In Re: Joseph G. Pastorek, II , 239 So. 3d 798 ( 2018 )

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, 2018, are as follows:
PER CURIAM:
2017-B -1473 IN RE: JOSEPH G. PASTOREK, II
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 Joseph G. Pastorek,
II, Louisiana Bar Roll number 30845, be and he hereby is
permanently disbarred. His name shall be stricken from the roll
of attorneys and his license to practice law in the State of
Louisiana shall be revoked. Pursuant to Supreme Court Rule XIX, §
24(A), it is further ordered that respondent be permanently
prohibited from being readmitted to the practice of law in this
state. 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.
HUGHES, J., dissents and would order disbarment.
CRICHTON, J., dissents and would order disbarment.
01/30/18
SUPREME COURT OF LOUISIANA
NO. 2017-B-1473
IN RE: JOSEPH G. PASTOREK, II
ATTORNEY DISCIPLINARY PROCEEDING
PER CURIAM
This disciplinary matter arises from formal charges filed by the Office of
Disciplinary Counsel (“ODC”) against respondent, Joseph G. Pastorek, II, an
attorney licensed to practice law in Louisiana, but currently on interim suspension
based upon his conviction of a serious crime. In re: Pastorek, 12-0041 (La. 2/1/12),
80 So. 3d 1151.
BAR ADMISSIONS PROCEEDING
Before we address the current charges, we find it helpful to provide some
background information concerning respondent’s admission to the bar.
Respondent graduated from medical school in 1977. After completing his
internship and residency in obstetrics and gynecology, he obtained board
certification in general obstetrics and gynecology as well as maternal-fetal medicine
(a sub-specialty of obstetrics which deals with complications of high-risk
pregnancies).
In 2001, respondent returned to school, graduating from law school in
December 2004. He passed the July 2005 Louisiana bar examination. However, the
Committee on Bar Admissions opposed his admission to the bar, citing
administrative proceedings which were then pending against him before the
Louisiana State Board of Medical Examiners (“Medical Board”). These proceedings
involved allegations that respondent had violated the Louisiana Medical Malpractice
Act by, among other things, engaging in improper consultation practices. After
respondent and the Medical Board entered into a consent judgment resolving the
administrative complaint in its entirety, the Committee on Bar Admissions withdrew
its objection to respondent’s admission. On December 15, 2006, this court rendered
a per curiam opinion granting respondent’s application for admission to the bar. In
re: Pastorek, 05-2336 (La. 12/15/06), 944 So. 2d 564. Respondent took the oath of
admission on January 9, 2007.
Against this backdrop, we now turn to a consideration of the misconduct at
issue in the instant proceeding.
UNDERLYING FACTS AND PROCEDURAL HISTORY
From 2004 to 2007, respondent worked as a prescribing physician for Global
Pain Management, LLC (“Global”), a pain clinic with offices located in the greater
New Orleans area. Global also operated a clinic in Pensacola, Florida. While
employed at Global, respondent’s prescription practices came under investigation by
federal authorities. The government characterized the Global clinics as “pill mills”
and claimed that respondent was purporting to provide “pain management”
treatment for chronic pain patients, when in truth and in fact he was unlawfully
distributing Schedule II, III, and IV controlled substances through prescription
practices done outside the usual course of medical practice and for other than
legitimate medical purposes.
In September 2010, respondent was indicted by a federal grand jury in the
Northern District of Florida, Pensacola Division, on charges that he and his co-
defendants conspired to unlawfully distribute prescription painkillers. According to
the indictment, respondent wrote prescriptions to patients for drugs including
oxycodone, methadone, Xanax, and hydrocodone in exchange for cash fees for
2
office visits. 1 Over a four-year period between 2004 and 2008, respondent and
another physician saw 40-80 patients each day; in total, Global collected over $8.5
million in cash proceeds from patients during that time period. 2 The indictment
further alleged that one or more deaths had resulted from these prescription
practices, specifically the use of methadone; however, the government ultimately
could not establish this allegation. 3
A six-week jury trial was conducted beginning in October 2011. During the
trial, the government’s expert in the field of pain management, addiction medicine,
and the prescription of controlled substances testified that after reviewing 96 patient
files that were seized by the government, he concluded that Global’s prescription
practices were dangerous, not consistent with the usual course of medical practice,
and not for legitimate medical purposes. On the other hand, respondent’s expert in
pain management reviewed the same 96 patient files and concluded that the pain
medications were prescribed to patients for legitimate medical reasons and were
done so within the accepted standard of care of the practice of pain medicine.
