Cabildo 1930s

Historical Background of Louisiana Rules of Professional Conduct

Although Louisiana courts have long exercised their inherent power to regulate a lawyer practicing before them, the use of uniform standards to evaluate lawyer conduct is a relatively modern development.1 In the earliest reported case of lawyer discipline in Louisiana, the Superior Court of the Territory of Orleans in 1810 struck the name of Pierre Dormenon from the roll of attorneys.2 After hearing testimony from “men of veracity,” the court found that disbarment was warranted because Mr. Dormenon, “wearing a scarf . . . marched at the head of the brigands” during a 1793 slave revolt in Santo Domingo.3 Similarly, the Louisiana Supreme Court imposed a twelve-month suspension on Michel De Armas for using “arrogant and indecorous language” in a brief, which the court held, “the law forbids us to suffer.”4 In disciplining a lawyer for apparently self-evident wrongdoing, the court did not labor to find whether either lawyer violated any applicable standard of conduct governing members of the bar. Given that no such standards existed, this should come as no surprise.
In 1899, the LSBA undertook the first effort to codify the principles governing lawyering in Louisiana. In so doing, Louisiana diverged from the lawyer codes then in place in most other states,5 and instead, based its new code on a seventeenth century oath for advocates from the Swiss Canton of Geneva.6 Although denominated by the LSBA as a “Code of Ethics,” this enumeration of broad principles read more like a pledge than a disciplinary code.7 For example, the Code declared that it was the “duty” of a Louisiana lawyer to “maintain the respect due to courts of justice and judicial officers,” to “employ . . . such means only as are consistent with truth,” to “maintain inviolate the confidence, and at every peril to ourselves, to preserve the secrets of our clients,” and to “abstain from all offensive personalities,” among other things.8

ABA Canons of Ethics

Shortly after the LSBA adopted this code, the ABA formed a committee in 1905 to consider the “advisability and practicability” of creating its own.9 In short order, the committee decided that an ethics code was in fact advisable and practicable, and then set out to collect all of the existing codes, including the LSBA 1899 Code of Ethics.10 Ultimately, the committee concluded its work, and the ABA adopted its 1908 Canons of Ethics.11 Although history has given the Canons mixed reviews,12 they mark the beginning of the ABA’s preeminence in the field of lawyer regulation.13

After the ABA enacted the 1908 Canons, Louisiana became one of the first states to adopt them. At its 1910 meeting in Baton Rouge, the LSBA adopted all thirty-two canons without revision.14 Thereafter, Louisiana courts and lawyers slowly began to cite to the Canons as authoritative statements of the principles of lawyering.15 Such citations, however, were infrequent. Moreover, confusion remained among members of the Louisiana bar as to the standards governing their conduct. For example, during an LSBA meeting in 1926, a well-intentioned delegate from New Orleans offered a resolution calling for “a revision and restatement of the present code of ethics of this Association, to the end that the same may be made more comprehensive and specific.”16 The president of the LSBA responded by asking the delegate if he was aware “that the present code of ethics is the canon of ethics of the American Bar Association.” The delegate responded as follows:

Mr. F.B. Freeland (Orleans): No, I was not cognizant of that fact; but I looked at the charter of the Association and found there what appears to be the code of ethics for the Association, and I was not cognizant of the fact that the canons of the American Bar Association were our code of ethics. In fact, that is the main idea I had in mind. If that is the fact, then I most cheerfully withdraw my motion.

President Herold: I am so informed by the Secretary.17

In the years following adoption of the Canons, the ABA continually revised and supplemented them. For example, the ABA revised the Canons in 1928, 1933, 1937, 1940, 1942, 1943, and 1951.18 The LSBA kept pace with these changes, first by simply adopting verbatim the ABA’s revisions, and later, by selectively picking, choosing, and amending the ABA’s standards. For example, in 1929, the LSBA Charter formally adopted the “Canons of Ethics of The American Bar Association in effect January 1, 1929″ as “the Code of Ethics of this Association.”19 However, the charter also opened the door for more selective adoption by providing that “[t]he Association shall have the right at any general meeting, by resolution, to alter or amend said Code and to adopt additional canons of ethics, without the necessity of amending the charter.”20 Indeed, by the early 1940s, the LSBA was liberally diverging from the ABA Canons on matters of form and substance.21

ABA Model Code of Professional Responsibility

LASC BuildingLouisiana’s increasing divergence from the aging ABA Canons reflected a more widespread dissatisfaction with the Canons’ vague and imprecise standards. Such discontent led the ABA to appoint a committee in 1964 to reevaluate the Canons.22 After working for more than four years, the committee proposed, and the ABA adopted, its Model Code of Professional Responsibility in 1969.

