To pass the time during Snowmageddon (Snowpocalypse?), here’s a blogpost equivalent of an ink blot test. Do you think either of these situations (or both) (or neither) involve situations where disciplinary authorities should be allocating resources to go after lawyers under the ethics rules?
The first inkblot:
An attorney runs advertisements for his bankrutpcy practice that say: “Keep your property.” “Stop wage garnishments.” “Stop home foreclosure.” “Stop vehicle repossession.” And, oh yeah, “been screwing banks since 1992.” And, the lawyer has a current website with a bulldog picture and the words “We love to take a bite out of a banker!” Are disciplinary proceedings in order? Should it result in a 30-day suspension? Should it matter whether your argument that you meant “screwing” as a connotation to thumbscrews that used to be used in debtor’s prisons sounds at all convincing?
If you were the lawyer in question, can you think of any reason you would simply consent to having the suspension order go down against you? Would it matter if you had a past disciplinary history? Should it? Would it matter if the jurisdiction had some special advertising rule prohibition different from the ABA Model Rules? Or, what if the relevant rule just prohibited making false or misleading communications about the lawyer or the lawyer’s services, including statements contain material misrepresentations of fact or law or that that omit facts necessary to make the statement as a whole not materially misleading? Would you want to know if anyone, anywhere had actually been misled by the statements in the advertisements?
The second inkblot:
Lawyer, representing a criminal defendant she believes to be wrongly incarcerated, and in connection/cooperation with the North Carolina Center on Actual Innocence, takes a water bottle out of a house and doesn’t return it when she figures out it was not her water bottle and may have DNA on it of someone else that she is interested in having tested. Should that be the subject matter of a disciplinary complaint? What if she says she didn’t realize until she’d left the house that it wasn’t her water bottle? What if you think, instead, that she knew when she took the water bottle that it was likely not hers?
Does it matter if the DNA turned out not to be helpful? What about if, because of the attorney’s efforts, the criminal defendant was ultimately exonerated after spending 40 years in prison for a double murder he didn’t commit? Is it obtaining evidence in violation of the rights of another in violation of RPC 4.4(a)? Is that the kind of dishonesty that RPC 8.4(c) should exist to address? What about RPC 8.4(d) and its prohibition on conduct prejudicial to the administration of justice? Is it better, or worse, that the lawyer waited until finding out that the person wouldn’t submit to DNA testing before using the water bottle to run a DNA test? Should the lawyer be admonished for the conduct?
What say you?