Presentation to the Solo and Small Firm section of the Louisiana State Bar Association on March 23, 2018. One hour credit in Ethics was earned by members for required annual continuing legal education.

1. BASIC MISTAKES THAT
ATTORNEYS MAKE IN
DISCIPLINARY PROCEEDINGS
Lisa A. Montgomery
March 23, 2018
La. State Bar Association, Solo and Small Firm Luncheon

2. Mistakes – We All Make Them
BUT
A Bar Complaint Will Make Your Head Spin!

3. BREATHE

4. Keep It In Perspective
• Between 3,000 and 3,300 complaints are filed every year
against lawyers.
• There are approximately 21,000 lawyers licensed to practice in LA
• Far more complaints are filed than prosecuted
• Formal charges are a different matter

5. Most Common Disciplinary Actions
• Failure to safeguard your client’s property, a/k/a the IOLTA account
(Rule 1.15)
• Dishonesty, fraud, deceit, or misrepresentation (Rule 8.4c)
• Lack of due diligence and communication (Rules 1.3, 1.4)
Rules of Professional Responsibility

6. Brief History
• The LA Supreme Court has the exclusive right to regulate lawyers
• Pursuant to this right, the Court established the LADB in 1990.

7. What is the LA Attorney Disciplinary Board?
• The LADB investigates lawyer misconduct and makes
recommendations to the Supreme Court for discipline
• The LA Supreme Court has the final word on lawyer discipline
• It is a “unitary entity”

8. What’s a “Unitary Entity”?
Since the LADB performs prosecutorial and adjudicative duties,
the functions are nonetheless separated, in the interests of
fairness.
This is a fancy way of explaining why there are separate offices in
separate cities.
LA Supreme Court Rule XIX, §2(A), Rules for Lawyer Disciplinary Enforcement

9. The Office of Disciplinary Counsel
• The ODC is the prosecutorial arm of the LADC
• The ODC has separate offices in Baton Rouge whereas the
LADB has offices in Metairie

10. Now, Let’s Get Down To Business: What Do You Do
When You Receive the “Dreaded Letter”?
• RESPOND to the Board’s Letter ASAP
• This is your chance to tell what happened
• Don’t put it off – you can get more time to respond if needed

11. Mistake No. 1: Failure to Respond or
Cooperate With ODC
In connection with a disciplinary matter, a lawyer may not
fail to cooperate with ODC in investigations of any matter.
Rule 8.1(C), Rules of Professional Responsibility

12. Mistake No. 1: Failure to Cooperate With ODC
• If an attorney fails to respond to formal charges filed against him or her,
the charges are “deemed admitted”.
• This is essentially a disciplinary “default judgment” against the attorney.
• It means the charges are proven by clear and convincing evidence
against the attorney.
LA Supreme Court Rule XIX, §11E(3), Rules for Lawyer Disciplinary Enforcement

13. Results of Mistake No. 1: Sanctions
When imposing a sanction, the court or board shall consider four factors:
1. Did the lawyer violate a duty owed to a client, the public, the legal system or the
profession;
2. Did the lawyer act intentionally, knowingly, or negligently;
3. The amount of the actual or potential injury caused by the lawyer’s actions;
4. The existence of any aggravating or mitigating factors.
LA Supreme Court Rule XIX, §10(C), Rules for Lawyer Disciplinary Enforcement

14. Sanctions Are Expensive - #1
Once sanctions are imposed for ethical violations, “all costs and
expenses” must be assessed against the attorney.
COSTS are defined to include: investigatory costs, charges for service of
process, witness fees, deposition costs, copying and telephone charges.
LA Supreme Court Rule XIX, §10.1(A & B), Rules for Lawyer Disciplinary Enforcement

15. Sanctions Are Expensive - #2
Expenses are defined to include:
“Reasonable charge for attorney fees and administrative and staff
expenses” according to a scale for the sanction imposed.
LA Supreme Court Rule XIX, §10.1(C), Rules for Lawyer Disciplinary Enforcement

16. Mistake No. 2 – IOLTA Accounts
• Everyone’s favorite topic
• You must safeguard your client’s property in a trust account.
• Really, it’s that simple.
Rule 1.15, Rules of Professional Responsibility

17. What Happens When Your Account
Is Investigated
• An investigation is triggered by receipt of an NSF notice from the
attorney’s bank.
• The Board obtains monthly banks statements and other documents on
the account
• The Board audits the account. Depending on what it finds, it may seek
more documents

18. Audit Results
The Audit typically shows cash withdrawals from the account
and/or the use of a debit card for the IOLTA account in violation
of Rule 1.15(f) of the Rules of Professional Conduct. It can also show
other violations on the use of IOLTA accounts.

19. IOLTA Account Don’ts
• Don’t use a debit card on your trust account – even if the bank gives you
one!
• Don’t use an ATM card
• Don’t withdraw cash from your account.
• Don’t discard your trust account records showing you balanced the
account.
Rule 1.15(f), Rules of Professional Responsibility

20. IOLTA Account Don’ts
• Don’t write checks made payable to “Cash” from the account.
• Don’t delegate any act with regard to the account – not check signing,
not balancing the account, etc.
Rule 1.15(f), Rules of Professional Responsibility

21. IOLTA Do’s
• Do balance your account every month.
• Do sign every check, authorization, transfer, etc.
• Do keep separate trust accounts if circumstances make it easier to
maintain and account for your client’s property.
Rule 1.15(f), Rules of Professional Responsibility

22. IOLTA Do’s
• Do balance your account every month.
• Do sign every check, authorization, transfer, etc.
• Do keep separate trust accounts if circumstances make it easier to
maintain and account for your client’s property.
Rule 1.15(f), Rules of Professional Responsibility

23. LADB Hearing Committees
• There are approximately 45 Hearing Committees throughout the
State
• The Hearing Committees consist of 3 members: 2 lawyers and
one public member

24. Appeal for New Hearing Committee Members
Public Member Hearing Committee Application
Lawyer Member Hearing Committee Application
Completed forms are to be printed, signed, and returned to the Board Administrator at the following a
Donna L. Roberts, Board Administrator
2800 Veterans Memorial Blvd., Suite 310
Metairie, Louisiana 70002

25. Requirements
https://www.ladb.org/About/
• A nominee must possess good moral character and fitness to be a hearing
committee member.
• A lawyer nominee must hold a Louisiana law license that is in good
standing with the Louisiana Supreme Court.
• A lawyer nominee must have been licensed to practice law for five (5) years
at the time of appointment.
• A lawyer nominee cannot be a partner, a shareholder, or an associate of a
law firm that already has two (2) partners, shareholders, or associates that
are currently serving as hearing committee members.
• A nominee cannot serve on a bar association grievance committee at the
time of appointment.
• A nominee cannot hold elected or appointed political office for a term to
lasting longer than thirty (30) days at the time of appointment.

26. THE END