The intersection of ethics and criminal or civil liability

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By Thomas Spahn
Dolan Media Newswires

It comes as no surprise that we as lawyers must avoid violating our profession’s unique ethics rules.

Of course, we also must comply with the normal criminal and civil obligations that govern every citizen’s conduct.

It can be difficult to analyze the intersection between these two sets of principles.

The ABA Model Rules bluntly state an ethics violation “should not itself give rise to a cause of action against a lawyer.” However, in a balancing act typical of the ABA Model Rules, the same comment indicates that a lawyer’s ethics breach “may be evidence of breach of the applicable standard of conduct.”

Thus, in most states lawyers cannot be sued for violating the ethics rules, but can have the rules cited against them in malpractice or other cases.

State bars’ disciplinary authorities must sometimes deal with the ethics rules’ applicability to a lawyer’s non-legal activities. Some ethics rules limit their reach to a lawyer’s conduct “in representing a client.”

For example, ABA Model Rule 4.2’s prohibition on ex parte communications with a represented person starts with that phrase.

Bars frequently have a difficult time determining whether a lawyer can be or should be professionally disciplined for criminal or civil wrongdoing unrelated to the lawyer’s legal advisory role or relationship with any clients. The ABA Model Rules explain a lawyer “is personally answerable to the entire criminal law,” but “should be professionally answerable only for offenses that indicate lack of those characteristic relevant to law practice.” That comment refers to offenses “involving violence, dishonesty, breach of trust, or serious interference with the administration of justice.” The comment mentions “moral turpitude” as essentially supplying the litmus test.

It is easy to see why lawyers should not face professional discipline for criminal acts such as justifiable civil disobedience, or exceeding the speed limit by a small amount. On the other hand, some criminal acts involving dishonesty, such as tax evasion, should deserve professional punishment.

Perhaps the most difficult cases involve lawyers’ use of illegal drugs or alcohol abuse. Some bars have not hesitated to punish lawyers in those circumstances. However, if lawyers rely on their bar’s “Lawyers Helping Lawyers” program, bars sometimes give them another chance. Ironically, this means that in some situations lawyers might face a much milder punishment if they can blame some chemical dependency for their wrongdoing.

Of course, the best way for lawyers to avoid these issues is to comply with all of the ethics rules, as well as those criminal and civil obligations that govern everyone. Unfortunately, lawyers cannot rely on any clear guidelines in trying to assess the likelihood they will be disciplined professionally for criminal or civil wrongdoing.

Tom Spahn is a commercial litigator at McGuireWoods in McLean, Va. He regularly advises a number of Fortune 500 companies.