
    In re Christine M. MIRE.
    No. 2015-B-1453.
    Supreme Court of Louisiana.
    May 2, 2016.
   KNOLL, J.,

additionally concurs in the denial of rehearing. ■

U concur fully in the majority’s decision to deny rehearing in this'matter. I write separately to express my well-considered view that respondent’s • false allegations and inflammatory language concerning then-Fifteenth Judicial District Court Judgé Keaty and Third Circuit Court of Appeal Judges Thibodeaux, Peters, and Painter were so far beyond the pale-that the question of whether respondent committed sanctionable misconduct was' not even a close one for a majority of this Court; " ' ■

Applying the objective standard’ this Court adopted in Louisiana State Bar Association v. Karst, the majority considered the evidence respondent, Ms. Mire, put on the record during her disciplinary proceeding and concluded that nothing Ms. Mire submitted rose beyond the level of offensive innuendo. Ms. Mire relies heavily on the testimony of Joel Wax, co-owner of the company who sells the digital.recording system used both in the Fifteenth Judicial District Court and in. this Court but who, otherwise, has no personal knowledge concerning the facts and the circumstances surrounding the creation of the audio recording with which Ms. Mire boldly accused Judge Keaty of tampering. While Ms. Mire highlights Mr. Wax’s testimony that the audio recording did not come from one of his company’s recording devices, Mr. Wax could not offer an opinion as to whether or not the recording reflected the. proceedings .that actually occurred at the hearing. Ms. Mire emphasizes that the 1 aaudio recording provided to her was “spliced,” but this fact was never in dispute. Indeed, Brian Butcher, who provided Ms. Mire with a CD containing the-audio of the proceedings in question, agreed that he created the CD by “splicing” audio from an audio cassette and a digital recording that overlapped, one another. Mr, Butcher denied adding audio related to Judge . Keaty’s disclosure and explained that splicing the audio recording was necessary because the digital recorder provided by Mr. Wax’s company was malfunctioning and a backup audio cassette recorder transcribed the proceedings until the digital recorder became functional again. Mr. .Butcher even- explained why the audio from the cassette tapes might sound slightly different from the digital audio recording: “I would imagine that there was a — at the edit point you probably heard a little difference jn audio because it. was two- different microphones that were recording.” That Judge Keaty did not know the precise reason the audio had to -be spliced is of no moment as it is both likely and eminently understandable why she would not be intimately familiar with the technical aspects of the various court room recording equipment and the particulars as to when one or the other was malfunctioning. Ultimately, it was abundantly clear to the majority that Ms. Mire failed to produce even a scintilla of objective evidence that the audio record ing provided to her did not accurately reflect the próceedings before Judge Keaty.

I have reviewed Judge Phyllis Keaty’s work for many years when she served as a family court judge on the Fifteenth Judicial District Court prior to her election to the Third Circuit Court of Appeal, and her work was consistently outstanding. She is an excellent jurist with a sterling reputation. It is clear from the- record evidence that- Judge Keaty was faced with a véry troubling attorney in this case whose conduct evidences a pattern of unprofessional behavior which led the Court to impose the underlying sanctions upon her (1) for her defiance and obstinacy in refusing for almost two years to disgorge a $6,839.50 fee she received from a (¡¡client in bankruptcy, for which the' bankruptcy judge assessed approximately $28,000 in penalties ágainst her, and (2) for the gravely offensive language she used in a-writ application to -this Court-accusing members of the Court of Appeal for the Third Circuit of “incompetence and/or corruption” and of possibly “want[ing] to cover up-the egregious actions of the trial court so it cannot-be used in-the current election.” Ms. Mire has a checkered history. Having-practiced since 2004, there is ho question in my mind that Ms. Mire knew exactly what she was doing when she sought to besmirch the integrity of Judge Thibodeaux, Judge Peters, Judge Painter, and Judge Keaty. Her conduct before the courts of this state in the Hunter matter and before the federal bankruptcy court in the Weinstein matter was out of cbntrol and unacceptable, and the sanction imposed was absolutely appropriate given the egregious nature of her conduct.

WEIMER, J.,

dissenting.

IH respectfully dissent from the denial of rehearing.

