APPENDIX
LOCAL CIVIL RULE 83.2.10E
RULES OF DISCIPLINARY ENFORCEMENT
OF THE
UNITED STATES DISTRICT COURT
FOR THE
EASTERN DISTRICT OF LOUISIANA
RULE I
JURISDICTION AND GOVERNING RULES
A. Admission of an attorney to the bar of this court or other authorizations to practice before this court confer disciplinary jurisdiction upon the court.
B. Unless otherwise provided by these or other applicable local rules or otherwise determined by the court, all procedures in disciplinary actions, including discovery, shall be governed by the Federal Rules of Civil Procedure.
C. Nothing contained in these Rules shall be construed to deny to this court such powers as are necessary for the court to maintain control over proceedings conducted before it, such as proceedings for contempt under Title 18 of the United States Code or under Rule 42 of the Federal Rules of Criminal Procedure.
D. The court hereby adopts the Rules of Professional Conduct adopted by the Supreme Court of the State of Louisiana, as amended from time to time by said Supreme Court, except as otherwise provided by specific rule of this court.
RULE II
GROUNDS FOR DISCIPLINARY ACTION
A. Any attorney authorized to practice before this court may be disbarred or suspended from further practice before this court or subjected to such other disciplinary action as the court finds the circumstances warrant if such attorney:
1. Has been convicted of a serious crime, as same is hereinafter defined, in any court of the United States or any of its territories, commonwealths, or possessions; the District of Columbia; or any state of the United States; or
2. Has been convicted of an offense not constituting a "serious crime" or has committed acts or omissions individually or in concert with any other person or persons, whether or not said acts or omissions occur in the course of an attorney-client relationship, which violate (1) the laws of the United States or any territory, commonwealth, or possession thereof; the District of Columbia; or any state of the United States or (2) the rules of this court or the Louisiana Rules of Professional Conduct which specifically are adopted by this court; or
3. Has been disbarred or suspended from the practice of law by any court of the United States or any of its territories, commonwealths, or possessions; the District of Columbia; or any state of the United States.
B. The term "serious crime" shall include not only any felony, but also any lesser crime a necessary element of which, as determined by the statutory or common law definition of such crime in the jurisdiction where the judgment was entered, involves false swearing, misrepresentation, fraud, willful failure to file income tax returns, deceit, bribery, extortion, misappropriation, theft, or an attempt or a conspiracy or solicitation of another to commit a "serious crime."
RULE III
PROCEDURES
A. COMMENCEMENT OF PROCEEDINGS
1. Disciplinary proceedings under these Rules shall be commenced by (1) the filing of a complaint which sets forth a factual statement of the alleged misconduct; (2) a judgment of conviction; or (3) an order of disbarment, suspension, or other discipline imposed by another court on which the proceedings are based.
2. A certified copy of a judgment of conviction of an attorney for a "serious" crime shall be conclusive evidence of the commission of that crime in any disciplinary proceeding instituted against that attorney based upon the conviction.
3. Complaints involving conviction of an attorney for an offense not constituting a "serious crime" as defined above or allegations or instances of other misconduct by an attorney shall be referred by the judge to whose attention any such complaint has come to the court en banc for determination by a majority of the active judges of the action to be taken, if any, with respect to such complaint.
4. In any case in which the court en banc determines that a complaint or allegations of misconduct, other than the conviction of a "serious crime," even if substantiated, would not warrant disciplining the attorney involved or should be handled by another forum such as the Office of the Disciplinary Counsel for the Louisiana State Bar Association, such complaint may be disposed of by the court without investigation or other action in such manner and with such formality as it deems appropriate.
5. If the complaint is to be pursued, it shall be docketed for random allotment among the active judges of the court. If a matter is predicated upon a complaint by the allotted judge, it shall be reallotted.
6. The allotted judge will conduct all necessary proceedings in such matters.
B. INVESTIGATION
1. In disciplinary proceedings based on allegations or instances of misconduct by an attorney other than a criminal conviction for a "serious crime," the allotted judge shall appoint counsel to investigate the matter and to make a report thereon in accordance with the provisions of paragraph (6) hereinafter. The order of appointment shall set forth the alleged misconduct to be investigated.
