RULES OF SUPREME COURT OF LOUISIANA
PART B. ADMINISTRATIVE
The Rules for Lawyer Disciplinary Enforcement exist for the purpose of outlining efficient means by which lawyer disciplinary enforcement is to be carried out with a principal goal of protecting the public. A twin goal is the removal of attorneys from the practice of law who have demonstrated a lack of ability to uphold those traits considered essential to the practicing attorney in the State of Louisiana. To the extent that an attorney is an absentee, non-resident, or may have intentionally or otherwise avoided service of notice of formal disciplinary proceedings, the legitimate goals of lawyer disciplinary enforcement may be delayed if not obstructed. A well developed procedure for the use of a curatorship to protect the interests of lawyers is authorized by Rule XIX, Section 18B, which provides:
Except as otherwise provided in these
rules, the Louisiana Code of Civil Procedure and the Louisiana Code of Evidence
apply in discipline and disability cases.
Accordingly, the Louisiana Code of Civil Procedure articles applicable to the appointment of curators to represent absentees and non-residents in civil proceedings can and should be readily adapted for use in lawyer disciplinary proceedings.
Rule 2. Criteria for Curatorship
use in Disciplinary Proceedings
Not all matters of lawyer disciplinary enforcement warrant the expenditure of the resources of the agency where the attorney is an absentee, non-resident, or is otherwise unavailable for securing service of notice of the formal disciplinary proceedings. However, in cases of serious lawyer misconduct which, in the judgment of the Office of Disciplinary Counsel, would likely lead to the imposition of a suspension or disbarment, use of these curatorship guidelines is appropriate.
In cases where serious lawyer misconduct has occurred that would warrant suspension or disbarment and, where the respondent is (1) either an absentee, non-resident, or where the respondent has an invalid registration statement filed with the Louisiana State Bar Association regarding his/her address, and reasonable investigative efforts by the Office of Disciplinary Counsel have failed to locate the respondent; (2) instances where investigative efforts suggest that the respondent is intentionally or unintentionally avoiding service; or (3) in cases of subsequent discipline where the respondent is already suspended and/or disbarred and his/her current whereabouts are unknown, use of these curatorship guidelines is indicated.
Rule 3. Steps Preliminary to Curatorship Motion
1. Disciplinary counsel contemplating use of the Curatorship Motion vehicle must locate the judicial district of the last valid registration statement of the respondent, the last confirmed principal office of the respondent if different from the last valid registration statement filed with the Louisiana State Bar Association, or the last known address of the respondent.
2. Disciplinary counsel shall consult the clerk of court and/or chief judge of that judicial district to secure a list of names of attorneys in good standing for possible appointment as curator within that judicial district. The good standing of each attorney whose name appears on that list shall be independently verified by disciplinary counsel by reference to the registration with the Louisiana State Bar Association and other information available within the Office of Disciplinary Counsel.
3. Disciplinary counsel shall draft
a list to be captioned "Eligible for Curatorship Appointment" which shall be
attached as an exhibit to any Motion to Appoint a Curator which is filed with
the Supreme Court.
Rule 4. Motion to Appoint Curator
After Filing of Formal Charges
In cases where the criteria for curatorship appointment has been met and disciplinary counsel has secured a list of attorneys eligible for curatorship appointment, a Motion shall be drafted seeking appointment of a curator for the respondent which sets forth the following information:
a. The attorney is named as a respondent in formal charges previously filed with the disciplinary board, a copy of which is attached to the Motion.
b. A statement indicating that the respondent is an absentee, non-resident, that the last registration statement is no longer valid, that the respondent is unavailable for service, or that the respondent has been the subject of previous discipline and his/her whereabouts are unknown.
c. An affirmative statement stating that reasonable efforts have been used to locate the respondent over and above making reference to the registration statement of the respondent, all to no avail.
d. That the allegations of misconduct of which the respondent is accused are contrary to the Rules of Professional Conduct, and which, if proven, warrant disciplinary action.
e. That the interests of the public, profession, and the judicial system require that the matter proceed.
f. A representation that the court should appoint a curator to represent the absent/non-resident respondent and that the selection be made from the list entitled "Eligible for Curatorship Appointment" who are attorneys in good standing from the judicial district of the respondent's last valid registration statement, last confirmed principal office, if different from the last registration statement, or last known address of the respondent.
Attached to the Motion to Appoint Curator should be:
1. The affidavit of the investigator
and/or disciplinary counsel certifying the reasonable efforts to locate the
2. The list setting forth those attorneys who are eligible for a curatorship appointment.
3. An Order provided to the court which should direct that an attorney selected by the court from the list of eligible attorneys available for appointment as curator has been selected to represent the respondent without fee as an absentee and/or non-resident and shall perform those duties incumbent upon the curator as set forth in the Code of Civil Procedure, authorizing the reimbursement of all reasonable out of pocket costs incurred by the curator to be paid by the board administrator, with all such expenses to be taxed as costs of the proceedings.
Rule 5. Service of Formal Charges
The order and formal charges should be served upon the curator as provided for service of formal charges in normal disciplinary proceedings. Accompanying the service of the court's order and formal charges should be a standard form setting forth those minimum duties which should be performed by the curator.
