2015-04-05 in re mccool updated sct brief

NO. 2015-B-0284

IN THE SUPREME COURT OF LOUISIANA

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IN RE: JOYCE NANINE MCCOOL

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DOCKET NO. 13-DB-059

LOUISIANA ATTORNEY DISCIPLINARY BOARD

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BRIEF OF THE RESPONDENT, JOYCE NANINE MCCOOL

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Nanine McCool, LSBR#27026 1772 Orleans St. Mandeville, LA 70448 985-624-7664 866-257-7742 (Facsimile)

CONTENTS

I. STATEMENT OF THE CASE ............................................................................................................... 1

II. SPECIFICATION OF ERRORS .......................................................................................................... 1

III. STANDARD OF REVIEW .................................................................................................................. 1

IV. ARGUMENT ......................................................................................................................................... 1

A. Violation of Rule 8.4(c) Engaging in conduct involving dishonesty, fraud, deceit or misrepresentation. ..................................................................................................................................... 2

First Amendment Violations .............................................................................................................. 10

B. Violation of Rule 8.4(d): Engaging in conduct prejudicial to the administration of justice. .............. 11

C. Violation of Rule 3.5(a): Seeking to influence a judge…by means prohibited by law. ..................... 12

D. Violation of Rule 8.4(a): Violating the rules, or assisting or inducing another to do so, or do so through the acts of another. ..................................................................................................................... 12

E. The hearing committee and disciplinary board manifestly erred in recommending that Ms. McCool be suspended for one year and a day, attend the Bar’s ethics school, and pay all costs. ......................... 13

CONCLUSION ......................................................................................................................................... 13

CASES

Agency for International Development v. Alliance for Open Society International, 133 S.Ct. 2321, 186 L.Ed2d 398 (2013) .................................................................................................................................. 12

Blakeney v. Warren, 973 So.2d 1037 (La.App. 2008) ................................................................................... 6 Brown v. Entertainment Merchants Association, 131 S.Ct. 2729, 180 L.Ed. 708 (2011) ........................... 12 Care and Protection of Edith, 659 N.E.2d 1174 (Mass.1996) ...................................................................... 7 Davis v. East Baton Rouge Parish School Board, 78 F.3d 920 (5th Cir. 1996) ........................................... 12 DeSalvo v. State, 624 So.2d 897 (La.1993), cert den. 510 U.S. 1117 ......................................................... 12 Gulf States Theatres of Louisiana, Inc. v. Richardson, 287 So.2d 480 (La.1973) ...................................... 11 Hakim v. O’Donnell, 49-139 (La.App.2d Cir. 6/25/14), 144 So.3d 1179 ................................................... 12 In In Re Paternity of K.D.T.N., 929 N.E.2d 863 (Ind.App.2010) .................................................................. 7 In Interest of R.J.M.B, 133 So.3d 335 (Miss. 2013) ...................................................................................... 6 In re Banks, 09-1212 (La. 10/2/09), 18 So.3d 57 .......................................................................................... 1 In re Cianciotto, 77 P.3d 550 (Mont.2003) ................................................................................................... 6 In re Karst, 428 So.2d 406 (La. 1983) ........................................................................................................ 15 In Re Lemoine, 96-O-2116 (La. 1/14/97), 686 So.2d 837 ........................................................................... 11 In re Marriage of Candiotti, 40 Cal.Rptr.2d 299 (Cal.App.1st Dist. 1995) ................................................... 7 In re Matter Entitled State v. Spillars, 2001-1098 (La.App.3rd Cir. 4/3/02), 813 So.2d 1184 ..................... 11 In re Simon, 04-2946 (La. 6/29/05) 913 So.2d 816 ................................................................................. 4, 15 In re Warner, 2005-1303 (La. 3/17/09), 21 So. 3d 218 ............................................................................... 12 In re: Caulfield, 96-1401 (La. 11/25/96), 683 So.2d 714.............................................................................. 2 In the Marriage of Suggs, 93 P.3d 161 (Wash. 2004) ................................................................................... 7 Jabr. v. Jabr, 2008 Minn.App.Unpub. LEXIS 422 (Minn.App. 4/22/02) ..................................................... 7 King v. Caldwell, 21 F. Supp. 3d 651 (E.D.La.2014) .................................................................................. 13 Lane v. Franks, 134 S.Ct. 2369, 189 L.Ed2d 312 (2014) ........................................................................... 12 McCullen v. Coakley, 134 S.Ct. 2518, 189 L.Ed.2d 502 (2014) ................................................................. 12 Nash v. Nash, 307 P.3d 40, 48-50 (Ariz. App. 2013) .................................................................................... 8 Noble v. Noble, 502 So.2d 317 (Miss.1987) ................................................................................................. 6 Schepp v. Schepp, 906 A.2d 1165 (Pa.2006) ................................................................................................. 6 Slaughter v. Board of Supervisors of Southern University, 76 So.3d 465, 470-471 (La.App. 1st Cir. 2011)

.......................................................................................................................................................... 10, 11

Snyder v. Phelps, 131 S.Ct. 1207, 179 L.Ed2d 172 (2011) ......................................................................... 12

Sorrell v. IMS Health, Inc., 131 S.Ct. 2653, 180 L.Ed. 2d 544 (2011) ....................................................... 12 Southern Casing of La., Inc. v. Houma Avionics, Inc., 2000-CA-1930 (La.App.2d Cir. 9/28/01) 809 So.2d

1040 ........................................................................................................................................................ 11 State in Interest of L.M., 37 P.3d 1188, 1193-1196 (Utah, 2001) .................................................................. 7 State v. Lee, 2001-2516 (La. App.4th Cir. 4/6/01), 787 So.2d 1020 ............................................................ 11 State v. S.Q. (In Re T.T), 779 N.W.2d 602 (Neb. App. 2009) ........................................................................ 7 Stephanie L. v. Benjamin L., 602 N.Y.S.2d 80 (N.Y. County 1993) .............................................................. 6 U.S. v. Alvarez, 132 S.Ct. 2537, 183 L.Ed2d 574 (2012) ............................................................................ 12 U.S. v. Stevens, 130 S.Ct. 1577, 176 L.Ed.2d 435 (2010) ........................................................................... 12 Widmar v. Vincent, 454 U.S. 263, 102 S.Ct. 269 (1981) ............................................................................... 7

