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Ethics/Professional Responsibility,
State Bar & Bar Associations

Jul. 26, 2019

Under the new ethics rules, are lawyers ever off the clock?

Now that California has adopted its own version of ABA rule 8.4, Misconduct, it is increasingly apparent that an attorney´s off-the-clock behavior can have on-the-clock consequences.

Patrick wendy1

Wendy L. Patrick

San Diego County District Attorney's Office

Wendy is a San Diego lawyer, past chair and advisor of the California State Bar Ethics Committee (Committee on Professional Responsibility and Conduct), and past chair of the San Diego County Bar Association Legal Ethics Committee. Any opinions expressed here are her own, and do not reflect that of her employer. This article does not constitute legal advice.

Until Nov. 1, 2018, California was the lone hold out state that had not yet adopted some version of the American Bar Association's Model Rules. And while we had our own statutes that addressed attorney misbehavior on personal time, we did not formally have our own version of the ABA misconduct rule.

Now that California has adopted its own version of ABA rule 8.4, Misconduct, it is increasingly apparent that an attorney´s off-the-clock behavior can have on-the-clock consequences.

As many ethics gurus know, however, California attorneys were already subject to discipline for their behavior when they were not practicing law. Some of the relevant code sections are referenced in California Rule 8.4.

Personal Time, Professional Rules

California lawyers have long been governed by California Business and Professions Code Section 6106, which permits State Bar discipline for actions involving dishonesty, among other things, whether or not a licensed lawyer is practicing law. New Rule 8.4 adopts that language and rationale.

California Rule 8.4 states in pertinent part that a lawyer shall not:

"(b) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer in other respects; (c) engage in conduct involving dishonesty, fraud, deceit, or reckless or intentional misrepresentation"

Rule 8.4 Comment [3] states, "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. Comment [3] cites In re Kelley, 52 Cal.3d 487 (1990), a case where a California lawyer was disciplined for picking up a second driving under the influence charge while on probation for the first one.

Rule 8.4 Comment [4] notes the possibility of discipline per Business and Professions Code Section 6106 "for acts involving moral turpitude, dishonesty, or corruption, whether intentional, reckless, or grossly negligent."

So with those guidelines, what exactly are the types of off-the-clock behavior that will land an attorney in ethical hot water? Although the California Rule 8.4 comment section does not elaborate beyond the few references above, ABA Rule 8.4 Comment [2] is more instructive. It recognizes, "Many kinds of illegal conduct reflect adversely on fitness to practice law, such as offenses involving fraud and the offense of willful failure to file an income tax return. However, some kinds of offenses carry no such implication."

Regarding the differences between the types of offenses referenced, ABA Rule 8.4 Comment [2] recognizes the traditional distinction made for offenses involving "moral turpitude." It defines that concept as including "offenses concerning some matters of personal morality, such as adultery and comparable offenses, that have no specific connection to fitness for the practice of law."

ABA Rule 8.4 Comment [2] continues, recognizing that while a lawyer is responsible for abiding by all tenants of criminal law, "a lawyer should be professionally answerable only for offenses that indicate lack of those characteristics relevant to law practice." Regarding examples, the Comment notes, "Offenses involving violence, dishonesty, breach of trust, or serious interference with the administration of justice are in that category. A pattern of repeated offenses, even ones of minor significance when considered separately, can indicate indifference to legal obligation."

Off-Duty Conduct Unbecoming

Encouraging lawyers to hold themselves to the highest standards of care both personally and professionally is reflected in many different ethics codes and standards. The preamble to the American Bar Association rules of professional conduct defines the responsibilities of a lawyer in section [1], "A lawyer, as a member of the legal profession, is a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice."

Yet most states, usually in connection with the adopted version of ABA Rule 8.4, as well as case law, broaden a lawyer´s responsibilities to include maintaining high standards of conduct whether or not they are practicing law. This is particularly true in connection with behavior involving honesty and integrity.

Accordingly, lawyers may be subject to discipline for their actions during personal time. From driving under the influence, to bar fighting, to inappropriate or offensive social media posting, off duty actions may have on duty consequences.

The takeaway? "None of your business" is unlikely to be an acceptable response from a lawyer if the State Bar comes calling, asking questions about personal time -- if there is such a thing in the life of a modern lawyer. For attorneys who have the luxury of down time, be forewarned that well-earned R and R should be pleasurable, but also ethical. 

#353641

Ben Armistead

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