The U.S. Fifth Circuit Court of Appeals affirmed a one-year suspension (six months deferred) of an attorney who was found to have hired a close friend of the presiding judge as co-counsel in order to obtain judge’s recusal.
Rule 2 of the Eastern District’s Rules for Lawyer Disciplinary Enforcement states that “the court en banc may impose discipline upon a lawyer authorized to practice before this court if it finds clear and convincing evidence that … the lawyer has committed ‘misconduct’ as defined in the Louisiana Rules of Professional Conduct.” Rule 7.4 states that “at the conclusion of all necessary proceedings, the [allotted] judge must submit written findings and recommendations to the court en banc for determination of the disciplinary sanctions, if any, to be imposed.” Rule 7.5 states that “after consideration of the allotted judge’s findings and recommendations, the court en banc must enter an order either dismissing the complaint or imposing appropriate discipline.” Here, the allotted judge recommended dismissal of the complaint against Mole, but the en banc court disagreed and imposed discipline based on professional misconduct. The en banc court stated that “although Judge Berrigan held the evidentiary hearing in this matter, these Findings are based on an independent review of the entire record, including the transcript of the evidentiary hearing, the transcript of the testimony before the Senate, the memoranda of counsel, and the applicable law.”
“The en banc court found that Mole hired Gardner to prompt [Judge] Porteous’s recusal after reviewing testimonial evidence derived from both the Senate hearings and Mole’s own disciplinary hearing before Judge Berrigan, as well as documentary evidence such as the retention letter between Mole and Gardner. The en banc court found the ‘testimony that the terms of the letter agreement were not drafted in an attempt to secure the recusal of Porteous to be incredible.’ The en banc court highlighted Mole’s testimony before the Senate, where Mole admitted that ‘getting the judge to recuse himself would be the only way to get a fair outcome’; ‘getting Judge Porteous to recuse himself was a priority with [him], and one of the things [he] hoped Mr. Gardner’s presence in the case … would accomplish’; and that he ‘certainly considered that maybe if [Gardner] got involved … Porteous didn’t have a legal responsibility to recuse himself because of that but that he might.’ The en banc court also noted that it ‘did consider evidence presented at the [hearing before Judge Berrigan], but also gave weight to the sworn testimony before the Senate …. given at a time when the witnesses had no personal stake in the outcome.’ The en banc court thus concluded that, ‘taken as a whole, the evidence provided clear and convincing evidence that Mr. Mole’s intent was to prompt former Judge Porteous’s recusal.’”
“Even if we find Mole’s version credible, ‘if the district court’s account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.’ And ‘where there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous.’ Because the en banc court’s determination that Mole hired Gardner to obtain Porteous’s recusal is plausible in light of the record as a whole, we cannot set aside that finding.
In re Mole, No.15-30647, 2016 WL 2586176 (5th Cir. May 4, 2016).