the record supports the conclusion
that respondent violated Rule 3.5(d).
Rule 4.4(a) – This rule provides that “[i]n representing a client, a lawyer
shall not use means that have no substantial purpose other than to embarrass, delay,
or burden a third person, or use methods of obtaining evidence that violate the
legal rights of such a person.” Respondent engaged in retaliatory attempts to
sanction other attorneys and parties with frivolous motions and accusations. He
sought sanctions against attorney Michael Riess, accusing him of destroying
evidence and implying that he was morally depraved. Respondent’s assertion that
attorneys with the Louisiana Department of Justice would suborn perjury and
obstruct justice was unsupported and appeared to serve no substantial purpose
beyond harassing and embarrassing the state. Similarly, respondent’s motion for
sanctions against Washington Group International, accusing the firm’s counsel of
lying and misrepresenting facts, appeared to be retaliatory in nature. Respondent
openly declared that “no one fires a shot across my bow without getting a
broadside back,” indicating that respondent’s motions for sanctions were motivated
by retaliatory intent.
Based on the foregoing, the board found the record supports the conclusion
that respondent violated Rule 4.4(a).
Rule 5.5(a) – This rule provides that “a lawyer shall not practice law in
violation of the regulation of the legal profession in that jurisdiction, or assist
another in doing so.” Respondent was placed on interim suspension by this court
on March 30, 2009. He was suspended from practice in the Eastern District on
November 7, 2008 and was subsequently disbarred by that court on March 4, 2009.
24
Both the en banc order suspending respondent from practice and the order of
disbarment prohibited respondent from filing pleadings or documents in any
Eastern District proceeding, existing or sought to be initiated, including as a pro se
litigant, without first paying monetary sanctions and obtaining an order from a
member of the court. Further, the disciplinary orders also mandated that
respondent notify his clients of the issuance of the orders and that respondent
certify his compliance to the Chief Judge.
Although purportedly submitted by attorney Joseph Hecker, respondent’s
cousin, the committee found that respondent drafted and caused to be filed a legal
pleading in which he offered defenses, asserted that the court lacked subject matter
jurisdiction, and sought to disqualify Judge Lemelle. The pleading contained
threatening, disparaging, and racially offensive remarks about Judge Lemelle.
When the Chief Disciplinary Counsel made inquiry into this pleading of Attorney
Hecker, respondent admitted that he had written the pleading, taking “full
responsibility for the content of the language.” Respondent also admitted that he
had signed the pleading in the name of his cousin, allegedly with his cousin’s
permission.
Respondent’s drafting and signing of the pleading for submission to the
federal court constituted the unauthorized practice of law in violation of Rule
5.5(a). Respondent admitted he drafted the pleading and filed it. At the time he
did so on July 15, 2009, he was on interim suspension by this court and had been
disbarred by the federal court; he was also prohibited from filing pleadings in the
federal court, whether pro se or otherwise. By his actions, he sought to deceive the
federal court by using his cousin’s name as a subterfuge so that he could continue
to draft and file pleadings after he had been disbarred in the Eastern District and
after he had been interimly suspended by this court.
25
Rule 8.2(a) – This rule provides in pertinent part that “a lawyer shall not
make a statement that the lawyer knows to be false or with reckless disregard as to
its truth or falsity concerning the qualifications or integrity of a judge, adjudicatory
officer or public legal officer...” Respondent repeatedly made unsupported and
reckless statements impugning the integrity of the federal judges. For example,
respondent described the judges or their rulings as “done for an illicit purpose,”
“disingenuous,” or “the fix is in,” calling into question the integrity of the court.
Based on the foregoing, the board found the record supports the conclusion that
respondent violated Rule 8.2(a).
Rules 8.4(a)(c)(d)(g) and 8.5(a) – Rule 8.4 states that it is professional
misconduct for a lawyer to (a) violate or attempt to violate the Rules of
Professional Conduct, knowingly assist or induce another to do so, or do so
through the acts of another, (c) engage in conduct involving dishonesty, fraud,
deceit, or misrepresentation, (d) engage in conduct that is prejudicial to the
administration of justice, and (g) threaten to present criminal or disciplinary
charges solely to obtain an advantage in a civil matter. Rule 8.5(a) subjects a
lawyer admitted to practice in this jurisdiction to the disciplinary authority of the
jurisdiction.
