Rule 8.1. Bar Admission and Disciplinary Matters

An applicant for admission to the bar, or a lawyer in connection with a bar admission application or in connection with a disciplinary matter, shall not:

(a) Knowingly make a false statement of material fact;

(b) Fail to disclose a fact necessary to correct a misapprehension known by the person to have arisen in the matter, or knowingly fail to respond to a lawful demand for information from an admissions or disciplinary authority, except that this rule does not require disclosure of information otherwise protected by Rule 1.6; or

(c) Fail to cooperate with the Office of Disciplinary Counsel in its investigation of any matter before it except for an openly expressed claim of a constitutional privilege.

Background

The Louisiana Supreme Court adopted this rule on January 20, 2004. It became effective on March 1, 2004, and has not been amended since.

Paragraphs (a) and (b) are identical to ABA Model Rule of Professional Conduct 8.1 (2020).¹ Paragraph (c) is not contained in the Model Rules but has long been a part of the Louisiana Rules of Professional Conduct. In 1985, the Louisiana Task Force on Adoption of the Model Rules recommended adoption of this paragraph “in order to facilitate the Committee on Professional Responsibility in its investigation and, most importantly, to expedite those investigations to the extent possible.” Report and Recommendation of the Task Force to Evaluate the American Bar Association’s Model Rules of Professional Conduct, at 23-24 (Nov. 23, 1985).

Comments to ABA Model Rule 8.1

[1] The duty imposed by this Rule extends to persons seeking admission to the bar as well as to lawyers. Hence, if a person makes a material false statement in connection with an application for admission, it may be the basis for subsequent disciplinary action if the person is admitted, and in any event may be relevant in a subsequent admission application. The duty imposed by this Rule applies to a lawyer’s own admission or discipline as well as that of others. Thus, it is a separate professional offense for a lawyer to knowingly make a misrepresentation or omission in connection with a disciplinary investigation of the lawyer’s own conduct. Paragraph (b) of this Rule also requires correction of any prior misstatement in the matter that the applicant or lawyer may have made and affirmative clarification of any misunderstanding on the part of the admissions or disciplinary authority of which the person involved becomes aware.

[2] This Rule is subject to the provisions of the Fifth Amendment of the United States Constitution and corresponding provisions of state constitutions. A person relying on such a provision in response to a question, however, should do so openly and not use the right of nondisclosure as a justification for failure to comply with this Rule.

[3] A lawyer representing an applicant for admission to the bar, or representing a lawyer who is the subject of a disciplinary inquiry or proceeding, is governed by the rules applicable to the client-lawyer relationship, including Rule 1.6 and, in some cases, Rule 3.3.

Annotations

Generally

This rule imposes a duty of candor in bar admissions and disciplinary matters similar to that imposed by Rule 3.3(a) in matters pending before tribunals. However, the duty of candor imposed by this rule is broader than the duty imposed by Rule 3.3 because it applies not only to licensed lawyers, but also to nonlawyers who eventually become licensed. La. Rules of Prof’l Conduct r. 8.1.

False Statements

Paragraph (a) prohibits a lawyer or bar applicant from making any false statement of material fact in connection with a bar application² or disciplinary matter. La. Rules of Prof’l Conduct R. 8.1(a); see also In re Ford 30 So. 3d 742, 745 (La. 2010) (finding 8.1(a) violation by lawyer who lied to ODC about conversation with client, that never took place); In re Banks, 18 So. 3d 57 (La. 2009) (finding that lawyer stole a $7 pair of shoes from Walmart, subsequently did not contest the fact that he committed theft, but then insisted during disciplinary proceedings that he was simply exchanging the shoes). Nonlawyers who make false or misleading statements in seeking admission to the Louisiana bar would be subject to discipline under this rule after admission. Model Rules of Prof’l Conduct r. 8.1 cmt. 1 (Am. Bar Ass’n).

The Louisiana Supreme Court has struggled with bar applications submitted by law graduates who omitted criminal history information on their law school applications. For example, in In re Committee on Bar Admissions CFN-52, 209 So. 3d 747 (Dec. 8, 2015), the court admitted an applicant who failed to “disclose three arrests on his law school application.” Id. The court’s decision in this regard is consistent with other recent orders admitting bar applicants. What is particularly interesting about this order, however, is the concurring opinion.

The concurrence, written by Associate Justice Weimer, notes the problem: “Annually, it seems this court is confronted with this issue: an applicant is less than candid on an application, but the indiscretions omitted from the application would probably not adversely impact admission. Id. As a result of such lack of candor, applicants’ lives are “cast into limbo” while the court undertakes a costly and protracted character and fitness evaluation. Id. Justice Weimer’s advice? Avoid the problem in the first place:

Practical advice to law school applicants and bar applicants is this: only you can place yourself in a situation which calls into question your ability to be candid and truthful; do not place yourself in that situation. Demonstrating that something in your past you do not relish disclosing to a law school or to the Committee on Bar Admissions is no longer indicative of your character and that you do possess the requisite character and fitness to practice law may be possible. However, if you are not candid in your applications, then not only must you overcome whatever you did not want to disclose in the first place, but you must also overcome the suspicion that your lack of candor casts upon anything you might say in support of your character. As Albert Einstein observed: “Whoever is careless with the truth in small matters cannot be trusted in important affairs.” Youthful indiscretion and human frailty are more easily explained than a lack of candor.

Id.

Affirmative Duty to Disclose

Paragraph (b) requires a lawyer to disclose information when necessary either (1) to “correct a misapprehension” known to exist in connection with a bar admissions or disciplinary matter, or (2) to respond to a lawful request from an admissions or disciplinary authority. La. Rules of Prof’l Conduct R. 8.1(b). Thus, a lawyer or bar applicant who unwittingly makes a false statement is bound to correct it if he or she later becomes aware of its falsity. However, a lawyer’s duty to disclose under this rule is subordinate to the lawyer’s confidentiality obligation to clients. Id. Therefore, a lawyer has no duty to disclose if doing so would result in the disclosure of information that is confidential under Rule 1.6. Id.