2. A copy of the order of appointment for investigation, together with a copy of the complaint or judgment of conviction involved, shall be mailed to the respondent-attorney via registered or certified mail, return receipt requested.
3. The term "counsel" as used in these Rules shall refer to the United States Attorney, his/her assistants, and any other member or members of the bar of this court who are appointed to conduct investigations in and/or to institute and prosecute any disciplinary proceedings provided for in these Rules. Counsel appointed pursuant to these Rules shall serve until relieved by the court.
4. Substitute counsel may be appointed when deemed proper by the court. Whenever it appears that any investigatory or prosecuting counsel is then engaged as an adversary of the respondent-attorney in any other matter, the court shall make a substitute appointment.
5. Upon application by appointed counsel, or counsel for the respondent-attorney, the allotted judge may direct the clerk to issue subpoenas and subpoenas duces tecum as may be required in any investigation or proceeding.
6. Counsel shall expedite the investigation and shall deliver a report thereon in writing to the allotted judge. Counsel may include in the report a recommendation for or against institution of disciplinary action and shall give reasons therefor. The court shall not be required to act in accordance with any such recommendation.
C. IMPOSITION OF DISCIPLINE
1. If after reviewing counsel's report, the court concludes that disciplinary action may be warranted, the respondent-attorney shall be ordered to show cause within 30 days after service of the order to show cause, or at such other designated time, why he/she should not be disbarred or suspended or other discipline imposed. The order to show cause shall be served upon the respondent-attorney by personal service or by registered or certified mail, return receipt requested, along with a copy of the document(s) upon which the disciplinary proceedings are based, i.e., the complaint, the judgment of conviction, or the disciplinary order or judgment of another court, as the case may be.
2. The respondent-attorney shall file a written response within the prescribed time, either admitting or denying the alleged misconduct, conviction, order of disbarment, or suspension or other discipline imposed by another court, together with whatever matters he/she wishes to assert in defense.
3. If any issue of fact is raised by the respondent-attorney's response or if he/she wishes to be heard in mitigation, the matter shall be set for hearing before the allotted judge.
4. For respondent-attorney's failure to file a timely response, the allotted judge may enter an order disbarring or suspending him/her from practice for such failure.
D. FINAL DETERMINATION
1. The allotted judge shall conduct the hearings and all other necessary proceedings in disciplinary actions and shall make written findings and recommendations to be submitted to the court en banc for its consideration and determination of the final discipline, if any, to be taken.
2. The court's decision shall be evidenced by an order signed for the court by the allotted judge or other such judge of the court as may be designated by the Chief Judge.
3. Whenever suspension from practice is ordered as final discipline, the order shall fix the time when an application for reinstatement may be filed.
E. DISCIPLINARY PROCEEDINGS AGAINST ATTORNEYS CONVICTED OF "SERIOUS" CRIMES
1. Upon the filing with this court of a certified copy of the judgment of conviction of an attorney convicted of a "serious crime," as defined above, the court shall enter an order suspending the convicted attorney, whether such conviction resulted from a plea of guilty or nolo contendere or from a verdict after trial or otherwise, regardless of any pending appeals.
2. Once all appeals from the conviction are concluded, a majority of the active judges will determine, en banc, the final discipline to be imposed in the disciplinary proceeding based on the conviction.
F. REINSTATEMENT UPON REVERSAL OF CONVICTION
An attorney suspended under these Rules shall be reinstated immediately upon the filing of evidence that the underlying conviction has been reversed. However, lifting of the suspension will not terminate any disciplinary proceedings then pending against the attorney, the disposition of which shall be determined on the basis of all available evidence pertaining to the conduct which was the basis of the criminal prosecution, all in accordance with these Rules. In the event of such reversal, the court may appoint counsel to assimilate and report to the court the evidence pertaining to the conduct which was the basis of the criminal prosecution. The investigation and disposition of the alleged misconduct will proceed in accordance with Sections (B), (C), and (D) of this Rule.