Respondent clearly engaged in conduct involving dishonesty, fraud, deceit,
and misrepresentation by his unrelenting misuse and abuse of the legal system,
filing frivolous pleadings containing unsupported and inflammatory allegations,
misrepresenting the conduct of opposing counsel, using offensive, racist, and
vulgar language, and impugning the integrity of the judiciary and disciplinary
authorities. Respondent acted with deceit when he sought to mislead the federal
court by using his cousin’s name as a ploy so that he could continue to file
pleadings after he had been disbarred from practice in the Eastern District and after
he had been placed on interim suspension by this court. He hurled threats of civil,
26
criminal, and disciplinary proceedings at judges, opposing counsel, and
disciplinary authorities. Furthermore, though respondent was notified of his
obligations under Supreme Court Rule XIX, § 26, relative to his duties to notify
clients, co-counsel, and opposing counsel of his status and contact information, he
failed to do so in violation of Rule 8.5(a).
Based on the foregoing, the board found the record supports the conclusion
that respondent violated Rules 8.4(a)(c)(d)(g) and 8.5(a).
The board likewise adopted the committee’s conclusion that respondent did
not violate Rules 3.3 and 8.4(b). The board agreed that there was not clear and
convincing evidence that respondent misrepresented facts regarding certain
disclosures made by Judge Duval regarding the judge’s relationship with attorney
Calvin Fayard, and therefore found that he did not violate Rule 3.3. The board also
noted that there was no violation of Rule 8.4(b) in that the United States Fifth
Circuit Court of Appeals upheld the dismissal of the indictment against respondent
for the crime of interstate communications of a threat to injure another.
The board determined that respondent violated duties owed to his clients, the
public, the legal system, and the profession. His conduct was knowing and
intentional, and caused significant actual injury. Addressing his frivolous,
harassing, and inappropriate submissions and his continuing base and
unprofessional behavior has required substantial and unnecessary expenditures of
the resources of the federal court, opposing parties, and the disciplinary system.
His outrageous conduct is the type that undermines the public’s confidence in the
legal system and the legal profession. The applicable baseline sanction is
disbarment.
The board found the following aggravating factors are supported by the
record: a dishonest or selfish motive, a pattern of misconduct, multiple offenses,
refusal to acknowledge the wrongful nature of the conduct, substantial experience
27
in the practice of law, and indifference to making restitution. The board found the
following mitigating factors are supported by the record: absence of a prior
disciplinary record and personal or emotional problems.
Although the baseline sanction in this matter is disbarment, the board agreed
with the hearing committee that permanent disbarment is warranted pursuant to
Guideline 8 of the permanent disbarment guidelines. Moreover, the board found
the record contains evidence of conduct so egregious that nothing less than
permanent disbarment would be appropriate:
A review of only a few of the vast number of pleadings,
email messages and letters authored by Respondent and
the vile, racist and threatening language therein,
illustrates that Respondent must be permanently
disbarred. Respondent has shown [a] pattern of flagrant
disregard and contempt for the legal system and the
disciplinary process. His conduct has resulted in a huge
burden on the time and resources of the federal court,
opposing counsel, and the disciplinary system. He must
not be allowed to continue to tarnish the image of the
legal profession and undermine the public’s confidence
in the legal system. It is abundantly clear he does not
possess the moral fitness to hold a license to practice law
in this state, and should not be allowed the opportunity to
return to the practice of law in the future.
Based on this reasoning, the board recommended that respondent be
permanently disbarred. The board also recommended that respondent be assessed
with all costs and expenses of the disciplinary proceeding.
Respondent 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).
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
28
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: 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 voluminous record of this matter clearly supports the well-reasoned
factual findings of the hearing committee. It suffices to say the undisputed
evidence presented by the DCAH, the majority of which consisted of respondent’s
own pleadings and other communications to courts, lawyers, and the disciplinary
agency, establishes a panoply of serious professional violations. Among other
things, respondent unquestionably violated Rule 3.1 by asserting frivolous actions,
including bringing baseless proceedings against the DCAH. Similarly, he engaged
in retaliatory conduct against other attorneys and parties in violation of Rule 4.4(a).
