Are Lawyers Held to a Higher Ethical Standard In Their Personal Lives?
Professional misconduct is the most common reason for attorney discipline. Lawyers can also be disciplined for conduct in their personal lives. In addition to suffering the legal consequences of any criminal activity in some instances, i.e., if the crime involves dishonesty, fraud, deceit or misrepresentation, a lawyer may also be subject to discipline imposed by the Grievance Committee of their State Bar Association. While some may believe it is unfair to impose a higher standard of ethical conduct upon lawyers in their personal life, they must keep in mind that this professional discipline is a result of the legal profession’s self-regulation. It is meant to encourage ethical behavior among lawyers as well as public trust of lawyers and the legal system.
The Model Rules of Professional Conduct
The American Bar Association (“ABA”) created the Model Rules of Professional Conduct (“MRPC”) as a model on which states can base their legal ethics laws. The MRPC has been adopted in whole or in part by 49 states and the District of Colombia, making it the best rubric for legal ethics in the United States.
What Qualifies as Misconduct?
One type of misconduct outlined by the MRPC is “criminal acts that reflect adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects.” This means that a lawyer who commits a crime may face professional consequences, in addition to criminal consequences, if the crime includes dishonesty or calls the lawyer’s fitness into question. Crimes that commonly result in discipline for lawyers are driving while intoxicated, failure to pay income taxes, and fraud.
Another type of misconduct outlined in the MRPC is “conduct involving dishonesty, fraud, deceit or misrepresentation.” This rule encompasses all actions, not only criminal ones. This rule is aimed at punishing moral turpitude or depravity. Though rarely enforced, the MRPC lists adultery as an example of an action that may implicate moral turpitude even though it is not related to the practice of law.
Under these rules, New York lawyers have faced discipline for dishonest business practices in a real estate business, entering into a bigamous marriage in another country, continuing to live in a rent-controlled apartment after the leaseholder died, and falsely accusing a police officer of uttering a racial slur in order to get out of a speeding ticket. In each of these instances, the lawyer was disciplined for actions unrelated to their practice of law.
What is the Penalty?
Courts have discretion to discipline lawyers by issuing a censure (which is a public condemnation with no legal ramifications), suspending them from the practice of law, or complete disbarment. And while most discipline is the result of professional misconduct, courts often treat private misconduct just as harshly as professional misconduct.
When determining how to discipline a lawyer, courts balance the severity of the conduct against any mitigating factors. These mitigating factors could include a lack of a prior disciplinary record, cooperation with the ethics investigation, admissions of guilt, expressions of remorse, and a reputation for integrity.
For example, in In re Bikman, a lawyer continued to live in her sister’s rent-controlled apartment after her sister died, without informing the landlord of her sister’s death. While the lawyer “did not quite manage to commit criminal or common-law fraud,” the court found that “she surely was dishonest, she was deceitful and she did misrepresent.” Furthermore, the lawyer did not admit to doing anything wrong, failed to cooperate with the investigation, and made efforts to impede the Committee’s investigation. Based on these factors, the court suspended the lawyer for 18 months.
The ability to practice law is a privilege, not a right. To ensure that each lawyer is deserving of that privilege, the ABA and state legislatures have created a system of rules and punishments for unethical behavior. And since the ethical practice of law is a vital element of society, these rules aim to punish lawyers for any conduct which suggests that they are unfit to practice law, regardless of whether the conduct was professional or personal.
Should lawyers be held professionally accountable for their private actions? The answer depends on what role lawyers play in society. People often look to lawyers (as attorneys, judges, government officials, etc.) to hold others accountable for their actions. This is a position of power within society, a position that could easily be exploited without oversight. This alone may justify the rigorous self-regulation in the legal profession. However, some lawyers may feel that such an interference into their private life is too much to ask. Perhaps lawyers are fully capable of separating the moral problems of their private life from the ethical duties of their professional life. But as things are today, these higher personal standards are the unavoidable cost of practicing law.