G. DISCIPLINARY ACTION BY OTHER COURTS
1. Any attorney admitted to practice before this court shall, upon being subjected to public discipline by any other court of the United States or the District of Columbia, or by a court of any state, territory, commonwealth, or possession of the United States, promptly inform the clerk of this court of such action.
2. Upon the filing of a certified or exemplified copy of a judgment or order evidencing the fact that the said attorney has been disciplined by another court, a disciplinary proceeding shall be commenced and shall proceed to finality as provided in Sections (A) through (E) of this Rule.
3. In the event the discipline imposed in the other jurisdiction has been stayed there, any reciprocal discipline imposed in this court shall be deferred until such stay expires.
4. After due proceedings had, this court shall impose such discipline as the circumstances warrant, unless the respondent-attorney demonstrates, and this court finds, that upon the face of the record upon which the discipline in another jurisdiction is predicated, it clearly appears that:
a. The attorney was deprived of due process by the lack of proper notice or the opportunity to be heard; or
b. There was such an infirmity of truth establishing the misconduct as to give rise to the clear conviction that this court could not, consistent with its duty, accept as final the conclusion on that subject.
5. In all other respects, a final adjudication in another court that an attorney has been guilty of misconduct shall establish conclusively the misconduct for purposes of a disciplinary proceeding in this court.
H. PAYMENT OF FEES AND COSTS
1. On completion of his/her services in any disciplinary or other matter under these Rules, court-appointed counsel may make application to this court for an order awarding reasonable fees and reimbursing reasonable and necessary costs and expenses. The court, in fixing the compensation to be awarded, shall apply the in-court and out-of-court hourly rates prescribed in 18 U.S.C. § 3006A(d)(1) for determining the compensation of counsel appointed pursuant to the Criminal Justice Act (18 U.S.C. § 3006A) to represent indigent defendants.
2. The cost and expense of any disciplinary proceeding, including counsel's fees as determined by the court, may be assessed to and shall be paid by the respondent-attorney.
I. NOTIFICATION TO CLIENTS AND CLERK
1. Within 21 days from the date on which an order or judgment of suspension or disbarment has become final and within a like period from the date of a notice given to assume inactive status pursuant to the provisions of Rule VII(G), the attorney so suspended or disbarred or assuming inactive status shall notify by registered or certified mail, return receipt requested, all clients to whom he/she is responsible for pending matters before this court of the fact that he/she cannot continue to represent them.
2. Within 45 days from the date on which any such order or judgment of suspension or disbarment has become final and within a like period from the date of a notice given to assume inactive status, the attorney shall file with the clerk of this court an affidavit stating that he/she has fully complied with the provisions of Rule III(I)(1) above. The affidavit shall also indicate his/her residence or other address to which subsequent communications may be addressed. It shall further be the responsibility of the attorney to keep and maintain records evidencing his/her compliance with this Rule so that proof of compliance will be available if needed for any subsequent proceeding instituted by or against him/her.
J. SERVICE BY MAIL
1. Whenever service of any pleading, order, notice, or other paper upon any respondent-attorney is directed or authorized by these Rules to be made by registered or certified mail, return receipt requested, such service shall be deemed to have been made if the mail is addressed to the respondent-attorney at his/her most recent address appearing in the Roll of Attorneys.
2. Service of any pleading, order, notice, or other paper not required to be served by registered or certified mail may be deemed to have been made when same is addressed and mailed, via ordinary mail, to the respondent-attorney at his/her most recent address appearing in the Roll of Attorneys or in the most recent pleading or other document filed in the disciplinary proceedings by a respondent-attorney appearing pro se.
3. Service of any pleading, order, notice, or other paper may be made upon counsel or respondent's attorney by mailing same to him/her at his/her address appearing in the most recent pleading or other document filed by either in the disciplinary proceedings.
4. Whenever used in these Rules, "Roll of Attorneys" refers to the Roll of Attorneys admitted or otherwise authorized to practice in this court.
