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Recent Developments in Legal Ethics

Dane S. Ciolino ALVIN R. CHRISTOVICH DISTINGUISHED PROFESSOR OF LAW

LOYOLA UNIVERSITY NEW ORLEANS COLLEGE OF LAW

Dane S. Ciolino of 30 Legal Ethics

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 (2019), 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.


Dane S.Ciolino

October 30,2019

On Being Forced Into and Excluded from the BarAssociation

lalegalethics.org/on-being-forced-to-join-and-banned-from-the-bar-association

I am a New Orleans law professor, lawyer, and card-carrying member of the LouisianaState Bar Association. For more than 30 years, I have enthusiastically volunteeredhundreds of hours working on the bar association’s ethics committees and giving probono professionalism presentations to its members.

I would have gladly joined theassociation had I been given the choice.But I wasn’t. No one can work as alawyer in Louisiana without joining.More than 20,000 other lawyers joinedfor that reason too. One of them, RandyBoudreaux, has sued the bar associationbecause he believes that being forced tojoin an association to get a license towork violates his First Amendment right to freedom of association. He also believesthat the association’s use of dues money to advance political positions unrelated tothe practice of law violates the Constitution. I proudly represent Randy in this lawsuit,along with a team of extraordinary lawyers from the Pelican and Goldwater Institutes.

But that’s last month’s news. More recently, the bar association banned me fromvarious activities. After I filed Randy’s lawsuit, it cancelled two of my long-scheduledethics presentations due to “a conflict.” It also refused to reappoint me to its ethicscode committee—a committee that I served on for 20 consecutive years. See CiolinoEmails with LSBA (Aug. 2019). These actions are astonishing to me as a lawyer andlegal ethics professor.

I have simply sued the association as a lawyer representing a client. That’s whatlawyers do. Black lawyers have represented the Klan and Jewish lawyers, neo-Nazis.But a lawyer’s representation does not constitute an endorsement of the client’sviews. Look it up. The rules drafted by the association’s own professional conduct


committee (on which I once served) say exactly that. See La. Rules of Prof’l Conduct r.1.2(b). So, just because my client believes that the bar association is violating hisconstitutional rights doesn’t necessarily mean that I agree.

But I do. And that makes the association’s actions even worse. It has taken mymandatory dues money and then banned me from participating in its activitiesbecause it doesn’t like my views about the First Amendment. Can you see the irony? Astate-sponsored organization is taking adverse action against a citizen because itdoesn’t like the content of the citizen’s speech. Why, that sounds like (another) FirstAmendment issue, doesn’t it?

If anyone should understand the principles of law, ethics, and professionalismapplicable to Louisiana lawyers it is, well, an association of Louisiana lawyers. But itjust doesn’t get it. And every year, I write a check to pay for this sort of conduct. Andevery year I call myself a member. Can Mr. Boudreaux and I quit? We’ll see.

Reprinted from The Advocate Newspaper, October 30, 2019 (link to original here:https://www.theadvocate.com/baton_rouge/opinion/letters/article_20051df6-f67b-11e9-ba03-0b879dab84fa.html).


Should Louisiana Force its Lawyers to Pay forSpeech That They Don’t Support?

lalegalethics.org/should-louisiana-force-its-lawyers-to-pay-for-speech-that-they-dont-supportDane S. CiolinoAugust 1, 2019

By Jacob Huebert, James Baehr, and Dane S. Ciolino

The First Amendment guarantees every American’s freedom of speech and freedom of association. Thatmeans we all get to choose what we will and won’t say, and what groups we will and won’t join. It alsomeans we all get to decide to what political groups we will and won’t give our money.

At least, that’s how it’s supposed to work. But,in Louisiana and 29 other states, some people—those who practice law—are being deniedtheir rights not to speak, not to associate with agroup against their will and not to pay forothers’ political advocacy. In these states, thegovernment forces lawyers to join and pay duesto bar associations to be allowed to pursue theirchosen profession.

The bar associations these lawyers are forcedto join and pay aren’t government regulatory bodies; they don’t just make sure attorneys are qualifiedand behave ethically, as one might expect. Instead, they’re trade associations, and all too often they usemembers’ mandatory dues to advocate for and against public policies, which may or may not haveanything to do with the practice of law. This means lawyers in these states are being forced to pay forother people’s political and ideological speech—something the First Amendment virtually never allows.

For example, Louisiana’s mandatory bar association has used members’ dues to advocate for removal of“free enterprise” education from the state’s high school curriculum requirements. It’s also takenpositions on a wide variety of other controversial issues ranging from the death penalty to drug policy tosocial issues. Many Louisiana lawyers might disagree with positions the bar takes—but they have to payto promote the bar’s views anyway, if they want to continue earning their living by practicing law.

