Ethics and the Law: Don’t Act Ugly - By Robert Pelton

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Wednesday, January 25th, 2017

Over the past 10 years many Houston lawyers have become friends with several homeless people who hang around the courthouse. One recently died and several lawyers helped provide shelter, food, and medical care for “Rick.” Rick always had a positive attitude and was upbeat and would tell all the accused citizens standing in line to get in the building “Don’t Worry, Be Happy,” or “I Love You” to all the women, lawyers, and citizens. He was like a street preacher trying to spread some cheer around a depressing building.

Saundra is another homeless person who stays around the courthouse, and many lawyers help her. There were some dirty politics in several elections in Harris County, resulting in a new district attorney, sheriff, and several judges. Saundra would hear all the gossip, and when I would see her and spend a few minutes talking with her she would say, “God does not like it when people Act Ugly.” She was talking about what she was hearing about lawyers who were hiding evidence, lying, and acting ugly, and the families were talking about what the prosecutors and lawyers had done.

Acting ugly was resulting in accusations that lawyers were giving special deals to rich people, and poor people pleading guilty just to get out of jail because they had no money to get out on bond. Acting ugly was hiding evidence from defense lawyers. Randy Schaffer and a few other lawyers got new trials for people who had been convicted. Some of these cases showed that prosecutors lied, withheld exculpatory evidence or evidence that might have resulted in a not guilty verdict. Lawyers are bound by their oath and the rules of ethics by the state bar. The ethics hotline has received many calls from lawyers and citizens about the conduct of prosecutors and of their own lawyer. When a lawyer sees some other lawyer acting ugly, there are bar rules that advise us on what to do: Rule 8.03, 8.04, and Rule 1.05f.

VIII. MAINTAINING THE INTEGRITY OF THE PROFESSION

Rule 8.03 Reporting Professional Misconduct

(a)   A lawyer having knowledge that another lawyer has committed a violation of applicable 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 disciplinary authority.

(b)   A lawyer having knowledge 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.

(c)   This rule does not require disclosure of knowledge or information otherwise protected by Rule 1.05.

(d)   This rule does not require disclosure of knowledge or information otherwise protected as confidential information

1.  by Rule 1.05 or

2.  by any statutory or regulatory provisions applicable to the counseling activities of the approved peer assistance program.

Comment—Rule 8.03

1.   Self-regulation of the legal profession requires that members of the profession initiate disciplinary investigations when they have knowledge not protected by Rule 1.05 that a violation of these rules has occurred. Lawyers have a similar obligation with respect to judicial misconduct. Frequently, the existence of a violation cannot be established with certainty until a disciplinary investigation has been un­dertaken. Similarly, an apparently isolated violation may indicate a pattern of misconduct that only a disciplinary in­ves­tigation can uncover. Consequently, a lawyer should not fail to report an apparent disciplinary violation merely because he cannot determine its existence or scope with absolute certainty. Reporting a violation is especially important where the victim is unlikely to discover the offense.

2.   It should be noted that this Rule describes only those disciplinary violations that must be revealed by the disclosing lawyer in order to avoid violating these rules himself. It is not intended to, nor does it, limit those actual or suspected violations that a lawyer may report. However, if a lawyer were obliged to report every violation of these 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. The term “fitness” has the meanings ascribed to it in the Terminology provisions of these Rules.

3.   A report of professional misconduct by a lawyer should be made and processed in accordance with Article X of the State Bar Rules. A lawyer need not report misconduct where the report would involve a violation of Rule 1.05. However, a lawyer should encourage a client to consent to disclosure where prosecution of the violation would not substantially prejudice the client’s interests. Likewise, 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.

Rule 8.04 Misconduct

(a) A lawyer shall not:

(1)  violate these rules, knowingly assist or induce another to do so, or do so through the acts of another, whether or not such violation occurred in the course of a client-lawyer relationship;

(2)  commit a serious crime, or commit any other criminal act that reflects adversely on the lawyers honesty, trustworthiness or fitness as a lawyer in other respects;

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

(4)  engage in conduct constituting obstruction of justice;

(5)  state or imply an ability to influence improperly a government agency or official;

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

(7)  violate any disciplinary or disability order or judgment;

(8)  engage in conduct that constitutes barratry as defined by the law of this state;

(9)  fail to comply with Article X, section 32 of the State Bar Rules;

(10) engage in the practice of law when the lawyer’s right to practice has been suspended or terminated;

(11)  violate any other laws of this state relating to the professional conduct of lawyers and to the practice of law.

(b)  As used in subsection (a)(2) of this Rule, “serious crime” means any felony involving moral turpitude, any misdemeanor involving theft, embezzlement, or fraudulent misappropriation of money or other property, or any attempt, conspiracy, or solicitation of another to commit any of the foregoing.

Joseph Connors, Ethics Committee member, has helped me write and research for this article, as has Michael Mowla. This is an example of what has happened in other places:

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 [198]

Jim Skelton has read the rules and offered the following as an aid in understanding the rules:

I read Rules 1.05, 8.03, and 8.04 and think that Rule 8.03 is pretty clear—a lawyer has the obligation to report another lawyer to the State Bar who commits a 8.04 violation that raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer. There are two exceptions: (1) if the lawyer had an addiction problem, the reporting law­yer has the option of reporting this to an approved peer assistance program as opposed to reporting it to the State Bar; and (2) if the lawyer learns the information from an attorney client agreement so long as the information does not involve an ongoing crime or a future crime.

        The hook in the rule is what is a “substantial question”? My guess is that there is no specific standard, that it is resolved on a case-by-case basis.

Special thanks to Joseph Connors, Michael Mowla, Chuck Lanehart, and Jim Skelton.