At the conclusion of the trial, respondent was found guilty of conspiracy to
dispense Schedule IV controlled substances.4 Respondent filed a motion for new
trial, which was denied by the district court.
Prior to respondent’s sentencing, the United States Probation Office prepared
a presentence investigation report (“PSR”). In relevant part, the PSR indicated that,
1
Patients normally were required to pay $200 in cash per bi-weekly visit, or $400 monthly. No
insurance claims or medical coverage payments were accepted.
2
Respondent was paid an hourly salary in connection with his employment at Global.
3
In an attempt to show that respondent’s prescription practices played a role in the death of one of
his patients, the ODC introduced into evidence at the hearing on the formal charges a coroner’s
report showing that his patient, E.A., died as a result of her use of methadone prescribed by
respondent. At the criminal trial, evidence of the cause of E.A.’s death had been excluded due to
the government’s inability to offer testimony by the toxicologist who produced the toxicology
report.
4
In addition to the conspiracy charge relating to the distribution of painkillers, respondent’s co-
defendants were also charged with and found guilty of conspiracy to commit money laundering.
3
according to the government, there were no statutorily defined “victims of the
offenses” of respondent’s conviction because the government could not establish
that respondent’s conduct resulted in the deaths of any patients. This portion of the
PSR was adopted by the district court, and no order of restitution was imposed upon
respondent. The district court also determined that there were no vulnerable victims
in this case. In January 2013, respondent was sentenced to serve one year and one
day in federal prison, followed by one year of supervised release.5 Respondent
served his incarceration and successfully completed the obligations of his supervised
release as of January 14, 2015.
On September 1, 2015, the United States Eleventh Circuit Court of Appeals
affirmed respondent’s conviction. United States v. Pastorek, 625 Fed. Appx. 464
(11th Cir. 2015) (not designated for publication). On April 18, 2016, the United
States Supreme Court denied respondent’s petition for writ of certiorari; his
conviction became final upon the Supreme Court’s denial of rehearing on June 13,
2016.
Meanwhile, as a result of respondent’s prescription practices, he had once
again become the subject of an inquiry by the Medical Board. Addressing the cases
of sixteen Global patients whom respondent failed to adequately or appropriately
examine before prescribing controlled substances, the Medical Board found in its
report that respondent had shown “an egregious disregard of both the letter and the
spirit of the” Pain Management Rules, 46 La. Admin. C., Part 45. In November
2007, respondent was fined $5,000 and his license to practice medicine in Louisiana
5
Respondent faced 36 months in federal prison under the federal sentencing guidelines, but the
district judge departed below the guideline range. She took into account respondent’s
“extraordinary family issues,” including his responsibilities to his mentally disabled adult son and
to his wife, who suffers from cancer; respondent’s age; his previously reputable medical career;
the loss of his medical license and the loss of his career; his lack of prior experience in pain
management and the absence of law enforcement contact; and the fact that respondent was not the
“ring leader” in the case.
4
was suspended for three years, effective immediately. 6 Notably, respondent was
prohibited from practicing pain medicine for the remainder of his career.
DISCIPLINARY PROCEEDINGS
In February 2012, the ODC filed formal charges against respondent, alleging
that his conduct violated the following provisions of the Rules of Professional
Conduct: Rules 8.4(a) (violation of the Rules of Professional Conduct), 8.4(b)
(commission of a criminal act that reflects adversely on the lawyer’s honesty,
trustworthiness, or fitness as a lawyer), and 8.4(c) (engaging in conduct involving
dishonesty, fraud, deceit, or misrepresentation).