Other Authorities

Black’s Law Dictionary (5th Ed.) .................................................................................................................. 4 Symposium: Media, Justice, and the Law: Note: Ex Parte Blogging: The Legal Ethics of Supreme Court

Advocacy in the Internet Era, 61 Stan. L. Rev. 1535 (April, 2009) ........................................................ 12

Rules

Rule of Professional Conduct 1.0(d) ....................................................................................................... 4, 10 Rule of Professional Conduct 3.5(a) ............................................................................................................. 1 Rule of Professional Conduct 3.5(b) ............................................................................................................. 1 Rule of Professional Conduct 4.1 ................................................................................................................. 5 Rule of Professional Conduct 8.2(a) ....................................................................................................... 4, 15 Rule of Professional Conduct 8.4(a) ............................................................................................................. 1 Rule of Professional Conduct 8.4(c) ............................................................................................... 1, 4, 5, 12 Rule of Professional Conduct 8.4(d) ............................................................................................................. 2

In re McCool; 13‐DB‐059 Respondent’s brief in opposition to recommendations of the Board

Page 1 of 22

I. STATEMENT OF THE CASE

Ms. McCool, after a formal complaint was filed by the Office of Disciplinary Counsel

consisting of one 17-page count, was found by the Hearing Committee to have violated Rules

3.5(a); 3.5(b); 8.4(a), 8.4(c), 8.4(d) and recommended that Ms. McCool be suspended for a year

and a day, to attend ethics school and be assessed with all costs and expenses associated with the

exception. The Board adopted all but one of the Committee's recommendations, declining to

find that Ms. McCool violated Rule 3.5(a).

Respondent incorporates by reference the Board’s Procedural History found at pp. 2-3 in

its written recommendations to this Court.

II. SPECIFICATION OF ERRORS

A. The hearing committee and disciplinary board manifestly erred in finding by clear and

convincing evidence that Ms. McCool violated Rule 8.4(c).

B. The hearing committee and disciplinary board manifestly erred in finding by clear and

convincing evidence that Ms. McCool violated Rule 8.4(d).

C. The hearing committee and disciplinary board manifestly erred in finding by clear and

convincing evidence that Ms. McCool violated Rule 3.5(a).

D. The hearing committee and disciplinary board manifestly erred in finding by clear and

convincing evidence that Ms. McCool violated Rule 8.4(a).

E. The hearing committee and disciplinary board manifestly erred in recommending that

Ms. McCool be suspended for one year and a day, attend the Bar’s ethics school, and pay all costs.

III. STANDARD OF REVIEW

This Court acts as triers of fact and conducts an independent review of the record to

determine whether the alleged misconduct has been proven by clear and convincing evidence as a

function of the Court’s original jurisdiction in Bar discipline. La. Const. art. V, §5(B); In re Banks,

09-1212 (La. 10/2/09), 18 So.3d 57. Although the Court is not bound in any way by the findings

and recommendations of the hearing committee and disciplinary board, the manifest error standard

has been held to govern review of the committee’s factual findings. See, In re: Caulfield, 96-1401

(La. 11/25/96), 683 So.2d 714.

IV. ARGUMENT

Ms. McCool respectfully shows that the hearing committee and, upon review the


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disciplinary board, manifestly erred in the following findings, which are not supported by the

requisite clear and convincing evidence in the record:

A. Violation of Rule1 8.4(c)Error! Bookmark not defined. Engaging in conduct involving dishonesty, fraud, deceit or misrepresentation.

In reaching its conclusion that McCool violated Rule of Professional Conduct 8.4(c), the

Board points directly to its finding that “Respondent admits that she and ‘others’ created an online

petition posted on a website which claimed that both judges refused to admit all of her client’s

evidence including audio recordings of her client interviewing her minor children about the alleged

sexual abuse by their father.” (Board’s recommendations at page 23).

This statement by the Board, however is factually untrue and further, nowhere in the

petition (found at ODC-12) is there an allegation that “both” judges, and specifically Judge

Amacker, failed to admit “all of the evidence, including audio recordings.”

The Board’s statement also mischaracterizes Ms. McCool’s admissions, arguably relying

upon inflammatory language (saying Ms. McCool admitted her client was interviewing her minor

children) to instill disdain with this Court for Ms. McCool’s efforts on behalf of her client. Ms.

McCool did not admit her client was engaged in “interviewing” her minor children on the audio

tapes, and expressly rejected on two separate occasions the attempts by the ODC to characterize

the audio recordings as her client engaged in “interviewing” her minor children. See ODC 18, p.

36 (Ms. McCool agreeing that her client WAS NOT interviewing her children) and the transcript

of the proceeding on March 27, 2014 pp. 381 – 382:

Mr. Manning: Q. The article also, Ms. McCool, links to the audio recordings that we've talked about before where Raven had recorded an interview or a question and answer session with her minor children?

Ms. McCool: A. Well the only thing I object to is the interview or the question and answer, but, yes, it did link to the audio of the children disclosing. Voluntarily disclosing.

During her deposition (for which she voluntarily appeared in March 2012) Ms. McCool

responded to direct questioning by Mr. Manning (for the ODC) about the audio tapes and whether

or not they were entered into the record in either the Mississippi or Louisiana proceedings. (ODC

Exhibit 18, pp. 37 – 44). At the time, the allegation contained in the complaint by Judge Gambrell

was that McCool had placed information from a sealed record on the internet (not that her

1All citations to a “Rule” are to the Rules of Professional Conduct.


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statement was “false” or “misleading”). When asked, about this, Ms. McCool made clear that, to

her knowledge, the audio recordings had never been offered or entered into the record in

Mississippi or Louisiana and, therefore, could not be subject to any order to seal the record under

any theory of law.

When asked about the language of the petition “including these audio recordings” Ms.

McCool stated that at the time the online petition was circulated, she believed all of the statements

in the petition were true. Since she herself had not been present at the August 16, 2011, Mississippi

hearing, she had no firsthand knowledge of what happened in those proceedings, but relied upon

her client’s understanding of what had happened. Ms. McCool readily acknowledged in her

deposition that she was now aware that the single reference “including these recordings” was

incorrect.

