Supreme Court of Louisiana
FOR IMMEDIATE NEWS RELEASE NEWS RELEASE #005
FROM: CLERK OF SUPREME COURT OF LOUISIANA
The Opinions handed down on the 30th day of January, 2019, are as follows:
PER CURIAM:
2018-B-0383 IN RE: WILLIAM MAGEE
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 William Magee,
Louisiana Bar Roll number 8859, be and he hereby is suspended
from the practice of law for a period of two years. 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.
WEIMER, J., concurs in part and dissents in part and assigns
reasons.
HUGHES, J., dissents with reasons.
01/30/19
SUPREME COURT OF LOUISIANA
NO. 2018-B-0383
IN RE: WILLIAM MAGEE
ATTORNEY DISCIPLINARY PROCEEDING
PER CURIAM
This disciplinary matter arises from formal charges filed by the Office of
Disciplinary Counsel (“ODC”) against respondent, William Magee, an attorney
licensed to practice law in Louisiana.
UNDERLYING FACTS
The ODC alleges that in three separate transactions between 1999 and 2001,
respondent used false and deceptive practices to obtain the ownership of immovable
property in St. Tammany Parish belonging to absentee owners.1 To that end,
respondent created three fictitious quitclaim deeds purporting to transfer the
properties from his closely held corporation, Hickory Glade, Inc., to himself.
Respondent then signed the name of Timothy Dunaway, his Hickory Glade co-
owner, to the deeds as seller without Mr. Dunaway’s knowledge or consent.
Respondent affixed his own signature to the documents as buyer. No money
changed hands in the transfers, and respondent acknowledges that Hickory Glade
possessed absolutely no ownership interest in the St. Tammany Parish properties
that the deeds purported to convey. Rather, the ODC alleges that by structuring the
1
The first property, the Nill property, was subdivided into two lots that were eventually owned by
complainants Carol Robinson and Lloyd and Nicole Martin. The second property, the Wantz
property, was eventually owned by complainants Andrea and John Lampo. The third property,
the Hymel and Turnbull property, consists of several lots.
transactions in this way, respondent sought to create the illusion of a routine arms-
length transaction signifying the bona fide transfers of the properties.
After having the signatures on the deeds notarized, respondent inserted these
false transactions into the chain of title of all three properties by filing them into the
public records of St. Tammany Parish. Respondent then filed suits for declaratory
judgment in the 22nd Judicial District Court for the Parish of St. Tammany seeking
to have him declared as owner of the properties. In all material respects, the petitions
for declaratory judgment were the same, as follows:
I.
Petitioner possesses as owner a particular parcel of land
(description of land). Petitioner acquired his interest in the
subject property by act dated (date) and recorded as
Instrument (number).
II.
Petitioner has been in possession of the subject property as
owner in excess of one (1) year, which possession has been
uninterrupted and continuous.
III.
Petitioner has cut trees on the property, fenced the
property, placed “For Sale By Owner” signs on said
property, and otherwise possessed as owner the subject
property during his period of possession.
IV.
An examination of the public records reveals a disturbance
in law affecting the subject property. It appears as though
the following person(s) purportedly owned interests in the
subject property, having acquired said interests by
acquisitions recorded in the official records of the Parish
of St. Tammany, as follows:
(Previous owner(s), COB, date)
V.
The above named individuals are the last known owners
or purport to have an ownership interest in and to the
subject property, having acquired said interest by the acts
dated and recorded as indicated above.
VI.
The said defendants are absentees and/or non-residents as
those terms are defined in the Louisiana Code of Civil
Procedure and it is therefore necessary that an attorney be
2
appointed to stand in judgment for and receive service of
citation for said defendants.
VII.
Petitioner alleges and shows that by his open, actual and
notorious corporeal possession of the property made the
subject of this litigation, that he is entitled to a judgment
of this court maintaining him in possession of the subject
property and ultimately declaring him to be the owner of
said property.
WHEREFORE, Petitioner prays that an attorney at law be
appointed to represent the absent defendants, (name), their
spouses, heirs, successors and assigns, if they be known,
and to receive service and citation for them, attempt to
locate them, and to stand in judgment for said absent
defendants.
Petitioner further prays, that after due proceedings had,
there be judgment in his favor and against the absent
defendants, recognizing the plaintiff’s right to the
possession of the immovable property described above,
and maintaining him in possession thereof, and in the
event that the defendants do not assert an adverse claim of
ownership of the said immovable property in their answer
herein that there be judgment herein ordering the
defendants to assert any adverse claim of ownership of the
said immovable property in a petitory action to be filed
within a delay to be set by the court not to exceed thirty
days after the date the judgment becomes executory, or be
precluded thereafter from asserting any ownership thereof
and declaring petitioner to be the owner of said property.
Respondent testified on his own behalf at the default hearings. His testimony
tracked the representations made in the petitions for declaratory judgment. He did
not advise the court of the fact that he had drafted the quitclaim deeds himself,
having assumed the role of both seller and purchaser. The ODC alleges that in
failing to inform the court of this crucial fact, respondent sought to give the judges
the false impression that the “acts” which he referenced in his petition were bona
fide transfers of ownership.
