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.
- Comments to ABA Model Rule 8.4
- Criminal Acts
- Dishonesty, Fraud, Deceit or Misrepresentation
- Conduct Prejudicial to the Administration of Justice
- Agreement to Refrain Reporting Lawyer to ODC
- Uncivil and Undignified Conduct
- Failure to Pay Litigation-Related Expenses as “Conduct Prejudicial to the Administration of Justice”
- Threatening to Press Criminal Charges for Tactical Advantage
- Discrimination and Harassment
- Disciplinary Sanctions
The Louisiana Supreme Court adopted this rule on January 20, 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 (2016) with three 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 ABA Model Rules of Prof’l Conduct r. 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 of 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
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 Prof’l Responsibility, Formal Op. 92-363 (1992)), the ABA has issued a formal ethics opinion condemning the practice. See ABA Comm. on Ethics and Prof’l Responsibility, Formal Op. 94-383 (1994).
Third, on August 8, 2016, the ABA House of Delegates amended Model Rule 8.4 to include a broad anti-discrimination and anti-harassment provision. The amendment, which was sponsored by several ABA groups,2 added this new paragraph (g) to the black-letter of Rule 8.4:
It is professional misconduct for a lawyer to: . . . (g) engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law. This paragraph does not limit the ability of a lawyer to accept, decline, or withdraw from a representation in accordance with Rule 1.16. This paragraph does not preclude legitimate advice or advocacy consistent with these rules.
See ABA Revised Resolution 109 (adopted Aug. 8, 2016). Furthermore, the comment to the model rule broadly defines “harassment” to include any “derogatory or demeaning verbal conduct” by a lawyer relating to a person’s “race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status.” Even words that are not “harmful” meet the definition of “harassment” if they are “derogatory or demeaning” and relate to a designated category of person. Moreover, the rule subjects to discipline not only a lawyer who slings a “derogatory or demeaning comment” directly at another person, but also a lawyer who makes an abstract comment about general types or categories of people. Indeed, in revising comment 4, the ABA expressly deleted language that would have limited the definition of “harassment” to include only derogatory or demeaning conduct directed “towards a person who is, or is perceived to be, a member of one of the groups.” For more on this model rule, see this post: ABA Adopts Broad Anti-Harassment Rule. Will Louisiana Follow? (Aug. 16, 2016).
Comments to ABA Model Rule 8.4
 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.
 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.
 Discrimination and harassment by lawyers in violation of paragraph (g) undermines confidence in the legal profession and the legal system. Such discrimination includes harmful verbal or physical conduct that manifests bias or prejudice towards others. Harassment includes sexual harassment and derogatory or demeaning verbal or physical conduct. Sexual harassment includes unwelcome sexual advances, requests for sexual favors, and other unwelcome verbal or physical conduct of a sexual nature. The substantive law of antidiscrimination and anti-harassment statutes and case law may guide application of paragraph (g).
 Conduct related to the practice of law includes representing clients; interacting with witnesses, coworkers, court personnel, lawyers and others while engaged in the practice of law; operating or managing a law firm or law practice; and participating in bar association, business or social activities in connection with the practice of law. Lawyers may engage in conduct undertaken to promote diversity and inclusion without violating this rule by, for example, implementing initiatives aimed at recruiting, hiring, retaining and advancing diverse employees or sponsoring diverse law student organizations.
 A trial judge’s finding that peremptory challenges were exercised on a discriminatory basis does not alone establish a violation of paragraph (g). A lawyer does not violate paragraph (g) by limiting the scope or subject matter of the lawyer’s practice or by limiting the lawyer’s practice to members of underserved populations in accordance with these Rules and other law. A lawyer may charge and collect reasonable fees and expenses for a representation. Rule 1.5(a). Lawyers also should be mindful of their professional obligations under Rule 6.1 to provide legal services to those who are unable to pay, and their obligation under Rule 6.2 not to avoid appointments from a tribunal except for good cause. See Rule 6.2(a), (b) and (c). A lawyer’s representation of a client does not constitute an endorsement by the lawyer of the client’s views or activities. See Rule 1.2(b).