Thus, while it is true that Judge Gambrell refused to admit “all” of Raven’s evidence that

was presented in court that day, the audio recordings weren’t part of that evidence. In short, and

at worst, Ms. McCool was mistaken about the fact that “all” of Raven’s evidence that day included

the audio tapes. Ms. McCool didn’t know that when the petition was circulated, but readily

admitted her “mistake” at the deposition when asked. There is nothing in the record before this

Court that even remotely suggests that at the time the “false” statement was made that she knew

or even should have known that it was “false.”

As Ms. McCool testified on March 27, 2014, however, it was a distinction without a

difference to her client. In submitting “all” of her evidence, including those video tapes, over the

course of the proceedings to her attorney and the Guardian ad Litem who, as Judge Gambrell

repeatedly stated, was acting as an arm of the court, the client could find no distinction in the

outcome when neither her attorney nor the GAL presented in court with her evidence, and Judge

Gambrell took no steps to ensure the evidence was brought to court.

With regard to the Board’s finding that Ms. McCool also falsely accused Judge Amacker

of failing to admit the audio tapes, there is nothing in the record to support that conclusion, and

the language in the petition shows it to be false. Thus, the Board’s characterization of the language

in the petition is clearly wrong. It has, considered in the best possible light, made an error of fact,

albeit in the course of a very serious proceeding where its error is almost inexplicable in light of

the express language of the document it purports to references, but fails to cite. Under its own


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analysis in this case, its “error” warrants a finding that it has violated Rule 8.4(c). This is, of

course, an absurd result and Ms. McCool is not suggesting it is warranted – only that it

demonstrates the serious flaw in the Committee’s analysis, adopted by the Board.

Those flaws are further illustrated in an examination of what Rules Ms. McCool was not

charged with violating. She was not charged with violating Rule 8.2(a), which prohibits an

attorney 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.” A review of the record reveals that

Ms. McCool was not charged with this violation because there is no support for it, and the Office

of Disciplinary Counsel could never have met its clear and convincing burden that Ms. McCool

acted with knowledge of the falsity of the statements or with reckless disregard as to the truth or

falsity of any statements. See, In re Simon, 04-2946 (La. 6/29/05) 913 So.2d 816.

Next, the terms contained in the Rule 8.4(c) proscriptions simply do not match the terms

used in the finding of the violation of Rule 8.4(c). An examination of the relevant definitions of

the Rule 8.4 (c) prohibited conduct is the starting point: Black’s Law Dictionary (5th Ed.) defines

“dishonesty” as “disposition to lie, cheat or defraud; untrustworthiness; lack of integrity”, while

“fraud” is defined by Rule 1.0(d) as “conduct that is fraudulent under the substantive or procedural

law of the applicable jurisdiction and has a purpose to deceive[emphasis added].” Black’s (5th Ed.)

further defines “deceit” and “misrepresentation” as:

Deceit: A fraudulent and deceptive misrepresentation, artifice, or device, used by one or more persons to deceive and trick another, who is ignorant of the true facts, to the prejudice and damage of the party imposed upon. To constitute “deceit,” the statement must be untrue, made with knowledge of its falsity or with reckless and conscious ignorance thereof, especially if the parties or not on equal terms, made with the intent that plaintiff act thereon or in a manner apparently fitted to induce him to act thereon, and plaintiff must act in the manner contemplated, or manifestly probable to his injury [emphasis added]. Misrepresentation: Any manifestation by words or other conduct by one person to another, that, under the circumstances, amounts to an assertion not in accordance with the facts. An untrue statement of fact…Colloquially it is understood to mean a statement made to deceive or mislead. Compare the above defined Rule 8.4(c) terms to those actually used in the finding of that

Rule’s violation: false, misleading and inflammatory. The record amply reflects that the actions

of both judges in the cases at issue are subject to much reasonable interpretation and debate, and

whether something is “misleading” or “false,” as already argued, depends on subjective analysis

or opinion. Nonetheless, there is no authority for sanctioning an attorney for saying something


Page 5 of 22

that someone deems “misleading.” Furthermore, there is absolutely no authority to punish an

attorney for being “inflammatory,” whatever that means, as much of what every attorney does and

says can be called “inflammatory” by opposing parties.

There is also no finding that Ms. McCool violated Rule 4.1, prohibiting a lawyer from, in

the course of representing a client, “knowingly” making “a false statement of material fact or law

to a third person.” Instead, the committee rests on Rule 8.4(c) relative to conduct “involving

dishonesty, fraud, deceit, or misrepresentation.”

Rule 8.4(c) does not include the words “false”, “misleading” or “inflammatory.” Again, a

review of the record shows that there is no support for charging Ms. McCool under Rule 4.1. The

findings of the Committee and the Board reflects their disagreement with Ms. McCool’s view of

the child custody litigation, but with no proof of Ms. McCool’s intentional dishonesty (or any

dishonesty) as would trigger Rule 8.4(c). The many Louisiana cases decided under this Rule all

involve intentional financial or contractual fraud and deceit, with no decisions citing debatable

public statements.

Furthermore, a review of Respondent exhibits 15-18 support the truthfulness of statements

made by Ms. McCool’s client, and adopted by Ms. McCool’s regarding the Mississippi

proceedings. Ms. McCool directs this Court to her initial responses to the ODC’s inquiries, (ODC

-2 and 4) as well as her deposition (ODC-18) and the applicable law in the cases that were the

subject of Ms. McCool’s criticisms of Judges Gambrell and Amacker. Nothing in the record

establishes any intentional fraud, deceit, or misrepresentation by Ms. McCool, and where there

may be room to disagree, certainly not by clear and convincing evidence unfavorable to Ms.

McCool.

In support of its conclusions that McCool violated Rule 8.4(c), the Board also states that

“releasing information contained within the sealed record was in direct violation of the June 2,

2008 Order to Seal File (in the Mississippi proceedings). The Board does not identify what

“information contained with the sealed record” was released by Ms. McCool. Having just

pointed out that the “audio recordings have never been offered into evidence in any proceeding

before Judge Gambrell or … Judge Amacker” (p. 24) it fails to identify what information that

was a part of a sealed record was released by Ms. McCool.

