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

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.

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

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 nonetheless 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 Although 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 c...

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