 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.
 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.
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 Prof’l Conduct r. 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 does not complete the violation. La. Rules of Prof’l Conduct r. 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 Guirard, 11 So. 3d 1017, 1026 (La. 2009) (finding 8.4(b) violation for lawyers assisting their case managers and investigators in the unauthorized practice of law); 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 So. 3d 526, 535 (La. 2009), held that a lawyer’s violation of the immunity provisions of Rule XIX (through 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 Prof’l Responsibility, Formal Op. 342 (1975).
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 Prof’l Conduct r. 8.4(b) (2004). The Louisiana Supreme Court routinely has disbarred lawyers convicted of serious crimes. See, e.g., In re Fahrenholtz, 215 So. 3d 204 (La. 2017) (disbarring lawyer for conviction of illegal possession of stolen things); In re Broussard, 219 So. 3d 290 (La. 2017) (disbarring lawyer for conviction of making false claims to IRS); In re Shaw, 141 So. 3d 795 (La. 2014) (permanently disbarring lawyer for conviction of theft by fraud); In re Richard, 50 So. 3d 1284, 1290 (La. 2010) (disbarring lawyer for conviction of criminal mischief relating to a violent altercation in addition to other violations); 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 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 federal 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); In re James D. Mecca, No. 15-DB-001 (LADB HC No. 6, Oct. 19, 2015) (recommending suspension for accepting marijuana as fee for legal services). 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 Williams, 85 So. 3d 583, 591-92 (La. 2012) (disbarring lawyer for homicide despite not being convicted of any crime related to the homicide because the ODC met its burden of proving that lawyer did not act in self-defense); 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 James, 108 So. 3d 747 (La. 2013) (suspending lawyer for 2 DWI convictions); In re Blanche, 90 So. 3d 1034, 1039 (La. 2012) (suspending lawyer for three alcohol and drug related criminal offenses); In re Cook, 33 So. 3d 155 160-61 (La. 2010) (suspending lawyer for failing to pay income taxes over a period of two years); 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 George William Jarman, No. 2015-B-2105 (La. Nov. 18, 2015) (lawyer suspended indefinitely after conviction on federal child-pornography related conspiracy charges); In re Martin, 252 So. 3d 867 (La. 2018) (disbarring lawyer for possessing drugs and drug paraphernalia, among other misconduct); In re Robinson, 232 So. 3d 1232 (La. 2018) (sanctioning lawyer for three felony theft arrests, among other misconduct); In re Pastorek, 239 So. 3d 798 (La. 2018) (permanently disbarring lawyer for conviction of conspiracy to dispense Schedule IV controlled substances while a pain-clinic physician).
Dishonesty, Fraud, Deceit or Misrepresentation
Professional “misconduct” includes conduct “involving dishonesty, fraud, deceit or misrepresentation,” even if the conduct is not criminal in nature. See La. Rules of Prof’l Conduct r. 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 Miller, 139 So. 3d 993 (La. 2014); In re Bailey, 115 So. 3d 458, 465 (La. 2013); In re Alleman, 982 So.2d 814 (La. 2008); In re Boone, 766 So. 2d 533 (La. 2000); In re Ferrand, 731 So. 2d 874 (La. 1999). 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 or by engaging in improper billing practices. See e.g., In re Wallace, 232 So. 3d 1216 (La. 2017) (one-year suspension for falsely inflating timesheets); In re Abdalla, 236 So. 3d 1223 (La. 2017) (disbarment for converting $39,085.86 from law firm); 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 Hackett, 42 So. 3d 972, 978 (La. 2010); In re McKee, 976 So. 2d 152 (La. 2008); see also In re Calahan, 930 So. 2d 916 (La. 2006) (disbarring lawyer 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 Prof’l Conduct r. 8.4(d) (2004). In one case, the court considered such conduct to have occurred when an assistant district attorney threatened criminal prosecution to a person to collect a personal debt. See In re Ruffin, 54 So. 3d 645, 646-648 (La. 2011). Also, 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). A criminal defense lawyer 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). A lawyer who filed five nearly identical lawsuits in the same court on the same date to get a judge of his choosing engaged in conduct prejudicial to the administration of justice. See In re Eddington, 166 So. 3d 239 (La. 2015). A lawyer who filed frivolous judicial complaints and lawsuits against a judge engaged in conduct prejudicial to the administration of justice. See In re Nugent, 231 So. 3d 19 (La. 2017). A lawyer who retained co-counsel solely to force the recusal of impeached federal district judge G. Thomas Porteous, Jr., engaged in conduct prejudicial to the administration of justice. See In re Joseph Nicolas Mole, 199 So. 3d 1138 (La. 2016). Finally, a lawyer who offered a witness in a criminal case $300 if the witness would execute an affidavit requesting dismissal of the burglary charges then pending against the lawyer’s client violated Rule 8.4. See In re Pryor, 179 So. 3d 566 (La. 2015).