The Committee and Board’s findings under this Rule that Ms. McCool violated


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Mississippi orders regarding “sealed records” and tapes of the children is manifest error. All of

the pertinent records from the Mississippi Boyd case were maintained online by the Mississippi

College of Law Judicial Data Project and the Chancery Court’s website, and the records from

those public websites were admitted as Ex. R-1 and R-4 [See Chancellor Gambrell’s testimony,

2/27/14, 130-233]. Ms. McCool was not a party to any Mississippi court orders whatsoever, and,

therefore, cannot be bound by them. Noble v. Noble, 502 So.2d 317 (Miss.1987); Blakeney v.

Warren, 973 So.2d 1037 (La.App. 2008).

Under applicable Mississippi law, even a parent who is a party to a case with a sealed

court file is constitutionally free to publicly discuss facts of the case. In Interest of R.J.M.B, 133

So.3d 335 (Miss. 2013). This free speech protection regarding even sealed court files has been

recognized nationwide. Courts in other states in child custody cases have found the type of

speech restriction imposed here to be unconstitutional. See, In re Cianciotto, 77 P.3d 550

(Mont.2003); Schepp v. Schepp, 906 A.2d 1165 (Pa.2006); Stephanie L. v. Benjamin L., 602

N.Y.S.2d 80 (N.Y. County 1993); Jabr. v. Jabr, 2008 Minn.App.Unpub. LEXIS 422 (Minn.App.

4/22/02); In re Marriage of Candiotti, 40 Cal.Rptr.2d 299 (Cal.App.1st Dist. 1995); In the

Marriage of Suggs, 93 P.3d 161 (Wash. 2004); Care and Protection of Edith, 659 N.E.2d 1174

(Mass.1996). As there is no compelling state interest in the broad “content based2” order

suggested by the court, the strict scrutiny test fails. Widmar v. Vincent, 454 U.S. 263, 102 S.Ct.

269 (1981). See also, State in Interest of L.M., 37 P.3d 1188, 1193-1196 (Utah, 2001) [order

prohibiting parties from discussing juvenile court case reversed].

In a case presenting very similar facts to the case at bar, such a “gag order” was reversed

as a free speech violation. In In Re Paternity of K.D.T.N., 929 N.E.2d 863 (Ind.App.2010), a young

child was the subject of contested sexual abuse allegations in a confidential juvenile court

proceeding, and the mother was openly dissatisfied with the court’s resolution of the case. The

juvenile judge issued an order prohibiting her from “discussing this case in any method or fashion.”

Id. at 868. In vacating the order, the appellate court held:

To the extent the Order in this case includes Mother’s independently obtained knowledge of incidents or facts that underlie the court proceedings, and not just the contents of the records themselves, the Order is overbroad and, therefore, it is an invalid prior restraint on Mother’s free speech rights. 929 N.E.2d 863, 874.

2 Even where restrictions on speech are “content‐neutral”, they must be very narrowly tailored to serve significant governmental interests. See, McCullen v. Coakley, 134 S.Ct.2518, 189 L.Ed2d 502 (2014).


Page 7 of 22

Other courts have recently reached the same conclusion on the unconstitutionality of this

type of “gag order” imposed on parents in similar cases involving their children. See State v. S.Q.

(In Re T.T), 779 N.W.2d 602 (Neb. App. 2009); Nash v. Nash, 307 P.3d 40, 48-50 (Ariz. App.

2013) [Speech limitations embraced by parents’ consent agreement upheld, all others vacated].

The Board also – inexplicably – finds fault with McCool because she “failed to appear”

in response to an order issued and directed by Judge Gambrell to McCool, ordering her to appear

and show cause why she should not be held in contempt of Judge Gambrell’s prior orders.

Notwithstanding the uncontested fact that Ms. McCool was not at any time a party or an attorney

of record in those proceedings, the Board ignores, as Judge Gambrell did, that Judge Gambrell

had no power or authority to order Ms. McCool into court, lacking both personal and subject

matter jurisdiction over her, failing even to properly server her with the completely baseless

summons.

More problematic, however, is that the Board fails to disclose that at the time these

formal charges were filed, the warrant had been vacated by Judge Gambrell more than two years

prior, a fact that is well established in the record. (See Respondent’s Exhibit 6). Ms. McCool

attempted to also show that the warrant was only withdrawn after, and in response to, Ms.

McCool’s judicial complaint that she filed against Judge Gambrell, but the Committee ruled that

the information was “privileged” and refused to admit the evidence, except as a proffer

(Respondent Exhibit 8), going so far as to prevent Ms. McCool from even saying the word

“complaint” in her testimony before the Committee.

Yet in spite of the record, the Board represents to this Court that “Respondent is aware

that a warrant for her arrest is reportedly pending in Mississippi, but stated she has no plans to

travel to Mississippi or go to jail” in the present tense with no qualifications or clarifications at

all. The Board’s failure to comment on the underlying deficiencies in the warrant, but especially

not to disclose that the warrant was withdrawn more than (now) 3 years prior is, at best,

misleading, and considering the seriousness of these proceedings and their public nature,

irresponsible, also at best. At worse, it could be considered by some that its reference to an

outstanding warrant that has little if any probative value or relevance to the charges against Ms.

McCool, was deliberately intended to be inflammatory, falsely casting Ms. McCool as a fugitive


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from justice even as these matters come before this Court. .

The Board also finds, with no further comment, that Ms. McCool “made false statements

about Judge Amacker in multiple motions to recuse which she filed in other unrelated

proceedings in Louisiana.” [LADB Recommendations, 25] Its findings are predicated on clear

legal error.

The Board fails to identify what “false accusations” Ms. McCool made in the motions to

recuse but the ODC’s complaint relays Judge Amacker’s accusation contained in her

correspondence to the ODC on January 23, 2013, expressing frustration about how long the

investigation is taking and complaining that Ms. McCool’s allegations in multiple motions to

recuse her that she has previously “expressly” admitted extreme bias and conflict in prior

motions to recuse is false.

