Section 11 - Procedure for Disciplinary ProceedingsA.Screening. The disciplinary counsel shall evaluate all information coming to his or her attention by complaint or from other sources alleging lawyer misconduct or incapacity. If the lawyer is not subject to the jurisdiction of the court, the matter shall be referred to the appropriate entity in any jurisdiction in which the lawyer is admitted. If the information, if true, would not constitute misconduct or incapacity, the matter shall be declined for investigation. The disciplinary counsel may conduct a pre-screening investigative inquiry to determine if a complaint merits investigation, should be declined for investigation, or should be referred to the Practice Assistance and Improvement Program administered by the Louisiana State Bar Association and approved by the Supreme Court. Objections to screening decisions shall be reviewable by the Chief Disciplinary Counsel, but are within counsel's discretion and not otherwise subject to appellate review.B. Investigation.(1) All investigations shall be conducted by disciplinary counsel. Upon the conclusion of an investigation, disciplinary counsel may dismiss or may recommend probation, admonition, the filing of formal charges, the petitioning for transfer to disability inactive status, a stay, or diversion to the Practice Assistance and Improvement Program. Disciplinary counsel may stay investigations where there are substantial similarities to the material allegations pending in civil or criminal investigations.(2)Notice to Respondent. Disciplinary counsel shall not recommend a disposition other than dismissal or stay without first notifying the respondent in writing of the substance of the matter and affording him or her an opportunity to be heard. Service or attempted service of notice to the respondent at his or her primary registration address constitutes adequate notice for purposes of these disciplinary rules.(3) The complainant shall be notified of the disposition of a matter following investigation and of his or her right to file a written request for review of disciplinary counsel's dismissal within thirty days of mailing or electronic transmission of notice of disposition pursuant to Section 4(B)(6), provided however, dismissals conditioned upon respondent's acceptance of diversion shall not be subject to appeal. Disciplinary counsel's dismissal shall be reviewed by a hearing committee selected in order from the roster established by the board to consider the matter, upon the complainant's request for review. The hearing committee may approve, modify or disapprove the appealed dismissal or direct that the matter be investigated further. The standard of review for complainant appeals of dismissal is whether disciplinary counsel abused his/her discretion in dismissing the complaint. Disciplinary counsel may appeal a decision to disapprove or modify a dismissal to a second hearing committee also selected in order from the roster established by the board who shall approve either disciplinary counsel's dismissal or the action of the first hearing committee. Disciplinary counsel's recommended disposition other than a dismissal or diversion shall be reviewed by the chair of a hearing committee, or the other regular lawyer member of the chair's committee, selected in order from the roster established by the board. The chair, or other regular lawyer member of the chair's committee, may approve, disapprove or modify the recommendation.
Disciplinary counsel may appeal a decision to disapprove or modify his or her recommendation to a reviewing chair, or to the other regular lawyer member of the chair's committee, of a second hearing committee also selected in order from the roster established by the board who shall approve either disciplinary counsel's recommendation or the action of the first reviewer.
Any hearing committee, hearing committee chair, or regular lawyer member, who reviews a dismissal or recommendation of disciplinary counsel is disqualified from participating in further consideration of the matter.
In reviewing a recommendation of disciplinary counsel to file formal charges, the hearing committee chair shall determine if there is probable cause to believe that a violation or attempted violation of the Rules of Professional Conduct has occurred or that there are grounds for lawyer discipline pursuant to Section 9.
