The ABA/BNA Lawyers’ Manual on Professional Conduct™ is a trusted resource that helps attorneys understand cases and decisions that directly impacts their work, practice ethically, and...
By Samson Habte
June 15 — A bar prosecutor has neither absolute nor qualified immunity from a lawsuit alleging that he violated a lawyer's civil rights by making false statements as a complaining witness in a purportedly baseless disciplinary case, the U.S. District Court for the Eastern District of Louisiana held June 10.
Judge Martin L.C. Feldman said it was not clear as a threshold matter that disciplinary counsel are entitled to the sort of immunity that insulates criminal prosecutors from civil liability for actions tied to their official duties.
But the absolute immunity defense would fail “even if [the defendant] were a criminal prosecutor,” Feldman said, because “a prosecutor [is] not entitled to absolute immunity when she was acting as a complaining witness rather than a lawyer.”
Qualified immunity does extend to “certain functions outside the scope of [the] prosecutorial role,” Feldman acknowledged. But that defense too is unavailable here, he said, because it doesn't apply when an official violates “a statutory or constitutional right that was clearly established at the time of the challenged conduct.” That is what is alleged in this case, the court said.
After prevailing in a disciplinary case that accused him of violating lawyer Internet advertising rules, Kearney Loughlin filed suit against the Louisiana Attorney Disciplinary Board, the Office of Disciplinary Counsel and various officials.
Loughlin claims the advertising rules he was charged with violating are unconstitutional—a question the Louisiana Supreme Court didn't reach when it dismissed his disciplinary charges—and part of his lawsuit seeks an injunction to prevent the bar from enforcing those rules.
Loughlin also sued Deputy Disciplinary Counsel Gregory L. Tweed in his individual capacity. The complaint alleges that Tweed violated Loughlin's First and Sixth Amendment rights by making false statements in the underlying ethics complaint and by refusing to give sworn testimony in the ensuing disciplinary hearings.
“As the complaining witness, Tweed falsely asserted that [Loughlin]’s website was online in October 2011, falsely asserted that [the] website was subject to the advertising rules, and falsely asserted that [the] website violated the advertising rules,” Loughlin said in his lawsuit, which seeks damages for a “claim analogous to malicious prosecution” under 28 U.S.C. §1983.
Tweed said he was entitled to either absolute or qualified immunity. The court rejected both defenses.
As an initial matter, Feldman said, “Tweed's conclusory claim that he is entitled to prosecutorial immunity because the Louisiana Attorney Disciplinary Counsel performs many of the same functions in attorney disciplinary proceedings as are performed by a criminal prosecutor is weak at best.”
The court also shot down Tweed's qualified immunity claim.
While that defense can extend to acts a prosecutor engages in “outside the scope of [the] prosecutorial role,” Feldman said, it does not insulate officials from liability for actions that violate “a statutory or constitutional right that was clearly established at the time of the challenged conduct.”
“Loughlin submits with good reason that his complaint shows that ‘Tweed's conduct was not only objectively unreasonable in light of clearly established law, but that he was deliberately indifferent to Loughlin's right to exercise free and truthful speech without fear of prosecution,'” Feldman wrote.
“Tweed offers no compelling or reasonable argument that he is entitled to qualified immunity for—if Loughlin's allegations are proven true—serving as the complaining witness in a case bringing charges against Loughlin based on the content of a defunct Web site and then refusing to testify under oath or present admissible evidence,” he stated.
Assistant Attorney General David Glen Sanders, Baton Rouge, La., represented Tweed and the other defendants. Loughlin, of New Orleans, appeared pro se.
Copyright 2015, the American Bar Association and The Bureau of National Affairs, Inc. All Rights Reserved.
All Bloomberg BNA treatises are available on standing order, which ensures you will always receive the most current edition of the book or supplement of the title you have ordered from Bloomberg BNA’s book division. As soon as a new supplement or edition is published (usually annually) for a title you’ve previously purchased and requested to be placed on standing order, we’ll ship it to you to review for 30 days without any obligation. During this period, you can either (a) honor the invoice and receive a 5% discount (in addition to any other discounts you may qualify for) off the then-current price of the update, plus shipping and handling or (b) return the book(s), in which case, your invoice will be cancelled upon receipt of the book(s). Call us for a prepaid UPS label for your return. It’s as simple and easy as that. Most importantly, standing orders mean you will never have to worry about the timeliness of the information you’re relying on. And, you may discontinue standing orders at any time by contacting us at 1.800.960.1220 or by sending an email to firstname.lastname@example.org.
Put me on standing order at a 5% discount off list price of all future updates, in addition to any other discounts I may quality for. (Returnable within 30 days.)
Notify me when updates are available (No standing order will be created).
This Bloomberg BNA report is available on standing order, which ensures you will all receive the latest edition. This report is updated annually and we will send you the latest edition once it has been published. By signing up for standing order you will never have to worry about the timeliness of the information you need. And, you may discontinue standing orders at any time by contacting us at 1.800.372.1033, option 5, or by sending us an email to email@example.com.
Put me on standing order
Notify me when new releases are available (no standing order will be created)