End-of-life notice: American Legal Ethics Library
As of March 1, 2013, the Legal Information Institute is no longer maintaining the information in the American Legal Ethics Library. It is no longer possible for us to maintain it at a level of completeness and accuracy given its staffing needs. It is very possible that we will revive it at a future time. At this point, it is in need of a complete technological renovation and reworking of the "correspondent firm" model which successfully sustained it for many years.
Many people have contributed time and effort to the project over the years, and we would like to thank them. In particular, Roger Cramton and Peter Martin not only conceived ALEL but gave much of their own labor to it. We are also grateful to Brad Wendel for his editorial contributions, to Brian Toohey and all at Jones Day for their efforts, and to all of our correspondents and contributors. Thank you.
We regret any inconvenience.
Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.
Louisiana Legal Ethics
0.1:100 Sources of Law and Guidance
Members of the Louisiana State Bar are governed by the Louisiana Rules of Professional Conduct (“LRPC”), which became effective on January 1, 1987. Although not identical, the LRPC “are based upon” the ABA’s Model Rules of Professional Conduct. The differences between the LRPC and the ABA Model Rules are discussed below under the headings entitled “Model Rule Comparison.” There is also a comparison between the LRPC and the ABA Model Code of Professional Responsibility found under the topic heading “Model Code Comparison.” See Section 0.1:103 for a discussion of the evolution of these rules.
This section has not yet been completed.
The development of the Louisiana Rules of Professional Conduct has closely followed that of the American Bar Association’s Model Rules of Professional Conduct. Prior to 1970, the Louisiana Bar was governed by the Canons of Professional Ethics. On June 12, 1970, the Articles of Incorporation of the Louisiana State Bar Association (where these Canons were promulgated) were amended, and the Canons were replaced with the Louisiana Code of Professional Responsibility (“LCPR”). The LCPR was modeled after the ABA Code of Professional Responsibility.
In 1983, the ABA House of Delegates adopted the Model Rules of Professional Conduct. In 1985, the Louisiana Rules of Professional Conduct, which were based upon the ABA Model Rules, were adopted by the Louisiana State Bar Association House of Delegates and Board of Governors. The Supreme Court of Louisiana adopted the LRPC, with some modification, effective on January 1, 1987. The preamble and comments to the ABA Model Rules were not incorporated into the LRPC and were not adopted by the Supreme Court. Nevertheless, the drafting committee, in its presentation to the House of Delegates, suggested that the preamble and comments to the ABA Model Rules be considered in the interpretation of the LRPC to the extent that they are consistent. Mengis, Professional Responsibility, 48 LaLRev 437 and 47 LaLRev 415.
Stylistically, the Model Code which preceded the Model Rules, opened with a series of general Canons, followed by Ethical Considerations and a set of mandatory Disciplinary Rules. The LCPR, which preceded the LRPC, followed the same format. In contrast, the LRPC are made up of a series of mandatory rules, with the exception of the rule dealing with pro bono activities (LRPC 6.1). Thus, the format of the LRPC is more like that of the ABA Model Rules. According to one Louisiana commentator, the promulgation of the LRPC marked a “change in direction from a strong emphasis on the lawyer’s duty to the client to a more balanced emphasis on duty to the system of justice and duty to others.” Mengis.
While the LRPC are largely patterned after the ABA Model Rules of Professional Conduct, there are some important substantive distinctions. Although these differences will be treated in more detail in the sections below marked “Model Rule Comparison,” a brief overview of the more important substantive differences is presented here.
Major Differences Between the Louisiana Rules and the Model Rules
LRPC 1.1: LRPC 1.1(b) requires lawyers to comply with the Louisiana Supreme Court’s continuing education requirements. The Model Rules, in comment 6 to Rule 1.1, says that lawyers should participate in continuing education.
LRPC 1.2: LRPC 1.2(a) does not require a lawyer to abide by his client’s decisions as does MR 1.2(a). LRPC 1.2(a) places the authority and responsibility of the representation in the lawyer and the client while giving the client authority to determine the purposes served by litigation. Additionally, Louisiana has no counterpart to MR 1.2(b) which provides that a lawyer’s representation of a client does not endorse that client’s political, economic, social or moral views.
LRPC 1.4: MR 1.4(b) requires a lawyer to explain matters to his client to the extent necessary for him to make informed decisions. LRPC 1.4(b) requires less, requiring that a lawyer provide his client with information to make informed decisions only “to the extent the client is able and willing to do so.”
LRPC 1.5: LRPC 1.5 expands upon the requirements of MR 1.5 by providing specific provisions relating to the payment of fees in advance of services.
LRPC 1.8: LRPC 1.8(f)(1), like MR 1.8(f)(1), allows a lawyer to be paid by a third person if the client consents after consultation, but also if the compensation by a third person is given pursuant to a contract with that person. Unlike MR 1.8, LRPC 1.8(k) prohibits an attorney from procuring from his client an agreement which would allow him the authority to enter a binding settlement agreement without first obtaining the client’s consent.
LRPC 1.9: LRPC 1.9(b) regulates the use of information relating to the representation of a client while MR 1.9(c) also prevents an attorney from revealing such information.
LRPC 1.10: LRPC 1.10(b) prevents a firm from knowingly representing a person in the same or a substantially similar matter to one in which a lawyer newly associated with the firm, or his prior firm, represented a materially adverse client if the new lawyer acquired material information protected by LRPC 1.6 or 1.9(b). MR 1.9(b) prevents a lawyer from knowingly representing a person in the same or a substantially similar matter to one in which his former firm represented a materially adverse client if the lawyer acquired material information protected by LRPC 1.6 or 1.9(c). Although MR 1.9(b) allows a client to consent to representation under such circumstances, LRPC 1.10(b) does not.
LRPC 3.3: While MR 3.3(a)(2) requires lawyers to disclose facts which are necessary to prevent a criminal or fraudulent act by his client, LRPC 3.3(a)(2) is broader. LRPC 3.3(a)(2) requires lawyers to disclose that which, by law, they must reveal. Furthermore, this rule requires a lawyer to notify the court if he knows his client has defrauded a tribunal, but only after his client has been given the opportunity and failed to do so. Although the duties imposed by MR 3.3 terminate at the conclusion of the proceeding, some duties imposed by LRPC 3.3 continue after the proceedings have concluded.
LRPC 3.6: Although MR 3.6(a) and (d) prevent lawyers who are involved in a matter, or their associates, from making extra-judicial statements about that matter, LRPC 3.6 prevents any lawyer with information about a case from making such statements. Additionally, unlike MR 3.6, LRPC 3.6 does not expressly allow a lawyer to make statements which would protect his client from undue prejudice.
LRPC 3.7: Unlike MR 3.7, LRPC 3.7(c) allows a lawyer to continue representing a client even if it is obvious that he may be called as a witness on behalf of someone other than his client. This representation may continue until it is clear that the lawyer’s testimony will be prejudicial to his client.
