Attorney Misconduct

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ATTORNEY MISCONDUCT

Behavior by an attorney that conflicts with established rules of professional conduct and is punishable by disciplinary measures.

More than any other profession, the legal profession is self-governing. That is, it is largely regulated by lawyers and judges themselves rather than by the government or outside agencies. In particular, the american bar association (ABA), the largest professional association for attorneys, governs the practice of law through its establishment of rules of conduct. These rules are then adopted, sometimes in a modified form, by state courts and enforced by court-appointed disciplinary committees or bar associations. Attorneys found to be in violation of professional standards are guilty of misconduct and subject to disciplinary procedures. Disciplinary action by a state bar association or other authority may include private reprimands; public censure; suspension of the ability to practice law; and, most severe of all, disbarment—permanent denial of the ability to practice law in that jurisdiction. The state supreme court is the final arbiter in questions of professional conduct in most jurisdictions.

Since 1908, the ABA has been responsible for defining the standards of proper conduct for the legal profession. These standards, many of them established by the ABA Standing Committee on Ethics and Professional Responsibility, are continuously evolving as society and the practice of law change over time. In 1969, the ABA passed its Model Code of Professional Responsibility, guidelines for proper legal conduct that were eventually adopted by all jurisdictions. The ABA modified the code by adopting the Model Rules of Professional Conduct in 1983. The model rules have been used by 40 states to create official guidelines for professional conduct; 11 states or jurisdictions, including Washington, D.C., and the Virgin Islands, have continued to base their ethical codes on the earlier model code. California has developed its own rules of professional conduct. Whatever their basis, these codes or rules define the lawyer's proper role and relationship to the client. It is essential that lawyers understand the ethical codes under which they must operate. Failure to do so may result in not only disciplinary action by the relevant professional authorities but also malpractice suits against the lawyer. A malpractice suit may result in loss of money or the ability to work with specific clients.

Rule 8.4 of the Model Rules of Professional Conduct contains the following statements on attorney misconduct:

It is professional misconduct for a lawyer to:
(a) Violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another;
(b) Commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects;
(c) Engage in conduct involving dishonesty, fraud, deceit or misrepresentation;
(d) Engage in conduct that is prejudicial to the administration of justice;
(e) State or imply an ability to influence improperly a government agency or official;
(f) Knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law.

Besides issuing these general statements, the model rules set down many specific requirements for attorney conduct in different situations.

Because of an attorney's special relationship to the law, he or she is held to a special standard of conduct before the law, as the ABA asserts in its Lawyers' Manual on Professional Conduct:

As members of the bar and officers of the court, lawyers are beneficiaries of the privilege of the practice of law and also are subject to higher duties and responsibilities than are non-lawyers. A lawyer's fiduciary duties arise from his status as a member of the legal profession and are expressed, at least in part, by the applicable rules of professional conduct.

The word fiduciary in this quotation comes from the Latin word fiducia, meaning "trust"; as a fiduciary, then, the attorney acts as the trusted representative of the client. Trust is thus a defining element of the legal profession, and without it, the practice of law could not exist. For that reason, the legal profession has created strict rules of conduct regarding the attorney's relationship with the client.

Attorney-Client Relationship

The model rules set forth specific guidelines defining the attorney-client relationship. An attorney will be guilty of misconduct, for example, if she or he fails to provide competent representation to a client, to act with diligence and promptness regarding a client's legal concerns, or to keep a client informed of legal proceedings. Charging exorbitant fees or overbilling is also considered misconduct, as is counseling a client to commit a crime. For example, trial lawyer Harvey Myerson was suspended in 1992 from the practice of law by the New York Supreme Court after he was convicted of over-billing

Attorney-Client Sexual Relations

The american bar association (ABA) has recognized sexual relations between attorneys and their clients as a significant ethical problem for the legal profession. The ABA's Standing Committee on Ethics and Professional Responsibility addressed this issue in 1992 by issuing a formal opinion (no. 92-364). Although the opinion acknowledged that the Model Rules of Professional Conduct do not specifically address the issue of attorney-client sex, it argued that an attorney's sexual relationship with a current client "may involve unfair exploitation of the lawyer's fiduciary position and presents a significant danger that the lawyer's ability to represent the client adequately may be impaired, and that as a consequence the lawyer may violate both the Model Rules and the Model Code." Becoming sexually intimate with a client, the opinion adds, undermines the "objective detachment" necessary for legal representation because "[t]he roles of lover and lawyer are potentially conflicting ones." In addition, the opinion argued, attorney-client sex introduces a clear conflict of interest into a case, and it may also compromise attorney-client privilege, the principle that ensures the confidentiality of lawyer-client communication. Any secrets revealed to an attorney by a client outside of their legal relationship may not be protected by attorney-client privilege.

