While the Louisiana Attorney Disciplinary Board Office of Disciplinary Counsel has always kept busy, the types of complaints it focuses on does change. Of course, there is a steady stream of complaints from unhappy clients who are unsatisfied with the progress of their cases or who are disappointed with results. But what else is going on at ODC? Here are a few observations . . . .
Improper Advertising and Solicitation
Historically, the Office of Disciplinary Counsel has not aggressively investigated and prosecuted lawyers for violations of the lawyer advertising rules. For example, in 2020 there were two complaints lodged with the ODC that alleged improper advertising or solicitation. Likewise, in 2021, there were only three complaints related to improper advertising or solicitation. In 2022, however, the ODC received or opened 53 complaints related to improper advertising or solicitation.
The increase in the number of disciplinary complaints related to lawyer advertising is in direct response to the Louisiana Supreme Court’s 2022 amendments to the Louisiana Rules of Professional Conduct. Effective January 1, 2022, lawyers must include an LSBA filing number on all non-exempt advertisements. See La. Rules of Prof’l Conduct, r. 7.2(a)(3). There were 13 cases in 2022 in which the respondent lawyer failed to include the required content of the LSBA filing number. We also saw nine additional cases of lawyer misconduct for failing to include the required content of a lawyer’s name or an office location. See La. Rules of Prof’l Conduct, 7.2(a)(1) and (2).
Want to avoid a disciplinary complaint for improper lawyer advertising or solicitation? Familiarize yourself here or here with the complex and confusing lawyer advertising rules. Consult with ethics counsel to review your advertisements prior to publication. Always pre-file non-exempt advertisements with the LSBA and include a lawyer’s name, office location, and the LSBA filing number.
Sanctions for Misconduct
The available sanctions for lawyer misconduct range from permanent disbarment to a private admonition. Both the Louisiana Supreme Court and the ODC have recently displayed a decreased interest in pursuing the sanction of permanent disbarment. Indeed, the Louisiana Supreme Court amended the rules related to permanent disbarment to require fact finders to make certain findings about the lawyer and the misconduct prior to recommending or imposing the sanction. The Louisiana Supreme Court and the ODC’s hesitation in pursuing the sanction of permanent disbarment is confirmed by the statistics on the number of sanctions imposed by the Court in 2022. In 2020, the Court imposed the sanction of permanent disbarment in 10 cases. This number stands in stark contrast to the Court’s imposition of permanent disbarment in two cases in 2021 and only one case in 2022.
In contrast to the decreased imposition of the sanction of permanent disbarment, the Louisiana Attorney Disciplinary Board doubled the number of cases in which a private admonition was imposed for lawyer misconduct. A private admonition is an appropriate sanction in cases of minor misconduct, when there is little or no injury to a client, the public, the legal system, or the profession, and when there is little likelihood of repetition by the lawyer. Notably, a private admonition cannot be imposed after formal charges have been issued.
There are at least two explanations for the increase in the imposition of private admonitions. On the one hand, perhaps the ODC is having mercy on Louisiana lawyers. It is possible that the ODC is recognizing that some types of lawyer misconduct previously publicly prosecuted is more appropriately resolved through primate admonitions. On the other hand, perhaps the ODC is ramping up its prosecutions for minor lawyer misconduct. It is possible that the ODC is now prosecuting violations of the rules that is has not historically shown interest in pursuing. For example, there were 13 cases during 2022 in which a lawyer failed to include an LSBA filing number on an advertisement and violated newly enacted provision of Rule 7.2(a)(3). As this is a newly enacted provision, there were no cases of Rule 7.2(a)(3) violations in past years. Several of these cases were resolved through the imposition of a private admonition (and we know this because we represented a few of these lawyers). Other than the increase in advertising violations, the statistics on the number of cases in which a lawyer violated a particular rule over the last several years remained relatively consistent. Only time will tell if Louisiana lawyers are getting lucky or if the ODC is looking for more rule breakers.
From 2014 through 2021, there were an average number of 22 cases in which a lawyer failed to act with diligence in representing a client. In 2022, however, there were only eight cases. This is significant as the Louisiana Office of Disciplinary Counsel alleges violations of this rule in a significant percentage of the cases it prosecutes. A lawyer commits infractions of this rule when they negligently or intentionally ignore matters that warrant attention.
Great job Louisiana lawyers! As a reminder, to avoid diligence-related problems, a lawyer should implement office practices and procedures to ensure that critical deadlines are properly calendared, active files are periodically reviewed, and all clients are regularly informed about the progress of their matters. Furthermore, a lawyer should:
- Regularly review files.
- Use electronic to-do lists with automatic email, text message and pop-up reminders.
- Consider adopting workflow procedures like David Allen’s Getting Things Done method, among many others
- Don’t procrastinate.
Failure to Return or Entrust Unearned Fees
Rule 1.5(f)(5) requires a lawyer to “immediately refund to the client the unearned portion” of a fee, and to “deposit into a trust account an amount representing the portion reasonably in dispute.” Some lawyers who find themselves in fee disputes with their clients fail to return any amounts or to make the required trust deposit. Often this is because the lawyer has already spent the fixed fee or because the lawyer firmly believes that the lawyer earned the entire fee. Those excuses simply don’t work with ODC.
Categories of Complainant
Most complaints are filed by past clients. In 2022, there were 732 complaints filed by past clients. This number is up from 573 complaints in 2020 and 596 complaints in 2021. Despite this, Louisiana lawyers should not worry that past clients are filing disciplinary complaints with increased vigor. The statistics show that this number simply fluctuates year to year. For example, in 2014, former clients filed 1045 complaints against their lawyers and, in 2015, past client complaints totaled 1101 complaints.
There was a significant increase in the number of complaints filed by judges, opposing counsel, and unrelated lawyers or unrelated parties:
Improper Handling of Trust Funds
Rule 1.15 requires a lawyer to segregate property belonging to others, to maintain separate accounting records for such property, and to preserve all records for at least five years after termination of the representation to which they relate. Although Rule 1.15 covers all types of client and third-party property, its most common application is to funds received by a lawyer. Thus, the rule forbids a lawyer from commingling personal funds with those of clients and third parties. A lawyer typically avoids commingling by keeping client funds in an IOLTA trust account.
ODC is conducting more and more audits of the trust accounts of Louisiana lawyers. This is partly because it receives notices of trust-account overdrafts from Louisiana banks and partly because it has on staff a full-time accountant responsible for auditing lawyer trust accounts.
To avoid trust account related problems, and to be prepared to respond promptly to ODC requests for trust information, Louisiana lawyers should:
- Avoid trust account overdrafts.
- Keep copies of all trust account bank statements and canceled checks.
- Keep copies of all disbursement sheets in all cases in a file separate from the client file.
- Keep copies of individual client ledgers.