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In re Pastorek

Supreme Court of Louisiana

January 30, 2018



          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.


         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.


         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 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, 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 was suspended for three years, effective immediately.[6] Notably, respondent was prohibited from practicing pain medicine for the remainder of his career.


         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 ...

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