Once he obtained default judgments declaring him to be the owners of the
tracts, respondent sold the properties to a third party, who in turn transferred lots to
the complainants as home sites. At the time these individuals purchased their lots,
3
they were unaware of respondent’s title practices. They thereafter began to
experience difficulties in trying to sell their properties or refinance their mortgages.
Title insurers refused to issue title policies on the properties involved, citing
respondent’s quitclaim deeds as a “cloud” on the title, which resulted in failed home
sales and refinancings.
One of the purchasers, complainants Lloyd and Nicole Martin, filed suit in
state court against their title insurer, Fidelity National Title Insurance Company,
seeking to hold the insurer responsible for curing title defects and paying damages
for harm and inconvenience caused by the defective title. The suit was later removed
to the United States District Court for the Eastern District of Louisiana. In turn, the
title company sued respondent as a third-party defendant, alleging that he had caused
the defects by virtue of the suspect methods which he used to obtain prior title.
Respondent answered the suit and filed a motion for summary judgment
which the federal court denied in 2011. The following year, in 2012, the federal
court granted judgment on the third party demand against respondent and in favor of
the title company, finding respondent liable for improperly creating a cloud on the
title by manufacturing a chain of title to the property using questionable quitclaim
deeds. Respondent did not appeal the federal court’s judgment and was ordered to
pay the cost of the record owners’ interest in the properties.
DISCIPLINARY PROCEEDINGS
In October 2012, the ODC received three complaints against respondent from
persons who had purchased lots in St. Tammany Parish in which respondent and
Hickory Glade had inserted themselves in the chain of title using the procedure set
forth above. In April 2015, the ODC filed formal charges against respondent,
alleging that his conduct violated the following provisions of the Rules of
Professional Conduct: Rules 3.3(a) (candor toward the tribunal), 3.3(d) (in an ex
4
parte proceeding, a lawyer shall inform the tribunal of all material facts known to
the lawyer that will enable the tribunal to make an informed decision, whether or not
the facts are adverse, and 8.4(c) (engaging in conduct involving dishonesty, fraud,
deceit, or misrepresentation) of the Rules of Professional Conduct.
Respondent answered the formal charges and denied any misconduct.
According to respondent, after undertaking extensive legal research, he had
determined that title to abandoned properties could be legally transferred via a
declaratory judgment action, even if the transferor had no valid title to the property.
In utilizing this procedure, respondent would identify an abandoned piece of
property and would attempt to locate the last owners of record to explore purchasing
the property. If the owners could not be located, respondent would insert himself
into the chain of title by having someone execute a quitclaim in his favor. The
quitclaim would then be recorded in the public records. Respondent has never
contended or represented that the quitclaiming party had any actual ownership
interest in the property. Rather, respondent created the quitclaim solely as a
document in the public records that established civil possession of the property.2
Both before and after recording the quitclaim, respondent would exercise open and
obvious physical possession over the property by doing things such as having a
survey of the property made, placing “For Sale by Owner” signs on the property,
fencing the property, and mowing the grass and otherwise cleaning up the property.
After a minimum of one year of possession, respondent would cause a
declaratory judgment action to be commenced pursuant to La. Code Civ. P. art.
2
In his sworn statement, respondent also explained that he used the quitclaim deeds “merely to
establish a date on which civil possession began.” However, in his testimony at the formal hearing,
respondent testified that the quitclaim deeds also had “the added effect of allowing the property to
be put back on the tax rolls and you do another act of civil possession which is pay the taxes.”
Moreover, respondent claimed that some of the properties he acquired were “landlocked” and not
publicly accessible, and therefore his acts of corporeal possession were not visible to the public,
so the quitclaim deed was an extra step above and beyond what was required by law.
5
3654. 3 If the last titled owners of the property still could not be located and served,
respondent would request that a curator be appointed to represent their interests. If
still no one came forward, respondent would proceed with default judgment, at
which time the court would declare him to be the rightful owner of the property.
In 1996, when respondent was the Town Attorney for the Town of Abita
Springs, he was instructed by the town to undertake a legal process whereby various
vacant and abandoned properties within the city limits could be deeded to the town
as green spaces and/or brought back into commerce. Respondent initially
determined that ownership to these properties could be transferred to the town via
the use of the declaratory/possessory actions procedure, but subsequently further
research caused him to conclude that this procedure could not be used by a public
entity. Respondent, however, continued to use the procedure for his or his private
clients’ use and development. In 1996, some members of the Board of Aldermen
objected to this. The town had respondent’s procedural methods of obtaining
ownership over vacant property independently reviewed by two other attorneys, who
according to respondent concluded that his actions were legal and authorized by
Louisiana law. Nevertheless, because of the controversy and the potential for a
conflict of interest, respondent resigned his position as the Town Attorney for the
Town of Abita Springs.