LRPC 3.8: Unlike MR 3.8, LRPC 3.8 allows a lawyer to be subpoenaed in habitual offender proceedings for the purpose of identification or in post conviction proceedings on the issue of competency of counsel. Unlike MR 3.8(f), LRPC 3.8(f) allows a prosecutor to subpoena a lawyer to obtain information if the subpoena is not intended as harassment and judicial approval is obtained. LRPC 3.8 does not explicitly prevent lawyers from making extrajudicial statements which will heighten public condemnation of the accused, as does MR 3.8(g).
LRPC 4.3: LRPC 4.3 is completely different from its Model Rule counterpart. MR 4.3 requires lawyers, in dealing with unrepresented persons, to refrain from implying they are disinterested and obliges them to correct any misunderstandings. LRPC 4.3 requires lawyers to assume that unrepresented persons do not understand the lawyer’s role in the matter. Under LRPC 4.3, the only advice a lawyer may give such an unrepresented person is to obtain counsel.
0.2:200 Forms of Lawyer Regulation in Louisiana
The Louisiana Supreme Court has the final authority to regulate the practice of law in Louisiana. Singer Hutner Levine Seeman & Stuart v LSBA, 378 So2d 423 (La 1979). This vesting of power arises from the Constitutional division of the Louisiana state government into the executive, legislative and judicial branches. The Louisiana Constitution prohibits one branch of government from exercising the powers of another. Thus, as head of the judicial branch, the Supreme Court has the power to regulate the bar. Singer, 378 So2d 423 (La 1979). Despite the Supreme Court’s ultimate authority to regulate the bar, the Legislature may guide the bar by passing legislation which meets with the Court’s approval. Although the Supreme Court will strike down statutes which impede or frustrate its authority, it will approve legislation passed to aid in its regulation of the Louisiana bar. LSBA v Connolly, 9 So2d 582 (La 1942).
The Louisiana State Bar Association was created under the rule making power of the Louisiana Supreme Court to promote the administration of justice and to assist the Supreme Court in its regulation of the practice of law. Articles of Incorporation of the LSBA, Art III; “What have we done for you lately?,” Bienvenu, 45 LaBJ 410. The LSBA’s Articles of Incorporation and the rules pertaining to disciplinary proceedings have been adopted as rules of the Supreme Court. LSBA v Edwins, 329 So2d 437 (La 1976).
Pursuant to Art. 5, § 5 of the Louisiana Constitution, the Louisiana Supreme Court has exclusive original jurisdiction of disciplinary proceedings against a member of the Louisiana bar. Thus, the ultimate responsibility for finding facts that constitute unethical conduct as a matter of law and for assessing the appropriate penalties rests with the Louisiana Supreme Court. LSBA v Edwins, 329 So2d 437 (La 1976); LSBA v Causey, 393 So2d 88 (La 1981). Disciplinary proceedings are discussed in more detail in Section 0.2:230.
The Louisiana State Bar Association, is a Louisiana corporation, created and regulated under the rule-making power of the Supreme Court of Louisiana. La RS 37:211. The Articles of Incorporation for the Louisiana State Bar Association are found in Title 37, following R.S. 37:219, in the Appendix to Chapter 4. The object of the LSBA is to regulate the practice of law, advance the science of jurisprudence, promote the administration of justice, uphold the honor of the Courts and the profession, encourage cordial intercourse among its members and promote the welfare of the profession in Louisiana. Articles of Incorporation of the LSBA, Article III, § 1. The Rules of Professional Conduct, which are addressed more fully in the Section on the Client-Lawyer Relationship, govern the conduct of the lawyers practicing in Louisiana and are found in Article XVI of the Articles of Incorporation of the LSBA.
Every lawyer licensed to practice in the state of Louisiana must be a member of the LSBA. Articles of Incorporation of the LSBA, Art IV, § 1. Only active members of the LSBA in good standing may practice law in Louisiana. Articles of Incorporation of the LSBA, Article IV, § 4. Attorneys admitted in other states may be admitted to practice on a particular matter pro hac vice in this state if they act in association with an attorney licensed to practice law in Louisiana. La RS 37:214. See also State v Roberts, 569 So2d 671 (La App 2 Cir 1990). All justices and judges who have been licensed to practice law in Louisiana but, due to their judicial functions, no longer actively practice in this state are members of the LSBA. Articles of Incorporation of the LSBA, Article IV, § 1.
Annual dues are $100.00 for active members of the LSBA admitted for more than three years and $40.00 for those admitted less than three years. Articles of Incorporation of the LSBA, Article V, §2. If an active member is 30 days delinquent in paying his dues, he is given notice by the Treasurer. If he does not pay within 30 days after receiving notice, he loses good standing status and is ineligible to practice law in Louisiana. Articles of Incorporation of the LSBA, Article V, § 4. Ineligibility to practice does not equal disbarment. An attorney who is ineligible to practice because of the failure to pay dues remains on the roll of attorneys and retains a license to practice law. LSBA v Powell, 195 So.2d 280 (La. 1967). An active member of the LSBA may request inactive status. Articles of Incorporation of the LSBA, Article IV, § 3. Inactive members are not required to pay dues. Articles of Incorporation of the LSBA, Article V, § 3.
The Bar Association has four officers: a President, a President-Elect, a Secretary and a Treasurer. Articles of Incorporation of the LSBA, Article VI, § 1. These officers are nominated by a nine-member Nominating Committee or by written petition and elected by secret mail ballot. Articles of Incorporation of the LSBA, Article VI, §§ 4, 5. Only active members in good standing have the right to vote. Articles of Incorporation of the LSBA, Article VI, § 6.
The Bar Association officers serve on the Board of Governors which administers certain affairs of the Bar Association as directed by the Articles of Incorporation or the House of Delegates. Articles of Incorporation of the LSBA, Article VII, § 1. While the Board of Governors handles the administrative side of the Bar Association, the policies of the Bar Association (excluding fiscal affairs and those affairs handled by the Committee on Bar Admissions and the Committee on Professional Ethics and Grievances) are created by the House of Delegates. Articles of Incorporation of the LSBA, Article VIII, § 1. The House of Delegates is also responsible for promulgating the by-laws of the Bar Association. Articles of Incorporation of the LSBA, Article X, § 1.
Article XIV, § 1 of the Articles of Incorporation of the LSBA creates the Committee on Bar Admissions, an eleven member panel appointed by the Supreme Court upon recommendation of the Board of Governors. The members of this committee are appointed for five year terms and may not be appointed for more than two, full, successive terms. This committee examines each applicant’s qualifications and conducts a bar examination at least twice a year. Articles of Incorporation of the LSBA, Article XIV, § 2. Although the ultimate power to admit an applicant to practice law lies with the Supreme Court, this committee has the power to certify that applicants are qualified to practice law in Louisiana. See Singleton v LSBA, 413 FSupp 1092(ED La 1976).
The work of the LSBA is implemented through a variety of sections. Currently, there are 22 sections of the LSBA, among them are the Alternative Dispute Resolution Section, the Sole Practitioners and Small Firms Section and the Young Lawyers Section, as well as other sections defined by certain substantive practice areas. By-Laws of the LSBA, Article VII, § 1. These sections are created by the House of Delegates. Each member of the LSBA may enroll as a member of one or more of these sections.