Proponents of professional rules against attorney-client sexual contact argue that the legal profession should follow the example of other professions such as psychology and psychiatry, and create strict sanctions against sex with clients. Legal clients, these proponents say, are often vulnerable when dealing with attorneys, particularly in such areas of legal practice as family law. A lawyer who becomes sexually involved with a client in a divorce proceeding can take advantage of the client under-going emotional trauma. That lawyer may hinder any attempts at reconciliation between a couple and complicate matters for any children involved. Sexual relationships between lawyer and client may also affect custody and child visitation decisions in the case. The American Academy of Matrimonial Lawyers, in its Standards of Conduct in Family Law Litigation, specifically prohibits attorney-client sex: "An attorney should never have a sexual relationship with a client or opposing counsel during the time of the representation" (§ 2.16 [1991]).

Some attorneys object to such rules, arguing that they interfere with their first amendment rights to freedom of association. They bristle at the notion of state bar associations regulating the private affairs of consenting adults. Nevertheless, attorneys are increasingly being disciplined for becoming sexually involved with clients, and state bar associations are drafting clearer and more stringent rules against attorney-client sexual contact. Wisconsin's Supreme Court, for example, in 1987, revoked the license of an attorney in part because he had sex with a client (In re Hallows, 136 Wis. 2d 72, 401 N.W.2d 557). The attorney, the court argued, was "placing his interests above" those of his client. In 1990, the same court for the first time suspended the license of a criminal lawyer who had sex with a client (In re Ridgeway, 158 Wis. 2d 452, 462 N.W.2d 671). Oregon and Minnesota have adopted outright bans on attorney-client sexual contact. Rule 1.8(k) of the Minnesota Rules of Professional Conduct, which became effective July 1, 1994, forbids attorney-client sexual contact during the conduct of a professional legal relationship. It allows exceptions to the rule only for relationships beginning before legal representation has commenced or after it has ended. In the case of clients that are organizations rather than individuals, an attorney may not have sexual contact with any member of the client organization directly overseeing the case.

further readings

Awad, Abed. 1998. "Attorney-Client Sexual Relations." Journal of the Legal Profession 22 (annual): 131–91.

Kane, Andrew W., et al. 1992. "Attorney Sexual Misconduct." American Journal of Family Law 6 (fall): 191–95.

Shirey, William K. 1999. "Dealing with the Profession's 'Dirty Little Secret': A Proposal for Regulating Attorney-Client Sexual Relations." Georgetown Journal of Legal Ethics 13 (fall): 131–60.

Struzzi, Melissa A. 1999. "Sex Behind the Bar: Should Attorney-Client Sexual Relations be Prohibited?" Duquesne Law Review 37 (summer): 637–57.

by millions of dollars (In re Myerson, 182A.D. 2d 242, 588 N.Y.S.2d 142 [N.Y. App. Div.1992]).

Many types of attorney misconduct involve a conflict of interest on the part of the attorney. A conflict of interest arises when an attorney puts personal interests ahead of professional responsibilities to the client. The model rules specify the potential for conflict of interest in many different situations. Thus, for example, an attorney who by representing one client adversely affects another client has a conflict of interest and is guilty of misconduct. Conflict of interest rules also forbid an attorney to enter into a business transaction with a client unless the client is fully aware of how the transaction will affect his or her legal representation and agrees to the transaction in writing. Similarly, an attorney is guilty of misconduct if he or she makes a deal with the client for acquisition of the book, film, or media rights to the client's story. Providing a client with financial assistance also introduces a conflict of interest into the attorney-client relationship.

If an attorney is related to another attorney as parent, child, sibling, or spouse, that attorney may not represent a client in opposition to the related attorney except when given consent to do so by the client. This type of conflict of interest has become increasingly common as more women enter the legal profession and the number of marriages between attorneys grows. State bar associations, such as that of Michigan, have held that these guidelines also apply to lawyers who are living together or dating but are not married. The potential for conflict of interest when the opposing attorneys are married or romantically involved is clear. Imagine a woman representing a client in a personal injury lawsuit seeking millions of dollars worth of damages from a manufacturer, with her husband representing the manufacturer. As a couple, they have a monetary interest in gaining a large settlement from the manufacturer, thereby giving the husband an incentive to lose his case. Given this conflict of interest, the couple is obligated to reveal to their clients the fact that they are married. If the clients agree to go ahead with the case regardless of the conflict of interest, then the attorneys may decide to continue their representation.

Special examples of conflict of interest have arisen in cases involving indigent defendants who must use publicly provided defense attorneys. In many jurisdictions, it is considered misconduct for an attorney to refuse court appointment as a public service defender for a poor client, even when a spouse's legal associate or firm is involved on the opposing side of the case. Normally, for example, state bar associations allow a district attorney to prosecute persons defended by partners or associates of the district attorney's spouse as long as the client is notified of the situation; similarly, they will allow a district attorney's spouse to defend persons prosecuted by other members of the district attorney's staff. Nevertheless, in a 1992 case, Haley v. Boles, 824 S.W.2d 796, the Texas Court of Appeals found that a conflict of interest gave a court-appointed attorney grounds to refuse appointment as a public defender for a poor client. The prosecutor was married to the court-appointed counsel's law partner, creating a potential conflict of interest. According to the court's decision, a poor defendant who must rely on a public defender has fewer choices for legal representation than a defendant who can afford to employ her or his own attorney. Therefore, an attorney who has a conflict of interest must be able to refuse to represent a client as a public defender without being charged with misconduct, thereby ensuring that the client receives legal representation free of a conflict of interest.