3
La. Code Civ. P. art. 3654, entitled “Proof of title in action for declaratory judgment, concursus,
expropriation, or similar proceeding,” provides in pertinent part as follows:
When the issue of ownership of immovable property or of a real
right therein is presented in an action for a declaratory judgment, …
the court shall render judgment in favor of the party:
(1) Who would be entitled to the possession of the immovable
property or real right therein in a possessory action, unless the
adverse party proves that he has acquired ownership from a previous
owner or by acquisitive prescription; …
6
Respondent maintained that he has continued to use this procedure on a
number of occasions, both on his own behalf and on behalf of clients. 4 He suggested
that his actions were at all times open and obvious and were fully documented in the
public and court records. No Louisiana court has held that respondent’s practices of
obtaining property through the declaratory/possessory actions procedure is illegal or
unsupported under Louisiana law. Nevertheless, respondent stated that he ceased
using this procedure in 2009 when certain title insurers began to refuse to issue title
insurance on transactions involving the procedure.
Regarding Hickory Glade, respondent stated that he incorporated the entity in
1991 to purchase and hold one piece of immovable property. At all times pertinent,
respondent served as vice president of Hickory Glade. Respondent and his wife, and
Timothy Dunaway and his wife, were the original incorporators of Hickory Glade.
However, according to respondent, his wife and Mr. and Mrs. Dunaway played no
role in the operation of Hickory Glade. Mr. Dunaway, the president of Hickory
Glade, did not work for the corporation and only participated in charging revenues
generated by Hickory Glade in the purchase and sale of one piece of campground
property. Virtually all operations of Hickory Glade were conducted by respondent
and it was the routine practice for him to act on behalf of Hickory Glade.
Respondent does not deny that he signed Mr. Dunaway’s name to the
quitclaim deeds referenced in the formal charges. However, this was an act on behalf
of Hickory Glade and not Mr. Dunaway personally. It did not injure any party,
including Mr. Dunaway, and respondent’s use of Mr. Dunaway’s signature was
subsequently ratified by authentic act of Hickory Glade. There has never been a
finding of forgery. Moreover, respondent’s signing of Mr. Dunaway’s name to the
4
Based on research, respondent believes that he has used this procedure fourteen times to acquire
immovable property. Nine of the transactions were done on behalf of clients, and five times the
transactions were done for respondent’s personal benefit. In the three cases cited in the formal
charges, respondent filed a quitclaim deed into the public record.
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quitclaim deeds was done under his longstanding belief that he had the apparent
authority to act on behalf of Hickory Glade based on the consistent operations of
Hickory Glade in the past.
Respondent concluded:
Mr. Magee respectfully disagrees that there was
something unethical in the above referenced procedure
used by him in obtaining property. The procedure used by
Mr. Magee and others, while admittedly unusual and “out
of the box” as described by Mr. Magee, is not illegal. The
procedure, however, was openly used and discussed for
many years including while Mr. Magee was employed by
the town of Abita Springs. Mr. Magee’s procedure has
been held valid by a number of judges in the 22nd Judicial
District Court. In addition, two other independent lawyers
retained by the town of Abita Springs and unrelated to Mr.
Magee opined that his procedure was authorized under or
supported by Louisiana law. Furthermore, the properties
at issue were always vacant, abandoned and off the tax
rolls. Mr. Magee’s actions actually placed these properties
back into the stream of commerce benefitting Mr. Magee,
the subsequent owners, and the various taxing authorities
in St. Tammany Parish.
Formal Hearing
Following the filing of respondent’s answer, the matter was set for a hearing.
The ODC called the following witnesses to testify before the hearing committee:
Shreveport attorney David Cromwell, who was accepted as an expert in real estate
law and practice; Judge William Burris of the 22nd JDC; New Orleans attorney Scott
Gallinghouse, underwriting counsel for First American Title Insurance Company;
Covington attorney Charlene Kazan, an employee of respondent’s law firm; Judge
Mary Devereux of the 22nd JDC, who was formerly respondent’s law partner; and
complainants Andre Lampo, Carol Robinson, and Lloyd and Nicole Morton.
Respondent testified on his own behalf and on cross examination by the ODC.
He also called the following witnesses to testify before the hearing committee:
Covington attorney Michael Stone, who was accepted as an expert in real estate
8
closings; Covington attorney Patricia Fox; Steve Scoggin, a real estate appraiser and
broker; and Phillip Lynch, a character witness.
Hearing Committee Report
To recap the procedure used by respondent, he took corporeal possession of
the properties in question by building fences, maintaining the grounds, posting “For
Sale by Owner” signs, and other acts of physical possession. He followed physical
possession with civil possession by filing quitclaim deeds into the public records.
According to respondent, the quitclaim deeds simply provided public record of his
intent to possess as owner. A quitclaim deed assigns an interest only; if no interest
by the assignor exists, then no interest is conveyed.