As the respondent attorney pointed out in her rehearing application, it is stated in the original opinion that an “objective standard” was applied for evaluating whether the attorney’s speech is protected by the First Amendment to the United States Constitution and Article 1, § 7 of the Louisiana Constitution. Notwithstanding that claim, the resort to “ordinary experience” in evaluating the tape-splicing incident reveals that subjective views were imposed regarding what prompted the need to splice the courtroom recording. Extrapolating from its view of “ordinary experience,” the opinion then indicates that the attorney should be sanctioned for how she characterized what transpired,

The attorney’s application for rehearing appropriately emphasizes unrefuted testimony revealing that what the attorney encountered in,trying to produce a record of what transpired in open court was far from ordinary. In the opinion, it is dismissively stated that, based on “ordinary experience” and because recording, equipment can malfunction, the respondent should not haye suggested there was anything inappropriate in the court reporter’s production of a spliced recording. Overlooked is the fact that the court reporter had been ordered to produce to the attorney a duplicate'of the official court record and that there were actually three such records generated by three redundant devices during the district' judge’s hearing. A malfunction may explain why one record was incomplete. ’ But neither “ordinary | ^experience” nor the actual evidence in this case can dispel objectively reasonable suspicion of the court reporter’s explanation as to why it was necessary to provide the attorney with a spliced recording. According to the opinion, splicing was required because all three recording devices failed to generate a -completé recording at the exact time that the district judge was said to have made a disclosure of the extent of her dealings with a- litigant. The odds of all three redundant systems malfunctioning simultaneously during the district judge’s disclosure defies belief and “ordinary experience.”

The “ordinary experience” test results in a disregard of highly probative evidence showing how these circumstances unfolded and were actually viewed by those closest to the situation. Tellingly, when asked to comment on why spliced recordings were made instead of a duplicate recording, the technician employed by the court reporter to splice the recordings testified: “I mean I could reason that some would conclude that possibly something nefarious could have happened.”

Indeed, objective evidence which could raise concerns occurred during what should have been a routine request for a public record. When respondent inquired as to' why a spliced recording was given to her, she was first told that splicing was made' to redact other hearings That day. However; after being shown the court minutes for that day which revealed no other hearings, the district judge retracted that explanation. The other explanation for splicing was given by the technician, who testified: “To me the reason was [the court reporter] did not have the whole recording on one media.”

Based on the latter explanation, the opinion then speculates that the reason the court reporter did not have á full copy from any of the 'three recording devices was that a malfunction had occurred. However, prior to having the technician splice the ^recordings, the court reporter did not indicate that a malfunction had occurred. Instead, the court reporter testified that she was bringing the backup recordings to the technician because “[y]ou wouldn’t be able to hear them [the recordings from the primary device] without the [recording software] program being on your computer.” Moreover, the court reporter testified that she had “an appointment to have it copied.” (Emphasis added.) Thé reporter did not testify that she would ask the technician to splice recordings, let alone identify that there was a need to do so because of any malfunction. Not only did the court reporter not identify a reason for splicing what she represented to be duplicative/redundant recordings, but also splicing from various sources departed from a court order specifically directing “two (2) duplicate copies of 'the original audio recordings” be provided to the respondent attorney. (Emphasis ádd-ed.)

In conclusion, after reviewing the attorney’s application for rehearing, I reiterate that “ordinary experience” establishes there was an objective, factual basis for the attorney to have made allegations of irregularity in the judicial proceedings. The' original opinion in this matter has created a dilemma that can only be resolved by an having an attorney surrender constitutionally protected rights to free speech and compromise a client’s representation.

JOHNSON, C.J., additionally concurs in the denial of. the rehearing for. ¡the reasons assigned by KNOLL, J.

CLARK, J., additionally concurs in the denial of the rehearing for the reasons assigned by Justice KNOLL. 
      
      . 428 Sa2d 406, 409 (La. 1983) (“[I]t is not the genuineness of an attorney's belief in the truth of his allegations, but the reasonableness of that belief and the good''faith of the attorney in asserting it that determines whether or not one has ‘knowingly’ made false accusations agairist a judge within the meaning of DR 8-102(B).”).
     