Louisiana Law Review Volume 52 | Number 3 January 1992 Professional Responsibility Warren L. Mengis Repository Citation Warren L. Mengis, Professional Responsibility, 52 La. L. Rev. (1992) Available at: https://digitalcommons.law.lsu.edu/lalrev/vol52/iss3/11 This Article is brought to you for free and open access by the Law Reviews and Journals at LSU Law Digital Commons. It has been accepted for inclusion in Louisiana Law Review by an authorized editor of LSU Law Digital Commons. For more information, please contact [email protected]. Professional Responsibility Warren L. Mengis* Introduction The two great turning points resulting in greater power in the Louisiana Supreme Court were Act 54 of 1940 (usually referred to as the Integrated Bar Act) and Saucier v. Hayes Dairy.' In Saucier the Louisiana Supreme Court for the first time held that rules adopted by it pursuant to Article 5 Section 5B (now Section 5A) of the Louisiana Constitution of 1974, which included the Code of Professional Respon- sibility, override legislative acts with which they conflict. In dissent, Justice Summers called the court's pronouncement an irrational usur- pation of legislative authority. The court did not back down from its pronouncement, however, and followed Saucier in Singer Hutner Levine Seeman & Stuart v. LSBA," Leenerts Farms Inc. v. Rogers,, Succession of Boyenga,4 City of Baton Rouge v. Staufer Chemical Company,, Central Progressive Bank v. Bradley,6 Succession of Jenkins,7 and Suc- cession of Cloud.8 The Louisiana Legislature, however, has continued to enact laws which pertain to professional responsibility and conduct of lawyers. For example, Act 250 of 1986 (Louisiana Revised Statutes 9:2448) provides that an attorney appointed in a testament to represent the executor may not be replaced except for cause. A more recent illustration is Act 683 of 1990 (Louisiana Revised Statutes 9:5605) which fixes a one and three year prescriptive period for malpractice actions against attorneys whether the action is based on tort or contract. In 1991, the Louisiana Legislature enacted Act 602 (Louisiana Revised Statutes 6:1351-1354), which purports to limit the duty of professional responsibility of attorneys to certain financial institutions, its shareholders, depositors, customers, creditors, Copyright 1992, by LouIsLAN LAW REVIEW. Professor of Law, Louisiana State University. 1. 373 So. 2d 102 (La. 1979). 2. 378 So. 2d 423 (La. 1979). 3. 421 So. 2d 216 (La. 1982). 4. 437 So. 2d 260 (La. 1983). 5. 500 So. 2d 397 (La. 1987). 6. 502 So. 2d 1017 (La. 1987). 7. 481 So. 2d 607 (La. 1986). 8. 530 So. 2d 1146 (La. 1988). LOUISIANA LA W REVIEW [Vol. 52 or insurers to the duties required of attorneys under the Rules of Professional Conduct. The act further provides that the attorneys should only be liable for actions or inactions based on traditional concepts of legal malpractice judged under accepted standards within the locality. The act specifically provides that the Rules of Professional Conduct should not be viewed as formulated malpractice rules, and failure to comply therewith should not be considered malpractice per se. Justice Summers in his dissent in Saucier said: The Court may not invest its rules with substantive authority inconsistent with legislative enactments. The enactment of sub- stantive rules of laws is a legislative power not to be trenched upon by courts.9 In its most recent decision, the Louisiana Supreme Court stated that "a legislative act purporting to regulate the practice of law has com- mendatory effect only until it is approved by this court as a provision in aid of its inherent judicial power."' 0 What is the Real Scope of the Court's Power? Charles Wrennon Wallace made a statutory will in which he ap- pointed his wife, Ruth Pearl Wallace, executrix of his estate and named Jacqueline May Goldberg as the attorney to act for the executrix and the estate. After filing a petition to probate the will, Mrs. Wallace filed a rule to show cause why the provisions of Louisiana Revised Statutes 9:2448 should not be declared unconstitutional as being in conflict with rules of the Supreme Court and why she should not be able to discharge the attorney even though the legislature in Louisiana Revised Statutes 9:2448 had provided that such an attorney could be discharged only for cause. Prior to the enactment of Louisiana Revised Statutes 9:2448, the supreme court in Succession of Jenkins" had held that the appointment of an attorney to represent an executor or executrix in a testament was precatory only and that the succession representative and/or the heirs and legatees could terminate the appointment. It is clear that the Louis- iana legislature intended to overrule Succession of Jenkins when it passed Act 250 of 1986. Mrs. Wallace contended that the provisions of Louisiana Revised Statutes 9:2448 were in direct contravention of Rule 1.16(a)(3), which provides that an attorney must withdraw if fired by the client. The appointed attorney, however, contended that the "client" was the testator and not the executrix. Justice Dennis, writing for the majority, after reviewing the Louisiana history of such appointments and the law 9. 