There are also a number of standing committees within the LSBA. Several of these committees administer or enforce provisions of the LRPC. For instance, the Client’s Security Fund Committee manages and distributes funds which are used to maintain the integrity of the legal profession by reimbursing clients who have sustained losses as a result of the dishonest conduct of any member of the LSBA. The Unauthorized Practice of Law Committee is charged with eliminating the unauthorized practice of law. The Ethics Advisory Committee reviews proposed changes to the LRPC to assure uniformity and prevent conflicts with existing rules. This committee is also charged with periodically reviewing the existing rules and recommending changes. By-Laws of the LSBA, Article VIII, § 1.
The Continuing Legal Education Committee is charged with arranging methods by which members of the LSBA may continue their post-admission education. By-Laws of the LSBA, Article VIII, § 1. The rules pertaining to Continuing Legal Education are found in Supreme Court Rule 30. The preamble to Rule 30 states that compliance with the continuing education requirements is necessary to maintaining a license to practice law in the state of Louisiana. The only people licensed to practice law in Louisiana who are exempt from the continuing legal education requirements are members of the bar who reside outside of Louisiana and do not practice in Louisiana, members who can demonstrate that meeting the requirements would cause undue hardship for certain enumerated reasons, members on active duty in the United States armed forces, members of the U.S. Congress, all federal judges and magistrates and members who are 65 years of age or older. Members of the Louisiana bar who reside in Louisiana but are not engaged in the practice of law may qualify for restricted status and receive a waiver of compliance with these requirements. Sup Ct Rule 30, Rule 2. Non-resident attorneys who are temporarily admitted to practice in this state are also exempt from these requirements. Sup Ct Rule 30, Regulations/Rule 2. Under Rule 30, the Louisiana Continuing Education Committee is granted the power to accredit courses or institutions for purposes of meeting the continuing legal education requirements. Every member of the Louisiana Bar must attend 15 hours of such courses each calendar year. Of these 15 hours, at least one must concern legal ethics and at least one must concern professionalism. Newly admitted members to the Louisiana Bar are not required to attend continuing legal education courses for the year of their admission or the next calendar year. Sup Ct Rule 30, Rule 3.
Until 1990, the Rules for Lawyer Disciplinary Enforcement were included in the Articles of Incorporation of the LSBA. Today, they can be found in Louisiana Supreme Court Rule XIX which was most recently amended in October of 1997. Sup Ct Rule XIX, § 2 created the Attorney Disciplinary Board, a statewide agency which administers the lawyer discipline and disability system. The disciplinary board operates through a statewide board, hearing committees, a disciplinary counsel and staff appointed by the board and counsel. Although the disciplinary board performs both prosecutorial and adjudicative functions, these functions are separated within the agency to promote fairness. Lawyers employed full-time by the agency and, insofar as practicable, employees of the agency perform the prosecutorial functions. The adjudicative functions are performed by practicing lawyers and public members.
The disciplinary board consists of fourteen members appointed by the Louisiana Supreme Court. Four of these are members of the public appointed from the state at large. Of the remaining lawyer members, two are chosen from the state at large and one from each of the seven Supreme Court Districts, except that two are appointed from District One. Sup Ct Rule XIX, § 2(B). The LSBA appoints one lawyer member each year, which member must have previously served in the disciplinary system, such as a hearing committee member. Sue Tart, “Lawyer Discipline in Louisiana,” La Disciplinary Review, Winter 1998, p 6. As of October 9, 1997, a fourteenth member is appointed for a one year term by the Louisiana Supreme Court upon the recommendation of the Louisiana State Bar Association. Other members of the Disciplinary Board serve three year terms. Board members may not serve more than two consecutive terms. Sup Ct Rule XIX, § 2(B). The board acts with the concurrence of a majority when at least eight members are participating and voting. The board is divided into a nine member adjudicative committee (including three public members) and a five member administrative committee (including one public member). Sup Ct Rule XIX, § 2(G).
These two committees act together to propose rules of procedure for lawyer discipline and disability proceedings and to comment on the enforceability of existing and proposed Rules of Professional Conduct. The committees appoint a chief disciplinary counsel, with the approval of the Supreme Court, to perform prosecutorial functions. Together, these two committees also inform the public about the existence and operation of the system and also periodically review the operation of the system for a report to the Supreme Court. Sup Ct Rule XIX, § 2(G)(1).
The adjudicative committee performs appellate review of the conclusions and recommendations of the hearing committees (discussed in Section 0.2:240), petitions for transfer to and from disability inactive status and petitions for reinstatement, and also prepares and forwards records of the hearing committees’ proceedings to the Supreme Court, along with its own findings. The adjudicative committee also administers reprimands, issues admonitions, rules on procedural matters and imposes probation when the respondent consents. Sup Ct Rule XIX, § 2(G)(2).
The administrative committee is responsible for appointing at least three hearing committees and establishing the rotation in which they will hear various complaints. This committee is also responsible for management of finances, human resources, systems and facilities. The members of this committee cannot participate in or vote on matters involving the appellate review function of the adjudicative committee. Sup Ct Rule XIX, § 2(G)(3).
As mentioned above, at least three hearing committees are appointed by the administrative committee of the disciplinary board. Each hearing committee must have two members of the Louisiana bar and one public member. A lawyer member of each hearing committee will be appointed as chair by the administrative committee. During their three-year terms of office, the members of the hearing committees may be removed only for cause. The committee may act only with the concurrence of two members when all three are participating. If all three members cannot participate, the chair of the disciplinary board may appoint alternate members. Sup Ct Rule XIX, § 3.
The hearing committees have several important functions. They conduct hearings into formal charges of misconduct, petitions for reinstatement or readmission, and petitions to transfer to and from disability inactive status. After the hearings, the committees submit written findings of fact, conclusions of law, recommendations and a record of the hearing to the disciplinary board. Finally, these committees are responsible for reviewing dismissals by the disciplinary counsel when requested by the complainant. Sup Ct Rule XIX, § 3(D).
The disciplinary board appoints the disciplinary counsel subject to the Supreme Court’s approval. Disciplinary counsel must be a lawyer admitted to practice in Louisiana. The disciplinary counsel has many duties, the most important being the duty to perform all prosecutorial functions. He or she is also responsible for conducting factual investigations and issuing investigatory subpoenas, dismissing or recommending probation, granting informal admonitions or stays, filing formal charges, or petitioning for transfer to disability inactive status with respect to each matter brought to the attention of the disciplinary agency. The disciplinary counsel is responsible for notifying the complainant and respondent of the disposition of each matter and is responsible for notifying each jurisdiction in which a lawyer is admitted of that lawyer’s inactive status, reinstatement, readmission, or public discipline imposed in this state. He or she must also maintain permanent records and has the responsibility of expunging records or evidence of complaints three years after their dismissal. Sup Ct Rule XIX, § 4.