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.
Agreement to Refrain Reporting Lawyer to ODC
An agreement with anyone to refrain from reporting a lawyer to the Office of Disciplinary Counsel would likely constitute conduct prejudicial to justice. Cf. In re Laura Lee Robinson, IL Atty. Registration and Disciplinary Comm. No .2016PR01126 (Aug. 15, 2017). While Louisiana has no rule expressly on point, it is certain that the office of Disciplinary Counsel would consider such an agreement to violate Rule 8.4(d). 3
Uncivil and Undignified Conduct
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. For example, a lawyer received a thirty-day suspension for disrupting a court proceeding by “using vulgarities in the courtroom.” See In re Sanford, 214 So. 3d 841 (La. 2017). Although, not a Louisiana case, a North Carolina “activist” lawyer purporting to represent an “occupy movement” engaged in conduct “prejudicial to the administration of justice” by exclaiming to a magistrate “what the fu** is going on around here.” See N.C. State Bar v. Foster, No. COA17-443 (N.C. Dec. 19, 2017).
Failure to Pay Litigation-Related Expenses as “Conduct Prejudicial to the Administration of Justice”
The Office of Disciplinary Counsel traditionally does not allow itself to be used as a collection agent for the vendors and creditors of lawyer. In so doing, the office has relied upon the Louisiana Supreme Court’s 2003 decision in In re Bible, 842 So. 2d 729 (La. 2003). In that case, the hearing committee opined that “the failure to pay an invoice of a court reporter does not constitute action that is prejudicial to the administration of justice even though Respondent has no justification for not paying the invoice.” Otherwise, the disciplinary counsel “would become a collection agency for creditors of attorneys.” Id. at 736.
On January 9, 2017, however, the Louisiana Supreme Court reinstated a disciplinary investigation that was closed by ODC arising out of a lawyer’s failure to pay unspecified litigation expenses:
Based on our review of the record, we find the disciplinary board was arbitrary and capricious in dismissing the complaint. This court’s opinion in In re Bilbe, 02-1740 (La. 2/7/03), 841 So. 2d 729, is limited to the unique facts presented and does not stand for the blanket proposition that an attorney’s failure to pay litigation-related expenses can never constitute conduct prejudicial to the administration of justice.
See In re Appeal of Decision of the Disciplinary Board, 208 So. 3d 370 (La. 2017). As a result, the court remanded the matter to ODC “to conduct further investigation and to institute formal charges, if appropriate.” Id. In the wake of the decision, the failure of a lawyer to pay litigation-related expenses alone may constitute a disciplinary offense.
Facilitating Judicial Misconduct
On November 15, 2018, the Florida Supreme Court finally resolved a conflict among Florida lower courts on the issue of whether Facebook “friendship” is a sufficient basis for judicial disqualification. See Law Offices of Herssein and Herssein, P.A. v. United Services Automobile Assoc’n, No. SC17-1848 (Fl. Nov. 15, 2018). Said the Florida Supreme Court: “We hold that an allegation that a trial judge is a Facebook ‘friend’ with an attorney appearing before the judge, standing alone, does not constitute a legally sufficient basis for disqualification.” Id. at 2.
