Monday, April 20, 2009

Important Decision On Bar Confidentiality

The Louisiana Supreme Court has dismissed disciplinary charges against two attorneys who had been charged with violating bar rules mandating confidentiality of disciplinary proceedings . The court held that the rule violated the First Amendment of the United States Constitution as an unconstitutional content-based restriction of speech.

The matter involved a lawyer who had filed disciplinary complaints against three lawyers. The lawyer represented a client in a workers' compensation and third party liability matter. The complaining lawyer was discharged prior to the conclusion of the litigation. The bar complaint he filed was against one lawyer who had represented an opposing party; the other two had been retained by the client after the complaining lawyer had been discharged. 

The lawyer had filed a civil suit against several lawyers. He then filed the bar complaints. He received a copy of the lawyers' responses to his bar complaint without notice from the Office of Disciplinary Counsel that the matters were confidential. He then attached the bar complaint responses to pleadings in the litigation. The bar charges were instituted as a result of the public filing of the response. The second charged lawyer was working with the attorney who had filed the bar responses.

The court rejected the proferred justifications for the rule:

The confidentiality rule is a content-based regulation, and thus its substantial restriction of speech may only be deemed constitutional if the rule satisfies the requirements of strict scrutiny analysis. Accordingly, we have reviewed the requirements of strict scrutiny in-depth [79 pages] and have carefully applied these standards to the rule. We conclude that the confidentiality rule does not satisfy the requirements of strict scrutiny. As we interpret the Supreme Court's holdings, the reputational interests of attorneys, while important, do not qualify as compelling under strict scrutiny.

Let the sunshine in. (Mike Frisch)

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As a result of and contributors thereto bringing this Louisiana decision to the attention of the Texas Supreme Court (and which decision we would not have known about but for The Legal Profession blog), Texas' supreme court has announced its intent to revise the Rule to bring it into compliance with the U.S. Constitution. See June 16, 2009 entry at

Posted by: Sean L. Harrington | Jun 16, 2009 1:37:58 PM

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