Rule 6. Proceedings Immediately
Following Curator Appointment
Curators are appointed by Order of the Louisiana Supreme Court in certain lawyer disciplinary proceedings. Use of the curatorship process is authorized by virtue of Louisiana Supreme Court Rule XIX, Section 18B and the Louisiana Code of Civil Procedure. The duties and responsibilities of a curator in general are set forth in the > Louisiana Code of Civil Procedure, Articles 5091, et seq.
Because lawyer disciplinary enforcement proceedings are sui generis and are neither criminal nor civil, additional guidance in understanding the nature and extent of a curator's duties are provided.
1. The curator will receive service of an Order of the Louisiana Supreme Court appointing him/her as curator for a respondent in lawyer disciplinary proceedings. Additionally, the curator will receive a copy of the formal charges by certified mail, return receipt requested. The curator then has twenty (20) days within which to file an answer on behalf of the respondent.
2. It is incumbent upon the curator to advertise in the official newspaper for the judicial district from which the curator was appointed seeking the whereabouts of the respondent. The Office of Disciplinary Counsel recommends that such an advertisement be run for a period of three (3) days during the 20 day period preceding the date when the answer to formal charges must be filed. Upon receipt of the Order of appointment from the court, the curator should contact the board administrator with the name and telephone number of the official newspaper for the curator's judicial district. The board administrator will provide the newspaper with a purchase order number for the advertisement so that billing will be directed to the board administrator's office and so that the curator will incur no out of pocket expenses. The telephone number of the board administrator is 1-800-489-8411.
Rule 7. Locating the Respondent
a. If the respondent is located, the curator must provide the respondent with actual notice of the formal charges by personal delivery or by forwarding same to the respondent by certified mail, return receipt requested. If actual notice of the formal charges is accomplished by personal delivery, the curator shall prepare an affidavit to that effect which should be filed with the disciplinary board through the board administrator. Thereafter, the curator will be released from further responsibility relative to his/her curatorship duties. If actual notice is accomplished by a properly executed return receipt, then the return receipt along with the curator's affidavit attesting to the fact of actual delivery by certified mail shall be filed into the record of the proceedings with the board administrator. This too, shall relieve the curator of further obligations relative to his/her curatorship duties. At this point, if the curator has incurred any costs, those costs should be submitted to the board administrator, who will reimburse the curator for all reasonable out of pocket expenses incurred. No other fees will be awarded for curatorship duties in disciplinary proceedings.
If after locating the respondent, the curator is unable to provide the respondent with actual notice of formal charges by either personally delivering same or by certified mail, then the curator's duties shall continue as hereinafter set forth.
b. If the respondent is not located, or if the curator cannot accomplish actual notice of formal charges as set forth in (a) above, then:
1. The curator must file an answer to the formal charges in the form of a general denial or other appropriate response within twenty (20) days of service of the formal charges.
2. The curator shall represent the respondent at all proceedings. Disciplinary proceedings and hearings shall be conducted contradictorily with the curator as provided by the Louisiana Code of Civil Procedure and the Rules for Lawyer Disciplinary Enforcement.
Rule 8. The Role of the Curator
at the Disciplinary Hearing
The curator may cross examine witnesses and shall otherwise have the same duties and responsibilities as are set forth in Louisiana Code of Civil Procedure Article 5095. Specifically, the curator must introduce into the record of the proceedings proof of efforts to locate the respondent.
Rule 9. The Role of the Curator
Following the Disciplinary Hearing
The hearing committee will issue findings of fact and recommendations following the hearing. Notice of the hearing committee's recommendations will be forwarded to the curator by the board administrator. If in the judgment of the curator, an objection is warranted to the findings and recommendations of the hearing committee, the curator should file a brief with the disciplinary board outlining the curator's objections or other position.
All matters coming from a hearing committee are assigned to a board panel for review. The board administrator will forward to the curator notice of the hearing to be held before the board panel. If the curator deems it necessary or appropriate, the curator may wish to present argument before the board panel on behalf of the respondent. The disciplinary agency is aware of and is sensitive to the time demands incumbent in a curatorship appointment. Accordingly, the curator may wish to make any disciplinary board panel argument by telephone. It is likely that such requests will be honored by the board panel chair.
Rule 10. The Role of the Curator
Following the Disciplinary Board Panel Hearing
Pursuant to Rule XIX, should the respondent wish to be heard by the court, it is incumbent upon the respondent to file an objection to the recommendations of the disciplinary board. In furtherance of the curator's duties, the curator may file an objection to the disciplinary board recommendation with the Louisiana Supreme Court. In such instances, the court will docket the matter for argument and the curator will be notified by the clerk of the Louisiana Supreme Court of the date the matter is scheduled for argument. If the curator determines that oral argument is required, it will be necessary for the curator to appear before the Louisiana Supreme Court. If in the judgment of the curator the matter can be submitted on briefs, the curator may so notify the court.
Rule 11. Conclusion
The curator's duties and responsibilities on behalf of a respondent in disciplinary proceedings may give rise to questions. The curator's attention should be directed to the clerk of the Louisiana Supreme Court, the disciplinary board administrator, or the Office of Disciplinary Counsel, all of whom will endeavor to provide the curator with guidance and assistance on any questions that may arise. While the Office of Disciplinary Counsel stands adverse to the interests of a respondent in a lawyer disciplinary proceeding, disciplinary counsel will attempt to answer any questions of procedure which may arise, but cannot and will not provide guidance or assistance regarding the substantive nature of the charges.