recent developments in legal and judicial ethics - …...2018/02/07 · the fields of legal ethics,...

Recent Developments in Legal and Judicial Ethics

Scott J. Crichton Associate Justice, Supreme Court of Louisiana

Dane S. Ciolino Alvin R. Christovich Distinguished Professor of Law

Loyola University New Orleans College of Law

Crichton-Ciolino of 30 Legal and Judicial Ethics

Scott. J. Crichton

Scott Crichton is serving his fourth year as Associate Justice of the Supreme Court of Louisiana, having qualified without opposition on August 22, 2014. His ten-year term began January 1, 2015. Scott is co-chair of the Louisiana Judicial College and also serves on the Supreme Court Committee on Judicial Ethics.

Scott is on the adjunct faculty of Tulane Law School where he co-teaches Contemporary Issues in Legal Ethics and serves as a guest lecturer for Advanced Appellate Advocacy. He is a member of the teaching faculty for the LSU Law Center Trial Advocacy Program and serves on the Board of Directors of the Louisiana Center for Law and Civic Education.

Prior to his election to the Supreme Court, Scott served 24 years as a judge with the First Judicial District Court (Shreveport/Caddo Parish), presiding over 25,000 cases in both the civil and criminal divisions. By order of the Louisiana Supreme Court, Scott previously served one cycle as a judge pro tempore for the First Circuit Court of Appeal.

Scott is a past president of the Louisiana District Judges Association; a past member of the Advisory Committee to the Supreme Court on Revision of the Judicial Canons, the Louisiana Judicial College Board of Governors, and the Criminal Best Practices Committee. He has served numerous terms as chair or co-chair of the Shreveport Bar Association Continuing Legal Education Committee and has served on the CLE Committee of the Louisiana State Bar Association. Scott is certified by the National Judicial College in program design and has taught over 100 CLE hours to lawyers and judges. He is also a graduate of the inaugural class of the Louisiana Judicial Leadership Institute. From 2007 to 2014, on a regular basis, hosted an educational program for teenagers at various high schools on the law, choices and consequences.

Growing up in Minden, Scott completed North Carolina Outward Bound School (1971); graduated from The Webb School in Bell Buckle, Tennessee (1972); Louisiana State University in Baton Rouge (Bachelor of Science, 1976); and Paul M. Hebert LSU Law Center ( Juris Doctor, 1980). During the 1980s, he served as an assistant district attorney for Caddo Parish, maintained a civil practice, and served as an adjunct instructor of Business Law at LSU-Shreveport.

Scott is a member of St. Mark’s Episcopal Church in Shreveport, where he served a three-year term on the vestry; he is a member of the Board of Trustees of The Webb School and in 2017, was inducted into its Distinguished Alumni Society.

Scott, age 64, and his wife, Susie, now reside in Webster Parish, and have two sons – both of whom are lawyers.


Dane S. Ciolino

Dane S. Ciolino serves as the Alvin R. Christovich Distinguished Professor of Law at Loyola University New Orleans College of Law. His current scholarly and teaching interests at Loyola include Professional Responsibility, Evidence, Advocacy, and Criminal Law.

Professor Ciolino graduated cum laude from Rhodes College in 1985, and magna cum laude from Tulane Law School in 1988, where he was inducted into Order of the Coif and selected as Editor in Chief of the Tulane Law Review. After graduation, he clerked for the United States District Court, Eastern District of Louisiana, and practiced law at Cravath, Swaine & Moore LLP in New York City, and Stone Pigman Walther Wittmann LLC, in New Orleans.

He has served as reporter to the Louisiana State Bar Association Ethics 2000 Committee, as chairperson of a Louisiana Attorney Disciplinary Board Hearing Committee, as Chair of the Lawyer Disciplinary Committee of the United States District Court for the Eastern District of Louisiana, and as a member of various Louisiana State Bar Association committees including the Professionalism Committee, the Lawyer & Judicial Codes of Conduct Committee, and the Ethics Advisory Service Committee. His weblog, Louisiana Legal Ethics, is located at https://lalegalethics.org/.

Professor Ciolino engages in a limited law practice and in law-related consulting, principally in the areas of legal ethics, lawyer discipline, judicial discipline, and federal criminal law. He represents clients in disciplinary matters before the Louisiana Supreme Court, the Louisiana Attorney Disciplinary Board, and the Louisiana Judiciary Commission. He also handles legal malpractice cases, lawyer disqualification motions and lawyer fee disputes. Finally, he consults and serves as an expert witness in the fields of legal ethics, legal fees and the standards of care and conduct governing lawyers. Professor Ciolino can be reached by telephone at (504) 975-3263, and by email at [email protected].

For additional biographical information, visit https://daneciolino.com/.

Prof. Ciolino’s legal ethics book, Louisiana Legal Ethics: Standards and Commentary (2018), is available for purchase at https://lalegalethics.org/ and at Amazon.com.

Register for Professor Ciolino’s free monthly Louisiana Legal Ethics Newsletter at his blog Louisiana Legal Ethics found at https://lalegalethics.org/ or on his newsletter subscription page: Subscribe to Louisiana Legal Ethics Newsletter.


PROPOSALS/AMENDMENTS OF NOTE

PROPOSED RULE 8.4(H) In September 2016, a subcommittee of the LSBA Rules of Professional Conduct Committee was formed and appointed to review ABA Model Rule 8.4(g):1

It is professional misconduct for a lawyer to: (g) engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law. This paragraph does not limit the ability of a lawyer to accept, decline or withdraw from a representation in accordance with Rule 1.16. This paragraph does not preclude legitimate advice or advocacy consistent with these Rules.

The breadth of the ABA Model Rule precipitated significant discussion nationwide, for reasons including:

(1) The Rule and its comments broadly define “harassment” to include any “derogatory or demeaning verbal conduct” by a lawyer relating to a person’s “race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status.”

(2) The rule subjects to discipline not only a lawyer who knowingly engages in harassment or discrimination, but also a lawyer who “reasonably should know” the conduct is harassment or discrimination.

(3) The categories of persons covered by the rule is broad. After considering the Model Rule, a subcommittee submitted a recommendation to add a Rule 8.4(h) to the Louisiana Rules:

It is professional misconduct for a lawyer to: (h) engage in conduct in connection with the practice of law that the lawyer knows or reasonably should know involves discrimination prohibited by law because of race, color, religion, age, gender, sexual orientation, national origin, marital status, or disability. This Rule does not prohibit legitimate advocacy when race, color, religion, age, gender, sexual orientation, national origin, marital status, or disability are issues, nor does it limit the ability of a lawyer to accept, decline or withdraw from a representation in accordance with Rule 1.16.

1 Because Louisiana already has a Rule designated as 8.4(g), the subcommittee suggested the proposed Louisiana rule be designated as Rule 8.4(h).


According to the subcommittee, the proposed rule contains certain changes from the ABA Model Rule, including:

• Contains language that clearly limits application of the rule to conduct of a lawyer “…in connection with the practice of law…” earlier in the text of the Rule.

• The categories/bases of discrimination best suited to a Louisiana rule would be those that are well-recognized and reasonably defined by substantive law, rather than those for which there may be little to no substantive case law in existence.

