Section 8 - Ethics and Professionalism
Most lawyers are ethical. Most lawyers strive to be professional. However, lawyers are human. They make mistakes. They do occasionally fall short of both professional and ethical standards. Very generally, ethics is what lawyers absolutely are required to do. Professionalism is what wise lawyers choose to do. A lawyer can be strictly ethical and still fall short of the ideals of professionalism. The good lawyer always strives to be both. Adherence to the Rules of Professional Conduct and the Code of Professionalism will allow a lawyer to practice safely, successfully and honorably. However, there is always the possibility that a complaint can be filed against an attorney.
Overview of the Disciplinary Process: From Complaint Through Louisiana Supreme Court Opinion
Most complaints do not result in a sanction. Many complaints result in the imposition of admonitions or reprimands which are imposed by the Louisiana Attorney Disciplinary Board rather than the Court. This overview, however, pertains to those complaints which travel completely through the system and result in a suspension or disbarment, which can only be imposed by the Court.
The Disciplinary System
The Louisiana Supreme Court has the exclusive right to regulate lawyers who practice in this state under the authority of
Article V, Section 5(A) and (B), of the Louisiana Constitution of 1974 and the inherent power of the Court. The rules for lawyer discipline are set forth in
Louisiana Supreme Court Rule XIX (effective April 1, 1990), wherein the Court created the statewide agency called the Louisiana Attorney Disciplinary Board. That agency consists of the Board, Hearing Committees, Disciplinary Counsel and staff. Rule XIX, § 2A. While the agency is a unitary one, the prosecutorial and adjudicative functions are separated within the agency:
• The investigative and prosecutorial functions are directed by a lawyer employed by the Board and performed by employees of the agency; the Office of Disciplinary Counsel; and
• The adjudicative functions are conducted by the Disciplinary Board, consisting of ten practicing lawyers and four public members appointed by the Louisiana Supreme Court. Rule XIX, § 2A, B.
Further, the Disciplinary Board is divided into an adjudicative committee of nine members and an administrative committee of five members. The adjudicative committee consists of three panels with two lawyer members and a public member on each board panel. Rule XIX. § 2G. While the Disciplinary Board serves an appellate function in the system, hearing committees serve as the triers of fact.
There are over fifty hearing committees around the state. Each hearing committee consists of two lawyer members and one public member. One of the lawyer members is appointed as chair of the committee. Hearing committee members serve for three years and may not serve more than two consecutive terms. Rule XIX, § 3A-B. The hearing committees have assigned powers and duties. Primarily, the committees conduct hearings into formal charges of misconduct, petitions for reinstatement or readmission, and petitions for transfer to and from disability inactive status. Following the hearings, the committees submit to the Board written findings of fact, conclusions of law and recommendations for proposed discipline. Hearing committees also review dismissals of complaints by the Office of Disciplinary Counsel upon a request for review by the complainant. The chair of the hearing committee has additional duties, such as conducting pre-hearing conferences, ruling on pre-hearing motions and reviewing admonitions proposed by disciplinary counsel and accepted by a respondent. Rule XIX. § 3E(l)-(4).
The Disciplinary Process
A complaint is any information which comes to the attention of the Office of Disciplinary Counsel concerning a lawyer subject to the jurisdiction of the agency (i.e., lawyers admitted to practice in the state, lawyers specially admitted by a court for a particular proceeding, lawyers not admitted but who render or offer to render any legal services in the state, and former judges who have resumed the status of lawyer). Every complaint is screened by the Office of Disciplinary Counsel to determine whether the information relates to lawyer misconduct or incapacity. If the information alleges facts which, if true, would constitute misconduct or incapacity, the complaint is investigated unless, in the discretion of Disciplinary Counsel, the matter qualifies for referral to the Louisiana State Bar Association’s Practice Assistance and Improvement Program (Attorney-Client Assistance Program). Rule XIX, § H(a). Otherwise, the complaint is dismissed.
