It is professional misconduct for a lawyer to:

(a) Violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another;

(b) Commit a criminal act especially one that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects;

(c) Engage in conduct involving dishonesty, fraud, deceit or misrepresentation;

(d) Engage in conduct that is prejudicial to the administration of justice;

(e) State or imply an ability to influence improperly a judge, judicial officer, governmental agency or official or to achieve results by means that violate the Rules of Professional Conduct or other law;

(f) Knowingly assist a judge or judicial officer in conduct that is a violation of applicable Rules of Judicial Conduct or other law; or

(g) Threaten to present criminal or disciplinary charges solely to obtain an advantage in a civil matter.

Background

The Louisiana Supreme Court adopted this rule on January 21, 2004. It became effective on March 1, 2004, and has not been amended since. This rule is identical to ABA Model Rule of Professional Conduct 8.4 (2002) with two substantive differences.

First, Model Rule 8.4(b) brands a criminal act as “misconduct” only if the crime “reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects.” See Model Rules of Professional Conduct Rule 8.4(b). In contrast, Louisiana Rule 8.4(b) (2002) casts a wider net by branding as “misconduct” any criminal act by a lawyer–irrespective whether it casts doubt on the lawyer’s honesty, trustworthiness or fitness to practice. The rule has this effect as a result of the inclusion of the language “especially one that” between “criminal act” and “that reflects.”[*1. This language was retained from the 1987 version of this rule. However, it is unclear whether the Louisiana Supreme Court or the Task Force intended the result in 1987, given that the Task Force's commentary fails even to mention this significant difference in language. See Report and Recommendation of the Task Force to Evaluate the American Bar Association's Model Rules of Professional Conduct at 25 (Nov. 23, 1985). Anecdotally, however, some Task Force members recall this language being proposed to the court to broaden the scope of criminal conduct that could result in discipline.*]

Second, paragraph (g) is not found in the Model Rules. This paragraph prohibits Louisiana lawyers from threatening to present criminal or disciplinary charges “solely to obtain an advantage in a civil matter.” Although no similar provision exists in Model Rule 8.4, see ABA Comm. on Ethics and Professional Responsibility, Formal Op. 92-363 (1992), the ABA has issued a formal ethics opinion condemning the practice, see ABA Comm. on Ethics and Professional Responsibility, Formal Op. 94-383 (1994).

Comments to ABA Model Rule 8.4

[1] Lawyers are subject to discipline when they violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so or do so through the acts of another, as when they request or instruct an agent to do so on the lawyer’s behalf. Paragraph (a), however, does not prohibit a lawyer from advising a client concerning action the client is legally entitled to take.

[2] Many kinds of illegal conduct reflect adversely on fitness to practice law, such as offenses involving fraud and the offense of willful failure to file an income tax return. However, some kinds of offenses carry no such implication. Traditionally, the distinction was drawn in terms of offenses involving “moral turpitude.” That concept can be construed to include offenses concerning some matters of personal morality, such as adultery and comparable offenses, that have no specific connection to fitness for the practice of law. Although a lawyer is personally answerable to the entire criminal law, a lawyer should be professionally answerable only for offenses that indicate lack of those characteristics relevant to law practice. Offenses involving violence, dishonesty, breach of trust, or serious interference with the administration of justice are in that category. A pattern of repeated offenses, even ones of minor significance when considered separately, can indicate indifference to legal obligation.

[3] A lawyer who, in the course of representing a client, knowingly manifests by words or conduct, bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status, violates paragraph (d) when such actions are prejudicial to the administration of justice. Legitimate advocacy respecting the foregoing factors does not violate paragraph (d). A trial judge’s finding that peremptory challenges were exercised on a discriminatory basis does not alone establish a violation of this rule.

[4] A lawyer may refuse to comply with an obligation imposed by law upon a good faith belief that no valid obligation exists. The provisions of Rule 1.2(d) concerning a good faith challenge to the validity, scope, meaning or application of the law apply to challenges of legal regulation of the practice of law.

[5] Lawyers holding public office assume legal responsibilities going beyond those of other citizens. A lawyer’s abuse of public office can suggest an inability to fulfill the professional role of lawyers. The same is true of abuse of positions of private trust such as trustee, executor, administrator, guardian, agent and officer, director or manager of a corporation or other organization.