Respondent maintains that he quietly and without interruption possessed the
properties for more than a year. He then brought declaratory actions after
completion of one year of corporeal possession. When an adverse party failed to
prove ownership or better title, the court granted judgment in favor of respondent.
The hearing committee noted that it was presented with extensive testimony
regarding the possessory action, the declaratory action, and the procedure used by
respondent employing La. Code Civ. P. art. 3654. The committee commented that
whether Louisiana law “actually provides for that procedure is in fact debatable and
it is, the committee believes, a matter of legislative intent and we believe there is
some ambiguity that was created by drafters of Louisiana law.” There is no case law
holding that the procedure employed by respondent is any way improper, illicit,
false, or deceptive (or that it is not). Nevertheless, while some St. Tammany Parish
real estate and title attorneys follow the novel procedure endorsed by respondent,
most do not.
Regarding the use of the quitclaim deeds, the committee noted respondent’s
explanation that he used the quitclaim deeds because his acts of corporeal possession
9
would not be evident to the general public due to the location of the properties.
Therefore, respondent created the quitclaim deeds and filed them into the public
record as a step beyond what is required by law. He maintained that it was important
to alert the public that he possessed the property as owner and that the property
would be returned to the tax rolls, which in itself is an act of civil possession.
Some real estate attorneys in St. Tammany Parish believe that these
transactions should not be used to transfer ownership of property and that it would
indeed create a cloud on the property title. At least one title insurance company,
First American, will not write title insurance for such transactions.
Although the committee did not find that the procedure used by respondent
was illicit, fraudulent, or illegal, the committee took issue with the fact that he
created false quitclaim deeds by not having them properly executed and notarized.
Respondent then took the quitclaim deeds and recorded them in the public record in
order to complete these transactions.
The three quitclaim deeds exhibiting signatures of respondent’s corporate
partner, Timothy Dunaway, were actually signed by respondent without Mr.
Dunaway’s prior knowledge and consent. Mr. Dunaway’s signature on each
document is accompanied by an attestation clause certifying Mr. Dunaway’s
signature as being genuine and appropriately witnessed and notarized, none of which
was true. Respondent admitted under oath on at least three occasions that he created
the false quitclaim deeds on which he affixed someone else’s signature and caused
them to be notarized by someone else in his office or had them notarized by someone
not in the presence of appropriate witnesses.
Whether these quitclaim deeds were more the “belt and suspenders,” they
were in fact true legal documents. Respondent used the quitclaim deeds to hold out
to the public that he had possession and filed them into the public record to obtain a
10
declaratory judgment under La. Code Civ. P. art. 3654. Accordingly, the committee
found respondent violated Rules 3.3 and 8.4(c) of the Rules of Professional Conduct.
The committee concluded:
It should be noted that this matter is indeed a hypertechnical matter in which there was extensive testimony
over a three (3) day period. The committee heard
testimony from experts in the field of real estate law, as
well as judges, and practicing attorneys. It should be noted
that the committee believes respondent, Mr. Magee, took
full advantage of each and every opportunity to acquire
title to property that may not have been in a traditional
matter of practice for the St. Tammany area. It should also
be noted that the committee believes that Mr. Magee had
full knowledge and understanding that he indeed was
acquiring title to property in a manner that was highly
suspect and probably not recommended by a majority of
the bar that practices in that community. However, the
committee also believes that because of the ambiguity in
the law and willingness of the Judges of the 22nd Judicial
District Court to sign off and approve in hurriedly and
quick fashion a declaratory judgment where an absentee
property owner was being represented by a curator, not as
much scrutiny was given to this obscure transaction.
In an effort to be extremely cautious about whether or not
Mr. Magee was in possession of the property he decided
to add the extra step of having a quick-claim [sic] deed
executed and filed into the public record identifying that
he had actual possession before the declaration was
signed. However, Mr. Magee admitted that he falsified
these quick [sic] claims and the committee thinks that
although it may not have been a legal effect there was an
ethical duty and obligation for him not to create such
documents.
Based on these findings, a majority of the committee recommended that
respondent be suspended from the practice of law for six months, fully deferred. The
public member dissented.
Both respondent and the ODC filed objections to the hearing committee’s
report. Respondent argued that a lesser sanction than that recommended by the
committee, or no sanction at all, is appropriate in this matter. The ODC took issue
11
with the committee’s factual findings and legal conclusions and asserted that a fully
deferred six-month suspension is too lenient for respondent’s misconduct.
Disciplinary Board Recommendation
After review, the disciplinary board agreed with the hearing committee that
the declaratory judgment procedure used by respondent in acquiring title to the
properties at issue did not violate the Rules of Professional Conduct. The board also
agreed that the manner in which respondent handled the quitclaim deeds constituted
misconduct. The board made the following findings concerning application of the
Rules of Professional Conduct:
Rules 3.3(a)(1) (a lawyer shall not knowingly make a false statement of fact
or law to a tribunal) and 3.3(a)(3) (a lawyer shall not knowingly offer evidence that
the lawyer knows to be false) – The quitclaim deeds each contained the forged
signature of respondent’s corporate partner, Timothy Dunaway, and were signed by
respondent himself without Mr. Dunaway’s prior knowledge and consent. Mr.
