Violations Result In No Discipline Unless There Is “Actual Harm”

The Louisiana Attorney Disciplinary Board has agreed with a Hearing Board recommendation and dismissed charges against an attorney, notwithstanding the conclusion that the attorney had violated rules governing competence and supervisory obligations.

The analysis

Here, Respondent violated his duties owed to his clients and to the profession by entrusting his non-lawyer assistant to pay his annual dues/disciplinary assessment and to register his trust account but then failing to properly supervise her. However, the record clearly establishes that Respondent’s actions (or inactions) were purely negligent and did not result in client harm. Any resulting harm to the profession was minimal as Respondent quickly rectified the consequences of his non-lawyer assistant’s conduct. Furthermore, there are substantial mitigating factors supported by the record: 1) absence of a dishonest or selfish motive; 2) timely good faith effort to make restitution or rectify the consequences of misconduct; 3) full and free disclosure to the disciplinary board or cooperative attitude towards proceedings; 4) character or reputation; 5) delay in disciplinary proceedings; and 6) remorse.

Based upon the lack of actual harm, the absence of a dishonest or selfish motive, and the substantial mitigating factors, the Board declines to impose formal discipline in this case. In the past, the Court has declined to impose formal discipline in cases where there was a minor violation of the rules that did not cause any actual harm.

This approach is a very slippery slope. (Mike Frisch)