In 2012, a Florida appellate court ruled that having a lawyer as a Facebook friends undermines “confidence in the judge’s neutrality” and gives rise to a “well-founded fear of not receiving a fair an impartial trial.” See Domville v. State, 103 So. 3d 184, 186 (Fla. Ct. App. 4th Dist. 2012). Subsequent opinions, however, expressed skepticism. In Chance v. Loisel, No. 5D13-4449 (Fla. Ct. App. 5th Dist. 2014), another Florida court noted that:
We have serious reservations about the court’s rationale in Domville. The word “friend” on Facebook is a term of art. A number of words or phrases could more aptly describe the concept, including acquaintance and, sometimes, virtual stranger. A Facebook friendship does not necessarily signify the existence of a close relationship. Other than the public nature of the internet, there is no difference between a Facebook “friend” and any other friendship a judge might have. Domville’s logic would require disqualification in cases involving an acquaintance of a judge. Particularly in smaller counties, where everyone in the legal community knows each other, this requirement is unworkable and unnecessary. Requiring disqualification in such cases does not reflect the true nature of a Facebook friendship and casts a large net in an effort to catch a minnow.
Likewise, yet another Florida appellate court ruled that a district judge may preside over a civil action even though she is Facebook friends with a lawyer appearing before her. See Law Offices of Herssein and Herssein, P.A. v. United Services Automobile Ass’n, No. 3D17-1421 (Fl. Ct. App. 3d Dist. 2017). Noting that that Facebook contacts often are not equivalent to real-life friends, the court found that no “reasonably prudent person would fear that he or she could not get a fair and impartial trial because the judge is a Facebook friend with a lawyer who represents a potential witness and party to the lawsuit.” On the contrary, ”[a]n assumption that all Facebook ‘friends’ rise to the level of a close relationship that warrants disqualification simply does not reflect the current nature of this type of electronic social networking.” The court noted the following three reasons for its holding:
- Some people have thousands of Facebook friends, which reflects how distant many Facebook relationships truly are.
- Facebook members often don’t even know who their friends are.
- Friendships formed by Facebook’s “data mining and networking algorithms” is a product of an “astounding development in applied mathematics.” But while these algorithms are powerful tools “to build personal and professional networks,” they have “nothing to do with close or intimate friendships of the sort that would require recusal.” Id. at 8-9.
Thankfully, the Florida Supreme put a stop to this silly debate in Law Offices of Herssein and Herssein, P.A. v. United Services Automobile Assoc’n, No. SC17-1848 (Fl. Nov. 15, 2018)
Who and what is a “friend?” Well, said the court, it depends: Friendship in “the traditional sense of the word does not necessarily signify a close relationship. It is commonly understood that friendship exists on a broad spectrum: some friendships are close and others are not.” Id. at 8 (citing Black’s Law Dictionary 667 (6th ed. 1990) (defining the term “friend” as “[v]arying in degree from greatest intimacy to acquaintance more or less casual”)). Because the “mere existence of a friendship between a judge and an attorney appearing before the judge, without more, does not reasonably convey to others the impression of an inherently close or intimate relationship,” an allegation of “mere friendship” does not constitute “a legally sufficient basis for disqualification.” Id. at 9.
And so it is with Facebook friendship. In addressing the question “what is the nature of Facebook ‘friendship?’,” the court recognized that such relationships could be more intimate or far less intimate than traditional friendships:
Today it is commonly understood that Facebook “friendship” exists on an even broader spectrum than traditional “friendship.” Traditional “friendship” varies in degree from greatest intimacy to casual acquaintance; Facebook “friendship” varies in degree from greatest intimacy to “virtual stranger” or “complete stranger.”
