Lawyer Ethics Reform in Perspective: A Look at the Louisiana Rules of Professional Conduct Before and After Ethics 2000

• Author: Dane S. Ciolino
• Position: Alvin R. Christovich Distinguished Professor of Law, Loyola University New Orleans
• Pages: 536-604

Alvin R. Christovich Distinguished Professor of Law, Loyola University New Orleans. B.A., 1985, Rhodes College; J.D., 1988, Tulane Law School. Copyright 2004 by Dane S. Ciolino. The author's e-mail address is dciolino@loyno.edu.

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I Introduction

The last several years have been introspective and eventful ones for the American legal profession. During the late 1980s, the American Law Institute undertook the ambitious project of restating the law of lawyering. Heralded upon completion as an "event of major significance," the Restatement of the Law Governing Lawyers is a "major piece of legal scholarship" that now stands as a milestone "contribution to the norms of the legal profession."¹ In 1997, the American Bar Association (ABA) created its Commission on Evaluation of the Rules of Professional Conduct-later known as the Ethics 2000 Commission-to re-evaluate the Model Rules of Professional Conduct from the ground up.² After considering a myriad of "issues and questions" presented by the "explosive dynamics of modern law practice," the Commission completed its work in early 2002 when the ABA House of Delegates adopted comprehensive revisions to the Model Rules.³ Later in 2002, the ABA adopted additional changes to the Model Rules proposed by its Commission on Multijurisdictional Practice.⁴

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These national efforts to reform the ethical standards governing the legal profession have hit home. In 1990, the Louisiana Supreme Court completed a major overhaul of the disciplinary process in Louisiana by creating the Louisiana Attorney Disciplinary Board and the Office of Disciplinary Counsel to police lawyer misconduct.⁵Since then, the Court has established committees to address various issues affecting the legal profession in Louisiana, including the creation of a Committee for the Prevention of Lawyer Misconduct and a Committee on Financial Assistance to Clients.⁶ Likewise, in 1993 and 1997, the Court adopted the recommendations of the Louisiana State Bar Association (LSBA) designed to regulate lawyer advertising and solicitation.⁷ More recently, the LSBA, through its Ethics 2000 and Multijurisdictional Practice committees, proposed extensive revisions to all major sections of the Louisiana Rules of Professional Conduct,⁸ many of which the Court adopted in 2004.⁹

This Article surveys and critiques the 2004 revisions to the law governing lawyers in Louisiana. After considering the history of lawyer regulation in Louisiana, it evaluates the recent amendments to the Louisiana Rules of Professional Conduct adopted by the Louisiana Supreme Court during the Ethics 2000 revision process. In so doing, it discusses the substance of each amended rule, and contrasts the rule as revised with both its Louisiana predecessor and its Model Rule counterpart. Concluding that the revised rules are a marked improvement over what came before, the Article nonethelessPage 538 calls for the on-going reconsideration of the principles, norms, and rules of lawyering in Louisiana.

II The Codification of Legal Ethics in Louisiana: A Retrospective

Although Louisiana courts have long exercised their inherent power to regulate the lawyers practicing before them, the use of uniform standards to evaluate lawyer conduct is a relatively modern development. In the earliest reported case of lawyer discipline in Louisiana, the Superior Court of the Territory of Orleans in 1810 struck the name of Pierre Dormenon from the roll of attorneys.¹⁰After hearing testimony from "men of veracity," the court found that disbarment was warranted because Mr. Dormenon, "wearing a scarf . . . marched at the head of the brigands" during a 1793 slave revolt in Santo Domingo.¹¹ Similarly, the Louisiana Supreme Court imposed a twelve-month suspension on Michel De Armas for using "arrogant and indecorous language" in a brief, which the Court held, "the law forbids us to suffer."¹² In disciplining these lawyers for apparently self-evident wrongdoing, the Court did not labor to find whether either lawyer violated any applicable standard of conduct governing members of the bar. Given that no such standards existed, this should come as no surprise.