• Some form of “legitimate advocacy” exception should be incorporated into the proposed rule, but the Louisiana rule should be “clearer and less ambiguous in this regard” than the Model Rule.

In October 2017, the LSBA Rules Committee debated the proposed amendment, ultimately voting 7-4 to make “no recommendation.” Professor Dane Ciolino, in his blog Louisiana Legal Ethics, proposes the following language:

It is professional misconduct for a lawyer to (h) engage in conduct in connection with the practice of law that the lawyer knows is unlawful discrimination prohibited by federal, state, or local law. This Rule does not prohibit legitimate advocacy when a protected personal characteristic is relevant to the representation, nor does it limit the ability of a lawyer to accept, decline or withdraw from a representation in accordance with Rule 1.16.

At least 25 other states have adopted a similar rule. Note that Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating against employees on the basis of race, sex, color, national origin or religion. (It generally applies to employers with 15 or more employees.) In addition, note that La. R.S. 23:301, et. seq. sets forth the Louisiana Employment Discrimination Law—it prohibits discrimination in employment on the basis of age, race, color, sex, religion or national origin.

ROPC 1.5(f)(2): The Court is currently studying an amendment proposed to Rule of Professional Conduct 1.5(f)(2). Rule 1.5(f)(2), in its current form, enables attorneys who utilize “flat fee” payment arrangements to immediately place the entirety of the fee in an operating account, rather than in a trust account until fully earned. The Louisiana Client Assistance Fund has paid many claims as a result of attorneys placing fees directly in an operating account (and subsequently dying or being otherwise unable to complete the representation), and requested that the ROPC Committee study Rule 1.5(f)(2) and consider proposing an amendment that would require attorneys to place all, or at least a portion, of the flat fee in a trust account, where it could only be withdrawn when the representation was complete. Many attorneys, particularly sole practitioners and members of the criminal defense bar, are opposed to an amendment of this nature. The Court


is looking to strike a balance between protecting the public and permitting attorneys to financially structure their practices in a minimally invasive manner. Code of Professionalism: On March 27, 2018, the Supreme Court approved a revised Code of Professionalism for Attorneys that was proposed by the LSBA’s Committee on the Profession, and approved at the House of Delegates Meeting in Sandestin. Revision of Supreme Court Rule XXX, Regulation 3.21 – Order Signed 5/15/17: (CLE Credit for Pro Bono Representation): The Court adopted the proposal of Louisiana Appleseed to award CLE credit for pro bono representation: “Credit may also be earned through providing uncompensated pro bono legal representation to an indigent or near-indigent client or clients.”

• The MCLE Committee, which administers the regulation, found that a number of worthy pro bono programs did not qualify, because they do not require an indigency determination. These include “Wills for Heroes” (which provides legal services to veterans) and “Lawyers in Libraries,” administered by the LSBA.

• The revision to the regulation states: “Credit may also be earned through providing uncompensated pro bono legal representation to an indigent or near-indigent client or clients, or through other activities approved by the Committee.” This revision retains all requirements other than the indigency requirement.

Revision of Supreme Court Rule XVII (Bar Admissions):

• Rule XVII, Section 3: Section 3 of Rule XVII enumerates the seven requisites for admission to the Bar. A new paragraph has been added at the end of Section 3 to specify the order in which certain requisites shall be met. The new language clarifies that an individual must graduate from law school, receive a written certification of graduation and fitness from the dean of such law school, and submit an application for the bar, including a request for the preparation of a character and fitness report and the payment of all fees, prior to sitting for the written bar examination.

• Rule XVII, Section 7: The Court has removed “Negotiable Instruments” as a testing subject on the Bar Examination. This recommendation follows the National Conference of Bar Examiners (“NCBE”) decision to cease testing in the subject. Effective February 2015, the NCBE removed negotiable instruments from the Multistate Essay Examination, which is currently (or soon to be) administered in 35 states. Some states still require an additional day of examination (a “state day” of testing) and have similarly dropped negotiable instruments as a testing subject, including New York and Indiana.

The Supreme Court’s Committee on Bar Admissions strongly recommended the removal of negotiable instruments for multiple reasons, primarily because a check-based payment system is becoming outmoded. Indeed, many law students report that they have never written


a check. COBA has, in fact, slowly stopped testing negotiable instruments over the past few years.

• Rule XVII, Section 8: Section 8 has been amended to place a 5-year expiration date on a passing bar examination score. Every so often, an applicant sits for the bar exam and passes, but fails to complete the admissions requirements. Sometimes the failure to complete the requirements is due to character and fitness issues, but other times the applicant simply abandons the process even though he or she has passed the examination.

Occasionally, these applicants return after many years and seek admission based on the previously taken (and passed) bar examination. But these individuals have not been mandated to keep current with Louisiana law in any fashion as they have not been admitted to the Bar; therefore, this became a public protection issue. Many states place an expiration date on bar examination scores, with validity ranging between 2 and 5 years. The Supreme Court chose a very generous 5-year period.

RECENT LAWYER DISCIPLINE (AND RELATED) CASES

In re: Lionel Lon Burns, 17-B-2153 (La. 5/1/18), -- So. 3d --: Respondent represented defendants in a civil case. He was unable to attend the pre-trial conference and sent his paralegal. The judge filed a disciplinary complaint against respondent. Respondent initially testified to ODC that he was sick and at home the day of the conference; he was later confronted with docket master sheets showing appearances in two criminal cases in Orleans Parish.

• The Court imposed suspension of one year. The Court found clear and convincing

evidence that respondent facilitated and assisted his paralegal in the unauthorized practice of law. The Court found respondent acted knowingly and violated duties owed to the legal profession, causing actual harm. [Rules 5.5(a), 8.4(a)]

• Genovese, J., joined by Clark, J., dissented, and would order a suspension of one year and one day, with one year probation and ethics school.

• Hughes, J., dissented, and would impose a six month suspension. In re: Randy J. Ungar, 16-0394 (La. 5/20/16), 192 So. 3d 112: Attorney had been suspended from practice of law for three years for withholding information from clients in an effort to hide the amount of a settlement and thereby charge an excessive fee. In May 2012, the attorney filed an application for reinstatement to the practice of law, which was denied. Petitioner again filed for reinstatement three years later, alleging he had complied with the reinstatement criteria set forth in S. Ct. R. XIX, § 24(E). The ODC objected to the application, but the hearing committee and disciplinary board (with dissents) recommended reinstatement.

• The Court reinstated petitioner to the practice of law. The Court found “clear and convincing evidence of petitioner’s compliance with the reinstatement criteria.” He acknowledged his misconduct and took full responsibility for the harm caused.


• Crichton, J. additionally concurred, noting that S. Ct. R. XIX, § 24(E) contains mandatorylanguage (“If the court finds that the lawyer has complied with each of the criteria ofparagraph E, ..., the court shall reinstate or readmit the lawyer and may issue writtenreasons.”). He noted that, “by recognizing that the applicant fully acknowledged hiswrongdoing, offered testimony of remorse, and complied with the Rule XIX, § 24(E)factors, [the Court’s] plenary authority is exercised in a manner consistent with the rulesof this Court and the expectations of attorneys who are subject to discipline.”

