Stacked decks, standards of review, and the RPC 8.1 duty to cooperate

In many jurisdictions, disciplinary proceedings against lawyers are referred to as being “quasi-criminal” in nature.  If you ask lawyers who defend lawyers in disciplinary proceedings, you will often hear them agree that the nature of the work can feel a good bit like criminal defense work, but with two pretty universal exceptions that make the work even more difficult.  The first is that, unlike criminal cases, lawyers having to respond to disciplinary allegations against them not only do not exactly have a right to refuse to incriminate themselves (e.g. a right to remain silent) but actually have an ethical obligation, under RPC 8.1(b), that serves to require them to be willing to speak up and that requires them to cooperate with the investigation.  The ABA Model version of that provision reads:

“[A] lawyer . . . in connection with a disciplinary matter shall not: (a) knowingly make a false statement of material fact; or (b) fail to disclose a fact necessary to correct a misapprehension known by the person to have arisen in the matter, or knowingly fail to respond to a lawful demand for information from an admissions or disciplinary authority….”

The second is that the standard of proof bar regulators have to overcome to impose discipline against a lawyer’s license, up to and including the ultimate sanction of disbarment, is lower than the “beyond a reasonable doubt” standard in criminal practice.  Around 80% of U.S. jurisdictions require proof of a lawyer’s misconduct by “clear and convincing evidence” before the imposition of discipline and that can make any tensions arising from the duty to answer questions and cooperate a bit easier.  Unfortunately, Tennessee is one of the few remaining states that allow imposition of discipline merely based on a preponderance of the evidence standard.   I have written in the past about my belief that Tennessee’s continued use of that standard is constitutionally-suspect (in addition to being bad public policy) but am not going to do that again today.  (Though you can find some of my thoughts on the subject here.)

Today, I bring an update about the latest disciplinary difficulties of a particular Ohio lawyer who has managed in his latest run in with disciplinary authorities to simultaneously demonstrate how important the “clear and convincing evidence” standard can be to winning a case and how the ethical duty to cooperate and respond to questions imposed by those prosecuting you can end up resulting in you getting disciplined despite the underlying charge being meritless.

While still suspended as a result of this unwise house call to his female client, this Ohio lawyer has been dealing with a two-count disciplinary complaint over new issues, each of which arise from the same matter — an alleged representation of a criminal defendant, Gary Freeland.  The first count involved a litany of alleged misconduct, including lack of competent representation of Freeland and alleged misrepresentations to the criminal court.  The second count accused him of not cooperating with a disciplinary investigation initiated by an allegation from one of the prosecuting attorneys on Freeland’s case alleging that the Ohio lawyer communicated with Freeland at a time when Freeland was represented by the public defender’s office and that doing so was a violation of Ohio’s RPC 4.2.

In an opinion issued yesterday, the Ohio Supreme Court ultimately found that the allegations in Count 1 were not proven by clear and convincing evidence because the existence of an attorney-client relationship between the Ohio lawyer and Freeland had not been proven by clear and convincing evidence.  The Ohio lawyer had claimed that, although he had been paid $10,000, until he had the chance to fully review the case and decide whether to make an appearance as counsel for Freeland, he was only representing Freeland’s daughter.  Notably, Freeland testified that once his daughter had delivered the money to the Ohio lawyer, he considered the Ohio lawyer to be representing him.  In a jurisdiction where all that has to be satisfied is a “more likely than not” standard (i.e. preponderance of the evidence), there is good reason to think the outcome of that charge might be different.

As to Count 2 though, which arose from what appears to have been officious intermeddling on the part of a deputy district attorney, the Ohio lawyer ended up receiving a six-month suspension for a violation of RPC 8.1(b) for ignoring and failing to respond to two follow-up letters from bar counsel sent after the Ohio lawyer’s response to an initial letter inquiry.  Ohio’s RPC 4.2, patterned as it is after the ABA Model Rule, is not reasonably interpretable as making it unethical for a lawyer to talk to a potential client who is thinking about changing lawyers, so there really was no underlying unethical conduct.  Thus, this Ohio lawyer’s decision not to answer two letters from bar counsel is a pretty significant self-inflicted wound.

A promised update about that CLEUI/CLEWI situation.

A little while back, I posted about a Virginia lawyer who had been suspended after being drunk and disruptive while attending a CLE.  At the time, I speculated about what the ethics infraction might have been – making a false statement in terms of filling out the paperwork on attendance.  I was in the ballpark, but not correct.  The order regarding the suspension makes clear that the lawyer was disciplined for violating Virginia’s version of RPC 8.1 by falsely denying that he was intoxicated in his response to the bar accusations against him.  RPC 8.1 in many jurisdictions, including Tennessee, requires a lawyer not only to refrain in connection with a disciplinary matter from “knowingly mak[ing] a false statement of material fact,” but also prohibits lawyers from “fail[ing] to disclose a fact necessary to correct a misapprehension” the lawyer knows has arisen in the disciplinary proceedings.

Thus, RPC 8.1 presents a powerful weapon that disciplinary authorities can wield when they so desire and amounts to something that is very much the polar opposite of a Fifth Amendment right against self-incrimination even though disciplinary proceedings are often described as “quasi-criminal” in nature.

Of course, we all should still be able to agree with the general concept that being drunk at a CLE is a bad, bad idea.  There are lots of other ways that problems with alcohol can get lawyers into disciplinary trouble.  A more straightforward example of a Tennessee lawyer whose now been publicly censured, in part, because of a DUI and a judicial finding, in a custody dispute, that he had serious alcohol problems can be read about in this pithy press release from the BPR.