In 1899, the LSBA undertook the first effort to codify the principles governing lawyering in Louisiana. In so doing, Louisiana diverged from the lawyer codes then in place in most other states,¹³and instead, based its new code on a seventeenth century oath for advocates from the Swiss Canton of Geneva.¹⁴ AlthoughPage 539 denominated by the LSBA as a "Code of Ethics," this enumeration of broad principles read more like a pledge than a disciplinary code.¹⁵For example, the Code declared that it was the "duty" of a Louisiana lawyer to "maintain the respect due to courts of justice and judicial officers," to "employ . . . such means only as are consistent with truth," to "maintain inviolate the confidence, and at every peril to ourselves, to preserve the secrets of our clients," and to "abstain from all offensive personalities," among other things.¹⁶

Shortly after the LSBA adopted this code, the ABA formed a committee in 1905 to consider the "advisability and practicability" of creating its own.¹⁷ In short order, the committee decided that an ethics code was in fact advisable and practicable, and then set out to collect all of the existing codes, including the LSBA 1899 Code of Ethics.¹⁸ Ultimately, the committee concluded its work and the ABA adopted its 1908 Canons of Ethics.¹⁹ Although history has given the Canons mixed reviews,²⁰ they mark the beginning of the ABA's preeminence in the field of lawyer regulation.²¹

After the ABA enacted the 1908 Canons, Louisiana became one of the first states to adopt them. At its 1910 meeting in Baton Rouge, the LSBA adopted all thirty-two canons without revision.²²Thereafter, Louisiana courts and lawyers slowly began to cite to the Canons as authoritative statements of the principles of lawyering.²³

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Such citations, however, were infrequent. Moreover, confusion remained among members of the Louisiana bar as to the standards governing their conduct. For example, during an LSBA meeting in 1926, a well-intentioned delegate from New Orleans offered a resolution calling for "a revision and restatement of the present code of ethics of this Association, to the end that the same may be made more comprehensive and specific."²⁴ The president of the LSBA responded by asking the delegate if he was aware "that the present code of ethics is the canon of ethics of the American Bar Association." The delegate responded as follows:

Mr. F.B. Freeland (Orleans): No, I was not cognizant of that fact; but I looked at the charter of the Association and found there what appears to be the code of ethics for the Association, and I was not cognizant of the fact that the canons of the American Bar Association were our code of ethics. In fact, that is the main idea I had in mind. If that is the fact, then I most cheerfully withdraw my motion.

President Herold: I am so informed by the Secretary.²⁵In the years following adoption of the Canons, the ABA continually revised and supplemented them. For example, the ABA revised the Canons in 1928, 1933, 1937, 1940, 1942, 1943, and 1951.²⁶ The LSBA kept pace with these changes, first by simply adopting verbatim the ABA's revisions, and later, by selectively picking, choosing, and amending the ABA's standards. For example, in 1929, the LSBA Charter formally adopted the "Canons of Ethics of The American Bar Association in effect January 1, 1929" as "the Code of Ethics of ths Association."²⁷ However, the charter also opened the door for more selective adoption by providing that "[t]he Association shall have the right at any general meeting, by resolution, to alter or amend said Code and to adopt additional canons of ethics, without the necessity of amending the charter."²⁸ Indeed,Page 541 by the early 1940s, the LSBA was liberally diverging from the ABA Canons on matters of form and substance.²⁹

Louisiana's increasing divergence from the aging ABA Canons reflected a more widespread dissatisfaction with the Canons' vague and imprecise standards. Such discontent led the ABA to appoint a committee in 1964 to reevaluate the Canons.³⁰ After working for more than four years, the committee proposed, and the ABA adopted, its Model Code of Professional Responsibility in 1969.

Unlike the 1908 Canons that preceded it, the 1969 Model Code consisted of "three separate but interrelated parts: Canons, Ethical Considerations, and Disciplinary Rules."³¹ The Canons were "statements of axiomatic norms" expected of a lawyer.³² The Ethical Considerations were "aspirational in character" and represented "the objectives toward which every member of the profession should strive."³³ Finally, the Disciplinary Rules were "mandatory in character" and set forth the "minimum level of conduct below which no lawyer [could] fall without being subject to disciplinary action."³⁴

The 1969 Code was quickly and widely accepted around the nation, with Louisiana at the forefront of the wave of adoptions.³⁵During its April 1970 meeting, the LSBA passed a resolution to submit the issue of adoption of the ABA Code to its general membership. That summer, the...