In re: Jason Napoli, 2017-0503 (La. 5/19/17), 219 So. 3d 1063: This application concerned an ADA who sent unprompted and inappropriate text messages to a trial judge, complaining about her and requesting she stop speaking negatively about the ADA to his colleagues. Allegedly, the judge referred to the DA and ADA as “Satan” and “Lucifer.” Even though the trial judge ordered the ADA to stop texting her, the ADA continued to do so. The writ application was denied.

• Crichton, J., concurred in the denial, but observed that this “silly drama underminesserious business—the efficient administration of criminal justice.” He also wrote that“[t]his reality-show behavior has no place in our criminal justice system, which should beless burdened by unprofessional actors and more supported by lawyers who uphold theiroath to serve the people of Louisiana.”

State v. Dixon, 17-KK-0556 (La. 5/19/17), 220 So. 3d 697: The Court denied the writ in this criminal case. During the trial, defense counsel used a wig during his closing argument to demonstrate the impossibility of the victim being dragged by her hair, and the trial judge found defense counsel in contempt of court. In her written reasons, the trial judge observed that “[n]o attempt was made to use the wig demonstratively, other than to look ridiculous” and that defense counsel was “clearly mimicking, mocking and belittling the alleged victim.”

• Crichton, J., concurred in the denial, remarking: “While zealous and passionateadvocacy is commendable, especially in closing argument of a criminal jury case, it mustbe within the bounds of appropriate decorum established by law and the Rules ofProfessional Conduct. Because the trial judge observed this behavior, in my view, she wasin the best position to determine whether defense counsel crossed that line, seegenerally La. C.Cr.P. art. 21(A), and engaged in contemptuous behavior.”

In re: Committee on Bar Admissions CFN-8972, 14-1338 (La. 10/19/16): Petitioner passed the bar exam in July 2003, but was not certified for admission based on arrests for felony aggravated battery and hit and run, and a lack of candor in disclosing the arrests. Petitioner reapplied in 2005, and a commissioner was appointed to take character and fitness evidence. By 2014, petitioner had not taken any action to move the matter to resolution, and his application was dismissed without prejudice. Later in 2014, he again sought admission to the bar. After several procedural hurdles, including a remand by the LASC for additional hearings, the commissioner filed a report recommending petitioner should be conditionally admitted subject to his compliance with the terms and conditions of a JLAP agreement.


• The Court concluded that petitioner is eligible to be admitted to the practice of law, subject to a one-year diagnostic monitoring agreement with JLAP, an additional 12.5 hours of CLE for each year of the probationary period, and LSBA Ethics School.

• Weimer, J. dissented, and would deny the application and permit petitioner to reapply in one year. He argued that the petitioner did not show by “clear and convincing evidence that his or her character has been rehabilitated and that such conduct, inclination or instability is unlikely to recur in the future.” S. Ct. R. XVII, § 5(F).

• Crichton, J. dissented, noting that he would not impose JLAP monitoring “under the particular circumstances of the case,” including no medical testimony or documentary evidence that indicates a JLAP monitoring contract was warranted, and the fact that the petitioner’s alcohol abuse was over a decade old. He found there was “no basis in the record to treat this petitioner as if he were alcohol dependent or actively abusing alcohol by requiring a JLAP monitoring agreement.”

• Hughes, J., dissented, for the reasons assigned by Justice Crichton.

In re: Maxwell, 16-0989 (La. 6/3/16), 193 So. 3d 1169: Respondent was arrested and charged with driving under the influence of alcohol. Before the institution of formal charges by the ODC, respondent and the ODC submitted a joint petition for consent discipline.

• The Court imposed a suspension of one year and one day, with the entire suspension deferred. The Court also ordered that respondent be placed on probation for a period to coincide with the 5 year term of his monitoring agreement with JLAP. The Court further ordered that respondent pay all costs and expenses.

• Weimer, J. concurred because the respondent agreed to the 5-year agreement as part of the joint petition for consent discipline, but questioned whether a full 5-year recovery agreement was necessary to serve the goals of the attorney disciplinary system.

• Crichton, J. additionally concurred, noting that because the lawyer took immediate

steps to address the issue and atone for his actions, he would recommend a public reprimand but-for the lawyer’s consent to this sanction.

In re: Committee on Bar Admissions CFN-461218, (La. 10/15/18), -- So. 3d --: Petitioner had previously been denied admission to the bar. 17-BA-0867 (La. 6/16/17), 221 So. 3d 835. In a concurrence to that denial, Justice Crichton wrote that he agreed with the decision due to the applicant’s “historical pattern of disregarding court orders, bench warrants, and attachments” which he believed showed a “complete disdain for the law.”

• The Court granted conditional admission, after the requisite period of one year passed, subject to a period of probation.

• Crichton, J., additionally concurred, noting: “[F]or those initially declined admission for character and fitness concerns, a demonstrated effort of rehabilitative


work weighs heavy in reconsideration for admission to this noble profession. . . . Since this Court's 2017 denial of petitioner's previous application for admission, petitioner has diligently devoted time and effort to personal and professional development and established good moral character. Consequently, I wholeheartedly agree with the Court's decision to grant this petitioner conditional admission, subject to a probationary period of one year.”

JUDICIAL CONDUCT

Two recent ethics advisory opinions from the Supreme Court Committee on Judicial Ethics address use of social media.

• Opinion No. 271 (Apr. 14, 2016): The committee considered a request regarding the ethics of a judicial candidate providing a link on his/her personal website or social media page to the campaign website or social media page, when the campaign page will be used, in part, for fundraising purposes. The committee responded in the affirmative, providing that certain precautions must be taken to avoid any violation of Judicial Canon 7A(6), which prohibits judicial candidates from personally soliciting or accepting campaign contributions. The committee suggested certain precautions, including ensuring the campaign committee’s website is not solely used for fund solicitation purposes and that the link directs individuals to the home page of the campaign committee’s website and not directly to any contribution payment page.

• Opinion No. 272 (Apr. 14, 2016): The committee considered a request regarding whether it is ethically permissible for a judicial candidate to use social media in his or her campaign for judicial office. The committee responded in the affirmative, but cautioned that judicial candidates must be mindful of Canon 7A(2), 7A(6), 7A(9), 7A(11), and 7B(1). The committee also noted, in a related question, that the social media account does not have to be used solely for campaign purposes. A personal media account may be used, with the same cautions as stated above.


Dane S. Ciolino November 16, 2018

Facebook “Friendship” With Lawyer No Basis forDisqualifying Judge

lalegalethics.org/facebook-friendship-with-lawyer-no-basis-for-disqualifying-judge

On November 15, 2018, the Florida Supreme Court finallyresolved a conflict among Florida lower courts on the issueof whether Facebook “friendship” is a sufficient basis forjudicial disqualification. See Law Offices of Herssein andHerssein, P.A. v. United Services Automobile Assoc’n, No.SC17-1848 (Fl. Nov. 15, 2018). Said the Florida SupremeCourt: “We hold that an allegation that a trial judge is a Facebook ‘friend’ with an attorneyappearing before the judge, standing alone, does not constitute a legally sufficient basisfor disqualification.” Id. at 2.