The chair of each hearing committee has the power to review the actions and recommendations of the disciplinary counsel. The chair may approve, disapprove or reject the disciplinary counsel’s suggestions or he or she may direct that a matter be investigated further. Disciplinary counsel may appeal one chair’s decisions to the chair of another hearing committee. The decision of the second hearing committee’s chair is final. Once a hearing is set, the chair of the hearing committee also has the duty to conduct pre-hearing conferences and decide any pre-hearing motions. Sup Ct Rule XIX, § 3(E).
All lawyers admitted to practice in Louisiana, and former members of the LSBA with respect to certain acts, are subject to the jurisdiction of the Louisiana Supreme Court and the disciplinary board. Jurisdiction also extends to lawyers admitted for a particular proceeding or who are not admitted but are practicing in this state. Former judges who have resumed the practice of law are also subject to the jurisdiction of the disciplinary board for misconduct committed while a judge that would be grounds for lawyer discipline if such conduct was not addressed in a judicial disciplinary proceeding. Full time incumbent judges are not subject to the jurisdiction of the disciplinary board. Sup Ct Rule XIX, § 6.
The disciplinary board maintains a roster with the pertinent information relating to each lawyer licensed to practice in this state. Sup Ct Rule XIX, § 7. The costs of the disciplinary board’s activities are defrayed by annual fees paid by each lawyer licensed to practice before the Louisiana Supreme Court. Judges of the state and federal courts in Louisiana are exempt from paying this fee. Sup Ct Rule XIX, § 8.
Disciplinary proceedings in Louisiana are intended to protect the courts and the public, not to impose punishment. In Re Reed, 22 So2d 552 (La 1945). They are neither criminal nor civil. Sup Ct Rule XIX, § 18(A).
Complaints about lawyer misconduct may be filed by anyone. Complainants may call 1-800-326-8022 to request a compliant form. This form must be completed and returned to the Office of Disciplinary Counsel, 4000 Sherwood Forest Blvd., Suite 607, Baton Rouge, Louisiana, 70816. As an alternative, a complainant may also write a letter to the Office of Disciplinary Counsel including their name, address and telephone number. The letter must include a description of the lawyer’s alleged misconduct and include all important information, including the lawyer’s name, address, telephone number and dates of events.
Before formal charges are brought, the proceeding is confidential. Nevertheless, disciplinary counsel may reveal the pendency, subject matter and status of an investigation if at least one of the following factors is present: the respondent has waived confidentiality, the proceeding is based upon conviction of a crime or reciprocal discipline, the allegations have become generally known to the public, or if others must be notified to protect the public, the administration of justice or the legal profession.
If one of these factors is met, notice will be given that nonpublic information will be disclosed and the respondent has 21 days from the mailing of the notice to object to its disclosure. If the respondent objects, the information remains private unless a court orders its disclosure. Nonpublic information is released without notice to the lawyer only if the information is essential to an ongoing investigation and notice to the lawyer would prejudice that investigation. Otherwise, nonpublic information may only be disclosed to the LSBA or the lawyer disciplinary enforcement agencies. Once formal charges are filed and served, the proceeding becomes public. Nevertheless, the deliberations of the hearing committee, disciplinary board or Supreme Court or any information under protective order remain confidential. Sup Ct Rule XIX, § 16.
Communications relating to lawyer misconduct and testimony given in proceedings are absolutely privileged. Lawsuits predicated on this information may not be instituted against any complainant or witness. Although witnesses are not automatically immune from criminal prosecution, the Supreme Court may grant such immunity upon the application of the disciplinary counsel. Members of the disciplinary board, the hearing committees, disciplinary counsel, their staff and members of other ethics committees are also immune from suit for conduct in the course of their duties. Sup Ct Rule XIX, § 12.
If, during the course of the disciplinary proceedings, the respondent alleges that he or she cannot assist in his or her defense due to a mental or physical incapacity, the Supreme Court will immediately transfer the respondent to disability inactive status pending a formal determination of the lawyer’s capacity. If the claim is valid, the respondent will be placed on disability inactive status and the proceedings will be deferred until the respondent petitions to return to active status which, if granted, will re-institute the deferred disciplinary proceedings. If the claim is invalid, the disciplinary proceedings will resume and the respondent will be placed on interim suspension until the disciplinary matter is resolved. Sup Ct Rule XIX, §22.
A lawyer may petition to be removed from disability inactive status once a year unless the Court directs otherwise. The Court is responsible for investigating this request and deeming the lawyer fit to re-enter the practice of law. The Court may order the attorney to submit to such examinations as will prove his or her competence and learning in the law. The Court may also direct that the respondent undergo a medical evaluation. When petitioning for a return to active status, the attorney must reveal the names of all of the treating physicians or institutions used since his or her transfer to disability inactive status and submit a waiver of the doctor-patient privilege. The attorney must justify his or her removal from disability status by clear and convincing evidence. Sup Ct Rule XIX, §22(E).
GROUNDS FOR DISCIPLINE
The grounds for lawyer discipline are located in Sup Ct Rule XIX, § 9. These grounds include violation or attempted violation of the Rules of Professional Conduct or any other rule regarding professional conduct of lawyers, engaging in conduct which violates the rules of professional conduct of another jurisdiction, willfully violating a valid order of the court or disciplinary board imposing discipline, willfully failing to appear before the board for admonition, or knowingly failing to respond to a lawful demand from a disciplinary authority. The sanctions for such misconduct and the procedure for imposing those sanctions are discussed below.
Although a more thorough explanation of the procedure for disciplinary proceedings in Louisiana follows, here is a summary of the system: 1) A complaint of misconduct is filed with the disciplinary counsel; 2) the disciplinary counsel investigates the charges and either dismisses the case, recommends that the respondent consent to an admonition, petitions for the respondent to be transferred to disability inactive status or requests the approval of a hearing committee to file formal charges; 3) if the case is dismissed, the complainant may appeal to a panel of the disciplinary board within 30 days and may appeal the board’s decision to the Supreme Court if it can be shown that the disciplinary board acted arbitrarily, capriciously or unreasonably; 4) if the respondent will not consent to an admonition or if the disciplinary counsel requests approval to file formal charges, the matter is referred to a hearing committee; 5) the hearing committee reviews the matter and submits a report to the adjudicative committee of the disciplinary board; 6) the adjudicative committee will review the record and either dismiss the matter or recommend the imposition of discipline; 7) if necessary as determined by the type of discipline recommended, the disciplinary board will file a report with the Supreme Court; 8) the Supreme Court will review the matter and render its decision.
In all cases where service is required, Sup Ct Rule XIX, § 13 requires the petition to be served through personal service or by mail. Service of all other papers may by accomplished through personal service or in accordance with La CCP arts 1313 and 1314.
