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.