ATTORNEY MISCONDUCT
Behavior by an attorney that conflicts with estab-
lished rules of professional conduct and is punish-
able by disciplinary measures.
More than any other profession, the legal
profession is self-governing. That is, it is largely
regulated by lawyers and judges themselves
rather than by the government or outside agen-
cies. In particular, the AMERICAN BAR ASSOCIA-
TION (ABA), the largest professional association
for attorneys, governs the PRACTICE OF LAW
through its establishment of rules of conduct.
These rules are then adopted, sometimes in a
modified form, by state courts and enforced by
court-appointed disciplinary committees or bar
associations. Attorneys found to be in violation
of professional standards are guilty of miscon-
duct and subject to disciplinary procedures.Dis-
ciplinary action by a state bar association or
other authority may include private reprimands;
public censure; suspension of the ability to prac-
tice law; and, most severe of all, disbarment—
permanent denial of the ability to practice law in
that jurisdiction. The state supreme court is the
final arbiter in questions of professional conduct
in most jurisdictions.
Since 1908, the ABA has been responsible for
defining the standards of proper conduct for the
legal profession. These standards, many of them
established by the ABA Standing Committee on
Ethics and Professional Responsibility, are con-
tinuously evolving as society and the practice of
law change over time. In 1969, the ABA passed
its Model Code of Professional Responsibility,
guidelines for proper legal conduct that were
eventually adopted by all jurisdictions. The ABA
modified the code by adopting the Model Rules
of Professional Conduct in 1983. The model
rules have been used by 40 states to create offi-
cial guidelines for professional conduct; 11
states or jurisdictions, including Washington,
D.C., and the Virgin Islands, have continued to
base their ethical codes on the earlier model
code. California has developed its own rules of
professional conduct.Whatever their basis, these
codes or rules define the lawyer’s proper role
and relationship to the client. It is essential that
lawyers understand the ethical codes under
which they must operate. Failure to do so may
result in not only disciplinary action by the rel-
evant professional authorities but also MAL-
PRACTICE suits against the lawyer. A malpractice
suit may result in loss of money or the ability to
work with specific clients.
Rule 8.4 of the Model Rules of Professional
Conduct contains the following statements on
attorney misconduct:
It is professional misconduct for a lawyer to:
(a) Violate or attempt to violate the Rules
of Professional Conduct, knowingly assist or
induce another to do so, or do so through the
acts of another;
(b) Commit a criminal act that reflects
adversely on the lawyer’s honesty, trustwor-
thiness or fitness as a lawyer in other respects;
(c) Engage in conduct involving dishon-
esty, FRAUD, deceit or misrepresentation;
(d) Engage in conduct that is prejudicial
to the administration of justice;
(e) State or imply an ability to influence
improperly a government agency or official;
(f) Knowingly assist a judge or judicial
officer in conduct that is a violation of appli-
cable rules of judicial conduct or other law.
Besides issuing these general statements, the
model rules set down many specific require-
ments for attorney conduct in different situa-
tions.
Because of an attorney’s special relationship
to the law, he or she is held to a special standard
of conduct before the law, as the ABA asserts in
its Lawyers’ Manual on Professional Conduct:
As members of the bar and officers of the
court, lawyers are beneficiaries of the privi-
lege of the practice of law and also are subject
to higher duties and responsibilities than are
non-lawyers. A lawyer’s fiduciary duties arise
from his status as a member of the legal pro-
fession and are expressed, at least in part, by
the applicable rules of professional conduct.
The word fiduciary in this quotation comes
from the Latin word fiducia, meaning “trust”; as
a fiduciary, then, the attorney acts as the trusted
representative of the client. Trust is thus a defin-
ing element of the legal profession, and without
it, the practice of law could not exist. For that
reason, the legal profession has created strict
rules of conduct regarding the attorney’s rela-
tionship with the client.
Attorney-Client Relationship
The model rules set forth specific guidelines
defining the attorney-client relationship. An
attorney will be guilty of misconduct, for exam-
ple, if she or he fails to provide competent rep-
resentation to a client, to act with diligence and
promptness regarding a client’s legal concerns,
or to keep a client informed of legal proceed-
ings. Charging exorbitant fees or overbilling is
also considered misconduct, as is counseling a
client to commit a crime. For example, trial
lawyer Harvey Myerson was suspended in 1992
from the practice of law by the New York Supreme Court after he was convicted of over-billing by millions of dollars (In re Myerson, 182
A.D. 2d 242, 588 N.Y.S.2d 142 [N.Y. App. Div.