There’s no excuse for this. Today, at least 18 states regulate lawyers without forcing them to join a barassociation or pay for other people’s politics. Louisiana and all the other states could—and should—doso as well.

Randy Boudreaux is one New Orleans lawyer who doesn’t want to pay for a bar association’s politicaladvocacy—but has no choice. On August 1, 2019, lawyers from the Pelican Institute and the GoldwaterInstitute joined with New Orleans ethics lawyer and professor Dane S. Ciolino to file a federal lawsuitfor Boudreaux. In the lawsuit, they argue that forcing Boudreaux to join and pay dues to the LouisianaState Bar Association violates his basic First Amendment rights to freedom of speech and association.See Boudreaux v. Louisiana State Bar Assoc., No. 2:19-cv-11962 (E.D. La. filed Aug. 1, 2019).

Last year, in Janus v. AFSCME, the U.S. Supreme Court ruled that the First Amendment prohibitsgovernments from making their employees pay union fees—which inevitably fund unions’ political


speech—just to keep their jobs. By the same reasoning, Boudreaux’s lawsuit says, lawyers shouldn’t beforced to pay for bar associations’ speech just to do their jobs.

Boudreaux is the latest of an increasing number of attorneys across the country who are standing up fortheir free-speech rights. In North Dakota, attorney Arnold Fleck, represented by the Goldwater Institute,sued to challenge his state’s mandatory bar after he learned that it used $50,000 of members’ mandatorydues to oppose a ballot measure on child-custody reform that he’d spent his own time and moneysupporting. The U.S. Court of Appeals for the Eighth Circuit ruled against him in 2017, but lastDecember, the Supreme Court ordered the Eighth Circuit to reconsider its decision in light of Janus.

Meanwhile, the Goldwater Institute is also representing attorneys in Oregon and Oklahoma who objectto their states’ respective mandatory bars. Additional challenges to mandatory bar associations areunderway in Texas and Wisconsin as well.

The Pelican Institute has led the fight for workers’ speech rights and economic opportunities inLouisiana, pressing a broad Jobs and Opportunity agenda across the state. The Institute is continuing thefight with this year’s launch of the Pelican Center for Justice, a public interest law firm dedicated toadvancing liberty in the courtroom in Louisiana and throughout the region.

Randy Boudreaux and the other lawyers challenging bar associations’ forced fees should prevail. Andultimately, the Supreme Court should hear one of their cases and declare that lawyers have the sameFirst Amendment rights as everyone else.

Jacob Huebert is a Senior Attorney at the Goldwater Institute. James Baehr is General Counsel at thePelican Institute for Public Policy. Dane S. Ciolino is an ethics lawyer and professor of law at LoyolaUniversity New Orleans College of Law.


Dane S.Ciolino

November 30,2019

Reprimand Recommended for Lawyer Who Threated to“Punch the Sh*t” Out of Opposing Counsel

lalegalethics.org/reprimand-recommended-for-lawyer-who-threated-to-punch-the-sht-out-of-opposing-counsel

On November 6, 2019, a HearingCommittee of the Louisiana AttorneyDisciplinary Board recommended thepublic reprimand of New Orleans lawyerIke Spears for threatening to “punch theshit” out of another lawyer for calling hima “liar.” See In re Spears, No. 19-DB-035(filed Nov. 6, 2019).

The conduct in question ocurred in Orleans Parish Criminal District Court during anAugust 2018 bail hearing before Judge Robin Pittman. During the hearing, theassistant district attorney called Mr. Spears “a liar” for allegedly making falsestatements about the victim. The transcript reads as follows:

Excuse me, sir. You’re a liar.Mr. Spears responded:And I will punch the shit out of you if you call me a liar, again.Mr. Dover doubled down, after being challenged by Respondent to call me a liar again,stating:Liar.At this point in the transcript of the August 20, 2018 hearing, the court reporter wrote:Mr. Spears:(Raises fist up to Mr. Dover)Mr. Dover:(Raises arm up in a blocking motion)Finally, Respondent stated:…but perhaps we can settle this outside the courtroom.

Id. at 3

The ODC contended that Mr. Spears violated Louisiana Rule of Professional Conduct3.5(d) by engaging in conduct “intended to disrupt a tribunal.” Mr. Spears, however,argued that “his conduct was a spur of the moment reaction to being called a liar” and


that he did not act with “intent to disrupt.”

The committee rejected Mr. Spears’s argument, finding that a person acts with “intent”when he “knows that the consequences are certain, or substantially certain, to resultfrom his act, and he still goes ahead, he is treated as if he intended the consequencesof his action.” Id. at 5 (citing Bazley v. Tortorich, 397 So. 2d 475, 482 (La. 1981)). Said thecommittee, “[c]ommon sense dictates that an attorney must know that his actions willdisrupt the court if he, during the course of a hearing or trial, threatens to ‘punch theshit’ out of opposing counsel . . . .”