Unlike the 1908 Canons that preceded it, the 1969 Model Code consisted of “three separate but interrelated parts: Canons, Ethical Considerations, and Disciplinary Rules.”23 The Canons were “statements of axiomatic norms” expected of a lawyer.24 The Ethical Considerations were “aspirational in character” and represented “the objectives toward which every member of the profession should strive.”25 Finally, the Disciplinary Rules were “mandatory in character” and set forth the “minimum level of conduct below which no lawyer [could] fall without being subject to disciplinary action.”26

The 1969 Code was quickly and widely accepted around the nation, with Louisiana at the forefront of the wave of adoptions.27he 1969 Code was an impressive and quick success . . .”); Monroe H. Freedman & Abbe Smith, Understanding Lawyers’ Ethics § 1.03, at 5 (2d ed. 2002) (noting that “[t]he Model Code was quickly adopted, with some variations of substance, by virtually all jurisdictions.”). ] During its April 1970 meeting, the LSBA passed a resolution to submit the issue of adoption of the ABA Code to its general membership. That summer, the referendum passed, and the Code was adopted.28

ABA Model Rules of Professional Conduct

Despite the Model Code’s widespread acceptance by the states, enthusiasm for it quickly waned. Critics assailed it as unconstitutional, unresponsive to the realities of modern practice, unhelpful to solo and transactional lawyers, and internally incoherent.29 As a result of this mounting criticism, deconstruction of the Model Code began just eight years after its adoption when the ABA formed the “Kutak Commission” in 1977. After re-evaluating the Model Code, the Kutak Commission eventually jettisoned its hortatory Canons and Ethical Considerations and replaced them with a single set of black-letter “Rules” setting forth minimally-acceptable standards of conduct. In adopting these proposals in 1983 as the “Model Rules of Professional Conduct,” the ABA “completed the transformation from the vague and largely inspirational Canons to an expressly legalistic rule-based ethics regime.”30

Louisiana set out to consider adopting the ABA’s newly-minted Model Rules. At the request of Louisiana Supreme Court Chief Justice John A. Dixon, Jr., the LSBA formed a “Task Force to Evaluate the American Bar Association’s Model Rules of Professional Conduct.”31 Although some apparently believed there was no need to replace the then-existing Louisiana Code of Professional Responsibility, the five members of the Task Force eventually undertook to do just that, perhaps as a result of “pressure from the American Bar Association” and the persuasiveness of the “suggestion” from the Louisiana Supreme Court that it do so.32 Ultimately, the Task Force tweaked and modified the ABA Model Rules in a number of respects and then issued a decidedly lukewarm report giving the LSBA House of Delegates the option of either adopting and recommending the Model Rules “in the form and content proposed in this report and not as originally adopted by the American Bar Association,” or retaining the “present Code of Professional Responsibility.”33 In November 1985, the House chose the first option and approved the Task Force’s modified version of the ABA Model Rules.34 After considering the Task Force’s recommendations and reconciling several issues of form and substance, the Louisiana Supreme Court enacted the Louisiana Rules of Professional Conduct and made them effective on January 1, 1987.35

Ethics 2000 Committee

The years following the adoption of the Rules of Professional Conduct brought much change to the practice of law. Throughout the nation, the proliferation of lawyer advertising, mass tort lawsuits, lawyer referral services, alternative dispute resolution, interstate practice, and Internet advice called into question the adequacy of the ABA’s model standards, despite nearly thirty amendments in the years following 1983.36 As a result, in 1997 the American Bar Association determined yet again that the time had come to reconsider its model standards. In that year, ABA president Jerome J. Shestack formed the Commission on Evaluation of the Rules of Professional Conduct and charged it to reevaluate the 1983 Model Rules.37 Many commentators hoped that the Commission, later known as the “ABA Ethics 2000 Commission,38 would “not just examine [the Model Rules] of conduct but help bring us to a higher moral ground.”39