Disciplinary proceedings are initiated by the filing of a complaint. Anyone may file a complaint. A complaint need not be formal but may result from any information which comes to the attention of the disciplinary counsel involving a lawyer subject to the jurisdiction of the disciplinary agency in this state. Sup Ct Rule XIX, § 4(B); Deb Henson, “Overview of the Disciplinary Process: From Complaint Through Louisiana Supreme Court Opinion,” La Disciplinary Review, Winter 1998, p 6. Jurisdiction of the Louisiana disciplinary agency is discussed in Section 0.2:230. The complaint will be reviewed by the disciplinary counsel. If jurisdiction is proper, the disciplinary counsel will either dismiss the matter if the facts alleged do not constitute misconduct or incapacity, or investigate when the facts, if true, would constitute a claim. If jurisdiction is improper, he or she will refer the matter to the appropriate jurisdiction. Sup Ct Rule XIX, § 11(A).
Investigation by the Disciplinary Counsel
If an investigation is conducted, the deputy disciplinary counsel conducting the investigation will forward a copy of the complaint to the respondent attorney and request a response within 15 days. If the respondent does not respond, he or she will be ordered by a court to do so. The investigation proceeds after the respondent’s response has been received. Once the disciplinary counsel has investigated the facts, he or she will recommend how to dispose of the matter. The disciplinary counsel may suggest that the respondent agree to an admonition, request approval by a hearing committee to file formal charges, petition for the respondent’s transfer to disability inactive status, or dismiss the case. Henson, p 6.
All of the disciplinary counsel’s recommendations (except for dismissals) are submitted to and reviewed by a hearing committee which will either approve, disapprove or modify it. The disciplinary counsel may appeal a decision to disapprove or modify his or her recommendation. In such a case, a second hearing committee will either approve the disciplinary counsel’s recommendation or the action of the first reviewer. Sup Ct Rule XIX, § 11(B)(3).
If the disciplinary counsel finds misconduct, he or she may suggest a variety of sanctions. A detailed discussion of these sanctions is found below. Although the disciplinary counsel must notify both the complainant and the respondent of the disposition of each matter, he or she cannot recommend any sanction other than dismissal or a stay without first notifying the respondent, in writing, of the allegations and giving them an opportunity to be heard. Sup Ct Rule XIX, § 4(B)(6) and 11(B)(2).
If the complainant is not satisfied with the disposition of a matter after investigation by the disciplinary counsel and review by a hearing committee, he or she may appeal to a panel of the disciplinary board within 30 days of receiving notice of the hearing committee’s decision. This panel will then approve, modify or disapprove the disposition or direct that the matter be investigated further. A complainant may appeal to the Supreme Court only when he or she can show that the disciplinary board acted arbitrarily, capriciously or unreasonably. Sup Ct Rule XIX, § 30. Both the disciplinary board and the Supreme Court will not hear new evidence in conducting this, or any, review. If new evidence is discovered which warrants a reopening of the case, the case will be remanded to the hearing committee. Sup Ct Rule XIX, § 11(F) and (G).
Dismissal by the Disciplinary Counsel
If the disciplinary counsel recommends dismissal, he or she must provide the complainant with notice of such disposition, as well as their right to file a written request for review of the dismissal within 30 days of receiving this notice. If requested by the complainant, one of the hearing committees discussed in Section 0.2:230 will review the disciplinary counsel’s decision. The hearing committee may approve, modify or disapprove the appealed dismissal or direct that the matter be investigated further. Sup Ct Rule XIX, § 11(B)(3). Dismissals will not be reviewed by a hearing committee unless there is a written request from the complainant.
Formal hearings may come about one of two ways. First, a respondent may demand a formal hearing if the disciplinary counsel recommends probation or admonition as a sanction. Second, the disciplinary counsel, after investigating a matter, may request that a hearing committee approve formal charges.
Once the matter proceeds to a formal hearing, disciplinary counsel must prepare formal charges, file them with the disciplinary board and serve them on the respondent. The respondent must then file an answer with the board and serve the disciplinary counsel within 20 days of service of the charges. If the respondent fails to answer timely, the charges are deemed admitted and proven by clear and convincing evidence unless the respondent can prove that an order issued pursuant to these facts would be a miscarriage of justice. Twenty days after the respondent has filed his or her answer, discovery can begin in accordance with Sup Ct Rule XIX, § 15. Hearings are held before a hearing committee which serves as the trier of fact. The board must serve notice of the hearing on the respondent and disciplinary counsel at least 25 days before its scheduled date. The respondent has the right to have legal representation, cross examine witnesses and present evidence at the hearing.
The LSBA bears the burden of establishing proof of misconduct by clear and convincing evidence. LSBA v Brown, 291 So2d 385 (La 1974); LSBA v Edwins, 329 So2d 437 (La 1976); LSBA v Causey, 393 So2d 88 (La 1981). According to Sup Ct Rule XIX, § 18, the burden of proof is on the disciplinary counsel in matters where discipline or transfer to disability inactive status is being sought. If reinstatement, readmission or transfer from disability inactive status is being sought, the burden of proof is on the respondent.
A lawyer against whom formal charges have or may be filed may tender a conditional admission to the disciplinary counsel on one or all of the charges in exchange for a proposed form of discipline. To become effective, the admission must first be approved by the disciplinary board. If the discipline includes disbarment, suspension or transfer to disability inactive status, the Supreme Court must concur. If the proposed form of discipline is rejected by the disciplinary board, the admission is withdrawn and may not be used as evidence against the respondent in subsequent disciplinary proceedings. If the proposed form of discipline is approved, the hearing committee is divested of jurisdiction and a final order, based upon the admission, is entered. Once the order of discipline is entered, the attorney’s affidavit of consent must be sealed and is not available for use in any other proceeding without court order. Sup Ct Rule XIX, §20.
Once the hearing has concluded, the hearing committee submits the record of the proceedings and its recommendations to the adjudicative committee of the disciplinary board. Like an appellate court, the adjudicative committee’s review is limited to the record. The disciplinary counsel and the respondent may file briefs and present oral argument. If the adjudicative committee discovers new evidence which warrants reopening the case, the matter will be remanded to the hearing committee. The adjudicative committee may approve, modify or disapprove the hearing committee’s recommendation. Sup Ct Rule XIX, § 11(F).
If the disciplinary board remands the matter to the hearing committee, dismisses the matter or institutes probation or reprimand as a sanction and there are no appeals, then the matter is concluded. In all other cases, the disciplinary board must submit a report with its findings and recommendations to the Supreme Court. This report must also be served on the disciplinary counsel and the respondent who may file objections within 20 days of receiving notice. If objections are filed, the Court will set the matter for oral argument with notice to the respondent and the disciplinary counsel at least 60 days before the hearing. Briefs of the objecting party or parties shall be filed within 20 days of notice. The opposing party has 20 days after the mailing of the objecting party’s brief to file a reply brief.
If there are no objections, the Court may enter an order based upon the disciplinary board’s report with written reasons or, if the Court determines that there should be a different disposition, the Court will invite the parties to file briefs or engage in oral argument. If new evidence is discovered which warrants a reopening of the case, the matter will be remanded to the hearing committee. Sup Ct Rule XIX, § 11(G).
