Friday, October 19, 2018

No Favors

An accused attorney violated no ethics rules, according to a recent decision of the Louisiana Attorney Disciplinary Board.

The complaining client (Mr. Favors) had failed to appear for the hearing

Rule 1.3 states that a lawyer shall act with reasonable diligence and promptness in representing a client. Respondent's testimony and the evidence in this matter show that Respondent was hired to represent Mr. Favors after he had filed a pro se complaint against numerous defendants in a federal court suit. The suit alleged claims arising out of construction work performed on Mr. Favors' house pursuant to the Louisiana Hazard Risk Management Program. It also alleged violations of other state laws and maintained that Mr. Favors' rights under the Fourteenth Amendment of the United States Constitution, 42 U .S.C. Section 1983 and 42 U.S.C. Section 1985 had been violated. (Tr., pp. 29-31; ODC Exhibit 3; ODC Exhibit 4). After enrolling as counsel in Mr. Favors' suit in federal court, the Respondent received extensions of time to file opposition briefs to the various motions to dismiss filed by the defendants. (Tr., pp. 37-39; ODC Exhibit 3)7. She then researched the issues regarding federal subject matter jurisdiction and realized that the complaint, as drafted, lacked jurisdiction under 28 U.S.C. Section 1331 (federal question jurisdiction) or 28 U.S.C. Section 1332 (diversity jurisdiction). (Tr., p. 38). She next filed an Amended and Supplemental Complaint in the matter, hoping to cure the deficiencies identified in the defendants' motions to dismiss or convince the court to exercise supplemental jurisdiction over the state law claims. (Tr., pp. 42-44). She explained that she did not contest the defendants' motions to dismiss because she did not have a legal basis for opposing the motions and to do so could subject Mr. Favors and her to sanctions. (Tr., pp. 39-40; 47, 49, 65-67). She also believed that "to propagate and promote a legal theory that [she] knew was not sound" would be unethical. Cfr., p. 73). Respondent further testified that Mr. Favors understood that no legal basis existed upon which to oppose the motions to dismiss and also understood that she would not oppose the motions on his behalf. (Tr., pp. 40, 83-85).

The Board also found no violation of Rules 1.4 and 1.16

the Board finds it important to note that dismissal of this matter is not based solely on Mr. Favors' failure to appear and testify at the hearing. The developed record before the Board contains no evidence of misconduct on the part of the Respondent. The record instead shows that the Respondent handled Mr. Favors' federal court matter with diligence and competence. Further, although the Respondent counseled Mr. Favors to pursue his state law claims in state court, he decided not to have the Respondent do so. This decision was his alone, and does not amount to misconduct attributable to the Respondent.

(Mike Frisch)

https://lawprofessors.typepad.com/legal_profession/2018/10/an-accused-attorney-violated-no-ethics-rules-according-to-a-recent-decision-of-the-louisiana-attorney-disciplinary-board.html

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