If an investigation is conducted, deputy disciplinary counsel forwards the complaint to the respondent, informs him or her that the Office of Disciplinary Counsel has received a complaint, and requests a response. Deputy Disciplinary Counsel then conducts an investigation and evaluates the matter. After completing the investigation, Deputy Disciplinary Counsel may:
• suggest that respondent agree to an admonition - a private, confidential sanction issued by the Board (although complainant is informed that respondent has been admonished);
• request approval by a Hearing Committee to file formal charges (this approval essentially constitutes a determination of probable cause by the committee);
• petition for respondent’s transfer to disability inactive status which, if ordered by the Court, would result in a stay of the proceedings until the disability is resolved;
• close the case (complainants have 30 days to appeal closures); or
• in some instances of minor misconduct, the subject attorney may be referred into the Louisiana State Bar Association’s Diversion Program, an educational monitoring program coordinated by the LSBA’s Practice Assistance Counsel. The primary element of the diversion program is an Ethics School.
Assuming that formal charges are approved, disciplinary counsel will serve or attempt to serve the charges on respondent at his primary registration statement address. Respondent has 20 days after service in which to respond (unless a continuance is requested and granted) with his answer to the formal charges. If respondent answers, a hearing on the merits is set. If there is no answer within the prescribed period, the factual allegations contained within the formal charges are “deemed admitted” and deemed proven by clear and convincing evidence. The only issue at that juncture is for the committee to determine the appropriate sanction based on the charges as “deemed admitted.”
The hearing committee order deeming the charges admitted shall be served on respondent. He or she then has 20 days from the mailing of the order to request that the “deemed admitted” order be recalled upon a showing of good cause. Additionally, even when the formal charges are deemed admitted and the order is not recalled, respondent may submit mitigating evidence and/or request a hearing in mitigation.
Whether there is a hearing on the merits or merely a determination of sanction based on charges “deemed admitted,” the Hearing Committee will render an opinion recommending a certain sanction. The Hearing Committee opinion is served on the respondent and Disciplinary Counsel. Either may object to the recommended sanction, findings of fact and/or conclusions of law. The hearing committee report is then reviewed by one of three panels of the adjudicative board and oral argument is conducted before the board panel. An opinion from the entire nine-member adjudicative committee of the Board is rendered recommending certain findings and any sanction(s) to the Louisiana Supreme Court. The Board opinion is filed with the Court and served on both parties. Again, either side may object and, if the Court receives objections, the case usually will be docketed for oral argument.
In any event, the Court renders the final decision imposing the sanction, usually in the form of a per curiam opinion. Sanctions from the Court may include a public reprimand, suspension or disbarment. Although the Board may order a reprimand without the case going up to the Court, if the Board has recommended a suspension or disbarment which requires filing the recommendation with the Court, the Court can always lessen the sanction to a reprimand. Respondents and the Office of Disciplinary Counsel also can object to the Board’s imposition of a reprimand and seek review by the Louisiana Supreme Court. The Court also could order the entire matter be dismissed, finding that no sanction is appropriate. Probation may follow a suspension or reprimand, or may be imposed in lieu of discipline in rare circumstances. After the Court has rendered its opinion, either side may file a motion for rehearing, but these are rarely granted.
What to do when a complaint arrives.
The Louisiana State Bar Association’s Practice Assistance and Improvement Committee has prepared a video
entitled “
What to Expect if you Receive a Disciplinary Complaint”. It can be viewed at
https://www.lsba.org/Members/PracticeAssistanceProgram.aspx. See also “Demystifing the Office of Disciplinary Counsel” at
../../../documents/Committees/DemystifingDisciplinaryProcess.pdf
Here are some helpful hints when receiving a complaint:
Don’t panic. More than 85 percent of complaints are dismissed. Review the complaint calmly and completely.
Don’t ignore the complaint. The worst thing an attorney can do is to stick his or her head in the sand and ignore a complaint. If Disciplinary Counsel doesn’t receive a substantive response to its inquiry within 15 days, it will often issue a subpoena for the attorney’s appearance and take his or her sworn statement. A failure to initially reply may be treated as independent misconduct in violation of
Rule 8.1 of the Rules of Professional Conduct (see page ) and can result in sanctions even if the respondent’s initial complaint has been dismissed on the merits.
Do not attack the messenger. Many attorneys are furious when they first receive what they believe may be a spurious complaint. However, disciplinary counsel is obligated to investigate all complaints which allege misconduct. Disciplinary counsel does not know there is nothing to the complaint until the attorney provides counsel with that information. Generally, the Office of Disciplinary Counsel wants to close files as soon as possible.
Do you need help? Upon receiving the complaint, make a reasoned determination whether you should seek counsel to represent you in the investigation. Most complaints are dismissed with or without the respondent obtaining counsel. At the very least, you should consult with another attorney whose opinion you respect for an independent review of the complaint.