K. CONFIDENTIALITY
1. Complaints of misconduct, disciplinary proceedings, and the records therein, except orders of disbarment, suspension, reprimand, or other disciplinary sanctions, shall not be made public except on order of the court.
2. To preserve confidentiality, all proceedings shall be heard in chambers, unless respondent-attorney requests a hearing in open court.
RULE IV
DUTIES OF THE CLERK
A. Upon being informed that an attorney admitted to practice before this court has been convicted of any crime, the clerk of this court shall promptly obtain and file with this court a certified copy of the judgment of such conviction.
B. Upon being informed that an attorney admitted to practice before this court has been subjected to discipline by another court, the clerk of this court shall promptly obtain and file with this court a certified copy of such disciplinary judgment or order.
C. Whenever it appears that any person convicted of any crime, disbarred, suspended, censured, or disbarred on consent by this court is also admitted to practice law in any other jurisdiction or before any other court, the clerk of this court shall, within 10 days of that conviction, disbarment, suspension, censure, or disbarment on consent, transmit to the disciplinary authority in such other jurisdiction, or for such other court, a certified copy of the judgment of such conviction or order of disbarment, suspension, censure, or disbarment on consent, as well as the last office and residence addresses of the defendant or respondent-attorney shown on the Roll of Attorneys.
D. The clerk of court shall, likewise, promptly notify the National Discipline Data Bank operated by the American Bar Association of any order imposing public discipline upon any attorney admitted to practice before this court.
RULE V
DISBARMENT ON CONSENT
A. DISBARMENT ON CONSENT WHILE UNDER DISCIPLINARY INVESTIGATION OR PROSECUTION IN THIS COURT
1. Any attorney admitted to practice before this court who is the subject of a disciplinary investigation pursuant to these Rules or a disciplinary proceeding pending in this court may consent to disbarment, but only by delivering to this court an affidavit stating that the attorney desires to consent to disbarment and that:
a. The attorney's consent is freely and voluntarily rendered; the attorney is not being subjected to coercion or duress; and the attorney is fully aware of the implications of so consenting;
b. The attorney is aware that there is presently pending an investigation or proceeding involving allegations that there exist grounds for the attorney's discipline, the nature of which the attorney shall specifically set forth;
c. The attorney acknowledges that the material facts so alleged are true; and
d. The attorney so consents because the attorney knows that if charges were predicated upon the matters under investigation, or if a disciplinary proceeding so based was prosecuted, the attorney could not successfully defend himself/herself.
2. Upon receipt of the required affidavit, this court shall enter an order disbarring the attorney. The affidavit required under the provisions of this Rule shall not be publicly disclosed or made available for use in any other proceeding except upon court order.
B. DISBARMENT ON CONSENT OR RESIGNATION IN OTHER COURTS
Any attorney admitted to practice before this court who has been disbarred on consent or resigned from the bar of any other court of the United States or the District of Columbia, or from the bar of any state, territory, commonwealth, or possession of the United States while an investigation into allegations of misconduct is pending shall promptly inform the clerk of this court of such disbarment, and the clerk shall obtain a certified copy of the judgment or order of disbarment on consent or resignation to be filed in this court. Upon filing, such attorney shall cease to be permitted to practice before this court and shall be stricken from the Roll of Attorneys.
RULE VI
REINSTATEMENT
A. REINSTATEMENT REQUIRED BEFORE RESUMING PRACTICE
No attorney who, by reason of final discipline imposed by the court, has been suspended or disbarred, or who has been disbarred by consent pursuant to the provisions of Rule V, may resume practice before the court until he/she has made written application for reinstatement and has been ordered reinstated by the court.
B. TIME FOR FILING APPLICATION FOR REINSTATEMENT
After expiration of the period of suspension fixed in the order of suspension, the suspended attorney may file his/her application for reinstatement. An attorney who has been disbarred after hearing or by consent may not apply for reinstatement until the expiration of at least five years from the effective date of the disbarment, unless the disbarment was based upon a disbarment by the Louisiana Supreme Court or a court of another jurisdiction, in which event, an application for reinstatement may be filed at any time after readmission of the applicant by the Louisiana Supreme Court or such other court.