This Court is invited to pause for a moment to consider why it would be necessary for

Ms. McCool to have to file multiple motions to recuse Judge Amacker from her cases while

Judge Amacker herself admits in her correspondence to the ODC that she is a “potential witness

against” Ms. McCool in the proceedings. Although it is implied, it might not be clear from Judge

Amacker’s correspondence that at the time she wrote it, she had already voluntarily recused

herself from four other cases upon Ms. McCool’s individual motions in those cases, but

considering the nature of even the reasons she gave for the recusal, inexplicably had failed and

refused to that point to sua sponte recuse herself from all of Ms. McCool’s cases.

The Board, however, adopts the approach of the Committee and focuses on the meaning

of the single word “expressly” used by Ms. McCool in the third and fourth motions to recuse she

was obligated to file on behalf of her clients to spare Judge Amacker the embarrassment of

repeating the specific and serious allegations against Judge Amacker that Ms. McCool had

included, in accordance with La. CCP. art. 151, in her previous motions to recuse.

Although the evidence in the record overwhelming supports that Judge Amacker was in

fact biased and had a conflict with Ms. McCool that warranted her self-recusal for months prior

to Ms. McCool’s first motion, the Committee and subsequently the Board rely upon a semantic

argument to find that Judge Amacker’s repeated voluntary recusals without any objection to the

language of those pleadings when they were submitted to and signed by her in each individual

case does not correlate to a an “express” admission of extreme bias and conflict with Ms.


Page 9 of 22

McCool

Significantly, neither Judge Amacker, nor any opposing counsel, filed for sanctions

against Ms. McCool pursuant to La. C.C.P. art. 863. Furthermore, although La. C.C.P. art. 864

provides that an attorney may be subjected to “appropriate disciplinary action for a willful

violation of any provision of Article 863”, Judge Amacker never filed a complaint against Ms.

McCool, although the judge acknowledges that she is a “mandated reporter” of attorney

misconduct. Respondent Exhibit 14, p. 25.

Recusal grounds are exclusively those found in La. C.C.P. art. 151, including such bias or

prejudice against a party or counsel which would render the judge unable to conduct a fair trial,

as set forth under art. 151 (A)(4). The “appearance of impropriety” is not a proper basis for

recusal. As the First Circuit Court of Appeal explained in Slaughter v. Board of Supervisors of

Southern University, 76 So.3d 465, 470-471 (La.App. 1st Cir. 2011):

A judge is presumed to be impartial. The grounds for recusal enumerated in Article 151 are exclusive and do not include “a substantial appearance of the possibility of bias” or even a “mere appearance of impropriety” as causes for removing a judge from presiding over a given action. Article 151 requires a finding of actual bias or prejudice, which must be of a substantial nature and based on more than conclusory allegations.

Even though Judge Amacker was unquestionably biased against Ms. McCool, as

evidenced by her communications to the ODC, Judge Gambrell, and to the Committee, Judge

Amacker never sua sponte disclosed her actions to Ms. McCool, nor recused herself from Ms.

McCool’s cases.

Judge Amacker never specifically denied-the specific allegations pled by Ms. McCool, as

required by Art. 151. Instead, in each individual instance, Judge Amacker lined out the language

only in the attached order and wrote in that she was recusing based on the “appearance of

impropriety” Respondent R-5.

However, Judge Amacker could not have actually self-recused in good faith as he claims,

instead of recusing herself in response to Ms. McCool’s motions, since a judge has an obligation

as part of her sworn duty as a judge to hear and decide cases properly brought before her, and can

only voluntarily self-recuse “for legally compelling reasons or simply because [s]he believes that

[s]he cannot fairly and impartially judge a matter before h[er].” Slaughter, supra, at 471. See

also, Southern Casing of La., Inc. v. Houma Avionics, Inc., 2000-CA-1930 (La.App.2d Cir.


Page 10 of 22

9/28/01) 809 So.2d 1040, 1049-1051; In Re Lemoine, 96-O-2116 (La. 1/14/97), 686 So.2d 837.

Thus, Ms. McCool’s position is that Judge Amacker’s recusals after she filed motions

alleging bias and prejudice objectively and reasonably evidence admissions of bias and prejudice,

despite Judge Amacker’s claim of only the “appearance of impropriety.” See, In Re Lemoine, 96-

O-2116 (La. 1/14/97), 686 So.2d 837.

Rule 3.3(a) (1), Rules of Professional Conduct, preclude a lawyer from “knowingly”

making a “false statement of fact or law to a tribunal.” Under Rule 1.0 ((f), “knowingly” denotes

“actual knowledge”, while “knowledge may be inferred from the circumstances.” If any of Ms.

McCool’s knowledge can be inferred from the circumstances, it is that Judge Amacker admitted

bias and prejudice by her recusal orders. Ms. McCool’s statements reasonably interpreted the facts

and law in her recusal motions, do not constitute infractions of this Rule.

First Amendment Violations

Ms. McCool’s punishment sought here for her critical speech about these two judges is

frankly unconstitutional punishment of Ms. McCool for her exercising her right to free speech

addressing matters of public concern. Ms. McCool’s right to free speech is guaranteed by the First

Amendment to the United States Constitution and Art. 1, § 7 of the Louisiana Constitution.

Prior restraint of speech is generally impermissible. Gulf States Theatres of Louisiana, Inc.

v. Richardson, 287 So.2d 480 (La.1973); State v. Lee, 2001-2516 (La. App.4th Cir. 4/6/01), 787

So.2d 1020 [prior restraint “least tolerable infringement” on First Amendment rights]; In re Matter

Entitled State v. Spillars, 2001-1098 (La.App.3rd Cir. 4/3/02), 813 So.2d 1184 [prior restraint has

heavy presumption against constitutional validity]; Davis v. East Baton Rouge Parish School

Board, 78 F.3d 920 (5th Cir. 1996) [prior restraint of speech presumed invalid]; DeSalvo v. State,

624 So.2d 897 (La.1993), cert den. 510 U.S. 1117 [government cannot regulate speech because of

its message, ideas, subject matter, or content]; In re Warner, 2005-1303 (La. 3/17/09), 21 So. 3d

218 [prior content based restraint of speech presumptively invalid, can only be allowed under strict

scrutiny test of serving a compelling state interest and imposing a narrowly tailored restriction

serving that compelling interest]; See, also Hakim v. O’Donnell, 49-139 (La.App.2d Cir. 6/25/14),

