While the Louisiana Attorney Disciplinary Board Office of Disciplinary Counsel has always kept busy, the types of complaints it handles constantly changes. 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. In addition to these, however, ODC has seen an uptick in other types of complaints. What’s trending in Louisiana lawyer disciplinary complaints? Here are a few observations . . . .
Unauthorized Practice While Ineligible
Rule 1.1 requires a lawyer “to comply with the minimum requirements of continuing legal education,” and “with all of the requirements of the Supreme Court’s rules regarding annual registration, including payment of Bar dues, payment of the disciplinary assessment, timely notification of changes of address, and proper disclosure of trust account information or any changes therein.” Rule 5.5 prohibits a lawyer from engaging in the unauthorized practice of law.
A surprising number of Louisiana lawyers fail to pay Bar dues or to obtain their CLE credits timely. Once that happens, the Louisiana Supreme Court declares the lawyer to be “ineligible” to practice law. Any practice thereafter is “unauthorized.” The court typically imposes a year-and-a-day suspension as the baseline sanction for this misconduct.
For example, in the matter of In re John D. Ray, the court suspended the respondent for a period of one year and one day, with all but sixty days deferred. Over the course of several years, Mr. Ray failed timely to pay bar dues and disciplinary assessments. On one occasion, he was declared to be MCLE ineligible. He practiced law during most of his periods of ineligibility.
Pay your Bar dues. Get your CLE.
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.
Failure to Return Client Files
Rule 1.16(d) provides that “[u]pon written request by the client, the lawyer shall promptly release to the client or the client’s new lawyer the entire file relating to the matter.” The rule is clear: “[t]he lawyer may retain a copy of the file but shall not condition release over issues relating to the expense of copying the file or for any other reason.” A discharged lawyer, however, is often angry about the discharge. As a result, the lawyer might needlessly delay turning over the file to the former client. While ODC typically dismisses such complaints when the lawyer releases the file, this problem should be avoided in the first place by releasing the client’s file promptly.
Improper Notarial Practices
Nearly all Louisiana lawyers are also notaries. Although there is no rule of conduct that specifically applies to lawyer-notaries, Rule 8.4 prohibits a lawyer from engaging in conduct “involving dishonesty, fraud, deceit or misrepresentation,” or “that is prejudicial to the administration of justice.” Louisiana lawyers run afoul of this rule when they forge signatures, when they serve as notaries on acts or affidavits for absent signatories or when they fail to verify the identities of those who are present.
For example, in the matter of In re Daniel A. Webb, the court (by consent) suspended the respondent for a period of six months, all deferred. He improperly placed his wife’s signature on a mortgage document and an IRS form without her consent. Further, he instructed another lawyer in his law office to notarize what appeared to be, but was not, his wife’s signature on a mortgage document.
Likewise, in the matter of In re Larry E. Pichon, the court (by consent) publicly reprimanded the respondent, who admitted that during his representation of a client, he attempted to violate the Rules of Professional Conduct by requesting that the opposing party sign documents outside of his presence and return them to him to be notarized.
Avoiding this problem is easy: when acting as a notary, act like a notary. Demand that all signatories be present, ask everyone for a valid ID and write their ID numbers under each signature.
Lawyer Criminal Conduct
Rule 8.4(b) prohibits a lawyer from committing a criminal act “especially one that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects.” The Louisiana Supreme Court routinely disbars—or permanently disbars—lawyers convicted of crimes involving fraud and violence. This is true even as to crimes for which the lawyer was never convicted.
For example, in the matter of In re Charles Williams, 85 So. 3d 583 (La. 2012), a lawyer killed his friend at a bar in Benton and claimed self-defense. The Bossier Parish District Attorney’s Office declined to prosecute the matter. After a hearing, the LADB found that the lawyer did not act in self-defense, but rather, committed murder. The Louisiana Supreme Court permanently disbarred him.
The takeaway? Don’t kill, steal, defraud or otherwise commit crimes against public morality, decency and good order.
Rule 1.1 requires lawyers to provide competent legal services. The population of Louisiana continues to age, including its lawyer population. With aging populations comes an increase in the incidence of age-related dementia and disability. Perhaps not surprisingly, the ODC has seen an increase in complaints against aging lawyers who continue to practice into their late 70s and 80s. ODC has referred the lawyers subject to some of these cases to the Lawyers Assistance Program for neuropsychological evaluations and assistance.
Failure to Cooperate with ODC
Rule 8.1(c) requires a lawyer to cooperate with ODC in any disciplinary investigation. Oddly enough, however, more and more lawyers ignore letters from ODC and fail to comply with ODC requests for case-related documents and information. This is baffling.
Don’t throw away the letter from ODC. Answer it.
Sex with Clients
Although Louisiana has not adopted the ABA Model Rule that expressly prohibits sex with clients, see ABA Model Rule of Professional Conduct 1.8(j), the Louisiana Supreme Court has disciplined lawyers who have violated Louisiana Rule 2.1, among others, by compromising their “independent professional judgment” and emotional detachment through becoming involved in inappropriate personal or sexual relationships with their clients. In two disciplinary proceedings, In re Ashy, 721 So. 2d 859 (1998), and In re Schambach, 726 So. 2d 892 (La. 1999), the court acknowledged that the current Louisiana Rules of Professional Conduct include no provisions specifically prohibiting Louisiana lawyers from engaging in sexual relations with their clients. Nevertheless, in each case, the court concluded that the particular sexual relationship in issue substantially interfered with the lawyer’s professional responsibilities. See also In re DeFrancesch, 877 So. 2d 71 (La. 2004) (sanctioning lawyer for inappropriate sexual relations with client despite the existence of a preexisting relationship); In re RylandI; 985 So. 2d 71, 73-74 (La. 2009) (suspending a lawyer 90 days for engaging in a consensual sexual relationship with the client while representing the client in a divorce proceeding despite the absence of actual harm).
Despite this prohibition, ODC has seen a rise in complaints against lawyers who have engaged in inappropriate relationships with their clients. Avoiding this problem should be easy: if a lawyer begins to form a relationship with a client the lawyer must withdraw from the client’s representation. Better yet, avoid the relationship in the first place.
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 now 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.