A variety of sanctions may be imposed once it is concluded that an attorney has committed misconduct. Sanctions include disbarment by the Supreme Court, suspension not to exceed three years, probation not to exceed two years, a written reprimand imposed by either the Supreme Court or the disciplinary board and published in both the state bar journal and a newspaper in each judicial district where the lawyer maintains an office, admonition by the disciplinary board, restitution to people financially injured, assessment of the costs of the proceedings and limitation by the Supreme Court upon the nature or extent of the respondent’s future practice. Disbarment, suspension, probation and reprimand are considered public discipline and must be accompanied by written reasons for judgment. Sup Ct Rule XIX, § 10. Sanctions will also be imposed against an attorney who fails to timely pay his or her disciplinary enforcement and administration fees pursuant to Sup Ct Rule XIX, § 8(D). A lawyer who fails to pay such fees will receive a notice of delinquency and imminent certification of ineligibility to practice law by certified mail. A penalty is imposed on attorneys who fail to pay by August 31. After December 31, lawyers who have failed to pay their fees are certified ineligible to practice law.
Typically, the ABA Standards for Imposing Lawyer Sanctions are the authority for determining the baseline sanction that should be imposed for a particular act of misconduct. Aggravating and mitigating factors (which are discussed below), if any, are examined to determine the degree of discipline that should be imposed. The hearing committee cannot impose sanctions. Should a hearing committee find that a lawyer has committed unethical conduct warranting discipline, the disciplinary board must review the matter. The hearing committee must file its report and the hearing record with the disciplinary board, and respondent and disciplinary counsel must be afforded the opportunity to file briefs and present oral argument. If the disciplinary board determines that suspension or disbarment should be imposed, its written recommendation must be reviewed by the Louisiana Supreme Court, as these sanctions can only be ordered by the Supreme Court.
In weighing sanctions, no greater penalty should be imposed against an attorney guilty of misconduct than that which is required to protect the courts and the public. LSBA v Cox, 215 So2d 513 (La 1968). Before imposing sanctions, the Court or board must consider whether the lawyer violated a duty owed to the client, the public, the legal system or the profession, whether the lawyer acted intentionally, the amount of injury or potential injury caused by the misconduct and the existence of any aggravating or mitigating circumstances. The discipline imposed in each case depends upon the seriousness and circumstances of the offense, “fashioned in light of the purpose of lawyer discipline, taking into account aggravating and mitigating circumstances.” LSBA v Bensabat, 378 So2d 380 (La 1979); LSBA v Causey, 393 So2d 88 (La 1981).
As mentioned above, the hearing committee, the disciplinary board and, thus, the Louisiana Supreme Court, rely upon the ABA Standards for Imposing Lawyer Sanctions in fashioning discipline. See In Re Dunn, 98-0535 (La 6/5/98),713 So2d 461. These Standards, organized according to the character of the attorney’s breach, recommend a series of baseline sanctions. They also include an illustrative list of mitigating and aggravating factors. Aggravating factors are those that may justify “an increase in the degree of discipline to be imposed” and include the following: (1) a prior record of discipline, (2) dishonest or selfish motives, (3) a pattern of misconduct, (4) multiple offenses, (5) obstruction of the disciplinary proceeding by intentionally failing to comply with rules or orders of the disciplinary authority, (6) submission of false evidence, false statements, or other deceptive practices during the disciplinary process, (7) refusal to acknowledge the wrongful nature of the misconduct involved, either to the client or to the disciplinary authority, (8) vulnerability of the victim, (9) substantial experience in the practice of law, (10) lack of a good faith effort to make restitution or to rectify the consequences of the misconduct involved, and (11) illegal conduct, including the use of controlled substances. ABA Standards for Imposing Lawyer Sanctions, Rule 6.2. See also In Re LeBlanc, 98-0800 (La 5/29/98), 713 So2d 449 (where the attorney has already been disciplined for misconduct that arose at a similar time and under similar circumstances to the misconduct charged in the instant case, the disciplinary board should consider the sanction as if the charges had been presented together and not in the context of a prior record of discipline).
In Louisiana, the hearing committee, disciplinary board and Louisiana Supreme Court have considered other aggravating factors. See In Re Ellis, 98-0078 (La 5/1/98), 710 So2d 794 (the Court relied upon an intent to deceive the client as an aggravating factor), In Re Southall, 97-3221 (La 5/8/98), 710 So2d 245 (the Court relied upon the attorney’s lack of knowledge of basic legal principles as an aggravating factor), In Re Dunn, 98-0535 (La 6/5/98), 713 So2d 461 (the fact that the suit the attorney was handling became abandoned over a five year period was an aggravating factor), In Re Naccari, 97-1546 (La 12/19/97), 705 So2d 734 (substantial injury to the public was an aggravating factor).
Mitigating factors are those which may justify “a reduction in the degree of discipline to be imposed” and include the following: (1) absence of a prior record of discipline, (2) absence of a dishonest or selfish motive, (3) personal or emotional problems, (4) timely good faith effort to make restitution or to rectify the consequences of the misconduct involved, (5) full and free disclosure to the client or the disciplinary authority prior to the discovery of any misconduct or cooperative attitude toward the proceedings, (6) inexperience in the practice of law, (7) good character or reputation, (8) physical disability, (9) mental disability or impairment, including substance abuse, when (i) the respondent is affected by a substance abuse or mental disability; (ii) the substance abuse or mental disability causally contributed to the misconduct; (iii) the respondent’s recovery from the substance abuse or mental disability is demonstrated by a meaningful and sustained period of successful rehabilitation; and (iv) the recovery arrested the misconduct and the recurrence of that misconduct is unlikely; (10) unreasonable delay in disciplinary proceedings, provided that the respondent did not substantially contribute to the delay and provided further that the respondent has demonstrated prejudice resulting from the delay, (11) interim reform in circumstances not involving mental disability or impairment, (12) imposition of other penalties or sanctions, (13) remorse, and (14) remoteness of prior offenses. ABA Standards for Imposing Lawyer Sanctions, Rule 6.3. The existence of mitigating factors may have a substantial impact on the discipline imposed. For instance, in In Re Ellis, 98-0078 (La 5/1/98), 710 So2d 794, an attorney had falsified judgments to appease his client and assure him that the case was progressing. Although the sanction for such an offense is typically disbarment or a substantial suspension, the Court only suspended him for three years, with all but one year and one day deferred, because the attorney learned he had cancer while representing the complainant.
Mitigating factors other than those listed have been considered by the Supreme Court. In Re Kelly, 98-0368 (La 6/5/98), 713 So2d 458 (the lack of criminal prosecution of the attorney and the fact that the misappropriation concerned his law firm and not his client were mitigating factors), In Re Southall, 97-3221 (La 5/8/98), 710 So2d 245 (the fact that the attorney was a solo practitioner without an office staff and the probability that the misconduct would not reoccur were mitigating factors), In Re Huddleston, 595 So2d 1141 (La 1992) (because the crime for which the respondent was convicted was only a misdemeanor in Louisiana, it was a mitigating factor), LSBA v Warner, 576 So2d 14 (La 1991) (fact that attorney’s misconduct did not lead to actual injury was a mitigating factor), LSBA v Lyons, 491 So2d 369 (La 1986) (fact that client had not suffered any apparent financial detriment as a result of the respondent’s failure was a mitigating factor), LSBA v Porobil, 444 So2d 613 (La 1984) (fact that respondent’s improper conduct was unrelated to the practice of law was a mitigating factor).
