IN RE: MITCHELL W. HERZOG ON APPLICATION FOR REINSTATEMENT
No. 00-OB-0030
SUPREME COURT OF LOUISIANA
00-0030 (La. 02/11/00);
753 So. 2d 824;
2000 La. LEXIS 384
February 11, 2000, Decided
PRIOR HISTORY:
[**1] IN RE: Herzog, Mitchell W.; - Plaintiff; Applying for Reinstatement Office Of
The Disciplinary Board, No. 99-DB-036.
JUDGES: Catherine D. Kimball, Pascal F. Calogero, Jr., Walter F. Marcus, Jr., Harry T.
Lemmon, Bernette J. Johnson, Chet D. Traylor, Jeannette Theriot Knoll. VICTORY,
J., not on panel.
OPINION:
[*824]
Reinstatement ordered. See
per curiam.
VICTORY, J., not on panel.
[Pg 1] ON APPLICATION FOR
REINSTATEMENT
PER CURIAM *
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* Victory, J., not on panel. Rule IV, Part II,
§ 3.
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This proceeding arises out of an application for
reinstatement filed by petitioner, Mitchell W. Herzog, an attorney who is currently
suspended from the
practice of law in Louisiana.
UNDERLYING FACTS
On May 1, 1998, we accepted petitioner's request for consent
discipline and
suspended him from the
practice of law for a period of eighteen months, retroactive to the date of his interim
suspension on October 10, 1997.
In re:
Herzog, 98-0761 (La. 5/1/98), 710 So. 2d 793. Petitioner's
suspension arose from his representation of two adverse business interests, resulting in
an impermissible conflict of interest. n1
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n1 Petitioner had for several years represented a real estate management
company controlled by Lee Schlesinger. In 1990, when the company was
experiencing financial trouble, petitioner strongly suggested that Schlesinger
merge his company with a real estate development company controlled by Sidney
Lassen, whom petitioner also represented. After the merger was completed,
Schlesinger lost majority control of his company to Lassen. A $ 5.5 million
judgment was entered against petitioner in a subsequent legal malpractice suit
by Schlesinger.
Schlesinger v. Herzog, 95- 1127, 95-1128 (La. App. 4th Cir. 4/3/96),
672 So. 2d 701,
writ denied, 96-1328 (La. 10/4/96),
679 So. 2d 1381.
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[**2]
After serving his
suspension, petitioner filed an application for
reinstatement, asserting that he has complied with the
reinstatement criteria set forth in Supreme [Pg 2] Court Rule XIX,
§ 24(E). n2 The Office of
[*825]
Disciplinary Counsel ("ODC") has indicated that it has no objection to petitioner's
reinstatement to the
practice of law. The ODC also contacted the complainant in the underlying
disciplinary matter, who stated that he would not oppose petitioner's application.
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n2 Supreme Court Rule XIX,
§ 24(E) provides:
A lawyer may be
reinstated or
readmitted only if the lawyer meets each of the following criteria, or, if not, presents
good and sufficient reasons why the lawyer should nevertheless be
reinstated or
readmitted:
(1) The lawyer has fully complied with the terms and conditions of all prior
disciplinary orders except to the extent that they are abated under Section 25.
(2) The lawyer has not engaged nor attempted to engage in the unauthorized
practice of law during the period of
suspension or
disbarment.
(3) If the lawyer was suffering under a physical or mental disability or
infirmity at the time of
suspension or
disbarment, including
alcohol or other
drug abuse, the disability or
infirmity has been removed. Where
alcohol or other
drug abuse was a causative factor in the lawyer's
misconduct, the lawyer shall not be
reinstated or
readmitted unless:
(a) the lawyer has pursued appropriate rehabilitative treatment;
(b) the lawyer has abstained from the use of
alcohol or other drugs for at least one year; and
(c) the lawyer is likely to continue to abstain from
alcohol or other drugs.
(4) The lawyer recognizes the wrongfulness and seriousness of the
misconduct for which the lawyer was
suspended or
disbarred.
(5) The lawyer has not engaged in any other professional
misconduct since
suspension or
disbarment.
(6) Notwithstanding the conduct for which the lawyer was disciplined, the
lawyer has the requisite honesty and integrity to practice law.
(7) The lawyer has kept informed about recent
developments in the law and is competent to practice and has satisfied MCLE
requirements for the year of
reinstatement or readmission.
(8) The lawyer has paid to the Louisiana State Bar Association currently
owed bar dues.
(9) The lawyer has paid all filing fees
owed to the Clerk of Court and all
disciplinary costs to the
Disciplinary Board.
(10) The lawyer has paid to the
Disciplinary Board currently
owed
disciplinary administration and enforcement fees required under Section 8(A) of this rule
and has filed the registration statement required under Section 8(C) of this
rule.
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[**3]
[Pg 3]
DISCIPLINARY BOARD
RECOMMENDATION
In its
recommendation to this court, the
disciplinary board noted that no objections were received to petitioner's
reinstatement and that a letter was submitted by a Lafayette attorney in support of
petitioner's application. The board also noted that petitioner has paid all
costs associated with his
discipline, is current with his bar dues and
disciplinary assessments, and has met all mandatory continuing legal education
requirements. Accordingly, the board concluded that petitioner has satisfied
the criteria for
reinstatement to the
practice of law, and recommended that his application be approved.
Neither petitioner nor the ODC objected to the board's
recommendation.
DISCUSSION
Petitioner has served the eighteen-month
suspension imposed by this court in 1998, and no objections were received to his
application for
reinstatement. Petitioner has met the criteria for
reinstatement set forth in Supreme Court Rule XIX,
§ 24(E). Accordingly, we will accept petitioner's application and order that he
be
reinstated to the
practice of law in Louisiana.
DECREE
Upon review of the findings and
recommendation of the
[**4]
disciplinary board, and considering the record, it is ordered that petitioner, Mitchell W. Herzog,
be
reinstated to the
practice of law in Louisiana.