144 So.3d 1179.

During the last four years, the United States Supreme Court has made it sufficiently clear

that the First Amendment prohibits any governmental attempt to restrict expression based on its


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content, or its intended audience, particularly where the speech addresses matters of public

concern. See, McCullen v. Coakley, 134 S.Ct. 2518, 189 L.Ed.2d 502 (2014); Lane v. Franks, 134

S.Ct. 2369, 189 L.Ed2d 312 (2014); Agency for International Development v. Alliance for Open

Society International, 133 S.Ct. 2321, 186 L.Ed2d 398 (2013); U.S. v. Alvarez, 132 S.Ct. 2537,

183 L.Ed2d 574 (2012);Brown v. Entertainment Merchants Association, 131 S.Ct. 2729, 180 L.Ed.

708 (2011); Sorrell v. IMS Health, Inc., 131 S.Ct. 2653, 180 L.Ed. 2d 544 (2011)Error! Bookmark

not defined.; Snyder v. Phelps, 131 S.Ct. 1207, 179 L.Ed2d 172 (2011); U.S. v. Stevens, 130 S.Ct.

1577, 176 L.Ed.2d 435 (2010).

Accordingly, these guarantees are the essence of Judge Feldman’s ruling in King v.

Caldwell, 21 F. Supp. 3d 651 (E.D.La.2014), holding that discussions of ethics complaints against

public officials cannot be constitutionally suppressed.

B. Violation of Rule 8.4(d): Engaging in conduct prejudicial to the administration of justice.

Here, the board vaguely finds Ms. McCool’s conduct to have been undignified and

unprofessional, but fails to specifically identify the offensive conduct. [LADB

Recommendations, 25-26]. It goes on to say that her conduct threatened the independence and

integrity of the court and was clearly prejudicial to the administration of justice. The Boards

remarks in support of this finding strongly suggest that it finds that it is contrary to the

administration of justice, undignified and unprofessional for an attorney to exercise her 1st

Amendment right to publicly discuss allegations of child sexual abuse, and to draw the public

attention to the conduct from the bench of elected judges in matters that the public retains

significant and abiding interest.

The Board’s conclusory statement that Ms. McCool’s conduct was “intended to

intimidate and/or influence the judges’ future rulings in the underlying proceedings” is not only

not supported in the record – and specifically denied by Ms. McCool – but is not possible within

the procedural process of either case, and could only be accomplished with the complicity of the

judges involved. The only procedural vehicles that would have permitted the judges to “undo”

the judgements complained of were legitimate ones. The online petitions had absolutely no

independent means of altering Judge Amacker’s or Judge Gambrell’s ruling and the suggestion

that they were somehow “intimidating” is simply not supported by the language in them, or any


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comment made directly or indirectly to either judge by Ms. McCool or anyone else. If Ms.

McCool can be considered “guilty” of attempting to influence the judges, then she can only be

found guilty of encouraging the public to extoll their elected judges to do justice, listen to the

evidence, apply the law, and protect children. These comments, and the means by which she

expressed them are clearly protected by the 1st Amendment.

Accordingly, there is no clear and convincing evidence supporting a finding of a Rule

8.4(d) violation.

C. Violation of Rule 3.5(a): Seeking to influence a judge…by means prohibited by law.

Under this Rule, the Committee determined (but the Board rejected its finding ) that since

a violation of Rules 8.4(c) & (d) were “violations of law”, ipso facto Ms. McCool violated Rule

3.5 (a) in her attempts to influence the judges. The legal profession has drawn no clear rules for

attorneys’ online discussions of pending cases. See, Rachel C. Lee, Symposium: Media, Justice,

and the Law: Note: Ex Parte Blogging: The Legal Ethics of Supreme Court Advocacy in the

Internet Era, 61 Stan. L. Rev. 1535 (April, 2009). For the reasons stated under the discussion of

Rules 8.4(c) & (d) above, there is no violation of Rule 3.5. No clear and convincing evidence of a

violation of this Rule exists in the record.

The Board concluded that since Ms. McCool herself had not engaged in ex parte

communications with the judge, she had not violated this rule. (Board Recommendations page 26)

D. Violation of Rule 8.4(a): Violating the rules, or assisting or inducing another to do so, or do so through the acts of another.

The Board fails to discuss how members of the public who called Judges Gambrell and

Amacker through the contact information provided by their respective offices constituted “ex

parte communications.” Judge Amacker could not explain why the invitation to the public to

contact the judge through the information contained in the online petitions, was any different

from her own invitations to the public to contact her through the very same information. (See

Respondent Exhibit 12; compare to ODC 12-C, second page). Both judges admitted that they

have procedures in place to ensure that calls coming through the contact information published

online protect them from ex parte communications. (2014-02-27 Transcript pp. 72, 92, 156, Both

judges admitted that they sought out the information online only after “others” told them about it

and directed them to it. In Judge Gambrell’s case, it was Judge Amacker who contacted her and


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directed her to the online petitions. (2014-02-27 Transcript pp. 71, 92; Gambrell deposition, p.

10, 13, 14-15, p. 22)

There is no evidence in the record that any of the communications that were sent to the

judges were intended or did in fact afford either party a procedural or tactical advantage, nor is

there any discussion of how comments directed to the judges that they “look at the evidence and

apply the law before they make a decision,” or any of the other statements contained in the

petitions, could have given either party a procedural or tactical advantage over the other. To the

contrary, the admonitions in the petitions did nothing other than ensure that both parties would

receive the same treatment – a hearing based on the law and evidence.

Again, no clear and convincing evidence exists for any violation of this Rule. Ms.

McCool was exercising her free speech rights, and, as shown above, having the voting public

encourage the judges to protect children, listen to evidence, do justice, and apply the law in no

way constitutes a Rule violation. The finding against Ms. McCool in this regard is manifest error.

E. The hearing committee and disciplinary board manifestly erred in recommending that Ms. McCool be suspended for one year and a day, attend the Bar’s ethics school, and pay all costs.

