3.05.03. Rule 8.4(c): Conduct involving dishonesty, fraud, deceit, or misrepresentation

The first thing to note about this subsection is how it differs from the Rule 8.4(b) discussed above.  Subsection (b) covered actions that constitute a crime, while this subsection regulates tortious conduct.  Once again, the rule includes activities in the lawyer’s personal life – not necessarily things that happen in the course of the lawyer’s practice.  The justification for deeming dishonest/fraudulent actions misconduct is the same as the defining certain crimes as misconduct.  Conduct that falls into these categories by their very definition  indicate that a lawyer has character traits that the bar wants to prohibit.  Thus, a lawyer who lied about attending a CLE has engaged in dishonesty and is subject to discipline.[1]  All of the justifications for lawyer discipline are in play here – to punish the wrongdoer, to deter others from engaging in this conduct, and to demonstrate to the public that regulators will take steps to ensure that dishonest lawyers are sanctioned.

Linda Lawyer practices in the area of family law.  She is representing the wife in a particularly contentious divorce.  Lawyer hired a woman to contact the husband in the divorce action through a dating website and “ply him with alcohol” and then, when the husband leaves, tip off a friendly police officer who arrests the husband for drunk driving.  Lawyer then uses the arrest as leverage in divorce or child custody disputes.  Is the lawyer subject to discipline for this?

Yes.  This is a clear example of a lawyer using dishonesty, fraud, deceit and misrepresentation.  This happened in California and was known as the “Dirty DUI” scheme.[2]  If this misconduct seems a little outrageous, consider the following.

Mary Cook was an associate in a Denver law firm.  She had an yearly hourly billable requirement that she was expected to meet.  In 2016, she spent two weeks away from the office due to her wedding and honeymoon.  When she came back to the office it became clear to her that she was not going to be able to make up the hours to satisfy her billing requirement.  She was afraid that she would lose her job if she failed to bill enough hours, so she inflated the time that she worked on some matters and fabricated other hours.  The partners in the firm noticed the discrepancies and confronted her about it.  She ultimately confessed and resigned.  People v. Cook, 2017 WL 3587985 (Col. 2017)

The disciplinary body found that Cook had violated Rule 8.4(c) by engaging in dishonesty, fraud, deceit, or misrepresentation.  Cook was suspended for nine months.  Although the opinion does not indicate, I assume that the firm reported Cook to the disciplinary authority.  The opinion also notes that no clients were harmed because the bills were corrected before they were sent to the clients.  Those of you going to a firm should keep this case in mind.

[1] Matter of Diggs, 544 S.E.2d 628 (S.C. 2001).

[2] If you want to read more about this, read Antioch: State bars attorney linked to dirty DUI scandal (The Mercury News March 9, 2017) [http://www.mercurynews.com/2017/03/09/antioch-state-disbars-attorney-linked-to-dirty-dui-scandal/] (last visited June 1, 2018).