In recommending the imposition of a public reprimand rather than a suspension (asODC requested), the committee found that no actual physical contact occurred. It alsofound that Mr. Spears was provoked “not just once, but twice” by the assistant districtattorney.


Dane S.Ciolino

November 30,2019

Judicial Recusal From Cases Involving Friends,Acquaintances, and Closer Relations

lalegalethics.org/judicial-recusal-from-cases-involving-friends-acquaintances-and-closer-relations

In September 2019, the ABA StandingCommittee on Ethics and ProfessionalResponsibility issued a formal opinionentitled Judges’ Social or Close PersonalRelationships with Lawyers or Parties asGrounds for Disqualification or Disclosure.See ABA Formal Op. 488 (Sep. 5, 2019).

Rule 2.11(A) of the ABA Model Code ofJudicial Conduct provides that a “judge shall disqualify himself or herself in anyproceeding in which the judge’s impartiality might reasonably be questioned . . . .” SeeABA Model Code Jud. Cond. r. 2.11(A). This rule calls for recusal when, for example, thejudge, the judge’s domestic partner or a third-degree relative to either, has more thana de minimis interest in the proceeding or is a party, lawyer, or material witness in thematter. See id. r. 2.11(A)(2). However, the rule does not squarely address recusal fromcases involving acquaintances, friends, and those with whom the judge shares a closerpersonal relationship. This opinion seeks to provide advice to judges presiding oversuch cases.

Acquaintances

The opinion considers a judge and another person to be “acquaintances” when theirinteractions outside of court are “coincidental or relatively superficial,” when neither“seeks contact with the other, but they greet each other amicably” and cordially whenthey meet. See ABA Formal Op. 488 at 4. As to acquiantances, a judge “has noobligation to disclose his or her acquaintance with a lawyer or party to other lawyersor parties in a proceeding. A judge may, of course, disclose the acquaintanceship if thejudge so chooses.”

Friendships


The opinion considers a judge and another person to be “friends” when there is “somedegree of mutual affection” and a “degree of affinity greater than being acquainted.”See id. However, the opinion acknowledges that all friendships are not the same.Some friendships are professional; some are social. Not all require recusal. Whetherrecusal is required from a case involving a friend is “essentially a question of degree”that turns “on the facts of the case.” See id. at 5-6. In close cases, the judge “shoulddisclose to the lawyers and parties in the proceeding information about thefriendship” even when the judge believes that there is no reason for recusal. Id. at 6.

Close Personal Relationships

The opinion considers a “close personal relationship” to go beyond “common conceptsof friendship.” Such relationships include romantic relationships, romantic interests,former-spouse relationships, and “godparent” relationships. A judge must recuse“when the judge has a romantic relationship with a lawyer or party in the proceeding,or desires or is pursuing such a relationship.” Id. at 6. A judge should disclose all otherclose personal relationships even if the the judge believes that he or she can beimpartial.

Summary

The opinion concludes as follows:

In summary, judges need not disqualify themselves if a lawyer or party is an acquaintance,nor must they disclose acquaintanceships to the other lawyers or parties. Whether judgesmust disqualify themselves when a party or lawyer is a friend or shares a close personalrelationship with the judge or should instead take the lesser step of disclosing the friendshipor close personal relationship to the other lawyers and parties, depends on the circumstances.

Id. at 7.


Dane S.Ciolino

November 29,2019

Judge Reprimanded for Facebook “Likes” and “Shares” onSocial Issues

lalegalethics.org/judge-reprimanded-for-facebook-likes-and-shares-on-social-issues

May a judge tacitly comment on socialissues of the day by “liking” and “sharing”posts by others on Facebook? No,according to a November 2019 publicreprimand by the Tennessee Board ofJudicial Conduct. See Tn. Bd. of JudicialConduct Complaints No. B19-7753 & B19-7777 (Nov. 15, 2019).

A Memphis judge shared as “an interesting read” an article that stated that somepeople needed to “get the f*** over the Holocaust.” He also, “shared” images onFacebook: reflecting “a strong position on professional athletes kneeling during thenational anthem”; opposing support for Hillary Clinton and the black lives mattermovement; expressing a position on “anti-Jihadist sentiment,” and reflecing “bias infavor of then-presidential candidate Donald Trump.”

Although the board found no evidence that the judge made “anti-Semitic, racist, oranti-immigration” statements, it did find that his “likes” and “shares” were “partisan innature.” As a result, the judge’s conduct had the “appearance of impropriety,”reflected adversely on his “impartiality and temperament” and could “reasonably beperceived as prejudiced or biased.” Id. (citing Canons 1 & 2). In accepting a publicreprimand, the judge agreed to “refrain from making any future comments ordisseminate any substantially similar social media posts on any social mediaplatform,” and to make his social media platforms “private.”

