Archive | Legal Ethics

Discipline for ‘Private Conduct’: Rationale and Recent Trends

Lawyers must act ethically 24/7. That is, we are held to a consistent standard of integrity that exceeds mere adherence to professional norms in our legal lives. We are also expected to behave ethically in our private business affairs. When that does not happen, judicial authorities have repeatedly, and sometimes severely, disciplined lawyers for peccadilloes […]

Reprinted with permission from the February 19, 2013 edition of the New York Law Journal ©2013 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. For information, contact 877-257-3382 – reprints@alm.com or visit www.almreprints.com.

  1. Hal R. Lieberman and Richard Supple, “Private Conduct and Professional Discipline,” NYLJ, July 23, 2002.
  1. Judiciary Law §90(4)(a).
  1. Judiciary Law §90(4)(d).
  1. See, e.g., Matter of Silberman, 83 AD3d 95 (1st Dept. 2011) (six-year suspension for possessing and engaging in distribution of illegal narcotics); Matter of Goldman, 71 AD3d 9 (1st Dept. 2009) (one-year suspension for attorney who pleaded guilty to one count of failing to file New York State tax return, where attorney failed to file both state and federal tax returns for seven years); Matter of Clarey, 55 A.D.3d 209 (2d Dept. 2008) (one-year suspension for attorney who pleaded guilty to operating a motor vehicle under the influence of alcohol and leaving the scene of an accident); Matter of Felsen, 40 A.D.3d 1257 (3d Dept. 2007) (lawyer disbarred after being convicted out of state of forging a physician’s signature to a prescription form in the name of a fictitious person in order to obtain a pain killer at a pharmacy; Matter of Ugweches, 69 AD3d 125 (1st Dept. 2009) (attorney automatically disbarred upon his conviction for the class D felony of second-degree assault).
  1. Former EC 1-5 provided as follows:

A lawyer should be temperate and dignified, and should refrain from all illegal and morally reprehensible conduct. Because of the lawyer’s position in society, even minor violations of law by a lawyer may tend to lessen public confidence in the legal profession.

When the new Rules of Professional Conduct took effect on April 1, 2009, Comment [2] to Rule 8.4, as originally adopted by the New York State Bar Association Committee on Standards of Attorney Conduct (COSAC) and the state bar, stated in pertinent part:

[2] …Although a lawyer is personally answerable to the entire criminal law, a lawyer should be professionally answerable only for illegal conduct that indicates lack of those characteristics relevant to law practice. Violations involving violence, dishonesty, fraud, breach of trust, or serious interference with the administration of justice are illustrative of illegal conduct that reflects adversely on fitness to practice law. Other types of illegal conduct may or may not fall into that category, depending upon the particular circumstances.

Referring to former EC 1-5 (and apparently responding to critics of Comment [2]), COSAC’s 2011 Report to the House of Delegates said:

Although COSAC believes there is some illegal conduct that does not reflect adversely on a lawyer’s honesty, trustworthiness or fitness as a lawyer, there is an argument, as presented in the former EC, that even minor transgressions may tend to lessen public confidence in the legal profession and thereby draw into question a lawyer’s fitness as a lawyer.

Thus, COSAC’s 2011 Report concluded that it was “inappropriate for the Comment to take a bright-line position on an arguable question, particularly one that represents a significant shift from a former EC that is not supported by a change in the Rule,” and that any change in ethical standards might “be better left to the guidance of ethics committees in particular fact situations.”

The amended version of Comment [2] to Rule 8.4 now reads, in full, as follows:

[2] Many kinds of illegal conduct reflect adversely on fitness to practice law. Illegal conduct involving violence, dishonesty, fraud, breach of trust, or serious interference with the administration of justice is illustrative of conduct that reflects adversely on fitness to practice law. A pattern of repeated offenses, even ones of minor significance when considered separately, can indicate indifference to legal obligation.