C.Probation - Imposition.(1) If a matter is recommended to be concluded by probation, or if an existing order imposing probation is recommended to be extended, disciplinary counsel shall notify the respondent in writing of the proposed disposition and of the opportunity to accept or reject the proposal within fourteen days of mailing or electronic transmission of the proposal. Failure of the respondent to timely reject the proposed probation constitutes consent to the probation or extension.(2) If the respondent within fourteen days rejects the proposal, formal charges may be instituted upon disciplinary counsel's request submitted pursuant to section 11(B)(1).(3) If the respondent consents to probation, the matter shall be reviewed by the chair of the board's adjudicative committee. If the proposed probation is approved by the chair, the board shall issue the probation. If the chair disapproves the probation, the chair shall specify in writing the reasons for disapproving the probation. The chair who disapproves a probation recommendation is disqualified from participating in further consideration of the matter. The standard of review for probation recommendations is whether disciplinary counsel abused his/her discretion by recommending probation.D.Admonition - Imposition.(1) If a matter is recommended to be concluded by admonition, disciplinary counsel shall notify the respondent in writing of the proposed disposition and of the opportunity to accept or reject the proposal within fourteen days of mailing or electronic transmission of the proposal. Failure of the respondent to reject the proposal within fourteen days after written notice of the proposed admonition constitutes consent to the admonition.(2) If the respondent within fourteen days rejects the proposal , formal charges may be instituted upon disciplinary counsel's request submitted pursuant to section 11(B)(1).(3) If the respondent consents to the admonition, the matter shall be reviewed by a hearing committee chair. If the proposed admonition is approved by a hearing committee chair, the board shall issue the admonition. If the hearing committee chair disapproves the admonition, the chair shall specify in writing the reasons for disapproving the admonition. Any hearing committee whose chair disapproves issuance of an admonition is disqualified from participating in further consideration of the matter. The standard of review for motions for admonition is whether disciplinary counsel abused his/her discretion by recommending admonition.E. Formal Charges. If a matter is to be resolved by a formal proceeding, disciplinary counsel shall prepare formal charges in writing that give fair and adequate notice of the nature of the alleged misconduct. (1) Disciplinary counsel shall file the charges with the board.(2) Disciplinary Counsel shall cause a copy of the formal charges to be served upon the respondent as provided in Section 13A, with proof of service or attempted service to be filed with the board.(3) The respondent shall file a written answer with the Board and serve a copy on disciplinary counsel within twenty (20) days after service of the formal charges, unless the time is extended by the chair of the hearing committee. In the event, Respondent fails to answer within the prescribed time, or the time as extended, the factual allegations contained within the formal charges shall be deemed admitted and proven by clear and convincing evidence. Disciplinary Counsel shall file a motion with the chair of the hearing committee to which the matter is assigned requesting that the factual allegations be deemed proven with proof of service of the formal charges upon the respondent. The order signed by the hearing committee chair shall be served upon respondent as provided by Section 13C. Within twenty (20) days of the mailing or electronic transmission of the order of the hearing committee chair deeming the factual allegations contained in the formal charges proven, the respondent may move the hearing committee chair to recall the order thus issued upon demonstration of good cause why imposition of the order would be improper or would result in a miscarriage of justice.(4) If there are any material issues of fact raised by the pleadings or if the respondent requests the opportunity to be heard in mitigation, or in any case that the board deems a hearing advisable, the board shall serve a notice of hearing before a hearing committee upon disciplinary counsel and the respondent, stating the date and place of hearing at least twenty-five days in advance thereof. The notice of hearing shall advise the respondent of the right to be represented by a lawyer, to cross-examine witnesses and to present evidence. The hearing shall be recorded.(5) The parties shall have twenty days from the mailing or electronic transmission of the report of the hearing committee in which to file a notice of objection to the report. If an objection is filed, the matter will proceed pursuant to Section 11(F). If no objections are filed, the matter will proceed pursuant to Section 11(G).F.Review by Board. Review by the board shall be limited to proceedings in which either the disciplinary counsel or the respondent has objected to the report of the hearing committee, or upon remand from the court. In such matters, the board's review shall be limited to a review of the report from the hearing committee and the record below. The respondent and disciplinary counsel should be afforded an opportunity to file briefs and present oral argument during the review by the board. The board shall adopt rules establishing a timetable and procedure for the filing of briefs and presentation of argument. (1) Decision by Board. Following its review, the board may approve, modify, or disapprove the recommendation of the hearing committee. In reviewing the facts found by the hearing committee, the board shall adopt these findings unless the hearing committee has committed manifest error or is clearly wrong.