Judges, don’t even “like” that viral video of the kitten playing with the seal, cute thoughit may be. What you like may not like you back.


Alex Baird November 29,2019

Responding to Negative Online Reviewslalegalethics.org/responding-to-negative-online-reviews

In a world where consumers make dinnerplans by reading Yelp reviews, it is nosurprise that clients often choose theirlawyers the same way. Good reviewsmatter. Bad reviews hurt business. Whena client posts a negative or inaccurate on-line review, a lawyer has a limited abilityto respond because of the lawyer’s dutyof confidentiality. The leading legalmalpractice insurer in Louisiana, CNA, recently provided this useful advice to lawyerson Responding to Negative Online Reviews:

If possible, don’t respond at all. Get over it. Easy as that.Consider whether the review is actually false and whether it violated the terms ofthe social-media site on which the client posted it. If so, you may be able to askthe site to take down the false or noncompliant review.Talk to the client directly. This can avoid making a scene on the internet and,perhaps, salvage a relationship.If you must respond, think it over before taking to the keyboard. When you starttyping, remember these “Ss”: Keep your response simple, succinct,straightforward, subdued, and sincere. If you cannot keep your emotions incheck, think about asking someone else to write it for you.

All points well taken. But, of course, the best way to deal with bad client reviews is toavoid them in the first place. The three easiest ways to do that? Communicate,communicate, communicate.


Dane S.Ciolino

November 29,2019

New Mexico Adopts Lawyer Anti-Discrimination Rulelalegalethics.org/10980-2

Effective December 1, 2019, New Mexico becamethe sixth state to adopt a disciplinary standardidentical to or analogous to the anti-discrimination provision of ABA Model Rule 8.4.See N.M. Rule 16-804 (N.M. Oct. 15, 2019). To date,nine states have expressly declined to adopt theABA’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 October18, 2019).

The New Rule in New MexicoThe new rule adopted in New Mexico provides that it is “professional misconduct” fora lawyer to:

engage in conduct that the lawyer knows or reasonably should know is harassment ordiscrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age,sexual orientation, gender identity, or marital 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 arepresentation in accordance with Rule 16-116 NMRA. This paragraph does not precludelegitimate advice or advocacy consistent with these rules.

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 lawyer knowsor 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 orsocioeconomic status in conduct related to the practice of law. This paragraph does not limitthe ability of a lawyer to accept, decline, or withdraw from a representation in accordancewith Rule 1.16. This paragraph does not preclude legitimate advice or advocacy consistentwith these rules.

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

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 orsocioeconomic status.” Even words that are not“harmful” meet the definition of “harassment” ifthey are “derogatory or demeaning” and relateto a designated 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 offensivewill be disciplined if the lawyer should have known that it was. It will be interesting tosee how the “objectively reasonable lawyer” will be constructed for purposes ofmaking this determination.

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 the


definition 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 — interpreting asimilar 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 wealth asan 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’ inChoosing Partners, Employees or Experts, The Volokh Conspiracy (Aug. 10, 2016). Volokhquestions whether this rule will prohibit a law firm from preferring lawyers, nonlawyerassistants, 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 with thepractice of law that the lawyer knows or reasonably should know involves discriminationprohibited by law because of race, color, religion, age, gender, sexual orientation, nationalorigin, marital status, or disability. This Rule does not prohibit legitimate advocacy whenrace, color, religion, age, gender, sexual orientation, national origin, marital status, ordisability are issues, nor does it limit the ability of a lawyer to accept, decline or withdrawfrom 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,the LSBA 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 therationale of the lengthy debate in its entirety, the primary arguments made by thoseopposing the rule” were as follows:

Existing rules permit ODC to prosecute much of the conduct that would becovered by 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 theABA’s standard. For all of the reasons discussed above, the ABA model rule is fraughtwith problems.

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 therebyavoided the myriad problems associated with the ABA anti-harassment standard.However, the subcommittee’s proposal still raised serious questions. It branded as“misconduct” purely negligent discrimination. And it inexplicably incorporated some ofthe ABA’s protected classes (race, religion, age, gender, sexual orientation, nationalorigin, marital status, and disability), but excluded others (ethnicity, gender identity,and socioeconomic status).


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-discrimination laws applicable to Louisiana lawyers. Such anti-discrimination lawswould include those enacted by the federal government, the State of Louisiana, andlocal governments. Doing so would avoid the need for the LSBA to “keep up” withchanging notions of what personal characteristics are worthy of class protection.Doing so would also avoid imposing discipline on innocent and merely negligentlawyers. Here is my proposed language:

It is professional misconduct for a lawyer to: . . . (h) engage in conduct in connection with thepractice 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 personalcharacteristic is relevant to the representation, nor does it limit the ability of a lawyer toaccept, decline or withdraw from a representation in accordance with Rule 1.16.