Should this Court find any of the Rules were violated by clear and convincing evidence,

Ms. McCool urges that the Court impose no more than a public reprimand under the Rule XIX, §

10(C) factors. Ms. McCool’s only interest was the protection of two very vulnerable children.

This distinguishes her from every other attorney respondent appearing before this Court. The lead

case cited in the Recommendations is easily distinguishable. In In re Karst, 428 So.2d 406 (La.

1983), the lawyer accused a judge of outright corruption, including taking bribes. But, in In re

Simon, 04-2946 (La. 6/29/05) 913 So.2d 816, where an attorney engaged in a satirical insulting

attack on a judge, he was only suspended for 30 days of a suspended six-month sentence.

CONCLUSION Ms. McCool is a veteran of the U.S. Coast Guard, which she served as an active duty and

reserve member over a span of more than 25 years. Her primary reason for becoming an

attorney was to represent victims of domestic violence, especially children, and to practice

family law. Since being admitted to the Bar, the bulk of her practice has indeed been devoted to

family law matters, with the exception of the 3.5 years between 2003 and 2006 when she was


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serving on active duty after being activated in relation to the events following 9/11.

Since becoming an attorney, she has devoted countless hours to providing free legal

assistance and support to victims of domestic violence and countless hours of pro bono services

to clients struggling in the family court who would otherwise have no representation in

proceedings which impact their fundamental rights to parent and protect their children. While

serving on active duty in Washington, DC, she volunteered and was trained as a CASA, and

continued to provide, in addition to her regular duties, legal assistance to active duty service

members and their dependents on a variety of matters, including domestic violence and other

family law issues.

Ms. McCool has also always been an outspoken advocate for civil liberties,

accountability, and fair treatment, even during her military career which has included voicing

criticisms of policies and practices to senior officers ranking as high as Admiral. She is

accustomed to experiencing both grudging respect and retribution for speaking out but has never

shied from doing so when circumstances and her duty required it, whether during her military

service, in her public and personal life, or in her practice of law.

By her oath to her country and the practice of law, Ms. McCool accepted a duty, as

reflected by the 1st Amendment, to speak out against failures of government and injustices

wherever they are found, regardless of the station or status of those who would disagree, or who

have the power to punish because they disagree and is adamant that, as Americans sworn to

uphold the Constitution and laws of this state and the country, we all have an obligation to speak

truth to power, whether Power likes it or not.

That obligation, which was instilled by Ms. McCool's parents and has become an integral

part of her character, is at the heart of these proceedings because at its heart, these proceedings

are an attempt to purge from the profession and quiet not only Ms. McCool, but any other

attorney who would do nothing other than publicly criticize a judge and engage the public to

insist that judges are bound to the rule of law; that they are bound by our State and Federal

Constitution(s) to afford due process; that every decision rendered by a judge must be rooted in

law and based on actual evidence, not mere opinion, and that when judges fail and refuse to be

bound by these principles, that it is our duty, as citizens regardless of our own station or position,

to speak out against it because the position someone holds does not render justice, any more than


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individuals do. Justice, in this country founded upon the rule of law, arises solely from the rule

of law, and no one who values the fundamental principles this 3rd branch of the government is

entrusted to protect should allow a person's station to substitute for the rule of law.

The formal charges against Ms. McCool arise almost entirely from her exercise of her 1st

Amendment right to engage the public and criticize two seated judges regarding their handling of

contested custody matters pending in Mississippi and Louisiana simultaneously. The ODC has

attempted to depict Ms. McCool as a sore loser, “admittedly unhappy” with the rulings of the

trial court which then serves as her motivation to disseminate “false, misleading and

inflammatory information” on the internet and through social media about judges Deborah

Gambrell, a Mississippi judge, and Dawn Amacker, of the 22nd JDC in St. Tammany Parish.

The arguments upon which the Committee relied in reaching its conclusions start from

flawed logic, and proceeds upon multiple errors of fact, misplaced assumptions about events that

occurred in the Mississippi and Louisiana proceedings, basic misapplication of fundamental

principles of law, and at every turn, an overt hostility to Ms. McCool’s 1st Amendment right to

engage in politically protected speech – including criticism and outrage directed at the conduct of

two seated judges which criticism, as this record shows despite the ODC’s best efforts,

accurately reflect the judge’s actions.

The findings by the Hearing Committee and the Board differ in identifying what specific

statements made by Ms. McCool violated the Rules, and attach different significance to the

conduct deemed as offensive. Both bodies found a violation of the prohibition against engaging

in ex parte communication, but neither body explained how the statement “look at the evidence

and apply the law before making a decision” or any of the statements complained of did, or could

have, provided a procedural or tactical advantage to Ms. McCool or her client(s).

Without exception, all of the statements complained of were made about or directed to

Judges Amacker and Judge Gambrell yet Ms. McCool was not charged with are found by either

the Hearing Committee or the Board to have violated Rule 8.2(a): “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 … “(emphasis added).

Instead, Ms. McCool was found to have violated Rule 8.4(c): Engaging in conduct

involving dishonesty, fraud or misrepresentation. The conduct, in every instance, however, is


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speech and as this record shows, speech that even in her role as an attorney is protected by the 1st

Amendment and furthermore, exactly the kind of speech that the 1st Amendment was ever intended

to encourage to ensure the continued integrity of the government, including the judiciary.

As a predicate to the ODC’s charges and findings against Ms. McCool, it relies heavily on

references to, and assumptions about, the Mississippi proceedings entitled Boyd v. Boyd, which,

as the ODC takes pains to point out throughout the proceedings, is a sealed record. Because the

record is sealed, and because Ms. McCool is not now nor ever has been a party to those

proceedings, or enrolled as counsel in those proceedings, she has only second hand information

about those proceedings and access to only parts of the record that were relevant to the Louisiana

proceedings. Thus, especially with regard to orders relied upon by the ODC, she is at a

disadvantage in responding to how the ODC has chosen to characterize those proceedings. In

short, the rendition of the MS record by the ODC in this matter is not complete and what is included

by the ODC does not necessarily accurately reflect actual events. Nevertheless, in response to

some of the information the ODC has chosen to include, Ms. McCool would point out that:

