On November 1, 2021, the New Jersey Supreme Court censured lawyer Kevin Regan for failing to treat litigants with courtesy and for engaging in professional conduct involving discrimination. In the Matter of Kevin Michael Regan, D-75-085546 (N.J. 2021); see, e.g., NJ Rules of Prol’l Conduct, r. 3.2 (failing to treat with courtesy and consideration all persons involved in the legal process); NJ Rules of Prol’l Cond uct, r. 8.4(g) (engaging, in a professional capacity, in conduct involving discrimination). The respondent in Regan represented his client in her divorce proceedings. After concluding the representation, the respondent forgave the client’s final $100 payment owed to the respondent for the representation. After that:
On October 26, 2018, respondent sent the grievant another e-mail from his law firm address, again with the subject line “Divorce Hearing.” In that correspondence, respondent thanked the grievant for her “nice review,” but also made an inappropriate offer to perform oral sex on her, using extremely graphic language.
In the Matter of Kevin Regan, Docket No. DRB-20-134 (March 22, 2021) (Disciplinary Review Board Recommendation). The respondent lawyer sent his former client a follow-up email several days later stating: “[h]i, I’m very sorry if I was out of line with my message. I think I got my signals from you crossed. Best regards, Kevin.” Id. The former client filed a bar complaint against the respondent and disciplinary proceedings ensued.
At the disciplinary hearing, the respondent lawyer claimed that his former client had made several comments that he interpreted as sexually suggestive. Moreover, the respondent lawyer testified that he believed the former client had overtly signaled her sexual interest to him and engaged in suggestive behavior with him. Finally, the respondent lawyer testified that his “extremely graphic” email was simply a “follow up on what [he] perceived to have been a history of her making advances.” In the Matter of Kevin Regan, Docket No. DRB-20-134 at 8 (March 22, 2021) (Disciplinary Review Board Recommendation).
The Disciplinary Board forcefully rejected the respondent’s explanation:
Respondent’s vulgar October 26, 2018 e-mail to the grievant, his divorce client, was derogatory and demeaning, and constituted sexual harassment, a form of gender discrimination. Respondent, thus, violated RPC 3.2 and RPC 8.4(g).
Like the hearing panel, we reject respondent’s hollow claims that he did not intend to cause harm to the grievant, his female client who had finalized her divorce just two days earlier, and believed that the e-mail would be received favorably. Those subjective intentions and beliefs do not obviate the fact that respondent recklessly sent the sexually explicit October 26, 2018 e-mail from his law firm e-mail address, and the grievant asserted that she was harmed. The grievant represented that the e-mail left her shaking and scared, and constantly examining her surroundings because respondent knew her home address, her work address, and the type of car she drove.
In the Matter of Kevin Regan, Docket No. DRB-20-134 at 16-17 (March 22, 2021) (Disciplinary Review Board Recommendation). The New Jersey Supreme Court publicly censured the respondent lawyer. In the Matter of Kevin Michael Regan, D-75-085546.
Considering the offensive and reckless nature of the conduct, it is possible that a lawyer engaging in similar conduct in Louisiana would be disciplined by the Louisiana Supreme Court. However, the Louisiana Rules of Professional Conduct do not include rules identical to the New Jersey rules relied on by the New Jersey Supreme Court in disciplining the respondent in In the Matter of Kevin Michael Regan. D-75-085546; NJ Rules of Prol’l Conduct, r. 3.2 (failing to treat with courtesy and consideration all persons involved in the legal process); NJ Rules of Prol’l Conduct, r. 8.4(g) (engaging, in a professional capacity, in conduct involving discrimination). For these reasons, if the Louisiana Supreme Court were to discipline a Louisiana lawyer engaging in similar conduct, the Court would have to look to different rules.
Sex with Former and Prospective Clients
As to the sexual nature of the misconduct in Regan, the Louisiana Rules of Professional Conduct do not expressly prohibit sexual relations between a lawyer and client. However, the Louisiana Supreme Court has sanctioned respondents for inappropriate sexual relationships under other rules. For example, in the matter of In re Fuerst, No. 2014-B-0647 (La. Dec. 9, 2014), the court found that Fuerst violated Rules 1.7(a)(2) (in which a conflict of interest exists because of a personal interest of the lawyer) and 8.4(d) (conduct prejudicial to the administration of justice) because he had a sexual relationship with a client.
On December 9, 2014, the Supreme Court of Louisiana considered the propriety of sexual relationships involving a lawyer and various present, current and former clients. See In re Randy J. Fuerst, No. 2014-B-0647 (La. Dec. 9, 2014). The court held that lawyers are not prohibited from engaging in consensual sexual relationships with former and prospective clients—but cannot engage in such relationships with present clients.