1992]).
Many types of attorney misconduct involve
a conflict of interest on the part of the attorney.
A conflict of interest arises when an attorney
puts personal interests ahead of professional
responsibilities to the client. The model rules
specify the potential for conflict of interest in
many different situations. Thus, for example, an
attorney who by representing one client
adversely affects another client has a conflict of
interest and is guilty of misconduct. Conflict of
interest rules also forbid an attorney to enter
into a business transaction with a client unless
the client is fully aware of how the transaction
will affect his or her LEGAL REPRESENTATION
and agrees to the transaction in writing. Similarly,
an attorney is guilty of misconduct if he or
she makes a deal with the client for acquisition
of the book, film, or media rights to the client’s
story. Providing a client with financial assistance
also introduces a conflict of interest into the
attorney-client relationship.
If an attorney is related to another attorney
as parent, child, sibling, or spouse, that attorney
may not represent a client in opposition to the
related attorney except when given consent to
do so by the client. This type of conflict of interest
has become increasingly common as more
women enter the legal profession and the number
of marriages between attorneys grows. State
bar associations, such as that of Michigan, have
held that these guidelines also apply to lawyers
who are living together or dating but are not
married. The potential for conflict of interest
when the opposing attorneys are married or
romantically involved is clear. Imagine a woman
representing a client in a personal injury lawsuit
seeking millions of dollars worth of damages
from a manufacturer, with her husband representing
the manufacturer. As a couple, they have
a monetary interest in gaining a large settlement
from the manufacturer, thereby giving the husband
an incentive to lose his case. Given this
conflict of interest, the couple is obligated to
reveal to their clients the fact that they are married.
If the clients agree to go ahead with the case
regardless of the conflict of interest, then the
attorneys may decide to continue their representation.
Special examples of conflict of interest have
arisen in cases involving indigent defendants
who must use publicly provided defense attorneys.
In many jurisdictions, it is considered misconduct
for an attorney to refuse court appointment
as a public service defender for a poor
client, even when a spouse’s legal associate or
firm is involved on the opposing side of the case.
Normally, for example, state bar associations
allow a district attorney to prosecute persons
defended by partners or associates of the district
attorney’s spouse as long as the client is notified
of the situation; similarly, they will allow a district
attorney’s spouse to defend persons prosecuted
by other members of the district
attorney’s staff. Nevertheless, in a 1992 case,
Haley v. Boles, 824 S.W.2d 796, the Texas Court
of Appeals found that a conflict of interest gave
a court-appointed attorney grounds to refuse
appointment as a public defender for a poor
client. The prosecutor was married to the courtappointed
counsel’s law partner, creating a
potential conflict of interest. According to the
court’s decision, a poor defendant who must rely
on a public defender has fewer choices for legal
representation than a defendant who can afford
to employ her or his own attorney. Therefore, an
attorney who has a conflict of interest must be
able to refuse to represent a client as a public
defender without being charged with misconduct,
thereby ensuring that the client receives
legal representation free of a conflict of interest.
Any breach of the trust by the attorney that
underlies the relationship between that attorney
and the client can be considered misconduct.
For example, an attorney is often called upon to
hold or transfer money for a client, and in this
situation, the client places an extraordinary
amount of trust in the lawyer. Any misuse of the
client’s money by the attorney—called misappropriation
of client funds—constitutes a serious
breach of trust and a gross example of
misconduct. This offense includes stealing from
the client, mingling the attorney’s money with
that of the client, and controlling client funds
without authorization. The model rules require
that funds given to a lawyer by a client be kept in
an account separate from the lawyer’s own
account.
To encourage clients to inform their attorneys
of all details relevant to a case, ethical codes
also entrust attorneys with preserving the confidentiality
of the information their clients give
them; any failure to do so constitutes misconduct
on the part of the attorney. The law protects
attorney-client confidentiality with the
principle of ATTORNEY-CLIENT PRIVILEGE, and under very few circumstances is it lawful to
breach this privilege of confidentiality. The privilege
may be revoked to prevent the client from
“committing a criminal act that . . . is likely to
result in imminent death or substantial bodily
harm” (Model Rules of Professional Conduct, Rule
1.6 1983), or to respond to civil or criminal proceedings
made by the client against the attorney.
