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In re Warner6/27/2003
tor is their father, including one son who shares Mr. Victor's first name:
A: That's what they say. They say they got Milton, they got a whole pile of them, but they're illegal. My Daddy stayed with women and they had children, and they call you Daddy, you know.
Q: Right, but they're not born inside of a marriage?
A: (Shakes head negatively).
Q: They're not legitimate?
A: He was only married to my Mom. I'm the only one that's got his name.
Mr. Thompson testified that during the ODC's investigation of this matter, he was asked to contact respondent to determine who signed Mr. Victor's name on the release and on the settlement check. Respondent informed Mr. Thompson that Ms. Pierre signed her father's name on the documents in his presence.
Ms. Collins' signature appears on Mr. Victor's release as a witness. However, she testified that she does not recall witnessing the release, nor does she recall whether Mr. Victor appeared before her to sign the document.
Mr. Tormey testified that respondent did not inform him of Mr. Victor's death prior to the settlement of the personal injury claim, and that when he received the executed settlement documents from respondent, there was no indication in the documents that Mr. Victor had not been the person who signed them. Nevertheless, Mr. Tormey conceded that the claim would have been settled for $20,000 even if he had known of Mr. Victor's death; however, he stated that he would likely have made the settlement check payable to Mr. Victor's succession representative or to his estate.
Respondent presented various pieces of documentary evidence, including (1) a settlement statement signed by Ms. Pierre and dated December 12, 1997, (2) photocopies of the driver's licenses of Mr. Victor and Ms. Pierre, and (3) a photocopy of Ms. Pierre's birth certificate. Respondent testified in his own defense, and called three witnesses: Tulane Law School professor Cynthia Ann Samuel, retired Judge Jerome Winsberg, and Tracy Albright, respondent's daughter and a paralegal employed by his law firm.
Professor Samuel was accepted as an expert in the Louisiana Civil Code and in succession matters in particular. She explained that in her view, Mr. Victor's personal injury claim was governed after his death by the provisions of La. Civ. Code art. 2315.1, relating to survival actions. The highest category of claimant under that article is the decedent's surviving spouse and/or children, who may or may not be the same as the decedent's heirs or legatees. Professor Samuel opined that as Mr. Victor's child, Ms. Pierre was the appropriate person to pursue his personal injury claim after his death, not the administrator of Mr. Victor's succession. Based on this reasoning, Professor Samuel concluded that "the right person got the money under 2315.1." On cross-examination, Professor Samuel agreed that art. 2315.1 makes no distinction between legitimate and illegitimate children; however, she clarified that an illegitimate child may have to prove his or her filiation to the decedent. She also conceded that children (whether legitimate or illegitimate) who are excluded from a personal injury settlement may continue to possess a claim against the tortfeasor. Finally, Professor Samuel agreed that upon Mr. Victor's death, it would have been the "correct" and "official way of doing it" to substitute Ms. Pierre as a party in place of her father.
Judge Winsberg, who was accepted as an expert in the field of criminal law, also agreed that respondent's handling of the settlement was "not totally savory and it's not the way to do it." However, he opined that respondent did n
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