The Conflicting Opinions

In 2012, a Florida appellate court ruled that having a lawyer as a Facebook friendsundermines “confidence in the judge’s neutrality” and gives rise to a “well-founded fearof not receiving a fair an impartial trial.” See Domville v. State, 103 So. 3d 184, 186 (Fla.Ct. App. 4th Dist. 2012). Subsequent opinions, however, expressed skepticism.In Chance v. Loisel, No. 5D13-4449 (Fla. Ct. App. 5th Dist. 2014), another Florida courtnoted that:

We have serious reservations about the court’s rationale in Domville. The word “friend” onFacebook is a term of art. A number of words or phrases could more aptly describe theconcept, including acquaintance and, sometimes, virtual stranger. A Facebook friendshipdoes not necessarily signify the existence of a close relationship. Other than the publicnature of the internet, there is no difference between a Facebook “friend” and any otherfriendship a judge might have. Domville’s logic would require disqualification in casesinvolving an acquaintance of a judge. Particularly in smaller counties, where everyone inthe legal community knows each other, this requirement is unworkable and unnecessary.Requiring disqualification in such cases does not reflect the true nature of a Facebookfriendship and casts a large net in an effort to catch a minnow.

Likewise, yet another Florida appellate court ruled that a district judge may preside overa civil action even though she is Facebook friends with a lawyer appearing beforeher. See Law Offices of Herssein and Herssein, P.A. v. United Services Automobile Ass’n,No. 3D17-1421 (Fl. Ct. App. 3d Dist. 2017). Noting that that Facebook contacts often are


not equivalent to real-life friends, the court found that no “reasonably prudent personwould fear that he or she could not get a fair and impartial trial because the judge is aFacebook friend with a lawyer who represents a potential witness and party to thelawsuit.” On the contrary, “[a]n assumption that all Facebook ‘friends’ rise to the level of aclose relationship that warrants disqualification simply does not reflect the currentnature of this type of electronic social networking.” The court noted the following threereasons for its holding:

1. Some people have thousands of Facebook friends, which reflects how distantmany Facebook relationships truly are.

2. Facebook members often don’t even know who their friends are.3. Friendships formed by Facebook’s “data mining and networking algorithms” is a

product of an “astounding development in applied mathematics.” But while thesealgorithms are powerful tools “to build personal and professional networks,” theyhave “nothing to do with close or intimate friendships of the sort that would requirerecusal.” Id. at 8-9.

Let’s Be Friends

Thankfully, the Florida Supreme put a stop to this silly debate in Law Offices of Hersseinand Herssein, P.A. v. United Services Automobile Assoc’n, No. SC17-1848 (Fl. Nov. 15,2018).

Who and what is a “friend?” Well, said the court, it depends: Friendship in “the traditionalsense of the word does not necessarily signify a close relationship. It is commonlyunderstood that friendship exists on a broad spectrum: some friendships are close andothers are not.” Id. at 8 (citing Black’s Law Dictionary 667 (6th ed. 1990) (defining theterm “friend” as “[v]arying in degree from greatest intimacy to acquaintance more or lesscasual”)). Because the “mere existence of a friendship between a judge and an attorneyappearing before the judge, without more, does not reasonably convey to others theimpression of an inherently close or intimate relationship,” an allegation of “merefriendship” does not constitute “a legally sufficient basis for disqualification.” Id. at 9.

And so it is with Facebook friendship. In addressing the question “what is the nature ofFacebook ‘friendship?’,” the court recognized that such relationships could be moreintimate or far less intimate than traditional friendships:

Today it is commonly understood that Facebook “friendship” exists on an even broaderspectrum than traditional “friendship.” Traditional “friendship” varies in degree fromgreatest intimacy to casual acquaintance; Facebook “friendship” varies in degree fromgreatest intimacy to “virtual stranger” or “complete stranger.”


Id. at 13. Because “the mere existence of a Facebook ‘friendship,’ in and of itself, doesnot inherently reveal the degree or intensity of the relationship between the Facebook‘friends,'” no “reasonably prudent person would fear that she could not receive a fair andimpartial trial based solely on the fact that a judge and an attorney appearing before thejudge are Facebook ‘friends’ with a relationship of an indeterminate nature.” Id. at 15-16.For this reason, “Facebook ‘friendships’—which regularly involve strangers—should [not]be singled out and subjected to a per se rule of disqualification.” Id. at 20.

A well-reasoned and sensible holding.

1. The court noted that its holding was consistent with the “clear majority” of ethicsopinions on the issue. Id. at 16 (citing Ariz. JEAC Op. 14-01, at 4 (Aug. 5, 2014); Ky.Jud. Ethics Comm. Op. JE-119, at 2-3 (Jan. 20, 2010); Md. Jud. Ethics Comm. Op.2012-07, at 5 (June 12, 2012); Mo. Ret., Removal, & Discipline Comm’n Op. 186, at1 (Apr. 24, 2015); N.M. Jud. Conduct Adv. Comm. Op. Concerning Soc. Media, at13-14 (Feb. 15, 2016); N.Y. JEAC Op. 13-39 (May 28, 2013); Ohio Bd. of Comm’rson Grievances & Discipline Op. 2010-7, at 1-2, 8-9 (Dec. 3, 2010); Utah JEAC Op. 12-01, at 4-7 (Aug. 31, 2012). ↵

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Dane S. Ciolino August 5, 2018

LASC Solicits Comments on New Judiciary CommissionRules

lalegalethics.org/lasc-solicits-comments-on-new-judiciary-commission-rules

The Louisiana Supreme Court has distributed forpublic comment three proposed revisions to RuleXXIII governing proceedings before the JudiciaryCommission. These revisions were recommended tothe court by the Judiciary Commission (“JC”). SeeJudiciary Commission of Louisiana, Proposed RuleRevisions to Supreme Court Rule XXIII (July 2018).

Verified ComplaintsFirst, the JC recommends a change to Rule XXIII, Section 3, that would require the filingof “verified” complaints to initiate an investigation. More particularly, any futurecomplainant would be required to sign the following declaration: “By submitting/signingthis complaint, I declare under penalty of law that the information contained within thiscomplaint is accurate and true to the best of my knowledge.”

This is a good proposal because it requires complainants to be accountable for theircomplaints. Note that the JC will still accept anonymous complaints. But, an anonymouscomplaint “may not be the subject of a preliminary inquiry unless it states facts, not mereconclusions, that can be independently verified and the Chair authorizes a preliminaryinquiry to be made.” See LASC Rule XXII, § 3(a)(2).

ConfidentialitySecond, the JC recommends a change to Rule XXIII, Section 23 to further clarify theobligation of “confidentiality” as to proceedings before the commission. The proposal isas follows:


[O]nce the Commission closes a file or files a notice of hearing, nothing in this rule shallprevent a complainant, respondent, or witness who has given testimony pursuant toCommission proceedings from disclosing or discussing the proceedings. However, from thetime a complaint is filed until the Commission closes a file or files a notice of hearing,complainants, respondents, and witnesses may not disclose or discuss the fact that acomplaint was filed, the fact that testimony was given pursuant to Commission proceedings,or any information learned as a result of participating in such proceedings. However, alldocuments and evidence remain confidential if the Commission does not file a matter withthe Supreme Court.