Any breach of the trust by the attorney that underlies the relationship between that attorney and the client can be considered misconduct. For example, an attorney is often called upon to hold or transfer money for a client, and in this situation, the client places an extraordinary amount of trust in the lawyer. Any misuse of the client's money by the attorney—called misappropriation of client funds—constitutes a serious breach of trust and a gross example of misconduct. This offense includes stealing from the client, mingling the attorney's money with that of the client, and controlling client funds without authorization. The model rules require that funds given to a lawyer by a client be kept in an account separate from the lawyer's own account.

To encourage clients to inform their attorneys of all details relevant to a case, ethical codes also entrust attorneys with preserving the confidentiality of the information their clients give them; any failure to do so constitutes misconduct on the part of the attorney. The law protects attorney-client confidentiality with the principle of attorney-client privilege, and under very few circumstances is it lawful to breach this privilege of confidentiality. The privilege may be revoked to prevent the client from "committing a criminal act that … is likely to result in imminent death or substantial bodily harm"(Model Rules of Professional Conduct, Rule 1.6 1983), or to respond to civil or criminal proceedings made by the client against the attorney. Except for these rare cases, only the client may waive the attorney-client privilege of confidentiality.

Sexual contact between an attorney and a client is almost always considered a breach of conduct. Sexual contact represents a clear breach of attorney-client trust. It is also a clear conflict of interest because it can easily result in the attorney's placing his or her own needs above those of the client, and it makes it difficult for the attorney to argue the client's case dispassionately.

Other Types of Misconduct

As the model rules indicate, an attorney may be charged with misconduct if she or he commits a criminal act. However, not all violations of the law may result in professional censure. According to the ABA, a lawyer is professionally responsible "only for offenses that indicate lack of those characteristics relevant to law practice." These include violations involving "violence, dishonesty, breach of trust, or interference with the administration of justice" (Model Rules of Professional Conduct, Rule 3). Nevertheless, violations of the law may seriously impair an attorney's professional standing.

Ethical rules also govern the conduct of attorneys before courts. Thus, an attorney is guilty of misconduct toward the court if he or she brings a frivolous, or unnecessary, proceeding to court; makes false statements to the court; offers false evidence; or unlawfully obstructs another party's access to evidence. It is also considered misconduct if an attorney attempts to influence a judge or juror by illegal means, such as bribery or intimidation, or states personal opinions regarding the justness of a cause or the credibility of a witness. Special rules govern trial publicity as well. These forbid an attorney to make statements outside of court that will influence a court proceeding. For example, an attorney may not make statements related to the character, credibility, guilt, or innocence of a suspect or witness in a court proceeding. Attorneys are forbidden to communicate directly or indirectly with a party represented by another lawyer in the same matter, unless they receive permission from the other attorney. This law is designed to protect laypersons involved in legal proceedings from possibly hurting their cases by speaking with the opposing lawyer.

Federal and state laws also define attorney misconduct and empower judges to discipline wayward attorneys. Rule 11 of the Federal Rules of Civil Procedure (28 U.S.C.A.), for example, requires sanctions for lawyers and clients who file frivolous or abusive claims in court. In a 1989 case, Nasco, Inc. v. Calcasieu Television & Radio, 124 F.R.D. 120 (W.D. La.), a federal district judge suspended two lawyers and disbarred another for "illegal and fraudulent schemes and conspiracies" designed to slow a case in court for the benefit of their client.

Beginning in the late 1980s, attorneys have been required to report the misconduct of other lawyers, with failure to do so considered to be misconduct in itself and resulting in serious disciplinary measures. A 1989 Illinois Supreme Court ruling, In re Himmel, 125 Ill. 2d 531, 533 N.E.2d 790, found that attorneys have a duty to report other lawyers' misconduct even when a client has instructed them not to do so. The Illinois Supreme Court suspended James H. Himmel from the practice of law for one year after he failed to report a misappropriation of client funds by another lawyer, a violation of rule 1-103(a) of the Illinois Code of Professional Responsibility. Himmel's failure to report, the court found, had allowed the offending attorney to bilk other clients as well. The attorney guilty of misappropriating funds was disbarred.

Lawyers have also been found guilty of misconduct with regard to the advertising of their services. It is legal and ethical for attorneys to advertise, but if that advertising is false, deceptive, or misleading, makes unsubstantiated comparisons to another lawyer's services, or proposes means contrary to rules of professional conduct, the attorney can be charged with misconduct. For example, an attorney was disbarred in Maryland for publishing misleading advertisements soliciting customers for "quickie" foreign divorces and misrepresenting his competence and knowledge of the law (Attorney Grievance Committee v. McCloskey, 306 Md. 677, 511 A.2d 56 [1986]).