1. The amendment was sponsored by the ABA’s Standing Committee on Ethics andProfessional 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.). ↵

2. For example, my proposal would brand as “misconduct” unlawful conduct basedon personal 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 geneticinformation. ↵


Dane S.Ciolino

November 29,2019

May a Lawyer Incentivize Favorable Online Reviews?lalegalethics.org/may-a-lawyer-incentivize-favorable-online-reviews

Online legal directories (such as Avvo)permit clients to review and rate theirlawyers. Likewise, innumerable social-media sites (like Facebook, YouTube,and others) allow users to “connect” withlawyers and law firms, and to “like,”“follow,” or “subscribe” to them and theirposts. May a lawyer offer an incentive tosocial media users and clients to rate,

connect or otherwise interact with lawyer’s social media presence? In an October2019, ethics opinion, the North Carolina State Bar said “no.” See N.C. State Bar Assoc.,Offering Incentive to Engage with Law Practice’s Social Networking Sites (Oct. 25, 2019).

A lawyer asked the North Carolina Bar Association whether it was professionallyappropriate “to offer a prize incentive to anyone who connects or interacts with any ofhis social media platforms. All users who connect or interact with Lawyer’s law practicesocial media account will be entered into a drawing for a prize.” See id. In answeringthe inquiry in the negative, the opinion concluded that offering such an incentive forproviding online reviews would violate two standards of conduct.

First, such an incentive would violate the principle that “lawyers may not give anythingof value to a person for recommending the lawyer’s services.” A client’s “like” of alawyer on social media is akin to a recommendation of the lawyer’s services.

Second, a review prompted by an undisclosed incentive would be an improper “falseor misleading communication about the lawyer or the lawyer’s services.” Said theopinion:


The purpose behind Rule 7.2(b)’s prohibition on offering something of value in exchange forrecommending services is to ensure that recommendations for a lawyer’s services are basedupon actual experiences or legitimate opinions of the lawyer’s service, rather than financialincentive. The displayed “like” of a law practice may indicate some prior experience with thelaw practice or the personnel associated with the practice upon which the user’s “liking” ofthe practice is based.

See id.

This opinion provides good advice. Lawyers can–and should–have a visible presenceon the Internet in general, and on social media in particular. Lawyers can–and should–encourage satisfied clients to “like, share, follow, or otherwise interact” with suchsocial media accounts. But to comply with the rules, lawyers simply can’t pay theirclients or others for such positive endorsements.


Dane S.Ciolino

November 29,2019

Lawyer Discplined for Multi-Tasking at CLElalegalethics.org/lawyer-discplined-for-multi-tasking-at-cle

The Supreme Court of Kansas disciplineda lawyer for making a “materially falsestatement” in reporting his attendance atan MCLE program. See In re Mathews, No.120,924 (Ks. Sep. 27, 2019). Therespondent claimed more than eighthours of CLE in a single day. Hisexplaination to MCLE authorites? Heviewed an “online on-demand CLEprogram offered by Lawline” while sitting in another, live CLE program.

Once caught, the respondent self-reported his conduct to disciplinary counsel. In sodoing, he contended that he was “overconfident” in his “abilities to multitask.” See id.at 4. Finding, that the respondent engaged in conduct “involving dishonesty, fraud,deceit or misrepresentation,” the court ordered that he “be censured and that thecensure be published in the Kansas Reports.” Id. at 11.



Lawyer Disciplined for Racial Discriminationlalegalethics.org/lawyer-disciplined-for-racial-discrimination

The Supreme Court of New Jerseyreprimanded a lawyer for violating theanti-discrimination provisions of Rule8.4(g) in a medical malpractice caseagainst an Asian optometrist. See In reFarmer, No. DRB 18-276. Normally, therace of the defendant doctor would be ofno significance in a malpractice case. Therespondent, however, performedInternet research and came to believethat the doctor lied and deceived hisclient as a result of the doctor’s Chinese heritage and upbringing. The lawyer sharedhis “research findings” with the optometrist’s lawyer in an effort to settle the matter.

In evaluating the respondent’s conduct, the New Jersey Supreme Court noted that theterm “discrimination” includes “derogatory and demeaning language, and, generally,any conduct towards the named groups that are both harmful and discriminatory.”The court found that the respondent’s statements, which “were written in hisprofessional capacity, during the course of civil litigation,” were “discriminatory anddemeaning on their face, ascribing misrepresentations purportedly made by Dr.Huang directly to his Chinese heritage.” Further, the court rejected the respondent’s I-found-it-on-the-Internet defense:

Respondent’s asserted defenses–that he is not racist, and that he is absolved of anymisconduct because he relied on “expert opinions” in the submitted internet articles–arewholly specious and unworthy of serious consideration. Indeed, as the DEC hearing panelnoted, the articles on which respondent relied were merely “opinion pieces found on theinternet, without any indication of the credentials of the respective authors.” The panelcontinued, not establish its author as an Twitter could constitute characterized the authorssupport for that position.