Id. at 2.

This proposed revision —and the existing rule—are problematic under the FirstAmendment. The Louisiana Supreme Court has correctly held that a lawyer’s violation ofthe confidentiality provisions of the comparable lawyer disciplinary rule (LASC Rule XIX,§ 16) does not subject the lawyer to discipline because a lawyer participating in thedisciplinary process has a First Amendment right to reveal the substance of suchproceedings. See In re Warner and Rando, 21 So. 3d 218 (La. 2009). A complainant,respondent or witness participating at any stage of a judicial discipline proceedingshould have the same constitutional right to disclose, to discuss, and to criticize what hisor her government is doing.

Incapacity ProceedingsFinally, the JC recommends a new provision addressing judges with “mental or physicaldisability or impairment.” Among other things, the new provision would establishprocedures for (1) initiating incapacity proceedings, (2) conducting medical, mentalhealth and other expert evaluations of a judge, and (3) instituting an involuntaryretirement proceeding. These provisions are well-written and long overdue.

1. More particularly, the court found that “the confidentiality requirement imposedupon participants in attorney disciplinary proceedings under a joint reading of La.S.Ct. Rule XIX, § 16(A) and (I) violates the First Amendment of the United StatesConstitution. The confidentiality rule was promulgated by this Court, a state entity,and directly abridges speech, thus the protections of the First Amendment apply tothe rule. The confidentiality rule is a content-based regulation, and thus itssubstantial restriction of speech may only be deemed constitutional if the rulesatisfies the requirements of the strict scrutiny analysis. Accordingly, we havereviewed the requirements of strict scrutiny in-depth and have carefully appliedthese standards to the rule. We conclude that the confidentiality rule does notsatisfy the requirements of strict scrutiny. As we interpret the Supreme Court’s

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holdings, the reputational interests of attorneys, while important, do not qualify ascompelling under strict scrutiny. Furthermore, even if we were toassume arguendo that the remaining three interests could qualify as compelling,the confidentiality rule is not narrowly tailored to serve these interests. Accordingly,the confidentiality requirement imposed upon participants in attorney disciplinaryproceedings under a joint reading of La. S.Ct. Rule XIX, § 16(A) and (I) mustfall.” Id. at 262. ↵


Dane S. Ciolino October 7, 2018

California Rules Now Allow Lawyers to Give Marijuana-Use Advice to Clients

lalegalethics.org/california-rules-now-allow-lawyers-to-give-marijuana-use-advice-to-clients

More than thirty jurisdictions in the United States permitsome type of marijuana sale and use. See Governing.comList of State Marijuana Laws in 2018 (as of March 2018).But, much of what these state and local jurisdictions permitremains illegal under the federal Controlled DangerousSubstances Act (codififed in Title 21 of the United StatesCode).

That marijuana distribution remains a crime under federallaw presents a problem to lawyers who would like to advise their clients as to marijuanasale and use. Both the ABA Model Rules of Professional Conduct and the LouisianaRules of Professional Conduct in their respective rule 1.2(d) prohibit a lawyer fromcounseling a client to engage, or assisting a client, “in conduct that the lawyer knows iscriminal.” See La. Rules of Prof’l Cond. R. 1.2(d). While the rule allows a lawyer todiscuss the “legal consequences” of any proposed course of conduct and to make a“good faith effort to determine the validity, scope, meaning or application of the law,” id.,it simply does not allow a lawyer to assist a drug-distribution operation by, for example,drafting contracts with vendors, transporters, suppliers, and the like.

Because of this problem, several jurisdictions have amended their lawyer-conductstandards to permit advice clients as to marijuana issues despite that the client will usethe advice to engage conduct that is criminal under federal law. On Septemeber 26,2018, Calfornia became the most recent to do so when the state’s highest courtamended the comments to California Rule 1.2.1 (“Advising or Assisting the Violation ofLaw”). The new comment provides as follows:

Paragraph (b) permits a lawyer to advise a client regarding the validity, scope, and meaningof California laws that might conflict with federal or tribal law. In the event of such aconflict, the lawyer may assist a client in drafting or administering, or interpreting orcomplying with California laws, including statutes, regulations, orders, and other state orlocal provisions, even if the client’s actions might violate the conflicting federal or triballaw. If Califronia law conflicts with federal or tribal law, the lawyer must inform the clientabout related federal tribal law and policy and under certain circumstances may also berequired to provide legal advice to the client regarding the conflict. (See rules 1.1 and 1.4.).


See Admin. Order 2018-09-26-01, Supreme Court of California (filed Ca. Sep. 26, 2018).

Louisiana?In May 2016, adopted legislation permitting the cultivation, distribution, and use ofmedical marijuana. LSU and Southern University are gearing up their grow houses andcultivation facilities. Will Louisiana lawyers be able to provide them with legal advice tofurther their efforts?

On November 2, 2016, the Louisiana State Bar Association Rule of Professional ConductCommittee debated the issue and declined to recommend an amendment to theLouisiana rules that would have permitted lawyers to give legal advice to LSU andSouthern regarding marijuana cultivation and distribution. In so doing, the committeerespected the basic federalism principle of supremacy embodied in Article VI § 2 of theUnited States Constitution. Indeed, if the State of Louisiana were to permit racialdiscrimination in the workplace in violation of federal civil rights laws, the rules would notallow a lawyer to advise a restaurant as to how to refuse to hire African-Americanwaiters. Allowing advice regarding illicit marijuana cultivation and distribution would havebeen just as unacceptable in our federal system.

If you disagree, write to your Congressman.

1. Other states have adopted such rules. ↵

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Dane S. Ciolino October 7, 2018

Idaho Becomes Seventh State to Reject ABA’s Model Anti-Discrimination Rule

lalegalethics.org/idaho-becomes-seventh-state-to-reject-abas-model-anti-discrimination-rule

On September 10, 2018, the Idaho SupremeCourt Supreme Court rejected efforts to amendthe Idaho Rules of Professional Conduct to addthe anti-discrimination provision now included inABA Model Rule 8.4. See Letter, Roger S.Burdick, Chief Justice of the Supreme Court ofIdaho to the Executive Director of the Idaho StateBar (Sep. 10, 2018). Said the court: “The final vote mirrored the close division of the Barand society. The final vote was 3-2.” Id. In so doing, Idaho joined six other states thathave expressly declined to adopt the ABA’s model anti-discrimination rule. See ABACenter for Prof’l Responsibility, Policy Implementation Committee, JurisdictionalAdoption of Rule 8.4(g) of the ABA Model Rules of Professional Conduct (as of Sep. 19,2018). To date, only Vermont has adopted the model rule, although twenty states havepreexisting rules that are analogous to Model Rule 8.4(g). Id. See generally ScottFlaherty, Several States Weigh ABA’s Anti-Discrimination Rule, Law.com (May 22,2018).