Respondent answered the formal charges and admitted that he was convicted
of a felony; however, he requested that the disciplinary matter be stayed pending the
appeal of his criminal conviction. The disciplinary board granted the motion to stay.
Following the finality of respondent’s criminal conviction, the stay of the
proceedings was lifted and this matter proceeded to a formal hearing, which was
conducted by the hearing committee in September 2016. Prior to the hearing, the
ODC filed a pre-hearing memorandum in which it argued that respondent should be
permanently disbarred. In his pre-hearing memorandum, respondent argued that the
appropriate sanction in this matter is a three-year suspension or disbarment,
retroactive to the date of his interim suspension.
Hearing Committee Report
After considering the evidence and testimony presented at the hearing, the
hearing committee made the following factual findings:
6
According to the online records of the Medical Board, respondent’s medical license remains
suspended as of the date of this opinion.
5
Respondent was licensed to practice medicine in 1977. He attended law
school from 2001 to 2004, and was licensed to practice law in 2007. His legal
practice consisted of research, writing, and consulting on a contract basis while he
continued his medical practice. From April 2004 to December 2007, respondent was
employed in Louisiana as a prescribing physician by Global, a pain clinic owned by
a non-physician. As described by respondent and the Medical Board, Global may
readily be characterized as a “pill mill.”
In 2007, respondent (and others associated with Global) were indicted in
federal court in Florida for alleged violations of federal law at Global’s Louisiana
clinics at which respondent was employed. Respondent was ultimately found guilty
of Count One of the indictment, knowingly and willfully conspiring with others to
dispense controlled substances in violation of federal law, specifically 21 U.S.C. §
841(a)(1). Count One further stated the offense involved a mixture containing
methadone (a Schedule II drug) and other substances, resulting in one or more
deaths, in violation of federal law, specifically 21 U.S.C. § 841(b)(1)(C), providing
specific penalties where methadone is involved in a violation of 21 U.S.C. §
841(a)(1).
Respondent’s activities as a physician at Global also resulted in the three-year
suspension of his medical license by the Medical Board and a permanent prohibition
on his practice of pain medicine. The Medical Board reviewed the records of sixteen
of respondent’s patients, finding clear violations of the Louisiana Pain Management
Rules as well as principles of good medicine, unprofessional conduct, failing to
satisfy prevailing and usually accepted standards of medical care, prescribing
controlled substances without legitimate medical justification, and egregious
disregard of the letter and spirit of the Pain Rules.
The coroner’s report on the death of E.A., one of respondent’s patients, found
her death to be accidental, due to the serial causes: myocardial hypoxia due to
6
pulmonary atelectasis due to recent drug intake, and methadone was found in her
system. Respondent testified that “we,” i.e., the pain clinic, prescribed the
methadone, but that the level found postmortem was within the therapeutic range.
Based on the coroner’s finding that methadone was a factor in E.A.’s death, the
committee found respondent’s prescription of methadone or failure to oversee the
prescription of methadone subjected E.A. to an increased risk of death.
Based on these findings, and as respondent acknowledged, the committee
found violations of Rules 8.4(a), 8.4(b), and 8.4(c) of the Rules of Professional
Conduct, as charged in the formal charges.
The committee determined that respondent violated duties owed to the public.
The patients who visited Global were especially vulnerable, whether they were
seeking medical help or improperly seeking controlled substances without medical
justification. While respondent argues the federal court found Global’s patients to
be drug addicts in a symbiotic relationship with Global, the committee stated it
would not “blame the victims.” As found by the Medical Board, respondent acted
knowingly, in reckless disregard of the Pain Management Rules, in prescribing
controlled substances in inappropriate circumstances. While the evidence is not
sufficient to determine that respondent’s misconduct directly resulted in a patient’s
death, at a minimum it increased that risk and resulted in multiple failures to receive
proper medical treatment (even if that treatment would have been denial of drugs).
The applicable baseline sanction is disbarment.
