                         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