John Smallwood, the first guardian ad litem appointed in the Mississippi case, was not

properly trained under Mississippi rules for guardian ad litems in cases involving

allegations of sexual abuse. Worse, as this record shows (Respondent Exhibit R-16) the

second guardian ad litem appointed in the Mississippi proceedings was not qualified to

serve in any capacity as a GAL;

Neither guardian ad litem, thus, was qualified to make any conclusions about the merits of

the sexual abuse allegations in the case;

John Smallwood did not ever make formal findings or conclusions about the merits of the

allegations of abuse, at least not properly on the record such that those recommendations

could be known, understood or tested. The second GAL, who was not qualified in any

sense, did not conform in substantive ways to the rules and procedures established by the

Mississippi Supreme Court in fulfilling his role as GAL;

ODC-5, the August 13, 2007 Mississippi order, is purported by the ODC to be evidence of

a consent agreement in the Mississippi proceedings entered into by Raven preventing her

from engaging in certain activity with her children. The document provided by the ODC

is not styled as a consent agreement and does not contain the signatures of all parties to


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acknowledge a consent. It bears only the judges signature and Mr. Smallwood’s signature

and no information as to how or when it was served, or what if any opportunity Raven may

have had to oppose it. Nor is it an original or a certified as a true copy by any authority.

As such, it is not clear if the document is valid, final, or legally enforceable. In any case,

of particular relevance, Ms. McCool is neither a party nor counsel of record in those

Mississippi proceedings when that order was issued, or at any time before or thereafter. As

such, its relevance continues to be a mystery.

ODC-5, the August 13, 2007 Mississippi order, was not a result of Mr. Smallwood’s

findings regarding the allegations of abuse. The investigation, as that time, was ongoing,

and no trial or hearing on the merits of the allegations had taken place. Nor did the ODC

offer any underlying testimony or documents to inform what the motivation for this

document was. Its relevance to these proceedings continue to be a mystery.

ODC-6 references an order dated June 2, 2008, in the Mississippi proceedings to seal the

record. Notwithstanding the same objections as to form and authenticity previously raised

regarding the August 13, 2007 order, this order also begs for relevance for the same reasons

as previously stated: Ms. McCool was not a party or an attorney of record in the proceedings

at the time the order was issued or at any time before or after.

ODC 7 references an order from the Mississippi proceedings signed on September 7, 2008,

which is styled as an Agreed Judgement and which contains language that seeks to prohibit,

into perpetuity, the parties, or anyone on their behest, from making, among other things,

“any audio or video recordings of the children in an attempt to investigate or document

alleged abuse.” Notwithstanding the language of the order itself, this document also suffers

from the same defects as the others, and in particular, its relevance to these proceedings

since it is uncontroverted that Ms. McCool was never a party or attorney of record in the

Mississippi proceedings.

These points are important and relevant because they go to the heart of what gave rise to

these proceedings, and demonstrate the calculated choices the Hearing Committee made in

presenting the “facts” and evidence in a way that best supports its purpose. The Hearing

Committee argued that when Ms. McCool “disagreed” with the rulings of Judges Amacker and

Gambrell, she turned to the internet and social media to disseminate information about the


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judges. This is, at best, a gross oversimplification of Ms. McCool’s motivations for taking her

“disagreement” with the judges to the public, and at worst, is a deliberate mischaracterization of

what Ms. McCool has repeatedly said on and off the records about what compelled her to speak

out publicly.

The Hearing Committee’s finding of fact (at the bottom of page 16 in the Board’s

recommendations) is just wrong, and significantly so. The Hearing Committee’s finding that

“Judge Amacker also made certain rulings, including declining to exercise jurisdiction in the

adoption matter pending the outcome of the Mississippi proceedings” is false, which is

unassailable, based both on the record of those proceedings and the record currently before this

court. This false statement by the Committee, that is likely attributable to a mistake, is nevertheless

significant because it lies at the heart of Ms. McCool’s criticisms of Judge Amacker.

As this record shows, Judge Amacker did not decline to exercise subject matter jurisdiction

in the adoption proceeding (her subsequent voluntary recusal from that case and its transfer to

another division speaks for itself. See Respondent’s exhibit R-5, Motion to recuse filed in In Re

Maurer applying for intrafamily adoption). Instead, and as Ms. McCool explained in her

correspondence to the ODC in May of 2012 (ODC-4), Judge Amacker stayed the adoption

proceedings indefinitely in March of April of 2011, contrary to the express provisions of La.Ch.C.

art. 1253. The adoption proceedings remained stayed until June of 2012, during which time Judge

Amacker continued to preside over the case even as she complained (unbeknownst to Ms. McCool)

of Ms. McCool’s conduct to the ODC in relation to that case for 9 to 10 months before she

voluntarily recused herself upon Ms. McCool’s motion filed in May of 2012.

However, considering what Ms. McCool has been accused of, the calculated presentation

as certain “background” information, and false statement made by the Hearing Committee, along

with other representations that are misleading and inflammatory, in formal documents presented to

this Court in support of serious legal proceedings, is worth putting in perspective. There can be no

question that this case is unprecedented in that it seeks to impose sanctions – very serious sanctions

– on an attorney based on purely subjective and debatable characterizations about what is

misleading and inflammatory, and for a single reference in an otherwise true statement, made out

of court that, at worst, was made in error, and perhaps at even worse, was accurate from the

perspective of a mother who was not an attorney, seeking nothing other than justice within the


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courts.

And while much of what in the record is subject to interpretation, and thus debate, what is

not unclear is that the conclusions and recommendations of the Hearing Committee, and as adopted

by the Board, are not supported by any facts or evidence that can show wrong doing by Ms. McCool

and that the Board has failed to meet its burden of showing by clear and convincing evidence that

Ms. McCool violated any rules of professional conduct.

Wherefore, the Court is respectfully urged to reject all findings of misconduct against Ms.

McCool. Alternatively, the Court is implored to impose noting more than a public reprimand.

Respectfully submitted,

Nanine McCool Nanine McCool, LSBR#27026 1772 Orleans St. Mandeville, LA 70448 985-624-7664 866-257-7742 (Facsimile)

2015-04-05 in re mccool updated sct brief

Documents

violation of rule

joyce nanine mccool

supreme court of louisiana

international development

conduct prejudicial

g states theatres of

open society international

bars ethics school