Dunaway’s putative signature was also accompanied by an attestation clause falsely
certifying Mr. Dunaway’s signature to be genuine and appropriately witnessed and
notarized, none of which was true, as respondent has admitted.
By making false statements of fact to the court in his testimony in the Magee
v. Nill and Magee v. Wantz matters concerning the quitclaim deeds,5 submitting the
false quitclaim deed into the record in the Magee v. Nill matter, and filing the
petitions for declaratory judgment which referenced the false quitclaim deeds into
5
Respondent testified that he possessed the Nill and Wantz properties as owner and acquired his
interest by virtue of the quitclaim deeds from Hickory Glade. However, as well established by the
ODC, Hickory Glade did not possess an interest in the Nill or Wantz properties which it could
have transferred via the quitclaim deeds to respondent. Therefore, there was no interest to acquire
via these quitclaim deeds. Respondent’s testimony concerning this issue was false and misleading
to the court.
12
the records of the Magee v. Nill, Magee v. Wantz, and Magee v. Hymel and Turnbull
matters, respondent violated Rules 3.3(a)(1) and 3.3(a)(3).
Respondent argues the quitclaim deeds are irrelevant because such deeds
convey only the interest held by the grantor. Here, Hickory Glade had no interest in
the property so the quitclaim deed conveyed nothing. Respondent never stated or
pleaded that he acquired an ownership interest in the property by virtue of the
quitclaim deed but instead merely pleaded and testified that he acquired “his
interest.” He further argues the quitclaim deed was unnecessary and that his one
year of corporeal possession of the property is sufficient to prevail under La. Code
Civ. P. art. 3654. He also claims that his signing of the quitclaim deeds was ratified
by Hickory Glade.
Respondent is correct that a quitclaim deed conveys only the interest of the
grantor, which could be nothing. However, respondent created the appearance of a
legitimate interest, filed it into the public record, cited it in his petition, and testified
that he acquired an interest in the property through this quitclaim deed, all the while
knowing the quitclaim deed conveyed no interest at all. There is no evidence that
he ever disclosed that he had no interest other than physical possession to the courts,
the curators, or any of his buyers.
Accepting respondent’s legal theory, the quitclaim deed was unnecessary.
Respondent claims he prepared and filed the quitclaim deed to establish civil
possession, which was unnecessary because physical possession alone is sufficient.
Therefore, respondent argues, he should not be disciplined for submitting this false
and misleading document that he created, filed and relied upon. The board rejected
this argument, reasoning that the fact that the wrongful conduct was gratuitous does
not make it any less wrongful. Instead, it shows respondent’s state of mind and his
intent to deceive.
13
Finally, respondent argues that signing Mr. Dunaway’s name to the quitclaim
deeds was not wrongful because he had the implied permission of Mr. Dunaway to
do so and Hickory Glade later ratified the act. Mr. Dunaway submitted an affidavit
attesting that respondent handled the day-to-day business operations of Hickory
Glade. He stated that respondent did not ask his permission at the time of signing
the quitclaim deeds, although he probably would have granted permission, if asked.
The ratification cited by respondent is dated March 1, 2011, and was signed by his
wife, Karen Magee, in her capacity as secretary of Hickory Glade. While the board
did not find that the ratification was technically illegitimate, the board found it did
not excuse respondent’s wrongful conduct, citing the approximate ten-year delay in
the execution of the ratification, coupled with Mr. Dunaway’s confirmation that he
did not give respondent permission at the time he signed the quitclaim deeds, and
the absence of any documentation that Mr. Dunaway participated in the ratification.
Rule 8.4(c) – For the foregoing reasons, the board concluded that respondent
also violated Rule 8.4(c). He engaged in dishonest, fraudulent, and deceitful conduct
by confecting false quitclaim deeds, making false statements of fact to the court
concerning the deeds, and submitting either a false deed or petitions referencing the
deeds into the court record. In finding this rule violation, the board specifically noted
that it agreed with the hearing committee’s reasoning and did not find that the
declaratory judgment procedure used by respondent was itself fraudulent or illegal
or in violation of Rule 8.4(c).
Rule 3.3(a)(2) (a lawyer shall not knowingly fail to disclose adverse legal
authority to the tribunal) – The board determined that the other methods of acquiring
ownership of immovable property under La. Civ. Code arts. 3473-3488 (acquisitive
prescription of ten and thirty years) cannot be described as “adverse” to respondent’s
declaratory judgment procedure under La. Code Civ. P. art. 3654. Instead, La. Code
14
Civ. P. art. 3654 arguably provides an additional method of acquiring ownership of
property. Accordingly, the board did not find a violation of Rule 3.3(a)(2).6
Rule 3.3(d) – This rule applies to ex parte proceedings. Here, curators were
appointed to represent the absent defendants in all three declaratory judgment
proceedings. La. Code Civ. P. art. 5091(B) provides that all proceedings against an
absentee defendant shall be conducted contradictorily. Since a curator was
appointed and appeared, the board did not find that these were ex parte proceedings,
even though the defendants never received actual notice and the hearings were
acknowledged to be in the nature of a confirmation of a default. Consequently, the
board found no violation of Rule 3.3(d).
