Limits Of Zealousness

The Louisiana Supreme Court has imposed a year and a day suspension for litigation and related misconduct of an attorney

The charges in this case allege that in the course of representing a client in pending litigation, respondent made unsubstantiated, disparaging remarks about the trial judge and opposing counsel, engaged in ex parte communications with the trial court’s law clerk, continued to file duplicative pleadings into the record although ordered by the trial court to refrain from doing so without leave of court, and removed the case to federal court solely for the purpose of delay. Respondent’s sole defense to these charges is based on his assertion that he was acting as a zealous advocate for his client and was seeking to address what he perceived as a significant injustice.

While we have recognized attorneys must be vigorous advocates on behalf of their clients, we have consistently rejected any attempts by lawyers to justify their unethical conduct under the guise of “zealous advocacy.” In re: Zohdy, 04-2361 (La. 1/19/05), 892 So. 2d 1277, 1289 at n.15. See also In re: Young, 03-0274 (La. 6/27/03), 849 So. 2d 25, 31 (“While respondent’s motivation may have been to protect the interests of his client, he may not violate his professional obligations as an officer of the court under the guise of being a zealous advocate.”).

Respondent’s actions in the instant case clearly crossed the boundary between zealous advocacy and professional misconduct. As the hearing committee found, many of respondent’s actions, such as his removal of the Heisler case to federal court to avoid the state court contempt hearing, had no basis in fact or law and were intended solely for purposes of delay. He filed multiple pleadings into the record without leave of court, in clear violation of the trial court’s order. He improperly entered into ex parte communications with the trial court’s law clerk, which the committee found represented an “inappropriate and disruptive attempt to influence the court.” Finally, he has repeatedly made unfounded accusations of improper conduct against opposing counsel and the trial court.

Significantly, respondent’s harassing conduct did not abate after the filing of formal charges but has continued during the course of these disciplinary proceedings. Respondent’s filings in this disciplinary matter are replete with unsubstantiated attacks on the integrity of the ODC, the trial judge, and opposing counsel. When asked during oral argument to provide proof for these assertions, respondent merely referred to vague “inferences” which he claims to have drawn from the facts. Such unsupported attacks clearly exceed the bounds of mere advocacy. See In re: Milkovich, 493 So. 2d 1186, 1198-99 (La. 1986) (finding an attorney “far exceeded the limits of zealous advocacy” by leveling “a vicious attack on the integrity of the prosecutor and the judge which is not in any manner suggested by the record.”).

Respondent has also burdened this court during these disciplinary proceedings by filing multiple motions and pleadings, the vast majority of which have no bearing the issues presented in his disciplinary case. Instead, respondent has consistently attempted to re-litigate the merits of the Girod matter in the context of his disciplinary case. Such actions are clearly inappropriate and any attempt by respondent to covertly re-litigate final judgments will not be countenanced by this court.

Taken as a whole, respondent’s actions, both in the context of the underlying litigation and the disciplinary proceedings, display a disturbing lack of respect for the judicial system and his obligations as a professional. As aptly stated by Justice Crichton, “[i]t is unfortunate that respondent does not seem to understand that being a zealous advocate does not equate to such repugnant disrespect for the system we are charged to honor and serve.” In re: McCool, 15-0284 (La. 6/30/15), 172 So. 3d 1058, 1090 (Crichton, J. concurring). It is beyond question that the formal charges have been proven by clear and convincing evidence.

(Mike Frisch)