The Commission’s early work plan, published in 1998,40 ambitiously organized its work into three “tracks” of different priorities.41 Despite these ambitious plans, the Commission’s actual work was more measured. Rather than charting an entirely new course, the Commission decided that “it would follow a presumptive rule of making no change [to the ABA Model Rules] unless it is substantively necessary.”42 The Commission’s initial report, which was denominated Report 401, proposed significant but not sweeping revisions.43 The Report was first considered by the ABA House of Delegates during its annual meeting in Chicago during the summer of 2001. The House later adopted the Report, with revisions, during its mid-year meeting in 2002.44

In addition to the changes in lawyering that prompted the ABA’s Ethics 2000 initiative at the national level, developments closer to home drove reform initiatives in Louisiana as well. For example, the increasingly vigilant enforcement of ethical norms by the Louisiana Office of Disciplinary Counsel—facilitated in large part by a 1990 restructuring of the disciplinary process and a significant increase in enforcement funding through controversial lawyer assessments—accentuated the call for reform in Louisiana. As a result, in late 1999 the Louisiana State Bar Association created the LSBA Ethics 2000 Committee45 and appointed members drawn from diverse geographic areas and practice settings, including two judges, three previous LSBA presidents, a law professor, two chairpersons of the Louisiana Attorney Disciplinary Board, the Chief Disciplinary Counsel, respondents’ counsel, and a liaison to the Louisiana Supreme Court.46 The Committee’s charge was threefold: (1) to monitor and study the ongoing work of the American Bar Association Ethics 2000 Commission; (2) to conduct a comprehensive review of the Louisiana Rules of Professional Conduct; and (3) to recommend rule changes to the LSBA House of Delegates and, ultimately, the Louisiana Supreme Court.47

The Committee’s work began in 1999. To define the nature and scope of its efforts, the Committee made a number of preliminary determinations that shaped its deliberations. First, the Committee decided that it would not propose adoption of the “Comments” to the ABA Model Rules. Although the Comments provide very useful guidance to courts and practitioners, the ABA has never intended them to serve as black-letter standards.48he Comment accompanying each Rule explains and illustrates the meaning and purpose of the Rule. . . . The Comments are intended as guides to interpretation, but the text of each Rule is authoritative.” See Model Rules of Prof’l Conduct Scope ¶ 21. In addition, some of the Comments are intended merely “to alert lawyers to their responsibilities under . . . other law.” See id. ¶ 15. Such informal “alerts” would be out of place in a disciplinary code. ] Indeed, they are replete with hortatory provisions that would engender issues of notice and due process if employed as standards for discipline.49

In addition, debate on the Comments to each Model Rule would have consumed a prohibitive amount of Committee time. Moreover, although some Committee members argued for adoption of the Comments simply to make them available to Louisiana judges and lawyers, Louisiana courts already use the Comments to interpret black-letter provisions of the Louisiana Rules.50 Finally, because the LSBA and the ABA have made the Comments readily accessible on the Internet, Westlaw, and in hard-copy publications, the issue of access was less compelling than it perhaps had been in the past.51

Second, the Committee decided that it would not deviate from the language of the ABA Model Rules unless there was a compelling reason for doing so. The Committee believed that greater consistency with the ABA’s model standards would provide more resources to Louisiana lawyers and judges interpreting the Louisiana counterparts. For example, consistency would allow Louisiana practitioners to utilize legal ethics case law developed in other jurisdictions. Furthermore, consistency would make the commentary on the Model Rules published in law reviews, treatises, the ABA’s Comments, and the working papers of the ABA Ethics 2000 Commission relevant and useful here. Finally, many members of the Committee believed that greater consistency with the ABA Model Rules would ease the burden of justifying the Committee’s proposals to the court and thus increase the chances of adoption.52

Third, the Committee decided that it would not propose revisions to rules upon which the Louisiana Supreme Court had acted recently. For example, in the not-so-distant past, the court considered and revised the rules on lawyer advertising and solicitation, as well as those on the sale of a law practice.53 The Committee believed that it would be premature to revise such recently-considered provisions.