  1. In re Dear, 91 A.D.3d 111 (1st Dept. 2011) (six-month suspension).
  1. In re Sibley, 61 A.D.3d 85 (4th Dept. 2009) (imposition of reciprocal discipline upon attorney suspended in Florida for three years).
  1. Matter of Gurvey, —N.Y.S.2d—, 2012 WL 6013093 (1st Dept. 2012) (six-month suspension; although the court acknowledged that respondent was not acting as an attorney at the time of the subject misconduct, it affirmed that it has “disciplined attorneys for conduct that is ‘both in and out of their profession so as to ensure the public’s right to representation by attorneys who are worthy of trust'”).
  1. In re Solny, 96 A.D.3d 76 (1st Dept. 2012) (two-year suspension although respondent was not acting in his professional capacity as an attorney, but rather as the coexecutor of his uncle’s will).
  1. In re Bikman, 304 A.D.2d 162 (1st Dept. 2003) (18-month suspension; court noted that “[e]ven if respondent did not quite manage to commit criminal or common-law fraud, she surely was dishonest, she was deceitful and she did misrepresent,” and “a lawyer’s unethical conduct, even when it occurs outside the practice of law, is a proper concern of the Disciplinary Committee because it tends to reflect adversely on the legal profession as a whole”).
  1. Lieberman and Supple, supra note 1. Thus, in our view, for example, dishonesty in applying for a mortgage or financial aid will likely be subject to discipline, whereas marital infidelity—however one views it from a moral perspective—falls within a zone of privacy that should be out of bounds for disciplinary agencies.

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Working Knowledge of Conflict of Interest Rules is Essential

Important Concepts on Ethical Duties Of Loyalty and to Maintain Confidentiality Every lawyer, whether engaged in litigation or transactional work, must have a working knowledge of the law relating to conflicts of interest to properly deal with conflicts situations when they arise, as they very likely will. Failure to have such an understanding can result […]

Reprinted with permission from the September 27, 2004 edition of the New York Law Journal ©2004 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. For information, contact 877-257-3382 – reprints@alm.com or visit www.almreprints.com.

  1. See Disciplinary Rules (DRs) 5-101(A) and 5-105(C) of the New York Lawyer’s Code of Professional Responsibility.
  2. See DR 5-105(D).
  3. N.Y. City Op. 2000-4 (2000).
  4. For example, compare Kassis v. Teacher’s Insurance and Annuity, 93 N.Y. 2d 611(1999) with Cummin v. Cummin, 264 A.D. 2d 637 (1st Dept. 1999).
  5. See DR 9-101(B).
  6. See DR 5-105(E); N.Y. City Op. 2003-3 (2003).
  7. See DR 5-101(A).

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How to Avoid Common Ethics Problems

Small Firms and Solos Are Often Subject to Disciplinary Complaints and Malpractice Claims Every year literally thousands of New York attorneys are recipients of client disciplinary complaints, and many are also sued for malpractice. The vast majority of these respondents (to use the disciplinary parlance) are small firm and solo practitioners. Even more ominously, the numbers […]

Reprinted with permission from the October 28, 2002 edition of the New York Law Journal ©2002 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. For information, contact 877-257-3382 – reprints@alm.com or visit www.almreprints.com.

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Be Aware of Ethical Witness Preparation Rules

Back in 1880, the New York Court of Appeals, in In re: Eldridge,1 suspended a lawyer for writing out answers for witnesses. In its holding, the Court said that a lawyer’s duty is to extract the facts from the witness, not pour them into him; to learn what the witness does know, not teach him what […]

Reprinted with permission from the May 25, 2000 edition of the New York Law Journal ©2000 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. For information, contact 877-257-3382 – reprints@alm.com or visit www.almreprints.com.

(1) 82 N.Y. 161 (1880)

(2) See, e.g., Richard Wydick, The Ethics of Witness Coaching, 17 Cardozo L. Rev. 1 (1995); John S. Applegate, Witness Preparation, 68 Tex. L. Rev. 277 (1989); Note, Professional Conduct and the Preparation of Witnesses for Trial: Defining the Acceptable Limitations of Coaching 1 Geo J. Legal Ethics 389 (1987); Fred C. Zacharias and Shaun Martin, Coaching Witnesses, 87 Kentucky L. J., 1001 (1999).