Id. at 13. Because “the mere existence of a Facebook ‘friendship,’ in and of itself, does not inherently reveal the degree or intensity of the relationship between the Facebook ‘friends,’” no “reasonably prudent person would fear that she could not receive a fair and impartial trial based solely on the fact that a judge and an attorney appearing before the judge are Facebook ‘friends’ with a relationship of an indeterminate nature.” Id. at 15-16. For this reason, “Facebook ‘friendships’—which regularly involve strangers—should [not] be singled out and subjected to a per se rule of disqualification.” Id. at 20. 4
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 Prof’l Conduct R. 8.4(g) (2004); see Ruffin, 54 So. 3d at 648; In re Exnicios, 218 So. 3d 94 (La. 2017) (six-month deferred suspension for threatening “to bring a disciplinary complaint against an attorney in an effort to gain an advantage in a civil case”). 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 Prof’l Responsibility, Formal Op. 94-383 (1994).
While there is no case law on this specific issue in Louisiana, the California State Bar’s Ethics Committee stated that the “rule [against threatening administrative charges solely to gain an advantage in a civil matter] seems to suggest that where an administrative claim is brought even with a scintilla of justification, there will be no violation of [the Rules of Professional Conduct].” See State Bar of Cal. Comm. on Prof’l Responsibility and Conduct Formal Op. 73 (1983). The Committee opined that “where there is a dual motive on the part of counsel in presenting charges, one motive being legitimate and the other not, the benefit of the doubt must be given to the attorney such that there can be no violation” of the rule. See id. (emphasis added). The California committee found that this result was warranted for at least three different reasons. First, the Committee looked to the plain language of the rule with reference to the word “solely.” See id. Second, the Committee stated that “when there is more than one subjective motivating factor for a decision to present administrative or disciplinary charges it becomes virtually impossible to balance an improper motive against a proper one.” See id. Furthermore, the Committee reasoned, “[t]he fact that an attorney may have an ulterior purpose of dubious legitimacy should not negate the weight and legitimacy of a coexisting proper objective.” See id. The third and most important reason stated by the Committee was that:
[I]n most instances, there is a public policy recognizing the filing of administrative complaints against government-regulated persons and entities. The filing of such complaints tends to insure that the regulated party operates within the bounds of the law…In addition, the client may have a constitutional right to petition the government for redress of grievances through quasi-judicial channels…The qualification of the second clause by the word “solely” is therefore justified on the basis that there is little public benefit gained when a party threatens prosecution. That is, a narrower prohibition is needed where a lawyer presents charges, than where the lawyer threatens to do so. Rather than conferring a public benefit, the attorney threatening charges is in most instances likely to be seeking a private benefit to his client in the civil matter.
State Bar of Cal. Comm. on Prof’s Responsibility and Conduct Formal Op. 73 (1983).5
The Ethics Committee of the New York State Bar addressed the extent to which, and under what circumstances, a lawyer may threaten a third party with administrative penalties or criminal prosecution in order to recover a civil claim against a stock broker who had converted the funds of a client.6 After examining the purpose underlying the rule, the prevention of the subversion of both the criminal and civil processes, the Committee stated that:
DR 7-105(A) is intended to preserve the integrity of both the system of civil liability and the criminal justice system by making sure that a lawyer’s actual or threatened invocation of the criminal justice system is not motivated solely by the effect such invocation is likely to have on a client’s interests in a civil matter. When, however, a lawyer’s motive to prosecute is genuine—that is, actuated by a sincere interest in and respect for the purposes of the criminal justice system—DR 7-105(A) would be inapplicable, even if such prosecution resulted in a benefit to a client’s interest in a civil matter.
