IN RE: ALBERT A. BENSABAT (2024)

Application for rehearing denied.

The Office of Disciplinary Counsel (ODC), which is charged with protecting the public by investigating complaints of lawyer ethical misconduct and making recommendations to this court when discipline is warranted, has filed an application for rehearing in this matter. Because I find the application particularly well-reasoned and meritorious, I paraphrase portions and quote other parts.

This court's jurisprudence has been clear since 2009: a respondent lawyer whose alcohol abuse disorder appears to remain unresolved faces suspension from the practice of law for a period of one year and one day. In re: Baer, 09-1795 (La. 11/20/09), 21 So.3d 941, 944. Baer, and the decisions which follow it, reflect this court's consistent recognition that a lawyer who suffers from the disease of alcoholism or drug addiction that is left untreated poses a risk to the well-being of clients, the courts, family members, and, unfortunately, the lawyer as well.

JLAP approved medical experts evaluated respondent and determined that he suffers from substance use disorders related to cocaine (severe), marijuana (moderate), and alcohol (severe). His alcoholism came to light following his arrest for DWI. Rather than participate in a pretrial diversion program that would have required him to remain abstinent from alcohol for one year, respondent pled guilty to DWI. Rather than accept the recommendations of two separate JLAP approved medical experts that he secure treatment for alcoholism, respondent refused.

Based on respondent's refusal to seek treatment in light of the unchallenged recommendations of the medical experts, both the Hearing Committee and the Disciplinary Board unanimously concluded, relying on Baer, that respondent should be suspended from the practice of law for one year and one day. However, in an opinion which contains no reasons, analysis or explanation, a majority of this court deviated from that unanimous recommendation and instead suspended respondent for a period of three years, fully deferred, imposed a two-year period of probation, and ordered a novel but questionable requirement that respondent install an interlock device on any vehicle he chooses to drive during his period of probation.

The Office of Disciplinary Counsel suggests that rehearing of this unprecedented decision is appropriate for three reasons, each of which bears serious consideration by this court.

First, the ODC points out that the per curiam opinion, unlike previous opinions, contains no explanation for the court's decision to deviate from the recommended discipline. Rule XIX, Section 11(G)(3) provides that: “After the case is taken under advisement, the court shall enter an appropriate order in due course and issue written reasons, which may be summary in nature.” The common sense policy behind the requirement for written reasons is to provide guidance to lawyers and instill confidence in the public that the court is satisfying its constitutional obligation of regulating the legal profession. That policy is not served by an opinion which fails to explain the reasoning that supported the majority's decision. While Section 11(G)(3) certainly contemplates that written reasons may be “summary in nature,” the reasons in this case are non-existent. Given that the decision of the majority departs from long-standing jurisprudence, it is especially important that reasons be supplied in order that lawyers, the public, and, indeed, even the regulatory stakeholders (including ODC, hearing committees, Disciplinary Board members and JLAP staff) understand the basis for the court's departure from precedent in this instance.

Second, the ODC points out that the majority opinion, in disregarding the unchallenged recommendations of JLAP approved medical experts that respondent seek treatment for his severe alcohol substance use disorder, calls into question the continued role and viability of recommendations from JLAP approved experts in lawyer disciplinary proceedings. The JLAP program has proven to be an invaluable asset to lawyers who seek guidance and support as they attempt to address substance use and mental health disorders that threaten not only their careers, but their relationships, marriages and, in some cases, their lives. It has provided a reliable monitoring system that supports accountability, a foundation of sobriety and recovery. Yet, the decision of this court, in its rejection of the unchallenged assessments of the JLAP approved medical experts, undermines, without explanation, the relevance of the program, which ultimately is designed to help the individual and protect clients.

Finally, the ODC points out that the efficacy and practicality of requiring an interlock device in lieu of treatment is questionable. According to the ODC:

Since the Court's decision in this matter was handed down, the ODC has received countless calls from lawyers–many currently in recovery–expressing shock and dismay by the notion that imposing the use of an interlock device will address the harm to the public posed by the alcoholic lawyer. Some have offered commentary on how easily such devices are compromised and how ineffectual they are to prevent drunk driving, much less the dangers posed to clients by an alcoholic attorney. Perhaps most telling is that the Respondent himself has called ODC seeking guidance on how he is to comply with the Court's order. ․ ODC clearly has no guidance to offer on compliance as it has neither the experience or competence to oversee interlock device use.

Further, ODC argues, the interlock device–at best and if not circumvented in the countless ways outlined by its critics–may serve to lessen the risk that respondent will get behind the wheel and drive while intoxicated, thereby lessening the threat to the driving public, but it will not “address the real societal and professional risk most central to the Court's constitutional responsibility: to protect clients and others from an impaired lawyer who may forever damage their legal rights.” As the ODC notes, “the interlock device might address drunk driving, but will not address ‘drunk lawyering.’ ”

In summary, the ODC's rehearing application is prompted by a variety of concerns, all of which stem from this court's decision that is so far removed from prior disciplinary decisions that it has elicited concern not only within ODC, but from members of the legal community at large, who have no hint of the reasoning that prompted this court to abandon not only the JLAP program, but long-standing jurisprudence. For the reasons expressed by the ODC, and the reasons previously assigned in my dissent, I would grant a rehearing in this matter.

I would grant the rehearing application filed by the Office of Disciplinary Counsel and order that respondent be suspended for one year and one day, in adherence with the standards set forth in In re: Baer, 09-1795 (La. 11/20/09), 21 So. 3d 941

Weimer, C.J., would grant rehearing and assigns reasons. Crichton, J., would grant rehearing and assigns reasons.