Once sanctions have been imposed, Sup Ct Rule XIX, § 16(H) requires the disciplinary agency to transmit notice to the National Discipline Data Bank maintained by the American Bar Association.
There are various sanctions which may be imposed against a lawyer who commits misconduct. The following is a list of those sanctions and a brief description of the distinguishing characteristics of each.
A lawyer may be disbarred for misconduct, but disbarment may only be instituted by the Louisiana Supreme Court. Disbarment is considered public discipline and, when imposed by the Court, must be accompanied by written reasons. Disbarment is also discussed in Section 0.2:245.
A lawyer may be suspended from the practice of law for a fixed period of time not to exceed three years. Like disbarment, this sanction is public discipline and may only be imposed by the Supreme Court with written reasons.
If the disciplinary counsel recommends probation, he or she must notify the respondent in writing of the disposition and of the respondent’s right to demand a formal hearing on the issue within fourteen days of the mailing of the notice. Sup Ct Rule XIX, § 10(c). If the respondent requests a hearing, formal charges must be instituted. Probation may be imposed by the Supreme Court, disciplinary counsel or disciplinary board, depending upon how far the matter proceeds through the system. Up to two years probation may be imposed by the Supreme Court. The disciplinary board or disciplinary counsel may also impose probation up to two years, but only with the consent of the respondent. If the respondent objects to probation imposed by the disciplinary board or disciplinary counsel, then formal charges must be filed or a recommendation that probation be imposed must be made with the Court. If the respondent fails to request a hearing, then he or she is presumed to consent to the sanction. Sup Ct Rule XIX, § 11(C). Probation is considered public discipline and, when imposed by the Court, must be accompanied by written reasons.
Generally, the probation period may not exceed two years and may only be imposed in situations where the respondent does not pose a threat to the public during his rehabilitation and only when he or she can be adequately supervised. In all cases, probation may be extended for an additional two years by consent of the respondent or pursuant to a hearing held to determine if there is a continued need for supervision.
Before formal charges have been instituted, a lawyer may be admonished by the disciplinary counsel with the respondent’s consent and the approval of the chair of one of the hearing committees. If the disciplinary counsel recommends that the disciplinary board admonish the respondent, he or she shall notify the respondent in writing of their right to demand, within 14 days of receipt of the notice, that the matter be disposed of in a formal hearing. If the respondent fails to request a hearing, then he or she is presumed to consent to the sanction. Once the respondent consents to admonition, it is reviewed by the chair of one of the hearing committees where it will either be approved or disapproved with written reasons. Once approved by the hearing committee, the disciplinary board will issue an admonition. Sup Ct Rule XIX, § 11(D). Admonitions may be accompanied by a set of conditions which must be observed to avoid a reconsideration of the matter and formal charges against the respondent. Admonitions may not be imposed once formal charges have been filed. See Sup Ct Rule XIX, § 10(A)(4)(5); In Re Dunn, 98-0535 (La 6/5/98), 713 So2d 461.
Admonitions are a form of private discipline and may be imposed only “in cases of minor misconduct, when there is little or no injury to a client, the public, the legal system, or the profession and when there is little likelihood of repetition by the lawyer.” Although a summary of the conduct for which the admonition was imposed may be published in bar publications, the respondent may not be identified. Pursuant to Sup Ct Rule XIX, §25, a lawyer may petition the court to modify or discharge the conditions of discipline if he or she can show by clear and convincing evidence that he or she has made a good faith effort to meet the conditions and found it impossible.
5. Written Reprimands
A lawyer guilty of misconduct may be issued a written reprimand imposed by either the Supreme Court or the disciplinary board. The reprimand must be published in the state bar journal and a newspaper in each judicial district where the lawyer maintains an office. Reprimand is considered public discipline and, when imposed by the Court, must be accompanied by written reasons. Like admonitions, reprimands may be accompanied by a set of conditions which must be observed to avoid a reconsideration of the matter and formal charges against the respondent. Pursuant to Sup Ct Rule XIX, §25, a lawyer may petition the court to modify or discharge the conditions of his discipline if he or she can show by clear and convincing evidence that he or she has made a good faith effort to meet the conditions and found it impossible.
6. Order to Pay Restitution
The Supreme Court or the disciplinary board may order the respondent to pay restitution to people financially injured by his or her conduct. Such a sanction may also be imposed by stipulation. Orders or stipulations such as these may assess the costs of the proceedings upon the respondent, including legal interest on any unpaid costs.
7. Limitation of Practice
The Supreme Court may limit the nature or extent of the respondent’s future practice. Sometimes this sanction may be used in conjunction with others, such as suspension. See In Re Alexander, 615 So2d 284 (La 1993).
Sup Ct Rule XIX, § 19 obliges the disciplinary counsel to take special action when a lawyer subject to the disciplinary jurisdiction of the Supreme Court has violated the Rules of Professional Conduct or is under a disability and poses a “substantial threat of serious harm to the public.” Disciplinary counsel must submit the evidence and a proposed order for interim suspension to the Supreme Court while making an effort to notify the respondent that a proposed order for immediate interim suspension has been transmitted to the Court. The Supreme Court will examine both the evidence submitted by the disciplinary counsel and any rebuttal evidence submitted by the respondent before taking the appropriate action. The Supreme Court may enter an order immediately suspending the lawyer pending the resolution of the disciplinary proceedings. Sup Ct Rule XIX, §19B (B). Should the Court suspend the respondent attorney, he or she may appear before the Court and move for dissolution or modification of the order of suspension after giving the disciplinary counsel two days notice.
A respondent may be placed on interim suspension if he or she claims an inability to assist in their defense due to a mental or physical incapacity and the claim is determined to be invalid. The respondent will remain on interim suspension until the disciplinary matter is resolved. Sup Ct Rule XIX, § 22.
An attorney convicted of a “serious” crime will be placed on interim suspension pending his or her disciplinary proceeding regarding the conviction. See Section 0.2:245.
Notice of discipline
If an attorney has been disbarred, transferred to disability inactive status, placed on interim suspension or suspended for more than one year, he or she shall have 30 days after the imposition of such an order to notify all clients, co-counsel or opposing counsel/parties in all pending matters of the disciplinary order and its effect. The respondent must return to all clients being represented in pending matters any papers or property to which they are entitled. The respondent must also return any unearned fees. Sup Ct Rule XIX, §26.
Reinstatement and Readmission
If a lawyer has been suspended for one year or less, he or she may be reinstated at the end of the period of suspension by filing an affidavit with the Supreme Court, which must be served upon the disciplinary counsel, stating that he or she has complied with the suspension order and paid all fees. Sup Ct Rule XIX, § 23.