See id. at 8-9.


Dane S.Ciolino

November 29,2019

Judge Expressly Orders Lawyer to Violate Rules ofProfessional Conduct

lalegalethics.org/judge-expressly-orders-lawyer-to-violate-rules-of-professional-conduct

It is not uncommon forpublic defenders inLouisiana to complainthat being forced tohandle an excessivecriminal-defensecaseload violatesLouisiana Rule ofProfessional Conduct 1.1.That rule requires themto provide “competent”representation to theirclients. When a Missouripublic defender lodged asimilar complaint, the

presiding judge entered the following order:

This Court, having heard [the public defender’s] assertion that he is unable to providecompetent representation [to his many clients because his] total open cases currently number68, [the public defender] is ordered to violate Missouri Supreme Court Rule 4, and enter afull and not-limited entery of appearance as attorney of ecord in the above-numbered cause.

At least the judge was honest about what he was doing.


Dane S.Ciolino

November 29,2019

Court Reports Lawyer for Filing Brief Filled with “Gibberish”lalegalethics.org/court-reports-lawyer-for-filing-brief-filled-with-gibberish

We have all seen this brief before. Butthe Seventh Circuit could take it no more.In a November 2019 opinion, the courtnoted that “[b]ad writing does notnormally warrant sanctions, but we drawthe line at gibberish.” See McCurry v. KencoLogistics Servs., LLC, No. 18-3206 (Nov. 7,2019).

The court held that the plaintiff’s appeal from a summary judgment in anemployment-discrimination case was “a shameful waste of judicial resources” that was“patently frivolous.” Id. at 11-12. For example, the appeal contained whollyunsupported allegations that the defendant employer had attempted to murder anAfrican-American employee with a forklift and had distributed food productscontaminated with vermin and feces. See id. at 15.

Aside from having no merit, the plaintiff’s brief spanned “86 interminable pages,” was“chock-full of impenetrable arguments and unsupported assertions,” and was“organized in ways that escape our understanding.” Id.at 14. Moreover, the brief was“a typographical nightmare,” employing “five different fonts and various font sizes,including three different fonts in one sentence, and words seemingly [capitlized] atrandom.” Id. at 13 n.5.

At oral argument, the court confronted the plaintiff’s lawyer about his brief. He repliedthat he was a “solo practitioner” who tried “to get the help of . . . clients and whoevercan provide help to [him]” and then “merge[s] that information.” Said the court:

Whatever that means, it in no way excuses this unprofessional conduct.

As a result, the court ordered the lawyer to show cause why sanctions should not beimposed. It also referred the matter to disciplinary authorities.


Dane S.Ciolino

September 8,2019

May a Lawyer Use a Client’s Name in Advertisements?lalegalethics.org/may-a-lawyer-use-a-clients-name-in-advertisements

Yes, but only with permission. TheSupreme Court of South Carolinarecently added a new comment to thethe state’s rules of professional conduct“reminding lawyers that Rule 1.6requires lawyers obtain informedconsent from clients before revealinginformation about the representationto advertise their services.” See

Amendments to Rules of Professional Conduct, No. 2018-537 (Jun. 5, 2019).

What was the court’s rationale? “Disclosure of information related to therepresentation of a client for the purpose of marketing or advertising the lawyer’sservices is not impliedly authorized because the disclosure is being made to promotethe lawyer or law firm rather than to carry out the representation of a client.” Id.Moreover, the court noted that this “restriction applies regardless of whether theinformation is contained in court filings or has become generally known.” Therefore, alawyer may use a client’s name in advertisments only “when the lawyer seeksinformed consent in accordance with Rule 1.0(g).”

Louisiana lawyers probably should follow this advice. First, the reasoning of the SouthCarolina Supreme Court is sound. Second, Louisiana’s professional conduct standardsare based largely on the ABA Model Rules of Professional Conduct. Those model rulesinclude commentary advising that a lawyer may publicly disseminate the “names ofclients regularly represented”–but only “with their consent.” See ABA Model Rule ofProfessional Conduct r. 7.2, cmt. 1. So, if you would like to use your client’s name inan ad, simply ask first.