The board determined that respondent violated duties owed to the legal
system, the public, and the profession. His actions were intentional.
The board found that the amount of actual injury caused by respondent’s
misconduct was great. Lloyd and Nicole Martin, the subsequent owners of one of
the lots of the Nill property, suffered extensive financial harm and emotional anguish
after a scheduled April 2008 closing on their Abita Springs home fell through.
Unable to sell their home due to the title defect and facing financial difficulties, they
were forced into default of their existing mortgage and were unable to sell their home
until 2015. This sale was a short sale, which required them to assume an additional
$10,000 in indebtedness which they are currently paying down. The Martins sued
their title insurer, who was able to locate the Nill heirs and obtain quitclaim deeds in
favor of the Martins. Respondent was ordered to reimburse the title insurer for the
cost of obtaining the quitclaim deeds which cleared the cloud on the title.
6
One board member dissented on this point, reasoning that the declaratory judgment procedure
used by respondent to obtain ownership of the three properties at issue in the formal charges was
fraudulent and not sanctioned by existing law, and therefore violated Rule 3.3(a)(2).
15
Likewise, Mr. and Mrs. Lampo, subsequent owners of the Wantz property,
made efforts to refinance the mortgage on their home, but their efforts were delayed
for three years because of the defect in their title. Ms. Carol Robinson, subsequent
owner of another section of the Nill property, suffered harm when she, along with
the Lampos and the Martins, were sued by respondent for defamation, an act of
retaliation for their prior civil RICO suit brought against respondent for damages.
Respondent later sought to persuade complaints to dismiss their disciplinary
complaints brought against him in return for his dismissal of his defamation action.
Ultimately, respondent’s attempt to obtain a dismissal of the disciplinary complaints
was unsuccessful. Respondent’s conduct was publicized in newspaper articles and
online in ways that reflected negatively on the profession.
After considering the ABA’s Standards for Imposing Lawyer Sanctions, the
board determined that the applicable baseline sanction is disbarment. Standard 6.11
of the ABA Standards provides that disbarment is generally appropriate when a
lawyer, with the intent to deceive the court, makes a false statement, submits a false
document, or improperly withholds material information, and causes serious or
potentially serious injury to a party, or causes a significant or potentially significant
adverse effect on the legal proceeding. Here, respondent filed into the public record
the three false quitclaims in the matters at issue, later citing them as evidence of
legitimate property transfers in order to obtain dispositive title of the properties
referenced in the deeds from the St. Tammany Parish courts. As the record reflects,
respondent referenced one of the quitclaim deeds in his petition for declaratory
judgment in the Magee v. Nill matter, and filed a copy of the deed along with his
petition. He referenced the other two false quitclaim deeds in his respective petitions
for declaratory judgment filed in the Magee v. Hymel and Turnbull and Magee v.
Wantz matters. The record shows that respondent also referred to the false quitclaim
deeds in his testimony in the Magee v. Nill and Magee v. Wantz matters.
16
The board found it troubling that respondent carefully crafted the quitclaims
to conceal the self-serving nature of the transactions and perpetuate the false notion
that he had acquired an interest in the subject properties. This fact is significant,
because Judge Burris, who presided over the Nill and Wantz matters, had only the
record and respondent’s testimony upon which to rely, since the proceeding was in
the nature of a confirmation. As a result, Judge Burris granted respondent’s petitions
for declaratory judgment, and respondent acquired the properties at issue. This
created a cloud on the title of the properties, which later caused the serious harm
suffered by the Lampos, Martins, and Ms. Robinson described above. Respondent
also did not disclose to Judge Hedges the true circumstances surrounding the
quitclaim deed in the Magee v. Hymel and Turnbull matter. 7
In aggravation, the board found the following factors: willful obstruction of
the disciplinary process (respondent’s attempt to have complainants dismiss their
complaints), multiple offenses, a dishonest or selfish motive, and refusal to
acknowledge the wrongful nature of the misconduct (respondent maintains that his
motives were benevolent, since they increased tax revenue). In mitigation, the board
found the absence of a prior disciplinary record and the imposition of other penalties
or sanctions.
Turning to the issue of an appropriate sanction, the board considered the
court’s prior decisions in In re: Harris, 03-0212 (La. 5/9/03), 847 So. 2d 1185; In
re: Pinkston, 02-3251 (La. 5/20/03),
852 So. 2d 966; and In re: Simpson, 07-0070
(La. 6/29/07),
959 So. 2d 836. In Harris, the court found that Mr. Harris’ knowing
7
Respondent initially claimed that before his appearance in Judge Hedges’ court, he “visited her
with the Code of Civil Procedure and … said look, I’m going to bring you a confirmation … [and]
this is the article I’m going to be using for my support of the claim that I’m making in the petition.
