Police arrest hundreds of drivers every week for driving while intoxicated. Unfortunately, lawyers are occasionally among these arrestees. These lawyers often call me with lots of questions—usually on Monday mornings. Here’s my effort to answer some of these questions in advance.
Must I Self-Report My Own DWI Arrest?
The short answer is no. A lawyer has no legal or ethical obligation to blow the whistle on himself and self-report a disciplinary violation. Louisiana Rule 8.3(a) provides that “[a] lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a question as to the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the Office of Disciplinary Counsel.” Self-reporting is not required by Rule 8.3(a), which applies only to a violation of the Rules of Professional Conduct by “another” lawyer. Moreover, compelled self-reporting of lawyer misconduct could raise Fifth Amendment issues. Despite the plain language of Rule 8.3(a) and the potential constitutional issue, confusion on this self-reporting issue abounds. See, e.g., In re Murphy, No. 21-1098 (Sep. 27, 2021) (Crichton, J., dissenting) (faulting lawyer for failure to self-report DWI).
That being said, self-reporting is sometimes an advisable, prudent course of action. The Louisiana Attorney Disciplinary Board may consider a lawyer’s self-report to be a “mitigating” factor if disciplinary sanctions are ever imposed after litigation or by consent.
The best advice? Consult with counsel experienced in dealing with disciplinary matters before making a final decision to self-report.
Will ODC Find Out About My DWI Arrest If I Don’t Self-Report?
Probably. Once arrested for DWI, you have two cases to deal with. First, the Louisiana Office of Motor Vehicles may seek to suspend your driving privileges. Second, the local DA may seek to prosecute you for committing a crime. Frequently, either the OMV or the DA will report the arrest to the ODC. Sometimes a “friend” in the community will anonymously report the arrest to ODC. But not always. Some arrests simply fall through the cracks.
What Will Happen After ODC Learns About My DWI?
Typically, ODC will refer you to the Judges and Lawyers Assistance Program to have a “JLAP approved” substance abuse evaluation. During the evaluation, a psychologist will require you to participate in several assessments. These usually include completing a standardized questionnaire regarding your drug or alcohol use, your health history, your prior addiction treatment history, your mental health history, your current symptoms, and the effects that any substance use has had on your life. Notably, the results of this evaluation will not remain confidential. On the contrary, JLAP will promptly release the results to ODC.
Will the DWI Arrest Result in Discipline?
Maybe, maybe not . . . it just depends. Whether the ODC seeks discipline turns largely on the your past conduct and the results of the JLAP evaluation. If you cooperate, it is your first offense, and no other aggravating factors exist (e.g., serious bodily injury, property damage, prior discipline), the ODC may simply close your file with a warning. This is especially true if the results of the JLAP evaluation reflect that your are not suffering from an underlying substance use disorder. However, if the JLAP evaluation reveals an substance abuse disorder, ODC recommend that you contact JLAP for further assessments, for inpatient treatment, and, if necessary, a JLAP monitoring or recovery contract.
What Disciplinary Sanction Could be Imposed for DWI?
It depends. The disciplinary sanctions for an arrest or conviction for DWI range from “no sanction” to a lengthy suspension. As noted above, the ODC may dismiss the complaint with a simple warning if there are no aggravating factors and no evidence of an underlying substance use disorder. However, the Louisiana Supreme Court has noted that the baseline sanction for lawyers convicted of DWI is a suspension, which may be deferred, all or in part, based on the circumstances. In In re Baer, the Louisiana Supreme Court observed that the court
tend[ed] to impose an actual suspension in those instances in which multiple DWI offenses are at issue, as well as in cases in which the DWI stems from a substance abuse problem that appears to remain unresolved.
21 So. 3d 941, 944 (La. 2009).
Other aggravating factors such as prior discipline, serious bodily injury, or property damage can enhance the potential sanction to an actual suspension from practice. One common factor that converts a regular run of the mill DWI arrest into a significant disciplinary incident is the lawyer’s failure to cooperate with the ODC’s request to undergo an evaluation by a JLAP approved evaluator. Two recent lawyer discipline cases demonstrate the importance of complying with ODC’s request for a JLAP evaluation and embracing JLAP treatment recommendations.
In In re: Kathleen M. Wilson, No. 2020-B-01488 (La. 2021), the respondent knowingly drove while intoxicated. Additionally, a JLAP evaluator diagnosed the respondent with alcohol use disorder and recommend that she complete a long-term impatient treatment program. Rather than submit to long-term inpatient treatment, the respondent independently sought a psychological evaluation from a provider not approved through JLAP. The Louisiana Supreme Court reaffirmed its long history of deferring to JLAP’s recommendations:
While respondent disputes the conclusions of the JLAP evaluations, this court has long accepted the expertise of JLAP in guiding our decisions. Our purpose is not to punish lawyers purely for their substance abuse disorder, but to protect the public from actual and potential harm by ensuring those members of the profession with such problems obtain suitable treatment and are placed under appropriate monitoring in order to practice law with safety. Because issues of diagnosis and treatment are issues of medical science, our decisions must necessarily be based in large part on the evaluations conducted by trained professionals under the auspices of JLAP. These experts have concluded respondent has unresolved issues of alcohol abuse that must be addressed in order for her to practice law safely
The court suspended the respondent for one year and one day. Id.
Similarly, a Hearing Committee in In re: Danminh Quy Mui, No. 20-DB-001, Report of the Hearing Committee #49 (June 3, 2021) considered formal charges against a DWI respondent who failed to cooperate with the ODC. Following his arrest, ODC requested that the respondent contact JLAP and schedule an interview for an assessment and substance abuse evaluation. The respondent failed to contact JLAP or to otherwise address his possible impairments in any meaningful way. Considering the respondent’s unwillingness to undergo the JLAP recommended evaluation, the Hearing Committee recommended a one-year and one-day suspension. Id.
A lawyer who makes the ill-advised decision to drive after drinking faces a serious risk of disciplinary consequences. Given this risk, a lawyer arrested for DWI should promptly consult with counsel experienced in dealing with ODC and JLAP before compounding one bad decision with another.