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When Dinosaurs Attack

lalegalethics.org/when-dinosaurs-attackDane S. CiolinoAugust 16, 2019

Just when you think public officials couldn’tget any sillier, this report comes out of FranklinCounty, Washington: “Superior court judges inWashington state who disagreed with theirclerk about transitioning from paper toelectronic files and who ultimately appointed aspecial prosecutor to pursue civil claimsagainst the clerk can’t do so with taxpayerfunds, the state’s highest court ruled.” SeeMelissa H. Stanzione, “Judges Can’t AppointTheir Own Prosecutor in Spat with Clerk,”Bloomberg (Aug. 8, 2019) (behind an annoying paywall, sorry). Apparently the clerk “deemed itunnecessary” to incur the expense of maintaining duplicate paper files after implementing a paperlessfiling system. “The judges declared an emergency and issued an order directing clerks to keep paperfiles.” The clerk refused.

Good for the clerk. Typically, I’d now transition into making the case for electronic case filing–if itwasn’t so obvious. Paper stinks. It’s bulky, inaccessible, unmanageable, unsearchable . . . you know therest. Why these Jurassic judges don’t is baffling.

Lawyers have an “ethical” obligation to maintain technological competence. In 2012, the ABA adoptedan amendment to ABA Model Rule of Professional Responsibility 1.1, comment 8, providing that “alawyer should keep abreast of changes in the law and its practice, including the benefits and risksassociated with relevant technology . . . .” See ABA, Commission on Ethics 20/20 Resolution 105A(August 2012). Since then, at least twenty-seven states have officially adopted Comment 8 as part oftheir rules of professional conduct.

The ABA should adopt a similar revision to Rule 2.5 of its Model Code of Judicial Conduct. That ruleprovides that “[a] judge shall perform judicial and administrative duties, competently and diligently.”See ABA Model Code of Jud. Conduct r. 2.5(A). Unfortunately, the comments to this rule are silent onthe issue of technology. A silence heard round Franklin County.


The Inexplicable Secrecy of Louisiana JudiciaryCommission Proceedings

lalegalethics.org/the-inexplicable-secrecy-of-louisiana-judiciary-commission-proceedingsDane S. CiolinoAugust 11, 2019

On August 11, 2019, the New OrleansAdvocate ran an excellent expose on thesecrecy of proceedings before the LouisianaJudiciary Commission. See Andrea Gallo andJohn Simerman, Jeff Hughes Case Shows Howa Judge’s Misbehavior Can Remain HiddenForever in Louisiana, The Advocate at 1 (Aug.11, 2019). Said the Advocate: ” Thecommission is among the most secretive statebodies: It threatens to hold anyone whoviolates its confidentiality rules in contempt ofcourt. Its rules demanding secrecy are stricter and more sweeping than those for misconductinvestigations into Louisiana lawyers, or for ethics probes into legislators and state and localgovernment officials.” Id.; see also WWL News, “Louisiana Judges’ Secrets May Violate Constitution,Legal Experts Say” (Aug. 15, 2019).

The solution? Apply the same confidentiality principles that exist in the lawyer disciplinary system andgovernmental ethics process. Namely, keep investigations confidential but prosecutions public. Doingso would keep confidential the (many) frivolous complaints lodged against judges by disgruntledlitigants. It would limit public disclosure to those cases in which the Commission has made apreliminary finding that there is probable cause to believe that a violation of the Code of JudicialConduct has occurred. And it would better balance the legitmate need to protect judges fromunwarranted and unfair public criticism with the public’s right to know what its public officials havedone.


Louisiana District Attorneys Call forAmendment to Brady Obligation in Rule 3.8(d)

lalegalethics.org/louisiana-district-attorneys-call-for-amendment-to-brady-obligation-in-rule-3-8dDane S. CiolinoJuly 31, 2019

On July 22, 2019, the Louisiana District Attorneys Association sent a formal request to the ChiefJustice of the Louisiana Supreme Court requesting that the court amend Louisiana Rule of ProfessionalConduct 3.8(d) to accurately reflect a Louisiana prosecutor’s obligation to produce exculpatory Bradymaterial in criminal cases. See LDAA Letter to Louisiana Supreme Court Regarding Rule 3.8(d) (Jul.22, 2019).

Nearly two years ago, the court resolved an unsettledquestion as to whether a prosecutor’s “ethical” dutyto disclose exculpatory evidence under LouisianaRule of Professional Conduct 3.8(d) is broader thanthe similar constitutional duty under Brady v.Maryland (U.S. 1963). In an opinion written byJustice Crichton, the court determined that the duties“are coextensive.” See In re Ronald Seastrunk, No.2017-B-0178 (La. Oct. 18, 2017).

In late May 2019, however, the Louisiana State BarAssociation’s Rules of Professional Committee—at the urging of the Office of Disciplinary Counsel—rejected a proposed amendment to Rule 3.8(d) that would have brought the black-letter text of therule into line with the court’s ruling in Seastrunk. Instead, the committee voted to retain language that issimply no longer the law in Louisiana. A baffling and bizarre vote indeed.

