Disciplinary Actions for Out-of-State Attorneys, and Creation of Courts of Specialized Jurisdiction
POSITION: OPPOSE
What It Does: Broadly speaking, passage of this amendment would do two unrelated things with regard to the judiciary: 1) explicitly allow the Louisiana Supreme Court to discipline out of state attorneys and, 2) authorize the Legislature to create specialty courts at a regional or state level.
Background: The constitution gives the state Supreme Court the authority to discipline attorneys who are admitted to the bar in Louisiana for unethical behavior, but it is silent about attorneys who are from out-of-state, but are participating in Louisiana cases. State law generally requires attorneys to pass the Louisiana bar to engage in litigation in Louisiana, but there are exceptions.
Typically, that involves an out-of-state firm partnering with a Louisiana-licensed attorney to work on a case. In the wake of recent hurricanes, there have been complaints that attorneys from other states have come to Louisiana and filed fraudulent claims, engaged in fee gouging, and misrepresented their qualifications to clients. Rules of the Supreme Court allow it to police attorneys from other states practicing law in Louisiana, but this amendment puts that authority in the constitution.
The other part of this amendment deals with the creation of new specialized courts. Most people are familiar with the broad judicial structure in Louisiana of state district courts, appellate courts, and the Supreme Court. But the Legislature has the authority to create other courts, too. Generally, they are courts of “limited” jurisdiction and courts of “specialized” jurisdiction.
Courts of limited jurisdiction include city courts, mayor’s courts, and justices of the peace. The courts of specialized jurisdiction in Louisiana tend to be juvenile, family, and drug courts. But the Legislature can only create these types of courts within the jurisdiction of a parish. This amendment deletes that restriction and would allow them to be created on a regional or statewide basis by a two-thirds vote of the Legislature.
Comment: In recent years there has been a degree of tension between the Legislature and the judicial branch of government. Much of that has been around funding, the number of judges across the state, and variations in caseloads caused by population shifts and the loss of residents in some areas. A Legislative Auditor’s report in 2023 found that Louisiana had a significantly higher number of judges per capita than it found in five other states of similar size. And a legislative resolution last year called for a new study of population, caseload, and demographic issues as they relate to the courts.
That is the backdrop for this amendment that seeks to expand the Legislature’s authority to create new specialty courts. Supporters of this amendment have suggested that one such specialty court to consider might be a business court. There are no business courts in Louisiana, but 27 other states have them including Texas which just started its business courts in 2024.
Basically, business courts are specialized courts where the judges would have additional expertise to resolve complex business disputes. Cases of this nature are currently handled in state district court. But the Legislature could also create other courts, such as drug courts, mental health courts, and veterans’ courts on a regional basis. The idea would be that these courts could serve a beneficial service over a multi-parish area, making them more cost effective for smaller jurisdictions that would not be able to afford them otherwise.
But there were also concerns with this proposal. Primarily they focused on the potential cost and general uncertainty about what these courts would look like. While lawmakers expressed a general interest in the idea of regional drug courts, many were unfamiliar with business courts and questioned the need for such a specialized court in a small state like Louisiana. They suggested it would be better to study the need for more specialty courts before authorizing the Legislature to create them.
We tend to agree. To date there has been little to no discussion about whether there is a need to create a new business court or expand the jurisdiction of drug or other specialty courts. Nor has the Legislature addressed the significant problems that currently exist with the high number of judges Louisiana already has, the disparities in their caseloads, and the possibility of consolidating current judicial jurisdictions.
It would seem to make more sense to identify where and what new courts we might need, first, and then see if voters agree, rather than giving the Legislature blanket authority to create new regional or statewide courts without even knowing what they would do. It is unfortunate this amendment has two very different elements to it. Perhaps it is wise to give the Supreme Court more explicit authority to discipline out-of-state lawyers who are bad actors, but it is unclear whether that is needed when even district-level trial courts have some authority to impose fines and other sanctions now.
For these reasons, we believe this amendment can wait until we have a better understanding of what the ultimate goals really are and voters have the information they need to make a more informed decision.