You’ve Got Mail

1. You’ve Got Mail Michael S. Walsh Lee & Walsh 257 Maximilian St. Baton Rouge, LA 70802 225.344.0474 michael@leeandwalsh.com

2. “You’ve Got Mail” • You’ll get a letter in an envelope with the return address of: • OFFICE OF DISCIPLINARY COUNSEL 4000 S. Sherwood Forest Blvd. Baton Rouge, LA 70816 • And the darn thing says: Open by Addressee Only Michael S. Walsh

3. A Letter From ODC • The ODC letter comes Certified Mail Return Receipt requested. • It will tell you a complaint has been filed. • It will tell you that Supreme Court Rule XIX, Section 4B (2) requires you to respond. Michael S. Walsh

4. La. Supreme Court Rule XIX Section: 11 et. seq. • Requires that you respond in writing to the ODC’s request for Information • ODC’s Letter says: You’ve got 15 days* *Louisiana Supreme Court Rule XIX, §11(B)(3) • Get Mad, get over it. • Odds are many lawyers will get one of these at one time in their career Michael S. Walsh

5. Two Options • Ignore the Letter * • * This is a bad idea. • Respond to the Letter - - - - THIS IS REQUIRED - Michael S. Walsh

6. Ignore the Letter(You’re An Idiot) • Failure to respond within 15 days or obtain an extension is a violation of the rules. • Failure to cooperate is a violation in itself. • You don’t respond, you’ve almost done a “Deemed Admitted” – and they got you. Louisiana Supreme Court Rule XIX, §11(E)(3) • You’ve got to file an answer. Michael S. Walsh

7. Respond to the Letter • In order to respond you’ve got to know how the system works. • Knowing the system will allow you to properly respond and, hopefully, end the inquiry early. Michael S. Walsh

8. “Bar Complaints” • A. There is no such thing as a “Bar Complaint” • B. Bar Complaints only exist on Boston Legal and involve Denny Crain. • C. The Louisiana Supreme Court established the Office of Disciplinary Counsel in April 1, 1990 and removed lawyer discipline from the LSBA 19 years ago. • D. You ain’t playing with the LSBA, you’re in front of the Louisiana Supreme Court Michael S. Walsh

9. The Office of the Disciplinary Counsel is the Prosecutor • The “ODC” is like the District Attorney of Lawyer Discipline. • ODC sends out the complaint letters. • ODC works for the Louisiana Attorney Disciplinary Board (LADB) • LADB is Statewide Agency. It is a branch of the Louisiana Supreme Court – not the LSBA Michael S. Walsh

10. Lawyer Discipline has become a political issue • Justice Kitty Kimball’s Campaign Ads mentioned that she’d disciplined hundreds of dishonest lawyers and judges. • Lawyer Discipline is no longer a “Back Room of the Bar Association” Issue. • Information on Louisiana Lawyer Discipline is available on line at: • www.ladb.org Michael S. Walsh

11. Office of Disciplinary Counsel • Think of ODC as the prosecuting attorney against unethical lawyers. • If you get a letter, think of yourself as a defendant • If you’re a defendant, you need a lawyer. Michael S. Walsh

12. ODC – Office of Disciplinary Counsel $2, 539, 549.00 Annual Budget 12 Full Time Lawyer Prosecutors 6 Full Time Investigators 23 Total Full Time Staff Respondent (YOU) You and maybe your secretary Responding to ODC complaint costs you time and YOUR money. In Re:YOUR NAME Michael S. Walsh

13. Even The Playing Field • Hire a Lawyer • Key Word is “hire”. • Good lawyers don’t come cheap • You want a lawyer who knows the system and will work hard to get you out of this mess. Michael S. Walsh

14. How it Starts • ODC receives complaints in many forms: • Clients • Judges • Banks (trust account over draft) • District Attorneys • Lawyers report (Snitch Obligation) • Newspaper articles (DWI, arrest) • 3rd Party Creditors Michael S. Walsh

15. Gilsbar Insurance • Gilsbar (estimate annual sales of $20+ million and is owned by a lawyer named Henry J Miltenberger, Jr.) • Gilsbar Insurance Policy may pay some of your defense costs. • Check your policy. See GilsbarLawyers Professional Liability Policy II, E, 2. • Hire a lawyer. Get Mr. Miltenberger to pay for it. Michael S. Walsh

16. The Snitch Obligation • A Lawyer has an affirmative obligation to report misconduct if he knows (not suspects) a violation that raises a question • If a lawyer knows another lawyer or a Judge has committed a violation. • Rule 8.3 – The SNITCH rule • But if you represent a lawyer Rule 1.6 says you do not have to report your client. Michael S. Walsh