Background: The 2016 Adoption of ABA Model Rule 8.4(g)In 2016, the ABA amended Model Rule 8.4 to include a broad anti-discrimination andanti-harassment provision, and three revised comments. The amendment, which wassponsored by several ABA groups, added this new paragraph (g) to the black-letter ofRule 8.4:

It is professional misconduct for a lawyer to: . . . (g) engage in conduct that the lawyerknows or reasonably should know is harassment or discrimination on the basis of race, sex,religion, national origin, ethnicity, disability, age, sexual orientation, gender identity,marital status or socioeconomic status in conduct related to the practice of law. Thisparagraph does not limit the ability of a lawyer to accept, decline, or withdraw from arepresentation in accordance with Rule 1.16. This paragraph does not preclude legitimateadvice or advocacy consistent with these rules.

See ABA Revised Resolution 109 (adopted Aug. 8, 2016).

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It is often difficult to have a rational discussion about anti-discrimination and anti-harassment rule making. Some fervently believe that such provisions are yet anotherexample of political correctness run a muck. Others just as fervently believe that suchprovisions serve to promote inclusiveness and confidence in the legalprofession. Irrespective of viewpoint, everylawyer should be concerned about the breadthof the ABA’s model rule.

First, the rule and its comments broadly define“harassment” to include any “derogatory ordemeaning verbal conduct” by a lawyer relatingto a person’s “race, sex, religion, national origin,ethnicity, disability, age, sexual orientation,gender identity, marital status or socioeconomicstatus.” Even words that are not “harmful” meetthe definition of “harassment” if they are“derogatory or demeaning” and relate to adesignated category of person.

Second, the rule subjects to discipline not only a lawyer who knowingly engages inharassment or discrimination, but also a lawyer who negligently utters a derogatory ordemeaning comment. So, a lawyer who did not know that a comment was offensive willbe disciplined if the lawyer should have known that it was. It will be interesting to seehow the “objectively reasonable lawyer” will be constructed for purposes of making thisdetermination.

Third, the rule and its comments subject to discipline not only a lawyer who slings a“derogatory or demeaning comment” directly at another person, but also a lawyer whomakes an abstract comment about general types or categories of people. Indeed, inrevising comment 4, the ABA expressly deleted language that would have limited thedefinition of “harassment” to include only derogatory or demeaning conduct directed“towards a person who is, or is perceived to be, a member of one of the groups.”

Fourth, the rule subjects to discipline a lawyer who discriminates on the basis of“socioeconomic status.” What is that? UCLA Law Professor Eugene Volokh raises this(valid) concern:


That term isn’t defined in the proposed rule, but the one definition I’ve seen — interpretinga similar ban on socioeconomic-status discrimination in the Sentencing Guidelines — is “anindividual’s status in society as determined by objective criteria such as education, income,and employment.” United States v. Lopez, 938 F.2d 1293, 1297 (D.C. Cir. 1991); see alsoUnited States v. Peltier, 505 F.3d 389, 393 & n.14 (5th Cir. 2007) (likewise treating wealthas an element of socioeconomic status); United States v. Graham, 946 F.2d 19, 21 (4th Cir.1991) (same).

Eugene Volokh, Banning Lawyers from Discriminating Based on ‘Socioeconomic Status’in Choosing Partners, Employees or Experts, The Volokh Conspiracy (Aug. 10, 2016).Volokh questions whether this rule will prohibit a law firm from preferring lawyers,nonlawyer assistants, and expert witnesses with degrees from high-status educationalinstitutions. Id.

Louisiana Considers Adopting an Anti-Discrimination RuleOn November 27, 2017, the LSBA Rules of Professional Conduct Committee reportedthat it would make “no recommendation” regarding the adoption of a rule prohibitingdiscrimination and harassment in conduct related to the practice of law. See Richard C.Stanley, Letter to LSBA Outreach and Diversity Director (Nov. 27, 2017). This “norecommendation” vote came after more than a year of analysis and discussion in thewake of the ABA’s adoption of Model Rule 8.4(g).

Prior to the committee’s vote, a subcommittee had proposed the addition of a newLouisiana Rule 8.4(h), that would have provided as follows:

It is professional misconduct for a lawyer to: . . . (h) engage in conduct in connection withthe practice of law that the lawyer knows or reasonably should know involvesdiscrimination prohibited by law because of race, color, religion, age, gender, sexualorientation, national origin, marital status, or disability. This Rule does not prohibitlegitimate advocacy when race, color, religion, age, gender, sexual orientation, nationalorigin, marital status, or disability are issues, nor does it limit the ability of a lawyer toaccept, decline or withdraw from a representation in accordance with Rule 1.16.

See LSBA Rules of Professonal Conduct, Rule 8.4 Subcommittee Report ExecutiveSummary at p. 2 (Mar. 24, 2017); see also LSBA Rules of Professional ConductCommittee, Rule 8.4 Subcommittee Report (Mar. 24, 2017) (full report). In July 2017, theLSBA Rules Committee published the subcommittee’s proposal and invited writtencomments on the adoption of a new anti-discrimination standard of professionalconduct.

The invitation was well received; the committee received a large number of comments—


including an opinion from the Louisiana Attorney General that the proposal wasunconstitutional. The comments were overwhelmingly negative.

On October 30, 2017, the committee met in New Orleans to consider the commentsreceived and to discuss adopting the ABA model rule or the subcommittee’s proposal.After a long debate, the committee voted 7-4 to make “no recommendation.” SeeRichard C. Stanley, Letter to LSBA Outreach and Diversity Director (Nov. 27, 2107).Although the committee’s chairperson noted that “it is difficult to summarize the rationaleof the lengthy debate in its entirety, the primary arguments made by those opposing therule” were as follows:

Existing rules permit ODC to prosecute much of the conduct that would be coveredby the proposed rule, “thus making it unnecessary.”The proposed rule contains ambiguous terms that could engender litigation andcreate uncertainty.The proposed rule may be unconstitutional.

Id. at pp. 1-2.

The committee’s decision was a good one. Louisiana clearly should not adopt the ABA’sstandard. For all of the reasons discussed above, the ABA model rule is fraught withproblems.

Moreover, the proposal of the subcommittee was also problematic . Granted, thesubcommittee’s proposal was less problematic than the new ABA model rule. Forexample, it did not brand any sort of “harassment” as misconduct, and thereby avoidedthe myriad problems associated with the ABA anti-harassment standard. However, thesubcommittee’s proposal still raised serious questions. It branded as “misconduct” purelynegligent discrimination. And it inexplicably incorporated some of the ABA’s protectedclasses (race, religion, age, gender, sexual orientation, national origin, marital status,and disability), but excluded others (ethnicity, gender identity, and socioeconomicstatus).

ConclusionIn my view, Louisiana either should do nothing at all (like what the committee did), oradopt a simpler anti-discrimination standard that is directly tethered to anti-discriminationlaws applicable to Louisiana lawyers. Such anti-discrimination laws would include thoseenacted by the federal government, the State of Louisiana, and local governments.Doing so would avoid the need for the LSBA to “keep up” with changing notions of whatpersonal characteristics are worthy of class protection. Doing so would also avoidimposing discipline on innocent and merely negligent lawyers. Here is my proposed

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language:

It is professional misconduct for a lawyer to: . . . (h) engage in conduct in connection withthe practice of law that the lawyer knows is unlawful discrimination prohibited by federal,state, or local law. This Rule does not prohibit legitimate advocacy when a protectedpersonal characteristic is relevant to the representation, nor does it limit the ability of alawyer to accept, decline or withdraw from a representation in accordance with Rule 1.16.