A lawyer who has been disbarred or suspended for more than one year, must wait five years after disbarment or six months before the expiration of his or her suspension period before petitioning for reinstatement. The petition for reinstatement must be filed with the disciplinary board and served upon the disciplinary counsel and must set out compliance with each of the following criteria or show good reason why he or she should nevertheless be reinstated: he or she has complied with prior disciplinary orders, he or she has not engaged or attempted to engage in the unauthorized practice of law while inactive, that any disability or infirmity has been removed, he or she recognizes the seriousness of the misconduct committed, he or she has not committed any further misconduct since suspension or disbarment, he or she has the honesty and integrity to practice law, he or she has kept up with recent developments, is competent to practice law and has met the continuing legal education requirements for the reinstatement year, he or she has paid all dues to the Louisiana State Bar Association as well as all fees and costs owed to the Disciplinary Board and the Clerk of Court. If drug or alcohol abuse was a causative factor in the attorney’s misconduct, he or she must also show rehabilitative treatment, abstinence from the substance for at least one year and the likelihood that he or she will continue to abstain from using the substance. Sup Ct Rule XIX, §24 (A) - (C), (E). The disciplinary counsel must either stipulate to the attorney’s reinstatement or readmission or oppose it and request a formal hearing with the disciplinary board within 60 days of receiving the lawyer’s petition. Sup Ct Rule XIX, §24 (F).
Upon the disciplinary counsel’s request, the disciplinary board will refer the matter to a hearing committee. At the hearing, the attorney must prove by clear and convincing evidence the factors set forth above or any other reason why he or she should be readmitted or reinstated. The hearing committee will then file a report with the disciplinary board. The board will review this report or the disciplinary counsel’s stipulation to the attorney’s petition and submit a report of its own to the Supreme Court. If the Court denies reinstatement or readmission, it will set a period of time after which the attorney may submit another petition. If the Court grants the attorney’s petition for readmittance or reinstatement, it may impose conditions to insure that the public will be protected. Sup Ct Rule XIX, §24 (D), (G)-(I). These conditions are set forth in Sup Ct Rule XIX, §24(J).
In addition to filing the petition, the attorney must also publish in the state bar journal and newspapers in each judicial district where the lawyer maintained an office notice of the petition for reinstatement. This notice must include a request that members of the bar file notice of their opposition or concurrence with the disciplinary board within 30 days. Sup Ct Rule XIX, §24 (D).
If a lawyer admitted to practice in Louisiana is subject to discipline in another state, the lawyer must inform the Louisiana disciplinary counsel. The disciplinary counsel, whether receiving information from the disciplined attorney or otherwise, must then procure a certified copy of the disciplinary order and file it with the disciplinary board and the Supreme Court. Once the Court receives notice, it will issue to the disciplinary counsel and the respondent a copy of this order and an order directing them to inform the Court within 30 days why identical discipline in this state would be unwarranted. Upon the expiration of 30 days, the Louisiana Supreme Court will impose identical discipline unless the attorney or disciplinary counsel has proven otherwise, in which case the Court may impose any other order it deems appropriate. If the discipline in the other state is stayed, reciprocal discipline will be delayed until that stay expires. Sup Ct Rule XIX, § 21.
If the Louisiana Supreme Court has imposed suspension or disbarment solely based upon discipline in another jurisdiction, once the lawyer gives notice that he or she has been readmitted or reinstated in the other jurisdiction, the Court will determine whether the lawyer should be reinstated or readmitted in this jurisdiction. Sup Ct Rule XIX, § 24(K).
Alternatives to Discipline
Disciplinary counsel may refer matters involving lesser misconduct to alternative discipline programs administered by the Louisiana State Bar Association and approved by the Supreme Court. These programs may include the lawyer/client fee arbitration program, the lawyer assistance program, arbitration, mediation, law office management assistance, psychological counseling, continuing legal education, ethics school and other programs. Sup Ct Rule XIX, § 32.
In Louisiana, there is no mandatory disbarment for attorneys convicted of crimes involving moral turpitude. The Supreme Court will disbar an attorney only if warranted by the facts. If a lesser punishment is warranted, the Supreme Court may punish the offender in whatever manner it deems appropriate. In re Craven, 15 So2d 861 (La 1943).
If the Court decides to disbar an attorney, the process is similar to that described in Section 0.2:240. Under Sup Ct Rule XIX, § 19, upon learning that a lawyer has been convicted of a crime whether due to a guilty plea, a plea of nolo contendere, or a trial verdict, the disciplinary counsel must secure a certificate of the conviction from the applicable clerk of court. Once the certificate of conviction has been issued, the disciplinary counsel must determine whether the crime for which the attorney has been convicted is a “serious” one. A “serious” crime is a felony or any other crime which, as defined in Sup Ct Rule XIX, § 19, “reflects upon the attorney’s moral fitness to practice law.” If the crime is not serious, then the disciplinary counsel proceeds as if he or she has received a complaint, beginning an investigation and notifying the respondent as described in Section 0.2:240.
If the crime is serious, disciplinary counsel will prepare an order for interim suspension, submitting it and a certificate of the conviction to both the Supreme Court and the respondent. The respondent may, within 15 days of the mailing of such notice, file a pleading with the clerk of the Supreme Court to assert deficiencies which establish that the suspension was improper.
The Court may order a hearing before a hearing committee to determine whether or not conviction of such a crime warrants discipline and, if so, to what extent. In such a hearing, the respondent’s certificate of conviction is conclusive evidence of his or her guilt of the crime. The respondent may offer evidence of mitigating circumstances consistent with the elements of the crime for which he or she was convicted. The hearing committee must submit its findings to the Supreme Court.
Should the Court find that the interim suspension was improperly ordered, the matter will be referred back to the disciplinary agency to be processed as a non-serious crime. Conversely, if the Court finds that the lawyer has been convicted of a serious crime, the Court may suspend the respondent from the practice of law and order that disciplinary proceedings, as described in Section 0.2:240, be instituted. Proceedings will not begin until all appeals from the criminal conviction have been exhausted, unless the respondent waives this right.
If the respondent’s serious crime conviction is reversed, he or she will be reinstated immediately. Nevertheless, the reinstatement will not terminate any disciplinary proceedings pending against the attorney at that time. Sup Ct Rule XIX, § 19(D).
An attorney may also be disciplined if an order or judgment is issued indicating that the attorney has failed to comply with a child support order. Once such orders or judgments are forwarded to the Supreme Court, the attorney will receive notice that he or she is entitled to a contradictory hearing after which he or she may be declared ineligible to practice law and may be subject to further discipline if his or her non-compliance has been without just cause. Should the Court order that disciplinary proceedings be instituted, hearings will not begin until all appeals relating to the support order have been exhausted, unless the attorney requests otherwise. An attorney rendered ineligible to practice may seek reinstatement by filing an order of compliance with the disciplinary board and paying a fee. Sup Ct Rule XIX, §19A.
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0.3:300 Organization of This Library and the Model Rules
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0.4:400 Abbreviations, References and Terminology
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0.4:500 Additional Definitions in Louisiana
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