No Blanket Rule On Ethics Of Failure To Pay Litigation Expenses

A rather unusual order from the Louisiana Supreme Court

Based on our review of the record, we find the disciplinary board was arbitrary and capricious in dismissing the complaint. This court’s opinion in In re: Bilbe, 02-1740 (La. 2/7/03), 841 So. 2d 729, is limited to the unique facts presented and does not stand for the blanket proposition that an attorney’s failure to pay litigation-related expenses can never constitute conduct prejudicial to the administration of justice. Accordingly, pursuant to Supreme Court Rule XIX, § 11(B), this matter is remanded to the Office of Disciplinary Counsel to conduct further investigation and to institute formal charges, if appropriate.

From the court’s 2003 Bilbe decision involving failure to pay a court reporter

The committee found no violation of the Rules of Professional Conduct based on these factual findings, opining “that the failure to pay an invoice of a court reporter does not constitute action that is prejudicial to the administration of justice even though Respondent has no justification for not paying the invoice.   The Committee believes that to hold otherwise, the Board would become a collection agency for creditors of attorneys.”

…the board noted that it is a matter of first impression in Louisiana whether a lawyer’s failure to pay a court reporter’s bill constitutes conduct prejudicial to the administration of justice.   Nevertheless, in the  absence of “specific jurisprudence” to support a finding of misconduct,   the board agreed that respondent’s failure to pay a court reporter does not constitute a violation of Rule 8.4(d), and recommended that Count IV be dismissed…

Finally, the hearing committee and disciplinary board have recommended the dismissal of the charge involving the unpaid invoice for court reporting services.   While we do not condone respondent’s failure to pay litigation-related expenses she has incurred, we tend to agree with the board that such conduct does not generally constitute a violation of the Rules of Professional Conduct.   Furthermore, the ODC has not filed an objection in this court to the board’s recommendation.   Therefore, we will dismiss Count IV of the formal charges.

The issue in Bilbe had not been fully considered in light of other misconduct that drew a three-year suspension, (Mike Frisch)