(3) See: DR 6-101(A) and DR 7-101(A) of the New York Lawyer’s Code of Professional Responsibility; Model Rule (MR) 1.4(b) of the ABA Model Rules of Professional Conduct.

(4) See DR 7-102(A)(4)(6)(7); MR 1.2(d), 3.3(a)(4), 3.4(b), 8.4(b)(d).

(5) Anatomy of a Murder (Columbia Pictures, 1958)

(6) The Verdict (20th Century Fox, 1982).

(7) This case is extensively discussed in a Special Report that appeared in the ABA/BNA Lawyer’s Manual on Professional Conduct, by Joan C. Rogers, entitled Witness Preparation Memos Raise Questions About Ethical Limits, pp. 48-54, Vol. 14, No. 2 (2/18/98).

(8) One prominent ethicist observed that The Code fails to impose any significant limit on a lawyer’s conduct in preparing his own witness for trial, with the result that the propriety of the lawyer’s conduct must be defined primarily by criminal laws dealing with subornation of perjury. Bruce Green, Zealous Representation Bound: The Intersection of the Ethical Codes and the Criminal Law, 69 N.C.L. Rev. 687, 705 (1991).

(9) See D.C. Bar Formal Op. 79 (1979). Neither the nature of nor the intent underlying the lawyer’s conduct has significance so long as the substance of the testimony is not, so far as the lawyer knows or ought to know, false or misleading.

(10) With respect to discussing with a witness the applicability of law to the events in issue, the Nassau County Bar Association, in opinion 94-6 (1994), has explicitly condoned the practice of informing the client as to the applicable legal principles before getting the client’s version of the facts, as long as the lawyer in good faith does not believe that she is participating in the creation of false evidence.

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Should Lawyers Be Free to Publicly Excoriate Judges?

Copyright (c) 1997 Hofstra Law Review Association; Hal R. Lieberman “[J]unk justice.“1 “‘[R]acist.”’2 “ “[A]nti-semitism.”’3 Appellate judges are “‘the whores who became madams.”’4 “‘[S] onofabitch.”’5 Inflammatory attacks on judges and the judiciary, like the foregoing lawyers’ comments reported in the press, are becoming more common. Should such remarks be tolerated under the First Amendment, or […]

a1

A.B., University of Chicago (1964); J.D., Harvard Law School (1967). Mr. Lieberman is the Chief Counsel to the Departmental Disciplinary Committee of the New York Supreme Court, Appellate Division, First Judicial Department. The views expressed herein are his own and do not necessarily represent those of the Departmental Disciplinary Committee or the Appellate Division.

1

John Shanahan, Giuliani Calls for Firing Jurist Who Freed Killer, Star-Ledger (Newark, N.J.), Feb. 15, 1996, at 18.

2

In re Atanga, 636 N.E.2d 1253, 1256 (Ind. 1994) (finding that a lawyer accused a judge, in a widely circulated newsletter, of being “‘ignorant, insecure, and a racist”’).

3

Susan Seager, Judge Sanctions Yagman, Refers Case to State Bar, L.A. Daily J., June 6, 1991, at 1.

4

James Mills, I Have Nothing to Do with Justice, Life, Mar. 12, 1971, at 56, 66.

5

Office of Disciplinary Counsel v. Grimes, 614 N.E.2d 740, 740 (Ohio 1993) (finding that a lawyer “referred to [a judge] as a “sonofabitch,”’ which was later reported in a local newspaper).

6

See Model Code of Professional Responsibility Preface at ix (1985).

7

Model Code of Professional Responsibility DR 8-102(B) (1980).

8

Id. EC 8-6 (endnotes omitted).

9

See Model Rules of Professional Conduct Preface at viii (1992).

10

Id. Rule 8.2(a) (emphasis added).

