In re Warner

Citation21 So.3d 218
Decision Date17 April 2009
Docket NumberNo. 2005-B-1303.,2005-B-1303.
PartiesIn re Ivan David WARNER and Steven Joseph Rando.
CourtLouisiana Supreme Court

VICTORY, J.*

This disciplinary matter originated with a complaint alleging that respondents Ivan David Warner and Steven Joseph Rando had breached the confidentiality rule imposed upon participants in an attorney disciplinary proceeding by La. S.Ct. Rule XIX, § 16. In defense, the respondents argued that the confidentiality rule for attorney disciplinary proceedings violates the First Amendment of the United States Constitution. For the reasons which follow, we find that the confidentiality rule does indeed violate the First Amendment, as it constitutes an unconstitutional content-based restriction of speech. U.S. Const. amend. I. Therefore, the confidentiality rule imposed upon participants in an attorney disciplinary proceeding must fall. Given our findings, the charges against respondents no longer have a valid foundation in law. Accordingly, all charges against respondents be and hereby are dismissed.

FACTS and PROCEDURAL HISTORY

In 1996, respondent Ivan David Warner was retained to represent a client who had been involved in a motor vehicle accident while in the course and scope of his employment with a trucking company. Warner initiated both the client's claim for workers' compensation benefits, as well as the client's suit for damages against the third-party tortfeasor, i.e., the owner of the other vehicle involved in the accident. Attorney S was counsel for the employer trucking company. In 1998, before either case was resolved, the client discharged Warner and subsequently hired Attorney C and his associate, Attorney B, to manage the ongoing litigation.1 The third-party liability case was tried in federal court and resulted in a verdict for the defense in early 2000. The workers' compensation case was settled in September 1999. Warner's claims for attorneys fees and costs were not protected in the disbursement of the workers' compensation settlement funds. In response, Warner initiated the legal actions described below.

In June of 2000, Warner filed suit in Orleans Parish Civil District Court against Attorney C and Attorney S, asserting that the attorneys' failure to honor his claims for fees and costs in the settlement of the workers' compensation case was a violation of the Rules of Professional Conduct.2 The petition included claims of negligence, fraud, and intentional acts, including theft. This suit was later amended to add Attorney B as a defendant. Warner retained Steven Joseph Rando to represent him in this civil suit; Warner was not attorney of record and made no appearance as counsel in this matter. The defendants filed exceptions and other pleadings which placed at issue the allegations in Warner's petition.

In February 2002, while the civil suit was still pending, Warner filed complaints with the Office of Disciplinary Counsel ("ODC") against Attorney B, Attorney C, and Attorney S, alleging the same improprieties contained in the lawsuit. Rando was not counsel for Warner in connection with the disciplinary complaints, nor did he otherwise participate in the filing of the complaints. The ODC notified Attorney B, Attorney C, and Attorney S of the filing of the complaints by letters dated March 25, 2002. Copies of these letters were sent to Warner on the same day. Each of the letters indicated in closing that "This matter is confidential at this stage except for necessary disclosures in the course of our investigation. A necessary disclosure may include, for example, sending a copy of your response to the complainant for comment."

In April 2002, the ODC received the responses to Warner's complaints from Attorney B, Attorney C, and Attorney S. On May 2, 2002, the responses were forwarded to Warner. Nothing in the May mailing to Warner indicated that the attorneys' responses were confidential.

On May 10, 2002, Rando, on behalf of Warner, filed a partial motion for summary judgment in the civil case. Attached to the motion as exhibits were the responses Attorney B, Attorney C, and Attorney S had provided to the ODC in defense to Warner's disciplinary complaints. Rando referenced the various responses and argued inconsistencies in the responses in the text of his memorandum in support of the motion for summary judgment. The trial court subsequently denied the motion for summary judgment. Seven days later, Attorney B filed a complaint with the ODC. Attorney B alleged that Warner and Rando had violated the confidentiality provisions of the attorney disciplinary process by using the responses that Attorneys B, C, and S had tendered to the ODC as exhibits in support of Warner's motion for summary judgment. Attorney B pointed out that the record of the civil suit was available to the public.

