ANALYSIS: Rule 8.4

NEW RULES OF PROFESSIONAL CONDUCT

When it comes to recognizing legal misconduct, we think we "know it when we see it": showing up to court unprepared, blowing a statute of limitations, using offensive language in the courtroom, and similar instances of incompetent and unprofessional behavior. But in terms of legal ethics, the description of professional misconduct is much broader. And beginning Nov. 1 of this year, California lawyers will have an entirely new definition.

Old Rule 1-120 vs. New Rule 8.4

California does not currently have a catch-all rule describing professional misconduct. It does, however, in Rule 1-120, contain a small portion of what will be included in a more expansive misconduct rule in November.

Current California Rule 1-120, Assisting, Soliciting, or Inducing Violations, is short and sweet: "A member shall not knowingly assist in, solicit, or induce any violation of these rules or the State Bar Act." The State Bar Act includes a body of codified rules in the California Business and Professions Code.

New Rule 8.4 will add a number of provisions to the rule on professional misconduct. From dishonesty, to criminal behavior, to reckless misrepresentation, its broad scope merits the attention of California lawyers because it covers a wide range of unprofessional behavior.

Misconduct as Professional Misbehavior

Rule 8.4 paragraph (a) is similar to the current rule, stating it is professional misconduct for a lawyer to "violate these rules or the State Bar Act, knowingly assist, solicit, or induce another to do so, or do so through the acts of another." But the rule goes on to list a number of other types of behavior that constitute legal misconduct, including acts that are both legal and illegal.

Regarding dishonesty, Rule 8.4 paragraph (b) states that it is misconduct for a lawyer to "commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer in other respects." (Emphasis added.)

But the very next paragraph, (c), extends the language involving dishonesty to non criminal behavior, labeling behavior professional misconduct when it involves "dishonesty, fraud, deceit, or reckless or intentional misrepresentation."

Paragraph (d) adds an additional broad category to the misconduct list: conduct that is "prejudicial to the administration of justice."

Rule 8.4 paragraph (e) says it is professional misconduct for a lawyer to "state or imply an ability to influence improperly a government agency or official, or to achieve results by means that violate these rules, the State Bar Act, or other law."

Paragraph (f) adds the last described method of committing misconduct, for a lawyer to "knowingly assist, solicit, or induce a judge or judicial officer in conduct that is a violation of an applicable code of judicial ethics or code of judicial conduct, or other law." Paragraph (f) states that for purposes of this rule, "judge" and "judicial officer" have the same meaning as in Rule 3.5(c), which contains a list of individuals, some not traditionally classified as judges or judicial officers. It may include "(i) administrative law judges; (ii) neutral arbitrators; (iii) State Bar Court judges; (iv) members of an administrative body acting in an adjudicative capacity; and (v) law clerks, research attorneys, or other court personnel who participate in the decision-making process, including referees, special masters, or other persons to whom a court refers one or more issues and whose decision or recommendation can be binding on the parties if approved by the court."

Clarifying Comments

Current California Rule 1-120 has no discussion section -- unlike other current California ethics rules, which include descriptive, clarifying text after the text of the rule. The new Rule 8.4 comment section, in contrast, has plenty to say about its new provisions.

Comment [1] specifies when a lawyer can commit misconduct, stating that Rule 8.4 can be violated "when a lawyer is acting in propria persona or when a lawyer is not practicing law or acting in a professional capacity."

Comment [3], regarding criminal acts, states that "a lawyer may be disciplined for criminal acts as set forth in Business and Professions Code sections 6101 et seq., or if the criminal act constitutes "other misconduct warranting discipline" as defined by California Supreme Court case law. (See In re Kelley (1990) 52 Cal.3d 487 [276 Cal.Rptr. 375].)"

Comment [4] references California Business and Professions Code Section 6106, which in pertinent part, prohibits "The commission of any act involving moral turpitude, dishonesty or corruption, whether the act is committed in the course of his relations as an attorney or otherwise, and whether the act is a felony or misdemeanor or not, constitutes a cause for disbarment or suspension."

Comment [4] incorporates much of the language of Section 6106 but adds some additional text. It states, "A lawyer may be disciplined under Business and Professions Code section 6106 for acts involving moral turpitude, dishonesty, or corruption, whether intentional, reckless, or grossly negligent."

Comment [5] recognizes a Rule 8.4 exception for permissible undercover activity. It states, "Paragraph (c) does not apply where a lawyer advises clients or others about, or supervises, lawful covert activity in the investigation of violations of civil or criminal law or constitutional rights, provided the lawyer's conduct is otherwise in compliance with these rules and the State Bar Act."

And finally, Comment [6] states that Rule 8.4 "does not prohibit those activities of a particular lawyer that are protected by the First Amendment to the United States Constitution or by Article I, section 2 of the California Constitution."

New Rule 8.4 is one of many examples of how significant some of the ethics rule changes will be on Nov. 1. Lawyers are well advised to become familiar with these rules now, in order to continue to maintain thriving legal practices, and handle cases both effectively, and ethically.