Ultimately, the Louisiana Supreme Court will decide whether this, or any similar anti-discrimination rule, will become part of the Louisiana Rules of Professional Conduct.

1. Eleven states are “studying Rule 8.4(g).” Id. ↵2. The amendment was sponsored by the ABA’s Standing Committee on Ethics and

Professional Responsibility, the Section of Civil Rights and Social Justice, theCommission on Disability Rights, the Diversity & Inclusion 360 Commission, theCommission on Racial and Ethnic Diversity in the Profession, the Commission onSexual Orientation and Gender Identity, and the Commission on Women in theProfession. See Lorelei Laird, Discrimination and Harassment Will be Legal EthicsViolations Under ABA Model Rule, ABA Journal (Aug. 8, 2016, 6:36 p.m.). ↵

3. For example, my proposal would brand as “misconduct” unlawful conduct based onpersonal characteristics protected by federal law such as race, color, religion,national origin, age, sex, sexual orientation, gender idenity, pregnancy, citizenship,familial status, disability status, veteran status, and genetic information. ↵



LSBA Distributes Newly-Updated Code of Professionalismlalegalethics.org/new-lsba-professionalism-code

On October 18, 2018, LSBA PresidentBarry H. Grodsky distributed a “newlyupdated” LSBA Code ofProfessionalism. See LSBA Code ofProfessionalism (2018); seealso Resolution Proposed by theCommittee on the Profession to AmendCode of Professionalism (approved byLSBA House of Delegates on Jan. 20,2018) (redline of changes). According to Mr. Grodsky, the code, “[w]hile maintaining thebasic principles set previously,” has “been brought into the 21st Century and addressesissues no one considered twenty-five years ago. It still embodies the basic tenets ofprofessionalism and maintains a firm basis in our Bar’s motto: ‘Serving the Public andServing the Profession.'” See Email from Barry H. Grodsky to LSBA Membership (Oct. 18,2018).

The revised Code of Professionalism includes a new preface noting that the legalprofession “is a learned calling,” and, as a result, lawyers “should act with honesty andintegrity and be mindful” of their responsibilities to the judicial system, the public, eachother, and the rule of law. Id. The amendments also include “I-will” pledges encouraginglawyers to do various things, including the following:

To act with “fairness” and to refrain from engaging in “any demeaning orderogatory actions or commentary toward others.”To “cooperate with other counsel in all respects.”To work “to protect and improve” the image of the profession, and the system ofjustice.To use “technology, including social media, responsibility.”To speak and act in a manner reflecting “the professionalism expected of me as alawyer.”To seek to serve the bench, the bar, and the indigent.To support new members in the profession.To keep up to date about “changes in the law, communication, and technologywhich affect the practice of law.”


On first glance, these principles of professionalism are mom-and-apple-pieunobjectionable. Who could discount or belittle “fairness,” “cooperation,” “service,” and“support”?

On second glance, however, these amendments—and the Code itself—raise seriousquestions. For example, there are times when an effective and professional lawyercross-examining a witness should be “demeaning” or “derogatory.” Likewise, there aretimes when a lawyer shouldn’t “cooperate with other counsel.” On these occasions,would a lawyer be “unprofessional” for “violating” the code?

Furthermore, is a standard suggesting that one should act in a manner “expected of meas a lawyer” really a standard at all? It sure doesn’t provide any guidance as to whatconduct is expected and who is expecting whatever it is he is expecting.

Finally, do we really need a professionalism code tosuggest that we “should” act “with honesty” andthat we “should” keep up with “changes in the law …and technology”? We already have discplinary rulesmandating these suggestions. See La. Rules ofProf’l Conduct r. 8.4(c); id. r. 1.1. Does telling us thatwe merely “should” do these things somehowdiminish the hard-and-fast obligations that alreadyexist?

The problem with these amendments—and withprofessionalism codes in general—is this: whatconstitutes “professional” conduct beyond mom-and-apple-pie hortatory language is something uponwhich we will never agree. Professional norms asto which there is consensus should not be the stuff of “professionalism” codes; they areand should be the stuff of disciplinary rules—or “legal ethics”—to use the widely-accepted misnomer. See generally, Dane S. Ciolino, Redefining Professionalism asSeeking, 49 Loy. L. Rev. 229 (2003).

Although everyone agrees that professionalism is good, no one can define it in a waythat everyone else can unconditionally accept. For this reason, I have long argued thatthe profession should define “professionalism” in a way that will make the effortworthwhile. That is, we should redefine professionalism as “seeking.” Professionalism-as-seeking would implore us to examine, in ourselves and in our colleagues at the bench,bar, and academy, the norms, values, and assumptions that guide our professionalconduct. It would not preach how we “should” act. It would not demand conformity.Rather, it would implore us to ask ourselves “what is the good professional life?” It would


ask us to ask “how ought we to live our lives as lawyers?” See id. Engaging in thatprocess be more useful than drafting and amending pledges in professionalism codes.



Tennessee Struggles with Prosecutorial Disclosure IssueResolved by Louisiana in 2017

lalegalethics.org/tennessee-struggles-with-prosecutorial-disclosure-issue-resolved-by-louisiana-in-2017

In the spring of 2018, the Tennessee Board of ProfessionalResponsibility issued an advisory opinion addressing the scopeof a prosecutor’s obligation to disclose exculpatory informationto the defense and the relationship between that “ethical”obligation and the corresponding constitutional obligationunder Brady v. Maryland (U.S. 1963). The Tennessee opinionconcluded the following:

Tennessee Rule of Professional Conduct 3.8(d) is a separate ethical obligation ofprosecutors and was not meant to be coextensive with a prosecutor’s legal disclosureobligations. This ethical duty is separate from disclosure obligations imposed under theConstitution, statutes, procedural rules, court rules, or court orders. A prosecutor’s ethicalduty to disclose information favorable to the defense is broader than and extends beyondBrady. Once a prosecutor knows of evidence and information that tends to negate the guiltof the accused, or mitigates the offense, or otherwise falls within RPC 3.8(d)’s disclosurerequirement, the prosecutor ordinarily must disclose it as soon as reasonably practicable.

Tn. Bd. of Prof’l Responsibility, Formal Op. 2017-F-163 (published March 2018). Sincebeing published, the opinion has come under fire from Tennessee state prosecutors,federal prosecutors, and commentators.

Louisiana Resolves Issue in October 2017

In October 2017, the Louisiana Supreme Court resolved what was then an unsettledquestion in Louisiana as to whether a prosecutor’s “ethical” duty to disclose exculpatoryevidence under Louisiana Rule of Professional Conduct 3.8(d) is broader than the similarconstitutional duty under Brady v. Maryland (U.S. 1963). In an opinion written by JusticeCrichton, the court determined that the duties “are coextensive.” See In re RonaldSeastrunk, No. 2017-B-0178 (La. Oct. 18, 2017).