17. Failure to Snitch • Failure to report lawyer or judicial misconduct is an offense. Rule 8.3 (a) (b) & In re Riehlmann 891 So.2d 1230 (La. 2005). • “Piano Player in a Bordello” is not a defense - if you suspect something is wrong you’ve got to report it. • Lawyer was suspended for 9 months for failure to report In Re: Peter Brigandi, 843 So.2nd 1083 (La. 2003) Michael S. Walsh

18. ODC Screens the Complainant • 20, 873 Lawyers in the State of Louisiana • ODC receives between 3000-3500 complaints against lawyers a year. • 260 workdays per year • ODC gets approximately 11.5 complaints against lawyers per work day. On the average, each ODC lawyer gets a new case per workday. Michael S. Walsh

19. ODC Screen Process • Complaint Arrives at ODC • ODC lawyer (not a secretary) screens each and every complaint • ODC intake lawyer decides next step. Michael S. Walsh

20. ODC Dismissal • ODC decides not enough to fool with. • ODC decides not to file Formal Charges • Complainant can appeal • Hearing Committee Chairs (LADB can review) • Less than 1% of dismissals are reversed. Michael S. Walsh

21. ODC Investigates • ODC receives complaint • ODC decides to investigate • ODC sends letter to Respondent (YOU) • You respond to letter within 15 days • ODC receives response and decides to dismiss • Complainant can appeal but most don’t Michael S. Walsh

22. ODC Files Formal Charges • ODC receives complaint, Notifies Lawyer • Lawyer responds, ODC reviews response • ODC seeks permission from HC to file Formal Charges • ODC’s request to file is reviewed by Hearing Committee (HC) Michael S. Walsh

23. LADB Trial Process • Trial Level – Known as Hearing Committee (HC) • HC is 2 lawyers, 1 Civilian • HC is just like a trial (Court reporter, witnesses) • Code of Civil Procedure and Rules of Evidence apply (Rule XIX, Sec. 18B) • HC will make a recommendation Michael S. Walsh

24. Deemed Admitted • Also known as the: • DUMB ASS RESPONSE • Respondent (lawyer) doesn’t file response • HC, LADB and LASC rules it: Deemed Admitted. • Game Over. Lawyer has not contested charges. Just like confirming a default. • You lose. Michael S. Walsh

25. LADB Trial Process • HC Issues Recommendation • HC recommendation will be reviewed by LADB • LADB is made up of lawyers and civilians • LADB is like Court of Appeals • LADB makes Recommendation to LASC Michael S. Walsh

26. Louisiana Attorney Disciplinary Board (LADB) a/k/a Board • Board can issue admonition, probation, reprimands and restitution order. Rule XIX, Sec. 10A • Board can recommend Disbarment, Permanent Disbarment, Suspension and practice limitation but only LASC can order these. Michael S. Walsh

27. Sanctions • Suspension from Practice of Law • A year or less – don’t have to reapply for readmission but . . . • Year and a Day – Have to apply for readmission – have to go through another hearing with HC and then recommendation to Board – this could take another year or so Michael S. Walsh

28. Reinstatement/SuspensionReadmission/Disbarment • Respondent who has been suspended can file reinstatement with 6 months of the suspension left to serve. Rule XIX, Section 24A • Readmission is when lawyer is disbarred. This is not automatic • Same admission rules apply for readmission. Michael S. Walsh

29. Suspended From Practice of Law • Got to close the trust account Rule XIX Sec. 26 • Notify to Clients & Co Counsel by formal letter • Withdraw from all cases • Can’t work in a law office or for a lawyer while suspended* • *You can’t hire a disbarred lawyer to work for you ever. If you hire a suspended lawyer you have to get permission – (Rules of Professional Conduct 5.5 e 1 i) –shall not employ disbarred or resigned attorney • Rules of Professional Conduct 5.5 e 1 ii: Shall not employ any person suspended unless Employment Registration with ODC Michael S. Walsh

30. Notary Work • Suspended lawyers can’t Notarize anything if Notary Commission was issued because you’re a lawyer. Michael S. Walsh

31. ODC • Notifies Lawyer a Complaint has been filed. • Notifies lawyer of Duty to respond. • Lawyer’s chance to respond. • Quickest way to make this go away is to respond properly. Michael S. Walsh

32. Sanctions • Disbarment – one can reapply after 5 Years • Permanent Disbarment – Gone forever • Public Reprimand – Newspaper story • Private Admonition – scolding by LADB. Michael S. Walsh

33. Your Response • Detailed explanation of your actions • Detailed accounting information • Detailed index of what happened and when • Think of it as a federal pretrial order • More Details the Better Michael S. Walsh