11

In addition to the District of Columbia, 36 states follow an amended version of the ABA Rules: Alabama, Alaska, Arizona, Arkansas, Colorado, Connecticut, Delaware, Florida, Hawaii, Idaho, Indiana, Kansas, Kentucky, Louisiana, Maryland, Michigan, Minnesota, Mississippi, Missouri, Montana, Nevada, New Hampshire, New Jersey, New Mexico, North Dakota, Oklahoma, Pennsylvania, Rhode Island, South Carolina, South Dakota, Texas, Utah, Washington, West Virginia, Wisconsin, and Wyoming. Seven of the remaining 14 states still retain a version of the ABA Code (Georgia, Iowa, Maine, Massachusetts, Nebraska, Ohio, and Vermont), six have incorporated a mixture of the ABA Code and Rules (Illinois, New York, North Carolina, Oregon, Tennessee, and Virginia), and California follows neither the ABA Code nor the ABA Rules. See Stephen Gillers, Regulation of Lawyers: Problems of Law and Ethics 5 (4th ed. 1995); State Ethics Rules, Laws. Man. on Prof. Conduct (ABA/BNA) No. 165, at 01:3-:4 (May 29, 1995).

12

For example, long before the promulgation of the ABA Rules in 1983, a New York court quoted with approval a referee’s finding that a lawyer had made statements concerning a surrogate judge “‘with knowledge of their falsity and with reckless disregard of the truth.”’ Baker v. Monroe County Bar Ass’n, 311 N.Y.S.2d 70, 73 (App. Div. 1970) (per curiam) (emphasis added), aff’d, 272 N.E.2d 337 (N.Y. 1971). Similarly, “‘the rule is well settled that an attorney who engages in making false, scandalous, or other improper attacks upon a judicial officer is subject to discipline.”’ Id. at 74 (emphasis added) (quoting In re Bevans, 233 N.Y.S. 439, 443 (App. Div. 1929)).

13

See, e.g., In re Holtzman, 577 N.E.2d 30 (N.Y. 1991) (finding that an attorney’s false accusations of judicial misconduct warranted discipline under DR 1-102(A)(6) of New York’s Code of Professional Responsibility (now DR 1-102(A)(8)), which prohibits conduct that adversely reflects on a lawyer’s fitness to practice law); see also infra notes 18-24 and accompanying text.

14

Model Rules of Professional Conduct Rule 8.4(d) (1992); Model Code of Professional Responsibility DR 1-102(A)(5) (1980).

15

Model Code of Professional Responsibility DR 7-106(C)(6).

16

Model Rules of Professional Conduct Rule 3.5(c).

17

Model Code of Professional Responsibility DR 1-102(A)(6).

18

577 N.E.2d at 30.

19

See id. at 32, 33.

20

Id. at 33 (quoting New York Code of Professional Responsibility DR 1-102(A)(6) (now DR 1-102(A)(8))).

21

See id.

22

See id. at 31, 32.

23

376 U.S. 254 (1964).

24

Holtzman, 577 N.E.2d at 34.

25

597 N.Y.S.2d 370 (App. Div. 1993).

26

Timothy Clifford, Hurt Not Married to Dancer: Court, Newsday (New York City), Oct. 4, 1989, at 4; see also Vivienne Walt, Jennings’ Lawyer Is on the Hot Seat, Newsday (New York City), Oct. 12, 1989, at 31; Golub, 597 N.Y.S.2d at 371. The incident arose after New York Supreme Court Justice Jacqueline Silbermann entered judgment for the defendant, movie star William Hurt, in Jennings v. Hurt, No. 9736/88, 1989 N.Y. Misc. LEXIS 868 (Sup. Ct. Oct. 3, 1989), aff’d, 554 N.Y.S.2d 220 (App. Div. 1990). See also Hal R. Lieberman, Lawyer Incivility Is Also Unethical, N.Y. L.J., Nov. 15, 1993, at 1.

27

Such public denunciations are not only made by attorneys; government officials have also been involved. The most striking recent example is the uproar following Judge Harold Baer, Jr.’s suppression of drug evidence in United States v. Bayless, 913 F. Supp. 232 (S.D.N.Y. 1996), which he subsequently reversed after an explosive public outcry in United States v. Bayless, 921 F. Supp. 211 (S.D.N.Y. 1996). See generally Linda Greenhouse, Rehnquist Joins Fray on Rulings, Defending Judicial Independence, N.Y. Times, Apr. 10, 1996, at A1; Alison Mitchell, Clinton Pressing Judge to Relent: President Wants a Reversal of Drug Evidence Ruling, N.Y. Times, Mar. 22, 1996, at A1; Henry J. Reske, Questions of Independence: Criticism, Political Matters Heat Up Judges Conference, A.B.A. J., June 1996, at 110.