Ronald Seastrunk was a prosecutor employed by the office of the Vernon Parish DistrictAttorney. From 2010 through 2012, he and former assistant district attorney (and currentdistrict judge) Scott Westerchil prosecuted Justin Sizemore for murdering ChristopherHoffpauir. After two mistrials, Mr. Sizemore was convicted of second degree murder in

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May 2012. The principal state witness at all three Sizemore trials was the victim’sestranged wife, Kristyn Hoffpauir. After pleading guilty and “turning state’s evidence,”Kristyn testified that she was dating the defendant, Mr. Sizemore, and that he shot andkilled her husband. The defense contended, however, that she was the perpetrator andlied about Sizemore’s role. The jury rejected Kristyn’s testimony, and unanimouslyconvicted Mr. Sizemore of murder.

ODC contended that the prosecutors failed to turn over impeachment evidence obtainedfrom Jody Thibeaux, a witness who testified for the defense. More particularly, ODCcontended that during the first trial prosecutors suggested that Kristyn could not havebeen “the shooter” because she was not familiar with firearms; that a Vernon ParishSheriff’s Office detective, Ray Ortiz, interviewed Thibeaux after the first trial and learnedthat Kristyn had previously possessed a stolen .22-caliber revolver; and, that the state“failed to disclose” Kristyn’s prior gun possession in violation of Brady. ODC alleged thatSeastrunk and Westerchil violated Rule 3.8(d) by ‘failing to make timely disclosure to thedefense of all evidence or information known to the prosecutor that the prosecutorknows, or reasonably should know, either tends to negate the guilt of the accused ormitigates the offense . . . .’”

Rule 3.8(d) provides as follows:

The prosecutor in a criminal case shall: . . . . (d) make timely disclosure to the defense of allevidence or information known to the prosecutor that the prosecutor knows, or reasonablyshould know, either tends to negate the guilt of the accused or mitigates the offense, and, inconnection with sentencing, disclose to the defense and to the tribunal all unprivilegedmitigating information known to the prosecutor, except when the prosecutor is relieved ofthis responsibility by a protective order of the tribunal . . . .

La. Rules of Prof’l Conduct r. 3.8(d). On its face, this ethical rule is not limited to“material” exculpatory evidence, namely, evidence important enough to affect theoutcome of a case. Under the constitutional standard of Brady, however, “aconstitutional error occurs, and the conviction must be reversed, only if the evidence ismaterial in the sense that its suppression undermines confidence in the outcome of thetrial.” United States v. Bagley, 473 U.S. 667, 678 (1985); Cone v. Bell, 556 U.S. 449, 470(2009) (due process “as interpreted by Brady, only mandates the disclosure of materialevidence . . . .”); see also State v. LaCaze, 2016 WL 7335789 at *6 n.5 (La. Dec. 16, 2016)(noting that under “the Brady materiality standard” the defendant must demonstrate thatthe undisclosed evidence caused him to receive “an unfair trial resulting in a verdict notworthy of confidence”); State v. Blank, 192 So. 3d 93, 102 (La. 2016) (“a prosecutor doesnot breach his duty to disclose favorable evidence ‘unless the omission is of sufficientsignificance to result in the denial of the defendant’s right to a fair trial””). A prosecutor


has no constitutional duty to disclose impeachment evidence unless failing to produce itwould be “of sufficient significance to result in the denial of the defendant’s right to a fairtrial.” United States v. Agurs, 427 U.S. 97, 108 (1976).

The information about the .22-caliber revolver–namely, that Kristyn once possessedsuch a weapon–was not “material” because it would have had no effect whatsoever onthe Sizemore trial. Indeed, ODC conceded that the evidence withheld in the Sizemore trialwas not material and exculpatory under Brady. Nevertheless, ODC argued that disclosurewas “ethically required by Rule 3.8(d).”

In rejecting ODC’s argument, the court held that the ethical and constitutional disclosureobligations are co-extensive. In so doing, the court reasoned that “under conflictingstandards, prosecutors would face uncertainty as to how to proceed, as they could findthemsleves in compliance with the standard enumerated in Brady, but in potentialviolation of the obligation set forth in Rule 3.8(d).” Id. at 18. Furthermore, a broaderobligation under Rule 3.8(d) would invite “the use of an ethical rule as a tactical weaponin criminal litigation.” Id. As a result, the court dismissed the formal charges against Mr.Seastrunk.

The court’s decision in Seastrunk was correct. Expanding Louisiana Rule 3.8(d) beyondthe limits of Brady would have been bad policy. Although a minority of states impose abroader “ethical” obligation to disclose exculpatory information, doing so in Louisianawould have subjected prosecutors to unwarranted discipline. Among other problems,untethering Rule 3.8(d) from Brady and the Louisiana Rules of Criminal Procedure would have exposed prosecutors to discipline for simply complying with federalconstitutional law and state statutory law. Disconnecting Rule 3.8(d) and Brady wouldhave transformed routine discovery disputes into disciplinary actions. Imposingdiscipline on a prosecutor for failing to turn over information that is absolutelyinconsequential would have been pointless and unfair. For that reason, the Seastrunkopinon correctly brings Louisiana into line with a majority of states. See State ex rel.Okla. Bar Ass’n v. Ward, 353 P.3d 509 (Okla. 2015); Disciplinary Counsel v. Kellogg-Martin ,923 N.E.2d 125 (Ohio 2010); United States v. Weiss, No. 05-CR-179-B, 2006 WL 1752373(D. Colo. June 21, 2006); In re Attorney C, 47 P.3d 1167 (Colo. 2002).

Louisiana Should Amend Rule 3.8(d) to Conform to Seastrunk

Given the court’s decision in Seastrunk, the LSBA should propose to the LouisianaSupreme Court that Rule 3.8(d) be amended to expressly include the Brady “materiality”standard in the black-letter text of the rule. A revision to accomplish this would be assimple as inserting the word “material” into the rule:

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The prosecutor in a criminal case shall: . . . (d) make timely disclosure to the defense of allmaterial evidence or information known to the prosecutor that the prosecutor knows, orreasonably should know, either tends to negate the guilt of the accused or mitigates theoffense, and, in connection with sentencing, disclose to the defense and to the tribunal allmaterial unprivileged mitigating information known to the prosecutor, except when theprosecutor is relieved of this responsibility by a protective order of the tribunal . . . .

1. Dane S. Ciolino represented Mr. Seastrunk in the disciplinary proceedings beforethe Louisiana Attorney Disciplinary Board and the Louisiana Supreme Court. ↵

2. In re Larsen, No. 20140535, 2016 WL 3369545 (Utah 2016); In re Disciplinary ActionAgainst Feland, 820 N.W.2d 672 (N.D. 2012); ABA Formal Op. 09-454 (2009). ↵

3. La. Code Crim. P. art. 723(B) (requiring disclosure of “any evidence constitutionallyrequired to be disclosed pursuant to Brady v. Maryland, 373 U.S. 83 (1963) and itsprogeny.”). ↵


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