A common theme in many disciplinary proceedings brought against lawyers involves dishonesty. This should not really be a surprise given that lawyers are human beings and human beings have a tendency toward being dishonest when they can get away with it. Although there is an ethics rule that, on its face, makes it unethical for a lawyer to engage in any kind of dishonesty at all, lawyers usually only get taken to task for a category I’ll call today official dishonesty.
One such type of official dishonesty involves failure to make full disclosure in connection with an application for admission in some other jurisdiction. The consequences of this kind of official dishonesty can be severe as is demonstrated by the one year and one day suspension now being imposed on this Pennsylvania lawyer for failing to disclose prior discipline against him when he applied for admission to the federal court in the Eastern District of Pennsylvania. As luck would have it, the lawyer’s failure to make disclosure involved a 1996 suspension, also of 1 year and 1 day, which was itself brought about by failing to disclose a prior arrest on his original application for admission to practice law in Pennsylvania.
Disciplinary proceedings are not, of course, the only negative outcome that can result from a lawyer engaging in official dishonesty or failure to make full disclosure. Another kind of negative outcome, discussed before in this post, involves losing out on coverage from your insurer for legal malpractice/professional liability claims. Law360 has the story of another lawyer who, already faced with defending a legal malpractice lawsuit, is now faced with having no coverage for it as a result of a ruling this month by the Indiana Court of Appeals.
The issue of misrepresentation alleged by the lawyer’s carrier is a common one – a claim, with the benefit of hindsight, that the lawyer was aware he faced a potential claim and should have disclosed such on a 2011 renewal application. As is also often the story, the claim about which the carrier says the lawyer should have been aware is the same one now being litigated and about which the carrier has refused coverage. In this instance, the lawyer’s client’s case had been dismissed as a discovery sanction and that dismissal was still on appeal in the Indiana system at the time the 2011 renewal application was completed by the lawyer. The Law360 piece grabs the salient quote from the court of appeals ruling (which actually reversed a trial court that had sided with the lawyer’s argument that he’d made no material misrepresentation):
“Therefore, because of the severity of the trial court’s remedy – dismissal of the cause – any reasonable attorney in [the lawyer’s] position would realize that his client might pursue a potential legal malpractice claim against him should the Supreme Court affirm the trial court.”
For lawyers, there are quite a few ethics rules that are implicated by acts of dishonesty, RPC 3.3 (false statements to tribunals), RPC 4.1 (false statements to third parties), RPC 7.1 (false statements about the lawyer or their services) but the rule that has the broadest reach, and to which I referred at the beginning of this post, is RPC 8.4(c).
That rule says that “[i]t is professional misconduct for a lawyer to … engage in conduct involving dishonesty, fraud, deceit or misrepresentation.” Unlike many other ethics rules, the text of RPC 8.4(c) does not limit itself to things done in the course of representing a client. Figuring out what it does, and does not, actually apply to can be less than an exact science. For example, I’m confident that I’ve never violated RPC 8.4(c) by telling my kids when they were young that Santa Claus was real nor by bluffing in a friendly game of cards. But figuring out where the lines are realistically drawn on other issues of dishonesty unrelated to anything the lawyer is doing in the practice of la involves a case-by-case analysis, but if there is an “official” component to the dishonesty, you can count on RPC 8.4(c) finding a way to apply.
A Maryland lawyer learned earlier this month that the price of having been dishonest about something unrelated to his law license was disbarment. The lawyer in question established an LLC called Carefree Construction Services within a few months after becoming a lawyer and then performed home improvement work through the LLC. The lawyer, however, was not properly licensed in Maryland as a home improvement contractor and was actually using his brother’s license to do the work without his brother’s permission.
In its opinion, the Maryland court, citing another 2014 decision, expressly addressed the fact that the dishonest conduct had nothing to do with practicing law was of no consequence and that the conduct did violate RPC 8.4(c). The court also explained that since the conduct involved a misdemeanor (performing the home improvement work without a license) that it considered the lawyer to have committed the kind of criminal conduct that violated RPC 8.4(b) as well.
The opinion also went to some length to explain that, in its totality, the lawyer’s conduct amounted to a violation of RPC 8.4(d) – conduct prejudicial to the administration of justice — and that determination also played a role in ramping up the discipline meted out. The lawyer had filed a number of lawsuits for non-payment against home improvement customers who had learned of his unlicensed status and, as to one such set of customers, threatening them by email and “attempt[ing] to leverage his position as an attorney to intimidate” the customers into paying him more money. One example quoted in part in the opinion, involves the lawyer, in an email exchange, with the dissatisfied and fully-informed customer, writing: “Are you forgetting, I AM A CONSTRUCTION ATTORNEY. There is nothing about construction law that you can learn on the internet that I am not an expert on.”