The Committee labored diligently from 1999 until 2003. It held twenty-four Committee meetings. It disseminated its meeting minutes, work product, and preliminary drafts through the LSBA’s Internet web site, and it actively sought and received suggestions from local bar associations, specialty bar associations, lawyers, judges, and lay persons throughout the state by conducting CLE seminars, symposia, and nine public hearings.54

After completing its work, the Committee submitted a final report to the LSBA House of Delegates in December 2002.55 On January 25, 2003, the LSBA House of Delegates debated the Committee’s report and unanimously approved it after modifying a handful of rules.56 LSBA president Larry Feldman thereafter forwarded the resolution to the Louisiana Supreme Court.57pproval of resolution (as amended) from LSBA Ethics 2000 Committee proposing amendment to the Louisiana Rules of Professional Conduct”). ] Following a meeting with members of the Committee in May 2003, the court requested additional clarification as to a few proposals.58 Ultimately, the court enacted the revised Louisiana Rules of Professional Conduct on January 21, 2004, and made them effective on March 1, 2004.59

Recent Amendments

After the sweeping rule changes made in 2004, the court has periodically amended the Louisiana Rules of Professional Conduct. The court adopted some of these amendments in response to requests by the Louisiana State Bar Association, and some in response to changes to the ABA Model Rules of Professional Conduct. Some of the more significant amendments are discussed below.

In 2005, the court amended Rules 5.5 and 8.5 to adopt revisions to the 2002 Model Rules of Professional Conduct proposed by the ABA’s Commission on Multijurisdictional Practice. These amendments became effective on April 1, 2005.

Between 2008 and 2011, the Louisiana Supreme Court adopted (and partially retracted after federal litigation) major amendments to Rule 7, regarding lawyer advertising.

In 2015, the court amended Rules 1.6 to adopt a new paragraph, denominated as Louisiana Rule 1.6(b)(7), permitting a lawyer to disclose confidential information to the extent the lawyer “reasonably believes necessary”: “(7) to detect and resolve conflicts of interest between lawyers in different firms, but only if the revealed information would not compromise the attorney-client privilege or otherwise prejudice the client.” In adopting this amendment, the court made the Louisiana rule similar to the corresponding ABA Model Rule. The ABA adopted similar language because sometimes a lawyer may need to disclose potential conflicts when the lawyer is considering associating with a new firm, or when law firms are considering a merger. See ABA Model Rule 1.6, cmt. 13. In reality, Louisiana lawyers changing or joining firms have long made these disclosures without this express authorization.

In 2015, the court adopted a new paragraph, denominated as Rule 1.6(c), that provides as follows: “A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.” Although this is a new amendment, the Louisiana Rules have always required a lawyer to be “competent” and to preserve confidential information. To competently preserve confidential information, lawyers presumably have always been required to exercise reasonable care in this regard. Therefore, this rule does not impose a new obligation.

In 2015, the Louisiana Supreme Court adopted a Louisiana State Bar Association recommendation to amend Rule 1.15 to require periodic reconciliations of client trust accounts. See La. Sup. Ct. Order of Jan. 13, 2015. The order provides as follows: “The following sentence shall be added to the end of Rule 1.15(f): “A lawyer shall subject all client trust accounts to a reconciliation process at least quarterly, and shall maintain records of the reconciliation as mandated by this rule.”