And she read it and she says, I don’t have any problem with that. …” However, when asked
whether he had advised Judge Hedges that the quitclaim deed he had filed into the record was not
an arm’s length transaction involving a willing buyer and seller, respondent acknowledged, “I was
not asked that question, but I would have told her if she would have asked or if the curator would
have asked.” Nevertheless, Judge Hedges was not called to testify at the hearing, although she had
been subpoenaed by the ODC.
17
submission of fabricated evidence and false testimony at a disciplinary hearing
warranted permanent disbarment. Mr. Harris submitted false evidence and
testimony regarding when certain money orders were purchased, representing that
they had been purchased one to two years before the actual date of purchase. He
also submitted a false affidavit that the misconduct had been committed by his sister.
Moreover, he had a witness testify that his sister had signed the affidavit, despite
evidence that the signature had been forged. Mr. Harris also threatened former
clients with civil litigation if they testified against him at the disciplinary hearing.
In Pinkston, the respondent was permanently disbarred for intentionally and
deliberately misrepresenting facts to a court in an effort to obtain a more lenient
prison sentence for his stepson. Mr. Pinkston represented to a judge that the district
attorney did not oppose a motion to reduce his stepson’s prison sentence from
twenty-one years to twelve years, when in fact no such agreement had been made by
the district attorney’s office. The sentence was reduced based on this false
representation, and Mr. Pinkston’s stepson was temporarily released from prison.
This court concluded that Mr. Pinkston’s actions were an intentional corruption of
the judicial process.
Finally, in Simpson, the respondent charged an excessive legal fee to his
clients in a succession matter and improperly filed a harassing lawsuit against this
former client, presumably in response to her filing a disciplinary complaint against
him. Mr. Simpson received a three-year suspension, with all but one year and one
day deferred, subject to various conditions.
Considering these factors, the board concluded:
Here, Respondent filed false documents into the public
records of St. Tammany Parish. He also submitted false
documents and testimony to the courts when he filed or
referenced the quitclaims at issue in the declaratory
judgment proceedings discussed in this matter. Further,
Respondent’s testimony concerning these quitclaims was
misleading. He also brought a harassing defamation
18
action against the complainants in this matter after they
filed a civil RICO lawsuit against him. Such misconduct
is similar to that found in Harris, Pinkston and Simpson
and falls squarely within ABA Standard 6.11. As such,
this misconduct warrants a sanction ranging from
disbarment to permanent disbarment. Because of the
mitigating factors present, particularly the lack of prior
discipline, the Board recommends that the Respondent be
disbarred.
Both respondent and the ODC filed objections 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
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.
At the outset, we point out that it is not our purpose in these disciplinary
proceedings to pass on the legal validity or efficacy of the procedures employed by
respondent. Such matters properly fall within the province of the civil courts, and
we express no opinion on these legal issues in the exercise of our disciplinary
jurisdiction. Rather, the sole issue presented for our consideration is whether
respondent’s actions run afoul of the applicable ethical rules.
It is undisputed that respondent created three fictitious quitclaim deeds
purporting to transfer the properties from his closely held corporation, Hickory
19
Glade, Inc., to himself. Respondent then forged the name of Timothy Dunaway, his
Hickory Glade co-owner, to the deeds as seller without Mr. Dunaway’s knowledge
or consent. Respondent affixed his own signature to the documents as buyer. No
money changed hands in the transfers, and respondent acknowledges that Hickory
Glade possessed absolutely no ownership interest in the properties that the deeds
purported to convey. Respondent then filed these quitclaim deeds into the public
records. When he later filed his motions for default judgments, he did not advise the
court of the fact that he had drafted the quitclaim deeds himself or that he assumed
the role of both seller and purchaser in connection with the quitclaim deeds.
Respondent also misrepresented to the district court – both in pleadings and in his
testimony – that he “acquired an interest” through the quitclaim deeds. These deeds
then created a cloud on the title which resulted in the later federal court litigation.
In argument to this court, respondent concedes that the quitclaim deeds may
have been procedurally defective, but argues they are not inherently fraudulent. In
support, he points out that a quitclaim simply transfers whatever ownership interest
the grantor has in the property, which may be no ownership at all. He further asserts
that any procedural defects in the quitclaim deeds did not create the cloud on the
titles, because the same cloud would have been created regardless of whether the
quitclaims were procedurally correct.
However, as the board pointed out, the very fact the quitclaims were
unnecessary demonstrates that respondent must have created them with the
fraudulent purpose of making his ownership claim appear stronger to the court. In
both his testimony and his brief, respondent has never provided any compelling
reason why he created the quitclaims, other than his assertion that they provided
evidence of civil possession (which he admits he believed was unnecessary in light
of his physical possession) and his after-the-fact justification that they gave the
owners additional notice due to their recordation in the public records. At the very
20
least, the quitclaim deeds gave an appearance of legitimacy to respondent’s claims
when he filed his motions for default judgments, and he did nothing to apprise the
court of the fact that these quitclaim deeds were meaningless.
