3.05.04. Rule 8.4(d): Conduct that is prejudicial to the administration of justice

If you did a “man on the street” segment and asked random people to give an example of conduct that is “prejudicial to the administration of justice” you would probably get a different answer from every participant, and the conduct would run the spectrum from not that bad (not responding to discovery on time) to the truly horrible (killing a witness so they could not testify against a client).  The vagueness of this term is both its greatest weakness and strength.  If the purpose of the rules is to educate lawyers about what is and is not ethical, merely telling lawyers “don’t do anything that prejudices the administration of justice” does not give any type of guidance.  In that sense, it is not a good rule.  In fact, when the Model Rules were being drafted, the opponents of this language argued that lawyers should have more certainty of what conduct could cause them to lose their license than this general phrase.  On the other hand, if we admit that the rules of professional conduct may not anticipate every bad action on behalf of a lawyer that should be sanctioned, this catch-all definition of misconduct provides a basis for sanction.

In practice, it is very rare that 8.4(d) is the only rule cited for discipline.  Almost always it is paired with some more specific rule.  And in most cases, 8.4(d) is included as one of the rules violated.  The reason for this is practical.  Assume that an ethics committee recommends discipline for not communicating with a client (Rule 1.4) and engaging in conduct prejudicial to the administration of justice (Rule 8.4(d)).  On appeal, the court might find that the lawyer did communicate with the client enough to satisfy rule 1.4, but the conduct was still inappropriate because it was prejudicial to the administration of justice.  In that way, disciplinary authorities always have an 8.4(d) fall back argument.