What you do after hours can cost you your license

Attorneys are officers of the court. In that capacity, they owe a duty of candor to their clients and to the tribunal. However, attorneys' ethical obligations can extend to their private lives and free time, too.

The ABA Model Rules of Professional Conduct state that an attorney is "an officer of the legal system and a public citizen having special responsibility for the quality of justice."  Comment [1] Preamble. This can mean that the oath attorneys took when they were sworn in -- to act ethically, with integrity and to uphold the law -- is a holistic one, applying equally to conduct outside the courtroom as it does to conduct inside one.

So to what extent can lawyers run into trouble for their conduct outside a client representation? And what ethical obligations do lawyers owe the tribunal in how they carry out their daily lives? This article provides some instruction for lawyers about the risks they might encounter with their own criminal or private misconduct and how those actions might affect their careers.

Ethical obligations start before bar admission

The character and fitness evaluation is an integral requirement of the bar. Some candidates run into challenges with their admission when they have prior misconduct on their records occurring before they were lawyers. The bar may make a serious inquiry where the past misconduct suggests the applicant is at risk of lacking good judgment or honesty.

Several jurisdictions have opined on the issue. In Ohio, one bar applicant was denied admission due to a "lack of candor" demonstrated in her employment at a law firm during law school. Another high-profile example was candidate Stephen Glass, a former journalist. He passed the bar exam in California and New York. However, he was then denied admission in both states because of his past notoriety for reporting fraudulent stories. Despite his argument that he had reformed himself for several years since the incidents, the California Supreme Court ruled unanimously against him, finding that his misconduct bore directly on his character in matters that were critical to the practice of law.

When personal problems might rise to the level of professional misconduct

The bar takes misconduct seriously. Even when attorneys do not intend to cause harm, any number of poor decisions in their private lives, such as drunk driving, domestic violence or instances of dishonesty, can lead to discipline.  

For example, the Tennessee Supreme Court suspended a lawyer from the practice of law for four years following his posting of inappropriate Facebook comments to a friend. His friend was involved in a difficult relationship. He advised that if his friend wanted "to kill" her ex-boyfriend, she should "claim" self-defense and state that she feared for her life. The posts were leaked to the ex-boyfriend, who called authorities. The Tennessee Supreme Court elected to increase the recommended 60-day sanction. The Supreme Court imposed a more severe sanction because the comments "fostered a public perception that a lawyer's role is to manufacture false defenses. They projected a public image of corruption of the judicial process." 

Some courts will take personal problems like mental illness, substance abuse or severe physical illness into consideration as a mitigating factor when reviewing disciplinary actions regarding attorneys' private misconduct. For example, a Colorado lawyer was suspended from practice for three years for misconduct during her efforts to adopt her cousin's baby. She included fraudulent information on the baby's birth certificate and other court documents. Although the Colorado Supreme Court recognized that the lawyer had engaged in acts of dishonesty and counseled others to engage in dishonest conduct -- which would typically result in disbarment -- the court found that the lawyer's emotional stress over her inability to conceive, along with her prior legal work in supporting families and children, merited significant weight in mitigation. Ultimately, the court concluded that her misconduct was an "aberration."

When criminal acts also invoke professional discipline

The ABA makes clear that attorneys are "personally answerable to the entire criminal law[.]" Model Rules of Professional Conduct Rule 8.4, Comment [2]. However, whether attorneys are also "professionally answerable" for conduct in their personal lives hinges on "[o]ffenses involving violence, dishonesty, breach of trust, or serious interference with the administration of justice[.]" Id. The California Rules are similar, finding that attorneys will engage in professional misconduct whether engaged in legal practice or acting "propria persona" if they: (a) violate the Rules of Professional Conduct; (b) commit a criminal act reflecting on the lawyer's "honesty, trustworthiness, or fitness"; (c) engage in conduct involving deceit or that prejudices the administration of justice; or (d) improperly solicit a judicial officer. Rule 8.4 and Comment [1]. Further, a lawyer can be disciplined under Business and Professions Code § 6106 if the act is one involving "moral turpitude, dishonesty, or corruption, whether intentional, reckless, or grossly negligent." 

As a result, lawyers can be disbarred or professionally disciplined for criminal conduct done in their private lives even when there is no connection to a client. In New York, a felony committed in New York, or in another jurisdiction but would constitute a felony in New York, results in automatic disbarment. In South Carolina, the Supreme Court disbarred Alex Murdaugh after he was convicted of murdering his wife and son. After more than 80 criminal charges of murder, fraud, and other misconduct against the once-prolific attorney arising from both his personal life and from client representations, he was permanently disbarred. The South Carolina Supreme Court declared in its order to disbar Murdaugh that "[d]isbarment is among the most serious sanctions this Court can impose for unethical conduct committed by members of the legal profession. The purpose of disbarring an attorney is to remove from the profession a person whose misconduct has proved him unfit to be entrusted with the duties and responsibilities belonging to the office of an attorney, and thus to protect the public and those charged with the administration of justice." 

The Rules of Professional Conduct are mostly directed towards attorneys' obligations during client representations. However, lawyers should be aware that criminal or unethical actions made in their private lives can negatively impact, sometimes permanently, their ethical obligations to their clients and to the practice of law.