28

182 N.Y.S. 653 (App. Div. 1920).

29

See id. at 655.

30

Id.

31

See id. at 655, 657.

32

34 N.Y.S.2d 810 (App. Div. 1942).

33

Id. at 813.

34

Id.; see also Baker v. Monroe County Bar Ass’n, 311 N.Y.S.2d 70, 73 (App. Div. 1970) (per curiam) (suspending an attorney who made a statement to a county bar association in which he referred to “crooked judges” and attacked the integrity of the surrogate’s court), aff’d, 272 N.E.2d 337 (N.Y. 1971).

35

301 N.E.2d 426 (N.Y. 1973), rev’g per curiam 333 N.Y.S.2d 863 (App. Div. 1972).

36

Mills, supra note 4, at 56.

37

Id. at 66.

38

See Erdmann, 301 N.E.2d at 427.

39

Id.

40

See discussion infra Part III.

41

12 F.3d 861 (9th Cir. 1993).

42

See id. at 864.

43

Id. at 866.

44

See id.

45

See id. at 866, 867.

46

Id. at 867 (quoting In re Westfall, 808 S.W.2d 829, 837 (Mo. 1991) (en banc)).

47

55 F.3d 1430 (9th Cir. 1995).

48

“[Attorney disciplinary] proceedings are governed by an objective standard, pursuant to which the court must determine “what the reasonable attorney, considered in light of all his professional functions, would do in the same or similar circumstances.”’ Id. at 1437 (quoting Sandlin, 12 F.3d at 867).

49

Id. at 1434.

50

See id. at 1441-42. A careful reading of Yagman would support discipline in many cases because, as the court held, even statements of opinion can be the basis for sanctions if such opinion can “reasonably be understood as declaring or implying actual facts capable of being proved true or false.” Id. at 1439. The court illustrated this point by providing the following example:

The statement, “I think Jones is an alcoholic,” for example, is an expression of opinion based on implied facts, because the statement “gives rise to the inference that there are undisclosed facts that justify the forming of the opinion.” Readers of this statement will reasonably understand the author to be implying he knows facts supporting his view–e.g., that Jones stops at a bar every night after work and has three martinis. If the speaker has no such factual basis for his assertion, the statement is actionable, even though phrased in terms of the author’s personal belief.

Id. (emphasis added) (citations omitted).

51

See id. at 1438, 1441.

52

70 F.3d 483 (7th Cir. 1995), cert. denied, 116 S. Ct. 1854 (1996).

53

Id. at 485.

54

See id. at 487.

55

The court noted that “[e]ven a statement cast in the form of an opinion (“I think that Judge X is dishonest”) implies a factual basis, and the lack of support for that implied factual assertion may be a proper basis for a penalty.” Id.

56

Id. (quoting Garrison v. Louisiana, 379 U.S. 64, 75 (1964)); accord In re Evans, 801 F.2d 703, 706 (4th Cir. 1986); In re Grimes, 364 F.2d 654, 656 (10th Cir. 1966).

Compare Palmisano to the reasoning forwarded by the court in United States v. Brown, 72 F.3d 25 (5th Cir. 1995). In Brown, the court ruled that a lawyer’s motion for a new trial, which included claims that the trial judge’s gestures, facial expressions, and comments showed bias against the lawyer’s client, did not warrant suspension, see id. at 27, 28, under ethical rules prohibiting “remarks about a judge that are false or made with a reckless disregard as to their truth or falsity.” Id. at 27. The court concluded that the lawyer’s comments were made in the context of the judicial process and that lawyers “should be free to challenge…a court’s perceived partiality without the court misconstruing such a challenge as an assault on the integrity of the court.” Id. at 29.