He violated Rule 3.4(c) by knowingly and intentionally disobeying orders of the
federal court. Additionally, he violated Rule 3.5(d) by disrupting proceedings in
federal court through his unprofessional and racially offensive communications
and pleadings.
Finally, we find the record supports the hearing committee’s determination
that respondent engaged in the unauthorized practice of law in violation of Rule
5.5(a) based on the filing of a pleading in federal court after respondent was
already disbarred in that court. Although this pleading was purportedly submitted
by respondent’s now-deceased cousin, attorney Joseph Hecker, the committee
made a factual finding that respondent drafted the pleading and caused it to be
filed. We cannot say this factual finding is clearly wrong.9
9
In his brief filed in this court, respondent now disputes his earlier admission, claiming he was
“mistaken” when he stated he signed his cousin’s name to the pleading and now states his
cousin, acting as respondent’s counsel, actually signed the pleading. However, he presents no
29
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 knowingly and intentionally violated duties owed to his clients,
the public, the legal system, and the profession. His conduct caused significant
injury, including the unnecessary waste of judicial and professional resources.
Disbarment is the baseline sanction for this type of misconduct. The record
supports the aggravating and mitigating factors found by the disciplinary board.
Turning to the issue of an appropriate sanction, we agree that respondent’s
conduct warrants permanent disbarment. Guideline 8 of the permanent disbarment
guidelines suggests that permanent disbarment is appropriate when a lawyer
engages in the practice of law after being suspended or disbarred. As discussed
above, the committee made a factual determination that respondent was
responsible for the drafting and filing of a pleading in federal court after he was
prohibited from practicing law. This conduct meets the requirements of Guideline
8.
Furthermore, even without reference to the guidelines, we would find
permanent disbarment would be appropriate in this case. It is well settled that the
evidence in support of his assertion. Moreover, regardless of who actually signed the pleading,
the record supports the hearing committee’s finding that the pleading was drafted and submitted
under respondent’s direction in an attempt to avoid the order prohibiting him from practicing
law.
30
guidelines are illustrative in nature and do not constitute an exclusive list of
conduct for which an attorney may be permanently disbarred. See In re:
Kirchberg, 03-0957 (La.9/26/03), 856 So.2d 1162.
Respondent’s shocking disregard for his obligations as a member of the bar
of this state demonstrate why he must forfeit any right to ever return to practice.
The record is replete with respondent’s vile and racially-derogatory
communications (many of which are too offensive to repeat in this opinion) made
to members of the judiciary and the bar. He has filed unsupported and duplicative
pleadings, using offensive and abusive language, and has made baseless challenges
to the authority, competency, and integrity of the federal court. Respondent has
consistently refused to make any significant attempt to acknowledge the wrongful
nature of his acts, and he continues to portray himself as the “victim” in these
proceedings.
We have often pointed out we do not impose permanent disbarment lightly.
See In re: Morphis, 01-2803 (La.12/4/02), 831 So. 2d 934. Rather, permanent
disbarment is reserved for those cases where the attorney’s conduct convincingly
demonstrates that he or she does not possess the requisite moral fitness to practice
law in this state. In re: Petal, 10-0080 (La.3/26/10), 30 So. 3d 728; In re:
Muhammad, 08-2769 (La.3/4/09), 3 So. 3d 458. Even a cursory glance at the
record of these proceedings indicates respondent, through his own words and
actions, has demonstrated with perfect clarity that he does not have the moral
fitness to exercise the privilege of practicing law in this state. In order to protect
the public and maintain the high standards of the legal profession in this state,
respondent must be permanently disbarred.
Accordingly, we will adopt the board’s recommendation and permanently
disbar respondent. We will further impose all costs of these disciplinary
proceedings against respondent.
31
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 the name of Ashton R. O’Dwyer, Louisiana Bar Roll number 10166,
be stricken from the roll of attorneys and that his license to practice law in the
State of Louisiana be revoked. Pursuant to Supreme Court Rule XIX, § 24(A), it is
further ordered that respondent be permanently prohibited from being readmitted
to the practice of law in this state. 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.
32
In Re: Ashton R. O'Dwyer
Combined Opinion