Except for these rare cases, only the client may
waive the attorney-client privilege of confidentiality.
Sexual contact between an attorney and a
client is almost always considered a breach of
conduct. Sexual contact represents a clear
breach of attorney-client trust. It is also a clear
conflict of interest because it can easily result in
the attorney’s placing his or her own needs
above those of the client, and it makes it difficult
for the attorney to argue the client’s case dispassionately.
Other Types of Misconduct
As the model rules indicate, an attorney may
be charged with misconduct if she or he commits
a criminal act. However, not all violations
of the law may result in professional censure.
According to the ABA, a lawyer is professionally
responsible “only for offenses that indicate lack
of those characteristics relevant to law practice.”
These include violations involving “violence,
dishonesty, breach of trust, or interference with
the administration of justice” (Model Rules of
Professional Conduct, Rule 3). Nevertheless, violations
of the law may seriously impair an attorney’s
professional standing.
Ethical rules also govern the conduct of
attorneys before courts. Thus, an attorney is
guilty of misconduct toward the court if he or
she brings a frivolous, or unnecessary, proceeding
to court; makes false statements to the court;
offers false evidence; or unlawfully obstructs
another party’s access to evidence. It is also considered
misconduct if an attorney attempts to
influence a judge or juror by illegal means, such
as BRIBERY or intimidation, or states personal
opinions regarding the justness of a cause or the
credibility of a witness. Special rules govern trial
publicity as well. These forbid an attorney to
make statements outside of court that will influence
a court proceeding. For example, an attorney
may not make statements related to the
character, credibility, guilt, or innocence of a
suspect or witness in a court proceeding. Attorneys
are forbidden to communicate directly or
indirectly with a party represented by another
lawyer in the same matter, unless they receive
permission from the other attorney. This law is
designed to protect laypersons involved in legal
proceedings from possibly hurting their cases by
speaking with the opposing lawyer.
Federal and state laws also define attorney
misconduct and empower judges to discipline
wayward attorneys. Rule 11 of the Federal Rules
of Civil Procedure (28 U.S.C.A.), for example,
requires sanctions for lawyers and clients who
file frivolous or abusive claims in court. In a
1989 case, Nasco, Inc. v. Calcasieu Television &
Radio, 124 F.R.D. 120 (W.D. La.), a federal district
judge suspended two lawyers and disbarred
another for “illegal and fraudulent schemes and
conspiracies” designed to slow a case in court for
the benefit of their client.
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 [1986]).
FURTHER READINGS
American Bar Association (ABA). 1994. Model Rules of Professional
Conduct. Chicago: ABA.
American Bar Association (ABA). Center for Professional
Responsibility. 1984–94. ABA/BNA Lawyers’ Manual on
Professional Conduct. Chicago: ABA.
Andrews, Carol Rice. 2001. “Highway 101: Lessons in Legal
Ethics That We Can Learn on the Road.” Georgetown
Journal of Legal Ethics 15 (fall): 95–125.
Freedman, Monroe H. 1999. Understanding Lawyers’ Ethics.
New York: Matthew Bender.
Hazard, Geoffrey C. 1994. The Law of Lawyering. 2 vols.
Englewood Cliffs, N.J.: Prentice-Hall.
Lieberman, Hal R., and Ronald W. Meister. 1999. Serving
Clients Well: Avoiding Malpractice and Ethical Pitfalls in
the Practice of Law. New York: Practicing Law Institute.
Liebman, Lance M., and Philip B.Heymann. 1988. The Social
Responsibilities of Lawyers: Case Studies. Eagan, Minn.:
Foundation.
Oldham, Lindsay M., and Christine M. Whitledge. 2002.
“The Catch-22 of Model Rule 8.3.” Georgetown Journal
of Legal Ethics 15 (summer): 881–94.
Powell, Sonya. 1993. “Intent as an Element of Attorney Misconduct.”
Journal of the Legal Profession 18: 407–15.
Steinberg,Marc I. 1999. Lawyering and Ethics for the Business
Lawyer. St. Paul,Minn.:West.
Wolfram, Charles W. 1986. Modern Legal Ethics. St. Paul,
Minn.:West.