 

  1. Excerpted from Dane S. Ciolino, Lawyer Ethics Reform in Perspective: a Look at the Louisiana Rules of Professional Conduct Before and after Ethics 2000, 65 La. L. Rev. 535, 538-48 (2005).
  2. Dormenon’s Case, 1 Mart. (o.s.) 129 (La. 1810).
  3. See id. at 130, 131. Two years later, the court readmitted Dormenon after he was elected to the Louisiana House of Representatives and cleared by that body of wrongdoing in connection with the slave revolt. See Dormenon’s Case, 2Mart. (o.s.) 305, 306 (La. 1812).
  4. See Michel De Armas’ Case, 10 Mart. (o.s.) 123 (La. 1821).
  5. See Report of the Comm. on Code of Prof’l Ethics, 31 ABA Rep. 678 (1907) (“With the exception of the Louisiana Code, all the State Bar Associations Codes are formulated, almost totidem verbis, upon that of Alabama . . . .”).
  6. See Henry S. Drinker, Legal Ethics 23 (1954); see also Ellen S. Podgor, Criminal Misconduct: Ethical Rule Usage Leads to Regulation of the Legal Profession, 61 Temple L.R. 1323, 1325 n.17 (1988); Peter A. Joy, Making Ethics Opinions Meaningful: Toward More Effective Regulation of Lawyers’ Conduct, 15 Geo. J. Legal Ethics 313, 322 n.30 (2002). Three other states, namely California, Oregon and Washington, had also based their lawyer ethics codes on the Swiss advocate’s oath. See Drinker, supra. Moreover, the oath had previously been translated and reprinted in New York’s 1850 Field Code of Procedure. See James M. Altman, Considering the A.B.A.’s 1908 Canons of Ethics, 71 Fordham L.R. 2395, 2422 n.171 (2003). The Swiss lawyers’ oath dates from 1683. See Center Update, 9 Prof. Lawyer 15, 18 (1998).
  7. See Altman, supra note 6, at 2422 n.171.
  8. See La. State Bar Ass’n, Report of the Louisiana State Bar Association 1898–1899, Charter of 1899, art. II, at 20 (1899). In adopting the Swiss advocates’ oath, the LSBA added an eighth canon not found in the Swiss source, namely, the duty to “live uprightly; and in our persons, to justify before men the dignity, honor and integrity of a great and noble profession.” See id. ¶ 8.
  9. See Drinker, supra note 6, at 24.
  10. The LSBA Code of Ethics was attached as Appendix C to the ABA committee’s report. See ABA, Report of the Thirtieth Annual Meeting at 714 (1907); Altman, supra note 6, at 2422, n.171; see also Carol Rice Andrews, The First Amendment Problem with the Motive Restrictions in the Rules of Professional Conduct, 24 J. Legal Prof. 13, 20 n.23 (2000) (discussing ABA committee’s consideration of the Swiss lawyers’ oath).
  11. See id.; see generally Altman, supra note 6; Charles W. Wolfram, Modern Legal Ethics § 2.6.2, at 53 (1986).
  12. One prominent commentator has noted that the Canons attracted little professional, public, or scholarly attention in their day. See Wolfram, supra note 11, at 54. For a discussion of the Canons and its critics, see generally Altman, supra note 6.
  13. See, e.g., Wolfram, supra note 11, § 2.6.2, at 56 (“The significance of the Canons, aside from their historical importance as an episode in bar regulation, is that they served as the forerunner to the 1969 Code and the 1983 Model Rules.”).
  14. See La. State Bar Ass’n, Report of the Louisiana State Bar Association for 1910 at 208 (1910).
  15. See LSBA v. Wheeler, 243 La. 618, 638 n.12, 145 So. 2d 774, 781 n.12 (1962); LSBA v. Sackett, 234 La. 762, 764–65, 101 So. 2d 661, 662 (1958); Macaluso v. Succession of Marinoni, 184 La. 1052, 1053, 168 So. 296, 296 (1936); Gilmore v. Gasquet, 178 La. 437, 442, 151 So. 763, 764 (1933); Foundation Fin. Co. v. Robbins, 179 La. 259, 269, 153 So. 833, 836 (1934).
  16. See La. State Bar Ass’n, Report of the Louisiana State Bar Association for 1926 at 199 (1926) (resolution of Mr. F.B. Freeland (Orleans)).
  17. Id.
  18. See, e.g., Drinker, supra note 6, at 25-26.
  19. La. State Bar Ass’n, Report of the Louisiana State Bar Association for 1929 at 219 (1929) (reprinting Article III of Charter of the Louisiana State Bar Association).