The committee found no mitigating factors. While respondent has only been
licensed to practice law since 2007, his misconduct arose directly out of his practice
of medicine, in which he has been engaged since 1977. The committee rejected
respondent’s argument that his criminal conduct only related to his medical practice
and not to his legal practice, noting that numerous cases find violations of the Rules
of Professional Conduct unrelated to the practice of law.
7
The committee then turned to a consideration of the permanent disbarment
guidelines. Guideline 5 specifies that permanent disbarment may be warranted for
a felony conviction involving substantial damage to a person. While not precisely
on point with the threat to person created by respondent’s reckless prescription of
controlled substances, the committee found the clearly increased risk of such
substantial harm – and even death – to multiple patients is within the ambit of gravity
illustrated by the guidelines.
Accordingly, the committee recommended respondent be permanently
disbarred.
In his brief to the disciplinary board, respondent argued that the sanction
recommended by the hearing committee is too harsh, and that the appropriate
sanction in this matter is a three-year suspension or disbarment, retroactive to the
date of his interim suspension.
Disciplinary Board Recommendation
After review, the disciplinary board determined that the hearing committee’s
factual findings are supported by the record and are not manifestly erroneous.
Respondent was convicted of a felony which conclusively establishes his guilt.
Based on these findings, the board determined respondent violated the Rules of
Professional Conduct as alleged in the formal charges.
The board determined respondent violated duties owed to the public and the
legal profession. Respondent knowingly and willfully engaged in a criminal
conspiracy to improperly dispense controlled substances. Respondent’s failure to
properly examine, diagnose, and evaluate his patients for appropriate treatment or
screen them for substance abuse and/or diversion caused them both actual and
8
potential harm, and also harmed the public.7 Relative to the magnitude of the harm,
the federal sentencing judge characterized the harm inflicted by respondent and
others associated with Global as “serious bodily harm.” 8
The Opinion and Ruling of the Medical Board detailed the deficiencies in
treatment of sixteen of respondent’s patients. These findings indicate that
respondent prescribed controlled substances to those with histories of drug abuse, in
instances where there was nothing in the patient’s record to justify narcotic therapy,
and to a patient who was overmedicated. Relative to one patient with obvious
indications that she was obtaining drugs from multiple sources, respondent
continued to prescribe opiates and made no effort to wean the patient off controlled
substances, even though she had indicated a desire to do so.
Harm was sustained not only by respondent’s own patients, but also those to
whom his patients diverted the narcotics. The fact that the drugs being prescribed
by respondent were controlled substances protected by federal law is evidence
enough that actual harm results when those substances reach the wrong hands.
In addition to the harm sustained by respondent’s patients and the public,
respondent caused harm to the legal profession. The public expects lawyers to abide
7
As summarized in the opinion of the United States Eleventh Circuit Court of Appeals, the
defendants, including respondent,
ignored evidence that their patients were abusing the prescribed
substances: they did not order routine and inexpensive drug screens
to ensure that the patients were complying with the prescriptions,
they refilled prescriptions early without questioning, they did not
administer physical exams to ensure an underlying pathology, and
they wrote blanket prescriptions based upon previous doctors’
scripts.
8
The federal judge stated:
… [I]t was four years, … dozens of patients, serious bodily harm …
by licensed medical doctors who had notice that the patients were
drug seekers and that some of the patients were diverting drugs.
And … with some of the patients, these red flags, if you will, were
ignored, and they were treated, as the jury has found, without
legitimate medical justification, …
9
by the law. Whenever a member of the bar engages in criminal conduct, it tarnishes
the reputation of the membership of the bar as a whole. After considering the ABA’s
Standards for Imposing Lawyer Sanctions, the board determined the baseline
sanction is disbarment.
In aggravation, the board found a dishonest and selfish motive, a pattern of
misconduct, multiple offenses, vulnerability of the victims, and illegal conduct. The
board agreed with the hearing committee that no mitigating factors are present.
