The Louisiana Supreme Court has distributed for public comment three proposed revisions to Rule XXIII governing proceedings before the Judiciary Commission. These revisions were recommended to the court by the Judiciary Commission (“JC”). See Judiciary Commission of Louisiana, Proposed Rule Revisions to Supreme Court Rule XXIII (July 2018).
Verified Complaints
First, the JC recommends a change to Rule XXIII, Section 3, that would require the filing of “verified” complaints to initiate an investigation. More particularly, any future complainant would be required to sign the following declaration: “By submitting/signing this complaint, I declare under penalty of law that the information contained within this complaint is accurate and true to the best of my knowledge.”
This is a good proposal because it requires complainants to be accountable for their complaints. Note that the JC will still accept anonymous complaints. But, an anonymous complaint “may not be the subject of a preliminary inquiry unless it states facts, not mere conclusions, that can be independently verified and the Chair authorizes a preliminary inquiry to be made.” See LASC Rule XXII, § 3(a)(2).
Confidentiality
Second, the JC recommends a change to Rule XXIII, Section 23 to further clarify the obligation of “confidentiality” as to proceedings before the commission. The proposal is as follows:
[O]nce the Commission closes a file or files a notice of hearing, nothing in this rule shall prevent a complainant, respondent, or witness who has given testimony pursuant to Commission proceedings from disclosing or discussing the proceedings. However, from the time a complaint is filed until the Commission closes a file or files a notice of hearing, complainants, respondents, and witnesses may not disclose or discuss the fact that a complaint was filed, the fact that testimony was given pursuant to Commission proceedings, or any information learned as a result of participating in such proceedings. However, all documents and evidence remain confidential if the Commission does not file a matter with the Supreme Court.
Id. at 2.
This proposed revision —and the existing rule—are problematic under the First Amendment. The Louisiana Supreme Court has correctly held that a lawyer’s violation of the confidentiality provisions of the comparable lawyer disciplinary rule (LASC Rule XIX, § 16) does not subject the 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).1 A complainant, respondent or witness participating at any stage of a judicial discipline proceeding should have the same constitutional right to disclose, to discuss, and to criticize what his or her government is doing.
Incapacity Proceedings
Finally, the JC recommends a new provision addressing judges with “mental or physical disability or impairment.” Among other things, the new provision would establish procedures for (1) initiating incapacity proceedings, (2) conducting medical, mental health and other expert evaluations of a judge, and (3) instituting an involuntary retirement proceeding. These provisions are well-written and long overdue.
- More particularly, the court found that “the confidentiality requirement imposed upon participants in attorney disciplinary proceedings under a joint reading of La. S.Ct. Rule XIX, § 16(A) and (I) violates the First Amendment of the United States Constitution. The confidentiality rule was promulgated by this Court, a state entity, and directly abridges speech, thus the protections of the First Amendment apply to the rule. The confidentiality rule is a content-based regulation, and thus its substantial restriction of speech may only be deemed constitutional if the rule satisfies the requirements of the strict scrutiny analysis. Accordingly, we have reviewed the requirements of strict scrutiny in-depth and have carefully applied these standards to the rule. We conclude that the confidentiality rule does not satisfy the requirements of strict scrutiny. As we interpret the Supreme Court’s holdings, the reputational interests of attorneys, while important, do not qualify as compelling under strict scrutiny. Furthermore, even if we were to assume arguendo that the remaining three interests could qualify as compelling, the confidentiality rule is not narrowly tailored to serve these interests. Accordingly, the confidentiality requirement imposed upon participants in attorney disciplinary proceedings under a joint reading of La. S.Ct. Rule XIX, § 16(A) and (I) must fall.” Id. at 262. ↵