  20. La. State Bar Ass’n, Report of the Louisiana State Bar Association for 1929 at 219 (1929) (reprinting Article III of Charter of the Louisiana State Bar Association).
  21. See La. State Bar Ass’n, Report of the Louisiana State Bar Association for 1941 at 117-25 (1942) (diverging from ABA on Cannons 7, 11, 12, 27, 31, 33, 34, 37, and 39, among others).
  22. See Wolfram, supra note 11, § 2.6.3, at 56.
  23. See ABA Model Code of Prof’l Resp. Prelim. Statement (1969).
  24. Id.
  25. Id.
  26. Id.
  27. See Wolfram, supra note 11, § 2.6.3, at 56 (“[t
  28. See A. Leon Hebert, Professional Responsibility, 19 La. Bar J. 199, 199 (1971).
  29. See, e.g., Wolfram, supra note 11, § 2.6.4, at 60; Freedman & Smith, supra note 27, § 1.03, at 5 (characterizing the Code as “incoherent, inconsistent and unconstitutional”).
  30. Joy, supra note 6, at 328.
  31. See generally N. Gregory Smith, Missed Opportunities: Louisiana’s Version of the Rules of Professional Conduct, 61 La. L. Rev. 1, 7-18 (2000) (discussing the history of Louisiana’s adoption of the 1983 ABA Model Rules).
  32. See id. at 8-9 (citing Report and Recommendation of the Task Force to Evaluate the American Bar Association’s Model Rules of Professional Conduct at 42 (Nov. 1985); Letter from John A. Dixon to Louis D. Smith (Sep. 27, 1983)).
  33. See id. at 10.
  34. See id. at 14 (citing Letter, Thomas O. Collins, Jr., to Louisiana Supreme Court (Nov. 25, 1986)).
  35. See id. at 16-17; Warren L. Mengis, Developments in the Law, 1986–1987: Professional Responsibility, 48 La. L. Rev. 437, 437 (1987).
  36. See Am. Bar Ass’n, Annotated Model Rules of Professional Conduct vii (5th ed. 2003).
  37. Debra Baker, Ethics 2000 Marches On: Reviewers of Lawyer Conduct Rule on Schedule to Issue Report, A.B.A. J., Apr. 1999, at 85; James Podgers, Model Rules Get the Once-Over: Ethics 2000 Project Launches Review of ABA Professionalism Standards, A.B.A. J., Dec. 1997, at 90; Steven C. Krane, Ethics 2000: What Might Have Been, 3 Prof. Lawyer 2 (1999); Robert A. Stein, Updating Our Ethics Rules, A.B.A. J., Aug. 1998, at 106.
  38. The Commission was comprised of thirteen members chaired by E. Norman Veasey (Chief Justice, Delaware Supreme Court), and was served by two reporters, Professors Nancy J. Moore and Carl A. Pierce.
  39. See Steven Keeva, Professionalism Tops Shestack Agenda: Diversity, LSC, Other Issues Promise to Crowd the Presidential Plate, Too, A.B.A. J., Oct. 1997, at 96.
  40. See Ctr. for Prof’l Resp., Am. Bar Ass’n, Ethics 2000 Commission Work Plan (1998), available at http://www.abanet.org/cpr/e2kworkplan.htm.
  41. In track one, the commission targeted a number of rules for immediate reconsideration, including Rules 1.1, 1.6, 1.7, 1.8, 1.9-1.12, 2.2, 4.2 and 8.4. In track two, the Commission identified the following rules and issues as “most in need of fixing”: Rules 1.2, 3.3, 1.14, 1.15, 3.4, 1.5, 1.13, 3.5, 3.8, and the Preamble and Scope. Furthermore, the Commission placed on track two the consideration of the following potential new rules: a “new rule on duties to prospective clients”; a “new rule covering systems for law practice (accounting, conflict checks, docket-management)”; a “new rule on discipline for law firms”; and, a “new rule on a lawyer representing fiduciaries.” Finally, in track three the Commission grouped for consideration the following “subject areas that are increasingly important in the future of law practice and implicate multiple rules”: a lawyer acting as a dispute resolution neutral; lawyer representing clients in ADR; lawyer handling class actions; aggregate settlements; lawyer referrals; client-law firm networking; internet advice; internet advertising; misdirected communications; email encrypting; lawyer screens; electronic access to client files; lawyer hotlines; internet advice; regulation of nonlawyer assistants; pro se help services; research firms; and, lawyer relationships with intermediary organizations, among others. Id.