N.Y. State Bar Ethics Comm. Op. 772 (2003). The Committee further discussed the issue of the client’s intent in bringing the complaint, stating that: “[t]he ‘solely’ requirement makes the propriety of filing such a complaint contingent upon the client’s intent. As long as one purpose of the client in filing such a complaint with a Prosecutor is to have the Broker prosecuted, convicted, or punished, then such a complaint would not offend the letter or spirit of DR 7-105(A).” See id. Therefore, the Committee concluded that “as long as the client’s motivation includes that purpose, DR 7-105(A) would not be violated even if the filing of such a complaint resulted in the Broker returning the client’s funds and even if the client also intended that result, because the lawyer would not have filed such a complaint ‘solely’ to obtain the return of the client’s funds.” See id. 7 is very fact specific”); Conn. Informal Op. 50 (1999) (“[T]here is no per se prohibition against simultaneously pursuing a criminal complaint and a civil action against the same party unless the attorney’s sole reason for filing a criminal complaint is to seek an advantage in the civil action…Thus, it appears that if the attorney has at least one other reason to counsel or bring a criminal prosecution while a civil action is pending or intended, he or she may enjoy the advantage in a civil action without violating the rule”); Somers v. Statewide Grievance Committee, 245 Conn. 277, 292 (1998) (Connecticut Supreme Court looked for the lawyer’s motive and intention in filing the criminal complaint in examining whether gaining an advantage in the civil action was the lawyer’s “sole” reason.); Fla. Bar Op.3 (19 89) (“The motivation and intent of the attorney involved obviously will be a major factor in determining whether his or her actions are ethically improper. The Committee believes that such determinations necessarily must be made on a case-by-case basis”); Supreme Court of Texas Prof’l Ethics Comm., Tex. Eth. Op. 589 (2009), 2009 WL 4073666 (Sept. 2009) (“Under Rule 4.04, it does not matter whether the lawyer is reporting the possibly illegal activity on his own initiative or at the direction of or in concert with his client. Determining if such reporting is permissible under the Rule turns on whether the only substantial purpose for reporting is to embarrass, delay or burden a third person and whether the report is being made solely to gain an advantage in a civil matter. Moreover, under Rule 8.04(a)(1), the lawyer is prohibited from seeking to circumvent the requirements of Rule 4.04 by causing the lawyer’s client to make a report that would violate Rule 4.04 if the report were made directly by the lawyer.”). Mich. State Bar. Comm. on Prof’l & Judicial Ethics Informal Op. RI-78 (1991) (good-faith assertion of possible criminal prosecution to opposing party in civil suit permissible); Ruberton v. Gabage, 280 N.J. Super. 125, 654 A.2d 1002 (App. Div. 1995); In re Conduct of McCurdy, 297 Or. 217, 681 P.2d 131 (1984); W.Va. Off. Disc. Csl. Op. 01 (2000) (good-faith threat of criminal prosecution permissible); In re Finkelstein, 901 F.2d 1560 (11th Cir. 1990) (The Eleventh Circuit Court of Appeals ruled that threats relating to bad publicity made in order to induce a civil settlement, while “lawyerlike” and “offensive,” are not prohibited by existing professional ethics codes.); Committee on Legal Ethics of the West Virginia State Bar v. Printz, 416 S.E.2d 720, 727 (1992) (The West Virginia Supreme Court of Appeals has ruled that DR 7-105(A) “has proven to be unworkable” and is an inappropriate basis for professional discipline as “[t]he rules of legal ethics should not prohibit lawyers from engaging in otherwise legitimate negotiations.”); Alaska Bar Ass’n Ethics Comm. Op. 2 (1997) (threat of criminal prosecution made in related civil action not unethical where lawyer has well-founded belief that such prosecution is warranted by the facts and law). ]
Discrimination and Harassment
In 2016, the ABA amended Model Rule 8.4 to include a broad anti-discrimination and anti-harassment provision, and three revised comments. The amendment added a new paragraph (g) to the black-letter of Rule 8.4: “It is professional misconduct for a lawyer to:… (g) engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law.” See ABA Revised Resolution 109 (adopted Aug. 8, 2016).
On November 27, 2017, the LSBA Rules of Professional Conduct Committee reported that it would make “no recommendation” regarding the adoption of a rule prohibiting discrimination and harassment in conduct related to the practice of law. Although the LSBA committee’s chairperson noted that “it is difficult to summarize the rationale of the length debate in its entirety, the primary arguments made by those opposing the rule” were as follows:
- Existing rules permit ODC to prosecute much of the conduct that would be covered by the proposed rule, “thus making it unnecessary.”