(2) During its review, the board shall not receive or consider any evidence that was not presented to the hearing committee, except upon notice to the respondent and disciplinary counsel and opportunity to respond. The hearing committee shall act as the initial trier of fact; the board serves an appellate review function. If new evidence warranting a reopening of the proceeding is discovered, the case should be remanded to the hearing committee.G.Review by the Court. If the parties do not file objections to the hearing committee report, the board shall promptly submit the hearing committee's report to the court. The court, in its discretion, may remand any hearing committee report for further review by the board. If the board conducts a review pursuant to Section 11(F), the board shall promptly submit to the court a report containing its findings and recommendations on each matter heard other than those that have been remanded by the board, dismissed and not appealed, or concluded by probation or a reprimand that is not appealed. A copy of the report shall be served on disciplinary counsel and the respondent. The court shall notify disciplinary counsel and the respondent that the report of the hearing committee or board has been filed. Parties seeking to appeal a dismissal or a matter concluded by reprimand shall file a notice of appeal with the board within twenty days from the date of mailing or electronic transmission of notification by the board that the board ruling has been filed. (1) The respondent and disciplinary counsel may file objections to the disciplinary board's report within twenty days from the date of notification by the court that the report has been filed. If only one party objects within the aforesaid twenty-day time period, the other party shall be given an additional ten days from the date of service of the objections in which to file objections. (a)No objections. In the event no objections to the findings and recommendations of the hearing committee or disciplinary board are filed, the court may enter an order based on the recommended discipline with written reasons, which may be summary in nature. If the court determines that a different disposition may be appropriate, or for any other reason desires briefs or oral argument, the court will notify respondent and disciplinary counsel of the date for submission of briefs and/or oral argument, and may also designate the issue or issues which especially interest the court.(b)Objections. In the event objections to the findings and recommendations of the disciplinary board are filed, the matter shall be assigned for oral argument and notice mailed to all counsel of record (or to the respondent, if not represented by counsel). The brief of the objecting party (or parties) shall be filed with the clerk of court within twenty days of the date of mailing of notice. The brief of the opposing party (or parties) shall be filed within twenty days after the mailing of the objecting party's brief. The parties may, subject to approval by the Court, submit the matter for decision on briefs and without the necessity of oral argument.(2) Briefs and objections shall be accompanied by a certificate showing that a copy was delivered or mailed to opposing counsel or to the opposing respondent, if not represented by counsel.(3) After the case is taken under advisement, the court shall enter an appropriate order in due course and issue written reasons, which may be summary in nature.(4) During its review, the court shall not receive or consider any evidence that was not presented to the hearing committee, except upon notice to the respondent and disciplinary counsel and opportunity to respond.(5) If new evidence warranting a reopening of the proceeding is discovered, the case shall be remanded to the hearing committee.H. Diversion-Imposition. Before the filing of formal charges, if disciplinary counsel is of the opinion that the respondent should be referred to an approved program of the Practice Assistance and Improvement Committee of the Louisiana State Bar Association, disciplinary counsel shall notify the respondent in writing of the opportunity to be diverted. Disciplinary Counsel should consider the following factors in determining whether to refer a respondent to a diversion program: (1) whether the presumptive sanction under the ABA Standards for Imposing Lawyer Sanctions for the violations listed in the complaint is likely to be no more severe than reprimand or admonition;(2) whether participation in the program is likely to benefit the respondent and accomplish the goals set forth in the program;(3) whether aggravating or mitigating factors exist; and(4) whether diversion was already tried. If the respondent agrees to diversion, the form of diversion will be worked out between Practice Assistance Counsel, disciplinary counsel and the respondent. Disciplinary counsel may refer matters involving lesser misconduct to alternatives to discipline programs administered by the Louisiana State Bar Association and approved by the Supreme Court. Such programs may include, in addition to the lawyer/client fee arbitration program and the lawyer assistance program, arbitration, mediation, law office management assistance, psychological counseling, continuing legal education, ethics school and other programs. Respondent will be required to sign a written contract outlining the nature and extent of diversion. In the event of an unsuccessful diversion, the matter will be referred back to disciplinary counsel for further action. If in the course of fulfilling a diversionary contract, violations of the Rules of Professional Conduct other than those for which the diversion was initiated are discovered, disciplinary counsel shall be notified, the contract may be nullified, and if so the matter will be referred back to disciplinary counsel. A diversion contract may be reinstated or new terms added for good cause shown and with the consent of the respondent. Diversion may be used in subsequent proceedings in which the respondent has been found guilty of misconduct as evidence of prior misconduct bearing upon the issue of the sanction to be imposed in the subsequent proceeding.
Amended April 25, 2019, effective 5/15/2019.