Cooperate with disciplinary counsel as much as possible. As stated earlier, failure to cooperate can be considered as independent misconduct. It also can be used as aggravating evidence on the issue of sanction. Answer queries and forward any documentation requested as soon as possible. In your initial response, submit any documentation that can help resolve your complaint.
Keep the lines of communication open. Most complaints are by former or current clients. If the complaint is one by the client, it usually involves issues of communication and diligence. Unless your client now has new counsel, there may be no reason why you cannot still be diligently representing the client. In fact, you are required to continue with the representation unless and until the representation is terminated - a compalint does not terminate representation. If you keep the complainant reasonably informed and complete his matter during the pendency of the investigation, the Disciplinary Counsel may dismiss the matter based on the client’s satisfaction. Also, consider enrolling in the Louisiana State Bar Association Legal Fee Dispute Resolution Program if the matter appears to be a fee dispute.
Be patient. Sometimes investigations take longer than expected. Further, even if the matter is dismissed, the complainant can appeal the dismissal. Remain cooperative and reasonable throughout the process even when you do not feel like doing so.
Finally, do not retaliate against the client or complainant. Respondents are forbidden under Louisiana Supreme Court Rule XIX from suing a complainant for the filing of a complaint against them, whether the complaint has merit or not.
What to do when formal charges have been filed.
Nothing is more stressful to an attorney than when the disciplinary system chooses to take action against them. Here are some tips that may assist in that situation:
1. It has been said that the lawyer who represents himself has a fool for his client. Take that advice to heart. Yes, representing yourself is cheaper in the short run. But losing your license is a high price to pay in the end. It is virtually impossible for a lawyer to represent himself or herself properly. There are many top-notch lawyers who represent other attorneys in the disciplinary system.
2. Notify your malpractice carrier promptly of the complaint. Your policy may cover all or part of your legal expenses.
3. Answer the charges within the prescribed time limit of 20 days. If you need additional time, request an extension of time from the committee chair. The disciplinary counsel and committee chair will rarely oppose reasonable requests for additional time. If you fail to answer, the charges can be deemed admitted against you.
4. Cooperate and participate in discovery. Under Louisiana Supreme Court Rule XIX, there are at least 60 days in which to utilize discovery before the matter gets to trial. Few respondents utilize discovery and, as a result, they do not know what evidence disciplinary counsel has against them.
5. Comply with the provisions of Louisiana Supreme Court Rule XIX concerning submissions and time limitations. Hearing committee chairs are very similar to judges. They don’t appreciate or respect late answers, dilatory and incomplete discovery, and missing pre-hearing memoranda. Under Rule XIX, both parties are obligated to file pre- hearing memoranda within 10 days of the hearing. Disciplinary counsel always submits it. Respondents often do not. However, the pre-hearing memorandum is one of the first places where respondents can get their side of the story before the hearing committee.
6. Utilize evidence of mitigation as much as possible. Mitigating factors can be:
• Absence of a prior disciplinary record.
• Absence of dishonest or selfish motive.
• Personal or emotional problems.
• Timely good faith effort at restitution or rectifying consequences of misconduct.
• Cooperation with disciplinary proceedings.
• Inexperience in the practice of law.
• Character or reputation.
• Physical or mental disability.
• Delay in disciplinary proceedings.
• Interim rehabilitation.
• Imposition of other penalties or sanctions.
• Remorse.
• Remoteness of prior offenses.
7. Soften aggravating factors as much as possible. Aggravating factors can be:
• Prior disciplinary record.
• Dishonest or selfish motive.
• Patterns of misconduct.
• Multiple offenses.
• Bad faith obstruction of disciplinary proceedings,
• Submission of false evidence during the disciplinary process.
• No remorse.
• Vulnerability of victim.
• Substantial experience in the practice of law.
• No restitution.
8. Consider consent discipline. Consents can often be worked out with disciplinary counsel provided the respondent will admit to all or part of the misconduct. If the evidence is clearly against you, consent may be a way to get a slightly better sanction.
9. Show up. It is amazing how many respondents:
• Fail to file an initial response.
• Fail to file an answer.
• Fail to show up for the hearing.
Hearing committees, the Board and the Court take very dim views of the attorney who clearly has abandoned his or her practice. The lawyer who does not care enough about his or her license to participate in the process will not keep that license for long - so always participate fully in the proceeding.