While it may be true that respondent has no prior disciplinary record and is relatively
inexperienced in the practice of law, these factors bear no weight concerning the
attending circumstances and misconduct. The pattern of misconduct forming the
basis of this matter commenced prior to respondent’s admission as a lawyer and was
unrelated to any experience or lack thereof in the practice of law. While it is also
true that respondent has been subjected to other penalties or sanctions in the form of
a felony conviction resulting in his serving actual time in prison, as well as the
suspension of his medical license, the committee apparently found that these
circumstances did not justify a reduction in the degree of discipline. The committee
considered respondent’s testimony relative to remorse and a cooperative attitude
toward the proceedings and apparently found the testimony insufficient to establish
these mitigating factors. 9 The board declined to disturb these findings.
Considering the conduct at issue, the board adopted the committee’s
recommendation of permanent disbarment. The board agreed with the committee
9
For example, when asked during the hearing if he was remorseful, respondent’s first words were,
“Well I am extremely sorry what we were doing turned out to be something illegal.” At no point
during his response to the question did he indicate remorse for putting patients and the public in
harm’s way. Although he later testified that he accepted that the doctors at the clinic “did the
wrong thing,” he failed to demonstrate remorse for anything other than the adverse consequences
he suffered as a result of his misconduct (“I am very sorry for [my misconduct] because I really
valued the practice of medicine…”). Later, respondent acknowledged that, theoretically, ignoring
pain protocols could harm patients, but testified, “I don’t feel like that applies to us specifically or
me specifically…” Lastly, respondent testified that he entered a not guilty plea “because I thought
we were doing the right thing, at least I was, and that I could justify that, and apparently, the jury
didn’t agree.”
10
that Guideline 5 of the permanent disbarment guidelines may not be precisely on
point, inasmuch as the evidence was not sufficient to establish that respondent’s
misconduct directly resulted in a patient’s death, but nevertheless significant harm
was established through the federal court decisions and the Medical Board’s opinion,
as previously discussed. Moreover, the board found that proof of direct and actual
harm to a specific individual is not necessarily contemplated in Guideline 5. See In
re: Meece, 08-2980 (La. 4/13/09), 6 So. 3d 751, and In re: Stephens, 07-0180 (La.
4/27/07), 955 So. 2d 140 (both lawyers permanently disbarred for committing the
crime of armed bank robbery; no evidence in either case to suggest that actual
physical harm befell any of the individual victims of the crimes). Alternatively, if it
is determined that Guideline 5 does not apply, the permanent disbarment guidelines
are merely illustrative, and respondent’s conduct is so egregious as to warrant that
sanction even though the conduct does not definitively fit any of the specific
guidelines. In support, the board cited In re: Richard, 14-1684 (La. 10/3/14), 148
So. 3d 923. In that case, a search incident to a traffic stop revealed approximately
200 Xanax tablets in the lawyer’s vehicle. He was charged with possession with
intent to distribute Schedule IV narcotics, but was later allowed to plead guilty to a
misdemeanor paraphernalia charge. Finding the lawyer had conspired to sell
controlled dangerous substances to an undercover narcotics officer, the court
permanently disbarred the lawyer even though the conduct did not fit any of the
specific permanent disbarment guidelines. The board concluded:
Schedule IV narcotics are protected specifically because
of their potential to cause harm to those who use them.
Respondent used his medical license to prescribe drugs to
patients as part of a “pill mill,” disregarding the needs of
his patients, as well as enabling drug seekers in diverting
drugs. He did so knowingly and willfully. This conduct,
which spanned a period of three to four years, endangered
the well-being of multiple patients and members of the
public. His callous and selfish conduct is no less egregious
than that of the [respondents] in Meece, Stephens, and
Richard…
11
Based on this reasoning, the board recommended respondent be permanently
disbarred.
Respondent filed an objection 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 come within the original jurisdiction of this court.
La. Const. art. V, § 5(B). When the disciplinary proceedings involve an attorney
who has been convicted of a crime, the conviction is conclusive evidence of guilt
and the sole issue presented is whether respondent’s crimes warrant discipline, and
if so, the extent thereof. Supreme Court Rule XIX, § 19(E); In re: Boudreau, 02-
0007 (La. 4/12/02), 815 So. 2d 76; Louisiana State Bar Ass’n v. Wilkinson, 562 So.