Both the civil suit and the attorney disciplinary investigation initiated by Warner were resolved by 2003. In April 2002, the ODC dismissed Warner's complaints against Attorney B, Attorney C, and Attorney S. Warner did not appeal the dismissal of the complaints. On November 14, 2003, the parties to the civil suit informed the court that they had reached a confidential settlement, and the court, in accordance with a joint motion from all parties, sealed the record of the civil suit.3

DISCIPLINARY PROCEEDINGS

Based upon the complaint filed by Attorney B, the ODC filed formal charges against respondents, alleging that "[t]he combined actions of both Ivan David Warner and Steven Joseph Rando breeched [sic] the La. S.Ct. Rule XIX Section 16 A, G & I confidentiality provided for bar complaints under investigation by [the] ODC." The ODC further alleged that respondent's conduct constituted a violation of Rules 1.2(a) & (d); 1.16(a)(1); 2.1; 3.1; 3.4(c); 4.4; and 8.4(a)(c) & (d) of the Rules of Professional Conduct.

The Hearing Committee noted that "[u]nder a plain reading of the many rules cited by the ODC" in the formal charges, "nothing really fits this situation to a `T.'" However, the committee found the respondents actions were knowing, intentional, and had caused actual injury and accordingly recommended discipline. The Disciplinary Board also found both respondents guilty of misconduct. The Board found that Warner had violated Rule XIX, § 16(A) and (I) and that Rando had violated Rule XIX, § 16(A). The Board held that Rule XIX, § 16(G) was inapplicable to the matter at hand.4 In a dissent, one member of the Disciplinary Board questioned the constitutionality of the confidentiality rule,5 although this issue had not been raised by the parties at either the hearing or the Board proceedings.

Both respondents, as well as the ODC, subsequently filed objections to the Disciplinary Board's recommendation with this Court. In their objections, the respondents, echoing the substance of the aforementioned dissent, raised for the first time the argument that the confidentiality provided by La. S.Ct. Rule XIX, § 16 for bar complaints was unconstitutional. Respondents specifically charged that the confidentiality rule violated their rights under the First Amendment and the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution.

We first heard oral arguments in this case in January 2006. At that time, the Court questioned counsel as to whether the constitutional issue was properly before the Court given the fact that respondents had failed to raise any constitutional concerns before the Hearing Committee or the Disciplinary Board. Following oral argument, we issued an order inviting supplemental briefing from Warner, Rando, and the ODC addressing two issues: (1) whether the question of the constitutionality of Supreme Court Rule XIX, § 16 was properly before the Court, and (2) what procedure this Court should employ to address the constitutional question.

After due consideration, this Court, acknowledging its original jurisdiction over bar disciplinary matters, agreed to consider the constitutional question. To that end, given the unique facts and circumstances of this case, the absence of a developed evidentiary record on the issue, and the novel nature of the question raised by respondents, we issued an order on April 20, 2006, appointing retired Judge Philip Ciaccio as a commissioner to "take evidence and to develop a record concerning the issue of the constitutionality of Supreme Court Rule XIX, § 16." In Re: Ivan David Warner and Steven Joseph Rando, 05-1303 (La.4/20/2006), La. S.Ct. Order.

Judge Ciaccio conducted a hearing on August 30, 2006. We refer to the transcript of this hearing throughout the course of our opinion. During this proceeding, the ODC6 called several witnesses to testify: Joseph L. Shea, Jr., a Shreveport attorney who has served at the Louisiana Attorney Disciplinary Board as a Hearing Committee member, Board member, and Chair of the Board; Marta-Ann Schnabel, a New Orleans attorney who was then serving as the president of the Louisiana State Bar Association ("LSBA"); Richard Stanley,7 a New Orleans attorney who frequently represents respondents in bar disciplinary matters and has served as an adjunct professor at Tulane University Law School in a variety of courses including the professional responsibilities seminar; and finally, Charles Plattsmier, the ODC's Chief Disciplinary Counsel. These witnesses expressed their views as to the proper application and function of the confidentiality provided by Supreme Court Rule XIX, § 16 for attorney disciplinary matters. Each witness testified that the confidentiality imposed by the rule serves several important interests. Respondents called only one witness, Steve Corbally, a former investigator for the bar disciplinary system in Massachusetts. Mr. Corbally stated that during his term of service as an investigator, Massachusetts only imposed confidentiality upon the office of disciplinary counsel and the Board of Bar Overseers. Mr. Corbally testified that...

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    ...Webb , 144 So. 3d at 978 ; State v. Draughter , 13-0914 (La. 12/10/13), 130 So. 3d 855, 862 ; In re Warner , 05-1303 (La. 4/17/09), 21 So. 3d 218, 246. Reducing the spread of COVID-19 is a compelling government interest. Nevertheless, the state must prove the prohibitions in Orders 30 and 3......
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