  42. See ABA Ethics 2000 Comm’n Meeting Minutes, Sept. 27-28, 1998, available at http://www.abanet.org/cpr/e2k/092798mtg.html. These minutes, and other current and historical ABA Ethics 2000 Commission materials are available on the website of the Ethics 2000 Commission. See Ctr. For Prof’l Resp., Am. Bar. Ass’n, at http://www.abanet.org/cpr/ethics2k.html.
  43. The Commission’s report was revised and resubmitted to the House in March 2001. In addition to the commission Report, a “Minority Report” was submitted to the House of Delegates. The principal author of this report was commission member Lawrence J. Fox of Philadelphia. Lawrence J. Fox, Minority Report, available at http://www.abanet.org/cpr/e2k-dissent.html.
  44. E.g., Carol R. Andrews, Standards of Conduct for Lawyers: An 800-Year Evolution, 57 S.M.U. L. Rev. 1385, 1385 n. 2 (2004).
  45. See Letter from Robert E. Guillory, Jr., President, LSBA (Dec. 9, 1999).
  46. The Committee was comprised of the following LSBA members: Harry S. Hardin, III, Chair; Christine Lipsey, Vice-Chair; Professor Dane S. Ciolino, Reporter; Kim M. Boyle; Connor B. Eglin; Orlando N. Hamilton, Jr.; Judge Carolyn W. Gill-Jefferson; Harvey J. Lewis; Charles B. Plattsmier; Judge Harry Randow; Michael H. Rubin; Marta-Ann Schnabel; Joseph L. Shea, Jr.; Richard C. Stanley; Timothy F. Averill, Supreme Court Liaison; E. Phelps Gay, Board Liaison.
  47. See generally Dane S. Ciolino, Re-Evaluating Our Rules of Professional Conduct, 48 La. Bar J. 18 (2000).
  48. The ABA Model Rules specifically provide that “[t
  49. As Professor Smith put it: “There are statements in the comments . . . that are more than guides to interpretation. They amount to hidden substantive rules. This is not exactly an ideal state of affairs. In some circumstances, a lawyer might be faced with discipline based upon an obligation that is unexpectedly articulate in a comment instead of in the text of the rules.” See Smith, supra note 31, at 68. Because Louisiana has not adopted the Comments, he notes that this “risk would be remote in Louisiana.” See id.
  50. See, e.g., In re Grevemberg, 838 So. 2d 1283 (La. 2003) (citing ABA Comments to Model Rule 1.8(c)); Walker v. DOTD, 817 So. 2d 57, 63 (La. 2002) (citing ABA Comments to Model Rule 1.11); In re Watley, 802 So. 2d 593, 597 (La. 2001),(citing ABA Comments to Model Rule 5.4); see also Smith, supra note 31, at 33 (noting that Louisiana courts “have implicitly and explicitly acknowledged” the value of the ABA Comments).
  51. Many of these same considerations led the 1984 Louisiana Task Force to Evaluate the American Bar Association’s Model Rules of Professional Conduct to reach the same conclusion. Professor Smith notes that the Task Force declined to adopt the Comments to the 1983 Model Rules (1) because it did not want to get “bogged down in disputes over language or concepts” in the Comments; (2) because it wanted to avoid conflicts between modified black-letter rules and unmodified Comments; and, (3) because adoption of the ABA Comments was not necessary in order to make them available to Louisiana practitioners. See Smith, supra note 31, at 12-13.
  52. Moreover, greater consistency with the law governing lawyers in Louisiana’s sister states furthers the presumably important goal of facilitating interstate commerce. See Voltaire, 7 Oeuvres de Voltaire, Dialogues 5 (1838) (complaining that the law in pre-revolutionary France required “change legal systems as often as you change horses”) (quoted in Shael Herman, The Louisiana Civil Code: A European Legacy for the United States 12 (1993)).
  53. See Smith, supra note 31.
  54. Many of these hearings were well attended by lawyers as a result of the availability of free continuing legal education attendance credit. Only a few members of the general public attended the hearings. One demanded to know why the Pope was not included in the revision process.