2d 902 (La. 1990). The discipline to be imposed in a given case depends upon the
seriousness of the offense, the circumstances of the offense, and the extent of the
aggravating and mitigating circumstances. Louisiana State Bar Ass’n v. Perez, 550
So. 2d 188 (La. 1989).
Here, respondent was convicted by a jury of conspiracy to dispense Schedule
IV controlled substances. He committed this crime while he was employed as a
prescribing physician for a pain clinic, described in the record as a “pill mill.” This
misconduct amounts to a violation of Rules 8.4(a), 8.4(b), and 8.4(c) of the Rules of
Professional Conduct, as acknowledged by the parties and as found by the hearing
committee and the disciplinary board.
We agree with the assessment of the board that respondent knowingly violated
duties owed to the public and the legal profession. His actions resulted in harm to
his patients, the public, and the legal profession. The applicable baseline sanction
in this matter is disbarment.
12
For the reasons articulated in its report, the board correctly found that the
aggravating factors present in this case are a dishonest or selfish motive, a pattern of
misconduct, multiple offenses, vulnerability of the victims, and illegal conduct. As
to mitigating factors, the committee and the board should have noted and assigned
appropriate weight to the following factors which are objectively applicable on the
face of the record: the absence of prior discipline, inexperience in the practice of
law, and the imposition of other penalties or sanctions. However, having considered
these factors, we find that their weight is not sufficient to cause us to deviate
downward from the baseline sanction of disbarment.
The committee and the board concluded that respondent’s offenses are so
egregious that he should be permanently disbarred. In support, reference is made to
Guideline 5, although it is acknowledged by all concerned that it is not precisely on
point with the facts of this case.
Guideline 5 provides that permanent disbarment may be warranted for
instances of conviction of a felony involving physical coercion or substantial
damage to person or property, including but not limited to armed robbery, arson, or
kidnapping. A plausible argument can be made that this guideline applies to
respondent’s conviction of conspiracy to dispense Schedule IV controlled
substances, given the substantial risk of bodily harm and death to which his patients
and the public were exposed as a result of his dangerous prescription practices.
Nevertheless, even if we were to agree with respondent and find that Guideline 5 is
inapplicable, it is abundantly clear that the permanent disbarment guidelines are
merely illustrative and are not intended to bind our decision-making process. In re:
Minor, 12-1006 (La. 10/16/12), 100 So. 3d 319. Regardless of the fact that
respondent’s misconduct may not definitively fit any of the specific permanent
disbarment guidelines, his conduct demonstrates a clear lack of moral fitness.
Particularly when viewed in the light of his bar admission proceeding, it is fair to
13
say that respondent’s behavior continues to place the public at risk and to tarnish the
image of the legal profession. In order to protect the public and maintain the high
standards of the legal profession in this state, we conclude that respondent should
not be allowed the opportunity to return to the practice of law in the future.
Based on this reasoning, we find permanent disbarment is the appropriate
sanction in this case. Accordingly, we will accept the disciplinary board’s
recommendation and permanently disbar respondent.
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 Joseph G. Pastorek, II, Louisiana Bar Roll number 30845, be and he
hereby is permanently disbarred. His name shall be stricken from the roll of attorneys
and his license to practice law in the State of Louisiana shall be revoked. Pursuant
to Supreme Court Rule XIX, § 24(A), it is further ordered that respondent be
permanently prohibited from being readmitted to the practice of law in this state. 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.
14
01/30/18
SUPREME COURT OF LOUISIANA
No. 2017-B-1473
IN RE: JOSEPH G. PASTOREK, II
ATTORNEY DISCIPLINARY PROCEEDING
Hughes, J., dissents and would order disbarment.
1
01/30/18
SUPREME COURT OF LOUISIANA
No. 2017-B-1473
IN RE: JOSEPH G. PASTOREK, II
ATTORNEY DISCIPLINARY PROCEEDING
CRICHTON, J., dissents and would order disbarment.
1