NEW ORLEANS – The
Fifth Circuit Court of Appeals upheld sanctions against two attorneys in June,
who were disciplined in 2015 for allegedly paying for referrals for claims
related to the 2010 BP oil spill in the Gulf of Mexico.
Jonathan Andry and Glen Lerner remain disqualified from representing claimants
in the oil spill after U.S. District Court Judge Carl Barbier ruled in
2015 that they acted unethically -- violating rules related to dishonesty, deceit
sanctions are limited to the claims process in the Deepwater Horizon
litigation, N. Gregory Smith, a professor at Louisiana State University School of Law, told the Louisiana Record.
even though the sanctions imposed by Barbier are limited in scope, specifically
to the Deepwater Horizon situation, Andry and Lerner could face other
Louisiana lawyer who violates the Louisiana Rules of Professional Conduct can
be subject to professional discipline under rules established by the Louisiana
Supreme Court,” Smith said.
sanctions, as set out by Rule XIX of the Louisiana Supreme Court, include
disbarment, suspension for up to three years, probation for up to two years, a
written reprimand, an order to pay restitution or even limitation of the
lawyer’s future practice.
decision like this can send different messages depending on who is interpreting
existence of a lawyer disciplinary process that actually imposes discipline on
lawyers is likely to encourage other lawyers to comply with the applicable
rules of conduct,” Smith said. “Members
of the public who learn that a lawyer has been disciplined might have different
reactions. One reaction might be to conclude that lawyers misbehave. Another
reaction might be to conclude that there is an effective system of discipline
in place that actually sanctions lawyers who engage in misconduct. This latter
message, to the extent it is received, would tend to promote confidence in the
legal system, which we need if we are to have an orderly society that operates
without undue coercion.”
This case may lead some to question
the legality of referral payments. In some cases, Smith said, referral payments
are legal. But, he said that the rule the courts looked at in this case did not
expressly deal with referral fees.
is another rule that imposes limitations on dividing fees with a lawyer in
another firm,” Smith said. “This rule is not about
referral fees as such, but it does indicate how lawyers in different firms can
appropriately divide a fee. It could apply in a case in which a
lawyer in one firm refers a matter to a lawyer in another firm, but both
lawyers have worked on the matter. The Fifth Circuit Court of Appeals
decision focused on this rule.”
That rule is known as Rule 1.5(e) and it allows attorneys in
different firms to split a fee if three things occur: a client agrees in
writing that they will be represented by all involved lawyers and is notified
of how much each attorney will receive; the total fee is determined reasonable;
and each lawyer delivers meaningful legal services to the client.
In March, the State Bar of Nevada filed
a complaint against Lerner. According to a search of the Louisiana Attorney
Discipline Board, Andry is currently eligible to practice law and is not facing