34. The Odds • 3000-3200 Complaints a Year • 1000 are screen out immediately • 1600 get letter from ODC • Of this 1600 about 1280 go away • 300-400 get sent to Ethics School Michael S. Walsh

35. The Odds • 80-100 Formal Charges a year • ODC has a 96% conviction rate at hearings (they don’t bring crap to hearings) • Odds are you’re not going to get in trouble if you play by the rules. • Odds are if you get a complaint, it will go away if you respond properly Michael S. Walsh

36. ODC Top 10 Complaints • Number 10: Incompetence • “YOU CAN’T FIX STUPID”Comedian Ron White • Some lawyers can’t be helped. Avoid them as co counsel. • Taking over a case that is a train wreck is always a bad idea. Michael S. Walsh

37. ODC Top 10 Complaints • Number 9 – Improper Handling of Funds • It isn’t your money. Don’t touch it. If you’re holding for 3rd parties, make sure you hold it. • Quickest Way to fix this one: Don’t hold money for clients and if you do, make sure the money goes where it is supposed to go. Michael S. Walsh

38. ODC Top 10 Complaints • Number 8: Neglect • You’ve got to do it. The crap stuff – the stuff on the corner of your desk or the floor. • Quickest Way to beat this one: • Get a calendar system, a “tickler” system and follow it. Your malpractice insurer requires it. Document everything that comes in the door. Michael S. Walsh

39. ODC Top 10 Complaints • Number 7 – Ineffective Assistance • “A man's got to know his limitations”Inspector Harry Callahan a/k/a Dirty Harry in Mangum Force. • Stay out of Bankruptcy Court if you don’t do it. • Same thing for Federal Court • Same thing for Criminal Court Michael S. Walsh

40. ODC Top 10 Complaints • Number 6 Conflict of Interest • Can’t represent both sides. • Divorce case – never notarize other party’s signature. • Never give advice to other side • Quickest Way to beat this one: Have a computer conflict check system. Never talk to other side. • When in doubt, don’t take the case. Michael S. Walsh

41. ODC Top 10 Complaints • Number 5 Misrepresentation/Dishonesty • Assume everything you say to your client he is recording. • Small tape recorders, video cameras, etc. • Many, many cases of lawyer saying “I didn’t say that . . . but client has it on tape” • Emails and digital stuff lasts forever. • Quickest way to beat this one: Careful what you tell them and how you tell them. Michael S. Walsh

42. ODC Top 10 Complaints • Number 4: Trust Account Violation • Comingling of client’s funds • Guarantee disbarment if you do this. • Quickest Way to Beat this one: Use a computer accounting program. • Audit your trust account • Only lawyer should sign trust account • Overdraft notification to ODC Michael S. Walsh

43. ODC Top 10 Complaints • Number 3: Fee Dispute • Unearned Fee • Fee Dispute • Unreasonable Fee • Quickest Way to beat this one? Always have a written Contract with client. Hourly rates, keep track of time, etc. Be sure you can document everything you did and back it up. Michael S. Walsh

44. How to Set a Fee • Rule 1.5 (Excessive Fee) • a) A lawyer's fee shall be reasonable the factors to be considered in determining the reasonableness of a fee include the following: Michael S. Walsh

45. Rule 1.5Fee Setting Rule • The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly. • Quick 102 divorce w/ no kids? • International Custody Case involving Parental Kidnapping? Michael S. Walsh

46. Rule 1.5Is the client a Pain? • The fee customarily charged in the locality for similar legal services; • The amount involved and the results obtained; Michael S. Walsh

47. Rule 1.5Is this case going to keep you from doing other work? • The likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer; Michael S. Walsh

48. Rule 1.5What’s the Client Want & WHEN?? • The time limitations imposed by the client or by the circumstances; • The nature and length of the professional relationship with the client; Michael S. Walsh

49. ODC Top 10 Complaints • Number 2: Failure to return File • It is it not the lawyer’s file. You’ve got to give it to the client at no cost to the client. • Quickest way to beat this one: Give them the damn file. Go to Kinko’s - copy file. Give to client. Save yourself the time/grief, etc. • Fee not paid? Still got to give up the file. Michael S. Walsh

50. ODC Top 10 Complaints • Number 1: Lack of Communication • Document every thing you send a client. Emails, letters, court dates, everything goes to the client. • Quickest way to beat this one: Respond to the ODC letter with a complete index of every time you told the client something. Think of it like your Pre Trial order. Go on offensive on this one. [1] Rule 1.4 (Failure to Communicate) • a) A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information. • (b) The lawyer shall give the client sufficient information to participate intelligently in decisions concerning the objectives of the representation and the means by which they are to be pursued, to the extent the client is willing and able to do so. Michael S. Walsh