That’s not a Rule 8.4(c) violation. THAT’s a Rule 8.4(c) violation.

In February 2017, more than a dozen law professors filed an ethics complaint against Kellyanne Conway, Counselor to the President, alleging that she violated the attorney ethics rules applicable in D.C. through several false public statement she made — most notably, her repetitive statements about a terrorist incident that never actually occurred – the “Bowling Green Massacre.”  Now, many people were not aware of the fact that Ms. Conway is an attorney — she doesn’t work as an attorney in the present administration.  (In fact, her D.C. law license is already administratively suspended.)  The core rule that the professors contend Ms. Conway violated is Rule 8.4(c) which makes it a violation for a lawyer to “engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.”

Unlike many other ethics rules, Rule 8.4 does not contain language limiting its scope to when “representing a client.”  While I am not a fan of Ms. Conway, I very much disagree with the notion that her public statements in her political role are the kind of conduct to which Rule 8.4(c) should be applied.  A reporter with The Blaze was kind of enough to let me comment in an article about the ethics complaint against Conway where I elaborate more fully on why I disagreed.  You can read the article with, including my extensive comments, here.

Now, I feel compelled in fairness, instead of just knocking something down the opinion of others, to try to offer a good example of lawyer conduct that I think would fit as a Rule 8.4(c) violation but that doesn’t involve representing a client.

So, let me try a scenario.

Say you are a lawyer, and you are undergoing a job interview.  If you lie in response to questions that are important to whether or not you get the job, that would be fodder for a Rule 8.4(c) violation.  Or, maybe to make the violation even more palpable (if not clearer), let’s say you are seeking a public job.  Perhaps, a really high-profile one, involving the government.  And you lie during your job interview or on the application you have to submit for the position as part of a background check.  That would definitely trigger Rule 8.4(c) in my view.

Heck, while I am just freewheeling on this whole scenario, let’s really ramp up the stakes.  Let’s go with an attorney position in the federal government where your appointment has to be confirmed by the U.S. Senate.  And, let’s say you lie in response to written questions posed to you by a Senator or you give a false and misleading response to a Senator’s question during a confirmation hearing or, gosh, maybe you do even both of those things.  That would definitely be a Rule 8.4(c) violation.  And, given that there would be also be lying under oath involved and lying to Congress involved, Rule 8.4(b) would actually come into play as well.  That’s the rule that prohibits a lawyer from “commit[ting] a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects.”

So, yes, that would to me be a very solid foundation for multiple Rule 8.4 violations.  And, in my scenario, the lawyer engaged in dishonesty, deceit, and misrepresentations would not even have to have been undergoing the job interview to be the Attorney General of the United States, but if it helps to put flesh on the bones of the hypothetical to think I was talking the whole time about the current U.S. Attorney General then, well, have at it.

[And, as to the title of this post, you’re going to have to read that title in a Paul Hogan as “Crocodile Dundee” Australian accent.  And if you aren’t familiar with him or that movie, it was a lot more popular back in 1999 when Mr. Sessions said this to explain his vote to impeach a different President of the United States.]

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