Annotations

Generally

This Rule broadly defines professional “misconduct.” The significance of conduct being so classified is perhaps obvious: conduct classified as “misconduct” can form the basis for professional discipline. Most fundamentally, a lawyer engages in “misconduct” if the lawyer violates the Louisiana Rules of Professional Conduct. La. Rules of Professional Conduct Rule 8.4(a) (2004); see also Restatement (Third) of the Law Governing Lawyers § 5(1) (2000). Moreover, a lawyer engages in misconduct if the lawyer “attempts” to violate the Louisiana Rules, but for some reason, does not complete the violation. La. Rules of Professional Conduct Rule 8.4(a) (2004). Finally, it is professional misconduct not only for a lawyer to personally violate the rules, but also to “assist or induce another to do so, or do so through the acts of another.” Id.; In re Brown, 813 So. 2d 325, 327 (La. 2002) (disbarring lawyer for, among other things, assisting another lawyer in the unauthorized practice of law); see also Restatement (Third) of the Law Governing Lawyers § 5(2) (2000).

It constitutes “misconduct” for a lawyer to violate “any other rule of this jurisdiction regarding professional conduct of lawyers.” See La. Sup. Ct. R. XIX § 9(a). Applying this principle, the Louisiana Supreme Court in In re Raspanti, 8 S0. 3d 526, 535 (La. 2009), held that a lawyer’s violation of the immunity provisions of Rule XIX (though filing a defamation suit against a complainant) subjected the lawyer to discipline. However, the court has held that a lawyer’s violation of the confidentiality provisions of Rule XIX § 16 does not subject a lawyer to discipline because a lawyer participating in the disciplinary process has a First Amendment right to reveal the substance of such proceedings. See In re Warner and Rando, 21 So.3d 218 (La. 2009).

Although lawyers are often mistaken on this point, the term “misconduct” clearly does not include conduct that may have the “appearance of impropriety.” Indeed, that term appears neither in the Louisiana Rules of Professional Conduct, nor in the ABA Model Rules of Professional Conduct. On the contrary, the ABA has repeatedly stated that a lawyer should not be sanctioned or disqualified under such an “undefined,” “question-begging” standard. See ABA Comm. on Ethics and Professional Responsibility, Formal Op. 342 (1975).

Criminal Acts

A lawyer engages in “misconduct” and is thus subject to discipline under this rule if he or she engages in any “criminal act.” La. Rules of Professional Conduct Rule 8.4(b) (2004). The Louisiana Supreme Court routinely has disbarred lawyers convicted of serious crimes. See, e.g., In re Meece, 6 So. 3d 751 (La. 2009) (imposing permanent disbarment for armed bank robbery); In re Norris, 939 So. 2d 1221 (La. 2006) (imposing permanent disbarment on lawyer who had been convicted of four counts of perjury); In re Hattier, 894 So. 2d 1123 (La. 2005) (imposing discipline for concealing assets in bankruptcy proceedings); In re Gros, 871 So. 2d 1091 (La. 2004) (ordering permanent disbarment in connection with mail fraud conviction); In re O’Keefe, 877 So. 2d 79 (La. 2004) (ordering permanent disbarment in connection with federal fraud and conspiracy convictions); In re Lynch, 840 So. 2d 508 (La. 2003) (imposing discipline for child pornography and obstruction of justice convictions); In re Kirchberg, 856 So. 2d 1162 (La. 2003) (ordering permanent disbarment for federal fraud conviction); In re Nevitte, 827 So. 2d 1135 (La. 2002) (imposing discipline for conspiracy to commit fraud); In re Sentenn, 730 So. 2d 868 (La. 1999) (imposing discipline for ederal fraud and conspiracy convictions); In re Mmahat, 736 So. 2d 1285 (La. 1999) (imposing discipline for federal fraud convictions); In re Pardue, 731 So. 2d 224 (La. 1999) (imposing discipline for federal tax crimes); In re Naccari, 705 So. 2d 734 (La. 1997); In re Mitchell, 679 So. 2d 385 (La. 1996) (imposing discipline for drug-distribution convictions). Moreover, a lawyer is subject to discipline under this rule even if the criminal act does not result in conviction. See, e.g., In re Estiverne, 741 So. 2d 649, 652-54 (La. 1999) (suspending lawyer for assault with a handgun that did not result in conviction). Finally, a lawyer may be sanctioned for criminal conduct that is wholly unrelated to the practice of law. See In re Brown, 674 So. 2d 243, 246 (La. 1996) (ordering disbarment for negligent homicide conviction) (citing La. State Bar Ass’n v. Frank, 472 So. 2d 1 (La. 1985)); La. State Bar Ass’n v. Bensabat, 378 So. 2d 380, 382 (La. 1979) (ordering disbarment for cocaine distribution conviction); In re Cook, 2010 WL 1509493 (La. 4/16/10) (suspending attorney for failing to pay income taxes over a period of two years); see also ABA Comm. on Ethics and Professional Responsibility, Formal Op. 336 (1974).