Duty to Cooperate with Office of Disciplinary Counsel

Paragraph (c) requires a lawyer to cooperate with the Office of Disciplinary Counsel in any investigation, unless the lawyer openly pleads the Fifth Amendment. La. Rules of Prof’l Conduct R. 8.1(c); see also Model Rules of Prof’l Conduct R. 8.1 cmt. 2 (Am. Bar Ass’n) (stating that the rule is “subject to the provisions of the Fifth Amendment”). Louisiana lawyers who ignore subpoenas from the Office of Disciplinary Counsel or otherwise fail to cooperate in disciplinary investigations have been severely sanctioned by the Louisiana Supreme Court. See, e.g., In re Gray, 234 So. 3d 65 (La. 2018) (imposing one-year suspension because “respondent made no effort to respond to the ODC’s repeated inquiries, which is particularly troublesome since respondent was an elected official throughout the ODC’s investigation”); In re Harvey, 289 So. 3d 1000 (La. 2020); In re Mendy, 243 So. 3d 538, 541 (La. 2019); In re Ashley, 243 So. 3d 547, 549 (La. 2018); In re Hicks, 255 So. 3d 1021, 1023 (La. 2018); In re LaMartina, 235 So. 3d 1061 (La.2017); In re Murphy, 224 So. 3d 947 (La. 2017); In re Browing-Manning, 185 So. 3d 728 (La. 2016) (suspending lawyer for one year and one day for failing to expunge client’s arrest record and then failing to cooperate with ODC in its investigation); In re Ford, 141 So. 3d 800 (La. 2014); In re Barrios, 108 So. 3d 742, 746 (La. 2013); In re Dunn, 98 So. 3d 289, 295 (La. 2012); In re Cooper, 23 So. 3d 886 (La. 2009); In re Hatfield, 2 So.3d 425 (La. 2009).  Additionally, if a lawyer does not answer the formal charges filed against the lawyer by the ODC, the factual allegations of the charges will be deemed admitted. In re Boutté, 252 So. 3d 862 (La. 2018); In re Lester, 133 So. 3d 1248, 1253 (La. 2014); see also In re Richard, 188 So. 3d 1035, 1038 (La. 2016) (suspending lawyer for one year and one day for failing to cooperate with Office of Disciplinary Counsel); In re Brown-Mitchell, 167 So. 3d 545 (La. 2015) (disbarring lawyer for conversion of client funds by failing to remit fees totaling $1,500 to client, then failing to respond to ODC); In re Armstrong, 164 So. 3d 817 (La. 2015) (disbarring lawyer for converting client funds and then failing to cooperate with ODC).

The Self-Incrimination Clause of the Fifth Amendment, as incorporated in the Fourteenth Amendment, extends to disciplinary proceedings. Spevack v. Klein, 385 U.S. 511 (1967). However, there must be a reasonable basis for the assertion of the privilege. As the United States Supreme Court explained in Hoffman v. United States, 341 U.S. 479, 486 (1951), “[t]he witness is not exonerated from answering merely because he declares that in so doing he would incriminate himself—his say-so does not of itself establish the hazard of incrimination.” Rather, the protection of the Fifth Amendment must be confined to instances where the witness has reasonable cause to apprehend danger from a direct answer. Id. Although a lawyer can assert the protections of the Fifth Amendment when appropriate, the assertion must be “reasonable under the facts.” The Louisiana Supreme Court has found such an assertion to be an unreasonable “failure to cooperate” when the respondent was not reasonably in jeopardy because of a previous guilty plea. See In re Holliday, 15 So.3d 82 (La. 2009).

Disciplinary Sanctions

Depending on the nature of the violation of this rule, the applicable standard for determining an appropriate sanction is governed by either ABA Standard for Imposing Lawyer Sanctions standard 7.0 (violations of duties owed to the profession), or standard 5.1 (failure to maintain personal integrity). See ABA Stds. for Imposing Lawyer Sanctions stds. 7.0-7.4 (1986); id. stds. 5.1-5.14.

In most cases of misconduct in connection with the bar admissions or disciplinary process, the following sanctions are generally appropriate (absent aggravating or mitigating circumstances): disbarment, when the lawyer knowingly engages in conduct that is a violation of a duty owed to the profession with the intent to obtain a benefit for the lawyer or another, and causes serious or potentially serious injury to a client, the public, or the legal system; suspension, when the lawyer knowingly engages in conduct that is a violation of a duty owed to the profession, and causes injury or potential injury to a client, the public, or the legal system; reprimand, when the lawyer negligently engages in conduct that is a violation of a duty owed to the profession, and causes injury or potential injury to a client, the public, or the legal system; and, admonition, when the lawyer engages in an isolated instance of negligence that is a violation of a duty owed to the profession, and causes little or no actual or potential injury to a client, the public or the legal system. See ABA Stds. for Imposing Lawyer Sanctions stds. 7.0-7.4 (1986).

However, in cases involving misconduct in connection with the bar admissions or disciplinary process involving dishonesty, deceit, misrepresentation or similar conduct that calls into questions the lawyer’s fundamental fitness to practice law, the following sanctions are generally appropriate (absent aggravating or mitigating circumstances): disbarment, when the lawyer 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 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 the lawyer’s fitness to practice law. See ABA Stds. for Imposing Lawyer Sanctions stds. 5.1-5.14 (1992).

Notes

This page was updated on February 1, 2021.