Lake Charles lawyer Randy J. Fuerst engaged in multiple consensual sexual relationships with women who had retained him to handle their divorces. The court found that all but one of the relationships were permissible because they did not occur during the existence of an attorney-client relationship. Said the court:
[T]he ODC … argues that the ethical prohibitions against attorney-client sexual relationships should be extended to former clients, and should likewise apply in instances in which the lawyer has been consulted by a prospective client but no attorney-client relationship is ultimately formed. We find no support for this position in the Rules of Professional Conduct.
The court did find that one of the relationships, which took place during the mandatory six-month waiting period to confirm the woman’s divorce, violated Rules 1.7(a)(2) and 8.4(d) because the woman was technically still Fuerst’s client. The court suspended Mr. Fuerst for six months, with all but three months deferred. Two judges concurred and noted that they would have found Fuerst’s relationships with his former clients to be in violation of the Rules of Professional Conduct as well. Importantly, although presented with the opportunity to do so, the court in Fuerst refused to extend the prohibition against lawyer-client sexual relationships to former clients and prospective clients.
Although Louisiana has no prophylactic, per se rule on sex with former clients, lawyers could be sanctioned under Louisiana Rules of Professional Conduct 8.4 for such conduct. This is because the Rules broadly define professional “misconduct.” 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). Another lawyer received a public reprimand after raising his fist and threatening to punch the opposing counsel. In re Spears, 290 So. 3d 645 (La. 2020). 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). Considering this, Rule 8.4 could be employed to discipline a lawyer for sending unwelcome and “extremely graphic” emails to a former client.
Discrimination in a Professional Setting
As to the discriminatory nature of the misconduct, the Louisiana Rules of Professional Conduct do not expressly prohibit engaging in discriminatory conduct in a professional setting. Unlike New Jersey, Louisiana has not adopted the anti-discrimination provisions of Rule 8.4. See New Jersey RPC, r. 8.4; see also ABA Model Rules 8.4(g). Louisiana has not adopted a similar provision, in part, because it is unnecessary and potentially violative of the First Amendment to the United States Constitution.
First, Louisiana Rules of Professional Conduct 8.4 broadly defines professional “misconduct.” Professional “misconduct” includes conduct that is “prejudicial to the administration of justice.” La. Rules of Prof’l Conduct r. 8.4(d). 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). A lawyer who had a physical altercation in the judge’s chambers was found to have engaged in conduct prejudicial to the administration of justice. In re DeJean, 264 So. 3d 424 (La. 2019). A lawyer who filed recusal motions against a judge was suspended for one year and one day. In re Nelson, 295 So. 3d 922 (La. 2020). 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). Louisiana’s rule regulating “professional misconduct” is likely broad enough to capture much of the conduct prohibited by such anti-discrimination provisions.
Second, an anti-discrimination rule similar to the New Jersey rule or the ABA Model Rule 8.4(g) may be unconstitutional. In 2017, the Louisiana Attorney General’s office opined about the constitutionality of a proposed anti-discrimination amendment to the Louisiana Rules of Professional Conduct. See Op. La. Att’y Gen’l No. 17-0114 at 9 (Sep. 8, 2017). The attorney general concluded that the proposed amendment would not only be unconstitutional, but also unnecessary in light of the current regulatory framework:
The existing Rules of Professional Conduct and Louisiana laws against discrimination address the perceived problems identified in the Subcommittee’s report. There has been no demonstration that there is a need for proposed Rule 8.4(h) in Louisiana. Rule 8.4(d) addresses actions of lawyers which are prejudicial to the administration of justice and includes actions which are prejudicial to the administration of justice because they are discriminatory.
Id. at 9.
Louisiana has not adopted an anti-discrimination provision similar to New Jersey or the ABA Model Rules. However, the broad reach of Rue 8.4(d) could capture a lawyer’s discriminatory misconduct.
A lawyer is prohibited from engaging in sexual relationships with a client unless the sexual relationship predates the formation of the client-lawyer relationship. See Rule 1.8(j). According to the New Jersey Supreme Court, lawyers can be disciplined for trying to initiate a sexual relationship with a former client. See In the Matter of Kevin Michael Regan, D-75-085546; NJ Rules of Prol’l Conduct. Louisiana lawyers who attempt to initiate a sexual relationship with an unwilling former client could also face discipline in Louisiana, albeit on a different basis than on the respondent in Regan.