C. HEARING ON APPLICATION
1. An application for reinstatement shall be filed with the clerk of this court, who shall refer same to the judge to whom the disciplinary proceeding or consent to disbarment had been allotted. In the event such judge is unavailable or unable to act, the application shall be randomly reallotted. A hearing on the application shall be held promptly.
2. The applicant shall have the burden of demonstrating by clear and convincing evidence that he/she has the moral qualifications, competency, and learning in the law required for readmission to practice law before this court and that his/her resumption of the practice of law will not be detrimental to the integrity and standing of the bar or to the administration of justice or subversive of the public interest. Final determination of the application for reinstatement shall be made by a majority of the active judges en banc after receipt of the written findings and recommendation of the hearing judge.
D. APPOINTMENT OF COUNSEL
The court, in its discretion, may appoint counsel to oppose or otherwise respond to any application for reinstatement.
E. ASSESSMENT OF COSTS
A non-refundable advance deposit in an amount to be set from time to time by the court shall accompany the filing of any petition for reinstatement, said advance to be applied to the final costs, including any counsel fees, of the reinstatement proceeding as may be determined by the court. Said costs shall be assessed to and paid by the applicant upon conclusion of such proceeding, whether favorable or unfavorable to him/her.
F. CONDITIONS OF REINSTATEMENT
If the applicant is found unfit to resume the practice of law, the application shall be dismissed at the applicant's cost. If the applicant is found fit to resume the practice of law, the judgment shall reinstate the applicant and may make reinstatement conditional upon the payment of all or part of the costs of the proceedings and upon the making of partial or complete restitution to parties harmed by the applicant whose conduct led to the suspension or disbarment, as well as such other conditions deemed proper by the court, provided that if the applicant has been suspended or disbarred or has voluntarily assumed inactive status for five years or more, in the discretion of a majority of the active judges, reinstatement may be further conditioned upon the furnishing of proof of competency and learning in the law, which proof may include certification by the Bar Examiners of the State or other admitting jurisdiction of the attorney's successful completion of an examination for admission to practice subsequent to the date of suspension or disbarment. The judgment shall require appropriate evidence of satisfaction of any conditions of reinstatement imposed and shall fix the time at which the reinstatement shall be effective.
G. SUCCESSIVE APPLICATIONS
No application for reinstatement under this Rule shall be filed within one year following an adverse judgment upon an application for reinstatement filed by or on behalf of the same person.
RULE VII
REGISTRATION STATEMENTS AND FEES
A. For the year 1987 and for every calendar year thereafter, every attorney admitted to practice before this court shall pay to the clerk of this court an annual fee of $5.00 to be made part of a fund to be used to defray the expense of administration and enforcement under these Rules and for such other uses and purposes which the court may determine to be in furtherance and in aid of the court's functions and operations and the practice of law before the court. Such fee shall be due and payable triennially in the amount of $15.00 not later than March 1 of the calendar year in which such payment is required to be made, the first of such payments to be made not later than March 1, 1987.
1. All persons first becoming subject to these Rules by admission to practice before this court after December 31, 1986, shall make the aforesaid $15.00 triennial payment at the time of admission. Such fee shall not be prorated within any calendar year, but an attorney first admitted in the second or third year of any triennial period shall be required to make proportionate payment only for those years of such period in which the attorney's membership in the bar is effective.
2. Payment of a fee of $5.00 shall be a condition precedent to each admission pro hac vice by any attorney not otherwise admitted to the bar of this court, unless a similar fee has been paid to another court of the United States and satisfactory evidence thereof has been submitted to the clerk.
B. Any attorney who fails to timely pay the fee required under (A) above shall be summarily suspended, provided a notice of delinquency has been sent to the attorney by first class mail to his/her last address appearing in the Roll of Attorneys of the bar of this court at least 30 days prior to such suspension.
