#11181 - Attorney Discipline - Professional Responsibility

Attorney Discipline

1. Rule 8.3: Reporting Professional Misconduct (RB 161)

   1. (a) A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer's honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate professional authority.

      1. Self-regulation of the legal profession requires that members of the profession initiate disciplinary investigation when they know of a violation of the Rules of Professional Conduct. Lawyers have a similar obligation with respect to judicial misconduct. An apparently isolated violation may indicate a pattern of misconduct that only a disciplinary investigation can uncover. Reporting a violation is especially important where the victim is unlikely to discover the offense. MRPC 8.3 cmt. 1 (RB 161-62).

      2. If a lawyer were obliged to report every violation of the Rules, the failure to report any violation would itself be a professional offense. Such a requirement existed in many jurisdictions but proved to be unenforceable. This Rule limits the reporting obligation to those offenses that a self-regulating profession must vigorously endeavor to prevent. A measure of judgment is, therefore, required in complying with the provisions of this Rule. The term "substantial" refers to the seriousness of the possible offense and not the quantum of evidence of which the lawyer is aware. A report should be made to the bar disciplinary agency unless some other agency, such as a peer review agency, is more appropriate in the circumstances. Similar considerations apply to the reporting of judicial misconduct. MRPC 8.3 cmt. 3 (RB 162).

      3. The duty to report professional misconduct does not apply to a lawyer retained to represent a lawyer whose professional conduct is in question. Such a situation is governed by the Rules applicable to the client-lawyer relationship. MRPC 8.3 cmt. 4 (RB 162).

   2. (b) A lawyer who knows that a judge has committed a violation of applicable rules of judicial conduct that raises a substantial question as to the judge's fitness for office shall inform the appropriate authority.

   3. (c) This Rule does not require disclosure of information otherwise protected by Rule 1.6 or information gained by a lawyer or judge while participating in an approved lawyers assistance program.

      1. A report about misconduct is not required where it would involve violation of Rule 1.6. However, a lawyer should encourage a client to consent to disclosure where prosecution would not substantially prejudice the client's interests. MRPC 8.3 cmt. 2 (RB 162).

      2. Information about a lawyer's or judge's misconduct or fitness may be received by a lawyer in the course of that lawyer's participation in an approved lawyers or judges assistance program. In that circumstance, providing for an exception to the reporting requirements of paragraphs (a) and (b) of this Rule encourages lawyers and judges to seek treatment through such a program. Conversely, without such an exception, lawyers and judges may hesitate to seek assistance from these programs, which may then result in additional harm to their professional careers and additional injury to the welfare of clients and the public. These Rules do not otherwise address the confidentiality of information received by a lawyer or judge participating in an approved lawyers assistance program; such an obligation, however, may be imposed by the rules of the program or other law. MRPC 8.3 cmt. 5 (RB 162).

   4. Definitions

      1. "Knows" denotes actual knowledge of the fact in question. A person's knowledge may be inferred from circumstances. MRPC 1.0(f).

      2. "Substantial" when used in reference to degree or extent denotes a material matter of clear and weighty importance. MRPC 1.0(l).

2. Rule 8.4: Misconduct (RB 163)

   1. It is professional misconduct for a lawyer to:

      1. (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;

         1. Lawyers are subject to discipline when they 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, as when they request or instruct an agent to do so on the lawyer's behalf. Paragraph (a), however, does not prohibit a lawyer from advising a client concerning action the client is legally entitled to take. MRPC 8.4 cmt. 1 (RB 163).

      2. (b) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects;

         1. Many kinds of illegal conduct reflect adversely on fitness to practice law, such as offenses involving fraud and the offense of willful failure to file an income tax return. However, some kinds of offenses carry no such implication. Traditionally, the distinction was drawn in terms of offenses involving "moral turpitude." That concept can be construed to include offenses concerning some matters of personal morality, such as adultery and comparable offenses, that have no specific connection to fitness for the practice of law. Although a lawyer is personally answerable to the entire criminal law, a lawyer should be professionally answerable only for offenses that indicate lack of those characteristics relevant to law practice. Offenses involving violence, dishonesty, breach of trust, or serious interference with the administration of justice are in that category. A pattern of repeated offenses, even ones of minor significance when considered separately, can indicate indifference to legal obligation. MRPC 8.4 cmt. 2 (RB 163).

      3. (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;

      4. (d) engage in conduct that is prejudicial to the administration of justice;

         1. 3 PART TEST (In re Hopkins – pg. 245 – DC Court of Appeals):

            1. (1) The conduct must be improper;

               1. “[T]he attorney must either take improper action or fail to take action when, under the circumstances, he or she should act.” In re Hopkins (CM 245).

               2. The conduct may be improper, for example, because it violates a specific statute, court rule or procedure, or other disciplinary rule. In re Hopkins (CM 245).

            2. (2) The conduct itself must bear directly upon the judicial process; and

               1. This element is very likely satisfied “where the attorney is acting either as an attorney or in a capacity ordinarily associated with the practice of law.” In re Hopkins (CM 245).

            3. (3) The attorney’s conduct must taint the judicial process in more than a de minimis way.

               1. The attorney’s conduct must “at least potentially impact upon the process to a serious and adverse degree.” In re Hopkins (CM 245).

         2. A lawyer who, in the course of representing a client, knowingly manifests by words or conduct, bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status, violates paragraph (d) when such actions are prejudicial to the administration of justice. Legitimate advocacy respecting the foregoing factors does not violate paragraph (d). A trial judge's finding that peremptory challenges were exercised on a discriminatory basis does not alone establish a violation of this rule. MRPC 8.4 cmt. 3 (RB 163-64).

         3. A lawyer may refuse to comply with an obligation imposed by law upon a good faith belief that no valid obligation exists. The provisions of Rule 1.2(d) concerning a good faith challenge to the validity, scope, meaning or application of the law apply to challenges of legal regulation of the practice of law. MRPC 8.4 cmt. 4 (RB 164).

      5. (e) state or imply an ability to influence improperly a government agency or official or to achieve results by means that violate the Rules of Professional Conduct or other law; or

      6. (f) knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law.

      7. Abuse of Public Office

         1. Lawyers holding public office assume legal responsibilities going beyond those of other citizens. A lawyer's abuse of public office can suggest an inability to fulfill the professional role of lawyers. The same is true of abuse of positions of private trust such as trustee, executor, administrator, guardian, agent and officer, director or manager of a corporation or other organization. MRPC 8.4 cmt. 5 (RB 164).

      8. Definitions

         1. "Fraud" denotes conduct that is fraudulent under the substantive or procedural law of the applicable jurisdiction and has a purpose to deceive. MRPC 1.0(d).

            1. When used in these Rules, the terms "fraud" or "fraudulent" refer to conduct that is characterized as such under the substantive or procedural law of the applicable jurisdiction and has a purpose to deceive. This does not include merely negligent misrepresentation or negligent failure to apprise another of relevant information. For purposes of these Rules, it is not necessary that anyone has suffered damages or relied on the misrepresentation or failure to inform. MRPC 1.0 cmt. 5 (RB 9).

         2. "Knowingly" denotes actual knowledge of the fact in question. A person's knowledge may be inferred from circumstances. MRPC 1.0(f).

3. Rule 8.5: Discipline Authority; Choice of Law (RB 164)

   1. (a) Disciplinary Authority. A lawyer admitted to practice in this jurisdiction is subject to the disciplinary authority of this jurisdiction, regardless of where the lawyer's conduct occurs. A lawyer not admitted in this jurisdiction is also subject to the disciplinary authority of this jurisdiction if the lawyer provides or offers to provide any legal services in this...