3.05.02. Rule 8.4(b): Criminal Act that Reflects adversely on honesty, trustworthiness, or fitness as a lawyer

The basis for discipline set out in Rule 8.4(a) makes sense: if a lawyer violates a mandatory rule of professional conduct, that lawyer has acted unethically and should be subject to sanction for misconduct.  Rule 8.4(b), however, does not have a direct connection between the ethical rules and misconduct.  This subsection says that you can be subject to discipline for crimes you commit – even if you never violate one of the ethical rules.  Note, however, that not every crime is defined as misconduct.  The crime must “reflect [] adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects.”[1]  In a sense, all violations of law indicate a disrespect for the law and could reflect adversely on a lawyer’s fitness.  However, the rule is designed to capture those crimes that implicate character traits that are relevant to the practice of law.[2]

To give an example:  if a lawyer willfully fails to file an income tax return, the lawyer has committed a crime indicating a character trait of dishonesty.  The Rule is concerned about criminal activity that implicates traits that relate directly to the practice of law – a dishonest lawyer will lie to the court or steal from a client.  Other crimes that fall into the category of relating to the practice of law include crimes involving: (1) violence, (2) dishonesty, (3) breach of trust, and (4) serious interference with the administration of justice.[3] Therefore, my speeding ticket or my parking ticket, although a crime, are not the types of crime that are defined as misconduct.  However, I do need to be careful – the Comment says a pattern of minor crimes that alone would not constitute misconduct can be aggregated to demonstrate “indifference to legal obligation” that would justify discipline.

Larry Lawyer represented Clarence Client.  Client pled guilty to two counts of sexual battery.  In preparing for the sentencing hearing, Lawyer wanted to discover mitigating evidence.  Lawyer offered the two sexual assault victims a “substantial” amount of money if they testified at the sentencing hearing that Client should not go to jail.  Lawyer was charged and convicted of bribery of the witnesses.  Would this violate Rule 8.4(b)? Disciplinary Counsel v. Doumbas, 76 N.E.3d 1185 (Ohio 2017)

Yes.  This would be a crime that indicates a serious interference with the administration of justice.  In this case the lawyer received an indefinite suspension.  This case should also be a warning to all lawyers – if anyone has to go to jail, let it be your client!  Can you see where this lawyer believed he was doing something to help his client and ended up in jail himself.

If you are unsure where the line is between crimes that impact a lawyer’s fitness to practice and those that do not, you are not alone.  One way to think about it is from a historical perspective.  In the prior version of the ethical rules (the Model Code of Professional Responsibility) the rule provided that it was misconduct for a lawyer to “[e]ngage in illegal conduct involving moral turpitude.”[4]  You can imagine the type of conduct this standard swept in – conduct that may be viewed as illegal based on moral disapproval but which does not reflect on characteristics related to the practice of law.  The example given in the Comment to Rule 8.4 is the crime of adultery (where it is still a crime).[5]  Another historical example would be a gay person convicted under a state’s sodomy laws.  In Florida, a lawyer was convicted of a sodomy offense and was disbarred by the Florida Supreme Court, and when he sought admission to Illinois, that state denied his application based on the Florida conviction.[6]  Another more recent example would be a conviction under the so-called “bathroom laws,” which make it a crime not to use the bathroom associated with biological gender.  The key is that the conduct may be criminalized based on moral approbation – and the lawyer is still must suffer the consequence of any conviction – but these types of crimes should not be the basis for discipline.  It is because the “moral turpitude” standard was too vague and swept up too much conduct, that the ABA adopted the “fitness to practice law” test in the current Rules.    

One last thing to take away from this subsection.  It is misconduct to commit the crime.  There is no requirement in the rule that the lawyer actually be convicted or even that there be a prosecution.  Therefore, if the evidence indicates that a relevant crime was committed, the lawyer is subject to discipline even if no charges are filed.

Andy Attorney is an attorney licensed in North Dakota.  He has a non-terminal medical condition that qualifies under Minnesota’s Medical Marijuana Law.  He would like to move to Minnesota to start taking medicinal marijuana.  Possession and use of marijuana is illegal under North Dakota and federal law. Is Attorney subject to discipline in North Dakota for using marijuana in Minnesota? North Dakota State Bar Ass’n Ethics Comm. Op. 14-02)

The ethics committee said yes – the lawyer would be subject to discipline in North Dakota.  The rationale is interesting.  The opinion does not say that the lawyer’s use of medical marijuana in and of itself is a crime that “reflects adversely” on the lawyer’s honesty, etc.  Instead, the opinion focuses on the fact that marijuana is still illegal under federal law for all uses.  Therefore, every time Attorney used marijuana he would be breaking a law, and thus even though such use may be considered only a minor violation because of changing views on marijuana – repeated use of marijuana would (just like my speeding ticket example above) constitute an “indifference to legal obligation,” and thus, a Rule 8.4(b) violation.

[1] Rule 8.4, Comment [2].

[2] Rule 8.4, Comment [2].

[3] Rule 8.4, Comment [2].

[4] Model Code of Professional Responsibility, DR 1-102(A)(3).

[5] Model Rules of Professional Conduct Rule 8.4, Comment [2]

[6] In re Kimball, 339 N.Y.S. 2d 302 (N.Y. Ct. App. 1973).