C. Any attorney suspended under the provisions of (B) above shall be reinstated without further order upon payment of all arrears.
D. To facilitate the keeping of an accurate Roll of Attorneys, every attorney subject to these Rules shall, on or before March 1, 1987, and triennially thereafter on or before the first day of March, file with the clerk of this court a registration statement on a form prescribed and supplied by the clerk setting forth the attorney's current residence and office addresses; his/her Bar Roll number; and the bars of all states, territories, districts, commonwealths, or possessions or other courts of the United States to which the attorney is admitted and the dates of such admissions. In addition, every attorney subject to these Rules shall file a supplemental statement of any change in the aforesaid information previously submitted within 30 days of such change. All persons first becoming subject to these Rules by admission to practice before this court after December 31, 1986, shall file the registration statement required by this Rule at the time of such admission. Upon request, the clerk will provide a certificate of compliance.
E. Within 30 days of receipt of a statement or supplemental statement and of payment of the aforesaid fee in accordance with the provisions of (A) and (D) above, the clerk shall acknowledge receipt thereof in appropriate form so as to enable the attorney, on request, to demonstrate compliance with the requirements of (A) and (D) above.
F. Any attorney who fails to file the attorney registration statement or supplemental statement as required above shall be summarily suspended, provided a notice of delinquency has been sent to the attorney by first class mail addressed to the attorney's current address as appearing in the Roll of Attorneys of the bar of this court at least 30 days prior to such suspension. The attorney shall remain suspended until he/she has complied with these Rules, whereupon the attorney shall be reinstated without further order.
G. An attorney who has retired or is not engaged in the practice of law before this court may advise the clerk in writing that he/she desires to assume inactive status and discontinue the practice of law before this court. Upon the filing of such a notice, the attorney shall no longer be eligible to practice law in this court and shall not be obligated for further payment of the fee prescribed herein or for filing the attorney registration statement every three years as required by this Rule for active practitioners.
H. Upon the filing of a notice to assume inactive status, the attorney shall be removed from the roll of those classified as active until and unless he/she requests and is granted reinstatement to the active rolls. Reinstatement shall be granted (unless the attorney is then subject to an outstanding order of suspension or disbarment or has been on inactive status for five years or more) upon the payment of any fees due as prescribed by this Rule and the submission of a current registration statement. Reinstatement to active status of an attorney who has been on voluntary inactive status for five years or more shall be governed by the provisions of Rule VI relating to reinstatement to practice before the court.
I. The fees and costs paid pursuant to these Rules shall be received and maintained by the clerk as trustee thereof in separate interest bearing, federally insured accounts with such depositories as the court may from time to time approve or said fees and costs may be invested in obligations of the United States. Funds so held shall be disbursed only pursuant to the orders of the court and at no time shall they be deposited into the Treasury of the United States.
APPENDIX
NOTICE REGARDING COMPLAINTS OF
JUDICIAL MISCONDUCT OR DISABILITY
To improve the administration of justice in the federal courts, Congress passed the Judicial Conduct and Disability Act of 1980, codified at 28 U.S.C. § 372(c). The law authorizes complaints against United States Circuit, District, Bankruptcy, and Magistrate Judges who have "engaged in conduct prejudicial to the effective and expeditious administration of the business of the courts" or who are "unable to discharge all the duties of office by reason of mental or physical disability." The conduct to which the law is addressed does not include making wrong judicial decisions, for the law provides that a complaint may be dismissed if it is "directly related to the merits of a decision or procedural ruling."
The Judicial Council of the Fifth Circuit has adopted Rules Governing Complaints of Judicial Misconduct or Disability. These rules apply to judges of the United States Court of Appeals for the Fifth Circuit and to the district, bankruptcy, and magistrate judges of federal courts within the Fifth Circuit. The Fifth Circuit includes the states of Texas, Louisiana, and Mississippi.
These Rules may be obtained from, and written complaints filed at, the following office:
Clerk
United States Court of Appeals
for the Fifth Circuit
600 Camp Street, Room 102
New Orleans, LA 70130
December 1, 1993