CROSS-REFERENCES
American Bar Association; Attorney-Client Privilege; Civil
Procedure; Ethics, Legal; Legal Advertising; Legal Representation;
Malpractice; Model Rules of Professional Conduct;
Public Defender; Trial.
Attorney-Client Sexual Relations
The AMERICAN BAR ASSOCIATION (ABA) has recognized
sexual relations between attorneys and
their clients as a significant ethical problem for the
legal profession. The ABA’s Standing Committee on
Ethics and Professional Responsibility addressed this
issue in 1992 by issuing a formal opinion (no. 92-364).
Although the opinion acknowledged that the Model
Rules of Professional Conduct do not specifically
address the issue of attorney-client sex, it argued
that an attorney’s sexual relationship with a current
client “may involve unfair exploitation of the lawyer’s
fiduciary position and presents a significant danger
that the lawyer’s ability to represent the client adequately
may be impaired, and that as a consequence
the lawyer may violate both the Model Rules and the
Model Code.” Becoming sexually intimate with a
client, the opinion adds, undermines the “objective
detachment” necessary for LEGAL REPRESENTATION
because “[t]he roles of lover and lawyer are potentially
conflicting ones.” In addition, the opinion
argued, attorney-client sex introduces a clear conflict
of interest into a case, and it may also compromise
ATTORNEY-CLIENT PRIVILEGE, the principle that
ensures the confidentiality of lawyer-client communication.
Any secrets revealed to an attorney by a
client outside of their legal relationship may not be
protected by attorney-client privilege.
Proponents of professional rules against attorney-
client sexual contact argue that the legal profession
should follow the example of other professions
such as psychology and psychiatry, and create strict
sanctions against sex with clients. Legal clients,
these proponents say, are often vulnerable when
dealing with attorneys, particularly in such areas of
legal practice as FAMILY LAW. A lawyer who
becomes sexually involved with a client in a DIVORCE
proceeding can take advantage of the client undergoing
emotional trauma. That lawyer may hinder any
attempts at reconciliation between a couple and
complicate matters for any children involved. Sexual
relationships between lawyer and client may also
affect custody and child visitation decisions in the
case. The American Academy of Matrimonial
Lawyers, in its Standards of Conduct in Family Law
Litigation, specifically prohibits attorney-client sex:
“An attorney should never have a sexual relationship
with a client or opposing counsel during the time of
the representation” (§ 2.16 [1991]).
Some attorneys object to such rules, arguing that
they interfere with their FIRST AMENDMENT rights to
FREEDOM OF ASSOCIATION. They bristle at the notion
of state bar associations regulating the private affairs
of consenting adults. Nevertheless, attorneys are
increasingly being disciplined for becoming sexually
involved with clients, and state bar associations are
drafting clearer and more stringent rules against
attorney-client sexual contact. Wisconsin’s Supreme
Court, for example, in 1987, revoked the license of an
attorney in part because he had sex with a client (In
re Hallows, 136 Wis. 2d 72, 401 N.W.2d 557). The
attorney, the court argued, was “placing his interests
above” those of his client. In 1990, the same court for
the first time suspended the license of a criminal
lawyer who had sex with a client (In re Ridgeway, 158
Wis. 2d 452, 462 N.W.2d 671). Oregon and Minnesota
have adopted outright bans on attorney-client sexual
contact. Rule 1.8(k) of the Minnesota Rules of Professional
Conduct, which became effective July 1, 1994,
forbids attorney-client sexual contact during the conduct
of a professional legal relationship. It allows
exceptions to the rule only for relationships beginning
before legal representation has commenced or
after it has ended. In the case of clients that are
organizations rather than individuals, an attorney
may not have sexual contact with any member of the
client organization directly overseeing the case.
FURTHER READINGS
Awad, Abed. 1998. “Attorney-Client Sexual Relations.” Journal
of the Legal Profession 22 (annual): 131–91.
Kane, Andrew W., et al. 1992. “Attorney Sexual Misconduct.”
American Journal of Family Law 6 (fall): 191–95.
Shirey, William K. 1999. “Dealing with the Profession’s ‘Dirty Little
Secret’: A Proposal for Regulating Attorney-Client Sexual
Relations.” Georgetown Journal of Legal Ethics 13
(fall): 131–60.
Struzzi, Melissa A. 1999. “Sex Behind the Bar: Should Attorney-
Client Sexual Relations be Prohibited?” Duquesne Law
Review 37 (summer): 637–57.
