LEGAL VIEW: The intersection of ethics and criminal or civil liability

By Thomas Spahn The Daily Record Newswire It comes as no surprise that we as lawyers must avoid violating our profession's unique ethics rules. Of course, we must also comply with the normal criminal and civil obligations that govern every citizen's conduct. It can be difficult to analyze the intersection between these two sets of principles. The ABA Model Rules bluntly state that an ethics violation "should not itself give rise to a cause of action against a lawyer." (ABA Model Rule Scope note [20].) However, in a balancing act typical of the ABA Model Rules, the same comment indicates that a lawyer's ethics breach "may be evidence of breach of the applicable standard of conduct." Thus, in most states lawyers cannot be sued for violating the ethics rules, but can have the rules cited against them in malpractice or other cases. State bars' disciplinary authorities must sometimes deal with the ethics rules' applicability to a lawyer's non-legal activities. Some ethics rules limit their reach to a lawyer's conduct "in representing a client." For example, ABA Model Rule 4.2's prohibition on ex parte communications with a represented person starts with that phrase. Other ethics rules start with a much broader phrase. For instance, the general anti-deception rule begins with the phrase "[i]t is professional misconduct for a lawyer to ..." (ABA Model Rule 8.4.) The latter type of rule applies to any action lawyers undertake, even those not involving a client. Bars frequently have a difficult time determining whether a lawyer can be or should be professionally disciplined for criminal or civil wrongdoing unrelated to the lawyer's legal advisory role or relationship with any clients. The ABA Model Rules explain that a lawyer "is personally answerable to the entire criminal law," but "should be professionally answerable only for offenses that indicate lack of those characteristic relevant to law practice." (ABA Model Rule 8.4 cmt. [2].) That comment refers to offenses "involving violence, dishonesty, breach of trust, or serious interference with the administration of justice." The comment mentions "moral turpitude" as essentially supplying the litmus test. It is easy to see why lawyers should not face professional discipline for criminal acts such as justifiable civil disobedience, or exceeding the speed limit by a small amount. On the other hand, some criminal acts involving dishonesty should deserve professional punishment -- such as tax evasion. But what about conduct that falls somewhere in between, such as student loan delinquency or visiting a prostitute? Bars have professionally disciplined lawyers for criminal conduct unrelated to their legal careers or clients. (See, e.g., Disciplinary Counsel v. O'Malley, 935 N.E.2d 5 (Ohio 2010) (suspending a lawyer for two years after a felony conviction for downloading pornography); Office of Lawyer Regulation v. Brandt (In re Brandt), 766 N.W.2d 194, 196 (Wis. 2009) (issuing a public reprimand against a lawyer for "multiple convictions for operating a motor vehicle while intoxicated"); Santulli v. Tex. Bd. of Law Examiners, No. 03-06-00392-CV, 2009 Tex. App. LEXIS 2471 (Tex. App. Apr. 10, 2009) (revoking the license of a lawyer who had not repaid his student loans).) Perhaps the most difficult cases involve lawyers' use of illegal drugs or alcohol abuse. Some bars have not hesitated to punish lawyers in those circumstances. (Ala. State Bar v. Quinn, 926 So. 2d 1018 (Ala. 2005) (disbarring a lawyer caught smoking marijuana with minors).) However, if lawyers rely on their bar's "Lawyers Helping Lawyers" program, bars sometimes give them another chance. Ironically, this means that in some situations lawyers might face a much milder punishment if they can blame some chemical dependency for their wrongdoing. Bars and courts generally take the same approach with mental illness. In 2010, the Nebraska Supreme Court articulated an elaborate three-part test for considering depression as a mitigating factor in an ethics context. (State ex rel. Counsel for Discipline v. Switzer, 790 N.W.2d 433 (Neb. 2010).) The court explained that a lawyer might be entitled to have depression treated as a mitigating factor if there is medical evidence of the depression, if it was a "direct and substantial contributing cause" to the ethics breach, and if treating the depression will "substantially reduce the risk of further misconduct." Of course, the best way for lawyers to avoid these issues is to comply with all of the ethics rules, as well as those criminal and civil obligations that govern everyone. Unfortunately, lawyers cannot rely on any clear guidelines in trying to assess the likelihood that they will be disciplined professionally for criminal or civil wrongdoing. ---------- Tom Spahn practices as a commercial litigator at McGuireWoods in McLean, Va. He regularly advises a number of Fortune 500 companies on issues involving ethics, conflicts of interest, the attorney-client privilege and corporate investigations. Published: Mon, Mar 19, 2012