Last week, a candidate for the Louisiana Supreme Court sued to overturn a law that prohibits making public records involved in the investigation of a lawyer. As part of his campaign the candidate wishes to discuss (perhaps against an opponent) a complaint he filed.
He argues that the Legislature can’t alter the Constitution’s grant of power to the Louisiana Supreme Court to make rules concerning the Judiciary Commission. Art. V Sec. 25 gives the Court power to “make rules implementing this Section and providing for confidentiality and privilege of commission proceedings.”
However, the section only deals with proceedings against sitting judges, so likely it addresses only Commission proceedings against them. Thus, generally speaking, the Legislature can control how public proceedings can be against lawyers. The question becomes murkier if it involves judges only.
Even if R.S. 44:10 defines “All documents filed with, and evidence and proceedings before the judiciary commission” as confidential, negating it wouldn’t reverse that. The Court simply could expand upon existing rules to create the same thing. As it is, the law allows as a public record only recommendations made by the Commission, except when it runs up against free speech concerns regarding complaints against lawyers. In 2009, the Court declared unconstitutional its own rule that then prevented any individual, such as plaintiffs, from making public information about complaints concerning lawyer conduct.
However, no such thing exists for when the questionable conduct is confined to the performance of judicial duties. Possibly, the Court could find that employing a lawyer requires greater sunshine than an elected official performing his duties, if it also finds it has the power alone to define public records for matters involving judges.
Unless this changes, it means for judges the Commission can avoid making public any investigation that reveals judicial misconduct but is resolved in a way other than a formal recommendation of discipline. Depending upon the forthcoming interpretation on this manner, either one or both of the Court or Legislature would have to change the law or regulation that covers non-sanctions such as reminders, cautions, admonishments, or deferred judgments that covers one or both of judges and lawyers generally.
In fact, this past session Republican state Rep. Zee Zeringue tried to do that. His HB 75 made it out of committee with a modification that stripped making a public record of any conclusion about a complaint made by the Commission – the standard in a majority of states – only to lose narrowly on the floor in a largely party-line vote.
Only a couple of Democrats, who generally support trial lawyers’ interests, voted for it and three others registered absent (most legislation passes by a majority of the seated body, not only those present). But it lost because several Republicans voted against it or were absent, with most of them having law licenses, along with a no-party lawyer.
There’s no good reason to shield lawyers or judges from making public the resolution of complaints against them. Indeed, they should welcome records showing baseless charges made against them, and the public has the right to know when any misconduct has occurred, regardless of form of punishment or whether the Commission reports the matter to the Court for discipline, if for no other reason than to increase its confidence in the profession and the judges they elect.
And if authority in the matter lies with a particular branch of government, it needs removal from the whims of a majoritarian branch or a handful of elected judges. Zeringue’s original bill should come back to life next year, and passed onto voters, as a constitutional amendment. That best secures public trust in the performances of lawyers both off and on the bench.