Rule 3.3 of the Rules of Professional Conduct, entitled “Candor Toward the
Tribunal,” provides that a lawyer shall not knowingly “make a false statement of
fact or law to a tribunal or fail to correct a false statement of material fact or law
previously made to the tribunal by the lawyer” or “offer evidence that the lawyer
knows to be false.” As explained in the comments to ABA Model Rule 3.3, “[t]his
Rule sets forth the special duties of lawyers as officers of the court to avoid conduct
that undermines the integrity of the adjudicative process.”
Respondent’s act of filing forged quitclaim deeds into the public records and
not apprising the trial court of these defective deeds at the time he sought his
declaratory judgments had the effect of undermining the integrity of the adjudicative
process, thereby creating harm to both the legal system and the true owners of the
property. As aptly stated by the disciplinary board, “[r]espondent carefully crafted
the quitclaims to conceal the self-dealing nature of the transactions and perpetrate
the false notion that he had acquired an interest in the subject properties.” The board
correctly observed that the harm from these actions was compounded by the fact the
judges presiding over two of these matters “had only the record and Respondent's
testimony upon which to rely, since the proceeding was in the nature of a
confirmation.”
These undisputed facts lead to the inescapable conclusion that respondent’s
conduct contravenes Rules 3.3(a)(1), 3.3(a)(3), and 8.4(c) of the Rules of
Professional Conduct. Having found ethical misconduct, we must now pass on the
appropriate sanction.
In determining a sanction, we are mindful that disciplinary proceedings are
designed to maintain high standards of conduct, protect the public, preserve the
21
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).
We find that respondent violated duties owed to the legal system, the public,
and the profession. His actions were knowing and intentional.
Given the highly unusual facts of this case, our jurisprudence provides little
precise guidance in fashioning an appropriate sanction. However, as indicated by
the case law cited by the board, sanctions imposed in cases involving
misrepresentation to a tribunal generally range from lengthy suspensions to
disbarment, with emphasis on the aggravating and mitigating factors presented.
In aggravation, we find the record supports the following factors: a dishonest
or selfish motive, multiple offenses, willful obstruction of the disciplinary process,
and refusal to acknowledge the wrongful nature of the misconduct. Additionally,
respondent’s pointless act of recording the quitclaim deeds placed clouds on the titles
of the actual purchasers and caused them actual harm.
In mitigation, we recognize respondent has had an unblemished disciplinary
record since his admission to the bar in 1978. Additionally, he has been subject to
the imposition of other penalties or sanctions arising from the federal litigation.
Although not strictly a mitigating factor, we also recognize respondent’s conduct
was motivated, at least in part, by a desire to place the properties back in commence,
and his actions had the salutary effect of returning these properties to the parish tax
rolls.
Considering all the facts of this unique case in conjunction with the
aggravating and mitigating factors, we find the appropriate sanction for respondent’s
misconduct is a two-year suspension from the practice of law. Our leniency in
22
declining to impose the harsher sanction recommended by the board results in part
from the novel issues presented in these proceedings, and the lack of clear
jurisprudential guidance for the bar. However, we take this opportunity to caution
the members of our bar that we place great emphasis on the duty of full candor
toward a tribunal, which is essential for our legal system to function properly and
fairly. Any breach of that duty in the future may be grounds for significant
disciplinary sanctions.
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 William Magee, Louisiana Bar Roll number 8859, be and he hereby is
suspended from the practice of law for a period of two years. 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.
23
01/30/19
SUPREME COURT OF LOUISIANA
NO. 18-B-0383
IN RE: WILLIAM MAGEE
ATTORNEY DISCIPLINARY PROCEEDINGS
WEIMER, J., concurring in part and dissenting in part.
I agree with the majority’s assessment of the respondent’s misconduct, but
disagree with the sanction. Although the majority recognizes in mitigation that the
respondent “has had an unblemished disciplinary record since his admission to the bar
in 1978,” I note the respondent has also performed extensive pro bono work. While
not technically a factor recognized in the ABA’s Standards for Imposing Lawyer
Sanctions, our hearing committees have sometimes found pro bono work to be worthy
of this court’s consideration as a mitigating factor. See, e.g., In re Kerth, 03-1811,
p. 9 (La. 10/31/03), 865 So.2d 21, 26. Here, I find the respondent’s pro bono record
significant and commendable, and hence indicative of favorable “character and
reputation,” which are recognized as mitigating factors in the ABA’s Standards for
Imposing Lawyer Sanctions. I believe a one-year suspension would adequately serve
the purposes of the disciplinary system.
01/30/19
SUPREME COURT OF LOUISIANA
No. 2018-B-383
IN RE: WILLIAM MAGEE
ATTORNEY DISCIPLINARY PROCEEDING
Hughes, J., dissents.
I respectfully dissent from the two year suspension imposed and would order
a suspension of one year and one day.
1