Dishonesty, Fraud, Deceit or Misrepresentation

Professional “misconduct” includes conduct “involving dishonesty, fraud, deceit or misrepresentation,” even if the conduct is not criminal in nature. La. Rules of Professional Conduct Rule 8.4(c) (2004). Conversion of client funds is a classic act of “dishonesty” for which the Louisiana Supreme Court has disciplined lawyers under this paragraph. See, e.g., In re Boone, 766 So. 2d 533 (La. 2000); In re Ferrand, 731 So. 2d 874 (La. 1999); In re Alleman, 982 So.2d 814 (La. 2008). For example, a lawyer engages in misconduct by improperly backdating stock certificates in the course of representing a client. See In re Sealed Appellant, 194 F.3d 666, 672 (5th Cir. 1999). A lawyer also engages in misconduct by misappropriating funds or property belonging to the lawyer’s law firm. See, e.g., In re Sharp, 16 So.3d 343 (La. 2009). Note that a violation of Rule 8.4(c) often entails a violation of one or more additional rules of conduct, for example, Rules 3.3 and 4.1. See, e.g., In re McKee, 976 So. 2d 152 (La. 2008); see also In re Calahan, 930 So. 2d 916 (La. 2006) (disbarring attorney for violations of rules 3.3, 4.1 and 8.4(c), among other rules violations).

Conduct Prejudicial to the Administration of Justice

Professional “misconduct” includes conduct that is “prejudicial to the administration of justice.” La. Rules of Professional Conduct Rule 8.4(d) (2004). A lawyer who, for example, improperly acts as a “witness” to the signature of an absent person engages in such prejudicial misconduct. See In re Wahlder, 728 So. 2d 837, 839 (La. 1999); see also In re Warner, 851 So. 2d 1029 (La. 2003) (suspending lawyer for directing client to sign her deceased father’s name on release and settlement check). A lawyer who pointed a gun at another lawyer during a deposition engaged in conduct prejudicial to the administration of justice. See In re Estiverne, 741 So. 2d 649 (La. 1999) (suspending lawyer for a year and a day). An appointed IDB lawyer who failed to disclose to the court that he had accepted a private fee for representing a purportedly indigent defendant committed prejudicial conduct. See In re Barstow, 817 So. 2d 1123, 1129 (La. 2002). Further, a lawyer handling a personal injury case who approached the presiding judge ex parte to inquire about making a $5,000 campaign contribution engaged in conduct prejudicial to the administration of justice. See In re Bolton, 820 So. 2d 548 (La. 2002).  Finally, a criminal defense counsel who failed to provide information necessary to complete a client’s pre-sentence report (which could have resulted in the client’s receiving a significantly longer prison sentence) violated Rule 8.4(d) (2004).  In re Martin, 982 So. 2d 765, 769 (La. 2008).

The Louisiana Supreme Court has noted that while Rule 8.4(d) typically applies to “litigation-related misconduct,” it is broader in scope. See In re Downing, 930 So. 2d 897, 904 n.5 (La. 2006). The rule also “reaches conduct that is uncivil, undignified, or unprofessional, regardless of whether it is directly connected to a legal proceeding.” Id.

Threatening to Press Criminal Charges for Tactical Advantage

A lawyer engages in professional misconduct if the lawyer threatens to press criminal or disciplinary charges “solely to obtain an advantage in a civil matter.” La. Rules of Professional Conduct Rule 8.4(g) (2004). In addition to being professional misconduct, such threats may constitute extortion under the Louisiana Criminal Code depending, of course, on the context. See La. Rev. Stat. Ann. § 14:66(2) (stating that a “threat to accuse” a person “of any crime” can be “sufficient to constitute extortion”). On the propriety of threatening to file a disciplinary complaint against another lawyer in order to gain an advantage in a civil matter, see ABA Comm. on Ethics and Professional Responsibility, Formal Op. 94-383 (1994).

Disciplinary Sanctions

The sanctions appropriate for a violation of paragraph (a) of this rule are those applicable to the underlying rule that the lawyer has violated, attempted to violate or assisted another in violating. See ABA Stds. for Imposing Lawyer Sanctions appx. 1 (1986).