373 So. 2d at 119. 10. Succession of Wallace, 574 So. 2d 348 (La. 1991). 11. 481 So. 2d 607 (La. 1986). 1992] PROFESSIONAL RESPONSIBILITY of our sister states, concluded that Louisiana Revised Statutes 9:2448 in so far as it conflicted with Rule 1.16(a)(3) was unconstitutional, null, void, and of no effect. Justice Lemmon concurred. Justice Watson joined the opinion and assigned additional reasons, and only Chief Justice Calogero dissented. Although Justice Calogero wrote a very cogent dissent, it is not the conclusion of the majority which worries the writer, but rather the broad scope of the language in the majority opinion. Unlike the opinion in Saucier v. Hayes Dairy, this opinion does not rely very heavily on the constitutional delegation of power to the court, but on the court's inherent power. Consider the following: This court has exclusive and plenary power to define and regulate all facets of the practice of law, including the admission of attorneys to the bar, the professional responsibility and conduct of lawyers, the discipline, suspension and disbarment of lawyers, and the client-attorney relationship... The sources of this power are this court's inherent judicial power emanating from the constitutional separation of powers ... the traditional inherent and essential function of attorneys as officers of the courts... and this court's exclusive original jurisdiction of attorney dis- ciplinary proceedings. The standards governing the conduct of attorneys by rules of this court unquestionably have the force and effect of substantive law... Conversely, the legislature cannot enact laws defining or regulating the practice of law in any aspect without this court's approval or acquiescence because that power properly belongs to this court and is reserved for it by the constitutional separation of powers .... Accordingly, a legislative act purporting to reg- ulate the practice of law has commendatory effect only until it is approved by this court as a provision in aid of its inherent judicial power.3 2 It is interesting to note the reaction of the Louisiana First Circuit Court of Appeal to the above quoted language in Chaffin v. Chambers"s and Thibaut, Thibaut, Garrett and Bacot v. Smith & Loveless Inc.14 In Chaffin, the plaintiff was seeking damages in tort, alleging wrongful interference with a contract between a plaintiff attorney and his former client. The court of appeal sustained an exception of no cause of action filed by the defendant on the basis that only the supreme court could recognize a tort action based on a violation of the Model Rules of 12. 574 So. 2d at 350. 13. 577 So. 2d 1125 (La. App. Ist Cir. 1991). 14. 576 So. 2d 532 (La. App. 1st Cir. 1991). LOUISIANA LAW REVIEW [Vol. 52 Professional Conduct. This decision was reversed and remanded to the trial court by the supreme court on September 9, 1991. In Thibaut the court refused to consider a claim by the defendant that it was entitled to penalties and attorneys fees under Louisiana Revised Statutes 51:1401 (Louisiana Unfair Trade Practices Act) because it concluded that the legislature had no power to set such fees, citing Succession of Wallace. It would seem clear from the reversal and remand of Chaffin that the supreme court does not intend to make itself a court of original jurisdiction for all matters involving attorneys, and yet that is what the above quoted language seems to indicate. The big question, therefore, is whether the court intends to operate within the framework of laws passed by the legislature and use its inherent power only in exceptional circumstances or whether it intends to operate, at least when lawyers are involved, in a sphere totally its own. The United States Supreme Court in Chambers v. Nasco, Inc." recently wrestled with the same problem. The majority concluded that there was no basis for holding that the sanctioning scheme of the statutes and the rules displaced the inherent power to impose sanctions for the bad faith conduct of attorneys and their clients. These other mechanisms, taken alone or together, are not sub- stitutes for the inherent power, for that power is both broader and narrower than other means of imposing sanctions. 16 The dissent, however, concluded that inherent powers are the exception, not the rule, and their assertion requires special justification in each case. Further, inherent powers can be exercised only when necessary, and there is no necessity if a rule or statute provides a basis for sanctions. It follows that a district court should rely on text based authority derived from Congress rather than inherent power in every case where the text based authority applies." The discussion of the scope of the court's power will be considered further in the section on malpractice which follows.