57

See In re Riley, 691 P.2d 695, 704 (Ariz. 1984) (in banc) (public censure; lawyer’s statement that the “‘state simply doesn’t get a fair trial in [that judge’s] court”’); Florida Bar v. Kleinfeld, 648 So. 2d 698, 701 (Fla. 1994) (three year suspension; lawyer impugned the “fairness and honesty of a judge for the sole purpose of shopping for a more favorable forum”); In re Jafree, 444 N.E.2d 143, 149 (Ill. 1982) (disbarment; lawyer made “numerous scurrilous and defamatory statements about the judiciary, and certain judges”); In re Atanga, 636 N.E.2d 1253, 1256 (Ind. 1994) (30 day suspension; lawyer accused a judge, in a widely circulated newsletter, of being “‘ignorant, insecure, and a racist’ and “motivated by political ambition”’); In re Frerichs, 238 N.W.2d 764, 765 (Iowa 1976) (public admonishment; lawyer’s statement, in a petition for rehearing, that the court was “ “willfully avoiding the substantial constitutional issues”’ in the case); Kentucky Bar Ass’n v. Heleringer, 602 S.W.2d 165, 166 (Ky. 1980) (public reprimand; lawyer characterized a judge’s decision as “‘highly unethical and grossly unfair”’ at a press conference); Louisiana State Bar Ass’n v. Karst, 428 So. 2d 406, 408 (La. 1983) (one year suspension; lawyer’s public accusation that a judge was “ “dishonest, corrupt,”’ and was either “‘blackmailed”’ or “ “accept[ed] bribes to influence his decision”’); In re Raggio, 487 P.2d 499, 500 (Nev. 1971) (per curiam) (public reprimand; lawyer, a district attorney who was a potential candidate for governor or U.S. senator, characterized a Nevada Supreme Court decision as “‘shocking and outrageous,”’ and as “‘judicial legislation at its very worst”’); Office of Disciplinary Counsel v. Grimes, 614 N.E.2d 740, 740 (Ohio 1993) (public reprimand; lawyer, while speaking with a reporter, “referred to [a judge] as a “sonofabitch”’); In re Lacey, 283 N.W.2d 250, 251 (S.D. 1979) (public censure; lawyer remarked to the press that “‘state courts were incompetent and sometimes downright crooked, Judge Adams excepted”’). See generally W.E. Shipley, Annotation, Attorney’s Criticism of Judicial Acts as Ground of Disciplinary Action, 12 A.L.R.3d 1408 (1967).

58

766 P.2d 958 (Okla. 1988).

59

Id. at 961.

60

Id. at 969.

61

See id. at 966-69.

62

Id. at 968.

63

Id.

64

Going one step further, concurring Justice Opala urged for the adoption of a completely subjective test: “Even if … the Bar had followed up with a formal and particularized offer to prove that the respondent’s remarks were false in fact, no discipline would be imposable here. Respondent’s constitutional freedom of speech does not depend on the truth of its content.” Id. at 970.

65

For example, a lawyer, unhappy with a judge’s decision, alleged that there was a conspiracy between the judge and the opposing party. See In re Disciplinary Action Against Graham, 453 N.W.2d 313, 318 & n.3 (Minn. 1990). Despite the lawyer’s apparently genuine belief that his statement was true, he had no facts to support his accusation and was suspended for 60 days; the court specifically articulated an objective test. See id. at 322, 324.

In a similar ruling, a lawyer was disciplined for asserting that the judge had “‘made up his mind”’ before hearing the case. In re Westfall, 808 S.W.2d 829, 832 (Mo. 1991) (en banc). The court rejected the lawyer’s claim that his actionable statement was only an opinion, not a statement of fact, calling that argument an “artificial dichotomy” and noting that a lawyer cannot screen himself from the disciplinary rule by adding “I believe” to the beginning of otherwise offensive comments. Id. at 833.

66

408 S.E.2d 274 (W. Va. 1991).

67

See id. at 283-84.

68

Id. at 285.

69

See Model Code of Judicial Conduct Canon 3(B)(9) (1990).

70

Model Code of Professional Responsibility EC 8-6 (1980).

71

Model Rules of Professional Conduct Rule 8.2 cmt. (1992).

 

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