The sanctions appropriate for a violation of paragraph (b) are as follows (absent aggravating or mitigating circumstances): disbarment, when the lawyer either (a) engages in serious criminal conduct, a necessary element of which includes intentional interference with the administration of justice, false swearing, misrepresentation, fraud, extortion, misappropriation, or theft; or the sale, distribution or importation of controlled substances; or the intentional killing of another; or an attempt or conspiracy or solicitation of another to commit any of these offenses; or (b) engages in intentional conduct involving dishonesty, fraud, deceit, or misrepresentation that seriously adversely reflects on the lawyer’s fitness to practice; suspension, when the lawyer knowingly engages in other types of criminal conduct that seriously adversely reflects on the lawyer’s fitness to practice; reprimand, when the lawyer knowingly engages in any other conduct that involves dishonesty, fraud, deceit, or misrepresentation and that adversely reflects on the lawyer’s fitness to practice law; and, admonition, when the lawyer engages in any other conduct that reflects adversely on his or her fitness to practice law. See id. stds. 5.1-5.14.

The sanctions appropriate for a violation of paragraph (c) turn on the person to whom the lawyer directs the fraud, deceit or misrepresentation. If the lawyer directs such conduct toward anyone other than a client, the appropriate sanctions are the same as those which are appropriate for a violation of paragraph (b) of this rule. See id. See also In re McKee, 976 So. 2d at 154 (permanently disbarring attorney for, among other things, entering into a contract to purchase a home, writing a personal check at the closing instead of using certified funds; and to prove sufficiency of funds, produces documentation purporting to show she had obtained a $529,000 default judgment for a client when, in fact, that judgment had been set aside). If the lawyer directs such conduct toward a client, however, the appropriate sanctions are as follows (absent aggravating or mitigating circumstances): disbarment, when the lawyer knowingly deceives a client with the intent to benefit the lawyer or another, and causes serious injury or potentially serious injury to a client; suspension, when the lawyer knowingly deceives a client, and causes injury or potential injury to the client; reprimand, when the lawyer negligently fails to provide a client with accurate or complete information, and causes injury or potential injury to the client; and, admonition, when a lawyer engages in an isolated instance of negligence in failing to provide a client with accurate or complete information, and causes little or no actual or potential injury to a client. See id. stds. 4.61-4.64.

The sanctions appropriate for a violation of paragraph (d) depend on the nature of the lawyer’s violation. If the violation involves false statements, fraud or misrepresentation, standard 6.1 governs. See supra Annotations to Rule 4.1. If the violation involves the abuse of the legal process, standard 6.2 applies. See supra Annotations to Rule 6.2. If the violation involves improper communications with individuals in the legal system, standard 6.3 applies. See supra Annotations to Rule 3.5.

The sanctions generally appropriate for a violation of paragraphs (e) or (f) are as follows (absent aggravating or mitigating circumstances): disbarment, when the lawyer knowingly violates a court rule with the intent to obtain a benefit for the lawyer or another, and causes serious injury or potentially serious injury to a party, or causes serious or potentially serious interference with a legal proceeding; suspension, when the lawyer knows that he is violating a court rule, and there is injury or potential injury to a client or a party, or interference or potential interference with a legal proceeding; reprimand, when the lawyer negligently fails to comply with a court rule, and causes injury or potential injury to a client or other party, or causes interference or potential interference with a court proceeding; admonition, when the lawyer engages in an isolated instance of negligence in complying with a court rule, and causes little or no actual or potential injury to a party, or causes little or no actual or potential interference with a legal proceeding. See ABA Stds. for Imposing Lawyer Sanctions std. 6.2 (1986) (Abuse of Legal Process); id. stds. 6.21-6.24.

The sanctions generally appropriate for a violation of paragraph (g) are as follows (absent aggravating or mitigating circumstances): disbarment, when the lawyer knowingly violates a court rule with the intent to obtain a benefit for the lawyer or another, and causes serious injury or potentially serious injury to a party, or causes serious or potentially serious interference with a legal proceeding; suspension, when the lawyer knows that he is violating a court rule, and there is injury or potential injury to a client or a party, or interference or potential interference with a legal proceeding; reprimand, when the lawyer negligently fails to comply with a court rule, and causes injury or potential injury to a client or other party, or causes interference or potential interference with a court proceeding; admonition, when the lawyer engages in an isolated instance of negligence in complying with a court rule, and causes little or no actual or potential injury to a party, or causes little or no actual or potential interference with a legal proceeding. See id. std. 6.2 (Abuse of Legal Process); id. stds. 6.21-6.24.

Notes

1. This language was retained from the 1987 version of this rule. However, it is unclear whether the Louisiana Supreme Court or the Task Force intended the result in 1987, given that the Task Force’s commentary fails even to mention this significant difference in language. See Report and Recommendation of the Task Force to Evaluate the American Bar Association’s Model Rules of Professional Conduct at 25 (Nov. 23, 1985).

Notes

^*This page was updated on August 7, 2010.

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