The LDAA’s resolution, if adopted by the court, would revise Rule 3.8(d) to include the Brady“materiality” standard in the black-letter text of the rule:

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 . . . .

See LDAA Letter to Louisiana Supreme Court Regarding Rule 3.8(d) (Jul. 22, 2019). This proposedrevision is sensible and would provide clear and accurate guidance to Louisiana prosecutors. It shouldbe adopted by the court.



November 2019 Disciplinelalegalethics.org/november-2019-discipline

These lawyers were the subject of Louisiana Supreme Court disciplinary orders orLouisiana Attorney Disciplinary Board recommendations published during the monthof November 2019.

Louisiana Supreme Court

1. Douglas L. Uzee, Jr. The courtsuspended the respondent for oneyear and one day, with all but sixtydays deferred. The court issued nowritten reasons for so doing.

2. Rusty J. Savoie. The courtsuspended the respondent for oneyear and one day. The respondentmismanaged his client trustaccount.

3. Charles Marvin Bradshaw, II. The court suspended the respondent for one yearand one day. The respondent was arrested for driving under the influence ofalcohol.

4. Michael T. Bell. The court disbarred the respondent and ordered him to payrestitution. The respondent settled a case without client authorization, chargedinterest on money that he loaned to a client, converted client funds, failed tocooperate with the ODC in an investigation, and provided false statements to theODC. In so doing, the respondent violated Rules 1.3, 1.4, 1.5, 1.8(e)(5), 1.8(k),1.15, 8.1(a), 8.1(c), 8.4(a), 8.4(b), and 8.4(c).

5. Duncan M. Jones. The court suspended the respondent on an interim basis inresponse to a “petition for interim suspension for threat of harm” filed by theODC.

6. Quiana Marie Hunt. The court suspended the respondent for one year and oneday. The respondent mishandled her client trust account and failed to fullycooperate with the ODC in its investigation. In so doing, the respondent violatedRules 1.15(a)(f), 8.1(c), and 8.4(a).


7. George Randy Trelles. The court suspended the respondent on an interim basispending further orders of the court.

8. Audrey Melissa Lamb. The court suspended the respondent for one year andone day. The respondent was involved in a single-car accident in which she wassubsequently arrested and charged with DWI, possession of marijuana, andtraffic offenses. Her conduct violated Rule 8.4(b).

9. Sally Harrison Longmire Hingel. The court disbarred the respondent. Therespondent failed to perform services for a client, misled a client about thestatus of her case, solicited and purchased prescription medication from a client,and failed to cooperate with the ODC. In so doing, the respondent violated Rules1.1(a), 1.1(b), 1.3, 1.4(a)(4), 1.5(f)(5), 8.1(c), 8.4(b), and 8.4(c).

10. Daniel G. Abel. The court permanently disbarred the respondent. Therespondent engaged in serious misconduct, including converting client funds,the unauthorized practice of law, and the making of false statements impugningthe character and integrity of judges without a factual or legal basis. In so doing,the respondent violated Rules 1.9(a), 1.15, 3.1, 3.2, 3.3(a)(1), 3.4(c), 4.4(a), 5.5,8.2(a), and 8.4(c)(d).

Louisiana Attorney Disciplinary Board

1. Alphonse M. Thomas, Jr. The boardrecommended that the court suspendthe respondent for one year with all butthirty days deferred. The respondentforged a judge’s signature on afabricated order and failed to expeditelitigation. In so doing, the respondentviolated Rules 1.3, 1.4(a), 1.4(b), 3.2,8.4(a), 8.4(c), and 8.4(d).

2. Larry English. The board publicly reprimand the respondent, subject to thecondition that the respondent submit the fee dispute in issue to fee arbitrationwith the LSBA’s Fee Dispute Resolution Program. The respondent neglected toprovide his client with fee arbitration information and with completeinformation regarding the client’s demand for a refund. In so doing, therespondent violated Rule 1.5(f)(5).


3. Ronald David Harvey. The board recommended that the court suspend therespondent for one year and one day. The respondent failed to communicatewith a client, failed to correct a misapprehension, and failed to respond to alawful demand for information from a bar admissions or disciplinary authority.He also failed to cooperate with the ODC’s investigation. In so doing, therespondent violated Rules 1.4(a), 1.4(b), 8.1(b), 8.1(c), and 8.4(a).

LADB Hearing Committees

1. Ike Spears. Hearing Committee #8 recommended that the board publiclyreprimand the respondent. The respondent engaged in an inappropriate verbalexchange in open court. His conduct violated Rules 3.5(d) and 8.4(d). For moreinformation on this decision, click here: Reprimand Recommended for LawyerWho Threated to “Punch the Sh*t” Out of Opposing Counsel.


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