  55. See LSBA Ethics 2000 Final Recommendations (Dec. 2002).
  56. See Minutes of the House of Delegates of the Louisiana State Bar Association at 8-12 (Jan. 25, 2003); id. at 12 (“The resolution as amended was unanimously approved.”); see generally Marta-Ann Schnabel, House of Delegates Passes New Rules of Professional Conduct, 50 La. Bar J. 437, 437 (2003). For example, the House of Delegates adopted floor amendments (1) deleting language from Rule 6.1 encouraging a lawyer to make economic contributions to pro bono organizations, (2) adding “religious . . . views” to the list of client views that a lawyer does not endorse by representation, and most importantly, (3) replacing the expansive lawyer misconduct reporting rule proposed by the LSBA Ethics 2000 Committee with Model Rule 8.3. See id.
  57. See Letter from Larry Feldman, Jr., to Pascal F. Calogero, Jr. (Feb. 18, 2003) (enclosing “[a
  58. See Letter from Chief Justice Pascal F. Calogero, Jr. to Harry S. Hardin, III (Oct. 29, 2003). More particularly, the court sought additional information regarding proposed Rules 1.5(e) (division of fees), 1.7 (concurrent conflicts), 1.8(g) aggregate settlements), 1.8(j) (sexual relations with clients), 1.13 (organizational clients), 4.2(b) (contact with represented persons), 5.4 (sharing of legal fees with nonprofit organizations), 5.5 (unauthorized practice of law), 6.1 (pro bono service), 7.4 (specialization), 7.6 (pay-to-play), 8.3 (reporting professional misconduct), 8.4(g) (threatening criminal or disciplinary charges), and 8.5 (jurisdiction and choice of law). The LSBA Ethics 2000 Committee responded to the court’s requests on November 20, 2003. See Letter from Harry S. Hardin, III, to Pascal F. Calogero, Jr. (Nov. 20, 2003) (attaching “Memorandum from the LSBA Ethics 2000 Committee to the Louisiana Supreme Court in Response to the court’s October 29, 2003 Letter”).
  59. See Order of January 21, 2004 (La. Jan. 21, 2004) (“Article XVI of the Articles of Incorporation of the Louisiana State Bar Association be and is hereby repealed and re-enacted to read as follows . . . .”). Note that pursuant to the Local Rules of all of the United States District Courts in Louisiana, these rules are also applicable to lawyers practicing in federal courts situated in this state. See Unif. Local Rules of La. U.S. Dist. Cts. Rule 83.2.4 E&M (“This court hereby adopts the Rules of Professional Conduct of the Louisiana State Bar Association, as hereafter may be amended from time to time by the Louisiana Supreme Court, except as otherwise provided by a specific rule or general order of a court.”); id. 83.2.4 W (“This court hereby adopts the Rules of Professional Conduct of the Louisiana State Bar Association, as hereafter may be amended from time to time by the Louisiana Supreme Court, except as otherwise provided by a specific rule of the courts.”); see also Parker v. Rowan Cos., Inc., No. Civ. A. 03-0545, 2003 WL 22852218 (E.D. La. 2003) (Vance, J.) (“The United States District Court for the Eastern District of Louisiana has adopted the Rules of Professional Conduct adopted by the Supreme Court of the State of Louisiana for its Rules of Disciplinary Enforcement.”). Note, however, that federal courts, as a matter of federal law, can and do look to other standards for guidance as well. See Parker, 2003 WL 22852218, at *2 (“The ethical canons that are relevant to this Court’s opinion include (1) the local rules for the Eastern District of Louisiana, (2) the ABA’s Model Rules of Professional Conduct, (3) the ABA’s Model Code of Professional Responsibility, and (4) the Louisiana State rules of conduct.”) (citing Horaist v. Doctor’s Hosp. of Opelousas, 255 F.3d 261, 266 (5th Cir. 2001); FDIC v. U.S. Fire Ins. Co., 50 F.3d 1304, 1311-12 (5th Cir. 1995)).