- The proposed rule contains ambiguous terms that could engender litigation and create uncertainty.
- The proposed rule may be unconstitutional.
As of December 31, 2018, neither the LSBA nor the Louisiana Supreme Court has taken any further action. Likewise, several other states have declined to follow the ABA on this issue. On September 10, 2018, the Idaho Supreme Court Supreme Court rejected efforts to amend the Idaho Rules of Professional Conduct to add the anti-discrimination provision now included in ABA Model Rule 8.4. See Letter, Roger S. Burdick, Chief Justice of the Supreme Court of Idaho to the Executive Director of the Idaho State Bar (Sep. 10, 2018). Id. In so doing, Idaho joined six other states that have expressly declined to adopt the ABA’s model anti-discrimination rule. See ABA Center for Prof’l Responsibility, Policy Implementation Committee, Jurisdictional Adoption of Rule 8.4(g) of the ABA Model Rules of Professional Conduct (as of December 2018). To date, only Vermont has adopted the model rule, although twenty states have preexisting rules that are analogous to Model Rule 8.4(g). Id. See generally Scott Flaherty, Several States Weigh ABA’s AntiDiscrimination Rule, Law.com (May 22, 2018).
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 lawyer 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, producing 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; and, 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; and, 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.
This page was updated on March 9, 2019.
- 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 Prof’l 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. ↵
- The amendment was sponsored by the ABA’s Standing Committee on Ethics and Professional Responsibility, the Section of Civil Rights and Social Justice, the Commission on Disability Rights, the Diversity & Inclusion 360 Commission, the Commission on Racial and Ethnic Diversity in the Profession, the Commission on Sexual Orientation and Gender Identity, and the Commission on Women in the Profession. See Lorelei Laird, Discrimination and Harassment Will be Legal Ethics Violations Under ABA Model Rule, ABA Journal (Aug. 8, 2016, 6:36 p.m.). ↵
- Note also that another lawyer could not participate in the making of such a nondisclosure agreement in the context or a settlement (or otherwise). Louisiana lawyers have an obligation to report serious misconduct by other lawyers to the Office of Disciplinary Counsel. See La. Rules of Prof’l Conduct r. 8.3(a). ↵
- The court noted that its holding was consistent with the “clear majority” of ethics opinions on the issue. Id. at 16 (citing Ariz. JEAC Op. 14-01, at 4 (Aug. 5, 2014); Ky. Jud. Ethics Comm. Op. JE-119, at 2-3 (Jan. 20, 2010); Md. Jud. Ethics Comm. Op. 2012-07, at 5 (June 12, 2012); Mo. Ret., Removal, & Discipline Comm’n Op. 186, at 1 (Apr. 24, 2015); N.M. Jud. Conduct Adv. Comm. Op. Concerning Soc. Media, at 13-14 (Feb. 15, 2016); N.Y. JEAC Op. 13-39 (May 28, 2013); Ohio Bd. of Comm’rs on Grievances & Discipline Op. 2010-7, at 1-2, 8-9 (Dec. 3, 2010); Utah JEAC Op. 12-01, at 4-7 (Aug. 31, 2012). . ↵
- Finally, the Committee concluded that “although on the surface the word ‘solely’ may appear to give an attorney a license to use marginally justifiable administrative or disciplinary proceedings as a subterfuge for exerting leverage in a civil matter, this fear is allayed by” other Rules of Professional Conduct, namely the one “which prohibits an attorney from taking steps for the purpose of harassing or maliciously injuring any person.” See id. ↵
- Note that Opinion 772 dismissed the notion of discipline for the threat of administrative penalties because the New York Rule covers only the threat of criminal charges. NY DR 7-105(A) states: “A lawyer shall not present, participate in presenting, or threaten to present criminal charges solely to obtain an advantage in a civil matter.” ↵
- See also Conn. Informal Op. 19 (1998) (“Such an examination [of a lawyer’s motivation ↵