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					You’ve Got Mail



        Michael S. Walsh
          Lee & Walsh
        257 Maximilian St.
     Baton Rouge, LA 70802
          225.344.0474
    michael@leeandwalsh.com
               “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
         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
     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
               Two Options
 Ignore the        Letter *
 * This is a bad idea.

 Respond to the Letter - - - - THIS IS
  REQUIRED -




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

                      Michael S. Walsh
      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
             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
          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 Gilsbar Lawyers
  Professional Liability Policy II, E, 2.
 Hire a lawyer. Get Mr. Miltenberger to
  pay for it.

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




                  Michael S. Walsh
           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
         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
   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
          LADB Trial Process
 TrialLevel – 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
         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
        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
  Louisiana Attorney Disciplinary
    Board (LADB) a/k/a Board
 Board canissue 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
               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
      Reinstatement/Suspension
       Readmission/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
    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
            Notary Work
 Suspended lawyers  can’t Notarize
 anything if Notary Commission was issued
 because you’re a lawyer.




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




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




                       Michael S. Walsh
             Rule 1.5
What’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
      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
        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

				
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